MAHADEV Vs. MAHADEV AND ORS.

JUDGEMENT

(1.) THE defendant filed the above writ petition against the order dated 17.03.2015 on I.A. No. XX in O.S. No. 33/1999, rejecting his application under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 (for short 'the CPC').

(2.) RESPONDENT Nos. 1 to 6 are the plaintiffs in O.S. No. 33/1999 filed for possession directing the defendant to hand -over possession of the suit schedule property to the plaintiffs and also directing the defendant to pay future income which is derived from the suit property from the date of filing the suit till the actual handing over of the possession of the suit property to the plaintiffs, contending that the plaintiffs have purchased the agricultural lands in the year 1985 and they have been in possession and enjoyment of the same and all the revenue records were also mutated in the year 1986 and subsequently, there were boundary disputes between plaintiffs 1, 3 and 4, father of plaintiffs 2(a), 2(b) and 2(c) and the defendant. Plaintiffs filed an application for survey in the office of the Assistant Director of Land Records of Joida and the Survey Authorities made the survey of lands of the plaintiff Nos. 1, 3, 4 and lands of the father of plaintiffs 2(a), (b), (c), by orders dated 09.04.1999 and 21.04.1999, by giving proper notice to the defendant, who is the adjacent owner of the above lands of plaintiffs 1, 3, 4 and the father of 2(a), 2(b) and 2(c). After making the survey, plaintiffs 1, 3, 4 and the father of 2(a), 2(b) and 2(c) came to know that the defendant has encroached the suit property to an extent of 23 guntas of land in Sy. No. 36. Therefore, they filed the suit.

(3.) AFTER completion of the evidence of both sides, the defendant filed I.A. No. XX under Order XXVI Rule 9 read with Section 151 of CPC for appointment of Horticulture Officer of the Horticulture Department, Joida, as the Court Commissioner, to visit the suit schedule property bearing Sy. No. 36 measuring 26 guntas of Bagayat land out of total extent of 11 acres 3 guntas of Neasari village in Joida Taluk, which is in the possession of the defendant and report the age of the trees, shrubs and plants and also answer the points raised by the respective parties, contending that he is in possession and enjoyment of the suit schedule property from 1951 and has encroached the suit property and there are coconut and areca nut trees over 23 guntas of land in Sy. No. 36 and the age of many of them is more than 60 years. Hence, it is just and necessary to appoint the Horticulture Officer to visit the suit schedule property and report the things over the suit property. The said application was resisted by the plaintiffs by filing objections.