1 2025:CGHC:5209 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 382 of 2020  Ashok Kumar Jaiswal S/o Late Ramji Jaiswal Aged About 47 Years R/o Jaiswal Medical Store, Main Road, Korba , District Korba Chhattisgarh., District : Korba, Chhattisgarh ... Petitioner(s) versus 1. Rajendra Jaiswal S/o Narmada Prasad Jaiswal Aged About 45 Years R/o Purani Basti, Korba Tehsil Korba, District Korba Chhattisgarh., District : Korba, Chhattisgarh 2. Sukwara Bai D/o Bodhwa Aged About 45 Years Caste Kenwat R/o Purani Basti , Korba , Tehsil And District Korba Chhattisgarh., District : Korba, Chhattisgarh 3. Smt. Sehnaj Shekh W/o Fariyad Ali Aged About 36 Years Caste Momin R/o Senior Mig/47, Nehru Nagar, Korba Tehsil And District Korba Chhattisgarh., District : Korba, Chhattisgarh 4. Smt. Sarita Agrawal W/o Sushil Agrawal Aged About 38 Years R/darri Road, Korba, Tehsil And District Korba Chhattisgarh., District : Korba, Chhattisgarh 5. General Manager Secl (East) Korba, Tehsil And District Korba Chhattisgarh., District : Korba, Chhattisgarh 6. State Of Chhattisgarh Through Collector , Korba , District Korba Chhattisgarh., District : Korba, Chhattisgarh ... Respondent(s) (Cause Title is taken from Case Information System) For Petitioner/Defendant No. 1 : Mr. Sanjay Patel, Advocate For Respondent No. 5/ : Mr. Sudhir Kumar Bajpai, Advocate Defendant No. 5 For State/Respondent No. 6 : Mr. Lav Sharma, Panel Lawyer Other Respondents : None. Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 2 29. 01.2025 1. Defendant No. 1 has challenged the order passed by 3rd Civil Judge, Class – I, Korba, District Korba dated 06.01.2020 in Civil Suit No. 316 of 2008, whereby the learned trial Court allowed the application moved under Order 26 Rule 10 (3) of CPC by the plaintiff. 2. The facts of the present case are that the plaintiff/respondent No. 1 filed a suit for declaration of title and possession. In the prayer clause, the plaintiff specifically pleaded that he is entitled to be declared as the owner of survey no. 326, admeasuring 0.25 hectare over which there is an encroachment of defendant No. 1/petitioner and further relief was sought to declare the sale-deed null and void as there was a dispute with regard to encroachment and boundaries; therefore, an application under Order 26 Rule 9 of CPC was moved by the plaintiff and the same was allowed by the learned trial Court. There were two reports submitted by the Commissioner, one on 07.01.2016 and another on 12.01.2016. Thereafter, the plaintiff again moved an application under Order 26 Rule 10(3) of CPC on the ground that the demarcation reports submitted by the Commissioner were not clear. The learned trial Court after appreciating the demarcation reports submitted by the Commissioner and the averments made by the plaintiff in the application, allowed the application moved by the plaintiff under Order 26 Rule 10 (3) of CPC vide order dated 06.01.2020. The petitioner/defendant No. 1 challenged the very order by filing this petition. 3. Mr. Sanjay Patel, counsel appearing for the petitioner/defendant No. 1 would submit that there is no dispute with regard to boundary. He would further submit that earlier on two occasions, the demarcation reports had been submitted by the Commissioner before the learned trial Court; therefore, there was no occasion for the plaintiff to move an application for 3 the appointment of Commissioner and the learned trial Court committed an error of law by allowing such application. 4. On the other hand, Mr. Sudhir Kumar Bajpai and Mr. Lav Sharma, Panel Lawyers appearing for respective respondents would oppose. They would submit that to resolve the dispute with regard to encroachment, the learned trial Court allowed the application. They would further submit that earlier two reports submitted by the Commissioner were not clear pertaining to encroachment by defendant No. 1; therefore, the learned trial Court rightly allowed the application moved by the plaintiff/respondent No. 1. 5. I have heard learned counsel appearing for the parties and perused the documents placed on record. 6. It is apparent from the pleadings and the documents placed on record that the plaintiff/respondent No. 1 filed a Civil Suit for declaration of title and possession and it has been pleaded that there is encroachment by defendant No. 1/petitioner; therefore, an application under Order 26 Rule 9 of CPC was moved by the plaintiff and the same was allowed by the learned trial Court and two reports were submitted by the Commissioner, on 07.01.2016 and 12.01.2016, but the same were not clear pertaining to encroachment by defendant No. 1/petitioner. 7. Order 26 Rule 10 (3) of CPC states that where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit. 8. In the present case, the plaintiff/respondent No. 1 moved an application under Order 26 Rule 10 (3) of CPC before the learned trial Court and after appreciating the demarcation reports, it was observed by the learned trial Court that the report submitted by the Commissioner was not clear with regard to the disputed area and to resolve the dispute with regard to 4 encroachment, the application under Order 26 Rule 10 (3) of CPC was allowed on 06.01.2020. 9. Taking into consideration the facts and circumstances of the case and the provisions of Order 26 Rule 10(3) of CPC, it would be apt to elucidate the dispute pending between the parties. Thus, the learned trial Court was justified in allowing the application moved under Order 26 Rule 10 (3) of CPC by the plaintiff. Accordingly, this petition fails and is hereby dismissed. 10. Interim order granted earlier is hereby vacated. 11. The learned trial Court is directed to expedite the trial as the Civil Suit was filed in the year 2008. Sd/- (Rakesh Mohan Pandey) Judge $iddhant