The appointment of a Court Commissioner is not necessary if existing evidence is sufficient to adjudicate the dispute, placing the burden of proof on the plaintiff.

ORAL ORDER

Aggrieved by the order passed in I.A.No.25 in O.S.No.325/2011 dated 13.11.2020 by the IV Additional I Civil Judge and JMFC, Mysuru, the petitioner/plaintiff is before this Court.

2. The plaintiff had filed the suit seeking declaration that the Impugned Communication dated 24.01.2011 is illegal, null and void and not enforceable and to further declare that the plaint schedule property is situated within Survey No.152 of Hebbal Village, Mysore Taluk and also sought for consequential relief of permanent injunction against the defendants. It is the case of the plaintiff that he has been in occupation of the property based on an unregistered sale deed dated 25.08.1984 and ever since he has been in possession of the property. One Siddegowda sold the revenue site in favour of one Gowramma through an unregistered sale deed dated 25.08.1984 and put her in possession of the property. Then Gowramma sold the property in favour of the plaintiff through an unregistered sale deed dated 10.01.1995 and put the plaintiff in possession of the property and ever since, the plaintiff is in peaceful possession and enjoyment of the property. The officials of Mysore City Corporation, Mysore issued a notice to the plaintiff on 09.03.2010 stating that the property in Survey No.152 is Government property and the plaintiff is making illegal construction. At the time when the notice came to be issued, the construction of the building was already completed and the plaintiff was in occupation of the schedule property. The plaintiff was asked to stop the construction. It is also the case of the plaintiff that except the plaintiff, no action was taken against any other occupants in Survey No.152. The petitioner/plaintiff had issued suitable reply and there was no communication in writing from the Mysore City Corporation. Then he has filed the suit for declaration i.e., O.S.No.719/2010 and the same is pending. Thereafter, the present suit came to be filed questioning the order passed by the respondent stating that the plaint schedule property is outside Survey No.152 of Hebbal Village. As such, the plaintiff has come up with the present suit.

3. At the stage of arguments, the present I.A.No.25 is filed under Order 26 Rule 9 read with Section 151 of CPC seeking appointment of Court Commissioner to identify with the help of boundary stones in the entire property bearing Sy.No.152 of Hebbala Village, Kasaba Hobli, Mysuru Taluk, measuring 1 acre 25 guntas and draw mahazar report regarding the present status of the property. It is the case of the plaintiff that the entire property is situated within Sy.No.152 of Hebbal Village and according to the defendants, it is outside Sy.No.152. As per the plaintiff, if a proper survey is conducted, true facts will come to light.

4. The trial Court by order impugned had rejected the application. While rejecting the application, the trial Court had observed that scope of Order 26 Rule 9 of CPC is very limited. The Court in any suit in which a local investigation is required or proper for the purpose of elucidation any matter of dispute may appoint a Commissioner. It is settled law that the parties are required to prove their own case by way of evidence. Therefore, it is the duty of the plaintiff/defendant to first give evidence in support of their case. After the evidence of parties, if the Courts deems it proper that any issue requires clarification then the Court may appoint Court Commissioner. It is also settled that the details so required by the Court ought to be such that in their absence, determination of issues in dispute cannot be effectively adjudicated upon necessity of the appointment of Commissioner on its own or at the instance of either of the parties. Where the Court is of the opinion that the matter in dispute would be effectively adjudicated on record, the Court at its discretion can refuse to direct appointment of the commissioner. The Court observed that in this case, the parties have adduced oral and