A local investigation commission is warranted when physical demarcation and encroachment constitute the core dispute.

The petitioner-plaintiff instituted Title Suit No. 218 of 2012 before the Civil Judge (Junior Division), 2nd Court at Serampore, seeking declaration of title, permanent injunction, and mandatory injunction concerning alleged encroachment and illegal construction upon a common passage measuring 3 feet by 17 feet.

The plaintiff alleged that the defendants had obstructed the passage and constructed a water reservoir measuring 3 feet by 2 feet upon part of it.

The defendants denied the encroachment and disputed the plaintiff’s claim regarding the passage.

During the suit, the plaintiff applied under Order 26 Rule 9 read with Section 151 CPC for appointment of a survey-knowing Advocate Commissioner to inspect the site, measure the passage, and determine the alleged encroachment.

The Trial Court rejected the application by Order No. 104 dated 1 February 2025, holding that the dispute could be resolved through documentary evidence and noting the prolonged pendency of the suit.

The plaintiff challenged that order under Article 227 of the Constitution.

Whether the Trial Court erred in refusing to appoint a survey-knowing Advocate Commissioner under Order 26 Rule 9 CPC in a suit involving disputed boundaries, physical measurements, obstruction of a narrow passage, and alleged encroachment.

Whether the plaintiff’s delay in prosecuting the suit justified denial of a local investigation that was otherwise relevant to determination of the physical dispute.

Order 26 Rule 9 CPC empowers the court to issue a commission for local investigation where such investigation is requisite or proper for elucidating a matter in dispute; Order 26 Rule 10(2) recognises the Commissioner’s report and accompanying plan as part of the record and evidence.

In boundary, demarcation, and encroachment disputes, a local investigation is appropriate where physical identification, measurements, or the location of structures cannot adequately be established through documents and oral testimony alone.

The Court principally relied on Haryana Waqf Board v. Shanti Sarup, (2008) 8 SCC 671, which held that in a dispute concerning demarcation and alleged encroachment, appointment of a Local Commissioner was appropriate.

It also relied on Sri Subhas Mondal v. Sri Manorajan Samanta, [(2015) 4 WBLR (Cal) 266], Chittaranjan Sardar v. Biswanath Sardar, [2025 (4) ICC (Cal) 57], Latika Sinha v. Kakali Das, [2025 (4) ICC (Cal) 850], and Raj Kumar Dadlani v. Dr. Smt. Pushpita Sahu (Basu), [(2011) 4 WBLR (Cal) 112], concerning the utility of local inspection in disputes involving identification, boundaries, and encroachment.

The High Court distinguished between proving the legal or documentary existence of a common passage and determining its actual physical dimensions and the extent of alleged encroachment.

The dispute involved a narrow 3-foot passage, a specific alleged water-reservoir encroachment, and questions requiring on-site measurements and identification of physical structures.

Such matters could not, in the Court’s view, be reliably resolved solely by examining the 1982 title deed or oral evidence.

A survey-knowing Commissioner would provide objective assistance regarding the ground reality and thereby elucidate the matter in dispute within the meaning of Order 26 Rule 9 CPC.

Although the Court recognised the plaintiff’s delay and the suit’s pendency since 2012, it held that delay should be addressed through strict timelines and conditions rather than by denying relevant evidence central to the adjudication of the dispute.

Order No. 104 dated 1 February 2025 was set aside, and the plaintiff’s application under Order 26 Rule 9 read with Section 151 CPC was allowed.

The Trial Court was directed to appoint a competent survey-knowing Advocate Commissioner within two weeks, after notice to both parties; the commission was to be completed and the report submitted within four weeks.

The plaintiff was directed to bear the Commissioner’s costs and remuneration initially.

Thereafter, the Trial Court was directed to proceed with the peremptory hearing and endeavour to conclude the suit within six months of receiving the report, without granting unnecessary adjournments.