Dismissed

Sri H v. Onkarappa v H L Onkaraiah

Karnataka HC21 Sept 2023WP/10707/2021

Case brief

AI extract

What is this about?

Writ petition challenging the order appointing a Court Commissioner to measure suit properties in a civil suit for declaration and possession. The High Court held it was in the interest of justice to ascertain the extent of alleged encroachment and rejected the writ petition.

What did the court decide?

The writ petition was rejected; the order appointing the Court Commissioner stood confirmed.

Sri H v Onkarappa Vs H L Onkaraiah — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:34258 WP No. 10707 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21^ST DAY OF SEPTEMBER, 2023 BEFORE

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THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.10707 OF 2021 (GM-CPC)

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BETWEEN:

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SRI H.V. ONKARAPPA, S/O LATE H.V.VEERAPPA, AGED ABOUT 75 YEARS, AGRICULTURIST, R/AT SHANTHINAGARA EXTESNION, HUNASAGHATTA VILLAGE, AMRUTHAPURA HOBLI, TARIKERE TALUK, CHIKKAMAGALURU DISTRICT - 577 228.

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…PETITIONER

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(BY SRI. PRANEETH G N., & SRI. DINESH M. BHAT, ADVOCATES)

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AND:

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H.L. ONKARAIAH, S/O LINGAIAH SINCE DEAD BY HIS LRS,

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SMT. SUVARNAMMA, W/O LATE ONKARAIAH, AGED ABOUT 76 YEARS, R/O HUNASAGHATTA VILLAGE, AMRUTHAPURA HOBLI, TARIKERE TALUK, CHIKMAGALURU DISTRICT - 577228.

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Digitally signed by GURURAJ D Location: High Court of Karnataka

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SRI H.O. BASAVARAJAIAH, S/O LATE ONKARAIAH, AGED ABOUT 58 YEARS, R/O HUNASAGHATTA VILLAGE, AMURTHAPURA HOBLI, TARIKERE TALUK, CHIKMAGALUR DISTRICT-577 228.

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SRI. H.O. SATHISHA, S/O LATE ONKARAIAH, AGED ABOUT 56 YEARS, R/O HUNASAGHATTA VILLAGE, AMRUTHAPURA HOBLI,

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NC: 2023:KHC:34258 WP No. 10707 of 2021

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TARIKERE TALUK, CHIKMAGALUR DISTRICT - 577 228.

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SRI H.O. JAGADEESHARADHYA, S/O LATE ONKARAIAH, AGED ABOUT 54 YEARS, R/O HUNASAGHATTA VILLAGE, AMRUTHAPURA HOBLI, TARIKERE TALUK, CHIKMAGALUR DISTRICT - 577 228.

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…RESPONDENTS

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(BY SRI. G.S.BHAT & SRI. G. SADASHIVA, ADVCS., FOR R1 TO R4)

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THIS W.P. IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DTD.31.5.2021 PASSED ON IA NO.XII FILED UNDER ORDER 26 RULE 9 OF CPC IN O.S.NO.286/2013 ON THE FILE OF ADDITIONAL CIVIL JUDGE AND JMFC TARIKERE AS PER ANNEXURE-L.

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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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This writ petition is filed under Article 227 of the Constitution of India by defendant in O.S.No.286/2013 seeking prayer to quash the order dated 31.05.2021 passed on I.A.No.XII filed by the plaintiffs/respondents herein under Order XXVI Rule 9 of the CPC, on the file of the Additional Civil Judge and J.M.F.C., Tarikere.

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NC: 2023:KHC:34258 WP No. 10707 of 2021

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Brief facts leading to filing of this writ petition are that the respondents have filed O.S.No.286/2013 seeking prayer to declare that the plaintiffs/respondents herein are the absolute owner of the suit 'A' schedule property and consequential relief of possession of schedule 'B' property.

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In the said suit, plaintiffs have filed I.A.No.XII under Order XXVI Rule 9 of the CPC, seeking prayer to appoint Court Commissioner to measure the suit 'A' schedule property and to give report after measurement as to whether 'B' schedule property which is encroached by the defendant is part of 'A' schedule property. The said application came to be opposed by the petitioner herein. The trial Court vide order dated 31.05.2021 has allowed the said application by appointing the Surveyor, ADLR, Tarikere as Court Commissioner to measure the suit 'A' and 'B' schedule properties along with defendant's property and directed the Court Commissioner to make measurement work and file his report before the Court within 30 days. Being aggrieved by the said order, defendant's have filed this writ petition.

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NC: 2023:KHC:34258 WP No. 10707 of 2021

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Sri. Praneeth G.N., learned counsel appearing for

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the petitioner submits that the trial Court has committed a grave error in allowing the application for appointment of Court Commissioner without appreciating the fact that the plaintiffs application I.A.No.VI filed on earlier occasion seeking for appointment of Court Commissioner was rejected and without considering the same, the present application is allowed. It is submitted that the attempt of seeking appointment of Court Commissioner is for the purposes of collecting the evidence. The defendant has taken the specific plea in their objection that there is no valid document to show the boundaries of the suit schedule property in favour of the plaintiffs/respondents. Hence, the respondents are making an attempt to collect the evidence by seeking appointment of Court Commissioner. It is further submitted that the filing of second application for seeking appointment of Court Commissioner is not maintainable as it is hit by principles of resjudicata. He seeks to allow the writ petition.

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Per contra, Sri. G.S. Bhat, learned counsel

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appearing for the respondents supports the impugned order of the trial Court and submits that the respondents, who are the

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NC: 2023:KHC:34258 WP No. 10707 of 2021

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plaintiffs in the suit has specifically pleaded that they have purchased the suit 'A' schedule property from the brother of the petitioner on 16.12.2004 and the petitioner has encroached to the extent of 02 acres 15 guntas which is the schedule 'B' property hence, it is just and necessary to ascertain the actual encroachment by the petitioner. It is submitted that on earlier occasion, the application for appointment of Court Commissioner was rejected only on the sole ground that the said application was filed even before the commencement of the evidence. Hence, there is no bar for filing the subsequent application which was filed on conclusion of the evidence. He seeks to dismiss the writ petition.

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Heard the learned counsel for the petitioner, learned counsel for the respondents and perused the material available on record. It is not in dispute that the respondents have filed a suit for declaration and consequential relief of possession. On perusal of averments made in the plaint, it is evident that the respondents have specifically pleaded that defendant has encroached plaintiffs property which is shown as the suit 'B' schedule property and are in illegal possession. It is not in dispute that the defendant has filed O.S.No.52/2006 and

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NC: 2023:KHC:34258 WP No. 10707 of 2021

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got injunction and it is alleged that after injunction the defendant encroached the portion of plaintiffs property. It is the specific case of the respondents/plaintiffs that during the pendency of O.S.No.52/2006, the petitioner has encroached on the schedule 'B' property and unless actual encroachment is found out, the relief sought by the respondents/plaintiffs cannot be granted in the suit. Hence, it is just and necessary to appoint the Court Commissioner to find out the alleged extent of the encroachment by the petitioner.

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The petitioner has raised the contention that the trial Court on careful perusal had rejected I.A.No.VI. Hence, filing of subsequent application seeking for appointment of Court Commissioner is hit by the principles of resjudicata. In my considered view, the said contention is required to be rejected as the trial Court while rejecting I.A.NoVI has categorically recorded a finding that considering the application for appointment of Court Commissioner at the stage of before evidence is commenced is not the proper stage and proceeded to reject. Admittedly, the present application for appointment of Court Commissioner is filed on completion of evidence.

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NC: 2023:KHC:34258 WP No. 10707 of 2021

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Hence, the said contention of the petitioner has no merit for consideration.

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On considering the averments made in the

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accompanying affidavit to I.A.No.XII, it is evident that the respondents are making specific assertion that there is an encroachment of 02 acres 15 guntas in Sy.No.168/1 by the petitioner and unless there is survey by the independent expert, it will be difficult for the Court to grant the relief sought by the respondents/plaintiffs. Considering the facts and circumstances of the case and the nature of relief sought by the respondents in the suit, it would be appropriate to measure the property. So that the trial Court would have a complete idea about the encroachment as alleged by the respondents in their plaint. Mere allowing the application for appointment of Court Commissioner cannot be construed as it is for the collection of the evidence. The report of the Commissioner would only an aid to the trial Court to arrive at just conclusion to decide the lis pending before it. The trial Court has recorded a categorical finding in the impugned order that it is just and proper to appoint the Surveyor to measure the suit 'A' and 'B' schedule properties and defendant's property to decide the case

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effectively in the interest of justice. This Court does not find error in the finding recorded by the trial Court in the impugned order calling for interference in the present petition. There is no

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merit in the present petition. Accordingly, same is rejected.

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Sd/JUDGE

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GRD

Sri H v. Onkarappa v H L Onkaraiah

Case brief

What is this about?

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Sri H v. Onkarappa v H L Onkaraiah

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