Dismissed

Smt. Thimmamma v. Smt. Boramma

Karnataka HC11 Nov 2021WP/54655/2016

Case brief

AI extract

What is this about?

Dismissing a writ petition under Article 227, the High Court upheld the Trial Court's rejection of applications to remove a tamarind tree and appoint a commissioner. The court held that since the tree was not the subject matter of the suit, remedies regarding encroaching roots or branches must be sought elsewhere. In the absence of merit in the plaintiff's side of the case. The court also noted th

What did the court decide?

The Writ Petition was dismissed.

Smt. Thimmamma Vs Smt. Boramma — Civil Procedure and Limitation | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11^TH DAY OF NOVEMBER, 2021 BEFORE

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THE HON’BLE MR. JUSTICE R. NATARAJ

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WRIT PETITION NO.54655 OF 2016 (GM-CPC)

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BETWEEN:

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SMT. THIMMAMMA WIFE OF SRI. MUDDAIAH AGED ABOUT 79 YEARS RESIDING AT GADDEHALLY HAMLET OF UNGRA C.S. PURA HOBLI GUBBI TALUK.

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SRI. NARASIMHAMURTHY SON OF SRI. MUDDAIAH AGED ABOUT 44 YEARS RESIDING AT GADDEHALLY HAMLET OF UNGRA C.S. PURA HOBLI, GUBBI TALUK.

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...PETITIONERS

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(BY SRI. SIDDAMALLAPPA P.M., ADVOCATE (THROUGH VC))

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AND:

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SMT. BORAMMA WIFE OF LATE VENKATAIAH AGED ABOUT 64 YEARS RESIDING AT N.G. BYALA MAYASANDRA HOBLI TURUVEKERE TALUK-572227.

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SMT. VENKATALAKSHMAMMA WIFE OF SRI. LAKSHMANA

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DAUGHTER OF LATE VENKATAIAH AGED ABOUT 29 YEARS RESIDING AT N.G. BYALA MAYASANDRA HOBLI TURUVEKERE TALUK-572227.

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...RESPONDENTS

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(BY SRI. M.B. CHANDRA CHOODA, ADVOCATE (THROUGH VC))

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THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 19.09.2016 PASSED IN O.S.NO.131/2012 BY THE LEARNED CIVIL JUDGE AND JMFC AT GUBBI, ON I.A.NOs.4 AND 6, AS PER ANNEXURE-H AND THEREBY PASS ORDER TO ALLOW THE APPLICATIONS PASSED ON I.A.NOs.4 AND 6 AS PRAYED FOR.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE COURT PASSED THE FOLLOWING:

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ORDER

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This Writ Petition is filed by the defendants in O.S. No.131/2012 pending trial before the learned Additional Civil Judge and JMFC., Gubbi (henceforth referred to as 'Trial Court') challenging the Order dated 19.09.2016 by which applications in I.A. Nos.4 and 6 filed by the defendant No.2 under Section 151 of the Civil Procedure Code (for short, 'CPC') and Order XXVI Rule 9 of the CPC respectively, were rejected.

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A suit in O.S. No.131/2012 was filed for declaration of the title of the plaintiff (since deceased and represented by his legal representatives) over the suit schedule property and to direct the defendants to vacate and hand over the vacant possession of the suit property after removing the structures constructed thereon. The suit schedule property is a shed measuring East to West 15 feet North to South 20 feet constructed on the land bearing Sy. No.191 of Ungra village, C.S. Pura Hobli, Gubbi Taluk.

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During the pendency of the suit and prior to the commencement of the trial, application in I.A. No.4 was filed by the defendant No.2 seeking permission to cut and remove the tamarind tree situated in the written statement schedule property. Subsequently, defendant No.2 filed another application in I.A. No.6 under Order XXVI Rule 9 read with Section 151 of the CPC to appoint a Court Commissioner to enable him to “cut and auction the

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Tamarind Tree situated in the suit schedule property and deposit the sale amount in the Court Deposit”.

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The said applications were contested by the

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plaintiffs.

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The Trial Court noticed the contentions urged by the defendant No.2 in the affidavits accompanying the applications and held that the said applications were not necessary and relevant for the purpose of deciding the suit. The Trial Court has referred to the report of the Commissioner, who was appointed pursuant to the order passed on another application, namely, I.A. No.7 and observed that the said Commissioner’s report cannot be taken into consideration for the purpose of granting permission to the defendant No.2 to cut the tamarind tree without deciding the question whether the said tamarind tree existed on the suit property or not .

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Being aggrieved by the aforesaid Order, the

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present Writ Petition is filed.

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7. The learned counsel for the

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petitioners/defendants submitted that the roots of the tree have extended into the suit property and the branches of the tree are hanging over the houses where the defendants are residing and therefore, it is necessary that the tree is cut.

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Per contra, the learned counsel for the plaintiffs/respondents submitted that since the suit is filed for declaration and for recovery of possession from the defendants, the appointment of a Court Commissioner to cut the tamarind tree and auction it, would not in any way assist the Court in deciding the suit.

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I have considered the submissions made by the learned counsel for the parties.

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As rightly contended by the plaintiffs, the tree in question was not the subject matter of the suit schedule property. A perusal of the schedule mentioned in the suit does not indicate any reference to a tree. If the

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defendants are aggrieved by the tree overgrowing into their property and its branches hanging over the property, the remedy for the defendants is elsewhere and not in the suit filed by the plaintiffs. Even otherwise, applications were filed at a pre-trial stage. Therefore, the Trial Court was justified in rejecting the applications and there is no merit in this Writ Petition and the same is dismissed.

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Sd/JUDGE

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sma

Smt. Thimmamma v. Smt. Boramma

Case brief

What is this about?

What did the court decide?

Smt. Thimmamma v. Smt. Boramma

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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