C. Jayanna and Sannachikkanna vs T.R. Vasudev, T.M. Ramaiah, T.R. Yogananda and Obannaraju @ Obalaraju

Hon''ble Mrs. Justice B.V. Nagarathna

This writ petition is filed by the plaintiffs, challenging the order dated 10.8.2011, passed on LA. No. 16, filed under Order XXVI Rule 9 of Civil Procedure Code.

It is the case of the petitioners that the suit for permanent injunction has been filed on the basis of the fact that the petitioners being in possession and enjoyment of the entire land in "ADCBGEP" measuring about 1 acre 20 guntas in Sy. No. 12P of Chikkarampura Village as shown in the plaint sketch. In the said suit, evidence of the parties has been tot-in. When the matter is at the stage of arguments, an application under Order XXVI Rule 9 read with 151 of the CPC was filed by the plaintiffs/petitioners seeking appointment of the Taluks Survey Supervisor as Court Commissioner to inspect, and measure the suit schedule property and fix the boundaries of the petitioners'' property and to ascertain the damage caused by the respondents herein. The said application has been dismissed by impugned order. The same is as sailed in this writ petition.

I have heard the Learned Counsel for the petitioners.

it is submitted by the Learned Counsel for the petitioners that the Trial Court has wrongly dismissed the application on the ground that the application amounts to collection of evidence, which is not correct The object of appointment of the surveyor is to determine the possession of the petitioners with regard to the suit schedule property. In support of his contention, he has relied on a decision of this Court reported in Anil Kamalakar Shirodkar Vs. Dudhappa Santu Patil and Another, and submits that it is a fit case calling for interference by this Court.

Having heard the Learned Counsel for the petitioners and on perusal of the material on record, I find that the suit filed by the petitioners/plaintiffs is for permanent injunction. In such a suit, the burden is on the plaintiffs to prove not only the nature and extent of the suit schedule property, but also the nature and extent of interference by the defendants in the plaint sketch produced at Annexurs-A. The petitioners have categorically stated that they are in enjoyment of the entire part of *ADCBGFE* measuring about 1 acre 20 guntas in para 3 of the plaint There is no dispute with regard to the boundaries as such in the instant case. Therefore, the Trial Court was right in holding that the Court Commissioner could not be appointed for the purpose of measuring the suit schedule property, as the same would amount to collection of evidence, which is not permissible. The decision relied upon by the Learned Counsel for the petitioners is not applicable to the present case. Since an opportunity has been given to the plaintiffs to prove their case, it is for the Trial Court to consider the evidence on record adduced by the parties end accordingly grant the relief to the plaintiffs, if they are so entitled. The application filed at the belated stage was rightly dismissed. No interference of impugned order is called for in this writ petition.

In the result, the writ petition is rejected.