BYLAMMA W/O C ANJANAPPA Vs. STATE OF KARNATAKA BY ITS SECRETARY REVENUE DEPARTMENT MULTI-STORIED BUILDING BANGALORE-560001, DEPUTY COMMISSIONER BANGALORE URBAN DISTRICT BANGALORE AND TAHASILDAR BANGALORE NORTH TALUK KIDSKEMP BUILDING K G ROAD BA

JUDGEMENT

(1.) THIS writ petition is directed against the order dated 22.10.2011 passed by the Add. City Civil Judge at Bangalore, in O.S.No. 1335/2008 on I.A.No. III, which is an application filed under Order XXVI Rule 9 read with Section 151 of CPC.

(2.) THE relevant facts of the case are that the petitioner who is the plaintiff in the said suit has filed the suit seeking permanent injunction against the defendants in respect of the suit schedule property, consisting of site bearing Nos.58 and 59. K.Nos.548 and 549 in old Sy.No.49/2 at Sunkatedakatte Village, Bangalore North Taluk. After the recording of evidence of the parties, the petitioner herein filed an application seeking appointment of a Commissioner for surveying the suit schedule property. The said application has been dismissed. It is against the said order, the present writ petition has been filed.

(3.) THE contention of the counsel for the petitioner is that it is necessary that a surveyor is appointed as Court Commissioner to survey the property since the counsel for the respondents has taken up a contention; that the petitioner has encroached on their property. The trial court has, rightly not accepted the said contention by the petitioner herein. It is necessary to observe that the suit is one for permanent injunction against the respondents. The burden is on the petitioner to prove that she is in lawful possession of the suit schedule property. The same can be proved by documentary or oral evidence. The factum of possession of the petitioner and threat by Respondent/defendant cannot be proved with the aid of surveyor report. In that view of the matter, the trial court was right in dismissing the application. Hence, the said order does not call for any interference in this writ petition. Accordingly, the writ petition is rejected.