1 2025:CGHC:1404 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 184 of 2024 1 - Rajesh Prajapati S/o Late Pardeshi Prajapati Aged About 40 Years Resident Of Ward No. 14, Sonesarar, Khairagarh, Tehsil Khairagarh, District - Rajnandgaon, (Now District Khairagarh-Chhuikhadan-Gandai), Chhattisgarh. (Plaintiff No. 1 To 6) 2 - Mohit Bhondekar S/o Harilal Bhondekar Aged About 31 Years Caste - Mochi, Resident Of Ward No. 14, Sonesarar, Khairagarh, Tehsil Khairagarh, District - Rajnandgaon, (Now District Khairagarh- Chhuikhadan-Gandai), Chhattisgarh. 3 - Balkrishna Prajapati S/o Late Sakru Prajapati Aged About 60 Years Resident Of Ward No. 14, Sonesarar, Khairagarh, Tehsil Khairagarh, District - Rajnandgaon, (Now District Khairagarh-Chhuikhadan-Gandai), Chhattisgarh. 4 - Panchu Prajapati S/o Late Sakru Prajapati Aged About 62 Years Resident Of Ward No. 14, Sonesarar, Khairagarh, Tehsil Khairagarh, District - Rajnandgaon, (Now District Khairagarh-Chhuikhadan-Gandai), Chhattisgarh. 5 - Dilip Bhondekar S/o Gopal Bhondekar Aged About 42 Years Caste - Mochi, Resident Of Ward No. 14, Sonesarar, Khairagarh, Tehsil Khairagarh, District - Rajnandgaon, (Now District Khairagarh- Chhuikhadan-Gandai), Chhattisgarh. 6 - Ubhaylal S/o Bajaru Ram Markande Aged About 38 Years Caste - Satnami And Others Persons From Sonesarar, Resident Of Ward No. 14, Sonesarar, Khairagarh, Tehsil Khairagarh, District - Rajnandgaon, (Now District Khairagarh-Chhuikhadan-Gandai), Chhattisgarh. --- Petitioner(s) versus Digitally signed by REKHA SINGH -2- 1 - Nagar Palika Parishad, Khairagarh Through Chief Municipal Officer Khairagarh, Tehsil - Khairagarh, District - Rajnandgaon, (Now District Khairagarh-Chhuikhadan-Gandai), Chhattisgarh. (Defendants No. 1 To 9) 2 - President Nagar Palika Adhikari, Khairagarh, Tehsil - Khairagarh, District - Rajnandgaon, (Now District Khairagarh-Chhuikhadan-Gandai), Chhattisgarh. 3 - State Of Chhattisgarh Through The Collector Rajnandgaon, (Now District Khairagarh-Chhuikhadan-Gandai), Chhattisgarh. 4 - Bhagwat Yadav S/o Bhukhau Yadav Aged About 65 Years R/o Amlipara Khairagarh, Tehsil Khairagarh, District - Rajnandgaon, (Now District Khairagarh-Chhuikhadan-Gandai), Chhattisgarh. 5 - Bhupendra Yadav S/o Bhagwat Yadav Aged About 35 Years R/o Amlipara Khairagarh, Tehsil Khairagarh, District - Rajnandgaon, (Now District Khairagarh-Chhuikhadan-Gandai), Chhattisgarh. 6 - Smt. Bhumika Yadav W/o Bhupendra Yadav Aged About 33 Years R/o Amlipara Khairagarh, Tehsil Khairagarh, District - Rajnandgaon, (Now District Khairagarh-Chhuikhadan-Gandai), Chhattisgarh. 7 - Bagas Yadav S/o Pardeshi Yadav Aged About 60 Years Caste - Rout, R/o Amlipara Khairagarh, Tehsil Khairagarh, District - Rajnandgaon, (Now District Khairagarh-Chhuikhadan-Gandai), Chhattisgarh. 8 - Sundariya Bai Verma W/o Not Known Aged About 60 Years R/o Amlipara Khairagarh, Tehsil Khairagarh, District - Rajnandgaon, (Now District Khairagarh-Chhuikhadan-Gandai), Chhattisgarh. 9 - Santoshi Verma @ Kachra W/o Jethu Verma Aged About 45 Years R/o Amlipara Khairagarh, Tehsil Khairagarh, District - Rajnandgaon, (Now District Khairagarh-Chhuikhadan-Gandai), Chhattisgarh. ---- Respondents For Petitioners : Mr. Shalvik Tiwari, Advocate For State : Mr. Rajeev Bharat, G.A. For Respondents No.4 to 9 : Mr. Sourabh Shukla, Advocate For other respondents : None appears Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 3 09.01.2025 1) The petitioners have challenged the order passed by the learned Civil Judge, Class-II, Khairagarh, District Rajnandgaon (C.G.) dated 25.01.2024 whereby, the application moved by the petitioners/plaintiffs under Order 26 Rule 9 read with Section 151 of C.P.C has been rejected. 2) Mr. Tiwari, the learned counsel appearing for the petitioners would submit that a civil suit was filed by the plaintiffs for eviction of respondents No.4 to 9 from the land reserved for public service shown in Scheduled-A, perpetual injunction restraining respondents No. 4 to 9 from encroaching the aforesaid land and declaration that the order passed by the Tehsildar dated 04.05.2022, the order passed by the Sub-Divisional Officer (Revenue), Khairagarh in appeal dated 17.05.2022 and the order passed by the Commissioner dated 01.09.2022 are not binding upon the petitioners/plaintiffs. He would further submit that Survey Nos.421 and 422 situated at Village Sonesara are recorded and reserved in the revenue records for the road. Respondents No. 4 to 9 encroached over that land. He would contend that there was a boundary dispute between the parties, therefore, an application under Order 26 Rule 9 read with Section 151 of C.P.C was moved. He would further contend that defendants No.4 to 9 filed their reply and vide order dated 25.01.2024, the learned Trial Court rejected the application under Order 26 Rule 9 read with Section -4- 151 of C.P.C stating that the application has been moved by the petitioners to collect evidence through the Court. He would state that the learned Trial Court committed an error of law in rejecting the application moved by the petitioners. In support of his submissions, he placed reliance on the judgment passed by this Court in the matter of Phoolchand Asra Vs. Nagar Palika Nigam Raipur and others, Writ Petition (227) No.821 of 2019 decided on 09.09.2022. 3) On the other hand, Mr. Sourabh Shukla, the learned counsel appearing for respondents No.4 to 9 would oppose the submissions made by Mr. Tiwari. He would submit that there is an incorrect allegation against respondents No.4 to 9 that they have encroached over the Government land. He would further submit that without there being any basis, a civil suit was filed. He would lastly submit that the learned Trial Court rightly rejected the application under Order 26 Rule 9 of CPC moved by the petitioners/plaintiffs. 4) Mr. Bharat, the learned Government Advocate appearing for the State would support the order passed by the learned Trial Court. 5) I have heard the learned counsel appearing for the parties and perused the documents placed on the record. 6) From a perusal of the pleadings averred in the plaint, it is quite vivid that there is a dispute with regard to the boundary. It is alleged by the petitioners/plaintiffs that the defendants/respondents No.4 to 9 5 encroached over the Government land which is reserved for way/path in the revenue records bearing Survey Nos.421 and 422. 7) The plaintiffs moved an application under Order 26 Rule 9 of CPC to issue a commission to ascertain the correct status of the land including encroachment. 8) Learned Trial Court rejected the application under Order 26 Rule 9 of CPC assigning reasons that the application was moved by the plaintiffs to collect evidence. 9) This Court in the matter of Phoolchand Asra (supra) held in paras 9,10,12 & 13 as under:- “9.Section 75 of C.P.C deals with power of court to issue a commission and same is reproduced herein below:- “75. Power of court to issue commissions – Subject to such conditions and limitations as may be prescribed, the court may issue a commission - (a) to examine any person; (b) to make a local investigation; (c) to examine or adjust accounts; or (d) to make a partition; [53] [(e) to hold a scientific, technical, or expert investigation; (f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit; (g) to perform any ministerial act] ” The court has been given power to issue a commission subject to such conditions and limitation to make a local investigation along with others. The Order 26 Rule 9 of C.P.C which particularly deals with commission to make local investigation is reproduced herein below:- “Rule 9. Commissions to make local investigation. -6- 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 marked 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 person as it thinks fit directing him to make such investigation and to report thereon the Court: Provided that, where the state Government has made ules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.” 10. Under Order 26 Rule 9 of C.P.C., the court itself can exercise the power or in order to elucidate the disputed fact, and on the question of encroachment and location/identification of land on an application filed by the parties. More so when there is no agreed map between the parties, the Municipal Corporation or Municipal Council or Panchayat can enter into dispute and decide the same by placing correct position of the parties. A plain reading of the provision says that the power can be exercised at any stage. Basic purpose to exercise power under Order 26 Rule 9 of C.P.C. is to separate the wheat from chaff and in cases where it is necessary to elucidate the relevant facts, the Court can exercise its powers. It must be remembered that the procedural law is made to advance the cause of justice and not to strangulate the litigant on hyper technical grounds. In Order 26 Rule 9 of C.P.C. the word used is - “elucidate” and its meaning as per Websters Dictionary is “to make light or clear, to explain, to remove obscurity from and render intelligible, to illustrate.” According to Chambers Dictionary, “elucidate” means to make lucid or clear or to throw light upon, to illustrate, making clear, explanatory. 12. In Haryana Waqf Board Vs. Shanti Sarup and Others, (2008) 8 SCC 671, the Hon'ble Supreme Court has observed in para-6 as under:- “6. It is also not in dispute that even before the appellate court, the appellant Board had filed an application for appointment of a Local Commissioner for demarcation of the suit land. In our view, this aspect of the matter was not at all gone into by the High Court while dismissing the second appeal summarily. The High Court ought to have considered whether in view of the nature of dispute and in the facts of the present case, whether the Local Commissioner should be appointed for the purpose of demarcation in respect of 7 the suit land.” 13. In Anurag Jaiswal Vs. Collector, Khandwa and others, 2019 (2) M.P.L.J. 637, it has been held in paras 12 & 13 as under:- “12. In the considered opinion of this Court, ' for the purpose of elucidating facts in respect of any matter in dispute' means where the circumstances render it expedient in the interest of justice to do so, the Court has power, which is discretionary in nature, to appoint Commissioner for the purpose of ascertaining, to make it clear, intelligible and 'to throw light upon the matter in issue', means the main dispute as well as the facts leading to the dispute. This course may be adopted after the examination of the party or parties of suo motu. [See also: 1996 SCC Online Mad 17, Nagarajan vs. Madhanakumar]. 13. The Bombay Hight Court has consistently taken the view that in cases of boundary dispute and dispute about the identity of land, Courts should order local investigation under Order 26, Rule 9 of Cvil Procedure Code. [See: (2004) 3 Mh.L.J. 724, Sukhdeo Parashramji Bhugul (Dr.) vs. Wamanrao Nagorao Charhat; (2009) 6 AIR Bom R (NOC 1033) 329, Girish Vasantrao Bhoyar vs. Nimbaji Warluji Bambal; (2010) 4 AIR Bom R (NOC 450) 127, Yeshwant Bhaduji Ghuse vs. Vithabaji Laxman Ladekar, (2014) 1 AIR Bom R 16 = AIR 2014 (NOC 173) 59, Malhar vs. Shivaji and (2015) 4 AIR Bom R (NOC 3) 2, Shyam Janardam Chaoudary vs. Asha Ramdas Katkar]. Alok Aradhe, J, in 2012 (III) MPWN 62, Beejanwala Talukdar (Smt.) vs. Radhakrishna Rai] opined as under: “6. The appellant in the plaint has stated that defendant Nos. 1 and 2 have taken possession of the land belonging to him which has been marked with letters A, B, C, D which forms part of Khasra No. 32. On the other hand, defendants Nos. 1 and 2 in the written statement have denied the factum of encroachment and have stated that they are in possession of the land which has been purchased by the defendant No.2 on 20-1-1976 which forms part of Khasra No. 32. There is no agreed map. In absence of any agreed map, the trial Court could not have decided the issue of encroahment. [See : Haryana Waqf Board vs. Shanti Sarup, (2008) 8 SCC 671 and decision of Division Bench of this Court in the case of Durga Prasad vs. Parveen Foujdar 1975 M.P.L.J. 801]. For the aforementioned reasons, the substantial question of law framed by this Court is answered in negative and in favour of the appellant.” (Emphasis -8- Supplied)”. 10) Taking into consideration the fact that there is a dispute with regard to boundary and the same can be ascertained if the Commissioner is appointed to verify the position of the petitioners/plaintiffs, the Government land and the land owned by defendants No.4 to 9 therefore, the learned Trial Court ought to have allowed the application moved by the plaintiffs/petitioners under Order 26 Rule 9 of CPC read with Section 151 of the CPC. 11) On the anvil of the above interpretation, the petition filed by the petitioners/plaintiffs is allowed and the order dated 25.01.2024 passed by the learned Civil Judge Class-II, Khairagarh, District Rajnandgaon (C.G.) in Civil Suit No. 39-A/2022 is set aside. The learned Trial Court is directed to decide the application moved by the petitioners/plaintiffs under Order 26 Rule 9 read with Section 151 of C.P.C. afresh in light of the observations made herein above. No order as to cost(s). Sd/- (Rakesh Mohan Pandey) Judge Rekha