Karnataka High Court
Dakshin Bharat Jain Sabhe vs Shri. Brahmadev Shri.Adinathdev on 2 December, 2022
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 103652 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 2ND DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 103652 OF 2016 (GM-CPC)
BETWEEN:
DAKSHIN BHARAT JAIN SABHE
SHREE KSHETRA COMMITTEE, ATIKSHAYA KSHETRA
STAVANDI, TQ: CHIKODI, DIST BELAGAVI,
REPRESENTED BY ITS CHAIRMAN
SRI. JINAGONDA RAYAGOUDA PATIL
S/O RAYAGOUDA PATIL,
AGE: 70 YEARS, OCC: AGRICULTURE, R/O: HEBBAL,
TQ: HUKKERI, DIST: BELAGAVI
...PETITIONER
(BY SRI K. L. PATIL AND
SRI NEELENDRA GUNDE, ADVOCATES)
AND:
1. SHRI. BRAHMADEV
SHRI.ADINATHDEV
SHRI. PARASHWANATHDEV,
SHRI.SHANTINATHDEV CLAIMING
TO BE PUBLIC TRUST
Digitally
signed by
AT: STAVANDHI-GAVAN VILLAGE,
SUJATA
SUBHASH
DIST: BELAGAVI.
PAMMAR
2. SHRIKANT DHARANAPPA UPADHYE
S/O DHARANAPPA UPADHYE,
AGE: 81 YEARS, OCC: PRIEST AND TRUSTEE,
R/O: NEAR VENKATESH MANDIR,
GANDHI CHOWK, NIPANNI,
TQ: CHIKODI, DIST: BELAGAVI.
3. VARDHAMAN PARIS UPADHYE
S/O PARIS UPADHYE
AGE: 87 YEARS, OCC: PRIEST AND TRUSTEE,
R/O: NEAR PADMAVATI MANDIR, GAVAN,
TQ: CHIKODI, DIST: BELAGAVI.
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WP No. 103652 of 2016
4. SHRIDHAR UPADHYE S/O PARIS UPADHYE
AGE: 81 YEARS OCC: PRIEST AND TRUSTEE,
R/O: PATTANKUDI,
TQ: CHIKODI, DIST: BELAGAVI.
5. RAJENDRA ANNAPPA UPADHYE
S/O ANNAPPA UPADHYE
AGE:52 YEARS OCC: PRIEST
R/O: GAVHAN, TQ: CHIKODI,
DIST: BELAGAVI.
6. BAHUBALI ANNAPPA UPADHYE
S/O ANNAPPA UPADHYE
AGE:45YEARS OCC: PRIEST
R/O: GAVHAN, TQ: CHIKODI,
DIST: BELAGAVI.
7. SURESH UPADHYE S/O SHRIKANT UPADHYE
AGE:52 YEARS OCC: PRIEST
R/O: DIWANJI GALLI, NIPANNI,
TQ: CHIKODI, DIST: BELAGAVI.
8. SHRI. ACHARAYA DESHABHUSHAN VIDYAPEETH
STAVANDHI, TQ: CHIKODI, DIST BELAGAVI,
BY ITS SECRETARY
SHRI. RAJENDRA MANOHAR AWATI,
AGE:51 YEARS OCC: AGRICULTURE
R/O: NIPANNI, TQ: CHIKODI,
DIST: BELAGAVI.
...RESPONDENTS
(BY SRI S. C. HIREMATH AND K. H. BAGI,
ADVOCATE FOR R3 TO R7
NOTICE TO R1 AND R8 DISPENSED WITH
R1 - SERVED)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO: QUASH THE ORDER
DATED:11.04.2016 IN OS.NO.15/2007 ON IA.NO.33 PASSED BY THE
LEARNED CIVIL JUDGE (JR.DN.) NIPANNI, AS PER ANNEXURE-H
THEREBY REJECTING THE INTERIM APPLICATION NO.33 FILED BY
THE PETITIONER HEREIN.
THIS PETITION COMING ON FOR PRELIMINARY HEARING B-
GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 103652 of 2016
ORDER
1. The petitioner is before this court seeking for following reliefs:
a) Issue a Writ, order or direction in the nature of certiorari, quashing the Order dated 11.04.2016 in O.S.No.15/2017 on I.A.No.33 passed by learned Civil Judge (Jr.Dvn)-Nipanni, as pr Annexure-H thereby rejecting the Interim Application no.33 filed by the petitioner herein &
b) Pass such other order/orders as this Hon'ble Court deems fit, in the facts and circumstances of the case, including an order as to costs, in the interest of justice and equity.
2. O.S.No.15/2007 had been filed seeking for the following reliefs:
a) It be declared that the Plaintiffs No.1A to 1G are the Trustees of the Plaintiff No.1 lawful administering the Trust and hereditary pooja rights from time immemorial to the plaintiff No.1.
b) The Defendants No.1 and 2 be restrained by permanent injunction not to obstruct the Plaintiffs' peaceful possession and enjoyment of the Trust administration and the building situated in R.S.No.40/3 and 66/1A and hereditary pooja rights of Plaintiffs No.1A to 1G of plaintiff No.1 four deities from the time immemorial.
c) The possession be awarded from the Defendants No.1 and 2 of the demolished building in Sy.
No.40/3 at figure 3 to 8 as it is prior demolishen of the building and the possession be awarded of -4- WP No. 103652 of 2016 the building in front of figure 17, 18, 19 in Sy. No.66/1A of Taundi village.
d) Possession be awarded the area situated in y.
No.66/1A described figure 28 and 19 which has been illegally occupied by the Defendant No.1 on 13.09.2006.
e) Any other equitable reliefs deems fit to the Hon'ble Court also be granted to the Plaintiffs.
f) Permission to amend the plaint if and when necessary be given to the Plaintiffs.
g) Cost of the suit be awarded to the Plaintiffs."
3. Before commencement of evidence, an application had been filed by defendant No.5 seeking for local inspection by the Court in terms of Order 18 of the Code of Civil Procedure. The said application came to be opposed by the plaintiff on the ground that for the purpose of local inspection a commissioner could have been appointed and there is no need for the Court to inspect the premises. The said application came to be rejected by an order dated 12.01.2015.
4. Subsequently, additional issue was framed and evidence was led. Thereafter, an application in I.A.No.33 came to be filed under order 26 Rule 9 R/w Section 151 of Civil Procedure Code where it was contended that the alleged -5- WP No. 103652 of 2016 building claimed by the plaintiff were not at all in existence and were not within the premises of the temple as claimed by the plaintiff. There are no residential premises at all in the said premises. Hence, the question of defendant demolishing the same and dispossessing the plaintiff would not arise. In that back ground a commissioner was requested to be appointed to ascertain the truth of the matter and submit his report. The said application came to be opposed by the plaintiff on the ground that there was no dispute as regard the survey number, area of the suit property and residential quarters in the said area and any other issue would have to be determined on the basis of the evidence led by the parties.
5. The said application came to be dismissed by the Trial Court by the impugned order dated 11.04.2016 holding that the Court could determine the issues and dispute on the base of the evidence already led. It is aggrieved by the same the petitioner is before this Court.
6. Sri K. L. Patil, learned counsel for the petitioner-
defendant in the suit would submits that the very -6- WP No. 103652 of 2016 objection filed by the respondent is improper inasmuch as there is a dispute as regards existence or otherwise of residential quarters in these lands though the suit survey number is not in dispute. It submitted that an allegation being made in the plaint at para No.11 that the defendant 1 and 2 with the active assistance of police officials and henchman have removed the building constructed by the plaintiffs, it is necessary to ascertain if at all any building was constructed and later demolished. The burden of proving this being upon the plaintiff.
7. He therefore submits that, on an earlier occasion when I.A.No.30 has been filed , which came to be opposed by the plaintiff contending that the Court commissioner could be appointed, an application filed for appointment of Court Commissioner cannot be objected to by the plaintiff as sought to be done.
8. Per Contra Sri S. C. Hiremath, learned counsel appearing for the respondent Nos.3 to 7 submits that under the guise of ascertaining existence or otherwise of the building what the plaintiff-defendants are seeking for is a -7- WP No. 103652 of 2016 report on the possession of the property which is not permissible.
9. The dispute relating to hereditary rights of pooja etc., is to be determined by the Trial Court after the trial on the basis of the evidence which is placed on record. The defendant cannot seek to collect the evidence by way of appointment of Commissioner to ascertain who is in possession of the property. He submits that the defendant by filing application after applications in delaying the proceedings in the matter. This can be seen from the number of applications which have been filed, the present application being numbered as I.A. No.33.
10. In this regard, on relying upon the decision this Court in WP No.45681/2013 (GM-CPC) dated 08.01.2014.
11. Heard, Sri K. L. Patil, learned counsel for the petitioner and Sri S. C. Hiremath, learned counsel for the respondents and perused prayer.
12. The wording of I.A.No.33 is important, the prayer sought for a commissioner to be appointed for local investigation of the suit property for the purpose of elucidating the -8- WP No. 103652 of 2016 matter in dispute between the parties and report on the same along with the hand sketch. In the affidavit in support of the application, it is stated that there is a contradiction in the plaint and the evidence which is led more so in the cross-examination and the hand sketch which is submitted along with the plaint being in dispute.
13. On a pointed question being asked, Sri K. L. Patil, learned counsel submits that there are no residential building which are in occupation of defendant Nos.1 and 2. This issue has been raised only by the plaintiff in the plaint on which basis additional issue has been framed and therefore there is a requirement for a local commissioner to be appointed to ascertain the existence or otherwise of the building.
14. As observed above, the application by itself is not very clear. The purpose of appointment of the Commissioner becomes clear only on reading of the affidavit in support thereof the submissions being now made by Sri K. L. Patil, learned counsel for the petitioner. -9- WP No. 103652 of 2016
15. From the said submissions, it is also clear that the commissioner is not sought to be appointed to ascertain the possession of either the plaintiff or the defendants but only to ascertain whether there has been any construction which has been carried out or not in Sy. No.40/3 and 60/1A. In that view of the matter, I am of the considered opinion that the Trial Court erred in coming to an conclusion that the commissioner cannot be appointed for the purpose of collecting evidence on the ground that the appointment of commissioner is to collect evidence. The ascertainment of construction of building and demolishing thereof would not in the present case amount to collection of evidence. As such I pass the following:
ORDER
a) The writ petition is allowed.
b) The order dated 11.04.2016 passed by the Civil Judge (Jr.Dn.) Nippani in OS No.15/2007 on I.A.No.33 is set aside. Consequently, I.A.No.33 is allowed. The Deputy Director of Land Records is appointed as a Court Commissioner to inspect the property in Sy. No.40/3 of Gavan Village, 66/1A of Taundi Village, Chikkodi Taluka to prepare a hand sketch and report on the
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existence of the building apart from the temple if there are any residential buildings.
c) It is made clear that the DDLR shall not report on the actual possession or otherwise any portion of the aforesaid properties for any construction put on thereof. The said fact to be ascertained and determined by the Trial Court in terms of the evidence led.
d) Since the present order has been passed in the presence of both the parties the DDLR shall visit the premises on 10.12.2022 at 10.30 am without requirement of any further notice. Both the parties are permitted to participate in the proceedings of commissioner. If any of the parties do not participate in the said proceedings of the commissioner, they shall not be entitled to derive any benefit there from.
e) The Additional Registrar (Judicial) is directed to issue necessary commissioner warrant in this regard.
f) The commissioner shall take necessary photograph and videograph. The cost of the same to be borne by both the parties equally for now both the petitioner and respondents are directed to deposit Rs.5,000/- each before the Additional Registrar (Judicial), which shall be disbursed to the DDLR.
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WP No. 103652 of 2016
g) Report to be submitted to the Trial Court on or before 16.12.2022.
h) Copy of this order to be furnished to both the parties.
i) The suit is now listed for final argument, the Trial Court is directed to dispose of the matter as expeditiously as possible at any rate within a period of three months from the date of receipt of this order copy.
Sd/-
JUDGE SSP List No.: 1 Sl No.: 9