1 2025:CGHC:12026 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 122 of 2025 1 - Jagpreet Singh Luthra S/o Harvinder Singh Luthra Aged About 47 Years R/o Kadambri Nagar, Durg, Tehsil And District Durg, Chhattisgarh. (Plaintiff Before Trial Court) ... Petitioner versus 1 - Jujhar Singh S/o Charan Singh Aged About 75 Years R/o Deshalhara Nagar, Near Sindhi Colony, Station Road, Durg, Tehsil And District Durg, Chhattisgarh. (Defendant No. 1 Before Trial Court) 2 - State Of Chhattisgarh Through Collector, District Durg, Chhattisgarh. (Defendant No. 2 Before Trial Court) ---- Respondents ------------------------------------------------------------------------------------------ For Petitioner : Mr. Shalvik Tiwari, Advocate. For Respondent No.1 : Mr. P.R. Patankar, Advocate. For Respondent No.2/State : Mr. Vedant Shadangi, P.L. ------------------------------------------------------------------------------------------ Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 11.03.2025 1. The plaintiff/petitioner has filed this petition challenging the order passed by the learned IIIrd Civil Judge, Junior Division, Durg in Civil Suit No.207A of 2024, whereby an application moved by the petitioner under Order 26 Rule 9 of CPC has been rejected. 2. Learned counsel for the petitioner/plaintiff would argue that a civil suit was filed by the plaintiff for the declaration of title and SMT NIRMALA RAO -2- demolition of the illegal construction raised by defendant No.1 over the land belonging to the petitioner. He would contend that during the pendency of the civil suit, an application was moved under Order 26 Rule 9 of CPC for the appointment of a Commissioner, which was rejected by the learned trial Court on the ground that the application had been moved to collect the evidence through the Court. He would also submit that as there is a dispute with regard to the identity of the land, the learned Court below ought to have allowed the application. 3. On the other hand, learned counsel for respondent No.1 would oppose the submissions made by counsel for the petitioner. He would submit that initially an application under Order 39 Rules 1 & 2 of CPC was moved but the same was rejected by the learned trial Court vide order dated 15.10.2024. He would further submit that a complaint was made before the Tehsildar, a report was submitted by the Patwari and no encroachment was detected by the Patwari over the land of the plaintiff. He would contend that the construction has already been completed by respondent No.1/defendant No.1. He would also submit that the petitioner/plaintiff has filed this petition with the intent to collect the evidence to prove his right over the property of defendant No.1. He would also contend that the learned trial Court has rightly rejected the application moved by the plaintiff under Order 26 Rule 9 of CPC. 4. Learned State counsel would support the order passed by the learned trial Court. 3 5. Heard learned counsel for the parties and perused the documents present on the record. 6. The plaintiff/petitioner filed a civil suit for the demolition of the illegal construction raised by defendant No.1 over the land of the petitioner. Thus, it is quite vivid that there is a dispute with regard to the identity of land. An application under Order 39 Rules 1 & 2 of CPC was moved but the same was rejected by the learned trial Court. Thereafter, the petitioner moved an application under Order 26 Rule 9 of CPC for the appointment of a Commissioner and the learned trial Court rejected it on the ground that the petitioner has moved the application to collect the evidence. 7. The Hon'ble Supreme Court 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.” 8. 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. Consequently, the petition -4- is allowed and the order passed by the learned trial Court dated 15.10.2024 is hereby quashed. The application moved by the petitioner under Order 26 Rule 9 of CPC is allowed and the learned trial Court is directed to take appropriate steps accordingly. Sd/- (Rakesh Mohan Pandey) Judge Nimmi