Karnataka High Court
N Swamygowda vs Ramegowda S/O Channegowda, on 11 November, 2009
Equivalent citations: 2010 (1) AIR KANT HCR 800, 2010 A I H C 1631, AIR 2010 (NOC) (SUPP) 342 (KAR.), (2010) 3 ICC 684, (2010) 87 ALLINDCAS 358 (KAR), (2009) 4 KCCR 3003, (2010) 2 CIVLJ 616, (2010) 2 CURCC 120
Author: Ashok B.Hinchigeri
Bench: Ashok B.Hinchigeri
'V 41; 5 . 5-' . ' @ '<':» ' . 1 - IN TI--IE me}-1 COURT OF KARNATAKA AT BANGALORE DATED THIS THE 1 rm DAY OF NOVEMBER 2009 BEFORE THE; HONBLE MRJUSTECE ASHOK B.HINcHIO«E:R1 WRIT PETITION NO.27885/2O()9"iGM-C'_i3C}i" A V' BETWEEN I ' V ' ' N. Swamygowda. 8/ O Nanjegowda, Age 52 years. Agriculture R/ O Police Station. Road, KR. Sagara, Belagoal Hobli Srirangapatar1aTa1uk, . V A v District Mandya. ' Petitioner AND: 1. Ranlegoxirda, ._ . S/O Channegoudafi Major, B'USiI] 't3SS," V _ R/O Hosagtxlidavzidi'Village, '"'~,.B€l23.gGl9';B0b'1i, ..... ._ S'1'ILraLr1gapata.I1".;~1_Taluk, V' D tjriwct 1\/131333/gi; ~ _ " Secretary, ~ Grama Panchayat, O '.VK.R. Sagéira, Belagola Hobli, ' "V ' " -- ._ SrAiranga'p.eit.ana Taluk, A ..fDistriOii1\/Earadya. '-- « Executive Engineer, irrigation Depar1'.men.t, " KR. Sagara, BelagOEa Hobli, «~ V Srirangapatana Taluk. Disirict Manciya. 4. Executive E1'1glI1C€1'. Administrative. KR. Sagara. Srirangapatana Taluk. District Mandya. Respondents
{By Sri i\/LG. Anjana Murthy. HCGP for R2 and Rap f ;_. A' . Smt. Shwetha Anand, Advocate for Yukti Law Chambers ior_R3} . 1 V' This Writ Petition is filed under Artides»-226~'_andyl .ofvl.tghe"', it Constitution of India praying to quash thelzeimptigriied order 'p.aspsed_ f on LA 19 by the learned Principle "'gCiVi1 " Judge . V Srirangapatna. in OS 149/2001 dated_4_4.8.2OO9-- ViCl€,V.A'?(iI7lvl€X1.1I'éf-F.' in the interest of justice and equity and__fej_ect the This Writ Petition coming on forliPre1iniinary' -Hearing this day. the Court made the following:
The petitioner -3-" pl'ailritiff=__has ~ealled."i-n'to___qu.estion the order.
dated Court of the Principal Civil Judge on I.A.No.XIX in o.s.No.149/2oo1.°'~V V
l in suit i'iled"mll3ly the petitioner for injunction, the respo'ndent:llNo:§3Li1lled_vlLA.No.XiX invoking Order XXVI Rule 9 of llq:l€ii.ril Procedure {C.P.C.] seeking the appointment of the ~ 5lj"a}«iika Surve"yori~ as the Court Comniissioner for ascertaining as to Number the suit schedule property is situated. ' Court ailowed the said ,3-
3. The learned counsel for the petitioner. Sri Mahanthesh Hosmath submits that the petitioner has produced as many as 74 clinching documents to show that the suit schedule p1'op.ert-yfiis formed out of the lands at Sy.No.291. He submits _ Gazette Notification has not weighed withmthe «Hell takes exception t.o the Trial Court ente1'tai=ning~thie .l the appointment of the Court Corr1Jfn'issionerL.v_at a b.elated__.stage.,Vl when the matter was set down for of his submissions. he has relied on case of B.S.NAZIR HASSAN RAO AND OTHERS reported the rejection of an applicationi_iforl_theV _t1'_iet3ourt Commissioner filed at a belated s'tage3 "posted for arguments, is held to be propertw » x l A V '~1jhat thleuparties have to establish their case by adducitng cogent evidence. He submits that the T' v.__a"pVpoint1ne1"-It of .tiieviA4Court', Commissioner for collecting the evidence of avpiarty is absolutely impermissible. The filing and ' 'a]ilo'win;g of said application is only to harass the petitioner. He that he would not get justice at the hands of the Taluk 4:_Su1jv;c'yor. who is again an officer of the State Government.
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5. Per contra. Smt.Shwetha Anand, the tearned counset for the respondent No.3 submits that when the identity of the property is in dispute, the proper course for the Courts is to appoi:rit-.o_'th._e Commissioner, which has been done in the present.--ease'.5.'j=She____x'. submits that according to the petitioner, theusuit sciieduljev pi'opei't3{ it is in Sy.No.291, according to the res'poI1dien3t ii.'iv--"
Sy.No.297' and according to the respo.nde11Vtt.N'os.1 a'n'df_:2_it Sy.No.175.
6. Sri Anjana Murthy, the Government Pieader appearing i'or_t.he submissions urged on behalf it '
7. The of is not so much to collect the evidence, which in Court, but to obtain evidence, W%]iChv'fT0]ji:i';:;31SvE vefif 'Peci'1iia..r_..nat1.1re can only be had at the spot. If an authority isV_Vr'eq'uired for this proposition, it is to be found in the ,I_£era1a Higiii'Couriji)Vi'viVsior1 Bench judgment in the case of Maroli _$Achu_thar1a ..---u:_s-Kunhipatthumma, reported in AIR 1968 'fKe:_1'a~.i{_'a '~ 8§gIt is also profitable to refer to this Court's decision in the B.Jagannath ----vs- N.C.Narayanappa and Another 58!! reported in AIR 1982 KAR 233, wherein it is held that the appointment of the Court Commissioner for measuring and demareating the schedule property with a sketch, would after the parties have adduced the evidence. The Court in the case of Vaithinattar and Another = Ammal, reported in AIR 2004 the considered View that the best evidence, Where the enero:avc.hVrr1ent is. V C' not admitted, would be obtained only.,::b5{_appoiriting the Court Commissioner.
9. It is also profitable judgment in the case of JanV(:ii)"1\'il.fi.:A:C:«:vyr' ~?jl!S- A.Kannan, reported in 1999(3) held that if the identity of the property is in the Co_urtll"ean unilaterally appoint the Court c.O1'11Il'llSS._lC;l16l".£V: it eanl"'eV--e.n«'con1pel the parties to agree to the appointnlientbourt Commissioner. The Apex Court in the :'l"i».A_ease of' $hreepciit Rajendra Prasad 62. Ors. reported in 3000 l{'Z_llS;_(.?v379, has held that if there is a serious dispute 'f_'W'i.th~i'egard«.to the area and boundaries of the land in question, the ' l.fn..on¥appoint.ing of the Court. Commissioner results in the serious ' ' * --i.n1is'c.arriage ofjustice.
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-7- Commissioners report in accordance with law. The order appointing the Court Commissioner does not put the petitioner to any prejudice.
12. Not finding any jurisdictional error, I decline'tottiénterfelic. . in the matter. I dismiss this petition. No ordoepr as t.o'¢'os?is.. Nd/A ._