The court affirmed the necessity of appointing a Commissioner in injunction suits to ascertain property boundaries for effective resolution.

ORAL ORDER

The defendant No.1 in O.S. No.188/2015 on the file of Civil Judge & JMFC Court at Sakaleshpura, has filed this petition, challenging the order dated 15.03.2023, by which an application filed by the plaintiff under Order-26, Rule-9 of CPC was allowed.

2. The suit in O.S. No.188/2015 was filed for perpetual injunction in respect of a property bearing Khatha No.6220/01, lying within survey No.286 of Malali Village, Kasaba Hobli, Sakaleshpura Taluk, measuring 2 acres 17 guntas. The defendant No.1 was purportedly the owner of the sites formed in survey No.300 and 300/1, lying adjacent to the land bearing survey No.286. The plaintiff claimed that the defendants were trying to interfere with his possession of the suit schedule property.

3. The defendants contested the suit and claimed that they were in possession of the sites formed in survey No.300 and 301 of Malali Village. The wife of the defendant No.1 filed O.S. No.11/2016 for the relief of perpetual injunction in respect of the sites so purchased, which suit was also contested.

4. The plaintiff in O.S.No.188/2015 filed an application under Order-26, Rule-9 of CPC to identify the limits of Survey No.286. The said application was opposed by the defendant in the suit on the ground that, in a suit for perpetual injunction, Commissioner cannot be appointed to collect evidence. It was also contended that the application was filed at a belated stage, when the suit was set-down for arguments.

5. The trial court allowed the application in terms of the order impugned in this petition. Being aggrieved by the said order, the defendant No.1 has filed this petition. The learned counsel for the defendant contended that in an injunction suit, the plaintiff is bound to prove his possession of suit property and the alleged interference by the defendant. He contends that no Commissioner could be appointed to collect evidence.

6. The plaintiff is claiming title to a property lying within survey No.286 while the defendants were claiming title to sites formed in survey No.300 and 301, which lay adjacent to survey No.286. Therefore, the questions that may arise for consideration in this suit are: whether the plaintiff is in possession of the property lying within survey No.286? and whether the defendants have encroached into any portions of the land in survey No.286 or whether the sites claimed by them lay within survey No.286? The Court will not be in a position to identify the limits of survey No.286 and also to determine whether the sites claimed by the defendants lay within the limits 286 or 300, 301 of Malali village. The only way to ascertain this is through a Commissioner for local inspection.

7. The trial court has verified the evidence on record and has found that the appointment of a Commissioner is necessary for effectual disposal of the suit. Under these circumstances, this Court does not see any need to interfere with the impugned order. Hence, the writ petition lacks merits and is dismissed.