IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK JAIN

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ON THE 10 OF FEBRUARY, 2026 MISC. PETITION No. 719 of 2026 MAHENDRA TIWARI AND OTHERS Versus SMT. VIMLESH AND OTHERS Appearance:

Shri Rahul Rawat - Advocate for the petitioners.

Shri Manoj Kumar Jha Panel Lawyer for the respondent-State.

ORDER The present petition has been filed by the plaintiffs, who are aggrieved by the rejection of their application under Order 26 Rule 9 CPC for appointment of local commissioner.

2. The plaintiffs have filed a suit for possession and for cancellation of sale deeds executed by some of the defendants to the extent of the share of the plaintiffs.

3. In the said suit, after conclusion of evidence of the rival parties, the plaintiffs filed application for local commission under Order 26, Rule 9 CPC, on the assertion that the land of the family is at Sagar-Tikamgarh Road and the plaintiffs are entitled to 320 feet land adjacent to the main road, but at present the defendants are in occupation of 387 feet parallel to the road, whereas the plaintiffs are only in occupation of 217 feet parallel to the road, and therefore local commission be issued to arrive at a finding that how much length of the land is owned by the plaintiffs and the defendants respectively by the side of/parallel to the main road.

4. The said application was contested that the matter relates to partition and both the parties have led their evidence and therefore the application at this stage cannot be entertained, because the mutual partition has to be considered as per documents, and commission for this purpose is not at all relevant for the purpose of adjudication of the suit.

5. The trial court has rejected the said application on the ground that the plaintiffs seek to get local commission issued for such a matter which is the matter to be adjudicated by the evidence, and therefore commission cannot be issued. It has been held by the trial court that the question raised by the application under order 26 Rule 9 CPC can very well be adjudicated by the evidence which has already been led before the trial court by the rival parties, and the commission has sought to be issued only to adjudicate on the question of possession, which cannot be issued.

6. Upon considering the assertion of learned counsel for the petitioners and on perusal of the record, it is seen that at present there is no decree of partition and therefore the question does not arise that which party is in occupation, and in how much area. The said question has to be decided by the trial court at the time of passing the final judgment and decree that which party is entitled to how much area and then it may be decided that which of the parties is in possession of which area of the land.

7. The parties have already led their evidence before the court and the trial court did not deem it fit to issue commission for the said purpose by holding that the parties have already led their detailed evidence and the suit can be decided on the basis of evidence and then proceeded to fix the case for final arguments.

8. This court does not find any error of jurisdiction in the aforesaid order of the trial court and therefore no interference is warranted in the exercise of limited supervisory jurisdiction available with this court under Article 227 of the Constitution of India.

9. Consequently by reserving liberty to the petitioner to raise the issue in appeal or in any other consequential proceedings, the present petition is dismissed.

(VIVEK JAIN)

JUDGE