Karnataka High Court
Mahabaleshwar S/O Ganapati Bhat vs Shankar S/O Ramakrishna Bhat, on 14 February, 2020
Author: S G Pandit
Bench: S.G. Pandit
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 14TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE S.G. PANDIT
WRIT PETITION No.130841/2020 (GM-CPC)
BETWEEN:
MAHABALESHWAR S/O GANAPATI BHAT,
A/A : 66 YEARS, OCC: AGRICULTURE,
R/O : MOODEBAIL, PO: SAHASRALLI,
TQ: YALLAPUR,
DIST: UTTARA KANNADA -581329. ....PETITIONER
(BY SRI ANANT HEGDE AND
SRI VISHWANATH HEGDE, ADVS.)
AND:
1. SHANKAR S/O RAMAKRISHNA BHAT,
A/A: 62 YEARS, OCC: AGRICULTURIST,
R/O : MOODEBAIL, PO: SAHASRALLI,
TQ: YALLAPUR,
DIST: UTTAR KANNADA-581329.
2. TIMMANNA S/O GANAPATI BHAT,
A/A: 52 YEARS, OCC: AGRICULTURIST,
R/O : MOODEBAIL, PO: SAHASRALLI,
TQ: YALLAPUR,
DIST: UTTAR KANNADA-581329.
3. SHREEDHAR S/O SUBRAY BHAT,
A/A: 64 YEARS, OCC: AGRICULTURIST,
R/O MALYANAKOPPA, PO-SAHASRALLI,
TQ: YALLAPUR,
DIST UTTARA KANNADA-581329. ...RESPONDENTS
(BY SRI A.P.HEGDE JANAMANE AND
SRI V.M.MALALI,ADV. FOR R1,
2
NOTICE TO R2 AND R3 IS DISPENSED WITH
VIDE COURT ORDER DATED 14.02.2020)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT
OF CERTIORARI QUASHING THE ORDER DATED 12-12-2019 ON
I.A.NO.XV PASSED BY THE SENIOR CIVIL JUDGE AT YELLAPUR IN
O.S.NO.7/2016, MARKED AT ANNEXURE A AND CONSEQUENTLY
THE I.A.NO.XV BEFORE SENIOR CIVIL JUDGE AT YELLAPUR IN
O.S.NO.7/2016 BE ALLOWED, IN THE INTEREST OF JUSTICE.
THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner-defendant No.1 in O.S.No.7/2016 on the file of the Senior Civil Judge at Yellapur, is before this Court under Article 227 of the Constitution of India assailing the order dated 12.12.2019 on IA No.XV by which application filed under Order XXVI Rule 9 CPC is rejected.
2. Petitioner and respondents 2 and 3 are defendants whereas respondent No.1 is plaintiff in the above referred suit filed for possession of the suit schedule property. The plaintiff's suit is based on survey report. The petitioner/defendant No.1, when the matter stood at the 3 stage of argument, filed an application for appointment of Commissioner under Order XXVI Rule 9 CPC to survey the suit property and also the adjoining property of the defendants. The said application came to be dismissed under impugned order. Aggrieved by the same, petitioner is before this Court.
3. Heard the learned counsel for the petitioner and the learned counsel for respondent No.1/plaintiff. Perused the writ petition papers.
4. The learned counsel for the petitioner would submit that the trial Court committed an error in rejecting the application filed under Order XXVI Rule 9 CPC. It is his submission that the suit for possession is based on survey report Ex.P.16. It is further submitted that against Ex.P.16, an appeal is filed before the ADLR and the appeal is yet to be decided. As the survey report has not attained finality, the petitioner had filed application for appointment of Surveyor as Court Commissioner to 4 measure the suit property as well as adjoining property of the defendants. The said application is rejected on an erroneous ground. The trial Court without discussing whether the appointment of Commissioner is necessary, only on the ground that the appeal is pending before ADLR in respect of Ex.P.16, rejected the application.
5. Per contra, learned counsel for the respondent- plaintiff would submit that the trial Court has rightly rejected the application for appointment of Surveyor as Commissioner of the Court. It is his submission that Ex.P.16, Survey Report is on record which would be sufficient to decide the controversy involved in the suit. There is no need for appointment of Commissioner once again to survey the property. It is also submitted that the defendants in their evidence have also admitted the fact of appointment of Commissioner for survey and they have also admitted that thrice ADLR has surveyed the property. 5
6. Having heard the learned counsel for the parties and on perusal of the writ petition papers, the only point that arises for consideration is as to "whether the trial Court is justified in rejecting IA-XV filed under Order XXVI Rule 9 CPC in the facts and circumstances of the case?".
7. The answer to the above point is in the negative and the trial Court is not justified in rejecting the application. The suit is one for possession based on survey report which is marked as Ex.P.16. Admittedly, against Ex.P.16 survey report, the defendant/petitioner herein has filed an appeal before the ADLR. The said appeal is pending consideration. The survey report has not attained finality. The plaintiff and defendants are adjoining land owners. Without there being proper survey the controversy involved in the suit cannot be resolved. At the same time, the Court cannot wait for the finality of the survey report at Ex.P.16 before the ADLR. In the circumstances, I am of the view it is expedient to appoint a Court Commissioner 6 to survey the suit property as well as property of defendants which are adjoining properties, by appointing ADLR as Court Commissioner. On submission of the survey report, it is always open to the petitioner/defendant to examine or cross-examine the Surveyor which would assist the Court in coming to a proper conclusion.
Thus, IA-XV filed by the petitioner/defendant under Order XXVI Rule 9 CPC is allowed. The ADLR is appointed as Court Commissioner to survey the suit land as well as the adjoining defendants' land and submit report. The trial Court to issue Commissioner warrant accordingly.
The parties are at liberty to file their memo of instructions to the Court Commissioner.
SD/-
JUDGE Jm/-