In property disputes, the appointment of a Commissioner to determine the real identity of the property is crucial for ensuring justice.

T. N. VALLINAYAGAM, J.

( 1 ) THE defendant is the appellant. The suit for declaration of ownership and for possession apart from the mandatory injunction for demolition and removal of unauthorised construction and also for mesne profits have been decreed by the trial court. Challenging such decree the defendant has preferred the present regular first appeal.

( 2 ) THE brief facts of the plaintiff's case are:- that the plaintiff claimed to be absolute owner of the suit site bearing No. 4 in Sy. No. 132 at Kacharakanahalli, Bangalore North taluk, having purchased the same on 21. 11. 1980 from one Smt. Muniyamma, w/o T. M. Reddy. The records of the panchayat like R of R and I. L. R. has been changed in the name of the plaintiff; but however as the panchayat was not collecting taxes, the plaintiff has not paid the taxes. On 1. 6. 1986 the plaintiff was surprised to find that the defendant had trespassed upon the suit property and constructed a residential house with Asbestos Sheet roof in a portion of the suit site; the issue of legal notice on 9. 6. 1986 having no use, and consequently the suit came to be filed.

( 3 ) THE contention of the defendant in the written statement was that he is the absolute owner of the property having been purchased the same from Muniyamma on 15. 4. 1980 under the registered sale deed. The said property has been assessed for tax and the defendant also obtained No Objection Certificate from village Panchayat; Only then the defendant has constructed the house and he has given a permission from the Electricity Board for electricity supply; on 14. 5. 1984. The site claimed by the plaintiff is totally different from the defendant's property and the defendant has put up construction on his own site.

( 4 ) ON the above pleadings, the following issues have been framed by the trial Court:-1. Whether the plaintiff proves that he is the owner of the suit schedule property?2. Whether the defendant proves that he is the owner of the suit property?3. Whether the plaintiff is entitled for declaration, and mandatory injunction?4. Whether suit is bad for non-joinder of parties? additional Issue5. Whether plaintiff is entitled for the relief of mesne profits as claimed? answering the issues No. 1 and 3 in the affirmative and issues No. 2 and 4 in the negative the suit was decreed as prayed for by the trial Court on consideration of the evidence of pw-1, Ex. P. 1 to P. 7 (a) and D. W. 1, Ex. D-1 to D-6.

( 5 ) THE contention raised in the grounds of appeal are that the learned Judge was prejudiced against the counsel for the defendant and therefore counsel did not argued the matter; issue No. 2 has been decided against the defendant which ought to have been held in his favour as he has purchased the property and proved his case by producing the original sale deed, site assessment extract, tax paid receipts, no Objection Certificate and the latest tax paid receipt etc. The site claimed by the plaintiff is quite different than the one claimed by the defendant; the reason given by the learned judge on issue No. 1 is not sustainable; the vendor of the plaintiff has not been made a party inspite of the fact that an issue was framed whether the suit is bad for non-joinder of the party; no reasoning was given on issue No. 4; the schedule mentioned in the plaint and the schedule mentioned in the sale deed of the defendant are quite different. The north of the appellant property is Ambika's property. Whereas the North as shown as private property and the south by Ambika's property; While in paragraph-13 of the written statement was made much by the trial Court but the Court below does not considered paragraph-8 of the written statement wherein the defendant has categorically stated that the property is totally different from the defendant's property heard the counsel.

( 6 ) THE only question to be decided in this appeal is whether the property of the plaintiff is different from that of the defendant and whether the decree of the

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