Karnataka High Court
Krishna S/O Mahadev Mali vs Smt Sevanta W/O Chandrappa Kengare ... on 4 January, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2024:KHC-D:189
WP No. 100056 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 4TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 100056 OF 2024 (GM-CPC)
BETWEEN:
KRISHNA S/O. MAHADEV MALI,
AGE: 59 YEARS, OCC: AGRICULTURE,
R/O. MANGASULI, TQ: KAGWAD,
DIST: BELAGAVI.
...PETITIONER
(BY SRI. K.L. PATIL &
SRI. S.S. BETURMATH.,ADVOCATES)
AND:
1. SMT. SEVANTA
W/O. CHANDRAPPA KENGARE @ MADAR
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O. KHANADAL, TQ: RAIBAG,
DIST: BELAGAVI.
YASHAVANT
NARAYANKAR
2. SMT. BAYANABAI W/O. HANAMANT MADAR
AGE: 67 YEARS, OCC: HOUSEHOLD WORK,
Digitally
signed by R/O. VIKARBHAG, MIRAJ,
YASHAVANT
NARAYANKAR TQ: MIRAJ, DIST: SANGLI,
MAHARASHTRA.
MAHADEVAPPA DHULAPPA MALI
SINCE DECEASED BY HIS LRS.
3. SMT. HOUSABAI W/O. MAHADEV MALI,
AGE: 85 YEARS, OCC: HOUSEHOLD WORK,
R/O. MANGASULI, TQ: KAGWAD,
DIST: BELAGAVI.
4. BABANA S/O. MAHADEV MALI,
AGE: 62 YEARS, OCC: AGRICULTURE,
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NC: 2024:KHC-D:189
WP No. 100056 of 2024
R/O. MANGASULI, TQ: KAGWAD,
DIST: BELAGAVI.
5. SMT. SHALINI W/O. JYOTIBA KARANJI,
AGE: 53 YEARS, OCC: HOUSEHOLD WORK,
R/O. SAMRUDDHI NAGAR,
DIST: SANGLI MAHARASHTRA.
BALU MAHADEV MALI
SINCE DECEASED BY HIS LRS.
6. SMT. SUREKHA W/O. BALU MALI,
AGE: 48 YEARS, OCC: HOUSEHOLD WORK,
R/O. MANGASULI, TQ: KAGWAD,
DIST: BELAGAVI.
7. RAHUL S/O. BALU MALI,
AGE: 31 YEARS, OCC: AGRICULTURE,
R/O. MANGASULI, TQ: KAGWAD,
DIST: BELAGAVI.
8. SMT. POOJA W/O. RAMCHANDRA MALI,
AGE: 29 YEARS, OCC: HOUSEHOLD WORK,
R/O. CHINCHANI, TQ: TASAGAON,
DIST: SANGLI MAHARASHTRA.
9. SMT. PRIYANKA W/O. RAHUL MALI,
AGE: 27 YEARS, OCC: HOUSEHOLD WORK,
R/O. KALAMBI, TQ: MIRAJ,
DIST: SANGLI, MAHARASHTRA.
10. SMT. MEENA
W/O. SHAMARAO KENGARE @ MADAR,
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O. MANGASULI, TQ: KAGWAD,
DIST: BELAGAVI.
11. SMT. SWATI W/O. KHANDU CHAVAN,
AGE: 35 YEARS, OCC: HOUSEHOLD WORK,
R/O. MANGASULI, TQ: KAGWAD,
DIST: BELAGAVI.
12. SUNIL S/O. SHAMARAO KENGARE @ MADAR,
AGE: 33 YEARS, OCC: AGRICULTURE,
R/O. MANGASULI, TQ: KAGWAD,
DIST: BELAGAVI.
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NC: 2024:KHC-D:189
WP No. 100056 of 2024
13. APPA S/O. RAMA KENGARE @ MADAR,
AGE: 75 YEARS OCC: AGRICULTURE,
R/O. MANGASULI, TQ: KAGWAD,
DIST: BELAGAVI.
...RESPONDENTS
(NOTICE TO RESPONDENTS D/W V/O/D 04.01.2024)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI TO QUASH THE IMPUGNED ORDER DATED
11/12/2023 PASSED BY CIVIL JUDGE AND JMFC, KAGWAD, IN FDP
NO.07/2021 ON I.A.NO.28 VIDE ANNEXURE-H AND CONSEQUENTLY
ALLOW I.A.NO.28 IN THE INTEREST OF JUSTICE AND EQUITY.
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. Notices to respondents are dispensed with in view of the proposed order to be passed.
2. The petitioner is before this Court seeking for the following reliefs:
a. Issue a writ in the nature of certiorari and to quash the impugned order dated 11.12.2023 passed by Civil Judge & JMFC, Kagwad, in FDP No.07/2021 on I.A.No. 28 vide Annexure-H and consequently allow I.A.No. 28 in the interest of justice and equity.
b. Any other reliefs this Hon'ble Court deems fit for the facts and circumstances may please be granted.
3. The respondent No.1 had filed a Suit in O.S. No.568/1998 for partition and separate possession which came to be decreed on 18.11.2004 in FDP No.7/2021 was filed before -4- NC: 2024:KHC-D:189 WP No. 100056 of 2024 the Principal Civil Judge and JMFC, Athani. The said court, on an application in IA No.5 filed under Section 54 of the Code of Civil Procedure ['CPC' for short] appointed the ADLR, Athani to propose a scheme of partition in the suit land as per the modified preliminary decree dated 29.08.2023. Thereafter, a report came to be submitted by the ADLR. on 4.11.2023. Respondent No.2 therein, who is the petitioner herein filed his objections stating that the survey was not carried out by the ADLR but was carried out by a Taluka surveyor, the ADLR did not have any power to delegate his power to a subordinate officer and on that ground sought for rejection of the report submitted by the Commissioner.
4. The FDP Court vide order dated 11.12.2023 dismissed the said application on the ground that the ADLR had been appointed for suggesting a suitable scheme for partition, the survey being carried out by a Surveyor is not a delegation of power by the ADLR. The ADLR has considered the survey report of the surveyor and thereafter proposed a scheme for partition. As such, the objections came to be rejected and the scheme submitted -5- NC: 2024:KHC-D:189 WP No. 100056 of 2024 by the ADLR was accepted by FDP court. It is aggrieved by the same that the petitioner is before this court.
5. The submission of Sri.S.S.Beturmath, learned counsel for the petitioner is that once FDP court had appointed the ADLR as the commissioner, it was for the ADLR to personally survey the property and then propose a scheme of partition which he could not have delegated to the Taluka surveyor. The Taluk surveyor having carried out the survey and not the ADLR, the scheme of partition proposed by the ADLR ought not to have been accepted by the FDP court.
6. Heard Sri.S.S.Beturmath, learned counsel for the petitioner and perused the papers.
7. A perusal of the order appointing the ADLR dated 15.09.2023 indicates that the ADLR was appointed as a Court Commissioner under section 54 of the CPC for proposing a scheme of partition in the suit land as per the modified preliminary decree dated 29.08.2023 and since the matter was more than ten years old and there were directions issued by this Court for early disposal of the FDP, the said Judge directed the office to write a letter to -6- NC: 2024:KHC-D:189 WP No. 100056 of 2024 the ADLR, Athani to conduct the survey work within 20 days and file his report without any delay. The ADLR was also called upon to demarcate the house properties, if any situate in the suit properties.
8. The appointment of ADLR not being an issue, the only issue is whether the ADLR could call upon his subordinate, namely the Taluka surveyor to carry out the survey and based on the said survey report, propose a scheme for partition. The requirement of survey being carried out is to ascertain the boundaries, measurement, as also the buildings or any other structure located in the property, subject matter of partition.
9. In the present case, it is not that the Surveyor who was asked to survey the property is not competent to do any of the above, the only contention taken is that the ADLR could not have delegated the survey work to the surveyor. By the very designation of the officer as Surveyor, it is clear that such officer is competent to carry out a survey work which is what is required to be done in terms of Section 54 of CPC as per the Karnataka amendment. Thus, a Surveyor having carried out the -7- NC: 2024:KHC-D:189 WP No. 100056 of 2024 survey work, there being no default and or incompetency of such Surveyor being claimed by the petitioner, the ADLR relying on the survey report has submitted a scheme for partition which in my considered opinion cannot be faulted with.
10. It cannot be expected of the petitioner that whenever ADLR is appointed, the ADLR personally carries out the survey. The ADLR, being a government officer, being part of the Department of Land Records and Survey has several Surveyors coming under him who report to him and as such, the ADLR could always delegate the actual survey work to be conducted by the Surveyor since there is no administrative responsibilities delegated by calling upon such surveyor to carry out a survey work. In that view of the matter, I am unable to accept the submission of Sri S.S.Beturmath, learned counsel for the petitioner.
11. The petition is dismissed at the stage of admission.
Sd/-
JUDGE LN List No.: 1 Sl No.: 41