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2015 DIGILAW 1189 (KAR)

A. R. Lalitha v. C. N. Satyanarayana

2015-10-14

S.SUJATHA

body2015
ORDER : S. Sujatha, J. 1. This is the second round of litigation as regards appointment of Commissioner, the dismissal order passed on the application filed by the 2nd defendant in O.S. No. 540/2008 on the file of Addl. Civil Judge & JMFC, Channarayapatna is challenged herein. 2. The facts in brief are that: "- one Nanjegowda sold property bearing No. 26/2A9 (old No. 26/2) measuring 3 guntas in favour of brother of plaintiff Sri C S Suresh Kumar on 3.10.1994. Subsequently, in the family partition that had taken place between the family members, the suit schedule property is said to have fallen to the share of the plaintiff. The 2nd respondent executed a sale deed in favour of the husband of the petitioner K S Thimmegowda bearing property No. 26/A1 on 06.10.2007. Respondent No. 1 has filed O.S. 540/2008 for declaration and permanent injunction against the defendants in respect of property bearing No. 26/2A9 measuring 3 guntas. The petitioner/2nd defendant after appearance filed written statement denying the plaint averments and categorically stated that the 2nd respondent has executed a sale deed in favour of the husband of the petitioner K.S. Thimmegowda bearing property in Sy. No. 26/A1 measuring 3354 sq. feet on 6.10.2007. In the said suit proceedings, defendant No. 2 filed an application under Order XXVI Rule 9 of CPC praying for appointment of Taluka Surveyor as Commissioner to survey the land and submit a report on 28.06.2011. The plaintiff/1st respondent filed objections to the said application. However, learned trial Judge rejected I.A. 2 holding that allowing the said application is as good as collection of evidence, it is for the plaintiff to discharge his burden proving his title over the suit schedule property and the defendant making an application for appointment of commissioner at the initial stage would not be permitted. Challenging the said order passed on I.A. 2, petitioner filed Writ Petition No. 38347/2012 before this Court and the said writ petition came to be dismissed by order dated 16.10.2012, however, providing liberty to the petitioner to make an application at the appropriate stage, since the suit being for declaration and permanent injunction and as trial having not yet commenced, it was premature to allow the application." 3. After completion of the evidence of the parties, petitioner filed I.A. 7 under Order XXVI Rule 9 of CPC on 25.2.2013 for appointment of Commissioner. After completion of the evidence of the parties, petitioner filed I.A. 7 under Order XXVI Rule 9 of CPC on 25.2.2013 for appointment of Commissioner. Plaintiff resisted the said application by filing objections and prayed for dismissal of the application. The trial Judge after considering the arguments advanced by both the parties, dismissed the application placing reliance on the Judgment of this Court reported in Puttappa v. Ramappa, ILR 1996 Kar. 1443. Being aggrieved by the said order passed on I.A. 7 filed by the petitioner under Order XXVI Rule 9 of CPC praying for appointment of Commissioner, the petitioner is before this Court. 4. Learned counsel appearing for the petitioner contended that the appointment of Taluka Surveyor as Commissioner would have assisted the Court to arrive at proper conclusion in the suit. Respondent No. 2 being the wife of K S Thimmegowda in whose favour 1st defendant had executed the sale deed on 6.10.2007 in Sy. No. 26/2A1 measuring 3354 Sq.Ft. is enjoying the said property. The plaintiff making false allegations against the defendants, has filed a frivolous suit. The Court below failed to appreciate the necessity of appointment of the Commissioner to local inspection preferably, the location of the suit schedule property and for demarcation of the boundaries of the land in question, especially when the defendants have denied the allegations made by the plaintiff and it is contended that defendants in no way have interfered with the peaceful possession of the plaintiffs enjoying the suit schedule property, if there is any encroachment in the suit properties, it is for the reason that some portion of the suit schedule property is being encroached by one Sri. Ramegowda. Without seeking survey of the suit schedule property along with the adjacent lands, a vague allegation is made against the defendants that they are encroaching and interfering with the suit schedule property, in such circumstances, the Court below ought to have allowed the application and appointed the Commissioner for the purpose of elucidating the matter in dispute. Learned counsel has placed reliance on the following Judgments: "(1) Sri Anil Kamalakar Shirodar v. Sri Dudhappa Santu Pail, 2001(2) KCCR 1283 ) (2) N. Swamygowda v. Ramegowda, 2009(4) KCCR 3003 (3) Sree Sreepadaraja Mutt v. Pyra Ramaiah (ILR 1999 Kar. 2231) (4) Shreepat v. Rajendra Prasad, LAWS (SC)-2000-3-87." 5. Learned counsel has placed reliance on the following Judgments: "(1) Sri Anil Kamalakar Shirodar v. Sri Dudhappa Santu Pail, 2001(2) KCCR 1283 ) (2) N. Swamygowda v. Ramegowda, 2009(4) KCCR 3003 (3) Sree Sreepadaraja Mutt v. Pyra Ramaiah (ILR 1999 Kar. 2231) (4) Shreepat v. Rajendra Prasad, LAWS (SC)-2000-3-87." 5. On the contrary, learned counsel appearing for the 1st respondent contended that appointing commissioner to make local inspection under Order XXVI Rule 9 CPC is a discretionary power vested with the Court. The trial Court having exercised its discretionary power in judicious manner, the same does not warrant any interference by this Court. It is contended that the 2nd respondent - petitioner who has filed the application under Order XXVI Rule 9 CPC is a stranger to the suit schedule property. She has no right, title or interest of what-so-ever manner to seek for appointment of Commissioner to make local inspection, especially, to measure and demarcate the boundaries. Learned counsel placed reliance on the Judgment of this Court in the case of Ramanna v. Rajagopal ((1981)2 Kant LJ 516). 6. After giving my anxious consideration to the rival submissions made at the bar and perusing the material on record, it is noticed that the plaintiff has filed the suit for declaration and permanent injunction against the defendants in respect of property measuring 3 guntas in Sy. No. 26/2A9 (Old No. 26/2). The boundaries mentioned in the suit schedule property discloses to the east, the land of Puttaharlamma. It is the specific case of the petitioner and the 2nd respondent, the land situated to the east of the suit schedule property was purchased by the 2nd respondent from Smt. Puttaharlamma and thereafter, it was sold to the husband of the petitioner through a registered sale deed dated 06.10.2007. Though the said averment is made in the written statement, neither the plaintiff has impleaded Thimmegowda - the owner of the property bearing Sy. No. 26/2A9 nor Thimmegowda has impleaded himself to adjudicate the dispute before the Court below. Though the said averment is made in the written statement, neither the plaintiff has impleaded Thimmegowda - the owner of the property bearing Sy. No. 26/2A9 nor Thimmegowda has impleaded himself to adjudicate the dispute before the Court below. Since the allegations are made by the plaintiff against the defendants, more particularly, that the petitioner is encroaching on the suit schedule property and interfering with the peaceful possession of the plaintiffs, it was necessary for the petitioner to make an application for seeking of the appointment of the commissioner to discern the truth whether these defendants are interfering with the suit schedule property or not. It is the stance of the petitioner that her husband has purchased property from the 1st defendant bearing Sy. No. 26/2A9 on 06.10.2007 and if there is any encroachment in the suit schedule property, that is due to encroachment made by Sri Ramegowda i.e., the neighbourer of the suit schedule property. In such circumstances, to ascertain the exact measurement of the suit schedule property and to discard the allegations of encroachment made on these defendants, an application was filed by the petitioner before the commencement of the trial seeking for appointment of the commissioner which came to be rejected as premature. This order made by the trial Court being challenged by the petitioner in W.P. No. 38347/2012, this Court rejected the petition with liberty to the petitioner to make an application at the appropriate stage, if need be. After completion of the evidence, now the petitioner has moved an application seeking for appointment of the Commissioner. The trial Court placing reliance on the Judgment of this Court in the case of Puttappa cited supra has held that it is the evidence that would decide the question as to who is in possession of the property in a suit for injunction. That function cannot be delegated to a commissioner to find out as to who is in possession of the property and moreover, it is also observed that the said application is filed by the petitioner after completion of the evidence, that too at the stage of arguments. The trial Court was also influenced by the dismissal of the writ petition by this Court on the earlier occasion without properly appreciating the liberty provided to the petitioner to move an application, if need to be at the appropriate stage. 7. The trial Court was also influenced by the dismissal of the writ petition by this Court on the earlier occasion without properly appreciating the liberty provided to the petitioner to move an application, if need to be at the appropriate stage. 7. This Court in the case of Anil Kamalakar Shirodkar cited supra has considered the ruling of this Court in Puttappa's case cited supra and held that appointment of commissioner was not sought to inquire into the question of possession on the other hand, it was to demarcate the boundaries and the actual extent of properties in question. In that view of the matter, this Court held that the appointment of commissioner for measurement of the property and to demarcate the boundaries and correct extent of the properties as per the claims made by the parties would be fully justified. 8. In the case of Swamygowda stated supra, it is held that when there are conflicting versions regarding location of the suit schedule property, no amount of oral and documentary evidence may enable the trial Court to adjudicate the matter. It has therefore, appointed the Court Commissioner for ascertaining whether the suit schedule property is situated in the lands as asserted. 9. In the case of Sree Sreepadaraj Mutt's case cited supra, it is held that for the evidence which could be produced in the Court no doubt ordinarily commission is not issued for collection of evidence but the report of the spot situation has to be produced before the Court if the dispute relates to marking of boundary or nature of the property, the evidence which could be produced is only through the commission which it may give and find out about the situation of the property and facts existing on the spot so as to assist the court to arrive at a conclusion about the nature of the property along with other evidence produced by other parties. 10. The Apex Court in Shreepat's case cited supra has observed that "since there was a serious dispute with regard to the area and boundaries of the land in question, especially with regard to its identity, the Courts below, before decreeing the suit should have got the identity established by issuing a survey commission to locate the plot in dispute and find out whether it formed part of Khasra No. 257/3 or No. 257/1. This having not been done, has resulted in serious miscarriage of justice". 11. In the Judgment relied upon by the respondent in Ramanna's case supra, it is held that "if title is not proved in such situation, it leads to the inevitable inference that they trespassed into the suit schedule site which admittedly belonged to the Government as stated by D.W.-1 and had put up the construction. It was never their plea that they had perfected their title against the Government with regard to the suit schedule site by adverse possession. It is further held that appointment of the commissioner is a discretionary power depending upon the facts of each case". 12. A careful reading of these judgments would indicate that exercise of power under Order XXVI Rule 9 of CPC by the trial Court is discretionary. Whether that discretionary power is judiciously exercised or not, is the question before this Court. 13. In the first round, when the petitioner approached the Court below seeking for appointment of commissioner, the same was rejected as premature which was confirmed by this Court providing liberty to move the Court at the appropriate stage. At this stage, when the petitioner moved an application seeking for appointment of the Commissioner, rejecting the same as belated holding that it is for the plaintiff to establish the case by leading oral or documentary evidence and not on the report of the commissioner is contrary to the well settled principles of law enunciated by the Courts in the Judgments referred to above. Rejection of the application would result in miscarriage of justice if the exact measurement of the boundary is not demarcated as the encroachment or interference being denied by the defendants and when the allegation is made that some portion of the suit schedule property is encroached by Ramegowda, said to be the adjacent owner of the suit schedule property. In such circumstances, to meet the ends of justice and in the interest of both the parties, it would be appropriate to appoint a Court Commissioner i.e., Taluka Surveyor to identify suit schedule property by measuring property and to demarcate the boundaries with the correct extent of the properties as per the claims made by the parties. 14. In such circumstances, to meet the ends of justice and in the interest of both the parties, it would be appropriate to appoint a Court Commissioner i.e., Taluka Surveyor to identify suit schedule property by measuring property and to demarcate the boundaries with the correct extent of the properties as per the claims made by the parties. 14. It is vehemently argued by the learned counsel appearing for the 1st respondent that the petitioner is a total stranger to the suit schedule property and she has no locus standi to file an application seeking for appointment of commissioner, the same is totally misconceived. The petitioner is not a stranger to the suit proceedings. She being arrayed as the 2nd defendant, she has every right to defend her case and to establish that there is no interference from her side to the suit schedule property, in the circumstances, the appointment of commissioner would be justified. 15. For the foregoing reasons, the order passed by the trial court is set-aside. Writ Petition is allowed consequently, I.A. No. 7 is allowed and the trial Court is directed to appoint a Commissioner as prayed for directing the commissioner to submit the report as expeditiously as possible after notifying the parties. The trial court shall dispose of the suit as expeditiously as possible.