Allowed

Smt Jayamma v. Shri T R Basavaraju

Karnataka HC1 Apr 2024WP/22096/2022

Case brief

AI extract

What is this about?

High Court allowed a Writ Petition under Article 227, setting aside an order that rejected an application for a Court Commissioner under O.XXVI R.9 CPC. The Court held the Trial Court unreasonably relied on lack of documentary evidence instead of appreciating the need for local inspection to resolve a property dispute regarding boundary mistakes in a sale deed.

What did the court decide?

The impugned order dated 17.08.2022 rejecting the application for appointment of a Court Commissioner is set aside. The Trial Court is directed to reconsider the application.

Smt Jayamma Vs Shri T R Basavaraju — Contract and Commercial Disputes | Karnataka HC (2024)

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1 - NC: 2024:KHC:13432 WP No. 22096 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST 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. 22096 OF 2022 (GM-CPC)

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BETWEEN:

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SMT. JAYAMMA W/O LATE M. LAKSHMAN AGED ABOUT 68 YEARS

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SMT. SHOBHA W/O SHRI ASHOK AGED ABOUT 48 YEARS

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KUM. LATHA D/O LATE M. LAKSHMAN AGED ABOUT 46 YEARS

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SMT. VEDA @ VEDAVATHI W/O DR. N. SANTHOSH AGED ABOUT 44 YEARS

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Digitally signed by BS RAVIKUMAR Location: HIGH COURT OF KARNATAKA

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ALL ARE R/AT: NO.8/8, 2^ND MAIN ROAD, ATTIGUPPE, VIJAYANAGAR, BENGALURU-560040 ALL ARE REPRESENTED BY THEIR SPECIAL POWER OF ATTORNEY HOLDER DR. N. SANTHOSH S/O NANJAPPA AGED ABOUT 48 YEARS R/AT NO.39/68, 1^ST E CROSS, 6^TH MAIN, REMCO LAYOUT, VIJAYANAGAR 2^ND STAGE, BENGALURU-560040.

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…PETITIONERS

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(BY SRI. PRAKASH TIMMANNA HEBBAR, ADVOCATE)

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2 - NC: 2024:KHC:13432 WP No. 22096 of 2022

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AND:

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SHRI. T.R. BASAVARAJU S/O T. RAMABHADRAIAH AGED ABOUT 50 YEARS R/AT THIRUMALE, MAGADI MAIN ROAD, THIRUMALE, MAGADI TOWN, RAMANAGAR DISTRICT, PIN-562120.

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…RESPONDENT (VIDE ORDER DATED 22.02.2024 SERVICE OF NOTICE TO RESPONDENT IS HELD SUFFICIENT)

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 17.08.2022 PASSED BY THE HON’BLE SENIOR CIVIL JUDGE, MAGADI IN O.S.NO.5/2015, DISMISSING THE APPLICATION FILED UNDER ORDER 26 RULE 9 READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE AS PER ANNEXURE-A AND FURTHER ALLOW THE APPLICATION IN I.A.NO.VII AS PRAYED FOR.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The plaintiffs in O.S. No.5/2015 pending trial before the Senior Civil Judge, Magadi, have filed this petition challenging an order dated 17.08.2022 by which an application (I.A No.7) filed by them under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (for short ‘CPC’) was rejected.

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NC: 2024:KHC:13432 WP No. 22096 of 2022

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The suit in O.S. No.5/2015 was filed for the

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following amongst other consequential reliefs:

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"A) TO DECLARE that the Northern side boundary written as 20 feet road in respect of the remaining extent in the same Sy.No.133 belonging to late M. Lakshman in the registered Sale Deed executed on 18.06.1998 registered as Document No. 385, Book No.1, Volume 2101 showing the B - schedule is by mutual mistake within the meaning of Section 26 of the Specific Relief Act, 1963.

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B) BY WAY OF Mandatory Injunction to direct the Defendant to join the Plaintiffs for execution of the Rectification Deed to rectify the northern side boundary as 'the remaining land in Sy.No.133 of Thirumale Village', belonging to Shri M. Lakshman (husband of the 1^st Plaintiff) in the Sale Deed dated 18.06.1998 executed by Shri M. Lakshman in favour of the defendant vide registered Document No. 385, Book No.1, Volume 2101, in respect of the B- schedule, and to admit execution and complete the registration formalities by appearing before the Subregistrar, Magadi and., on his failure to execute the same through the agency of this Hon'ble Court at the cost of the Plaintiffs."

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NC: 2024:KHC:13432 WP No. 22096 of 2022

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The suit was contested by the defendant on

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various grounds. He inter alia claimed that there was no land lying on the northern side of the property purchased by him from the husband of the plaintiff No.1 between the northern edge and 20 feet road.

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Based on these contentions, the suit was set

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down for trial. After the evidence of the parties was concluded, the plaintiff filed an application (I.A. No.7) under Order XXVI Rule 9 read with Section 151 of CPC for appointment of a Commissioner for a local inspection of the suit property.

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5. This application was contested by the defendant

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who claimed that the plaintiff cannot collect evidence through a Commissioner.

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The Trial Court rejected this application in terms of the order dated 17.08.2022 on the ground that the plaintiff did not produce and did not mark a copy of the layout plan from the Planning Authority, Magadi or Town Municipality, Magadi. It held that the identity of the

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property was not in dispute because the measurement of the land in Sy. No.133 was determined by the survey authorities before the plaintiffs’ land was converted for non-agricultural purposes. It further held that if the layout plan was produced by the plaintiffs, it could have helped in resolving the entire dispute. It thus held that the appointment of Commissioner under the facts and circumstances was unnecessary.

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Being aggrieved by the said order, the plaintiffs are before this Court in this petition.

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Learned counsel for the plaintiffs / petitioners submitted that the application (I.A. No.7) for appointment of Commissioner is filed for a local inspection so as to aid and help the Trial Court in arriving at a just decision and to fairly and fully adjudicate the dispute between the parties. He further contended that the Trial Court must have looked into the evidence adduced by the parties and must have thereafter decided whether there was a need to appoint a Court Commissioner to inspect the property in

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question. Instead the Trial Court decided the application on grounds that were perverse. He submitted that the Trial Court was bound to decide the case based on the available material by applying the best evidence rule. He, therefore, submits that the impugned order passed by the Trial Court warrants interference.

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Service of notice to the respondent was held sufficient in terms of the order of this Court dated 22.02.2024.

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The dispute in the suit appears to be that the husband of the plaintiff No.1 had executed a sale deed dated 18.06.1998 and conveyed a site measuring 4800 sq. ft. in favour of the defendant. It appears that, while mentioning the boundaries of the property so conveyed, instead of showing the northern boundary as the remaining extent of land in Sy. No.133 belonging to the husband of plaintiff No.1, and thereafter a 20 feet road, it was shown as a 20 feet road. Therefore, to get this mistake corrected, the plaintiffs filed the suit. If the

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parties had adduced their evidence and if the plaintiffs felt there was still some grey area which was not covered by the evidence adduced by the parties, they were entitled to file an application for appointment of Commissioner. It was for the Trial Court to decide the application based on the evidence adduced before it and decide whether there was a need to appoint a Commissioner or whether the evidence adduced before it was sufficient to decide the dispute. The Trial Court could not have certainly rejected the application on the ground that the plaintiffs could have provided more evidence to establish their claim. This reasoning of the Trial Court is therefore, unreasonable and warrants interference. When cases were tried by the Civil Courts, the evidence adduced before it must be tested in retrospect with intention of the parties, the understanding as to how they would conduct themselves before and after the transaction, the documentary evidence in that regard etc. In the instant case, a portion of land in Sy.No.133 was sold by the husband of the plaintiff No.1 in favour of the defendant. The plaintiffs have not produced any

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documents to show that the layout formed in Sy.No.133 was duly approved by the competent planning authority. But that cannot be a reason to reject the application for appointment of a Court Commissioner to check whether between the northern edge of the defendant’s property and a 20 feet road there is any land. This can possibly be verified from a local inspection.

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Consequently, this petition is allowed. The impugned order dated 17.08.2022 passed by the Principal Senior Civil Judge, Magadi, on I.A. No.7 in O.S. No.5/2015 is set aside. The Trial Court is directed to reconsider the application – IA. No.7 filed by the plaintiffs in the light of the observations made above and in accordance with law.

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Sd/JUDGE

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SMA

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List No.: 1 Sl No.: 41

Smt Jayamma v. Shri T R Basavaraju

Case brief

What is this about?

What did the court decide?

Smt Jayamma v. Shri T R Basavaraju

Case brief

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