Mahadev vs Mahadev and Others

B. Veerappa, J—The defendant filed the above writ petition against the order dated 17.03.2015 on I.A. No. XX in O.S. No. 33/1999, rejecting his application under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 (for short ''the CPC'').

Respondent Nos. 1 to 6 are the plaintiffs in O.S. No. 33/1999 filed for possession directing the defendant to hand-over possession of the suit schedule property to the plaintiffs and also directing the defendant to pay future income which is derived from the suit property from the date of filing the suit till the actual handing over of the possession of the suit property to the plaintiffs, contending that the plaintiffs have purchased the agricultural lands in the year 1985 and they have been in possession and enjoyment of the same and all the revenue records were also mutated in the year 1986 and subsequently, there were boundary disputes between plaintiffs 1, 3 and 4, father of plaintiffs 2(a), 2(b) and 2(c) and the defendant. Plaintiffs filed an application for survey in the office of the Assistant Director of Land Records of Joida and the Survey Authorities made the survey of lands of the plaintiff Nos. 1, 3, 4 and lands of the father of plaintiffs 2(a), (b), (c), by orders dated 09.04.1999 and 21.04.1999, by giving proper notice to the defendant, who is the adjacent owner of the above lands of plaintiffs 1, 3, 4 and the father of 2(a), 2(b) and 2(c). After making the survey, plaintiffs 1, 3, 4 and the father of 2(a), 2(b) and 2(c) came to know that the defendant has encroached the suit property to an extent of 23 guntas of land in Sy. No. 36. Therefore, they filed the suit.

The present petitioner, who is the defendant in the trial court, filed written statement, denied all the plaint averments and contended that the plaintiffs are not at all cultivating the suit schedule property and they are residing in Sulawali village in Joida taluk since many years, which is about 40 km. away from the suit property. The suit property originally belongs to one Shri. Raghunat Venkatesh Prabhu, who was having more than 100 acres of land, thus, being a large holder of land was unable to cultivate the suit property which was kept uncultivated for a long time. After the death of Shri. Ragunath Venkatesh Prabhu, the suit property was transferred in the name of his son Shri. Narayan Raghunath Prabhu. The plaintiffs'' predecessors-in-title did not grow any crops in the suit property and they have left the land astray and barren and as such, the jungle bamboo were grown in the suit property, except 23 guntas of land situated in Sy. No. 36, over which the defendant has got absolute possession, use and enjoyment since from 24.10.1951 and he raised 30 coconut trees, about 200 trees of arecanut, about 7 mango trees and other fruit bearing trees, like 100 pineapple, 2 limbu, and 1000 banana plants and the defendant is in actual possession and enjoyment openly, peacefully as of right to the knowledge of Narayan Raghunath Prabhu--the predecessor-in-title of the suit property and the plaintiffs, adverse to the interest of the plaintiffs, since from 24.10.1951 and 25.10.1985, respectively, and the defendant has perfected his right, title and interest by adverse possession over the said area of 23 guntas, etc. Therefore, he has sought for dismiss the suit.

After completion of the evidence of both sides, the defendant filed I.A. No. XX under Order XXVI Rule 9 read with Section 151 of CPC for appointment of Horticulture Officer of the Horticulture Department, Joida, as the Court Commissioner, to visit the suit schedule property bearing Sy. No. 36 measuring 26 guntas of Bagayat land out of total extent of 11 acres 3 guntas of Neasari village in Joida Taluk, which is in the possession of the defendant and report the age of the trees, shrubs and plants and also answer the points raised by the respective parties, contending that he is in possession and enjoyment of the suit schedule property from 1951 and has encroached the suit property and there are coconut and areca nut trees over 23 guntas of land in Sy. No. 36 and the age of many of them is more than 60 years. Hence, it is just and necessary to appoint the Horticulture Officer to visit the suit schedule property and report the things over the suit property. The said application was resisted by the plaintiffs by filing objections.

After hearing both the parties, learned Judge by his impugned order, dated 17.03.2015, has rejected the said application on the ground that the application filed is nothing but collection of evidence and is not maintainable. Therefore, rejected the application. Against the said order the present writ petition is filed.

I have heard the learned counsel for the petitioner.

Sri. Sachin S. Magadum, learned counsel for the petitioner, has contended that the impugned order passed by the trial court rejecting the application for appointment of Court Commissioner to visit the suit schedule property is only to assist and enable the Court to decide the fact in issue and will not affect the other side and in fact, it will be easy for the Court to come to the definite conclusion of the case and also contended that the application is not to gather evidence, but it is only to ascertain the factual matrix and same will enable the Court to resolve the lis between the parties. Therefore, he sought to set aside the impugned order passed by the trial court.

I have given my thoughtful consideration to the arguments advanced by the learned counsel for the petitioner and perused the entire material on record.

It is not in dispute that the respondent filed the suit for possession based on the title deeds and based on the revenue documents and it was hotly contested by the present petitioner, who is the defendant, stating that he is in adverse possession of the suit property from 24.10.1951, adverse to the interest of the plaintiffs and their predecessors. If it is so, the defendant has to prove it based on the oral and documentary evidence on record. If it is the specific case that he is in possession of the property since from 24.10.1951, there is no question of appointment of a Court Commissioner to ascertain the total number of trees, different varieties and their age, etc. Even if the Court Commissioner is appointed, it will in no way helpful to the defendant to prove his adverse possession. The application filed by the defendant is nothing but collection of evidence. It is not permissible in view of the provisions of Order XXVI Rule 9 of CPC. It is also not in dispute that after completion of the evidence on both sides, when the matter was posted for arguments, at that belated stage, the present application is filed for appointment of Court Commissioner, which is impermissible. It is nothing but dragging the proceedings and nothing but collection of evidence.

After considering the entire material on record, the trial court also recorded a finding that, on an earlier occasion, the very defendant filed I.A. No. VIII on the same ground for the same relief and it was dismissed on 18.08.2004 and the defendant has to prove his case on cogent and reliable evidence. The evidence of both parties is already closed and the available material is sufficient to decide the issues and it is nothing but collection of evidence, for which no commission is to be issued. The order passed by the Court earlier on 18.08.2004 reached finality. The trial court has also recorded a finding that the appointment of Horticulture Officer as Court Commissioner to report the total number of trees, different varieties, its age, shrubs and plants cannot be helpful to the petitioner to prove his adverse possession and the petitioner/defendant has not produced any material on record to show that he has grown commercial crops, as contended. Even if there is any such commercial crops, it would definitely be entered in the revenue records and that itself is an evidence and if possession of the defendant over 23 guntas in Sy. No. 36 is not in dispute, since the suit itself is only for possession.

The trial court also recorded a finding that the object of appointment of Court Commissioner for local inspection is to assist the court in deciding the facts in issue by placing a report of such local investigation. It is not the case of the defendant that there is ambiguity in the evidence produced by the parties which requires further clarification with regard to the factual issues involved in this case. Even the trial court also recorded a finding that ascertaining the age of the trees is not a justifiable ground to appoint the Court Commissioner while adjudicating the claim of adverse possession of the defendant on the disputed land and though, the age of the trees are ascertained, it cannot be ascertained as to whether who has planted it. The said fact may be proved by the defendant by both oral and documentary evidence. Therefore, the trial court has dismissed the application, holding that the defendant has not made out any ground to appoint Court Commissioner, as contemplated under Order XXVI Rule 9 of CPC.

The impugned order dated 17.03.2015 passed on I.A. No. XX in OS No. 33/1999, rejecting the said application under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure, 1908, is well crafted order and the same is in accordance with law.

Accordingly, the writ petition is dismissed.