- Bookmark
- Share
- CaseIQ
Payani Achuthan v. Chamballikundu Harijan Fisheries Development Co-Operative Society And Others
Factual and Procedural Background
The plaintiff, representing all fishermen in the locality, filed a suit (O.S No. 17 of 1993) in the Munsiff's Court, Payyannur, seeking a permanent injunction restraining the defendants from entering his property. The disputed property totals about 200 acres, with defendants assigned 105 acres for an aqua farm, while the plaintiff and local fishermen claim possession and fishing rights over the remaining 95 acres. The plaintiff alleged that the defendants attempted encroachment into their area and sought an injunction to prevent this. To effectively implement any injunction, the plaintiff requested the appointment of a Commissioner under Order 26, Rule 9 of the Code of Civil Procedure (C.P.C) for inspection and measurement of the property to demarcate the respective areas. The Munsiff rejected this request, holding there was no grievance regarding possession boundaries, which led to the present revision petition by the plaintiff. The defendants did not appear despite being served.
Legal Issues Presented
- Whether the trial court erred in refusing to appoint a Commissioner under Order 26, Rule 9 of the C.P.C for local investigation and measurement of the disputed property.
- Whether refusal to appoint such a Commissioner amounts to a failure to exercise jurisdiction and is subject to revision under Section 115.
Arguments of the Parties
Appellant's Arguments
- The plaintiff contended that without appointment of a Commissioner for measurement and demarcation, the fishermen would face difficulties in continuing their fishing operations.
- The plaintiff argued that clear demarcation was necessary to effectively implement any injunction granted to prevent encroachment.
The opinion does not contain a detailed account of the respondents' legal arguments due to their non-appearance.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ponnusamy v. Salem Vaiyappamalai Jangamar Sangam, AIR 1986 Mad 33 | Clarification of the purpose and importance of local investigation under Order 26, Rule 9 of the C.P.C and its evidentiary value under Order 26, Rule 10. | The court relied on this precedent to hold that refusal to appoint a Commissioner for local investigation denies a party the right to adduce crucial evidence and amounts to a failure to exercise jurisdiction, justifying revision under Section 115. |
Court's Reasoning and Analysis
The court recognized that the central dispute involved whether the defendants possessed only the 105 acres allotted or had encroached upon the plaintiff's land. To resolve this factual controversy, the court acknowledged that local investigation by a competent Commissioner is an appropriate and effective method to gather evidence that cannot be otherwise obtained in court. Citing the precedent in Ponnusamy v. Salem Vaiyappamalai Jangamar Sangam, the court emphasized that the report and evidence collected by the Commissioner form part of the suit record and are critical to elucidate ambiguities regarding possession boundaries. The court held that denying the appointment of a Commissioner in such circumstances deprives the party of the right to present essential evidence and constitutes a failure to exercise jurisdiction. Consequently, the impugned order refusing the appointment was unsustainable.
Holding and Implications
Revision allowed. The impugned order rejecting the appointment of a Commissioner is set aside. The learned Munsiff is directed to appoint a Commissioner for inspection and measurement of the property as prayed, at the expense of the plaintiff.
This decision directly affects the parties by enabling the plaintiff to obtain the necessary local investigation to substantiate his claims of possession and to effectively implement injunction relief. No broader precedent beyond the application of existing procedural principles under Order 26, Rule 9 and Section 115 is established.
1. Plaintiff in O.S No. 17 of 1993 on the file of the Munsiff's Court, Payyannur, has preferred this revision against the order in I.A No. 1063 of 1993 arising out of the said suit. Plaintiff filed the suit in a representative capacity on behalf of all the fishermen in the locality. By the impugned order, the learned Munsiff rejected the prayer of the petitioner to appoint a Commissioner for inspection and measurement of the plaint schedule property. The learned Munsiff held that neither party has any grievance about the identity of areas in their respective possession and as such it is not necessary to appoint a Commissioner.
2. Plaintiff filed the suit for a permanent injunction against the defendants restraining them to enter upon his property. The total extent of property in the possession of both the parties is about 200 acres. The defendants, Co-operative Society and others were assigned 105 acres out of it to have an aqua farm. Plaintiff contends that the local fishermen including himself are in possession of the remaining 95 acres of land. They are doing fishing operations in this land since generations and as such they have acquired ease-mentary right over that area. The defendants made attempts to encroach into their area. Hence the plaintiff made a prayer for injunction. It is further contended that unless a clear demarcation of their respective areas of land is made, it may not be possible to implement any order of injunction if passed. The plaintiff therefore filed a petition under O. 26, R. 9 of the Code of Civil Procedure, for short, the C.P.C, for appointment of a Commissioner.
3. The respondents did not enter appearance although notices were duly served on them. It appears from the records that by 27-1-1996, the service on the respondents was completed.
4. Learned counsel for the petitioner has contended that unless a Commissioner is appointed for measurement and demarcation of the land, the plaintiff and other fishermen will face difficulties in engaging themselves in the fishing operations.
5. The main controversy in this case is as to whether the defendants are in possession of 105 acres or in excess of it, by encroaching into the land of the plaintiff. In a suit for injunction to restrain the defendants from interfering with the possession due to alleged encroachment into the land of the plaintiff, one of the methods to find out as to whether or not there is encroachment is to have the local investigation done by a competent Commissioner. In Ponnusamy v. Salem Vaiyappamalai Jangamar Sangam, AIR 1986 Mad 33, it is observed as follows:—
“The object of the local investigation under O. 26, R. 9 is to collect evidence at the instance of the party who relies on the same and which evidence cannot be taken in Court but could be taken only from its peculiar nature on the spot. This evidence will elucidate a point which may otherwise be left in doubt or ambiguity on record. The Commissioner in effect is a projection of the Court appointed for a particular purpose. In this regard the implication of O. 26, R. 10 cannot be lost sight of When it says that the report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record. A party has a right to place evidence which he could require to substantiate his case before the Court and it is the duty of the Court to receive such evidence unless there are other justifiable factors in law to decline to receive it. This right of the party to adduce evidence gets adjudicated in the interlocutory proceedings under O. 26, R. 9. When the Court declines to issue the Commission asked for to make local investigation that order certainly disposes of the right claimed by the party to place the requisite evidence on his behalf. Therefore, an order refusing to appoint a Commissioner under O. 26, R. 9 to make local investigation and report is a “case decided” and hence revisable under S. 115”.
I agree with the above view. The Court cannot prevent a party from adducing the best evidence, if such evidence can be gathered with the help of a Commissioner. Refusal of the request of the party to appoint a Commissioner under O. 26, R. 9, C.P.C to make a local investigation in an appropriate case amounts to failure of exercise of jurisdiction vested in it. In this view of the matter, I find that the impugned order cannot be sustained.
For the reasons stated above, the revision is allowed. The impugned order is set aside. The learned Munsiff is directed to appoint the Commissioner as prayed, at the expense of the plaintiff.
Revision allowed.
Alert