Indian Kanoon - Search engine for Indian Law

4. Heard learned counsel for the plaintiff and learned counsel for the defendant No.2.

5. Learned counsel for the plaintiff submits that the Trial Court has committed an error in dismissing the suit of the plaintiff in respect of possession. He submits that the Court Commissioner was appointed by the Trial Court. The Court Commissioner before inspection has not issued notice to the plaintiff and the plaintiff did not appear at the time of alleged inspection. He submits that the Commissioner has not submitted the report as per the memo of instructions. He submits that the plaintiff has filed an application for production of additional evidence. He submits that during the pendency of instant appeal, plaintiff made a request to the Assistant Director of Land Records (ADLR) to do haddabast survey in respect of the suit schedule property. The ADLR issued a public notice and conducted a survey in respect of the suit schedule property and prepared a survey report. He submits that the survey report prepared by ADLR is contrary to the report submitted by the Court Commissioner. He further submits that as per the survey report, the ADLR has opined that there is an encroachment in respect of the suit schedule property by the defendant. Hence he submits that the additional evidence produced by the plaintiff is necessary to decide the real controversy in issue. Hence he prays to allow the application for production of additional evidence and also the appeal.

(3) Whether the plaintiff has made out any grounds to interfere with the impugned judgment and decree?

9. Point No.1: It is an undisputed fact that the plaintiff is the owner of the suit schedule property. The only dispute is that the defendants have encroached upon the suit schedule property. In order to establish the case of the plaintiff, the plaintiff examined himself as PW-1. He has reiterated the plaint averments in the examination-in-chief. Except oral evidence, the plaintiff has not produced any records to establish that the defendants have encroached upon his land. The plaintiff in order to establish the location and identity of the suit schedule property, filed an application to appoint ADLR, Virajpet Taluk as Commissioner. The said application came to be allowed vide order dated 21.08.2002. ADLR was appointed as Court Commissioner to make a local inspection of the properties as per the memo of instructions. The plaintiff and defendants filed memo of instructions. The Court Commissioner has carried out a Commission as per the memo of instructions and submitted a report to the Trial Court. The plaintiff filed objections to the Commissioner's report which is extracted as under:

1) The ADLR being the Commissioner appointed by this Hon'ble Court, the Commissioner has exceeded his power by making an observation in the report to the effect that the 1st defendant namely B.Nanjappa is not in possession of the suit schedule property and it is not known in whose possession the suit schedule properties lies is not known.

2) In the memo of instruction filed by the both the parties the Commissioner has not been instructed to note the name of the encroacher. Thus the Commissioner has played the role of an investigating officer which is not called for.

10. Point No.2: The plaintiff filed an application for production of additional evidence. In support of the application, the plaintiff has filed an affidavit stating that during the pendency of appeal, plaintiff filed an application to the ADLR for haddbast survey. The ADLR issued a public notice and thereafter surveyed the property and prepared a survey report. As per the survey report, the defendants have encroached upon the suit schedule property and further contended that the Commissioner's report is contrary to the survey report prepared by ADLR. He submits that the proposed documents are necessary for the purpose of deciding the real controversy in between the parties. The said application was filed on 20.04.2017.