Karnataka High Court
S Ismail S/O Sulaiman Beary vs N Raghava Hebbar on 20 March, 2013
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IN THE HIGH COURT OF KARNATAKA, AT BANGALORE
DATED THIS THE 20TH DAY OF MARCH 2013
BEFORE
THE HON'BLE MR.JUSTICE H.BILLAPPA
W.P.No.9661/2011 (GM-CPC)
BETWEEN:
S.Ismail,
S/o.Sulaiman Beary,
Since dead rep. by LRs.
1. Smt.Mariyamma,
W/o.Late S.Ismail,
Aged about 62 years.
2. Smt.Naseema,
D/o.Late S.Ismail,
Aged about 42 years.
3. Smt.Zubaida,
D/o.Late S.Ismail,
Aged about 36 years.
4 Smt.Zareena,
D/o.Late.S.Ismail,
Aged about 32 years.
5 Saleem, S/o.Late.S.Ismail,
Aged about 28 years.
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6 Sirajuddeen, S/o.Late S.Ismail,
Aged about 22 years.
7. Khamar Banoo, D/o.Late.S.Ismail,
Aged about 18 years.
All are R/o.Chibidre,
Kakkinje post,
Belthangady Taluk,
Dakshina Kannada District. ...Petitioners
(By Sri.A.V.Gangadharappa, Adv., for
M/s.AVG Assts.)
AND:
1. N.Raghava Hebbar,
S/o.Venkatakrishna Hebbar,
Aged about 68 years,
R/o.Neria, Belthangady Taluk,
Dakshina Kannada District.
2. Iqbal. S/o.Late S.Ismail,
Aged about 40 years.
3. Mansoor, S/o.late S.Ismail,
Aged about 32 years.
Both are resident of Chibidre,
Kakkinje post, Belthangady Taluk,
Dakshina Kannada District. ...Respondents
(By Sri.K.Chandranath Ariga, Adv., for R1
R-2 & 3 Notice dispensed with)
******
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This W.P. filed praying to quash the order dated
22.1.11 passed by the Court of Civil Judge (Jr.Dn.) at
Belthangady in execution case No.52/1983 produced as
Anex-R.
This petition coming on for further hearing this day,
the court made the following:-
ORDER
In this writ petition under Articles 226 & 227 of the Constitution of India, the petitioners have called in question, the order dated 22.01.2011, passed by the executing Court in execution case No.52/1983 vide Annexure-'R'.
2. By the impugned order, the executing Court has ordered to issue delivery warrant in respect of the petition schedule property situated in Sy.No.27/2 as shown in the Commissioner's report and the sketch.
3. Aggrieved by that, the petitioner has filed this writ petition.
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4. Briefly stated the facts are;
The respondent filed suit in S.C.No.12/1979 for ejection of the original judgment debtor. The suit came to be compromised on 6.3.1980. The respondent initiated execution proceedings in Execution case No.109/1980. It came to be closed without executing the decree. Thereafter, the respondent initiated execution proceedings in Ex.case No.52/1983 to execute the decree passed in S.C.No.12/1979. The judgment-debtor filed objections contending that his house is situated in Sy.No.80 of Chibidre village. It is a parambok land. The thatched house bearing door No.1-56 of Charmady panchayath is not in possession of the judgment-debtor. The decree passed in S.C.No.12/1979 is not applicable to the house situated in Sy.No.80 of Chibidre village. Therefore, the judgment- debtor prayed for dismissal of the execution petition.
The executing Court has appointed the Court Commissioner. The Court Commissioner has submitted his 5 report as per Annexure-'C' along with the sketch showing the disputed property in Sy.No.27/2. The judgment-debtor has objected for the Commissioner's report contending that the measurement is incorrect. The surveyor has failed to fix the survey stones at 'F' line 1360 and 241 of Chibidre village with reference to rock mark at 'F' lines 200 and 1360. The surveyor has failed to fix the stones at F line 1360 and 214 of Chibidre with reference to the rock mark at 'F' lines 1360 and 214. The surveyor ought to have measured 'F' lines of Sy.Nos.88, 98 and 28 of Chibidre village and fixed the stones correctly. The observation of the Commissioner that the building of the judgment-debtor is in Sy.No.27/2 of Chibidre village is far from truth. The Commissioner has not properly measured Sy.No.27/2. Therefore, the judgment-debtor has requested to investigate the matter again.
The executing Court by its order dated 31.3.1992 has rejected the Commissioner's report. A senior member of 6 the Bar has been appointed as Court Commissioner with a direction to get the suit property measured and sketch prepared through the District Suryevor, Dakshina Kannada, Mangalore. Thereafter, the report has been submitted as per Annexure-'F' along with the sketch showing the disputed property in Sy.No.27/2. The judgment-debtor has filed his objections. Thereafter, the Commissioner has filed memo dated 6.10.1998 requesting the Executing Court to direct the DDLR, Mangalore to provide assistance of the previous Deputy Director Sri.K.Gopal to assist the Commissioner in execution of the Commissioner's warrant. The Executing Court by its order dated 18.12.1999 has accepted the memo and has directed the Court Commissioner to take the assistance of Sri.K.Gopal, the DDLR and submit his further report. Thereafter, the Commissioner has submitted his further report as per Annexure 'L' along with the sketch indicating that the disputed property comes within Sy.No.27/2. Thereafter, 7 RWs.1 and 2 have been examined. By order dated 22.1.2011, the Executing Court has ordered to issue delivery warrant in respect of the petition schedule property situated in Sy.No.27/2 as shown in the Commissioner's report and the sketch. Therefore, this writ petition.
5. The learned counsel for the petitioners contended that the impugned order cannot be sustained in law and it is illegal. The Executing Court has erred in accepting the Commissioner's report. The Commissioner instead of measuring 1360 links being the western boundary of the land in Sy.No.80 has measured 1455 links. Instead of measuring 122 links of northern boundary of Sy.No.27/2 has measured 222 links. This has resulted in displacement of northern and north-eastern boundary and improper fixation of land in Sy.Nos.27/1 and 27/2. FMB Book is not a original document. Tippany copy should have been obtained. The decree passed in S.C.No.12/1979 has become inexecutable. The Executing Court has 8 committed illegality. The identity of the property has not been established. The previous Execution in Ex.case No.109/1980 has been suppressed. He also submitted that the Commissioner report cannot be relied upon and therefore, the impugned order cannot be sustained in law.
6. As against this, the learned counsel for the 1st respondent submitted that the impugned order does not call for interference. He also submitted that the decree passed in S.C.No.12/1979 is a consent decree. The judgment- debtor agreed to hand over possession on 13.09.1980. He did not hand over possession. Therefore, execution proceedings were initiated in Execution Case No.109/1980. It was closed without executing the decree. Thereafter, the present Execution Petition has been filed. As the judgment-debtor raised objection contending that his house is situated in Sy.No.80 of Chibidre village and he is not in possession of thatched house bearing Door No.1-56 of Charmady Panchayath, the Commissioner was appointed. 9 The Court Commissioner submitted his report saying that the property lies within Sy.No.27/2. That was objected to by the judgment-debtor. Therefore, the Executing Court rejected the Commissioner's report and a senior member of the Bar was appointed as a Court Commissioner to get the property measured and sketch prepared. Pursuant to that, the Commissioner submitted his report along with the sketch showing the disputed property in Sy.No.27/2. The judgment-debtor objected for the Commissioner's report. Therefore, the Court Commissioner requested the Court to give assistance of the previous DDLR to execute the Commissioner report. Thereafter, further report has been submitted along with the sketch showing the disputed property in Sy.No.27/2. Therefore, the executing Court has ordered to issue delivery warrant and it does not call for interference. He placed reliance on the decision of Hon'ble Supreme Court reported in (2003)6 SCC Page 675. 10
7. I have carefully considered the submissions made by the learned counsel for the parties.
8. The point that arise for consideration is:
Whether the impugned order calls for interference?
9. It is relevant to note, the suit in S.C.No.12/1979 has been filed for ejection of the original judgment debtor and consent decree has been passed. The judgment debtor has not delivered possession. Therefore, execution proceedings have been initiated in Execution Case No.109/1980. Delivery warrant has been issued. The Court Amin has reported that the door number of the shop of the judgment-debtor is 1-70 and the construction is in Sy.No.27/2 and 80 and the door number mentioned in the warrant is 1-56 and it is not found and therefore, possession cannot be delivered. Consequently the execution proceedings have been closed. Subsequently, the decree holder has filed Execution petition No.52/1983. 11 The original judgment-debtor has filed objections contending that his house is situated in Sy.No.80 of Chibidre village and he is not in possession of thatched house bearing door No.1-56 of Charmady Panchayath. Consequently, the executing Court has appointed Court Commissioner. The Court Commissioner has submitted his report dated 03.09.1984 stating that the building lies within Sy.No.27/2. The judgment-debtor has raised objections to the Commissioner's report contending that the measurements are not properly taken and the surveyor has failed to see the stone mark between survey lines measuring 200 and 1360. Consequently, the executing Court has rejected the Commissioner's report and by order dated 31.03.1992, the executing court has appointed a senior advocate as Court Commissioner to get the property measured and sketch prepared through the District Surveyor, Dakshina Kannada, Mangalore. The Commissioner has submitted his report dated 22.09.1994 12 along with the sketch showing that the disputed property in Sy.No.27/2. The judgment-debtor has raised objections contending that the Commissioner has not measured the property with reference to the existing measurements of Survey line measuring 1360. There in no stone at a distance of 1455. The measurement was adopted only to include the disputed building in Sy.No.27/2. Therefore, the Commissioner may be directed to fix the stone at 1360 and then carry out the further measurements. Pursuant to that, the Commissioner has filed memo dated 06.10.1998 requesting the executing Court to direct the DDLR, Dakshina Kannada, Mangalore to provide the assistance of previous DDLR, K.Gopal. The executing Court has permitted the Court Commissioner to take assistance of Sri.K.Gopal, the DDLR, Mangalore. Thereafter, further report has been submitted along with the sketch. The Commissioner and Sri.K.Gopal, DDLR have been examined.
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10. The report of the commissioner shows that the property has been identified. The Commissioner has fixed the survey stones of Sy.No.80 with reference to the rock mark between the survey line measuring 1360 and 200. The Commissioner has measured the property with reference to existing measurement of survey line measuring 1360. It is stated, the measurement started from the rock mark and fixed a point at 1360 and fixed a survey stone there. After fixing the survey stones at 1360, the other stones of Sy.No.80 were fixed and further measurements were carried out and fixed all the survey points of Sy.Nos.80, 196, 181/2, 88/1, 98/2, 28/2, 28/1, 27/1, 27/2, 26/2B. 24/3 and 25/2B. It is stated, after taking measurements of the survey numbers it is seen that the disputed property is situated in Sy.Nos.27/2 as shown in the sketch. The Commissioner has also fixed a point at 1455 from the rock mark. If the measurement is taken as 1360 or 1455 the survey measurement line 216 of 14 Sy.No.80, 27/1 & 27/2 will not be effected in any way as shown in the sketch and the disputed building will remain in Sy.No.27/2 only. It is stated, if the measurement is taken as 1455 it will effect the boundaries of Sy.Nos.28/2, 28/1 and 98/1 as shown in the sketch. If 1110 measurement is changed then only it will effect Sy.Nos.27/1 and 27/2. The Commissioner has fixed all the survey stones of Sy.Nos.27/1 and 27/2 after verifying the measurements of survey fields on all the four sides of the aforesaid survey Nos. It is stated, the identification of Sy.Nos.27/1 and 27/2 is from the FMB and survey measurement of other surrounding survey numbers from the rock mark. The mistake reported in the first report has been corrected. The disputed building is situated in 27/2 and not in Sy.No.80.
11. It is clarified that the measurement of northern survey line of Sy.No.27/2 is 222 links and it is correct. If 222 links is taken, then the extent of Sy.No.27/2 is 49 cents and it tallies with the extent shown in the FMB and 15 Adangal. If the extent is taken as 122 links, then the survey line is not joining with 138 survey line of Survey No. 27/2. Without joining these two survey lines, the measurement of Sy.No.27/2 cannot be given. The sketch produced along with the Commissioner's report shows that the disputed property is in Sy.No.27/2. The disputed property is identified and it is in Sy.No.27/2. There is no valid reason to discard the Commissioner's report. The Executing Court has rightly accepted the Commissioner's report and issued delivery warrant. It does not call for interference. There is no merit in this writ petition and therefore, it is liable to be dismissed.
Accordingly, the writ petition is dismissed. Send back the LCR.
Sd/-
JUDGE Bss/Pv/Dvr