Local Investigation Under Order XXVI Rule 9 CPC May Be Ordered at Any Stage to Resolve Bona Fide Demarcation Disputes

The Petitioners purchased specific plots (Plot Nos. 1303/2195/3016 and 1303/2195/3012) in Mouza Baligohiri, which were mutated in their names in 2021.

The Opposite Parties (State) demarcated land for the Salandi Left Main Canal project and began excavation.

The Petitioners filed civil suits for declaration and demarcation, alleging the State illegally demarcated their private land based on an erroneous map that displaced the plot's location from the southern to the eastern side of the parent plot.

After evidence was adduced, the Petitioners moved applications under Order XXVI Rule 9 of the CPC for the appointment of a Survey Knowing Commissioner to identify the suit plots on-site.

The Trial Court rejected these applications on July 10, 2025, holding that such applications should be filed at an early stage and that no genuine dispute regarding identification existed.

The Petitioners challenged this via Article 227 of the Constitution.

Order XXVI Rule 9 of the CPC, which empowers the court to issue a commission for local investigation to "elucidate any matter in dispute".

The CPC does not prescribe a specific stage for such appointment as established in Bhabesh Kumar Das v. Mohan Das Agrawal [2015 (Supp. II) OLR 984].

Supervisory jurisdiction under Article 227 is limited to cases of grave injustice, jurisdictional error, or patent perversity as followed in Surya Dev Rai v. Ram Chander Rai [(2003) 6 SCC 675] and Radhey Shyam v. Chhabi Nath [(2015) 5 SCC 423].

The High Court found the Trial Court’s reasoning fundamentally flawed on two counts. First, it held that Order XXVI Rule 9 is not "stage-centric" and can be invoked whenever the court deems it necessary to elucidate facts that can only be assessed on the spot.

Second, the Court found the Trial Court's observation that "no dispute exists" regarding identification to be perverse and contrary to the record.

The High Court noted that the Petitioners' Amin (P.W. 3) admitted to improper measurement, and the Defense Witness (D.W. 1) explicitly contested the plot's topography (southern vs. eastern side).

Since the suit itself was for demarcation, the Commissioner’s report was deemed essential for an effective decree.

The Court clarified that while the project involved public importance, this did not override a citizen’s right to a proper adjudication of property rights.

The High Court allowed the CMPs, set aside the impugned order dated July 10, 2025, and directed the appointment of a suitable Survey Knowing Commissioner within four weeks.