Dismissed

Smt. Akkamma v. Sri. M. Venkatagiriyappa @ Rajanna

Karnataka HC4 Dec 2024WP/21878/2024

Case brief

AI extract

What is this about?

Defendants in a perpetual injunction suit over alleged encroachment of a panchayat road challenged appointment of a commissioner under Order XXVI Rule 9 CPC for demarcation. The High Court held local inspection was needed to appreciate evidence and dismissed the writ petition, limiting the commissioner's role to reporting ground facts without opinion.

What the court decided

AI extract

Smt. Akkamma Vs Sri. M. Venkatagiriyappa @ Rajanna — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:50359 WP No. 21878 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 21878 OF 2024 (GM-CPC)

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BETWEEN:

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SMT. AKKAMMA, AGED ABOUT 79 YEARS, W/O. BEERAPPA.

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SMT. ASHA RAJAPPA, AGED ABOUT 49 YEARS, W/O. RAJAPPA,

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SRI. RAJAPPA, AGED ABOUT 54 YEARS, S/O. BEERAPPA.

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ALL RESIDENTS OF D. N. DODDY VILLAGE, LAKKUR HOBLI, MALUR TALUK, KOLAR DISTRICT-563137.

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…PETITIONERS

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(BY SRI. IMRAN PASHA, ADVOCATE)

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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AND:

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SRI. M. VENKATAGIRIYAPPA @ RAJANNA, AGED ABOUT 77 YEARS, S/O. LATE MUNISHAMAPPA.

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SRI. MINISHAMI GOWDA, AGED ABOUT 64 YEARS, S/O. KRISHNAPPA.

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SRI. M. GURAPPA, AGED ABOUT 74 YEARS, S/O. LATE MARAPPA.

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SRI. M. THIMMARAYAPPA, AGED ABOUT 57 YEARS,

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2 - NC: 2024:KHC:50359 WP No. 21878 of 2024

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S/O. LATE GOVINDAPPA.

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ALL RESIDENTS OF D. N. DODDY VILLAGE, LAKKUR HOBLI, MALUR TALUK, KOLAR DISTRICT-563 137.

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PANCHAYATH DEVELOPMENT OFFICER, D. N. DODDI GRAMA PANCHAYAT, D.N. DODDI VILLAGE, MALUR TALUK, KOLAR DISTRICT-563 137.

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…RESPONDENTS (BY SRI. SAMPANGI RAMAIAH ,ADVOCATE C/R1,R2,R3 &R4; SRI. SOMAYAJI ADVOCATE FOR R5)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 20.07.2024 PASSED ON IA FILED UNDER ORDER 26 RULE 9 OF CPC BY THE HONBLE I ADDITIONAL CIVIL JUDGE AND JMFC, MALUR, KOLAR DISTRICT IN O.S.NO. 419/2015 AS PER ANNEXURE-E AND IN REVERSAL OF THE SAME, BE PLEASED TO REJECT THE SAID IA FILED BY THE PLAINTIFFS/ RESPONDENT-1 TO 4 HEREIN.

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

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CORAM: HON'BLE MR JUSTICE R. NATARAJ

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ORAL ORDER

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The defendant Nos.1 to 3 in O.S No.419/2015 on the file of I Addl. Civil Judge and JMFC, Malur, Kolar District, are before this Court challenging the correctness of an order dated 20.07.2024, by which an application filed by the plaintiffs under Order XXVI Rule 9 of Code of Civil Procedure (for short 'CPC')

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NC: 2024:KHC:50359 WP No. 21878 of 2024

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was allowed and a commissioner was appointed to demarcate the suit property, as well as the house claimed by the defendants in their written statement.

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After the evidence in the suit was concluded, the plaintiffs filed an application under Order XXVI Rule 9 of CPC to demarcate the suit property, as well as the property of the defendants mentioned in the written statement. This application was opposed by the defendants on the ground that the plaintiffs cannot be allowed to collect evidence through a local inspection. They also contended that the commissioner cannot be appointed to measure and identify the property of the defendants, which was not the subject matter of the suit. He also contended that the plaintiffs were bound to establish that the defendants had encroached into the road and they cannot prove the said fact through appointing a commissioner. The Trial Court in terms of the impugned order, allowed the application on the ground that, it is necessary to know the true state of affairs and the status of the property in order to appreciate evidence adduced before it. Being aggrieved by the said order, the defendants are before this Court.

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NC: 2024:KHC:50359 WP No. 21878 of 2024

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Learned counsel for the defendants submitted that

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the suit is for perpetual injunction in respect of an alleged road measuring 3 ½ feet X 25 feet. He contends that the averments of the plaint shows that the defendants had already put up construction. Therefore, the suit for bare injunction was not maintainable. Therefore, he contends that the Trial Court could have entertained the application for appointment of a commissioner to conduct a local inspection. He further contends that, the burden to prove the existence of a road and the encroachment thereon by the defendants, is upon the plaintiffs and therefore, they cannot seek to prove the said fact through a commissioner for local inspection. In support of his contention, he relied upon the judgment of a co-ordinate Bench of this Court in W.P No.1351/2020, where the Court was considering a case of encroachment into a property belonging to the Panchayath. Thus, he contends that the impugned order passed by the Trial Court amounts to collection of evidence and therefore, same cannot be permitted.

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Per contra, learned counsel for the plaintiffs

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submitted that the Trial Court has allowed the application only to know the ground reality, so as to assess the evidence in the

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5 - NC: 2024:KHC:50359 WP No. 21878 of 2024

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right perspective. He submits that, the commissioner would not collect any evidence of whatsoever nature but, would only place before the Court facts as it exists at ground zero. He therefore contends that, since the Trial Court has allowed the application to know the real facts, the impugned order is just and proper and does not warrant interference.

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I have considered the submissions made by the

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learned counsel for the plaintiffs and learned counsel for the defendants.

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The suit was filed for perpetual injunction on the premise that the defendants had encroached into the road which belongs to the Panchayath. The suit is filed in respect of encroached portion. The defendants have contested the suit and have claimed that they are the owners of a house which abuts the road on the northern side. They contended that they

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have not encroached into the road as alleged by the plaintiffs, but in the same vein contended that the municipal authorities have laid a drainage and beyond that drainage a road existed. Thus, the only dispute between the plaintiffs and the defendants was whether the defendants had encroached into

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6 - NC: 2024:KHC:50359 WP No. 21878 of 2024

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the portion of the road lying on the northern side of the property. There can be no documentary evidence to establish the alleged encroachment by the defendants into the road on the northern side, since the municipal authorities have not taken any action. Though the learned counsel for the plaintiff contended that the Panchayath authorities have issued notice, the said fact is disputed by the defendants. If that be so, the only question that needs to be considered is whether, the defendants have encroached into the road on the northern side of their property. The plaintiffs have already adduced evidence and similarly the defendants have also adduced evidence. In order to appreciate the evidence adduced by the parties, a local inspection by a commissioner was necessary so as to put the issue at rest, fully and conclusively. The commissioner appointed shall be only for the limited purpose of placing before the Court the ground situation as he sees. He shall not give his opinion to the Court on any aspect concerning the case of the plaintiffs or the case of the defendants. The Trial Court, therefore has rightly allowed the application and impugned order does not warrant interference by this Court in this writ petition.

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NC: 2024:KHC:50359 WP No. 21878 of 2024

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Hence, the writ petition is dismissed..

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However, it is made clear that, the report of the commissioner is only to the limited extent of giving a birds eye view of the property claimed by the plaintiffs and the defendants in the written statement and nothing else. The commissioner shall not furnish any opinion of whatsoever nature touching upon the matter in dispute. This report shall be looked into by the Trial Court only for the limited purpose of appreciating the evidence on record.

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Sd/(R. NATARAJ) JUDGE

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THM/List No.: 1 Sl No.: 31

Smt. Akkamma v. Sri. M. Venkatagiriyappa @ Rajanna

Case brief

What is this about?

What the court decided

Smt. Akkamma v. Sri. M. Venkatagiriyappa @ Rajanna

Case brief

What is this about?

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