Dismissed

Sri. Lazar v. Smt Pushpa

Karnataka HC17 Nov 2021WP/14235/2021

Case brief

AI extract

What is this about?

This order on writ petitionNo.14235/2021 under Article 227 of the Constitution of India challenged the High Court held that appointing a Court Commissioner to survey land and fix boundaries constitutes a roving enquiry and evidence collection, which is outside the scope of OrderXXVI Rule 9 CPC, and thus disposed of the writ petition.

What did the court decide?

The writ petition was disposed of without any specific relief granted to the petitioner.

Sri. Lazar Vs Smt Pushpa — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 17^TH DAY OF NOVEMBER 2021

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BEFORE

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THE HON’BLE MR. JUSTICE B. M. SHYAM PRASAD

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WRIT PETITION NO.14235/2021 (GM-CPC)

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BETWEEN :

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SRI. LAZAR SINCE DEAD BY LRS

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1(A). SRI ARBUDARAJ AGED ABOUT 69 YEARS S/O LATE LAZAR,

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1(B). SRI MARIYASUSAI AGED ABOUT 68 YEARS S/O LATE LAZAR,

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1(C). SRI MAHIMADAS AGED ABOUT 66 YEARS S/O LATE LAZAR,

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1(D). SRI FRANCIS AGED ABOUT 64 YEARS S/O LATE LAZAR,

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1(E). SMT.MARIYA AGED 62 YEARS, D/O LATE LAZAR,

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1(F). SMT.PUSHPA AGED 60 YEARS, S/O LATE LAZAR,

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ALL ARE R/AT SANDANAPALYA VILLAGE, MARTALLI POST, KOLLEGAL TALUK, CHAMARAJANAGAR DISTRICT - 571 440.

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SRI.S.RAYAPPAN (OORU GOUNDER) DEAD BY LRS

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2(A). SMT.JNANAMERI W/O LATE S RAYAPPAN SINCE DEAD BY LRS,

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2(B) SMT.KLARAMERI AGED 56 YEARS, W/O SRI ALEXANDER D/O LATE S.RAYAPPAN,

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2(C). SRI.BERNAD SHA AGED 58 YEARS, S/O LATE RAYAPPAN S

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2(D). SRI.SANTHYAGO AGED 51 YEARS, S/O LATE S.RAYAPPAN,

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2(E). SRI.ALOSIS AGED 68 YEARS, S/O LATE S.RAYAPPAN,

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2(F). SMT ROSI SHEELAN AGED ABOUT 46 YEARS D/O LATE S RAYAPPAN

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2(G). SRI MADALIMUTTU AGED ABOUT 44 YEARS, S/O LATE RAYAPPAN S

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2(H). SRI VISHWSARAJA AGED ABOUT 36 YEARS, S/O LATE S RAYAPPAN

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2(I). SMT POULIN JAYAANTHI AGED ABOUT 41 YEARS, W/O SUSAIMANIKYAM D/O LATE S RAYAPPAN

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2(J). SMT SANDANAMERI AGED ABOUT 53 YEARS, W/O SRIEDWIN D/O LATE S RAYAPPAN

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2(K). SRI IRUDAYASHILAN AGED ABOUT 57 YEARS, S/O LATE S RAYAPPAN

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ALL ARE RESIDING AT SANDANAPALYA VILLAGE, MARTALLI POST KOLEGAL TALUK CHAMARAJANAGAR DISTRICT - 571 440.

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SMT LURHA MERI AGED ABOUT 76 YEARS, D/O LATE JOSEPH

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SRI AMARRAAJ AGED ABOUT 50 YEARS S/O LATE RAJAMUTTHU,

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SIR ARAL ANAND AGED ABOUT 47 YEAR S/O LATE RAJAMUTTHU,

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BILAVENDRA S/O SUMMONS GOUNDER SINCE DREAD BY LRS.

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6(A). SMT LURDU MERI AGED ABOUT 81 YEARS W/O LATE BILAVENDRIRAN S RESIDING AT MARTALLI VILLAGE

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KOLLEGAL TALUK CHAMARAJANAGAR DISTRICT - 571 440.

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6(B).	SMT MARYA MUGADALIN AGED ABOUT 56 YEAR
	D/O LATE BILAVENDIRAN S W/O SRI STEPHEN PURUSHOTAM J RESIDING AT MARTALLI VILLAGE KOLLEGAL TALUK CHAMARAJANAGAR DISTRICT - 571 440.
7.	SRI AROGAMASWAMY AGED ABOUT 71 YEAR,
8.	SRI.LAWRENCE AGED ABOUT 61 YEARS,
9.	SRI PATTAIN AGED ABOUT 71 YEARS, S/O PONNUSWAMY
10.	SRI MANIKYUAM AGED ABOUT 71 YEARS, S/O SRI PAKI GOUNDER,
10(A).	SMT.ANTHONIYAMMAL AGED ABOUT 71 YEARS, D/O LATE MANIKYAM,
10(B).	SMT. ROSLI AGED ABOUT 61 YEARS, D/O LATE MANIKYAM,
10(C).	SRI.PETER JOHN PUSHPAM S/O LATE MANIKYAM, AGED ABOUT 56 YEARS,
10(D).	SMT. JOSPHIN MERI AGEDA BOUT 51 YEARS,
	D/O LATE MANKYAM,

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10(E). SMT.AMMAKANNU AGED ABOUT 91 YEARS, D/O LATE MANIKYAM

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SRI. PHILLIP S/O LATE CHAGYAM GOUNDER SINCE DEAD BY LRS

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11(A). SRI THANGARAJU AGED ABOUT 71 YEARS S/O LATE PHILLIP

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11(B). SRI HRUDAYARAJ AGED ABOUT 66 YEARS S/O LATE PHILLIP

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1(C). SRI. IMAYNUVEL AKRIYAS AGED ABOUT 64 YEARS S/O LATE PHILLIP

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11(D). SRI. MADALIMUTTU AGED ABOUT 63 YEARS S/O LATE PHILLIP,

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11(E). SRI MADALAIMUL AGED ABOUT 60 YEARS S/O LATE PHILLIP

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11(F). SMT. LURDH MERI AGED ABOUT 56 YEARS D/O LATE PHILLIP

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11(G). SRI ANTHONISWAMY AGED ABOUT 56 YEARS S/O LATE PHILLIP,

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ALL ARE RESIDING AT JAGGARI (SHANTHINAGAR) VILLAGE SATIYAGAL POST, KOLLEGAL TALUK, HAMARAJANAGAR DISTRICT - 571 440.

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SRI MADALAIMUTTU AGED ABOUT 54 YEARS S/O LATE JOSEPH DRIVER AND CULTIVATOR RESIDING AT MARTALLI VILLAGE RAMAPPURA HOBLI, KOLLEGAL TALUK, HAMARAJANAGAR DISTRICT-571 440.

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PETITIONERS NO. 1 TO 12 ARE REPRESENTED BY THEIR PA HOLDER SRI. LAWRENCE, JAGGANI VILLAGE, SATIYAGAL POST, CHAMARAJANAGAR DIST.

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... PETITIONERS

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(BY SRI Y K NARAYANA SHARMA, ADVOCATE)

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AND :

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SMT PUSHPA AGED ABOUT 41 YEARS W/O SRI RAYAPPAN D/O SRI RAJA

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SRI RAYAPPAN AGED ABOUT 81 YEARS S/O LATE SAVARIMUTTU

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SRI MADALAIMUTTU AGED ABOUT 53 YEARS,

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SRI SAGAYRAJ AGED ABOUT 51 YEARS S/O LATE RAYAPPAN

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SRI ANTHONI SWAMY AGED ABOUT 66 YEARS S/O LATE DAVID

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6. SRI PUSHPARAJ AGED ABOUT 62 YEAWRS S/O LATE DAVID

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SRI IRUDAYARAJ AGED ABOUT 66 YEARS S/O LATE ARALSWAMY

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8. SRI JOHN

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AGED ABOUT 54 YEARS S/OLATE ARALSWAMY

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SRI JOSPH AGED ABOUT 54 YEARS S/O SRI RASAKANNU

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SMT. SOPHIAKLERA AGED ABOUT 51 YEARS W/O SRI MARIYA LUIS

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SRI JAPAMALAI AGED ABOUT 55 YEARS S/O LATE RASAMUTTU,

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SRI ANTHONISWAMY AGED ABOUT 49 YEARS S/O SRI SIMIAN

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SRI DESHI AGED ABOUT 43 YEARS S/O SRI ANTHONIYAPPA

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SRI XAVIER AGED ABOUT 46 YEARS S/O SRI ARALSWAMY,

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VAYAR MANI AGED ABOUT 51 YEARS S/O SRI DORESWAMY,

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SRI SAVARIYAPPAN AGED ABOUT 66 YEARS S/O LATE DAVID ALL R/AT MARATALLI VILLAGE AND POST, RAMAPURA HOBLI, KOLLEGALA TALUK, CHAMARAJANAGARA DISTRICT - 571 440.

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THE SECRETARY MARTALLI VILLAGE PANCHAYATH RAMPURA HOBLI, KOLLEGALA TALUK, CHAMARAJANAGARA DISTRICT - 571 440.

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THE TAHSILDAR NADA KACHERI HANUR TOWN KOLLEGALA TALUK, CHAMARAJANAGARA DISTRICT - 571 440.

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THE ASSISTANT COMMISSIONER KOLLEGALA DIVISION KOLLEGALA TALUK, CHAMARAJANAGARA DISTRICT - 571 440.

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THE DEPUTY COMMISSIONER CHAMARAJANAGARA CHAMARAJANAGARA DISTRICT - 571 313.

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SRI. BHAIYARAM AGED ABOUT 56 YEARS,

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SRI. MURUGAN S/O SRI MARIYAPPAN AGED ABOUT 59 YEARS,

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SRI. PANNIN SELVAM S/O SRI PONNAPPA AGED ABOUT 70 YEARS,

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SRI ASHOK S/O SRI JAYARAJ AGED ABOUT 56 YEARS,

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SRI. CHINNAPPA S/O SRI LOOKAS AGED ABOUT 51 YEARS,

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RESPONDENTS NO. 21 TO 25 RESIDING AT MARTALLI VILLAGE PANCHAYATH RAMAPURA HOBLI, KOLLEGALA TALUK CHAMARAJANAGARA DISTRICT - 571 440.

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... RESPONDENTS

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(BY SRI.A.S. NAVEEN FOR C/R-14; SMT. JYOTHI BHAT, HCGP FOR R17 TO R20)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED.11.2.2020 PASSED ON IA NO.30 IN O.S.NO.132/2009 BY THE COURT OF THE CIVIL JUDGE (JR DN) KOLLEGAL AS PER ANNEXURE-J AND ALLOW THE SAID APPLICATION SEEKING APPOINTMENT OF COMMISSIONER OR PASS OTHER SUITABLE ORDERS AS DEEMED FIT BY COURT.

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

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O R D E R

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The petitioners, who are the plaintiffs in O.S. No.132/2009 on the file of the Principal Civil Judge and JMFC, Kollegala [for short, ' the civil Court '], have filed this petition impugning the civil Court's order dated 11.02.2020. The civil Court by this impugned order has rejected the petitioners' application under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 [for short, 'the CPC'].

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The petitioners in this application have sought for an appointment of the jurisdictional Assistant Director, Records and Survey Settlement, as a Court Commissioner, to survey the suit schedule property and fix the boundaries thereof. The civil Court has rejected this application referring to the settled proposition that a Court Commissioner cannot be appointed to collect evidence. The petitioners' grievance against the civil Court's reasoning is examined in the

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light of the petitioners' prayer in the suit and the salient features of the rival claims.

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The petitioners contend that they are in possession of the two parcels of land measuring 3 acres 92 cents and 77 cents in Sy. Nos.13/B1 and 13/D1 of Markalli Village, Kollegal Taluk, Chamarajanagar District [the subject properties] asserting that their ancestors were the absolute owners of a larger land comprised in the original Sy. No.13 of Markalli Village, Kollegal Taluk, Chamarajanagar District. Over a period of time, some portions of this larger land have been transferred, but the petitioners continue to be the owners in possession of the subject properties. The authorities, in denying their rights to such properties, have granted certain sites in such extent in favour of the private individuals [some of the respondents herein] and these persons are trying to encroach upon certain portions of the subject properties. On the other hand,

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the respondents resist the suit contending that the lands in Sy. Nos.13/B1 and 13/D1 are gramathana land with different facilities for the benefit of the site owners. The civil Court has recorded in the course of the impugned order that the petitioners' witnesses have admitted the existence of about 135 houses and more than three streets within the subject properties.

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This Court is of the considered opinion that the petitioners' request for appointment of the jurisdictional Survey Officer to visit the subject properties and identify the boundaries would be nothing more than holding a roving enquiry and collection of some evidence. This would be outside the domain of Order XXVI Rule 9 of CPC which provides for the appointment of a Court Commissioner for elucidation of evidence on record. The petition therefore, must be disposed of but the disposal of this writ petition or the rejection of the application cannot preclude the

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petitioners, if they can satisfy the civil Court that they should be permitted to lead further evidence to substantiate their case that though some portions of the subject properties could be excluded from the decree because of encroachments, they would be entitled for the plaint relief in respect of those areas/portions in the subject properties which they say remain open and in their possession.

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The petition stands disposed of accordingly.

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SD/JUDGE

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AN/-

Sri. Lazar v. Smt Pushpa

Case brief

What is this about?

What did the court decide?

Sri. Lazar v. Smt Pushpa

Case brief

What is this about?

What did the court decide?

What the court decided

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