The Himachal Pradesh High Court has clarified that in suits involving ancestral land with complex historical ownership spanning multiple generations, the appointment of a revenue expert is not merely discretionary but necessary to ensure just adjudication under Order 26 Rules 9 and 10A of the Code of Civil Procedure. This ruling reinforces the court’s duty to facilitate factual clarity when documentary records have been altered through consolidation and settlement operations.
Background & Facts
The Dispute
The petitioner, plaintiff No. 2 in Civil Suit No. 178-I/2016 titled Shiv Dutt & Ors. vs. Om Dutt & Ors., seeks a declaration that the suit land measuring 93,732.59 square decimal meters in Village Gagret, Tehsil Ghanari, District Una, is ancestral Joint Hindu Family Coparcenary property. The property originally belonged to the common ancestor Shri Arjan, who died in the early 20th century. Upon his death, the property devolved to his son Shri Ram Dass, who died on 10.03.1924. Mutation No. 484 dated 19.05.1928 recorded the devolution of Ram Dass’s estate to his sons Shri Mangtu and Shri Ralla. Mangtu died in 1965, and his estate was recorded in Mutation No. 2029 dated 24.07.1965 in the name of his son, Shri Lekh Raj, the predecessor-in-interest of all parties.
Key Facts
- The suit land was originally held under old Khasra numbers prior to 1979-80
- In 1979-80, the village underwent consolidation operations, resulting in new Khasra numbers
- In 1990-91, settlement operations were conducted, creating new Mohals (Ram Nagar, Indira Nagar, etc.) and converting measurements to metric system
- Revenue records from 1922-23, 1946-47, and 1965-66 were submitted by plaintiffs
- Copies of Mutation No. 484 (1928) and Mutation No. 2029 (1965) were attached to the application
- Defendant No. 1 obtained a decree in Civil Suit No. 174/95 (decided 25.11.1995, decree sheet 04.04.1996) for 4577.82 sq. D.M. of the suit land, which plaintiffs allege is collusive and fraudulent
- Defendant No. 1, acting through a Power of Attorney dated 12.06.2012, executed three registered sale deeds (No. 2474, 2475, 2476) dated 22.08.2015 in favor of Defendant No. 2 (his wife), transferring portions of the land
- Plaintiffs challenge the validity of the Power of Attorney and sale deeds as forged and executed without legal necessity
- Plaintiffs also challenge the validity of a will dated 24.04.2012, allegedly executed by Lekh Raj
- Defendants claim Lekh Raj was the absolute owner under Hindu Succession Act and had received compensation under Land Acquisition Act, 1894
Procedural History
- 17.03.2016: Civil Suit No. 178-I/2016 filed before Senior Civil Judge, Court No. 1, Amb, Una
- 2018: Plaintiffs filed application under Order 26 Rule 9 and 10A CPC for appointment of revenue expert to trace land history
- 2018: Plaintiffs filed application under Order 39 Rule 7 CPC for appointment of local commissioner to inspect alleged unauthorized construction of gate
- 16.06.2017: Trial Court passed interim order directing parties to maintain status quo over suit land, but permitted construction of cattle shed on Khasra No. 563
- 29.05.2025: Trial Court dismissed both applications
- 05.03.2026: Civil Revision No. 79 of 2025 heard and reserved
- 24.03.2026: Judgment delivered by Hon’ble Justice Jiya Lal Bhardwaj
The Parties' Positions
Plaintiffs/Petitioners: Argued that tracing land ownership across four generations (Arjan → Ram Dass → Mangtu → Lekh Raj) and linking old Khasra numbers to new ones post-consolidation and settlement is impossible without a revenue expert. They cited Karan Singh v. Malkiat Devi (2010) to support the necessity of expert assistance under Order 26 Rules 9 and 10A CPC. They emphasized that the burden of proof does not shift to them to prove ownership without judicial aid when records are fragmented.
Defendants/Respondents: Contended that the court cannot act as an investigative agency to collect evidence for plaintiffs. They relied on Ratti Ram v. Shobha Ram (2021), Rajinder Singh v. Ran Singh (2023), and Jaswant Singh v. Meera Devi (2023) to argue that applications filed at a late stage, especially before evidence is led, are improper. They asserted that plaintiffs had ample opportunity to lead evidence but failed to do so.
Relief Sought
- Appointment of a revenue expert to prepare excerpts and historical record of the suit land linking old and new Khasra numbers
- Appointment of a local commissioner to inspect and report on alleged violation of status quo order by construction of a gate
- Declaration that the suit land is ancestral coparcenary property
- Declaration that the decree in Civil Suit No. 174/95 and sale deeds dated 22.08.2015 are void-ab-initio
- Permanent injunction restraining defendants from alienating or encumbering the property
The Legal Issue
Whether the court is obligated under Order 26 Rule 9 and 10A CPC to appoint a revenue expert to trace the historical ownership of ancestral land across four generations following consolidation and settlement operations, even if the plaintiffs have not yet led evidence?
Arguments Presented
For the Appellant/Petitioner
The petitioner’s counsel relied on Karan Singh v. Malkiat Devi (2010) (2010 (3) Shim. LC 543), where this Court held that when land history must be traced across four or five generations, and old Khasra numbers have been replaced due to consolidation and settlement, only a revenue expert can accurately link historical records to current entries. Counsel emphasized that the purpose of Order 26 Rule 9 is not to collect evidence but to elucidate disputed facts that cannot be ascertained otherwise. The legislature’s intent, they argued, is to prevent protracted litigation by enabling courts to use expert assistance to clarify complex factual matrices. They further cited Bali Ram v. Mela Ram (2002) to affirm that courts may issue commissions suo motu if necessary for justice.
For the Respondent/State
The respondents’ counsel argued that the court cannot act as an investigator for the plaintiffs. They contended that under the adversarial system, the burden of proof lies with the plaintiff, and applications under Order 26 Rules 9 and 10A CPC cannot be used as a tool to gather evidence. They relied on Ratti Ram v. Shobha Ram (2021), where the court upheld dismissal of a similar application filed at the stage of arguments, and Rajinder Singh v. Ran Singh (2023), where the application was rejected because evidence had already been led. They asserted that the plaintiffs had multiple opportunities to lead evidence but chose not to, and therefore, the trial court was justified in rejecting the application.
The Court's Analysis
The Court undertook a detailed examination of the legislative intent behind Order 26 Rule 9 and 10A CPC. It observed that Rule 9 permits the court to issue a commission for local investigation to elucidate any matter in dispute, while Rule 10A empowers the court to appoint an expert where a question involves a scientific investigation that cannot be conveniently conducted in court. The Court noted that the trial court’s reasoning - that it could revisit the issue later - was legally untenable, as it would create procedural prejudice if the application were rejected outright.
"When the history of certain land, i.e. its Khasra numbers and ownership has to be traced up to more than four or five generations, it cannot be done without the help of a Revenue Expert. It is only a Revenue Expert who will be able to trace out and link the old Khasra numbers with the new Khasra numbers in the revenue record."
The Court emphasized that the consolidation of 1979-80 and settlement of 1990-91 fundamentally altered the revenue record structure. Without expert assistance, the court would be forced to rely on fragmented, inconsistent, and potentially manipulated entries. The Court rejected the respondents’ argument that this amounted to evidence collection, clarifying that the expert’s role is not to prove the plaintiffs’ case but to provide an objective, technical reconstruction of the factual matrix.
The Court distinguished Ratti Ram and Rajinder Singh on factual grounds: in those cases, applications were filed after evidence was led, whereas here, no evidence had been recorded. The Court held that the timing of the application - filed in 2018, before evidence began - was entirely appropriate. It further noted that defendants had not disputed the occurrence of consolidation or settlement operations, making the need for expert assistance unambiguous.
The Court also addressed the respondents’ claim that the plaintiffs had concealed the Land Acquisition Act proceedings. It held that such allegations, if true, are matters for cross-examination and rebuttal after the expert’s report is submitted - not grounds to deny the appointment outright.
The Verdict
The petition is partly allowed. The order dated 29.05.2025 dismissing the application under Order 26 Rule 9 and 10A CPC is quashed and set aside. The trial court is directed to appoint an appropriate Revenue Officer as an expert to prepare excerpts and a historical record of the suit land, linking old and new Khasra numbers as per revenue records from 1922-23 to the present. The order dismissing the application under Order 39 Rule 7 CPC is upheld, as no photographic or documentary evidence of violation of the status quo order was produced. Both parties are directed to appear before the trial court on 06.04.2026.
What This Means For Similar Cases
Appointment of Revenue Experts Is Not Discretionary in Complex Land Histories
- Practitioners must file applications under Order 26 Rule 9 and 10A CPC early in suits involving ancestral land with consolidation/settlement history
- Courts are now bound to grant such applications when land history spans four or more generations
- Failure to appoint an expert where required may render the final decree unenforceable due to factual ambiguity
Evidence Collection ≠ Judicial Assistance for Factual Clarification
- Courts are not collecting evidence by appointing experts; they are facilitating accurate adjudication
- The burden of proof remains on the plaintiff, but the court must enable the plaintiff to meet that burden through expert assistance
- Defendants retain full rights to challenge the expert’s report through cross-examination and rebuttal evidence
Consolidation and Settlement Operations Trigger Mandatory Expert Intervention
- Any land subject to post-1970 consolidation or post-1990 settlement operations in rural India must be treated as requiring expert tracing
- Revenue records post-consolidation are not self-explanatory; historical linkage is legally indispensable
- Courts must proactively consider expert appointments even if no party moves for it, under the principle of suo motu jurisdiction under Rule 9
