Karnataka High Court
Mr Sushma M Mally vs Mangalore Ladies Club on 19 June, 2018
Author: S G Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JUNE 2018
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION NO.13874 OF 2018 (GM-CPC)
BETWEEN:
1. MRS.SUSHMA M MALLY
W/O. LATE. K.MANMOHAN MALLY,
AGED ABOUT 44 YEARS
RESIDING AT "SUSHMA"
KUNJATHBAIL
MANGALORE-575 015 (DK).
2. ADITHYA
S/O. LATE. K.MANMOHAN MALLY,
AGED ABOUT 21 YEARS
RESIDING AT "SUSHMA"
KUNJATHBAIL
MANGALORE-575 015 (DK).
3. MEDHA
D/O. LATE. K.MANMOHAN MALLY,
AGED ABOUT 19 YEARS
RESIDING AT "SUSHMA"
KUNJATHBAIL
MANGALORE-575 015 (DK). ...PETITIONERS
(BY SRI.K. SHASHIKIRAN SHETTY SENIOR COUNSEL, FOR,
SRI. KIRAN.J., ADV.)
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AND:
MANGALORE LADIES CLUB
LIGHT HOUSE HILL ROAD
MANGALORE-575 001(DK)
A SOCIETY REGISTERED UNDER
THE KARNATAKA SOCIETIES REGISTRATION ACT
BY ITS SECRETARY
SHIRLEY COELHO,
W/O S.J.F. COELHO
AGED ABOUT 62 YEARS
R/AT, COELHO LANE
FALNIR, MANGALORE-575 001. ...RESPONDENT
(BY SRI. M. SUDHAKAR PAI, ADV. FOR C/R)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER DTD:07.03.2018 MADE IN I.A.NO.8 IN
O.S.NO.163/2014 PASSED BY THE COURT OF PRINCIPAL
SENIOR CIVIL JUDGE AND CJM, MANGALURU D.K. AND
CONSEQUENTLY DISMISS THE I.A.NO.8 FILED BY THE
PLAINTIFF/R-1 UNDER ORDER 26 RULE 9 READ WITH
SECTION 151 OF CPC IN O.S.NO.163/2014 ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioners are before this Court under Article 227 of the Constitution of India challenging the order dated 07-03-2018 on I.A.No.8 in O.S.No.163/2014 passed by the Principal Civil Judge, Mangaluru, D.K. 3
2. Petitioners are the defendants and respondent is the plaintiff in O.S.No.163/2014 which is filed for a judgment and decree for possession directing the defendants to deliver vacant possession of the plaint 'C' schedule property to the plaintiff and for a decree of permanent injunction restraining the defendants and their men from tress-passing the entire plaint 'C' schedule property or any portion thereof and for mesne profits.
3. It is the case of the plaintiff that the defendants had encroached a portion of plaint 'A' schedule property and the same is shown in the plaint as 'C' schedule property. 'B' schedule property is the property of defendants whereas 'A' schedule property is the property of plaintiff. The defendants appeared before the Court and filed their written statement denying the encroachment and contended that they purchased 'B' schedule property as it is and there existed a compound wall bifurcating the 'A' and 'B' schedule properties prior to the filing of the suit and even before the defendants 4 purchased the 'B' schedule property. When the matter was at the stage of defendants' evidence, the plaintiff filed an application I.A.No.8 under Order XXVI Rule 9 of CPC for appointment of an advocate as Court Commissioner with the Surveyor's assistance for the purpose of measuring the portion of 'A' schedule property which has been encroached by the defendants. The said application was opposed by the defendants stating that the Commissioner cannot be appointed to collect the evidence and the plaintiff cannot be permitted to fill the lacuna in the evidence let in by her. The trial Court on consideration of the application, by its order dated 07-03-2018 allowed the application and appointed the Commissioner. The said order is under challenge before this Court in this writ petition.
4. Heard the learned Senior counsel for the petitioners and learned counsel for the caveator/respondent. Perused the writ papers.
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5. Learned Senior Counsel appearing for the petitioners submits that the trial Court committed a grave error in allowing the application filed under Order XXVI Rule 9 of CPC which amounts to collection of evidence. The matter is set down for defendants' evidence and at this stage, the application filed by the plaintiff is not maintainable. According to the learned Senior Counsel, the defendants had purchased the said property as it is and there was already a compound wall bifurcating the 'A' and 'B' schedule properties. The learned Senior Counsel further submits that there is no encroachment and the plaintiff nowhere in the plaint has demonstrated as to how the encroachment is made by the defendants and when the encroachment has taken place. It is his further submission that in the year 2011 itself, there was a survey conducted with regard to encroachment and second survey was also conducted in the year 2012. In the survey conducted in the year 2011, the Deputy Commissioner has clearly stated that there is no encroachment on the part of the defendants. It is further submitted that when the 6 plaintiff has not stated about the encroachment as to when encroachment has taken place, the Court could not have appointed the Commissioner to get the details. It is further submitted that the portion which the plaintiff claims is the only access to the defendants and only with malafide intention, the present application is filed.
6. Per contra, learned counsel appearing for the Caveator/respondent submits that the entire case of the plaintiff is that the defendants have encroached 'C' schedule property which is to the Southern side of 'A' schedule property. It is further submitted that there was a survey conducted in the year 2012 by the Revenue Authorities, in which report it has come on record that the defendants have encroached a portion of the plaintiff's 'A' schedule property. There are two reports contrary to each other which are of the years 2011 and 2012. Further, the learned counsel for the Caveator/Respondent submits that it is better to have a Commissioner appointed under the Court supervision. 7 Therefore, they have filed the said application. Earlier also, the plaintiff had filed an application for appointment of Commissioner which was rejected by the trial Court and the said order was the subject matter of writ petition before this Court in W.P.No.37302/2016. The said writ petition was disposed of with a liberty to the petitioner to request the trial Court to consider the I.A. for appointment of Commissioner at an appropriate stage. Therefore, he submits that the plaintiff has filed an application at the appropriate stage for appointment of Commissioner before the commencement of defendants' evidence. He further submits that the respondent herein has challenged the Survey report dated 29-11-2012 submitted by the Tahsildar, D.K. in W.P.No.28879/2015 contending that the report submitted by the Tahsildar is factually incorrect and does not take note of the earlier survey conducted and therefore, it is bad in law. While considering the said writ petition, this Court at paragraph 5 of the said order has observed as follows:
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"5. In my view, question whether there has been any encroachment by the private respondents into the property belonging to the petitioner is a matter which has to be decided by the Civil Court in a properly instituted suit. It is also noticed from the pleadings, particularly, in paragraph No. 5 of the writ petition that O.S.No.163/2014 has been pending on the file of the Principal Senior Civil Judge and C.J.M., Mangalore. The said suit has been filed by the petitioner themselves."
7. In support of their case, learned counsel for the respondent relies upon a decision reported in 2014(2) KCCR 1652 in the case of BHIMAPPA RAYAPPA CHOUGALA v/s SHRIKANT S/O. KEMPANNA CHOUGALA. Paragraph 3 of the said judgment reads as under:
"The suit is one for possession and injunction.
The plaintiffs claim, the defendants have
encroached upon their property. Only if the
plaintiffs are able to show that the defendants have encroached upon their property, they would be entitled to the relief. Any amount of oral evidence is not a substitute or sufficient to prove the 9 encroachment. To cut short the litigation to reduce recording evidence, the trial Court in its wisdom, thought it fit to appoint a commissioner even before the commencement of the trial. That is how the duration of the litigation could be curtailed and speedy disposal of the civil matter could achieved."
Thus, he requests for dismissal of the writ petition.
8. The suit is one for possession of the 'C' schedule property with a contention that the defendants have encroached 'C' schedule property. The defendants who are petitioners herein contended that they have purchased the property as it is and there was a compound wall already existing before filing of the suit itself, bifurcating the 'A' and 'B' schedule properties. 'C' schedule property is the encroached portion which is Southern side of the plaint 'A' schedule property. The Revenue Authorities in the year 2011 had conducted a survey and reported that there is no encroachment, but subsequent survey conducted on 29-11-2012 states that there is encroachment on the part of 10 the defendants as contended by the plaintiff. The said report was the subject matter of writ petition in W.P.No.37302/2016, wherein this Court had observed that whether there has been any encroachment by the defendants in the property belonging to the plaintiff is a matter to be decided by the trial Court in the suit in O.S.No.163/2014. In the instant case, when the plaintiff has specifically contended that the defendants have encroached a portion of 'A' Schedule property which is described as 'C' schedule property, as held by this Court in the decision cited supra, any amount of oral evidence would not substitute or sufficient to prove the encroachment. The decision cited supra would answer all the contentions raised by the petitioners. The Commissioner appointed would measure the property and would be in a position to point out the portion of encroachment or otherwise. As observed by the trial Court in its order, the report of the Commissioner would not decide the issue and it would be only a piece of evidence. Therefore, it is for the 11 parties to prove their case based on such report and all other documentary evidence available on record
9. In my view, the order of the trial Court would not suffer from any error or irregularity. Petitioners have not made out any ground to interfere with the order passed by the trial Court. The writ petition is dismissed as devoid of merits.
Sd/-
JUDGE mpk/-* CT:SK