D.M. Adarsha Vs D.B. Vijay Kumar

THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO A. TO SET ASIDE THE ORDER DATED 16/04/2025 ON IA.NO.III IN O.S.NO.37/2023 PENDING ON FILE OF THE HONBLE SENIOR CIVIL AND JMFC AL SAKALESHPURA, HASSAN DISTRICT AT ANNEXURE-D AND PLEASED TO ALLOW THE I.A.NO.III AS PRAYED AND ETC.,

¶50

THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

¶51

CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA

¶52

ORAL ORDER

¶53

The petitioners-plaintiffs are before this Court calling in question an order dated 16.04.2025, by which, the concerned Court in O.S.No.37/2023, rejects an application filed by the petitioner-plaintiffs under Order XXVI Rule 9 read with Section 151 of the C.P.C., seeking appointment of a Court Commissioner to identify the suit schedule property.

¶54

Heard Sri. G.V. Narasimha Murthy, learned counsel appearing for the petitioners and have perused the material on record.

¶55

5 -

¶56

NC: 2025:KHC:19126 WP No. 15446 of 2025

¶57

HC-KAR

¶58

3. Facts adumbrated are as follows:-

¶59

The petitioners are the plaintiffs , who have filed a suit for declaration to declare the suit schedule property is a public property and for a perpetual injunction to restrain defendant No.1 from interfering the suit schedule property. A suit comes to be filed as aforesaid against the defendants, seeking the following relief:

¶60

" C. ªÁ¢AiÀÄgÀÄ WÀ£À £ÁåAiÀiÁ®AiÀÄzÀ°è ¥Áæyð¸ÀÄªÀÅzÉÃ£ÉAzÀgÉ zÁªÁªÀ£ÀÄß ªÁ¢AiÀÄgÀÄ PÉÃ½gÀÄªÀ jÃwAiÀÄ°è rQæ ªÀiÁqÀ¨ÉÃPÁVAiÀÄÆ & 1£ÉÃ ¥ÀæwªÁ¢AiÀÄ «gÀÄzÀÞªÁVAiÀÄÆ zÁªÁ C£ÀÄ¸ÀÆa ¸ÀévÀÄÛUÀ¼À£ÀÄß ¸ÁªÀðd¤PÀ G¥ÀAiÉÆÃUÀPÁÌV EgÀÄªÀÅzÀjAzÀ ¸ÀzÀj ¸ÀévÀÄÛUÀ¼À£ÀÄß ¸ÁªÀðd¤PÀ ¸ÀévÉÛAzÀÄ DzsÉÃ²Ã¸À¨ÉÃPÁVAiÀÄÆ ªÀÄvÀÄÛ 1£ÉÃ ¥ÀæwªÁ¢AiÀÄ£ÀÄß ±Á±ÀévÀ ¤¨sÀðAzÀPÁeÁÕzÉÃ±ÀzÀ ªÀÄÆ®PÀ zÁªÁ ¸ÀéwÛUÉ AiÀiÁªÀÅzÉÃ vÀgÀºÀzÀ CrØ DvÀAPÀ, PÀ®ºÀ, vÀPÀgÁgÀÄ ªÀiÁqÀzÀAvÉ ¤¨sÀðA¢¹ DzÉÃ²¸À¨ÉÃPÁVAiÀÄÆ

¶61

D. zÁªÁ ¸ÀéwÛUÉ ¸ÀA§AzÀ¥ÀlÖAvÉ 2jAzÀ 5£ÉÃ ¥ÀæwªÁ¢UÀ½UÉ ¸ÀÆPÀÛ DzÉÃ±ÀzÀ ªÀÄÆ®PÀ ¸ÁªÀðd¤PÀ D¹Û JA§ÄzÁV C£ÀÄ¨sÉÆÃUÀzÀ ªÀÄÆ®PÀ zÀÈrüÃPÀgÀt ªÀiÁqÀÄªÀAvÉ ªÀÄvÀÄÛ ¥ÀºÀtÂ ¥ÀvÀæzÀ°è ¸ÀzÀj G¥ÀAiÉÆÃUÀzÀ §UÉÎ £ÀªÀÄÆ¢¸À¨ÉÃPÁVAiÀÄÆ

¶62

E. EvÀgÀ vÁeÁ ¥ÀjºÁgÀªÀ£ÀÄß 1£ÉÃ ¥ÀæwªÁ¢¬ÄAzÀ ªÁ¢AiÀÄgÀÄ ºÉÆAzÀÄªÀAvÉ ¸ÀÆPÀÛ DzÉÃ±À ªÀiÁqÀ¨ÉÃPÁVAiÀÄÆ"

¶63

In the proceedings, the petitioners-plaintiffs file an application seeking appointment of a Court commissioner by an application filed under Order XXVI Rule 9 read with Section 151 of the CPC. The concerned Court, in terms of its order as aforesaid, rejects the application of the plaintiffs on two

¶64

6 - NC: 2025:KHC:19126 WP No. 15446 of 2025

¶65

HC-KAR

¶66

grounds; one that the suit is at the stage of arguments and there is no confusion with regard to the identification of the property. The concerned Court also notices that the earlier suit with regard to the land in O.S.No.93/1982 was disposed on the basis of a report of a Commissioner that was the suit of third party and that cannot be relied on in the subject suit again to demand that Survey No.136/2, which measures about 4 acres in 14.8 guntas would again become the subject matter of a report by the Commissioner. The concerned Court answers the same as follows:

¶67

"9. The suit is at the stage of arguments. At this stage the present application is filed by the plaintiffs to appoint ADLR as a Court Commissioner to inspect the suit schedule property and to submit the report. The said application is objected by the defendant No.1 on the ground that he is not at all denying the existence structure as mentioned in the suit schedule property but the suit schedule property belongs to the defendant No.1. It is to be seen that the plaintiffs have filed the suit for declaration to declare that the structure as mentioned in the suit schedule property is the public property. It is not in dispute that the land in Sy.No.136/2 is totally measuring 4 acres 14.8 gutnas. As per the plaint schedule the structure mentioned in the suit schedule property is situated in a land measuring 03 guntas of land in Sy.No.136/2. According to the plaintiffs the said structure are used by the villagers from past 70 to 80 years. According to the defendant No.1 the said land belongs to him and he is absolute owner and in possession of the same. Whether the structure are used by the general public of the village from past 70-80 years as contended by the plaintiffs and or whether it is the exclusive

¶68

7 -

¶69

NC: 2025:KHC:19126 WP No. 15446 of 2025

¶70

HC-KAR

¶71

property of the defendant No.1 is a matter to be adjudicated after trial. As contended by the defendant No.1 when he is not denying the existence of the structure as mentioned in the suit schedule property the question of appointing the ADLR, Sakaleshpura as a Court Commissioner to inspect and know the actual facts of the structure of the suit schedule property does not arise. Hence for the above said reasons this court held that the plaintiffs have not made out any reasonable grounds for appointing ADLR as a Court Commissioner and to submit the report. Hence for the above said reasons this court answered point No.1 in the Negative

¶72

POINT No.2:

¶73

For the reasons mentioned at point No.1, this court proceed to pass the following:

¶74

ORDER

¶75

I.A.No.III filed by the plaintiffs U/O XXVI Rule 9 R/W Section 151 of CPC is hereby dismissed."

¶76

In the light of the Court not entertaining any doubt

¶77

about the existence of the property in Survey No.136/2 with regard to 3 1/2 of guntas of land, where the plaintiffs are said

¶78

to have constructed a shed and that being not denied by the defendants, there was no warrant for the concerned Court to appoint a Commissioner, as sought for by the petitioners.

¶79