Courts must appoint a local commissioner suo motu to resolve disputed boundaries or encroachment claims.

The plaintiff/appellant claimed ownership of Khasra Nos. 89 and 90, situated at Gram Kachnariya, Tehsil Berasia, District Bhopal.

He alleged that the defendant-adjoining landowners disputed his boundaries, had blocked the southern access-way, and were attempting to include a portion of his land within government land.

The defendants denied encroachment and asserted that the disputed way had existed and been used for a long time, while alleging that the plaintiff was obstructing their use of it.

The trial court and first appellate court dismissed the plaintiff’s suit for permanent injunction on the ground that he had failed to prove encroachment through oral and documentary evidence.

In the second appeal under Section 100 CPC, the High Court framed a substantial question concerning whether the courts below were required to appoint a local Commissioner under Order XXVI Rule 9 CPC for demarcation and spot inspection, despite the absence of an application by either party.

Whether, in a dispute concerning boundaries and/or encroachment, the courts below were required to appoint a local Commissioner under Order XXVI Rule 9 CPC for demarcation of the suit land and submission of a spot-inspection report?

Whether the judgments and decree dismissing the plaintiff’s suit could stand when the boundary and encroachment dispute had been decided without local investigation or an agreed map?

Order XXVI Rule 9 CPC empowers the court to issue a commission for local investigation where such investigation is requisite or proper to elucidate a matter in dispute.

The Court relied on Prembai v. Ghanshyam, 2010 (3) MPLJ 345, for the principle that a competent Commissioner should ordinarily be appointed where boundary demarcation is disputed.

Loknath Gautam v. State of M.P., 2018 SCC OnLine MP 600, and Beejanwala Talukdar v. Radhakrishna Rai, for the rule that encroachment or identity of land ordinarily cannot be determined in the absence of an agreed map except through a Commissioner under Order XXVI Rule 9 CPC.

Suman Pandagre v. Madhu Pandagre, 2022 SCC OnLine MP 6030, for the principle that such an application may be made at any stage and that the issue may be raised at the appellate stage.

Jaswant v. Dindayal, 2011 (2) MPLJ 576, and Baliram v. Melaram, AIR 2003 HP 87, for the proposition that the court may appoint a Commissioner suo motu, even without an application, when local investigation is necessary for a just decision.

The High Court found that title was not materially disputed: each side claimed ownership of its respective land.

The actual controversy concerned the location of the boundaries, the alleged encroachment, and the identity and use of the disputed way.

Since the parties had not produced an agreed map and the alleged encroachment could not be reliably determined merely from the oral and documentary evidence, local demarcation was the best and legally necessary means of elucidating the dispute.

Applying the principles governing Order XXVI Rule 9 CPC, the Court held that the power to appoint a Commissioner was not dependent upon an application by either party.

In the circumstances, the courts below ought to have exercised that power suo motu before deciding the injunction claim.

The High Court held that, given the boundary and encroachment dispute, the courts below acted illegally by failing to appoint a local Commissioner under Order XXVI Rule 9 CPC, even though no party had filed an application for that purpose.

The judgments and decree of the courts below were set aside, and the matter was remanded to the trial court to appoint a local Commissioner, obtain a demarcation and spot-inspection report, and decide the suit afresh in accordance with law.

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

The appeal was accordingly allowed and the records were directed to be returned to the trial court.