H.R. RAMAIAH AND ORS. Vs. PUTTALAXMAMMA

JUDGEMENT

(1.) PETITIONER , aggrieved by the order dated 16.2.2013 allowing defendant's I.A. No. 2 under Order 26 Rule 9 of C.P.C. in O.S. No. 6/2005 on the file of Senior Civil Judge, Madikeri, has presented this petition.

(2.) PETITIONER instituted O.S. 6/2005 for declaration of title and permanent injunction restraining the respondent, arraigned as defendant, from obstructing plaintiffs peaceful possession and enjoyment of the suit schedule property measuring 2 Acres 77 cents in Sy. No. 53/1 and; 80 cents in Sy. No. 58/1. That suit was opposed by filing written statement of the defendant who made a counter claim that the plaintiff encroached upon written statement B Schedule property and for delivery of its possession. Parties entered trial, whence, petitioner was examined as a witness, while respondent as D.W. 1. After conclusion of the trial, respondent filed I.A. No. 2 under Order 26 Rule 9 of CPC for appointment of Court commissioner to survey and demarcate the written statement schedule property, to elucidate the matter in dispute and report along with the sketch prepared on survey.

(3.) THAT application was not disposed of at that stage of the proceeding, nevertheless, it transpires that on the closure of the side of the plaintiff, the defendant when examined and cross -examined, there afterwards, the application was taken up for consideration and by the order impugned, allowed.