Karnataka HC Sends Encroachment Survey Plea Back, Says Trial Court Must Check, If Disputed, Whether Defendants Hold More Land Than Claimed Before Considering Commissioner

The petitioner/plaintiff brought O.S. No. 23/2022 seeking declaration and possession of land in Sy. No. 32/4B, alleging that the defendants had encroached upon 00-03-02 (A.G.A.) of its total extent of 00-08-08 (A.G.A.).

The defendants claimed possession, in their own right, of lands in Sy. Nos. 32/6 and 32/4A, and denied encroachment.

The plaintiff’s application under Order XXVI Rule 9 read with Section 151 CPC sought appointment of a Commissioner to identify the property and determine the extent in the parties’ possession.

The trial court rejected the application, reasoning that sufficient material was already on record and that the application was belated.

Order XXVI Rule 9 CPC provides for local investigation by a Commissioner where the court considers it requisite or proper to elucidate a matter in dispute; Section 151 CPC preserves the court’s inherent powers.

In this case, the High Court directed the trial court to assess whether the defendants possess land beyond the extent claimed in their written statement and, if that contention is raised, to consider the feasibility of appointing a Commissioner in accordance with law.

The parties’ competing claims concerned the boundaries of the schedule property and the extent of land in the defendants’ possession.

The trial court rejected the application on grounds of existing material and delay, but the High Court considered that it should first address whether the defendants’ possession exceeded the extent they claimed in paragraph 19 of their written statement.

If that issue was raised, a Commission might assist effective adjudication; the trial court was therefore required to reconsider the application rather than reject it on the stated grounds.

The parties may place their respective contentions on whether the defendants possess land exceeding the extent claimed in their written statement; if that contention is raised, the trial court must consider the feasibility of appointing a Commissioner.

All contentions were left open.