Karnataka High Court

Smt. Jogamma vs Adi Narayan on 24 November, 2023

Author: S.G.Pandit

Bench: S.G.Pandit

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                                                    WP No. 26063 of 2023




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                 DATED THIS THE 24TH DAY OF NOVEMBER, 2023

                                         BEFORE

                      THE HON'BLE MR JUSTICE S.G.PANDIT

                 WRIT PETITION NO. 26063 OF 2023 (GM-CPC)

              BETWEEN:

              SMT. JOGAMMA
              AGRICULTURIST,
              AGED ABOUT 75 YEARS,
              W/O. LATE LAKSHMAIAH,
              R/OF OOLAVADI VILLAGE,
              KASABA HOBLI,
              CHINTAMANI TALUK-563 125,
              CHICKBALLAPUR DISTRICT.
                                                             ...PETITIONER
              (BY SRI. SHIVARAMU H C, ADV.)

              AND:

              ADI NARAYAN
              AGRICULTURIST,
              AGED ABOUT 50 YEARS,
Digitally     S/O. R. VENKATARAVANA,
signed by A
K             R/O. SONNASHETTYHALLI VILLAGE,
CHANDRIKA     CHINTAMANI CITY-563 125,
Location:     CHICKBALLAPURA DISTRICT.
HIGH                                                        ...RESPONDENT
COURT OF      (BY SRI. B RAMESH, ADV.)
KARNATAKA
                   THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
              CONSTITUTION OF INDIA, PRAYING TO I) QUASH THE ORDER
              DATED 31/10/2023 PASSED BY THE LEARNED SENIOR CIVIL JUDGE
              AND JMFC, CHINTAMANI ON IA NO.4 FILED UNDER ORDER 26 RULE
              9 READ WITH SECTION 151 OF CPC AND DISMISS IA NO.4 FILED
              UNDER ORDER 26 RULE 9 READ WITH SECTION 151 OF CPC AT
              ANNEXURE-G AND ETC.
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                                            NC: 2023:KHC:42450
                                         WP No. 26063 of 2023




      THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:

                             ORDER

Petitioner, plaintiff in O.S.No.217/2017 on the file of

the Principal Civil Judge and JMFC., Chintamani (for short,

'Trial Court') and respondent in R.A.No.5/2020 on the file

of the Senior Civil Judge and JMFC., Chintamani (for short,

'Appellate Court') is before this Court aggrieved by order

dated 31.10.2023 on I.A.No.4 filed under Order XXVI Rule

9 of CPC, appointing Commissioner for survey and to find

out encroachment, if any.

2. Heard the learned counsel Sri.H.C.Shivaramu

for petitioner/plaintiff and learned counsel Sri.B.Ramesh

for respondent/defendant. Perused the writ petition

papers.

3. Learned counsel for the petitioner would submit

that petitioner/plaintiff filed O.S.No.217/2017 praying for

a judgment and decree to restrain the defendant from

interfering with suit schedule property by way of

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permanent injunction in respect of the suit schedule

property. It is submitted that Trial Court after trial decreed

the suit by judgment and decree dated 24.01.2020,

against which, respondent/defendant filed R.A.No.5/2020.

It is submitted that in the RA, when the appeal was set

down for final arguments, respondent/appellant filed

I.A.No.4 under Order XXVI Rule 9 of CPC to measure the

property of petitioner in Sy.No.392 to an extent of 0.24

guntas, situated at Oolavadi Village, Kasaba Hobli,

Chintamani Taluk and measure Sy.No.22 to an extent of 6

acres 36 guntas, situated at Gollapalligadde Village and to

submit report as to whether there is any encroachment of

plaintiff over respondent/defendant's property. Trial Court

under impugned order allowed I.A.No.4 and appointed

Taluka Surveyor, Chintamani as Court Commissioner.

4. Learned counsel for the petitioner/plaintiff

submits that in a suit for permanent injunction which is

decreed and at the appellate stage it is not permissible for

respondent/defendant to seek appointment of

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Commissioner to survey the lands. Moreover, it is

submitted that appointing Commissioner in the instant

case to survey the lands of both petitioner and defendant

would amount to collecting evidence. Further, learned

counsel would submit that no Commissioner could be

appointed to find out possession and identity of property.

It is submitted that both the lands of petitioner and

defendant are not adjacent lands and since both are not

adjacent lands, question of appointing Commissioner to

find out encroachment would not arise. It is submitted that

respondent/defendant has no manner of right, title and

interest over the suit schedule property and learned

counsel also takes the Court through judgment under

appeal. Thus, he prays for allowing writ petition and to set

aside impugned order.

5. Per contra, learned counsel Sri.B.Ramesh

invites attention of this Court to written statement filed by

respondent/defendant and submits that

respondent/defendant has specifically contended that

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plaintiff resorted to encroach upon defendant's land by

making illegal methods for which complaint is lodged

before the Police and Revenue Authority. When it is the

definite case of respondent/defendant that plaintiff has

encroached upon respondent/defendant's land, it would be

appropriate for the Court to get report from the

Commissioner with regard to encroachment. Learned

counsel would submit that in the instant case, appointing

Commissioner and getting report would not amount to

collecting evidence or the purpose of appointing

Commissioner is not to identify property or to find out

possession of the property. Further with regard to

contention of petitioner/plaintiff that both are not adjacent

lands, learned counsel would submit that land of the

petitioner/plaintiff is situated at Oolavadi Village in

Sy.No.392 whereas respondent/defendant's property is

situated at Gollapalligadde Village in Sy.No.22. The lands

of both petitioner and defendant are situated on the

border of both the villages and they are adjacent lands.

Thus, he prays for dismissal of the writ petition.

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6. Having heard the learned counsel appearing for

the parties and on perusal of the writ petition papers, I am

of the view that no ground is made out to interfere with

impugned order passed by Trial Court. Moreover,

impugned order is neither perverse nor suffers from any

material irregularity so as to warrant interference under

Article 227 of the Constitution of India.

7. Admittedly, suit of the petitioner/plaintiff is one

for permanent injunction against respondent/defendant in

respect of the suit schedule property. Said suit was

decreed by judgment and decree dated 24.01.2020

directing respondent/defendant from interfering in the

possession of plaintiff over the suit schedule property,

against which respondent/defendant has preferred appeal

in R.A.No.5/2020.

8. Respondent/defendant filed I.A.No.4 under

Order XXVI Rule 9 of CPC seeking appointment of

Commissioner to survey both the lands of

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petitioner/plaintiff as well as respondent/defendant and to

fix boundaries. A perusal of the written statement filed by

respondent/defendant, it is seen that it is the definite case

of respondent//defendant that plaintiff resorted to

encroach on the defendant's land by making illegal

methods for which complaint is lodged before the Police

and Revenue Authority. When defendant makes specific

allegation of encroachment against plaintiff, it would be

appropriate for the Court to appoint Commissioner so as to

get report with regard to encroachment and if there is any

encroachment, extent of encroachment. Any amount of

oral or documentary evidence would not be sufficient to

establish the allegation of encroachment. Only

Commissioner report would assist the Court in proper

decision, when there is an allegation of encroachment.

9. A Co-ordinate Bench of this Court in

W.P.No.201274/2022 (SRI SHADAKSHARAPPA VS.

KUMARI VIJAYALAXMI AND OTHERS, D.D. on

24.01.2023) was considering Order XXVI Rule 9 of CPC for

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appointment of Commissioner and while disposing of the

said writ petition, this Court has laid down, under what

circumstances the Court Commissioner could be appointed

for local inspection; has also laid down guidelines for the

Court and also for Court Commissioner. Relevant paragraphs

12, 13, 14 and 21 of the above decision reads as follows:

"12. Under the provisions applicable for local inspection what is impermissible is the delegation of adjudicating power. To cite an example, if both parties claim to be in possession of the disputed property, the local inspection by the Commissioner cannot be ordered to ascertain the possession. The question of possession is to be decided by the court. However, if one party alleges encroachment by another and another party denies such allegation, the Commissioner can be appointed to ascertain whether there is encroachment or not. In such a situation the Commissioner is appointed to find out the nature of possession. The report based on local inspection will be a handy tool to decide the case relating to encroachment. In the case on hand, the petitioner to prove his assertion of encroachment, instead of leading oral evidence

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of witnesses has applied for local inspection, and the same is not only permissible but also desirable.

13. The next question is, at what stage of the proceeding in a suit, the application can lie? As could be easily noticed from the provision, the provision is not 'stage' centric. Thus the provision can be invoked either before the commencement of the trial or after. If the application is filed before the commencement of the trial, the court having regard to the pleadings and records may allow such application before the commencement of the trial. For example, in a given case, if the report is necessary for consideration of an application seeking some interim measure, before the commencement of the trial, the Commissioner can be appointed, if the case is made out for a such appointment. On the other hand, again, having due regard to the pleadings and records, if the court finds that there is every likelihood that after recording the evidence of the parties, the need to appoint the court Commissioner may not arise or that the court is of the view that it can take a call on the application, only after

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recording the evidence, then it may defer the order on the application till such time. Thus the decision as to when the report of the Commissioner is to be secured must be taken having due regard to the facts and circumstances.

14. The discretion, though lies with the court, as to appoint the Commissioner before the trial or after the trial, the decision must be taken with due regard to the possibility of reducing or eliminating the need to record the oral evidence of witnesses to prove an issue which could be effectively decided with the aid of the report. More often than not, in disputes relating to the existence of pathway, stream, pond, well, or disputes relating to the boundary between adjoining holders, encroachment, easement of air and light, construction of building in violation of setback rules, or relating to the authenticity of a document, signature/thumb impression to name a few by way of illustration, a report secured before the trial may cut short the trial in as much as the party relying upon the report may not examine multiple witnesses to prove the matters covered by the report. The party may

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simply rest his case based on his evidence and the report. In a given case, the appointment of the Commissioner before the commencement of the trial may facilitate a focused trial. In the case of Bhimappa Rayappa Chougala v. Shrikant, 2014 SCC OnLine Kar 12277 : (2014) 2 KCCR 1652 at page 1653, the Co-Ordinate Bench of this court has held as under :

"4. xxx Only if the plaintiffs can show that the defendants have encroached upon their property, they would be entitled to the relief. Any amount of oral evidence is not a substitute or sufficient to prove the encroachment. To cut short the litigation to reduce recording evidence, the trial Court in its wisdom, thought it fit to appoint a Commissioner even before the commencement of the trial. That is how the duration of the litigation could be curtailed and speedy disposal of the civil matter could be achieved."

21. Having examined the provisions referred to above and given the fact that Order XXVI of the Code of Civil Procedure is often invoked in the trial Court, this Court is of the view, broadly speaking in the following cases,

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the appointment of an appreciate Commissioner as provided under Order XXVI of the Code if desirable.