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

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ON THE 23 OF FEBRUARY, 2026 MISC. PETITION No. 1087 of 2026 MEERA DEVI CHOUDHARY Versus RAJEEV SONI AND OTHERS Appearance:

Shri Anuraj Saxena- Advocate for petitioner- defendant No.6.

Shri Dileep Awasthi - Govt. Advocate for respondent No.7/ State.

ORDER This miscellaneous petition under Article 227 of the Constitution of India has been filed by the petitioner, defendant No. 6, challenging the order dated 04- 02-2026 passed by the Second Civil Judge, Junior Division, Ashok Nagar, in Regular Civil Suit No. 132-A of 2022, whereby the trial court allowed an application filed by respondents No. 1 and 2 (plaintiffs) under Order 26 Rule 9 of the CPC for the appointment of a Commissioner.

2. A few facts giving rise to the present petition, as narrated therein, are that the plaintiffs filed a civil suit seeking a declaration and permanent injunction regarding land bearing survey no. 51/2, area 0.153 hectare, and survey no. 51/2/min-1, area 0.209 hectare (totaling 0.362 hectare) situated in Ashok Nagar. During the pendency of the suit, the petitioner was impleaded as defendant No. 6. The defendants filed their respective written statements denying the plaint averments. Subsequently, the plaintiffs moved an application under Order 26 Rule 9 of the CPC, alleging that the defendants had encroached upon parts of the disputed land after the institution of the suit. The petitioner opposed this application, contending it was an attempt to collect evidence. The trial court, however, allowed the application and directed the Tehsildar, Ashok Nagar, to submit a report on the extent of the alleged encroachment. Hence, this petition.

3. Learned counsel for the petitioner contends that the impugned order is illegal and contrary to established legal provisions. It is contended that the trial court erred in allowing the application under Order 26 Rule 9 read with Section 151 of the CPC because the primary motive of the plaintiffs is to use the Commission to collect evidence, which is impermissible under the law. The trial court failed to consider the specific objections raised in the petitioner’s reply and exceeded its jurisdiction, as the nature of the controversy does not necessitate the appointment of a Commissioner. Therefore, the petitioner seeks the setting aside of the impugned order.

4. Looking to the nature of the case, there is no need to issue notice to the remaining respondents, including the plaintiffs.

5. After hearing the learned counsel for the petitioner and upon perusal of the record and findings of the trial court, it is found that the application submitted by the plaintiffs is intended to provide the trial Court with a factual basis regarding measurement and demarcation of disputed property. In case where there is a dispute concerning the exact boundaries or the extent of an alleged encroachment, an on-the-spot investigation becomes essential to determine the length, width, and total area of occupied land. The trial Court correctly held that the plaintiffs have sought declaratory relief and permanent injunction. The allegation that defendants encroached upon the land during pendency of litigation creates a factual dispute that is difficult to resolve solely through oral evidence. It is settled law that in an injunction suit where encroachment is alleged, a Commissioner should be appointed to conduct an accurate on-site measurement. The trial Court's decision to issue a writ of commission to Tehsildar is a valid exercise of its discretionary power to elucidate the matter in dispute. Such a report does not amount to the collection of evidence for a party, but rather assists the Court in reaching a just conclusion regarding the physical status of property. Therefore, the trial Court did not commit any jurisdictional error or procedural irregularity.

6. In view of above, the miscellaneous petition is found to be devoid of merit and is hereby dismissed. The im