IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE nd ON THE 2 OF NOVEMBER, 2023 MISC. PETITION No. 5339 of 2018 BETWEEN:-

SANTOSH SINGH S/O LATE SHRI BRAJBIHARI SINGH, AGED ABOUT 48 YEARS, RESIDENT OF RAUN, TEHSIL RAUN, DISTRICT BHIND (MADHYA PRADESH)

.....PETITIONER (BY SHRI MANOJ DWIVEDI - ADVOCATE)

AND

1. DINESH KUMAR S/O SHRI VIDYARAM, AGED ABOUT 38 YEARS, R/O GAURAI, TEHSIL RAUN, DISTRICT BHIND (MADHYA PRADESH)

2. ASHOK SHARMA S/O SHRI GANGARAM SHARMA, AGED ABOUT 30 YEARS, R/O RARUA ROAD RAUN, TEHSIL RAUN, DISTRICT BHIND (MADHYA PRADESH)

3. RAM MOHAN S/O SHRI GANGARAM SHARMA, AGED ABOUT 28 YEARS, R/O RARUA ROAD RAUN, TEHSIL RAUN, DISTRICT BHIND (MADHYA PRADESH)

4. STATE OF M.P. THROUGH THE COLLECTOR, DISTRICT BHIND (MADHYA PRADESH)

5. RAJESH SINGH S/O LATE SHRI BRAJBIHARI SINGH, AGED ABOUT 45 YEARS, RAUN (MADHYA PRADESH)

6. MUNNI DEVI W/O LATE SHRI BRAJBIHARI SINGH, AGED ABOUT 70 YEARS, RAUN (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI )

Signature Not Verified This petition coming on for admission this day, the court passed the following:

ORDER

1. The present petition under Article 227 of the Constitution of India has been preferred against the order dated 2.9.2018 passed by the First Civil Judge Class II, Lahar, District Bhind in Case No.99/18 Civil Suit whereby the application filed by the petitioner/plaintiff under Order 26 Rule 9 CPC for conducting the demarcation of the land in dispute has been rejected.

2. Learned counsel for the petitioner vehemently argued that the order passed by the learned trial Court is per se illegal as the petitioner has filed an application under Order 26 Rule 9 CPC before the learned Trial Court alleging that the defendants have started construction over the land owned and occupied by the petitioner. On 10.5.2018 the foundation was dug by the defendants on the petitioner's land by using JCB Machine and the construction work has been started after collecting the material on 14.5.2018.

The defendants are trying to change the situation, The trial Court for ascertaining the extent of encroachment could have issued a commission as per the provision contained in Order 26 Rule 9 CPC. It was thus prayed that the petition be allowed and the trial Court be directed to issue a commission for demarcation of the land.

3. Learned counsel for the petitioner has placed reliance in the matter of Haryana Waqf Board Vs. Shanti Sarup and others reported in 2008 (4) M.P.H.T. 306 (SC) wherein the Apex Court has held that in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the Court to direct the investigation by appointing a Local Commissioner under Order 26 Rule 9 of the CPC.

Signature Not Verified

4. Heard the learned counsel for the petitioner on admission and perused the record.

5. Legal position is very well settled with regard to issuance of commission under Order 26 Rule 9 CPC. Rule 9 CPC of Order 26 empowers the Court to issue commission to make local investigation, which may be required for the purpose of elucidating any matter in dispute. Though the object of the local investigation is not to collect evidence, which can be taken in the Court, but the purpose is to obtain such evidence, which from its peculiar nature, can only be had on the spot with a view to elucidate any point, which is left doubtful on the evidence produced before the Court. To issue a commission under Rule 9 of Order XXVI it is not necessary that both the parties must apply for issue of commission. The Court can issue local commission even suo motu, if, in the facts and circumstances of the case, it is deemed necessary that a local investigation is required and is proper for the purpose of elucidating any matter in dispute. Though exercise of these powers is discretionary with the Court, but in case the local investigation is requisite and proper in the fact and circumstances of the case, it should be exercised so that a final and just decision is rendered in