In boundary disputes, courts should appoint a Local Commissioner for demarcation to ascertain property identification.

Order on Board

14/08/2025

1. The plaintiff has filed this petition assailing the order dated

3.8.2022 passed in Civil Suit No.18A/2019 by the learned Civil Judge Class I, Sakti, District Janjgir-Champa, whereby an application moved by the petitioner/plaintiff under Order 26 Rule 9 CPC has been rejected.

2. Learned counsel for the petitioner/plaintiff would submit that the petitioner/plaintiff filed a suit for declaration of title and vacant possession of the suit property after demolition of the house constructed over the suit land. He would further [k contend that the petitioner is owner of Survey No.711/3 ad- measuring area 322 square metres situated at Nazul Sheet No.27C, Block No.86, Sakti, Tahsil Sakti. He would contend that the respondents/defendants started raising construction over the suit land and, therefore, the suit was filed. He would further contend that during pendency of the suit, an application under Order 26 Rule 9 CPC was moved. The defendants in their written statement have stated that they are owner of Survey No.824/17, 824/18. He would contend that the learned Trial Court rejected the application on the ground that the petitioner has moved application to collect evidence, which is not permissible. He would pray to allow this petition.

3. On the other hand, learned counsel appearing on behalf of the respondents/defendants would submit that the respondents have not encroached over any part of the suit property. She would further submit that the petitioner ought to have approached the revenue authorities for demarcation. She would submit that the petition deserves to be dismissed.

4. I have heard learned counsel for the parties and perused the documents available with due care.

5. Perusal of the plaint and the averments made in the written statement would show that there is a dispute with regard to identity of the plots. The petitioner/plaintiff is owner of Survey [k No.711/3 ad-measuring 322 square metres, whereas the respondents/defendants are owner of Survey No.824/17 ad- measuring 2.14 decimal and Survey No.824/18 ad-measuring 2.14 decimal. The petitioner/plaintiff alleged that the respondents/defendants have raised construction over part of the suit property and to ascertain the correct position of the plots, application under Order 26 Rule 9 CPC was made by the petitioner/plaintiff, which was rejected by the learned Trial Court.

6. In Haryana Waqf Board v. Shanti Sarup and others reported in (2008) 8 SCC 671, the Hon'ble Supreme Court has 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."

7. In Anurag Jaiswal v. Collector, Khandwa and others reported in 2019 (2) MPLJ 637, it has been held in paras 12 and 13 as under:

"12. In the considered opinion of this Court, 'for the purpose of elucidating facts in respect of any matter in dispute’ means where the circumstances render it expedient in the interest of justice to do so, the Court has power, which is discretionary in nature, to appoint Commissioner for the purpose of ascertaining, to make it clear, intelligible and 'to throw light upon the matter in issue', means the main dispute as well as the facts leading to the dispute. This course may be adopted after the exam