Karnataka High Court
Sushilabai W/O Late Hawappa Hallikhed vs Shanti Vardhak Education Society ... on 29 January, 2013
Author: N.Kumar
Bench: N.Kumar
1
IN THE HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 29TH DAY OF JANUARY 2013
BEFORE
THE HON'BLE MR.JUSTICE N.KUMAR
WRIT PETITION Nos.81890-893 OF 2010(GM-CPC)
BETWEEN:
1. SUSHILABAI
W/O LATE HAWAPPA HALLIKHED
AGE ABOUT 62 YEARS
OCCUPATION: HOUSEHOLD
2. RAJENDRA
S/O LATE HAWAPPA HALLIKHED
AGE ABOUT 42 YEARS
OCCUPATION: ASSISTANT ENGINEER
IRRIGATION DEPARTMENT, BIDAR
3. ARVIND
S/O LATE HAWAPPA HALLIKHED
AGE ABOUT 40 YEARS
OCCUPATION: PHARMACIST
ALL RESIDENT OF H.NO.19-01-197
SHIVANAGAR SOUTH BIDAR PROPER
4. VARSHA
W/O MALLIKARJUN CHAPTE
AGE ABOUT 38 YEARS
OCCUPATION: HOUSEHOLD
(D/O LATE HAWAPPA HALLIKHED)
R/O M.E.S. QUARTERS BANGALORE
... PETITIONERS
2
(BY SRI K.M.GHATE, ADVOCATE)
AND:
SHANTI VARDHAK EDUCATION SOCIETY
BHALKI, THROUGH ITS SECRETARY
BASWANAPPA
S/O HANMSHETTY HOSSALE
AGE ABOUT 72 YEARS
OCCUPATION ADVOCACY
RESIDENT C/O DR.K.G. PATIL
OPP: DISTRICTJAIL
BIDAR PROPER ... RESPONDENT
(BY SRI GANGADHAR S. MAJGE &
SRI M. SUDARSHAN, ADVOCATES)
THESE WRIT PETITIONS FILED UNDER ARTICLES 226
AND 227 OF CONSTITUTION OF INDIA PRAYING TO ISSUE A
WRIT OF CERTIORARI, QUASHING THE ORDER DATED
24.05.2010 PASSED IN O.S.NO.59/1993 ON THE FILE OF THE
ADDL. CIVIL JUDGE (SR.DN) AT BIDAR VIDE ANNEXURE-H.
THES PETITIONS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
These writ petitions are filed challenging the order passed by the Trial Court, which has directed re-survey of the land and submission of report as per the earlier order dated 11.08.2008.
3
The material on record discloses that in the suit in O.S.No.59/1993 on 11.08.2008, the order came to be passed appointing the Court Commissioner to survey the said land and submit his report with a suit sketch. The suit land is bearing Sy.No.69/A measuring 2 acres. Subsequently, the order was modified directing the DDLR to be appointed as Court Commissioner. The Court Commissioner was appointed to measure the property and to submit his report. In the report he has only shown the extent of 1 acre 8 guntas which are in the possession of the plaintiff. His report is silent about the remaining extent of land and who is in possession of the property. Therefore, when he submitted the report, objections were filed for rejection of the said report as it is not complete and request is made for fresh survey. Accepting the said contention the Trial Court has allowed the application for fresh survey. Aggrieved by the said order, present writ petitions are filed.
4When the Commissioner is appointed to prepare a sketch and measure the suit schedule property, which measures 2 acres of land, the Commissioner should have located that 2 acres of land which is the suit schedule property as mentioned in the registered sale deed with the boundaries. Then he should have shown in the sketch prepared, who is in possession of which portion. In the sketch, which is now prepared, 1 acre 8 guntas is in the possession of the plaintiff. But the sketch is silent about the remaining extent of the land i.e., 32 guntas of the land. If his case is that the land in Sy.No.69/A measures only 1 acre 8 guntas and not 2 acres that should be made clear. It is not said so. In fact, the material on record shows that the remaining extent of land is converted into non-agricultural purposes and sites have been formed and those have been alienated and these things are pointed out by the surveyor in the report. The survey sketch and report submitted by him is incomplete. Under those 5 circumstances, the Trial Court has directed to re-survey of the entire extent of 2 acres and to submit the report. The said order cannot be found fault with. I do not find any merits in the writ petitions. Accordingly, writ petitions are dismissed.
Sd/-
JUDGE NB*