Dismissed

Smt. Pratibha W/O Parameshwar Kelaginamane v. Smt Manjula D/O Durgagolageri W/O a B Nagarajrao

Karnataka HC18 Sept 2024WP/105433/2024

Case brief

AI extract

What is this about?

Defendants in an injunction suit challenged the Trial Court's order appointing a Court Commissioner for local inspection to ascertain possession and encroachment over survey Nos.52 and 53. The High Court held that where encroachment and boundary are disputed, appointment of a Commissioner is appropriate and dismissed the writ petition.

What the court decided

AI extract

Smt. Pratibha W/O Parameshwar Kelaginamane Vs Smt… — Property and Title | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 18^TH DAY OF SEPTEMBER, 2024 BEFORE

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THE HON'BLE MR. JUSTICE H.P.SANDESH WRIT PETITION NO. 105433 OF 2024 (GM-CPC)

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BETWEEN:

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SMT. PRATIBHA W/O. PARAMESHWAR KELAGINAMANE, AGE: 53 YEARS, OCC: HOUSEHOLD,

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SRI. PARAMESHWAR S/O. LAKSHAMAN KELAGINAMANE, AGE: 57 YEARS, OCC: AGRICULTURE,

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BOTH THE PETITIONERS ARE THE RESIDENTS OF, PAMPAVANA, SORABA ROAD, BANAVASI, SIRSI, DIST: UTTARA KANNADA-581401.

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…PETITIONERS

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(BY SRI. SOURABH HEGDE, ADVOCATE)

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AND:

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SMT. MANJULA D/O. DURGAGOLAGERI, W/O. A.B. NAGARAJRAO, AGE: 42 YEARS, OCC: HOUSEHOLD & AGRICULTURE,

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SRI. A.B. NAGARAJRAO S/O. BHAVANAPPA, AGE: 51 YEARS, OCC: AGRICULTURE,

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SAROJA HANGARAKI Location: HIGH COURT OF KARANTAKA DHARWAD BENCH

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BOTH THE RESPONDENTS ARE THE RESIDENTS OF, KALAKARDI VILLAGE, BANAVASI, SIRSI, DIST: UTTAR KANNADA-581401, AND ALSO RESIDING AT, NEAR PAVAN PRINTS, BANAVASI ROAD, SIRSI-581401, DIST: UTTAR KANNADA.

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…RESPONDENTS

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(BY SRI. SHRINIVAS B. NAIK, ADV. FOR C/R1 & R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI QUASHING THE IMPUGNED ORDER ON I.A.NO.IV DATED 23.08.2024 PASSED BY THE ADDL. CIVIL JUDGE AND II ADDL. JMFC, SIRSI IN O.S.NO.297/2019 VIDE ANNEXURE-A; GRANT SUCH OTHER RELIEF’S AS THIS HON’BLE COURT DEEMED FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE INCLUDING AN ORDER AS TO COSTS, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS PETITION, COMING ON FOR PRELIMINARY 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 learned counsel for the petitioners and learned counsel for the respondents.

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The present writ petition is filed praying this Court to issue writ of certiorari quashing the impugned order passed by the Additional Civil Judge and II Additional JMFC Court, Sirsi, in O.S No.297/2019, vide Annexure-A and pass appropriate order, wherein, application filed by the plaintiffs for appointment of Court Commissioner for local inspection was allowed.

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The learned counsel appearing for the petitioners would vehemently contend that the suit is filed for the relief of permanent injunction. The counsel brought to notice of this Court the averments of the plaint particularly in paragraph No.3, wherein, claim is made that the plaintiffs are the owners of the suit property and carrying the agricultural activities there. The counsel also brought to notice of this Court, the specific written statement is filed claiming that denying the possession of the plaintiffs as per Annexure-C and also claiming

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that they have been in possession of the property both in survey Nos.52 and 53. The learned counsel for the petitioners also brought to notice of this Court the admission given by the PW.1, in the cross-examination that, the owners of survey No.52 may be encroached the property prior to 2012 and also Government has not cleared the encroachment and possession given to PW.1 and also filed the suit for injunction. The counsel also brought to notice of this Court that suit is filed only for the relief of bare injunction and hence, it is clear that the plaintiffs are not in possession and hence, the question of collecting the evidence does not arise.

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The counsel in support of his arguments relied upon the judgment of this Court passed in W.P No.201274/2022 and submits that in paragraph No.12, the observation is helpful to the petitioner, when the suit is filed for the relief of bare injunction and if both parties claims to be in possession of the disputed property, the local inspection by the Commissioner cannot be ordered to ascertain the possession. The question of possession is to be decided by the Court and the Trial Court committed an error in relying upon this judgment. The counsel also relied upon judgment of this Court passed in W.P

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No.107027/2019, dated 22.08.2024, wherein also this Court comes to the conclusion that the question of appointment of Court Commissioner to make local inspection and report with regard to the existence of road does not arise and also parties have led their evidence and Court can take note of oral and documentary evidence while appreciating the material on record. The counsel also vehemently contends that already evidence has been led, the question of appointment of Court Commissioner does not arise. The plaintiffs have to prove the possession since relief is sought only for the bare injunction.

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Per contra, the learned counsel appearing for the respondents would contend that the petitioners also examined as PW.1 before the Trial Court and they also produced the copy of the deposition of DW.1, wherein, they claims that they are the owners in respect of survey No.52 and so also admits that there are three hissas in survey Nos.53/1, 53/2 and 53/3, but she claims that in 2012 onwards wrongly mentioned the entry and also categorically admits that 53/1 is Government land, survey No.53/2 belongs to Harischandra Saver and survey No.53/3 standing in the name of the plaintiffs. However, claims that by erroneously same is mentioned and also claims that she

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came to know about it in 2019 and also filed an appeal before the Assistant Commissioner Court, Sirsi and the same was dismissed. Being aggrieved by the same, the writ petition is filed before the Court and the same is pending before this Court.

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The counsel also admits that in respect of the very suit schedule property she also made the claim for granting of land in the year 1991 as well as in the year 1999 and the same has not been granted in favour of the petitioners. She also admits that in the year 2011, Government has issued notice against her to clear the encroachment and she also admits Annexure-D2, wherein, specifically it is mentioned that she has encroached survey No.53, but she says that there was no any bifurcation of survey No.53. It is also her claim that she has grown areca-nut crop in survey No.52 and also admits that in Exhibit-P2, there is a reference that the plaintiffs have grown the crop, but she again claims that wrongly mentioned the same. She also admits that she filed an appeal for cancellation of mutation in 2011-12 before the Assistant Commissioner

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Court, wherein, appeal is pending and still the matter is pending before this Court. She denies the suggestion that she

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has not produced any documents shown in respect of suit schedule property. She also admits that in survey No.52, there is no any boundary marked, but she claims voluntarily that she is doing agricultural work in both survey Nos.52 and 53 and also when the question was put to her was there any difficulty in surveying the land i.e., survey Nos.52 and 53, she claims that there is difficulty to her.

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The counsel relying upon this judgment would vehemently contend that in PW.1 also categorically admitted that he is making an attempt claiming right in respect of survey No.53 and also submits that he was unsuccessful before the Assistant Commissioner Court when he filed an appeal and matter is pending before this Court, when there is a claim and rival claim with regard to the possession is concerned and hence, the Trial Court rightly comes to the conclusion that it requires the appointment of Court Commissioner.

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The counsel also brought to notice of this Court the very same paragraph of the judgment which the petitioner has relied upon in paragraph No.12 and this Court also further observed that the question of possession is to be decided by the Court. However, if one party alleges encroachment by

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another and another party denies such allegation, the Commissioner can be appointed to ascertain whether there is encroachment or not. In such a situation, the Commissioner is appointed to find out the nature of the possession. The report based on local inspection will be at handy tool to decide the case relating to encroachment. In the case on hand, the petitioner to prove their assertion of encroachment, instead of leading oral evidence of witnesses has applied for local inspection and the same is not only permissible but also desirable.

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Having heard the learned counsel for the petitioners and learned counsel for the respondents and also considering the material on record, there is no dispute with regard to the suit is filed for the relief of permanent injunction. The plaintiffs claims that the said property was granted in their favour and also it is the claim of the petitioner herein that she also made claim in respect of the very same survey number in the year 1991 and also in the year 1999 and no grant was made in favour of her. But he had challenged the entries made in favour of the plaintiffs in respect of survey No.53 and she was unsuccessful before the Assistant Commissioner Court. No

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doubt the learned counsel appearing for the petitioners also brought to notice of this Court the PW.1 regarding the possession is concerned and she claims that she has filed a suit for the relief of possession, but actually the suit is filed only for the relief of bare injunction. When the dispute is between the parties with regard to the very cultivation of survey No.53 and also plaintiffs claiming that grant was made in favour of them particularly in respect of portion of survey No.53/3 and also the petitioner admits that he is the owner of the survey No.52 and the plaintiffs are also not claiming any right in respect of survey No.52.

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The petitioners herein who are the defendants before the Trial Court also makes claim that they are in possession of the property in respect of the survey No.53 and actually no grant was made in favour of the petitioners hererin in respect of survey No.53 and was unsuccessful before the Assistant Commissioner Court and the matter is also pending before this Court. When such being the case, the very judgment of this Court relayed upon by the Trial Court is also very clear that when there is a dispute with regard to the encroachment as well as with regard to the boundary is concerned, DW.1 also

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categorically admitted in respect of survey No.52 boundary is concerned, there is no any earmarking of boundary and when such claim is made, when there is a dispute with regard to the encroachment as well as the possession is concerned. I do not find any error committed by the Trial Court in allowing the application, since the dispute in respect of encroachment as well as the boundary in respect of survey Nos.52 and 53 and petitioners are also, as on today, not having any right in respect of survey No.52 as the grant claimed by the petitioners also was not granted as admitted in the deposition and PW.1 as well as the DW.1 have been examined before the Court and the crux of the issue is with regard to the encroachment as well as possession is concerned and since the petitioners also making claim in respect of survey No.53/3, which was granted in favor of the respondents it will helpful to the Trial Court to decide the same and this Court also in paragraph No.12 made an observation that it will be handy tool to the Trial Court to decide the issue of possession is concerned. Hence, I do not find any error committed by the Trial Court in allowing the application. No doubt this Court also in W.P No.107027/2019 made an observation in paragraph No.5, taking into note of the

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said fact into consideration and this Court made an observation that the Court can comes to the conclusion that when oral and documentary evidence is available on record that itself is enough to decide the issue involved between the parties.

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Taking into note of prayer made in the plaint as well

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as the reasons given in the order and in the case on hand, when the dispute is with regard to the very encroachment as well as the boundary, since the petitioner is also the owner of the adjacent property bearing survey No.52 and also they claims the possession in respect of survey No.53 and hence, it is appropriate to appoint a Court Commissioner and hence, the judgment of this Court passed in W.P No.107027/2019, will not comes to the aid of the petitioners and the Court has to take note of the facts and circumstances of each case while deciding the issue involved between the parties. When the petitioners also claims possession in respect of survey No.53, though they not having any grant in their favor, the issue has to be decided before the Trial Court by appointing a Court Commissioner. Hence, I do not find any merit in the writ petition to pass the order.

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