Dismissed

Smt Sannamma v. Mysuru District School

Karnataka HC6 Oct 2023WP/19978/2019

Case brief

AI extract

What is this about?

In a writ petition under Article 227, the High Court rejected the challenge to a Civil Court order refusing to appoint a Court Commissioner for property demarcation. The court held there was no perversity as the Commissioner's report from a previous suit on the same properties was already on record.

What did the court decide?

Writ petition dismissed. Trial Court directed to dispose of the underlying suit O.S.No.248/2006 in an expeditious manner on priority basis.

Smt Sannamma Vs Mysuru District School — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:36398 WP No.19978 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6^TH DAY OF OCTOBER, 2023 BEFORE

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.19978 OF 2019 (GM-CPC)

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BETWEEN:

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SMT. SANNAMMA AGED ABOUT 88 YEARS SINCE DEAD BY LR'S.

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1(a) SMT. MALLAMMA AGED ABOUT 71 YEARS W/O THIMMAIAH.

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Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA

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1(b) SMT. SAROJAMMA AGED ABOUT 69 YEARS W/O NALLANNA.

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1(c) SMT. PADMA AGED ABOUT 68 YEARS W/O KULLAIAH.

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1(d) SMT. CHANDRAMMA AGED ABOUT 56 YEARS W/O RAMANNA R/AT. DOOR NO.344, MAIN ROAD RAGHAVENDRA NAGARA MYSURU CITY-560005.

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1(e) SMT. CHIKKAPADMA AGED ABOUT 63 YEARS W/O ASHOK R/AT. DOOR NO.22, KULUME PALYA BANNERUGHATTA BENGALURU-560083.

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2 - NC: 2023:KHC:36398 WP No.19978 of 2019

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1(f) SRI. KRISHNA AGED ABOUT 61 YEARS S/O SHIVAIAH.

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1(g) SMT. SARASAMMA AGED ABOUT 41 YEARS W/O LATE DEVARAJU.

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PETITIONERS NO.1(a), 1(b), 1(c), 1(f) AND 1(g) ARE R/AT. GIRIYA BHOVI PALYA NAZARABAD MOHALLA MYSURU CITY-570010.

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…PETITIONERS

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(BY SRI. R. SHIVANANDA, ADV., FOR SRI. P. NATARAJU, ADV.,)

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AND:

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MYSURU DISTRICT SCHOOL TEACHERS HOUSE BUILDING CO-OPERATIVE SOCIETY REPRESENTED BY IT'S PRESIDENT SRI. RAMALINGEGOWDA, MAJOR R/AT NO.101, NEAR GANAPATHI TEMPLE 2ND CROSS, AGRAHARA MYSURU - 570004.

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SRI. T.R. SHESHADRI, MAJOR S/O LATE RAMAIAH R/AT NO.977, LAKSHMI NARASIMHA KRUPA GEETHA ROAD, MYSURU - 570004.

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SMT. BHAGEERATHAMMA AGED ABOUT 86 YEARS W/O LATE B.V. NANJUNDAIAH R/AT NO.464, 3RD CROSS 8TH MAIN, H BLOCK RAMAKRISHNA NAGAR MYSURU - 570022.

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SRI. R. ESHWARA, MAJOR S/O RAMAIAH R/AT NO.1616, UPPINAKERI 2ND CROSS, MANDI MOHALLA MYSURU CITY - 570021.

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SMT. G. SUNDARI, MAJOR W/O C. GOPALAKRISHNA R/AT NO.427, 7/A CROSS SANMARGA CROSS SIDDARTHA NAGAR MYSURU CITY - 570011.

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SRI. M.D. SHIVANANJAPPA, MAJOR S/O M. DEVAIAH R/AT NO.2930/2C, 2ND MAIN CHAMUNDIPURAM, K R MOHALLA MYSURU CITY - 570004.

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SRI. M.D. SHIVALINGAIAH, MAJOR S/O LATE S. RAMALINGAIAH R/AT SWATHI SANGOLLIL RAYANNA ROAD GUNDLUPET TOWN CHAMARAJANAGARA DISTRICT - 571111.

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SMT. SANNAMMA, MAJOR W/O LATE MOGANNA R/AT YERAGANAHALLI VILLAGE MYSURU - 570011.

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SMT. V. LAKSHMI, MAJOR R/AT NO.812, 9TH CROSS VIGNESHWARA MARGA YERAGANAHALLI LAYOUT MYSURU - 570011.

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SRI. SOMASHEKAR SINCE DEAD BY LR'S.

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SMT. JAYALAKSHMI AGED ABOUT 71 YEARS W/O SOMASHEKAR.

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SRI. SOMASUNDAR AGED ABOUT 54 YEARS S/O SOMASHEKHAR.

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SRI. SANTHOSH AGED ABOUT 51 YEARS S/O SOMASHEKHAR.

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SMT. RANI AGED ABOTU 48 YEARS D/O SOMASHSEKHAR W/O RAMESH.

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SRI. SHIVAKUMAR AGED ABOUT 47 YEARS S/O SOMASHEKHAR.

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RESPONDENTS NO.10 TO 14 ARE R/AT NO.82, GIRIYABHOVI PALYA 1ST CROSS, SIDDARTHA NAGARA MYSURU - 570010.

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SRI. M. KAILASMURTHY, MAJOR S/O LATE M. KEMPANNA R/AT NO.10, 8TH BLOCK ADI SHAKTHI ROAD SHAKTHI NAGAR, MYSURU - 570029.

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SMT. PUTTATHAYAMMA, MAJOR W/O LATE S.R. SHIVALINGAIAH.

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SRI. RAJASHEKAR, MAJOR S/O LATE S.R. SHIVALINGAIAH.

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SMT. SUMA, MAJOR D/O LATE S.R. SHIVALINGAIAH.

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NC: 2023:KHC:36398 WP No.19978 of 2019

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RESPONDENTS NO.16 TO 18 ARE R/AT S.R. ROAD, 19TH WARD GUNDLUPET TOWN CHAMARAJANAGARA DISTRICT - 571111.

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SMT. RADHA S. PURANIK, MAJOR W/O SRI. N. SHRISHA PURANIK R/AT NO.123, 4TH CROSS ITTEGEGUDU NEW EXTENSION NAZARABAD MOHALLA MYSURU CITY - 570003.

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…RESPONDENTS

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(BY SRI. K. VIJAYA KUMAR, ADV., FOR R1 SRI. AKARASH KUMAR GOWDA, ADV., FOR SRI. NARENDRA D.V. GOWDA, ADV., FOR R16-R18 NOTICE TO R4, R5, R9, R10, R11, R12, R14, R19 ARE SERVED V/O DTD:24/01/2020, NOTICE TO R8 IS HELD SUFFICIENT V/O DTD: 29/11/2021, NOTICE TO R2 IS HELD SUFFICIENT AND PLACED EXPARTY V/O DTD:29/11/2021, R16 TO R18 ARE LRS OF DECEASED R7

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V/O DTD:17/10/2022, NOTICE TO R3, R6, R13 & R15 ARE HELD SUFFICIENT AND PLACED EXPARTY)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER PASSED BY THE LEARNED JUDGE, PRL. COURT OF SMALL CAUSES AT MYSURU IN O.S.NO.248/2006 DATED 08.04.2019 ON I.A.NO.26 VIDE ANNX-L AND MAYBE PLEASED TO ALLOW I.A.NO.26 ON IT'S FILED AS PRAYED FOR. GRANT AN INTERIM ORDER TO STAY THE FURTHER PROCEEDINGS OF O.S.NO.248/2006 PENDING ON THE FILE OF LEARNED JDUGE, PRL. COURT OF SMALL CAUSES AT MYSURU, PENDING DISPOSAL OF THE ABOVE W.P.

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NC: 2023:KHC:36398 WP No.19978 of 2019

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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 petition is filed under Article 227 of the

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Constitution of India by the legal representatives of original plaintiff assailing the order dated 08.04.2019 passed on I.A.No.26 in O.S.No.248/2006 which was rejected by the Trial Court.

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Brief facts leading to filing of this petition are that the plaintiff has filed O.S.No.248/2006 seeking for the relief of declaration and mandatory injunction against the respondents. In the said suit, the plaintiff has filed an application under Order XXVI Rule 9 and Rule 10-A read with Section 151 of the Code of Civil Procedure, 1908 seeking to appoint a Court Commissioner for identification and demarcation of the eastern boundary of plaint A and B schedule properties. The said application was opposed by the respondents by filing statement of objections. The Trial Court, after considering the rival contentions, was pleased to

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NC: 2023:KHC:36398 WP No.19978 of 2019

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reject the said application. In the aforesaid factual matrix, the present petition is filed.

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Sri.R.Shivananda, learned counsel for the

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petitioners submits that the Trial Court has committed a grave error in rejecting the application for appointment of Court Commissioner. It is submitted that the plaintiff has filed the suit for declaration and mandatory injunction and during the pendency of the suit, it is noticed by the plaintiff that the defendants have encroached upon certain portion of the suit schedule properties which has compelled the plaintiff to file the application seeking appointment of a technical person to identify and demarcate the plaint A and B schedule properties for the purpose of complete adjudication of the suit to enable him to get the decree of declaration and mandatory injunction. However, the Trial Court without considering the material in its proper prospective has rejected the application. He seeks to allow the writ petition.

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Per contra, learned counsel for the respondents supports the impugned order of the Trial Court and submits

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that the son of the plaintiff namely defendant No.10 in the present suit has earlier filed O.S.No.117/1991 seeking relief of declaration and mandatory injunction insofar as the same suit schedule properties which came to be dismissed and in the said suit, the Court Commissioner was appointed and he has given a report which is already available on record in the present suit and which is produced and marked. It is submitted that filing of the present application is nothing but dragging the proceedings before the Trial Court and the suit being of the year 2006, and if application is now allowed it would further delay the proceedings. It is further submitted that the Trial Court has recorded a finding that it is not necessary to appoint any Court Commissioner at this stage as sufficient material is available on record to decide the suit. He seeks for dismissal of the petition.

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Heard the learned counsel for the petitioners,

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learned counsel for the respondents and perused the material available on record. It is not in dispute that the plaintiff has filed a suit for declaration that she is the absolute owner of plaint B schedule property and further

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sought a direction against respondent Nos.2 to 9 to handover possession of plaint B schedule property. During the pendency of the said suit, the plaintiff has moved an application for appointment of Court Commissioner which was rejected by the Trial Court. Being aggrieved by the same, she had filed W.P.No.13799/2011 wherein this Court has refused to interfere with the order of the Trial Court. However, liberty was reserved to the plaintiff to file an application after the evidence was recorded.

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On perusal of the material available on record, it is evident that the defendant No.10 who is none other than the son of plaintiff, has filed O.S.No.289/1996 seeking a declaration to declare that he is the owner of Sy.No.176 which is the suit schedule property and sought permanent injunction against the defendant therein and also filed another suit in O.S.No.117/1991 on the file of the II Munsiff, Mysore against the defendant No.1. In the said suit, the Court has appointed the Court Commissioner to draw a sketch and to find out the contention raised by the plaintiff therein. The Court Commissioner has carried out

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the exercise and submitted the report in the said suit. It is

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also not in dispute that the said report of the Court Commissioner is placed on record in the present suit and the same is marked in the evidence. When things stood thus, the filing of the present application seeking for appointment of Court Commissioner in respect of the same property urging similar contentions in the plaint and application, is nothing but abuse of process of law. The Trial Court has recorded a categorical finding that the plaintiff has already completed recording of evidence and the matter is posted for the defendant's evidence and the documents were also marked. The Trial Court has further recorded a finding that there are sufficient material available on record to decide the issue on merits. Hence, the question of appointing the Court Commissioner at this stage would not arise and if necessary, before passing the judgment, the Trial Court shall consider the request of the parties. This Court is of the considered view that the finding recorded by the Trial Court is neither perverse nor contrary to the

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material available on record calling for interference of this Court.

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For the aforementioned reasons, this Court do not find any reason to interfere with the impugned order passed by the Trial Court. Accordingly, writ petition is devoid of merits and the same is dismissed.

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At this stage, learned counsel for the respondents submits that the suit is of the year 2006 and a direction may be issued to the Trial Court to dispose of the suit in a time bound manner. In reply learned counsel for the plaintiff submits that he will co-operate with Trial Court for early disposal of the suit. Submissions are placed on record.

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The Trial Court is directed to take up the suit on priority basis and dispose of the same in an expeditious manner. Ordered accordingly.

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Sd/JUDGE

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Smt Sannamma v. Mysuru District School

Case brief

What is this about?

What did the court decide?

Smt Sannamma v. Mysuru District School

Case brief

What is this about?

What did the court decide?

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