Dismissed

Sri. Sathyananda v. Sri. Chikkanna

Karnataka HC22 Sept 2023WP/5595/2021

Case brief

AI extract

What is this about?

In a writ under Article 227, the High Court of Karnataka dismissed a petition challenging the trial court's appointment of an Assistant Director of Land Records as a Court Commissioner. The petitioners argued this was impermissible before evidence closure, but the High Court held the appointment was necessary to ascertain property boundaries and help the trial court arrive at a just conclusion.

What did the court decide?

The petition to quash the order appointing a Court Commissioner was dismissed; the order of the trial court was upheld.

Sri. Sathyananda Vs Sri. Chikkanna — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:34485 WP No.5595 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22^ND DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.5595 OF 2021 (GM-CPC)

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BETWEEN:

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SRI. SATHYANANDA S/O VASANTHAKUMAR AGED ABOUT 31 YEARS R/AT SHAMBUNAHALLI VILLAGE DUDDA HOBLI, MANDYA TALUK MANDYA DISTRICT-571401.

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…PETITIONER

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Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA

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(BY SRI. MANU B.P. ADV.,)

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AND:

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SRI. CHIKKANNA S/O LATE NINGAIAH .M AGED ABOUT 60 YEARS.

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SRI. SHANKAREGOWDA S/O LATE NINGAIAH .M AGED ABOUT 58 YEARS.

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SRI. RAMEGOWDA S/O LATE NINGAIAH .M AGED ABOUT 55 YEARS.

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SRI. DODDAKALEGOWDA S/O LATE NINGAIAH .M AGED ABOUT 53 YEARS.

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SRI. NINGAIAH S/O LATE CHANNEGOWDA AGED ABOUT 76 YEARS.

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SRI. S.N. RAMEGOWDA S/O LATE CHANNEGOWDA

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NC: 2023:KHC:34485 WP No.5595 of 2021

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AGED ABOUT 51 YEARS.

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SRI. SURESHA S/O LATE CHANNEGOWDA AGED ABOUT 49 YEARS.

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SRI. CHANDRASHEKHAR S/O LATE CHANNEGOWDA AGED ABOUT 47 YEARS.

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SRI. SHANKAREGOWDA S/O LATE CHANNEGOWDA AGED ABOUT 46 YEARS.

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RESPONDENT NOS.1 TO 9 ARE R/AT SHAMBUNAHALLI VILLAGE DUDDA HOBLI, MANDYA TALUK MANDYA DISTRICT-571401.

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…RESPONDENTS

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(BY SRI. K.B. CHANDRASHEKARA SWAMY, ADV.,)

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THIS W.P. IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE ENTIRE RECORDS IN O.S.NO.798/2013 BY THE 2ND ADDITIONAL CIVIL JUDGE AND JMFC, MANDYA. QUASH THE ORDER ANNEXUREA DATED 11.03.2020 PASSED ON I.A.NO.9 IN O.S.NO.798/2013 BY THE 2ND ADDITIONAL CIVIL JUDGE AND JMFC, MANDYA BY ALLOWING IA.NO.09 FILED UNDER ORDER XXVI RULE 9 OF THE CODE OF CIVIL PROCEDURE. GRANT AN INTERIM ORDER TO STAY ALL FURTHER PROCEEDINGS IN O.S.NO.798/2013 BY THE 2ND ADDITIONAL CIVIL JUDGE AND JMFC, MANDYA, BANGALORE.

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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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3 - NC: 2023:KHC:34485 WP No.5595 of 2021

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ORDER

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This writ petition is filed by the petitioner-plaintiff under Article 227 of the Constitution of India praying to quash the order dated 11.03.2020 passed on I.A.No.9 in O.S.No.798/2013 by the II Additional Civil Judge, JMFC, Mandya (hereinafter referred to as, ' the trial Court' ) by which the application filed by defendant No.2 under Order XXVI Rule 9 of the CPC came to be allowed.

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2. The parties are referred to as per their ranking before the trial Court. The petitioner is the plaintiff and respondents are defendants before the trial Court.

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3. Brief facts leading to filing of this petition are that the petitioner, who is the plaintiff in O.S.No.798/2013, has filed the suit seeking prayer for permanent injunction restraining the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property. The suit schedule property is the property bearing Sy.No.74, Block No.1 measuring 2 acres including standing trees of B.Hosur Village, Keragodu Hobli,

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Mandya Taluk. The said suit is opposed by the defendants by filing the written statement. During the pendency of the suit, the defendant No.2 has filed an application seeking for appointment of Assistant Director of Land Records, Mandya (for short, 'ADLR') as Court Commissioner to locate Block No.1, Block Nos.6 and 7 of Sy.No.74 along with boundaries. The said application was opposed by the plaintiff. The trial Court vide impugned order dated 11.03.2020 has allowed the said application. In the aforesaid factual background, the present petition is filed.

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4. Sri.Manu B.P., learned counsel for the petitionerplaintiff submits that the trial Court has committed grave error in allowing the application for appointment of Court Commissioner as it is the plaintiff's suit, he is required to prove his case by adducing proper evidence and appointing of Court Commissioner even before conclusion of the evidence amounts to collection of evidence in favour of the defendant, which is impermissible in law. It is submitted that the grand father of the plaintiff has filed O.S.No.1027/1993 against the father of the defendants

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seeking prayer for permanent injunction restraining the defendants from interfering with the same property and the said suit has been decreed and it has been confirmed in the appeal. It is further submitted that in the said suit, the trial Court has recorded categorical finding that the defendants have admitted that the plaintiff is in possession of Block No.1 in Sy.No.74 i.e., the suit schedule property, and they are claiming their right in respect of Block Nos.6 and 7 of said Sy.No.74. Hence, allowing the present application for appointment of Court Commissioner is unwarranted and contrary to settled principles of law. It is also submitted that now the case is set down for further evidence of defendants and the appointment of Court Commissioner before conclusion of trial would lead to collection of evidence in favour of one party. Hence, he seeks to allow the petition by setting aside the impugned order.

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5. Per contra, Sri.K.B.Chandrashekara Swamy, learned counsel for the respondents-defendants supports the impugned order of the trial Court and submits that the appointment of Court Commissioner is only for the purpose

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of identification of the property where exactly Block No.1 is situated as the plaintiff is claiming that Block Nos.6 and 7 are his properties, therefore, it is just and necessary to appoint ADLR as Court Commissioner to ascertain the actual location of Block No.1 in the said Sy.No.74. Hence, he seeks to dismiss the petition.

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6. I have heard learned counsel for the petitioner-

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plaintiff, learned counsel the respondents-defendants and perused the material on record.

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7. It is not in dispute that the petitioner-plaintiff has filed the suit seeking prayer to restrain the respondents from interfering with suit schedule property i.e., property bearing Sy.No.74, Block No.1 measuring 2 acres of B.Hosur Village, Keragodu Hobli, Mandya Taluk. On perusal of the averments made in the plaint, it is evident that the plaintiff is claiming that the defendants without any manner of right, title or possession over the suit schedule property, are interfering with the possession of the plaintiff; the said assertion has been denied by the defendants in their written

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statement by contending that the very plaint schedule property is not correctly shown and the suit schedule property shown in the plaint is the property of the defendants. The boundaries shown are imaginary one. The defendants specifically pleaded that they are the owners in possession of Block Nos.6 and 7 in Sy.No.74 of B.Hosur Village, Keragodu Hobli, Mandya Taluk.

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8. There is no dispute that the grand father of the plaintiff has filed O.S.No.1027/1993 against the father of the defendants seeking prayer of permanent injunction restraining the defendants therein, on perusal of the finding recorded in the said suit at paragraph Nos.12 to 16, it is evident that the defendants therein were not sure about the possession of the plaintiff and grant of Block No.1 in their favour. Further it was recorded that defendants are not claiming the right and possession over the Block No.1 as their property but they are claiming the right and possession over Block Nos.6 and 7 as their properties. Further it was recorded that in the said survey number Government has granted land to several persons and it consists of 19 Blocks,

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however it is not sure whether the plaintiff therein is in possession of Block No.1 or not. Hence, the contention of the petitioner-plaintiff that in the earlier suit in O.S.No.1027/1993, it has considered the issue of possession

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and decreed in favour of the plaintiff, therefore, the appointment of Court Commissioner would be contrary to the said finding requires to be rejected as the findings are vague about the identity of Block No.1.

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9. The respondents-defendants are seriously

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disputing that the petitioner is in possession of Block No.1 and the alleged claim of Block No.1 is something different and he is trying to show Block Nos.6 and 7 as Block No.1. These aspects are required to be factually ascertained by the trial Court, hence appointing a competent authority i.e., ADLR, is necessary, so that it will help the trial Court to consider the relief sought by the petitioner.

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10. The petitioner-plaintiff has filed suit for

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permanent injunction and heavy burden is on the plaintiff to prove the possession over the Block No.1 and the

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interference by the defendants in the suit based on oral and documentary evidence. The parties to the proceedings are disputing the respective possession and identity of the suit schedule property. Hence, it will be just and proper to appoint the ADLR, Mandya as the Court Commissioner to survey the land and identify the actual Blocks in Sy.No.74 of B.Hosur Village, Keragodu Hobli, Mandya Taluk, which would enable the trial Court to come to a just and proper conclusion as to whether the relief sought by the petitionerplaintiff can be granted or not.

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11. The contention of the petitioner-plaintiff that the appointment of Court Commissioner at this stage is nothing but allowing the party i.e., the defendant No.2, to collect evidence in his favour is required to be rejected at the threshold. The report of the Court Commissioner will only help the trial Court to arrive at a just and proper conclusion, the report of the Court Commissioner itself cannot be the sole basis to grant the relief sought by the petitionerplaintiff, it is ultimately the plaintiff who has to establish his case before the trial Court by cogent and acceptable

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evidence to grant the relief sought. If the report of the Court Commissioner is not satisfactory to the petitioner, it is always open for him to challenge the same by way of objections and cross-examination of the Commissioner, hence the said contention does not merit consideration.

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12. The trial Court has recorded detailed finding from paragraph Nos.6 to 11 of the impugned order, the said finding is based on the material available on record. Therefore, I do not find any error or infirmity in those findings of the trial Court calling for interference in this petition. Hence, there is no merit in this petition, accordingly, the same is dismissed .

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Sd/JUDGE

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BSR

Sri. Sathyananda v. Sri. Chikkanna

Case brief

What is this about?

What did the court decide?

Sri. Sathyananda v. Sri. Chikkanna

Case brief

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