Case Note & Summary
The matter arose from a second appeal before the High Court of Bombay, Nagpur Bench, in a property possession suit. The plaintiff-appellant had instituted Regular Civil Suit No. 5 of 1988 before the Civil Judge Junior Division, Katol, seeking recovery of possession over a plot and a shed, alleging that she had constructed the shed and inducted the defendant as a licensee whose license she subsequently revoked. The defendant resisted, claiming the structure was permanent on municipal land and that he and his forefathers had been in possession since 1941. The trial court decreed the suit, finding that the defendant was a licensee and the license had been revoked. On appeal, the Sixth Additional District Judge, Nagpur, reversed the decree, holding that the defendant’s structure was on land belonging to the Katol Municipal Council and that the plaintiff was disentitled to recover possession. The plaintiff then filed a second appeal, contending that the first appellate court had erroneously ignored a map, Exhibit 42, proved by PW2 Krishnarao, and had failed to appoint a commissioner under Order XXVI Rule 9 of the Code of Civil Procedure to measure the site and resolve the dispute. Reliance was placed on the decision in Kashinath v. Haribhau. The High Court examined the scope of discretion under Order XXVI Rule 9, noting that while it is desirable in boundary and encroachment disputes to obtain measurement by an expert, the rule does not impose an inflexible obligation on the court to appoint a commissioner in every case. Crucially, the court found that the present suit was based not on encroachment but on a claim of license. More importantly, the plaintiff’s own testimony before the trial court falsified the very foundation of her case. She admitted in examination-in-chief that although she owned the land, the defendant had constructed the hut, and in cross-examination she conceded that the premises had been in the defendant’s possession for perhaps sixty to seventy years before her purchase. These admissions directly contradicted the plaint averments that she had built the shed and inducted the defendant as a licensee. In light of this self-destructive evidence, the court held that there was no need to refer to the map or to appoint a commissioner; the first appellate court’s conclusion did not warrant interference. Accordingly, the second appeal was dismissed with costs. The decision reaffirms the principle that courts must exercise their discretion in ordering local investigations prudently and that a party’s own admissions can conclusively defeat their case without resort to extrinsic evidence.
Headnote
A) Civil Procedure - Local Investigation - Discretion to appoint Commissioner under Order XXVI Rule 9 CPC - Code of Civil Procedure, 1908, Order XXVI Rule 9 - In a suit for recovery of possession based on license, not encroachment, plaintiff’s own admissions contradicted plaint case. Held, appointment of commissioner is not mandatory and court should not abdicate its duty to assess evidence. No measurement needed when evidence itself falsifies suit. (Paras 7-10) B) Evidence - Admissions - Effect on Proof - Indian Evidence Act, 1872 - Plaintiff pleaded she constructed shed and inducted defendant as licensee, but admitted in testimony that defendant constructed hut and resided since before purchase. Such admissions falsify the foundation of the suit. Held, in view of these admissions, suit rightly dismissed. (Para 10)
Issue of Consideration
Whether the First Appellate Court erred in ignoring map Exh. 42 and in failing to appoint a Commissioner under Order XXVI Rule 9 CPC for local investigation.
Final Decision
Second Appeal No. 215 of 1996 dismissed with costs. The judgment and decree of the First Appellate Court reversing the trial court's decree and dismissing the suit were affirmed.
Law Points
- Order XXVI Rule 9 of Code of Civil Procedure
- 1908
- confers discretion on court to order local investigation but is not mandatory
- courts should assess evidence and not abdicate fact-finding duty. A plaintiff’s admissions in testimony can falsify the plaint case and lead to dismissal.
