ORDER

1. Petitioner/plaintiff has filed this present petition being aggrieved by order dated 9.9.2022 whereby application filed under Order 26 rule 9 of the CPC has been dismissed. The petitioner/plaintiff filed the suit in respect of the suit land mentioned in paragraph No.2 of the plaint. According to the plaintiff, the defendants/respondents has encroached over some part of the land of his ownership. The petitioner/plaintiff applied for demarcation which was conducted by the Tehsildar and the possession of defendant was found hence that gave the cause of action to file the suit for possession.

2. The defendants have filed a written statement denying the averment made in the plaint, they have also denied the demarcation as well as the report submitted by the revenue authorities. Before adducing the evidence, the plaintiff has filed an application under Order 26 rule 9 C.P.C. seeking direction for demarcation of the suit land bearing survey No.201/1/2 area 1.0110 Hectare through any revenue authorities. The application was opposed by the defendants and the learned Court has dismissed the application on the ground that the said provision cannot be invoked for the collection of the evidence hence, this petition before this Court.

3. Shri Manish Kumar Vijaywargiya, learned counsel for the petitioner/plaintiff submits that the entire suit is based on the allegation of encroachment and the report of the demarcation given by the Revenue Officer but the respondents/defendants are disputing the same, therefore, the Court must appoint a Commissioner in order to adjudicate the controversy between the parties.

4. Shri Sameer Saxena, learned counsel for the respondent/defendant submits that the plaintiff has filed the suit alleging encroachment, therefore, the plaintiff must establish his case by adducing the evidence in support of the pleadings made in the plaint. The provisions of Order 26 rule 9 of CPC cannot be invoked for collecting the evidence. In support of his contention, learned counsel has placed reliance on a judgment in the case of Ashutosh Dubey and another v. Tilak Grih Nirman Sahakari Samiti [2004 (2) MPHT 14] decided on 11.11.2003. Heard both sides.

5. In the case of Haryana WAQF Board v.Shanti Sarup and Ors., reported in (2008) 8 SCC 671, wherein, it has been held that if the controversy is regarding demarcation of the land between the parties, the Court should direct the investigation by appointing a legal Commission. Para 4 and 5 of the aforesaid judgment is reproduced as under :

“4. Admittedly, in this case, an application was filed under Order 26 rule 9 of the code of Civil Procedure which was rejected by the trial Court but in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the Court to direct the investigation by appointing a Local Commissioner under Order 26 rule 9, CPC.

5. The appellate Court found that the trial Court did not take into consideration the pleadings of the parties when there was no specific denial on the part of the respondents regarding the allegations of unauthorized possession in respect of the suit land by them as per Para 3 of the plaint. But the only controversy between the parties was regarding demarcation of the suit land because the land of the respondents was adjacent to the suit land and the application for demarcation filed before the trial Court was wrongly rejected.”

6. A similar view was taken by the High Court that in the case of encroachment, appointing of commission is proper. In Durga Prasad v. Parveen Foujdar, reported in (1975) MPLJ 810 this Court has also considered the scope of order 26 rule 9 and held that the Court should order the appointment of Commission when there is a dispute of encroachment. Para 25 of the said judgment is reproduced as under :

“25. Point No.2: In cases where there is a dispute as to encroachment, the fact whether there is such an encroachment or not cannot be determined in the absence of an agreed map