The dispute in the suit in O.S.No.20/2021 on the

file of the Senior Civil Judge, Davanagere (for short, the

8civil Court9) is between the owners of two neighboring

properties. There is no dispute that the appellant owns

Site

No.77

in

A

Block,

Jayanagara

Extension,

Davanagere City and the first respondent owns Site

No.76 in the same layout. The civil Court, allowing the

respondents9 application for temporary injunction, has

restrained the appellant from proceeding with the

construction in the site bearing Site No. 77.

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2.

Sri S.V. Prakash, the learned Counsel for the

appellant, submits that the civil Court, even before

considering the respondents9 application for injunction,

has appointed a Court Commissioner to visit the

properties and file a report and such report is also

placed on record. This report would indicate that the

appellant indeed owns and is in possession of site No.

77 measuring 40 feet x 60 feet and though the

respondents also have title to other site in No. 76

measuring 40 feet x 60 feet, they have lost about 14 feet

on the southern side of the road with the formation of a

road which is not contemplated in the sanctioned plan.

The owner of the Site No.75, who had to lose the land

because of the road that is formed, has encroached

such 14 feet in Site No. 76 to make up the loss.

3.

Sri R. Gopal, the learned counsel for the

respondents, submits that the Commissioner9s Report is

indeed filed, but the respondents have filed their

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detailed objections inter alia pointing out that the road

referred to by the Commissioner is not part of the same

layout, but is part of the Layout formed in the adjacent

land. The owner of the site No.75 has not encroached

any portion. He also contends that the Commissioner

has deliberately not complied with the Memo of

instructions and as such, the civil Court, at the

instance of the respondents, has issued summons to

the Commissioner. The Court Commissioner will be

cross examined to point out material defects in the

Report.

4.

These

rival

claims,

based

on

the

Commissioner9s Report, must be tested after the Court

Commissioner is cross-examined. It is undisputed that

the Court has issued summons to the Commissioner to

tender himself for cross-examination. This Court would

opine that with the Commissioner9s Report being

tentative even as of the date with the Commissioner9s

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cross-examination pending, there cannot be interference

with the impugned order.

5.

However, Sri. S.V. Prakash submits that the

appellant has followed law in commencement of the

construction; he has only three years of service; if the

construction is not completed, he would be put to

irreparable

injury.

Sri

R.

Gopal,

when

these

submissions are made, submits that the respondents9

evidence

with

the

cross-examination

of

the

Commissioner will be complete and the entire suit could

be disposed of within a time frame. In response, Sri S.

V. Prakash does not object to the same, but submits

that if in the event the decision in the suit is delayed,

the appellant would be put to irreparable loss.

6.

These circumstances are considered, and

this Court is of the view that the appeal must be

disposed of calling upon the parties to co-operate with

the civil Court in the disposal of the suit on merits by

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the end of October 2022. If for any reason the final

decision in the suit is delayed, the appellant must have

the liberty to seek modification of the impugned order in

the light of the fresh material that is brought on record

either by way of further evidence by the appellant or the

respondents,

or

the

cross-examination

of

the

Commissioner.

For the foregoing, the appeal stands disposed of

calling upon the civil Court to dispose of the suit by the

end of October 2022 if the parties co-operate, and if the

suit is not disposed of by then, the appellant shall be at

liberty as mentioned above.

SD/-

JUDGE

nv