SHADAKSHARAPPA Vs. KUMARI VIJAYALAXMI

JUDGEMENT

(1.) In a suit for mandatory injunction for removal of the alleged encroachment on the suit road, to prove the encroachment, the plaintiff filed an application for appointment of the Commissioner for local inspection. Accepting the objection by the first defendant, the Trial Court rejected the application, on the ground that the application filed before the completion of the trial is premature. The liberty is granted to file a fresh application, after the completion of the trial, provided there is any ambiguity in the evidence.

(2.) Learned counsel Sri Mahantesh Patil, appearing for the petitioner would submit that, the plaintiff is complaining about the encroachment on a portion of the suit road, and the defendant has denied the allegation of encroachment, both in the written statement as well as in the cross-examination of the plaintiff. The plaintiff with a view to produce best possible evidence moved an application for local inspection. This being the position, the order rejecting the application for appointment of a Court Commissioner for local inspection is unsustainable.

(3.) Learned counsel Sri Sanjay Kulkarni, appearing for the first respondent opposed the petition contending that;