The Karnataka High Court disposed of a writ petition filed under Article 227 of the Constitution of India praying to call for records and set aside the order dated 23.12.2020 passed by Additional Civil Judge and JMFC and consequently, allow the application filed by the petitioner. The Court observed that if the allegation is with regard to encroachment, then it would be appropriate for the Court concerned to appoint a commissioner and to get the report with regard to encroachment and also with regard to the extent of encroachment.
Brief Facts:
The suit of the petitioner/plaintiff No.2 is one for a permanent prohibitory injunction restraining the defendants from demolishing the respective houses of the plaintiffs situated in the plaint ‘A’, ‘B’, and ‘C’ schedule properties and not to dispossess them from the plaint ‘A’, ‘B’ and ‘C’ schedule properties illegally, forcibly and unauthorizedly. It is the case of the respondent/defendant Nos.2 to 4 – Government that the plaintiff has no right to encroach upon the Government property beyond the land granted to them and if the plaintiffs encroach upon Government land, the defendants would take necessary action against the plaintiffs. It is submitted that it is the case of the defendants that plaintiffs are in encroachment and to find out the encroachment, it would be appropriate for this Court to appoint a Commissioner so as to find out encroachment and also the extent of encroachment.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that petitioner/plaintiff No.2 is not in encroachment; however, the plaintiff filed I.A.No.8 under Order XXVI Rule 9 of CPC to appoint a Court Commissioner with the assistance of ADLR to hold a local inspection of suit schedule ‘A’, ‘B’ and ‘C’ properties to find out encroachment, if any. It is submitted that the Trial Court is not justified in keeping in abeyance I.A.No.8 till the conclusion of the evidence of both sides.
Contentions of the Respondent:
The Learned Counsel for the Respondent submitted that it is for the plaintiffs to prove their possession over the land granted to them and they cannot occupy land more than what is allotted to them. Therefore, he submits that only after evidence from the parties if the Court is of the opinion that material on record is insufficient to decide the dispute between the parties, the Trial Court would consider I.A.No.8.
The Court noted that Order XXVI Rule 9 of CPC permits the Court to appoint a Commissioner for local inspection or investigation for elucidating any matter in dispute and to get a report from such Commissioner.
The Court observed that a commissioner to elucidate any matter in dispute could be appointed at any stage of the proceedings, depending on the facts and circumstances of each case. If the allegation is with regard to encroachment, then it would be appropriate for the Court concerned to appoint a commissioner and to get the report with regard to encroachment and also with regard to the extent of encroachment. The Court in all circumstances need not wait for the completion of evidence by the parties for considering I. A. seeking appointment of Commissioner.
The decision of the Court:
The Karnataka High Court, disposing of the petition, held that the Trial Court is directed to consider I.A.No.8 filed under Order XXVI Rule 9 of CPC and pass appropriate order in accordance with law, taking note of the observations of this Court.
Case Title: Mr. Nishchal Chowta v Permude Grama Panchayath & Ors.
Coram: Hon’ble Justice S. G. Pandit
Case no.: WRIT PETITION NO. 773 OF 2021 (GM-CPC)
Advocate for the Petitioner: Mr. Anandarama K.
Advocate for the Respondents: Mr. A. K. Vasanth
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