Chattisgarh High Court
Minor Lokesh Kumar vs Goutam Prasad Sahu on 4 September, 2025
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 : Shri Shrikant Kaushik, Advocate.
For Respondents No.1 to 4: Shri Kabir Kalwani, Advocate holding the
brief of Ms. Noopur Sonkar, Advocate.
For the Respondent/ State : Shri Vedant Shadangi, P.L.
Hon'ble Shri Justice Rakesh Mohan Pandey
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,
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:
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
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
