IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE ALOK AWASTHI

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ON THE 17 OF DECEMBER, 2025 MISC. PETITION No. 3295 of 2025 MR. BALA PALASE AND OTHERS Versus MR. MAHESHCHANDRA AND OTHERS Appearance:

Shri Nipun Choudhary - Advocate for the petitioners.

Shri C.S. Sharma, learned counsel for the respondent No.1.

Shri Vinod Thakur - P.L. for respondent No.2/State.

ORDER This petition under Article 227 of the Constitution of India has been preferred by the petitioners No.1 & 2/defendants being aggrieved by the order dated 25.4.2025 passed by the Civil Judge, Class II in RCSA 122/2024 whereby an application under Order 26 Rule 9 filed by the plaintiff /

respondent was allowed by the learned trial Court.

Facts of the case are that the plaintiff in the suit had filed an application to the Tehsilar for demarcation of the illegal construction measuring 2 x 23 fts on the disputed land, but the same was denied as the land was situated in the Nazul area. When plaintiff submitted an application to the Nagar Palika Nigam for demarcation of the land, they too refused to demarcate it stating that the demarcation of the disputed building is not done by their department. However, a Commissioner was also appointed for the demarcation of the disputed land.

The plaintiff is claiming that building No.109, the land in question was owned and possessed by the plaintiff, he alleged that the defendants had encroached upon the disputed land hence filed a suit seeking a permanent injunction. The application filed by plaintiff under Order 26 Rule 9 of the CPC was allowed. The Commissioner was appointed with his due fees. It was observed in the impugned order that a clear and legible photocopies of the plaint and documents be submitted with fees of Commissioner. It was observed that a writ of Commission should be issued in the name of the Commissioner, Dewas Municipal Corporation to the effect that the Officer in whose jurisdiction the said disputed land falls should be appointed as the Commissioner and after demarcation he should submit his report with demarcation of the boundary of building A, 109, total area 1096.12 Sq. fts built up area 416.25 sq. fts located in Islampura and Bhagat Singh Marg at Dewas City.

It is submitted by the learned counsel for the petitioners that the trial court vide order dated 22/04/2025 allowed the application filed by the plaintiff/respondent no.1 stating that to ascertain the boundary dispute a spot inspection is necessary and hence the order to issue commissioner was passed by the trial court. He submits that the learned trial court has erred in passing the order as the demarcation report of the revenue inspector Nazul was already placed on record by the petitioner/ defendant no. 1 & 2 and the trial court has allowed the application only on the sole ground that a spot inspection is required to ascertain the boundary dispute hence the dispute could be resolved only by the spot inspection report. He submits that the dispute regarding the boundaries was prevailing since the inception of the suit and the plaintiff was not even aware about the boundaries and has filed the civil suit and the respondent No.1 trying to fabricate the evidence in his favour and submits that the order dated 25.4.2025 passed in RCSA No.122 of 2024 be quashed.

Learned counsel for the respondent submits that the defendant has filed the petition alleging encroachment, therefore, the he must establish his case by adducing the evidence in support of the pleadings. The provisions of Order 26 Rule 9 of CPC cannot be invoked for collecting the evidence and prays that no interference is required in the impugned order.

Heard the learned counsel for the parties.

This Court has taken a similar view in the case of Jaswant S/o Kashi Ram Yadav Vs. Deen Dayal, reported in (2011) 2 MPLJ 576 had held that the duties of the Court to issue a commission by appointing an employee of the revenue department to get the land in dispute demarcated and for which no