Boundary or encroachment disputes require a commissioner where no agreed map exists.

The plaintiff claimed ownership of Nazul Plot No. 151 and alleged that the defendants had encroached on a portion measuring 5 ft. × 18.9 ft., seeking removal of the construction and possession

The defendants denied encroachment and asserted that the disputed land formed part of their own plot and had been in their possession for 30 years

The trial court decreed the plaintiff’s claim, and the first appellate court affirmed, finding that the disputed land belonged to the plaintiff and had been encroached upon

In this second appeal under Section 100 CPC, the substantial question framed was whether the courts below erred in relying on the plaintiff’s sale deed, Ex. P/1, in respect of the encroached area

Whether the courts below erred in relying on sale deed Ex. P/1 to decide the claim concerning the allegedly encroached area

Whether the boundary and encroachment dispute could be decided without appointing a local Commissioner under Order 26 Rule 9 CPC to identify and demarcate the disputed land

Order 26 Rule 9 CPC empowers a court to direct a local investigation where it is requisite or proper to elucidate a matter in dispute

In a boundary or encroachment dispute, where the identity or demarcation of land is contested and there is no agreed map, a competent local Commissioner should be appointed to ascertain the boundaries and the extent of each party’s land; the court may do so suo motu, and no party’s application is necessary

The court relied, among other authorities, on Durga Prasad v. P. Foujdar, Prembai v. Ghanshyam, Loknath Gautam v. State of M.P., and Haryana Waqf Board v. Shanti Sarup for these principles

A sale deed is one piece of evidence, but an encroachment dispute must be determined on the relevant evidence, including a local Commissioner’s report where necessary

The court treated the controversy as a boundary and encroachment dispute: the parties disagreed about whether the disputed strip formed part of the plaintiff’s plot or the defendants’ plot

Although Ex. P/1 had been relied on by the courts below, the deed alone did not resolve the disputed identity and demarcation of the land

Applying the principles under Order 26 Rule 9 CPC, the court held that a local investigation was necessary to establish whether, and to what extent, an encroachment existed; the courts below had decided the dispute without that evidence

The judgments and decrees of the courts below were set aside, and the matter was remanded to the trial court to appoint a local Commissioner under Order 26 Rule 9 CPC, obtain a report, and decide the case afresh in accordance with law

The parties were permitted to lead evidence only to the extent of the Commissioner’s report; the appeal was allowed with no order as to costs