Bombay High Court
SANJAY SOPANRAO KENDREversusSHOBHA LAXMIKANTRAO GANJEWAR AND ANOTHER
- Disposal
- DISPOSED OFF
Holding
A Court Commissioner may be appointed under Order XXVI Rule 9 to measure the disputed lands and prepare a map, provided the appointment is limited to measuring as per the sanctioned layout and the trial court’s order is upheld with modifications.
Summary
The respondents filed a special civil suit seeking declaration of ownership, recovery of possession and perpetual injunction over two plots, alleging that the petitioner had encroached their land. During the trial, the respondents applied under Order XXVI Rule 9 of the CPC for the appointment of a Court Commissioner to obtain land records and measure the disputed plots, claiming they could not obtain the documents from the Land Records Office. The trial court allowed the application, directing the Commissioner to measure both parties' plots as per the layout. The petitioner challenged this order, arguing that a Commissioner should not be appointed merely to ascertain possession and that the trial court erred. The High Court held that a Commissioner can be appointed for measurement and mapping purposes, but the scope must be clarified, allowing the petitioner to submit acquisition documents and subjecting the report to objections. Accordingly, the writ petition was partly allowed, modifying the trial court’s order to specify the Commissioner’s duties and confirming the appointment.
Issues considered
- Whether a Court Commissioner can be appointed under Order XXVI Rule 9 of the CPC solely to ascertain possession of disputed land.
- Whether the trial court erred in directing the Commissioner to measure both plaintiff and defendant plots as per the layout.
Legislation cited
- Code of Civil Procedure, 1908 — s. Order XXVI Rule 9
Subjects
- encroachment
- possession
- court commissioner
- civil suit
- land records
- Order XXVI Rule 9
- measurement of land
- injunction
Judgment
2026:BHC-AUG:43183
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 10528 OF 2024
Sanjay Sopanrao Kendre
VERSUS
Shobha Laxmikantrao Ganjewar And Another
...
Mr. B. R. Kedar, Advocate for the Petitioner
Mr. S. V. Natu, Advocate for Respondent nos.1 and 2
…..
CORAM : AJIT B. KADETHANKAR, J.
DATED : 22ND SEPTEMBER, 2026
P.C. :-
. Special Civil Suit No.95 of 2015 came to be filed by
present respondents against the present petitioner seeking
decree of declaration of ownership in respect of plot nos.95
and 96, situated at gut no.85 and 86 of Mauja Kautha, Tq. and
Dist. Nanded. A consequential relief of recovery of possession
and perpetual injunction was also prayed. The sum and
substance of plaintiffs’ case is that the defendant/present
petitioner has encroached their plots and hence they sought
declaration of ownership and recovery of possession from the
petitioner.
2. The suit is defended by the petitioner by filing a written
statement. Issues were framed and evidence was recorded.
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After evidence of the plaintiff was completed, during the
course of recording the evidence of the defendant, plaintiffs
moved an application under Order XXVI Rule 9 before the
Trial Court below Exhibit 93 seeking appointment of Court
Commissioner. The plaintiffs sought to justify the application
by contenting that despite making strenuous efforts to collect
the documents and record from the office of the Land Records,
they could not procure the same and hence, they were
constrained to file the application.
3. The application was opposed by the petitioner.
However, for the reasons recorded in the order, the Trial
Court vide order dated 13.08.2024 allowed the said
application.
4. Feeling aggrieved thereby, defendant is before this
Court.
5. Mr. B. R. Kedar, learned Advocate for the petitioner
would invite my attention to the observations of the Trial
Court at paragraph no.6. He would submit that the intention
of the Court is to ascertain the possession of respective parties
over the suit properties. He submits that for such purpose,
Commissioner can not be appointed. Then, he would further
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submits that it is for the plaintiffs to prove their case with
their independent evidence and not by collecting the evidence
by way of appointing the Court Commissioner. With this,
Mr. Kedar concludes his argument and requests to allow the
Writ Petition.
6. Mr. S. V. Natu, learned Advocate for the respondents
would advocate the findings rendered by the Trial Court. He
would submit that the application was self explanatory. Even
today, it is the contention of the respondents that since there
was no record available from the City Survey/Land Records
Office, respondents had no other option than to file the said
application. Mr. Natu disputes that the application was filed to
collect the evidence and that the Trial Court has committed
any error while passing the said order.
7. I have heard both the sides extensively. True that it is a
matter in respect of recovery of possession following removal
of alleged encroachment. The suit properties forms a part of
layout as per the contentions of the plaintiffs. Recitals of
Exhibit-1 of the Petition i.e. plaint show that the plaintiffs
have given clear description of the suit properties including
the four boundaries.
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8. Now, the issue is as to whether the petitioner/defendant
has encroached the properties owned by the plaintiffs. The
layout is available on record. Obviously, a Commissioner
cannot ordinarily be appointed merely for the purpose of
identifying the possession of a party over a particular piece of
land. For such intention, certainly a Commission can not be
issued.
9. Mr. Kedar, learned Advocate for the petitioner is
justified in submitting that the Trial Court erred in observing
that in order to ascertain as to who is in possession of each
plot, cadastral Surveyor of Deputy Land Records was required
to be appointed as Court Commissioner to measure not only
the suit properties but also the plots of defendant no.1.
10. Mr. Natu has also pointed out that the Trial Court while
appointing the Commissioner has directed to measure the
properties of plaintiffs and defendant no.1 as per the layout
annexed to the sale deeds of respective parties.
11. On this backdrop, I am of the view that the Writ Petition
can be disposed of by keeping the order passed by the Trial
Court for appointment of a Court Commissioner intact, subject
to certain clarification. Hence, I pass following order:
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ORDER
a. Writ Petition stands partly allowed.
b. The clause no.2 of the impugned order dated
13.08.2024 is modified as under:
2) The Cadastral Surveyor from Office
of Deputy Superintendent of Land Records is
hereby appointed as Court Commissioner to
measure the properties of the parties as per the
sanctioned layout, prepare a map of current
situation on the field and produce the same
before the Court.
c. The petitioner is permitted to supply documents
of acquisition of land to the Court Commissioner. Court
Commissioner while executing the commission shall
take into consideration those documents.
d. Needless to mention, report shall be subject to
objections.
e. Writ Petition stands disposed of.
( AJIT B. KADETHANKAR, J. )
Rushikesh/2026
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