Karnataka High Court
Smt Kasthuri Bhat vs Smt Ashalatha on 12 December, 2022
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 6870 OF 2018 (GM-CPC)
BETWEEN:
SMT KASTHURI BHAT
SINCE DECEASED BY LEGAL HEIRS
1. SMT S VIDYA NAYAK
WIFE OF SRI MANJUNATH NAYAK
AGED ABOUT 53 YEARS,
R/AT KALLARE PUTTUR KASABA GRAMA
POST DARBE PUTTUR TALUK
D K DISTRICT-574202
2. SRI DINESH BHAT
S/O LATE V ANANTHA BHAT
AGED ABOUT 46 YEARS,
R/AT MAHALASAKRUPA
PARLADKA HOBLI
PUTTUR KASABA VILLAGE,
PUTTUR TALUK
D K DISTRICT-574201
3. SRI SATHISH BHAT
S/O LATE KASTHURI BHAT
AGED ABOUT 45 YEARS,
R/AT MAHALASA KRUPA
PARLADKA HOBLI
PUTTUR KASBA VILLAGE,
PUTTUR TALUK
D K DISTRICT-574201
...PETITIONERS
(BY SRI. RAJARAM SOORYAMBAIL, ADVOCATE)
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AND:
1. SMT ASHALATHA
W/O SUKUMAR SHETY
AGED ABOUT 53 YEARS,
R/AT DWARAKA HOUSE
KALLIMAR IN PARLADKA ROAD
PUTTUR TALUK
D K DISTRICT-574201
2. SRI SUKUMAR SHETTY
S/O RAMANNA SHETTY
AGED ABOUT 63 YEARS,
R/AT DWARAKA HOUSE
KALLIMAR IN PARLADKA ROAD
PUTTUR TALUK
D K DISTRICT-574201
3. SRI K SHIVARAM BHAT
S/O SHANKAR NARAYANA BHAT
AGED ABOUT 58 YEARS,
R/AT SHIVA NIVAS, PARLADKA HOSUE
PUTTUR TALUK
D K DISTRICT-574201
4. KUM INDIRA SHRADDHA
D/O K SHIVARAM BHAT
AGED ABOUT 23 YEARS
R/AT SHIVA NIVAS, PARLADKA HOSUE PUTTUR
TALUK D K DISTRICT-574201
...RESPONDENTS
(BY SRI. VIKAS M, ADVOCATE FOR R1 & R2;
SRI. K.GOVINDARAJ, ADVOCATE FOR R3 & R4)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
COMMON ORDER DTD 16.2.2015 ON I.A.NO.XII AND XIII FILED
IN O.S.NO.169/2010 ON THE FILE OF PRINCIPAL CIVIL JUDGE
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AND JMFC, PUTTUR, DAKSHINA KANNADA DISTRICT, TRUE
COPY OF WHICH PRODUCED AS ANNEXURE-A.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is by the plaintiff's legal heirs in O.S.No.169/2010 on the file of the Principal Civil Judge and JMFC, Puttur (for short, 'the civil Court'). The petitioners have impugned the civil Court's order dated 16.02.2015, and the civil Court by this impugned order has disposed of two [2] applications filed by the petitioners as also the respondents (I.A.Nos.XII and XIII).
2. The petitioners' application is under Section 151 of the Code of Civil Procedure, 1908 (for short, 'CPC') for directions to the Court Commissioner to measure the subject property on the basis of "FMB Sketch" and not to measure the subject property on the basis of unauthenticated/unauthorized sketch relied upon by the respondents. The first respondent's application is also under Section 151 of CPC, and this application is for directions to the Court Commissioner to measure the subject property as -4- per the true copy which is asserted to be part of the Land Tribunal records in LRYT No.6434/74-75.
3. The civil Court has directed the Commissioner to measure the subject property on the basis of "FMB Sketch"
as also the sketch which is relied upon by the first respondent asserting that it is part of the Land Tribunal records. The civil Court has opined that it cannot direct the Court Commissioner to ignore the sketch which is alleged to be part of the Land Tribunal records while measuring the subject property, and such direction would be a negative direction. The civil Court has concluded that there is no material to justify a negative direction.
4. Sri. Rajaram Sooryambail, the learned counsel for the petitioners, submits that the petitioners' grievance with the civil Court's order is because it enables the survey based on an unauthenticated copy. The first respondent has not produced a certified copy and unless a certified copy is produced, a survey cannot be conducted on the basis thereof. When queried, Sri. Rajaram Sooryambail submits that the FMB Sketch for the subject property will also have -5- to be secured by the Court Commissioner, a learned member of the Bar.
5. If the member of the Bar has to ensure measurement of the subject property as a Commissioner, it must be on the basis of authenticated copies and not otherwise. Even the petitioner has not furnished authenticated copies of the FMB Sketches. The onus must be on the parties to ensure that the authenticated copies of the FMB Sketches and the sketch, which is said to be part of the Land Tribunal records, are produced. The civil Court in its impugned order has not provided for the same and therefore, this Court must intervene. This Court must intervene to this limited extent.
6. Sri. Rajaram Sooryambail states that the petitioners will place on record authenticated copies of FMB Sketches of the subject property before the civil Court within four [4] weeks from the date of receipt of a certified copy of this order, and if this submission made on behalf of the petitioners is accepted, there must be a similar accommodation for the first respondent. This Court must -6- also provide for the next course of action in the event, either the petitioners or the first respondent fails to produce certified copies as aforesaid. Hence, the following:
ORDER [i] The petition stands disposed of permitting the petitioners and the first respondent to file certified/authenticated copies of FMB Sketches/Sketch which is said to be part of the Land Tribunal record. They shall file such certified copies before the civil Court within four [4] weeks from the first date of hearing after the date of receipt of a certified copy of this order.
[ii] If the certified copies are produced accordingly, the civil Court shall pass suitable orders for survey based on these sketches and if for any reason, either the petitioners or the first respondent fails to place on record the corresponding sketches, the civil Court shall ensure the Commissioner is called upon to measure the subject property based on the -7- certified copies that are filed and call for the report expeditiously.
Sd/-
JUDGE RB