Karnataka HC Allows Local Inspection In Family Land-Encroachment Suit, Says Arguments-Stage Delay Alone Is No Bar

The plaintiff sought a declaration of ownership over the plaint ‘A’ schedule property and, consequentially, possession of the plaint ‘B’ schedule property, alleging that the defendants had encroached upon it.

He applied under Order XXVI Rule 9 CPC for a Commissioner to conduct a local investigation into the alleged encroachment.

The Senior Civil Judge, Somwarpet, rejected the application on 3 December 2019.

The plaintiff challenged that order under Article 227 of the Constitution.

The High Court noted that the suit had been set down for arguments and that the petition had remained pending since 2020.

1. Whether a local investigation by a Commissioner under Order XXVI Rule 9 CPC was warranted to ascertain the location and extent of the alleged encroachment in a suit seeking recovery of possession.

2. Whether the application could be rejected because the suit had been set down for arguments.

Order XXVI Rule 9 CPC empowers the court to appoint a Commissioner for local investigation where it is requisite or proper to elucidate a matter in dispute.

In an encroachment dispute involving the identification, boundaries or extent of property, a local investigation may assist the court by providing objective information about physical features.

Such an investigation does not establish title or relieve the parties of their burden to prove their cases; the Commissioner’s report is material for the court’s consideration, subject to the parties’ right to object.

The Court also relied on Shadaksharappa v. Kumari Vijayalaxmi and Others, W.P. No. 201274 of 2022, concerning the principles governing appointment of a Commissioner under Order XXVI Rule 9 CPC.

The alleged encroachment was central to the plaintiff’s claim for possession, and its precise location and extent were material questions for adjudication.

A local investigation could assist the Trial Court in identifying relevant physical features; it would not determine title or substitute for the parties’ evidence.

The Trial Court therefore erred in treating the proposed investigation as merely an attempt to collect evidence or fill an evidentiary lacuna.

Although the stage of the application was relevant, the fact that the suit had been set down for arguments was not, by itself, a sufficient reason to refuse an investigation needed to elucidate a material dispute.

The defendants could participate and raise permissible objections to the report.

The parties were permitted to submit their respective memos of instructions, and the Trial Court was directed to proceed in accordance with law and endeavour to dispose of the suit expeditiously.