IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA Writ Petition No. 34114 OF 2017 (S-RES) Between:
Smt. Gangamma, W/o. late K. Sripathy, Aged about 28 years, R/at No.18, 1st Cross, Nelagadaranahalli Village, Nagasandra Post, Bangalore – 560 071.
(By Smt. Manjula P.V., Advocate) And:
... Petitioner 1. Aswathnarayana M., S/o. T. Munirangaiah, Aged about 53 years, Address – No.152/1, Old Masid Road, T.Dasarahalli, Bangalore – 560 057.
2. Karaveerappa J.C., S/o. late Chandrashekar, Aged about 35 years, Address – No.10, 2nd Main Road, Cholarapalyamallige Thota, Bangalore – 560 027.
3. Nagaraj, S/o. Appajigowda, Major, R/at No.304, Gruhalakshmi Apartments, S.M. Road, T. Dasarahalli, Bangalore – 560 015.
4. The Commissioner, BBMP, N.R. Square, J.C. Road, Bangalore – 560 002.
5. The Joint Commissioner BBMP, T. Dasarahalli, M.E.I. Layout, Hesaragata Main Road, T. Dasarahalli Zone, Bangalore – 02.
… Respondents (By Sri Nithish, Adv. for Sri K.V.Narasimhan for R1) This Writ Petition is filed under Article 227 of the Constitution of India, praying to call for the records in O.S.No.9377/2017 on the file of LII Addl. City Civil and Sessions Judge, Bangalore, set aside the orders passed by the learned on I.A.19 by its order dated 12.07.2017 in O.S.No.9377/2017 at Annexure-A passed by LII Addl. City Civil and Sessions Judge, Bengaluru.
This Petition coming on for Preliminary Hearing this day, the court made the following:
O R D E R The defendant No.5 filed the present writ petition against the order dated 12.07.2017 on I.A.No.19 made in O.S.No.9377/2007 at Annexure-A on the file of the LII Addl. City Civil & Sessions Judge, Bengaluru rejecting the application filed under Order 26 Rule 9 R/w Section 151 of Code of Civil Procedure for appointment of Court Commissioner.
2. The respondent No.1 who is the plaintiff in O.S.No.9377/2007 has filed the suit for declaration of title, permanent injunction and mandatory injunction in respect of the suit schedule properties, morefully described as A, B and C schedule properties and contended that he is the owner in possession of the suit schedule properties and the defendants have no right, title and interest over the suit property. He is the owner of Schedule A and B property and the suit schedule property is a road attached to schedule A and B property. Therefore, the plaintiff sought decreeing the suit by granting permanent and mandatory injunction restraining the defendants from causing interference and further contended that the defendants have no right, title and interest over the suit schedule property.
3. The defendant No.5 filed written statement denying the possession of the plaintiff over the suit properties and contended that he is the owner of the suit schedule properties and the plaintiff has no right, title and interest over the suit properties and sought for dismissal of the suit.
4. After completion of cross-examination of PW-1, the defendant No.5 has filed an application under Order 26 Rule 9 R/w Section 151 of CPC for appointment of Court Commissioner to make local inspection as per the memo of instruction and file his report contending that the suit filed by the plaintiff for declaration of title and injunction is not maintainable and the plaintiff in his plaint as well as in his deposition has pleaded the facts which are factually false and incorrect. Further during cross- examination of plaintiff/PW-1, he has given contradictory answer. Therefore it is necessary to appoint Court Commissioner to verify the factual aspects and boundaries to the suit schedule properties for which the plaintiff has stated no objection during his cross-examination.
5. The plaintiff has filed objection to I.A.No.19 filed by defendant No.5 reiterating the plaint averments and has denied the entire averments and contended that the present application filed by the respondent No.5 for appointment of Court Commissioner for collection of evidence is beyond the scope of Order 26 Rule 9 of the Code of Civil Procedure and same is liable to be dismissed and further contended that it is for the plaintiff to prove the facts and issues framed. If the plaintiff fails to prove those facts and issues framed there under and is bound to fail, there is no burden on the defendant No.5 to prove any issues. Therefore, the application is filed as an afterthought with an intention to protract the proceedings. Hence, sought for dismissal of the application.
6. The trial court considering the entire material on record, by the impugned order dated 12.07.2017, rejected I.A.No.19 filed by the defendant No.5 and directed both the parties to co-operate for the disposal of the suit and posted the matter on 14.07.2017 for defendant’s evidence. Hence, the present writ petition.
7. I have heard the learned counsel for the parties to lis.
8. Smt. Manjula P.V., learned counsel appearing for the petitioner vehemently contended that the impugned order passed by the trial Court rejecting the application for appointment of Court Commissioner is erroneous and contrary to law. She further contended that the trial court ought to have noticed that the defendant No.5/petitioner who is the owner in possession and enjoyment of the suit schedule properties filed the application for appointment of Court Commissioner which is the only way to ascertain the real controversy, but the Court below, without reading the application, has blindly dismissed the said application. She further contended that the impugned order passed by the trial court is contrary to material on record. The trial court disbelieved the statement made by the plaintiff in his cross-examination. Therefore, she sought to quash the impugned order passed by the trial court and allow the present writ petition.
9. Per contra, Sri Nithish, learned counsel for Sri K.V. Narasimhan, learned counsel for respondent No.1/plaintiff sought to justify the impugned order and contended that the suit is filed by the plaintiff/respondent No.1 for declaration of title and permanent injunction. On the basis of the pleadings, the trial court has framed the issues casting the burden of proving the title on the plaintiff and there is no issue against defendant No.5. The present application filed by defendant No.5 for appointment of Court Commissioner to make local inspection is not maintainable and liable to be dismissed. He further contended that appointment of Court Commissioner is totally irrelevant for the purpose of deciding the issues framed in the suit. The plaintiff’s side evidence is completed, now in the midst of defendant’s evidence, the application is filed which is premature and liable to be dismissed. Therefore, he sought to justify the impugned order.
10. Having heard the learned counsel for the parties, it is not in dispute that the respondent No.1 who is the plaintiff in O.S.No.9377/2007 before the trial court, has filed the suit for declaration of title, permanent injunction and mandatory injunction restraining the defendants and their agents claiming under them from putting up any construction on ‘C’ Schedule Road and contended that he is the owner of A and B schedule properties which is the road attached to his property morefully described as A and B schedule properties. Same is disputed by defendant No.1 and 2 by filing their written statement contending that the suit schedule properties belong to them and the plaintiff has no right, title and interest over the suit properties. Defendant No.5, in his written statement, contended that at the time of filing of the suit, defendant No.1 was the owner of the suit properties and later he purchased the property from defendant No.1 through a sale deed dated 21.08.2009 and now the suit properties absolutely belong to him. All these factual aspects have to be adjudicated by the trial court based on the oral and documentary evidence after recording the same.
11. It is also not in dispute that when the matter was posted for cross-examination of PW1, at that stage, the present application was filed for appointment of Court Commissioner under Order 26 Rule 9 R/w Section 151 of CPC for local inspection and to verify the boundaries of the suit schedule properties. Except stating in the deposition that the plaintiff has no objection, there is no contradictory statement by the plaintiff. Admittedly, the respondent No.5/petitioner has not filed any counter claim in that suit. It is for the plaintiff to prove his case based on the oral and documentary evidence on record as rightly contended by the respondent No.1/petitioner in his objection to I.A.No.19. The trial court, based on the pleadings of the parties, has framed the issues putting burden on the plaintiff to prove his title to establish his case. There is no issue/burden on the defendant No.5 and admittedly the defendant No.5 except stating that the suit schedule properties belongs to him, has not filed any counter claim. Therefore, the trial court is justified in rejecting the application.
12. It is also not in dispute that the evidence is not yet completed. When the matter was posted for cross-examination of PW-1, the application was filed. The trial court considering the entire material on record, including the nature of suit which is for declaration and mandatory injunction, inspite of PW-1 who, during his cross-examination when a suggestion was put to him whether Court Commissioner can be appointed, for which he had no objection, by looking to the nature of the suit and also considering the fact that this is one of the oldest matter of the year 2007 and now the matter is posted for defendant’s evidence including the evidence of defendant No.5, the trial court was of the considered opinion that appointment of Commissioner as sought for by the defendant No.5 is not necessary in the given case on hand. Merely because PW-1 has stated in his cross-examination that Commissioner can be appointed, it does not mean that Court is bound to allow the application filed by the defendant No.5 and accordingly, the application came to be dismissed.
13. In view of the above, the impugned order passed by the trial court is just and proper and the petitioner has not made out any prima facie case to interfere with the finding of fact arrived at by the Court below exercising the powers under Article 227 of the Constitution of India.
Accordingly, writ petition is dismissed.
Sd/- JUDGE PN/-