Karnataka High Court
Sri K Nagaraja vs Sri Anand Kumar on 2 January, 2017
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
-: 1 :-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
WRIT PETITION No.50815/2016 (GM-CPC)
BETWEEN:
SRI. K. NAGARAJA
S/O LATE KENCHAPPA,
AGED ABOUT 46 YEARS,
R/AT 164, 164, 1ST MAIN,
2ND CROSS, MALLATHALLI,
BANGALORE - 560 156. ... PETITIONER
(BY SRI: M. SHIVAPRAKASH, ADVOCATE)
AND:
SRI. ANAND KUMAR
S/O LATE KENCHAPPA,
AGED ABOUT 51 YEARS,
R/AT 9, 8TH CROSS,
9TH MAIN, SAMPANGIRAMANAGAR,
BANGALORE - 560 156. ... RESPONDENT
(BY SRI: R.B. SADASHIVAPPA, ADVOCATE)
*****
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
ENTIRE RECORDS IN O.S.4401/2013 ON THE FILE OF XX ACC
AND SJ AT BANGALORE; QUASH THE IMPUGNED ORDER
PASSED ON I.A.11 IN O.S.4401/2013 ON THE FILE OF XX ACC
AND SJ AT BANGALORE DATED 26.08.2016 AT ANNEX-J AND
CONSEQUENTLY BY ALLOWING APPLICATION U/O 16 RULE 1
R/W SEC. 151 OF CPC FOR ISSUING OF SUMMONS TO THE
WITNESS AND ETC.
-: 2 :-
THIS PETITION COMING ON FOR PRELIMINARY
HEARING - B GROUP THIS DAY, COURT MADE THE FOLLOWING:
ORDER
This writ petition has been listed for preliminary hearing in 'B' group as the respondent has filed *I.A.No.I for vacating the stay granted by this court on 27/10/2016 and thereafter extended on different dates.
2. The defendant in O.S.No.4401/2013, has preferred this writ petition assailing order dated 26/08/2016, passed on I.A.No.11. That application has been filed under Order XVI Rule 1 read with Section 151 of the Code of Civil Procedure Code, 1908 (CPC), seeking issuance of witness summons to the Special Land Acquisition Officer, Vishveshwaraiah Centre, III Floor, Podium Block, Bengaluru. By the impugned order the application has been rejected.
3. Briefly stated, the facts are that respondent is the plaintiff, who has filed the suit seeking a decree of permanent injunction against the petitioner herein, who is the defendant in the said suit. Along with the plaint, an *Corrected V.C.O. dated 12.01.2017 -: 3 :- application under Order XXXIX Rules 1 and 2 of the CPC was filed by the respondent seeking an order of temporary injunction against the defendant. The trial court declined to grant an order of temporary injunction, against which MFA.No.4293/2014 was filed before this court. During the pendency of the said appeal, an order was passed by this court on 17/09/2014, by which, the Assistant Director of Land Records (ADLR) was appointed as the Court Commissioner to inspect and identify Sy.No.2 with reference to various aspects of the said survey number and to submit a report. A copy of that order is produced along with the application filed for vacating the interim order granted by this court. The ADLR submitted his report before this court, on the basis of which, the appeal filed by the respondent/plaintiff was allowed restraining the defendant/petitioner herein from interfering with the suit schedule property. Thereafter, the report and sketch submitted by the ADLR were marked in evidence as Exs.P- 19 and P-20. After conclusion of evidence, the matter was at the stage of arguments. At that stage, I.A.No.11 was filed seeking witness summons to be issued to the Special Land Acquisition Officer to tender evidence with regard to -: 4 :- the identification of the acquired property. That application has been dismissed.
4. I have heard learned counsel for the petitioner and learned counsel for the respondent as well as perused the material on record.
5. It is noted that the suit is one for bare injunction, which has been filed by the plaintiff. The burden of establishing the entitlement to the relief of permanent injunction as against the defendant is on the plaintiff, whereas the defendant who is the petitioner herein submits that he has purchased site measuring 45 ft. east to west and 19 ft. north to south from the original owner and the respondent/plaintiff has purchased the suit schedule property from the allottee of NGEF House Building Co-operative Society Limited, which entity has acquired a certain portion of Sy.No.2 from the very same land owner. Therefore, the case of the respondent/plaintiff is that he is a purchaser from an allottee of the society and that the suit schedule site was acquired by the petitioner/defendant from the original owner and that his -: 5 :- site is in the left out portion of the land, which was not acquired by the said society.
6. Having regard to the aforesaid fact, it is noted that the respondent/plaintiff has to establish his case in order to seek the relief of permanent injunction as against the petitioner herein. While doing so, the respondent has got marked the Commissioner's report and sketch as Exs.P-19 and P-20. Placing reliance on the said documents, the trial court has concluded that the Court Commissioner has already submitted his report identifying the property and therefore, it is not necessary to once again issue summons to the Special Land Acquisition Officer to tender evidence in the matter. I am of the view that the trial court is justified in holding so for the simple reason that the burden of proof is on the respondent/plaintiff and that if the defendant has any objection to Exs.P-19 and P-20, he could raise such objection during the course of his submissions and could persuade the trial court not to place reliance on the said exhibits while adjudicating the matter. In that view of the matter, the trial court was justified in dismissing the application. Further, the said application was filed at the -: 6 :- fag end of the suit proceeding, at the stage of arguments to be made by the defendants I do not find any merit in the writ petition. The writ petition is hence dismissed.
7. In view of the dismissal of the writ petition, I.A.No.1/16 stands disposed of.
8. The interim order dated *27/10/2016, granted by this court stands vacated.
Sd/-
JUDGE S* *Corrected V.C.O. dated 12.01.2017