IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 5^TH DAY OF SEPTEMBER 2018

BEFORE

THE HON’BLE MR.JUSTICE S.G.PANDIT

WRIT PETITION NO.10437 OF 2016 (GM-CPC)

BETWEEN:

1. A. M. NANJUNDAIAH

AGED ABOUT 40 YEARS

S/O A.M.MALLIKARJUNAIAH,

2. SMT.SAVITHRAMMA

AGED ABOUT 78 YEARS

W/O A.M.MALLIKARJUNAIAH,

BOTH ARE RESIDENT OF

AREHALLI VILLAGE, BELUR TALUK

HASSAN DISTRICT-573 101.

…PETITIONERS

(BY SRI.CHINNAPPA GOWDA.D.G., ADV.)

AND:

SMT. CHANDRAMATHI

AGED ABOUT 52 YEARS

W/O. EKADHARASWAMY

RESIDENT AT AREHALLI VILLAGE

BELUR TALUK

HASSAN DISTRICT-573 101.

…RESPONDENT

(BY SRI.R.P.SOMASHEKARAIAH, ADV. FOR

SRI. C.M.DESAI, ADV.)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227

OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE

AND QUASH THE ORDER DTD:18.01.2016 PASSED IN RA

NO.26/2014 PENDING ON THE FILE OF THE COURT OF

SENIOR CIVIL JUDGE & JMFC BELUR IN I.A.NO.1 FILED

UNDER ORDER 26 RULE 9 READ WITH SECTION 107 AND

151 OF THE CODE OF CIVIL PROCEDURE AS PER

ANNEXURE-L TO THE WRIT PETITION. AND ETC.

THIS WRIT PETITION COMING ON FOR PRELIMINARY

HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE

FOLLOWING:

O R D E R

Petitioner is before this Court challenging the order

dated 18-01-2016 passed on I.A.No.1 in R.A.No.26/2014 on

the file of the Senior Civil Judge and JMFC, Belur.

2.

Petitioners are defendants and respondent is the

plaintiff in O.S.No.9/2011 which was partly decreed. As the

plaintiff’s suit was dismissed insofar as encroachment is

concerned, the plaintiff filed R.A.No.26/2014 challenging that

portion of the judgment and decree. In the Appeal, the

plaintiff filed an application under order 26 Rule 9 read with

Sections 151 of CPC for appointment of Commissioner to

survey the suit schedule property so as to find out the

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encroachment. The said application was resisted by the

respondents/defendants on the ground that there are already

three Commissioner Reports before the trial Court and this is

the 4^th application which is not maintainable. The Appellate

Court by its order dated 18-01-2016 allowed the application

and appointed Taluka Surveyor as the Court Commissioner to

conduct the survey of suit schedule property by measuring

the same and submit his report. The said order is impugned

in this writ petition.

3.

Heard the learned counsel for the petitioners as well as

respondent and perused the writ papers.

4.

Learned counsel for the petitioners vehemently submits

that the present order by which the Commissioner is

appointed by allowing the application filed under Order 26

Rule 9 read with Section 151 of CPC is wholly erroneous.

Further

he

submits

that

already

there

are

three

Commissioner Reports in the suit and ignoring the same, the

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Appellate Court has appointed the Commissioner to measure

the suit schedule property.

5.

Per contra, learned counsel for the respondent submits

that

the

Appellate

Court

has

rightly

appointed

the

Commissioner to survey the suit property, since earlier

reports do not give a definite finding as to whether there is

encroachment in the suit schedule property or not.

6.

Admittedly, the dispute is with regard to encroachment.

On perusal of earlier Commissioner Reports, which are

produced along with the writ petition as Annexure-F, it is

seen that the Commissioner has stated that he is not in a

position to say about the exact encroachment in the suit

schedule property. The Appellate Court has come to a

definite conclusion based on the material available before it

and

appointment

of

Commissioner

to

find

out

the

encroachment. Under order 26 Rule 9 of CPC, it is for the

Court, based on the material, to come to a conclusion as to

whether appointment of Commissioner is necessary in the

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facts and circumstances of the case. In the case on hand,

based on materia