Sri R.S. Patel vs Smt. Siddagangamma

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

This writ petition is directed against the order dated 16.9.2011, in O.S. No. 98/2010, on the file of the Senior Civil Judge, Nelamangala, Bangalore Rural District (Annexure-H), by which the Commissioner''s report dated 22.3.2011 has been set aside and instead, Assistant Director of Land Records (ADLR), Department of Survey. Bangalore, has been appointed as the Commissioner to inspect the plaint schedule property and the written statement schedule property as per instruction Nos. 1 to 4 contained in I.A.No. 4. Liberty has also been reserved to the parties to file memo of instructions.

The relevant facts of the case are that the petitioner who is the plaintiff has filed a suit seeking declaration and permanent injunction in respect of the suit schedule property. The respondent who is the defendant in the said suit has filed his written statement. During the pendency of the suit, an application for the appointment of a Commissioner was filed by the defendant under Order XXVI Rule 9 CPC.The said application was allowed by order dated 28.9.2010, directing the Taluk Surveyor, Nelamangala, to act as the Commissioner to inspect the plaint schedule property as per instruction Nos. 1 to 6 in I.A.No. 4 and to submit a report. Plaintiff was also reserved liberty to file memo of instructions. Subsequently, the Commissioner executed the Commission Warrant and filed his report, a copy of which is produced as Annexure-F. Objections were filed to the said report by the defendants. On considering the said objections, the Commissioner''s report dated 22.3.2011 has been set aside and the ADLR Department of Survey has been appointed as a Commissioner to execute the commission warrant. The said order is assailed in this writ petition.

I have heard the Learned Counsel for the petitioner and Learned Counsel for the respondents and perused the material on record.

On perusal of Annexure-F. which is the Commissioner''s report, it is noted that while the memo of instructions submitted by the plaintiff has been referred to and taken in consideration, there is no reference to the memo of instructions which was part of the application filed by the defendant under Order XXVI Rule 9 read with Section 151 of CPC and which has also been referred to in the operative portion of the order of appointment of the Commissioner in the Commissioner''s report dated 22.3.2011. On that short ground alone, the trial court was justified in setting aside the Commissioner 3 report.

However, the trial court ought to have once again directed the very same Commissioner to execute the commission warrant by taking into consideration the memo of instructions filed by the plaintiff and also the memo of instructions as per instruction Nos. 1 to 6 contained in I.A.No. 4 and which was also part of the operative portion of the order dated 28.9.2010. The same has not been done by the trial court, instead a different person has been appointed as the Commissioner. There is no good reason as to why the ADLR Department of survey was appointed as the Commissioner to execute the commission warrant when the reason for setting aside the Commissioner''s report dated 22.3.2011 was on account of the fact that the instructions of the defendant had not been considered by the Commissioner. Therefore, while confirming the setting aside of the Commissioner''s report dated 22.3.2011, the latter portion of the order i.e., the appointment of the ADLR, Department of Survey, Bangalore, as the; Commissioner is quashed. The Taluk Surveyor, Nelamangala Taluk is directed to execute the commission warrant by taking into consideration the instructions given by the plaintiff as well as the instructions given by the defendant in I.A.No. 4 and stated in the operative portion of the order dated 28.9.2010, within a period of one month from the date of issuance of commission warrant along with necessary documents and instructions contained in the order dated 28.9.2010 and also the application I.A.No. 4 filed by the defendant as well as memo of instructions given by the plaintiffs. The trial court is, therefore, directed to order issuance of a fresh commission warrant to the Taluk Suveyor, Nelamangala Taluk on the next date of" hearing.

It is also made clear that the Commissioner shall not be influenced by the earlier report submitted by him on 22.3.2011 and that the instruction given by the plaintiff as well as the defendants shall be taken into consideration and a report shall be submitted in accordance with law.

In the result, the writ petition is allowed in part.