Determining property boundaries necessitates appointing a Court Commissioner for effective resolution in partition disputes.

CAV ORDER

The present Writ Petition is filed by the petitioner (defendant No.1) challenging the order dated 26.08.2019 passed in O.S.No.95/2013, on I.A.No.15/2019 filed under Order XXVI Rule 9 of the CPC on the file of Senior Civil Judge, Somwarpete, Madikeri District (‘the trial court for short) seeking appointment of Court Commissioner to survey the suit property.

2. The petitioner herein is the defendant No.1 before the trial Court and the respondent No.1 herein is the plaintiff before the trial Court and the respondents No.2 and 3 herein are the defendants No.2 and 3 before the trial Court.

3. For convenience of reference the parties are referred as arrayed before the trial Court.

4. The Brief facts of the case are as follows:

The defendant No.1 filed this I.A. for seeking appointment of Court Commissioner to survey the suit property. The same has been considered by the trial Court. The defendant contended that though the partition deed dated 31.03.1981 was entered into between the plaintiff, his brothers, father and the defendant’s father, the boundaries of the properties allotted to each sharer were not specifically demarcated, as at that time there was a harmonious relationship among the members.

It was further urged that the property is a vast extent of land and, in the absence of precise identification of the starting and end points of each share, there is possibility of misuse of the common area, and therefore, appointment of a government surveyor would facilitate proper adjudication of the dispute.

On the other hand plaintiff opposed, stating that the suit is for declaration and injunction in respect of the schedule property, the boundaries are clearly described in the plaint and tally with the partition deed marked as Ex.P15, and the application is filed only to delay the proceedings, as evidence is already closed and the matter was posted for arguments.

On perusal, the trial Court finds that the plaintiff has filed the suit for declaration and injunction alleging interference by the defendants in the suit schedule property which had fallen to his share under the partition dated 31.03.1981. The defendants themselves, in their written statement, have admitted the partition and possession of respective shares, and there is no dispute as to the boundaries which are already recorded. The application, filed at the stage of arguments, is only to collect evidence and protract the matter. Hence, Defendant No.1 has not made out sufficient grounds. Accordingly, I.A. No.15 under Order XXVI Rule 9 CPC was dismissed.

5. It is contended by the learned counsel for the petitioner that defendant No.1 has specifically pleaded that though separate properties were allotted to each party, certain portions such as pathways, right of way, rights to draw water from wells, tanks, streams and other easements were kept for common use. Since the boundaries of the respective shares were not fixed by the authorities after partition, and in view of disputes arising between the parties, it has become necessary to demarcate the exact boundaries and to identify the common areas in the suit schedule property.

6. It is further urged that the application was filed at the proper stage after completion of evidence, since neither oral nor documentary evidence can effectively establish the common areas left in the partition deed which does not specifically describe them, nor were the actual measurements and boundary demarcations effected by the shareholders. In such circumstances, appointment of a Commissioner is necessary for proper adjudication of the case, as only a Commissioner’s report can assist in id