The appointment of a Local Commissioner under Order 26 Rule 9 CPC for demarcating land in an encroachment dispute is discretionary; it is not warranted when a recent, authoritative revenue demarcation report exists and remains unassailed, as its primary purpose is to elucidate disputed facts rather than collect fresh evidence.

1. The present writ petition under Article 227 of the Constitution of India has been filed by the petitioner against the impugned order dated 26.06.2025 passed by IInd Civil Judge (Senior Division) Durg in Civil Suit No.A/8/2019 whereby the application filed by the petitioner under Order 26 Rule 9 CPC has been rejected.

2. Brief facts of the case are that, the petitioner is the plaintiff before the trial court and prosecuting a Civil Suit for declaration of title, possession and permanent injunction with respect to suit land Khasra No.76/44 area 0.03 Hect. (3120 sq.ft.) situated at village Kohka, Purani Basti, Ward No.7, PH No.14/19, Tehsil and District Durg. In the said civil suit the fourcorners of the suit land was claimed as, 25 ft. road in northern side, plot No.34 in southern side, 25 ft. road in eastern side and 20 ft. road in western side. The plaintiff had purchased the suit land from its owner Milap Verma on 01.10.2009 through registered sale deed and the land is recorded in his name by Khasra No.76/44. In the month of June, 2018 when he visited his land, he found the defendants started construction over his land. After approaching the authorities when no action was taken to stop construction, he filed WPC No.3072 of 2018 before this court seeking a direction to the authorities for demarcation of his land Khasra No.76/44. Vide order dated 21.10.2018 the Coordinate Bench of this court in the said writ petition directed the petitioner/plaintiff to move an application before the concerned Tehsildar for demarcation of the land. In compliance thereof, the petitioner/plaintiff submitted his application on 10.11.2018 and then after its demarcation the Revenue Inspector submitted a demarcation report dated 16.01.2019 in which construction by defendant over the land of petitioner/plaintiff was found.

The defendant raised objection with respect to change of its Khasra Number and then the Revenue Inspector sought a direction from the Tehsildar with respect to old and new Khasra Number. In the meantime, the plaintiff filed the civil suit. In the civil suit the plaintiff/petitioner filed his application under Order 26 Rule 9 CPC and prayed for appointment of a Commissioner to conduct a local investigation and to carry out proper demarcation of the suit land. The application filed by the petitioner/plaintiff was rejected by the trial court on 24.01.2023 on the ground that application for demarcation cannot be allowed for collection of evidence. Against the rejection of application of the petitioner dated 24.01.2023, the petitioner preferred WP227 No.686 of 2023 before this court. The Coordinate Bench of this court vide its order dated 28.08.2023 in WP227 No.686 of 2023 granted liberty to the petitioner to file his application at the subsequent event, if so advised.

3. In compliance of the order dated 21.10.2018 passed by coordinate Bench of this court in WPC No.3072 of 2018, the Additional Tehsildar along with Assistant Superintendent Land Records demarcated the land on 04.06.2019 and the Superintendent Land Record Durg submitted the demarcation report dated 22.08.2019 before the Additional Tehsildar and after rejecting the objection raised by the Objector/respondent No.1-Sarveshwar Dayal Mishra, issued the copy of demarcation report dated 22.08.2019. The petitioner challenged the said demarcation report dated 22.08.2019 by filing his Revision No.20014/42/2018-19 before the Col