IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.51431 OF 2019 (GM-CPC) BETWEEN:
H.P.MANJUNATH, AGED ABOUT 63 YEARS, S/O PUTTE GOWDA, R/O HANUMANAHALLI VILLAGE, KENJIGE POT, MUDIGERE TALUK – 577 132, CHIKKAMAGALURU DISTRICT.
(BY SRI. CHIDAMBARA.G. S., ADVOCATE) AND:
1 . H.M.CHANDRE GOWDA, AGED ABOUT 79 YEARS, S/O LATE PATEL MANJE GOWDA, HANUMANHALLI VILLAGE, KASABA HOBLI, KENJIGE POST, MUDIGE TALUK – 577 132.
2 . SMT. SABITHA, W/O RAMACHANDRE GOWDA, D/O LATE H.M.RAME GOWDA, AGED ABOUT 43 YEARS, HANUMANAHALLI VILLAGE, KENJIGE POST, MUDIGERE TALUK - 577 132, CHIKKAMAGALURU DISTRICT.
... PETITIONER ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD.8.11.2019 VIDE ANNEXURE-F PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE AND JMFC AT MUDIGERE IN O.S.NO.158/2016 AND PASS APPROPRIATE CONSEQUENTIAL ORDERS; AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the first defendant in a declaration suit in O.S.No.158/2016 is invoking the writ jurisdiction of this Court for assailing the order dated 08.11.2019, a copy whereof is at Annexure-F whereby the learned trial Judge having rejected the Commissioner’s Report, has directed him to submit a fresh Report mentioning the above alleged encroached area in the land in question.
2. Having heard the learned counsel for the petitioner and having perused the petition papers, the impugned order is unassailable inasmuch as, the report in question which the learned counsel for the petitioner graciously made available, does not mention of the alleged encroached area at all;
3. The suit itself has been founded on the allegation of encroachment and therefore, identifying the alleged encroached area facilitates the due adjudication of the same; the contention that it is the third time that the report is rejected does not come to the aid of the petitioner since the exercise expected of the Commissioner was not undertaken on the earlier occasions.
It is needless to mention that the Commissioner shall redo the exercise after following the instructions issued by the parties through medium of Court.
In the above circumstances, this petition being devoid of merits, is rejected in limine.
Sd/- JUDGE DS