1 IN THE HIGH COURT AT CALCUTTA [ CIRCUIT BENCH AT PORT BLAIR ] *** CO/39/2026 Smt. Theivani Vs. Shri Murugan Mrs. Anjili Nag, Sr. Adv. Mr. Adarsh Ilango Ms. K. Sneha … for the petitioner Mr. Gopala Binnu Kumar … for the opposite party July 29, 2026 [AKB] Item No.5 1. The revisionist and the opposite party are represented by their respective learned counsel. 2. The subject matter of the instant revisional application as filed under Article 227 of the Constitution of India is order No. 101 dated 16.06.2026 as passed in Title Suit No. 87 of 2013 by the Joint Civil Judge (Senior Division), South Andaman, Port Blair whereby and whereunder the said Trial Court rejected the plaintiff’s application under Order 26 Rule 9 of the Code of Civil Procedure. The plaintiff felt aggrieved and thus preferred the instant revisional application. 3. At the time of hearing Ms. Anjili Nag, learned Senior Advocate appearing on behalf of the plaintiff/revisionist at the very outset draws the attention of this Court to the copy of the plaint as filed before the learned Trial Court. It is submitted that from the prayer portion of the plaint it would reveal that the said suit was filed for declaration of title of the plaintiff over the suit property and for recovery of possession of 13 Sq.mtrs. 2 of land out of 50 Sq.mtrs. in survey no. 12, particulars of which has been mentioned in the schedule of the plaint. It is submitted that initially at the instance of the defendants an application under Order 39 Rule 7 was filed before the learned Trial Court wherein a prayer was made for appointment of a survey knowing commissioner to ascertain as to whether the defendant is in occupation of any portion of the land bearing survey No. 12 out of total area of 50 Sq. mtrs. in the suit property. 4. It is submitted by Ms. Nag that such an application was allowed and pursuant to the order passed by the learned Trial Court, a report is also filed, a copy of which has been annexed at page 71 of the instant revisional application. 5. It is submitted by Ms. Nag, learned Senior Advocate appearing for the plaintiff/revisionist that from the said report of the commissioner it cannot be ascertained that the defendant has at all encroached any portion of the land bearing plot/survey No. 12 of the suit property. 6. It is further submitted by Ms. Nag that for effective adjudication of the Title Suit as pending before the learned Trial Court the plaintiff thereafter filed an application of Order 26 Rule 9 praying for appointment of a survey knowing officer or Tehsildar, Port Blair to ascertain the following: a. Commissioner may be directed to ascertain the boundaries of land bearing survey number 12 measuring 50 Sq.mtrs., situated at Nanagoan Village, under Port Blair Tehsil, South Andaman District. b. What is the present condition of the suit land? c. What is the nature of the suit land and who is in possession of the same? d. Have the defendant carried out constructional activities on the suit land? “ 3 e. What is the nature of civil/electrical works carried out by the defendant on the suit land? f. Commissioner may be directed to support his report by submitting a map including field map. g. Commissioner may also be directed to submit photographs of the land in question.” 7. It is submitted by Ms. Nag the that the learned Trial Court by the impugned order rejected such application basically on the ground that on the selfsame issue a local inspection was held in connection with the said suit as pending before it and a commissioner cannot be appointed under Order 26 Rule 9 CPC to ascertain the factum of actual physical possession of a property or to collect evidence for a party who lacks independent. 8. It is further submitted by Ms. Nag that the learned Trial Court while passing the impugned order has completely misdirected himself in construing the true spirit of Order 26 Rule 9 CPC. 9. It is further submitted by Ms. Nag that in order to prove as to whether any portion of the plot/survey No. 12 being the suit has been encroached or not, an investigation under Order 26 Rule 9 is very much necessary and by no stretch of imagination it can be said that the purpose of appointment of survey knowing commissioner and/or the purpose of sending the jurisdictional Tehsildar to the suit property is for collection of evidence. 10. It is further submitted by Ms. Nag that since on an earlier occasion a commissioner was appointed and he has submitted a report, such factum cannot stand in the way of appointing 4 survey knowing commissioner and/or directing the jurisdictional surveyor to submit an investigation report. 11. It is thus submitted by Ms. Nag that it is a fit case for setting aside of the impugned order and for allowing the plaintiff/revisionist’s application under Order 26 Rule 9 CPC. 12. Per contra, Mr. Gopala Binnu Kumar, learned advocate appearing on behalf of the defendant/opposite party also draws attention of this Court to the copy of the plaint as filed with the instant revisional application. Drawing attention to the copy of the earlier application under Order 39 Rule 7 CPC, more specifically, paragraph No. 8 thereof vis-à-vis the report as submitted by commissioner in the earlier round, it is submitted by Mr. Gopala Binnu Kumar that on the earlier occasion before the Trial Court a similar prayer was made by the defendant and the same was allowed and the commissioner submitted a report before the learned Trial Court to which the plaintiff has raised no objection which has been rightly recorded by the learned Trial Court. 13. It is thus submitted that since report of the commissioner as appointed earlier on the selfsame point is already on record there cannot be any justification to appoint a fresh commissioner and/or to direct the jurisdictional Tehsildar to conduct survey and to submit a report. 14. It is further submitted by Mr. Gopala Binnu Kumar that for the reasons best known to the plaintiff the plaintiff in his application under Order 26 Rule 9 CPC has suppressed the factum of appointment of advocate commissioner at the 5 instance of the defendant and thus on account of non disclosure of material facts learned Trial Court was very much justified in rejecting the prayer of the plaintiff/revisionist herein. 15. In his next limb of submission Mr. Gopala Binnu Kumar took me to paragraph 7 of the application under Order 26 Rule 9 CPC the relevant portion which has been quoted (supra). 16. It is submitted by Mr. Gopala Binnu Kumar, learned advocate for the defendant/opposite party that on perusal of the clause (a) to clause (g) of the said paragraph No.7 of the subsequent commission application under Order 26 Rule 9 CPC, it would reveal that the sole intention of the plaintiff/revisionist herein to fish out evidence which has been rightly observed by learned Trial Court and therefore no interference is called for. 17. It is thus submitted by Mr. Gopala Binnu Kumar that it is a fit case for dismissal of the instant revisional application. 18. This Court has meticulously pursued the entire materials as placed before it. This Court has given its due consideration over the submissions of the learned advocate for the contending parties. 19. For effective adjudication of the instant lis this Court purpose to look to Order 26 Rule 9 CPC which reads as under : “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: 6 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.” 20. Keeping in mind aforementioned legislative provision, if I looked to factual aspects of this case, it appears that before the learned Trial Court it is the specific plaint case that the defendant has encroached 13 Sq.mtrs. of land out of 50 Sq. mtrs. in plot/survey No. 12 at Nayagoan village under Port Blair Tehsil, District South Andaman. It further appears from the prayer of the plaint that plaintiff has sought for decree for recovery of possession of the said 13 Sq. mtrs. by evicting the defendants therefrom. Materials have been placed before this Court that at the earlier stage of the suit the defendant come forwarded with an application under Order 39 Rule 7 CPC requesting the learned Trial Court to appoint an advocate commissioner knowing survey work to ascertain whether the defendants is in occupation of any portion of land in plot/survey No. 12. A report is filed by the advocate commissioner and/or Surveyor, a copy of which is available at page No. 71. 21. Undisputedly as against such report of the advocate commissioner/Surveyor, no objection has been filed by the plaintiff. At this stage if I look to the petition under Order 26 Rule 9 CPC as filed by the plaintiff before the learned Trial Court it appears that the plaintiff has made such application for appointment of a survey knowing commissioner officer or Tehsildar, Port Blair to submit its report on the points mentioned (supra). 7 22. On careful perusal of the clause Nos. (a) to (g) paragraph No. 7 of the said application it appears that it is the prayer of the plaintiff that the survey passed commissioner/jurisdictional Tehsildar may be directed to ascertain the boundaries of land bearing survey No. 12 measuring 50 Sq. mtrs. apart from several other prayers the details of which have been mentioned in the foregoing paragraph. 23. In considered view of this Court in order to ascertain the truthfulness of the allegation of the plaintiff as made out in the plaint, the learned Trial Court has to come to a logical finding based on trial on the evidence as to whether really 13 Sq. mtrs. of land in plot/survey No. 12 at Nayagaon village under Port Blair Tehsil has at all being encroached or not. It appears that in his written statement the defendants has denied the allegation of encroachment. 24. In view of such this Court considers that justice would be sub served in the event the jurisdictional Tehsildar is directed to make a survey over the plot/survey No. 12 with the assistance of the survey map as kept in his office and thereafter to submit a report before the jurisdictional Civil Court which he will be duty bound to prove in the event he is called as plaintiff witnesses by the plaintiff in the said suit. 25. Admittedly, on the selfsame point a survey passed advocate commissioner was appointed and a report to that effect was filed. However, this Court while disposing of the instant revisional application refrain to make any comment over 8 such report since learned Trial court is in session over the matter. 26. It however appears to this Court that in the event the jurisdictional survey commissioner is directed to undertake aforementioned work that will not tantamount to collection of evidence and/or fishing out evidence but the same will be in tune of the legislative provision as embodied under Order 26 Rule 9 CPC. 27. In view of the discussion made hereinabove this Court finds sufficient merit in the instant revisional application. Accordingly CO/39/2026 is hereby allowed. 28. Consequently impugned order No. 101 dated 16.06.2026 as passed by the Joint Civil Judge (Senior Division), South Andaman, Port Blair in Title Suit No. 87 of 2013 stands hereby set aside. 29. Consequently the plaintiff/revisionist’s application under Order 26 Rule 9 CPC is allowed to the extent indicated herein below. 30. It is directed that the Tehsildar under Port Blair, District South Andaman shall visit the plot/survey No. 12 situated at Nayagoan village under Port Blair Tehsil, South Andaman District physically and at the time of such visit he will take the relevant survey map as lying in his office. The said Tehsildar shall conduct the survey at the aforementioned plot in presence of the plaintiff and defendants and/or other authorized representative and shall ascertain whether any encroachment took place in the said plot of land and in the event he noticed 9 any such encroachment, he is directed to indicate the nature of encroachment. 31. The said Tehsildar after conclusion of field inquiry shall submit a report in writing together with sketch map according to scale and the field note before the learned Trial Court. 32. This Court directs that such survey shall have to be conducted by the Tehsildar, Port Blair Tehsil, South Andaman District on August 05, 2026 at 02:00 P.M. and since the day and time of commission is declared in open Court at the time of passing this order in presence of learned advocates for the revisionist/plaintiff and the opposite party/defendants there is no requirement to serve any further notice upon the plaintiff and the defendant. 33. It is made clear that in the event any of the parties to the said suit remain absent the said Tehsildar is at liberty to conduct the survey ignoring the absence of the parties if there be any. 34. The said Tehsildar is directed to submit his report in writing together with a sketch map according to scale with field note before the learned Trial Court positively on or before August 20, 2026. 35. The time limit as fixed by this Court is peremptory and mandatory. 36. Liberty is given to the learned advocate on record of the plaintiff/revisionist to communicate the server copy of this order to the Tehsildar, Port Blair, who is directed to act on the server copy of this order. 10 37. With the aforementioned observation the instant revisional application is disposed of. 38. There shall be however no order as to costs. 39. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all legal formalities. ( Partha Sarathi Sen, J. )