1 2025:CGHC:23497 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 460 of 2025 1 - Shyamkhilawan S/o Jugatram Aged About 50 Years Caste Sanwara, R/o Village Pali, Tahsil Pali, District Korba (C.G.) 2 - Shiv Kumari W/o Shyamkhilawan Aged About 47 Years Caste Sanwara, R/o Village Pali, Tahsil Pali, District Korba (C.G.) ... Petitioners versus 1 - Dashru S/o Jhuku Aged About 55 Years Caste Sanvara, R/o Village Madan, Tahsil Pali, District Korba Chhattisgarh 2 - Jitendra Kumar S/o Dashru Aged About 32 Years Caste Sanvara, R/o Village Madan, Tahsil Pali, District Korba Chhattisgarh 3 - State Of Chhattisgarh Through Collector, Korba District Korba Chhattisgarh ... Respondents For Petitioners : Mr. Ishwar Jaiswal, Advocate For State : Mr. Sanjeev Kumar Agrawal, Panel Lawyer Hon'ble Shri Justice Narendra Kumar Vyas Order on Board 12.06.2025 1. The petitioners/plaintiffs have preferred the present writ petition under Article 227 of the Constitution of India assailing the order dated 09.08.2024 passed by learned First Civil Judge Senior Class, Korba, District Korba (C.G.) in Civil Suit No. 33-A/2019 by which the application under Order 26 Rule 9 of the C.P.C. for appointment of Commissioner has been rejected. BHUMIKA ANGARE Digitally signed by BHUMIKA ANGARE Date: 2025.06.27 16:24:06 +0530 2 2. The brief facts as reflected from the record are that the petitioners/plaintiffs have filed a civil suit for declaration of permanent injunction mainly contending that the petitioners are in possession and title holder of the suit property bearing Patwari Halka No. 23 situated at Tahsil Pali, District Korba in land bearing Khasra No. 382/1a area 0.012 hectare. 3. The respondent/defendant have filed written statement denying the allegation made in the plaint and would submit that the land belongs to the defendant and they are in possession of the suit property, thus it has been prayed for dismissal of the suit. 4. Learned trial Court has framed issues thereafter an application under Order 26 Rule 9 of the C.P.C. has been filed on 21.02.2023 for appointment of Commissioner. The said application was rejected by the trial Court vide impugned order dated 09.08.2024 recording its finding that if the application for appointment for Commissioner is allowed it will amounts to collection of the evidence which is not the requirement of law but it is for the plaintiffs to bring the evidence and substantiate his case. Being aggrieved with this order, the plaintiffs have preferred the instant writ petition. 5. Learned counsel for the petitioners would submit that the trial Court has not considered the provisions of Order 26 Rule 9 CPC and if the Commissioner is appointed for demarcation of the land that will resolve the dispute, as such, it has been prayed for allowing the petition by quashing the impugned order. 6. I have heard learned counsel for the petitioner. 7. Since there is a dispute with regard to demarcation of the suit property, 3 therefore, in view of the well settled position of law as held by the Hon’ble Supreme Court in case of Haryana Waqf Board vs. Shanti Sarup & Others reported in 2008 (8) SCC 671, the demarcation issue should always be decided by appointing the Commissioner to resolve the controversy between the parties. 8. Considering the said parameters of law laid down by the Hon’ble Supreme Court, I am of the view that the impugned order dated 09.08.2024 by application under Order 26 Rule 9 of the C.P.C. has been rejected is deserves to be quashed and accordingly it is quashed. 9. Learned trial Court is directed to appoint Commissioner to any Revenue Officer from the Office of Superintendent of Land Records on the next date of hearing and in turn the Commissioner so appointed will submit its report within 45 days from the date of receipt of writ of commission by the trial Court. The plaintiff will borne the cost of the Commissioner and the fees of the Commissioner will be fixed by the trial Court. 10. With the aforesaid observation and direction, the instant writ petition is disposed of. Sd/- (Narendra Kumar Vyas) Judge Bhumika