Karnataka High Court
Putalabai And Anr vs Honnappa And Ors on 9 October, 2020
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 9TH DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE E.S.INDIRESH
WRIT PETITION No.226456/2020 (GM-CPC)
Between:
1. Putalabai W/o Ramachandra Naikodi
Aged about 57 years, Occ: Agriculture
R/o Hanchinal (SN) village
Tq. Jewargi, Dist. Kalaburagi
2. Sangappa S/o Late Ningappa Naikodi
Aged about 57 years, Occ: Agriculture
R/o Hanchinal (SN) village
Tq. Jewargi, Dist. Kalaburagi
... Petitioners
(By Smt. Chandrakala, Advocate)
And:
1. Honnappa S/o Late Ningappa Naikodi
Aged about 72 years, Occ: Agriculture
R/o Hanchinal (SN) village
Tq. Jewargi, Dist. Kalaburagi
2. Dharmanna S/o Honnappa Naikodi
Aged about 52 years, Occ: Agriculture
R/o Hanchinal (SN) village
Tq. Jewargi, Dist. Kalaburagi
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3. Mahanthappa S/o Honnappa Naikodi
Aged about 48 years, Occ: Agriculture
R/o Hanchinal (SN) village
Tq. Jewargi, Dist. Kalaburagi
4. Nehru S/o Honnappa Naikodi
Aged about 58 years, Occ: Agriculture
R/o Hanchinal (SN) village
Tq. Jewargi, Dist. Kalaburagi
5. Sharanayya S/o Irayya Hiremath
Aged about 62 years, Occ: Agriculture
R/o Hanchinal (SN) village
Tq. Jewargi, Dist. Kalaburagi
6. Kallappa S/o Chandram Yatnal
Aged about 47 years, Occ: Agriculture
R/o Hanchinal (SN) village
Tq. Jewargi, Dist. Kalaburagi
... Respondents
This Writ Petition is filed under Article 227 of the
Constitution of India, praying to quash the impugned order
dated 25.09.2020 passed by the Senior Civil Judge and
JMFC at Jewargi, in O.S.No.46/2018 on I.A.No.IX vide
Annexure-F and allow the I.A.No.IX filed by the
petitioners.
This petition coming on for Preliminary Hearing, this
day, the Court made the following:-
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ORDER
Though this writ petition is listed for Preliminary Hearing, by consent of the parties, it is taken up for final disposal.
2. The petitioners herein are defendant Nos.1 and 2 in O.S.No.46/2018 on the file of Senior Civil Judge and Judicial Magistrate of First Class at Jewargi.
3. The factual matrix of the case are that, the petitioners herein have made an application in I.A.No.IX under Order XXVI Rule 9 r/w Section 151 of the Code of Civil Procedure, seeking appointment of ADLR (Assistant Director of Land Records) as Court commissioner to make local investigation of suit land and land belonging to the defendants and to submit report with regard to the physical features and to locate the bund and nala. The plaintiffs have filed objections to the said application. The trial Court, after hearing the parties and considering the merits of the application made by the petitioners herein/defendants, has rejected the application by order 4 dated 25.09.2020 vide Annexure-F. Being aggrieved by the same, the present writ petition is filed.
4. Smt. Chandrakala, learned counsel appearing for the petitioners submitted that the trial Court has committed grave error in rejecting the application made by the defendants. She submitted that the defendants have contended before the trial Court that the plaintiffs are not the owners to an extent of 26 acre 24 guntas but actually they are in possession of only 18 acre 26 guntas of the land. In order to ascertain the same, it is relevant to issue commission warrant to the ADLR to file report to decide the suit in accordance with law.
5. Perusal of the writ papers would indicate that the respondents/plaintiffs have filed a suit for declaration and consequential relief of permanent injunction relating to land bearing Sy.No.97 measuring 26 acre 24 guntas of Ankalagi village of Jewargi Taluk. The plaintiffs have averred in the plaint that they are in possession and they are cultivating the suit land and the revenue entries are 5 standing in their names. The petitioners/defendants have filed written statement denying the plaint averments. Perusal of the impugned order would indicate that the trial Court has framed issues based on the pleadings putforth by the parties. The evidence of both the parties has already been concluded and after hearing the arguments of the plaintiffs, the trial Court posted the case for hearing the final arguments of the defendants. At that stage, the defendants/petitioners have filed I.A.No.IX for issue of commission by appointing ADLR for local investigation of the land of the plaintiffs and defendants and to submit report as to the physical features and for locating the nala and bund stating that the report will elucidate matter.
6. I have carefully gone through the reasons assigned by the trial Court at paragraphs-10 and 11 while rejecting I.A.No.IX filed by the petitioners/defendant Nos.1 and 2 in the impugned order. The trial Court dismissed the application by a well reasoned order which does not call for any interference in this writ petition. It is the 6 settled principle of law that the application in I.A.No.IX made by the petitioners/defendants seeking issuance of commission is not warranted under law as the defendant Nos.1 and 2 are trying to get report from the Court Commissioner pertaining to the portion of the property. In that view of the matter, I do not find any merit in the contentions raised by the petitioners/defendants.
7. It is needless to say that the suit is set down for hearing the final arguments of the defendants on merits. The application in question is filed at the belated stage which cannot be considered at this stage. In an identical circumstance, this Court in the case of B.N.Chandrasekhar vs. M.Krishnappa reported in 2016 (2) AKR 723 has dismissed the application and has observed at paragraph-8 of the judgment as under:
"8. A perusal of the grounds urged in the writ petition and the impugned order passed by the trial Court, so also perusal of the pleadings of the parties, plaint, written statement and also the application filed for 7 appointment of Court Commissioner. The plaintiff filed the suit seeking permanent injunction as against the writ petitioner/defendant. After filing the suit, the defendant entered appearance in the suit and filed his written statement. Thereafter the defendant has made similar application under Order 26, Rule 9 of CPC requesting the Court to appoint a Court Commissioner. But the said application on contest by other side, came to be rejected. Subsequently, in the suit, the Court has proceeded to record the evidence of both the parties and after concluding the evidence, the matter was posted for hearing arguments. As submitted by the learned counsel appearing for the respondent/plaintiff, arguments of the plaintiff's side was over and when the matter was posted for hearing the arguments of the defendant, the defendant has come up with the present application. These facts are not disputed".
8. In view of the above ruling of this Court, the impugned order passed by the trial Court is just and proper and requires no interference in this writ petition. 8
9. However, it is made clear that rejection of the writ petition does not disentitle the petitioners herein from urging the said grounds in the appeal in the event the suit is decreed by the trial Court.
With these observations, the writ petition is disposed of.
Sd/-
JUDGE NB*