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Citation Codes
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citation codes
Case Number
Attorney(S)
  • S.D.Sanghi
Judges
  • R.C Lahoti, J.
Acts
  • Order 26, Rule 9, CPC. Several
  • Order 26, Rule 9, C.P.C.
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • S.D.Sanghi
Judges
  • R.C Lahoti, J.
Acts
  • Order 26, Rule 9, CPC. Several
  • Order 26, Rule 9, C.P.C.
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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The dispute concerned ownership and possession of nine Mahua trees located near the border of two villages, Chukni and Dhakni (both in Tahsil Manasa). The plaintiff/respondent owned and possessed land S. No. 410 in village Chukni. The defendant/appellants owned and possessed lands S. Nos. 82, 83 and 84 in village Dhakni. A strip of government land (kankad) between the two villages was designated S. No. 411.

The plaintiff sued seeking a declaration of title over S. No. 410 and the nine trees standing thereon and an injunction restraining defendants from interfering with his possession. Defendants denied that the trees stood on S. No. 410 and claimed they were located on defendants' land.

At trial the parties jointly applied for appointment of the Superintendent, Land Records, Mandsaur as Commissioner to make a local investigation; they agreed the Commissioner’s report would be acceptable and could be relied upon by the Court. The Commissioner reported that none of the nine trees was within S. No. 410: three were within S. No. 82 (Dhakni), three on the boundary between villages, and three on S. No. 411 (kankad). The trial Court, relying on that report, dismissed the suit. The Commissioner was examined in Court and both parties were given opportunity of cross-examination after objections were raised to the report.

The plaintiff appealed. The lower appellate Court judge personally inspected the spot, formed impressions and gathered information during the inspection, and reversed the trial Court in part: though the declaration was not proved and the trial Court's dismissal on that relief was maintained, the lower appellate Court held the plaintiff was in possession of the nine trees and granted a permanent injunction restraining defendants from interfering with that possession. The lower appellate Court also remarked adversely on the Commissioner and certified a copy of the judgment to the Collector for action against the Commissioner.

This Court admitted the appeal and framed the following substantial question of law for hearing: "Whether on the facts and in the circumstances of the case, the lower appellate Court has erred in law in reversing the judgment of the trial Court on the basis of the inspection of spot carried out by the lower appellate Court?"

Legal Issues Presented

  1. Whether the lower appellate Court erred in law by reversing the trial Court's judgment on the basis of the spot inspection carried out by the lower appellate Judge.

Arguments of the Parties

Plaintiff / Respondent

  • The plaintiff alleged the nine Mahua trees stood on his land S. No. 410 (village Chukni) and sought a declaration of title over that land and the trees, and an injunction preventing defendants from interfering with his possession and enjoyment.
  • At trial, the plaintiff agreed to the appointment of a Commissioner and accepted that the Commissioner's report could be read in evidence and relied upon by the Court (the parties jointly moved for the Commissioner).

Defendant / Appellants

  • The defendants denied the trees were in S. No. 410 and maintained the nine trees were situated in land belonging to the defendants (S. Nos. 82–84) or in the kankad, such that the plaintiff had no right, title, interest or possession in respect of those trees.
  • The defendants participated in cross-examination of the Commissioner after objections were raised to the Commissioner's report.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Rosily Mathew v. Joseph, AIR 1987 Kerala 42 Where parties consent to a non‑cursus procedure (extra cursus curiae) to settle a dispute, they are bound by that procedure; a Court decision based on such consensual procedure has the character of a consent decree and ordinarily is not open to appeal or review. The Court relied on this principle to hold that the plaintiff could not depart from the stand taken at trial and displace the result of the procedure (the Commissioner's report) to obtain reversal by the lower appellate Court.
Durgaprasad v. Mst. Praveen, 1975 JLJ 440 : AIR 1975 MP 196 Emphasised the necessity of appointing a commissioner under Order 26, Rule 9, C.P.C. when boundary disputes require local investigation or an agreed map. The Court used this authority to affirm that the trial Court was justified in appointing a commissioner for demarcation/local investigation in this boundary‑tree dispute.
Mahendranath v. Purnananda, AIR 1988 Orissa 248 Stressed the need for early local investigation when the controversy relates to identification, location or measurement of land or objects. The Court cited this to support the propriety and timeliness of conducting a local investigation through a Commissioner in the present case.
Chandan Mull v. Chaimanlal, AIR 1940 PC 3 Courts should not lightly interfere with the result of a long and careful local investigation; a Commissioner's elaborate report should not be overruled except on clearly defined and sufficient grounds. The Court applied this caution to conclude the Commissioner's painstaking execution and report carried significant weight and should not have been overruled by a spot inspection by the lower appellate Judge.
Nilkhanth v. Gopaldas, AIR 1963 MP 230 A site inspection note assists the Court in understanding evidence but cannot serve as the basis for a judgment. The Court relied on this principle to hold that the lower appellate Judge's reliance on impressions from his spot inspection was legally impermissible as the primary basis for reversing the trial Court.
Bilaspur Municipality v. Wamanrao, AIR 1941 Nagpur 292 The Judge's opinion formed on a spot inspection cannot take the place of evidence. The Court cited this to reinforce that judicial impressions from a site visit cannot supplant the evidentiary Commissioner's report on which the trial Court had relied.

Court's Reasoning and Analysis

The Court's analysis proceeded in a stepwise manner, grounded in the factual record and applicable procedural principles:

  1. The Court first observed that the central dispute was not over the title to S. No. 410 (which the defendants did not contest) but over the location and ownership/possession of the nine Mahua trees.
  2. The parties had jointly moved for appointment of a Commissioner and expressly agreed that the Commissioner's report would be acceptable and could be relied upon by the Court, effectively making the Commissioner's report bind the parties and the trial Court's decision.
  3. The Commissioner conducted a local investigation, prepared field books and a detailed report (Ex. C/9) concluding that none of the nine trees stood on S. No. 410. The report was executed bi‑partite and the Commissioner was examined in Court after objections, with both parties given opportunity of cross‑examination. The Court found nothing in that cross‑examination detracting from the Commissioner's careful execution.
  4. The trial Court rightly dismissed the suit on the basis of the Commissioner's report. The appointment of the Commissioner was consistent with Order 26, Rule 9, C.P.C., and was appropriate for the boundary/identification issues involved (as supported by Durgaprasad and Mahendranath).
  5. The lower appellate Court, however, had conducted a personal spot inspection, formed impressions, and used information gathered during that inspection to reverse the trial Court (insofar as it granted possession/injunction to the plaintiff), without disclosing the sources of some information it relied upon. The appellate Judge also made adverse observations against the Commissioner.
  6. Applying Rosily Mathew, the Court concluded that where parties have consented to a particular procedure (here, the Commissioner's local investigation and reliance on his report), they are estopped from later treating that procedure as ineffective; a party cannot obtain reversal by adopting a position inconsistent with the agreed procedure before the trial Court.
  7. The Court emphasized precedents (Chandan Mull, Nilkhanth, Bilaspur Municipality) establishing that (a) interference with a careful Commissioner's report should be restricted to clearly defined and sufficient grounds, and (b) judicial impressions from a site inspection may aid appraisal but cannot be the foundational basis of a judgment. Applying these authorities, the Court concluded the lower appellate Court lacked justification to override the Commissioner's detailed report based on the judge's own spot inspection impressions.
  8. Because the lower appellate Court's decision was predicated on an impermissible basis (spot inspection as the primary ground to reverse a Commissioner's report accepted by parties), the Court found the lower appellate Court's judgment and decree legally unsustainable.

Holding and Implications

The judgment and decree of the lower appellate Court are set aside and the judgment and decree of the trial Court are restored.

Immediate consequences for the parties:

  • The appellate Court's injunction in favour of the plaintiff (restraining the defendants from interfering with the plaintiff's possession of the nine Mahua trees) is vacated insofar as it was based on the lower appellate judgment set aside by this Court.
  • The trial Court's dismissal of the suit (based upon the Commissioner's report that none of the trees stood on S. No. 410) is restored.
  • The Court expressly noted that the plaintiff's title over S. No. 410, village Chukni remains intact.
  • No order was made as to the costs of the appeal.

Broader legal implications: The opinion reiterates existing principles concerning (i) the binding effect of a consensual procedure and Commissioner's report, (ii) the appropriateness of appointing a Commissioner under Order 26, Rule 9, C.P.C. for boundary/identification disputes, and (iii) the limited legal role of a judge's impressions from a spot inspection. The Court did not announce a new legal principle beyond application of these established authorities.

Show full summary ...

    Mangilal And Another v. Gaurishankar And Another

    1. The defendant/appellant has come up in appeal aggrieved by the judgment and decree of the lower appellate Court issuing permanent preventive injunction against the defendant/appellants restraining them from interfering with the possession of the plaintiff/ respondent over 9 mahua trees, in reversal of the decree of the trial Court which had dismissed the suit.

    2. The trees are situated on the border of two villages namely village Chukni and village Dhakni, both of Tahsil Manasa. Land S.No. 410 situated within village Chukni is owned and possessed by the plaintiff/respon dent. Lands S. Nos. 82,83 and 84 are owned and possessed by the defendant/appellants and are situated within village Dhakni. The Govt. land lying in between two villages is known as kankad. This Kankad situated between village Chukni and Dhakni is designated S. No. 411.

    3. The plaintiff/respondent filed the suit alleging that the 9 trees were situated over land S. No. 410 but the defendants were causing interference with the possession and enjoyment of the plaintiff. He prayed for a declaration of title over land S.No. 410 and the 9 Mahua trees standing thereon followed by an injunction preventing the defendant/ appellants from interfering with the possession and enjoyment of the land and trees by the plaintiff.

    4. The defendant/appellants in their written-statement denied knowledge about the ownership and possession of the plaintiff over S.No. 410 but submitted that the 9 Mahua trees were situated not in S.No. 410 but in the land belonging to the defendants wherein the plaintiff had no right, title interest of possession.

    5. The pleadings of the parties show that the real dispute between them was not about the land but as to the ownership and possession of the 9 Mahua trees. The crux of the controversy clustered around the finding on the question as to whether the trees stood over S.No. 410 or not.

    6. What happened at the trial Court is interesting to note. Though the issues were framed and put to trial, on 18-6-1976, as the order-sheet of the trial Court shows, the parties moved a joint application for appointment of Superintendent, Land Records, Mandsaur as Commissioner to make a local investigation and report the location of the trees. The parties further agreed that the report of the Commissioner would be acceptable to both of them; that the Court would be free to decide the matter solely on the report of the commissioner; and that the Court may proceed to pronounce on the merits of the case by placing reliance on the report of the commissioner. The commissioner was appointed and executed bi-parte having conducted the local investigation, the Commissioner found vide his report Ex. C/9 that out of the 9 trees, three were situated within the boundaries of S.No. 82 village Dhakni, three were situated on the boundary line of the two villages and the remaining three were situated on S.No. 411, the Kankad. As none of the trees was found to be situated within the boundary of S.No. 410 village Chukni as alleged by the plaintiff, the suit was directed to be dismissed. It may be stated that the report of the commissioner was objected to whereupon the Court examined the Commissioner as a Court witness affording both the parties an opportunity of cross-examination.

    7. The plaintiff filed an appeal. Upon an application made by the plaintiff/appellant, the learned Judge presiding over the lower appellate Court himself proceeded to inspect the spot on 20-4-1978, whereafter he heard the counsel for the parties and disposed of the appeal. Paras 5 to 9 of the judgment of the lower appellate Court show that the entire judgment is based on the impressions formed by the learned appellate Judge at the time of spot inspection and some of the information collected during the course of spot inspection has been utilised for reversing the finding of the trial Court without disclosing the source from which the information was gathered. The learned Judge also proceeded to make a few observations against the commissioner appointed by the trial Court, certifying a copy of judgment to the collector for taking suitable action against the commissioner. The lower appellate Court has held that the 9 Mahua trees were in possession of the plaintiff/appellant though hip ownership on the trees was not proved. Consequently allowing the appeal, the lower appellate Court has maintained the dismissal of the suit in so far as the relief of declaration is concerned but partly set aside the judgment and decree of the trial Court and issued an injunction in favour of the plaintiff/ respondent restraining the defendant/appellants from interfering with the possession of the plaintiff/respondent on the trees.

    8. On 27-9-78, this Court admitted the appeal for hearing parties on the following substantial question of law:

    "Whether on the facts and in the circumstances of the case, the lower appellate Court has erred in law in reversing the judgment of the trial Court on the basis of the inspection of spot carried out by the lower appellate Court?"

    9. It may be stated at the very outset that in so far as the ownership of the plaintiff/ respondent over S.No. 410 is concerned, it is not disputed by the defendant/ appellants. As already noticed, the dispute relates to the trees, the plea of the defendants being that the trees are not situated over S.No. 410 in village Chukni owned by the plaintiff/ respondent.

    10. The facts stated hereinabove go to show that the parties had agreed to the appointment of the commissioner, for the report of the commissioner to be read in evidence in supersession of all other evidence adduced by the parties and to bind the Court, the parties too, for deciding the dispute.

    11. In Rosily Mathew v. Joseph, AIR 1987 Kerala 42, in morg or less similar circumstances, the High Court of Kerala has held (at pages 46):--

    "Courts can adopt a procedure to settle the dispute 'extra cursus curiae' provided the parties to the dispute have either consented to the said course or have acquiesced in the said procedure. A party thereto thereafter cannot turn round and say that the Court alone is to be blamed for adopting the said procedure. This is based on the doctrine of estoppel. But that does not mean that the Court by deviating from the usual procedure (cursus curiae) can assume jurisdiction which it does not possess. It is equally well established that if the Court with the consent" of the parties or with their acquiescence departs from the usual course of procedure (governing the case) and decides a question of fact, the said decision is neither appealable nor reviewable. The parties are bound by the order which in the circmustances of the case, partakes of the character of a consent decree."

    12. I find myself in respectful agreement with the view taken in Rosily Mathew's case (supra). The lower appellate Court committed a serious error of law in permitting the 'plaintiff (appellant before it) to make a departure from the stand taken by him before the trial Court and in getting rid of the result of a procedure adopted and acquiesced in by him for settling the dispute.

    13. There was a dispute as to the demarcation of the properties of the parties situated contiguously. In Durgaprasad v. Mst. Praveen, 1975 JLJ 440 : (AIR 1975 MP 196), a Division Bench of this Court has emphasised the necessity of appointment of a commissioner under Order 26, Rule 9, C.P.C. when there is a dispute as to the boundary limits, which cannot be determined in the absence of an agreed map. The High Court of Orissa in Mahendranath, v. Purnananda, AIR 1988 Orissa 248, has emphasised the necessity of local investigation being done at an early stage of the litigation when the controversy is as to identification, location or measurement of the land or premises or object.

    14. The trial Court, therefore, had rightly proceeded in appointing the commissioner for local investigation. Even if the prayer for such appointment would not have come from the parties, the trial Court itself would have been justified to make that order under Order 26, Rule 9, CPC. Several documents submitted by the Commissioner and his detailed report along with field books prepared by him, leave no manner of doubt that the commission was executed painstakingly and satisfactorily. Nothing was brought out in the cross-examination conducted by either party that the. commissioner had done anything or had omitted to do something which would have .the result of detracting from the weight of his conclusions. In Chandan Mull v. Chaimanlal, AIR 1940 PC 3, their Lordships have held (at page 6): -

    Interference with the result of a long and careful local investigation except upon clearly defined and sufficient grounds is to be deprecated. It is not safe for a Court to act as an expert and to overrule the elaborate report of a Commissioner whose integrity and carefulness are unquestioned, whose careful and laborious execution of his task was proved by his report, and who had not blindly adopted the assertions of either party.

    15. In the opinion of this Court, the lower appellate Court was unjustified in interfering with the decree of the trial Court based on the report of the Commissioner. It committed a serious error of law, rather of jurisdiction in basing its decision on the impressions formed and information gathered by conducting a spot inspection by itself. In Nilkhanth v. Gopaldas, AIR 1963 MP 230, this Court has held (at page 232) :--

    "It is well-known law that a site inspection note serves the Court merely for the appraisal of the situation and for a better understanding of the evidence of the parties in which the site may be referred to. It can never the basis of a judgment."

    In Bilaspur Municipality v. Wamanrao, AIR 1941 Nagpur 292, also it was observed that the opinion of the Judge formed on spot inspection cannot take the place of evidence.

    16. For the foregoing reasons, this Court is unhesitatingly of the opinion that the judgment and decree of the lower appellate Court are wholly unsustainable in law. They are set aside. The judgment and decree of the trial Court are restored. It is made clear that the title of the plaintiff/respondent over S.No. 410 village Chukni remains intact. No order as to the costs of this appeal.

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    Comments

    Mangilal And Another v. Gaurishankar And Another
    (Jan 28, 1992)