### Appointment of Commissioner Under Order 26 Rule 9 CPC to Elucidate Encroachment and Boundary Disputes Legal Brief: * Core Issue: The legality of rejecting an application for local investigation under Order 26 Rule 9 CPC in a suit involving disputed easementary rights and alleged encroachment. * Court's Ruling: The High Court held that when there is no agreed map and parties dispute the existence or dimensions of a passage, a local commission is essential for "elucidating" the matter. * Key Principle: Seeking a spot inspection to ascertain the actual position of a site in an encroachment dispute does not amount to "collection of evidence"; rather, it is a discretionary power to be exercised for a just decision and to clarify obscured facts. * Procedural Note: The application is maintainable even after the closure of evidence if such investigation is requisite to resolve the core controversy between the parties.

The respondents (plaintiffs) filed a civil suit seeking a declaration and permanent injunction regarding easementary rights over a passage allegedly 10 feet 6 inches wide, claiming the petitioners (defendants) were attempting to build upon it.

The petitioners denied the existence and dimensions of said passage.

After the closure of evidence, defendant No. 4 (later deceased and deleted from the petition) filed an application under Order 26 Rule 9 and Order 39 Rule 7 of the CPC for a local commission to inspect the site.

The trial Court rejected the application on December 4, 2025, holding it was an attempt to collect evidence after the trial was nearly complete.

The petitioners challenged this rejection under Article 227 of the Constitution.

1. Whether a local commission can be appointed under Order 26 Rule 9 CPC to ascertain the existence and dimensions of a disputed site when there is no agreed map, even after the closure of evidence.

2. Whether the petition is maintainable despite the death of the original applicant (petitioner No. 4) during the pendency of the proceedings.

Order 26 Rule 9 of the CPC, which empowers the Court to issue a commission for local investigation to "elucidate any matter in dispute".

Anurag Jaiswal v. Collector Khandwa and Ors. (2019), which established that in cases of boundary disputes, encroachments, or absence of an agreed map, a commission is necessary to render the facts intelligible.

The principle that legal heirs with a common interest and common written statement can maintain a petition even if the original applicant has expired.

The High Court reasoned that the dispute centered on the specific location and width of a lane, which remained unclear as there was no agreed-upon map between the parties.

Applying the interpretation of "elucidating" from Anurag Jaiswal, the Court found that a spot inspection was not "collecting evidence" for a party, but rather a tool for the Court to clarify the actual physical status of the property to reach a just decision.

The Court noted that even though evidence had been led—including an alleged admission by petitioner No. 1—the dispute regarding encroachment required technical clarification.

Regarding maintainability, the Court held that since petitioners 1, 2, and 3 were the son and grandsons of the deceased petitioner and shared a common defense, the right to sue survived with them.

The High Court set aside the order dated December 4, 2025, and allowed the application under Order 26 Rule 9 CPC. The trial Court was directed to appoint a competent Revenue Officer to conduct a spot inspection and demarcation of the disputed lane in the presence of both parties and submit a report.