Karnataka High Court
Sri Revanna vs Sri M R Parameswara on 6 December, 2018
Author: S.G.Pandit
Bench: S.G.Pandit
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER 2018
BEFORE
THE HON'BLE MR. JUSTICE S.G.PANDIT
WRIT PETITION NO.42077 OF 2015 (GM-CPC)
BETWEEN:
Sri. Revanna
S/o Biliyappa,
Aged about 60 years,
R/at Y.T.Road,
Turuvekere. ... Petitioner
(By Sri.R.Hemanth Raj, Advocate)
AND:
1. Sri. M.R.Parameswara
S/o Ramaiah,
Aged about 60 years.
2. Smt. Bharathi,
W/o M.R.Parmeswara,
Aged about 50 years,
Both are r/at Vidhynagara,
5th Ward, 4th Cross,
Turuvekere Town,
Tumkur District - 560 034. ... Respondents
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(By Sri.S.G.Hegde, Advocate)
Smt. Anitha N, HCGP to assist the Court;
vide order dated 06/08/2018 in
W.P.No.42079/2015)
This Writ Petition is filed under Article 227 of the
Constitution of India praying to set aside/quash the
order dated 28.07.2015 passed in O.S.No.22/2010 by
the Civil Judge & JMFC, Turuvekere produced vide
Annexure-G in the writ petition and etc.,
This Writ Petition coming on for Orders this day,
the Court made the following:
ORDER
The petitioner is before this Court under Article 227 of the Constitution of India assailing the order dated 28.07.2015 passed in O.S.No.22/2010 on the file of Civil Judge and JMFC., Turuvekere, Tumkuru District.
2. The petitioner is plaintiff and respondents are defendants in O.S.No.22/2010 filed for judgment and decree for declaration of plaintiff's title to encroached portion 60 x 22 feet in the suit schedule land and mandatory injunction. After completion of 3 evidence of both the parties, the plaintiff had filed an application under Order 26 Rule 9 of CPC for appointment of P.W.D. Engineer as Court Commissioner to make local investigation to measure the site of the defendant and to note the encroachment made on the schedule property. The said application came to be allowed by order dated 28.07.2015. The trial Court had appointed Taluk Surveyor as Court Commissioner for local inspection and directed the parties to submit memo of instructions. Accordingly, the parties filed their memo of instructions. On receipt of the Commissioner warrant, the Surveyor attached to Turuvekere Rural issued notice dated 10.04.2015 to the plaintiff as well as the respondents, copy of notice issued to the plaintiffs and defendants is produced as Annexure-R3 to the application filed by the respondents herein. The notice on the top indicates that it is from the Taluka Bhoomapaka Kacheri. The Commissioner Surveyor conducted the spot inspection on 22.04.2015 4 and submitted report alongwith sketch to the Court. On submission of the Commissioner report along with the sketch, the plaintiff submitted his objection and contended that the Commissioner report is liable to be rejected. Even though Taluka Surveyor is appointed as Court Commissioner, he has delegated his power to Taluka Bhoomapaka. On the other hand, the defendants submitted no objection to the Commissioner report. The trial Court by its order dated 28.07.2015, held that as the Commissioner's report cannot be rejected and cannot be made fresh appointment of Commissioner. The said order dated 28.07.2015 is impugned in these writ petitions.
3. Heard the learned counsel for the petitioner and the learned counsel for the respondents and perused the writ papers.
4. Learned counsel for the petitioner submits that his I.A.No.4 was allowed which was filed under 5 Order 26 Rule 9 of CPC and Taluka Surveyor was appointed as Court Commissioner. But the Taluka Surveyor has delegated his power to the Taluka Bhoomapaka or Surveyor which is impermissible. He submits that the Taluka Surveyor should not have delegated the work of inspecting the suit schedule property to the Taluka Bhoomapaka. He further submits that Taluka Surveyor is different from Surveyor, they are two different posts and has also produced an endorsement dated 03.07.2015 issued under RTI Act along with memo dated 21.08.2018 and submits that Taluka Surveyor is different from Bhoomapaka or Surveyor. Learned counsel relies upon the decision of this Court reported in ILR 2006 KAR 3588 (Shamanna Setty Vs. B.L.Channegowda) and contends that if a person is appointed as Court Commissioner he cannot delegate his function to any other person.
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5. Per contra, the learned counsel for the respondents submits that post of Surveyors and Taluka Surveyors are one and the same, there is no difference between Surveyors and Taluka Surveyors. Surveyors are posted to taluka office or hobli office, where as their functions are that of Surveyors. Learned counsel draws my attention to Annexure-R3, wherein the survey notice is issued by the Surveyor attached to taluka office of Turuvekere Rural, Tumkuru district. He also draws my attention to Mahazar drawn on the spot where the petitioner-plaintiff has also affixed the signature. Petitioner-plaintiff had no objection for the Surveyor to conduct survey and to submit answer to memo of instruction as per the Mahazar. Therefore, he contends that the petitioner-plaintiff is estopped from contending that the Surveyor is not empowered to submit the report as directed by the Court.
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6. The suit is filed for declaration of plaintiff's title and mandatory injunction. After completion of evidence of both the parties, the petitioner-plaintiff had filed an application under Order 26 Rule 9 of CPC i.e., for appointment of PWD Engineer as Court Commissioner to make local investigation. The trial Court, by its order dated 28.07.2015, allowed the application and appointed Taluka Surveyor as Court Commissioner for local inspection. On issuance of Commissioner warrant, the Surveyor attached to Taluka Survey office, Turuvekere Rural, one Sri.K.C.Lingaraju issued notice dated 10.04.2015 to both plaintiff and defendants. The Surveyor visited the spot on 22.04.2015 and has drawn Mahazar which is signed by both the plaintiff and defendants and in that, it is recorded that the parties have no objection for the Commissioner to carry out his work as per memo of instructions and to submit report. Once having received the notice, they participated in the proceedings without 8 any demur and even without any objection signed the mahazar. Now the petitioner-plaintiff cannot turn around and challenge the report submitted by the Surveyor. Further it is seen that the petitioner - plaintiff had not objected to the survey by surveyor when he received the survey notice and at the time of spot inspection he affixed the signature to the Mahazar without any objection. But only when he came to know that the Commissioner report is adverse to the petitioner-plaintiff, he choose to file objection to reject the Commissioner report on the ground that the Commissioner has delegated his function to the Surveyor. Having participated in the proceedings of survey by the Surveyor and having submitted no objection, it is not open for the petitioner to contend that he is not the proper person to conduct the survey and submit his report.
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7. Further the petitioner - plaintiff contended that the post of Taluka Surveyor and Surveyor are two different posts, therefore, when the Court appoints Taluka Surveyor for spot inspection and submission of report, the Surveyor could not have visited the spot and submitted his report. From the documents produced along with memo dated 21.08.2018 i.e., endorsement issued by the Tahsildhar, Turuvekere taluk, on an application made under RTI Act, indicates that Bhoomapaka i.e., Surveyor could be posted as Taluka Surveyor or as Hobli Surveyor. Therefore the contention of the petitioner-plaintiff that the post of Taluka Surveyor and Surveyor are two different posts is liable to be rejected.
8. Further, the learned counsel for the petitioner- plaintiff contended that the trial Court has not answered his contention that the Taluka Surveyor has delegated his power to Taluka Bhoomapaka. The trial Court is of the opinion that the Commissioner 10 report is only a piece of document and it is for the parties to prove their case and held that the report cannot be rejected. However, the contention of the petitioner-plaintiff is dealt with by this Court and answered as above. The decision cited by the petitioner would have no application to the facts of the present case, since there is no delegation in the case on hand. For the foregoing reasons, I am of the opinion that the petitioner-plaintiff has not made out any ground to interfere with the order passed by the trail Court under Article 227 of Constitution of India.
Accordingly, writ petition is rejected.
Sd/-
JUDGE KPS