Karnataka HC Sends Neighbours’ Alleged Encroachment Suit Back For Fresh Inspection After Commissioner Couldn’t Measure Properties

Respondent No. 1 sued for declaration of title to the ‘B’ schedule property, injunction concerning the ‘A’ schedule property, and removal of a shed allegedly erected there by the appellant.

She alleged that the appellant had encroached on the eastern portion of the ‘A’ schedule property, while respondent No. 2 had encroached on its southern portion; respondent No. 2 did not contest the suit.

The appellant denied the alleged encroachment and disputed the identity, location, measurements and boundaries of the properties.

The Trial Court decreed the suit, relying in part on a Court Commissioner’s report, and the First Appellate Court affirmed that decree.

The appellant challenged both judgments in a second appeal under Section 100 of the Code of Civil Procedure.

The appeal was brought under Section 100 of the Code of Civil Procedure, which provides for a second appeal on a substantial question of law.

The Court applied the principle that a claim concerning disputed property boundaries and alleged encroachment must be assessed on evidence adequate to establish the properties’ identity, location, measurements and boundaries.

An incomplete or sketchy Commissioner’s report that does not resolve those matters cannot properly serve as the basis for determining the parties’ claims.

The Court found that the pleadings and evidence of both sides did not adequately establish the identity, location, schedule, measurements or boundaries of the disputed properties.

The Commissioner had not measured the properties, and no boundary marks were available to identify them; the report was therefore incomplete and insufficient to resolve the dispute.

Because the lower courts relied on that report to uphold the plaintiff’s claim, their judgments could not stand.

The unresolved property-identification issues required a fresh local inspection and reconsideration by the Trial Court.

It directed the Trial Court to appoint a new Court Commissioner to inspect the plaintiff’s and defendant’s properties.

The parties may submit instructions, object to the report, examine or cross-examine the Commissioner, and adduce additional evidence; all contentions were kept open.