Karnataka High Court
Chikkahanumegowda vs Secretary Bidarahalli on 27 November, 2017
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF NOVEMBER 2017
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO.3198/2017 (GM-CPC)
BETWEEN:
CHIKKAHANUMEGOWDA
S/O YALAVEGOWDA
AGED ABOUT 73 YEARS
AGRICULTURIST
BIDARAHALLI VILLAGE
C.A.KERE HOBLI
MADDUR TALUK - 571 432.
... PETITIONER
(BY SRI H.B. CHANDRASHEKAR, ADV.,)
AND:
1. SECRETARY
BIDARAHALLI GRAMAPANCHAYATH
BIDARAHALLI
C.A. KERE HOBLI
MADDUR TALUK - 571 432.
2. B.K. NANJEGOWDA @ KARAIYA
S/O BUKKANNEGOWDANA KULLEGOWDA
AGED ABOUT 53 YEARS
BIDARAHALLI
C.A.KERE HOBLI
MADDUR TALUK - 571 432.
2
3. CHIKKAHANUMEGOWDA
S/O BUKKANNEGOWDA
DEAD BY LRS.
A) THIMMAMMA
W/O LATE CHIKKAHANUMEGOWDA
AGED ABOUT 93 YEARS
HOUSEWIFE
B) PUTTAMMANI @ HANUMAMMA
W/O LATE CHIKKANUMEGOWDA
AGED ABOUT 71 YEARS
R/O ALADAHALLY VILLAGE
KIRUGAVALU HOBLI
MALAVALLI TALUK
MANDYA DISTRICT - 571 432.
C) CHIKKAMARAMMA
W/O LATE THAMMANEGOWDA
AGED ABOUT 69 YEARS
HOUSEWIFE
D) SUSHEELAMMA
W/O LATE PUTTAMEGOWDA
AGED ABOUT 67 YEARS
HOUSEWIFE
E) B.C. CHIKKAHANUMEGOWDA
@ THAMMAIAH
S/O LATE CHIKKAHANUMEGOWDA
AGED ABOUT 65 YEARS
AGRICULTURIST
F) B.C. SIDDEGOWDA
S/O LATE CHIKKAHANUMEGOWDA
AGED ABOUT 63 YEARS
AGRICULTURIST
R/O GIJAGANADASANADODDI
3
CHANNAPATTANA TALUK
RAMANAGARAM DISTRICT - 571 511.
G) SHEERAMMA @ NINGAMMA
W/O NINEGOWDA
AGED ABOUT 61 YEARS
HOUSEWIFE
R/O CHABBANAHALLY VILLAGE
C.A.KERE HOBLI
MADDUR TALUK - 571 432.
H) C.H.GOWDA @ CHIKKAHANUMEGOWDA
S/O LATE CHIKKAHANUMEGOWDA
AGED ABOUT 59 YEARS
I) RATHNAMMA W/O BORGOWDA
AGED ABOUT 57 YEARS
HOUSEWIFE
R/O BORAPURA VILLAGE
C.A.KERE HOBLI
MADDUR TALUK
MANDYA DISTRICT - 571 432.
J) KAMALAMMA
W/O LATE DEVARAJEGOWDA
@ THIMMAIAH
AGED ABOUT 55 YEARS
HOUSE WIFE
RESPONDENT NOS.3(A, C, D, E, H AND J)
ARE R/O BIDARAHALLI
C.A.KERE HOBLI, MADDUR TALUK
MANDYA DISTRICT - 571 432.
... RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER DATED 23.11.2016 PASSED ON I.A.NO.22
4
FILED BY THE PETITIONER FOR APPOINTMENT OF
COMMISSIONER IN O.S.NO.67/2003 BY THE PRINICIPAL
CIVIL JUDGE & JMFC AT MADDUR PRODUCED AT
ANNEXURE-F AND QUASH THE SAME AND
CONSEQUENTLY ALLOW THE APPLICATION FILED UNDER
ORDER XXVI RULE 9 R/W SECTION 151 OF CPC
PRODUCED AT ANNEXURE-D.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The plaintiff filed the present writ petition against the order dated 23.11.2016 made in O.S.No.67/2003 dismissing the application I.A.No.22 filed by the plaintiff under Order 26 Rule 9 r/w Section 151 of Code of Civil Procedure.
2. The petitioner, who is the plaintiff before the trial Court filed suit for declaration to declare that the plaintiff is the absolute owner of 'A' schedule property, which is part and parcel of 4 guntas in Sy.No.1/1 of Bidarahalli Village purchased by the plaintiff on 24.02.1961 and consequently for mandatory injunction 5 directing the defendants to demolish the construction made in 'B' and 'C' schedule properties which are northern most portion of 'A' schedule property constructed by defendants Nos.2 and 3 and put the plaintiff in possession thereof and for permanent injunction restraining the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property illegally, contending that the plaintiff is the owner in actual possession and enjoyment of the suit schedule property which is part and parcel of 4 guntas of land in Sy.No.1/1 of Bidarahalli Village. The plaintiff purchased the same under the registered sale deed dated 24.02.1961 for valuable consideration from its original owners. The suit schedule land is situated in Sy.No.1/1 of Bidarahalli Village. The boundaries of 4 guntas are East: Land of Bettegowdana Sannegowda, West: Land of Kempamma, North: Land of Chikkahanumegowda S/o 6 Bukkannegowda, South: Land of vendor now there is a panchayath road. It is further contended that although this land is a survey number land, it is situated amidst village and it has lost the characteristics of agricultural land. Plaintiff has constructed country tiled house and shed on the eastern most part of the said 4 guntas of suit land. Later on recently plaintiff has constructed a Mangalore tiled house on the western part of the 4 guntas. While constructing these houses plaintiff has left vacant space on the northern portion of the 4 guntas of property. Thus, plaintiff is the absolute owner in actual possession and enjoyment of the said property. But katha of the said property is changed in the name of plaintiff to the extent of 2 guntas only and remaining 2 guntas there is a dispute between the plaintiff and one Kullegowda and his brothers Siddegowda @ Appajaiah of Bidarahalli Village. A civil 7 suit as well as revenue proceeding are still pending between plaintiff and said Kullegowda and Siddegowda.
3. It is further case of the plaintiff that the plaintiff has left 15 feets land north south to form a road on the southern part of 4 guntas of land to the Grama panchayath and now there is a road at present. On the northern part of 4 guntas of property road is not at all required. Even then defendants on the ill advise of the Bill collector and other panchayath member is intended to form a road in the middle of the suit schedule property leaving 7 feet space on the northern most part. If such road is formed plaintiff will lose his valuable site and his valuable site will be divided into two pieces. First defendant has not got acquired the suit land for formation of the road. Plaintiff has not consented or given possession of suit land to form the road. Formation of the road on the suit schedule 8 property is not at all required in the place. Moreover, the intended formation of road in the schedule property will be divided into two pieces. Therefore, he has filed the suit for the relief sought.
4. Learned counsel for the petitioner submits that the first defendant has not filed any written statement.
5. Defendant Nos.2 and 3 filed written statement denying the plaint averments and contended that the plaintiff has constructed a Mangalore tiled house towards western part of suit schedule 4 guntas by leaving the entire space towards south. In fact towards south in the middle of plaintiff land the panchayat has formed the road in the land of plaintiff. The road runs East to West. The road bifurcates the land of plaintiff. So the plaintiff's property lies towards southland north of the road which is formed towards 9 south of the plaintiff's house. At the time of constructing the house the plaintiff has not left any land towards northern side. As a matter of fact this defendant has purchased 8 guntas of land in Sy.No.1/1 of Bidarahalli Village from its original owners Bandigegwoda and Chikkahanumegowda through a registered sale deed dated 06.02.1958 for valuable consideration. As on the date of purchase itself the defendants was put in possession and enjoyment of entire 8 guntas. Thereafter, the panchayat has formed the road about 15 years back towards south of defendants 8 guntas of land. The defendant Nos.2 and 3 got constructed country tiled houses (two) about 30 years back leaving space towards north and south. The defendant Nos.2 and 3 have constructed the house left 13 feet space towards south excluding the land utilized for the purpose of formation of road with an intention to put pial in front of their house and in fact they have 10 obtained licence from the panchayat to put up a pial but due to the above suit the pial could not be constructed even till today.
6. It is further case of the defendants that the plaintiff has suppressed the fact of existence of road since several years and given boundary towards northern as the house property of these defendants without disclosing the panchayat road and then vacant property left by these defendants to put up pial. The Grama panchayat people have measured the properties which are in possession of the concerned persons and entered their name in the demand register maintained by the Grama Panchayat. The plaintiff has not at all questioned the Khatha made out in the name of the house holders and site holders and therefore, plaintiff has no locus-standi to allege against the panchayat. The plaintiff has suppressed all the material facts and 11 suggested false things. The plaintiff has not approached the Court with clean hands. Therefore, they sought for dismissal of the suit. The defendants also filed additional written statement and contended that the plaintiff is not entitled for damages because he has not made out any ground how he sustained loss due to the act of the defendants and quantum thereof. But unfortunately the plaintiff is claiming the damages without any basis. Therefore, the defendants contend that the plaintiff is not entitled for the relief sought for in the plaint.
7. When the matter was posted for arguments, at that stage, plaintiff filed application I.A.No.22 under Order 26 Rule 9 r/w section 151 of Code of Civil Procedure for appointment of Surveyor for local investigation to measure and prepare the sketch of suit schedule property and property of defendant Nos.2 and 12 3 to enable to elucidate the point in issue reiterating the averments made in the plaint and specifically contended that 'B' and 'C' schedule properties are part and parcel of 4 guntas of land which the plaintiff has purchased. Defendant Nos.2 and 3 also purchased the land and got constructed their house and they claim that 'B' and 'C' schedule properties are part of the land they purchased. The land purchased by the plaintiff and the land purchased by defendant Nos.2 and 3 is measured and maped then it will elucidate the fact that in which land the 'B' and 'C' schedule properties are situated. This point will go to show the root of the case. Therefore, plaintiff sought to allow the application.
8. The defendants filed objections to the said application and contended that the application is highly mischievous and not maintainable either in law or on facts and contended that the plaintiff has purchased the 13 revenue land about 15 years back and it is not continued in the same condition. Because the plaintiff and defendants have purchased the revenue land 15 years back and thereafter constructed dwelling houses. In fact the properties of the plaintiff and defendants are in the amidst of the village. Several persons have constructed dwelling house in the line of plaintiff's house. Virtually the land has lost its character of revenue land and the katha of all the parties situated in the village are mentioned and maintained by the Gram Panchayat. As such the question of measuring the suit schedule property and the properties as revenue land does not arise. In fact since the houses have been constructed absolutely there is no boundary stones. When there is no boundary stones, it cannot be measured by the survey authorities. When the house are there it cannot be measured by using chain. Knowing fully well practically the properties of the 14 defendants and plaintiffs cannot be measured by the survey authorities. Therefore, they sought for dismissal of the application.
9. The trial Court considering the applications and objections, by the impugned order dated 23.11.2016 dismissed the application. Hence, the present writ petition is filed.
10. I have heard the learned counsel for the petitioner.
11. Sri H.B. Chandrashekar, learned counsel for the petitioner vehemently contended that the impugned order passed by the trial Court dismissing the application filed by the plaintiff under Order 26 Rule 9 r/w Section 151 of Code of Civil Procedure is erroneous and contrary to the material on record. He would further contend that there is dispute with regard to 'B' 15 and 'C' schedule properties. It is the case of the plaintiff that there is no road within the property purchased by him. According to the defendants, there is a road. Therefore, the trial Court ought to have appointed a Surveyor to measure the suit schedule property. The same has not been done. He would contend that the suit filed for declaration and permanent injunction when there is a dispute with regard to road, appointment of Surveyor to measure the suit schedule property and property of defendant Nos.2 and 3 is necessary. Therefore, he sought to quash the impugned order by allowing the present writ petition.
12. Having heard the learned counsel for the petitioner, the suit is filed by the plaintiff for declaration and for permanent injunction in respect of 'A' schedule property, which is part and parcel of 4 guntas in Sy.No.1/1 of Bidarahalli Village purchased by plaintiff 16 under a registered sale deed dated 24.02.1961. He also sought for mandatory injunction to demolish the construction made in 'B' and 'C' schedule properties measuring East to West 30 feet and North to South 10 feet respectively. The plaintiff filed application I.A.No.22 under Order 26 Rule 9 r/w Section 151 of Code of Civil Procedure praying for appointment of Surveyor for local investigation to measure and prepare the sketch of the suit schedule property and property of defendant Nos.2 and 3 to enable to elucidate the point in issue. Though in the plaint, it is stated that 'A' schedule property is part of 4 guntas in Sy.No.1/1 of Bidarahalli Village, in the application it is only stated to measure the property and prepare the sketch of suit schedule property. There is no clarity with regard to sites or survey number. According to the plaintiff, there is no road within the property purchased by him. According to the defendants, there is a road. Both parties have to 17 establish their respective claims based on the oral and documentary evidence on record. In the absence of any clarity and the dispute, mere appointment of Surveyor does not serve any purpose and the application filed under Order 26 Rule 9 r/w Section 151 of Code of Civil Procedure, when the matter was posted for arguments is nothing but conclusion of evidence. The suit filed by the plaintiff is for declaration and for permanent injunction. The plaintiff has to establish and prove his case based on the oral and documentary evidence on record.
13. The trial Court considering the application and objections has recorded a finding that by appointment of a Surveyor, parties are not permitted to collect evidence. If the plaintiff contends that there is no road within the property purchased by him and the defendants rebuts that there is a road, then it is for the 18 parties to establish their assertions by cogent and relievable evidence. When analysed the schedule of the plaint very clearly the plaintiff has given the measurement in feet. According to the plaintiff and also according to the defendants, the suit schedule property is a revenue property. Plaintiff has not stated what is the total extent of the survey number, out of which the schedule property is carved out. In that event, certainly it may not be possible for the Court Commissioner to measure the entire property and look into the schedule property and to ascertain who has encroached upon whose property and admittedly both plaintiff and defendants have constructed houses abating to each other. Under these circumstances, the trial Court was of the opinion that appointment of a Commissioner would only be a futile exercise and it will not fetch any fruitful result. Therefore, trial Court was of the opinion that the plaintiff has not made out any ground to allow 19 the application. Accordingly, the application came to be dismissed.
14. The material on record clearly indicates that both plaintiff and defendants have purchased the revenue land about 15 years back. According to the defendants, they have purchased 8 guntas of land in same survey number and according to the plaintiff, he has purchased 4 guntas in Sy.No.1/1 of Bidarahalli Village, C.A. Kere Hobli, Maddur Taluk. What is the total extent of survey number is not mentioned by either of the parties. In that view of the matter, the trial Court has rightly held that appointment of a Commissioner cannot be done to ascertain who has encroached upon whose property. Therefore, the trial Court rightly dismissed the application filed by the plaintiff and the same is in accordance with law. The plaintiff has not made out any ground to interfere with the impugned 20 order passed by the trial Court in exercise of the power under Article 227 of the Constitution.
Accordingly, the petition is dismissed.
Sd/-
JUDGE ca