The court affirmed the discretion to appoint a commissioner for land identification and local investigation in boundary disputes under relevant procedural law.

Order on Board

23/01/2025

1. The petitioners have challenged the order passed by the learned V^th Civil Judge, Class-II, Durg, District Durg (C.G.) in Civil Suit No. A/123/2019 dated 02.11.2022, whereby an application moved by the plaintiff under Order 26 Rule 9 of CPC has been allowed pertaining to Survey No. 864/2, situated at Village Tamer Para Dhamdha, Tehsil Dhamdha, District Durg.

2. The plaintiff filed a suit for declaration of title and permanent injunction, inter alia on the ground that Survey No. 864/2 admeasuring 0.06 acre was purchased through a registered sale deed dated 17.09.1975 from one Parasram. It is further pleaded that the plaintiff was in possession of the suit property, but defendants No. 1 to 3 have encroached over the suit land. Looking to the controversy involved in the case, the plaintiff moved an application under Order 26 Rule 9 of CPC for identification of the suit land. The application moved by the plaintiff was allowed by the learned trial court vide impugned order and the same has been challenged in the present petition.

3. Mr. H. B. Agrawal, learned Senior Advocate appearing for the petitioners/defendants would argue that in evidence, the plaintiff has admitted the fact that Survey No. 864/2 was renumbered as 1006 and defendants No. 1 to 3 are not in possession over any part of Survey No. 864/2 or 1006. He would further submit that a perusal of the demarcation report would show that there is no dispute with regard to the identity of Survey Nos. 1006 and 1172. He would contend that there was no need for the learned trial Court to allow the application moved by the plaintiff under Order 26 Rule 9 of CPC . Mr. H.B. Agrawal, learned Senior Advocate would submit that the plaintiff is trying to collect evidence through Court by filing such an application. In support of his arguments, he placed reliance on the judgment passed by the Madhya Pradesh High Court in the matter of Bansal Construction Works Private Limited Vs. Sameer Kukreja, 2018 (3) HCCD 1211 (MP)

4. On the other hand, Mr. B.P. Sharma, learned counsel appearing for the plaintiff/respondent No. 1 would submit that there was a dispute with regard to the identity of Survey No. 864/2, new Survey No. 1006 and Survey No. 1172 and, therefore, an application was moved under Order 26 Rule 9 of CPC . He would further submit that the learned trial Court after taking into consideration the material available on record and submissions advanced by the parties, allowed the application. He would also submit that there is no interim order in favour of the defendants/petitioners as the demarcation report has already been placed on record before the Court below.

5. Mr. Sanjeev Kumar Agrawal, learned Panel Lawyer appearing for the State/respondent No. 2 would support the submissions made by Mr.

B.P. Sharma.

6. I have heard learned counsel for the parties and perused the documents.

7. Admittedly, the learned trial Court after appreciating the submissions made by the parties, allowed the application moved by the plaintiff under Order 26 Rule 9 of CPC .

8. The law in this regard is no more res integra. The Hon’ble Supreme in the matter of Haryana Waqf Board Vs. Shanti Sarup and Others, (2008) 8 SCC 671 observed in para-6 as under:-

“6. It is also not in dispute that even before the appellate court, the appellant Board had filed an application for appointment of a Local Commissioner for demarcation of the suit land. In our view, this aspect of the matter was not at all gone into by the High Court while dismissing the second appeal summarily. The High Court ought to have considered whether in view of the nature of dispute and in the facts of the present case, whether the Local Commissioner should be appointed for the purpose of demarcation in respect of the suit land.”

9. In Anurag Jaiswal Vs. Collector, Khandwa and others, 2019 (2)

M.P.L.J. 637, it has been held in paras 12 & 13 as under:-

“12. In the considered opinion of this Court, ' for the purpose of elucidatin