Allowed

Savitri Kom Bhairveshwar Bhat v. Krishna Damodhar Prabhu Since Deceased by His Lrs

Karnataka HC3 Oct 2023WP/103545/2016

Case brief

AI extract

What is this about?

The High Court allowed the writ petition and set aside the subordinate court's order rejecting an application for a survey commissioner. The court held that local inspection is essential in suits concerning easementary rights involving road existence and location, allowing parties to produce best evidence not derivable from title documents.

What did the court decide?

The writ petition was allowed; the impugned order on I.A.No.22 was set aside; the trial court is directed to issue a commission warrant.

Savitri Kom Bhairveshwar Bhat Vs Krishna Damodhar… — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC-D:11618 WP No. 103545 of 2016

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 3^RD DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM

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WRIT PETITION NO. 103545 OF 2016 (GM-CPC)

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BETWEEN:

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SAVITRI KOM BHAIRVESHWAR BHAT, AGED ABOUT 73 YEARS, OCC: AGRICULTURIST & HOUSEHOLD, R/O: HARITA AND KALLABBE, KUMTA.

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MAHABLESHWAR BHAIRVESHWAR BHAT, AGED ABOUT 51 YEARS, OCC: AGRICULTURIST, R/O: HARITA, TALUK: KUMTA.

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SHRIKANT BHAIRAVESHWAR BHAT, AGED ABOUT 50 YEARS, OCC: CHARTERED ACCOUNTANT, ROOM NO.6, VASWARI MENSION, R/O: ANDHERI, MUMBAI.

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MOHANKUMAR B SHELAR

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Digitally signed by MOHANKUMAR B SHELAR Date: 2023.10.10 14:49:26 +0530

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RAMACHANDRA BHAIRAVESHWAR BHAT, AGED ABOUT 49 YEARS, OCC: AGRICULTURIST, R/O: KALLABBE, TALUK: KUMTA.

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P1, P3 & P4 ARE REPRESENTED BY THEIR GPA HOLDER PETITIONER NO.2.

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4A. SMT. SHALINI RAMCHANDRA BHAT, AGE: 49 YEARS, OCC: HOUSE WIFE, R/O: KALLABBE, TALUK: KUMTA, DIST: KARWAR.

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4B. KUMARI MEGHANA RAMACHANDRA BHAT, AGE: 18 YEARS, OCC: STUDENT, R/O: KALLABBE, TALUK: KUMTA, DIST: KARWAR.

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…PETITIONERS

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(BY SRI SUNIL S. DESAI, ADVOCATE)

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2 - NC: 2023:KHC-D:11618 WP No. 103545 of 2016

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AND:

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KRISHNA DAMODHAR PRABHU, SINCE DECEASED BY HIS LR’S.

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RUKMINI KOM KRISHNA PRABHU, AGED ABOUT 85 YEARS, OCC: HOUSEHOLD, R/O: HARITA, KODAMBALLI, TALUK: KUMTA.

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SHRIKANT KRISHNA PRABHU, AGED ABOUT 67 YEARS, OCC: AGRICULTURIST, R/O: GURUKATTE, KATAGAL, TALUK: KUMTA.

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KARUNA KOM GANANATH PRABHU, AGED ABOUT 58 YEARS, OCC: HOUSEHOLD, R/O: KOPPALKARWADI, TALUK: KUMTA.

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DAMODHAR @ RAMACHANDRA KRISHNA PRABHU, AGED ABOUT 57 YEARS, OCC: AGRICULTURIST,

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MAHAV KRISHNA PRABHU, AGED ABOUT 54 YEARS, OCC: AGRICULTURIST,

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VENKATESH KRISHNA NAYAK, AGED ABOUT 65 YEARS, OCC: AGRICULTURIST, T/O: HARITA, TALUK: KUMTA.

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F.M. KRISHNA DASA BHAT, AGED ABOUT 80 YEARS, OCC: RETIRED EMPLOYEE,

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ALL ARE RESIDENT OFF HARITA, TALUK: KUMTA.

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…RESPONDENTS

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(BY SRI J.S. SHETTY, ADV. FOR R1-R5; NOTICE TO R6 AND R7 ARE SERVED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT ORDER

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3 - NC: 2023:KHC-D:11618 WP No. 103545 of 2016

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OR DIRECTION, IN THE NATURE OF CERTIORARI, QUASHING THE ORDER DATED:21.03.2016 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC AT KUMATA, ON I.A.NO.22 IN O.S.NO.85/2006, AS PER ANNEXURE-J AND CONSEQUENTLY ALLOW THE I.A.NO.22.

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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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Captioned petition is filed by the plaintiff assailing the order of the learned Judge on I.A.No.22 filed under Order XXVI Rule 9 of CPC seeking appointment of survey commissioner for local inspection of the suit schedule property. The said application is rejected and therefore, plaintiff is before this Court.

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The petitioner-plaintiff has instituted a suit for declaration of easementary rights and for consequential relief of injunction. Pending suit, the petitioner filed an application seeking appointment of Court commissioner, which was before commencement of trail and the learned Judge rejected the application, which was challenged before this Court in W.P.No.530/2008. This Court though was not inclined to interfere with the order under challenge, however, liberty was reserved to the petitioner-plaintiff to seek local inspection after conclusion of trial.

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4 - NC: 2023:KHC-D:11618 WP No. 103545 of 2016

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After conclusion of trial, the plaintiff again filed application seeking appointment of commissioner. The learned Judge has rejected the application on the ground that when existence of road is proved and so also fixing of the gate, the burden is on the plaintiff to substantiate rest of disputed facts and therefore, appointment of court commissioner is not necessary. The learned Judge was also of the view that the material on record suffices and the Court is in position to adjudicate the controversy between the parties.

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In the present case on hand, the petitioner is asserting easementary rights over the disputed road. When a relief of easementary right is asserted by a party and the dispute revolves around the existence and location of road and all incidental rights over the said suit road, local inspection is always advisable. It is not only about the Court’s satisfaction of the materials available on record for effective and complete adjudication but also the right of plaintiff to produce best piece of evidence. It is equally a trite law that some controversies can be gathered at the spot and not based on title documents of the parties. It is equally trite law that a party should not be precluded from producing best piece of evidence. The suit is of

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5 - NC: 2023:KHC-D:11618 WP No. 103545 of 2016

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the year 2006 and the writ petition is filed in the year 2016 and the proceedings are stayed. Therefore, I am of the view that no purpose would be served in keeping the present writ petition pending, which would further complicate the actual dispute between the parties. For the reasons stated supra, I pass the following:

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ORDER

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i) The writ petition is allowed.

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ii) The impugned order passed on I.A.No.22 is hereby set aside. The Court shall issue commission warrant by taking cognizance of memo of instructions and also the guidelines laid down by this Court in the case of Sri. Shadaksharappa v. Kumari Vijayalaxmi and others reported in 2023 (1) KCCR 637.

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iii) In view of disposal of the petition, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly.

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YAN, List No.: 1 Sl No.: 58

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Sd/JUDGE

Savitri Kom Bhairveshwar Bhat v. Krishna Damodhar Prabhu Since Deceased by His Lrs

Case brief

What is this about?

What did the court decide?

Savitri Kom Bhairveshwar Bhat v. Krishna Damodhar Prabhu Since Deceased by His Lrs

Case brief

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What did the court decide?

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