Dismissed

Sri M Haledeeshappa v. Sri B G Satish

Karnataka HC11 Dec 2023WP/2164/2022

Case brief

AI extract

What is this about?

The High Court of Karnataka exercised jurisdiction under Article 227 to examine a writ petition challenging the trial court's order appointing a Court Commissioner under CPC Order 26 Rule 9 in a property encroachment suit. The court rejected the petition, upholding the appointment as a valid investigative tool to ascertain encroachment details.

What did the court decide?

The High Court rejected the writ petition and dismissed the impugned order dated 06.01.2022 allowing the court appointment of a Commissioner under CPC Order 26 Rule 9.

Sri M Haledeeshappa Vs Sri B G Satish — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:44794 WP No. 2164 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11^TH DAY OF DECEMBER, 2023 BEFORE

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THE HON'BLE MR JUSTICE S.G.PANDIT

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WRIT PETITION NO.2164 OF 2022 (GM-CPC)

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BETWEEN:

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SRI. M. HALEDEESHAPPA, S/O MALLESHAPPA, AGED ABOUT 50 YEARS, RESIDING AT ITTIGE VILLAGE, CHANNAGIRI TALUK, DAVANAGERE DISTRICT - 577 221.

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…PETITIONER

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(BY SRI. P.M. GOPI, ADVOCATE FOR SRI. SIDDAMALLAPPA P.M., ADVOCATE)

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AND:

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Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA

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SRI. B.G. SATISH, S/O E.G. BASAVANTHAPPA, AGED ABOUT 48 YEARS, RESIDING AT ITTIGE VILLAGE, CHANNAGIRI TALUKA DAVANAGERE DISTRICT, REPRESENTED BY HIS GPA HOLDER SRI. E.G. BASAVANAPPA, S/O HALAPPA, AGED ABOUT 65 YEARS, RESIDING AT ITTIGE VILLAGE, CHANNAGIRI TALUK, DAVANAGERE DISTRICT - 577 221.

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…RESPONDENT

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(BY SRI. P.M. NAYAK, ADVOCATE)

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SETTING ASIDE THE IMPUGNED ORDER DATED 06.01.22 PASSED BY THE LEARNED I ADDITIONAL CIVIL JUDGE AND JMFC, CHANNAGIRI IN OS.NO.65/2015 ON IA.NO.13 AS PER ANNEXURE-H AND ETC.,

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NC: 2023:KHC:44794 WP No. 2164 of 2022

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Though writ petition is listed for Hearing on Interlocutory application, by the consent of learned counsels it is taken up final disposal.

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The petitioner/defendant in O.S.No.65/2015 on

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the file of I Addl. Civil Judge and JMFC, Channagiri, is before this Court aggrieved by the order dated 06.01.2022 allowing I.A.No13 filed under Order 26 Rule 9 of CPC.

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Heard learned counsel, Sri.P.M.Gopi for Sri.P.M.Siddamallappa for the petitioner/defendant and learned counsel, P.M.Nayak for the respondent/plaintiff. Perused the writ petition papers.

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Learned counsel for the petitioner/defendant would submit that the suit of respondent/plaintiff is one for declaration and consequential relief of possession and mesne profits. It is submitted that the respondent/plaintiff had filed similar application earlier and the same was

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dismissed on the ground of premature application. Subsequent to completion of trial, respondent/plaintiff filed one more application under Order 26 Rule 9 of CPC requesting the Court to appoint ADLR as Court Commissioner to visit the spot and to submit report. Learned counsel would submit that appointment of Commissioner would amount to collection of evidence and moreover he submits that material on record would be sufficient to decide the lis between the parties. Learned counsel would submit that respondent/plaintiff has submitted that only after looking into hudbust survey, the petitioner/defendant has taken possession of the suit schedule property on its purchase and he has also submitted that the respondent/plaintiff has admitted that he is in possession of the land in pursuance to his title deeds. Thus, he prays for allowing the writ petition and dismissal of I.A. filed under Order 26 Rule 9 of CPC.

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Per contra, Sri.P.M.Nayak for the

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respondent/plaintiff would support the order passed by the

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trial court and submits that it is the case of respondent/plaintiff that petitioner/defendant is in encroachment of portion of the respondent/plaintiff’s property and to find out encroachment and extent of encroachment, the respondent/plaintiff sought appointment of ADLR as Court Commissioner. Learned counsel would submit that trial court rightly allowed the said application. Thus, he prays for dismissal of the writ petition.

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Having heard the learned counsel for the parties

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and on perusal of the writ petition papers, I am of the view that no ground is made out to interfere with the impugned order, moreover the impugned order is neither perverse nor suffers from any material irregularity so as to warrant interference under Article 227 of Constitution of India.

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The suit of the respondent/plaintiff is one for declaration, possession and mesne profit in respect of suit schedule property on the allegation that

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petitioner/defendant is in encroachment of portion of the respondent/plaintiff's property. Order 26 Rule 9 of CPC empowers the Court to appoint Court Commissioner for local investigation for elucidating the matter in dispute. When there is allegation of encroachment, normally the Courts would appoint the Commissioner to obtain report with regard to encroachment and its extent. Coordinate Bench of this Court in W.P.No.201274/2022 disposed on 24.01.2023 had an occasion to consider, the circumstances under which a Commissioner could be appointed under Order 26 Rule 9 of CPC. The relevant paragraphs 12, 14, 18 and 21 would read as follows:

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“12) Under the provisions applicable for local inspection what is impermissible is the delegation of adjudicating power. To cite an example, if both parties claim to be in possession of the disputed property, the local inspection by the Commissioner cannot be ordered to ascertain the possession. The question of possession is to be decided by the court. However, 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 a situation the Commissioner is appointed to find out the nature of possession. The report based on local inspection will be a handy tool

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to decide the case relating to encroachment. In the case on hand, the petitioner to prove his assertion of encroachment, instead of leading oral evidence of witnesses has applied for local inspection, and the same is not only permissible but also desirable.

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The discretion, though lies with the court, as to appoint the Commissioner before the trial or after the trial, the decision must be taken with due regard to the possibility of reducing or eliminating the need to record the oral evidence of witnesses to prove an issue which could be effectively decided with the aid of the report. More often than not, in disputes relating to the existence of pathway, stream, pond, well, or disputes relating to the 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. The party may simply rest his case based on his evidence and the report. In a given case, the appointment of the Commissioner before the commencement of the trial may facilitate a focused trial. In the case of Bhimappa Rayappa Chougala v. Shrikant, 2014 SCC OnLine Kar 12277 : (2014) 2 KCCR 1652 at page 1653, the Co-Ordinate Bench of this court has held as under :

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"4. xxx Only if the plaintiffs can show that the defendants have encroached upon their property, they would be entitled to the relief. Any amount of oral evidence is

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not a substitute or sufficient to prove the encroachment. To cut short the litigation to reduce recording evidence, the trial Court in its wisdom, thought it fit to appoint a Commissioner even before the commencement of the trial. That is how the duration of the litigation could be curtailed and speedy disposal of the civil matter could be achieved."

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For the reasons discussed above, the contention taken by defendant/respondent No.1 that the appointment of a Court Commissioner, in this case, amounts to collection of evidence does not merit consideration at all. The burden of proving the alleged encroachment is on the plaintiff. Instead of voluminous oral evidence, if the petitioner seeks to prove his contention relating to encroachment through the report of the Commissioner, the prayer for local inspection should be willingly granted unless there are justifiable reasons for the court to take a view that the local inspection is a futile exercise. For this reason, this Court is of the view that the Trial Court committed a grave error in not appointing a surveyor for local inspection.

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Having examined the provisions referred to above and given the fact that Order XXVI of the Code of Civil Procedure is often invoked in the trial court, this court is of the view, broadly speaking in the following cases, the appointment of an appropriate Commissioner as provided under Order XXVI of the Code is desirable.

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(i) The dispute relating to the easement of air,

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light, pathway, road, watercourse, etc.

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