Boundary disputes necessitate the appointment of a local Commissioner for clarity, ensuring courts fulfill the legal requirement of definitive evidence before adjudication.

ORDER :

1. This appeal under Section 100 of the CPC has been preferred by the appellants/defendants being aggrieved by the judgment and decree passed by the Courts below whereby the claim of plaintiffs/respondents for permanent injunction has been decreed.

2. As per the plaintiffs, by a registered sale deed dated 29.03.1961 Jagannath, Daulatramji and Dhannaji had purchased survey No.72/82 area 4.31 acre from Pyara S/o Tulsiji Chamar. They divided the land amongst themselves subsequently as a result of which survey No.72/82/2 fell to the share of Jagannath, survey No.72/82/3 fell to the share of Dhannaji and survey No.72/82/1 fell to the share of Daulatramji. The same were accordingly recorded in the revenue records. The plaintiffs are in possession of survey No. 72/82/2 area 0.809 hectare fallen to the share of their predecessor Jagannath which is the suit land but the defendants are attempting to encroach over the same which has necessitated filing of the suit for permanent injunction restraining the defendants from interfering with their possession over the same.

3. The defence of the defendants was that they are the owners of survey No.3 area 2.561 acre which is an entirely distinct land from the land owned by the plaintiffs. The areas of both the lands are different and they are situated in different villages. The plaintiffs want to forcefully grab the land of the defendants, who are not in possession of any land of the plaintiffs. The defendants also laid a counter claim for declaration of their title over their land. The plaintiffs filed their written statement to the counter claim of the defendants.

4. Upon recording of evidence of the parties the trial Court decreed the plaintiffs’ claim holding that they have proved that the suit land is a part of the land owned by them and that defendants are interfering with their possession over the same. Appeal preferred against the said judgment and decree by the defendants has been dismissed by the lower appellate Court by the impugned judgment.

5. By order dated 10.05.2006 this appeal was admitted on the following substantial question of law :-

“Whether the learned Courts below were justified in decreeing the plaintiff's suit for permanent injunction without deciding the dispute regarding the identity of the land according to law.”

6. Learned counsel for the appellants has submitted that the dispute between the parties was a boundary dispute hence the same could not have been decided by the Courts below without appointment of a local Commissioner as envisaged under Order 26 Rule 9 of the CPC. Even if no application in that regard had been preferred before the Courts below then also it was their duty to themselves appoint such a Commissioner. The dispute is only whether the suit land forms part of the land owned by the plaintiffs or forms part of the land owned by the defendants. The same could not have been decided on the basis of the evidence adduced by the parties and a local Commissioner ought to have been appointed.

7. Despite service of notices upon them no one has appeared to contest this appeal on behalf of the respondents.

8. I have considered the submissions of the learned counsel for the appellants and have perused the record.

9. From the pleadings of the parties it is evident that there is no dispute as regards title between them. While the plaintiffs contend that they are owners of survey No.72/82/2, the defendants contend that they are owners of survey No.3. The plaintiffs have alleged that defendants are encroaching over their land whereas the defendants have stated that they are in possession of their own land and have not encroached over p