RANGANAGOUDA Vs. EXECUTIVE ENGINEER

JUDGEMENT

(1.) THIS writ petition is filed for quashing the order passed by the learned Trial Judge who has declined to appoint the Commissioner for second time.

(2.) THE plaintiffs have filed a suit for declaration and mandatory injunction contending that the defendants have encroached upon the property and put up construction which are to be removed. The defendants contested the suit. Originally the schedule property was mentioned as R.S.No.136/1. The plaintiffs filed an application under Order 26 Rule 9 of CPC for appointment of the Commissioner to measure the suit schedule property and to point out whether there is any construction. The Commissioner so appointed, measured R.S.No.136/1 and has submitted his report. Later the plaintiffs have realised the mistake that they have committed in describing their property in the schedule. Therefore, an application was filed to amend and correct the mistake. Plaintiffs are the owners of R.S.No.136/2, but in the plaint, plaintiffs have mentioned that they are the owners of R.S.No.136/1. Now the question is whether in R.S.No.136/2 is there any construction. As in the earlier instance, the plaintiffs had shown in the schedule his property is R.S.No.136/1 and further they wanted the Commissioner to point out whether there is any construction. Obviously, the Commissioner submitted a report stating that there is no construction in R.S.No.136/1, which is incorrect. The question is whether in R.S.No.136/2 there is any construction. Though the Commissioner has measured the entire extent of R.S.No.136, which includes R.S.No.136/1 and 136/2, he has not stated anything in the report regarding any construction, which is found in R.S.No.136/2. Therefore, the second application was filed for appointment of Commissioner to measure R.S.No.136/2, then to state whether there is any construction. The said application was opposed by the defendants. The Trial Court was of the view that the Commissioner has already measured the entire extent of R.S.No.136, which includes R.S.No.136/2 also, it is not necessary to appoint the Commissioner over again. Therefore, it dismissed the application.

(3.) THE entire R.S.No.136/2 is measured. The said survey number has two portions i.e., 136/1 and 136/2. The plaintiffs claim title to R.S.No.136/2. It is their case that R.S.No.136/1 has been the subject matter of acquisition. Therefore, the defendants have encroached upon R.S.No.136/2 and have put up construction. The Commissioner's report is silent on this aspect. Mere measuring of entire R.S.No.136 is not sufficient. The Commissioner has to state in R.S.No.136/2 whether there is any construction which is claimed by the plaintiffs. In that view of the matter, the order passed by the Trial Court dismissing the second application filed for appointment of Commissioner is erroneous and it requires to be set aside.