Bombay High Court

MOHAN BABANRAO PALANDEversusGAUTAM MANIKRAO DHUMAL AND ORS

Decided: 29 August 2026
Disposal: Disposed Off

Holding

The order rejecting the appointment of a Court Commissioner stands, as the cadastral surveyor's report is part of the record and a Commissioner cannot be appointed to determine physical possession.

Summary

The petitioner challenged a trial court order that rejected his application for appointing a Court Commissioner to determine actual physical possession of a disputed property. He argued that the cadastral surveyor, who had initially supported his case, later admitted that the encroachment was not shown on the map, necessitating a new commission. The High Court held that the surveyor's report and map, filed under Order XXVI Rule 10 of the CPC, constitute part of the court record and that any alleged admission is a matter of evidence appreciation, not a ground to overturn the order. It further ruled that a Commissioner cannot be appointed to ascertain physical possession and that the trial court's observations should be limited to the appointment issue only. Consequently, the petition was dismissed without affecting the merits of the underlying suit.

Issues considered

Whether the order rejecting the appointment of a Court Commissioner can be interfered with under the Court's supervisory jurisdiction.
Whether the cadastral surveyor's report and map, filed under Order XXVI Rule 10 of the CPC, become part of the court record and preclude further appointment of a Commissioner.
Whether a Court Commissioner can be appointed to ascertain actual physical possession of the parties.

Legislation cited

Code of Civil Procedure, 1908 — s. Order XXVI Rule 10

Subjects

Court Commissioner
Physical possession
Cadastral surveyor
Code of Civil Procedure
Supervisory jurisdiction
Writ petition
Encroachment

Judgment

                                                                              19-WP-10430-2026.DOC




                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           CIVIL APPELLATE JURISDICTION
                                         WRIT PETITION NO. 10430 OF 2026


                      Mohan Babanrao Palande                                       ..Petitioner
                           Versus
                      Gautam Manikrao Dhumal and Ors                           …Respondents


                      Mr. Sachin R Pawar, for the Petitioner.

ARUN
RAMCHANDRA                                          CORAM:         N. J. JAMADAR, J.
SANKPAL
                                                    DATE :         29th AUGUST 2026
Digitally signed by
ARUN RAMCHANDRA
SANKPAL
Date: 2026.09.02
15:10:33 +0530


                      P.C.:

                      1.      Heard the learned Counsel for the parties.

                      2.      The challenge in this Petition is to an order dated 11 th June 2026

                      passed by the learned Civil Judge, Junior Division, Shirur (Ghodnadi),

                      whereby an application for appointment of the Court Commissioner to

                      ascertain the actual physical possession of the parties over the disputed

                      property, came to be rejected.

                      3.      Mr. Sachin Pawar, the learned Counsel for the Petitioner,

                      submitted that the Cadastral Surveyor who had carried out the survey

                      and submitted a report, initially supported the case of the Plaintiff.

                      However, during the course of cross-examination, the Cadastral

                      Surveyor has given an admission that the encroachment is not shown

                      ARS                                    1/2
                                                         19-WP-10430-2026.DOC

on the map and, therefore, it is necessary to appoint another

Commission.

4.    The submissions cannot be countenanced.

5.    The Cadastral Surveyor has already submitted the map and report

on the record of the Court. Under the provisions of Order XXVI Rule 10

of the Code of Civil Procedure, 1908, the report and map form part of

the record of the Court. The Cadastral Surveyor has already been

examined. The import of the purported admission given by the

Cadastral Surveyor is a matter of appreciation of evidence.

6.    In any event, the Commissioner cannot be appointed to ascertain

actual physical possession of the parties at the site.

7.    For the foregoing reasons, this Court does not find any

justification to interfere with the impugned order in exercise of its

supervisory jurisdiction. However, it is clarified that the observations

made in the impugned order shall be confined to the determination of

the prayer for appointment of the Commissioner. The Trial Court shall

not be influenced by any of the observations while finally deciding the

Suit, particularly in respect of the existence or non-existence of the

encroachment over the property of the Plaintiff.

8.    Petition disposed.



                                              [N. J. JAMADAR, J.]


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