A survey commissioner should be appointed to clarify boundaries in land-encroachment disputes.

The plaintiff instituted a suit concerning an alleged encroachment on her property and sought a declaration and injunction.

She applied under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (CPC), for appointment of a Survey-Passed Local Investigation Commissioner to investigate the property and clarify the boundary.

The Trial Court rejected the application, reasoning that investigation would amount to collecting evidence on possession.

The plaintiff challenged that order in revision.

The parties disputed the alleged encroachment and the relevant land boundaries and plot numbers.

1. Whether the Trial Court was justified in rejecting the plaintiff’s application under Order XXVI Rule 9 CPC for appointment of a Local Investigation Commissioner

2. Whether a Survey-Passed Commissioner should be appointed to investigate and report on the boundary dispute and alleged encroachment

Order XXVI Rule 9 CPC permits the court to appoint a commissioner for local investigation where such investigation is requisite or proper to elucidate a matter in dispute.

The Court relied on the Supreme Court decision reported at (2008) 8 SCC 671, which held that, having regard to the nature of a land dispute and the circumstances of the case, the court should consider whether a Local Commissioner ought to be appointed for demarcation of the disputed land.

The judgment does not provide the name of that case.

The Court considered the dispute to concern the land’s boundaries and alleged encroachment.

It concluded that a Survey-Passed Commissioner’s investigation could present the Trial Court with a clearer picture of the disputed property and assist it in resolving the dispute.

In light of the nature of the dispute and the Supreme Court’s guidance on demarcation, the Court found that the application under Order XXVI Rule 9 CPC ought to have been allowed; it therefore rejected the Trial Court’s view that the proposed investigation should be refused as an attempt to collect evidence on possession.

It directed the Trial Judge to appoint a Survey-Passed Local Investigation Commissioner from the panel, require notice to both parties and investigation in their presence, and direct completion of the commission within four months of receipt of the writ of commission.

The Trial Judge was also directed to fix the Commissioner’s remuneration.