Allowed

Smt. Poovarsi v. S. Anand

Karnataka HC8 Sept 2023WP/4363/2020

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a writ petition under Article 227 setting aside the Trial Court order rejecting an application for appointment of a Court Commissioner. The Court held that local inspection for measuring encroachment is desirable to shorten litigation.

What did the court decide?

The impugned order rejecting I.A.No.14 was set aside, and the application for appointment of a Court Commissioner was allowed.

Smt. Poovarsi Vs S. Anand — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:32438 WP No. 4363 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF SEPTEMBER, 2023 BEFORE

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THE HON'BLE MR JUSTICE S.G.PANDIT WRIT PETITION NO. 4363 OF 2020 (GM-CPC)

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BETWEEN:

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SMT. POOVARSI W/O KRISHNA SWAMY ALIAS EDWARD CHINNAIAS AGED ABOUT 51 YEARS R/AT NO.163E, SHETTY HALLI, JALAHALLI WEST, BENGALURU - 560 015. (BY SRI. CHENNAKESHAVA B. S., ADV.)

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…PETITIONER

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AND:

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Digitally signed by A K CHANDRIKA Location: High Court of Karnataka

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S. ANAND S/O SEENAPPA MAJOR, R/AT NO.164 ARALIKATTE ROAD, SHETTY HALLI, JALAHALLI WEST, BENGALURU - 560 015. 2. SMT. RATHNAMMA W/O SHRINIVASA KEMPAIAH ALIAS SEENAPPA MAJOR R/AT NO.164 ARALIKATTE ROAD, SHETTY HALLI JALAHALLI WEST BENGALURU-560 015. …RESPONDENTS

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(BY SRI. T.V. SATHISH, ADV. R1 & R2)

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THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS IN O.S.NO.2926/2009, PENDING ON THE FILE OF THE LXVIII ADDL.

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CITY CIVIL AND SESSIONS JUDGE, BANGALROE CITY (CCH-69) AND SET ASIDE THE IMPUGNED ORDER DATED 13.12.2019 VIDE ANNX-E PASSED BY LXVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE CITY (CCH-69) ON THE I.A.NO.14 FILED U/O XXVI RULE 9 R/W SEC. 151 OF CPC, 1908, IN O.S.NO.2926/2009 AND ALLOW THE SAID APPLICATION.

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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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ORDER

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The petitioner/plaintiff in O.S.No.2926/2009 on the

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file of the LXVIII Additional City Civil and Sessions Judge, Bengaluru City (CCH-69) (for short, ‘Trial Court’) is before this Court aggrieved by order dated 13.12.2019 rejecting I.A.No.14 filed under Order XXVI Rule 9 of CPC for appointment of Court Commissioner.

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Heard the learned counsel

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Sri.Channakeshava.B.S., for petitioner/plaintiff and learned counsel Sri.T.V.Sathish for

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respondents/defendants. Perused the writ petition papers.

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Learned counsel for the petitioner/plaintiff would submit that suit of the petitioner/plaintiff is for declaration that plaintiff is the absolute owner of

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encroached portion of the suit schedule property and for mandatory injunction for removal or to demolish the unauthorized construction. It is submitted that after completion of evidence of both the sides, petitioner/plaintiff filed I.A.No.14 under Order XXVI Rule 9 of CPC praying to appoint Commissioner for local investigation and to measure the suit schedule property and the property of defendants. Learned counsel would submit that it is the case of the petitioner/plaintiff that defendants have encroached portion of the suit schedule property. Therefore, application was filed to measure the suit schedule property of the petitioner/plaintiff as well as property of the respondents/defendants. Learned counsel would submit that obtaining report on local investigation and measurement would assist the Court in proper adjudication of dispute between the parties. Learned counsel would submit that the Trial Court committed an error in rejecting application for appointment of Court Commissioner by observing that if the plaint averments are clear and specific about the extent of encroachment,

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then there is no need for appointment of Commissioner for measuring the property in dispute. Learned counsel would submit that to elucidate the matter with regard to exact measurement, appointment of Commissioner would be necessary and report in that regard would save the Court’s time. Thus, he prays for setting aside the impugned order and to allow writ petition appointing Court Commissioner, as prayed in the application.

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Per contra, learned counsel Sri.T.V.Sathish for respondents/defendants would support the impugned order passed by the Trial Court and would submit that petitioner/plaintiff filed application for appointment of Court Commissioner to measure the suit properties belatedly, when the matter was at the stage of arguments. Learned counsel would submit that appointment of Commissioner would not be necessary since it is for the petitioner/plaintiff to establish the encroachment by producing material evidence. Thus, he prays for dismissal of writ petition.

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NC: 2023:KHC:32438 WP No. 4363 of 2020

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5. Having heard the learned counsel appearing for

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the parties and on perusal of writ petition papers, I am of the view that Trial Court committed an error in rejecting application filed by the petitioner/plaintiff under Order XXVI Rule 9 of CPC for appointment of Court Commissioner to measure the suit schedule property as well as property of the respondents/defendants.

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The suit of the plaintiff is to declare that plaintiff is the absolute owner of the encroached portion of the suit schedule property and for mandatory injunction directing the defendants for removal or to demolish the unauthorized construction put up by the defendants over southern portion of the suit schedule property and to restore possession of the same. It is the specific case of the petitioner/plaintiff that defendants have encroached southern portion of the suit schedule property. When there is allegation of encroachment, always it would be expedient and necessary to appoint Commissioner to get the report on local inspection with regard to

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encroachment. Such report with regard to encroachment would be a handy tool to decide the dispute between the parties. In terms of Order XXVI Rule 9 and 10 of CPC, Commissioner’s report would be a piece of evidence. Such report shall have to be assessed or appreciated by the Trial Court at the time of final hearing.

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A Co-ordinate Bench of this Court in W.P.No.201274/2022, disposed of on 24.01.2023 was

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considering Order XXVI Rule 9 of CPC for appointment of Commissioner and while disposing of the said writ petition, this Court has laid down, under what circumstances the Court Commissioner could be appointed for local inspection; has also laid down guidelines for the Court and also for Court Commissioner. Relevant paragraphs 12, 13, 14 and 21 of the above decision reads 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

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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 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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13. The next question is, at what stage of the proceeding in a suit, the application can lie? As could be easily noticed from the provision, the provision is not ‘stage’ centric. Thus the provision can be invoked either before the commencement of the trial or after. If the application is filed before the commencement of the trial, the court having regard to the pleadings and records may allow such application before the commencement of the trial. For example, in a given case, if the report is necessary for consideration of an application seeking some interim measure, before the commencement of the trial, the Commissioner can be appointed, if the case is made out for a such appointment. On the other hand, again, having due

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regard to the pleadings and records, if the court finds that there is every likelihood that after recording the evidence of the parties, the need to appoint the court Commissioner may not arise or that the court is of the view that it can take a call on the application, only after recording the evidence, then it may defer the order on the application till such time. Thus the decision as to when the report of the Commissioner is to be secured must be taken having due regard to the facts and circumstances.

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14. 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

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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

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show that the defendants have encroached upon their property, they would be entitled to the relief. Any amount of oral evidence is 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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21. 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

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appreciate Commissioner as provided under Order XXVI of the Code if 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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(ii) The dispute relating to the boundary, encroachment;

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(iii) The dispute relating to forgery;

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(iv) The dispute relating to the existence or otherwise of a stream, pond, drainage, watercourse, road, pathway pollution or nuisance.”

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In the case on hand, Trial Court proceeded to

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dismiss I.A.No.14 for appointment of Commissioner on the premises that if the plaint averments are clear and specific about the extent of encroachment, then there is no need for appointment of Commissioner for measuring the property in dispute. On going through the plaint, it is seen that petitioner has given measurement with regard to encroachment. Always it would be better to get the report of the Commissioner when encroachment is alleged and also to find out the exact measurement of encroachment. A report of the Commissioner on local inspection and

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measurement would save the Court’s time and it would assist in proper adjudication of dispute between the parties. Hence, the following:

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ORDER

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1. Impugned order 13.12.2019 on I.A.No.14 in O.S.No.2926/2009 on the file of the LXVIII Additional City Civil and Sessions Judge, Bengaluru City (CCH-69) is set aside.

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1. I.A.No.14 is allowed directing the Trial Court to appoint Court Commissioner as prayed in I.A.No.14.

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With the above, writ petition stands disposed of.

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Sd/JUDGE

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NC CT:bms List No.: 1 Sl No.: 58

Smt. Poovarsi v. S. Anand

Case brief

What is this about?

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Smt. Poovarsi v. S. Anand

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