Local investigation cannot be used to gather evidence of alleged easementary use.

The plaintiffs brought Title Suit No. 470 of 2016 seeking, among other reliefs, a declaration of title and possession over the ‘K’ schedule property and recognition of a prescriptive easement over the ‘Kha’ schedule property, which belonged to defendants 1 and 2.

The plaintiffs asserted that the ‘Kha’ property was a pathway used by the public; the defendants pleaded that it was their private pathway.

The trial court allowed the plaintiffs’ application under Order XXVI Rule 9 of the Code of Civil Procedure (CPC) for a local investigation of L.R. Plot No. 562/676.

Defendants 1 and 2 challenged that order in revision, arguing that the investigation would improperly collect evidence and was unnecessary because no boundary, identification, or encroachment dispute had been pleaded.

Whether a local investigation under Order XXVI Rule 9 CPC was warranted where the dispute concerned the alleged use of the ‘Kha’ schedule property as a pathway, rather than the identification or boundary of the property or an encroachment.

Whether the trial court’s order allowing local investigation could stand when it identified no dispute requiring such investigation and did not specify the additional points to be investigated.

Order XXVI Rule 9 CPC gives the court discretion to direct a local investigation where it is requisite or proper to elucidate a matter in dispute; it is not intended to collect evidence that can be produced at trial.

Local investigation may be appropriate in cases involving boundary disputes, identification of land, or alleged encroachment, where on-site evidence may assist the court.

The Court considered Kolhapuri Bandu Lakade v. Yallappa Chinappa Lakade, 2011 SCC OnLine Bom 370, and Yeshwant Bhaduji Ghuse v. Vithobaji Laxman Ladekar, 2009 SCC OnLine Bom 1934, for these principles.

The pleadings disclosed no dispute about the identification or boundaries of the ‘Kha’ property and no allegation of encroachment; the dispute was whether the property was used as a public pathway or was a private pathway belonging to the defendants.

The plaintiffs could establish the alleged public use through evidence at trial, so local investigation would serve to gather evidence rather than elucidate a matter requiring on-site inquiry.

Further, although the trial court considered the proposed investigation points inadequate and said additional points were needed, it did not identify those points.

The circumstances therefore did not justify an investigation under Order XXVI Rule 9 CPC.

The revisional application was disposed of, and the connected pending application was also disposed of.