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W.P. No.104516 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 7TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE N.S.SANJAY GOWDA WRIT PETITION NO. 104516 OF 2022 (GM-CPC)
BETWEEN:
SHRI MAHANTESH S/O BASAVANNI MANGASULI,
AGE. 53 YEARS, OCC. PVT. SERVICE,
R/O. LITTLE HEARTS, NEAR NAGAR PARISHAD
TALEGAON, PUNE, DIST: PUNE,
MAHARASTRA STATE.
… PETITIONER
(BY SRI. VITTHAL S.TELI, ADVOCATE)
AND:
1. SHRI PRATAP S BHOSALE,
AGE. 57 YEARS, OCC. PVT. SERVICE,
R/O. MATH GALLI, BELAGAVI-590001.
2. SMT. ASHA SUNIL BELEKAR,
AGE 45 YEARS, OCC. HOUSEHOLD WORK,
SHRI PRATAP S BHOSALE,
R/O. MATH GALLI, BELAGAVI-590001.
3. SHRI CHANDRAKANT GUNDU PATIL,
AGE 50 YEARS, OCC. PRIVATE SERVICE,
SHRI PRATAP S BHOSASALE,
R/O. MATH GALLI, BELAGAVI-590001. … RESPONDENTS
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE A WRIT OF CERTIORARI OR ANY OTHER WRIT THE
ORDER ON IA NO XIV DATED 24/08/2022 ON
APPLICATION UNDER ORDER 26 RULE 9 OF CODE OF
CIVIL PROCEDURE 1908 PASSED IN OS NO.1519/2010
PENDING ON THE FILE III ADDL. CIVIL JUDGE AND JMFC,
BELAGAVI AND COPY OF THE IMPUGNED ORDER IS
PRODUCED AT ANNEXURE-F.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. This writ petition is filed challenging an order refusing to appoint a Court Commissioner.
2. In a suit for declaration, possession and injunction, contending that the defendant No.1 encroached upon the plaintiff's property an application was made after the conclusion of the trial for appointment of a Civil Engineer to take measurement of the suit property with reference the sale deed date 13.02.1999 and also to take measurement of the building constructed on Plot No.157 by encroachment.
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3. The Trial Court has refused this prayer on the ground that the sale deed upon which the petitioner placed reliance on Plot No.157 was an unregistered sale deed and if a Commissioner were appointed to measure the property on the basis of such sale deed, it would amount to collection of evidence.
4. In my view, the order of the Trial Court cannot be found fault with, more so, when the petitioner has filed a suit seeking for possession of the property which he claims has been encroached upon by the defendant.
5. If the petitioner is able to establish his title and the encroachment, the Trial Court would have to necessarily direct the possession of this property to be given to the petitioner and in this view of the matter, the appointment of the Commissioner would not be necessary.
6. The writ petition is therefore dismissed. However, it is open to the petitioner to urge the validity or
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invalidity of the impugned order in an appeal that may be filed as provided under Section 105 of the CPC.
SD/-
JUDGE
Vnp* List No.: 1 Sl No.: 5
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