Page No.# 1/4 GAHC010088442019 2025:GAU-AS:7646 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/115/2019 NAZMINA KHATUN W/O MD. ABDUL RAHMAN, R/O VILL. KAYAPATTY, P.O AND P.S.- JOGIGHOPA, DIST.-BONGAIGAON, ASSAM, PIN-783380 VERSUS AMIT GUPTA AND ANR. S/O SRI PREM PRASAD GUPTA, R/O VILL. KAYAPATTY, P.O AND P.S. JOGIGHOPA, DIST.-BONGAIGAON, ASSAM, PIN-783380 2:HEMANGINI KALITA W/O LT. CHABIN DAS R/O VILL. KAYAPATTY P.O AND P.S. JOGIGHOPA DIST.-BONGAIGAON ASSAM PIN-78338 For the petitioner (s) : Ms. R. Saha, Advocate For the respondent (s) : Mr. D. Choudhury, Advocate BEFORE HON’BLE MR. JUSTICE DEVASHIS BARUAH O R D E R 11.06.2025 Heard Ms. R. Saha, the learned counsel appearing on behalf of the petitioner and Mr. D. Choudhury, the learned Page No.# 2/4 counsel who appears on behalf of the respondent No.2. None appears on behalf of the respondent No.1. 2. This is an application filed under Article 227 of the Constitution challenging the order dated 26.03.2019 whereby the application filed under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) read with Section 151 of the Code was rejected. 3. The case of the petitioner herein who is the plaintiff is that she had filed a suit for declaration, eviction and khas possession of the encroached suit land measuring 11 lechas arising out of the total plot of land admeasuring 0 bigha 2 kathas 10 lechas covered by Dag No.252 and Patta No.84 situated at village Kayapatty under Boitamari Revenue Circle against the defendants. The defendants appeared in the said suit and filed their written statement denying the allegations of encroachment of the suit land along with other grounds. At the time when the suit was fixed for arguments, an application was filed under Order XXVI Rule 9 of the Code seeking appointment of a Commissioner for the purpose of ascertaining as to whether there was encroachment of the 11 lechas of land as alleged by the plaintiff. This application was rejected, and it is under such circumstances, the present proceedings have been filed. Page No.# 3/4 4. This Court has duly taken note of the order dated 26.03.2019 wherein the reason why the learned Court of the Munsiff, North Salmara, Abhayapuri (for short, ‘the learned Trial Court’) had rejected the application is on the ground that it would cause delay in disposal of the suit. However, the most pertinent question which ought to have been addressed by the learned Trial Court was as to whether the evidence on record was sufficient for the purpose of coming to the conclusion as regards the fact of encroachment or was there a necessity for issuance of a Commissioner in terms with Order XXVI Rule 9 of the Code, more particularly when there is a dispute as regards the boundary. This having not been done so, it is the opinion of the Court that the impugned order dated 26.03.2019 suffers from error in exercise of jurisdiction. 5. Accordingly, this Court therefore interferes with the order dated 26.03.2019 and further directs the learned Court of the Munsiff, North Salmara, Abhayapuri, i.e. the learned Trial Court to issue a Commission thereby directing the Circle Officer, Boitamari Revenue Circle to carry out a survey as to whether there is any encroachment over the suit land as alleged by the plaintiff. 6. It is seen that vide the order dated 29.04.2019 the further proceedings of Title Suit No.35/2014 was stayed, the said stay order stands vacated and the parties herein who have duly Page No.# 4/4 appeared are directed to appear before the learned Court of the Munsiff, North Salmara, Abhayapuri on 14.07.2025 for further proceedings of the suit. JUDGE Comparing Assistant