IN THE HIGH COURT OF MADHYA PRADESH

AT GWALIOR

BEFORE

HON'BLE SHRI JUSTICE HIRDESH

ON THE 9^th OF JANUARY, 2026

MISC. PETITION No. 7269 of 2025

UDAY PRATAP SINGH

Versus

SANJAY SETH AND OTHERS

Appearance:

Shri Abhisehk Singh Bhadauria - Advocate for petitioner- plaintiff.

Shri Rinkesh Goyal- Govt. Advocate for respondent no.2/State on advance notice.

ORDER claimed that the disputed portion falls within his adjoining land. He further contended that the petitioner had incorrectly shown the boundaries and lacked any right over the disputed portion.

This Miscellaneous Petition under Article 227 of the Constitution of India has been

filed by the petitioner–plaintiff challenging the legality, propriety, and correctness of the order dated 04.12.2025 passed by the Second Civil Judge, Junior Division, Ashok Nagar, in RCSA No. 113 of 2020, wherein the trial court rejected the objections raised by the petitioner

regarding the report submitted by the Commissioner.

2. In brief, the petitioner instituted a civil suit seeking declaration of title, permanent

injunction, and removal of encroachment concerning land bearing Survey No. 172/3 Min-3, measuring 0.007 hectare (750 square feet), located at Isagarh–Ashoknagar Road, Gram Padariya, Tehsil and District Ashoknagar. The petitioner claims ownership and possession of the said land based on a registered sale deed, with his name duly recorded in the revenue

records.

3. The petitioner alleges that during the COVID-19 lockdown, he was unable to

regularly visit the suit land, and taking advantage of this situation, the respondent No.1, Sanjay Seth, illegally encroached upon a portion of the suit land on 18.11.2020. He allegedly erected brick pillars, built a brick wall, installed iron girders, put up wire fencing, and cut a standing Khair tree. Respondent No.1 denied these allegations in his written statement and

4. Given the serious dispute regarding the identity, boundary, and encroachment of the land, the petitioner moved an application under Order 26 Rule 9 of the Code of Civil Procedure (CPC) for the appointment of a Commissioner to carry out local inspection and demarcation of the land. The respondent opposed the application, asserting that the appointment of a Commissioner would amount to collecting evidence and that demarcation was the exclusive function of the revenue authorities. The trial court, after hearing both parties, allowed the application and appointed the Tahsildar as the Commissioner for the task.

5. The Commissioner conducted a spot inspection and submitted a report on

07.07.2025. The report stated that although the purchased land area was 750 square feet, only 540 square feet was found at the site, leaving a deficit of 210 square feet. Moreover, the Commissioner noted that it was not possible to conclusively determine the encroachment or the person in possession without a joint demarcation of Survey Nos. 172/1, 172/2, and 172/3.

6. The petitioner raised detailed objections to the Commissioner’s report, claiming it was incomplete, vague, and misleading. The petitioner pointed out that an incorrect survey number was mentioned at one point and that the Commissioner had admitted the necessity for joint demarcation but failed to provide a clear finding on encroachment. The petitioner, therefore, prayed for the cancellation of the report and sought proper and complete demarcation of the land.

7. The trial court, by the impugned order dated 04.12.2025, rejected the petitioner’s objections and prayer for further demarcation, holding that demarcation was within the jurisdiction of the revenue authorities and that directing demarcation through the court would amount to collecting evidence.

8. The learned counsel for the petitioner argued that the impugned order was mechanical, perverse, and contrary to settled principles of law. It was contended that the dispute relates directly to the identity, boundary, and encroachment of the land, and these issues could not be effectively adjudicated without proper local i