RANGAYYA KANANTHA Vs. GOVINDA CHATRA

JUDGEMENT

(1.) This petition is for revision of the order of the Civil Judge at Udipi, rejecting an application for appointment of a Commissioner under Or.26, Rule 9 CPC.

(2.) The suit is for partition and possession of the plaintiffs share in certain agricultural lands and buildings. The plaintiffs who claim to be the reversioners, have contended that the alienations of the suit properties by the widow of the last male owner, is not binding on them. Defendants 11, 12, 19, 22, 23 and 25 who are the alienees of the suit properties, have claimed, inter alia, that they have effected improvements in the suit properties by spending several thousands of rupees and that even if the alienations in their favour are held to be not binding on the plaintiffs, they (those defendants) are entitled to some equities in respect of the said improvements.

(3.) The said defendants made an application I.A.III, praying for the appointment of a Commissioner to visit the said properties and to estimate the value of the improvements made by them. According to them, such appointment of a Commissioner would save a good deal of time and expenditure in proving those improvements and the value thereof. That application was resisted by the plaintiffs mainly on the ground that the alienees are not entitled to the value of the alleged improvements. The learned Civil Judge has said in his order that the Court can itself conduct an investigation in order to ascertain the improvements alleged to have been effected by the said defendants, that a local investigation by the Commissioner under Order 26, Rule 9 CPC., presupposes the existence of independent evidence on record, that the issue whether the defendants have effected any improvements has to be tried by the Court on the evidence adduced by the parties, that the decision on this material issue can never be left to the Commissioner and that the Court cannot delegate any of its judicial functions to the Commissioner. In that view, the learned Civil Judge felt that it was improper to issue any commission to assess the value of the alleged improvements.