The Madhya Pradesh High Court has reaffirmed that in land disputes where boundary identification is contested, courts cannot rely solely on documentary evidence. The failure to appoint a commissioner under Order 26 Rule 9 of the CPC to demarcate disputed boundaries renders the trial procedurally defective and warrants remand.
Background & Facts
The Dispute
The plaintiff, Rukmani Devi, purchased a 0.006 hectare plot (Survey No. 1068, Neemuch) in 1991 through a registered sale deed. She alleged that defendants, including Vishnu Parihar, constructed buildings on her land in 2010. The plaintiff claimed her plot was designated as Plot No. 17 in a local layout plan. The defendants denied the plaintiff’s ownership and disputed the identity and boundaries of the plot, asserting that the plaintiff’s map (Ex.P-2) was an unofficial private document.
Procedural History
- 1991: Plaintiff acquired plot via registered sale deed (Ex.P-1).
- 2010: Plaintiff discovered construction on her land by defendants.
- 2019: Trial court dismissed suit, holding plaintiff failed to prove ownership or identity of the plot.
- 2024: First Appellate Court remanded the matter, directing appointment of a commissioner under Order 26 Rule 9 CPC to demarcate boundaries.
- 2024: Defendants filed this appeal challenging the remand order.
Relief Sought
The appellants sought to set aside the remand order, arguing that the appellate court erred in shifting the burden of proof and that no reversal of the trial court’s decree was required before remand. The respondents sought affirmation of the remand to enable proper adjudication through expert demarcation.
The Legal Issue
The central question was whether Order 26 Rule 9 of the CPC mandates the appointment of a commissioner to demarcate boundaries in a civil suit when the identity of the disputed land cannot be determined from documents alone, and whether such remand requires prior reversal of the trial court’s decree.
Arguments Presented
For the Appellant
The appellants contended that the plaintiff bore the primary burden to prove the identity of the suit property, and the appellate court wrongly imposed an evidentiary burden on the defendants by drawing adverse inference for not producing a counter-map. They argued that the appellate court did not reverse the trial court’s finding of non-proof, making remand impermissible under Order 43 Rule 1(u) CPC. They relied on P. Purushottam Reddy v. Pratap Steels Ltd. and Uttaradi Mutt v. Raghavendra Swamy Mutt to argue that remand without reversal of decree is illegal.
For the Respondent
The respondents argued that the dispute was not about title but about boundary demarcation, which required technical expertise. They highlighted that the plaintiff had filed applications under Order 26 Rule 9 CPC at both trial and appellate stages, which were ignored. They cited Suman Pandagre v. Madhu Pandagre and Jaswant v. Dindayal to establish that courts have a duty to appoint commissioners in boundary disputes, even suo motu. They emphasized that the remand was limited to boundary verification, not a de novo trial.
The Court's Analysis
The High Court examined the nature of the dispute and found that the conflict was not over ownership but over the physical boundaries of the plots. The court noted that the sale deeds of both parties contained conflicting boundary descriptions, and the plaintiff’s map (Ex.P-2), though private, was relied upon by the defendants themselves to identify their own construction as Plot 17-I and 17-J. This created a clear inconsistency requiring technical resolution.
"The basic concept for filing an application seeking appointment of Commissioner for identity of a land in question or where there is any boundary dispute... normally the Court should have appointed the Commissioner."
The Court held that the trial court’s rejection of the application under Order 26 Rule 9 CPC was erroneous. The appellate court’s remand was not a wholesale retrial but a targeted directive to ascertain boundaries through a commissioner’s report. The Court distinguished Uttaradi Mutt and P. Purushottam Reddy, noting that those cases involved new evidence under Order 41 Rule 27 CPC, whereas here, the issue was procedural non-compliance with a mandatory judicial duty.
The Court further clarified that while the burden of proving title lies with the plaintiff, once a boundary dispute is evident from conflicting descriptions and reliance on unofficial maps, the court’s duty to ensure accurate adjudication arises. The adverse inference drawn against the defendants for not producing a counter-map was justified, as they had used the same map to describe their own construction.
The Verdict
The appellants’ appeal was dismissed. The Court held that Order 26 Rule 9 CPC imposes a non-discretionary duty on courts to appoint a commissioner in boundary disputes, and failure to do so vitiates the trial. The remand order was upheld as lawful, necessary, and proportionate.
What This Means For Similar Cases
Commissioner Appointment Is Mandatory in Boundary Disputes
- Practitioners must file applications under Order 26 Rule 9 CPC at the earliest stage if boundary descriptions in sale deeds conflict.
- Courts cannot dismiss such applications on grounds of delay or formality; the rule is procedural, not discretionary.
- Failure to appoint a commissioner may render the entire decree liable to be set aside on appeal.
Adverse Inference Can Be Drawn Against Parties Withholding Counter-Evidence
- If a party relies on a map or document to support their claim, they cannot later reject it without producing a superior alternative.
- Courts may draw adverse inference under Section 114 of the Evidence Act when a party withholds evidence within their control.
Remand Does Not Require Reversal of Decree When Limited to Technical Issues
- A remand under Order 43 Rule 1(u) CPC is valid even without reversing the trial court’s decree if the purpose is to correct a procedural defect.
- The appellate court need not re-evaluate all evidence; it need only identify the specific gap requiring expert input.
