Order XXVI Rule 9 CPC – Whether Commissioner Can Be Appointed to Prove Possession

Posted on February 24, 2026February 24, 2026 by Admin

Order XXVI Rule 9 CPC – Whether Commissioner Can Be Appointed to Prove Possession

Short Answer

❌ No.
A Court Commissioner cannot be appointed to prove possession of a party.
Such an application by the defendant is legally not maintainable if its object is to collect evidence regarding possession.

Statutory Provision – Order XXVI Rule 9 CPC

Order XXVI Rule 9 CPC permits appointment of a Commissioner only for:

Local investigation
Elucidating any matter in dispute
Ascertaining physical features, boundaries, measurements, or condition of property

🔴 It does NOT permit appointment to determine:

Who is in possession
Title or ownership
Disputed factual rights

Legal Principle (Settled Law)

A Commissioner is an officer of the Court, not an evidence-collecting agent for any party.

The Court cannot delegate its judicial function to a Commissioner.

Why Defendant’s Application Is Not Legally Valid

If the defendant seeks appointment of Commissioner:

to show cultivation,
to show construction,
to show crops or fencing,
to show actual possession,

then:

🔴 The defendant is trying to prove possession through a commissioner, which is impermissible in law.

Possession must be proved by:

oral evidence,
documentary evidence (7/12, RTC, tax receipts),
admissions,
cross-examination.

Leading Supreme Court & High Court Judgments

1️⃣ Haryana Waqf Board v. Shanti Sarup & Ors.

(2008) 8 SCC 671

Held:

A Commissioner cannot be appointed to decide possession or title.
Appointment for that purpose amounts to collection of evidence, which is impermissible.

🔑 Ratio:

Commissioner’s report is only corroborative
It cannot decide disputed rights

2️⃣ Padam Sen v. State of U.P.

AIR 1961 SC 218

Held:

The Court cannot appoint a Commissioner to perform functions which are judicial in nature.

🔑 Ratio:

Determination of possession is a judicial function
Court cannot outsource it

3️⃣ Ram Kishore Sen v. Union of India

AIR 1966 SC 644

Held:

Commission cannot be issued to collect evidence or fill lacuna in a party’s case.

4️⃣ N. Savithramma v. Cecelia Kom Francis

(2010) 2 SCC 740

Held:

Appointment of Commissioner to determine possession or title is not permissible.

5️⃣ High Court of Gujarat – Consistent View

Principle repeatedly followed:

Local Commissioner cannot be appointed to prove possession when possession itself is in dispute.

(Gujarat HC judgments consistently rely on Haryana Waqf Board and Padam Sen.)

When Appointment of Commissioner IS Permissible

✔️ To:

demarcate boundaries,
measure land,
identify physical features,
note existence of structures (without opinion on possession),
prepare site plan.

❌ Not to:

say “X is in possession”,
say “defendant is cultivating”,
determine encroachment without prior proof.

Judicial Conclusion

Correct Legal Position

An application under Order XXVI Rule 9 CPC solely to prove possession is not maintainable and deserves rejection.

Model Judicial Finding (Ready to Use)

“The defendant has sought appointment of a Court Commissioner under Order XXVI Rule 9 CPC to establish his possession over the suit property.
It is well-settled that a Commissioner cannot be appointed to collect evidence or determine possession, which is a disputed question of fact requiring adjudication by the Court itself.
Such an exercise would amount to delegation of judicial function, which is impermissible in law.
In view of the principles laid down by the Hon’ble Supreme Court in Haryana Waqf Board v. Shanti Sarup (2008) 8 SCC 671 and Padam Sen v. State of U.P., the application is liable to be rejected.”

MODEL ORDER

The present application is filed by the defendant under Order XXVI Rule 9 of the Code of Civil Procedure, 1908, seeking appointment of a Court Commissioner to establish that the defendant is in possession of the disputed suit property.

Heard learned advocates for the parties and perused the record.

It is well settled that a Court Commissioner under Order XXVI Rule 9 CPC can be appointed only for the purpose of elucidating physical features, boundaries, measurements, or local conditions of the property, and not for deciding disputed questions of possession or title. Possession is a substantive issue to be proved by the parties by leading oral and documentary evidence before the Court.

The appointment of a Commissioner to prove possession would amount to collection of evidence and filling up lacunae in the defence, which is impermissible in law. The burden to prove possession lies on the party asserting it and cannot be shifted to a Court Commissioner.

The Hon’ble Supreme Court of India has consistently held that local investigation cannot be ordered for determination of possession or title, and that a Commissioner cannot be appointed to perform a judicial function.

In view of the above settled position of law, no case is made out for appointment of a Court Commissioner.

ORDER

The application under Order XXVI Rule 9 CPC is rejected.

No order as to costs.

Pronounced in open Court.

Date: ________
Place: ________

(Judge)

MODEL ORDER

IN THE COURT OF ____________
Civil Suit No. ___ of 20__

Applicant / Defendant : ____________
Versus
Respondent / Plaintiff : ____________

1. Application

The present application is filed by the defendant under Order XXVI Rule 9 of the Code of Civil Procedure, 1908, seeking appointment of a Court Commissioner to inspect the suit property and to establish that the defendant is in actual possession of the disputed land.

2. Submissions

Learned counsel for the applicant contended that local investigation is necessary to ascertain possession and that appointment of a Court Commissioner would assist the Court in proper adjudication of the dispute.

Per contra, learned counsel for the plaintiff opposed the application, contending that the prayer is misconceived as the defendant is attempting to collect evidence and prove possession through a Court Commissioner, which is impermissible in law.

3. Consideration by the Court

Having heard the learned advocates for the parties and having perused the record, this Court is of the considered view that the application deserves to be rejected for the reasons stated hereinbelow.

The scope and object of Order XXVI Rule 9 CPC is limited. A Court Commissioner may be appointed only for the purpose of elucidating matters in dispute such as physical features, boundaries, measurements, or local conditions, where such investigation is necessary for effective adjudication. The provision does not empower the Court to appoint a Commissioner for the purpose of determining disputed questions of title or possession.

In the present case, possession over the suit property is a core and contentious issue, which is required to be adjudicated on the basis of oral and documentary evidence led by the parties. The burden to prove possession squarely lies upon the party asserting it. Such burden cannot be shifted to a Court Commissioner.

It is a settled principle of law that a Court Commissioner cannot be appointed to collect evidence, fill up lacunae, or prove the case of a party. Appointment of a Commissioner for proving possession would amount to delegating a judicial function to a non-judicial authority, which is impermissible.

The Hon’ble Supreme Court in Supreme Court of India has consistently held that local investigation cannot be ordered to decide possession. In Haryana Waqf Board v. Shanti Sarup (2008) 8 SCC 671, it was held that a Commissioner cannot be appointed to determine possession or title. Similarly, in Ajay Kumar Parmar v. State of Rajasthan (2012) 12 SCC 406, it was observed that a Commission cannot be used as a tool for evidence collection.

Thus, the present application is clearly an attempt to prove possession through a Court Commissioner, which is contrary to the settled position of law.

4. Conclusion

In view of the above discussion, this Court is of the opinion that no case is made out for appointment of a Court Commissioner under Order XXVI Rule 9 CPC.

ORDER

The application filed by the defendant under Order XXVI Rule 9 of the Code of Civil Procedure, 1908, for appointment of a Court Commissioner is hereby rejected.

No order as to costs.

Pronounced in open Court.

Date : __________
Place : __________

(Judge)
________ Court