Sri Hanumappa Vs Sri Kempaiah

ORDER DTD23.1.2019 PASSED BY THE HON'BLE II ADDL CIVIL JUDGE AND JMFC, MALUR IN IA IN EX.NO.52/2014 FILLED UNDER ORDER XXVI RULE 9 REAS WITH SECTION 151 OF CIVIL PROCEDURE CODE REJECTING THE PRAYER OF PETITIONER/DHR SEEKING FOR AN APPOINTMENT OF COURT COMMISSIONER i.e. TALUK SURVEYOR, MALUR TALUK, MALUR TO DEMARCATE WITH MESURMENTS OF SUIT SCHEDULE PROPERTY AND TO PREPARE A SKETCH AS PER THE DESCRIPTION OF THE PROPERTY AND ALSO NOTE DOWN THE MEASUREMENT OF ENCROACHMENT IF ANY MADE BY THE JUDGMENT DEBTOR AND TO SUBMIT A REPORT WITH TOPOGRAPHY OF THE ENTIRE AREA WITH SKETCH BY ISSUING WRIT OF CERTIORARI AS THE IMPUGNED ORDER BEING PERVERSE, CAPRICIOUS, ARBITRARY AND BIASED FOR BEING PASSED WITHOUT PORPER JUDICIAL REASONING VIDE ANNEXURE-A.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN B GROUP THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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ORAL ORDER

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This writ petition under Article 227 of the Constitution of India is filed by the decree holder with the prayer to set aside the order dated 23.01.2019 passed on an application filed under Order XXVI Rule 9 read with Section 151 of CPC in Execution No.52/2014, passed by the Court of II Addl. Civil Judge & JMFC, Malur.

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HC-KAR

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Heard the learned Counsel by the parties.

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Petitioner herein had filed O.S.No.254/2009 before the jurisdictional Civil Court seeking a decree of permanent injunction in respect of property bearing Sy.No.25 measuring 1 acre 35 guntas situated at Kasaba Hobli, Gaddamsonnahalli Village, Malur Taluk. The said suit was decreed on 06.10.2012. Alleging violation of the decree of permanent injunction passed in O.S.No.254/2009 decree holder has filed Execution No.52/2014 before the Trial Court and in the said proceedings, an application under Order XXVI Rule 9 read with Section 151 of CPC was filed to appoint the Taluk Surveyor as Court Commissioner to measure and demarcate the suit schedule property and to prepare a sketch. The said application was opposed by the judgment-debtor, and the Trial Court vide the order impugned, has rejected the application and being aggrieved by the same, decree holder is before this Court.

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Learned Counsel for the petitioner submits that the judgment and decree passed in O.S.No.254/2009 has attained finality. Towards the eastern side of the suit schedule property in O.S.No.254/2009, the property belonging to the

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HC-KAR

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defendant/judgment-debtor in Sy.No.29 measuring 2 acres 6 guntas is situated. In respect of the said property, a separate suit was filed in O.S.No.409/2009 by the defendant and even the said suit has been decreed and a permanent injunction has been granted in respect of the property bearing Sy.No.29 in favour of the plaintiffs in O.S.No.409/2009. He submits that the judgment debtor in O.S.No.254/2009 is plaintiff no.1 in O.S.No.409/2009. He has encroached a portion of the property in Sy.No.25 and it is under these circumstances, execution case was filed. He submits that to find out the encroachment, the appointment of Court Commissioner becomes necessary. Accordingly, he prays to allow the petition.

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Per contra, learned Counsel for the respondent has argued in support of the order impugned. He submits that the allegation made in the execution case has to be independently proved by leading evidence and petitioner cannot be permitted to collect evidence by way of Commissioner's report. He accordingly prays to dismiss the petition.

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Undisputed facts of the case are, petitioner herein has filed O.S.No.254/2009 seeking permanent injunction against

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HC-KAR

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the respondent herein in respect of the property bearing Sy.No.25 measuring 1 acre 35 guntas situated in Gaddamsonnahalli Village and the said suit has been decreed on 06.10.2012. Allegation against the judgment debtor in O.S.No.254/2009 is that, after the decree was passed in O.S.No.254/2009, in the year 2014, the judgment-debtor has encroached a portion of the suit schedule property in O.S.No.254/2009 and thereby has violated the decree of permanent injunction in O.S.No.254/2009.

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In normal circumstances, when there is an allegation of encroachment and if such an allegation cannot be adjudicated based on oral and documentary evidence, the Courts should appoint a Court Commission for the purpose of inspection of the property and survey and the report submitted by the Court Commissioner would definitely assist the court to properly adjudicate the dispute between the parties. In every case, an application filed under Order XXVI Rule 9 read cannot be said to be filed for the purpose of collecting evidence.

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In the case on hand, undoubtedly there is a decree of permanent injunction in favour of the petitioner herein and the

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HC-KAR

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said decree is passed on 06.10.2012. Therefore, the presumption is that he was in possession of the suit schedule property in O.S.No.254/2009 as on the date of passing the decree in the said suit. Now the decree holder has made an allegation that subsequent to the decree, the judgment- debtor has encroached a portion of the suit schedule property in O.S.No.254/2009, and thereby he has violated the decree passed in O.S.No.254/2009.

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The material on record would go to show that the properties bearing Sy.Nos.25 & 29 are situated adjacent to each other and the same is separated by a ridge. Therefore, it becomes necessary that a Court Commissioner is required to be appointed for the purpose of finding out the true and correct facts, more so when an allegation is made about encroaching the property in respect of which a decree is passed in favour of a party. The Trial Court, therefore, was not justified in rejecting the prayer made in the application. Accordingly the following order:

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