Page No.# 1/9 GAHC010077362025 2026:GAU-AS:11234 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/136/2025 MUKUT CHANDRA DAS S/O- LT. GOBINDA CHANDRA DAS, R/O-MADHAB DEV PATH, NORTH HAIBARGAON, P.S- SADAR, MOUZA -TOWN, DIST- NAGAON VERSUS DHARMESWAR BORAH S/O- LATE HALIRAM BORAH, R/O- KALPATARU COLONY, SENCHOWA, MOUZA- KACHAMARI, P.S- SADAR, DIST- NAGAON, ASSAM Advocate for the Petitioner : MR. B D DEKA, MR A DEKA,MR A BHATRA,N CHAUDHURY,MR. M DAS Advocate for the Respondent : MR. A C SARMA, MR B DEORI,MR G BHARADWAJ BEFORE HON’BLE MRS. JUSTICE YARENJUNGLA LONGKUMER ORDER 07/08/2026 The instant application under Article 227 of the Constitution of India has been filed by the petitioner, assailing the order dated 17.02.2025, passed by the learned Civil Judge (Junior Division) No. 2, Nagaon, in Title Suit No. 137/2017, whereby the prayer of the petitioner for appointing a Commission was rejected. Page No.# 2/9 2. Heard Mr. B.D.Deka, learned counsel for the petitioner and Mr. A.C.Sarma, learned Senior counsel assisted by Mr. J Bharadwaj, learned counsel for the sole respondent/plaintiff. 3. The case of the petitioner, herein, is that the respondent as plaintiff, had filed the Title Suit, being Title Suit No. 137/2017, which is pending before the Court of Civil Judge (Junior Division) No. 2, Nagaon. The Title Suit was preferred by the plaintiff/respondent, praying for declaration of right, title and interest over the suit land at Schedule-A and also for a decree for recovery of possession by evicting the defendant and demolishing the constructions made by the defendant in respect of Schedule-B land. 4. It is also stated that the plaintiff/respondent in his plaint had stated that he had bought the suit land through a registered sale deed dated 22.05.1992. It was stated in the plaint that in the schedule of the sale deed, the boundary has been wrongly described and actually the road should have been on the Eastern side and so the boundary should have been in: North- vendor’s land, South- Lakheswar Borah, Paheswari Bora East- road, and in the West- vendor’s land. It was further alleged in the plaint that the defendant/petitioner had illegally encroached about 6 ft. into the plaintiff’s land by removing the boundary pillars in the front side and constructing a boundary wall over the plaintiff’s land. Page No.# 3/9 5. The petitioner, herein, as defendant had also filed his written statement, contending that he had purchased his land from the original owner, Sri Sishu Ram Das, since deceased, who had sold out 3 kathas 6 lechas of land to the petitioner vide registered sale deed dated 05.07.1993, with the boundary described in the sale deed, i.e.: North-Lilabora Path, South-Liladhar Das, East-Plaintiff Dharmeswar Borah and West-Bhubaneswar Bora and Khagen Das. 6. The petitioner/defendant also stated in the written statement that he had purchased another 3 kathas of land in the Northern side of the earlier purchased land from another two persons and further, another 1 katha of land from a different person and therefore, he became the owner and possessor of 7 kathas 6 lechas of land and he got his name mutated over the said properties. 7. It was stated that in the W/S that both the Eastern and Western boundaries of the plaintiff’s land touches the land of the petitioner. After selling a portion of his land, he now enjoys and possesses the remaining land of 4 kathas 8 lechas. It was denied that the petitioner had encroached any land of the plaintiff. 8. After the issues were framed and evidence was adduced, the petitioner, herein, preferred an application before the learned Trial Court registered as Petition No. 3011/2024, praying for issuance of a survey commission for the purpose of ascertaining the fact of encroachment by the petitioner/defendant. Page No.# 4/9 The respondent/plaintiff objected to the said petition on the ground that the provisions of Order XXVI Rule 1 of the CPC was not attracted and that there was no ground for issuance of a Commission when the identity of the suit land has been clearly mentioned in the plaint. 9. After hearing the parties, the learned Civil Judge (Junior Division) No. 2, Nagaon, vide the impugned order dated 17.02.2025, rejected the prayer of the petitioner by observing that a local commission was not required for the purpose of elucidating the matter in the dispute in the suit. 10. Being aggrieved, the petitioner is before this Court on the following grounds: (a) The learned Court below failed to exercise jurisdiction vested in it by not considering the fact that the Title Suit involved issues pertaining to boundary dispute and encroachment and as such, a commission ought to have been issued in order to ascertain the actual state of affairs. (b) That the learned Trial Court ignored a vital aspect of the matter that the plaintiff himself claimed in his plaint that the schedule in his sale deed was incorrect and hence, it would have been impossible for the Trial Court to determine the correct boundaries from the sale deed and the schedule. As such, it was imperative that an inspection on the ground had to be made by resorting to Order XXVI Rule 9 of the CPC. (c) That the parties had placed reliance on maps which were not drawn to scale and there were serious disputes regarding the Page No.# 5/9 dimensions of the suit land. Hence, the findings of the Trial Court that no elucidation was required was baseless and erroneous. 11. Learned counsel, therefore, prays that the impugned order may be quashed and set aside and the Trial Court may be directed to allow the application of the petitioner/defendant filed under Order XXVI Rule 9 read with Section 151 of the CPC. 12. The learned counsel for the petitioner, in support of his submissions, relies on the cases of (i) Haryana Waqf Board Vs. Shanti Sarup and Others, reported in (2008) 8 SCC 671, (ii) Anurag Jaiswal Vs. Collector, Khandwa and Others, reported in 2018 SCC OnLine MP 699 and (iii) Subhaga and Others Vs. Shobha and Others, reported in (2006) 5 SCC 466. 13. On the other hand, Learned Senior counsel for the respondent/plaintiff has objected to the prayer of the petitioner on the ground that the petition under Order XXVI Rule 9 CPC has been filed at a belated stage. He submits that the issues have already been framed and evidence has been adduced and the title suit is now at the stage of arguments. He also submits that he has filed the Title Suit No. 137/2017, praying for right, title and interest over the Schedule-A land and also for recovery of possession of the Schedule-B land, by evicting the defendant/petitioner and by demolishing the constructions made by the defendant/petitioner. He submits that the Schedule-B land in the plaint has been clearly described as a plot of land measuring 6 ft. X 189.45 ft. in the Schedule-A land on the Northern side of the Schedule-A land. Therefore, there is no requirement of a commission to be appointed by the Court as the Trial Court can easily arrive at a finding and decide the title suit on the basis of the oral Page No.# 6/9 evidence. He also submits that if any demarcation is required, the same can be done by the surveyors and Lat Mandal, when the execution process is initiated after the Trial Court passes its judgment and decree. 14. The learned Senior counsel further submits that the learned Trial Court has not committed any illegality and that there is no perversity in the impugned order so as to invoke the jurisdiction of this Court under Article 227 of the Constitution of India. 15. The Court has given its due consideration to the submissions made by the learned counsel for the parties. 16. This Court has also perused the pleadings and the authorities relied upon. 17. The power under Order XXVI Rule 9 CPC is a discretionary power and it is not mandatory. A Trial Court can refuse to appoint a Commissioner even when the boundaries are in dispute, but only if it finds that a local investigation is not necessary for deciding the issues in the suit. In has also been held in Order dated 16.05.2025, in CRP (IO)/355/2023, Morjina Begum & 15 others Vrs Jonabuddin & 7 others, by a coordinate bench of this court that an order under Order XXVI Rule 9 CPC is not a ‘stage-centric order’ and can be passed at any stage. The Court nevertheless held that the application must be justified by the necessity of a local investigation. 18. In the case of Haryana Waqf Board (supra), the principle dispute was the demarcation and identification of the boundary. The appellant had alleged that the defendants had encroached upon his land and the defendant’s land was adjacent to the suit land. Page No.# 7/9 19. In the cited case of Haryana Waqf Board also, the Trial Court had rejected the application for appointment of a local Commissioner. Even before the 1st Appellate Court, the matter was dismissed. However, the Supreme Court in the held that since the dispute was essentially one of demarcation, rejection of the application for appointment of a local Commissioner was not proper. The principle emerging from the judgment in Haryana Waqf Board (supra) is that in a Suit where the identity, location or boundary of the property is the core issue, appointment of a local Commissioner is often necessary and desirable. The Commission is intended to assist the Court in appreciating the physical features and demarcation of the land, it is not meant to collect evidence on behalf of a party. 20. From the aforementioned principle, it is made clear that if the entire disputes revolve around boundary demarcation, the Trial Court should record sound reasons before refusing appointment of a Commissioner and an arbitrary refusal will warrant interference under Article 227 of the Constitution of India. 21. This Court has also perused the depositions of the plaintiff/respondent and the defendant/petitioner before the learned Trial Court. 22. A perusal of the oral evidence would also go to show that none of the parties are sure about the boundaries of their land. The plaintiff/respondent in his cross-examination also admitted that the case is a boundary dispute and that when he measured the suit land when he bought it, there was no Lat Mandal or any other officials of the Revenue Office and he measured the suit land with a ribbon tape. He also admitted that the schedule of the suit land has been wrongly mentioned in the sale deed and till date, no rectification has been done. Page No.# 8/9 23. The petitioner/defendant in his cross-examination also deposed that he cannot state the boundary of the 1 katha land purchased later. He deposed that he would hand over the land, if the land purchased by Dharmeswar Borah/plaintiff was found in his possession. In such a situation, the controversy in the title suit is whether the land of the plaintiff and the defendant’s land overlapped; where the common boundary lies; and whether there has been any encroachment by either party. 24. It is evident from the records that the dispute relates to the identity, location and physical features of the suit land and the actual boundary on the spot. The appointment of a local Commissioner is not to collect evidence for any of the parties. However, when the appointment of local Commissioner would enable the Court to obtain details that cannot be brought before it by the parties and specifically when there are boundary and encroachment disputes, appointment of a Commissioner is generally desirable and the refusal to appoint a Commissioner in the present case may amount to an improper exercise of discretion because a local investigation could be essential for a just adjudication, more so as the impugned order refusing the application under Order XXVI Rule 9 CPC does not contain any reasons for the rejection. 25. In the instant case, this Court is of the view that the main issue in the Title Suit is regarding the boundary and the encroachment, if any. In the opinion of this Court, the Trial Court by rejecting the application for appointment of a local Commissioner, had made an improper exercise of judicial discretion. The Trial Court has exercised its discretion on an erroneous legal premise by treating the application as an attempt to collect evidence, whereas, the dispute is one of identification and demarcation of the suit property. Such facts cannot be Page No.# 9/9 satisfactorily proved merely by oral evidence. A local investigation is the most effective method of elucidating the matter in controversy, which is precisely the object of Order XXVI Rule 9 CPC, as explained by the Supreme Court in the case of Haryana Waqf Board (supra). 26. As a result, the instant petition is allowed. 27. The impugned order dated 17.02.2025 passed by the learned Civil Judge (Junior Division) No. 2, Nagaon passed in Petition No. 3011/2024 arising out of Title Suit No. 137/2017, is quashed and set aside. 28. The Petitioner shall file another Application under Order XXVI Rule 9 of the CPC and the same shall be considered by the learned trial court in accordance with law, in view of the findings and observations made herein. 29. The parties shall appear before the Trial Court on 15th September 2026 to continue with the proceedings in Title Suit No. 137/2017. 30. With the above observations and directions, the petition stands disposed of. JUDGE Comparing Assistant