The court confirmed the Trial Court's decision, determining it did not err in allowing the respondent's application to appoint a Court Commissioner regarding encroachment.

CAV ORDER

1. This writ petition has been filed seeking to set aside the order dated 21.11.2022 on the file of the 1^st Addl. Civil Judge and JMFC, K.G.F in O.S. No.100/2009.

2. The petitioner herein is the plaintiff and the respondent is the defendant before the Trial Court.

3. The facts of the case are as follows:

The plaintiff purchased a property measuring

125 feet X 50 feet from its owner Sri.K.N.Sreenivasa Setty for consideration. The petitioner had put up construction of 12 shops and a house measuring 125 feet X 37 feet on the Eastern side and 27 feet on the Western side in the year 1995. There is a open space measuring 8 feet towards the Southern side of the building constructed by the petitioner, within her property. The property claimed by the respondent is situated towards the Southern side of the petitioner’s property. There is a passage of 8 feet on the Northern side of the said property and the open space of the petitioner measuring 8 feet and the 8 feet passage of the property claimed by the respondent being adjacent to each other and together measuring 16 feet is being used as a common passage continuously by the tenants/occupants of both the properties for ingress and egress. Since the respondent attempted to encroach and dispossess the petitioner from the open common passage, the petitioner approached the Trial Court seeking declaration of her title, to declare the open passage measuring 125 feet X 16 feet as common passage and to grant permanent injunction in O.S.No.100/2009.

4. On filing the suit, the respondent appeared and filed the written statement wherein a counter claim has been made not only for declaration but also for mandatory injunction to remove the structure to the extent of

125 feet x 11 feet alleging illegal construction. Due to the widening of the road on the Southern side of the property claimed by the respondent, 15 feet of the said property has been acquired and utilized for widening of the road, known as KGF-V Kota Road.

5. So, to bring the truth before the Court, the petitioner filed two applications, I.A.No.XIV under Order XVI Rules 1, 2, & 6 r/w section 151 of CPC for issuing of summons to the concerned authorities for production of documents and to give evidence with regard to property acquired and utilized for road widening and I.A.No.XV under Section 151 of CPC has been filed to re-open the case.

6. The respondent filed I.A.No.XVI under Order XXVI Rule 9 r/w Section 151 of CPC and the same has been allowed by the Trial Court.

7. The Trial Court after hearing both the sides, allowed I.A.No.XVI, and aggrieved by the same, the writ petition has been filed.

8. Heard learned counsels on both the sides.

9. It was contended by the learned counsel for the petitioner that the Trial Court has grossly erred in not considering the fact that there is a counter claim made by the respondent, not only for declaration but also for mandatory injunction to remove structure to the extent of

125 feet X 11 feet falsely alleging illegal construction.

10. It was further contended that the Court below has grossly erred in not appreciating the fact that the respondent clearly admits the claim of purchase of property measuring 125 feet X 50 feet by the petitioner and construction made by her.

11. It was also contended that the Trial Court has erred in not appreciating the fact that in view of the averments made and counter claim made, the petitioner is required to place the proper material evidence in that regard.

12. It can be observed from the impugned order that a memo of instruction has been filed by both plaintiff and defendant and Trial Court by observing that memo of instruction need not be