1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 14 TH DAY OF MARCH, 2013 B E F O R E THE HON BLE MR. JUSTICE A.N. VENUGOPALA GOWDA WRIT PETITION NO.6488/2013 (GM-CPC) BETWEEN: MOHAN B C AGED ABOUT 44 YEARS, S/O CHANDRASHEKARAIAH, R/AT BULLENAHALLY VILLAGE, SHETTIKERE HOBLI, CHIKKANAYAKANAHALLY TALUK, TUMKUR DISTRICT-572 225....PETITIONER (BY SRI S.N.BHAT, ADV.) AND: 1. TEJARAJ AGED ABOUT 30 YEARS, S/O LATE RAMALINGAIAH. 2. SIDDARAMAIAH AGED ABOUT 66 YEARS, S/O LATE GANGANNA. 3. UMESHA AGED ABOUT 47 YEARS, S/O CHANDRASHEKARAIAH,
2 RESPONDENTS 1 TO 3 ARE R/AT BULLENAHALLY VILLAGE, SHETTIKERE HOBLI, CHIKKANAYAKANAHALLY TALUK, TUMKUR DISTRICT-572 225. 4. THE SECRETARY GRAMA PANCHAYATH, HONNEBAGI, CHIKKANAYAKANAHALLY TALUK 572 225....RESPONDENTS THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER ON IA NO.11 IN O.S.NO14/2007 DATED 28.1.2013 PASSED BY THE LEARNED PRINCIPAL CIVIL JUDGE AND JMFC., CHIKKANAYAKANAHALLY, TUMKUR DISTRICT AS PER ANNEXURE-F AND GRANT ANY OTHER RELIEF. THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING: ORDER This writ petition is by the defendant in O.S.No.14/2007 filed by the respondent Nos.1 and 2 in the Court of Civil Judge & JMFC, Chikkanayakanahally, to pass a judgment and decree declaring that the plaintiffs are the owners of the plaint schedule property and grant a decree of permanent injunction restraining the defendants from interfering with the plaintiffs enjoyment of the suit property and also a decree of mandatory injunction directing the defendants 1 and 2, to demolish the
3 encroached basement and a part of wall put up in EFGD part of the suit property and for consequential reliefs. The defendants 1 and 2 having filed common written statement, issues having been raised based on the pleadings, the trial has taken place. 2. The plaintiff filed I.A.3 under Order 26 Rule 9 of CPC to appoint an advocate as Court Commissioner to measure the house sites bearing khata Nos.28 and 29 of Bullenhalli Village and adjacent to panchayath road and demarcate the boundary line and fix the boundary marks of house sites of plaintiffs and defendants, in conformity with the title deeds and layout plan and also to inspect he house of the plaintiff and 2 nd defendant and verify other related matters with respect to the properties of the plaintiffs and 2 nd defendant. Since, objection was filed contending that the attempt of the plaintiffs is nothing but to collect evidence which is not permissible under law and also the application being premature, since it was filed before filing the written statement and that the advocate -
4 Commissioner being not a competent person to measure the property, said application was rejected. 3. After trial of the suit was completed, the plaintiffs filed I.A.11 under Order 26 Rule 9 of CPC to appoint a Court Commissioner to inspect the property and to measure the same and the defendants property and to ascertain the encroachment made by the defendants 1 and 2. Though, statement of objections was filed by the defendants, noticing that the defendants 1 and 2 have denied the encroachment as alleged by the plaintiffs and the 2 nd defendant has stated that he has obtained permission to put up construction, the properties being adjoining to each other and the dispute between the parties being with respect to encroachment, the learned Trial Judge opined that, if a Court Commissioner is appointed, it may throw light on the aspect of the encroachment, more particularly, the suit being for declaration of title and mandatory injunction. As a result, I.A.13 was allowed and an Engineer attached to the Taluk
5 Panchayath Office of Chikkanayakanahally was appointed as Court Commissioner. Both the parties were directed to submit their memo of instruction. This writ petition is instituted against the said order. 4. Sri. S.N. Bhat, learned advocate appearing for the petitioner, firstly contended that in view of dismissal of I.A.3 on 03.09.2011, the Trial Court is unjustified in allowing I.A.11. He submitted that the property of the plaintiffs and property of the defendants 1 and 2 are not adjacent and there is a road in between, which is clear from Ex.P2. Secondly, when the evidence of both the parties is closed, the Commissioner cannot be appointed, which amounts to collection of evidence. Lastly, the impugned order is perverse and irrational. 5. Perused the writ record. Point for consideration is, whether there is any procedural impropriety and illegality committed by the Trial Judge in the matter of passing of the impugned order?
6 6. The case of the petitioner is that the defendants have encroached upon the suit property and have also caused public nuisance. 7. Dismissal of I.A.3 was on account of the same having been filed even prior to the pleadings being complete. In the case of Miss Renuka Vs. Sri Tammanna and others, ILR 2007 Kar 3029, it has been held that the appointment of Commissioner, if any, can be only after completion of trial. In the said view of the matter, the contention of Sri. S.N. Bhat that in view of order passed on I.A.3, I.A.11 could not have been allowed and that the application filed after trial is not permissible, being devoid of merit, warrants rejection. 8. In the case of Anil Kamalakar Shirodkar Vs. Dudhappa Santu Patil and another, ILR 2001 Kar 5013, it was notified that, after conclusion of the evidence in the suit, the plaintiff had filed an application for appointment of a Commissioner, a Surveyor, to survey and measure the
7 property, which was the subject matter of the suit. The suit filed was for injunction against the defendants not to interfere with the peaceful possession and enjoyment of the property. The Trial Court allowed the request and appointed a commissioner to survey the property, prepare a sketch and to submit a report. When the said order was assailed, it was held by this Court as follows :- 2. After hearing the Counsel for the petitioner, I find no merit in the revision to interfere with the order in question which is a discretionary order passed by on the basis of material available before the Trial Court. In a suit for injunction, when there is contest between the parties regarding the encroachment of the property or otherwise and when the correct extent and boundaries of the property are in dispute, it is just and necessary that a survey has to be conducted and the boundaries of the properties have to be identified. In such a situation, the appointment of a Commissioner should not be mistaken as appointment of Commission for collecting evidence for a party to the suit. In the present suit, the parties are neighbours and attempts of trespass and encroachments is being alleged, in that context the appointment of Commission does not appear to be illegal. 9. View taken by the Trial Court to allow I.A.11 being inconsonance with the ratio of decision noticed supra, there is no ground for interfering with the impugned
8 order. The commissioner shall measure the properties and demarcate the boundaries and correct extent of the properties as per the respective claims made by the parties. In the said view of the matter, writ petition being devoid of merit is rejected. Sd/- JUDGE sac*