Dismissed

Ningappa S/O Tippannadhanagar v. Mallappa S/O Salutanhugar

Karnataka HC15 Feb 2019WP/107844/2018

Case brief

AI extract

What is this about?

The High Court rejected the writ petition challenging the refusal to appoint a Court Commissioner to fix land boundaries. The Court held that the burden of proving encroachment lies on the plaintiff and boundary fixation is a statutory duty of survey authorities, rendering the appointment impermissible under Order XXVI Rule 9 CPC.

What did the court decide?

Writ petition rejected as devoid of merits.

Ningappa S/O Tippannadhanagar Vs Mallappa S/O… — Property and Title | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 15^TH DAY OF FEBRUARY, 2019

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BEFORE

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THE HON’BLE MR. JUSTICE G.NARENDAR

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WRIT PETITION No.107844/2018 (GM-CPC)

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BETWEEN:

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NINGAPPA S/O TIPPANNA DHANAGAR, AGE:59 YEARS, OCC:AGRICULTURE

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MAHADEV S/O TIPPANNA DHANAGAR AGE:49 YEARS, OCC:AGRICULTURE,

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SABU S/O NINGAPPA DHANAGAR, AGE:35 YEARS, OCC:AGRICULTURE,

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KALLAPPA S/O HANAMANTH DHANAGAR, AGE:59 YEARS, OCC:AGRICULTURE,

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ALL ARE R/O GADYAL, TQ:JAMKHANDI DISTRICT:BAGALKOT. ...PETITIONERS

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(BY SRI C.R.HIREMATH, ADVOCATE)

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A N D :

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MALLAPPA S/O SULATAN HUGAR, AGE:69 YEARS, OCC:AGRICULTURE, R/O:GADYAL, TQ:JAMKANDI, DISTRICT:BAGALKOT.

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...RESPONDENT

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED IN O.S.NO.74/ 2009 ON I.A.NO.XII DATED:17.11.2018 PASSED BY THE PRINCIPAL CIVIL JUDGE (SR.DN) JAMKHANDI, AT JAMKHANDI THE COPY OF THE ORDER IS PRODUCED HEREIN AT ANNEXURE-"A" AND ETC.,

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Heard the learned counsel for the petitioners.

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The petitioners are before this Court being aggrieved by the order of the trial Court passed on IA-XII preferred under Order XXVI Rule 9 of the Code of Civil Procedure praying for appointment of a Taluka Surveyor as the Court Commissioner to measure and fix the boundaries of the lands comprised in R.S.No.75/1 and 76/2 of Gadyal village.

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Admittedly, the petitioners/applicants are the defendants. The suit is one for declaration and consequential relief of permanent injunction. The burden of demonstrating the encroachment is on the plaintiff. That being the admitted position, this Court is unable to comprehend the necessity for the instant application. If the plaintiff has alleged encroachment, then the burden of proving the same lies on the plaintiff.

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The fixation of boundaries is a statutory duty cast upon the survey authorities.

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Hence, the reasoning by the Court that the application to fix the boundaries and thereby determine the possession of the parties is impermissible under Order XXVI Rule 9 of the Code of Civil Procedure and that a Court Commissioner cannot be appointed for the purpose of investigating or reporting factual aspects and corroboration of the pleadings and the material on record.

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Hence, the well considered and reasoned order does not suffer from any infirmity. In that view of the matter, petition being devoid of merits stands rejected.

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(Sd/-) JUDGE

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jm/-

Ningappa S/O Tippannadhanagar v. Mallappa S/O Salutanhugar

Case brief

What is this about?

What did the court decide?

Ningappa S/O Tippannadhanagar v. Mallappa S/O Salutanhugar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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