Smt. Narayanamma vs Radhamma on 24 August, 2012

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Karnataka High Court

Smt. Narayanamma vs Radhamma on 24 August, 2012

Bench: Ravi Malimath

                         1




 IN THE HIGH COURT OF KARNATAKA, BANGALORE

          ON THE 24TH DAY OF AUGUST 2012

                     BEFORE

       THE HON'BLE MR.JUSTICE RAVI MALIMATH

        WRIT PETITION NO.26282/2012(GM-CPC)

BETWEEN:

1.     SMT.NARAYANAMMA,
       W/O DODDAMUNISHAMAPPA,
       AGED ABOUT 66 YEARS,

2.     MANJUNATH,
       S/O DODDAMUNISHAMAPPA,
       AGED ABOUT 32 YEARS,

       BOTH ARE RESIDING AT
       CHENNAHALLI,
       JALA HOBLI,
       BANGALORE.             ...   PETITIONERS

(BY SMT.S.K.NAGARATHNA, ADV.)

AND:

1.     RADHAMMA,
       W/O RAMACHANDRA,
       AGED ABOUT 36 YEARS,

2.     RAMACHANDRA,
       S/O CHIKKAMUNISHAMAPPA,
       AGED ABOUT 46 YEARS,

       BOTH ARE RESIDING AT
       CHANNAHALLI,
                          2




     JALA HOBLI,
     BANGALORE NORTH TALUK.
                                  ...RESPONDENTS

     THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO QUASH THE ORDER PASSED BY THE
COURT BELOW ON 13.07.2012 ON I.A. UNDER ORDER
26 RULE 9 READ WITH SEC.151 OF CPC IN
O.S.508/2007     VIDE       ANNEXURE-E      AND
CONSEQUENTLY ALLOW THE SAME.

    THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING THIS DAY, THE COURT
PASSED THE FOLLOWING:

                      ORDER

The plaintiffs/petitioners filed a suit in the year 2007 to direct the defendants to remove the construction illegally made towards the southern side of the suit schedule property by encroaching over 5 feet on plaintiffs' property by granting an order of Mandatory injunction. In the year 2012, the plaintiffs made an application under Order XXVI Rule 9 read with Section 151 of CPC to appoint a Court Commissioner to measure the property of the defendant to find out the encroachment made by 3 the defendants on the plaintiffs' property and by the impugned order dated 13.7.2012, the application of the plaintiffs was rejected by the Trial Court. Hence, the present Writ Petition.

2. The learned counsel for the petitioners contend that the property of the defendants' is required to be measured by the Court Commissioner to find out the encroachment.

3. On hearing the learned counsel for the petitioners and on examining the impugned order, I find that there is no error committed by the trial court which calls for interference. The prayer sought for in the affidavit filed in support of the application, clearly narrates that they have sought for measurement of the defendants' property and not the property of the plaintiffs. If the plaintiffs have sought for measurement of the property of the plaintiffs, the court would have necessarily 4 considered the application. Hence, I'am unable to accept the submissions of the petitioners' counsel, since what is stated in the application is a consequence to the defendants' plea. What is to be considered is the affidavit. Under the circumstances, I do not find any good ground to interfere with the impugned order.

For the aforesaid reasons, the Writ Petition being devoid of merits is dismissed.

Sd/-

JUDGE PL

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