KEMPEGOWDA S/O LATE KARITHIMMEGOWDA Vs. SMT SIDDAGANGAMMA W/O A. MUNIYAPPA

JUDGEMENT

(1.) THIS writ petition is directed against the order dated 16.9.2011, in O.S.No. 79/2010, on the file of the Senior Civil Judge, Nelamangala. Bangalore Rural District (Annexure -J), by which the Commissioner's report dated 22.3.2011 has been set aside and instead, Assistant Director of Land Records (ADLR), Department of Survey, Bangalore, has been appointed as the Commissioner, to inspect, the plaint schedule property and the written statement schedule property as per the instruction Nos. 1 to 4 contained in I.A.No. 4. Liberty has also been reserved to the parties to file memo of instructions.

(2.) THE relevant facts of the case are that the petitioner who is the plaintiff has filed a suit seeking declaration and permanent injunction in respect of the suit schedule property. The respondent who is the defendant in the said suit has filed his written statement. During the pendency of the suit, an application for the appointment of a Commissioner was filed by the defendant under Order XXVI Rule 9 CPC The said application was allowed by order dated 28.9.2010, directing the Taluk Surveyor, Nelamangala, to act as the Commissioner to inspect the plaint schedule property as per instruction Nos. 1 to 6 in I.A.No. 4 and to submit a report. Plaintiff was also reserved liberty to file memo of instructions. Subsequently, the Commissioner executed the Commission Warrant and filed his report, a copy of which is produced as Annexure -F. Objections were filed to the said report by the defendants. On considering the said objections, the Commissioner's report dated 22.3.2011 has been set aside and the ADLR Department of Survey, has been appointed as a Commissioner to execute the commission warrant. The said order is assailed in this writ petition.

(3.) ON perusal of Annexure -F, which is the Commissioner's report, it is noted that while the memo of instructions submitted by the plaintiff has been referred to and taken in consideration, there is no reference to the memo of instructions which was part of the application filed by the defendant under Order XXVI Rule 9 read with Section 151 of CPC and which has also been referred to in the operative portion of the order of appointment of the Commissioner in the Commissioner's report dated 22.3.2011. On that short ground alone, the trial court was justified in setting aside the Commissioner's report.