The court confirms the necessity of appointing a Commissioner to inspect disputed property when physical alterations are claimed, guiding legal proceedings accordingly.

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

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ON THE 11 OF SEPTEMBER, 2025 MISC. PETITION No. 4806 of 2025 BHAGWAT PRASAD SHARMA Versus HEMANT GUPTA @ RANU GUPTA AND OTHERS Appearance:

Shri Harshvardhan Sharma - Advocate for the petitioner/plaintiff.

ORDER This misc. petition under Article 227 of the Constitution of India has been filed by petitioner- plaintiff No.3 therein assailing the order dated 29/07/2025 passed by Second Civil Judge, Senior Division, Bhander, District Datia in Civil Suit No.27-A of 2025, whereby the application filed by plaintiffs under Order 26 Rule 9 of CPC has been rejected.

It is the case of petitioner that plaintiffs filed a civil suit for title declaration and permanent injunction against the defendants with respect to land situated at Village Barka, Tehsil Bhander District Datia. Defendants contested the claim of |the plaintiffs and stated that they have a door towards the disputed land since their ancestral times and they are not making any new door. Therefore, plaintiffs made an application under Order 26 rule 9 read with Section 151CPC to issue a Commission for ascertaining the existence of the door towards the disputed land in order to elucidate in the matter. But the Trial Court after hearing both the parties, rejected the application holding that Commission can not be issued to correct the deficiency of the case of a party.

Being aggrieved with the impugned order, petitioner filed this petition and Signature Not Verified submitted that defendants are illegally trying to make a door towards the disputed land owned and possessed by the plaintiffs and falsely claiming to have a said door since their ancestral times. During the proceedings under Section 152 BNSS and Section 142 BNSS before the court of Sub-Divisional Magistrate Bhander, the Halka Patwari submitted its report in which it was stated that defendants are trying to make a door towards the disputed land for their personal Nistar. Counsel for petitioner placed reliance on the decision of this Court in the case of K.Dayanand Vs. P.Sampath Kumar (Civil Revision Petition No.3760 of 2014 passed by Andhra Pradesh High Court), wherein it is held that when there is an attempt on the part of one of the parties to alter the physical features of the suit property, it is necessary to take note of the same and it is always open to the Court to appoint a Commissioner for inspection of such property. Therefore, the approach of the Trial Court in rejecting the petitioner's application under Order 26 Rule 9 of CPC is bad in law. Hence, prayed for setting aside the impugned order.

Heard counsel for petitioner.

From perusal of copy of reply of defendants (Annexure P-3 ), it is found that defendants mentioned in their reply that from ancestral times, the door has been built at disputed place. Simliarly, in para No.9 of reply, defendant have specifically pleaded that before 08/03/2025, the door had been built on the ancestral wall. According to plaintiffs, in reality neither the door was established in the past nor it exists at present.

After having heard the arguments advanced by learned Counsel for petitioner and on perusal of impugned order as well as documents available on record, this Court thinks it appropriate to appoint Commissioner get inspection done over the disputed property as to whether the door exists or not.

Under these circumstances, the impugned order passed by the Trial Court Signature Not Verified deserves to be and is hereby set aside. The Trial Court is directed to appoint a Commissioner to carry out inspection done over the disputed property as to whether the door exists or not and in turn, the Commissioner shall submit its report and thereafter, the Trial Court shall proceed with the matter and adjudicate the suit, in accordance with law.