1 2026:CGHC:306 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 321 of 2023 1 - Rakesh Kumar Soni S/o Shri Sohan Lal Soni, Aged About 45 Years R/o Fazal Bada, Gandhi Nagar, Ward, Juna Bilaspur, Tahsil And District Bilaspur Chhattisgarh. 2 - Sohanlal Soni, S/o Shri Ganjodhar Prasad Soni Aged About 67 Years R/o Fazal Bada, Gandhi Nagar, Ward, Juna Bilaspur, Tahsil And District Bilaspur Chhattisgarh. ... Appellants versus Smt. Pushpa Verma W/o Shri Rajendra Prasad Verma, Aged About 70 Years R/o Vaishnavi Vihar Road, Uslapur, Tahsil Takhatpur, District : Bilaspur, Chhattisgarh ---- Respondent For Appellants : Mr. C.K. Pandey, Advocate For Respondent/State : Mr. B.P. Sharma, with Mr. K.N. Singh and Mr. M.L. Sakat, Advocates Hon'ble Shri Bibhu Datta Guru, Judge Judgment on Board 05.01.2026 1. The appellants/defendants preferred the instant appeal against the impugned judgment and decree dated 03/05/2023 passed by the First Additional District Judge, Bilaspur in Civil Appeal No.58- A/2022(Smt. Pushpa Verma Vs. Rakesh Kumar Soni & Another), AMARDEEP CHOUBEY Digitally signed by AMARDEEP CHOUBEY Date: 2026.01.06 11:26:09 +0530 2 arising out of the judgment and decree dated 06/08/2022 passed by the Third Civil Judge Class-II Bilaspur, in Civil Suit No.207- A/2017 ( Smt. Pushpa Verma Vs. Rakesh Kumar Soni & Another). For the sake of convenience, the parties would be referred as per their status before the trial Court. 2. (a) The plaintiff preferred a suit pleading, inter alia, that earlier the suit land was transferred to one Mitrabhan Gupta by Smt. Godavari Bai through a registered sale deed dated 22.08.1986. Thereafter, the plaintiff purchased the disputed land from Mitrabhan Gupta through a registered sale deed dated 28.08.2005. Before purchasing the disputed property, the plaintiff had it surveyed, which revealed that a small portion of the land had a temporary hut that had been removed by the seller himself prior to execution of sale deed. In 2007, the defendant No.2 collected construction materials on the disputed land to unlawfully assert possession. Thus, the plaintiff filed a case in the Court Tehsildar bearing Revenue case No.14/A-70/2006-07 (Pushpa Verma vs. Sohan Soni), which was allowed by order dated 20.07.2007. Since then, the plaintiff has been in peaceful possession of the property. In 2016, the defendants forcibly occupied the disputed property and attempted to collect property tax. The plaintiff submitted an application under Section 250 of the Chhattisgarh Land Revenue Code, 1959, in the Court of Tehsildar, which was registered as case No.23/A-30/2015-16, which was dismissed by order dated 28.05.2016 on the ground 3 that the court did not have the authority to deploy police forces. Against the said order, the plaintiff filed an appeal before the SDO, which was dismissed on 27.10.2016. Thereafter, the plaintiff preferred the suit. (b) The defendants submitted their written statement and denied the plaint averments. They contended that the application submitted by the plaintiff was dismissed by the Tehsildar because it was filed without following the mandatory procedural provisions and the court did not have the authority to provide police assistance. After the plaintiff’s appeal was dismissed by the SDO, the plaintiff did not take any further action and as such the same has attained finality. The defendants have been continuously using their land, identified as Khasra No. 277, after evicting tenants from temporary houses constructed by others. The defendants are in possession of Khasra No. 277, whereas the plaintiff’s suit relates to land in Khasra No. 276/2. The defendants have further stated that Sohan Lal Soni, his son Rakesh Soni, Umesh, and other family members are in possession of 1,275 sq. ft. of land under Khasra No. 277/1. Sohan Lal had purchased this land from Ram Kanwat through a sale deed dated 09.08.1996, and since then, the ownership and possession have been with the defendants, with Sohan Lal’s name recorded in the revenue records. In the order dated 28.05.2016, the Tehsildar noted that prior to filing the application under Section 250 of the Chhattisgarh Land Revenue Code, the mandatory procedural 4 requirement of survey/demarcation under Section 250 was not followed. The plaintiff has not specified when and what portion of the land the defendants occupied. The Sub-Divisional Officer upheld the Tehsildar’s order on appeal. (C) After hearing the parties, the learned trial Court framed the issues and partly decreed the suit holding that the plaintiff has no right to take possession of the suit land after removing the construction portion made by the defendants. However, it observed that the plaintiff is the owner of land bearing Khasra No.276/2, rakba 0.008 hectare, sheet No.1260 area 792 sq.ft. situated at P.H. No.22 village Juna Bilaspur, R.I. Circle, Bilaspur. (D) Against the said impugned judgment and decree passed by the trial Court, the plaintiff filed the First Appeal under Section 96 of CPC before the first Appellate Court, which was allowed by the impugned judgment and decree and hence, the present appeal filed by the defendants. 3. During pendency of this appeal, the plaintiff moved an application (I.A. No.2/2024) on 13/02/2024 under Order 26 Rule 9 read with Section 151 of the CPC for appointment of local Commissioner and for submission of his report regarding the possession over the land bearing Khasra No.276/2 area 0.02 acre. In the said application, the plaintiff contended that the dispute between the parties is only with regard to their possession over the suit property and as such there is no bar for appointment of local 5 Commissioner. 4. Albeit, learned counsel appearing for the defendants was granted time by order dated 16.2.2024 to argue on the application (IA No.2/2024) filed by the plaintiff under Order 26 Rule 9 read with Section 151 of CPC, today he has not opposed the said application. 5. I have heard learned counsel for the parties and perused the material available on record. 6. It is noteworthy to mention here that the High Court should not generally decide an application under Order 26 Rule 9 of the CPC itself & interfere with the fact found by learned trial Court, but rather direct the trial Court to decide it, as the power to appoint a Commissioner rests with the trial Court for elucidating the disputed facts and handling evidence is primarily its function. 7. The plaintiff moved the application under Order 26 Rule 9 CPC in the instant Second Appeal filed by the defendants. It is not in dispute that the dispute involved in the present appeal is regarding demarcation of the suit land. The plaintiff and the defendants fairly acceded the fact that if proper demarcation of the suit land will be made, the dispute in question will be sort out. 8. Having considered the entire facts and circumstances of the case; also looking to the nature of dispute and the facts of the present case; further considering the law laid down by the Supreme Court in the matter of Haryana Waqf Board Vs. Shanti 6 Sarup and Others reported in (2008) 8 SCC 671, the impugned judgment and decree dated 03/05/2023 passed by the First Additional District Judge, Bilaspur in Civil Appeal No.58-A/2022 (Smt. Pushpa Verma Vs. Rakesh Kumar Soni & Another) is set aside and the matter is remitted back to the trial Court with an observation that if the plaintiff moved an application under Order 26 Rule 9 read with Section 151 of CPC, within a period of 30 days from the date of this judgment, after affording due opportunity of hearing to both the parties, the trial Court shall pass necessary orders to appoint a Commissioner for a local investigation to clarify matters in dispute i.e. identification of land in question and proceed to decide the suit in accordance with law on its own merits by considering the demarcation report/Commissioner report. 9. Accordingly, the present appeal is disposed of. 10. It is made clear that this Court has not expressed any opinion on the merits of the case. SD/- (Bibhu Datta Guru) Judge Gowri/Amardeep