Karnataka High Court
Smt. Parvathamma vs Sri. Siddappaji Temple Trust on 30 October, 2018
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF OCTOBER 2018
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION NO.42835 OF 2015 (GM-CPC)
BETWEEN:
SMT. PARVATHAMMA
W/O. SIDDAPPA
AGED ABOUT 58 YEARS
RESIDING AT CHIKKALLUR
KOLLEGAL TALUK - 571440
CHAMARAJNAGAR. ... PETITIONER
(BY SRI. M.SHIVAPPA, SENIOR ADV. FOR
SMT. P. C. SUNITHA, ADV.)
AND:
SRI. SIDDAPPAJI TEMPLE TRUST
HOSMATA SHRIKSHETHRA
CHIKKALLURU
KOTHANOOR POST
KOLLEGAL TALUK - 571440
REPT. BY THE SECRETARY
SRI. K. R. LINGACHAR. ... RESPONDENT
(BY SMT. SHWETHA ANAND, ADV.)
2
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER PASSED BY THE LEARNED PRINCIPAL CIVIL JUDGE
[JR.DN.] AND JMFC AT KOLLEGALA IN EX.NO.46/2004
DTD.15.9.2015 VIDE ANNEX-F.
THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner who is the objector in Execution No.46/2004 is before this Court against the order dated 15-09-2015 whereby the I.A. filed under Order 26 Rule 9 of CPC for appointment of Commissioner is rejected.
2. Petitioner is the objector and respondent is the decree holder in Ex.No.46/2004. The execution petition is filed for execution of decree passed in O.S.No.188/1995 which suit was filed for mandatory injunction and possession of the suit schedule property bearing No.579/A2 to an extent of 35 ft x 30 ft., situated at Thellanur village, Palya Hobli, Kollegala Taluk. In the execution, the petitioner who is the wife of defendant in O.S.No.188/1995 filed objector's application under Order XXI Rule 99 of CPC claiming 3 independent right over the property bearing No.579/3 measuring 34 ft x 30 ft., situated at Chikkallur village, Thellanur, Kollegal taluk. After completion of evidence by both the parties, the objector filed an application under Order XXVI Rule 9 of CPC for appointment of Commissioner for measuring the property bearing No.579/3, Katha No.159, Janjar No.166 measuring 34 ft. x 30 ft. of Chikkallur Grama Panchayat, Palya Hobli, Kollegal Taluk. In the affidavit it is stated that the suit schedule property is 579/A2 whereas the objector/petitioner is claiming property bearing No.579/3 and when the identity of the property is in question, the appropriate course open for the Court is to appoint a Commissioner to measure the property and to get a report for proper adjudication of the dispute involved in the petition.
3. A detailed objection was filed by the decree holder to the said application stating that the wife has filed objector's application only to defeat the fruits of the decree of the suit filed in the year 1995. It is further contended that there is no 4 such property bearing No.579/3. The trial Court, by its order dated 15-09-2015 rejected the application filed by the objector for appointment of Commissioner, which order is impugned in this writ petition.
4. Heard the learned Senior counsel Sri.M.Shivappa appearing for the petitioner as well as learned counsel for the respondent and perused the writ papers.
5. Learned counsel for the petitioner submits that the petitioner/objector is in occupation of the property bearing No.579/3 to an extent of 34 ft. x 30 ft. claiming independent right. The suit schedule property bearing No.579/A2 measures 35 ft. x 30 ft. and the petitioner is not concerned with the suit schedule property. But the property of the petitioner is adjacent to the suit schedule property. It is submitted that during the pendency of the execution petition, the petitioner herein had filed O.S.No.120/2007 seeking for the relief of mandatory injunction and possession in respect of the property bearing No.579/3, which was subsequently 5 withdrawn as the petitioner could not prosecute two parallel proceedings.
6. Learned Senior Counsel further submits that the trial Court misdirected itself while considering the application filed under Order XXVI Rule 9 of CPC and held that when the objector has accepted that the schedule shown in O.S.No.120/2007 and schedule shown in the petition filed by the petitioner as objector is one and same, the question of appointing the Commissioner would not arise. The said finding is wholly erroneous which requires interference by this Court.
7. Per contra, learned counsel for the respondent submits that the wife of the defendant in O.S.No.188/1995 filed the application only to defeat the fruits of the decree in O.S.No.188/1995. There is no property bearing No.579/3 and the trial Court has rightly rejected the application filed under Order XXVI Rule 9 of CPC. It is further submitted that the petitioner has filed application only to drag on the 6 proceedings so as to deny the possession of the suit schedule property.
8. I have considered the rival contentions advanced by the learned counsel for the petitioner as well as respondent.
9. The only question which arises for consideration is as to whether the trial Court was right in rejecting the application filed by the petitioner under Order XXVI Rule 9 of CPC?
10. As could be seen from the writ papers, the property in execution is No.579/A2, situated at Thellanur village, Palya Hobli, Kollegala Taluk measuring 35 ft. x 30 ft., whereas the objector/petitioner herein claims independent right over the property bearing No.579/3 situated at Thellanur village, Chikkalluru Grama Panchayat, Palya Hobli, Kollegala Taluk measuring 34 ft. x 30 ft. According to the petitioner, property of the petitioner is adjacent to the suit schedule property, but the decree holder is claiming the property of the petitioner as 7 suit schedule property. Therefore, she has filed application under Order XXI Rule 99 of CPC.
11. It is an admitted fact that, after completion of evidence of both the parties, objector/petitioner filed application under Order XXVI Rule 9 of CPC. The trial Court passed the order rejecting the said application with the following reasons:
"DPÉÃë ¥ÀuÁzÁgÀgÃÉ vÀªÀÄä C¸À®Ä zÁªÁ ¸ÀASÉå 120/2007 £ÀÄß zÁªÁ ¸ÀévÀÄÛ ªÀÄvÀÄÛ F CfðAiÀÄ ¸ÀévÀÄÛ MAzÉà JAzÀÄ M¦àPÉÆArgÀĪÀÅzÀjAzÀ £ÁåAiÀiÁ®AiÀÄzÀ ¤AiÉÆÃVAiÀÄ£ÀÄß £ÉêÀÄPÀ ªÀiÁqÀĪÀ ¸ÀA¨sª À À §gÀĪÀÅ¢®è. MAzÀÄ ªÉÃ¼É rQæzÁgÀgÀÄ DPÉÃë ¥ÀuÁzÁgÀgÀ ¸Àév£ ÀÛ ÀÄß MvÀĪ Û j À ªÀiÁrPÉÆArzÁÝgÉ JA§ ¤®ÄªÀ£ÀÄß vɼ¢ É zÀg Ý É D ¸ÀªÀÄAiÀÄzÀ°è £ÁåAiÀiÁ®AiÀÄzÀ ¤AiÉÆÃVAiÀÄ £ÉêÀÄPÀ CªÀ±ÀåPÀªÁVgÀÄwÛvÀÄ.Û CAvÀºÀ AiÀiÁªÀÅzÉà ¤®ÄªÀ£ÀÄß DPÉÃë ¥ÀuÁzÁgÀgÀÄ ¥Àqz É ÀÄPÉÆArgÀĪÀÅ¢®è. DzÀ PÁgÀt £ÁåAiÀiÁ®AiÀÄzÀ ¤AiÉÆÃVAiÀÄ£ÀÄß £ÉêÀÄPÀªÀiÁqÀĪÀ ¥À± æ Éßà GzÀ« ã ¸ÀĪÀÅ¢®è."
12. The trial Court proceeded on the basis that the schedule mentioned in O.S.No.120/2007 and the schedule mentioned 8 in the application are one and the same as such, the objector cannot seek for appointment of Commissioner. The trial Court lost sight of the fact that schedule to the objector's application and schedule in O.S.No.120/2007 is one and the same i.e., property bearing No.579/3, whereas execution schedule property is No.572/2. Therefore, the trial Court could not have rejected the said application for the reasons mentioned therein. When there is dispute about the identity of the property and location of the property, it is always open for the Court to seek assistance of Commissioner to get a report on the disputed question. In that view of the matter, the trial Court committed an error in rejecting the application. The order dated 05-09-2015 is set aside and I.A. filed by the petitioner under Order XXVI Rule 9 of CPC is allowed.
13. With the consent of both the counsels, the District Surveyor is appointed as Court Commissioner to identify and measure the properties bearing No.579/A2 as well as 9 No.579/3. The trial Court shall issue Commissioner warrant and the parties are at liberty to file memo of instructions to the Commissioner.
The Commissioner shall submit his report within 30 days from the date of issuance of Commissioner Warrant.
With the above observations, the writ petition is disposed of.
In view of disposal of the writ petition, I.A.No.1/2018 filed for vacating stay does not survive and the same is hereby rejected.
Sd/-
JUDGE mpk/-* CT:SK