Allowed

Basavantraya /O Venkatrao Nadagoudra v. Malkendrayya S/O Basavantray Nadgoudra

Karnataka HC20 Jan 2014WP/200385/2014

Case brief

AI extract

What is this about?

High Court allowed the writ petition holding that an application for appointing a Commissioner under Order XXVI Rule 9 CPC to demarcate boundaries in a suit for possession is premature if filed before the plaintiff records evidence of encroachment, as the burden proof lies with the plaintiff. The writ petition against the trial court's rejection of this application was allowed.

What did the court decide?

Writ petition allowed; order rejected by learned trial Judge dispensed with or quashed; petition disposed of.

Basavantraya /O Venkatrao Nadagoudra Vs Malkendrayya… — Property and Title | Karnataka HC (2014)

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WP 200385/14

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IN THE HIGH COURT OF KARNATAKA GULBARGA BENCH

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DATED THIS THE 20TH DAY OF JANUARY, 2014

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BEFORE:

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THE HON’BLE MR. JUSTICE A.S.PACHHAPURE

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WRITPETITIONNo.200385OF2014[GM-CPC]

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BETWEEN:
Basavantraya,
S/o. Venkatrao Nadagoudra,
Age: 64 years,
Occ: Agriculture,
R/o. Hunakunta,
Tq; Muddebihal,
Dist: Bijapur-586 101. … PETITIONER/S
 [By Sri. Gopalkrishna B.Yadav, Adv.]

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AND:
Malkendrayya,
S/o. Basavantray Nadagoudra,
Age: 43 years,
Occ: Agriculture,
R/o. Hunakunta,
Tq; Muddebihal,
Dist: Bijapur-586 101. … RESPONDENT/S

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***

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This Writ Petition is filed under Articles
226 and 227 of the Constitution of India,

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WP 200385/14

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praying to quash the Order dated 14.03.2013
passed by the Civil Judge [Jr. Dn.] at
Muddebihal, rejecting I.A. No.II in O.S.
No.22/11 [Annexure-“D”].

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This Writ Petition coming on for
Preliminary Hearing, this day the Court made the
following:

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ORDER

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The petitioner has sought for quashing of
the Order passed by the Trial Court at Annexure-
“D”, rejecting his application for appointment
of a Commissioner under the provisions of Order
XXVI Rule 9 CPC.

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2. The facts reveal that the petitioner
herein is the defendant and the respondent
instituted the suit for possession on the ground
of encroachment over his property by the
defendant. The suit instituted is now posted
for recording the evidence of the plaintiff. At
this juncture, the petitioner, who is the
defendant before the Court below moved an
application under the provisions of order XXVI

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WP 200385/14

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Rule 9 CPC requesting to appoint a Commissioner
i.e., a surveyor to demarcate the boundaries and

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to show the encroachment, if any. The said
application has been rejected by the learned
trial Judge.

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3. It is relevant to note that it is for

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the plaintiff to establish that there is an
encroachment by the defendant over his property
and unless the evidence of the plaintiff is
recorded, an application for appointment of a
Commissioner at the commencement of the evidence
is a premature request. A Commissioner is to be
appointed for the purpose of elucidating any
matter in dispute by the parties. Therefore, at
the most, an application is to be filed after
completion of the evidence and not before. That
apart, when it is the burden of the plaintiff to
establish the encroachment and his evidence is

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not yet completed, the question of entertaining
an application of the defendant for appointment
of a surveyor does not arise for consideration.

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WP 200385/14

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If the parties desire to move an application, it
would be only after recording the evidence.
With these observations, the petition is

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disposed of.

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 Sd/-
 JUDGE.

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Ksm*

Basavantraya /O Venkatrao Nadagoudra v. Malkendrayya S/O Basavantray Nadgoudra

Case brief

What is this about?

What did the court decide?

Basavantraya /O Venkatrao Nadagoudra v. Malkendrayya S/O Basavantray Nadgoudra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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