Allowed

Mr Kempegowda v. Mrs Devamma

Karnataka HC18 Jul 2024WP/4111/2017

Case brief

AI extract

What is this about?

The High Court allowed a 2017 writ petition challenging the dismissal of an application by a deceased defendant to appoint a Taluk Surveyor. The Court set aside the lower court order, finding the dismissal unsustainable given the boundary dispute and evidence status.

What did the court decide?

Impugned order dated 15.11.2016 set aside; I.A.No.XV filed by deceased defendant allowed; Writ petition allowed.

Mr Kempegowda Vs Mrs Devamma — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:27956 WP No. 4111 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF JULY, 2024

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 4111 OF 2017 (GM-CPC)

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BETWEEN:

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MR. KEMPEGOWDA, S/O KALEGOWDA, (DEAD ON 01.12.2021)

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SMT.NINGAMMA,

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1a. AGED ABOUT 76 YEARS, W/O LATE KEMPEGOWDA,

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Digitally signed by MEGHA MOHAN Location: HIGH COURT OF KARNATAKA

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1b. SMT.GOWRAMMA S.K., AGED ABOUT 52 YEARS, W/O CHANDRASHEKARA, D/O LATE KEMPEGOWDA, R/AT CHIKKAMSIDI ROAD, PANDAVAPURA TOWN – 571 434, MANDYA DISTRICT.

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1c. SMT.S.K.LEELAVATHI, AGED ABOUT 48 YEARS, D/O LATE KEMPEGOWDA, W/O SHANKAREGOWDA G.C., R/AT NO.124, GANDALAU VILLAGE, MANDYA TQ., AND DISTRICT – 571 405.

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1d. SMT.S.K.SUMITHRA, AGED ABOUT 45 YEARS, D/O LATE KEMPEGOWDA,

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2 - NC: 2024:KHC:27956 WP No. 4111 of 2017

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W/O RAVI H.K., HADYA-HULLENHALLY,

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MANDYA TQ AND DISTRICT – 571 405.

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1e. S.K.PRABHAKAR,

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AGED ABOUT 44 YEARS, S/O LATE KEMPEGOWDA,

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SL.NO.1 AND 5 BOTH ARE R/AT SUNKATHNOOR VILLAGE, MELUKOTE HOBLI, PANDAVAPURA TALUK, MANDYA DISTRICT – 571 440.

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…PETITIONERS

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(BY SRI. B.S.NAGARAJ, ADVOCATE)

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AND:

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MRS. DEVAMMA, AGED ABOUT 76 YEARS, W/O LATE S.NARAYANAGOWDA,

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MR. N. KALEGOWDA, AGED ABOUT 60 YEARS, S/O LATE S. NARAYANAGOWDA,

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MRS. K. N.RUKMINI, AGED ABOUT 56 YEARS, W/O LATE K.MAHALINGEGOWDA, D/O LATE S. NARAYANAGOWDA,

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SRI. N. PARAMESHWARA, AGED ABOUT 54 YEARS, S/O LATE S.NARAYANAGOWDA,

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3 - NC: 2024:KHC:27956 WP No. 4111 of 2017

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MR. N. NAGARAJEGOWDA, AGED ABOUT 52 YEARS, S/O LATE S. NARAYANAGOWDA,

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MR. S.N.NEHARU, AGED ABOUT 50 YEARS, S/O LATE S. NARAYANAGOWDA,

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MRS. S.N.PADMA, AGED ABOUT 47 YEARS, W/O N.P.SURESHA, D/O LATE S. NARAYANAGOWDA, (DEAD ON 31.01.2017)

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RESPONDENT NO.1 TO 7 ARE RESIDING AT KUDALKUPPE VILLAGE, K.SHETTYHALLY HOBLI, SRIRANGAPATNA TALUK, MANDYA DISTRICT –PIN - 57.

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7(a) SMT.NARMITHA,

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AGED ABOUT 28 YEARS, D/O N.P.SURESHA, R/AT NELAMANE VILLAGE, K.SHETTY HALLI HOBLI, SRIRANGAPATNA TALUK, MYSURU DISTRICT – 571 438.

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7(b) SMT.NAMITHA,

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AGED ABOUT 26 YEARS, D/O N.P.SURESHA, W/O ABHINANDHAN, R/AT NAGANAHALLY VILLAGE, KASABA HOBLI, MYSURU TALUK AND

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NC: 2024:KHC:27956 WP No. 4111 of 2017

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DISTRICT – 571 003.

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…RESPONDENTS

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(BY SRI. V.N. MADHAVA REDDY, ADVOCATE FOR R-2 TO R-6; VIDE ORDER DT.05.01.2021 - R-2 TO R-7 ARE LRS OF DECEASED R-1; R-7(a) AND R-7(b) - SERVED AND UNREPRESENTED)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT, QUASHING THE ORDER DATED 15.11.2016 PASSED BY THE HON'BLE COURT OF THE CIVIL JUDGE & JMFC, AT PANDAVAPURA IN O.S.NO.235/2001, ON THE APPLICATION I.A.NO.XV AT ANNEX-A; ALLOW THE APPLICATION I.A.NO.XV FILED BY THE DEFENDANT/PETITIONER HEREIN IN O.S.NO.235/2001 ON THE FILE OF THE HON'BLE COURT OF THE CIVIL JUDGE & JMFC AT PANDAVAPURA; AND ETC.,

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THIS WRIT PETITION, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The present writ petition is filed aggrieved by the order

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dated 15.11.2016, passed by the Civil Judge & JMFC, Pandavapura, on I.A.No.XV filed under Order XXVI Rule 9 r/w. Section 151 of the Code of Civil Procedure 1908, whereby the Court had rejected the application filed by the deceased defendant to appoint a Taluk Surveyor. The petitioners before

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this Court are the LRs of the deceased defendant in the suit. The respondents herein are the LRs. of the deceased plaintiff, who have filed the suit for declaration and permanent injunction.

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The dispute, according to the plaintiffs is that, the deceased plaintiff had purchased the property by way of a sale deed dated 09.08.1971. It is the case of the defendants that, the deceased defendant had purchased the property by a Sale Deed dated 02.06.2001.

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It is the case of the plaintiffs that the defendants are claiming the land by including the plaintiffs' property also by giving wrong boundary with an intention to knock-off the plaintiffs’ suit schedule property. When the defendants filed an application before the Court to appoint a Taluk Surveyor as the Court Commissioner for better appreciation of the evidence, the same was objected by the plaintiffs.

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The Trial Court, considering the respective objection of the parties had dismissed the application, observing that the defendants had not filed any counter claim in respect of the suit schedule property. Under such circumstances, the relief

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NC: 2024:KHC:27956 WP No. 4111 of 2017

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sought for by the defendants is not tenable. The matter is already heard at length, already PW-1 to PW-4 and Exhibits P-1 to P-17 on the side of the plaintiffs' evidence is placed and also on defendants' side, DW-1 to DW-5 are examined and got marked Exhibits D-1 to D-8. It is observed that when the case is posted for argument, the present application is filed. No reasons are forthcoming in the I.A. as to, why the said application is not filed at the earlier stage, as such, the reasons stated are not tenable and accordingly, dismissed the application.

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Aggrieved thereby, the petitioners/defendants are before this Court.

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Learned counsel appearing for the petitioners/ defendants submits that the whole dispute between the parties is that, according to the plaintiffs, the deceased plaintiff had purchased the property way back in the year 1971 and the deceased defendant had purchased the property in the year 2001. According to the plaintiffs, the defendants have shown the wrong boundaries and included the plaintiffs’ property also. He submits that if a Surveyor is appointed as the Court

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Commissioner, all these things will come to light. In support of his case, he relied upon a judgment of this Court in the case of Miss Renuka Vs. Sri Tammanna and Others¹ , wherein the Court had held that even before the evidence is complete, unless and until there is an element of ambiguity, the question of appointing an Court Commissioner would not arise. He submits that in the light of the said order passed by this Court, even before the evidence is completed, he cannot file such an application. He submits that, now, if the present application is allowed, the true facts will be placed on record, which is the whole dispute between the parties and the Court would be able to dispose of the matter in an effective manner.

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On 18.06.2024, when this matter came up, there was no representation on behalf of the respondents/plaintiffs. Today also, there is no representation on behalf of the respondents. As the writ petition is of the year 2017, listed under the caption ‘Final Hearing’, this Court is not inclined to adjourn the matter. Hence, the Court is proposing to pass an order on the merits of the case.

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1 ILR 2007 KAR 3029

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NC: 2024:KHC:27956 WP No. 4111 of 2017

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The suit is for declaration and permanent injunction and there is no dispute about the fact that both the deceased plaintiff and the deceased defendant had purchased the property, in the years 1971 and 2001, respectively. Now, the whole dispute of the plaintiffs is that the defendants have shown the wrong boundaries and also included the property that belonged to the plaintiffs also. Both the parties have adduced their evidence and once the evidence is completed, the present application came to be filed.

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Learned counsel of the petitioners/defendants has relied on the judgment of this Court in Miss Renuka's case referred supra where this Court has held that once the evidence is complete and when there is ambiguity in the evidence, then there is requirement for appointment of an Advocate Commissioner. Considering the dispute between the parties, which only revolves around the boundaries, if the Court Commissioner is appointed and the report is placed before the Court, the dispute can be effectively adjudicated. In fact, it is also in the interest of the plaintiffs. But the Trial Court, without considering all these aspects, had dismissed the application.

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NC: 2024:KHC:27956 WP No. 4111 of 2017

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Hence, the following:

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ORDER

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i) The impugned order dated 15.11.2016 passed by the Civil Judge & JMFC, Pandavapura, on I.A.No.XV filed under Order XXVI Rule 9 r/w. Section 151 of the Code of Civil Procedure 1908 in O.S.No.235/2001, is set aside; Consequently, I.A.No.XV filed by the deceased defendant is allowed;

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ii) Accordingly, the writ petition is allowed.

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iii) All the I.As., in the writ petition, shall stand closed.

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SD/JUDGE

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BMV* List No.: 1 Sl No.: 19

Mr Kempegowda v. Mrs Devamma

Case brief

What is this about?

What did the court decide?

Mr Kempegowda v. Mrs Devamma

Case brief

What is this about?

What did the court decide?

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