Disposed

Sri Chandrappa v. Sri B R Krishna Murthy

Karnataka HC5 Jan 2024WP/485/2024

Case brief

AI extract

What is this about?

A defendant challenged a trial court order appointing a court commissioner under Order 26 Rule 9 CPC to inspect suit properties and report alleged encroachment of five guntas. The High Court found no illegality or failure of justice in the order and declined to interfere.

What did the court decide?

Petition disposed of without interfering with the order appointing the commissioner; parties given liberty to file memos, objections to the report, examine/cross-examine, and seek amendment of pleadin

Sri Chandrappa Vs Sri B R Krishna Murthy — Property and Title | Karnataka HC (2024)

¶1

¶2

NC: 2024:KHC:740 WP No. 485 of 2024

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5^TH DAY OF JANUARY, 2024

¶4

BEFORE

¶5

THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 485 OF 2024 (GM-CPC)

¶6

BETWEEN:

¶7

SRI CHANDRAPPA S/O SRI. CHANDAPPA AGED ABOUT 59YEARS AGRICULTURIST RESIDENT OF V. BANIHATTY VILLAGE UBRANI HOBLI, CHANNAGIRI TALUK, DAVANAGERE DIST.

¶8

…PETITIONER

¶9

(BY SRI. H N BASAVARAJU.,ADVOCATE)

¶10

AND:

¶11

SRI B R KRISHNA MURTHY S/O LATE RANGASWAMY AGED ABOUT 59 YEARS.

¶12

SRI NARASIMHAMURTHY S/O LATE RANGASWAMY AGED ABOUT 57 YEARS.

¶13

Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA

¶14

SRI AGANNATH S/OLATE RANGASWAMY AGED 53 YEARS

¶15

ALL ARE RESIDENTS OF V.BANIHATTY VILLAGE, UBRANIHOBLI, CHANNAGIRI TALUK DAVANAGERE DIST-577 213.

¶16

…RESPONDENTS

¶17

THIS W.P. IS FILED UNDER ARTICLES 227 OF THE CONSTITUTION OF INDIA PRAYING TO i) SET ASIDE THE ORDER PASSED BY THE LEARNED PRINCIPAL CIVIL JUDGE AND JMFC, CHANNAGIRI DATED 02/12/2023 ON I.A.NO. 6/2023 IN OS NO. 259/2019 AS PER ANNEXURE-Q AND ETC.

¶18

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

¶19

¶20

NC: 2024:KHC:740 WP No. 485 of 2024

¶21

ORDER

¶22

This petition by the defendant is directed against the impugned order dated 02.12.2023 passed on I.A.No.6 in O.S.No.259/2019 on the file of Prl.Civil Judge & JMFC, Channagiri, whereby the said application filed by the plaintiffs under Order 26 Rule 9 CPC for appointment of a Court Commissioner to conduct local inspection was allowed by the Trial Court.

¶23

Heard learned counsel for the petitioner and perused the material on record.

¶24

After taking into account the rival contentions, pleadings and documents on record, the trial Court proceeded to pass the impugned order allowing I.A.No.6, by holding as under:

¶25

“ ORDER ON I.A.NO.VI

¶26

The plaintiffs filed application under Order 26 Rule 9 R/w Sec.151 of the Code of Civil Procedure. The said application was filed on 22.05.2023, immediately after the examination in chief of DW.1 and the same is kept in appearance till conclusion of the trial. The defendant closed his side on 12.07.2023 and thereafter the plaintiffs pressed into service the application at hand for consideration.

¶27

2. SOME AND SUBSTANCE OF THE AFFIDAVIT

¶28

AS UNDER:

¶29

¶30

NC: 2024:KHC:740 WP No. 485 of 2024

¶31

The plaintiff No.1 has sworn the affidavit filed in support of application. Wherein, he stated on oath that, the plaintiffs have filed suit for declaration and recovery of encroached portion by the defendant. The plaintiffs have specifically made out the case that, the defendants did encroach an area measuring 5 Guntas in suit schedule ‘A’ property, which is described in suit schedule ‘B’ property. The defendant has contested the suit by relying the Ex.D16 and 17 and allegedly contended that, no such encroachment is made by them in the suit schedule ‘B’ property. The plaintiffs have categorically pleaded and approached this court with the allegation that, the defendants did encroach 5 Guntas of land in suit schedule ‘A’ property. Therefore, the plaintiffs have submitted that, the appointment of court commissioner is absolutely warranted in the facts and circumstances of the case and without which the suit cannot be decided effectively and completely. Thus, the plaintiffs pray to allow the application.

¶32

3. STATEMENT OF OBJECTION FILED BY THE DEFENDANT AS UNDER:

¶33

The defendant disputed all the grounds narrated under the affidavit filed in support of the application. The defendant contended that, there is no encroachment in suit schedule ‘B’ property. The plaintiffs had filed suit bearing O.S.No.89/2014 before this court and the same came to be dismissed on merits. In the said suit, the plaintiff was entered into witness box and examined as PW.1. In the cross examination he had categorically admitted that, second survey was conducted by the Tahasildar and then no encroachment was seen. Thereafter, the first survey conducted by the surveyor at the instance of plaintiffs came

¶34

¶35

NC: 2024:KHC:740 WP No. 485 of 2024

¶36

to be set aside. The plaintiffs by suppressing these facts have filed this false suit to harass the defendant and also filed the application on had without any valid, legal grounds to protract the proceedings. In between the properties of plaintiffs and defendant, there is huge ridge and therefore there is no question of demarcating the properties as well as measurement. The available evidence on record are sufficient enough to conclude the dispute between the parties and no need to appoint the commissioner to measure the properties of plaintiffs and defendant.

¶37

By these such other grounds the defendant prayed to reject the application.

¶38

4. Based on the rival claims setforth by both the parties in application as well as objections statement, the following points would emerge for my consideration;

¶39

POINTS

¶40

1. Whether the appointment of court commissioner is essential to elucidate the fact in issue?

¶41

2. What order?

¶42

5. Heard the learned counsel appearing for the plaintiffs and defendant. Perused the documentary as well as oral evidence which are already on record. On perusal of the same my findings to the aforesaid points would be:

¶43

POINTS

¶44

Point No.1 : In the Affirmative,

¶45

Point No.2 : As per final order, for the following ;

¶46

REASONS

¶47

6. POINT NO.1:- At the outset, the plaintiffs have filed the suit for declaration, to declare that, the suit

¶48

¶49

NC: 2024:KHC:740 WP No. 485 of 2024

¶50

schedule ‘A’ property is the part of suit schedule ‘B’ property and they may be declared as owners to the same. The plaintiffs have also prayed for mandatory injunction to remove the alleged encroachment of defendant in suit schedule ‘B’ property. The plaintiffs have categorically alleged that, the suit schedule ‘A’ property belongs to lord Hanumanthadevaru of Bannihatti village. Their grandfather Sri.Ranga Manoraiah @ Poojari Ranga Manoraiah was the poojar of said temple and as such the said grandfather was cultivating the suit schedule property in order to eking the livelihood. The said land was granted by the government in favour of his son namely, B.R.Rangaswamy, by virtue of the order passed by the Special Deputy Commissioner, Shimogga, on 17.09.1977, in INA(21)Misc.Cr.162/1970-71. Accordingly, his name came to be mutated in the revenue records concerning to suit schedule property and since then the plaintiffs are in enjoyment of the suit suit property. The said Rangaswamy died in the year 1988- 89, leaving behind the plaintiffs and their names came to be mutated in the revenue records pertaining to the suit schedule property as per the I.H.C.No.14/1988-89. It is alleged that, the defendant is owing the land bearing Sy.No.60, on the middle southern side of suit schedule ‘A’ property and he had fixed the electric transformer. In order to maintain the same, the defendant encroached the suit schedule ‘A’ property with all his high handedness and illegal attempts. By virtue of the application, the survey settlement and land records department measured the property by fallowing due procedure and come to conclusion that the defendant did encroachment in suit schedule ‘B’ property to the extent of 5 Guntas. The request of the plaintiffs for removal of

¶51

¶52

NC: 2024:KHC:740 WP No. 485 of 2024

¶53

encroachment, yield nothing and as such the suit on hand is filed for possession and declaration.

¶54

7. In resisting the claim of plaintiffs, the defendant filed the written statement and contended that, the plaintiff No.1 filed O.S.No.89/2014 for the relief of permanent injunction in respect of suit schedule ‘A’ property and which came to be dismissed on merits. Against which, the appeal bearing R.A.No.80/2019 was filed and is pending for consideration before the Hon’ble Senior Civil Judge Court at Channagiri. The said suit came to be dismissed by considering the evidence of the plaintiff, No.1 of the suit. The plaintiffs have suppressed the said facts and as such their suit is liable to be dismissed with cost. It is also contended that, the very survey report relied by the plaintiffs, dt: 28.03.2012 is not in existence in view of the order passed by the Tahashildar, Channagiri, setting aside the said report. In the second survey, the competent authority has opined that, there was no such encroachment in the suit schedule ‘A’ property or ‘B’ property. Further the defendant contended that, the suit is bad for non joinder necessary parties and also is barred by limitation. Thus, the defendant prayed to dismiss the suit.

¶55

8. The learned counsel for plaintiffs has vehemently argued that, the plaintiffs are relying the Ex.P-15 and 16 to establish the alleged encroachment of defendant in suit properties. The defendant contested the same by relying the subsequent alleged survey conducted at the instance of defendant and also alleged order of Thaahsildar in setting aside the survey. Therefore, the parties are at variance as to the alleged encroachment if any in suit schedule B property. In order to establish it, appointment of Court Commissioner

¶56

¶57

NC: 2024:KHC:740 WP No. 485 of 2024

¶58

is necessary and any amount of oral or documentary evidence would not substitute the same. As such he prays to allow the application.

¶59

9. The learned counsel for defendant has vehemently argued by referring the Ex.D-1 and D-2 that, the very reports finding place at Ex.P15 and 16 are no more in existence, in view of the order passed by the Tahashildar, Channagiri, on the basis objection filed by the defendant. Thus, the appointment of court commissioner is in any way material and therefore he prayed to reject the application. In the course his arguments, the learned counsel for the defendant has taken the attention of this court on the Ex.D1, which is certified copy of cross examination of PW.1, of O.S.No.89/2014, who is none other than the plaintiff No.1 of this suit.

¶60

10. Having taken note of the arguments and the pleadings of the parties, have careful perused the Ex.P-15 and 16. Ex.P15 is the statement of the persons, who were present during the process of measurement and Ex.P-16 is the survey map, prepared by the surveyor, on 28.03.2012. The plaintiffs claim is based on the said documents. In this regard, it is also essential to refer the cross examination of PW.1, in O.S.No.89/2014, which is marked on confrontation to the PW.1. Wherein, the PW-1 has categorically admitted that, the survey dt: 28-03-2012 was questioned by the defendant before the Tahashildar. Thereafter, the resurvey was conducted on 19-05-2012 and at that time, the boundary marks were put up in respect of the properties of plaintiffs and defendant. In the said survey, it is also opined that, no such encroachment was taken place in the property of plaintiffs or the defendant. On the basis of said report the

¶61

¶62

NC: 2024:KHC:740 WP No. 485 of 2024

¶63

Tahashildar passed an order canceling the very survey conducted on 28.03.2012.

¶64

11. Having referred the pleadings as well as arguments that, are canvased by the learned counsels appearing for plaintiffs as well as defendant, the documentary evidence placed on record, what it appears is the parties are it variance with reference to the alleged encroachment in suit schedule ‘B’ property. According to plaintiffs, the defendant encroachment in suit schedule ‘B’ property and as per earlier survey report it as come to the light. 12. On the other hand, the defendant contended that, the said survey report was cancalled by the Tahasildar on due enquiry and after the survey report from the competent survey department. Therefore, the appointment of court commission to resurvey the suit property and the properties of defendant is absolutely not essential to conclude the lis between the parties. In that regard, the learned. counsel for defendant much highlighted on the cross examination of PW.1, did in O.S.No.89/2014 and also in this suit. He also referred the Ex.D-15 to 17. I have carefully perused the Ex.D-16 referred by the plaintiffs, Ex.D-15 to 17 referred by the defendant. Both the survey records are of the year 2012 and the plaintiffs filed the suit in the year 2019 alleging that, the defendant encroached 5 Guntas of land in suit schedule ‘B’ property at the middle Southern portion of suit schedule ‘A’ property. The plaintiffs have narrated the cause of action to the effect that, it accrued as the defendant refused to handover the said encroached portion in the year 2019 and as such they filed the suit on hand for the reliefs as sought under the plaint.

¶65

13. In this factual scenario of the case, the available evidence are not sufficient enough to conclude the alleged

¶66

¶67

NC: 2024:KHC:740 WP No. 485 of 2024

¶68

encroachment of the defendant in suit schedule ‘B’ property. Earlier survey records of the year 2012. The lis between the parties put before the court after the said survey and the orders of Tahasildar of Channagiri. Therefore, in my considered opinion, the alleged encroachment if any cannot be ascertained on the basis of disputed documents which are relied by both the parties and are finding place at Ex.P16, Ex.D-15 to 17. Therefore, in the light of factual aspects of the matter, the appointment of court commission is absolutely warranted and which would meet the ends of justice and equity. It would also help the court to decide the matter completely and effectually.

¶69

14. The oral evidence that has been taken note of by the learned counsel for defendant are absolutely considerable points and that can be taken into account at the time of decision of the matter on merits. The plaintiffs are claiming that, they are entitle for an area measuring 5 Acre 35 Guntas and the defendants are contending that the 5 Guntas is karab land, whereunder the public road is situated. The report submitted by the surveyor as well as the survey conducted through the orders of Tahasildar, Channagiri are disclosing some different aspects of the matter. Therefore, the real state of affairs cannot be inferred from the disputed documents, which are before the court and therefore the fresh survey reports needs to be taken into account for consideration of the matter before this court. The Hon'ble High Court of Karnataka was pleased to held in the recent judgment passed in the matter Sri.Shadaksharappa S/o Veeranna v/s The Commissioner City Municipal Council, Sindhanuru (W.P. No.201274/2022 (GM-CPC)), In the case of encroachment of properties, the appointment of court commissioner is necessary. In view of

¶70

10 -

¶71

NC: 2024:KHC:740 WP No. 485 of 2024

¶72

the factual matrix of the case at hand, the appointment of court commissioner is just necessary. Thus, the point No.1 held in the Affirmative.

¶73

15. Point No.2:- As a result, I proceed to pass the following:

¶74

ORDER

¶75

The I.A.No.VI filed U/O.26 Rule 9 R/w Sec.151 of CPC is hereby allowed.

¶76

Consequently, the surveyor attached to he office of ADLR, Channagiri is hereby appointed as a court commissioner to make a local inspection of suit properties, properties of defendants comprised in Sy.No.60/4P-6, Sy.No.60/4-P5 and Sy.No.60/5 and to report the alleged encroachment if any in the suit schedule ‘B’ property by taking proper recourse of measurements in accordance with the survey manual.

¶77

The commissioner fees is tentatively ixed at Rs.2000/-. The parties are at liberty to file memo of instructions to the commissioner at the spot as well as before the court.

¶78

Issue court commissioner warrant once the commissioner fees is deposited. “

¶79

A perusal of the impugned order will indicate that the same is in conformity with the well settled principles of law governing appointment of Court Commissioner to conduct local inspection as enunciated by this Court in the case of Sri. Shadaksharappa Vs. Kumari Vijayalaxmi & others – 2023(3)

¶80

11 -

¶81

NC: 2024:KHC:740 WP No. 485 of 2024

¶82

KLJ 543, particularly when there was a dispute regarding identity, location, measurements, boundaries, etc., of properties claimed by both sides.

¶83

In view of the aforesaid facts and circumstances, I am of the considered opinion that the impugned order passed by the Trial Court allowing I.A.No.6 and directing appointment of Court Commissioner does not suffer from any illegality or infirmity nor has

¶84

the same occasioned failure of justice warranting interference by this Court in exercise of my jurisdiction under Article 227 of the Constitution of India as held in Radhey Shyam Vs. Chhabi Nath - (2015) 5 SCC 423 case .

¶85

In the result, I pass the following:

¶86

ORDER

¶87

(i) Petition is hereby disposed of without interfering with the impugned order.

¶88

(ii) Liberty is reserved in favour of the parties to submit their respective memos of instructions before the Court Commissioner including parties to file objections, if any, to the Commissioner’s report and examine / cross-examine, if they so desire.

¶89