ISMAIL SAIFUDDIN SAIFI v. KISHOR NAROTTAM PATIL AND OTHERS
Appointment of Court Commissioner for Land Measurement is Premature and Amounting to Collection of Evidence if Ordered Before Completion of Plaintiff's Evidence in Encroachment Suits Lacking Genuine Boundary Disputes.
Court: Bombay High Court
Citation: 2026:BHC-AUG:12686
Decision Date: 24-03-2026
List of Laws
Code of Civil Procedure, 1908 (Section 75 and Order XXVI Rule 9); Land Acquisition Law; Law of Injunctions; Law of Evidence (Burden of Proof)
- Facts: The petitioner filed a suit for mandatory injunction against Respondent No. 1, alleging encroachment and illegal construction on 15 R of land in Gut No. 89/1, village Kukadel. This specific portion of land was previously acquired by the State Government for a road and canal. Historically, the mother of Respondent No. 1 had filed a suit (RCS No. 71/2005) claiming ownership, which was dismissed after the Civil Court concluded the land belonged to the Government and she was an encroacher. Despite this, Respondent No. 1 re-occupied the land and commenced construction. Respondent No. 1 contended that the land was never actually acquired or had lost its acquired status due to non-utilization. Before the plaintiff could conclude evidence, Respondent No. 1 applied for the appointment of a Court Commissioner to admeasure the land.
- Procedural Posture: The Trial Court (Civil Judge, Senior Division, Shahada) allowed the application for a Court Commissioner via an order dated 18.07.2024. The petitioner challenged this interlocutory order before the High Court of Bombay at Aurangabad through a Writ Petition under Article 227.
- Issue: Whether the Trial Court was justified in appointing a Court Commissioner for land measurement at the instance of the defendant before the completion of the plaintiff's evidence, especially when the core dispute concerned the legal status of the land (acquired vs. non-acquired) rather than a simple boundary dispute.
- Holding: No, the appointment was unjustified and premature. The High Court allowed the Writ Petition and set aside the Trial Court's order.
- Reasoning: The Court reasoned that in encroachment cases, the primary burden of proof lies with the plaintiff to demonstrate the extent of the encroachment through evidence. Appointing a commissioner at this stage, particularly on the defendant's application before the plaintiff finished leading evidence, would amount to "collection of evidence" by the Court, which is impermissible. Furthermore, the Court noted that the real controversy was not a boundary dispute but a dispute over the title and acquisition status of the land, already settled by a previous intact decree. The Court emphasized that while a defendant can seek a commissioner in "peculiar circumstances", it is usually only after the plaintiff's evidence is over. In this case, the application was deemed misconceived as it would not serve the purpose of adjudicating the actual legal rights in dispute.
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