The appointment of a Local Commissioner under Order 26 Rule 9 of CPC is essential in land disputes to ascertain boundaries and encroachments, overriding any procedural bars under the Chhattisgarh Land Revenue Code.

Order on Board

02.04.2025

1. Heard on admission.

2. The petitioner has challenged the order passed by the learned Eighth Civil Judge, Class-I, Raipur in Civil Suit No.32-A/ 2015 dated 26.11.2019, whereby an application moved by the petitioner under Order 26 Rule 9 of CPC has been rejected.

3. Learned counsel for the petitioner would submit that the petitioner is the owner and possession holder of land bearing Survey Nos. 233/6 and 234/6, total admeasuring 0.017 hectares, situated at Village Gudhiyari, Thakkar Bapa, Ward No.9, Tahsil & District Raipur. He would contend that the defendants used a part of the land of the petitioner for the construction of a road and also erected electric poles thereon. He would further contend that before filing the suit, the demarcation was conducted by the Revenue Authorities, which revealed that 210 sq.ft. of land had been used by the respondents. He would also contend that during the pendency of the civil suit, the respondents again utilized an additional 360 sq.ft. of land for the construction of a road. He would further submit that the defendants denied the contention made by the plaintiff and therefore, an application under Order 26 Rule 9 of CPC was moved and it has been rejected by the learned trial Court. He would argue that the application should have been allowed to resolve the dispute involved in the civil suit.

4. On the other hand, learned Senior counsel would oppose the submissions made by counsel for the petitioner. Learned Senior counsel would submit that the petitioner cannot be permitted to collect evidence by filing an application under Order 26 Rule 9 of CPC. He would further submit that the petitioner should have approached the Revenue Authorities for demarcation of the suit land instead of moving an application before the learned Court below. He would also submit that the learned trial Court has rejected the application after assigning sufficient reasons, therefore, the petition deserves to be dismissed.

5. Heard learned counsel appearing for the respective parties and perused the documents present on the record.

6. Order 26 Rule 9 of CPC deals with Commissions to make local investigations and the same is reproduced here-in-below:-

“Order XXVI, Rule 9. Commissions to make local investigations.-- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.”

7. The Hon’ble Supreme Court in the matter of Shreepat Vs. Rajendra Prasad & others reported in JT 2000 (7) SC 379 , while dealing with identical facts and situations, remanded the matter back to the trial Court for appointing Survey Commissioner to find out the exact position. In relevant paras it was observed thus:-

“3. The principal contention raised by learned Counsel for the Appellant is that though there was a serious dispute with regard to identity of the land in dispute, whether the land in dispute formed part of Khasra No.257/3 or Khasra No.257/1, the Courts below did not get identity established and decreed the suit of the Respondent only on the basis of oral evidence which was not sufficient for the purpose of establishing the identity of the land in dispute at the spot.

4. In our opinion, this contention is correct. Since there was a serious dispute with regard to the area and boundaries of the land in question, especially with regard to its identity, the courts below, before decreeing the suit should have got the identity established by issuing a survey commission to locate the plot in dispute and find out whether it formed part of