Karnataka High Court
Sri S Vijay Kumar S/O Late M Srinivas vs V Lakshmi Narayana S/O Venkatachalaiah ... on 6 March, 2014
Author: N.Kumar
Bench: N Kumar
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 6th day of March, 2014
BEFORE
THE HON'BLE MR. JUSTICE N KUMAR
W.P.NO. 10436 OF 2012 (GM-CPC)
BETWEEN
SRI S VIJAY KUMAR
S/O LATE M SRINIVAS
AGED ABOUT 43 YEARS
NO.46, III CROSS SRINIVAS NAGAR
KATRIGUPPE MAIN ROAD
BANGALORE 560 085 ...PETITIONER
(By Sri S G PRABHAKAR, ADVOCATE)
AND
1. V LAKSHMI NARAYANA
S/O VENKATACHALAIAH C
AGED ABOUT 76 YEARS
R/AT 1413
S MUNISWAMAYGOWDA ROAD
BANGARPET
KOLAR-563 114
2. V. CHIDAMBARAIAH
S/O VENKATACHALAIAH C
MAJOR
NO.181, 36TH A CROSS
2
JAYANAGAR 4TH BLOCK
BANGALORE 82
3. C KAMALAMMA
W/O LATE CHANDRAIAH
R/AT 30, 3RD CROSS
KATRIGUPPE MAIN ROAD,
BANASHANKARI III STAGE,
BANGALORE 85
4. THIMMAIAH @ THIMMA
MAJOR
R/AT NO.30, 3RD CROSS
KATRIGUPPE MAIN ROAD,
BANASHANKARI III STAGE,
BANGALORE 85 RESPONDENTS
(BY SRI Y.V.PRAKASH & NARAYANASHARNA FOR R1 & 2;
PETITION AGAINST R3 AND R4 DISMISSED VIDE ORDER
DT. 5.7.2012)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDERS PASSED ON IA NO.13 ON 8.12.11 IN
EXECUTION NO.331/02 ON THE FILE OF THE 14TH ADDL.
CITY CIVIL JUDGE, BANGALORE VIDE ANNEX-L AND BE
PLEASED TO DIRECT THE TRIAL COURT TO APPOINT A
SURVEYOR FROM THE SURVEY DEPARTMENT AS PER
THE REQUEST MADE BY THE PETITIONER BEFORE THE
TRIAL COURT.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING :
3
ORDER
The petitioner herein is challenging the order passed by the trial Court dismissing his application for appointment of a Surveyor as a Commissioner to survey the land in question and identify site Nos. 30 and 46.
2. Petitioner wanted a Commissioner to be appointed because according to him site No.30 is not in existence at all. He purchased site No.46 in respect of which there is no decree in favour of the decree holder. Therefore, he filed an application obstructing the execution of the decree for possession. The trial Court has rejected his application on the ground that, earlier he had filed a memo withdrawing an identical application and also on the ground that, a surveyor's report is available in another connected matter which could be made use of.
3. As rightly contended by the learned counsel for the petitioner, both are not good grounds to reject the application. At the same time when the entire area is built 4 up, no useful purpose would be served by appointing a surveyor. If the site No.30 is not in existence, the plaintiff has to prove by such evidence which is available to him and not on the basis of the surveyor's report. In the course of the order, certain observations have been made which would affect the interest of the petitioner. Under these circumstances, the proper course would be to reject his application with the following observations which would protect the interest of both the parties. Hence, I pass the following order : -
(i) Writ Petition is dismissed.
(ii) The application for appointment of a
Commissioner is dismissed.
(iii) The observations made by the Executing Court in so far as merit of the claim is concerned, it is to be confined only to the passing of the impugned order.
(iv) The Executing Court shall decide the claim of the petitioner on the basis of the evidence already 5 adduced and to be adduced in future, without in any way being influenced by any of the observations made by it in the impugned order or the order passed by this Court.
Sd/-
JUDGE ckl/-