Karnataka High Court
Halappa S/O Yallappa Tamragundi vs Jayanna S/O Anantappa Upare on 28 March, 2024
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NC: 2024:KHC-D:5882
WP No. 113198 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MRS. JUSTICE M.G.UMA
WRIT PETITION NO.113198/2019(GM-CPC)
BETWEEN:
HALAPPA S/O YALLAPPA TAMRAGUNDI,
AGE: 40 YEARS, OCC: PRIVATE SERVICE,
R/O: KIMC QUARTERS, HUBBALLI,
DIST: DHARWAD.
...PETITIONER
(BY SRI PRASHANT S. HOSMANI, ADVOCATE)
AND:
1. JAYANNA S/O. ANANTAPPA UPARE,
AGE: 56 YEARS, OCC: BUSINESS,
R/O: VITTALPET OLD HUBBALLI,
HUBBALLI, DIST: DHARWAD.
2. MANOHAR S/O. ANANTAPPA UPARE,
AGE: 63 YEARS, OCC: BUSINESS,
R/O: VITTALPET, OLD HUBBALLI,
Digitally HUBBALLI, DIST: DHARWAD.
signed by
MANJANNA E ...RESPONDENTS
Location:
High Court of
(BY SRI S.S.NIRANJAN, ADVOCATE FOR R1 AND R2)
Karnataka
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI AND QUASH THE ORDER DATED
01.08.2019 PASSED IN O.S.NO.398/2013 PENDING ON THE FILE OF
I ADDITIONAL SENIOR CIVIL JUDGE HUBBALLI PRODUCED AT
ANNEXURE M IN THE INTEREST OF JUSTICE AND EQUITY. ISSUE A
WRIT IN THE NATURE OF MANDAMUS AND DIRECT THE TRIAL
COURT TO IMPLEMENT THE ORDER DATED 05.03.2019 PASSED BY
THIS HON'BLE COURT IN WP NO.108645/2018 WITH THE HELP OF
POLICE PROTECTION BY MEASURING. IDENTIFYING AND FURNISH
THE BOUNDARIES OF THE 15 GUNTAS OF LAND ALLEGED TO BE
BELONGING TO THE RESPONDENT NO2.1 AND SITUATED IN BLOCK
NO.496/2A+B/2 TOTALLY MEASURING 38 GUNTAS.
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NC: 2024:KHC-D:5882
WP No. 113198 of 2019
THIS PETITION, COMING ON FOR PRELIMINARY HEARING - B
GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner being defendant No.9 has filed suit in O.S.No.389/2013 on the file of the learned I Additional Senior Civil Judge, Hubballi, impugning the order dated 01.08.2019 produced as per Annexure-M.
2. Heard learned counsel Sri.Prashant S. Hosamani, appearing for petitioner and learned counsel Sri.S.S.Niranjan, appearing for respondent Nos.1 and 2.
3. Learned counsel for the petitioner submits that the plaintiff filed the suit O.S.No.389/2013 for declaration and for permanent injunction. During the pendency of the suit, Petitioner/defendant No.9 filed application under Order 26 Rule 9 read with Section 151 of the Civil Procedure Code (for short, 'the CPC'), seeking appointment of the Court Commissioner for the purpose of measuring the property and to submit the report. The said application came to be rejected and impugning the same, petitioner had approached this Court by filing -3- NC: 2024:KHC-D:5882 WP No. 113198 of 2019 WP.No.108645/2018. This Court vide order dated 05.03.2019 allowed the petition with the consent of the learned counsel for the respondents and appointed the Assistant Director Of Land Records, Hubballi, (for short, 'the ADLR') as Commissioner to conduct spot inspection of the property in question and to submit the report. When the Commission Warrant was issued and the ADLR visited the spot for execution of the Commission Warrant, objections were raised by respondent Nos.1 and 2 for measuring the property. Therefore, the petitioner has filed an application seeking clarification and to issue direction to the Commissioner ADLR to measure the property and to submit report. The impugned order came to be passed by rejecting the said application and directing the petitioner to approach this Court. Therefore, petitioner is before this Court.
4. Learned counsel submitted that the averments made in the application filed under Order 26 Rule 9 of the CPC, discloses that the petitioner has requested for -4- NC: 2024:KHC-D:5882 WP No. 113198 of 2019 appointment of the Court Commissioner preferably a Surveyor attached to the office of ADLR, to measure the property and to submit the report in respect of the suit property and 15 guntas of land alleged to be belonging to defendant Nos.1 and 2. When W.P.No.108645/2018 was filed, the learned counsel for the petitioner and learned counsel for the respondents have arrived at consensus, as a result of which petition was allowed and ADLR, was appointed as Commissioner. Even though the Court has directed the Court Commissioner to hold local inspection and to submit the report, it is obviously after measuring the land. Otherwise appointment of ADLR was not at all necessary. Hence, he prays for allowing the petition, issuing specific direction to Court Commissioner to measure the suit property including 15 guntas of land which is claimed by the respondent Nos.1 and 2.
5. Per contra, learned counsel for the respondent Nos.1 and 2 opposing the petition submitted that the petitioner have already got 15 guntas of land as per the -5- NC: 2024:KHC-D:5882 WP No. 113198 of 2019 decree passed in O.S.No.134/1992. Decree passed in the said case was never challenged by the petitioner. This Court while passing order dated 05.03.2019 in WP.No.108645/2018, specifically directed that the Court Commissioner to conduct spot inspection of the property and to submit the report. There is no direction for Survey he property in question. Under such circumstances, no such directions could be issued and accordingly, he prays for rejection of the petition.
6. Perused the materials on record.
7. Admittedly, the petitioner-defendant No.9 had filed application under Order 26 Rule 9 of the CPC praying to the trial Court to appoint Court Commissioner, preferably a Surveyor to attack to the office of ADLR for making local inspection. In the affidavit accompanying the application, defendant No.9 has stated that they have taken a specific defence in the written statement that the defendant Nos.1 and 2 are not in actual possession and enjoyment of the alleged 15 guntas of land. Under such -6- NC: 2024:KHC-D:5882 WP No. 113198 of 2019 circumstances, it is necessary to appoint the Court Commissioner, preferably a Surveyor attached to the office of ADLR, to make local inspection of the suit property and the said 15 guntas of land alleged to be belonging to the defendant Nos.1 and 2. It is also stated that the report from the Court Commissioner in this regard is necessary to completely and effectively adjudicate the lis between the parties. The said application was rejected by the trial Court as the same was opposed by respondent Nos.1 and 2 by filing objections.
8. When the said order was challenged before this Court by defendant No.9 by filing W.P.No.108645/2018. When the said petition was pending, it appears that a consensus has been reached between the learned counsel for the petitioner and the respondents and as a result petition was allowed. The ADLR, was appointed as the Court Commissioner, with direction to conduct spot inspection of the property and submit the report before -7- NC: 2024:KHC-D:5882 WP No. 113198 of 2019 the Court. It is thereafter, the Court Commissioner has visited the spot executing the Commission Warrant.
9. Respondent Nos.1 and 2 have raised objections for measuring property as there is no direction to Court Commissioner to measure the property and to submit the report. Therefore, the Court Commissioner has submitted the requisition to the trial Court seeking clarification. The impugned order came to be passed by the trial Court holding that this Court in W.P.No.108645/2018 appointed the Court Commissioner only for the purpose of spot inspection and it is under the domain of this Court to gave such clarifications. Therefore, parties were directed to approach this Court. Accordingly, petitioner is before this Court.
10. Now, the short point that is be considered by this Court as to whether the Court Commissioner i.e. ADLR was appointed only to visit the property and to submit the report or to measure the property and thereafter submit the report.
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NC: 2024:KHC-D:5882 WP No. 113198 of 2019
11. I have already noted that the application filed by the petitioner before the trial Court specifically states that the suit property and 15 guntas of the land alleged to be belonging to the defendant Nos.1 and 2 are to be measure and report is to be submitted. Therefore, the application was filed for appointment of Court Commissioner, preferably a surveyor. When the order was passed by this Court in W.P.No.108645/2018, the ADLR, was appointed as the Court Commissioner, with a direction to conduct inspection of the property in question and to submit the report. It is true that this Court has not directed the Court Commissioner to measure the property and submit the report. But the fact remains that the ADLR, is appointed as Court Commissioner and therefore, it is obvious that the Court Commissioner is required to measure the property and to submit his report. If there was no need for measuring the property and if it was the intention of this Court that the Commissioner only visits property and submits the report without measurement, there was no necessity for this Court to appoint the ADLR -9- NC: 2024:KHC-D:5882 WP No. 113198 of 2019 as Court Commissioner. By interpreting the order of this Court, ignoring the purpose for which the application was filed by the petitioner seeking appointment of the Court Commissioner, will render the order appointing the Commissioner meaningless. No prejudice will be caused to respondent Nos.1 and 2, if the Court Commissioners measures the property and submits his report.
12. Regarding the contention taken by the learned counsel for the respondents that they acquired 15 guntas of land as per decree passed in O.S.No.134/1992 and the said decree was never challenged by defendant No.9 will not have any bearing while deciding this writ petition, as admittedly the petitioner was not a party in the said suit in O.S.No.134/1992. Under such circumstances, if the Court Commissioners measures the property and submits his report on the basis of memo of instructions to be filed by parties that will definitely help the trial Court in appreciating the of materials on record and to dispose of
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NC: 2024:KHC-D:5882 WP No. 113198 of 2019 the same on merits. Hence, the writ petition is liable to be allowed. Accordingly, I proceed to pass the following:
ORDER
a) The petition is allowed.
b) The Court Commissioner i.e. Assistant Director of Land Records, Hubballi,, is directed to visit the suit property and to measure the same and also 15 guntas of land alleged to be belonging to defendant Nos.1 and 2, to submit his report as per the memo of instructions to be filed by the parties.
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JUDGE AC/CT-ASC List No.: 1 Sl No.: 18