IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF APRIL 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.13110/2019 (GM-CPC) BETWEEN :
Sri. Basavaraju S/o. Bhadraiah, Aged about 38 years, R/at Boppanahalli Village, Kasaba Hobli, Maluru Taluk – 563 130 Kolar District. ... Petitioner (By Sri. Basavanna M. D.,Advocate) AND 1. Sri. Rudrappa S/o. Munishamappa, Aged about 72 years, R/at. Boppanahalli Village, Kasaba Hobli, Maluru Taluk-563 130 Kolar District.
2. Sri. Basavaraju S/o.Veerabhadrappa, Aged about 42 years, R/at. Boppanahalli Village, Kasaba Hobli, Maluru Taluk-563 130 Kolar District. … Respondents This Writ Petition is filed under Article 227 of the Constitution of India praying to quash the order passed on I.A.No.15 filed under Order XXVI Rule 1 and Rule 9 of CPC in O.S.No.235/2011 on the file of Principal Civil Judge & JMFC at Maluru, Kolar District, dated 10.01.2019 which is produced under Annexure-J.
This Writ Petition coming on for Preliminary Hearing, this day, the Court made the following:-
ORDER The petitioner who is the first defendant has filed the present writ petition against the order dated 10.01.2019 passed on I.A.No.15 in O.S.No.235/2011 allowing the application filed by the plaintiff under Order 26 Rue 9 r/w 151 CPC with cost of Rs.200/-.
2. The first respondent who is the plaintiff before the trial court filed a suit for declaration of easementary right, permanent and mandatory injunction against the defendants on the basis of existence of public road. Defendants filed written statement and denied the plaint averments and sought for dismissal of the suit. After completion of evidence on both sides, when the matter was posted for arguments, at that point of time, the plaintiff filed an application for appointment of Court Commissioner to conduct local inspection of spot and to verify the existence of road and measurement of the first defendant property and secure a detailed report for adjudication of the real controversy mainly contending that the during the pendency of the suit, the first defendant blocked the road including portion of the road to his property and also sought by way of amendment which was allowed. Since the question of removal of blockage made is involved in the circumstances, it is necessary to ascertain the Commissioner’s report to confirm the existence of road, blockage of portion of road, first defendant’s property extents etc., in order to adjudicate the controversy between the parties.
3. The said application was opposed by the defendants by filing objections.
4. The trial court considering the application and objections by the impugned order dated 10.01.2019, allowed the application filed by the plaintiff for appointment of Court Commissioner under Order 26 Rule 9 r/w 151 CPC. Hence, the present writ petition.
5. I have heard the learned counsel for petitioner.
6. Sri. Basavanna, learned counsel for petitioner has contended that the impugned order passed by the trial court allowing the application filed by the plaintiff under Order 26 Rue 9 r/w 151 CPC with cost of Rs.200/- is contrary to the material on record. He would further contend that the impugned order passed by the trial court allowing the application is nothing but collection of evidence, which is impermissible. He has further contended that in a suit for declaration of easementary right, it is for the defendant to prove the same with documents and the same cannot be delegated to the Commissioner. Therefore, he has sought to allow the writ petition.
7. Having heard the learned counsel for petitioner, it is not in dispute that in a suit for declaration of easementary right, permanent and mandatory injunction, after completion of evidence of both sides, application came to be filed to know the existence of road and blockage of the road by the defendant. The trial court considering the application and objections recorded a finding that “in the case on hand, there is ambiguity with regard to existence of suit road. The plaintiff has stated in his pleading as well as in the evidence that the defendants are the adjacent land owners and there is road which is being used by him to reach his property. Per contra, defendants pleaded to have denied the existence of suit road. The plaintiff has stated in his evidence that he is using three-four roads to reach his house and his easementary right of way is obstructed. Therefore, it is to be known about the surrounding circumstances in respect of suit road. On careful perusal of evidence available on record, it appears there is no sufficient material available on record to proceed with the matter, there are conflict versions in the case, the applicants have shown good grounds to allow the application and if the application is allowed, it will help the court to decide the matter effectively.” Therefore, the trial court was of the opinion that it is necessary to appoint Court Commissioner to ascertain the existence of suit and to know the ambiguity regarding existence of road. Therefore, the application came to be allowed.
8. In a suit for declaration of easementary right, only the plaintiff is able to show that the defendant has blocked the road open to reach his property and he would be entitled to relief based on oral and documentary evidence. Any amount of oral evidence is not sufficient to prove the alleged existence of road, to cut short, the trial court after completion of evidence, in its wisdom thought it fit to appoint the Court Commissioner in view of the dispute between the parties with regard to existence of road, blockage of portion of road and extent of first defendant’s property and accordingly the Court Commissioner is appointed and the same is in accordance with law.
9. The petitioner has not made out case to interfere with the impugned order. Accordingly, the writ petition is dismissed.
However, it is made clear that mere appointing the Court Commissioner on the application filed by the plaintiff, the trial court has to look into other documents and the Commissioner’s report alone will not be a clinching evidence and the court has to pass the order strictly in accordance with law.
Np/-
Sd/- JUDGE