Sri Anthony Stephen vs Sri Gundappa Since Deceased By Lrs on 7 June, 2011

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Karnataka High Court

Sri Anthony Stephen vs Sri Gundappa Since Deceased By Lrs on 7 June, 2011

Bench: B.S.Patil

,' 1' M  
IN THE HIGH COURT OF KARNATAI{A AT 

DATED THIS THE 7TH DAY OF JUNE,1..:I§6::.'_'V1~   .

BEFORE _ V 
TI-IE I-ION'BLE MRJUSTICE B.S;"FA'IfIL""».V -

w.1>,No.13309/2o1'1(GM~§:1?c)_;.  _  
BETWEEN:      " V' 

Sri Anthony Stephen?

Sfo Sri S.A.Jo1'ce,

Aged about 39 years,

R/at No. E504, V '  

BDA Quarters, Austin T0«Wf1,_   V   'A _

in Stage, Banga10re~47&  '        PETITIONER

(By Sri P.\7enkat;/hfjgimaniéi,  -.  '
AND: '  ' L

1. Sri  V  " _ '
Since deceagéd by 'LRS.
(a)     
W / o._1ate Sri. G"ui:1da13.pa,
Majorﬂ * -  

['b3}«:.S;'i 'Chinnati:a.ya.ppa,
.V  S"/"LG ,1a'te:'_Sri Gundappa
" . {C} 'SrIit;V1"ga1<:}3hr:r1amma,
 D /0' late Sri Gundappa,
T.'v'Iag;o1'V

A'  Sfﬁt.G.€}angamma
_ /0 late $ri Gundappa
Major



2. Sri C2.Sathishi
Aged about 50 years,
S/o Sri Gnndappa

Respondents 1(a) to (d) and No.12 are

R/at No.28, Mariamma Koil Street?

Neelasandra. Bangalore~47.

3. Sri M.A.Shahnaz, D/o Sri Mohamrned Arifulla Major, r R/at No.2, 1031A Cross, Anepalya, Neelasandra, ' _ p Bangalore--47. p _ RESFONDENTS This writ pet:ition;'is"fil.ed lu.nd_e1* Arjtiiiles 226 and 227 of the Constituti;on"«p:of' India 2: prrxayingl '~fO'..C[I.:iE1Sh the order dated 16.3.2011 passeciI;_Vl_)}I X}.W'l.'il [Addl.City Civil Judge, Mayo Hall Unit, Eiangalorefon tiieo} under order XXV I Rule 9 read with Section Vide An_neXiire~A and etc. This __writ'peti_tion 'co_ni.i_r__1g on for preliminary hearing this day, the' Court mad e" . foill,o\§_ring: ~ it ORDER ».4',1§ V-i.r._.l'Ap'p1ic-ation f:'1éa"by the petitioner --~ plaintiff in the Trial ._Conrtseeliiiigappointment of an Advocate or an Official of the Brnhat Bteng-ﬁuru Mahanagara Palike as a Court Commissioner *._for local inspection is rejected by the Court below. Aggrieved by the this writ petition is filed.

C 2}. C' "The suit C*.S.No.l{)9lO/i998 is filed for deeiaration, permanent injunction, mandatory injunction and also C' /;:»<:' ix"

5/ « _. < ,.

possession in respect of the suit schedule propertyﬁ Plaintiff elairne that he is the absolute owner of the suit: p:'op_ert,_3%-«.gtrid the defendants have illegally eneroaehed upon property and put up construction.

3. The Trial Court has rejected[thellerppleation"holtling lthat 7. in paragraph~6 of the affidavit filed the plaintiff had speeifiealljyr that the Court Commissioner wfa'S..V§1eeesSai;§f ot:t"whe§ther the 31'"

defendant was in oeeupetion proipertyeppurehaeed by her i.e. No.2, 10"? or the property situated at jlO'i" The Court below has opined_'llth:e§t;:'--:¢;he *ofVVV_phssession of the schedule property' and is legal or illegal is required to be proveellhytthel' adducing evidence and that for aseertelrring th'e'»poveseesion of the suit schedule property, the could not be appointed, as otherwise, it A the parties to eolleet evidence. The Court T hals"<furt;.heroeorrie to the Conclusion that since there was no ' "dispute vxrytiith regard to the boundary of the property between the "pavrtiel:i>; there was no need to appoint a Court Corninissioher. «WW 1}. Learned counsel for the petitioner points out hy z"efe1'ring to the affidavit filed in support of the present application. partiettlarly, paragraphs--4~ 63: 8 that defendant has purchased the property bearing No.2, I03' Cross.'_jVAnep.gilya. Bangalore, However, her vendor has put her in__p_osses_Csio'n oi' the property situated at No.10 'A' Cross. AnepeilyaiBgir;g§a.,l_poreend F that there are three crosses by nan1eV..lG*:i3 'A', C;ro'ssli'n Anepalya, Bangalore. Aecordingjito. the petitierienfiitnmthe Sale Deed produced by the 8fG~..det'er1detnt:.el which is sold to her by the 15' defendant 10111 Cross, Anepalya. the petitioner has stated Ca Court Commission for local lto""wiiether the 3"" defendant was in oeeupettilon by her in No.2, tom Cross, Anepaljta, ldangdlore-*CClor in property situated at No.10 'A' "Bangalore. His submission is that even if by defendant No.3 of the property is a matter étseertained by appointing the Commissioner and u may tantamount to collection of evidence, it llopenﬂlfor the Court below to appoint a Court Commissioner limited purpose of finding out whether the property bearing' No.2 purchased by the 3"' defendant is located at l0"! 'A' Cross or l0?" Cross.

55 U on hearinti the learned counsel for ithe«"et_;tiione;7 and s _i~> to on Careful perusal of the pleadings, while l in the contention of the learned counsel' for the Vpetitionleif, no V exception can be found to the order passed by,t'ne"Cloufjtt'below holding that local inspection tolvaseertainl"the'aott1al possession of the disputed property 3%;5i'~._defendantV Cannot be directed.

6. Therefore,' petition, I reserve liberty application making the request{ for which the petitioner has submitted to herein above. If such an application is filed; 'the'Court below shall Consider the same in 'V'aC:eo'i"dariee ifvitli law expeditiously. Sig?

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Karnataka High Court