The Madhya Pradesh High Court has reaffirmed that in civil suits involving boundary disputes, the appointment of a Local Commissioner under Order 26 Rule 9 of the Code of Civil Procedure is not discretionary but mandatory when the very foundation of title and possession hinges on accurate land demarcation. The judgment overturns a trial court’s dismissal of a suit on the ground of encroachment, where no demarcation was conducted despite clear evidence of conflicting claims over survey numbers.
Background & Facts
The Dispute
The appellant, Jai Gopal Sharma, filed a civil suit for declaration of title and permanent injunction against the State of Madhya Pradesh and five other defendants, claiming ownership and possession over Survey Nos. 495A and 496A in Morena district. He alleged that the defendants, particularly Nos. 4 to 6, were attempting to illegally seize a basement hall he had constructed on Survey No. 496A, with an approach road adjoining the National Highway on Government Survey No. 497. The dispute centered entirely on whether the basement and access road were situated on the appellant’s land (Survey Nos. 495A and 496A) or on government land (Survey No. 497).
Key Facts
- The appellant constructed a basement hall measuring 65 feet by 27 feet on land he claimed as Survey No. 496A
- The structure is adjacent to the National Highway, increasing the land’s commercial value
- Defendant Nos. 4 to 6, who did not file written statements, allegedly filed false complaints to dispossess the appellant
- Defendant Nos. 1 to 3, including the State, contended the basement encroached upon Government Survey No. 497
- A Patwari, Uday Bhan Singh Tomar (DW-1), testified that he had conducted a prior demarcation in 2003 and 2006, during which the land was vacant, and submitted a report to the Tehsildar
- The demarcation report prepared by the Patwari was allegedly in the custody of the Government Advocate but was not produced in court
- The Patwari admitted under cross-examination that without access to official records or physical demarcation, he could not determine the exact boundaries or extent of encroachment
Procedural History
- 2007: Civil Suit No. 47A/2007 filed by plaintiff before the Second Additional District Judge, Morena
- 13/02/2007: Trial Court rejected Defendant’s application under Order 26 Rule 9 CPC for appointment of a Local Commissioner
- 24/01/2008: Trial Court dismissed the suit, holding that the basement encroached upon Survey No. 497
- 06/04/2026: First Appeal No. 65 of 2008 heard and reserved by the High Court
- 08/04/2026: Judgment pronounced by the High Court
The Parties' Positions
The appellant argued that his title over Survey Nos. 495A and 496A was undisputed, and the only issue was the location of the basement relative to Survey No. 497. He contended that a boundary dispute required demarcation by a Local Commissioner under Order 26 Rule 9 CPC, which the Trial Court wrongly refused.
The State, through its Advocate, argued that the application for demarcation was rightly rejected because the issue of possession was a question of fact to be decided by the court after evidence, not by a commissioner.
Relief Sought
The appellant sought reversal of the trial court’s decree, declaration of title over Survey Nos. 495A and 496A, and a permanent injunction against the defendants from interfering with his possession.
The Legal Issue
The central question was whether, in a civil suit where the very existence of title and possession depends on resolving a boundary dispute between private land and government land, the court is obligated under Order 26 Rule 9 CPC to appoint a Local Commissioner for demarcation, even when one party opposes it.
Arguments Presented
For the Appellant
Counsel for the appellant relied on established precedent, including Ashutosh Dubey v. Tilak Grih Nirman Sahakari Samiti and Surya Dev Rai v. Ram Chander Rai, to argue that when the location of a structure is contested and the boundaries are unclear, demarcation by a Local Commissioner is the only reliable method to ascertain facts. He emphasized that the Patwari’s unfiled report and his own admission of inability to testify without records rendered the trial court’s factual determination speculative. The appellant further argued that his opposition to the commissioner’s appointment was based on procedural grounds, not substantive denial of encroachment, and could not justify denial of a statutory remedy.
For the Respondent
The Government Advocate contended that Order 26 Rule 9 CPC permits appointment of a commissioner only for matters like market value, mesne profits, or damages - not for determining possession or title. He cited Ashutosh Dubey to argue that the trial court correctly treated possession as a question of fact to be resolved by evidence, not by commission. He also argued that the appellant’s opposition to demarcation indicated guilt and that the State’s failure to produce the Patwari’s report was not fatal to its case.
The Court's Analysis
The Court undertook a detailed review of the evidence and procedural history. It noted that the Patwari, DW-1, had explicitly stated under cross-examination that he could not determine the location of the basement without access to official records or a physical demarcation. He further admitted that a demarcation report had been prepared and submitted to the Tehsildar, and that the report was in the custody of the Government Advocate but had not been produced in court.
"It is clear from the evidence of Uday Bhan Singh Tomar (DW-1) that in absence of demarcation report as well as the record, he is not in a position to say that plaintiff has encroached upon Survey No. 497."
The Court held that the trial court’s refusal to appoint a Local Commissioner was a material illegality. It distinguished Ashutosh Dubey, noting that in that case, the commissioner was appointed to determine possession - a matter reserved for the court. Here, the issue was not possession per se, but the physical location of the structure relative to survey boundaries, which is precisely the domain of a Local Commissioner under Order 26 Rule 9 CPC.
The Court further observed that the appellant’s objection to the commissioner’s appointment was not on the ground that demarcation was unnecessary, but because he objected to a revenue officer conducting it. The Court rejected this objection, holding that revenue officers are the natural authorities for demarcation and their impartiality cannot be presumed to be compromised merely because the State is a party.
The Court emphasized that the withholding of the demarcation report by the Government Advocate raised a serious question of procedural fairness. The failure to produce a document known to exist and relevant to the dispute warranted an adverse inference against the State.
The Verdict
The appellant’s appeal was allowed. The judgment and decree of the Trial Court dated 24/01/2008 were set aside. The Collector, Morena, is appointed as the Local Commissioner to demarcate Survey Nos. 495A, 496A, and 497, and to submit a detailed report on whether the basement and approach road lie on private or government land. The Collector must personally supervise the demarcation. The appellant must deposit Rs. 25,000 with the Trial Court by his next appearance; failure to do so will result in automatic revival of the trial court’s decree. The Trial Court shall decide the suit afresh upon receipt of the demarcation report. The parties are directed to appear before the Trial Court on 22/06/2026.
What This Means For Similar Cases
Demarcation Is Mandatory in Boundary Disputes
- Practitioners must file applications under Order 26 Rule 9 CPC in all suits where land boundaries are contested, regardless of whether the State is a party
- Courts cannot refuse such applications on the ground that possession is a question of fact - demarcation is a factual inquiry that aids the court’s determination
- Opposition by a party to demarcation does not negate the court’s duty to appoint a commissioner when the dispute is inherently spatial
Withholding Evidence Raises Adverse Inference
- If a party possesses a relevant document (e.g., demarcation report) and fails to produce it without justification, the court may draw an adverse inference under Section 114, Indian Evidence Act
- Government advocates must ensure all relevant revenue records are filed; non-production may prejudice the State’s case
Revenue Officers Are Presumptively Impartial
- Appellants cannot object to appointment of Patwaris or Tehsildars as commissioners merely because the State is involved
- The law presumes revenue officers act impartially in demarcation matters, and their reports carry evidentiary weight
