1 2025:CGHC:41149 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 601 of 2023 1 - Pushpendra Kumar Jaiswal S/o Vinod Lal Jaiswal Aged About 43 Years R/o - Ward No. - 12, Main Road Sakti, Thana And Tahsil- Sakti, District : Janjgir-Champa, Chhattisgarh ... Petitioner versus 1 - Diwakar S/o - Dhaneshwar Aged About 55 Years R/o - Ward No. 11 Sakti, Thana And Tahsil- Sakti, District : Janjgir-Champa, Chhattisgarh 2 - Ravi S/o Ashok Kumar Agrawal Aged About 43 Years R/o Ward No. - 16 Railway Station Road Sakti, Thana And Tahsil - Sakti, District : Janjgir-Champa, Chhattisgarh ... Respondents For Petitioner : Shri M.A. Latif Rahman, Advocate For Respondents : Ms. Pragati Pandey, Advocate on behalf of Shri Hari Agrawal, Advocate Hon’ble Shri Justice Rakesh Mohan Pandey Order on Board 14/08/2025 1. The plaintiff has filed this petition assailing the order dated 3.8.2022 passed in Civil Suit No.18A/2019 by the learned Civil Judge Class I, Sakti, District Janjgir-Champa, whereby an Digitally signed by GOPAL SINGH Date: 2025.08.19 11:13:40 +0530 2 application moved by the petitioner/plaintiff under Order 26 Rule 9 CPC has been rejected. 2. Learned counsel for the petitioner/plaintiff would submit that the petitioner/plaintiff filed a suit for declaration of title and vacant possession of the suit property after demolition of the house constructed over the suit land. He would further contend that the petitioner is owner of Survey No.711/3[k ad- measuring area 322 square metres situated at Nazul Sheet No.27C, Block No.86, Sakti, Tahsil Sakti. He would contend that the respondents/defendants started raising construction over the suit land and, therefore, the suit was filed. He would further contend that during pendency of the suit, an application under Order 26 Rule 9 CPC was moved. The defendants in their written statement have stated that they are owner of Survey No.824/17, 824/18. He would contend that the learned Trial Court rejected the application on the ground that the petitioner has moved application to collect evidence, which is not permissible. He would pray to allow this petition. 3. On the other hand, learned counsel appearing on behalf of the respondents/defendants would submit that the respondents have not encroached over any part of the suit property. She would further submit that the petitioner ought to have approached the revenue authorities for demarcation. She would submit that the petition deserves to be dismissed. 3 4. I have heard learned counsel for the parties and perused the documents available with due care. 5. Perusal of the plaint and the averments made in the written statement would show that there is a dispute with regard to identity of the plots. The petitioner/plaintiff is owner of Survey No.711/3[k ad-measuring 322 square metres, whereas the respondents/defendants are owner of Survey No.824/17 ad- measuring 2.14 decimal and Survey No.824/18 ad-measuring 2.14 decimal. The petitioner/plaintiff alleged that the respondents/defendants have raised construction over part of the suit property and to ascertain the correct position of the plots, application under Order 26 Rule 9 CPC was made by the petitioner/plaintiff, which was rejected by the learned Trial Court. 6. In Haryana Waqf Board v. Shanti Sarup and others, reported in (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 4 facts of the present case, whether the Local Commissioner should be appointed for the purpose of demarcation in respect of the suit land." 7. In Anurag Jaiswal v. Collector, Khandwa and others, reported in 2019 (2) MPLJ 637, it has been held in paras 12 and 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 Civil 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 5 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 encroachment. [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." 8. In the present case, there is dispute pertaining to identification of boundaries and further allegation is that the defendants have raised construction over part of suit land, 6 therefore, in my opinion, learned Trial Court ought to have allowed the application moved by the petitioner/plaintiff under Order 26 Rule 9 CPC. 9. Considering the above proposition of law and the facts of the present case, the writ petition filed by the petitioner is hereby allowed and the order passed by the learned Trial Court dated 3.8.2022 is hereby set aside. The application moved by the petitioner/plaintiff under Order 26 Rule 9 CPC is allowed. 10. The learned Trial Court is directed to appoint a Local Commissioner for demarcation of the suit property belonging to the petitioner/plaintiff as well as the respondents/defendants. 11. The interim order granted earlier is hereby vacated. Sd/- (Rakesh Mohan Pandey) JUDGE Gopal