IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 2ND DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.49669/2017 (GM-CPC) BETWEEN:
BASAVARAJAPPA, SON OF LATE NAGAPPA, AGED ABOUT 52 YEARS, AGRICULTURISTS, RESIDENT OF SATHYANARAYANA CAMP, KUNDUWADA POST, DAVANAGERE TALUK-577 002.
… PETITIONER (BY SRI. VASANTH MADHAV.S, ADVOCATE) AND 1. B.MALATHESHA SON OF MARATHANADAPPA, AGED ABOUT 55 YEARS, COOLIE RESIDENT OF BADA ROAD, SANTHEBENNUR-577 552, CHANNAGIRI TALUK.
2. B M DEVENDRAPPA SON OF MARTHANDAPPA, COOLIE RESIDENT OF BEHIND ANJANEYA TEMPLE, SANTHEBENNUR-577 552.
CHANNAGIRI TALUK.
3. B.M.SURESH KUMAR, SON OF MARTHANDAPPA, AGED 49 YEARS, COOLIE, 2ND CROSS, CHOWDESHWARI COLONY, TARIKERE-577 549.
CHICKMAGALUR DISTRICT.
4. RAJAPPA SONOF YELUHUNI KRISHNAPPA, AGED 57 YEARS, AGRICULTURE, RESIDENT OF UPPARA BEEDI, SANTHEBENNUR-577 552, CHANNAGIRI TALUK.
5. PURUSHOTTAM SON OF RAJAPPA, PUC STUDENT, AGED 35 YEARS, RESIDENT OF UPPARA BEEDI, SATHEBENNUR-577 552, CHANNAGIRI TALUK.
6. SMT. YELLAMMA, WIFE OF LATE NAGAPPA, AGED 73 YEARS, HOUSE HOLD, 7. SMT. RATHNAMMA WIFE OF RAMANNA, AGED ABOUT 53 YEARS, HOUSE HOLD, NO.6 AND 7 ARE RESIDENTS OF SATHYANARAYANA CAMP, KUNDUWADA POST, DAVANAGERE-577 502.
8. SMT. SAROJAMMA WIFE OF LATE CHANDRAPPA, AGED ABOUT 49 YEARS, HOUSE HOLD, BALESHWARA VILLAGE, HONNALI TALUK-577 217.
9. SMT. KAMALAMMA WIFE OF SHEKHARAPPA, AGED 55 YEARS, CARE OF SHEKARAPPA, GRAMA SEVAKA, HOSADURGA-577 527.
… RESPONDENTS (BY SRI. T.I. ABDULLA, ADVOCATE FOR R1 TO R5; R7 & R9 – NOTICE DISPENSED;
R6-ABATED; R8 – SERVICE HELD SUFFICIENT) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER ON I.A.I PASSED BY THE I-ADDL. SR. CIVIL JUDGE AND JMFC AT DAVANAGERE IN FDP NO.8/2016 AT ANNEXURE-B DATED 12.7.2017.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER The petitioner being the plaintiff in O.S.No.126/2014 and being the 3rd respondent in the FDP No.8/2016 is knocking at the doors of this Writ Court for assailing the order dated 12.07.2017, a copy whereof is at Annexure-A, whereby the learned I Additional Senior Civil Judge, Davanagere having favoured plaintiff’s I.A.1 filed under Order XXVI Rule 9 of CPC has appointed Taluk surveyor as the Commissioner to measure suit schedule property and apportion the same in terms of the judgment & decree in O.S.No.126/2014. The respondents having entered appearance through their counsel, resist the Writ Petition.
2. Having heard learned counsel for the parties and having perused the Petition Papers, this Writ Petition is entitled to succeed in part, for the following reasons:
a. although it was open to the Court below to make appointment of the Commissioner to measure the Suit Schedule Property, it could not have authorized the Commissioner to effect division of the properties by directing apportionment himself;
b. the justice of the case requires that the appointment of the Commissioner for measuring the subject property has to be sustained; the Commissioner after accomplishing the task with the participation of the parties, shall file the report with the Court below in the subject FDP No.8/2016 which would enable the Court to consider the same after hearing both the stakeholders.
In the above circumstances, the Writ Petition succeeds in part; the portion of the impugned order which directs the Commissioner to effect apportionment of the subject property having been invalidated, the remaining portion has been left intact.
No costs.
Sd/- JUDGE DS