H. RAMANJINAPPA Vs. M.R. ANANDARAM

JUDGEMENT

(1.) This petition is filed under Article 227 of the Constitution of India assailing the order dtd. 16/9/2021 passed on an interlocutory application filed by the petitioner-decree holder under Order XXVI Rule 9 read with Sec. 151 of the Code of Civil Procedure, 1908 in Ex.No.10/2013 by the Prl. Civil Judge and JMFC, Nelamangala seeking appointment of a Court Commissioner to measure and identify the portion of the encroachment by the judgment debtors. The said application came to be rejected.

(2.) Brief facts giving rise to filing of this petition are that the petitioner filed an application seeking regularization of his unauthorized cultivation of land measuring 2 acres in Sy.No.11 of Gejjagadahally Village, Dasanapura Hobli, Bangalore North Taluk. The said application is pending consideration before the regularization committee. In the meantime, the petitioner has filed O.S.No.527/2009 seeking permanent injunction restraining the respondents- defendants, their henchmen, their agents, etc. from interfering with the peaceful possession and enjoyment of the suit schedule property. The said suit came to be decreed with a direction to the defendants or anybody claiming through them, from interfering with the peaceful possession and enjoyment of the suit schedule property.

(3.) It is averred that the respondents herein have disobeyed the judgment and decree dtd. 6/1/2011 by encroaching upon the eastern portion of the land in question to the extent of 20 guntas. In this regard, the petitioner has filed a police complaint on 25/10/2012 and thereafter, the petitioner has filed execution petition in Ex.P.No.10/2013 to initiate suitable action against the respondents for disobeying the judgment and decree of permanent injunction. The respondents have entered appearance in the execution proceedings and filed objections whereby the respondents have contended that they have not encroached any portion of the land claimed by the petitioner nor disobeyed the judgment and decree. It is further averred that in the said execution proceedings, the petitioner has been examined as PW-1 and certain documents are marked. During the pendency of the execution petition, the petitioner has filed an application under Order XXVI Rule 9 read with Sec. 151 of the Code of Civil Procedure seeking a prayer to appoint the Assistant Director of Land Records as the Court Commissioner to inspect the suit schedule property in O.S.No.527/2009 according to the boundaries and to measure the portion of the land said to be encroached by the judgment debtors-respondents in the suit schedule property and to report the same to the Execution Court. The said application was considered and rejected by the Execution Court by an order dtd. 16/9/2021. Being aggrieved by the said order, present petition is filed.