Sri.Basava Aradhya Vs Sri.Channabasavadevaru

THIS W.P. IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 18.03.2021 PASSED BY THE LEARNED PRINCIPAL CIVIL JUDGE AND JMFC, KOLAR ON I.A.NO.VIII IN O.S.NO.478/2010 PRODUCED AT ANNEXURE-E AND ALLOW THIS WRIT PETITION WITH COSTS & ETC.

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

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL ORDER

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This petition is filed challenging the order dated

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18.03.2021 passed on I.A.No.8 in O.S.No.478/2010 by the

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Principal Civil Judge & JMFC, Kolar, (for short, 'the trial

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Court' )

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Sri.A.Madhusudhana Rao, learned counsel for

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the petitioners submits that petitioners-plaintiffs have filed a suit in O.S.No.478/2010 for permanent injunction against the respondent-defendant and after the trial, the plaintiffs filed an application seeking for appointment of Court Commissioner to measure the suit schedule property, which came to be rejected by the trial Court solely on the ground that the defendant in the written

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statement has taken a specific stand that there is no such property that exists. It is submitted that if the property is not in existence, then the Court Commissioner would give appropriate report. It is further submitted that it is the case of the plaintiffs before the trial Court that the total extent in Sy.No.35 is 2 acre 17 guntas and the father of the plaintiffs has purchased 10 guntas which is shown as suit schedule property and it is the specific case of the plaintiffs that in the same survey number, the defendant owns 23 guntas of the land, which is towards the western side of the suit schedule property. Hence, it is necessary for the trial Court to appoint a Court Commissioner to measure and find out the suit schedule property and the report of the Court Commissioner would aid the trial Court in granting or refusing to grant the relief sought in the plaint. Hence, he seeks to allow the petition.

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Per contra, Sri.Umesh B.N., learned counsel appearing for the respondent-defendant supports the impugned order of the trial Court and submits that the

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defendant has taken a specific stand in the written statement that the father of the plaintiffs and the father of the defendant got property divided way back in the year 1999 and in the said partition no share is allotted to the father of the plaintiffs in Sy.No.35. Hence, claiming any right over 10 guntas in the suit schedule property would not arise. It is submitted that as per the partition, 23 guntas of the land has fallen to the share of the defendant and remaining extent is already sold by the family prior to the partition. Hence, there is no existence of the property claimed in the suit. Therefore, question of appointing the Court Commissioner to measure the property would not arise. Hence, he seeks to dismiss the petition.

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I have heard the arguments of the learned

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counsel appearing on both the sides and perused the material available on record.

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It is to be noticed that the petitioners, who are the plaintiffs, filed a suit against the defendant for

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permanent injunction making a specific assertion in the plaint that the suit schedule property measuring 10 guntas in Sy.No.35 was purchased by the father of the plaintiffs under the registered sale deed dated 16.11.1961 and based on such registered sale deed of the properties, the name of the father of the plaintiffs was mutated as per MR No.60/1961-62 and thereafter the father of the plaintiffs was in possession and after the demise of their father, they continued with the possession and the respondentdefendant is interfering with the possession of the suit schedule property. After adducing the evidence, the plaintiff filed an application under Order XXVI Rule 9 and 10 read with Section 151 of CPC praying to appoint ADLR or Taluk Surveyor as a Court Commissioner to measure and fix the boundary and to prepare actual sketch. After considering the arguments on both the sides, the trial Court rejected the said application mainly on the ground that the issue is with regard to the existence of the suit schedule property in question and the appointment of the

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HC-KAR

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Court Commissioner for local inspection would not arise unless the plaintiffs prove that the suit schedule property exists. In my considered view the trial Court committed a grave error.

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The plaintiffs are seeking to appoint the Court Commissioner to measure the property i.e., property measuring 10 guntas in Sy.No.35. The plaint averment and the suit schedule property indicate that the total extent in the said survey number is 2 acres 17 guntas and out of the said extent, the plaintiffs are claiming right over 10 guntas of the land. Though the defendant, in the written statement, has categorically denied the existence of the said property in the Survey No.35 by stating that there was a partition amongst the plaintiffs and the father of the defendant and in the said partition no share was allotted to the plaintiffs in Sy.No.35. What is required to be noticed in the present dispute is that if the property is not existing as claimed by the defendant, definitely the Court Commissioner would give a report to that effect

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before the trial Court. The attempt of the petitionersplaintiffs before the trial Court is to measure the property measuring 10 guntas in Sy.No.35 out of 2 acres of 17 guntas cannot be denied only based on the averments in the written statement.

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It is always open for the defendant to place the

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material before the Court Commissioner to substantiate the fact that there is no allotment of share in favour of the plaintiffs in the said survey number and the remaining extent is sold by the family members to third parties and that the Court Commissioner would give appropriate report before the trial Court. In my considered view the objection raised by the defendant cannot be the basis to reject the application for appointment of the Court Commissioner. The Court Commissioner is required to measure the schedule property and if necessary can measure total extent of the Sy.No.35 and submit the report. The report should also contain whether such property exists or not and such a finding of the Court

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Commissioner would aid the trial Court in deciding the

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pending suit.

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For the aforementioned reasons, I proceed to

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pass the following:

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ORDER

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i. Petition is allowed.

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ii. The impugned order dated 18.03.2021 passed on I.A.No.8 in O.S.No.478/2010 by the Principal Civil Judge & JMFC, Kolar, is hereby set aside.

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iii. Consequently, I.A.No.8 filed by the plaintiffs under Order XXVI Rule 9 and 10 read with Section 151 of CPC is allowed. The trial Court is directed to appoint the Court Commissioner as sought in the said application.

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