Karnataka High Court
Smt Bharathi Suryakanth vs Smt Aluvelamma on 6 December, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
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NC: 2023:KHC:44096
WP No. 1093 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO.1093 OF 2022 (GM-CPC)
BETWEEN:
SMT. BHARATHI SURYAKANTH
W/O. C.S. SURYAKANTH RAO,
AGED ABOUT 58 YEARS,
R/AT NO.102, 7TH CROSS,
WILLIAMS TOWN EXTENSION,
BENSON TOWN,
BENGALURU-560046. ... PETITIONER
(BY SRI JANARDHANA REDDY B.J., ADVOCATE)
AND:
1. SMT. ALUVELAMMA
W/O. MUNIYAPPA
2. VIJAYALAKSHMI
Digitally signed D/O. MUNIYAPPA
by A K
CHANDRIKA
Location: High 3. RAMESH KUAMR
Court Of S/O. MUNIYAPPA
Karnataka
SRI NANDA KUMAR,
SINCE DEAD BY HIS LR's.
4. SMT. K.V. SATHYABAMA
W/O. LATE SRI NANDA KUMAR
AGED ABOUT 43 YEARS,
5. MAHENDRA .N
S/O. LATE SRI NANDA KUMAR
AGED ABOUT 27 YEARS,
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NC: 2023:KHC:44096
WP No. 1093 of 2022
6. MS. SHALINI .N
D/O. LATE SRI NANDA KUMAR,
AGED ABOUT 26 YEARS,
7. KUM POOJA .N
D/O. LATE SRI NANDA KUMAR
AGED ABOUT 17 YEARS
SINCE MINOR REPRESENTED
BY HER MOTHER AND NATURAL GUARDIAN
SMT. K.V. SATHYABAMA
8. MASTER DILIP .N
S/O. LATE SRI NANDA KUMAR
AGED ABOUT 17 YEARS,
SINCE MINOR REPRESENTED
BY HER MOTHER AND NATURAL GUARDIAN
SMT. K.V. SATHYABAMA.
9. SMT. SUMITHRA
D/O. MUNIYAPPA
10. SRI VINOD BABU
S/O. MUNIYAPPA
ALL ARE RESIDING AT NO.150,
3RD CROSS, NEAR BUS STOP,
COX TOWN, JEEVANAHALLI,
BENGALURU-560005.
11. BANGALORE MAHANAGARA PALIKE
NARASHIMAIAH RAJU SQUARE,
BANGALORE-560002
REP. BY ITS COMMISSIONER. ... RESPONDENTS
(BY SRI M.A. SIDDIQ, ADVOCATE FOR R-1 TO R-6)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH/SET-ASIDE THE IMPUGNED ORDER DATED 15.12.2021,
PASSED IN O.S.NO.10749/2006 ON I.A.NO.22, BY THE
HON'BLE XVI ADDITIONAL CITY CIVIL AND SESSION JUDGE,
(CCH-12) AT BENGALURU VIDE ANNEXURE-A.
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NC: 2023:KHC:44096
WP No. 1093 of 2022
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner/plaintiff in O.S.No.10749/2006 on the file of the XVI Additional City Civil and Sessions Judge (CCH-12), Bengaluru is before this Court challenging the order dated 15.12.2021 allowing I.A.No.22 filed by the defendant Nos.1 to 6 under Order XXVI Rule 9 of CPC for appointment of Commissioner.
2. Heard Sri. Janardhana Reddy B.J., learned counsel for the petitioner and Sri. M.A. Siddiq, learned counsel for respondent Nos.1 to 6 and perused the writ petition papers.
3. Learned counsel for the petitioner would submit that the suit of the petitioner/plaintiff is one for declaration of title and to direct respondent No.7 to effect the khata transfer in respect of the schedule property in the name of the plaintiff. Learned counsel would submit that after completion of evidence, respondent Nos.1 to 6 i.e., -4- NC: 2023:KHC:44096 WP No. 1093 of 2022 defendant Nos.1 to 6 filed an application under Order XXVI Rule 9 of CPC requesting to appoint Commissioner for local inspection of the schedule property and to take measurement of the total site area, total built up area and to submit the report. Learned counsel would submit that material on record would be sufficient to decide the dispute between the parties and the Trial Court in the said circumstances, committed an error in appointing the Commissioner. Learned counsel would contend that the suit of the petitioner/plaintiff is one for declaration of title and there is no dispute with regard to boundaries or measurements. In that circumstances, learned counsel would submit that the Trial Court ought not to have appointed the Commissioner. He submits that the respondents filed the present application only to protract the proceedings. Thus, learned counsel would pray for allowing the writ petition and to dismiss I.A.No.22.
4. Per contra, learned counsel for the respondents/defendant Nos.1 to 6 would support the order -5- NC: 2023:KHC:44096 WP No. 1093 of 2022 passed by the Trial Court. Learned counsel would submit that the petitioner/plaintiff has prayed for declaration to declare as owner of the suit schedule property measuring East to West 41 + 33/2 feet and North to South 60 + 50/2 feet. Learned counsel for the respondents would contend that the petitioner/plaintiff has sought for property more than she is entitled under the title deed. Learned counsel would invite attention of this Court to the sale deed of the petitioner/plaintiff's predecessor and submits that the petitioner is not entitled for the measurements as sought in the suit schedule. He further submits that the khata produced by the petitioner/plaintiff at Ex.P.11 shows different measurements, whereas the khata produced by the defendants at Ex.D.29 would show different measurements. In the said circumstances, he submits that the Trial Court is justified in appointing the Commissioner to measure the suit schedule property and calling for a report from the Commissioner. Thus, he prays for dismissal of the writ petition.
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5. Having heard the learned counsel for the parties and on perusal of the writ petition papers, I am of the view that the petitioner/plaintiff has not made out any ground to interfere with the impugned order, appointing the Commissioner. Moreover, the commissioner report if on measurement if submitted would not prejudice the case of the petitioner/plaintiff, moreover it would assist the Court in a proper adjudication of the dispute between the parties. In terms of Order 26 Rule 10 of CPC report of the Commissioner is only a piece of evidence, which shall form part of the record. It is for the Trial Court to appreciate the Commissioner report along with all other material evidence on record.
6. In the instant case, the suit is for declaration of title of the petitioner/plaintiff in respect of the suit schedule property. Since the khatas placed on record by both parties, i.e., plaintiff and defendants, would show different measurements, as well as the respondents/defendants contended that the property is -7- NC: 2023:KHC:44096 WP No. 1093 of 2022 bifurcated, the Trial Court felt fit to appoint the Commissioner and get the report. When the Trial Court, on appreciation of the material on record, has come to the conclusion to appoint a Commissioner and to get a report, there is no reason to interfere with the discretion exercised by the Trial Court. Accordingly, the writ petition stands rejected.
Sd/-
JUDGE MBM