IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 4TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 20661 OF 2017 (GM-CPC) BETWEEN:
1. CHINNAPPA S/O CHIKKABBAIAH AGED ABOUT 68 YEARS, R/O YETTAKODI VILLAGE, MALUR TALUK, KOLAR DISTRICT-563137. SINCE DECEASED BY HIS LRS.
1(A)SMT PARVATHAMMA, D/O. LATE CHINNAPPA, AGED ABOUT 55 YEARS, R/AT KORNUR VILLAGE, HOSUR TALUK, KRISHNAGIRI DISTRICT, TAMILU NADU STATE.
1(B)SMT. GEETHAMMA D/O. LATE CHINNAPPA, AGED ABOUT 53 YEARS, R/AT KALAKUNDARAHALLI VILLAGE, HOSUR TALUK, KRISHNAGIRI DISTRICT, TAMILU NADU STATE.
1(C)SRI ANJINAPPA S/O. LATE CHINNAPPA, AGED ABOUT 48 YEARS, R/O. YETTKODI VILLAGE, LAKKUR HOBLI, MALUK TALUK, KOLAR DISTRICT.
1(D)SMT AMMAYAMMA D/O. LATE CHINNAPPA, W/O.VENKATESHAPPA, R/O. NARAYANAKERE VILLAGE ANUGONDAHALLI HOBLI, HOSAKOTE TALUK, BANGALORE RURAL DISTRICT.
1(E)SRI LOKESH S/O. LATE CHINNAPPA, AGED ABOUT 43 YEARS, R/O. YETTKODI VILLAGE, LAKKUR HOBLI, MALUK TALUK, KOLAR DISTRICT.
1(F)SRI HANUMANTHAPPA S/O. LATE CHINNAPPA, AGED ABOUT 41 YEARS, R/O. YETTKODI VILLAGE, LAKKUR HOBLI, MALUK TALUK, KOLAR DISTRICT.
1(G)SMT AMBIKA @ AMARAVATHI S/O. LATE CHINNAPPA, W/O MANIRAJU, AGED ABOUT 40 YEARS, R/O. SHETTAHALLI VILLAGE, ANEKAL TALUK-562106, BANGALORE RURAL DISTRICT.
1(H)SRI MUNIRAJU S/O. LATE CHINNAPPA, AGED ABOUT 38 YEARS, R/O. YETTKODI VILLAGE, LAKKUR HOBLI, MALUK TALUK, KOLAR DISTRICT.
… PETITIONERS (BY SRI. VIGHNESHWAR S SHASTRI, ADVOCATE) AND:
1. SRI VENKATESHAPPA S/O CHOODAPPA, AGED ABOUT 53 YEARS, R/O YETTAKODI VILLAGE, MALUR TALUK, KOLAR DISTRICT-563137 2. SMT. VENKATAMMA W/O VENKATESHAPPA AGED ABOUT 48 YEARS, R/O YETTAKODI VILLAGE, MALUR TALUK, KOLAR DISTRICT-563137 3. SRI. KRISHNAPPA S/O VENKATESHAPPA AGED ABOUT 43 YEARS, R/O YETTAKODI VILLAGE, MALUR TALUK, KOLAR DISTRICT-563137 4. SMT. ALUMELAMMA W/O LT VENKATESHAPPA AGED ABOUT 43 YEARS, R/O YETTAKODI VILLAGE, MALUR TALUK, KOLAR DISTRICT-563137 … RESPONDENTS (BY SRI. RAMAKRISHNA HEGDE, ADVOCATE FOR SRI. VEERANNA G TIGADI, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 17.04.2017 PASSED ON I.A.XIII IN O.S.444/2008 ON THE FILE OF I ADDL. CIVIL JUDGE AND JMFC AT MALUR AT ANNEX-G.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER The petitioners being the plaintiffs in a declaration suit in O.S. No. 444/2008 is invoking the writ jurisdiction of this Court for assailing the order dated 17.04.2017, a copy whereof is at Annexure-G whereby the First Additional Civil Judge, Maluru, has rejected their application in IA No.13 filed under Order XXVI Rule 9 of CPC, 1908, for seeking appointment of the Court Commissioner. After service of notice, the respondent – defendants having entered appearance through their counsel, resist the writ petition.
2. Having heard the learned counsel for the parties and having perused the petition papers, relief needs to be granted to the petitioner because:
a) admittedly, there is a dispute as to the location of the subject property; inasmuch as one side is saying it is in Grama Thana and the other side is asserting that it is in revenue land; such a dispute can better be adjudged with the aid of the Commissioner who will have expertise in the matter; and, b) the appointment of Commissioner would facilitate due adjudication of the issue relating to the location of the property; the said appointment per se does not cause any prejudice to any of the parties; the contention that there is no warrant for appointment of Commissioner is preposterous when the stand of the contenders is in variance.
In the above circumstances, this writ petition having been favoured, the impugned order is set at naught; petitioners’ application in IA No.13 is allowed and the Court below is directed to appoint an experienced surveyor attached to the Office of the jurisdictional Tahshildar as the Commissioner for accomplishing the task subject to the petitioner bearing the cost. All contentions of the parties are kept open.
No costs.
Sd/- JUDGE Bsv