ANIL KAMALAKAR SHIRODKAR Vs. DUDHAPPA SANTU PATIL

JUDGEMENT

(1.) THE Revision filed against the order on I. A. Xl in OS No. 22 of 1995, by the Additional Civil Judge (Junior Division) Belgaum. After the conclusion of the evidence in the suit, the plaintiff made an application under I. A. Xl for appointment of a Commission under Order 26 Rule 9 CPC to appoint a competent surveyor to survey and measure the property in RS 6/3d which is the subject matter of the suit. The suit is filed for injunction against the defendants not to interfere with the peaceful possession and enjoyment of the property. The trial Court has allowed the request and appointed a city surveyor as the Commissioner to survey the property and to prepare a sketch and to submit a report.

(2.) AFTER hearing the Counsel for the petitioner, I find no merit in the revision to interfere with the order in question which is a discretionary order passed by on the basis of material available before the Trial Court. In a suit for injunction, when there is contest between the parties regarding the encroachment of the property or otherwise and when the correct extent and boundaries of the property are in dispute, it is just and necessary that a survey has to-be conducted and the boundaries of the properties have to be identified. In such a situation, the appointment of a Commissioner should not be mistaken as appointment of Commission for collecting evidence for a party to the suit. In the present suit, the parties are neighbours and attempts of trespass and encroachments is being alleged, in that context the appointment of Commission does not appear to be illegal.

(3.) THE Counsel for petitioner brought to my notice the rulling of this Court in PUTTAPPA vs RAMAPPA. After carefully going through the facts and ratio laid down, I am of the view that the ratio has no application to the facts of the case. Unlike in the cited case the appointment of Commissioner is not sought to enquire into the question of possession. On the other hand, the Commission is appointed to demarcate the boundaries and to demarcate the actual extent of the properties in question, in that view of the matter, the appointment of the Commission for measurement of the property and to demarcate the boundaries and correct extent of the properties as per the claims made by the parties would be fully justified. However, the Commissioner cannot go into the question as to who is in possession of the property. Accordingly, the Revision is dismissed.