Allowed

Smt G R Vishalamma v. Smt B S Manjula

Karnataka HC8 Dec 2023WP/5521/2023

Case brief

AI extract

What is this about?

The High Court allowed the writ petition to quash the trial court's order rejecting an application for a commissioner. The High Court held that appointing a commissioner to inspect the spot and ascertain the existence of an access road was necessary to properly appreciate the dispute regarding the easement right and alternate access. The trial court order was set aside, and the commissioner was di

What did the court decide?

The impugned order was set aside; I.A. No. 15 under Order XXVI Rule 9 of CPC was allowed, directing the trial court to appoint a Court Commissioner.

Smt G R Vishalamma Vs Smt B S Manjula — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:44688 WP No. 5521 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF DECEMBER, 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. 5521 OF 2023 (GM-CPC)

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BETWEEN:

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SMT. G R VISHALAMMA W/O LATE M.S SUBBE GOWDA AGED ABOUT 70 YEARS, R/O MADDIKERE, HALEKERE VILLAGE, BILLUR POST, MUDIGERE TALUK CHIKKAMAGALURU DISTRICT.

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Digitally signed by A K CHANDRIKA Location: HIGH COURT OF KARNATAKA

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REPRESENTED BY HER GPA HOLDER, HER SON, MR. M.S HARISH S/O M.S SUBBE GOWDA, AGED ABOUT 52 YEARS, R/O MADDIKERE HALEKERE VILLAGE, BILLUR POST, MUDIGERE TALUK CHIKKAMAGALURU DISTRICT SINCE DEAD BY LEGAL HEIRS,

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M.S HARISH S/O LATE M.S SUBBEGGOWDA AGED ABOUT 54 YEARS, R/O M.E.S SCHOOL, TATAKOLA ROAD, MUDIGERE -577 132.

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M.S MAHESH S/O LATE M.S SUBBEGOWDA

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AGED ABOUT 53 YEARS, R/O MADDIKERE HALEKERE VILLAGE, BILLUR POST,

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NC: 2023:KHC:44688 WP No. 5521 of 2023

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MUDIGERE TALUK-577132.

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…PETITIONERS

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(BY SRI. MAHESH B J, ADV.)

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AND:

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SMT. B S MANJULA W/O B C CHANDREGOWDA AGED ABOUT 61 YEARS, R/O BILLUR VILLAGE AND POST, MUDIGERE TALUK CHIKKAMAGALUR DISTRICT-577101.

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B.C CHANDRE GOWDA S/O LATE CHANNEGOWDA AGED ABOUT 62 YEARS, R/O BILLUR VILLAGE AND POST, MUDIGERE TALUK, CHIKKAMAGALURU DISTRICT-577101.

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…RESPONDENTS

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(BY SRI.D.G. CHINNAPPA GOWDA, ADV. FOR R1 & R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE ORDER DATED 03.02.2023, PASSED BY THE CIVIL JUDGE AND JMFC, MUDIGERE IN OS.NO.130/2015, VIDE ANNEXURE-A DISMISSING IA. NO.15 FILED BY THE PETITIONERS HEREIN UNDER ORDER 26 RULE 9 OF CPC CONSEQUENTLY ALLOW THE APPLICATION IA. NO.15 FILED BY THE PETITIONERS HEREIN.

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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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The petitioners/plaintiffs in O.S.No.130/2015 on the

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file of Additional Civil Judge and JMFC, Mudigere are

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before this Court, against order dated 03.02.2023 rejecting I.A.No.15 filed under Order XXVI Rule 9 of CPC.

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NC: 2023:KHC:44688 WP No. 5521 of 2023

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Heard learned counsel Sri.B.J.Mahesh for petitioners and learned counsel Sri.D.G.Chinnappa Gowda for

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respondents. Perused the writ petition papers.

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Learned counsel for the petitioners would submit that suit of the petitioners/plaintiffs is to declare that the plaintiffs have easement right by way of usage from the properties of defendants to reach to the schedule properties and for permanent injunction. Learned counsel for the petitioners would submit that the petitioners are using the pathway which runs through defendants’ property to reach their property in Sy.No.123/1 and 198/2. Learned counsel would submit that the respondents/defendants have filed written statement denying the case of the petitioners. But, in the written statement, it is not stated as to whether there is passage and whether plaintiffs are using that passage to reach their land and also it is not their case that whether there is alternate access to the petitioners/plaintiffs to reach their land. After completion of trial, when the suit was at the

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NC: 2023:KHC:44688 WP No. 5521 of 2023

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stage of arguments, the petitioners/plaintiffs filed I.A.No.15 under Order XXVI Rule 9 of CPC to appoint

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Court Commissioner to inspect the spot and to ascertain as to whether there is road or access in the property of the defendants and plaintiffs are using the said road in order to reach the property of the plaintiffs.

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Learned counsel for the petitioners/plaintiffs would contend that to find out as to whether road exists in the defendants’ property to reach the property of the plaintiffs, appointment of Commissioner and obtaining report would be necessary. Further, learned counsel would submit that during the course of cross-examination of D.W.1, D.W.1 has admitted that he has no objection to

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inspect the spot to find out existence of road in defendants’ land to reach the schedule property of the petitioners/plaintiffs. Thus, learned counsel would submit that the trial Court committed an error in rejecting petitioners’ application for appointment of Court Commissioner. Further, learned counsel would submit

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5 - NC: 2023:KHC:44688 WP No. 5521 of 2023

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that if the Commissioner report is obtained, the same would assist the Court in proper appreciation of the dispute between the parties. Moreover, he submits that the Commissioner report would be a piece of evidence, which would aid the Court to appreciate the dispute between the parties along with other materials on record. Thus, he prays for allowing the writ petition.

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Per contra, learned counsel for the respondents/ defendants would support the order passed by the trial Court and submit that it is for the petitioners to establish existence of road in the defendants’ land to reach the land of the plaintiffs. It is also submitted that appointment of Court Commissioner would amount to collection of evidence. Hence, he would pray for rejection of 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 in the facts and circumstances ought to have allowed I.A.No.15 filed under Order XXVI Rule 9 of

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NC: 2023:KHC:44688 WP No. 5521 of 2023

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CPC by appointing Court Commissioner to visit the spot and get report with regard to existence of road or otherwise in the defendants’ land to reach plaintiffs’ schedule property.

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7. The suit of the petitioners/plaintiffs is one for

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declaration that they have easement right by way of usage from the property of defendants to reach the property of the plaintiffs. When the respondents/defendants have not stated anything about the way/pathway/road, the plaintiffs used to reach their property or with regard to alternate access, it would be appropriate for the Court to get report by appointing a Commissioner. The appointment of Commissioner and obtaining report would in no way prejudice the case of the respondents/defendants. On the other hand, it would assist the Court in properly appreciating as to whether there exists road or not. In terms of Rule 10 of Order XXVI of CPC, the report of the Commissioner would form part of the record and it would be a piece of evidence, which shall have to be appreciated

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NC: 2023:KHC:44688 WP No. 5521 of 2023

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along with other materials on record, at the time of disposal of the suit.

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Accordingly, the writ petition is allowed.

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The impugned order dated 03.02.2023 on I.A.No.15 in O.S.No.130/2015 on the file of the Additional Civil Judge and JMFC, Mudigere is set aside.

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I.A.No.15 filed under Order XXVI Rule 9 of CPC is allowed.

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The trial Court is directed to appoint Court Commissioner to visit the spot and to get a report with regard to existence of alleged road that is being used by the petitioners/plaintiffs or to note with regard to alternate access available to the petitioners/plaintiffs.

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Sd/JUDGE

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MPK CT:bms List No.: 1 Sl No.: 59

Smt G R Vishalamma v. Smt B S Manjula

Case brief

What is this about?

What did the court decide?

Smt G R Vishalamma v. Smt B S Manjula

Case brief

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What did the court decide?

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