Allowed

Smt Leelalakshmi v. Smt Lolakshi

Karnataka HC4 Aug 2023WP/148/2020

Case brief

AI extract

What is this about?

High Court quashed impugned order rejecting application for appointment of Commissioner under Order XXVI Rule 9 CPC. Court held admission of pathway does not negate encroachment claim and trial court must appoint Commissioner for local inspection.

What did the court decide?

Impugned order dated 30.11.2019 rejecting I.A.No.7 is set aside and I.A.No.7 is allowed; trial court to appoint Commissioner.

Smt Leelalakshmi Vs Smt Lolakshi — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:27509 WP No. 148 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.G.PANDIT WRIT PETITION NO. 148 OF 2020 (GM-CPC)

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BETWEEN:

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SMT. LEELALAKSHMI W/O VINOD NAIK, AGED 79 YEARS, R/AT KANIYOORU HOUSE, AMMUNJE VILLAGE AND POST, BANTWAL TALUK, D K DISTRICT-574219.

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…PETITIONER

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(BY SRI RAVISHANKAR SHASTRY G, ADV.)

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AND:

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SMT. LOLAKSHI W/O NARAYANA POOJARY (HOTEL PROPRIETOR) D/O LATE SHESHAMMA AGED 51 YEARS, R/AT KUNJATHABAIL DEVINAGARA MANGALORE, D K DISTRICT - 575015.

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Digitally signed by NANDINI B G Location: HIGH COURT OF KARNATAKA

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…RESPONDENT

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(BY SRI RAKESH KINI, ADV.)

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THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DATED 30.11.2019 ON I.A.NO.VII IN O.S.NO.784/2012 PASSED BY THE I ADDL. CIVIL JUDGE, MANGALURU, D.K CERTIFIED COPY OF WHICH IS PRODUCED AT ANNEXURE-A AND CONSEQUENTLY I.A. NO.VII IN O.S.NO.784/2012 MAY BE ALLOWED AS PRAYED FOR COPY OF WHICH IS PRODUCED AT ANNEXURE-A.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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NC: 2023:KHC:27509 WP No. 148 of 2020

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ORDER

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The petitioner/plaintiff in O.S.No.784/2012 on the file

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of the Civil Judge and JMFC, Mangaluru is before this Court under Article 227 of the Constitution of India, questioning the order dated 30.11.2019 rejecting I.A.7 filed under Order XXVI Rule 9 of CPC refusing to appoint Commissioner for local inspection to find out the alleged encroachment.

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Heard the learned counsel Sri.G.Ravishankar Shastry for petitioner and learned counsel Sri.Rakesh Kini for respondent/plaintiff. Perused the writ petition papers.

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Learned counsel for the petitioner would submit that the suit is one for mandatory injunction against the defendant directing her to remove the compound wall constructed on the sub-division line and on failure on the part of the defendant to do so, to get it done through process of Court. It is the main contention of the plaintiff that the defendant has encroached northern portion of plaint schedule property. After completion of trial and

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NC: 2023:KHC:27509 WP No. 148 of 2020

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recording of evidence, the present application is considered.

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Learned counsel would submit that earlier, the petitioner/plaintiff filed an application for appointment of Commissioner for local inspection to find out encroachment and the same was allowed and Commissioner was appointed. But the Commissioner failed to submit his report and subsequently, the Court recalled the appointment of Commissioner against which, the petitioner was before this Court in W.P.Nos.5157451575/2016 and this Court, by order dated 04.06.2019 disposed of the writ petitions. But, while disposing of the petitions, this Court observed that as the petitioner/plaintiff filed another application for

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appointment of Commissioner, the trial Court shall consider the same in accordance with law. Learned counsel for the petitioner would submit that the pending application is considered and the same was rejected on untenable grounds. Learned counsel would further submit

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4 - NC: 2023:KHC:27509 WP No. 148 of 2020

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that rejection of plaintiff’s application for appointment of Commissioner on the ground that since P.W.1 has admitted in cross-examination that there is pathway on the northern side of the suit property, the question of encroachment on the northern side of the suit property would not arise, could not be a reason to reject the application. He submits that while disposing of the application for appointment of Commissioner, the trial Court has come to the conclusion that there is no encroachment. Hence, he prays for allowing the application.

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Per contra, learned counsel for the respondent would submit that the trial Court has rightly rejected the application. Further he submits that the plaintiff has admitted that there is pathway on the northern side of the property and when he admits that there is pathway on the northern side, the question of encroachment on the northern side would not arise. Moreover, he submits that the Commissioner appointed at an earlier point of time has

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NC: 2023:KHC:27509 WP No. 148 of 2020

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failed to submit his report and therefore, the petitioner/plaintiff would not be once again entitled for appointment of Commissioner. Thus, he prays for dismissal of the writ petition.

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Having heard the learned counsel for the parties and on perusal of the writ petition papers, the only point which falls for consideration is as to whether the impugned order require interference.

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Answer to the above point would be in the affirmative for the following reasons:

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The suit is one for mandatory injunction to remove the compound wall. It is the case of the petitioner/plaintiff that the defendant has encroached northern portion of the suit schedule property. Admittedly, the trial is concluded and both the parties have completed their evidence. The Commissioner appointed at the first instance failed to submit report and the said order of appointing Commissioner is recalled. Subsequently, fresh application is filed and this Court, while disposing of W.P.Nos.51574-

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51575/2016 dated 04.06.2019 made an observation to consider the pending application for appointment of Commissioner in accordance with law, without being influenced by what is stated in the order passed to recall appointment of Commissioner.

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The co-ordinate Bench of this Court in W.P.No.201274/2022 disposed of on 24.01.2023 was considering a case of appointment of Commissioner under Order XXVI Rules 9 and 10 of CPC and has laid down certain guidelines to be followed while considering the application filed under Order XXVI Rules 9 and 10 of CPC and it has also laid down certain guidelines for the Commissioner while executing Commissioner Warrant. That was also a case of encroachment. The co-ordinate Bench at para 12 has observed that 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 circumstances, the Commissioner is appointed to find out

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NC: 2023:KHC:27509 WP No. 148 of 2020

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the nature of possession. The report based on local inspection will be a handy tool to decide the case related to encroachment. The co-ordinate Bench has also observed that in disputes relating to existence of pathway, stream, pond, well or disputes relating to 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.

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In the instant case also since the plaintiff alleges encroachment by defendant on the northern side of the suit schedule property, it would be appropriate to obtain report with regard to encroachment. The rejection of application for appointment of Commissioner on the ground that P.W.1 has clearly admitted at page 7 of cross-

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examination that there is a pathway on the northern side of the suit schedule property is not proper and correct.

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Existence of pathway is not in dispute. But the question to be decided is as to whether there is encroachment or not as alleged?

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For the reasons recorded above, the impugned order dated 30.11.2019 rejecting I.A.No.7 filed under Order XXVI Rule 9 is set aside. I.A.No.7 is allowed.

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The trial Court to appoint Commissioner after getting

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the names from the learned counsel for the parties on the next date of hearing.

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Sd/JUDGE

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MPK CT:bms List No.: 1 Sl No.: 47

Smt Leelalakshmi v. Smt Lolakshi

Case brief

What is this about?

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Smt Leelalakshmi v. Smt Lolakshi

Case brief

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