Dismissed

Sri Sahil Vazirally v. Sri M Ramkrishna

Karnataka HC6 Jul 2023WP/2277/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a writ petition under Article 227 seeking to quash a trial court order. The impugned order allowed an application under Order 26 Rule 9 CPC for the appointment of a Court Commissioner to inspect immovable properties and ascertain their boundaries and identity. The High Court found no illegality and disposed of the matter without interference.

What did the court decide?

Petition disposed of without interfering with the impugned order allowing appointment of Court Commissioner.

Sri Sahil Vazirally Vs Sri M Ramkrishna — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:23395 WP No. 2277 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO.2277 OF 2023 (GM-CPC)

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BETWEEN:

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SRI SAHIL VAZIRALLY S/O ARIF VAZIRALLY, AGED ABOUT 44 YEARS, R/AT NO.381, 3^RD BLOCK, KORAMANGALA, BENGALURU-560 034.

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…PETITIONER

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(BY SRI. I.S. DEVAIAH., ADVOCATE)

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AND:

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SRI M RAMKRISHNA S/O LATE K.MUNIYAPPA AGED 73 YEARS, R/AT NO.23, 2^ND FLOOR, 3^RD A CROSS,

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ANNIPURA MAIN ROAD, SUDHAMNAGARA, BENGALURU-560 027.

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Digitally signed by VANDANA S Location: High Court of Karnataka

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SMT.SANJEEVAMMA W/O LATE MUNIGUNDAPPA @ CHINNAPPA AGED ABOUT 69 YEARS, R/AT NO.128, MAISTRY PALYA, 16^TH MAIN, 4^TH BLOCK, KORAMNGALA, BANGALORE-560 034.

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3. SRI.CHANDRA

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S/O LATE MUNIGUNDAPPA @ CHINNAPPA AGED ABOUT 41 YEARS, R/AT NO.128, MAISTRY PALYA,

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16^TH MAIN, 4^TH BLOCK, KORAMANGALA, BANGALORE-560 034.

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SMT. MANJULA D/O LATE MUNIGUNDAPPA @ CHINNAPPA AGED ABOUT 53 YEARS,

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NC: 2023:KHC:23395 WP No. 2277 of 2023

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SRI.VENKATESH S/O LATE MUNIGUNDAPPA @ CHINNAPPA AGED ABOUT 53 YEARS,

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SRI.SRINIVASA S/O LATE MUNIGUNDAPPA @ CHINNAPPA AGED ABOUT 44 YEARS,

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SMT.BHAGYA D/O LATE MUNIGUNDAPPA @ CHINNAPPA AGED ABOUT 41 YEARS,

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SMT.KANTHA D/O LATE MUNIGUNDAPPA @ CHINNAPPA AGED 38 YEARS,

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RESPONDENTS 4 TO 8 ARE R/AT 12, MAISTRY PALYA, 16^TH MAIN, 4^TH BLOCK, KORAMANGALA, BANGALORE-560 034.

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…RESPONDENTS

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(BY SRI. PRASANNA KUMAR B.T., ADVOCATE FOR R1; VIDE ORDER DATED 02.02.2023, NOTICE TO R-2 TO R-8 IS D/W)

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THIS W.P IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 27/03/2019 PASSED BY XVI ADDL, CITY CIVIL JUDGE, BANGALORE (CCH NO.28) IN O.S. 4331/2010 ON I.A. NO.17 AS FILED BY THE R-1 HEREIN ATTACHED AS ANNEXURE-H.

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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 by defendant No.8 in O.S.No.4331/2010 is directed against the impugned order dated 27.03.2019 passed on

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3 - NC: 2023:KHC:23395 WP No. 2277 of 2023

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I.A.No.17 whereby the said application filed by respondent No.1 – plaintiff under Order 26 Rule 9 CPC seeking appointment of Court Commissioner to conduct local inspection was allowed by the Trial Court.

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Heard learned counsel for the petitioner and learned

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counsel for the respondents and perused the material on record.

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The material on record discloses that respondent No.1 – plaintiff instituted the aforesaid suit against the petitioner – defendant No.8 and respondent Nos.2 to 8 – defendant Nos.1 to 7 for declaration, possession and other reliefs in relation to the suit schedule immovable properties. The said suit is being contested only by petitioner – defendant No.8 and not by remaining defendants.

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After completion of evidence, respondent No.1 – plaintiff filed the instant application seeking appointment of Court Commissioner to conduct local inspection of the suit schedule immovable properties. The said application having been opposed by the petitioner, the trial Court proceeded to pass the impugned order allowing I.A.No.17 by holding as under:

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NC: 2023:KHC:23395 WP No. 2277 of 2023

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“ ORDER ON I.A.NO.17

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The learned counsel for the applicant/plaintiff has filed I.A.No.17 under Order 26 rule 9 r/w Section 151 of C.P.C to appoint a Court Commissioner to verify the property as prayed, in the interest of justice and equity.

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2. In support of the I.A. the plaintiff has filed affidavit inter-alia contending that, in RFA No.471/1992 the Hon’ble High Court of Karnataka has directed in O.S No.10999/1986 that the title to the suit schedule property by filing the separate fee and also opined that other property No.13/1 and 13/2 are adjacent to one another or far away each other and also to ascertain whether CTS No.910 is equivalent to property No.13/1 and CTS No.935 is equivalent to property No.13/2 by appointing Court Commissioner. Therefore, in the instant case also it is necessary to verify whether the property No.13/1 and 13/2 are adjacent to one another or far away from each other and also to ascertain whether CTS 910 is equivalent to property No.13/1 and CTS 935 is equivalent to property 13/2, hence it is necessary to appoint the court commissioner. If the I.A is allowed, no harm or prejudice is caused to other side, on the other hand he will be put to great hardship and irreparable loss. Hence, prayed for allow the I.A.

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3. On the other hand the learned counsel for the respondent/defendant has filed objections inter-alia contending that, IA is not maintainable either in law or on facts, hence, liable to be dismissed, in the RFA is referred to

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NC: 2023:KHC:23395 WP No. 2277 of 2023

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by the above plaintiff is concerned, he was not the appellant in this case, the appellant was Gundappa, above plaintiff was only P.A holder for him, and that RFA was not decided in his favour, since the Will which is referred has no nomenclature of a will and the site which is referred to therein is vague, nobody can find out the identity of the site let alone the court commissioner, hence prayed for dismiss the IA.

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4. Heard, perused, on the basis of the above

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pleadings, materials and documents, the following points arise for my consideration:

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1. Whether the applicant/plaintiff has made out sufficient grounds to allow the IA. No. 17?

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2. What order?

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5. The above points are answered as follows:

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Point No. 1: In the affirmative

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Point No.2: As per the final order for the following:

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REASONS

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6. Point No. 1: The learned counsel for the applicant/plaintiff has vehemently argued that, in RFA No. 471/1992 the Hon’ble High Court of Karnataka has directed in O.S. No. 10999/1986 that the title to the suit schedule property by filing the separate fee and also opined that other property No. 13/1 and 13/2 are adjacent to one another or far away each other and also to ascertain whether CTS No. 910 is equivalent to property No. 13/1 and CTS No. 935 is equivalent to property No. 13/2 by appointing court commissioner. Therefore, in the instant case also it is

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NC: 2023:KHC:23395 WP No. 2277 of 2023

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necessary to verify whether the property No. 13/1 and 13/2 are adjacent to one another or far away from each other and also to ascertain whether CTS 910 is equivalent to property No.13/1 and CTS 935 is equivalent to property 13/2, hence it is necessary to appoint the court commissioner.

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7. The learned counsel for the respondent / defendant has vehemently argued that, in the RFA is referred to by the above plaintiff is concerned, he was not the appellant in this case, the appellant was Gundappa, above plaintiff was only P.A holder for him, and that RFA was not decided in his favour, since the Will which is referred has no nomenclature of a Will and the site which is referred to therein is vague, nobody can find out the identity of the site let alone the court commissioner.

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8. On perusal of the entire pleadings, materials and documents, which are clearly demonstrate that, the plaintiff has filed this suit against the defendant to declare that he is the absolute owner of the suit schedule property, the sale deed dt. 7.5.2010 is not binding on him, and direct the defendant to deliver the possession of the suit schedule property and other reliefs. Since the plaintiff has filed this IA for seeking appointment of the Court Commissioner to verify as the property No. 13/1 and 13/2 are adjacent to one another or far away from each other, and also to ascertain whether CTS No. 910 is equal vent to property No. 13/1 and CTS No. 935 is equivalent to property No. 13/2 on the ground that in RFA No. 471/1992 in O.S. No. 10999/86 the Hon’ble High Court was Karnataka was appointed the court

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NC: 2023:KHC:23395 WP No. 2277 of 2023

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commissioner in the same property. On perusal of the said certified copy of the RFA No. 471/1992 which is marked as Ex. P-2 in this case, wherein the Hon’ble High Court was Karnataka has clearly held in para No. 7, which is necessary to reproduce as under.

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“7. Another point urged by the learned counsel for the appellant that 13/1 and 13/2 are adjacent with each other and survey map produced is sought to be introduced to show that 13/1 is equivalent to CTS 910 and CTS 935 is equivalent to 13/2 and far away from each other divided by a road. The question is whether 13/1 and 13/2 are adjacent with each other or not. It should have been decided by appointment of a commissioner”.

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9. I have carefully gone through the entire pleadings materials, documents since the subject matter of the suit and the subject matter of the RFA No. 471/1992 in respect of appointment of Commissioner are one and same, since the Hon’ble High Court of Karnataka has opined that it is necessary to appoint the Commissioner to ascertain the property whether 13/1 and 13/2 are adjacent with each other or not, taking into consideration of the nature of the suit and the direction issued by the Hon’ble High Court of Karnataka in RFA No. 471/1992, I am of the opinion that it is a fit case to appoint the court commissioner to ascertain and verify physically as to whether property No.13/1 and 13/2 are adjacent to one another or far away from each other, and also ascertain whether CTS No. 910 is equivalent to property

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No. 13/1 and CTS No. 935 is equivalent to property No. 13/2. Hence, I answer point No. 1 in the affirmative.

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10. Point No. 2: In the result, I proceed to pass the following:

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ORDER

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The I.A No. 17 filed by the applicant/plaintiff under Order 26 Rule 9 R/w section 151 of C.P.C is hereby allowed.

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Both parties are hereby directed to suggest the name of Court Commissioner.

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Costs shall follow the events of suit”.

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A perusal of the impugned order will indicate that the

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same is in conformity with well settled principles of law governing appointment of Court Commissioner to conduct local inspection as enunciated by this Court in Sri. Shadaksharappa Vs. Kumari Vijayalaxmi & others (W.P.No.201274/2023, D.D.24.01.2023) case, particularly when there was a dispute regarding identity, location, measurements, boundaries, etc., of properties claimed by both sides.

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In view of the aforesaid facts and circumstances, I am of the considered opinion that the impugned order passed by the

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Trial Court allowing I.A.No.17 and directing appointment of Court Commissioner does not suffer from any illegality or infirmity nor has the same occasioned failure of justice warranting interference by this Court in exercise of my jurisdiction under Article 227 of the Constitution of India as held in Radhey Shyam Vs. Chhabi Nath - (2015) 5 SCC 423 case .

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7. In the result, I pass the following:

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ORDER

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(i) The petition is hereby disposed of without interfering with the impugned order.

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(ii) Liberty is reserved in favour of the parties to submit their respective memos of instructions before the Court Commissioner including parties to file objections, if any, to the Commissioner’s report and examine / crossexamine, if they so desire.

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(iii) Liberty is also reserved in favour of the parties to

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seek amendment of the their respective pleadings, if they so desire.

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Sd/JUDGE

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SV; List No.: 1 Sl No.: 83

Sri Sahil Vazirally v. Sri M Ramkrishna

Case brief

What is this about?

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Sri Sahil Vazirally v. Sri M Ramkrishna

Case brief

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