1 2026:CGHC:17497 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 453 of 2025 Order Reserved on – 27.02.2026 Order Delivered on 16.04.2026 Order (Full) Uploaded on 16.04.2026 1. Smt. Ramdulari Agrawal W/o Late Jagdish Prasad Agrawal Aged About 72 Years R/o Ward No. 14, Bajrang Chowk, Near Hanuman Mandir, Tilda Nevra, District Raipur (C.G.) (The Petitioner Through Power Of Attorney Holder Santosh Agrawal S/o Late Jagdish Prasad Agrawal, Aged About 47 Years, R/o H.No. 250, Samta Colony, Beside Mittal Bhawan, Raipur, Tehsil And District Raipur (C.G.). 2. Smt. Manju @ Sweta Agrawal D/o Late Jagdish Prasad Agrawal Aged About 50 Years R/o Ward No. 14, Bajrang Chowk, Near Hanuman Mandir, Tilda Nevra, District Raipur (C.G.) (The Petitioner Through Power Of Attorney Holder Santosh Agrawal S/o Late Jagdish Prasad Agrawal, Aged About 47 Years, R/o H.No. 250, Samta Colony, Beside Mittal Bhawan, Raipur, Tehsil And District Raipur (C.G.). 3. Smt. Preeti Agrawal D/o Late Jagdish Prasad Agrawal Aged About 45 Years R/o Gurunanak Ward, Gondia, District Gondia (Maharashtra) (The Petitioner Through Power Of Attorney Holder Santosh Agrawal S/o Late Jagdish Prasad Agrawal, Aged About 47 Years, R/o H.No. 250, Samta Colony, Beside Mittal Bhawan, Raipur, Tehsil And District Raipur (C.G.). 4. Smt. Bindiya Agrawal D/o Late Jagdish Prasad Agrawal Aged About 41 Years R/o Plot No. 70/4, Nehru Nagar, Bhilai, Tehsil And District Durg (C.G.) (The Petitioner Through Power Of Attorney Holder Santosh Agrawal S/o Late Jagdish Prasad Agrawal, Aged About 47 Years, R/o H.No. 250, Samta Colony, Beside Mittal Bhawan, Raipur, Tehsil And District Raipur (C.G.). 5. Smt. Sonu Agrawal D/o Late Jagdish Prasad Agrawal Aged About 39 Years R/o Ashok Traders, Subash Chowk, Raghuraj Nagar, Satna, District Satna (M.P.) (The Petitioner Through Power Of Attorney Holder Santosh Agrawal S/o Late Jagdish Prasad Agrawal, Aged About 47 Years, R/o H.No. 250, DEEPTI JHA Digitally signed by DEEPTI JHA 2 Samta Colony, Beside Mittal Bhawan, Raipur, Tehsil And District Raipur (C.G.). 6. Vinay Kumar Agrawal S/o Late Jagdish Prasad Agrawal Aged About 43 Years R/o H.No. 250, Samta Colony, Beside Mittal Bhawan, Tehsil And District Raipur (C.G.). 7. Santosh Agrawal S/o Late Jagdish Prasad Agrawal Aged About 47 Years R/o H.No. 250, Samta Colony, Beside Mittal Bhawan, Tehsil And District Raipur (C.G.) (Jagdish Prasad Agrawal S/o Prabhulal Ji Agrawal (Wrongly Mentioned As Prabulal G Agrawal In The Cause Title Of Impugned Order) Since Dead Has Not Been Made A Party) ... Petitioners versus 1. Etwari Nishad S/o Hagru Nishad Aged About 59 Years R/o Village Amleshwar, Tehsil Patan, District Durg (C.G.) (Wrongly Mentioned As Amleshwar In The Cause Title Of Impugned Order). 2. State Of Chhattisgarh Through Collector, District Durg (C.G.) ... Respondents (Cause title taken from Case Information System) For Appellant : Mr. Prasoon Agrawal, Advocate. For Respondent No.1 : Mr. Jitendra Gupta, Advocate. For State/Respondent No.2 : Mr. Suyashdhar Badgaiya, G.A. Hon'ble Shri Justice Sachin Singh Rajput C A V Order 1. This writ petition has been filed by the petitioners under Article 227 of the Constitution of India, challenging the order dated 11.04.2025 passed by the 4th District Judge (for short ‘District Judge’), Durg, District Durg (C.G.) in Civil Appeal No.117/2019. By the order impugned, the learned District Judge has rejected the application under Order 26 Rule 9 of Civil Procedure Code, 1908 (for short ‘CPC’) filed by the petitioners. 2. Brief facts of the case are that the original plaintiff, Late Jagdish Prasad Agrawal filed a suit for vacant possession, eviction and removal of construction from the land situated at Village Amleshwar, PHN-05, Bhilai-3, Patan, District Durg (CG) bearing Khasra No.87, Area 2.5 decimal (1089 sq. 3 feet) from 0.70 hectares over which the respondent No.01 has made illegal construction over 580 sq. feet. The suit was registered as Civil Suit No.34A/2011. The suit was filed on the premise that Gram Panchayat Amleshwar allot the land Bearing Khasra No.89, Area 0.65 hectares to 17 landless people including respondent No.01 vide proposal dated 19.06.2009. Khasra No. 89 and 87 are adjoining land and respondent No.01 has encroached over the 2.5 decimal land of Khasra No.87. It was also held that the land allotted to respondent No.01/defendant No.01 is not a part of Khasra No.89, but part of Khasra No.87 belonging to the plaintiff. However, even after that, the defendant No.01 has raised construction over the said land. The learned trial Court has framed as many as 4 issues including whether the defendant No.01 is in possession of the land of the plaintiff. The learned Civil Judge, Class-II, Bhilai-3, Durg (C.G.) has dismissed the suit of the plaintiff on 13.08.2019 on the ground that there was no demarcation of report, field book and spot map. The plaintiff being aggrieved by the order of the learned trial Court preferred an appeal bearing Regular Civil Appeal No.117/2019, which is pending consideration before the learned Appellate Court. During the pendency of the appeal, the plaintiff filed an application under Order 26 Rule 9 of Code of Civil Procedure, 1908 for appointment of Commissioner for proper adjudication of the issue relating to the boundary. The plaintiff prayed that the plaintiff had placed on record the Patwari report Exhibit P/2, which has been disbelieved by the learned trial Court. The learned trial Court neither directed the plaintiff to get a demarcation report, nor believed the document of the plaintiff. The issue in the civil suit is pertaining to the boundary of two Khasra Numbers. The learned Appellate Court while deciding the application vide impugned order rejected the application on the ground that earlier prayer of the defendant No.01 for demarcation was objected by the plaintiff during the trial and the appeal is to be decided on the basis of the documents presented during the appeal. The 4 application was rejected by learned District Judge. The learned Court ought to have appreciated the fact that the dispute is related to the demarcation and boundaries of the land and thus, the appointment of the Commissioner is in the interest of the justice. The averments made by the plaintiff in his plaint itself is sufficient to show and prove that the dispute is in relation to the boundaries and demarcation of the land. The learned Court should have appreciated the gravity of justice and ought not to have rejected the application on the part of the petitioner. Hence this petition. 3. Learned counsel for the petitioners submitted that the impugned order is illegal, erroneous and contrary to law. He further submits that the learned appellate Court has not appreciated the provisions contained in the Code of Civil Procedure, 1908 i.e. Order 26 Rule. The learned trial court ought to have appreciated the fact that if the dispute is related to the identity of the land, which can be prima facie gathered from the plaint itself. It is further submitted that the learned appellate Court has rejected the application filed by the petitioner herein in a mechanical reason. Petitioners have specifically stated in their application that they have produced Exhibit P/2, which is the report of Patwari, which clarified the boundaries dispute between the parties. However, the learned trial Court has not at all considered that document while passing the judgment and has further held that the petitioners have failed to produce the demarcation report. At the stage of trial, since the petitioners had document of Exhibited P/2, therefore, they did not produce any demarcation report, however, since the dispute between the parties pertain to boundary of two adjoining khasra numbers, therefore, for proper adjudication of dispute, the demarcation report is necessary, for which, appointment of Commissioner ought to have been made by the learned trial and appellate Court. The learned Court below ought to have appreciated the fact that such kind of disputes relating to the identity of the land cannot be decided on the basis of the oral evidence. 5 4. Learned counsel for the respondent No.1 opposed the submissions of learned counsel for petitioner and submitted that same application was filed by respondent No.1 before the learned Civil Judge, which was objected by the petitioners at that point of time. Thus, the petitioners now cannot be allowed to seek the same relief, which has been objected by them. Once the learned Civil Judge has dismissed the suit of the petitioners, they cannot be permitted to collect the evidence in appeal. The learned District Judge has considered all aspect of matter and dismissed the application of the petitioners. Thus, meritorious findings recorded by the learned District Judge may not be disturbed in the writ petition. He further submitted that the application filed by the petitioners is not maintainable before the appellate Court/District Judge. 5. Learned counsel for the respondent No.2/State submits that the dispute is between the petitioners/plaintiffs and respondent No.1/defendant No.1. However, he supports the impugned order. 6. Heard the learned counsel for the parties with patience and undertaken the exercise of perusing the record with rapt attention. 7. This Court would first deal with the submissions made by the learned counsel for the respondent No.1 that the application under Order 26 Rule 9 of CPC is not maintainable before the appellate Court. 8. Perusal of the provision would clearly indicates that 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 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. Bare perusal of this would indicate that generally application for local inspection, Commissioner can be appointed by Court in a suit. This provision 6 does not exclude the jurisdiction of the appellate Court for appointment of Commissioner for local inspection. Even otherwise, appeal is continuation of a suit, thus, an application for appointment of Commissioner for local inspection under Order 26 Rule 9 of CPC is maintainable before the appellate Court also. Thus, the contention of Shri Sahu with regard to the maintainability of the application under Order 26 Rule 9 of CPC before the appellate Court is repelled. 9. Next contention raised by Shri Sahu is that the petitioners/plaintiffs has objected to the same application filed by the respondent/defendant before the trial Court, hence they are estopped from filing the same application at the appellate stage. Learned counsel for the respondent/defendant tried to persuade this Court that application filed by the petitioners/plaintiffs is hit by principle of res judicata and estoppel. This Court is not impressed by this submission. Firstly, the application under order 26 Rule 9 of CPC was filed by the respondent No.1/defendant No.1 before the trial Court and not by the petitioners/plaintiffs. Ofcourse, the said application was resisted by the petitioners/plaintiffs, however, that would not constitute res judicata or subsequent application at the appellate stage would be hit by doctrine of estoppel. Thus, this contention of Shri Sahu is also rejected. 10. Now the question for determination before this Court is, as to whether in the given facts and circumstances of the case, the relief claimed by the petitioners/plaintiffs can be granted to them. The petitioners/plaintiffs have filed the suit for delivery of possession of the suit property. They further claimed for mandatory injunction to remove the super structure and delivery of vacant possession over the suit property. Compensation for illegal occupation is also sought. It is further case of the petitioners/plaintiffs that some landless persons have been allotted patta by the resolution of Gram Panchayat Amleshwar. The respondent No.1/defendant No.1 on the strength of that patta has illegal encroachment upon the suit land. The resolution of 7 the Gram Panchayat was set aside by Sub Divisional Officer, Durg and patta granted in favour of respondent No.1/defendant No.1 was also cancelled. Written statement filed by the respondent No.1/defendant No.1. According to which his possession is 20-25 feet away from the suit land. The learned trial Court framed issues on the basis of the pleadings of the parties. Respective parties led their evidence to prove their pleadings. 11. All the issues were decided against the petitioners/plaintiffs. The learned trial Court held that the petitioners/plaintiffs could not prove their pleadings and dismissed the suit. The real controversy, which appears to be with respect of possession of respondent No.1/defendant No.1, which according to the petitioners/plaintiffs is in their land comprised in Khasra No.87, whereas the case of the respondent No.1/defendant No.1 is that he is occupation of Khasra No.89. During pendency of the suit, an application for demarcation of the suit property was filed by the respondent No.1/defendant No.1 to ascertain the identity of suit property, which was objected by petitioners/plaintiffs leading to its rejection by learned trial Court. Thus, it can safely be gathered that petitioners/plaintiffs wanted to prove their case on the basis of material available on record. In order to prove their case, petitioners/plaintiffs relied upon a report of Tehsildar, which was disbelieved by the learned Court. Thus, on the basis of material available on record, the petitioners/plaintiffs failed to prove their case. In appeal, the application for appointment of Commissioner was filed. Once the petitioners/plaintiffs failed in the suit, they are at appellate stage and have filed the application for collecting evidence. It is settled principle of law that the petitioners/plaintiffs to succeed on their own strength and Court will not collect evidence. The learned trial Court, while dismissing the said application has applied its mind and found the application worth dismissal. On careful scrutiny of record, this Court does not find any illegality, irregularity or jurisdictional error in the 8 impugned order warranting interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 12. Thus, the writ petition fails and is hereby dismissed. Sd/- (Sachin Singh Rajput) Judge Deepti Jha