Karnataka High Court
Shri Chinnappa vs Krishnoji Rao on 6 February, 2013
Author: N.Ananda
Bench: N. Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 06TH DAY OF FEBRUARY 2013
BEFORE
THE HON'BLE MR.JUSTICE N. ANANDA
WRIT PETITION No.23646/2012 (GM-CPC)
BETWEEN:
SHRI CHINNAPPA, 63 YEARS
S/O GURAPPA
OCCUPATION: PROCESS SERVER
R/AT NO. 4081
NEHRU NAGAR EXTENSION
MALUR
KOLAR DISTRICT. ... PETITIONER
(BY SRI G A SRIKANTE GOWDA, ADV.)
AND :
1. KRISHNOJI RAO
(SINCE DEAD BY LRS)
(a) LAKSHMI BAI, 55 YEARS
W/O LATE KRISHNOJI RAO
(b) SURESH RAO
S/O KRISHNOJI RAO
BOTH ARE R/AT CHICKKAKUNTHUR VILLAGE
TEKAL HOBLI, MALUR TALUK
2. THE SECRETARY
PLD BANK, MALUR
3. ASSISTANT REGISTRAR OF CO-OPERATIVE
SOCIETIES, KOLAR
4. SRI YELLAPPA
2
S/O GURAPPA, MAJOR
KATERI SONNEHALLI
KASABA HOBLI
MALUR TALUK
5. MUNIYAPPA, MAJOR
S/O KEMPANNA
KATERI SONNEHALLI
KASABA HOBLI
MALUR TALUK
6. S ANJANEYA REDDY
S/O MUNIREDDY, MAJOR
KATERI SONNEHALLI
KASABA HOBLI
MALUR TALUK
7. VIJAYALAKSHMI, MAJOR
W/O KESHAVA REDDY
DODDA KADATHUR
MALUR TALUK
8. SRI S A DAYANANDA REDDY
S/O ANJANEYA REDDY, MAJOR
SONNEHALLI, MALUR TALUK
9. S A BHANUMATHI, MAJOR
D/O ANJANEYA REDDY
SONNEHALLI
MALUR TALUK. ... RESPONDENTS
(BY SRIYUTHS H K VASANTH & B N PRASHANTH, ADVS. FOR R2
& R3; SRI N S SANJAY GOWDA, ADV. FOR R7 TO R9; R4 TO R6
ARE SERVED)
THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE
RECORDS & QUASH THE ORDER AT
ANNEXURE-H & ETC.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
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ORDER
The petitioner is the plaintiff before the court below. He has sought for declaration of title and injunction.
2. At the first instance, the suit was decreed against which the defendants were in an appeal (R.A.No.34/2003) before the I-appellate Court. The learned judge of the I-appellate court remanded the matter to the trial court with the following directions:
1) The defendants shall be allowed to amend the written Statement
2) If plaintiff feels he may be permitted to file his reply.
3) The trial court shall appoint ADLR as commissioner for the purpose of surveying the suit schedule property and the land of defendants no.4 and 5 and Narayanappa in Sy.No.21 of Halubavi Kothur village, Malur Taluk at the cost of defendants.
4) The learned trial judge shall after receipt of commissioners report shall afford opportunity to both parties to adduce their further evidence if any, in the matter.
3. It was brought to the notice of the learned trial judge that post of ADLR was abolished and the powers which were being exercised by ADLR are conferred upon the Tahsildar. Therefore, the learned trial judge appointed 4 Tahsildar, Malur as the court commissioner and he was directed to submit a fresh report after conducting survey of the disputed lands with the help of Taluk Surveyor as per memo of instructions filed by the parties and also taking into consideration documents mentioned in memo of instructions.
The commissioner's report was submitted to the trial court. The plaintiff filed objections to the commissioner's report. The Tahsildar and concerned surveyor were examined as witnesses before the court. During cross-examination, the Tahsildar has admitted that he had not visited the suit schedule property or other property and he has submitted the report on the basis of report submitted by Surveyor. The plaintiff sought for rejecting the report of Commissioner and appointment of a fresh commissioner. The trial court has rejected the application in terms of impugned order. Therefore, petitioner is before this court interalia contending that the trial court should have appointed fresh commissioner as Tahsildar should not have delegated his duties as Commissioner to the Sruveyor.
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4. The learned counsel for petitioner has relied on the judgment of this court reported in ILR 2006 KAR 3588 (in the case of Shamanna Setty -vs- B.L.Channegowda) wherein, this court has held:
"CODE OF CIVIL PROCEDURE, 1908 -
ORDER 26 RULE 10- Appointment of Commissioner by the Court under- appointment of ADLR as Commissioner- The ADLR further directed the supervisor to execute the warrant - HELD - under order 26 rule 9 of the code of Civil Procedure if a person is appointed by the Court as a Commissioner for local inspection, he cannot delegate the said work to any other person, as it is the right of the Court alone and if such person has executed the warrant, the report cannot be relied upon by the Court as the execution of the warrant itself is without jurisdiction."
5. In the case on hand, the Tahsildar was appointed as Commissioner. The report submitted by the Tahsildar was rejected by the trial court on 29.01.2010. The trial court directed the court commissioner (Tahsildar, Malur) to submit fresh report after conducting survey of disputed lands with the help of Taluk Surveyor as per memo of instructions filed by the parties and also taking into consideration documents mentioned in the memo of instructions. The Tahsildar was 6 directed to submit a report with the help Taluk Surveyor. Therefore, the Tahsildar had taken the help of Taluk Surveyor. Whether failure of Tahsildar to visit the suit schedule property has impaired the correctness of report submitted by the Tahsildar has to be considered in the light of documentary and oral evidence adduced by parties. In the circumstances, there is no need to appoint a fresh commissioner. The learned trial judge has held, it is open to the parties to disprove accuracy of report by leading independent evidence.
6. The matter is pending from the year 1982. Therefore, the parties are at liberty to urge these contentions when the case is heard on merits. If the learned trial judge after hearing the parties on merits of the case comes to a conclusion that he cannot decide the case on merits without report of a fresh commissioner, the learned trial judge may revert back to the stage of appointment of commissioner. The petition is disposed of with these observations.
Sd/-
Np/- JUDGE