Karnataka High Court
Sri.Mohan S/O. Madhwarao Chawate vs Sri.Ulavappa S/O. Basavantappa ... on 9 July, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
:1:
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 9TH DAY OF JULY, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
WRIT PETITION NO.78041/2013 (GM-CPC)
BETWEEN:
SRI.MOHAN S/O. MADHWARAO CHAWATE
AGE: 63 YEARS, OCC: PENSIONER,
R/O. YALAKKI SHETTAR COLONY, DHARWAD.
...PETITIONER/
(BY SRI.SHRIKANT T.PATIL, ADV.)
AND:
1. SRI.ULAVAPPA S/O. BASAVANTAPPA INGALAGI
AGE: 56 YEARS, OCC: SERVICE
R/O. YALAKKI SHETTAR COLONY
DHARWAD
2. SRI.SHIVANAND S/O. YELLAPPA ADAGANTI
AGE: 56 YEARS, OCC:LECTURER
3. SRI.BASAVARAJ S/O. SHANKAR MAGONDANAVAR
AGE: 38 YEARS, OCC: SERVICE
4. SRI.ASHOK S/O. SHANKAR MAGONDANAVAR
AGE: 36 YEARS, OCC: SERVICE
5. SRI MADAN S/O. SHIVAJI SURYAVANSHI
AGE: 51 YEARS, OCC: SERVICE
6. SMT.ARATI W/O. MADAN SURYAVANSHI
AGE: 44 YEARS, OCC: SERVICE
:2:
7. THE HUBLI DHARWAD MUNCIPAL CORPORATION
DHARWAD,
R/BY ITS COMMISSIONER. ...RESPONDENTS
----------
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER PASSED ON I.A.NO.13 DATED:30/03/2013 IN
O.S.NO.181/2005 PASSED BY THE II ADDITIONAL CIVIL JUDGE
AND JMFC II DHARWAD, VIDE ANNEXURE-D.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri.Shrikant T.Patil, learned advocate appearing for the petitioner. Perused the papers.
2. An order rejecting the application filed by plaintiff for appointment of second court commissioner is called in question in this writ petition. Plaintiff has instituted a suit seeking the relief of declaration and consequential relief of mandatory injunction. Defendants have appeared and filed their written statement. Plaintiff has contended that defendants 1 to 6 have encroached upon 2 feet of common passage and defendant Nos.5 and 6 have encroached upon plot of plaintiff to an extent of 1 feet X :3: 28 feet 9 inches and as such the plaintiff has sought for relief of mandatory injunction. At the instance of the plaintiff, a Court Commissioner came to be appointed and a report came to be submitted. Trial court granted adjournment on six dates of hearing to the plaintiff to file his objections to the Commissioner's Report and despite such opportunities being extended, objections were not filed. Thereafter, plaintiff filed IA-V under Section 151 CPC to appoint a Court Commissioner to inspect suit property and report whether there is any encroachment made by defendants while constructing super structure on plaintiff's property as well as public road. Said application came to be dismissed by trial court on 10.06.2010. Thereafter, the plaintiff sought permission to file objections to the Commissioner's report. However, no arguments were advanced. Commissioner's report came to be accepted and when the matter was set down for arguments, plaintiff has sought for issuance of summons to summon the Court Commissioner for cross- :4: examination and an application came to be filed in this regard. Same was allowed. Commissioner was cross- examined. It is thereafter the application in question namely IA-XIII for appointment of a second court commissioner came to be filed contending interalia that Court Commissioner in the cross-examination has stated that based on the documents of title, the encroachment can be found but in the report he has not mentioned the encroachments. It was also contended that as per the approved plan, there was a 12 feet common passage but the Court Commissioner has not stated in his report regarding the encroachment of the said passage. On these grounds, the appointment of second court commissioner was sought for.
3. Report of the Court Commissioner as recorded by the trial court would indicate that in his cross- examination he has admitted that the common passage measures 10 feet on one side and 9 feet 8 inches on the :5: other side and to the suggestion that it shows there is encroachment, the Court Commissioner has accepted the suggestion by admitting the same. In fact, plaintiff has contended that there is encroachment over his property, he did not produce the sale deed for reasons best known. But on the other hand defendant has produced the sale deed of plaintiff and has got it marked as Ex.D.1 which would indicate that there is a passage of 10 ft. The Court Commissioner has assigned reasons as to why he did not find out the extent of encroachment in plot No.8 on the ground that it is not having a sub-division map. Commissioner's Report is a piece of evidence which would assist court to arrive at a conclusion. When the Court Commissioner has been appointed at the instance of the plaintiff, if there is any deficiency in the said report, it is open to the plaintiff to demonstrate as to whether the said report is to be accepted in toto or partially or to be rejected in its entirety. In view of the fact that trial court has permitted the plaintiff to file statement of objections to the :6: Commissioner's Report and also having permitted the plaintiff to cross-examine the Commissioner, it would be needless to state that plaintiff would be at liberty to establish and prove before the trial court as to whether Commissioner's Report is to be accepted and if urged, the trial court cannot brush aside the contentions so raised by the plaintiff. Until and unless, the Commissioner's report is rejected by the trial court, question of appointing a second commissioner does not arise.
4. With this observation, writ petition stands disposed of.
SD/-
JUDGE Jm/-