1 - Minor Lokesh Kumar S/o Satanand Sahu Aged About 16 Years Minor Through v. 1 - Goutam Prasad Sahu S/o Late Ramkhilaw
Case Details
1 2025:CGHC:45189 NAFR NIRMALA RAO HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 483 of 2023 1 - Minor Lokesh Kumar S/o Satanand Sahu Aged About 16 Years Minor Through Legal Natural Guardian Father Satanand Sahu, S/o Budhram, Aged About 54 Years, R/o Village Ganiyari, Tahsil Takhatpur, District Bilaspur (C.G.) 2 - Minor Hemant Kumar S/o Satanand Sahu Aged About 13 Years Minor Through Legal Natural Guardian Father Satanand Sahu, S/o Budhram, Aged About 54 Years, R/o Village Ganiyari, Tahsil Takhatpur, District Bilaspur (C.G.) ... Petitioner(s) versus 1 - Goutam Prasad Sahu S/o Late Ramkhilawan Aged About 55 Years R/o Village Ganiyari, Tahsil Takhatpur, District Bilaspur, Chhattisgarh 2 - Janak Ram Sahu S/o Late Ramkhilawan Sahu Aged About 58 Years R/o Village Ganiyari, Tahsil Takhatpur, District Bilaspur Chhattisgarh. 3 - Suresh Kumar Sahu S/o Late Sudhram Aged About 52 Years R/o Village Ganiyari, Tahsil Takhatpur, District Bilaspur Chhattisgarh. 4 - Durgesh Kumar Kaushik S/o Fekuram Aged About 37 Years R/o Village Ganiyari, Tahsil Takhatpur, District Bilaspur Chhattisgarh. 5 - State Of Chhattisgarh Through Collector, Bilaspur District Bilaspur Chhattisgarh. ... Respondent(s) 2 For the Petitioners For Respondents No.1 to 4:
Legal Reasoning
: Shri Shrikant Kaushik, Advocate. Shri Kabir Kalwani, Advocate holding the brief of Ms. Noopur Sonkar, Advocate. Shri Vedant Shadangi, P.L. For the Respondent/ State : Hon'ble Shri Justice Rakesh Mohan Pandey
Decision
ORDER 04.09.2025 1. The petitioners/ plaintiffs have challenged the order dated 6.2.2023 passed by the learned Civil Judge, Class-II, Takhatpur, District Bilaspur, whereby an application moved by the plaintiffs under Order 26 Rule 9 of CPC was rejected. 2. Learned counsel for the petitioners would submit that the petitioners filed a suit seeking reliefs of declaration of title, permanent injunction and possession after demolition of the house constructed by the defendants over part of the suit property bearing Survey No.320 admeasuring 0.20 acres, situated at Village Ganiyari, Patwari Halka No.50, Revenue Circle Sakri, Takhatpur, District Bilaspur. He would contend that the suit property was purchased by their father through a registered sale-deed dated 24.3.2017 from one Khorbahara Sahu for a sale consideration of Rs.2,00,000/-. He would contend that the name of father of the petitioners was entered in the revenue records and after his death, the plaintiffs got possession and title. He would contend that the respondents illegally encroached upon part of the suit land and they started construction of a house and courtyard. He would submit that the petitioners moved an application under Order 26 Rule 9 read with Section 151 of CPC for the appointment of local Commissioner, 3 but the same was rejected by the learned trial Court without assigning sufficient reasons. He has placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of Haryana Waqf Board vs. Shanti Sarup and Ors., arising out of SLP N0. 7510 of 2007. He would pray to quash the impugned order. 3. On the other hand, learned counsel for the respondents would oppose the submissions made by counsel for the petitioners. They would submit that there is no dispute with regard to identification of boundaries. They would contend that the petitioners may prove their right and possession over the suit property by adducing evidence. It is also contended that the petitioners cannot be permitted to collect evidence through the Court and therefore, the learned trial Court has rightly rejected the application. 4. I have heard learned counsel for the parties and perused the documents present on record. 5. In the plaint, the plaintiffs have alleged that the private defendants have encroached over part of the suit property and started raising construction of a house and courtyard. It appears that there is a dispute with regard to identification of boundaries and therefore, an application under Order 26 Rule 9 of CPC was moved by the petitioners. 6. Order 26 Rule 9 of the CPC is reproduced hereinbelow:- “9. Commissions to make local investigations. - In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court: 4 Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.” 7. The Hon’ble Supreme Court in the matter of Haryana Waqf Board (supra), held in para 2 as follows: “2. This is an appeal filed by the Punjab Waqf Board who was the plaintiff in a suit for declaration and injunction. The High Court in the second appeal had summarily dismissed the appeal on the ground that the second appeal was concluded by the concurrent findings of fact arrived at by the courts below. From the judgment itself, it would appear that the Board had failed to prove that the respondents have encroached any land belonging to the appellant-Board. In view of the aforesaid position, the second appeal was summarily dismissed by the High Court. In our view, the High Court ought not to have dismissed the suit summarily merely on the ground that the second appeal was concluded by the concurrent findings of fact. The dispute that was raised by the parties before the court was whether the respondent had encroached upon any land belonging to the appellant-Board. Therefore, it cannot be in dispute that the dispute was in respect of the encroachment of the suit land. Admittedly, in this case, an application was filed under Order 26 Rule 9 of the Code of Civil Procedure which was rejected by the trial court but in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the court to direct the investigation by appointing a Local Commissioner under Order 26 Rule 9 of the CPC. The appellate court found that the trial court did not take into consideration the pleadings of the parties when there was no specific denial on the part of the respondents regarding the allegations of unauthorized possession in respect of the suit land by them as per paragraph 3 of the plaint. But the only controversy between the parties was regarding demarcation of the suit land because land of the respondents was adjacent to the suit land and the application for demarcation filed before the trial court was wrongly rejected. It is also not in dispute that even before the appellate court, the appellant-Board had filed an application for appointment of a Local Commissioner for demarcation of the suit 5 land. In our view, this aspect of the matter was not at all gone into by the High Court while dismissing the second appeal summarily. The High Court ought to have considered whether in view of the nature of dispute and in the facts of the present case, whether the Local Commissioner should be appointed for the purpose of demarcation in respect of the suit land.” 8. The learned trial Court has rejected the application on the ground that the plaintiffs may prove their title and possession over the property by leading evidence. It appears that the learned trial Court has not assigned sufficient reasons while rejecting the application, therefore, the order passed by the learned trial Court is hereby set aside and the application moved by the petitioner under Order 26 Rule 9 of CPC is hereby allowed. The learned trial Court is directed to appoint a Commissioner as prayed for in the application. 9. With the aforesaid observation(s) and direction(s), this petition is disposed of. 10. Interim order granted earlier is hereby vacated. Sd/- (Rakesh Mohan Pandey) Judge Nimmi