N. Swamygowda vs Ramegowda

Ashok B. Hinchigeri, J.—The petitioner - plaintiff has called into question the order, dated 4.8.2009 (Annexure-F) passed by the Court of the Principal Civil Judge (Sr.Dn), Srirangapatna, on I.A. No. XIX in O.S. No. 149/2001.

In the suit filed by the petitioner for injunction, the respondent No. 3 tiled I.A. No. XIX invoking Order XXVI Rule 9 of CPC (C.P.C.) seeking the appointment of the Taluka Surveyor as the Court Commissioner for ascertaining as to in which Survey Number the suit schedule property is situated. The Trial Court allowed the said I.A.

The learned Counsel for the petitioner, Sri Mahanthesh Hosmath submits that the petitioner has produced as many as 74 clinching documents to show that the suit schedule property is formed out of the lands at Sy. No. 291. He submits that even the Gazette Notification has not weighed with the Trial Court. He takes exception to the Trial Court entertaining the application for the appointment of the Court Commissioner at a belated stage, when the matter was set down for argument. In support of his submissions, he has relied on the decision of this Court in the case of B.S. Nazir Hassan Khan Vs. Aswathanarayana Rao and Others, , wherein, the rejection of an application for the appointment of the Court Commissioner filed at a belated stage, when the case is posted for arguments, is held to be proper.

He submits that the parties have to establish their case by adducing independent and cogent evidence. He submits that the appointment of the Court Commissioner for collecting the evidence on behalf of a party is absolutely impermissible. The filing and allowing of the said application is only to harass the petitioner. He apprehends that he would not get justice at the hands of the Taluk Surveyor, who is again an officer of the State Government.

Per contra, Smt. Shwetha Anand, the learned Counsel for the respondent No. 3 submits that when the identity of the property is in dispute, the proper course for the Courts is to appoint the Commissioner, which has been done in the present case. She submits that according to the petitioner, the suit schedule property is in Sy. No. 291, according to the respondent No. 3 it is in Sy. No. 297 and according to the respondent Nos. 1 and 2 it is in Sy. No. 175.

Sri Anjana Murthy, the learned High Court Government Pleader appearing for the respondent No. 4 adopts the submissions urged on behalf of the respondent No. 3.

The object of local inspection is not so much to collect the evidence, which can be taken in the Court, but to obtain evidence, which from its very peculiar nature can only be had at the spot. If an authority is required for this proposition, it is to be found in the Kerala High Court Division Bench judgment in the case of Maroli Achuthan Vs. Kunhipathumma, .

It is also profitable to refer to this Court''s decision in the case of B. Jagannath Vs. N.C. Narayanappa and Another, , wherein it is held that the appointment of the Court Commissioner for measuring and demarcating the schedule property with a sketch, would arise only after the parties have adduced the evidence. The Madras High Court in the case of Vaithinattar and Janardhanan Vs. Sakkubai Ammal, has taken the considered view that the best evidence, where the encroachment is not admitted, would be obtained only by appointing the Court Commissioner.

It is also profitable to refer to this Court''s judgment in the case of Janab Nizar Ahmed Sheriff Vs. A. Kannan, , wherein it is held that if the identity of the property is in dispute, the Court can unilaterally appoint the Court Commissioner; it can even compel the parties to agree to the appointment of the Court Commissioner. The Apex Court in the case of Shreepat v. Rajendra Prasad and Ors. reported in JT 2000 (7) SC 379, has held that if there is a serious dispute with regard to the area and boundaries of the land in question, the non-appointing of the Court Commissioner results in the serious miscarriage of justice.

When there are conflicting versions regarding the location of the suit schedule property, no amount of oral and documentary evidence may enable the Trial Court to adjudicate the matter. It has therefore, appointed the Court Commissioner for ascertaining whether the suit schedule property is situated in the lands at Sy. Nos. 175, 291 or 297, The appointment of the Court Commissioner falls within the discretionary province of the Trial Court. In exercise of the power under Article 227 of the Constitution of India, it is not desirable to direct the Trial Court either to appoint or not to appoint the Court Commissioner. The power under Article 227 of the Constitution is exercisable only for ensuring that the subordinate courts function within the limits of their authority, as held by the Apex Court in the cases of AIR 1975 1297 (SC) and of Shamshad Ahmad and Others Vs. Tilak Raj Bajaj (Deceased) through LRs. and Others, .

When the Trial Court, on perusing the oral and documentary evidence placed on its record, lifts farmed the view that the matter calls for the appointment of the Court Commissioner, it cannot be found to be at fault. Heedless to observe that the petitioner has the liberty of assailing the Court Commissioner''s report in accordance with law. The order appointing the Court Commissioner does not put the petitioner to any prejudice.

Not finding any jurisdictional error, I decline to interfere in the matter. I dismiss this petition. No order as to costs.