Nandeesh vs Vanajakshmamma and Others

Ram Mohan Reddy, J.—The 1st defendant in O.S. No. 165/2008 on the file of Additional Civil Judge and JMFC, Kollegala, has called in question the common order dated 12th March 2013 allowing I.A. No. 4 under Order XXXIX Rule 7 of CPC and I.A. No. 6 under Order VI Rule 17 of CPC while dismissing I.A. No. 5 under Section 151 of CPC, in so far as it relates to I.A. Nos. 4 and 5.

Respondents 1 to 4 instituted O.S. No. 165/2008 arraigning petitioner as 1st defendant and 5th respondent as 2nd defendant, inter-alia, alleging construction of a building by encroaching upon plaintiffs'' suit ''B'' schedule property, hence the relief to declare as illegal the construction and for mandatory injunction, as also permanent injunction. That suit was opposed by filing written statement of the defendants, inter-alia, denying the allegations. After the plaintiff was examined as a witness, it appears that respondents 1 to 4 (plaintiffs) filed I.A. No. 4 under Order XXXIX Rule 7 of CPC to appoint a Commissioner to "ascertain the compliance of construction works by the defendants by measuring plaintiffs'' schedule property". In the affidavit accompanying the application, it was stated that the defendants were very eager to put up further construction with an intention to trouble the plaintiffs and to fulfill their sinister purpose and that appointment of a Commissioner to ascertain the genuineness of the version of the defendants was a necessity, who would give a clear picture of the construction under taken by the defendants. At paragraph 5 it was stated that the application was filed with good intention and not for any other purpose of collecting evidence. In addition it is stated that it is inevitable to obtain the report of the Court Commissioner in respect of measurement of plaint schedule property and for other "accessory purpose". That application was opposed by filing statement of objections. In addition, petitioner filed I.A. No. 5 under Section 151 of CPC stating that if at any time it was found that he had encroached upon the property belonging to plaintiffs, he would dismantle that portion of the construction. That application was opposed by the 1st plaintiff stating that the application is not maintainable and that with mala fide intention to put up permanent construction violating the set back rules, the statement is made undertaking to demolish the construction. It was further alleged that construction of basement is contrary to the licence and affects the easementary rights of the plaintiffs and that there being no sanction of a building plan, defendant continued to put up construction unauthorizedly.

The Trial Court clubbed I.A. Nos. 4 and 5 as also I.A. No. 6 filed by the plaintiffs under Order VI Rule 17 of CPC for amendment of plaint and by common order dated 12th March 2013, allowed I.A. No. 4, directed the Court Commissioner to inspect the spot, survey the suit property of the defendants'' site and find out encroachment made by defendants on the premise that such report would assist the Court to come to a proper conclusion and help adjudication of the real matter in controversy and if so done, would not cause any hardship or injustice to the defendants. The Trial Court dismissed I.A. No. 5 on the premise that if the report discloses encroachment by the defendants, they have undertaken to demolish the building, nevertheless, "subject matter of the suit will be changed and plaintiffs'' right of way will also be infringed."

Sri D.S. Hosmath, learned counsel for petitioner is correct in his submission that Order XXXIX Rule 7 of CPC, though provides for making an order for detention, preservation or inspection of any property which is subject matter of any suit, nevertheless, is not a substitute to Order XXVI Rule 9 of CPC for appointment of a Court Commissioner to measure the property and fix the boundaries. The very nomenclature of Rule 7 would indicate that inspection of any property subject matter of the suit does not take into its fold appointment of a Court Commissioner to measure the suit property of both plaintiff and defendant and submit a report over whether there is, in fact, an encroachment as alleged by the plaintiff against the defendant, since that would be more than in the nature of collecting evidence which is impermissible.

The nature of the suit instituted by the plaintiffs, regard being had to the plaint averments, it is needless to state that it is for the plaintiffs to prove the encroachment and therefore, cannot shift the burden on either the defendants or collect evidence by appointment of a Court Commissioner.

Plaintiff is examined and therefore, the Trial Court is required to consider that evidence both oral and documentary to record reasons, findings and conclusions over the claim of the plaintiffs and certainly not by securing the report of a Court Commissioner in exercise of jurisdiction under Order XXXIX Rule 7 of CPC. Even assuming that power to appoint a Court Commissioner lies in Order XXVI Rule 9 of CPC, nevertheless, since the parties have not concluded the trial, it was not open for the Trial Court to have directed appointment of Court Commissioner. In other words, stage was not set for the appointment of a Court Commissioner, more appropriately for the purpose of ascertaining the exact extent of land allegedly encroached by the defendants over the plaintiffs'' property or the construction of a building contrary to the building plan. In any event, the reasons assigned by the Court below, noticed supra, in the order impugned to allow I.A. No. 4 cannot but be characterized as perverse.

Learned counsel for petitioner does not press the order over I.A. No. 5 since, in fact, I.A. No. 5 does not contain any prayer for an order of the Court.

In the result, this petition is allowed in part. The order impugned in so far as it relates to allowing I.A. No. 4 is quashed. I.A. No. 4 is rejected and in all other respects, remains unaltered.