Laiq Khan vs Tasleem Khan

Court
Madhya Pradesh High Court

NEUTRAL CITATION NO. 2026:MPHC-JBP:84652
1 SA-2383-2026
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR

BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
nd
ON THE 22 OF OCTOBER, 2026
SECOND APPEAL No. 2383 of 2026
CNR No.: MPHC010610862026
LAIQ KHAN
Versus
TASLEEM KHAN
Appearance:
Shri Laxmi Chandra Chourasiya - Advocate for Appellant.
Shri Shafiqullah - Advocate for Respondent.
ORDER
This appeal under Section 100 of the Code of Civil Procedure has been
preferred by the appellant/defendant being aggrieved by the judgment and decree
th
dated 28.07.2026 passed in Civil Appeal No.126/2025 by the 17 District Judge,
Bhopal reversing the judgment and decree dated 28.03.2025 passed in Civil Suit
nd
No. 1087A/2023 by the 2 Civil Judge, Junior Division, District- Bhopal and
decreeing the claim of the plaintiff /respondent for declaration of title and
possession of the suit property.
2. Facts relevant for the decision of this appeal are that plaintiff contends
himself to be the owner of House No.14/2, Naveebagh, Berasia Road, Bhopal
having purchased the same by way of a registered sale deed dated 10.09.1996 from
its previous owner measuring 1433 sq. ft. Towards west of his house is open land
measuring 600 sq. ft. On 17.11.2015, defendant attempted to make encroachment
over plaintiff's land measuring 3 ft. × 22 ft. = 66 sq. ft. and did not stop the same
despite notice by plaintiff to him in that regard hence, the suit was filed by him as
Signature Not Verified
Signed by: SHUBHAM
THAKKER
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NEUTRAL CITATION NO. 2026:MPHC-JBP:84652
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aforesaid.

3. The defence of the defendant was that the construction which is being
made by him is over his own land which is his ancestral land. The construction
has been made years ago, but plaintiff with malafide intention is contending the
same to be an encroachment. He did not raise any objection as regards the
construction and that the land over which construction has been made is not a part
of the property of the plaintiff.
4. The trial Court dismissed the plaintiff's claim by holding that he has not
been able to prove that the suit land is a part of the land owned by him which is
owned by the defendant hence is not entitled for any relief. In appeal having been
preferred by the plaintiff, the said judgment and decree has been set aside by the
lower Appellate Court and the plaintiff's claim has been decreed finding that the
suit land is a part of the land of plaintiff and is not a part of the land of the
defendant.
5. By order dated 22.10.2026, the appeal was admitted on the following
substantial question of law:

"Whether in view of the disputes between the parties being a dispute as
regards boundaries and/or encroachment and location of the disputed
property, it was incumbent upon the Courts below to have appointed a
local Commissioner under Order XXVI Rule 9 of the CPC for
demarcation of the suit property and submission of Spot Inspection
Report?"

6. I have heard the learned counsel for the parties and have perused the
record.
7. From a perusal of the pleadings of the parties, it is evident that the dispute
between them is as regards encroachment and/or boundaries. The plaintiff
contends that the disputed land is a part of the property owned by him, whereas the
Signature Not Verified
Signed by: SHUBHAM
THAKKER
Signing time: 27-10-2026
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NEUTRAL CITATION NO. 2026:MPHC-JBP:84652
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defendant contends that the same is a part of the property owned by him. The title

of plaintiff has been disputed by the defendant, but even if the same, for the sake
of arguments is accepted, then also the question for consideration would be
whether the disputed land forms part of the land of the plaintiff or the same forms
part of the land of defendant. Such a dispute could have been decided only by
appointment of a local Commissioner as envisaged under Order XXVI Rule 9 of
the CPC for demarcation of the disputed land and submission of Spot Inspection
Report as has been held by this Court in Bagdiram Vs. Ram Singh 2025 (3) MPLJ
116 in which it has been held as under:

"9. From the pleadings of the parties it is evident that there is
no dispute as regards title between them. While the plaintiffs
contend that they are owners of survey No.72/82/2, the
defendants contend that they are owners of survey No.3. The
plaintiffs have alleged that defendants are encroaching over
their land whereas the defendants have stated that they are in
possession of their own land and have not encroached over
plaintiff's land. The dispute is hence purely a boundary
dispute i.e. whether the suit land forms part of survey
No.72/82/2 owned by the plaintiffs or forms part of Survey
No.3 owned by the defendants. The said dispute ought not to
have been decided by the Courts below without appointing a
local Commissioner as envisaged under Order 26 Rule 9 of
the CPC for demarcation of the suit land and submission of
spot inspection report.

10. Order 26 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 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:
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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.

11. In Prembai V/s. Ghanshyam 2010 (3) M.P.L.J. 345 it has
been held by this Court that if there is a dispute about
demarcation of the boundaries then in such a situation it
would be appropriate for the Court to appoint a competent
Commissioner and it is the law of land which is to be
followed. It was held as under :-


13. That apart, I do not find any merit in the
contention of learned counsel for the respondent
No. 1/plaintiff, that an application was submitted
by plaintiff to appoint the Commissioner which
was vigorously opposed by defendants and
accordingly the learned trial Court dismissed that
application on 28- 7-1995 and, therefore, now the
defendants are estopped from raising this ground.
According to me, if there is a dispute about the
demarcation of the NEUTRAL CITATION NO.
2025:MPHC-IND:5964 boundaries, the Supreme
Court and this Court have interpreted the law as
envisaged under Order XXVI, Rule 9, Civil
Procedure Code that in such a situation it would be
appropriate to the Court to appoint a competent
Commissioner and, hence, it is the law of land
which is to be followed and, therefore, in these
facts and circumstances, there cannot be any
estoppel against law. The substantial question of
law No. 1 is thus answered in favour of appellants.


12. In Loknath Gautam V/s. State of M.P. 2018 SCC
Online MP 600 it has been held by this Court that whenever
there is dispute as to encroachment the fact whether there is
an encroachment or not cannot be determined in absence of
agreed map except by appointment of a Commissioner under
Order 26 Rule 9 of the CPC. It was held as under :


“16. The ancillary question is whether for the
purpose of determining the identity of land or
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THAKKER
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incase of boundary dispute power under Order
26Rule 9 can be exercised? This point is no more
res integra. The Division Bench of this Court in
the case reported in 1975 JLJ 440, [Durga Prasad
v. P.Foujdar] opined that in case where there is a
dispute as to encroachment, the fact whether there
is such an encroachment or not cannot be
determined in the absence of an agreed map,
except by the appointment of a Commissioner
under Order 26 Rule 9 CPC.

17. The Bombay High Court has consistently taken
the view that in cases of boundary dispute and
dispute about the identity of land, courts
should order local investigation under Order 26
Rule 9CPC. (See : (2004) 3 Mah LJ 724, [Sukhdeo
Parashramji Bhugul (Dr.) v. Wamanroa Nagorao
Charhat]; (2009) 6 AIR Bom R (NOC 1033) 329,
[Girish Vasantrao Bhoyar v. Nimbaji Warluji
Bambal]; (2010) 4 AIR Bom R (NOC 450) 127,
[Yeshwant Bhaduji Ghuse v. Vithabaji Laxman
Ladekar]; (2014) 1 AIR Bom R 16 : AIR 2014
(NOC173) 59, [Malhar v. Shivaji] and (2015) 4
AIR Bom R (NOC 3) 2, [Shyam Janardam
Chaoudary v. Asha Ramdas Katkar]). Alok
Aradhe, J in 2012 (III)MPWN 62, [Beejanwala
Talukdar (Smt.) v. Radhakrishna Rai] opined as
under:


“6. The appellant in the plaint has stated that defendant nos. 1
and 2 have taken possession of the land belonging to him
which has been marked with letters A, B, C,D which forms
part of Khasra No. 32. On the other hand, defendants nos. 1
and 2 in the written statement have denied the factum of
encroachment and have stated that they are in possession of
the land which has been purchased by the defendant no. 2 on
20-01-1976 which forms part of Khasra No.32. There is no
agreed map. In the absence of any agreed map, the trial court
could not have decided the issue of encroachment. [See:
Haryana Waqf Board v. Shanti Sarup, (2008) 8 SCC 671 and
decision of Division Bench of this court in the case of Durga
Prasad v. Parveen Foujdar, 1975MPLJ 801]. For the
aforementioned reasons, the substantial question of law

Signature Not Verified
Signed by: SHUBHAM
THAKKER
Signing time: 27-10-2026
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NEUTRAL CITATION NO. 2026:MPHC-JBP:84652
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framed by this court is answered in negative and in favour of
the appellant.”

13. In Suman Pandagre V/s. Madhu Pandagre and Others
2022SCC Online MP 6030 it has been held by this Court that
application under Order 26 Rule 9 of the CPC can be filed at
any stage of the proceedings. It is purely a legal question that
can also be raised at the appellate stage. It has been held as
under :-

8. From the perusal of the aforesaid judgments by
the various Courts it is apparently clear that the
application under Order 26 Rule9 of CPC can be
filed at any stage of the proceedings even prior to
the defendants marking their presence before the
Court or at the final stage of the proceedings. It is
purely a legal question that can also be raised at the
appellate stage also. The basic concept for filing an
application seeking appointment of Commissioner
for identity of a land in question or is there is any
boundary dispute or dispute with respect to the
maps or where there is dispute with respect to
encroachment, which cannot be determined in
absence of any agreed map normally the Court
should have appointed the Commissioner. In the
present case the civil suit has been filed on the
ground of easmentrary right by the
petitioner/plaintiff stating that the by-lane is
inexistence and it has been used by the plaintiff
and his forefathers since long. There is a specific
denial to the aforesaid aspect by the defendants in
their written statement. In such circumstances, it is
not a Government land or a Government road that
the identity of the land is of a material aspect in the
matter. There is nothing on record to show that the
particular land is being identified as a disputed
land in the matter. In such circumstances, the
application filed under Order 26 Rule 9 of CPC
should have been allowed by the learned trial
Court for identification of the land in question.
Allowing such an application will amount to
substantial justice to the parties and will also
Signature Not Verified
Signed by: SHUBHAM
THAKKER
Signing time: 27-10-2026
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expedite the proceedings of the civil suit.



14. In Jaswant V/s. Dindayal 2011 (2) MPLJ 576 it has been
held that when there is a dispute about demarcation it is the
duty of the Court itself to issue commission by appointing an
employee of Revenue Department not below the rank of
Revenue Inspector to get the land in dispute demarcated and
for its identification no application is required for that
purpose.
15. In Vayathinattar and Another V/s. Sakkubai Ammal AIR
2004 Madras 419 the dispute between the parties was as
regards demarcation. None of the parties filed any application
before the Courts below for appointment of a local
Commissioner. In such circumstances it was held that the
best evidence in cases of such nature could have been
obtained only by appointment of a Commissioner and that
the same was a legal necessity and has to be complied with.
Holding so the judgment and decree passed by the Courts
below were set aside and the matter was remanded back to
the trial Court for appointment of a local Commissioner as
envisaged under Order 26 Rule 9 of the CPC. It was held as
under :-

“17. None, particularly, the plaintiff who claims
that the suit property is lawfully belonging to her
has been encroached upon by the defendants and
annexed to their lands has filed an application for
the appointment of Commissioner to measure the
property and submit a report with sketch, and this
Court wonders as to why the plaintiff has not
resorted to file an application nor even the
defendants thought of in this line, as a result of
which the Courts have to arrive at their own
conclusions based on the paltry evidence placed
on record and, therefore, since the best of evidence
in cases of such nature could have been obtained
only by appointment of a Commission and
ascertainment of the extent of lands in possession
and enjoyment of each party to the contest, and
Signature Not Verified
Signed by: SHUBHAM
THAKKER
Signing time: 27-10-2026
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since this legal necessity has not been complied
with, the lower Courts have not been in a position
to act with the conclusive proof which could be
relied upon and, therefore, it is only desirable to
do this requirement which is absolutely necessary
in the case in hand and, therefore, needless to
mention that it is a case which has to be remanded
back to the trial Court for observing this
requirement in the circumstances of the case and
to give a decision based on such report obtained
and hence, both the judgments rendered by the
trial Court and the first appellate Court have to be
set aside and the case remanded for re-
consideration and hence, the sole substantial
question of law has to be decided in the manner
and with the following result.

In result
(i)
(ii) the case is remanded to the trial Court for re-
consideration in appointing a commissioner and
measuring the suit property and the other
properties surrounded by the suit property so as to
ascertain the facts regarding the possession of the
extent of lands by parties and to file a report with
sketch and the trial Court shall decide on such
additional evidence placed on record also with
further opportunity for the learned counsel for both
to be heard and to decide the dispute on merits and
in accordance with law;”
16. In Baliram V/s. Melaram and Another AIR 2003 HP 87 it
has been held that to issue commission under Rule 9 of Order
26 of the CPC it is not necessary that either or both the
parties must apply for issue of commission. The Court can
appoint local Commissioner suo moto if it is deemed
necessary that a local investigation is required. If local
investigation is requisite and proper it should be exercised so
that a final and just decision is rendered in the case. It was
held as under :

Signature Not Verified
Signed by: SHUBHAM
THAKKER
Signing time: 27-10-2026
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“13. Rule 9 of Order 26 of the Code of Civil
Procedure (hereafter referred to as 'the Code'),
empowers the Court to issue commission to make
local investigation which may be required for the
purpose of elucidating any matter in dispute.
Though the object of the local investigation is not
to collect evidence which can be taken in the
Court, but the purpose is to obtain such evidence,
which from its peculiar nature, can only be had on
the spot with a view to elucidate any point which
is left doubtful on the evidence produced before
the Court. To issue a commission under Rule 9 of
Order 26 of the Code, it is not necessary that
either or both the parties must apply for issue of
commission. The Court can issue local
commission suo motu, if, in the facts and
circumstances of the case, it is deemed necessary
that a local investigation is required and is proper
for the purpose of elucidating any matter in
dispute. Though exercise of these powers is
discretionary with the Court, but incase the local
investigation is requisite and proper in the facts
and circumstances of the case, it should be
exercised so that a final and just decision is
rendered in the case.”

17. The principles which thus emerge are that if there is a
dispute about demarcation of boundaries or where there is a
dispute as to encroachment the fact whether there is such an
encroachment or not and for the purpose of determining
identity of land by local investigation in absence of an agreed
map, exercise of power under Order 26 Rule 9 of the CPC by
appointment of a competent Commissioner is necessary. In
case of such a dispute best evidence can be obtained only by
appointment of a Commissioner and ascertainment of the
extent of lands in possession or enjoyment of the parties.
The same is the law of land and is a legal necessity in
absence of which the Court would not be in a position to act
with the conclusive proof which could be relied upon. When
there is a dispute about demarcation, it is the duty of the
Court itself to issue commission and it can issue such
commission suo moto also if in the facts and circumstances
of the case it is deemed necessary that a local investigation is
Signature Not Verified
Signed by: SHUBHAM
THAKKER
Signing time: 27-10-2026
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NEUTRAL CITATION NO. 2026:MPHC-JBP:84652
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required for elucidating any dispute in the matter. For that
purpose no application is required. It is not necessary that
either or both the parties must apply for issue of commission.
An application under under Order 26 Rule 9 of the CPC can
be filed at any stage of the proceedings even prior to the
defendants marking their presence before the Court or at the
final stage of the proceedings. It is purely a legal question
that can also be raised at the appellate stage. Though exercise
of power is discretionary but incase local investigation is
requisite and proper it should be exercised so that a just
decision is rendered in the case since it is the duty of the
Courts to ensure that substantial justice is delivered to the
parties."

8. Since the dispute between the parties is a dispute as regards encroachment
and/or boundaries, the same ought not to have been decided by the Courts below
without appointment of a local Commissioner as aforesaid. As a result, the
substantial question of law as framed is answered in favour of the appellant and
against the respondent but considering the fact that the trial Court had also not
appointed a local Commissioner, the judgment and decree passed by both the
Courts below are hereby set aside and the matter is remanded back to the trial
Court for appointment of a local Commissioner under Order XXVI Rule 9 of the
CPC and obtaining a Commissioner's report and thereafter deciding the matter
afresh in accordance with law. However, it is made clear that the parties would be
entitled to lead evidence only to the extent of the report to be submitted by the
local Commissioner.
9. The appeal is accordingly, allowed. No costs.
(PRANAY VERMA)
JUDGE
Shub

Signature Not Verified
Signed by: SHUBHAM
THAKKER
Signing time: 27-10-2026
12:22:15