Boundary and encroachment disputes cannot be decided without local demarcation under Order 26 Rule 9 CPC.

The plaintiff claimed ownership of Khasra No. 905/1-Kha/4, measuring 0.046 hectare, purchased from Radha Krishna Bagri through a registered sale deed dated 25 August 1984. The land had allegedly been mutated in his name, diverted, and covered by a sanctioned building plan and boundary wall

Following a complaint by respondent No. 1 alleging encroachment, proceedings were initiated for demolition of the plaintiff’s construction

The plaintiff filed a suit seeking declaration of title, permanent injunction, and a declaration that the Naib Tehsildar’s orders were null and void

The defendants denied the plaintiff’s title and asserted that the disputed land formed part of Government Khasra No. 905/5, which had been allotted to respondent No. 1

The trial Court decreed the suit, but the lower appellate Court reversed that decision, holding that the plaintiff had failed to prove his title and that the disputed land formed part of Khasra No. 905/1-Kha/4

The second appeal was admitted on the question whether the suit could have been decided without appointing a Local Commissioner to resolve the boundary and encroachment dispute

1. Whether the lower appellate Court erred in dismissing the plaintiff’s suit despite the dispute concerning the boundary and identity of the land, without appointing a Local Commissioner under Order 26 Rule 9 of the CPC?

2. Whether, in a dispute regarding alleged encroachment and competing claims that the land formed part of different khasra numbers, the Courts were required to obtain a local investigation and demarcation report, even if no party had applied for such appointment?

The Court applied Order 26 Rule 9 of the Code of Civil Procedure, 1908, which empowers the Court to appoint a commission for local investigation where such investigation is requisite or proper for elucidating a matter in dispute

The Court relied on Prembai v. Ghanshyam, 2010 (3) MPLJ 345, holding that appointment of a competent Commissioner is appropriate where boundaries are disputed

It further relied on Loknath Gautam v. State of M.P., 2018 SCC OnLine MP 600, and Durga Prasad v. P. Foujdar, 1975 JLJ 440, for the principle that encroachment or identity of land cannot ordinarily be determined in the absence of an agreed map except through a Commissioner under Order 26 Rule 9

The Court also relied on Suman Pandagre v. Madhu Pandagre, 2022 SCC OnLine MP 6030, for the proposition that an application for appointment of a Commissioner may be made at any stage and that the issue may be raised at the appellate stage; and on Jaswant v. Dindayal, 2011 (2) MPLJ 576, and Baliram v. Melaram, AIR 2003 HP 87, for the principle that the Court may appoint a Local Commissioner suo motu where local investigation is necessary for a just decision

The Court found that the pleadings disclosed a direct dispute regarding the identity and boundaries of the suit land: the plaintiff claimed that it formed part of Khasra No. 905/1-Kha/4, whereas the defendants asserted that it formed part of Khasra No. 905/5

Since the alleged encroachment could not be reliably determined merely from the existing oral and documentary evidence, particularly in the absence of an agreed map, demarcation through local investigation was necessary

The Court held that the duty to appoint a Local Commissioner was not dependent upon an application by either party; the Courts below were required to exercise that power themselves because the local investigation constituted the best and legally necessary evidence for resolving the boundary dispute

Consequently, the lower appellate Court’s finding that the plaintiff had failed to prove that the disputed land formed part of the khasra number purchased by him was considered premature.

The judgments and decrees of both Courts below were set aside, and the matter was remanded to the trial Court for appointment of a Local Commissioner under Order 26 Rule 9 CPC, preparation of a demarcation report, and fresh adjudication of the suit in accordance with law

The parties were permitted to lead evidence only to the extent relevant to the Commissioner’s report

The trial Court was directed to decide the suit within four months from the parties’ appearance, and the plaintiff was given liberty to press his application under Order 6 Rule 17 CPC before the trial Court

The appeal was accordingly allowed, with no order as to costs.