Dismissed

Shri Balu S/O Venku Sawant v. Shri Dinkar S/O Gopal Chavan

Karnataka HC13 Sept 2024WP/103581/2024

Case brief

AI extract

What is this about?

Writ petition challenging the dismissal of an application seeking appointment of a court commissioner to ascertain possession in a property dispute. Court held commissioner appointment amounted to evidence collection and dismissed the writ petition.

What did the court decide?

Writ petition for quashing the order dismissing appointment of commissioner was dismissed with no interference.

Shri Balu S/O Venku Sawant Vs Shri Dinkar S/O Gopal… — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:13125 WP No. 103581 of 2024

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 13^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. 103581 OF 2024 (GM-CPC)

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BETWEEN:

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SHRI BALU S/O. VENKU SAWANT, AGE: 50 YEARS, OCC: AGRICULTURE, R/O. BEKKINKERI VILLAGE, TAL: AND DIST: BELAGAVI-591128.

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…PETITIONER

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(BY SRI. VITTHAL S. TELI, ADVOCATE)

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AND:

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SAROJA HANGARAKI

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Location: HIGH COURT OF KARANTAKA DHARWAD BENCH

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SHRI DINKAR S/O. GOPAL CHAVAN, AGE: 59 YEARS, OCC: TRADE, R/O. H.NO.181, NATPAI CIRCLE, SHAHAPUR, BELAGAVI-590003.

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SMT. VANDANA W/O. DINKAR CHAVAN, AGE: 53 YEARS, OCC: HOUSEWIFE, R/O. H.NO.181, NATPAI CIRCLE, SHAHAPUR, BELAGAVI-590003.

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KUMARI DEEPA D/O. DINKAR CHAVAN, AGE: 35 YEARS, OCC: STUDENT, R/O. H.NO.181, NATPAI CIRCLE, SHAHAPUR, BELAGAVI-590003.

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KUMARI SHEETAL D/O. DINKAR CHAVAN, AGE: 33 YEARS, OCC: STUDENT,

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R/O. H.NO.181, NATPAI CIRCLE, SHAHAPUR, BELAGAVI-590003.

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SHRI. GANESH S/O. DINKAR CHAVAN, AGE: 39 YEARS, OCC: STUDENT, R/O. H.NO.181, NATPAI CIRCLE, SHAHAPUR, BELAGAVI-590003.

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SHRI MAYUR S/O. DINKAR CHAVAN, AGE: 38 YEARS, OCC: STUDENT, R/O. H.NO.181, NATPAI CIRCLE, SHAHAPUR, BELAGAVI-590003.

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SHRI. SACHIN S/O. DHONDUSSA RANGREJ, AGE: 44 YEARS, OCC: TRADE, R/O. H.NO.336, NATPAI CIRCLE, SHAHAPUR, BELAGAVI-590003.

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…RESPONDENTS

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(BY SRI. DEEPAK C. MAGANUR, ADV. FOR R7; NOTICE TO R1-R6 DISPENSED WITH)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI OR ANY OTHER WRIT QUASHING THE ORDERS DATED 28-03-2024 PASSED ON IA NO.17 IN O.S. NO.594/2012 BY THE IV ADDL. CIVIL JUDGE AND JMFC, BELAGAVI VIDE ANNEXURE-L AND ETC.

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THIS WRIT PETITION, COMING ON FOR FURTHER HEARING , THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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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 petitioner’s counsel and also the counsel for respondent No.7.

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The present Writ Petition is filed praying this Court to quash the order of the Trial Court rejecting the application filed under Order 26 Rule 9 read with Section 151 CPC i.e., I.A.No.17 vide order dated 28.03.2024 as per Annexure-L and grant such other relief as deems fit in the circumstance of the case.

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The counsel appearing for the petitioner would vehemently contend that the Trial Court ought not to have rejected the application as the application is filed only for the limited purpose to prove the factum of possession of the suit schedule property. He would also contend that when the agreement was entered in the year 1984 itself, possession was delivered and the same has been reiterated subsequently in the year 2009 by his son and

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already evidence has been completed by examining himself as PW-1 and also the evidence of DW-1 who claims that he is the subsequent purchaser. The counsel would also contend that application for appointment of Court Commissioner is filed to ascertain the nature of possession held by him or defendant No.7 and the report of the Commissioner will assist the Court and when issue Nos.5 and 9 are with respect to the possession, the Trial Court fails to take note of the said fact into consideration and ought to have allowed the application instead of rejecting the same. Hence, the order of the Trial Court is erroneous.

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Per contra, counsel appearing to the respondent No.7 would contend that already plaintiff as well as defendants have been examined before the Court as PW-1 and DW-1 and the case of the petitioner before the Trial Court is that in terms of the agreement, he has been put

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in possession and burden is on him to prove the issue No.5. Further, the Trial Court has framed issue No.9 fixing

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the burden on the defendants. Since the defendant No.7 also claims that he is in possession of the property and when such being the case, question of appointment of Commissioner does not arise and the same amounts to collection of evidence. Hence, the Trial Court has rightly rejected the said application and it does not require any interference.

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The counsel appearing for the petitioner in reply to the arguments of the counsel for respondent No.7, relied upon the judgment in the case of Balu Sudam Khalde and another vs. State of Maharashtra¹ and brought to the notice of this Court paragraph No.39 wherein discussion was made that any concession or admission of a fact by defence counsel would definitely be binding on his client, except the concession on the point of law. As a legal proposition we cannot agree with the submission canvassed on behalf of the appellants that an answer by a witness to a suggestion made by the defence

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1 AIR 2023 SC 1736

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counsel in the cross-examination does not deserve any value or utility if it incriminates the accused in any manner. The counsel also would contend that while crossexamining PW-2, a suggestion was made by the vendor that possession has been delivered to him and when such possession is admitted, no prejudice will cause in appointing the Commissioner to ascertain the same.

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Having heard the petitioner’s counsel and also the counsel appearing for the respondent No.7 and having taken note of factual aspects, it is noted that the plaintiff claims that he has been in possession in terms of the sale agreement. On the other hand, defendant contends that he has been in possession in view of the sale deed executed in his favour and also the Trial Court has framed issue Nos.5 and 9, shifting the burden on the plaintiff in terms of issue No.5 and shifting the burden on the defendant as per issue No.9. The person who asserts that he has been in possession has to prove the same under Section 101 of the Indian Evidence Act and the same is

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also clear with regard to the shifting of burden is concerned and rightly the issue Nos.5 and 9 are framed.

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The counsel appearing for the petitioner also would contend that he has examined one of the witnesses of the sale agreement and defendant also not let any evidence except examining himself. He relies upon the registered document and plaintiff relies upon the evidence of himself as well as the PW.1 and also an agreement of sale and subsequently, confirming the same in a subsequent date of 30.07.2009, when such averments are made and witnesses are examined before the Court, and also evidence has been completed and after the completion of the evidence of plaintiff and defendant, the present application is filed. The learned counsel for the petitioner also relies upon the judgment of the Hon’ble Apex Court and the Hon’ble Apex Court also in paragraph No.39 discussed with regard to the admission and evidence available on record and the same can be make made use of the petitioner while arguing the matter on

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merits with regard to the material available on record and also the principles laid down in the judgment of the Hon’ble Apex Court.

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The commissioner who would be appointed before

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the trial Court also except visiting the spot and enquiring with the parties and the local, they cannot make any report before the Court regarding hearsay and when such being the case, I do not find any error committed by the trial Court in dismissing the application and the same also would amounts to collection of evidence and trial Court rightly dismissed the application in coming to the conclusion that if commissioner is appointed, that to for the purpose of collecting the evidence that who is in possession and the same also causes prejudice to the parties and when such being the reason is given by the trial Court, I do not find any error committed by the trial Court in rejecting the application. If any commissioner is appointed and the same amounts for collection of evidence as observed and the same cannot be a substantive piece

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