Local Commissioners can be appointed under CPC for resolving boundary disputes when acknowledged by both disputing parties, ensuring accurate demarcation in property cases.

1. This petition under Article 227 of the Constitution of India has been preferred by the plaintiff/petitioner being aggrieved by the order dated 24.01.2024 passed by the trial Court whereby his application under Order 26 Rule 9 of the CPC for appointment of a local Commissioner had been rejected.

2. The suit has been instituted by the plaintiff for declaration of title in respect of survey No.311 Gram Guradiyanarsingh, Tehsil Garoth, District Mandsaur. As per the plaintiff, he and defendant No.1 are adjoining land holders with defendant No.1 being the owner of survey No.312. Earlier there was a civil suit between the parties which was disposed off as compromised as per which demarcation had to be carried out. Thereafter survey No.312 has been sold as per the boundaries mentioned in the sale deed. However the boundaries of the lands of the parties do not match due to which the sale deed executed in favour of defendants 2 and 3 by defendant No.1 is void. Demarcation has been carried out on 16.06.2018 but the defendants are not accepting the same.

3. Written statement has been filed by defendants from which it is observed that they have pleaded that they are in possession over their own land and are not encroaching over any land of the plaintiff. The demarcation which was got done by the plaintiff was without their knowledge. However in paragraph No.6 of the written statement defendant No.1 has specifically stated that demarcation should be got conducted in presence of the parties by a competent authority in which case defendants would not have any objection to the same.

4. In view of the aforesaid factual situation application under Order 26 Rule 9 of the CPC was preferred by the plaintiff which was orally objected to by the defendants and has been rejected by the trial Court by the impugned order only on the ground that commission cannot be issued for ascertaining possession.

5. From a perusal of the pleadings of the parties it is evident that the dispute between them is not only as regards possession but is also as regards the extent and boundaries of their land. The defendants have themselves stated that they do not have any objection for appointment of a local Commissioner but their only contention is that the same should be in their presence.

6. In view of the disputes as regards encroachment and/or boundaries having arisen between the parties the application under Order 26 Rule 9 of the CPC preferred by the plaintiff ought to have been allowed by the trial Court but it has erred in rejecting the same.

7. Consequently the impugned order dated 24.01.2024 passed by the trial Court is set aside. The application under Order 26 Rule 9 of the CPC preferred by the plaintiff stands allowed.