Disposed

Smt Nannibee v. Smt Gangamma

Karnataka HC3 Apr 2024WP/16828/2021

Case brief

AI extract

What is this about?

Defendants in two injunction suits challenged rejection of their applications under Order 26 Rule 9 CPC seeking appointment of a Commissioner for local inspection. The High Court held the trial court erred in holding such appointment amounts to collection of evidence and disposed of the petitions reserving liberty to renew the request at an appropriate stage.

What did the court decide?

Writ petitions disposed of; liberty reserved to defendants to invoke court's discretion to appoint a Commissioner for local inspection at an appropriate stage.

Smt Nannibee Vs Smt Gangamma — Property and Title | Karnataka HC (2024)

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- 1 - NC: 2024:KHC:13719 WP No. 16828 of 2021 C/W WP No. 12778 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF APRIL, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ

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WRIT PETITION NO. 16828 OF 2021 (GM-CPC)

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C/W

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WRIT PETITION NO. 12778 OF 2021 (GM-CPC)

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IN WRIT PETITION NO. 16828 OF 2021:

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BETWEEN:

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SMT NANNIBEE W/O CHAMAN SAB AGED ABOUT 59 YEARS HOUSE HOLD AND GRAMA PANCHAYATH MEMBER

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SRI K C CHAMAN SAB S/O CHAMAN SAB AGED ABOUT 62 YEARS SHRIRAMAGONDANAHALLY GRAMA PANCHAYATH SECRETARY

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Digitally signed by MARKONAHALLI RAMU PRIYA Location: HIGH COURT OF KARNATAKA

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SRI HALAPPA S/O JANAPPA AGED ABOUT 65 YEARS AGRICULTURIST

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NAGARAJA M H S/O HALAPPA AGED ABOUT 51 YEARS

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SMT KHAIRUNBEE W/O CHAND PEER AGED ABOUT 53 YEARS HOUSE HOLD AND AGRICULTURIST

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SRI HUSAIN SAB S/O CHAMAN SAB AGED ABOUT 47 YEARS AGRICULTURIST

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SRI SANNACHAMAN SAB S/O CHAMAN SAB AGED ABOUT 57 YEARS

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ALL ARE R/O MALALAKERE DAVANAGERE TALUK DAVANAGERE DISTRICT – 577 001.

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…PETITIONERS

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(BY SHRI P.S. VEERESH, ADVOCATE FOR SHRI SANATHKUMAR SHETTY K., ADVOCATE)

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AND:

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SMT GANGAMMA W/O LATE RUDRAPPA AGED ABOUT 76 YEARS

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SRI R PUTTAPPA S/O LATE RUDRAPPA AGED ABOUT 47 YEARS

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SMT JAYALAKSHMI D/O LATE RUDRAPPA AGED ABOUT 37 YEARS

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ALL ARE R/O MALALAKERE DAVANAGERE TALUK DAVANAGERE DIST – 577 001.

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…RESPONDENTS

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(BY SHRI SANTHOSH R. NELKUDRI, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI BY INTERFERING THE ORDER DATED 29.07.2020 PASSED ON I.A.NO.24/2019 IN O.S.NO.61/2010 ON THE FILE OF ADDITIONAL CIVIL JUDGE AT DAVANAGERE VIDE ANNEXURE-A.

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IN WRIT PETITION NO. 12778 OF 2021:

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BETWEEN:

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SRI M BASAVARAJAPPA S/O LATE MURIGENDRAPPA AGED ABOUT 56 YEARS

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SMT SHARADAMMA W/O LATE M B PARASHURAMAPPA AGED ABOUT 45 YEARS

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SRI BASAVARAJU S/O LATE M B PARASHURAMAPPA AGED ABOUT 23 YEARS

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SUNITHA D/O LATE M B PARAMESHWARAPPA AGED ABOUT 21 YEARS

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ALL ARE R/O MALALAKERE DAVANAGERE TALUK DAVANAGERE DISTRICT – 577 001.

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…PETITIONERS

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(BY SHRI P.S. VEERESH, ADVOCATE FOR SHRI SANATHKUMAR SHETTY K., ADVOCATE)

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AND:

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SMT GANGAMMA W/O LATE HUVINAMADU RUDRAPPA AGED ABOUT 76 YEARS

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SRI PUTTESHI @ PUTTAPPA S/O LATE HUVINAMADU RUDRAPPA AGED ABOUT 47 YEARS

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SMT MANJAMMA W/O MALLESHAPPA AGED ABOUT 45 YEARS HOUSE HOLD R/O BULLANAHALLI JAGALUR ALUK DAVANAGERE DISTRICT – 577 001.

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SMT.GEETHAMMA W/O CHANDRAPPA AGED ABOUT 43 YEARS

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SMT. JAYALAKSHMI D/O LATE HUVINA RUDRAPPA AGED ABOUT 37 YEARS RESPONDENTS NO.1 TO 2 AND 4 TO 5 ARE R/O MALALAKERE DAVANAGERE TALUK DAVANAGERE DISTRICT – 577 001.

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…RESPONDENTS

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(SHRI SANTHOSH R. NELKUDRI, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INIDA PRAYING TO ISSUE A WRIT OF CERTIORARI BY INTERFERING THE ORDER DATED 29.07.2020 PASSED ON IA NO.22 FILED UNDER ORDER 26 RULE 9 READ WITH SECTION 151 OF IPC O.S.NO.61/2010 ON THE FILE OF ADDITIONAL CIVIL JUDGE AT DAVANAGERE VIDE ANNEXURE-AGRANT AN INTERIM ORDER TO STAY OF ALL FURTHER PROCEEDINGS IN O.S.NO.61/2010 ON THE FILE OF ADDITIONAL CIVIL JUDGE AT DAVANAGERE

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THESE WRIT PETITIONS, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The defendants in O.S.No.61 of 2010 on the file of

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the Additional Civil Judge (Jr.Dn.), Davanagere have filed W.P.No.16828 of 2021 and the defendants in O.S.No.257 of 2009 on the file of the Additional Civil Judge, Davanagere have filed W.P.No.12778 of 2021 challenging

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the correctness of the order dated 29.07.2020 by which,

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the applications filed by the defendants in O.S.Nos.257 of

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2009 and 61 of 2010 under Order 26 Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 were rejected.

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The parties shall henceforth referred as they were arrayed before the Trial Court.

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The suit in O.S.Nos.257 of 2009 and 61 of

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2010 was filed for common reliefs, which are extracted below:

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In O.S.No.61/2010:

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a) For declaring the act of defendants and their followers, coolies. and servants in trying to stop the putting up stone fence and wire in and around the suit schedule property at ABCD points to cause prejudice the rights of plaintiffs in cultivating and enjoyment the suit schedule property peacefully, is illegal:

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b) Consequentially, to grant a Permanent Injunction against the Defendants and their persons, coolies, servants restraining from interfering in the suit schedule properties for stopping the putting up stone fence and wire in and around the suit

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schedule property to cause prejudice the rights of plaintiffs in cultivation and enjoyment of the suit schedule property peacefully; and

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c) To pass such other suitable reliefs as this Hon'ble Court deems fit in the circumstances of the suit, in the interest of justice and equity

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In O.S.No.257/2009:

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a) For declaring that the act of defendants and their persons or any body on behalf of them in trying to interfere in the suit schedule property with a malafide intention to cause prejudice the rights of the plaintiffs to dispossess the plaintiffs from the suit schedule property with forcible is illegal.

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b)Consequently to order for grant a permanent injunction against the defendants their persons or anybody on behalf of them in trying to interfere in the suit schedule property to dispossess the plaintiffs from the suit schedule property to cause prejudice the right, title and interest of the plaintiffs and possession of them, and

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c) To pass such other suitable reliefs as this Hon'ble Court deems fit in the circumstances of the suit, in the interest of justice and equity.

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The suit was contested by the defendants on

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various grounds. The Trial Court framed the issues and set down the case for trial. After the trial was concluded, the defendants filed an application under Order 26 Rule 9 of CPC to appoint a Commissioner to identify the properties sold by the plaintiffs to the defendants and ascertain the fact whether the defendants had laid up fences enclosing their respective properties, etc., This application was contested by the plaintiffs. The Trial Court considered both the applications in both the suits and rejected the applications in terms of the impugned order on the ground that appointing a Court Commissioner for local inspection would amount to collection of evidence. It also held that it is for the plaintiffs to prove their ownership and lawful possession of the suit schedule property and it is for the defendants to establish by corroborative evidence to prove their respective purchases from the plaintiffs as well as the status of the properties so purchased its boundaries, possession etc., It also held that the defendants did not indicated in their application as to

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who was the competent person to be appointed as a Court Commissioner to conduct a local inspection.

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Being aggrieved by the said order, the

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defendants have filed these petitions.

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The learned counsel for the defendants contended that during the course of cross-examination of PW-1, certain Sale Deeds that were executed by the plaintiffs in favour of defendant Nos.3 and 8 were confronted and the same were denied. He contends that it is therefore necessary for a Court Commissioner to be appointed to conduct a local inspection to find out whether the defendants had enclosed their respective properties by a fence and also about the status of the properties so purchased by them.

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Per contra, the learned counsel for the plaintiffs contended that though the plaintiffs had sought for some declaratory relief, the suit in effect was one for perpetual injunction restraining the defendants from disturbing the possession of the plaintiffs in the suit schedule property.

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He therefore contends that appointing a Commissioner would amount to collection of evidence, which cannot be permitted.

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I have heard the learned counsel appearing for

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the petitioners and also the learned counsel appearing for the respondents.

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A perusal of the reliefs sought for in the suit shows that the plaintiffs sought for a relief of declaration in O.S.No.61 of 2010 that the act of the defendants in trying to stop the fixing of stone pillars and barbed wire around the suit property at ABCD points was illegal and intended to cause prejudice to the rights of the plaintiffs and for consequential injunction. The defendants claimed that the husband of plaintiff No.1 and father of other plaintiffs had sold a portion of the land in favour of defendant No.3 in terms of a Sale Deed dated 30.08.1969 which was marked as Ex.D17 and Sale Deed dated 18.08.1971, which was marked as Ex.D19 and Sale Deed dated 22.01.1975 in favour of one of the other defendant,

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which was marked as Ex.D20. The defendants therefore were bound to drive home the fact that the plaintiffs had executed such documents and had placed the defendants in possession of the suit property when they crossexamined PW-1. Therefore, the question whether there was a need to appoint a Commissioner to conduct local inspection was to be left to the absolute discretion of the Trial Court based on the evidence adduced before it. If the Trial Court was of the opinion that the evidence on record was either insufficient or doubtful or if the Court was not in a position to determine the case effectively and felt the need to appoint a Court Commissioner for local inspection, it could do so. However, the impugned order does not indicate whether the evidence on record was considered. However, it held that appointing a Court Commissioner would amount to collection of evidence. This approach of the Court is incorrect and deserves to be set aside.

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In that view of the matter, I pass the following:

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ORDER

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i) The Writ Petitions are disposed of , reserving liberty to the defendants to invoke the power/discretion of the Court to appoint a Commissioner for local inspection at an appropriate stage. The Trial Court shall, if a request is made, consider the need for appointing a Commissioner for local inspection based on the evidence adduced by the parties before it.

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ii) This would meet the ends of justice and also help the Court in arriving at a just decision as to whether the plaintiffs or the defendants are in possession of the suit property or after.

Sd/-

JUDGE

List No.: 1 Sl No.: 10

Smt Nannibee v. Smt Gangamma

Case brief

What is this about?

What did the court decide?

Smt Nannibee v. Smt Gangamma

Case brief

What is this about?

What did the court decide?

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