26 August 2024 Property Law >> Personal Law  

In a recent ruling, the court examined the appropriateness of appointing a Court Commissioner in a property dispute case and provided guidance on when such an appointment is permissible. The decision was issued in the context of a writ petition challenging a trial court’s order related to the appointment of a Court Commissioner.

Background:

The writ petition contested an order dated July 20, 2024, from a trial court which had granted a request by the plaintiffs (Respondent Nos. 1 to 4) for the appointment of a Court Commissioner, specifically a Talathi Inspector for Land Records (T.I.L.R.), to survey, measure, and map the disputed property. The plaintiffs' suit, initiated in 2021, sought mandatory injunctions and the removal of alleged encroachments by the defendants. This case followed a precursor suit from 2015, which had been withdrawn with permission to file anew.

In the earlier suit, the plaintiffs had requested the appointment of a T.I.L.R., but their application had been denied. The current suit also sought similar reliefs, and the plaintiffs aimed to establish their claim based on either a registered sale deed or relevant revenue records.

Key Issues:

The primary issue before the court was whether the trial court's order to appoint a Court Commissioner at the outset of the proceedings was appropriate. The plaintiffs had requested this appointment to assist in identifying the property and the extent of encroachment, which the court questioned.

The court observed that typically, the appointment of a Court Commissioner should not be used as a tool for gathering evidence before the plaintiffs have proven their case. Normally, plaintiffs are expected to first establish their entitlement based on documentary evidence, such as sale deeds or public records, before a Court Commissioner is appointed. Allowing such an appointment at the very beginning might unduly facilitate evidence collection for the plaintiffs, which could be seen as premature.

However, the court acknowledged that there could be circumstances where the appointment of a Court Commissioner might be justified even before the plaintiffs have completed presenting their evidence. For instance, if there remains significant ambiguity regarding the property’s identification or the extent of encroachment after all evidence has been presented, the trial court could, at its discretion, appoint a Court Commissioner to clarify these issues.

Relevant Case Law:

Mr. Jadhav, representing the respondents, cited several precedents to support the trial court’s decision:

1. Kashinath vs. Purushottam Tulshiram Tekade & Ors. (2005): This case suggested that ordering a local investigation under Order XXVI, Rule 9 of the Civil Procedure Code (CPC) could be appropriate to determine encroachments, but typically such measures are taken after the oral evidence is presented.

2. Mayuresh S. Sonawane vs. Yashwant Babu & Ors. (2022): This ruling reiterated that trial courts should ascertain the facts of the case at various stages, including interim stages, to decide if a Court Commissioner’s appointment is justified.

3. Bhupendra Bhagwat Turkar vs. Homraj Z. Meshram (2014): This decision reinforced that the availability of authentic evidence is crucial before deciding on a Court Commissioner’s appointment.

Court’s Decision:

The court ultimately decided that the trial court's order was unsustainable. It emphasized that while the appointment of a Court Commissioner is a valuable tool, it should not replace the need for plaintiffs to first establish their case through evidence. The court’s ruling annulled the trial court's decision, setting aside the order for the appointment of a Court Commissioner.

The court directed that the suit should proceed based on its own merits, without being influenced by the earlier order. It clarified that a Court Commissioner could be appointed only after the plaintiffs have presented their evidence and the defendants have had an opportunity to present rebuttal evidence. The decision to appoint a Court Commissioner should be at the trial court's discretion based on the evidence presented and not as a preliminary measure.

Conclusion:

The court’s decision underscores the importance of procedural propriety in property dispute cases. It affirms that the appointment of a Court Commissioner should be a measure of last resort, used to clarify unresolved issues only after the substantive evidence has been presented. This ruling reinforces the principle that evidence collection must precede the appointment of a Court Commissioner to ensure a fair and just resolution of disputes.