Karnataka High Court
Sri. C. N. Rudramurthy vs Sri. C. R. Nagappa & Sons on 17 January, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
WRIT PETITION NO.61170 OF 2016 (GM-CPC)
BETWEEN:
SRI. C. N. RUDRAMURTHY
S/O. LATE C.R. NAGAPPA,
AGED ABOUT 64 YEARS,
R/AT NO.40, HOSPITAL ROAD,
BANGALORE - 1.
...PETITIONER
(BY SRI. CHANDRASHEKHAR PATIL, ADV.)
AND
SRI. C. R. NAGAPPA & SONS
REGISTERED CHARITABLE TRUST,
NO.16, KASTURBA ROAD,
BANGALORE-560 001,
REPRESENTED BY ITS TRUSTEE SECRETARY,
SRI. C. N. KUMAR,
S/O. LATE C.R. NAGAPPA,
AGED ABOUT 64 YEARS.
...RESPONDENT
(BY SMT. VAISHALI HEGDE, ADV.)
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THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DTD. 21.10.2016 PASSED ON IA NO.XVI IN
O.S.NO.4168/2010 BY THE XVI ADDL. CITY CIVIL JUDGE,
BANGALORE [CCH NO.28] AT ANNEXURE-G AND
CONSEQUENTLY ALLOW THE APPLICATION I.A.NO.XVI AT
ANNEXURE-D SEEKING APPOINTMENT OF COMMISSIONER
UNDER ORDER XXVI RULE 9 R/W SEC.151 OF C.P.C.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner being aggrieved by the order dated 21.10.2016, passed on I.A.No.16 in O.S.No. 4168/2010 by the XVI Addl. City Civil Judge, Bangalore (CCH-28) has filed the present writ pn.
2. Brief facts leading rise to filing of this pn are as under:
The petitioner filed a suit in O.S.No.4168/2010 for the relief of mandatory injunction directing the respondent to take steps for removal of illegal and unauthorized structures put up on the suit schedule 3 properties as shown in the annexed plan at Annexure-
B and to get the said structures removed forthwith and also sought for mandamus directing that in the event of failure on the part of the respondent to remove the said structures, same may be got removed by the Court by appointment of a Commissioner or in any other manner. In the said suit the respondent filed written statement. Parties have adduced evidence. When the case was posted for argument, the petitioner filed I.A.No.16 seeking to appoint an ADLR as the Commissioner to conduct survey and measure the properties bearing No.13 and 14 and report the entire extent of the properties along with boundaries and also to find out the extent of the entire land in 'A' and 'B' portion of the plaint sketch map. The petitioner has filed an affidavit stating that the petitioner has filed a suit for mandatory injunction for removal of unauthorized structures put up on the 4 Schedule-B property. It is contended that property bearing No.13 and 14 was originally owned by the petitioner. Property No.13 measuring 14650 sq.ft.
was said to be gifted by the petitioner to the respondent-Trust under the gift deed dated 29.03.1978, in order to construct a marriage hall and student hostel. The respondent is said to have illegally installed generators and other equipments in the Schedule-B property belonging to the petitioner. It is contended that the petitioner is said to have continued to be in the ownership of the remaining portion of land. It is further contended that common tenant of petitioner and respondent is said to have installed generators and other equipments in Schedule-B property of the plaint sketch. The said tenants vacated 'A' and 'C' schedule properties. The respondent refused to remove the installation in Schedule-B property. It is contended that during the 5 course of cross-examination of DW-1, it is stated that respondents have no objection to appoint a surveyor to measure the properties. Hence on the basis of the admission made by DW-1, the petitioner has filed an application to appoint ADLR as a Commissioner.
The said application was opposed by the respondent contending that the application is filed at the final stage of arguments and the said application is filed to drag on the matter. It is contended that gift deed in respect of property No.13 measuring 14,650 sq.ft., was gifted by the petitioner to the defendant- Trust under the registered gift deed dated 29.03.1978. The ownership of the properties No.13 and 14 by the petitioner is an admitted fact. It is contended that properties bearing No.13 and 14 is said to be measuring 17,050 sq.ft. and not 18,034 sq.ft. as stated in the plaint. The petitioner executed 6 a gift deed to the extent of 14,650 sq.ft. The gifted portion is said to include the main building bearing Municipal No.13 (old) and a portion of Municipal No.14 (old), in all measuring 14,650 sq.ft. The measurement of remaining property was retained by the petitioner to an extent of 2,400 sq.ft. and not 3,384 sq.ft. It is contended that the generator installed in 'B' portion in the plaint sketch belongs to the respondent-Trust. There is no relationship of common tenant to the petitioner and respondent. If the petitioner is aggrieved by the measurement and boundaries in respect of the properties No.13 and 14, petitioner is always under the liberty to approach the competent authority in its private capacity and get the survey conducted and the same may be rectified, if the petitioner feels necessary. The relief sought by the petitioner is said to have no bearing on the 7 measurement of the property. Hence prayed to reject the application.
The Trial Court after hearing the parties, rejected the said application vide order dated 21.10.2016. The petitioner aggrieved by the same, has filed this writ petition.
3. Heard Sri. Chandrashekar Patil, learned counsel for petitioner and Sri. K. N. Phaneendra, learned Senior counsel appearing on behalf of Smt. Vaishali Hegde, for respondent.
4. Learned counsel for the petitioner submits that if ADLR is appointed as a Commissioner to measure the suit schedule properties, no injustice would be caused to the respondent. He further submits that if a report is submitted by the Court Commissioner, it would not lead to collection of 8 evidence. He further submits that the title deed of the petitioner is of the year 1955. In the said title deed, measurement and extent is not mentioned. He further submits that the respondent has categorically disputed the extent of schedule properties as 18,034 sq.ft., as claimed by the petitioner, out of which admittedly an extent of 14,650 sq.ft. was gifted by the petitioner to the respondent. As such, remaining extent was retained by the petitioner. He further submits that the Trial Court can come to a conclusion on the basis of the report of the Court Commissioner. He further submits that the Trial Court has committed an error in rejecting I.A.No.16. He further submits that the impugned order passed by the Trial Court is arbitrary and perverse and same is liable to be set aside. Hence, on these grounds, he prays to allow the writ petition.
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5. Per contra, learned Senior counsel for the respondent submits that the petitioner has gifted the portion of property to an extent of 14,650 sq.ft. in favour of respondent - Trust and the respondent is in possession to an extent of 14,650 sq.ft. The respondent is not in possession beyond what has been gifted to the respondent. He submits that the petitioner has filed a suit for mandatory injunction on the ground that due to installation of generators, the noise and sound are generating from the generators and smoke emanating there from will result in noise and air pollution and cause inconvenience and hardship to the petitioner. It is not the case of the petitioner that the respondent is in excess possession of the property which was gifted. He further submits that if the Court Commissioner is appointed and submits a report, virtually it amounts to collecting 10 evidence. In support of his argument, he has placed reliance on the following judgments:
1. H.R.Ramaiah & Ors. vs. Puttalaxmamma reported in 2015 SCC Online KAR 4102.
2. Annappa Mestha vs. Mutayya Achari reported in ILR 2002 KAR 3599.
3. Miss Renuka vs. Sri. Tammanna & Ors. reported in ILR 2007 KAR 3029
4. Sundaramma vs. S. Venkatesh reported in SCC Online KAR 11624.
He further submits that the Trial Court was justified in passing the impugned order. Hence, on these grounds, he prays to dismiss the writ petition.
6. Perused the records and considered the submissions made by learned counsel for the parties.
7. The petitioner filed a suit for mandatory injunction on the ground alleged in paragraph Nos.10 and 11 of the plaint, which reads as under: 11
"10. The plaintiff submits that since BPL Limited was the common tenant in respect of both A and C schedule properties, the entire property including the B schedule property was being used by them. The said BPL Limited recently vacated and has handed over vacant possession of the suit A and C schedule properties to the defendant and plaintiff respectively. It is only after taking possession of the suit C schedule property from the tenant that the plaintiff realized that the structures and installations on the suit B schedule property were causing inconvenience and nuisance for the enjoyment of the suit C schedule property belonging to the plaintiff. The noise and sound coming from the generators and the smoke emanating there from will result in noise and air pollution and cause inconvenience and hardship to the plaintiff in respect of the suit C schedule property belonging to him. In fact when the said structures and installations were put up on 12 the suit 'B' schedule property by the tenant, BPL in the year 1988. it was understood between the plaintiff and the defendant that the same would be removed after the tenant, BPL Limited had vacated and A and C schedule properties since the said structures and installations in B schedule property would not be required thereafter.
11. The plaintiff submits that as stated supra, he was not aware of the air and noise pollution that was being caused by the structures and installations on the suit B schedule property till the tenant BPL Limited vacated and handed over possessions of the suit C schedule property to him. The said structures and installations, in addition to causing air and noise pollution are also a hazard to the health of anyone in occupation of the A and C schedule properties. It is submitted that the plaintiff is entitled to own, possess and enjoy the suit C schedule property without 13 any obstruction or hindrance from the B schedule property or the installations and structures thereon. Photographs indicating the said structures and installations are herewith produced as Annexures-C1 to C6."
8. From the perusal of paragraphs 10 and 11 of the plaint, the petitioner has filed a suit for mandatory injunction on the ground that the noise and sound coming from the generators and the smoke emanating there from will result in noise and air pollution and cause inconvenience and hardship to the petitioner. From the perusal of the contents of the application i.e., I.A.No.16, the petitioner has stated in the application that respondent has illegally installed generators and other equipments in 'B' schedule property belonging to the petitioner. The said fact has not been pleaded by the petitioner in the plaint. On the contrary, the petitioner has stated that common 14 tenant of the petitioner and respondent has installed generators and other equipments in 'B' schedule property marked as 'B' portion in the plaint sketch and after the tenants vacated the 'A' and 'C' schedule, the respondent has refused to remove the installation in 'B' schedule property. The petitioner has sought for appointment of ADLR as a Commissioner to conduct the survey and measure the properties bearing No.13 and 14 of the suit schedule properties. The relief sought in I.A.No.16 is not in consonance with the prayer sought in the plaint. The relief sought in I.A.No.16 is outside the scope of the suit. It is not the case of the petitioner that the respondent has made an encroachment in the property of the petitioner. As discussed above, the suit is filed for mandatory injunction to remove illegal and unauthorized structures put up on the suit schedule 'B' property only on the ground that because of noise and sound 15 coming from the generators, and not on the ground that there is a variation of measurement in the property. Further, the suit is not in respect of measurement of suit schedule properties and no relief is sought in respect of measurement and no issue was framed on the point of measurement of suit schedule properties. The petitioner has filed an application seeking for appointment of Commissioner to measure the properties and submit a report.
9. In order to consider the contention of the petitioner, it is necessary to consider Order XXVI Rule 9 CPC, which reads as under:
"Commissions to make local investigations.--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 16 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:
Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules"
The need to resort to Order 26 Rule 9 of CPC ought to be felt by the Court for the purpose of elucidating certain details which in its opinion can neither be felt which can neither be had from the records nor can be produced by the parties by way of oral/documentary evidence. The details so required by the Court ought to be sought, since in their absence determination of issue in dispute cannot be 17 effectively adjudicated. Hence, necessitating the appointment of Commissioner on its own or at the instant of either of the parties.
10. In the present case, the Trial Court is of the opinion that the evidence placed on record by the parties is sufficient in determining the issue in dispute. The said view is supported by the orders of this Court in the case of H.R.RAMAIAH (SUPRA) AND ANNAPPA (SUPRA). Further, as observed above, the application filed by the petitioner for appointment of ADLR as a Commissioner, is outside the scope of the suit. If the petitioner wants to survey the properties No.13 and 14, the petitioner is at liberty to approach the competent authority in his private capacity. The petitioner cannot seek for an appointment of Commissioner in the present suit. The Trial Court, after considering the material on record, was justified 18 in rejecting the application. The order of rejecting an application for appointment of Court Commissioner is a discretionary order. The Trial Court, by exercising its discretion, has passed a detail order. Hence, I do not find any grounds to interfere with the impugned order. Accordingly, the writ petition is dismissed.
SD/-
JUDGE RD