Sri.Chidanand S/O Nijappa Harijan And ... vs Shivaputra S/O Nagappa Kodate on 16 July, 2018

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Karnataka High Court

Sri.Chidanand S/O Nijappa Harijan And ... vs Shivaputra S/O Nagappa Kodate on 16 July, 2018

Bench: S.N.Satyanarayana

                               1




           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

         DATED THIS THE 16TH DAY OF JULY, 2018

                          BEFORE

       THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA

              W.P.No.204504/2016 (GM-CPC)

Between:

1. Sri Chidanand S/o Nijappa Harijan
   Aged about 55 years
   Occ: Agriculture

2. Ramappa S/o Nijappa Harijan
   Aged about 52 years
   Occ: Agriculture

3. Ramesh S/o Nijappa Harijan
   Aged about 47 years
   Occ: Agriculture

   All are R/o Dhulkhed
   Tq.Indi, Dist. Vijayapura
                                             ... Petitioners

(By Smt. Ratna N. Shivayogimath, Advocate)

And:

1. Shivaputra S/o Nagappa Kodate
   Aged about 47 years
   Occ: Agriculture
   R/o Dhulkhed
   Tq. Indi, Dist. Vijayapura

2. Davalappa S/o Nijappa Harijan
   Aged about 54 years
                                  2




   Occ: Agriculture
   R/o Dhulkhed, Tq.Indi
   Dist. Vijayapura
                                             ... Respondents

(By Sri D.P.Ambekar, Advocate for R1)

      This Writ Petition is filed under Articles 226 and 227
of the Constitution of India praying to issue a writ or order,
writ in the nature of certiorari quashing the impugned order
dated 03.08.2016 passed by the learned Senior Civil Judge,
Indi in R.A.No.1/2011 vide Annexure-G and all further
proceedings in R.A.No.1/2011 on the file of the learned
Senior Civil Judge, Indi, etc.

      This petition is coming on for Orders this day, the
Court made the following:-

                             ORDER

The defendant Nos.1, 3 and 4 are appellant Nos.1, 3 and 4 in R.A.No.1/2011 on the file of the Senior Civil Judge, Indi, have come up in this writ petition impugning order dated 03.08.2016 passed in the said appeal.

2. Brief facts leading to this writ petition are as under:

The suit in O.S.No.250/2003 was filed by the 1st respondent-Shivaputra for the relief of declaration and possession in respect of land bearing Sy.No.20/4 measuring 1 acre of Dhulkhed village, taluka Indi, district Vijayapur. The said suit came to be decreed by judgment and decree dated 31.01.2011.

3. The defendant Nos.1 to 4 in the said proceedings preferred an appeal against the aforesaid judgment and decree in R.A.No.1/2011 on the file of Senior Civil Judge, Indi. Wherein an application was filed seeking appointment of Court Commissioner to measure the suit land bearing Sy.No.20 and Block No.20/2 of Dhulakhed village. The application which was filed under Order 26 Rule 10 of CPC came to be allowed by order dated 30.05.2015 in appointing ADLR of Indi as Court Commissioner.

4. The Commissioner who was entrusted with the work of measuring the suit land, has filed a report 4 to the Senior Civil Judge & JMFC, Indi, on 16.07.2016 indicating that the commission work would not be executed by him due to standing crop which is due for cultivation. The said report is accepted by the Court below by order dated 03.08.2016 and Commissioner warrant itself is recalled instead of refixing the date for execution of Commissioner work and thereafter posted this matter for consideration on 10.08.2016. It is the order dated 03.08.2016 which is under challenge in this writ petition.

5. Heard learned counsel for the petitioners and as well as the respondent. Admittedly, the suit of respondent No.1-plaintiff is decreed as prayed for. As against that, defendant Nos.1 to 4 have preferred an appeal. In the said proceedings an application is filed seeking appointment of Court Commissioner inasmuch as the prayer in the original suit is for declaration and possession. Therefore, in the fact situation, the order, 5 which was passed earlier in appointing ADLR as Court Commissioner to measure the suit land is just and appropriate. Merely because the ADLR could not measure the suit land since the crops which was standing thereon was due for cultivation, the order itself could not have been recalled, as it is done vide order 03.08.2016.

6. Accordingly, the order dated 03.08.2016 is hereby quashed. Consequently, the earlier order in appointing ADLR as Court Commissioner to measure the suit land and to file report gets revived. ADLR/Court Commissioner is hereby directed to complete commission work within 15 days from the date of receipt of a copy of this order and submit his report within 10 days therefrom. With such observation, this writ petition is disposed of and directing the Court Commissioner to submit his report on or before 6 20.08.2018 to the Court of Senior Civil Judge & JMFC, Indi.

Sd/-

JUDGE sdu CT: RRJ

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