1 2025:CGHC:16321 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 53 of 2025  Parasram Yadav S/o Balesar Yadav Aged About 61 Years Resident Of Village- Padampur Road, Saraipali, P.S. And Tahsil- Saraipali, District- Mahasamund (Chhattisgarh) ... Petitioner(s) versus 1. Secretary Krishi Upaj Mandi Samiti, Saraipali, District- Mahasamund (Chhattisgarh) 2. State Of Chhattisgarh Through The Collector, District- Mahasamund (Chhattisgarh) ... Respondent(s) (Cause Title is taken from Case Information System) For Petitioner : Mr. Gaurav Singhal, Advocate For Respondent No. 1 : Mr. Navoday Singh, Advocate For State/Respondent No. 2 : Mr. Shubham Bajpayee, Panel Lawyer Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 07. 04.2025 1. By way of this petition, the petitioner has sought the following relief(s):- “10.1 That this Hon’ble Court may kindly be pleased to call the entire records pertaining to case of petitioner. 10.2 That, this Hon’ble Court may kindly be pleased to set-aside the impugned order dated 11.12.2024 (Annexure P/1) and further be pleased to allow the application under Order 26 Rule 9 read with section 151 of CPC. 10.3 That, any other relief/order which may deem fit and just in the facts and circumstances of the case including award of the costs of the petition may be given.” SIDDHANT TAMRAKAR Digitally signed by SIDDHANT TAMRAKAR Date: 2025.04.08 14:35:10 +0530 2 2. The plaintiff/petitioner filed a suit for declaration of title and permanent injunction in respect of the land bearing survey No. 779, admeasuring 2.473 hectares situated at village Saraipali, Ward No. 11, Tahsil Saraipali, District Mahasamund inter alia on the ground that defendant No. 1 encroached over 0.03 hectare of land out of 2.47 hectares. The Civil Suit filed by the plaintiff was dismissed vide order dated 20.12.2021, and thereafter, the petitioner/plaintiff preferred an appeal before the learned District Judge, Mahasamund. During the pendency of the Civil Appeal, the petitioner moved an application under Order 26 Rule 9 of CPC for the appointment of a Commissioner. Respondent No. 1 filed a reply to the said application and denied its contents. 3. The learned appellate Court vide order dated 11.12.2024 rejected the application on the ground that the application was not moved before the learned trial Court in this regard. 4. Mr. Gaurav Singhal, counsel appearing for the petitioner would submit that an application under Order 26 Rule 9 of CPC can be moved at the appellate stage. In support thereof, he placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of Haryana Waqf Board vs. Shanti Sarup & others reported in (2008) 8 SCC 671. 5. On the other hand, learned counsel appearing for respondent No. 1 would oppose. Mr. Navoday Singh would submit that no steps were taken by the plaintiff before the learned trial Court for the appointment of a Commissioner and for the first time, such an application was moved at the appellate stage. He would further submit that there is no dispute with regard to the identification of the boundaries, therefore, the learned appellate Court rightly rejected such application. 6. Mr. Shubham Bajpayee, Panel Lawyer appearing for the State would 3 support the contention made by Mr. Navoday Singh. 7. I have heard learned counsel appearing for the parties and perused the documents placed on the record. 8. The Hon’ble Supreme Court in the matter of Shanti Sarup (supra) while dealing with a similar issue in para 4 & 6 held as under:- “4. Admittedly, in this case, an application was filed under Order 26 Rule 9 of the Code of Civil Procedure which was rejected by the trial court but in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the court to direct the investigation by appointing a Local Commissioner under Order 26 Rule 9 of the CPC. 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. In the present case, there is a dispute with regard to the boundaries as the petitioner/plaintiff has made an allegation in the plaint that respondent No. 1/defendant No. 1 has encroached over 0.03 hectare of land of the petitioner. 10. 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 4 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.” 11. A bare reading of this provision would make it clear that if 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, may issue a commission. 12. Taking into consideration the law laid down by the Hon’ble Supreme Court in the matter of Shanti Sarup (supra) and the provisions of Order 26 Rule 9 of CPC, in the opinion of this Court, the learned appellate Court committed an error of law while rejecting the application moved by the plaintiff/petitioner under Order 26 Rule 9 of CPC. Consequently, the order dated 11.12.2024 is hereby set-aside. The application moved by the petitioner/plaintiff under Order 26 Rule 9 of CPC is hereby allowed. The learned appellate Court is directed to take appropriate steps. Sd/- (Rakesh Mohan Pandey) Judge $iddhant