1 2025:CGHC:45989 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 1009 of 2024 Sheik Mohd. Shamim S/o Late Hafiz Mohd. Aged About 60 Years R/o Subhash Ward Mungeli, Tahsil And District-Mungeli (C.G.) ----(Plaintiff No.1) ... Petitioner versus 1 - Sampat Das, S/o Tungan, Aged About 60 Years R/o Village- Dasrangpur, Tahsil Mungeli, District-Mungeli (C.G.) -----(Defendant No.1). 2 - Santulal S/o Taturam, Aged About 40 Years R/o Shaktimai Chowk, Pandariya Road Mungeli, Tahsil Mungeli, District-Mungeli (C.G.) ------- (Defendant No.2). 3 - Sheik Mohd. Kalim S/o Late Hafiz Mohd., R/o Mungeli, Tahsil And District- Mungeli (C.G.) -------(Plaintiff No.2). 4 - Sheik Mohd. Nadeem S/o Late Hafiz Mohd., R/o Mungeli, Tahsil And District- Mungeli (C.G.) -------(Plaintiff No.3). 5 - Sheik Mohd. Alim S/o Late Hafiz Mohd. R/o Mungeli, Tahsil And District- Mungeli (C.G.) -----(Plaintiff No.4). 6 - State Of C.G., Through- Collector Mungeli, District-Mungeli (C.G.) ------- (Defendant No.3). ... Respondent(s) 2 For Petitioner : Ms. Anushree Mishra, Advocate For State : Mr. Sanjeev Agrawal, Panel Lawyer Hon’ble Shri Justice Rakesh Mohan Pandey Order on Board 09/09/2025 1. The petitioner has filed the present writ petition challenging the order dated 30.09.2024 passed in Civil Suit No.147A/2014, whereby the application preferred by plaintiff No.1 under Order XXVI Rule 9 CPC for appointment of local commissioner has been rejected. 2. Brief facts of the present case are that the plaintiff has filed a civil suit for declaration of title, permanent injunction and possession with respect to the suit land bearing Survey No. 242/2, admeasuring 1.65 acre and 242/3, admeasuring 2.15 acre, situated at Village Bundeli, Patwari Circle No. 16, Tehsil and District Mungeli. The defendants filed their written statement. It is pleaded in paragraph 9 of the plaint that defendants No.1 and 2 are trying to interfere with the possession over Survey No. 242/2 & 242/3. In order to clarify the factual position regarding the identity and possession of the land, the petitioner/plaintiff No.1 moved an application under Order XXVI Rule 9 CPC seeking appointment of a Commissioner for local investigation. However, the trial Court, vide impugned order dated 30.09.2024, rejected the said application, which is under challenge. 3 3. Learned counsel would contend that the trial Court has failed to consider that a dispute as to identification, demarcation, and possession of the suit land can appropriately be resolved through a local investigation by a Commissioner. It is further submitted that rejection of the application under Order XXVI Rule 9 of the CPC causes serious prejudice to the petitioner’s defence. 4. On the other hand, learned counsel appearing for the respondent/plaintiff opposes the submission made by counsel for the petitioner and supports the order passed by the trial Court. 5. I have heard learned counsel for the parties and perused the documents placed on file. 6. It is not in dispute that the plaintiff has filed a suit for declaration, injunction, and possession regarding Survey No. 242/2 & 242/3. In paragraph 9 of the plaint, the plaintiff has alleged interference with possession over Survey No. Survey No. 242/2 & 242/3. Thus, the pleadings of the parties reveal a clear dispute regarding the identity and possession of the suit land. 7. In the present case, the dispute revolves around identification and possession of Survey No. 242/2 & 242/3. Therefore, local investigation would assist the trial Court in ascertaining the factual position and would not prejudice either party, as validity of report of the Commissioner can be questioned by either party. 4 8. The Hon'ble Supreme Court in the matter of Haryana Waqf Board v.. Shanti Sarup and Others, (2008) 8 SCC 671 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 facts of the present case, whether the Local Commissioner should be appointed for the purpose of demarcation in respect of the suit land.” 9. Taking into consideration the law with regard to the appointment of a Commissioner, the dispute involved in the present case, and the pleadings made by the plaintiff in the plaint, the learned trial Court committed an error of law in rejecting the application moved by the petitioner under Order 26 Rule 9 of CPC. 10.Taking into consideration the above discussed facts, the impugned order dated 30.09.2024, is hereby set-aside. Accordingly, the writ petition is allowed. The application filed by the petitioner/plaintiff No.1 under Order XXVI Rule 9 CPC stands allowed. 11.The trial Court is directed to appoint a Commissioner to conduct local investigation for proper adjudication of the dispute, in accordance with law. No order as to costs. Sd/- Rakesh Mohan Pandey JUDGE Nadim