The Karnataka High Court dismissed a writ petition filed under Article 227 of the Constitution of India, praying to quash the order dated 27.11.2019 passed by the Principal Civil Judge and JMFC and allow the application to appoint a Court Commissioner for local inspection of the suit schedule property. The Court observed that if the Court Commissioner were to be appointed by allowing the application of the petitioner, it would amount to a collection of evidence with regard to demarcation, identification, and location of the suit property.
Brief Facts:
The petitioner/plaintiff had filed an application under Order XXVI Rule 9 of CPC for the appointment of a Court Commissioner for local inspection of the suit schedule property. The application was rejected vide the order dated 27.11.2019 observing that the oral as well as documentary evidence placed on record by the parties would be sufficient to decide the issue involved in the suit. Aggrieved by the same, the petitioner has approached the Court vide the present petition.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that the trial Court committed an error in dismissing the application praying for the appointment of the Commissioner for local inspection of the suit schedule property for measurement and demarcation to find out the encroachment if any and for identification and location of the suit property. He argued that since the respondent/ Panchayat has alleged that the petitioner is in encroachment of Panchayat property, it would be necessary to appoint the Commissioner to find out the encroachment.
Further, he contended that the trial Court failed to examine whether the appointment of a commissioner and getting a report with regard to encroachment and identification and location would aid the Court in deciding the issue involved in the suit.
Contentions of the Respondents:
The Learned Counsel for the Respondents opposed the petition and submitted that the suit of the plaintiff is for permanent injunction and in a suit for relief of permanent injunction, it is for the plaintiff to prove his possession and nothing else. He contended that the petitioner in the guise of getting a report from the Court Commissioner is trying to prove his possession which is impermissible.
Observations of the Court:
The Court noted that in a suit for permanent injunction, it is for the plaintiff to prove his possession and nothing else. The prayer of the petitioner in the application is for the appointment of a commissioner to measure and demarcate the property to find out encroachment and for identification and location of the suit-scheduled property. If the Court Commissioner were to be appointed by allowing the application of the petitioner, it would amount to a collection of evidence with regard to demarcation, identification, and location of the suit property. No Commissioner could be appointed to identify or demarcate the property.
The Court observed that no ground is made out to interfere with the impugned order refusing the appointment of Commissioner to measure and demarcation to find out encroachment if any, and identification and location of the suit schedule property.
The decision of the Court:
The Karnataka High Court, dismissing the petition, held that the trial Court was justified in holding that oral and documentary evidence placed on record would be sufficient to decide the issue involved in the suit.
Case Title: Sri S. C. Padmanarayana vs The Secretary
Coram: Hon’ble Justice S. G. Pandit
Case no.: WRIT PETITION NO. 1351 OF 2020 (GM-CPC)
Advocate for the Petitioner: Mr. C A Ajith
Advocate for the Respondents: Mr. B. J. Somayaji
Read Judgment @LatestLaws.com
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