In boundary or encroachment disputes, courts must appoint a local commissioner even suo motu.

The plaintiff claimed ownership of land in Khasra No. 38/4, purchased by registered sale deed in 2000, and alleged that the defendant had encroached upon it.

The defendant denied encroachment and asserted possession under a 2012 sale deed for adjoining land.

A pre-suit demarcation had reportedly found encroachment.

The trial court partly decreed the plaintiff’s claim, but the first appellate court dismissed her appeal.

In the second appeal, the High Court considered whether the courts below should have appointed a Local Commissioner to investigate the boundary and encroachment dispute.

1. Whether, in a dispute concerning boundaries or encroachment, the courts below were required to appoint a Local Commissioner under Order XXVI Rule 9 of the Code of Civil Procedure, even though neither party had sought one.

2. Whether the pre-suit demarcation report was only a piece of evidence, rather than a court-commission report, and therefore not conclusive of the dispute.

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

The Court relied on Bagdiram v. Ramsingh, which held that local investigation is ordinarily necessary in boundary or encroachment disputes where land identity cannot be established by an agreed map; Prembai v. Ghanshyam and Jaswant v. Dindayal, concerning the court’s responsibility to obtain demarcation in such disputes; and Keshav Singh v. Dhantobai, which distinguished a pre-suit revenue demarcation from a report made pursuant to a court’s commission.

The Court also observed that the power to appoint a commissioner may be exercised suo motu and that no party application is necessary.

The parties disputed whether the defendant’s possession extended beyond the land purchased by him and into the plaintiff’s land, making identification of the boundary and the alleged encroachment central to the case.

The only demarcation report was prepared before the suit and was not a report obtained under a court’s direction.

Applying Order XXVI Rule 9 CPC and the cited authorities, the Court held that the courts below should themselves have appointed a Local Commissioner to demarcate the land and report on the spot conditions.

Their failure to do so meant the dispute had been decided without the local investigation considered necessary to determine it reliably.

The High Court set aside the judgments and decrees of the courts below, and remanded the matter to the trial court to appoint a Local Commissioner under Order XXVI Rule 9 CPC, obtain a report, and decide the case afresh in accordance with law.

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

The appeal was allowed with no order as to costs.