Disposed

Fakkirappa S/O. Mylarappa Kademani v. Fakkirappa S/O. Gutteppa Kademani

Karnataka HC19 Dec 2023WP/104332/2023

Case brief

AI extract

What is this about?

This writ petition challenged an order appointing a Court Commissioner to ascertain tree details and mesne profits. The High Court explained relevant CPC provisions, referenced precedent, and noted the Commissioner could not rule on encroachment.

What did the court decide?

Writ petition disposed of observing the limits of a Court Commissioner's report.

Fakkirappa S/O. Mylarappa Kademani Vs Fakkirappa S/O… — Specific Performance | Karnataka HC (2023)

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NC: 2023:KHC-D:14863 WP No. 104332 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 19^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE

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WRIT PETITION NO. 104332 OF 2023 (GM-CPC)

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BETWEEN:

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FAKKIRAPPA S/O. MYALARAPPA KADEMANI, AGE: 69 YEARS, OCC: AGRIL, R/O. GEJJIHALLI, TQ: HANGAL, DIST: HAVERI-581104.

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MYALARAPPA S/O. DURUGAPPA KADEMANI AGE: 64 YEARS, OCC: AGRIL, R/O. GEJJIHALLI, TQ: HANGAL, DIST: HAVERI-581104.

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CHANDRAPPA S/O. DURUGAPPA KADEMANI AGE: 62 YEARS, OCC: AGRIL, R/O. GEJJIHALLI, TQ: HANGAL, DIST: HAVERI-581104.

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Digitally signed
MOHANKUMARB SHELAR byMOHANKUMARB SHELARDate:
2023.12.22
11:06:53 +0530

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YELLAPPA S/O. DURUGAPPA KADEMANI AGE: 59 YEARS, OCC: AGRIL, R/O. GEJJIHALLI, TQ.HANGAL, DIST: HAVERI-581104.

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BEERAPPA S/O. YELLAPPA KADEMANI AGE: 39 YEARS, OCC: AGRIL, R/O. GEJJIHALLI, TQ.HANGAL, DIST: HAVERI-581104.

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HANUMANTHAPPA S/O. NEELAPPA KADEMANI AGE: 38 YEARS, OCC: AGRIL, R/O. GEJJIHALLI, TQ.HANGAL, DIST.HAVERI-581104.

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…PETITIONERS

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(BY SRI. DINESH M. KULKARNI, ADVOCATE)

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AND:

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FAKKIRAPPA S/O. GUTTEPPA KADEMANI AGE: 59 YEARS, OCC: AGRIL,

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2 - NC: 2023:KHC-D:14863 WP No. 104332 of 2023

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R/O. GEJJIHALLI, TQ: HANGAL, DIST: HAVERI-581104.

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RAMAPPA S/O. NEELAPPA KADEMANI AGE: 35 YEARS, OCC: AGRIL, R/O. GEJJIHALLI, TQ.HANGAL, DIST: HAVERI-581104.

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…RESPONDENTS

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(BY SRI. SRI. MAHESH WODEYAR, ADV. FOR RESPONDENT NO.1) (WRIT PETITION AGAINST RESPONDENT NO.2 STANDS ABATED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT IN THE NATURE OF CERTIORARI BY QUASHING THE ORDER ON I.A.NO. 18 DATED 03/07/2023 PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND JMFC, AT HANGAL, IN O.S.NO. 8/2016, VIDE ANNEXURE-H, AS NULL AND VOID.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Heard the learned counsel for the petitioners and learned counsel for the 1^st respondent.

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Petitioners are aggrieved by the order of

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appointing the Court Commissioner. The officer from the office of Horticulture Department, Hangal Taluka, Hangal is appointed as Court Commissioner to ascertain the exact number of trees existing in the suit schedule property and

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to ascertain the nature of the said trees, its age,

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3 - NC: 2023:KHC-D:14863 WP No. 104332 of 2023

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approximate value and the income derived from the said trees.

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Learned counsel for the petitioners Sri Dinesh M. Kulkarni submits that the plaintiff himself is not sure about the claim relating to encroachment. In the crossexamination of plaintiff, he himself has admitted that he himself is in possession of the property. Thus, he would contend that there is no need to appoint the Court Commissioner in the aforementioned circumstances.

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Learned counsel for the respondent would justify the order of the Trial Court and would contend that the plaintiff has filed the suit for possession and also for mesne profits under Order XXVI Rule 9 of CPC. It is permissible to appoint a Court Commissioner to ascertain the mesne profits. The order XXVI Rule 9 of CPC reads as under :

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“9. Commissions to make local investigations

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In any suit in which the court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the

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4 - NC: 2023:KHC-D:14863 WP No. 104332 of 2023

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court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the court:

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Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the court shall be bound by such rules.”

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In the appropriate cases, the Court has a power to appoint a Court Commissioner to ascertain mesne profits or damages or annual net profits from the property. Under these circumstances, this Court is of the view that the order passed by the Trail Court is in accordance with the principles laid down by the co-ordinate bench of this court in the case of Shadaksharappa Vs. Kumari Vijayalakshmi and Others, Writ Petition

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No.201956/2018.

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It is relevant to observe here that in case the defendant/petitioner is able to establish that there is no encroachment in the land then the report of Court Commissioner relating to the yield, income and age of trees is of little consequence. The report of the Court Commissioner so appointed in terms of the order dated

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5 - NC: 2023:KHC-D:14863 WP No. 104332 of 2023

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03.07.2023 cannot be used as report to decide the disputed aspect of encroachment as the Commissioner appointed is not a Surveyor.

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With these observations, writ petition is disposed of.

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Sd/JUDGE

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CKK/ct-an List No.: 2 Sl No.: 21

Fakkirappa S/O. Mylarappa Kademani v. Fakkirappa S/O. Gutteppa Kademani

Case brief

What is this about?

What did the court decide?

Fakkirappa S/O. Mylarappa Kademani v. Fakkirappa S/O. Gutteppa Kademani

Case brief

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What did the court decide?

What the court decided

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