Allowed

Vijaykumar v. Sufia Khanam

Karnataka HC21 Mar 2024WP/52341/2017

Case brief

AI extract

What is this about?

Plaintiff in a property identification dispute challenged rejection of his plaint-amendment and Commissioner applications. High Court held amendment disclosed a material fact and identification required physical measurement; allowed both applications with costs and directed expeditious disposal.

What did the court decide?

Amendment application allowed on Rs.5,000 cost to defendant No.1; Commissioner (Engineer from City Municipality, Tumakuru) directed to measure and identify sites 64-67; suit disposal expedited within

Vijaykumar Vs Sufia Khanam — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:11728 WP No. 52341 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 52341 OF 2017 (GM-CPC)

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BETWEEN:

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VIJAYKUMAR S/O. G. RANGAPPA, AGED ABOUT 57 YEARS, R/O. VEERASAGARA, TUMAKURU-572 101.

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…PETITIONER

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(BY SRI. UMESH MOOLIMANI, ADVOCATE FOR SRI. S.V. PRAKASH, ADVOCATE)

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AND:

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SUFIA KHANAM W/O. AMEERSAB, AGED ABOUT 71 YEARS, R/O. NO.21, L.T.G. ROAD, 2^ND CROSS, KHB COLONY, JAIPURA EXTENSION, TUMAKURU-572 101.

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Digitally signed by BS RAVIKUMAR Location: HIGH COURT OF KARNATAKA

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IQBAL AHMED FATHERS NAME NOT KNOWN, AGED MAJOR, R/O. VEERASAGARA, TUMAKURU-572 101.

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…RESPONDENTS

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(BY SRI. SYED SUHAIL ALI, ADVOCATE FOR RESPONDENT NO.1; COPY SERVED TO SRI. MOHAMMED, ADVOCATE FOR RESPONDENT NO.2 WHO APPEARED BEFORE TRIAL COURT (VK NOT FILED);

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VIDE ORDER DATED 11.03.2024 SERVICE OF NOTICE TO RESPONDENT NO.2 IS HELD SUFFICIENT; NOTICE SERVED ON RESPONDENT NO.2)

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2 - NC: 2024:KHC:11728 WP No. 52341 of 2017

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 31.08.2017 PASSED BY THE COURT OF PRINCIPAL CIVIL JUDGE, TUMAKURU REJECTING THE APPLICATION SEEKING AMENDMENT OF THE PLAINT PRODUCED AS PER ANNEXURE-H TO THE W.P. AND ALSO THE ORDER DATED 02.11.2017 PASSED BY COURT OF PRINCIPAL CIVIL JUDGE, TUMAKURU ON IA NO.11 SEEKING APPOINTMENT OF COURT COMMISSIONER IN O.S.NO.16/2008 PRODUCED AS PER ANNEXURE-L TO THE WRIT PETITION AND ETC.

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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 plaintiff in O.S.No.16/2008 on the file of the Principal Civil Judge and JMFC - I, Tumakuru has filed this petition challenging the rejection of the application filed by him under Order VI Rule 17 of Civil Procedure Code vide order dated 31.08.2017 as well as an application filed by him under Order XXVI Rule 9 read with Section 151 of Civil Procedure Code vide order dated 02.11.2017.

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The suit in O.S.No.16/2008 was filed for declaration that the plaintiff is the owner of the suit site No.64 and for perpetual injunction.

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NC: 2024:KHC:11728 WP No. 52341 of 2017

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The plaintiff claimed that the owner of the land in Sy.No.35 of Veerasagara village, Tumakuru had formed a layout of 67 residential sites of which site Nos.60- 67 lay in one line and between two roads that ran east to west. He claimed that he was allotted site bearing No.64 and on the northern side of the said site, lay site bearing No.65. He claimed that site No.65 was purchased by defendant No.1 on 30.09.1991 and site No.66 lay on the northern side of the site purchased by the defendant No.1 which purportedly was purchased by the defendant No.2. He claimed that site No.66 was occupied by some strangers and therefore, the purchaser of site No.66 put up a structure in site No.65. The defendant No.1 who had purchased site No.65 was now trying to locate his property in site No.64 which belonged to the plaintiff. He therefore, sought for the aforesaid reliefs.

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The defendant No.1 contested the suit and admitted that he had purchased site No.65 and that the said site was vacant till date. He also claimed that since the plaintiff was disturbing his possession in site No.65 he filed a suit in O.S.No.218/2004 for perpetual injunction. He claimed that he

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NC: 2024:KHC:11728 WP No. 52341 of 2017

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did not interfere with the possession of the plaintiff in site No.64.

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With these contentions, the suit was set down for

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trial and after the trial was concluded and the case was posted for arguments, the plaintiff filed a belated application to amend the plaint to contend that the property on the northern side of the defendant No.1 was not purchased by the defendant No.2 but was purchased by Rounakh Pasha and Erashad Pasha s/o. Abdul Khader. However, he did not seek for any relief either against Rounakh Pasha and Erashad Pasha, as according to him, the said Rounakh Pasha and Erashad Pasha were the owners of the site bearing No.66. Along with his application, the plaintiff filed another application under Order XXVI Rule 9 of Civil Procedure Code for measurement and identification of the property bearing sites Nos.64 to 67. Both these applications were rejected by the Trial Court in terms of the orders dated 31.08.2017 and 02.11.2017.

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Being aggrieved by the impugned orders, the plaintiff has filed this petition.

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NC: 2024:KHC:11728 WP No. 52341 of 2017

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The learned counsel for the petitioner submitted that the petitioner does not intend to change the nature of the suit or the cause of action and does not intend to implead any other party to the suit but all that he intended to do was to explain that on the northern side of the property of site No.65 lay site No.66 which was purchased by Rounakh Pasha and Erashad Pasha and not the defendant No.2. He submits that this was only to amplify and add clarity to the pleadings and by allowing the application for amendment, no fresh issue would arise and he also undertook that the plaintiff would not lead any further evidence. In so far as the application for appointment of Commissioner is concerned, he submitted that the dispute in question is whether the defendant No.1 is trying to locate his site No.65 in the property of the plaintiff bearing site No.64. He submits that since both the plaintiff and defendant No.1 are owners of site Nos.64 and 65, the only way to ascertain this by appointing a Court Commissioner for measurement of the property to identify the site bearing Nos.64 and 65. He therefore, submits that the Trial Court ought to have allowed the applications.

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NC: 2024:KHC:11728 WP No. 52341 of 2017

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Per contra, the learned counsel for the defendant No.1 submits that the application filed for amendment is filed at a very belated stage and that too when the suit was set down for arguments. He submitted that the plaintiff was not diligent in pursuing the suit and therefore cannot be permitted to file such an application belatedly and allowing such application would result in further procrastination in the suit. He contended that the defendant No.1 is not laying any claim to site bearing No.64 but the defendant No.1 is only interested in site bearing No.65. He submits that since the title of the plaintiff can be established by documents, he cannot fish evidence through a Commissioner.

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I have considered the submissions made by the learned counsel for the petitioner and learned counsel for the respondent No.1

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As rightly contended by the learned counsel for the defendant No.1, the application filed by the plaintiff was highly belated, in as much as, the plaintiff woke up from slumber to introduce additional pleadings, after the suit was set down for arguments. However, a perusal of the plaint and written

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NC: 2024:KHC:11728 WP No. 52341 of 2017

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statement goes to show that the plaintiff is not laying any claim to site No.65 and at the same time, the defendant No.1 is not laying any claim to site No.64. Therefore, the dispute is regarding the identity of site Nos.64 and 65.

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The plaintiff claimed that the owner of site No.66 had constructed a building in site No.65 and the defendant no.1 being the owner of site No.65 was trying to interfere with the possession of the plaintiff in site No.64. Therefore, the plea that the northern boundary of site No.65 was purchased by Rounakh Pasha and Erashad Pasha, was a material fact for the adjudication of the dispute between the parties.

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The Trial Court instead of rejecting the application, for amendment of plaint, must have permitted the amendment by putting the plaintiff on terms. Therefore, the impugned order passed by the Trial Court rejecting the application filed by the plaintiff under Order VI Rule 17 of Civil Procedure Code deserves to be interfered with.

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In so far as rejection of the application filed by the plaintiff under Order XXVI Rule 9 of Civil Procedure Code, the trial of the suit is concluded and after such conclusion, the

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plaintiff has filed an application for appointment of a Court Commissioner to measure and identify site Nos.64, 65, 66 and 67.

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As rightly contended by the learned counsel for the plaintiff, the plaintiff claimed title in respect of site No.64 and the defendant No.1 claimed title in respect of site No.65. Therefore, the question which falls for consideration before the Trial Court is whether the property claimed by the plaintiff and the defendant No.1 is site No.64 or 65. This can only be ascertained by a physical measurement and identification of all the sites bearing Nos.60 to 67 and any amount of oral and documentary evidence cannot help in arriving at a conclusion that the property claimed by the plaintiff is either site No.64 or 65. After perusing the rough hand sketch which is attached to plaint, it is not impossible to identify the limits of site Nos.64, 65, 66 and 67 as claimed by the parties.

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In that view of the matter, the best way to determine this fact is to get the property measured and identified by a Commissioner. In that view of the matter, the impugned order passed by the Trial Court rejecting the

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9 - NC: 2024:KHC:11728 WP No. 52341 of 2017

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application filed by the plaintiff under Order XXVI Rule 9 of Civil Procedure Code also warrants interference.

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Hence, this petition is allowed . The application filed by the plaintiff under Order VI Rule 17 of Civil Procedure Code is allowed subject to payment of cost of Rs.5,000/payable by the plaintiff to the defendant No.1 before the Trial Court on the next date of hearing. The Trial Court shall not permit the plaintiff to lead any further evidence on the amended plaint. However, it will be open for the defendants to file an additional written statement if they are so advised. The Court may however permit the parties to adduce evidence, if any new issue arises for consideration after the defendants file their written statement.

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Similarly the application filed under Order XXVI Rule

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9 read with Section 151 of Civil Procedure Code filed by the plaintiff is allowed. The Trial Court is directed to appoint any Engineer from City Municipality, Tumakuru as a Commissioner to visit property and identify the site bearing Nos.64, 65, 66 and 67 in Sy.No.35 of Veerasagara Village, Tumakuru after identifying site Nos.60 to 67.

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10 -

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NC: 2024:KHC:11728 WP No. 52341 of 2017

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Since the suit was filed in the year 2008, the Trial

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Court is requested to dispose off the suit at the earliest, which shall however be not later than three months from the date of receipt of a copy of the report of the Commissioner.

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Sd/JUDGE

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List No.: 1 Sl No.: 24

Vijaykumar v. Sufia Khanam

Case brief

What is this about?

What did the court decide?

Vijaykumar v. Sufia Khanam

Case brief

What is this about?

What did the court decide?

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