1 2025:CGHC:14787 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 786 of 2023 1 - Dhanpat Lal Dewangan S/o Late Shri Kaushal Prasad Dewangan Aged About 63 Years R/o Palash 84, Parshuram Chowk, Rajkishore Nagar, Lingiyadih, Bilaspur, Tahsil And District Bilaspur (C.G.) (Plaintiff). ... Petitioner Versus 1 - Rajkumar Tiwari S/o Ramkhilawan Tiwari Aged About 70 Years R/o Palash 83, Parshuram Chowk, Rajkishore Nagar, Lingiyadih, Bilaspur, Tahsil And District Bilaspur (C.G.) (Defendant) ---- Respondent For Petitioner/ Plaintiff : Shri J.K. Gupta, Advocate. For Respondent/ Defendant : None present though served. Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 27.03.2025 1. Heard on admission. 2. The petitioner has filed this petition against the rejection of an application moved under Order 26 Rule 9 of CPC, dated 22.8.2023, passed in Civil Suit No. 264A of 2022. 3. The facts of the present case are that the plaintiff filed a civil suit for the declaration of title and permanent injunction inter-alia on SMT NIRMALA RAO -2- the ground that he purchased plot No.109 from Bilaspur Development Authority (BDA), admeasuring 1500 sq. ft., whereas, the defendant purchased plot No.110. It is further pleaded that there is a common wall constructed by the BDA between both plots. It is also pleaded that the petitioner raised the construction of a wall over the old wall and the defendant encroached over that wall constructed by the plaintiff. The plaintiff moved an application under Order 26 Rule 9 of CPC for the identification and appointment of a Commissioner, but the learned trial Court rejected it. 4. Learned counsel for the petitioner would submit that there is a dispute with regard to the identity of the wall. He would contend that the plaintiff has claimed in the plaint that the wall belongs to him, whereas the defendant in its written statement has contended that the wall is a common wall constructed by the BDA. He would also submit that looking to the dispute involved in the present case, the learned trial Court ought to have allowed the application. 5. There is no representation on behalf of the respondent/defendant though served. 6. I have heard learned counsel for the parties and perused the documents present on the record. 7. It appears that there is a common wall between plots No.110 & 111. As per the pleading made in the plaint, the plaintiff raised the 3 construction of a wall and the defendant used that wall for the construction of a shed. 8. Order 26 Rule 9 of CPC deals with Commissions to make local investigations and the same is reproduced here-in-below:- “Order XXVI, Rule 9. Commissions to make local investigations.-- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court: Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.” 9. The Hon’ble Supreme Court in the matter of Shreepat Vs. Rajendra Prasad & others reported in JT 2000 (7) SC 379, while dealing with identical facts and situations, remanded the matter back to the trial Court for appointing Survey Commissioner to find out the exact position. In relevant paras it was observed thus:- “3. The principal contention raised by learned Counsel for the Appellant is that though there was a serious dispute with regard to identity of the land in dispute, whether the land in dispute formed part of Khasra No.257/3 or Khasra No.257/1, the Courts below did not get identity established and decreed the suit of the Respondent only on the basis of oral evidence which was not sufficient for the purpose of establishing the identity of the land in dispute at the spot. -4- 4. In our opinion, this contention is correct. Since there was a serious dispute with regard to the area and boundaries of the land in question, especially with regard to its identity, the courts below, before decreeing the suit should have got the identity established by issuing a survey commission to locate the plot in dispute and find out whether it formed part of Khasra No.257/3 or Khasra No.257/1. This having not been done has resulted in serious miscarriage of justice. We consequently allow the appeal, set aside the order passed by the courts below as affirmed by the High Court and remand the case to the trial Court to dispose of the suit afresh in the light of the observations made above and in accordance with law.” Likewise, in the matter of Haryana Waqf Board Vs. Shanti Sarup and others reported in (2008) 8 SCC 671, in para 6, the Hon’ble Supreme Court held as under:- “6. It is also not in dispute that even before the appellate court, the appellant Board had filed an application 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 facts of the present case, whether the Local Commissioner should be appointed for the purpose of demarcation in respect of the suit land.” 10. Recently, in the matter of Ram Lal & Ors. v. Salig Ram & Ors., reported in JT 2019 (2) SC 106, the Hon’ble Supreme Court with regard to the necessity of the appointment of Local Commissioner under Order 26 Rule 9 of the CPC held as under:- 5 “18. In the totality of circumstances, in our view, for just and effectual determination of all the questions involved in the matter, the proper course is of issuing a fresh Commission and for direction to the Trial Court to decide the entire suit afresh on the issues as originally framed as also on the additional issues after taking the report of the Local Commissioner afresh and affording an opportunity to the parties to submit their objections, if any.” 11. A Division Bench of the High Court of Madhya Pradesh in the matter of Durga Prasad Vs. Parveen Foujdar & others reported in 1975 MPLJ 801, held that in the absence of an agreed map, the appointment of a Commissioner is necessary. The relevant para-8 is reproduced as under:- “25. In cases where there is a dispute as to encroachment, the fact whether there is such an encroachment or not cannot be determined in the absence of an agreed map, except by the appointment of a Commissioner under Order 26,Rule 9 of the CPC. ON 15.09.1996 the plaintiff, accordingly, applied for the issue of a commission to the Director of Land Records for a theodolite survey of the plaintiff's leasehold area. The court by its memo dated 11-10-1966 enquired from Director of Land Records whether he was prepared to undertake the work. The Director of Land Records by his memo dated 01-12-1966 signified his willingness. The Collector's memo dated 19-04-1969 shows that on the dates fixed for the purpose, neither the plaintiff nor any person authorized by him was present at the site. For reasons best known to the plaintiff, he did not press the application for commission vide order sheet dated 02-01-1979. The court accordingly, by its memo dated 10-01-1970 recalled the writ of -6- commission issued to the Director of Land Records. The plaintiff,therefore rested his case on the plaint map, Ex.P-1,and his oral evidence. It is needless for us to stress that no finding as to the alleged encroachment can be reached on the oral evidence adduced by the plaintiff. The plaintiff has not examined any witness to prove that he had surveyed the area, and found on actual measurements that the pit EFGH market in the plaint map, Ex.P-1, fell within his leasehold area.” 12. Taking into consideration the facts of the present case, the dispute involved, and the provisions of Order 26 Rule 9 of CPC, the order passed by the learned trial Court dated 22.8.2023 is hereby set aside, and the application moved under Order 26 Rule 9 of CPC is hereby allowed. The learned trial Court is directed to take the necessary steps. 13. With the aforesaid observation(s), the petition is disposed of at the admission stage itself. Sd/- (Rakesh Mohan Pandey) Judge Nimmi