1 2025:CGHC:4212 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP(227) No. 819 of 2022 1. Pardeshi Sahu S/o Late Dular Sahu Aged About 75 Years R/o Sahu Para, Dhamdha, District : Durg, Chhattisgarh 2. Bideshi S/o Late Dular Sahu Aged About 73 Years R/o Sahu Para, Dhamdha, District : Durg, Chhattisgarh 3. Khemchand Jain S/o Jabarchan Jain Aged About 77 Years R/o Hatri Bazar, Dhamdha, District : Durg, Chhattisgarh ... Petitioners/Defendants Versus 1. Sukharu Prasad Tamrakar S/o Late Raruha Prasad Tamrakar Aged About 75 Years R/o Sahu Para, Dhamdha, District : Durg, Chhattisgarh-----Plaintiff 2. State Of Chhattisgrh Through Collector Durg, District : Durg, Chhattisgarh ... Respondents For Petitioners/ Defendants : Mr. H.B. Agrawal, Senior Advocate with Ms. Sandhya Rao, Advocate for the petitioners For Respondents No.1/ Plaintiff For Respondent No. 2 : : Mr. B.P. Sharma, Advocate Mr. Sanjeev Kumar Agrawal, Panel Lawyer Hon’ble Shri Justice Rakesh Mohan Pandey Order on Board 23/01/2025 1. The petitioners have challenged the order passed by the learned Vth Civil Judge, Class-II, Durg, District Durg (C.G.) in Civil Suit No. A/123/2019 dated 02.11.2022, whereby an application moved by the plaintiff under Order 26 Rule 9 of CPC has been allowed pertaining to Survey No. 864/2, situated at Village Tamer Para Dhamdha, Tehsil Dhamdha, District Durg. 2. The plaintiff filed a suit for declaration of title and permanent injunction, inter alia on the ground that Survey No. 864/2 admeasuring 0.06 acre Digitally signed by RAMESH KUMAR VATTI 2 was purchased through a registered sale deed dated 17.09.1975 from one Parasram. It is further pleaded that the plaintiff was in possession of the suit property, but defendants No. 1 to 3 have encroached over the suit land. Looking to the controversy involved in the case, the plaintiff moved an application under Order 26 Rule 9 of CPC for identification of the suit land. The application moved by the plaintiff was allowed by the learned trial court vide impugned order and the same has been challenged in the present petition. 3. Mr. H. B. Agrawal, learned Senior Advocate appearing for the petitioners/defendants would argue that in evidence, the plaintiff has admitted the fact that Survey No. 864/2 was renumbered as 1006 and defendants No. 1 to 3 are not in possession over any part of Survey No. 864/2 or 1006. He would further submit that a perusal of the demarcation report would show that there is no dispute with regard to the identity of Survey Nos. 1006 and 1172. He would contend that there was no need for the learned trial Court to allow the application moved by the plaintiff under Order 26 Rule 9 of CPC. Mr. H.B. Agrawal, learned Senior Advocate would submit that the plaintiff is trying to collect evidence through Court by filing such an application. In support of his arguments, he placed reliance on the judgment passed by the Madhya Pradesh High Court in the matter of Bansal Construction Works Private Limited Vs. Sameer Kukreja, 2018 (3) HCCD 1211 (MP). 4. On the other hand, Mr. B.P. Sharma, learned counsel appearing for the plaintiff/respondent No. 1 would submit that there was a dispute with regard to the identity of Survey No. 864/2, new Survey No. 1006 and Survey No. 1172 and, therefore, an application was moved under 3 Order 26 Rule 9 of CPC. He would further submit that the learned trial Court after taking into consideration the material available on record and submissions advanced by the parties, allowed the application. He would also submit that there is no interim order in favour of the defendants/petitioners as the demarcation report has already been placed on record before the Court below. 5. Mr. Sanjeev Kumar Agrawal, learned Panel Lawyer appearing for the State/respondent No. 2 would support the submissions made by Mr. B.P. Sharma. 6. I have heard learned counsel for the parties and perused the documents. 7. Admittedly, the learned trial Court after appreciating the submissions made by the parties, allowed the application moved by the plaintiff under Order 26 Rule 9 of CPC. 8. The law in this regard is no more res integra. The Hon’ble Supreme in the matter of Haryana Waqf Board Vs. 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. In Anurag Jaiswal Vs. Collector, Khandwa and others, 2019 (2) M.P.L.J. 637, it has been held in paras 12 & 13 as under:- “12. In the considered opinion of this Court, ' for the purpose of elucidating facts in respect of any matter in 4 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 Cvil 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 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 encroahment. [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.” (Emphasis Supplied)” 10. In Mahendranath Parida Vs. Purnanandra Parida and others, AIR 1988 Ori 248, the High Court of Orissa has held as under:- 5 “Where the controversy between the parties is the area of the land or identification or location of an object or the land, local investigation is necessary, essential, requisite or proper. It will not be a sound exercise of discretion without anything more to decline to appoint a commissioner. Very often decision of a case turns on the identification or determination of the area and evidence in relation thereto from its peculiar nature can only be had on the spot. (See Amulya Kumar Samaddar v. Ananda Charan Das, AIR 1933 Cal 475 and in P. Moosa Kutty, AIR 1953 Mad 717). In such respect thereof can be laid by engaging a person qualified to conduct the investigation and measurement privately. But there are some difficulties. While doing the survey, the person has to take measurements from various points. In course of such investigation it may be necessary for him to enter upon land and premises of the other party and he may be resisted by the latter, whereas neither of the parties can resist the commissioner appointed by the Court from carrying out the writ, I am, therefore, of the view that where local investigation is considered necessary/Court should not ordinarily refuse to appoint a commissioner for the purpose of elucidating any matter in dispute between the parties.” 11. A perusal of the order passed by the learned trial Court would show that there is some dispute with regard to the identity of Survey Nos. 864/2 and 1172 and there is a specific allegation in the plaint to the effect that defendants No. 1 to 3 have encroached over Survey No. 864/2, therefore, in the opinion of this Court, the learned trial Court rightly allowed the application to elucidate the position and the status of the parties. 12. Consequently, the petition fails and is hereby dismissed. No cost(s). Sd/- (Rakesh Mohan Pandey) Judge vatti