The appointment of a commission under Order 26 Rule 9 CPC is not warranted if prior admissions by parties provide sufficient evidence regarding encroachment issues.

IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE HIRDESH

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ON THE 25 OF SEPTEMBER, 2025 MISC. PETITION No. 567 of 2024 RAMVEER SHARMA Versus AMAAN SINGH @ ASHOK RAGHUWANSHI AND OTHERS Appearance:

Shri Arman Ali Khan - Advocate for the petitioner.

Shri Nirmal Sharma - Government Advocate for State.

ORDER This petition under Article 227 of the Constitution of India has been preferred by petitioner/plaintiff being aggrieved by the impugned order dated 06.12.2023 passed in RCSA No.22 of 2022 by First Additional Judge to the Court of First Civil Judge, Junior Division, Guna whereby the trial Court has rejected the application under Order 26 Rule 9 of CPC preferred by petitioner/plaintiff.

Brief facts of the case are that plaintiff has filed the present suit seeking injunction against the respondents/defendants on the ground that plaintiff and defendants are admittedly owners of their respective lands and are neighbours as well. The suit has been filed on the premise that the plaintiff and defendants are neighbours, therefore, they laid down a common lane for transporting water to their respective lands. However, defendants have started obstructing the uses of said pipeline by the plaintiff. Since, the Signature Not Verified Signed by: AVINASH field of defendants is the only way out for the plaintiff to take the water to his lands therefore, the defendants be injuncted from obstructing water flow. Defendants appeared and denied the allegations made in the plaint. During the pendency of the suit, plaintiff filed an application under Order 26 Rule 9 of CPC for demarcation as to whether pipeline is still existed and water flow was also supplied in that pipeline towards both the lands.

After hearing counsel for both the parties, trial Court rejected the said application filed by plaintiff.

Being aggrieved by the impugned order, petitioner filed this petition with submission that impugned order passed by the trial Court is illegal, arbitrary and not correct in the eye of law. It is further submitted that it is settled principle of law that the question of encroachment cannot be decided in absence of the demarcation report called upon by the court. Hence, prayed for setting aside the impugned order and allowing the application under Order 26 Rule 7 of CPC.

Heard counsel for the petitioner and perused the documents available on record.

It is well settled principle that for collecting the evidence, no Commission has been issued and the purpose of Order 26 Rule 9 CPC is to inspect the spot and to reach just and proper conclusion.

On perusal of the documents, it appears that in the present case, plaintiff seeks appointment of Commission for spot inspection and to decide as to whether pipeline is existed or not by way of application under Order 26 rule 9 of CPC.

Signature Not Verified Signed by: AVINASH Defendants in written statements have already admitted that pipeline was existed and they cut the same, so, it is a matter of evidence, whether pipeline was cut by defendants or not. Therefore, Trial Court did not commit any error in rejecting the application filed by the petitioner/defendant and, therefore, no interference is warranted by this Court.