In boundary or encroachment disputes, courts must appoint a local Commissioner absent an agreed map.

The plaintiff claimed ownership of Khasra No. 494, area 0.186 hectare, purchased through a registered sale deed dated 04.03.2002, subsequently subdivided as Khasra No. 494/1. The defendants allegedly encroached upon the northern portion by constructing a boundary wall and, thereafter, a water tank and wall over approximately 0.010 hectare of the plaintiff’s land.

An earlier suit for permanent injunction filed by the plaintiff had been decreed, and the appeals against that decree were dismissed. Although a local Commissioner’s report had been obtained in the earlier proceedings, the plaintiff instituted the present suit for possession after the alleged subsequent construction.

The defendants denied any encroachment and asserted that the constructions were situated on their own land.

The trial Court decreed the suit for possession, and the lower appellate Court affirmed the decree.

Whether the Courts below erred in not appointing a local Commissioner under Order XXVI Rule 9 of the CPC to examine the location of the suit land, the parties’ possession, and the alleged encroachment?

Order XXVI Rule 9 of the CPC empowers the Court to appoint a Commissioner for local investigation where such investigation is requisite or proper for elucidating a matter in dispute.

In boundary, demarcation, identity-of-land, and encroachment disputes, particularly where there is no agreed map, local investigation is generally a legal necessity for determining the physical location and extent of the alleged encroachment.

The Court relied on Prembai v. Ghanshyam, 2010 (3) MPLJ 345; Loknath Gautam v. State of M.P., 2018 SCC OnLine MP 600; Suman Pandagre v. Madhu Pandagre, 2022 SCC OnLine MP 6030; Jaswant v. Dindayal, 2011 (2) MPLJ 576; Vayathinattar v. Sakkubai Ammal, AIR 2004 Mad 419; and Baliram v. Melaram, AIR 2003 HP 87.

These authorities establish that the Court may appoint a Commissioner suo motu, even without an application by either party, and that such an application may be raised at any stage, including in appeal.

The dispute concerned the precise boundary and identity of the land allegedly encroached upon, as the defendants specifically denied that the boundary wall and water tank stood on the plaintiff’s property.

The respondent’s reliance on the Commissioner’s report from the earlier suit did not cure the defect because that report was merely evidence from the previous proceedings and was not a local investigation conducted for determining the disputed issues in the present suit.

In the absence of an agreed map or reliable demarcation, the Courts below could not conclusively determine the location and extent of the alleged encroachment solely on the existing evidence.

Applying the principles governing Order XXVI Rule 9, the High Court held that appointment of a competent local Commissioner was necessary to obtain the best evidence and to ensure a just adjudication.

The judgments and decrees of the trial Court and the lower appellate Court were set aside, and the matter was remanded to the trial Court for appointment of a local Commissioner under Order XXVI Rule 9 of the CPC, preparation of a report, and fresh adjudication in accordance with law.

The parties were permitted to lead evidence only to the extent necessary concerning the Commissioner’s report and the enquiry report placed on record in the appeal.

The trial Court was directed to decide the suit expeditiously. The appeal was allowed, with no order as to costs.