Partly allowed

Basavaraj S-O Kallappa Itagatti v. Manjunath S/O Kallappa Itigatti

Karnataka HC11 Sept 2024WP/100340/2023

Case brief

AI extract

What is this about?

High Court in Writ Petition allowed petition in part, quashing the order for issuance of Commissioner's warrant due to illegal appointment of non-Gazetted Officer, directing trial court to appoint Commissioner not below Tahasildar rank under amended Section 54 CPC.

What did the court decide?

Writ petition allowed in part; order quashed; Trial Court directed to appoint Gazetted Officer/Tahasildar as Court Commissioner.

Basavaraj S-O Kallappa Itagatti Vs Manjunath S/O… — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:12985 WP No. 100340 of 2023

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 11^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE H.P.SANDESH

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WRIT PETITION NO. 100340 OF 2023 (GM-CPC)

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BETWEEN:

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BASAVARAJ S/O. KALLAPPA ITIGATTI, AGE: 47 YEARS, OCC: AGRICULTURE, R/O. DESAI ONI, NAVALUR, TQ: AND DIST: DHARWAD-580009.

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RAVI S/O. KALLAPPA ITIGATTI, AGE: 44 YEARS,OCC: AGRICULTURE, R/O. DESAI ONI, NAVALUR, TQ: AND DIST: DHARWAD-580009.

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…PETITIONERS

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(BY SRI. DAYANAND M. BANDI, ADVOCATE)

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AND:

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SAROJA HANGARAKI Location: HIGH COURT OF KARANTAKA DHARWAD BENCH

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MANJUNATH S/O. KALLAPPA ITIGATTI, AGE: 37 YEARS, OCC: AGRICULTURE, R/O. DESAI ONI, NAVALUR, TQ: AND DIST: DHARWAD-580009.

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SHANTAWWA W/O. KALLAPPA ITIGATTI, AGE: 69 YEARS, OCC: AGRICULTURE, R/O. DESAI ONI, NAVALUR, TQ: AND DIST: DHARWAD-580009.

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VIMALA W/O. RAMANNA BANDIWAD, AGE: 49 YEARS, OCC: HOUSEHOLD, R/O. LAXMESHWAR ROAD, KUNDGOL, TQ: AND DIST: DHARWAD-580009.

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TAKAPPA S/O. KALLAPPA ITIGATTI, AGE: 39 YEARS, OCC: AGRICULTURE, R/O. DESAI ONI, NAVALUR,

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2 - NC: 2024:KHC-D:12985 WP No. 100340 of 2023

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TQ: AND DIST: DHARWAD-580009.

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NAGARATNA W/O. PRAKASH ITIGATTI, AGE: 36 YEARS, OCC: HOUSEHOLD, R/O. DESAI ONI, NAVALUR, TQ: AND DIST: DHARWAD-580009.

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ARUNA D/O. PRAKASH ITIGATTI, AGE: 14 YEARS, OCC: STUDENT, R/O. DESAI ONI, NAVALUR, TQ: AND DIST: DHARWAD-580009.

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AJAY S/O. PRAKASH ITIGATTI, AGE: 10 YEARS, OCC: STUDENT, R/O. DESAI ONI, NAVALUR, TQ: AND DIST: DHARWAD-580009.

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…RESPONDENTS

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(BY SRI. SANTOSH B. MALLIGAWAD, ADV. FOR R1-R7)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 08.11.2022, PASSED BY VI ADDITIONAL SENIOR CIVIL JUDGE, DHARWAD IN FDP NO.07/2020, VIDE ANNEXURE-H ONLY TO THE EXTENT OF ISSUANCE OF COMMISSIONER’S WARRANT, IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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3 - NC: 2024:KHC-D:12985 WP No. 100340 of 2023

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH)

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Heard the learned counsel for the petitioners and learned counsel for the respondents.

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The prayer sought in this writ petition is quashing of Annexure-H only to the extent of issuance of Commissioner’s warrant and the main contention urged in the petition is that the impugned order of the FDP Court is absolutely illegal and arbitrary, because it is against its own previous order dated 20.06.2022, wherein, it has stated that the shares of the parties should get it declared in R.A No.58/2020, on that ground has rejected the interim application filed by the respondent No.1. The action of the FDP Court in issuing a Commissioner warrant would demarcate the suit properties for all the parties even without such a shares having been declared in preliminary decree is absolutely illegal and arbitrary.

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The counsel would contend that the Gazetted Officer

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ought to have been appointed and error is committed by the Trial Court in appointing the Taluka Surveyor. The learned counsel for the respondents also not disputes the ground with regard to appointment of the Taluka Surveyor and he is not a Gazetted Officer.

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4 - NC: 2024:KHC-D:12985 WP No. 100340 of 2023

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Having taken note of the said submission and also the ground which has been urged only on the point that Taluka Surveyor ought not to have been appointed, it is appropriate to quash the order dated 08.11.2022 and directed the Trial Court to appoint Gazetted Officer in view of the amendment of Section 54 of the Code of Civil Procedure, 1908. In view of the Karnataka Amendment Act, not below the rank of Tahasildar or such other person as the Court may appoint as the Commissioner in that behalf in terms of the order passed by the Court as well as the Appellate Court to comply the preliminary decree.

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In view of the discussions made above I pass the following:

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ORDER

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a) The writ petition is allowed in part and the same is quashed.

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b) The Trial Court is directed to appoint Court Commissioner not below the name of

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Tahasildar/Gazetted Officer as observed above.

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Sd/(H.P.SANDESH) JUDGE

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PMP/CT-MCK/List No.: 1 Sl No.: 21

Basavaraj S-O Kallappa Itagatti v. Manjunath S/O Kallappa Itigatti

Case brief

What is this about?

What did the court decide?

Basavaraj S-O Kallappa Itagatti v. Manjunath S/O Kallappa Itigatti

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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