Allowed

Mrs Shalini M Shetty v. Sri B Jaya Shetty

Karnataka HC13 Mar 2024WP/2716/2022

Case brief

AI extract

What is this about?

Defendants challenged the trial court's order appointing a Commissioner for local inspection in an implied-grant right-of-way suit before any evidence was recorded. The High Court held that an easement claimant must first prove his right independently and cannot collect evidence through a Commissioner; it set aside the order.

What did the court decide?

Impugned order dated 20.01.2022 set aside; plaintiff's I.A.No.IV rejected, with liberty to file fresh application under Order XXVI Rule 9 after conclusion of evidence.

Mrs Shalini M Shetty Vs Sri B Jaya Shetty — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:10354 WP No. 2716 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ

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WRIT PETITION NO. 2716 OF 2022 (GM-CPC)

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BETWEEN:

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MRS. SHALINI M. SHETTY W/O MADHAVA SHETTY AGED ABOUT 57 YEARS

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MRS. SUJATHA SHETTY W/O SUDHAKAR SHETTY AGED ABOUT 50 YEARS

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MR. KESHAVA SHETTY W/O MADHAVA SHETTY AGED ABOUT 47 YEARS

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ALL THE PETITIONERS ARE RESIDING AT: SHETTY COMPOUND, OPPOSITE PORLU ARTS, BEJAI POST, KADRI KAMBLA, MANGALURU-575004.

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…PETITIONERS

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Digitally signed by BS RAVIKUMAR Location: HIGH COURT OF KARNATAKA

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(BY SRI. RAJASHEKAR S., ADVOCATE)

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AND:

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SRI. B. JAYA SHETTY S/O LATE GANGANNA SHETTY AGED ABOUT 66 YEARS RESIDING AT 'AHSRIVAD NILAYA', CHANDRIKA BADAVANE, NEAR KADRI KAMBLA, BEJAJ POST, MANGALURU-575004

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…RESPONDENT

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(BY SRI. RAKESH KINI, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 20.01.2022 PASSED ON I.A.NO.4 FILED UNDER ORDER XXVI RULE 9 READ WITH SECTION 151 OF CODE OF CIVIL PROCEDURE IN O.S.NO.379/2019 VIDE ANNEXURE-A ON THE FILE OF IV ADDITIONAL CIVIL JUDGE AND JMFC, MANGALORE.

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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 defendants in O.S.No.379/2019 on the file of the IV Additional Civil Judge and JMFC, Mangaluru (henceforth referred to as 'Trial Court') have filed this petition challenging an order dated 20.01.2022, by which, an application (I.A.No.IV) filed by the plaintiff under Order XXVI Rule 9 read with Section 151 of CPC for appointment of Commissioner for local inspection of the suit property, was allowed.

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The suit in O.S.No.379/2019 was filed for declaration that the plaintiff had acquired a right of way over 8 feet roadway on the South-Eastern side of the 'A' schedule property and on the eastern edge of the defendants' 'B' schedule property by way of an implied grant and for consequential injunction. The plaintiff also sought for

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mandatory injunction directing the defendants to remove the obstructions placed on the eastern side of 'B' schedule property.

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The plaintiff claimed that he was the owner of 'A' schedule property having acquired it in terms of a sale deed 27.05.1986. He claimed that 'B' schedule property was owned by the mother of the defendants, she having acquired it in terms of the sale deed dated 27.05.1986. He claimed that 'A' and 'B' schedule properties belonged to Mr. Lawrence Charles Rodrigues (L.C. Rodrigues), who purchased it in terms of the sale deed in the year 1965. After his death, his wife sold 'A' schedule property to the plaintiff and 'B' schedule property to the mother of the defendants, as stated above. The plaintiff claimed that the mother of the defendants was related to him and was a tenant residing in a house situated on 'B' schedule property. The plaintiff claimed that 'B' schedule property was purchased by the plaintiff but registered in the name of the mother of the defendants on humanitarian grounds and it was made clear that 8 feet road shall be reserved on the eastern side of 'B' schedule property to reach 'A' schedule property. The plaintiff claimed that there was no other way to reach 'A'

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schedule property than by passing over 'B' schedule property as mentioned above. He further claimed that the plaintiff was using the 'B' schedule property to reach 'A' schedule property eversince its purchase. He further claimed that this usage of 'B' schedule property was indicated in the parent document namely, the sale deed dated 05.03.1965 by which, Mr. L.C. Rodrigues purchased it. Thus, the plaintiff claimed he had an implied grant to pass over the 'B' schedule property. When things stood thus, the mother of the defendants transferred two cents of land in 'B' schedule property to her daughter (defendant No.2) on 18.10.1996, which also recognized the existence of a 8 feet road on the eastern side of 'B' schedule property. When things stood thus, after the death of the mother of the defendants, the defendant Nos.1 and 2 had conveyed a portion of 'B' schedule property in favour of the defendant No.3 by a settlement deed dated 26.02.2014 and that the erstwhile road running over 'B' schedule property was deliberately not mentioned suppressed at the time of executing the settlement deed. The plaintiff claimed that the defendants constructed a shed over the road so as to use it as a parking

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area, which compelled the plaintiff to seek for the aforementioned reliefs.

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The suit was contested by the defendant Nos.1 and 2, who denied that a 8 feet passage was set apart in 'B' schedule property to enable the plaintiff to pass over it to reach 'A' schedule property. They denied that such a reservation was not mentioned in the transfer deed dated 18.10.1996 executed by the mother of the defendants in favour of her daughter (defendant No.2). They contended that the allegations and the apprehensions of the plaintiff, are all false. They contended that the plaintiff had an approach road on the eastern side of 'A' schedule property and on the northern side. Thus, they claimed that there was no passage or pathway running through 'B' schedule property, which was used by the plaintiff.

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Even before the suit was set down for evidence, an application was filed by the plaintiff under Order XXVI Rule 9 read with Section 151 of CPC seeking appointment of a Commissioner for local inspection of the suit property. This application was opposed by the defendants, who contended

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that no commission could be allowed before evidence is recorded.

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The Trial Court without considering the fact that the

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case was still at preliminary stage, appointed a Commissioner in terms of the impugned order.

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Being aggrieved by the said order, the defendants have filed this petition.

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The learned counsel for the defendants contended that in a suit of this nature, without the plaintiff establishing his easementary right over 'B' schedule property, a Commissioner cannot be appointed to collect evidence. He contended that when the plaintiff had categorically claimed in the plaint that there was an implied grant and that the said easementary right was recognized, it was incumbent upon him to prove it.

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Per contra, the learned counsel for the plaintiff contended that the defendants had denied the existence of a pathway over 'B' schedule property and hence, it was necessary to establish it through a Commissioner for

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conducting a local inspection, as there was no other means to secure that information.

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I have considered the submissions made by the learned counsel for the defendants as well as the learned counsel for the plaintiff.

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As rightly contended by the learned counsel for the defendants, when the plaintiff had claimed easementary right over the property of the defendants, he was bound to first establish it through oral and documentary evidence. If there was any need, it was for the Court to decide whether a local inspection was necessary in the light of the evidence adduced before it. The plaintiff cannot collect evidence through a Commissioner to establish his case but he has to do it independently. The Trial Court instead of considering the application for appointment of Commissioner from this stand point, had blindly allowed the application.

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In that view of the matter, this petition is allowed .

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The impugned order dated 20.01.2022 passed by the IV Additional Civil Judge and JMFC, Mangaluru in O.S.No.379/2019 is set aside. The application (I.A.No.IV) filed by the plaintiff

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under Order XXVI Rule 9 read with Section 151 of CPC seeking appointment of Commissioner for local inspection of the suit property is rejected. However, liberty is reserved to the plaintiff to file appropriate application under Order XXVI Rule 9 of CPC seeking appointment of Commissioner for local inspection of the suit property after the evidence of the parties is concluded.

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Sd/JUDGE

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PMR List No.: 1 Sl No.: 40

Mrs Shalini M Shetty v. Sri B Jaya Shetty

Case brief

What is this about?

What did the court decide?

Mrs Shalini M Shetty v. Sri B Jaya Shetty

Case brief

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