(Prayers: This W.P. is filed under Article 227 of the Constitution of India praying to call for the entire records in o.s.no. 2380/2015 pending on the file of the xii additional city civil and sessions judge, at Bengaluru (ccch-27) in o.s.no. 2380/2015.

This WP is filed under Artilce 227 of the Constitution of India praying to call for the entire records in os no. 2380/2015 pending on the file of the xii addl city civil and session judge at bengaluru (ccch-27) in os no. 2380/2015 .

This WP is filed under article 227 of the Constitution of India praying to call for the entire records in os no. 2380/2015 pending on the file of the xii additional city civil and Sessions judge, at Bengaluru (ccch-27), in os no. 2380/2015.)

Oral Order:

1. These three writ petitions arises between the same parties out of the same proceedings, and therefore, they are heard together and disposed of by this common order.

2. Heard the learned Counsel for the parties.

3. O.S.No.2380/2015 is filed by respondent no.1 to these writ petitions viz., Elangovan seeking the relief of declaration of title in respect of suit schedule 'A' property and consequentially direct defendants to deliver vacant possession of suit schedule 'B' property after restoring to its earlier condition by removing the constructions raised thereon by defendant no.7.

4. In the said suit, contesting defendants have filed written statement opposing the suit claim. When the suit was at the stage of addressing arguments, IA-15 was filed under Section 151 CPC with a prayer to re-open the case, and IA-16 was filed under Order 16 Rule 1 CPC to summon the Assistant Executive Engineer, Planning Division, Yelahanka Zone, Bengaluru, for the purpose of interpreting a topographical survey sketch (Ex.P-32) and IA-17 was filed under Order XXVI Rule 9 CPC with a prayer to appoint a Court Commissioner for the purpose of holding a local inspection of the properties of the plaintiff and defendant no.7 and submitting a report.

5. The said applications were opposed by defendant no.7 by filing objections. The Trial Court vide the order impugned in these writ petitions had allowed IAs-15, 16 & 17 and being aggrieved by the order passed on IA-15, defendant no.7 is before this Court in W.P.No.9493/2024. Assailing the orders passed by the Trial Court on IAs-16 & 17, defendant no.7 is before this Court in W.P.No.9243/2024. Consequent to the order passed on IA-17, the Trial Court has appointed one Sri Karthik Balla, a private architect as the Court Commissioner and aggrieved by the said order, defendant no.7 has filed W.P.No.15812/2024.

6. Learned Counsel for the petitioner having reiterated the grounds urged in these three petitions, submits that plaintiff has failed to produce necessary oral and documentary evidence in support of his case. For the purpose of collecting evidence,

he has now filed an application seeking appointment of Court Commissioner. He submits that Ex.P-32 is self-explanatory, and therefore, there was no necessity to allow IA-16 for the purpose of explaining the said document to the court. He also submits that the Trial Court was not justified in appointing a private architect at the instance of the plaintiff, and on the other hand, the Trial Court ought to have appointed Competent Officer from BBMP as Court Commissioner. He, accordingly prays to allow the petitions.

7. Per contra, learned Counsel for the contesting respondent has argued in support of the impugned order. She submits that Ex.P-32 is a document produced by the plaintiff and the said document is a topographical survey sketch of widening of road. Only a competent person who has the knowledge of the same, can explain the said document and in the absence of explaining or interpreting the said document, the same would be of no assistance to the Court. Therefore, the Trial Court having appreciated this aspect of the matter, has allowed IA-16. Undisputedly, there is an allegation of encroachment by the defendants in respect of the suit schedule property and in normal circumstances, in a suit where allegation of encroachment is made, Court Commissioner needs to be appointed for conducting a spot inspection and survey of the disputed properties. She submits that though the Trial Court had granted opportunity to defendant no.7 to propose a person to be appointed as Court Commissioner, he had not co- operated before the Trial Court, and on other hand, he has filed only objection to the memo filed by the plaintiff proposing the name of Karthik Balla, Private Architect to be appointed as Court Commissioner. The Trial Court having appreciated this aspect of the matter has appointed Karthik Balla as the Court Commissioner who has now held the spot inspection of the properties in dispute in presence of defendant no.7, his advocate and the plaintiff. She, accordingly prays to dismiss the petitions.

8. Suit in O.S.No.2380/2015 is filed with a prayer to declare that the plaintiff is the owner of suit schedule 'A' property bearing Site No.64 totally measuring 1,200 sq. ft. and suit schedule 'B' property is a portion of suit schedule 'A' property. A prayer is also made in the suit to direct the defendants to hand over possession of suit schedule 'B' property after removing the construction raised on the same by defendant no.7.

9. From the prayer made in the suit, it is apparent that the plaintiff has alleged encroachment of a portion of suit schedule 'A' property by defendant no.7. When the suit was at the stage of addressing final arguments, IA-15 was filed with a prayer to re-open the stage of the suit and IA-16 was filed with a prayer to summon the Assistant Executive Engineer, Planning Division, BBMP, Yelahanka Zone, Bengaluru, to interpret and decode the document - Ex.P-32 produced by the plaintiff which is said to be a topographical survey sketch of widening of road.

10. The Trial Court having appreciated that plaintiff claims right over the suit schedule property bearing Site No.64, which according to him, was allotted to him by the defendant-Society, and while widening of the road, a portion of suit schedule 'A' property has been encroached and for the purpose of demonstrating the same, he has produced Ex.P-32, has held that assistance of a competent person to interpret and explain the  document  -  Ex.P-32  is  required,  and  has  accordingly allowed IA-16 and summoned the Assistant Executive Engineer, Planning Division, BBMP, Yelahanka Zone, Bengaluru, to interpret and decode Ex.P-32. Therefore, I do not find any illegality or irregularity in the orders passed by the Trial Court in allowing IAs-15 & 16.

11. IA-17 is filed on behalf of the plaintiff to appoint a competent person as Court Commissioner for the purpose of conducting local inspection and submitting a report. As stated earlier, there is an allegation of encroachment by the defendants in respect of suit schedule 'A' property.

12. The  coordinate  bench  of  this  Court  in  the  case  of SHADAKSHARAPPA VS KUMARI VIJAYALAXMI & ORS. – 2023 ILR KAR 3983, has held that in normal circumstances in cases where allegation of encroachment is found, the Court should permit appointment of Court Commissioner, so that the report of the Court Commissioner would be of assistance for the courts to effectively adjudicate the dispute between the parties. In a case where allegation of encroachment is made, in normal circumstances, it would be difficult for the parties to prove encroachment based on oral and documentary evidence, and therefore, in such an event, the Court can appoint Court Commissioner for the purpose of local inspection and survey, if necessary.

13. In the present case, the Trial Court having appreciated that the plaintiff has alleged encroachment of suit schedule 'A' property by the defendants, has thought it fit to appoint a Court Commissioner for inspection and survey of properties in dispute.

14. A reading of Order XXVI Rule 9 CPC itself would go to show that Court has the discretion to appoint a Court Commissioner if it finds necessary. The Trial Court has exercised such discretion and appointed Court Commissioner in the present case. Having regard to the facts and circumstances of the case, I am of the opinion that no fault can be found in the same.

15. The material on record would also go to show that inspite of sufficient opportunity being given to defendant no.7 to propose any name for the purpose of appointment as a Court Commissioner, he had not proposed or suggested any name, and on the other hand, plaintiff had suggested the name of Karthik Balla by filing a memo. After the said memo was filed, defendant no.7 has not suggested any alternative name, and on the other hand, he had filed objections running to four pages opposing appointment of the person who was proposed by the plaintiff. It is brought to the notice of this Court that Court Commissioner viz., Karthik Balla, has already held spot inspection and has submitted a report, and on the date of spot inspection by the Court Commissioner, the plaintiff, defendant no.7 and their respective advocates were present at the spot. Under the circumstances, at this stage, I am of the opinion that it is not necessary for this Court to interfere with the order passed by the Trial Court appointing Karthik Balla as Court Commissioner. It is always open for the parties to file their objections, if any, to the report of the Court Commissioner and if necessary the Court Commissioner can also be summoned for the purpose of his examination.

16.    Under the circumstances, I do not find any merit in these writ petitions. Accordingly, petitions are dismissed.