IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 7TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 31870 OF 2019 (GM-CPC) BETWEEN:
1. MADAMMA, W/O LATE NANJUNDAPPA, AGED 77 YEARS, (SENIOR CITIZEN BENEFIT NOT CLAIMED) 2. MANJAPPA, S/O LATE NANJUNDAPPA, AGED ABOUT 57 YEARS, 3. KAMALAMMA D/O LATE NANJUNDAPPA, AGED ABOUT 43 YEARS, 4. PAVITRA D/O LATE NANJUNDAPPA AGED ABOUT 32 YEARS, ALL ARE AGRICULTURIST, R/O GUNDASAMUDRA VILLAGE, RAMAGIRI HOBLI, HOLALKERE TALUK- 277 526.
5. GANGADHARAPPA, S/O MELAPPA, AGED ABOUT 62 YEARS, AGRICULTURIST, R/O GUNDASAMUDRA VILLAGE, RAMAGIRI HOBLI, HOLALKERE TALUK 577526.
(BY SRI. R SHASHIDHARA, ADVOCATE) AND:
CHANDRAPPA G B S/O BASAPPA, AGED ABOUT 67 YEARS, AGRICULTURIST, … PETITIONERS R/O GUNDASAMUDRA VILLAGE, RAMAGIRI HOBLI, HOLALKERE TALUK 577526 … RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE PRINCIPAL CIVIL JUDGE AND J.M.F.C AT HOLALKERE IN O.S.13/2013 ON IA-X DATED; 10.07.2019 VIDE ANNEXURE-F TO THIS WRIT PETITION.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioners being the plaintiffs in O.S.No.13/2013 are invoking the writ jurisdiction of this Court for assailing the order dated 10.07.2019 a copy whereof is at Annexure-F, whereby learned Principal Civil Judge, Holalkere has rejected their application filed under Order XXVI Rule 9 of CPC, 1908 seeking appointment of a Court Commissioner for measuring the subject property for ascertaining the alleged encroached portion.
2. Having heard the learned counsel for the petitioners and having perused the petition papers, this Court declines to interfere in the matter because there is absolutely no issue as to identity of the subject property. In fact, the respondent defendant at paragraph no.13 of the Written Statement has stated as under:
“ … The plaintiffs are pleaded in their plaint that the defendant have encroached the 30 guntas of land, but the defendant is enjoying the said 30 guntas of land since immemorial time. As such the question of encroachment does not arise at all.”
3. Thus, it is the specific stand of the respondent – defendant that he has been in the occupation of alleged encroached area of the subject property since time immemorial. That being the position, the order of the Court below rejecting the request for appointment of the Court Commissioner cannot be faltered.
In the above circumstances, the writ petition being devoid of merits, stands rejected in limine.
Sd/- JUDGE Bsv