Partly allowed

Devaraja v. a.S.Manjappa Gowda

Karnataka HC7 Sept 2023WP/388/2022

Case brief

AI extract

What is this about?

In a petition under Article 227 challenging an order appointing an ADLR as Court Commissioner, the High Court allowed the writ petition in part. While affirming the power to appoint a Commissioner, the judgment restricted the scope to survey and measurement, disallowing appointment for identification as the plaintiff already described the property adequately.

What did the court decide?

Order of the trial Court appointing the Commissioner restricted to survey, measure, and fix boundaries; appointment for identification held impermissible.

Devaraja Vs a.S.Manjappa Gowda — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:32322 WP No. 388 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.G.PANDIT

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WRIT PETITION NO. 388 OF 2022 (GM-CPC)

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BETWEEN:

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DEVARAJA S/O ONAIAH GOWDA AGED ABOUT 45 YEARS

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RAVINDRA S/O ONAIAH GOWDA AGED ABOUT 43 YEARS

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BOTH THE PETITIONERS ARE R/OF AGASARAKOPPA JOGIKOPPA VILLAGE KANNANGI POST THIRTHAHALLI TALUK SHIVAMOGGA DISTRICT-577226.

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Digitally signed by A K CHANDRIKA Location: High Court of Karnataka

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(BY SRI. SHOWRI H.R.)

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…PETITIONERS

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AND:

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A.S.MANJAPPA GOWDA S/O SHANRAIAH GOWDA AGED ABOUT 56 YEARS R/AT AGASARAKOPPA JOGIKOPPA VILLAGE KANNANGI POST THIRTHAHALLI TALUK SHIVAMOGGA DISTRICT-577226.

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NC: 2023:KHC:32322 WP No. 388 of 2022

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REMAIAH GOWDA S/O PADMAIAH GOWDA AGED ABOUT 64 YEARS

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A P SHUBHAKARA S/O PADMAIAH GOWDA AGED ABOUT 44 YEARS

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MANJAPPA GOWDA S/O SHESHAIAH GOWDA AGED ABOUT 73 YEARS

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RESPONDENTS 2 TO 4 ARE R/OF AGASARAKOPPA JOGIKOPPA VILLAGE KANNANGI POST THIRTHAHALLI TALUK SHIVAMOGGA DISTRICT-577226.

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K S SHESHAPPA GOWDA S/O SHANKRAPPA GOWDA AGED ABOUT 66 YEARS

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K T RAVINDRA S/O THIMMAPPA GOWDA AGED ABOUT 65 YEARS

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K T NAGARAJA S/O THIMMAPPA GOWDA AGED ABOUT 60 YEARS

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K K PRANESH S/O KRISHNAPPA GOWDA AGED ABOUT 44 YEARS

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RESPONDENTS 5 TO 8 ARE R/OF BISILUMANE KALLAHAKKALU MARAHALLI VILLAGE KUDUVALLI POST

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NC: 2023:KHC:32322 WP No. 388 of 2022

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THIRTHAHALLI TALUK SHIVAMOGGA DISTRICT-577226.

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THE DEPUTY COMMISSIONER SHIVAMOGGA DISTRICT BALRAJ URS ROAD SHIVAMOGGA-577201.

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THE ASSISTANT COMMISSIONER SHIVAMOGGA SUB-DIVISION BALRAJ URS ROAD SHIVAMOGGA-577201.

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THE TAHSILDAR THIRTHAHALLI TALUK THIRTHAHALLI-577432.

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…RESPONDENTS

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(BY SRI. BOPANNA BELLIAPPA, AGA FOR R9, R10 & R11 SRI S.V. PRAKASH, ADV. FOR R1 V/O DATED 10/08/2023 NOTICE TO R2 H/S R4, R5, R6, R7, R8, R9 ARE SERVED & UNREPRESENTED)

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THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THAT THE ORDER PASSED BY THE LEARNED II ADDL. CIVIL JUDGE, THIRTHAHALLI DATED 25.11.2021 IN O.S.NO.197/2014 PRODUCED AT ANNEXURE-A IS ILLEGAL AND QUASH THE SAME AND ALLOW THIS WRIT PETITION.

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

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4 - NC: 2023:KHC:32322 WP No. 388 of 2022

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ORDER

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The petitioners/defendants No.1 and 2 in

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O.S.No.197/2014 on the file of the II Additional Civil Judge at Thirthahalli are before this Court challenging the order dated 25.11.2021 allowing application of the respondents/plaintiffs filed under Order XXVI Rule 9 of CPC appointing the Assistant Director of Land Records (for short “ADLR”) as Court Commissioner for the purpose of survey and identification of the suit schedule property.

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Heard learned counsel Sri.H.R.Showri for Sri.Rakshith Jois Y.P., learned counsel for the petitioners; Sri.Bopanna Bellaiappa, AGA for respondents 9 to 11 and Sri.S.V.Prakash, learned counsel for respondent No.1. Perused the writ petition papers.

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Learned counsel for the petitioners/defendants No.1 and 2 would submit that when the suit was at the stage of final arguments, the respondent No.1/plaintiff filed application under Order XXVI Rule 9 of CPC praying to appoint ADLR as Court Commissioner for the purpose of

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NC: 2023:KHC:32322 WP No. 388 of 2022

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survey and identification of the suit schedule property. Learned counsel would submit that the suit is one for

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declaration to declare that the plaintiffs are absolute owners in possession of the suit schedule property and also to declare that the order passed by defendant No.10 is null and void and also for mandatory injunction. It is submitted that when the suit is for declaration and mandatory injunction, unless the suit schedule property is definite and identifiable, no suit could have been filed. Further, learned counsel would submit that no Commissioner could be appointed to identify the property. Learned counsel would contend that the affidavit accompanying application would not disclose any reason as to why respondent No.1/plaintiff needs survey and identification of the property by ADLR. Learned counsel would submit that the material on record and evidence itself is sufficient for adjudication of dispute between the parties. Learned counsel referring to deposition of D.W.1 submits that in his cross-examination, D.W.1 has admitted that Sy.No.23/3 was further sub-phoded and separate

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NC: 2023:KHC:32322 WP No. 388 of 2022

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survey numbers are assigned. Learned counsel would submit that there is no necessity to appoint ADLR to survey and identify the suit schedule property. Thus, he prays for allowing the writ petition.

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Learned counsel Sri.S.V.Prakash for respondent No.1

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would support the order passed by the trial Court and submits that the report of ADLR would assist the Court in proper adjudication of the dispute between the parties. Further, he submits that the report of the Commissioner would be a piece of evidence and it is for the Court to evaluate the said report and the Court could arrive at an independent decision. Learned counsel would submit that in the cross-examination of D.W.1, he has stated that he

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has no objection for appointment of Commissioner for measurement and to fix the boundaries. Therefore, he submits that the petitioners could not have filed this writ petition having stated that they have no objection to appoint the Commissioner for survey and fixing of the boundaries. Learned counsel for the first respondent/

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NC: 2023:KHC:32322 WP No. 388 of 2022

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plaintiff in the facts and circumstances of the present case submits that the trial Court is justified in appointing the Court Commissioner for the purpose of survey and identifying the suit schedule property. Thus, he prays for

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dismissal of the writ petition.

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Having heard the learned counsel for the parties and on perusal of the writ petition papers, I am of the view that the trial Court could have appointed Commissioner to survey, measure and to fix boundaries of the suit schedule property. But, in the facts and circumstances of the present case, the trial Court could not have appointed Commissioner for identification of the suit schedule property.

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The suit is one for declaration of ownership and possession as well as to declare that the order passed by defendant No.10 is void and illegal. Order VII Rule 3 of CPC requires the plaintiffs to describe the suit schedule property where it is an immovable property. The plaint

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NC: 2023:KHC:32322 WP No. 388 of 2022

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shall contain description of the property which is sufficient to identify it and the property could be described with boundaries or numbers as in the record of settlement or survey. When the suit is filed with a definite description of the property, there is no need to appoint the Court Commissioner for identification of the suit schedule property.

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The trial Court, in the facts and circumstances could appoint Court Commissioner for survey, measurement and fixing boundaries of the suit schedule property. The evidence on record indicates that Sy.No.23/3 is further sub-divided and sub-phoded. Moreover, D.W.1 in is crossexamination has stated that he has no objection for appointment of Tahsildar to measure and to fix boundaries. As contended, the report of the Commissioner is a piece of evidence and it is for the Court to evaluate such piece of evidence while assessing the evidence on record at the stage of final arguments.

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NC: 2023:KHC:32322 WP No. 388 of 2022

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In the above circumstances, the writ petition is partly allowed and order of the trial Court appointing Commissioner is restricted to survey, measure and to fix the boundaries to the suit schedule property and to submit a report.

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SD/JUDGE

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MPK CT:bms List No.: 1 Sl No.: 15

Devaraja v. a.S.Manjappa Gowda

Case brief

What is this about?

What did the court decide?

Devaraja v. a.S.Manjappa Gowda

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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