REVANNA Vs. M R PARAMESWARA

JUDGEMENT

(1.) The petitioner is before this Court under Article 227 of the Constitution of India assailing the order dated 28.07.2015 passed in O. S. No. 22/2010 on the file of Civil Judge and JMFC., Turuvekere, Tumkuru District.

(2.) The petitioner is plaintiff and respondents are defendants in O. S. No. 22/2010 filed for judgment and decree for declaration of plaintiff's title to encroached portion 60 x 22 feet in the suit schedule land and mandatory injunction. After completion of evidence of both the parties, the plaintiff had filed an application under Order 26 Rule 9 of CPC for appointment of P.W.D. Engineer as Court Commissioner to make local investigation to measure the site of the defendant and to note the encroachment made on the schedule property. The said application came to be allowed by order dated 28.07.2015. The trial Court had appointed Taluk Surveyor as Court Commissioner for local inspection and directed the parties to submit memo of instructions. Accordingly, the parties filed their memo of instructions. On receipt of the Commissioner warrant, the Surveyor attached to Turuvekere Rural issued notice dated 10.04.2015 to the plaintiff as well as the respondents, copy of notice issued to the plaintiffs and defendants is produced as Annexure-R3 to the application filed by the respondents herein. The notice on the top indicates that it is from the Taluka Bhoomapaka Kacheri. The Commissioner Surveyor conducted the spot inspection on 22.04.2015 and submitted report alongwith sketch to the Court. On submission of the Commissioner report along with the sketch, the plaintiff submitted his objection and contended that the Commissioner report is liable to be rejected. Even though Taluka Surveyor is appointed as Court Commissioner, he has delegated his power to Taluka Bhoomapaka. On the other hand, the defendants submitted no objection to the Commissioner report. The trial Court by its order dated 28.07.2015, held that as the Commissioner's report cannot be rejected and cannot be made fresh appointment of Commissioner. The said order dated 28.07.2015 is impugned in these writ petitions.

(3.) Heard the learned counsel for the petitioner and the learned counsel for the respondents and perused the writ papers.