MP HC Sends Alleged 66-Sq-Ft Encroachment Dispute Back For Local Demarcation Before Fresh Ruling

The respondent-plaintiff claimed ownership of a house and adjoining open land, alleging that the appellant-defendant had encroached on a strip measuring 3 ft. × 22 ft.

The defendant maintained that the disputed construction stood on his own ancestral land.

The trial court dismissed the suit, finding that the plaintiff had not established that the disputed strip formed part of his property; the first appellate court reversed that decision and decreed the plaintiff’s claim for declaration of title and possession.

The defendant appealed under Section 100 CPC.

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

The Court relied on Bagdiram v. Ram Singh, 2025 (3) MPLJ 116; 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, where a boundary, identity-of-land, or encroachment dispute cannot be resolved from an agreed map, a local investigation may be necessary; the court may appoint a Commissioner suo motu, and no party application is required.

The parties disputed whether the strip in question formed part of the plaintiff’s property or the defendant’s property.

Even assuming the plaintiff’s title, the decisive question remained the strip’s location in relation to the parties’ respective lands.

The Court held that this boundary and encroachment dispute could not properly be resolved without demarcation by a local Commissioner under Order XXVI Rule 9 CPC.

Because neither court below had appointed a Commissioner, the appellate court’s decree could not stand, nor could the trial court’s dismissal be restored without the necessary investigation.

It allowed the appeal, set aside both courts’ judgments and decrees, and remanded the matter to the trial court to appoint a local Commissioner, obtain a report, and decide the case afresh in accordance with law.

The parties may lead further evidence only to the extent of the Commissioner’s report; there was no order as to costs.