Karnataka High Court
Sri. L. Sanjeeva vs Sri. D. Cheluve Gowda on 10 March, 2014
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 10th day of March, 2014
Before
THE HON'BLE MR JUSTICE HULUVADI G RAMESH
Writ Petition 48391 / 2012 (GM CPC)
Between
Sri L Sanjeeva, 41 yrs
S/o late M N Lakshminarasimaiah
R/a CH # 50, 5th Cross, 7th Main
Saraswathipuram, Chamarjamohalla
Mysore Petitioner
(By Sri M V Seshachala, Adv.)
And
1 Sri D Cheluve Gowda, 66 yrs
S/o Doddahydegowda
2 Smt Kamalamma, 56 yrs
W/o D Cheluvegowda
3 Sri Narashima, 36 yrs
S/o D Cheluvegowda
4 Sri Govindaraju, 31 yrs
S/o D Cheluvegowda
All are r/o Jettihundi Grama
Yelava Hobli, Mysore
2
5 Smt Susheela, 66 yrs
W/o C Ashwatha Reddy
6 Ashwatha Reddy, 74 yrs
5-6 are r/o # 149, Anikethana Road
14th Cross, Kuvempunagar
Chamaraja Mohalla, Mysore Respondents
(By Sri Vigneshwar S Shastry, Adv. For R1-4)
Writ Petition is filed under Art.226/227 of the Constitution praying
to quash the order dated 6.11.2012 - annexure F on IA 3 in OS 439/2006 by
the Sr.Civil Judge, Mysore.
Petition coming on for preliminary hearing this day, the Court made
the following:
ORDER
By the impugned order, the application filed under O 26 R 9, CPC has been rejected by the trial court. Plaintiff is the person who purchased the property from defendants/respondents 5 and 6. Prior to that, respondents 5 and 6 had purchased the property from defendants 1 to 4 i.e., respondents 1 to 4. Subsequently, respondents 5 and 6 sold the property in favour of the plaintiff. It appears by oversight or mistake, the survey number is mentioned wrongly. In that regard, seeking rectification, suit is filed by the plaintiff. In that, an application is also filed under O 26 R 9, 3 CPC seeking identification and for earmarking the boundaries before correction of the mistake. Plaintiff's possession by virtue of the sale deed executed in his favour by respondents 5 and 6, might not be disputed. May be it is the exact property or some other property. But to rectify the mistake occurred in the sale deed either as to boundary or survey number, it needs further clarification or rectification and it cannot be substituted by way of oral evidence as it will lead to confusion.
According to the counsel for the plaintiff, the Apex Court in CA 11634/1995 Shreepat Vs Rajendra Prasad & Ors - JT 2000 (7) SC 379, while deciding the case whether the courts below are correct in upholding the decree without getting the identity of the land established by issuing some survey commission to ascertain the correctness of the respective claim, has held no. It was not proper on the part of the courts below to uphold such decree and reliance of the courts below on the oral evidence is also rejected as not sufficient when a serious dispute regarding identity of the land was raised.
4
It is the contention of the counsel for defendants 1 to 4 that the suit itself is not maintainable and that plaintiff is not entitled for the relief of rectification.
So far as the claim of the parties regarding sale transaction may not be in dispute. But whether the property as mentioned in the sale deed by respondents 5 and 6 which was executed in favour of plaintiff is one and the same or a different one has to be ascertained. If at all the property available to defendants 1 is said to be sold in vaour of the plaintiff by respondents 5 and 6, then the plaintiff may not get a right but what is not in dispute is that there is property sold by 1st defendant, in favour of respondents 5 & 6. In turn, respondents 5 and 6 sold the property in favour of the plaintiff. So far, the sale is not in dispute. Either there is a mistake in the boundary or mistake in the survey number. This could only be ascertained by identifying the property which was in possession of defendants 1 to 4, sold in favour of respondents 5 and 6 and in turn, in favour of the plaintiff because in common parlance as a matter of common usage, property in possesison is enjoyed for years together sometimes 5 without noticing the mistake in the sale deed, that too it happens either due to ignorance or for want of sufficient knowledge.
In that view of the matter, for the purpose of identification in the presence of the parties as per records the property which is in possession with the actual person could be first identified by way of scientific method of conducting survey and based on possession, the property could be identified and mistake could be corrected - either that of the survey number or boundary. This does not amount to creation of evidence but rather clarifies the position in stead of litigating over the matter. For that purpose, after identification, if any mistake has occurred in the sale deed that would facilitate the trial court to pass an order whether boundary has to be rectified or the survey number has to be corrected. Petitioner to bear the expenses of the survey commissioner and to identify the property. The trial court shall order for survey commission and survey to be conducted in the presence of defendants 1 to 4, 5 and 6 and the plaintiff and if need be, the say of some neighbors who have got knowledge could be obtained. 6
With the above observation, petition is disposed of. All contentions are left open to be urged before the trial court.
Sd/-
Judge an