Karnataka High Court
Narayan S/O Narsayya vs Sundar S/O Tippanna on 16 February, 2022
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 16TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE E.S.INDIRESH
WRIT PETITION NO.202356 OF 2021 (GM-CPC)
BETWEEN:
NARAYAN
S/O NARSAYYA
AGE. 73 YEARS,
OCC. AGRICULTURE,
R/O. VILLAGE BENAKANALLI,
TQ. AND DIST. BIDAR-585401.
...PETITIONER
(BY SRI SACHIN M. MAHAJAN ADVOCATE)
AND:
SUNDAR
S/O TIPPANNA
AGE. 53 YEARS, OCC. AGRICULTURE,
R/O. NAVADGERI,
NEAR METHODIST CHURCH,
BIDAR-585401.
... RESPONDENT
(BY SRI HARSHAVARDHAN P. MALIPATIL, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF CONSTITUTION OF INDIA PRAYING TO ISSUE AN
APPROPRIATE WRIT OR ORDER OR DIRECTION AND QUASH THE
ORDER DATED 6.11.2021 PASSED BY THE LEARNED PRINCIPAL
SENIOR CIVIL JUDGE AND CJM, BIDAR ON IA NO. 5, FILED
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UNDER ORDER XXVI RULE 9 CPC, AND CONSEQUENTLY ALLOW
IA NO. 5, BY ALLOWING THE WRIT PETITION.
THIS PETITION IS COMING FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
Though this petition is listed in preliminary hearing 'B' group, with the consent of the learned counsel appearing for the parties, the same is taken up for final disposal.
2. Petitioner is the plaintiff in Original Suit No.63 of 2018 on the file of the Principal Senior Civil Judge at Bidar. Suit is filed seeking relief of declaration of title in respect of the suit schedule property and consequential relief. The defendant/respondent entered appearance, filed written statement. The trial Court, after considering the material on record, by its order dated 06th November, 2021 rejected the application and being aggrieved by the same, plaintiff has presented this writ petition.
3. Sri Sachin M. Mahajan, learned counsel for the petitioner, contended that the relief sought for in the suit is declaratory in nature and both the parties have led evidence and 3 in order to ascertain the truth, the Trial Court ought to have allowed the application by appointing Court Commissioner to conduct survey and measurement.
4. On the other hand, Sri Harshavardhan P. Malipatil, learned counsel appearing for the respondent argued that the impugned order is just and proper and does not call for interference in this writ petition. He further contended that Order XXVI Rule 9 of Code of Civil Procedure, cannot be allowed for collection of evidence and accordingly, sought for dismissal of the writ petition.
5. Perusal of the writ petition would indicate that the relief sought for by the plaintiff is declaration with consequential relief of recovery of possession. The plaintiff has sought for fixation of boundary marks in the subject land and in that view of the matter, any amount of evidence cannot be substitute for appointment of Court commissioner to determine the actual measurement of the subject land and in that view of the matter, the finding recorded by the trial Court is contrary to scope and ambit of Order XXVI Rule 9 of the Code of Civil Procedure. 4 Accordingly, impugned order is set aside. IA.V filed by the plaintiff before the Trial Court is allowed. Resultantly, Writ Petition is allowed.
Sd/-
JUDGE lnn