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2015 DIGILAW 127 (KAR)

A. C ANANTHASWAMY v. A. R CHANDRAPPA

2015-01-29

RAM MOHAN REDDY

body2015
ORDER 1. The rejection of plaintiff’s I.A.Nos.20 and 21 under Section 151 and Order 26 Rule 9 CPC in O.S.No.2685/2002 on the file of 37th Addl. City Civil & Sessions Judge, Bangalore, by order dated 18th October, 2012, has resulted in these petitions. 2. Petitioner instituted O.S.No.2685/2002 to declare the construction of compound wall and ramp erected by the respondents, arraigned, as defendants, on the suit schedule property, as illegal and unauthorized, and for a mandatory injunction to demolish the compound wall and ramp, in addition to, a permanent injunction restraining defendants from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property. On the conclusion of the trial, parties having let in evidence, both oral and documentary, petitioner filed I.A.No.20 under Section 151 to reopen the case and I.A.No.21 under Order 26 Rule 9 to appoint the taluk surveyor, to demarcate the boundary line between the Sy.Nos.47 and 49 of Pantharapalya village, Kengeri Hobli, Bangalore South Taluk. In the affidavit accompanying the application, deponent stated that in view of the controversy between the parties over the allegation of the petitioner that defendant erected the construction in Sy.No.47 which was opposed by defendant, asserting, that the construction was on Sy. No. 49/1, Pantharapalya, there was a necessity to appoint a taluk surveyor to demarcate the boundary. That application was opposed by filing statement of objections interalia asserting that testimony of the witnesses was sufficient to establish the factum of boundaries to Sy.No.47 and 49 and the fact that there was no evidence to establish construction of a compound wall, as alleged, in Sy.No.47 while admission was elicited in cross-examination of plaintiff that the boundary wall putup was upto the edge of land in Sy.No.49, in addition to the admission of PWs.2 and 3 over the existence of a public road between Sy.Nos.47 and 49. The trial Court having regard to the pleadings of the parties framed point for consideration as to whether there was necessity to reopen the case and appoint a Court Commissioner for local inspection, to demarcate the lands in Sy.Nos.47 and 49 of Panthrapalya village. The trial Court having regard to the pleadings of the parties framed point for consideration as to whether there was necessity to reopen the case and appoint a Court Commissioner for local inspection, to demarcate the lands in Sy.Nos.47 and 49 of Panthrapalya village. The trial Court, by the order impugned, though extracted portions of the testimony in the cross-examination of PWs.2 and 3 over the existence of road in between Sy.Nos.47, 48, 49 & 49/1, nevertheless, at paragraph11, observed that it was for the plaintiff to establish as to whether the construction putup by the defendants was towards northern side of that road or the southern side. 3. Having said thus, the trial Court concluded that the road between the two survey numbers was sufficient evidence over demarcation and accordingly, dismissed the applications. 4. If regard is had to the nature of controversy brought before the court and the fact that there is a need for the plaintiff to establish the allegation of construction putup by the defendants either towards northern side or southern side, and in the absence of evidence over the same in the enquiry before the trial Court, as pointed out by the trial court supra, it is needless to state that the trial Court ought to have exercised its discretionary power to appoint a Court Commissioner, more so, since, the report of the spot situation could be made only by a Court Commissioner who could relate to the marking of the boundary or the nature of the property which would not prejudice the case of the respondent defendants, while the defendants would have an opportunity to oppose the report, if it goes against them and also examine the Commissioner. 5. It is no doubt true that the need to resort to Order 26 Rule 9 of CPC ought to be felt by the Court for the purpose of elucidating certain details which in its opinion neither can be had nor can be produced by the parties by oral and documentary evidence. Nevertheless, in a situation, where the dispute relates to marking boundaries or the nature of property, this Court in Sree Sree padaraja Mutt vs. Pyra Ramaiah & Others ILR 1999 KAR. Nevertheless, in a situation, where the dispute relates to marking boundaries or the nature of property, this Court in Sree Sree padaraja Mutt vs. Pyra Ramaiah & Others ILR 1999 KAR. 2231 held that in such circumstances, 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 help the court to arrive at a conclusion about the nature of the property along with other evidence. 6. Viewed in this prospective, more particularly, in the light of facts and circumstances, supra, coupled with the fact that appointment of Commissioner would elucidate certain information over existence of the boundary between the properties belonging to the disputed parties in the suit and that no prejudice would be caused to the respondents by appointing a Commissioner, the order of the trial Court calls for interference. 7. In the result, these petitions are allowed. The order impugned is quashed. I.A.Nos.20 and 21 are allowed, the side of the plaintiff is reopened. The taluk surveyor of the Bangalore South Taluk is appointed as Court Commissioner. Parties to file their respective memo of instructions in the Court below and also make them available to the Court Commissioner who is directed to hold a spot inspection, after notice to the parties, by fixing a date and time, and thereafter, submit a report. It is needless to state that if either of the parties are aggrieved by the report, may file objections and examine the taluk surveyor. Cost quantified at Rs.500/.