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

rd

ON THE 23 OF FEBRUARY, 2026 MISC. PETITION No. 3403 of 2025 DEVKI @ DEVKINANDAN Versus RAM KUMAR AND OTHERS Appearance:

Shri Om Prakash Shrivastava - Advocate for petitioner.

Shri Anmol Khedkar - Advocate for respondents No. 1 to 3.

Shri Dileep Awasthi- Govt. Advocate for respondent No.4- State.

ORDER The petitioner/plaintiff has filed this miscellaneous petition under Article 227 of the Constitution of India challenging the order dated 29th April 2025, passed by Third Civil Judge, Junior Division, Shivpuri, in Regular Civil Suit No.103-A of 2024, whereby the trial court rejected the plaintiff’s application filed under Order 26 Rule 9 of CPC for the appointment of a local commission.

2. The brief facts leading to the present petition are that the petitioner filed a civil suit for permanent injunction against defendants- respondents before the Civil Judge, Karera, concerning agricultural land bearing Survey Nos.426 and 427, situated in Village Amolpatha, District Shivpuri. The defendants filed a joint written statement denying the plaint averments and prayed for dismissal of the suit. During the pendency of the suit, the petitioner filed an application under Order 26 Rule 9 of the CPC, seeking the issuance of a commission for the inspection and demarcation of the disputed land. The respondents opposed the application, and the trial court, vide the impugned order, rejected the same.

3. Learned counsel for the petitioner contends that the impugned order is unjust, illegal, and arbitrary. It is argued that it is settled law that in cases involving boundary disputes, the court ought to appoint a commissioner to demarcate the land to ascertain the correct factual position. The petitioner placed reliance on various precedents of the Hon’ble Supreme Court emphasizing that demarcation is essential in such disputes. It was further contended that the trial court failed to consider that the respondents had not raised valid objections to the demarcation process.

4. Per contra, learned counsel for the respondents No. 1 to3 opposed the petition, asserting that the plaintiff is attempting to delay the proceedings. The plaintiff’s previous claims regarding Survey No.428 had already been rejected and that current application was an attempt to reagitate settled issues. The plaintiff failed to take any steps to seek demarcation through revenue authorities earlier and that the application was filed at an inappropriate stage. Survey No.428 is irrelevant to the present dispute involving Survey Nos. 426 and 427.

5. Having heard the submissions of the learned counsel for the parties and upon perusal of the impugned order and the record, this Court finds that the application for demarcation was premature. The petitioner/plaintiff has not sufficiently pleaded or established that the respondents' land is so adjacent to the petitioner’s land as to necessitate an immediate order of demarcation. The trial court correctly observed that the dispute regarding Survey Nos. 426 and 427 is a matter of evidence. It is a settled principle that a Court commission cannot be appointed to collect evidence for a party or to bridge lacunae in a party's case before the commencement of evidence. Since the boundaries and possession can be established through oral and documentary evidence during the trial, the appointment of a commissioner at this stage is unwarranted.

6. Consequently, this Court finds no jurisdictional error or patent illegality in the order passed by the trial court. The petition is, accordingly, dismissed, being devoid of merits.

(HIRDESH)

JUDGE MKB