1 2025:CGHC:65 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 1184 of 2024  Harikumar S/o Late Budhram Aged About 62 Years Caste - Satnami, R/o Sonbarsa, Tahsil - Baloda, District Janjgir-Champa Chhattisgarh ... Petitioner(s) versus 1. Grahan Kumar S/o Timan Lal Aged About 60 Years Caste - Satnami, R/o Sonbarsa, Tahsil - Baloda, District Janjgir-Champa Chhattisgarh 2. Bhabhutram S/o Kholbahra Aged About 58 Years Caste - Satnami, R/o Sonbarsa, Tahsil - Baloda, District Janjgir-Champa Chhattisgarh 3. Bhagatram S/o Kholbahra Aged About 50 Years Caste - Satnami, R/o Sonbarsa, Tahsil - Baloda, District Janjgir-Champa Chhattisgarh 4. Bhagwat Bai D/o Kholbahra Aged About 69 Years Caste - Satnami, R/o Sonbarsa, Tahsil - Baloda, District Janjgir-Champa Chhattisgarh At Present R/o Nawapara (Levai), Tahsil - Baloda, District Janjgir-Champa Chhattisgarh 5. Bhagmati D/o Kholbahra Aged About 66 Years Caste - Satnami, R/o Sonbarsa, Tahsil - Baloda, District Janjgir-Champa Chhattisgarh, At Present R/o Kotmisonar, Tahsil - Akaltara, District Janjgir-Champa Chhattisgarh 6. Gend Bai D/o Kholbahra Aged About 63 Years Caste - Satnami, R/o Sonbarsa, Tahsil - Baloda, District Janjgir-Champa Chhattisgarh, At Present R/o Aurai, Tahsil - Baloda, District Janjgir-Champa Chhattisgarh 7. Suraj Bai D/o Kholbahra Aged About 53 Years Caste - Satnami, R/o Sonbarsa, Tahsil - Baloda, District Janjgir-Champa Chhattisgarh, At Present R/o Akhrapali, Tahsil - Korba, District Korba Chhattisgarh 8. Siri Bai D/o Kholbahra Aged About 55 Years Caste - Satnami, R/o Sonbarsa, Tahsil - Baloda, District Janjgir-Champa Chhattisgarh, At Present R/o Kotmisonar, Tahsil - Akaltara, District Janjgir-Champa Chhattisgarh 9. Angan Bai D/o Ramdayal Aged About 57 Years Caste - Satnami, R/o Sonbarsa, Tahsil - Baloda, District Janjgir-Champa Chhattisgarh, At Present R/o Tarda, Tahsil And District Korba Chhattisgarh 2 10. Krishno Bai D/o Ramdayal Aged About 50 Years Caste - Satnami, R/o Sonbarsa, Tahsil - Baloda, District Janjgir-Champa Chhattisgarh, At Present R/o Chhuihapara, Tahsil - Pali, District Korba Chhattisgarh 11. State Of Chhattisgarh Through The Collector, Janjgir, District Janjgir- Champa Chhattisgarh ... Respondent(s) (Cause Title is taken from Case Information System) For Petitioner : Mr. Krishna Kumar Dewangan, Advocate For State : Mr. Shubham Bajpayee, Panel Lawyer Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 02 .01.2025 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 record of the case for perusal of this Hon'ble Court. 10.2 That this Hon'ble Court may kindly be pleased to set-aside the impugned order dated 07.12.2024 (Annexure P/1) and further be pleased to reject the application under Order 26 Rule 9 of CPC filed by the respondent no. 1. 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.” 2. Learned counsel appearing for the petitioner would submit that the plaintiff/petitioner filed a Civil Suit for declaration of title and permanent injunction pertaining to survey No. 175/2 admeasuring 0.27 acres situated at Village Sonbarsa, Patwari Circle No. 29, Tahsil Baloda, District Janjgir- Champa on the basis of a registered sale-deed dated 05.05.2011. The defendants are the owners of adjacent agricultural lands. He further submits that earlier an application under Order 26 Rule 9 of CPC was moved by defendant No. 2 pertaining to demarcation of survey No. 175 on the ground that it is his ancestral property and the same has been divided 3 in many plots. It was also stated in the application that survey No. 175/5 admeasuring 0.10 acre is the property of defendant No. 1 but the plaintiff/petitioner has encroached over it. The learned trial Court vide order dated 22.11.2024 rejected the application. It is further contended that another application under Order 26 Rule 9 of CPC was moved by defendant No. 1 on 03.12.2024 seeking similar relief. It is also contended that the learned trial Court allowed the application vide order dated 07.12.2024. It is stated that the subsequent application was not maintainable. 3. On the other hand, Mr. Shubham Bajpayee, Panel Lawyer appearing for the State would oppose. He would submit that to resolve the dispute with regard to the identification of boundary marks, the learned trial Court has rightly allowed the application. 4. I have heard learned counsel for the parties and perused the documents placed on record. 5. Earlier, an application under Order 26 Rule 9 of CPC was moved for demarcation of survey No. 175 by defendant No. 2 and the same was rejected by the trial Court vide order dated 22.11.2024. Defendant No. 1 moved an application for demarcation of survey No. 175/5 inter alia on the ground that land bearing survey No. 175/5 has been encroached by the plaintiff/petitioner. 6. Order 26 Rule 9 of CPC deals with Commissions to make local investigations. 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 4 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.” 7. 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, it may issue a commission. 8. In the present case, there is a dispute regarding boundary marks. As alleged by defendant No. 1 his land bearing survey No. 175/5 admeasuring 0.10 acres has been encroached by the plaintiff/petitioner and the factum of encroachment can be ascertained through demarcation alone. Though an application moved by defendant No. 2 under Order 26 Rule 9 of CPC was rejected by the learned trial Court vide dated 22.11.2024 and in the opinion of this Court, it was rightly rejected, as defendant No. 2 was not the owner of survey No. 175/5, whereas, the subsequent application was moved by defendant No. 1 himself, who is the owner of survey No. 175/5, therefore, it was maintainable. A perusal of plaint averments, written statement and contents of the application filed under Order 26 Rule 9 of CPC would show that there is a boundary dispute between the parties and to elucidate the same, the demarcation is necessary and the learned Court below rightly allowed the application. Thus, in the opinion of this Court, no case is made out for interference, accordingly, this petition fails and is hereby dismissed. No order as to cost(s). Sd/- Sd/- (Rakesh Mohan Pandey) Judge $iddhant