TaxTMI 
TaxTMI 
1996 (10) TMI 520
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....mmission. Commissioner visited the property and submitted a report on 22nd March 1995. 2. Dissatisfied with the commission report, Petitioner herein filed an application under Order XXVI, Rule 10 Code of Civil Procedure to remit the Commissioner's report and plan. Complaint of the Petitioner was that the Commissioner did not measure the entire property of the Defendant and had shown a portion of the suit property as part of Defendant's property. It was alleged Commissioner went wrong in reporting that there was a clear stone path aged about 10 to 15 years to demarcate the suit property on the western side. Commissioner also did not assess the value of trees. First Respondent herein filed objections to the petition denying all ave....
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....nd Section 151. Order XXVI, Rule 10 reads as follows: Rule 10. Procedure of Commissioner.- (1) The Commissioner, after such local inspection as he deems necessary and after reducing in writing the evidence taken by him, shall return such evidence together with his report in writing signed by him, to the Court. Report and depositions to be evidence in suit. Commissioner may be examined in person. (2) 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 the suit may examine the Commissioner personally in open Cou....
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....al investigation is found to be unsatisfactory. Trial Court can decide the case on the evidence. But where the trial Court is dissatisfied with the whole proceedings of the Commissioner that it thinks it better to discard the whole record and start afresh, it may do so. Where the Court is of opinion, on considering the objections of the parties, if any, that the Commissioner has so misconceived his duties as to render his report values, it may wipe out and supersede the first report by a specific order to that effect, and may issue a fresh commission. So also where the parties agree to the appointment of the second Commissioner and abide by his report they cannot turn round and say that his report is not evidence under the terms of Sub-rule....
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.... no justification in remitting the Commissioner's report and plan, the question that arises for consideration is as to whether such an order can be attacked under Article 227 of the Constitution of India. 9. Power of superintendence being extraordinary in nature, has to be exercised most sparingly and only in rare cases. High Court cannot on the guise of exercising its jurisdiction under Article 227 convert itself into a Court of appeal and made the decision of the subordinate Court or tribunal final on facts. High Court also cannot while exercising jurisdiction under Article 227 interfere with the findings of fact recorded by the subordinate Court or tribunal. Its function is limited to seeing that the subordinate Court or tribunal ....
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....uld be in a better position to look into the report of the Commissioner as well as the plan and other attendant circumstances, including objections raised by parties. When a civil Court considers those matters, and comes to the conclusion that there is no necessity for remitting the Commissioner's report and plan, or there is no necessity for issuing a second commission, this Court under Article 227 of the Constitution cannot re-weigh the evidence. After all, the commission report is only a piece of evidence, and the trial Court at a later stage of the proceedings may reject the same. Statute has also given ample safeguards under Order XXVI, Rule 10(2) to allow the parties to file objections to the Commissioner's report and allow th....