Civil Procedure Code, 1908, Order 26, Rule 10 -- Report of Local Commissioner - Local Commissioner did not take measurements by taking permanent point of one stone to other stone for purpose of determination of encroachment - It was just an eye wash to conduct demarcation in compliance of order of Court - Nothing prevented plaintiff to summon Kanungo for proving contents..........
Civil Procedure Code, 1908, Order 26, Rule 9 -- Appointment of local commissioner - Appointment made to ascertain whether defendants have encroached upon suit property and raised a wall and installed a gate during pendency of suit - Order as to appointments of commissioner calls for no interference...........
Civil Procedure Code, 1908, Order 26, Rule 9 -- Appointment of Local Commissioner to demarcate suit property - Sought by defendant when case was fixed for evidence of plaintiff - Application is pre mature - Defendant is at liberty to file application for appointment of Local Commissioner at the stage of his evidence...........
Civil Procedure Code, 1908, Order 26, Rule 9 -- Appointment of Local Commissioner - It is obligatory on the part of Court to arrive at an opinion that a local investigation is requisite or proper for purpose of elucidating any matter in dispute - When this expression is occurring Court below is not right in just writing that no prejudice would be caused to opposite party..........
Civil Procedure Code, 1908, Order 26, Rule 9 -- Appointment of Court Commissioner - Cannot be appointed for purpose of collection of evidence...........
Civil Procedure Code, 1908, Order 26, Rule 9 -- Appointment of Court Commissioner - Suit for injunction - Appointment of Court Commissioner, even that of T.I.L.R., to submit factual report as regards possession or user of land, amounts to collection of evidence, hence, not permissible in law...........
Civil Procedure Code, 1908, Order 26, Rule 9 -- Appointment of Court Commissioner to record factual position of land - Suit for injunction - Measurement of lands already done at the instance of plaintiffs and boundaries are fixed - Burden lies on plaintiffs to prove the said existence of their house and its location - Hence, plaintiffs cannot seek appointment of Court..........
Civil Procedure Code, 1908, Order 26, Rule 9 -- Appointment of Local Commissioner - Encroachment - Where one party alleges encroachment and other denies the same, then it becomes necessary to appoint local Commissioner, because recitals of documents may not reveal true facts and measuring of land on spot by a surveyor or any other qualified person may become necessary...........
Civil Procedure Code, 1908, Order 26, Rule 9 -- Appointment of Local Commissioner - In order to determine whether there has been encroachment, it is always desirable to get fields/plots/areas measured by an expert in order to find out exact area encroached upon - Oral evidence cannot conclusively prove such an issue...........
Civil Procedure Code, 1908, Order 26, Rule 9 -- Appointment of Local Commissioner - Object of local investigation is not to collect evidence which can be taken in Court but to obtain evidence which from it peculiar nature can only be had on spot - Cases of boundary disputes and disputes about identity of lands are instances where Court should order local investigation...........
