Jagadish vs Narayan and Others

B. Veerappa, J—The defendant filed the above writ petitions against the order dated 20.04.2015 made in O.S. No. 39/2012 connected with O.S. No. 156/12 on the file of the Additional Senior Civil Judge and JMFC, Athani, dismissing the application filed by the defendant under Order 26 Rule 10(A) and Rule 18 read with Section 151 of the Code of Civil Procedure.

The respondent who is plaintiff in the trial court filed O.S. No. 39/12 for declaration of title and consequential relief of permanent injunction in respect of suit schedule property, more fully described in the schedule to the suit, contending that he is the owner of the property in question and in pursuance of the registered sale deed dated 20.05.1994, plaintiff''s name was mutated in the revenue records in M.E. No. 3161 and it was certainly in accordance with law on 24.11.1999. The plaintiff is in lawful possession and wahivat of the suit portion without any obstruction from a y body. The title is vested with the plaintiff of the area of 34 guntas 08 annas and also contended that the defendant has no title over the portion marked CDGH portion shown in the hand-sketch map and he has no right to construct and enjoy the said portion, etc. The defendant filed written statement and denied entire plaint averments and has contended that he has not encroached the property of the plaintiff and sought for dismissal of the suit.

After completion of the evidence on both sides, when the matter was posted for arguments of the defendant, the defendant filed present application under Order 26 Rule 10(A) and Rule 18 read with Section 151 of the Code of Civil Procedure, for setting aside the Commission Report (Survey Report) dated 31.07.2013, contending that the Commissioner has not followed the direction issued by the Trial Court while submitting the report and therefore, Commissioner Report cannot be accepted. The said application was resisted by the plaintiff stating that after following all the procedures as contemplated under law the Commissioner has filed the survey report. The same is in accordance with law and also contended that the very application filed under Order 26 Rule 10(A) of Code of Civil Procedure is regarding appointment of Court Commissioner for Scientific investigation and Order XXVI Rule 18 of Code of Civil Procedure speaks regarding service of notice by the Commissioner to the parties before carrying out commission work. In the present case, the Commissioner has issued notice to the parties as well as adjoining property holders and in the presence of plaintiff, defendant and adjoining property holders carried out the commission work and the same is in accordance with law. Therefore, he sought for dismissal of the application. After hearing both the parties, learned Civil Judge by his impugned order dated 20.4.2015 was pleased to allow application

Against the said order the present petition is filed.

Heard the learned Counsel for parties to the lis.

Sri S.T. Patil, has contended that the impugned order passed by the trial court ignoring the direction issued by the trial court is contrary to law and records and the survey was conducted without issuing notice to adjoining owners has survey suit property and submitted report, which is not in accordance with law. Therefore, he filed the application to reject the commission report. But the trial court has rejected the application which resulted in miscarriage of justice. Therefore, he prayed to allow the writ petition by setting aside the impugned order.

Sri M.G. Naganuri, learned Counsel for respondents sought to justify the impugned order and specifically contended that the Commissioner after issuing notice to all the adjacent land owners and the plaintiff, defendant and the adjoining land owners were present at the time of carrying out the commission work and the petitioner/defendant has subscribed his signature on the panchanama drawn by the surveyor. Therefore, sought to dismiss the writ petition as devoid of merits.

I have given my anxious consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record.

It is not in dispute that the respondent/plaintiff filed suit for declaration and for consequential relief of permanent injunction on the ground that he became owner of suit property by virtue of registered sale deed dated 20.5.1999. It is the case of the defendant that he has not encroached upon the property of the plaintiff. Considering the application and objection filed by the parties, the trial court by impugned order recorded a specific finding that the contention of defendant in O.S. 39/12 with regard to P.W. 2 having not surveyed the entire extent of Sy. No. 1219 nor having seen the strips formed in Sy. No. 1219 or the R of R in respect of the same or the survey records and having not shown the encroachment of 22 1/2 guntas by the plaintiff of O.S. No. 39/12 in the land of Hulkund as surveyed by one S.S. Biradar, Surveyor who was examined as D.W. 3 on behalf of defendant in O.S. No. 39/2012 in his report at Ex. D. 51 all cannot be gone into at this stage as the main dispute involved in this case is to be seen only with regard to the alleged encroachment of 0.20 guntas in the above said land of the plaintiff is made by the defendant or not as shown by the letters CDGH in the hand-sketch map annexed to the plaint in O.S. 39/12. That whatever above said contentions have been raised by the defendant could all be seen and decided at the time of final disposal of the suit where already both the plaintiff and defendant have adduced their respective oral/documentary evidence and that of their witnesses in support of their contention. Therefore, when there is abundant voluminous oral and documentary evidence produced by both plaintiff and defendant, the same would be pressed to determine the above said dispute involved between them wherein the defendant is at liberty to disprove the report of the above said Court Commissioner with regard to the oral/documentary evidence adduced by him wherein he has also cross-examined Court Commissioner i.e. P.W. 2 at length on two occasions as above said in support of his contentions and the question of calling for fresh report as prayed by the defendant in I.A. 19 does not arise. He has also relied upon the decision of this Court in the case of Gopala Samayaji C. Vs. R. Madhava Pai and Another , and also in the case of Josephine D''Souza (Miss) vs. M. Narayana Rao, reported in 2000 (1) KLD 281 . The learned trial Judge has also observed on the conduct of the defendant in O.S. 39/2012 which is required to be noted herein is that, the above said defendant has not chosen to file this application after the closure of evidence on both sides when the case has reached the stage of arguments and if the above said application is entertained, then the same would disrupt trial and would delay the proceedings and all the procedure from that stage onwards have to be re-commenced which is not permissible in law as could be seen from the decision reported in B.S. Nazir Hassan Khan Vs. Aswathanarayana Rao and Others, AIR 2004 Kar 92 : (2004) 2 KarLJ 191 : (2003) 4 KCCR 388 SN The learned trial Judge has opined, on going through report of the Court Commissioner P.W. 2 submitted in this case along with the oral/documentary evidence adduced by the plaintiff/defendant, that there is abundant material on record to decide the above said dispute of the plaintiff/defendant with liberty to the defendant to substantiate his contentions during the trial of the case and the question of rejection of the report of the Court Commissioner does not arise at all. Further the learned Judge has observed that the trial court cannot give any opinion on report of the Court Commissioner at this stage as it would amount to prejudging the decision of the case and as such it reserved the liberty to the plaintiff and defendant to put forward their contentions with regard to correctness or otherwise of the Report. of Court Commissioner and also observed that the arguments that have been canvassed by the learned advocates for the plaintiff and defendant and the decisions relied by them could be gone into at the time of final disposal of the case. Accordingly he dismissed the application. The same is in accordance with law. The petitioner has not made out any ground to interfere.

Accordingly, writ petition is dismissed.

It is made clear that the trial court while disposing of the suit, shall decide the same with reference to the material documents produced by both parties including the Commissioner Report and in accordance with law.