Karnataka High Court
Mallamma vs Vishwanath on 5 November, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
-1-
NC: 2024:KHC-K:8078
WP No. 202948 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 202948 OF 2024 (GM-CPC)
BETWEEN:
SMT. MALLAMMA
W/O AMARESH BARAGALADINNI,
AGE. 44 YEARS,
OCC. AGRICULTURE,
R/O BASAPUR (K) VILLAGE,
TQ. SINDHANUR DIST. RAICHUR - 584 126.
...PETITIONER
(BY SRI. AJAY KUMAR ASHOK KUMAR, ADVOCATE)
AND:
Digitally signed
VISHWANATH
by SUMITRA S/O LATE NAGANAGOUDA POLICE PATIL,
SHERIGAR
AGE. 64 YEARS,
Location: HIGH
COURT OF OCC. AGRICULTURE,
KARNATAKA R/O BASAPUR(K) VILLAGE,
TQ. SINDHANUR
DIST. RAICHUR - 584 126.
...RESPONDENT
THIS WRIT PETITION FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO ISSUE AN
ORDER OR WRIT IN THE NATURE OF CERTIORARI
-2-
NC: 2024:KHC-K:8078
WP No. 202948 of 2024
QUASHING IMPUGNED ORDER I.A.N.VIII DATED:01.10.2024
PASSED IN O.S.NO.252/2019 BY THE LEARNED II
ADDITIONAL.CIVIL JUDGE & JMFC, SINDHANUR, VIDE
ANNEXURE-G, AND CONSEQUENTLY DISMISS THE
APPLICATION I.E. I.A.. NO.VIII FILED BY THE PLAINTIFF AND
ETC.
THIS PETITION, COMING ON FOR ORDERS THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
(PER: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR)
This petition by the defendant in O.S.No.252/2019 on the file
of II Addl. Civil Judge and JMFC, Sindhanur, is directed against the
impugned order dated 01.10.2024, whereby the application I.A.8
filed by the respondent - plaintiff under Order 26 Rule 9 CPC for
appointment of a court commissioner was allowed by the trial court.
2. Heard learned counsel for the petitioner and perused the
material on record.
3. A perusal of the material on record will indicate that the
respondent - plaintiff instituted the aforesaid suit against the
petitioner - defendant for declaration, recovery of possession and
NC: 2024:KHC-K:8078
other reliefs in relation to suit schedule immovable property. The
said suit having been contested by the petitioner - defendant, the
respondent - plaintiff field an application I.A.No.8 invoking Order
26 Rule 9 CPC and sought for appointment of court commissioner
to conduct local inspection of the suit schedule property. The said
application having been opposed by the petitioner, the trial court
proceeded to pass the impugned order allowing the application by
holding as under:-
ORDER ON LA.NO.VIII
The plaintiff has filed this application Under Order-XX Rule-
9 Read with Section 151 of CPC prayed for appointment of
Assistant Director of Land records. Sindhanur Talukas court
commissioner.
2. The SPA Holder/son of plaintiff filed affidavit to
support of his application. The present suit has been filed by the
plaintiff for relief of declaration and recovery of possession The
SPA Holder/ son of plaintiff contended that, the plaintiff is an
absolute owner of suit property bearing its acre situated at
Sy.No.103/*/hissa-2 measuring 03-26 Basapur(K) Village.,
Sindhanur. The defendant's land situated towards Eastern side of
plaintiff's property. On 28-03-2019 the surveyor surveyed the land
and it was found that defendant had encroached the 26 guntas of
plaintiff's land towards Eastern side of plaintiff's land. If the court
commissioner appointed the matter will settle. Hence, prayed to
appoint court commissioner in this case.
NC: 2024:KHC-K:8078
3. The defendant filed detailed objections to the
application and contended that, the plaintiff filed this suit for
recovery of possession against defendant only on the bases of
survey report and panchanama as per Ex.P-5 and 6. The trial
already completed, at this belated stage the application filed by the
plaintiff is not maintainable. Until and unless to set aside the
survey report and panchanama /Ex.P-5 and 6, no fresh survey is
required. Such being the case, the subsequent survey in respect
of suit property doesn't arise at all. As per law the commissioner
shall be appointed where either from records or from evidence
when the dispute in questions is not possible to be determined by
the court, at that time. commissioner shall be appointed. In the
instant case, the plaintiff already secured the survey and
panchanama in respect of suit land both documents i.e., exhibits
are before the court and even evidence of both side have been
concluded and the matter is set down for arguments. This is not
the stage of seek one more commissioner for the similar purpose.
Hence prays to dismiss the application.
4. Heard the arguments from plaintiff side, defendant,
filed written arguments and also argued on it and furnished one
decision. I have perused the materials avallable on record.
5. The following points that would arise for my
consideration.
1. Whether it is necessary to appoint the Court
Commissioner to note the actual situation in the suit
property?
2. What Order?
6. My finding to the above points as follows -
Point No.1 Point No.2 -
In the Affirmative. As per final order for the following:
NC: 2024:KHC-K:8078
REASONS
7. POINT NO.1: The plaintiff has filed suit for the relief of
Declaration and Recovery of Possession stating that the plaintiff is
absolute owner of suit property and directed the defendant to hand
over the possession of the suit property. It is the contention of the
plaintiff that, the defendant encroached 26 Guntas of the suit
Schedule property but he denied the said facts. If ADLR.,
Sindhanur is appointed then it will be easy to decide the
controversy between both parties. Hence, prayed for appointment
of ADLR Sindhanur is appointed then it will be easy to decide the
controversy between both parties. Hence prayed for appointment
of ADLR., Sindhanur as a Court Commissioner.
8. The present suit is one for Declaration and Recovery of
Possession. Whether the defendant encroached 26 guntas in the
suit schedule property towards Eastern side or not is the dispute
now. The said dispute will have to be noted by the Commissioner.
The plaintiff and defendant already examined and the defendant
deposed in his evidence that he has not encroached the suit
Schedule property and denied the case of the plaintiff. Therefore,
it is necessary to know whether the defendant encroached 26
guntas in the suit schedule property towards Eastern side or not
has to be noted by measurement of the property.
9. At the time of arguments, the counsel for defendant
relied on a decisions reported in AIR 2004 KARNATAKA 92 and
ILR 2002 KAR 3599, wherein it was held that, by exercising the
power under ORDER-XVI Rule-9 the court shall elucidate. certain
details, in its opinion can neither be had from the records nor can
be produced by the parties by way of oral and documentary
evidence and the above should file at proper stage. At this stage. I
would like to rely upon a ratios laid down by the Hon'ble High
NC: 2024:KHC-K:8078
Court of Karnataka in WP.No.201274/2022 dtd.24-01-2023 in
between Shadaxarappa Vs. Kumari Vijayalaxmi and others,
wherein the Hon'ble High Court has held that,
"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 of the application, only after
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".
10. On perusal of the materials available on record, there is
a direct allegations with respect to the encroachment by the
defendant. Therefore, under such circumstances, if the Taluka
Surveyor is appointed it will not cause any harm or loss to the
other side, it will come to best conclusion to decide real
controversy between the parties to the suit. The ratios laid down
by the Hon'ble High Courts and the Hon'ble High Courts of Kerala
and Orissa which are reported in AIR 1996 Kerala 176 (Payani
Achuthan, Petitioner V/s Chamballikundu Jaijan Fisheries
Development Co-operative Society and others, Respondents) and
AIR 1988 Orissa 248 (Mahendranath Parida, Petitioner V/s
Purnananda Parida and others, Respondents) wherein the Hon'ble
NC: 2024:KHC-K:8078
High Courts have held that "in order to adjudicate the dispute
regarding the encroachment the Court Commissioner car be
appointed for measuring and demarcation of land".
11. The Hon'ble High Courts clearly held that, if there is
any disputes arises with respect to encroachment made by the
parties to the suit at that situation, the court commissioner can be
appointed by the court to measure and demarcation of property. In
the instant case dispute arises that about the encroachment made
by the defendant as alleged by the plaintiff. Therefore, it is
necessary to appoint the Court Commissioner because there is a
dispute between the parties with respect to the encroachment of
suit schedule property.
Hence, I answered Point No.1 in the 'Affirmative'.
12. POINT NO.2 In view of the above discussion, I proceed
to pass the following
ORDER
I.A.No. VIII filed by the plaintiff Under Order-XXVI Rule-9
Read with Section 151 of CPC is hereby allowed.
The Taluka Surveyor is appointed as Court Commissioner
to measure the Suit property.
The Court Commissioner fee is fixed of Rs.2,500/-.
4. A perusal of the material on record including the
impugned order will indicate that the trial court has correctly and
properly considered the rival contentions and placed reliance upon
the judgment of this Court in the case of Shadaksharappa Vs.
Kumari Vijayalaxmi & others - 2023(3) KLJ 543 in order to come
NC: 2024:KHC-K:8078
to the conclusion that it was just and expedient to appoint the court
commissioner to elucidate the issue in controversy between the
parties. At any rate, the petitioner would be entitled to file his
objections to the commissioner's report and examine / cross-
examine the court commissioner, if he so intends. Under these
circumstances, it cannot be said that the impugned order passed
by the trial court appointing a court commissioner has resulted in
miscarriage of justice or cause any prejudice to the petitioner
warranting interference by this Court in exercise of its jurisdiction
under Article 227 of the Constitution of India as held by the Apex
Court in the case of Radhey Shyam Vs. Chhabi Nath - (2015) 5
SCC 423.
5. Accordingly, I do not find any merit in the petition and the
same is hereby disposed of without interfering with the impugned
order. It is however made clear that both the parties would be
entitled to file their respective memos of instruction to the court
commissioner. Parties are also reserved liberty to file their
objections, if any, to the report of the court commissioner and
examine / cross-examine the court commissioner if they so desire.
All rival contentions on all aspects of the matter including the report
NC: 2024:KHC-K:8078
of the court commissioner are kept open and no opinion is
expressed on the same.
6. Subject to the aforesaid directions, petition stands
disposed of.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
Srl.
