C. JAYACHANDRA Vs. C. NAGARAJ

JUDGEMENT

(1.) This petition is filed seeking following reliefs:

(2.) Sri.Manoj K., learned counsel appearing on behalf of Sri.Jayaraj D.S., learned counsel for the petitioners submits that the petitioners filed a suit against the respondent for declaration and mandatory injunction on the ground that the property has been divided pursuant to the partition deed dtd. 28/10/1977. However, the defendant in violation of the partition deed encroached upon the share allotted to the petitioners and put up the construction. It is submitted that the parties have adduced the evidence. The factum of encroachment was brought on record which has been denied by the other side and after conclusion of the trial the petitioners filed an application for appointment of Court Commissioner to inspect the spot so as to take out measurement to ascertain the extent of construction made by the defendant on their property allotted in favour of father of the petitioners under the registered partition deed dtd. 28/10/1977. The trial Court without considering the prayer of the petitioners rejected the application under the impugned order dtd. 30/11/2019 and held that the application is filed at the belated stage and already sufficient evidence is available on the record. He also submits that the Court Commissioner report would assist the Court in deciding the real controversy between the parties. Hence, he seeks to allow the petition.

(3.) Per contra, Sri.C.R.Gopalaswamy, learned senior counsel appearing for the respondent vehemently opposed the petition and submits that the filing of an application seeking appointment of Court Commissioner is an abuse of the process of law and to overcome the evidence on record. It is submitted that the application is filed at the belated stage. It is further submitted that the petitioners/plaintiffs has to plead and prove the alleged encroachment, which he has failed in his attempt. Hence, with an intention to collect the evidence, he sought appointment of Court Commissioner which is rightly rejected by the trial Court and does not call for any interference. The learned senior counsel for the respondent in alternate, submits that if this Court inclined to consider the application for appointment of the Court Commissioner, then an order may be passed to measure the entire extent of the property as referred in the partition deed dtd. 28/10/1977 and then find out whether there is an encroachment or not as alleged in the plaint. Hence, he seeks to dismiss the petition.