Karnataka High Court
Sri Rangappa vs K N Kumar on 4 November, 2024
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NC: 2024:KHC:44257
WP No. 16198 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
WRIT PETITION NO. 16198 OF 2022 (GM-CPC)
BETWEEN:
SRI RANGAPPA
LATE SUBBEGOWDA
AGED ABOUT 68 YEARS
R/O D KALENALLI VILLAGE
KASABA HOBLI
CHANNARAYAPATTNA TALUK
HASSAN DISTRICT - 573116
(BENEFIT OF SENIOR CITIZEN NOT CLAIMED)
...PETITIONER
(BY SRI. D T NANJESH GOWDA, ADVOCATE)
AND:
1. K N KUMAR
Digitally signed S/O NANJAPPA @ RAJU
by AGED 43 YEARS
MARKONAHALLI
RAMU PRIYA
Location: HIGH 2. NANJAPPA @ RAJU
COURT OF
KARNATAKA S/O KALAPPA
AGED 73 YEARS
BOTH ARE R/AT D. KALENALLI VILLAGE
KASABA HOBLI
CHANNARAYAPATTNA TALUK
HASSAN DISTRICT - 573 116
...RESPONDENTS
(BY SRI. GOPALA, ADVOCATE)
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NC: 2024:KHC:44257
WP No. 16198 of 2022
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO-QUASH THE
IMPUGNED ORDERS DTD 27.05.2022 MADE IN I.A.NO.8 U/S
151 OF CPC IN O.S.NO.205/2013 PASSED BY THE III ADDL.
CIVIL JUDGE AND JMFC, CHANNARAYAPATTANA, AS PER
ANNEXURE-H AND ALLOW THE SAID APPLICATION FILED BY
THE PETITIONER U/S 151 OF CPC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE R. NATARAJ
ORAL ORDER
The plaintiff in O.S No.205/2013 on the file of III Addl. Civil Judge and JMFC, Channarayapattna has filed this petition challenging an order dated 27.05.2022 by which an application by him under Section 151 of Code of Civil Procedure (for short 'CPC') was rejected.
2. The suit in O.S No.205/2013 was filed for declaration of title and for mandatory injunction to direct the defendants to remove the construction put up on the encroached portion and for perpetual injunction.
3. The defendants contested the suit and denied that they had encroached into any portion of the property belonging to the plaintiff. After the evidence in the suit was concluded, an application was filed by the plaintiff under Order 26 Rule 9 of CPC, to appoint a revenue surveyor as a commissioner to -3- NC: 2024:KHC:44257 WP No. 16198 of 2022 prepare a sketch of the suit property and to measure and demarcate by fixing a boundary and report whether there was any encroachment. The said application was allowed in terms of an order dated 14.02.2018 and the Assistant Director of Land Records (ADLR), Hassan, was appointed as a commissioner.
4. The surveyor to whom the commissioner warrant was handed over by ADLR, conducted a survey and found that a portion of the suit property was acquired by the Indian Railways for laying the Hassan - Bangalore railway track. The surveyor therefore reported to the ADLR that without authenticated alignment sketch of railway line, it would be difficult to identify the limits of the suit property. Accordingly, the ADLR addressed a communication dated 09.04.2021 that the warrant would be executed after receipt of alignment sketch of railway line from the special land acquisition officer, Hassan attached to the Indian Railways. The surveyor, who submitted his report to the ADLR had indicated that without the alignment sketch, it would be difficult to identify the limits of suit property. In view of the aforesaid, the plaintiff filed an application under Section 151 of CPC for a direction to the -4- NC: 2024:KHC:44257 WP No. 16198 of 2022 special land acquisition officer to co-operate with the surveyor by producing the documents regarding acquisition and the alignment sketch, so as to execute the warrant. The defendants in the suit did not object to this application. However, the Trial Court in terms of the impugned order rejected the application on the ground that the document that the commissioner required was a public document and the plaintiff should have made an attempt to secure the document. Therefore, the Trial Court directed the plaintiff to first exhaust the remedy by applying for the required document before the appropriate authority. Being aggrieved by the said order, the plaintiff is before this Court.
5. Learned counsel for the plaintiff contends that the surveyor who was deputed by the ADLR had reported that portion of the suit property was acquired by the Indian Railway for laying Hassan - Bangalore railway track and therefore, it was necessary to identify the limits of the property acquired, so as to identify the boundaries of the suit property. He contends that without this document it would be difficult for the surveyor to measure and mark the boundaries of the suit property and also to identify the property allegedly encroached by the -5- NC: 2024:KHC:44257 WP No. 16198 of 2022 defendants. He submits that since the defendants did not object to the application filed by the plaintiff or the report submitted by the surveyor, the Court ought to have directed the special land acquisition officer attached to office of Indian Railways to co-operate with the commissioner by producing documents, so as to enable him to execute the warrant. He thus contends that, the impugned order is one without application of mind and therefore, warrants interference.
6. The respondents though served with the notice have not appeared and therefore, this Court did not have benefit of their submissions.
7. After perusing the order appointing the commissioner and the report of the surveyor and the communication addressed by the ADLR to the Court, it is apparent that portion of the suit property was acquired by the Indian Railways. Therefore, in order to determine what was the exact extent of property that the defendant had allegedly encroached into, it was necessary to identify the extent of land acquired for the Indian Railways. In that view of the matter, the Trial Court must have directed the concerned special land -6- NC: 2024:KHC:44257 WP No. 16198 of 2022 acquisition officer to co-operate with the court commissioner to execute the warrant. The impugned order therefore suffers from non application of mind and hence, warrants interference.
8. Hence, the writ petition is allowed. The impugned order passed by the Trial Court is set aside. The application filed by the plaintiff (I.A No.8) is allowed. The Trial Court is directed to issue appropriate communication to the special land acquisition officer, Hassan, who shall furnish required documents to the ADLR, Hassan, so as to enable him to identify the limits of suit property, by demarcating the property acquired by the Indian Railways. The Trial Court shall then proceed in accordance with law.
In view of the disposal of the petition, I.A No.1/2024 does not survive for consideration.
Sd/-
(R. NATARAJ) JUDGE THM List No.: 1 Sl No.: 30