Karnataka High Court
Annapurana vs Chief Executive Officer And Ors on 25 September, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2024:KHC-K:7361
WP No. 203261 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 203261 OF 2023 (GM-CPC)
BETWEEN:
ANNAPURANA
W/O BHIMASH UDBAL
AGE 63 YEARS
OCC: AGRICULTURE/GOVERNMENT SERVANT
R/O KAMALAPUR,
TALUK AND DISTRICT: KALABURAGI-585104.
...PETITIONER
(BY SRI. JIDAGE KAILASH. C,ADVOCATE)
AND:
1. CHIEF EXECUTIVE OFFICER
ZILLA PANCHAYAT
KALABURAGI-585101.
2. SIDRDAMAPPA T DANDAGOOLKAR
Digitally signed by ASSISTANT EXECUTIVE ENGINEER
BASALINGAPPA ZILLA PANCHAYAT
SHIVARAJ
DHUTTARGAON KALABURAG-585101.
Location: HIGH
COURT OF
KARNATAKA 3. SURYAKANT GAYAKWAD
J.E ZILLA PANCHAYAT
KALABURAG-585101.
4. SHIVASHETTY PATILE
AGE 60 YEARS MAJOR
OCC: CONTRACTOR
R/O RAJANAL
TALUK AND DISTRICT KALABURAGI-585104.
...RESPONDENTS
(BY SRI. R J BHUSARE., ,ADVOCATE FOR R1 TO R3;
V/O DATED 20.9.2024 NOTICE TO R4 IS D/W)
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NC: 2024:KHC-K:7361
WP No. 203261 of 2023
THIS WRIT PETITION FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED
21.07.2023 PASSED ON I.A NO. VII FILED BY THE
PLAINTIFF/PETITIONER IN OS NO. 480/2016 PENDING ON THE FILE
OF HONOURABLE III ADDL CIVIL JUDGE AT KALABURAGI AND
CONSEQUENTLY ALLOW THE I.A FILED BY THE PETITIONER U/O
XXVI RULE 9 R/W SEC 151 OF CPC VIDE ANNEXURE A AND ETC.
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
CORAM: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
ORAL ORDER
(PER: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)
1. The petitioner is before this Court seeking for the following reliefs:
1. Quash the order dated 21.07.2023 passed on I.A.No.VII filed by the plaintiff/petitioner in O.S.No.480/2016 pending on the file of the Hon'ble III Addl. Civil Judge at Kalaburagi and consequently allow the I.A. filed by the petitioner U/O XXVI Rule 9 r/w Section 151 of CPC vide Annexure-A;
2. Pass any other writ or order which this Hon'ble court may deem necessary in the circumstances of the case.
2. The petitioner had filed a suit in OS No.480 of 2016 before the III Additional Civil Judge at Kalaburagi seeking for injunction restraining the respondents from interfering with the possession of the petitioner, on the ground that the respondents are seeking to -3- NC: 2024:KHC-K:7361 WP No. 203261 of 2023 form a road on the portion of the property of the petitioner without acquisition. The petitioner being the owner and in possession of Sy.No.158/1 measuring 4 acres 5 guntra situated at Kamalapur village, Kalaburagi taluka and district.
3. In the said suit, the petitioner had filed an application under Order 26 Rule 9 of the Code of Civil Procedure seeking for appointment of the Assistant Director of Land Record (ADLR) to carry out measurement of the land in Sy.No.158/1 to ascertain the extent of land used for the formation of the road as also the road laid by the respondents in the aforesaid land. The said application has been opposed by the respondents, the trial Court vide its order dated 21.7.2023 dismissed the said application, holding that the allowing of the said application would amount to collection of evidence and insofar as any violation of the injunction order already granted is concerned, the same could be agitated in the Civil Misc.No.9/2021, registered for violation of the -4- NC: 2024:KHC-K:7361 WP No. 203261 of 2023 injunction order under Order 39 Rule 2(a) of the Code of Civil Procedure, it is challenging the same, that the petitioner is before this Court seeking for the aforesaid reliefs.
4. Sri.Jidage Kailash., learned counsel appearing for the petitioner would submit that the land of the petitioner in Sy.No.158/1 measures 4 acres 5 guntas as regards a portion of which the respondents are laying a road without acquiring the said land. The petitioner being the owner of the said land, the respondent cannot interfere with his possession and lay a road without acquisition and as such he submits that it would be required to ascertain the extent of the road which has been laid in order to ascertain, if there is any additional road which has been laid from that which is existing in the village map.
5. Sri.R.J.Bhusare., learned counsel appearing for respondent would submit that;
5.1. The road is being laid on the existing road and as such the land of the petitioner is not being -5- NC: 2024:KHC-K:7361 WP No. 203261 of 2023 used and therefore there cannot be any allegation as regards interference with the plaintiff's position when the new road is being laid on the existing road.
5.2. In that view, he submits that an application for appointment of an Commissioner could not have been filed and has been rightly rejected by trial Court in the same amounts to collection of evidence which the plaintiff would have to establish during the course of trial.
6. Heard Sri.Jidage Kailash., learned counsel appearing for the petitioner and Sri.R.J.Bhusare., learned counsel appearing for respondent and perused papers.
7. It is not in dispute that the petitioner-plaintiff is the owner of the land in Sy.No.158/1 measuring 4 acre 5 guntas. What is an issue, is as regards the extent of road which has been formed in the said survey number by the respondents. The respondents claiming that there is already existing road in terms -6- NC: 2024:KHC-K:7361 WP No. 203261 of 2023 of a cart track shown in the village map, it is contended that the road is laid in terms of the village map. Whether the road is laid as shown in the village map or whether there is any additional extent of road with additional width which is being laid, can only be ascertained by a physical inspection and measurement of the property in question. No amount of oral evidence in this regard would suffice to establish the claim of the petitioner.
8. In that view of the matter, I am of the considered opinion that the trial Court erred in coming to a conclusion that appointment of ADLR would amount to collection of evidence, when in fact it would have been to ascertain the truth of the matter and the actual status of the land. The order of the trial Court suffering from the aforesaid infirmity is required to be set aside and is therefore set aside and I pass the following;
ORDER i. The writ petition is allowed.
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NC: 2024:KHC-K:7361 WP No. 203261 of 2023 ii. A certiorari is issued, the order dated 21.7.2023 passed on IA No.VII by the III Additional Civil Judge at Kalaburagi in OS No.480 of 2016 is set aside.
iii. Consequently, IA No.VII is allowed, the jurisdictional ADLR is appointed as a Commissioner to carry out a survey of the land in Sy.No.158/ Kamalapur village, Kalaburagi taluk and district demarcate the boundaries of the said survey number as also the boundaries and extent of the road formed in the said survey number, superimpose the same with that indicated in the village map and determine, if the road formed in the land of the petitioner is in accordance with the village map or in excess thereof, if in excess how much in excess.
iv. Since the order is passed in the presence of both the counsels, the jurisdiction ADLR is directed to carry out a survey without requirement of any notice to the parties as -8- NC: 2024:KHC-K:7361 WP No. 203261 of 2023 indicated above, commencing from 10:30 a.m. on 7.10.2024 and submit a report by the 21.10.2024 in OS No.480 of 2016, which shall be so considered by said Court.
v. Since the order is passed in the presence of both the counsels, there would be no requirement of issuance of any further notice by the ADLR to both the petitioner and the respondent. They would be entitled to participate in the survey, if they so choose fit. In the event any of them not participating in the survey, they will not be entitled to any equities.
Sd/-
(SURAJ GOVINDARAJ) JUDGE SR List No.: 2 Sl No.: 63