Karnataka High Court
Shrikant S/O Shivappa Shiradon vs Sidram S/O Malingappa Bandi on 15 February, 2013
Author: N.Kumar
Bench: N.Kumar
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IN THE HIGH COURT OF KARNATAKA CIRCUIT
BENCH AT GULBARGA
DATED THIS THE 15TH DAY OF FEBRUARY, 2013
BEFORE
THE HON'BLE MR.JUSTICE N.KUMAR
WRIT PETITION No.83733/2011 (GM-CPC)
BETWEEN:
Shrikant
S/o Shivappa Shiradon
Age: 51 years
Occ: Advocate
R/o Shastri Nagar
Near Ibrahim Roza Road
Bijapur ...Petitioner
(By Sri D. P. Ambekar, Advocate)
AND:
Sidram
S/o Malingappa Bandi
Age 80 years
Occ: Agri
R/o Shikar Khana
Near Venkateshwar Temple
Bijapur ...Respondent
(By Sri Ameet Kumar Deshpande, Advocate)
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This Writ Petition is filed under Articles 226 and
227 of the Constitution of India praying to issue a
writ, order or direction in nature of certiorari by
quashing Annexure-H, viz., the impugned order dated
8-8-2011 passed by the II Additional Civil Judge
(Sr.Dn.) at Bijapur in OS No.95/2008, rejecting the
commission report and directing the ADLR to inspect
the suit property and submit report and further
direct the Court below to consider the commission
report as valid and legal.
This writ petition coming on for preliminary
hearing in 'B' Group, this day, the Court made the
following:
ORDER
This writ petition is filed challenging the order passed by the Trial Court rejecting the Survey report submitted by the Commissioner appointed by it and directed for re-survey by the ADLR.
2. The plaintiff has filed a suit for declaration and mandatory injunction. The defendant has contested the suit. Issues are framed. The dispute is regarding encroachment of the plaintiff-respondent's property. Therefore, the plaintiff filed an application 2
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3. Though an order was passed to appoint the ADLR to visit the property and submit a report, when it was found that the ADLR's office is abolished, the plaintiff suggested the name of the Commissioner, who is duly qualified to conduct the nature of work, for which a Commissioner was to be appointed. The plaintiff participated in the proceedings being present at the spot. If he has any grievance against the correctness of the report, he is at liberty to file objections and cross-examine the Commissioner and then seek to consider the report on merits. It is not for the Court to reject on the ground that he is not the person, who should have conducted the survey. The Trial Court has not completely considered the Commissioner's Report and is carried away by the said objection. Therefore, the Trial Court is not justified in setting-aside the report. 4
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4. The proper course is to permit the parties to file objections to the Survey Report and then permit the parties to cross-examine the Commissioner, who has submitted the report and if the Court is of the view that the Report cannot be accepted, then it can reject the same, but it cannot reject the report on the short ground that the survey is to be conducted by the ADLR. Hence, I pass the following order:
(a) Writ petition is allowed.
(b) The impugned order is set-aside. A second survey ordered by the Trial Court is hereby set-aside.
(c) It is made clear that the survey report submitted shall be taken on record.
(d) The parties shall be given an opportunity to file objections. Thereafter, they may be permitted to cross-examine the 5
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Commissioner and thereafter looking into the evidence on record and the objections filed on the Commissioner's report, the Trial Court shall decide whether the said report is to be rejected or not.
Ordered accordingly.
Sd/-
JUDGE SPS 6