Where in a suit for declaration and injunction the plaintiff alleges encroachment by the defendant during construction over adjacent sites, appointment of an Advocate Commissioner under Order XXVI Rule 9 CPC to measure both properties with the assistance of a qualified surveyor is legally justified, as such appointment facilitates adjudication of encroachment and does not amount to impermissible collection of evidence. Absent patent illegality, no interference lies under Article 227.

advocatemmmohan

Civil Procedure Code, 1908 – Order XXVI Rule 9 – Appointment of Advocate Commissioner – Measurement of property to ascertain encroachment – Permissible – Not collection of evidence when localization and encroachment are in issue – Para 3–4

Declaration and Injunction Suit – Allegation of encroachment between adjacent sites – Necessity of survey and measurement – Commissioner justified to determine encroachment – Para 3–4

Revisional Jurisdiction – Article 227 Constitution of India – Scope – No interference when no patent illegality or manifest error in appointment of Commissioner – Para 4

Distinguishing precedents – Commissioner not to be appointed to collect evidence – Principle inapplicable where identity, measurement and encroachment are core issues – Para 4

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FACTS (Para 1–3)

• Plaintiff filed O.S. No. 437 of 2020 seeking:

  • Declaration of title over plaint schedule property.

  • Permanent injunction.

• Case of plaintiff:

  • Both parties purchased adjacent vacant sites.

  • Defendant constructed house on her site.

  • During construction, defendant allegedly encroached upon part of plaintiff’s vacant site.

• Plaintiff filed I.A. No. 162 of 2023 under Order XXVI Rule 9 CPC seeking appointment of Advocate Commissioner to:

  • Take measurements of both properties,

  • With assistance of Town Surveyor,

  • Submit report regarding extent of encroachment.

• Trial Court allowed the petition.

• Defendant challenged said order in revision.

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ISSUE

Whether appointment of an Advocate Commissioner under Order XXVI Rule 9 CPC for measurement of adjacent properties to ascertain alleged encroachment amounts to impermissible collection of evidence?

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CONTENTIONS

Petitioner/Defendant

• Commissioner cannot be appointed to collect evidence.

• Relied on:

  • K. Rafiq Basha v. Valukuru Ramakrishna (2024 (5) ALT 514).

  • Vasupalli Danayya v. Pinnamaraju Srinivas (2023 (6) ALT 437).

• In suits for declaration/injunction, burden lies on plaintiff.

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Court’s Analysis (Para 4)

The High Court distinguished the cited precedents:

• In those cases:

  • Identity or localization of property was not in dispute, or

  • Commissioner was sought merely to gather evidence supporting possession.

• In present case:

  • Core issue is encroachment during construction.

  • Measurement of both sites essential to determine:

    • Boundaries,

    • Overlap,

    • Extent of encroachment, if any.

Thus:

• Commissioner is not collecting evidence in place of parties.

• Commissioner is assisting the Court in resolving a factual boundary dispute.

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FINDING

• Trial Court committed no illegality.

• Appointment of Commissioner is legally sustainable.

• No patent illegality or manifest error warranting interference under Article 227.

Revision dismissed. No costs.

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ANALYSIS OF FACTS AND LAW

A. Scope of Order XXVI Rule 9 CPC

Order XXVI Rule 9 permits local investigation where:

• Physical features,

• Boundary disputes,

• Encroachment issues,

• Measurement discrepancies

require on-site verification.

It is improper where:

• Commissioner is used to prove possession,

• Or to gather evidence which party must lead.

It is proper where:

• Localization and measurement are necessary to adjudicate encroachment.

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B. Distinction Between “Collection of Evidence” and “Assistance to Court”

Impermissible	Permissible
To prove possession	To measure property boundaries
To support title proof	To localize encroachment
When identity undisputed	When boundaries contested

Present case falls squarely in the second category.

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C. Revisional Limits

Under Article 227:

• High Court interferes only if:

  • Jurisdictional error,

  • Patent illegality,

  • Manifest perversity.

Discretionary procedural order appointing commissioner, when justified by pleadings, does not attract supervisory correction.

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RATIO DECIDENDI

Where in a suit for declaration and injunction the plaintiff alleges encroachment by the defendant during construction over adjacent sites, appointment of an Advocate Commissioner under Order XXVI Rule 9 CPC to measure both properties with the assistance of a qualified surveyor is legally justified, as such appointment facilitates adjudication of encroachment and does not amount to impermissible collection of evidence. Absent patent illegality, no interference lies under Article 227.