Karnataka High Court
Smt Sundaramma vs Sri S Venkatesh on 19 December, 2014
Author: B.Manohar
Bench: B Manohar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF DECEMBER, 2014
BEFORE
THE HON'BLE MR. JUSTICE B MANOHAR
W P No.34177/2012 (GM - CPC)
BETWEEN
1. SMT SUNDARAMMA
W/O CHANNAPPA
AGED ABOUT 65 YEARS
R/O BALE ATTIGUPPE VILLAGE,
PANDAVAPURA TALUK,
MANDYA DISTRICT.
2. SRI NINGAPPA, S/O CHANNAPPA
AGED 38 YEARS
R/O BALE ATTIGUPPE VILLAGE
PANDAVAPURA TALUK,
MANDYA DISTRICT.
3. SRI BASAVANNA @
B.C. BASAVARAJU
S/O CHANNAPPA
AGED 34 YEARS
R/O BALE ATTIGUPPE VILLAGE
PANDAVAPURA TALUK,
MANDYA DISTRICT.
4. SRI YOGESH, S/O CHANNAPPA
AGED 32 YEARS, R/O BALE
ATTIGUPPE VILLAGE
PANDAVAPURA TALUK,
MANDYA DISTRICT. .. PETITIONERS
(BY SRI N S BHAT, ADVOCATE)
2
AND
1. SRI S VENKATESH
S/O SUBBAIAH
AGED ABOUT 50 YEARS
R/O SUNKATHONNUR
VILLAGE, MELUKOTE
HOBLI, PANDAVAPURA
TALUK & DISTRICT-571434.
2. SMT PARVATHAMMA KOM RAJANNA
AGED ABOUT 36 YEARS
BEBI VILLAGE,
CHINAKURULI HOBLI,
PANDAVAPURA TALUK &
DISTRICT-571434.
3. SMT. INDIRAMMA KOM SHIVANNA
AGED ABOUT 26 YEARS
URMAR KASALGERE VILLAGE
KATTATTI HOBLI, PANDAVAPURA
TALUK & DISTRICT-571434.
4. SMT CHIKKOLAMMA
KOM THIMMEGOWDA
AGED ABOUT 70 YEARS
R/O HIREMARALI-HOSUR
VILLAGE, PANDAVAPURA
TALUK & DISTRICT-571434.
5. SRI. NARAYANAGOWDA
S/O THIMMEGOWDA
AGED ABOUT 42 YEARS
AGRICULTURIST,
R/O HIREMARALI-HOSUR
VILLAGE, PANDAVAPURA
TALUK & DISTRICT-571434. .. RESPONDENTS
(BY SRI RAJU BHAT, ADVOCATE FOR R1,
R3 TO R5 SERVED, R2 PETN. ABATED)
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THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA,
PRAYING TO QUASH THE IMPUGNED ORDER
DT.6.7.12, ON IA.NO.7 U/O 26 RULE 9 R/W SEC.151
OF THE CPC.,PASSED BY THE COURT OF CIVIL
JUDGE [SR.DN] & JMFC, PANDAVAPURA IN
OS.NO.125/09 AS PER ANN-F & CONSEQUENTLY TO
DISMISS IA.U/O 26 RULE 9 R/W.SEC.151 OF THE
CPC., FILED BY THE R1, IN OS.NO.125/09, ON THE
FILE OF THE COURT OF CIVIL JUDGE [SR.DN], &
JMFC, PANDAVAPURA.
THIS W.P. COMING ON FOR PRELIMINARY
HEARING IN ` B ' GROUP, THIS DAY, THE COURT
MADE THE FOLLOWING:-
ORDER
Petitioners are defendants No.1(a) to 1(d) in OS No.125/2009 on the file of the Civil Judge (Sr.Dn.) and JMFC, Pandavapura. Being aggrieved by order dated 6.7.2012 made on I.A.No.7 in the said suit, they have filed this writ petition.
2. Respondent No.1 herein filed the suit seeking for declaration declaring that he is the absolute owner of suit schedule property and also permanent injunction restraining the defendants from interfering with the peaceful possession of the properties. The said suit was subsequently transferred to the Civil Judge 4 (Sr.Dn.), Pandavapura and the same was renumbered as OS No.125/2009. The contesting respondent filed written statement.
3. On the basis of pleadings of the parties, the Trial court framed the necessary issues. Plaintiff examined himself and document were marked. Defendants also got examined and marked the documents. After conclusion of the trial, plaintiff filed I.A.No.7 under Order 26 Rule 9 of CPC seeking for appointment of Taluk Surveyor as Court Commissioner to fix boundaries of the suit schedule properties since the dispute is with regard to the boundaries of the suit schedule properties.
4. The contesting defendants have filed objections to I.A.No.7 contending that Surveyor cannot be appointed to fix the boundaries. This issue has already been settled in RA No.33/2003 and the same cannot be reopened and sought for rejection of I.A No.7.
5. The Trial Court after considering the matter found that the earlier dispute is with regard to some 5 other properties. In the present suit, the issue is with regard to the boundaries. The Trial Court held that Surveyor has to be appointed as Court Commissioner to fix the boundaries of the properties and accordingly allowed I.A.No.7 appointing the Taluk Surveyor as Court Commissioner to survey the suit property and fix the boundaries. Being aggrieved by the same, defendants No.1(a) to 1(d) have filed this writ petition.
6. Sri N S Bhat, learned Advocate appearing for the petitioners contended that the order passed by the Trial Court appointing the Taluk Surveyor as Court Commissioner to fix the boundaries is contrary to law. In the earlier suit, a similar application was filed and that the matter was ended in RA No.33/2003. Hence, plaintiffs cannot file one more application to appoint the Court Commissioner. Therefore, learned counsel submitted that the order passed by the Trial Court is contrary to law.
7. On the other hand, Sri Raju Bhat, learned Advocate for respondent No.1 argued in support of the 6 order passed by the Trial Court and contended that the Trial Court in order to arrive at correct conclusion to fix the boundaries appointed the Taluk Surveyor as Court Commissioner. Therefore, there is no infirmity in the order impugned
8. I have carefully considered the arguments addressed by the learned counsel for the parties and perused the order impugned and other relevant records.
9. The records clearly disclose that plaintiff has filed the suit seeking for declaration and also permanent injunction restraining the defendants from interfering with the peaceful possession. After conclusion of the trial, the plaintiff filed I.A.No.7 under Order 26 Rule 9 of CPC to appoint the Taluk Surveyor as Court Commissioner to fix the boundaries of the properties since there is a dispute between the parties with regard to the boundaries of the properties. Defendants filed objection to I.A.No.7. The Trial Court after considering the matter in detail found that the appointment of the Taluk Surveyor as Court Commissioner is necessary to 7 settle the dispute between the parties. The dispute with regard to the boundaries cannot be settled on the basis of the evidence of parties. If the Taluk Surveyor measures both the properties and give report, it will be helpful for the Court to arrive at correct conclusion. The Trial Court allowed I.A.No.7. Being aggrieved by the same, this writ petition has been filed.
10. Order 26 Rule 9 of CPC provides that if the Court finds that appointment of Commissioner is necessary to arrive at correct conclusion, the Court can appoint a Court Commissioner. The Court Commissioner can make a local investigation and give correct picture regarding the dispute between the parties. It will be helpful for the Trial Court to arrive at correct conclusion. The discretionary order passed by the Trial Court cannot be termed as arbitrary. Hence, I find that there is no infirmity or irregularity in the order passed by the Trial Court. The petitioners have not made out a case to interfere with the discretionary order passed by the Trial Court.
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Accordingly, writ petition stands dismissed.
Sd/-
JUDGE Bkm