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Can a Commission be Appointed to Find Out the Physical Possession of a Property?

Created: 07 Jul 2024 at 23:29

Taken from: Powers and Duties of Commissioners to Make Local Investigations, Under CPC

Saji Koduvath, Advocate, Kottayam.

Introduction

  • Commission for local investigation is appointed to ‘elucidate‘ matters in dispute.
  • A commissioner has the duty to report matters that are relevant in the suit – even if they are not specifically put to him (to ascertain).
  • “Opinion” (evidence) of a commissioner (Eg. Whether a building is fit for ‘residence’) may not be relevant.
  • A commissioner cannot be asked to find out the physical possession of a property.
  • A Commission report will be ‘evidence’ even if it is not marked or exhibited.
  • Parties should prove their case by themselves by letting in legally acceptable evidence and the report of the Commissioner can only aid the court in evaluating the evidence.
  • It is not a condition precedent to set aside the Commission Report – where the (earlier) report suffered only some “deficiency or omission ”.
  • When a commission report is set aside, the court is bound to remit it back to the Commissioner for getting a fresh report.
  • If the Ex parte commission did not give notice to the defendant, the report cannot be accepted as ‘substantive’ evidence; it can be used only as a corroborative piece when the commissioner is examined in court.
  • There is no ‘provision’ to raise “objection” to a commission report on ‘local inspection’. The dissatisfied party has to challenge the evidence by cross-examination of the commissioner.
  • Surveyor-plan Attached to Commission Report will not be ‘ipso facto’ Evidence. If the commissioner could not vouchsafe its veracity, the surveyor should be examined.

Power of Courts to Issue Commissions

  • Courts derive power to issue Commissions from Sec. 75 CPC. It reads as under:

Sec. 75. Power of Court to Issue Commissions

  • Subject to such conditions and limitations as may be prescribed, the court may issue a commission-
    • (a) to examine any person;
    • (b) to make a local investigation;
    • (c) to examine or adjust accounts; or
    • (d) to make a partition;
    • (e) to hold a scientific, technical, or expert investigation;
    • (f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit;
    • (g) to perform any ministerial act.

Commissions to Make Local Investigations

  • Order 26 rules 9 and 10 deal with appointment of Commissions to make local investigations. They read as under:

O 26 r 9. Commissions to make local investigations-

  • In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:
  • Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.

O 26 r 10. Procedure of Commissioner-

  • (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court.
  • (2) Report and deposition to be evidence in suit.
  • Commissioner may be examined in person-The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to suit may examine the Commissioner personally in open Court touching any part of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.
  • (3) Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.

Can a Commission be Appointed to Find Out the Physical Possession of a Property?

  • No.
  • In Bandi Samuel v. Medida Nageswara Rao, 2017 (1) ALT 493 it is pointed out that the factum of possession of the property in dispute, which is nothing, but fishing of information and not elucidating any matter in dispute.
  • See also: Malaya Gounder v. Palanisamy (1995) 1 MLJ 626,
  • Puttappa v. Ramappa, AIR 1996 Kant 257,
  • Rajendran v. Lilly Ammal alias Nelli Ammal, 1998 (II) CTC 163,
  • Benz Automobiles Private Limited v. Mohanasundaram, 2003 (3) MLJ 391,
  • D. Kuttiyappan v. Meenakshiammal Polytechnic Unit, 2005 (4) CTC 676,
  • Devadoss v. A. Duraisingh, 2002 (3) CTC 748,
  • Parepally Satyanarayana v, Vutukuri Meeneder Goad, 2008 (1) ALT 461;
  • KMA Wahab v. Eswaran, 2008 (3) CTC 597,
  • Ramdas Trimbak v. Bajirao Sanap, 2018-1 MHLJ 866, 2018-5 AIR BomR 57,
  • S. Kalam v. V. Valliammai,  2021-7 Mad LJ 137,
  • K. Sellammal v. M. Valarmathy, 2022, Madras High Court.

Kerala High Court held in Thomas VY@ Sajimon v. Joseph VY, ILR 2020-3 Ker446,  2020-3 Ker LJ  574, 2020-3 KHC 613, as under:

  • “15. In a suit for permanent prohibitory injunction, the burden is entirely on the plaintiff to bring convincing evidence to show his possession over the plaint schedule property and for so doing, it is not permissible for the plaintiff to invoke Order 26 Rule 9 CPC, which is intended for a different purpose. In a matter relating to the investigation into the disputed question of fact of possession, the power of appointment of Commissioner for local investigation cannot be exercised by the Court to assist the party to collect evidence, where the party can collect evidence by itself. If a party claims that, that party is in possession of the disputed property and if the other party denies the same by filing the written statement, the disputed fact can be adjudicated by the Court after framing of issues and recording the evidence of the parties. So many articles may be found in the building at the time of local inspection by the Commissioner. Even clothes and other articles may be found in the building. The Commissioner has to just make an inventory of the items found in the building. The Commissioner cannot report about the ownership of the articles found in the premises, as the said aspect is a matter for evidence. If at all the Commissioner makes any such report, the Court shall not accept the report, even for primary satisfaction without any other convincing material. If the Advocate Commission is deputed for the purpose of ascertaining the possession of the party over the property, the said aspect can be done only after gathering information from the people in the locality, which amounts to fishing out the evidence or gathering of evidence and hence the same is only hearsay information. The party can even otherwise examine the persons, with whom the Commissioner makes enquiry, before the Court to prove the possession of the person over the property in question. The fishing out of information is to make a local enquiry collecting hearsay materials from the persons gathered there or the like, which is different from collection of materials which he finds at the scene. That apart, if that task is left to be decided by the Advocate Commissioner, any fraudulent litigant can create evidence and with the assistance of the Commissioner, he will be able to prove that he is in possession of the property, which is not the purpose for which Order 26 was enacted. Therefore, it is always advisable not to appoint an Advocate Commissioner, as in the present case, to find out the possession of the property, which has to be decided only from oral and documentary evidence to be adduced by the parties. The High Court of Madras in Mr. D. Kuttiyappan v. Meenakshiammal Polytechnic Unit, (2005) 4 MLJ 592, held that the Advocate Commissioner cannot be appointed to note down the factum of possession or the enjoyment . I respectfully agree with the view of the High Court of Madras in D. Kuttiyappan (Supra). Thus, it is settled law that the power of appointment of Commissioner for local investigation cannot be exercised by the Court to enable any party to collect evidence through the Commissioner to prove the factum of possession or enjoyment. This being the situation, the argument of the learned Counsel for the defendant that the report of the Commissioner would show the possession of the defendant in the plaint schedule property cannot be accepted even for the prima facie satisfaction of the Court.”

Read in this Cluster  (Click on the topic):

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Land Laws/ Transfer of Property Act

Evidence Act – General

Contract Act

Easement

Stamp Act

Will

Divorce

Book No. 2: A Handbook on Constitutional Issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

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