Karnataka High Court
Bhaskar Ganapati Hegde vs Smt. Savitri W/O Nagapati Bhat on 13 February, 2014
Author: B.Sreenivase Gowda
Bench: B.Sreenivase Gowda
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 13TH DAY OF FEBRUARY, 2014
BEFORE
THE HON'BLE MR.JUSTICE B.SREENIVASE GOWDA
C.R.P.No.1112 OF 2013
Between:
Bhaskar Ganapati Hegde
Bheemanahalli,
Aged 57 yrs.,
Occ: Agriculturist,
R/o. Malagimane,
Alavada village,
Tq. Yallapur,
Dist. Uttara Kannada.
... PETITIONER
(By Sri.Mahesh Wodeyar, ADVOCATE.)
AND
1. Smt. Savitri,
W/o. Nagapati Bhat,
Aged about 66 yrs,,
Occ: Agriculturist,
2. Sri. Satyanarayana,
S/o. Nagapati Bhat,
Aged about 41 yrs.,
Occ: Agriculturist,
2
Both are R/o. Malagimane,
Alavada village,
Tq. Yallapur,
Dist. Uttara Kannada.
3. Gajanana Subraya Hegde,
Aged about 67 yrs.,
Occ: Agriculturist,
R/o. Alavada village,
Tq. Yallapur,
Dist. Uttara Kannada.
... RESPONDENTS
THIS CRP IS FILED UNDER SEC. 115 OF CPC PRAYING
TO SET ASIDE THE ORDER DT. 21-9-13 PASSED BY THE
LEARNED SENIOR CIVIL JUDGE AND PRL. JMFC, YELLAPUR
IN E.P.NO.249/2011 AND CONSEQUENTLY DISMISS THE
EXECUTION PETITION NO.249/2011.
THIS C.R.P. COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING :
ORDER
Petitioner has preferred this Civil Revision Petition seeking to set aside the order dt. 21-9-13 passed by the learned Senior Civil Judge and Principal JMFC, Yellapur, in E.P.No.249/2011 whereby it has directed the ADLR/Tahsildar, Yellapur to carry out pot-hissa and survey sub-division of the suit properties as per the decree 3 passed in O.S.No.179/2006 and original report and sketch of the Tahsildar and ordered to close the E.P.
2. Learned Counsel for the petitioner submits, the Executing Court instead of directing the Revenue Department to carry out the survey sub-division and pot- hissa work as per the decree passed in O.S.No.179/2006, has committed an error in directing the ADLR/Tahsildar to do the said work. Therefore, he prays for allowing the petition by setting aside the impugned order.
3. The petitioner filed a suit in O.S.No.179/2006 against the defendants for the relief of declaration and perpetual injunction. The suit came to be decreed on 28- 08-2010 as under :
"Suit of the plaintiff is hereby decreed declaring that the plaintiff is the absolute owner and in possession of the suit properties and has got right, title and interest over the same.4
In the alternative, the defendants, their agents, their servants, their family members or any persons on their behalf are hereby restrained from interfering with the peaceful possession and enjoyment of the suit properties by way of permanent injunction.
In the alternative, both the parties to the suit should get fixed the boundaries of their respective lands through ADLR Yellapur by effecting survey and pot-hissa or sub-division of the suit properties as per the ROR, sale deeds and hand sketch produced along with the written statement.
The said hand sketch annexed with the written statement filed by the defendant No.1 is to be considered by the Surveyor for knowing the location, direction and situation of both the properties and has to survey the suit lands as per the extents/measurements shown in the ROR and the sale deeds of each of the parties "5
4. The defendants 1(a) and 1(b) filed an execution petition in E.P.No.249/2011 against the plaintiff and defendant No.2 praying the Executing Court to direct the ADLR to effect sub-division strictly as per the decree passed in O.S.No.179/2006.
5. The Executing Court after hearing the parties has passed the impugned order which reads as under :
"This Execution Petition is filed to execute decree of O.S.No.179/06. The said suit for declaration of title with permanent injunction came to be decreed with direction to parties to get pot hissa done to their respective lands by fixing survey boundary lines and boundary stones and also survey sub-division work through ADLR Yellapur as per the extent shown in ROR and sale deeds and also as per the location and direction of the lands shown in the hand sketch filed with written statement. It appears as per direction of this Court, ADLR - Tahsildar filed report and sketch. Jdr. has filed his objection to report and sketch of Tahasildar.6
It is relevant to note that this work to carry out pot-hissa and survey sub-division work by fixing survey boundary lines and boundary stones is purely within the purview of survey department. Civil Court has no jurisdiction to do it. Court cannot carry out this work and cannot prepare survey pot hissa sketch and it cannot send such prepared sketch to the survey department with direction to maintain and treat it as pakka sketch. This execution petition is filed with request to direct ADLR to effect sub-division work strictly as per decree of O.S.No.179/06. There is nothing in this petition for this court to do except to issue direction to ADLR. Hence, I proceed to pass order.
ADLR Tahasildar, Yellapur is directed to carry out survey sub-division and pot hissa work as per decree of O.S.No.179/06 within six months as per law after giving notice and opportunities to both parties and after hearing them as required under law. Issue direction accordingly."7
6. I have carefully gone through the impugned order. The impugned order passed by the Executing Court is strictly in accordance with the decree passed in O.S.No.179/2006. It is needless to say that the Executing Court cannot traverse beyond the scope of the decree. Therefore, there is no merit in the contention of the learned Counsel for the petitioner that the Executing Court should have directed the Revenue Department instead of ADLR to carry out survey sub-division and pot- hissa as per the decree.
7. Accordingly, revision petition is dismissed as devoid of merits.
No order as to costs.
SD/-
JUDGE Mgn/-