Karnataka High Court
T Chamaraj @ Chamarasa vs Tirumala S/O H.Yeriswamy on 4 September, 2019
Author: S.Sujatha
Bench: S.Sujatha
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 04TH DAY OF SEPTEMBER 2019
BEFORE
THE HON'BLE MRS. JUSTICE S.SUJATHA
WRIT PETITION NO.204359/2018 (GM-CPC)
Between:
T.Chamaraj @ Chamarasa
S/o T.Haladayyaswamy,
Aged about 58 years, Occ. Agriculture,
R/o Sindhanur, Dist. Raichur.
... Petitioner
(By Sri G.G.Chagashetti, Advocate)
And:
Tirumala S/o H.Yeriswamy,
Aged about 43 years, Occ. Agriculture,
R/o Umalihosur Village, Tq. Manvi,
District Raichur - 584 101.
... Respondent
(By Sri Mahantesh Patil, Advocate)
This writ petition is filed under Article 227 of the
Constitution of India, praying to issue a writ of
certiorari and to quash the order dated 20.10.2018
passed by the learned Civil Judge and JMFC, Manvi on
IA No.XXV in O.S.No.70/2010 produced at Annexure-E
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by allowing IA No.XXV filed under Order XXVI Rule 9 of
CPC.
This petition coming on for orders hearing this
day, the Court made the following:-
ORDER
With the consent of the learned counsel appearing for the parties the matter is taken up for final disposal at this stage itself.
2. This petition is directed against the order passed on I.A.No.XXV filed under Order XXVI Rule 9 of Code of Civil Procedure in O.S.No.70/2010 dated 20.10.2018 on the file of learned Civil Judge and JMFC, Manvi whereby the application IA No.XXV filed by the petitioner has been dismissed.
3. The petitioner has filed O.S.No.70/2010 before the Trial Court seeking for declaration, mandatory injunction and possession of ownership that he is the owner and possessor of plot Nos.53 and 57 each measuring 22.5 feet east-west and 46.5 feet north- 3 south, in N.A land bearing Sy.No.1/2 measuring 01 acre 36 guntas of Pothnal Village. The defendant is claiming to be the owner of Plot Nos.52, 56, 51 and 55 the abutting plots of the petitioner. In the said proceedings, I.A.No.XXV has been filed by the petitioner seeking for appointment of Court Commissioner for the purpose of surveying the plaintiff plot Nos.53 and 57 as well as defendant plot Nos.52 and 56 to de-mark, fix the boundaries and to submit the reports along with sketch map. The said application has been dismissed. Hence, this writ petition.
4. Learned counsel Sri I.R.Biradar, appearing for the petitioner placing reliance on the judgment of this Court in the case of Sree Sreepadaraja Mutt v. Pyra Ramaiah, by L.Rs' reported in 1999 (2) KCCR 1216 would submit that appointment of Court Commissioner is permissible after the defendant leads evidence. It is submitted that Order XXVI Rule 9 of Code of Civil Procedure contemplates for Commissioner to 4 make local investigations wherein in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court.
5. In terms of the said provision the Trial Court ought to have considered the application filed by the petitioner for appointment of Court Commissioner for marking and fixing the boundaries of the suit schedule properties for the purpose of elucidating the dispute in question.
6. Learned counsel Sri Mahantesh Patil, appearing for the respondent would submit that O.S.No.70/2010 was filed by the petitioner/plaintiff 5 seeking for the relief of declaration, mandatory injunction and possession of encroached area to an extent of 8 feet east-west and 93 feet north-south. On the challenge made to the order of the trial Court relating to the application filed by the petitioner seeking for production of approved layout map which is said to have been issued by the Gram Panchayat, Pothnal, this Court allowed the Writ Petition No.202068/2017 filed by the petitioner and permitted the petitioner to mark the said document pursuant to which the same has been marked as Ex.P.10 in the suit filed during the year 2010, the arguments are concluded, the matter is now posted for judgment and at this juncture, the petitioner has preferred this application which evinces the dilatory tactics of the petitioner.
7. I have carefully considered the rival submissions of the learned counsel appearing for the parties and perused the material on record. 6
8. The controversy relates to the rejection of application filed under Order XXVI Rule 9 of Code of Civil Procedure for appointment of Court Commissioner for marking and fixing the boundaries of the suit schedule properties. As could be seen, the main relief claimed in the suit is to declare that the defendant/respondent has encroached Plot Nos.53 and 57 of Pothnal Village belonging to the petitioner and for mandatory injunction in respect of the suit properties. Order XXVI Rule 9 of Code of Civil Procedure provides for an appointment of a Court Commissioner for local inspection for the purpose of elucidating the matter in dispute.
9. As could be seen from the material available on record, the rights of the parties have not been decided. In such circumstances, the petitioner seeking for marking and fixing the boundaries of the suit schedule properties is unsustainable. Such relief can be granted only after the declaration made by the Court as 7 regards the ownership/encroachment of the suit properties as alleged/refuted. Such a situation has not arisen in the present case. The ruling relied upon by the learned counsel for the petitioner was rendered in the context of Section 115 of the Code of Civil Procedure. More particularly, the controversy therein was that the ADLR whether could have been appointed as Court Commissioner, instead of an Advocate. In such circumstances, it was observed that the plaintiff is also at liberty to cross-examine the Commissioner who may go on spot inspection. No doubt inspection has to be done in the presence of the parties. In the said proceedings, the Commissioner was directed only to inspect and furnish the factual position of spot. Hence, the said decision is distinguishable and not applicable to the facts of the present case.
10. However in the present case, the prayer sought by the petitioner for de-marking and fixing the 8 boundaries of the plots by the Court Commissioner at this stage cannot be countenanced.
11. Considering these aspects, the trial Court has rightly rejected the application. There is no jurisdictional error or perversity in the order impugned, accordingly, the same is confirmed.
Writ petition is bereft of merit and hence, stands dismissed.
Sd/-
JUDGE sn