p. 1 IN THE HIGH COURT OF ORISSA AT CUTTACK C.M.P. No.891 of 2024 (An application under Article 227 of the Constitution of India) Sirapani Mahanta & Another ...… Petitioners -Versus- Kanchan Mohapatra & Others ..…. Opp. Parties Advocate(s) appeared in this case :- _______________________________________________________ For Petitioners : Mr. S. Mishra, Advocate Mr. Omkar Panda, Advocate For Opp. Parties : Mr. G. Mukherji, Sr. Advocate with Mr. A. Mishra, Advocate _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 7th January, 2026 SASHIKANTA MISHRA, J. This writ application has been filed by defendant Nos.1 and 2 in C.S. No.15 of 2023 pending in the Court of learned Senior Civil Judge, Champua. They seek to challenge the order dated 24.06.2024 passed by p. 2 the Court below in allowing an application of the plaintiffs for appointment of Civil Court Commissioner under the provisions of Order XXVI Rule 9 of CPC. 2. Briefly stated, the facts of the case are that the plaintiffs have filed the suit inter alia, alleging that the defendant Nos.1 and 2 have encroached upon a portion of Plot No.129 (Schedule-B), which actually belongs to them and defendant No.4. As such, the suit has been filed for declaration of title of the plaintiffs and defendant No.4 and for confirmation of possession; in the alternative, for recovery of possession. The relief of permanent injunction has also been claimed. The defendant Nos.1 and 2 are contesting the suit inter alia, taking the stand that they have not encroached upon any portion of the suit land as alleged by the plaintiffs. 3. It is borne out from the record that an application, being I.A. No.7 of 2023 was filed by the plaintiffs seeking an order of temporary injunction. By order dated 25.07.2023, the application was rejected and was subsequently confirmed in appeal by the learned Additional District Judge, Champua in F.A.O. p. 3 No.4 of 2023, vide order dated 22.11.2023. The plaintiffs thereafter, filed an application under Order XXVI Rule 9 for a direction to depute a Civil Court Commissioner to measure the plot with the intent of finding out the status of possession in respect of the suit property by defendant Nos.1 and 2. A questionnaire was appended to the petition. Defendant Nos.1 and 2 filed an objection stating therein that their father had constructed a house having purchased the property from one Mewalal Jaiswal. The husband of the plaintiff No.1 purchased the land from said Mewalal Jaiswal and constructed a house in the year 2009. There was no allegation of any encroachment being made at that point of time. It is also stated that both houses are adjacent to each other. By the order impugned, the Court below allowed the petition. 4. Heard Mr. S. Mishra, learned counsel with Mr. Omkar Panda, learned counsel for the Defendant- Petitioners and Mr. G. Mukherji, learned Senior Counsel with Mr. A. Mishra, learned counsel for the Plaintiffs- Opposite Parties. p. 4 5. Mr. Panda would submit that allowing the application filed by the plaintiffs under Order XXVI Rule 9 amounts to granting liberty to the plaintiffs to acquire further evidence in their favour, which is not permissible. He further submits that given the facts alleged by the plaintiffs and the denial thereof by the defendants in their written statement, there is no need for measuring the suit land by a Survey-Knowing Commissioner. 6. Per contra, Mr. Mukherji, learned Senior counsel would submit that the whole case of the plaintiffs rests upon the allegation of encroachment of a portion of the suit property by defendant Nos.1 and 2, who have started construction of their building much after construction of the building by the plaintiffs. He further submits that it being basically a boundary dispute, the same can be easily resolved by deputing the Survey-Knowing Commissioner to the field. Mr. Mukherji further submits that pursuant to the impugned order the Civil Court Commissioner has already visited the spot, made necessary measurements p. 5 and has submitted his report to the Court, which is kept in a sealed cover because of the operation of interim order passed by this Court. 7. From a reading of the plaint and the written statement, copies of which are enclosed to the writ application, there can be no doubt that the basic dispute between the parties centers around the so- called possession by defendant Nos.1 and 2 over a portion of Plot No.129, which the plaintiffs claim to be exclusively belonging to them. The defendants have denied such allegation. A rough sketch map has also been appended to the plaint. 8. This Court is of the view that it is precisely for such disputes that the provision of Order XXVI Rule 9 can be profitably used. For immediate reference, the provision is reproduced below:- “9. Commission to make local investigations- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such p. 6 person as it thinks fit directing him to make such investigation and to report thereon to the Court: Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.” 9. It is also trite law that where the controversy is as to identification, location or measurement of the land or premises, local investigation is necessary, essential, requisite and proper. The above view was taken by the Supreme Court in the case of Haryana Waqf Board v. Shanti Sarup1. 10. Reading of the impugned order shows that the trial Court has taken note of all relevant facts and the position of law in the proper perspective before allowing the petition in question. From what has been narrated before, this Court is of the considered view that the trial Court rightly exercised the power under Order XXVI Rule 9 by directing the Civil Court Commissioner to conduct necessary measurements at the spot and demarcate the suit land. 1 (2008) 8 SCC 671 p. 7 11. This Court however, finds that the questionnaire appended to the petition filed by the plaintiffs is not happily worded in inasmuch as whether there is any encroachment or not is for the Court to decide on the basis of the report of the Commissioner coupled with other evidence on record. Obviously, the Civil Court Commissioner cannot opine anything with regard to encroachment. Therefore, while not being inclined to interfere with the order, this Court makes it clear that the Court below shall only consider the report of the Commissioner as regards the measurements made by him on the spot over the suit property. The conclusion with regard to the allegations made and denied by the parties shall be drawn by the Court, based on the report and other evidence that may be adduced by the parties. 12. It further goes without saying that the parties have the right to have their say with regard to the report of the Commissioner. The CMP is disposed of accordingly. Page 8 of 8 13. The suit being of the year 2023, the trial Court shall make an endeavor for its early disposal. ……..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 7th January, 2026/ Puspanjali Ghadai, Jr. Steno Location: High Court of Orissa, Cuttack. Date: 09-Jan-2026 18:21:26