Sri T.B. Byre Gowda represented by his GPA holder, Sri Murali Gowda vs R. Felix Costa and The Commissioner, Bangalore Development Authority

A.N. Venugopala Gowda, J.—Petitioner/Plaintiff has filed suit against Respondents/Defendants for permanent injunction, to restrain the 1st Defendant from putting up a compound wall within the area belonging to the Plaintiff and for a direction to the 1st Defendant, not to put wall and windows to the first floor on the chejja portion. He has also sought for mandatory injunction to remove the stone slabs put up inside the Plaintiff''s area of 1.5'' x 60'' and the unauthorised construction on the chejja of the first floor. According to the Plaintiff, there is an encroachment to an extent of 1.5'' x 60'' in his property bearing site No. 360. The 1st Defendant has filed written statement and has contested the suit, wherein, he has denied the encroachment and has contended that, he has put up the stone slabs in his site.

Based on the material pleadings, issues have been framed and parties have adduced evidence. Trial of the suit is complete.

Plaintiff filed an application dated 26.03.2010, to appoint a court commissioner to measure the width of the site, so as to elucidate the controversy in the suit. The 1st Defendant filed statement of objections and opposed the prayer. The trial court has dismissed the application. Aggrieved, the Plaintiff has filed this writ petition,

Sri N.S. Sanjay Gowda, learned advocate appearing for the Petitioner contends that, the main controversy in the suit was, whether the Defendant had encroached the Plaintiff''s site to an extent of 1.5'' x 60''. Learned Counsel submits that, the suggestion made to the 1st Defendant that he had encroached upon the property of the Plaintiff to the said extent has been denied, in view of which, it is imperative for the trial court to have appointed'' a commissioner to elucidate the issue in controversy in the suit between the parties. Learned Counsel further contended that, the reasoning of the trial court that, there is no ambiguity in appreciation of evidence adduced by both the parties, requiring clarification by the commissioner, is whoily an erroneous view of the matter since the record of the suit discloses otherwise. Learned Counsel contends that, the trial court has not exercised the jurisdiction in the correct perspective and on account of the misdirection adopted to the matter, the impugned order has been passed, which in the facts and circumstances of the case, is irrational.

Sri L.S. Chikkanna Goudar, learned Counsel appearing for the 1st Respondent, on the other hand contended that, the trial court has correctly noticed the material aspects of the case and since there is no ambiguity and in the absence of any prima facie material showing the alleged encroachment, there being no need for appointment of a court commissioner to clarify the position or for elucidating the matter in dispute, has rightly dismissed the application. Learned Counsel further submits that, in the facts and circumstances of the case, the order passed by the trial court, impugned in the writ petition, is justified.

I have perused the writ petition papers.

Section 75 CPC empowers the court to issue commissions. Rule 9 under Order 26 CPC provides for commissions to make local investigation. Court can appoint a commissioner to conduct local investigation for the purpose of elucidating any matter in dispute.

The Plaintiff has alleged encroachment by the 1st Defendant and the 1st Defendant has denied any encroachment on the Plaintiff''s property/suit schedule property. The result of the suit appears to be dependant on the identification of suit property with reference to the measurements and boundaries shown in the title deeds of the respective parties. The parties are neighbours. Plaintiff alleges encroachment of the suit property to the extent stated supra, which the Defendant has denied. In the circumstances, it is necessary to appoint a technical person/engineer or surveyor to make local inspection to measure the sites belonging to both the parties and for furnishing a report and the plan/map showing the identity of the suit property and also that of the Defendant. Such a course of action would be necessary in the interest of justice for elucidation of the matter in dispute. The trial court has not correctly appreciated the record of the suit and hence the impugned order is irrational.

For the reasons stated supra, the writ petition stands allowed and the impugned order stands quashed.

The application filed by the Petitioner dated 26.03.2010 stands allowed and the trial court is directed, to take steps to appoint a suitable commissioner for measurement of properties of the Plaintiff and the 1st Defendant, to ascertain the possession. of the parties over the respective sites/properties and also to ascertain the existence of encroachment as alleged in the plaint/application. It will also be open to the trial court to undertake any other task the court may feel necessary for proper adjudication of the suit.

Both parties are at liberty to suggest the name of the commissioner and also file memo of instructions in the trial court, within a period of two weeks from today. The trial court is at liberty to appoint any person, either suggested by the parties or on its own, as a court commissioner, for conducting the local inspection and for submission of the report.

The cost of commission shall be borne by the Plaintiff.