The court held that boundary disputes require resolution via commission under proper legal provisions.

IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE DEEPAK KHOT nd ON THE 22 OF AUGUST, 2025 MISC. PETITION No. 2287 of 2025 PAWAN NIYARSEN Versus KESHAV PRASAD RAI AND OTHERS Appearance:

Shri Kaustubh Singh - Advocate for the petitioner.

ORDER The present petition has been filed by the petitioner under Article 227 of the Constitution of India challenging the order dated 12.3.2025 passed by I Civil Judge Junior Division, Budhar, District Shahdol in RCS-A No.98/2018 whereby the learned Court below has allowed the application submitted by the respondent/ plaintiff under Order 26 Rule 9 CPC.

2. It has been submitted by learned counsel for the petitioner that the said order is against the settle principles of law and without jurisdiction. The court below cannot allow such application to collect the evidence in the matter. It has also been submitted that the respondent/ plaintiff himself has withdrawn the application submitted under Order 39 Rule 1 and 2 CPC and filed application under Order 26 Rule 9 CPC alleging dispute of boundary; but, there is no dispute of boundaries as per plaint averments. The identity of the suit property is very much identifiable by the plaint averments. Therefore, the impugned order suffers from illegality and jurisdictional error which Signature Not Verified deserves to be corrected under Article 227 of the Constitution of India . 3. Heard the learned counsel for the petitioner and perused the record.

4. The court below on considering the factual aspect of the matter has held that there is a dispute in respect of boundaries because the construction alleged in the suit is denied by the defendant on the ground that it has been constructed on a different revenue number on a different property/land. The court below holding that such dispute of boundaries can be resolved only by way of Commission and has allowed the Commission. By no stretch of imagination, the said order can be said to be for collection of any evidence. It is also trite that the report submitted by the Commissioner cannot itself become part of evidence, unless the procedure as per Rule 10 of Order 26 CPC has been adopted. The petitioner, being the Objector to the report, may submit his evidence and even cross examine the Commissioner during the course of evidence.

5. Reserving rights of the petitioner as provided under Rule 10 of Order 26 CPC, this petition is disposed of with an observation that the petitioner is at liberty to take all defences in his examination and submit objection in regard to the Commission report as per the Rule 10 of Order 26 CPC. The civil court is expected to ponder on such application and give due opportunity to the petitioner.

6. Accordingly, the petition is disposed of.