M NARASIMHAMURTHY Vs. RAMU

JUDGEMENT

(1.) The petitioner/plaintiff No.4 in O.S.No.254/2002 on the file of the II Additional Civil Judge (Jr. Dvn), Bengaluru Rural District, Bengaluru (for short, 'Trial Court') is before this Court questioning order dtd. 15/7/2023 on I.A.No.1/2022 rejecting the application filed under Order 26 Rule 9 of CPC.

(2.) Heard the learned counsel Sri.M.S.Nagaraja for petitioner/plaintiff No.4 and learned counsel Ms.S.Aishwarya for Sri.Rajeshwara.P.N., learned counsel for respondents No.1 to 3. Perused the writ petition papers.

(3.) Learned counsel for the petitioner/plaintiff No.4 would submit that after completion of recording of evidence, petitioner/plaintiff No.4 filed I.A.No.1/2022 under Order 26 Rule 9 of CPC praying to appoint Court Commissioner for conducting survey of schedule property and to prepare sketch by identifying the encroached portion of land measuring 0.37 guntas in Sy.No.20/2 and 20/3 of Sonnenahalli Village, Kengeri Hobli, Bengaluru South Taluk. Learned counsel would submit that as the defendants have encroached western portion of the suit schedule property, it has become necessary for petitioner/plaintiff No.4 to file application for appointment of Commissioner to find out the encroachment. Learned counsel would submit that similar application was filed on earlier occasion and the said application for appointment of Commissioner was rejected. The said rejection of application for appointment of Commissioner was the subject matter of W.P.No.26530/2017. This Court by order dtd. 5/7/2017, dismissed the writ petition observing that there is no specific averment made in the plaint and no material is produced to prove the encroachment and on the ground that appointment of Commissioner sought is not to find out encroachment as alleged. Learned counsel would submit that subsequently, amendment application to incorporate the allegation with regard to encroachment was filed and the said amendment was allowed by order dtd. 16/12/2019. The said allowing amendment is not challenged by defendants and it has become final. Subsequently, petitioner/plaintiff No.4 filed I.A.No.1/2022 under Order 26 Rule 9 of CPC praying for appointment of Commissioner to conduct survey and to find out the encroachment. The Trial Court committed an error in dismissing the said application that too, when the petitioner's prayer is for appointment of Commissioner to find out encroachment. Learned counsel would submit that if the Commissioner report is obtained with regard to encroachment, it would aid the Court in proper adjudication of the dispute between the parties. Learned counsel would submit that the Trial Court failed to exercise its jurisdiction under Order 26 Rule 9 of CPC. Further, learned counsel for the petitioner/plaintiff No.4 places reliance on the decision of Co-ordinate Bench of this Court in W.P.No.20127/2022 dtd. 24/1/2023 and in terms of the said order, he prays for allowing the writ petition and to appoint the Court Commissioner to find out encroachment.