Allowed

Sri N R Panditharadhya v. the Special Deputy Commissioner

Karnataka HC7 Jun 2022WP/56355/2015

Case brief

AI extract

What is this about?

The High Court heard a writ petition challenging an order appointing a court commissioner for local inspection in a bare suit for injunction. The court held that such appointment is impermissible where the plaintiff has produced sufficient documentary evidence of title and possession, lifting the burden from the plaintiff to establish possession.

What did the court decide?

The impugned order dated 28.2.2014 allowing the application for court commissioner is set aside. Respondents are directed to lead rebuttal evidence if they choose to do so.

Sri N R Panditharadhya Vs the Special Deputy Commissioner — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF JUNE, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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WRIT PETITION NO. 56355 OF 2015(GM-CPC)

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BETWEEN:

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SRI N R PANDITHARADHYA SON OF LATE N RUDRAIAH AGED ABOUT 78 YEARS R/A NO.542, 14TH MAIN 22ND CROSS, BSK II STAGE BANGALORE-560 070

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...PETITIONER (BY SRI.R.B.SADASIVAPPA, ADVOCATE FOR SRI.K S NARAYANA SWAMY, ADVOCATE)

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AND:

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THE SPECIAL DEPUTY COMMISSIONER BANGALORE URBAN DISTRICT BANGALORE-02

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THE REVENUE INSPECTOR DEVARAJIVANAHALLI CIRCLE KASABA HOBLI BANGALORE NORTH TALUK-68

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THE COMMISSIONER BRUHAT BANGALORE MAHANAGARA PALIKE J C ROAD, BANGALORE-560 002

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...RESPONDENTS

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(BY SMT.ANITHA.H.R, HCGP FOR R1 & 2; SRI.N R JAGADEESWARA, ADVOCATE FOR R3)

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THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DT.28.2.2014 PASSED IN O.S.NO.7076/2010 BY THE LEARNED XVI ADDL. CITY CIVIL JUDGE, BANGALORE CITY AS PER ANX-H AND DISMISS THE APPLICATION FILED BY THE RESPONDENTS/DEFENDANTS UNDER ORDER XXVI RULE-9 R/W SEC.151 OF CPC.

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THIS 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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The captioned writ petition is filed by the plaintiff feeling aggrieved by the order passed by the learned Judge on an application filed under Order XXVI Rule 9 read with Section 75 of CPC.

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The petitioner-plaintiff has instituted a suit

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for injunction simplicitor in O.S.No.7076/2010. The petitioner has pleaded in the plaint that the suit schedule property is the ancestral property and the same was purchased by the present petitioner's father

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on 28.10.1934. The petitioner claims to be in lawful possession and enjoyment over the suit schedule property.

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The plaintiff is compelled to file the present

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suit as the defendants have issued a notice on 19.8.2010 by alleging that the building constructed by

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the plaintiff in Survey No.3/2A3 belongs to the Government and therefore requested plaintiff to stop construction immediately. The defendants also notified the plaintiff to furnish necessary documents in respect of suit schedule property. Though suitable reply was issued by the plaintiff, the defendants threatened by falsely alleging that the plaintiff has constructed a building on the Government land.

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The defendants on receipt of summons

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have contested the proceedings. Defendants 1 and 2 have stoutly denied the entire averments made in the

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plaint. The defendants have stoutly denied the title of the plaintiff over the suit schedule property. The defendants claimed that the proceedings in respect of the suit schedule property is pending before the Deputy Commissioner, Bengaluru, under the provisions of the Land Revenue Act and therefore, sought for dismissal of the suit.

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The plaintiff in support of his contention

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has let in ocular evidence and has also produced documentary evidence. After closure of the plaintiff's evidence, the defendants have come up with this application requesting the Court to appoint a Court Commissioner to make a local inspection and report

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the factual position relating to the suit schedule property. The said application was strongly resisted by the plaintiff. The learned Judge having examined the rival contentions as well as the pleadings in the application and in the objections has proceeded to

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allow the application. The said order is under challenge.

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6. Heard the learned counsel for the petitioner

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and the learned HCGP for respondents-State. Perused the order under challenge.

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The captioned writ petition arises out of proceedings pending in a bare suit for injunction. The present petitioner is asserting title and claim that he is in lawful possession and enjoyment over the suit schedule property. To substantiate his claim, the petitioner has already produced the order passed by the Joint Director of Land Records dated 7.2.2014 as per Annexure-E. The petitioner has also placed reliance on a joint survey conducted by the Government as well as the BBMP, which is also produced and marked as Annexures-C and D.

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It is a trite law that in a bare suit for

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injunction a Commissioner cannot be appointed to carry out local inspection. The same is not permissible. If allowed, the same amounts to delegation and also collection of evidence. In a bare suit for injunction, the entire burden is on the plaintiff to establish his lawful possession. He is also required to establish the alleged interference. To prima facie demonstrate that the property owned by the plaintiff is distinct and separate and that it is identified by specific boundaries, he has placed reliance on the joint survey sketch as well as the order passed by the JDLR as per Annexure-E. The learned Judge without examining the documentary evidence adduced by the plaintiff and also without examining the scope of enquiry in a bare suit for injunction has proceeded to allow the application. The observations made by the learned Judge that if a fresh survey is conducted and

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a sketch is produced, it would at the most amount to demarcation of suit schedule property at the instance of a technical person and the same would enable the Court to effectively adjudicate the controversy between the parties is palpably erroneous. If the plaintiff has produced documentary evidence and if it is the specific case of the plaintiff that he is in lawful possession and the documentary evidence produced would suffice and enable the Court to effectively adjudicate the controversy between the parties, appointment of a Court Commissioner to carry out local inspection was unwarranted. This Court also has to take note of the fact that the respondents have ventured to file this application without leading their evidence in the present case on hand. If a joint survey sketch coupled with the order of the JDLR are already available on record and the same are produced and marked at the instance of the plaintiff,

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the question of again issuing a commission to carry out local inspection is a futile exercise and such a recourse could not have been entertained by the learned Judge. All these significant details are not looked into before ordering for appointment of Court Commissioner. Even otherwise, the entire burden is on the plaintiff to establish his lawful possession and interference. Therefore, there cannot be appointment of Court Commissioner at the instance of the defendants.

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Hence, I pass the following:

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ORDER

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The writ petition is allowed. The impugned order dated 28.2.2014 passed on an application filed under Order XXVI Rule 9 read with Section 75 of CPC in O.S.No.7076/2010 is set aside.

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The respondents-defendants shall lead the

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rebuttal evidence, if they chooses to do so.

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Sd/JUDGE

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*alb/-

Sri N R Panditharadhya v. the Special Deputy Commissioner

Case brief

What is this about?

What did the court decide?

Sri N R Panditharadhya v. the Special Deputy Commissioner

Case brief

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