IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.18265/2016 (GM-CPC) BETWEEN:
1. DR. HAFEEZUR RAHAMAN S/O. LATE. A. ABDUL AZEEZ, AGED ABOUT 65 YEARS 2. SRI. SHAFEEQUR RAHAMAN S/O. LATE. A. ABDUL AZEEZ, AGED ABOUT 59 YEARS BOTH RESIDENT OF NO. 559, MINA, 2ND MAIN, TEACHERS COLONY, KORMANGALA, BANGALORE - 560 034.
3. SRI. NAJEEBUR, RAHMAN S/O. LATE. A. ABDUL AZEEZ, AGED ABOUT 54 YEARS R/O. AREHALLI VILLAGE, BELUR TALUK, HASSAN DISTRICT – 573 104.
4. MRS. KAMARUNNISA D/O. LATE. A. ABDUL AZEEZ, W/O. LATE. ABDUL GANI, AGED ABOUT 76 YEARS, 5. MRS. FARHATH HAYATH D/O. LATE. A. ABDUL AZEEZ, W/O. LATE. C.R. MOHD HAYATH, AGED ABOUT 57 YEARS, BOTH RESIDENTS OF AREHALLI VILLAGE, BELUR TALUK, HASSAN DISTRICT – 573 101.
PETITIONER NOS.4 & 5 ARE REPRESENTED BY THEIR GENERAL POWER OF ATTORNEY HOLDER SRI. NAJEESBUR RAHAMAN S/O LATE A. ABDUL AZEEZ, AGED ABOUT 51 YEARS, R/O. AREHALLI VILLAGE, BELUR TALUK, HASSAN DISTRICT – 573 101.
6. SRI. SYED AFROZ S/O. LATE. SYED GHOSE, AND LATE. SMT. RAHAMTHUNNISA, AGED ABOUT 52 YEARS, R/O. AREHALLI VILLAGE, BELUR TALUK, HASSAN DISTRICT – 573 101.
7. SRI. SYED SHERAZ S/O. LATE. SYED GHOSE, AND LATE. SMT. RAHAMTHUNNISA, AGED ABOUT 52 YEARS, 8. MRS. SAIRA RAFATH D/O. LATE. SYED GHOSE, AND LATE. SMT. RAHAMTHUNNISA, AGED ABOUT 36 YEARS, BOTH ARE R/O. AREHALLI VILLAGE, BELUR TALUK, HASSAN DISTRICT – 573 101.
PETITIONER NOS.7 & 8 ARE REPRESENTED BY THEIR GPA HOLDER SRI. SYED ARFOZ S/O. LATE SYED GHOUSE, AGED ABOUT 52 YEARS, R/O. AREHALLI VILLAGE, BELUR TALUK, HASSAN DISTRICT – 573 101.
… PETITIONERS (BY SRI S.N. PRASHANTH CHANDRA, ADVOCATE) AND:
1. SMT. S. KUSUMA KUMARI W/O. SRI. S. VENKATESWARLU, AGED ABOUT 53 YEARS, RESIDING AT FLAT NO.201, USHA KIRAN APARTMENT, NO.25, HAUDINE ROAD, ULSOOR, BANGALORE – 560 042.
2. SRI. T V NARAYANAMURTHY S/O. T V VENKATARAMAIAH, AGED ABOUT 44 YEARS, R/O NO.7, 3RD CROSS, SHANKARAURAM, BENGALURU – 560 004.
3. SMT. PARIJAT PRAKASH S/O. P N PRAKASH, AGED MAJOR, R/O. GANAKALLU VILLAGE, BENGALURU SOUTH TALUK, BENGALURU DISTRICT.
4. SMT. RAMAMMA W/O. LATE. SONNE GOWDA, AGED ABOUT 50 YEARS, R/O. GANAKALLU VILLAGE, KENGERI HOBLI, BENGALURU SOUTH TALUK, BANGALORE DISTRICT.
5. SRI. GALICHCUDAPPA S/O. LATE. GALILYAPPA, AGED ABOUT 75 YEARS, R/O. GANAKALLU VILLAGE, KENGERI HOBLI, BENGALURU SOUTH TALUK, BANGALORE DISTRICT.
… RESPONDENTS (BY SRI RAMESH P. KULKARNI, ADVOCATE FOR R1; R2 TO R5 – DELETED V/O DATED 26.04.2016) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 20.02.2016 PASSED BY THE XXIV ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BANGALORE (CCH-6) VIDE ANNEXURE-E IN O.S. NO.9897/2006.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioners who are plaintiffs in O.S.No.9897/2006 have assailed the order passed on I.A.No.4 dated 20.02.2016, whereby the application filed by the second defendant for appointment of Surveyor for the purpose of measurement and identification of property under Order XXVI Rule 9 r/w 151 CPC was allowed.
2. The plaintiffs had filed a suit for declaration and injunction seeking for reliefs as prayed relating to extent of 1 acre 05 guntas of land stated to be portion of Sy.No.3/3, later assigned sub-division number as Sy.No.3/3B, situated at Ganakal village, Kengeri Hobli, Bengaluru South Taluk.
3. The case of the plaintiffs is that father of plaintiff nos.1 to 5 namely Abdul Azeez had purchased portion of property bearing Sy.No.3/3 of Ganakal village under registered Sale Deed dated 07.03.1979. It is the submission of the learned counsel for the petitioners that in the light of interference by the defendants and also in the light of certain sale deeds stated to have been obtained by the defendant nos.1 and 2, various legal proceedings have been instituted and in the light of interference with the plaintiffs rights, the suit came to be filed.
4. The defendants have filed written statement and contended that the second defendant is the owner in possession and enjoyment of the land measuring 0-07 guntas in Sy.No.17/2A of Ganakal village by virtue of sale deed dated 24.11.1994. It is further submitted that the documents through which the defendant is tracing title including the sale deed describes the property as Sy.No.3/3B, though the property that has been sold to the defendants in reality as per the boundaries mentioned in the sale deed is property in Sy.No.17/2A.
5. The learned counsel for the defendants further submits that in light of defence taken by the defendants and in light of the description of property in the Deed of Conveyance executed in her favour as Sy.No.3/3B, in the event the suit is decreed, the plaintiffs would encroach upon the property of the second defendant taking advantage of misdescription of the survey number. Accordingly, it is contended by the learned counsel for respondents that the application filed by the second defendant is indeed the appropriate remedy for the purpose of identification of the property and the court to appreciate the controversy and come to a right conclusion.
6. The learned counsel for respondent no.1/ defendant no.2 has relied on various judgments which is submitted along with the Synopsis as detailed below:-
2005 AIHC 3812 (AIR 2006 NOC 69) (Bom) AIR 1982 KAR 233 2019 (2) AIR Kar R 835 (Para 9 and 11) (2008) 8 SCC 671 (Para 4) LAW (SC) 2000 387 (Para 3 and 4) (1999) 3 Kar LJ 359 (Para 9 and 10) LAWS (KAR) 2009 1121 (Para 10) LAWS (CHH) 2017 631 (Para 2, 3, 4, 13) Relying on the said judgments, it is contended that the application for appointment of Surveyor has been filed after closure of evidence on both sides, which is indeed the appropriate stage, that in the peculiar facts and circumstances of the case, in the light of misdescription of survey number the only remedy that was available to defendants is to file the application for appointment of Commissioner. It is further contended by relying on the judgment reported in N.Swamygowda v. Ramegowda (LAWS (KAR) 2009 1121) that once the trial court has passed an order in exercise of discretion vested with it, this court in exercise of powers under Article 227 of the Constitution of India ought not to interfere with exercise of such discretionary power. It is made clear that there is no dispute as regards the proposition of law laid down in the judgments. However, in light of the case of the plaintiff and the defence of the defendant, the petition is disposed off in light of discussion below.
7. It is clear from the perusal of averments made in the written statement that the second defendant is in fact the owner of property bearing Sy.No.17/2A, that the sale deed executed in her favour describes the property that has been sold as the property bearing Sy.No.3/3B. It also comes out that the boundaries described in the application filed by the second defendant vary with the boundaries of the property as claimed by the plaintiff in the plaint. The prayer sought for in the application is to locate the property of the second defendant.
8. In the light of the case putforth by the plaintiffs and noticing the defence set out by the second defendant, it is clear that the right claimed by the second defendant is with respect to property that is other than the property claimed by the plaintiff. If, indeed, the second defendant is aggrieved by non-identification of her property and by interference of the plaintiff with respect to the property claimed by the second defendant, such a right and remedy is by way of separate proceedings, and the same cannot be made subject matter of present proceedings. In the light of nature of defence taken by the second defendant, appointment of Commissioner to locate the property of the second defendant would be beyond the scope of the enquiry in the pending suit. In the light of the pleadings and averments made in the written statement, the trial court ought not to have entertained the application of the second defendant so as to embark upon an enquiry for locating the second defendant’s property which is not the scope of prayer sought for in the plaint. The apprehension of the second defendant that plaintiffs would misuse the decree to adversely affect the rights of the defendants is also a contention that cannot be accepted to be reason enough for the purpose of appointing the Commissioner. As, such apprehension is a matter that needs to be addressed by way of separate proceedings.
9. Making it clear that the observations made herein are limited for the purpose of disposal of the application and holding that the trial court has exceeded jurisdiction by passing the order allowing application filed by the second defendant, the petition is allowed. The impugned order passed on I.A.No.4 is set aside. In the light of suit being the year 2006, the trial court shall expedite the trial taking note of seniority of other pending proceedings vis-à-vis in the light of Circular on the administrative side and direction to dispose of suits beyond 10 years on priority.
10. Accordingly, the impugned order is set aside.
The trial court to take up the matter on priority and dispose of the same keeping in mind the directions issued on the administrative side as per Circular No.2/2017 dated 28.02.2017.
Np/-
Sd/- JUDGE