Puttu Mogerthy and Others vs Kava Hengsu and Others

Aravind Kumar, J.—Heard Sri Vighneshwar S Shastry, learned Advocate appearing for petitioners. Perused the impugned order dated 01.09.2015 passed by II Addl. Civil Judge & JMFC, Kundapura in O.S. No. 17/2002 - Annexure-G whereunder application filed by first respondent - plaintiff for appointment of Court Commissioner has been allowed on the ground that it would be necessary to ascertain as to whether defendants are residing in the house situated in the suit schedule property or outside suit schedule property and as such, appointment of Court Commissioner is necessary to conduct local inspection. First respondent is served and unrepresented.

It is the contention of Sri Vighneshwar S. Shastry, learned Advocate appearing for petitioners that impugned order suffers from error namely, plaintiff has sought for a declaration to declare that she has acquired absolute right, title and interest over suit ''A'' schedule properties by virtue of registered Will dated 19.12.1994 executed by deceased Sri Babu Mogera in her favour and for consequential relief of perpetual injunction and as such, burden is on the plaintiff to prove that she has been in possession and she cannot depend upon any weaknesses of defendants to establish her case. It is also contended that local inspection should be not permitted as it amounts to collection of evidence. As such, learned Advocate appearing for petitioners seeks for quashing of impugned order.

Undisputedly, plaintiff has sought for a declaration of title over suit schedule ''A'' property and plaint averments have been denied by defendants by filing written statement. Issues have been framed as per Annexure-D and issue No. 2 would indicate that burden is cast on the plaintiff to prove her lawful possession and enjoyment of suit schedule properties. Trial has been concluded and when the matter was at the stage of final arguments, application for appointment of Court Commissioner has been filed by plaintiff as per Annexure-E. The work which was sought to be undertaken by the Court Commissioner according to plaintiff are as under:

"1. To identify and note the property in which the defendants are residing and also to note the Door number of the residential building and by identifying the property.

To note and report that the land in which the defendants are residing, is entirely a different property than the suit schedule properties and thereby to note that the defendants are residing outside the suit schedule properties and that they are not residing in any of the suit schedule properties.

To note and report the distance between the residential house of the Plaintiff and that of the defendants.

To note such other facts to be shown and observed by the Commissioner at the time of his visit to the ''A'' Schedule Property."

The above assignment which the Court Commissioner has to undertake would indicate that it is in the nature of collecting evidence which is impermissible under Order 26 Rule 9 CPC. Under issue No. 2, burden having been cast on the plaintiff to prove her lawful possession and enjoyment of suit property, she has to discharge said burden by producing cogent evidence and substantiate her claim. However, to prove said fact, evidence cannot be allowed to be collected through Court Commissioner. Prayer sought for in the application would clearly indicate that plaintiff has sought for collecting evidence namely, to identify as to where defendants are residing, door number of their residential building and also identification of the property in their occupation, which is outside the scope of the present suit. As such, this Court is of the considered view that exercise that would be undertaken by the Commissioner who is now appointed would amount to collection of evidence. When plaintiff is asserting she is in possession of suit schedule property, burden is on her to prove said fact.

For the reasons aforestated, I proceed to pass the following:

(1) Writ petition is hereby allowed.

(2) Order dated 01.09.2015 passed by II Addl. Civil Judge & JMFC, Kundapura in O.S. No. 17/2002 - Annexure-G is quashed.

(3) Application - I.A. No. 14 filed under Order 269 CPC for appointment of Court Commissioner stands dismissed.