Allowed

B Dharmaraju v. Julappa

Karnataka HC6 Nov 2020WP/24820/2015

Case brief

AI extract

What is this about?

This writ petition challenged the civil court's refusal to appoint a technical commissioner for spot inspection of disputed property. The High Court held that since the defendants denied the property's existence, appointment was necessary to determine location and measurements, setting aside the lower order and directing the appointment.

What did the court decide?

Impugned order set aside. Application for appointment of technical commissioner allowed pursuant to Order XXVI Rule 9 CPC. Assistant Director of Land Records appointed as commissioner.

B Dharmaraju Vs Julappa — Property and Title | Karnataka HC (2020)

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W.P.No.24820 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF NOVEMBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ

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WRIT PETITION NO.24820 OF 2015 (GM – CPC)

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BETWEEN:

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B.DHARMARAJU, S/O BHEMANNA, AGED ABOUT 59 YEARS, AGRICULTURIST, RESIDENT OF BEERANAHALLI, PURAVARA HOBLI, MADHUGIRI TALUK, TUMAKURU DISTRICT – 572 175.

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... PETITIONER

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(BY SRI.GANGADHARAPPA A.V., ADVOCATE)

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AND:

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JULAPPA, S/O BEERANNA, AGED ABOUT 63 YEARS,

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KRISHNAMURTHY, S/O JULAPPA, AGED ABOUT 37 YEARS,

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BOTH ARE RESIDING AT BEERANAHALLI, PURAVARA HOBLI, MADHUGIRI TALUK, TUMAKURU DISTRICT – 572 175.

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... RESPONDENTS

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(BY SRI. KUMAR & SRI.BHAT, ADVOCATES FOR R1 & R2)

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W.P.No.24820 of 2015

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 01.04.2015 PASSED BY THE COURT OF THE PRINCIPAL CIVIL JUDGE (JR.DN.) AT MADHUGIRI ON I.A.NO.IV IN O.S.NO.193/2011 VIDE ANNEXURE - D AND DIRECT THE COURT BELOW TO ALLOW THE APPLICATION AND THEREBY APPOINT A TECHNICAL COMISSIONER TO MAKE SPOT INSPECTION A AND SUBMIT REPORT AS PRAYED IN THE APPLICATION I.A.NO.IV VIDE ANNEXURE – C AND ETC.,

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THROUGH VIDEO CONFERENCE, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is before this Court seeking for quashing of order dated 01.04.2015 passed by the Court of Prl. Civil Judge and JMFC, Madhugiri on I.A.No.IV in O.S.No.193/2001. The said I.A.No.IV is

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filed under Order XXVI Rule 9 of CPC to appoint Technical Commissioner to carry out the investigation and to measure the suit schedule property and to submit the report.

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The suit in O.S.No.193/2001 has been filed seeking for declaring the plaintiff as the owner of the suit

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W.P.No.24820 of 2015

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schedule property bearing No. 8/2 situated in Beeranahalli, Gondihalli Panchayath, Puravara Hobli, Madhugiri Taluk, Tumakuru district and injunction restraining the defendants from interfering with the possession of the plaintiff. The plaintiff and defendant No.1 are brothers and defendant No.2 is the son of defendant No.1.

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It is contended that the plaintiff has purchased suit schedule property out of his own funds and the same is not a family property, inasmuch as this property has been purchased by the plaintiff under registered sale deed. The defendants have no manner of right, title or possession over the suit scheduled property wherein this property has not included but defendants in their written statement has denied all the contentions of the plaintiff and infact they have gone to the extent of contending that the suit schedule property does not even exist in para No.4 of their written statement.

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W.P.No.24820 of 2015

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Various statements are made as regards various houses, the pathway thereto, the road which provides access to the said house etc. It is on this basis, the petitioner had filed an application in I.A.No.4 for appointment of Commissioner even prior to leading evidence seeking for measurement of property and also the location of property whether it is in Sy.No.20/2 or not.

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Though the defendants have not filed any objections later addressed their oral arguments before the Trial Court and the trial court has dismissed the application on the ground that the appointment of Commissioner is required only when it was required by the Court to determine a dispute. The trial court held that the burden of proving the case of the plaintiff is heavily on the plaintiff and the plaintiff could not rely on and/or to seek for appointment of a Commissioner to collect evidence in the matter.

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Sri. A.V.Gangadharappa, learned counsel for the petitioner reiterated the averments made in the

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W.P.No.24820 of 2015

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petition and submits that the application has not been filed for collection of evidence but to determine the location of property and measurement thereto since there is a dispute as propounded in the averments made in para No.4 of the written statement wherein admittedly the defendants denied all the contentions of the petitioner. Hence, it would be required for the trial court to suo moto appoint a Commissioner. Despite having filed an application, the Court did not consider the same and dismissed the application.

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The learned counsel for the respondents contended that there is no necessity of appointment of the Commissioner. The plaintiff claims declaration and injunction and it is for the plaintiff to establish by cogent evidence the right of ownership and in absence of cogent evidence the appointment of the Commissioner is sought for only to delay and to protract the proceedings and on this ground he submits that the order passed by the trial court in

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W.P.No.24820 of 2015

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exercise of the power under Order XXVI being discretionary order, does not call for interference.

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The short question that would arise in this matter is, whether the trial Court has exercised its discretionary power in a proper and required manner to not appoint a Commissioner ?

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The contentions as stated above are not reiterated except to state that there is a dispute as regards the location and/or identify of the property is on the basis of the pleadings filed inasmuch as in para 4 of the written statement the defendants have denied the contentions of the plaintiff as regards the said location and identity.

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It is also undisputed that there was a land which was purchased by the petitioner in the Gramatana. It is also undisputed that it is as regards the land in Sy.No.20/2 that the petitioner and respondents are alleging encroachment. The petitioner is stated to claim ownership to the said property which has been denied by the defendants inasmuch as the

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W.P.No.24820 of 2015

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defendants have contended that the suit schedule property does not exist. Further, in para 4 of the written statement, the defendants have contended that the suit property is not at all in existence, the boundaries furnished by the petitioner in the plaint schedule are wrong and misleading and the same has been done just to knock out 300 ft vacant space in front of the defendants' house on western side.

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These contentions in my considered opinion cannot be established only on the basis of the affidavits or the pleadings filed. There was thus a spot inspection required to ascertain the status of the property, location of the property and/or the measurements thereof. Neither of the parties can make out a case by leading evidence to establish their case inasmuch the said contentions would remain only on paper and there could be no proper and effective determination of the disputes without the location of the same being ascertained and identified. Under these circumstances, the trial Court suo moto ought to have appointed a Commissioner to secure and/or

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W.P.No.24820 of 2015

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ascertain the identity, location and measurement. That not having not been done, the trial Court had an opportunity to appoint a Commissioner when an application was filed in that regard by the petitioner. The reasons given by the trial Court to reject the application only that burden of proving the case is heavily on the plaintiff and the plaintiff cannot seek for appointment of the Commissioner to assist in the discharge of the said burden. Such a reason if accepted would result in a situation that no Commissioner can be appointed in any case since the burden would always be on the plaintiff to prove his case.

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On an application filed for appointment of Commissioner, it would be required for the trial Court to consider whether such appointment is required to be made or not by applying his judicial mind to the relevant facts and circumstances, one of them being that if the Court could determine the issue in the absence of the appointment of a Commissioner. In my considered opinion as afore stated in the present

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W.P.No.24820 of 2015

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facts and circumstances it would not be possible for the Court to determine the dispute either from the record or from the evidence, on the basis of the denials made by the defendants without ascertaining identity, location and measurement of the property in dispute or in question.

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In view of the above, I am of the considered opinion that the order passed by the trial Court suffers from legal infirmities as afore stated. Therefore, it requires to be set-aside and is hereby set-aside. Consequently, the application in IA-4 under Order XXVI Rule 9 of CPC in O.S.No.193/2001 filed before the Prl. Civil Judge and JMFC, Madhugiri is allowed .

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The Assistant Director of Land Records, Madhugiri is appointed as Commissioner to carryout local inspection, identify the property, mark the boundaries, measure the same and submit a report. Both the petitioner and respondents are permitted to file their respective memo of instructions. The said memo of instructions to be furnished to the

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W.P.No.24820 of 2015

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Commissioner on or before 12.01.2021. The inspection shall be carried out by the Assistant Director of Land Records, Madhugiri on 16.01.2021 from 11.30 a.m. onwards without any further notice to the parties. The report shall be filed before the trial Court on or before 22.01.2021.

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The parties are hereby directed to be present at the spot on 16.01.2021 at the prescribed time. The identification and fixing of the boundaries shall be based on the records available with the office of the Assistant Director of Land Records, Madhugiri without any further notice to the parties.

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The petition is allowed.

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Sd/-

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JUDGE

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SSD

B Dharmaraju v. Julappa

Case brief

What is this about?

What did the court decide?

B Dharmaraju v. Julappa

Case brief

What is this about?

What did the court decide?

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