Karnataka High Court
Martandappa Siddanagouda Biradar vs Shrishail S/O Martandappa Biradar on 22 June, 2018
Author: Ravi Malimath
Bench: Ravi Malimath
1
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
ON THE 22ND DAY OF JUNE 2018
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
WRIT PETITION NO.206964 OF 2015 (GM-CPC)
BETWEEN:
MARTANDAPPA SIDDANAGOUDA BIRADAR
AGE: 56 YEARS, OCC: AGRICULTURE
R/O HANCHINAL
TALUK & DISTRICT: VIJAYAPUR
... PETITIONER
(BY SRI ARUN CHOWDAPURKAR, ADVOCATE)
AND:
1. SHRISHAIL S/O MARTANDAPPA BIRADAR
AGE: 28 YEARS, OCC: AGRICULTURE
R/O HANCHINAL
TALUK & DISTRICT: VIJAYAPUR
2. LAXMIBAI W/O MARTANDAPPA BIRADAR
AGE: 46 YEARS, OCC: H.H. WORK
R/O MULUWAD GALLI
NEAR MAHADEV TEMPLE
VIJAYAPUR
... RESPONDENTS
(BY SRI SRINIVAS B. PATIL, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO PASS A
WRIT OF CERTIORARI AND QUASH THE IMPUGNED ORDER
2
DATED 19.11.2015 PASSED BY THE PRINCIPAL CIVIL JUDGE
(SR.DN) VIJAYAPUR IN F.D.P 8 OF 2003 VIDE ANNEXURE-A, ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The plaintiff-respondent No.1 filed a suit against his parents for partition and separate possession in the year 1985. The suit was decreed granting 1/3rd share to each of the parties. The same was confirmed by this court in RSA No.1232 of 1996. Thereafter, FDP proceedings were initiated. The commissioner was appointed to submit his report. The petitioner-defendant objected to the same. On considering the objections as well as the report of the ADLR the impugned order was passed. The report of the ADLR and report of the advocate court commissioner was accepted. Aggrieved by the same, the present petition is filed.
2. Learned counsel for the petitioner contends that the impugned order is bad in law and liable to be set aside. That the commissioners appointed by the court could not 3 delegate his power to his subordinates without such express consent of the parties and the Court. In support of his contentions, he relies on the judgment reported in 2007 (5) KLJ 494 in the case of SHAMANNA SETTY VS. B.L.CHANNEGOWDA.
3. I have considered the judgment at length. The facts would not be applicable to the case herein. It was held that there was an inherent defect in the execution of warrant by CW-3 as he was not the commissioner appointed by the Court. Therefore, his report could not have been accepted by the trial Court. The facts herein are different. The commissioner has only taken the assistance of the surveyor.
4. On considering the same, the report has been prepared by him. Therefore, the lower court was of the view that there is no irregularity committed by the court commissioner in taking assistance of the taluka surveyor in preparing of the report. The lower court was of the view that it cannot be expected that the ADLR/Tahsildar himself 4 to hold the measurement tape and chains and measure all the suit properties without the assistance of his subordinates, who are specially appointed as surveyors. This type of technicalities should not be considered for rejecting the report of the court commissioner. Therefore, in view of the judgment also the facts are different and it is not applicable to the case on hand.
5. Even otherwise, the ADLR who was submitted his report has stated that he has equally divided all the said properties among the plaintiff, defendants 1 and 2 with some marginal variation.
6. Hence, I do not find any ground to interfere with the same. Consequently, the petition being devoid of merit is dismissed.
Sd/-
JUDGE sdu CT-RRJ