Sri Chikkaveeraiah Vs Smt Kempamma

SRI. CHIKKAVEERAIAH S/O RAMAIAH AGED ABOUT 42 YEARS R/AT DOOR NO.206 BRAHMASANDRA VILLAGE KORA HOBLI, TUMAKUR TALUK TUMAKUR -572 101. (BY SRI. SUNIL KUMAR PATEL, ADV.,)

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…PETITIONER

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AND:

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Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA

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SMT. KEMPAMMA W/O ASHWATHAIAH AGED ABOUT 45 YEARS R/AT BRAHMASANDRA VILLAGE KORA HOBLI, TUMAKUR TALUK TUMAKUR-572 101.

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…RESPONDENT

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(BY SRI. H.B. UDAY KUMAR, ADV.,)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DATED 06.08.2019 PASSED IN O.S.NO.783/2007, BY THE IST ADDITIONAL CIVIL JUDGE AND JMFC, TUMAKURU VIDE ANNEXURE-A. CONSEQUENTLY ALLOW THE INTERLOCUTORY APPLICATION OF PLAINTIFF/PETITIONER FILED U/O 26 R-9 OF CIVIL PROCEDURE COURT TO APPOINT A SURVEYOR AS COURT COMMISSIONER FOR THE INSPECTION AND TO PREPARE THE SKETCH OF THE EXTENT OF THE LAND BY DEMARKING THE BOUNDARIES MENTIONED IN THE SUIT SCHEDULE PROPERTY ANNEXURE-B & ETC.

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NC: 2026:KHC:28327 W.P. No.11550/2021

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HC-KAR

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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 VIJAYKUMAR A. PATIL

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ORAL ORDER

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This petition is filed challenging the order dated 06.08.2019 passed in O.S.No.783/2007 by the I Additional Civil Judge and JMFC, Tumakuru (for short, ‘the trial Court’ ).

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Sri.Sunil Kumar Patel, learned counsel appearing for the petitioner submits that petitionerplaintiff has filed a suit for perpetual injunction, mandatory injunction against the respondent-defendant by contending that the defendant has encroached ‘B’ schedule property and sought to remove the construction put up by the defendant in the ‘B’ schedule property. It is submitted that the parties have adduced the evidence and thereafter an application for appointment of Court Commissioner was pressed. The trial Court rejected the said application on the ground that the parties have led the evidence and

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HC-KAR

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there is sufficient evidence to adjudicate the dispute between the parties. It is further submitted that the plaintiff has made specific assertion in the plaint as well as in the evidence that the defendant has encroached the road, which is shown as ‘B’ schedule property and actual encroachment can be noticed only by local inspection by the Court Commissioner and the oral and documentary evidence are not sufficient to prove the same. Hence, he seeks to allow the petition.

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Per contra , Sri.H.B.Uday Kumar, learned counsel for the respondent supports the order of the trial Court and submits that the respondent-defendant has filed a detailed written statement categorically denying the assertion made in the plaint and that the defendant has not encroached any property as alleged in the plaint and there is already existing road, which is being used by both the plaintiff and the defendant from 1991 onwards. Hence, the filing of the present application is nothing but an abuse

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NC: 2026:KHC:28327 W.P. No.11550/2021

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HC-KAR

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of the process of law. Hence, he seeks to dismiss the petition.

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I have heard the arguments on both sides and

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perused the material available on record.

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The petitioner-plaintiff has filed the suit in O.S.No.783/2007 against the respondent-defendant seeking the relief of permanent injunction restraining the defendant from putting up any sort of construction in the ‘B’ schedule property and further relief of mandatory injunction seeking to remove the illegal construction put up by the defendant in the ‘B’ schedule property. The said assertion of encroachment and putting up of the construction is denied by the defendant in the written statement. The parties have led the evidence. After conclusion of the trial, the application under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 seeking to appoint the Court Commissioner was pressed. The same was rejected by the trial Court.

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HC-KAR

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It is the case of the petitioner-plaintiff that there exists a road between the site owned by the plaintiff and the defendant and the road runs from east to west measuring 25 ½ feet and north to south 11 ½ feet. Though the said assertion is denied by the defendant, in my considered view, whether there is any encroachment in the suit schedule property and whether the suit schedule property is a road as alleged in the plaint is required to be ascertained by the trial Court by appreciating the evidence already led. Therefore, in my considered view, the appointment of Court Commissioner would aid the trial Court in deciding the dispute between the parties, more particularly, when the plaintiff is making a specific assertion in the plaint and in his evidence that the defendant has illegally encroached the road which is shown as ‘B’ schedule property and put up construction, and to answer the aforesaid disputed factual matrix, the appointment of Court Commissioner would help the trial Court. No prejudice or harm would be caused to the

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NC: 2026:KHC:28327 W.P. No.11550/2021

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HC-KAR

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defendant if the factual report is secured from the Court Commissioner.

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It is needless to observe that the defendant has every right to oppose the Commissioner's report by filing the objections and if required, cross-examine the Court Commissioner.

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With the aforesaid observations, I proceed to

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pass the following:

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ORDER

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i. Writ petition is allowed .

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ii. The impugned order dated 06.08.2019 passed in O.S.No.783/2007 by the I Additional Civil Judge and JMFC, Tumakuru, is set aside. Consequently, I.A. filed by the plaintiff under Order XXVI Rule 9 of CPC is allowed.

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NC: 2026:KHC:28327 W.P. No.11550/2021

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HC-KAR

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iii. The trial Court shall appoint a competent person as Court Commissioner to measure the disputed property and submit the report as sought in the application.

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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BSR List No.: 1 Sl No.: 29

Sri Chikkaveeraiah v. Smt Kempamma

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Sri Chikkaveeraiah v. Smt Kempamma

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