IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF MARCH, 2019 BEFORE BETWEEN:
THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.37551/2014(GM-CPC) SMT. KAMALABAI, W/O LATE KUBER SINGH, AGED ABOUT 50 YEARS, RESIDING AT CHIKKENAHALLI VILLAGE, KAILANCHA HOBLI, RAMANAGARA TALUK, RAMANAGARA DISTRICT-562159.
(BY SRI K. SHANTHARAJ, ADVOCATE) AND:
1. SURENDRA SINGH AGED ABOUT 61 YEARS 2. RAGHUNATH SINGH AGED ABOUT 57 YEARS 3. BALAJI SINGH AGED ABOUT 55 YEARS 4. AMARNATH SINGH AGED ABOUT 53 YEARS ALL ARE SONS OF LATE PREM SINGH, RESIDING AT CHIKKENAHALLI VILLAGE KAILANCHA HOBLI, RAMANAGARA TALUK, RAMANAGARA DISTRICT-562159.
... PETITIONER ... RESPONDENTS (BY SRI G. SHANKAR, ADVOCATE FOR R1 TO R3;
R4 IS SERVED BUT UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 25.11.2013 ON I.A.NO.4 PASSED BY THE LEARNED CIVIL JUDGE (JR.DN) RAMANAGARA AND COURT COMMISSIONER'S REPORT ALONG WITH SKETCH DATED 31.12.2013 IN O.S.NO.216/2013, ON ITS FILE, VIDE ANNEXURES-D & E AS ILLEGAL, ERRONEOUS ON THE FACE OF THE RECORDS, RESULTING IN MISCARRIAGE OF JUSTICE AND WITHOUT JURISDICTION.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The defendant has filed the present writ petition against the order dated 25.11.2013 on I.A.4 allowing the application filed by the plaintiffs under Order XXVI Rule 9 of the Code of Civil Procedure for appointment of Taluka Surveyor, Ramanagara as Court Commissioner to inspect the suit property as to whether any encroachment in the land bearing Sy.No.3/1 and to submit report and also to direct the Court Commissioner to follow the instructions, if any, furnished by both parties.
2. The respondents, who are plaintiffs before the trial Court, filed a suit for permanent injunction in respect of ‘B’ schedule property and a portion of the ‘A’ schedule property contending that they are the owners and in possession and enjoyment of the suit schedule properties and that the defendant has no manner of right, title and interest to interfere with their possession.
3. The defendant filed her written statement contending that there is a dispute with regard to the boundary of the suit schedule properties in between the plaintiffs’ and defendant’s properties. The description of the suit schedule properties are all false and baseless and plaintiffs are not in possession nor they are having any possession and hence the suit is not maintainable. As such, she sought for dismissal of the suit.
4. Even before recording of the evidence, the plaintiffs filed an application under Order XXVI Rule 9 of the Code of Civil Procedure for appointment of Taluka Surveyor, Ramanagara as Court Commissioner to inspect the spot and submit a report as to whether there is any encroachment. The said application was resisted by the defendant. The trial Court considering the application and objections, by the impugned order dated 25.11.2013 allowed the application and appointed the Taluka Surveyor, Ramanagara as Court Commissioner and directed him to inspect the suit schedule properties as to whether any encroachment of the land in Sy.No.3/1 and submit a report. Hence, the present writ petition is filed.
5. I have heard the learned Counsel for the parties to the lis.
6. The ground taken by the petitioner in the writ petition clearly indicates that the suit is for bare injunction. In order to prove their possession, the plaintiffs have to lead an independent evidence by producing documents as held by the Apex Court and this Court and hence the Court Commissioner cannot be appointed for collection of the evidence. The order passed by the trial Court appointing the Court Commissioner is erroneous and contrary to the material on record. It is further contended in the plaint that the respondents-plaintiffs have allegedly shown in the ‘A’ schedule property an extent of 1 acre 16 guntas in Sy.No.3/1 and in the application – I.A.4 filed by them for appointment of Court Commissioner it is shown as 1 acre 18 guntas and they have also categorically admitted that there is a gramatana and in that the defendant-petitioner has constructed a house and therefore in a suit for bare injunction, the Commissioner cannot be appointed and the trial Court has totally committed a serious error in appointing the Court Commissioner. It is further contended that the application filed is premature and therefore, sought to allow the writ petition.
7. Per contra, Sri G. Shankar, learned Counsel or respondents-plaintiffs sought to justify the impugned order and contended that the application filed by the plaintiffs came to be allowed and the Counsel for the defendant has submitted ‘No Objections’. Once the application is allowed and the Court Commissioner has already inspected the spot and submitted the report on 12.12.2014, there is no question of quashing the same. Therefore, he sought to dismiss the writ petition.
8. Having heard the learned Counsel for the parties, it is an undisputed fact that the plaintiffs filed a suit for permanent injunction in respect of the ‘B’ schedule property which has included a portion of ‘A’ schedule property. It is for the plaintiffs to prove based on the oral and documentary evidence on record.
9. Though an application came to be filed even before the evidence was let in, the fact remains that the Counsel for the defendant had no objection to appoint the Taluka Surveyor to inspect the spot as the Court Commissioner as to whether any encroachment of the land bearing Sy.No.3/1 and submit the report. Admittedly, after the orders was passed by the trial Court on 25.11.2013, the report came to be filed on 12.12.2014 and objections was also filed by the defendant. It is well settled that Court Commissioner can be appointed only after completion of evidence on both sides and if there is any ambiguity, then only the Court Commissioner can be appointed. The only dispute is with regard to encroachment of the land and if the suit is filed for injunction alleging encroachment, the Court Commissioner can be appointed.
10. This Court in the case of Bhimappa Rayappa Chougala –vs- Shrikant reported in 2014(2) KCCR 1652 considering the very question at para-3 has held as under:
“3. The suit is one for possession and injunction. The plaintiffs claim the defendants have encroached upon their property. Only if the plaintiffs are able to 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.”
11. It is needless to observe that the plaintiffs cannot succeed mainly on the basis of Court Commissioner’s report. It is only one of the evidence along with other evidence i.e., oral and documentary evidence to be adduced and produced by both parties.
12. In view of the above, the impugned order dated 25.11.2013 made on I.A.4 passed by the learned Civil Judge (Junior Division), Ramanagara in O.S.No.216/2013 is just and proper and no interference is called for. Accordingly, writ petition is disposed of.
13. However, it is made clear that the trial Court shall proceed with the suit only on the basis of the Court Commissioner’s report and acceptance of the report will always be subject to objections to be filed by the defendant to consider the same and proceed with suit based on the oral and documentary evidence to be adduced and produced by both the parties.
Sd/- Judge Nsu/-