Page No.# 1/10 GAHC010250022023 2025:GAU-AS:6102 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/355/2023 MORJINA BEGUM AND 15 ORS. W/O LATE ABUL HUSSAIN, R/O BHATIPARA, PIN-783101, P.O. AND DIST- GOALPARA, ASSAM 2: AYSHA KHATUN D/O LATE ABUL HUSSAIN R/O BHATIPARA PIN-783101 P.O. AND DIST-GOALPARA ASSAM 3: ARFUJA KHATUN D/O LATE ABUL HUSSAIN R/O BHATIPARA PIN-783101 P.O. AND DIST-GOALPARA ASSAM 4: MANOWARA BEGUM D/O LATE ABUL HUSSAIN R/O BHATIPARA PIN-783101 P.O. AND DIST-GOALPARA ASSAM 5: RUNI BEGUM D/O LATE ABUL HUSSAIN R/O BHATIPARA PIN-783101 P.O. AND DIST-GOALPARA ASSAM 6: NAJIA BEGUM D/O LATE ABUL HUSSAIN Page No.# 2/10 R/O BHATIPARA PIN-783101 P.O. AND DIST-GOALPARA ASSAM 7: BULINA BEGUM @ BULI KHATUN D/O LATE ABUL HUSSAIN R/O BHATIPARA PIN-783101 P.O. AND DIST-GOALPARA ASSAM 8: LAL BHANU D/O LATE ABDUL HUSSAIN R/O BHATIPARA PIN-783101 P.O. AND DIST-GOALPARA ASSAM 9: MOZIRON BEWA @ MOZIRON NESSA W/O LATE GOLAP HUSSAIN R/O BHATIPARA PIN-783101 P.O. AND DIST-GOALPARA ASSAM 10: SHAJNUR HUSSAIN S/O LATE GOLAP HUSSAIN R/O BHATIPARA PIN-783101 P.O. AND DIST-GOALPARA ASSAM 11: MAJNUR HUSSAIN @ MOZNUR HOQUE S/O LATE GOLAP HUSSAIN R/O BHATIPARA PIN-783101 P.O. AND DIST-GOALPARA ASSAM 12: RAJU HUSSAIN S/O LATE GOLAP HUSSAIN R/O BHATIPARA PIN-783101 P.O. AND DIST-GOALPARA ASSAM 13: ARJINA BEGUM Page No.# 3/10 D/O LATE GOLAP HUSSAIN R/O BHATIPARA PIN-783101 P.O. AND DIST-GOALPARA ASSAM 14: SOFIKA BEGUM D/O LATE GOLAP HUSSAIN R/O BHATIPARA PIN-783101 P.O. AND DIST-GOALPARA ASSAM 15: SARJINA BEGUM D/O LATE GOLAP HUSSAIN R/O BHATIPARA PIN-783101 P.O. AND DIST-GOALPARA ASSAM 16: RUBI BEGUM D/O LATE GOLAP HUSSAIN R/O BHATIPARA PIN-783101 P.O. AND DIST-GOALPARA ASSA VERSUS JONAB UDDIN AND 7 ORS. S/O LATE SONA MIA, R/O BHATIPARA, P.O. AND DIST-GOALPARA, ASSAM, PIN-783101 2:ISTAK ALI S/O JONAB UDDIN R/O BHATIPARA P.O. AND DIST-GOALPARA ASSAM PIN-783101 3:MOSTAK ALI S/O JONAB UDDIN R/O BHATIPARA P.O. AND DIST-GOALPARA ASSAM PIN-783101 4:INSAN ALI Page No.# 4/10 S/O JONAB UDDIN R/O BHATIPARA P.O. AND DIST-GOALPARA ASSAM PIN-783101 5:JOMINA BEWA W/O LATE SONA MIA R/O BHATIPARA P.O. AND DIST-GOALPARA ASSAM PIN-783101 6:SATJINA BEGUM D/O SONA MIA R/O BHATIPARA P.O. AND DIST-GOALPARA ASSAM PIN-783101 7:DIMPI W/O MOSTAK ALI R/O BHATIPARA P.O. AND DIST-GOALPARA ASSAM PIN-783101 8:RISA MONI W/O ISTAK ALI R/O BHATIPARA P.O. AND DIST-GOALPARA ASSAM PIN-78310 Advocate for the Petitioner : MR. B BORAH, MR. M M ZAMAN Advocate for the Respondent : MR. P HAZARIKA (R-1,7), MR. A K ROY (R-1,7),MR. T R SARMA (R-1,7) Page No.# 5/10 BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER Date : 16.05.2025 Heard learned counsel Mr. M. M. Zaman for the petitioners and learned counsel Mr. T. R. Sarma for the respondent Nos. 1 and 7. 2. The petitioners have filed this application under Article 227 of the Constitution of India against the order dated 21.07.2023 passed in the Title Suit No.02/2020 by the learned Court of Munsiff No.1, Goalpara rejecting the Petition No.794/23 filed by the plaintiffs/petitioners under Order XXVI Rule 9 of the CPC thereby rejecting the prayer to appoint the Amin Commissioner to investigate and submit a report. 3. Learned counsel for the respondent Nos.1 and 7 has submitted that a reasoned order has been passed, and as the order has been correctly passed, the order is not required to be interfered with and set aside. 4. The order dated 21.07.2023 in connection with TS No.02/20 is reproduced herein below:- “TS 02/20 21.07.2023 Both the sides are duly represented. Today was fixed for order on petition No. 794/23 filed by the plaintiff under Order XXVI Rule 9 of CPC. The plaintiff has stated that the defendants i.e written statement have asserted that schedule B land i.e. the suit land is not the part of the schedule A land, rather schedule B land is a part of land measuring 4 katha 4 lechas covered by Page No.# 6/10 dag No. 156 patta No. 122(old)/91(new) in the revenue village of Bhatipara under Revenue Circle Balijana, District Goalpara Assam. Therefore, it is prayed to appoint the ASO of Balijana Revenue Circle as Amin Commissioner to investigate and submit a report. The defendant side has verbally submitted that the suit land is not a part of the land in possession of the defendant and prayed to reject the petition. At the outset, It is pertinent to mention that the object of Order XXVI Rule 9 of CPC is to elucidate any matter in dispute. In other words, in any suit where there is a just and proper cause for elucidating any matter in dispute as the case may be, the Court may appoint Commissioner. However, the Court would not appoint a Commissioner in mechanical manner without considering the need for appointment of Commissioner nor shall it appoint a Commissioner merely because a party asks for it. In the present case, perusal of the case record reveals that the instant matter is still at the stage of PW evidence and the trial of the instant case is yet to commence. Both the parties are yet to lead their evidences. Therefore, considering the stage of the instant matter as well as keeping in view the purpose of local investigation under Order XXVI Rule 9 of CPC, i.e. to obtain such evidence, which from its peculiar nature can only be had on the spot with a view to elucidate any point which is left doubtful on the evidence produced before the Court, I am not inclined to allow the prayer of the Opp..party/defendant. Accordingly, petition no.794/23 is rejected. Plaintiff is directed to adduce their evidence positively on the next date fixed. Fix ...15.9.23. for PW evidence. Munsiff No.1 Goalpara” Page No.# 7/10 5. It is submitted on behalf of the petitioners that an order under Order XXVI Rule 9 of the CPC is not a stage-centric order. This order can be passed at any stage. The learned counsel for the petitioners has relied on the decision of the High Court of judicature at Madhya Pradesh in AnuragJaiswal V. Collector, Khandwa and others reported in 2018 0 Supreme(MP) 865, which is reproduced hereunder for ready reference:- “7. The first point raised by petitioner is that power under Order 26 rule 9 CPC cannot be exercised at initial stage of the suit. A plain reading of said provision shows that it does not indicate any stage in which such power can be exercised. In AIR 2004 U'Chal 30, Rajesh Kumar Gautam v. M.M.V.C. Ashram, the Court opined that the Court can appoint a Commissioner at any stage of the proceeding. In 2001 AIIIC 88 R. Narasimhaiah v. Sakarnmanamma, it was held that an application for issuance of Commission cannot be rejected merely because evidence is yet to commence. * 10. In cases where there is no agreed map between the parties and where question of encroachment is involved, the power under Order 26 rule 9 can very well be exercised. In 1975 JLJ 440-Durga Prasad v. P. Faujdar, a Division Bench of this Court opined that in case where there is a dispute as to encroachment, the fact whether there is such an encroachment or not cannot be determined in absence of an agreed map except by appointment of the Commissioner under Order 26 rule 9 CPC.” 6. The learned counsel for the petitioners has also relied on the decision of the High Court of judicature at Karnataka, Kalaburagi Bench in connection with Sri Shadaksharappa S/o Veranna Vs. KumariVijayalaxmi D/o Pampanna reported in 2023 0 Supreme(Kar) 325, which is reproduced hereunder for ready reference:- “13. The next question is, at what stage of the proceeding in a suit, the Page No.# 8/10 application can lie? As could be easily noticed from the provision, the provision is not 'stage' centric. Thus the provision can be invoked either before the commencement of the trial or after. If the application is filed before the commencement of the trial, the court having regard to the pleadings and records may allow such application before the commencement of the trial. For example, in a given case, if the report is necessary for consideration of an application seeking some interim measure, before the commencement of the trial, the Commissioner can be appointed, if the case is made out for a such appointment. On the other hand, again, having due regard to the pleadings and records, if the court finds that there is every likelihood that after recording the evidence of the parties, the need to appoint the court Commissioner may not arise or that the court is of the view that it can take a call on the application, only after recording the evidence, then it may defer the order on the application till such time. Thus the decision as to when the report of the Commissioner is to be secured must be taken having due regard to the facts and circumstances. 14. The discretion, though lies with the court, as to appoint the Commissioner before the trial or after the trial, the decision must be taken with due regard to the possibility of reducing or eliminating the need to record the oral evidence of witnesses to prove an issue which could be effectively decided with the aid of the report. More often than not, in disputes relating to the existence of pathway, stream, pond, well, or disputes relating to the boundary between adjoining holders, encroachment, easement of air and light, construction of building in violation of setback rules, or relating to the authenticity of a document, signature/thumb impression to name a few by way of illustration, a report secured before the trial may cut short the trial in as much as the party relying upon the report may not examine multiple witnesses to prove the matters covered by the report. The party may simply rest his case based on his evidence and the report. In a given case, the appointment of the Commissioner before the commencement of the trial may facilitate a focused trial. In the case of BhimappaRayappaChougala v. Shrikant, 2014 SCC OnLineKar12277: (2014) Page No.# 9/10 2 KCCR 1652 at page 1653, the Coordinate Bench of this court has held as under: '4. xxx Only if the plaintiffs can show that the defendants have encroached upon their property. they would be entitled to the relief. Any amount of oral evidence is not a substitute or sufficient to prove the encroachment. To cut short the litigation to reduce recording evidence, the trial Court in its wisdom, thought it fit to appoint a Commissioner even before the commencement of the trial. That is how the duration of the litigation could be curtailed and speedy disposal of the civil matter could be achieved.' *** *** *** 21. Having examined the provisions referred to above and given the fact that Order XXVI of the Code of Civil Procedure is often invoked in the trial court, this court is of the view, broadly speaking in the following cases, the appointment of an appropriate Commissioner as provided under Order XXVI of the Code is desirable. (i) The dispute relating to the easement of air, light, pathway, road, watercourse, etc. (ii) The dispute relating to the boundary, encroachment; (iii) The dispute relating to forgery; (iv) The dispute relating to the existence or otherwise of a stream, pond, drainage, watercourse, road, pathway, pollution, or nuisance.” 7. It is true that this is a case relating to boundary dispute, but the trial Court did not deem it appropriate to appoint a Commissioner at that stage. It is for the Court to decide if the report of a Commissioner is required to expedite the trial by curtailing the recording of evidence or examination of witnesses. 8. It is also true that any order under Order XXVI Rule 9 of the CPC is not a stage-centric order. Such an order can be passed at any stage of the proceeding Page No.# 10/10 as it was the trial Court’s observation that at that stage, the matter which was pending before the Court, any local investigation was not required to unearth the position of the boundary of the suit land and the area in dispute. 9. I have also considered the submissions that evidence has not yet commenced. The petition is not allowed. However, the petitioners are at liberty to file a fresh petition under Order XXVI Rule 9 of the CPC, if at any stage of the proceeding, it appears that an investigation by an Amin Commissioner is necessary in support of the evidence or the dispute relating to the suit land. 10. In terms of above observation, this petition stands disposed of. 11. Send back the trial Court record. 12. Both the parties are directed to appear before the trial Court on 06.06.2025. JUDGE Comparing Assistant