Allowed

Shri. Vasant Durgappa Harijan v. Shri. Shantappa Durgappa Harijan

Karnataka HC2 Dec 2022WP/109455/2017

Case brief

AI extract

What is this about?

This writ petition challenged the trial court's order allowing a local commissioner to determine possession via inspection under Order 26 Rule 9. The High Court held that possession must be established by substantial evidence and quashed the appointment.

What did the court decide?

The order dated 07.08.2017 appointing a court commissioner on I.A.No.8 in O.S.No.460/2014 is set aside and the subsequent application stands dismissed.

Shri. Vasant Durgappa Harijan Vs Shri. Shantappa… — Property and Title | Karnataka HC (2022)

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WP No. 109455 of 2017

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 2^ND DAY OF DECEMBER, 2022 BEFORE

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THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 109455 OF 2017 (GM-CPC)

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BETWEEN:

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SHRI. VASANT DURGAPPA HARIJAN AGE:52 YEARS, OCC:COOLIE R/O:PLOT NO.1183/88, JAVAL PLOT MUDALAGI-591312 TAL:GOKAK DIST:BELAGAVI

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…PETITIONER

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(BY SRI. SHEKARGOUDA NAGANUJRI, ADVOCATE FOR SRI.ANAND ASHTEKAR, AND SRI.AKSHAY KATTI, ADVOCATES)

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AND:

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SHRI. SHANTAPPA DURGAPPA HARIJAN AGE 55 YEARS, OCC COOLIE R.O JAVAL PLOT MUDALAGI 591312 TAL. GOKAK DIST BELAGAVI

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…RESPONDENT

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(BY SRI. RAGHUVEER SATTIGERI, ADVOCATE FOR SRI.CHETAN MUNNOLI, ADVOCATE AND SMT.SURABHI KULKARNI, ADVOCATES)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED:07.08.2017 PASSED BY THE CIVIL JUDGE AND JMFC MUDALAGI ON IA NO.8 IN O.S 460/2014 PRODUCED AT ANNEXURE'E'.

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WP No. 109455 of 2017

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

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ORDER

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Registry is directed to delete the name of Sri.R.M.Kulkarni.

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The petitioner is before this Court seeking for the following reliefs:

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“Issue a writ in the nature of certiorari or any other writ, order or direction quashing the order dated 07.08.2017 passed by the Civil Judge and JMFC Mudalagi on IA No.8 in OS No.460/2014 produced at Annexure-E.”

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Suit in O.S.No.568/2012 was filed before the Principal Civil Judge, Gokak sitting at Mudalagi. Subsequent to constitution of Court at Mudalagi, the same came to be renumbered as O.S.No.460/2014. In the said suit, perpetual injunction restraining the defendant and his men from interfering with the possession of the plaintiff was sought for.

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WP No. 109455 of 2017

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Upon completion of evidence, an application came to be filed under I.A.No.8 by the defendant seeking for the appointment of a court commissioner to ascertain as to who was in possession and occupation of the property in dispute. The said application came to be objected to by the plaintiff. However, the trial court by way of impugned order dated 07.08.2017 allowed the said application on the ground that the joint possession of the defendant can only be proved by local inspection of the suit property and as such held that defendant has made out case for appointment of court commissioner. The said order is under challenge by the plaintiff.

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Learned counsel for the petitioner submits that no commissioner could be appointed under Order 26 Rule 9 to carry out local inspection of the property, to ascertain as to who is in possession of the property. The same would have to be established by cogent evidence by the parties in dispute and in this

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WP No. 109455 of 2017

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regard he relies upon the decision of the Co-ordinate Bench of this Court in WP No.10826/2018 dated 20.07.2018.

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Learned counsel for the respondent would submit that both the parties have led their evidence and the trial Court being of the considered opinion that on the basis of the evidence on record it is not possible to determine as to who is in possession of the property, came to a conclusion that it is only upon a local inspection being made that joint possession or otherwise could be determined and as such appointed local commissioner and the same ought not to be interfered with by this Court.

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Heard learned counsel for both the parties. Perused the papers.

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Admittedly, in the present case, the suit is one for permanent injunction restraining the defendant from interfering with the plaintiff’s possession. In the

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WP No. 109455 of 2017

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written statement the defendant has contended that the defendant is in possession of a portion of the property and has acquired lawful title to the suit property and as such relief sought for in respect of that portion of the property is not maintainable.

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Evidence having been led, an application for appointment of a commissioner was filed which has been allowed. I am of the considered opinion that appointment of commissioner can be made for the purpose of ascertaining peculiar facts on ground as regards the property subject matter of the suit is concerned, a local commissioner cannot be appointed for the purpose of acquiring evidence in order to determine who is in possession of the portion of the property or not, that is required to be established by the parties by leading substantial evidence in that regard. Process of appointment of commissioner cannot be made use of to determine who is in

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WP No. 109455 of 2017

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possession of the property or not. Hence, I pass the following:

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ORDER

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i. Writ Petition is allowed. A certiorari is issued. Order dated 07.08.2017 passed by Civil Judge and JMFC, Mudalagi, on I.A.No.8 in O.S.No.460/2014 is set aside. Subsequently, I.A.No.8 stands dismissed.

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ii. It is made clear that dismissal of the said I.A.No.8 would not come in the way of the defendant filing any application for appointment of a commissioner for reasons otherwise than determining who is in possession of the property.

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SH List No.: 1 Sl No.: 27

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Sd/JUDGE

Shri. Vasant Durgappa Harijan v. Shri. Shantappa Durgappa Harijan

Case brief

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Shri. Vasant Durgappa Harijan v. Shri. Shantappa Durgappa Harijan

Case brief

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