IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.568/2019 (GM-CPC) Between:
1. K.B.Dayananda, S/o. K.B.Bakkappa, Aged about 58 years, 2. K.B.Sadananda, S/o. K.B.Bakkappa, Aged about 51 years, 3. K.B.Vijayananda, S/o. K.B.Bakkappa, Aged about 48 years, 4. K.B.Bakkesh, S/o. K.B.Shivaraj, Aged about 24 years, 5. K.B.Purnima, D/o. K.B.Shivaraj, Aged about 29 years, 6. Smt.Nagarathnamma, W/o. K.B.Shivaraj, Aged about 55 years, All are residents of: K.B.Dayananda, S/o. Late K.B.Bakkappa, No.3479/33, 2nd Cross, Chigateri Layout, Behind Sapthagiri School, Davangere-577 004. ... Petitioners (By Sri.K.Sreedhar, Adv.,) And:
1. Smt.T.Susheela, W/o.B.T.Thippeswamy, Aged about 81 years, 2. G.O.Jayasheela, W/o.G.M.Omkarappa, Aged about 74 years, 3. V.S.Vinodha, W/o.B.G.Shivanna, Aged about 69 years, 4. K.B.Shivanandappa, S/o.K.B.Veerappa, Aged about 84 years, 5. K.B.Mallappa, S/o.K.B.Veerappa, Aged about 71 years, 6. K.B.Gurusiddappa, S/o.K.B.Veerappa, Aged about 67 years, 7. K.B.Chandrashekarappa, S/o.K.B.Veerappa, Aged about 66 years, 8. K.B.Veerabhadrappa @ Babu, S/o.K.B.Veerappa, Aged about 62 years, Respondents 1 to 8 are residents of K.B.Chandrasekhar, S/o.K.B.Veerappa, No.4945/54, 3rd F Main Road, S.S.Layout, ‘B’ Block, Davanagere-577 004.
9. S.D.Nijagunappa, S/o.Late Doddabasappa, Aged about 75 years, 10. D.N.Manjunath, S/o.S.D.Nijagunappa, Aged about 48 years, 11. D.N.Vishwanath, S/o.S.D.Nijagunappa, Aged about 46 years, 12. D.N.Somashekara, S/o.S.D.Nijagunappa, Aged about 44 years, 13. D.N.Mahadevi, D/o.Sri.S.D.Nijagunappa, Aged about 42 years, Respondents 9 to 13 are residents of S.D.Nijagunappa, S/o.Late Doddabasappa, No.1669/73, 3rd Cross, S.S.Layout, ‘A’ Block, Davanagere-577 004.
14. Smt.Veemala, W/o.Girija Jadhav Belaladavar, Aged about 62 years, Vidyachethana, Plot No.254, Buda Scheme, No.40, Near Indalaga Ganesha Devasthana Road,Indalaga Road, Belgaum-Belagavi.
15. Smt.Shantha Angadi, W/o. Shivanna Angadi, Aged about 58 years, No.2490, 2nd Cross, Athani College Road, S.S.Layout, ‘A’ Block, Davangere-577 004.
16. Smt.Sudha, W/o.Ashoka, Aged about 57 years, No.1851/81, 2nd Cross, S.S.Layout, ‘A’ Block, Davanagere-577 004.
17. Smt.Drakshayanamma, W/o. Late Kotrappa, Aged about 70 years, 18. Smt.Meenakshamma, W/o.K.B.Veeresh, Aged about 43 years, 19. Kum.Meghana, D/o.K.B.Veeresh, Aged about 21 years, 20. Kum.Gagan, D/o.K.B.Veeresh, Aged about 19 years, 21. Kum.Nayana, D/o.K.B.Veeresh, Aged about 16 years, Minor represented by her guardian, Smt.Meenakshamma.
22. Smt.Manjula, W/o.Mallikarjunappa, Aged about 46 years, 23. K.B.Suresh, S/o.Late Kotrappa, Aged about 40 years, Respondents 17 to 23 are residing at K.H.Manjappa Advocate Building, 6th Cross, Devaraj Urs Layout, ‘A’ Block, Behind Court Complex, Davanagere-577 006.
24. K.B.Mallikarjuna, S/o.Late K.B.Basavarajappa, Aged about 68 years, 25. K.B.Madhan Kumar, S/o.Late K.B.Basavarajappa, Aged about 55 years, Respondents 24 & 25 are residents of C/o Hero Showroom, Dental College Road, M.C.C. A Block, Davanagere-577 004.
26. Smt.Indumathi, W/o.A.Nataraj, Aged about 71 years, 27. Smt.Hemalatha, W/o.Wali Shivayogi, Aged about 65 years, Respondents 26 and 27 are residing at B-3 BFS Apartment, Near Sharavathi Hotel Bus Stop, Yelahanka New Town, Bengaluru-560 100.
28. Smt.B.M.Vijaya, W/o.Late Mallikarjunappa, Aged about 60 years, R/o.9-53, A Cross, 16th Main, 3rd Y Block, Rajaji Nagara, Bengaluru-560 010.
29. Smt.K.R.Nagarathna, W/o.S.Muddappa, Aged about 58 years, No.2574, 7th A Block, 7th Cross, RPC Layout, 6th Stage, Vijayanagara, Bengaluru-560 040.
30. Smt.K.R.Mala, W/o.K.M.Manjunath, Aged about 48 years, No.2718, Gowri Nilaya, 2nd Cross, 2nd Main, MCC Block, Davanagere-4.
31. Smt.Madhu, W/o.Girish.N.V, Aged about 48 years, R/Door No.1/1, 34th Cross, Near Rajarajeshwari Kalyana Mantapa, Jogenahalli, Rajkumar Road, Bengaluru.
32. Smt.Sunanda, W/o.Rajanna Gujjar, Aged about 56 years, No.2718, Gowri Nilaya, 2nd Cross, 2nd Main, MCC Block, Davanagere-4.
33. Shri.K.R.Shiva Kumar, Aged about 70 years, 34. Shri.K.R.Prakash, Aged about 63 years, 35. Shri.K.R.Thippeshi, Aged about 60 years, 36. Shri.K.R.Veeranna, Aged about 56 years, 37. Shri.K.R.Prabhu, Aged about 54 years, Respondents 33 to 37 are sons of late K.B.Rudrappa, R/o.No.MCC A Block, Near Paranthara Hospital Road, Davanagere-577 006. ... Respondents This Writ Petition is filed under Article 227 of the Constitution of India praying to set aside the order dated 20.10.2018 on I.A.No.3 in RA 79/2014 vide Ann-E passed by the Principal District and Sessions Judge, Davanagere and grant the prayer made in the said application for appointment of Court Commissioner by giving appropriate direction.
This Writ Petition coming on for Preliminary Hearing this day, the Court made the following:
ORDER The plaintiffs filed the present writ petition against the order dated 20.10.2018 in R.A.No.79/2014 dismissing the application filed by the appellants-plaintiffs under Order 26 Rule 9 read with Section 151 of Code of Civil Procedure to appoint Court Commissioner comparison for making survey of suit schedule survey numbers and showing the non agricultural property as per Ex.P.40.
2. The plaintiffs filed the suit against the defendants for the relief of partition and separate possession of the suit schedule properties. After contest, the trial Court by judgment dated 14.10.2014 decreed the suit in part declaring that the plaintiffs and defendants are entitled for equal ¼ share in ‘A’ Schedule property by meets and bounds.
3. Aggrieved by the said judgment and decree passed by the trial Court plaintiffs filed R.A.No.79/2014. During the pendency of the appeal before the Lower Appellate Court, the plaintiffs filed an application under Order 26 Rule 9 read with Section 151 of Code of Civil Procedure to appoint Court Commissioner comparison for making survey of suit schedule survey numbers and showing the non agricultural property as per Ex.P.40 and contended that the respondents No.14 to 18 filed their written arguments and at the time of their submission ‘B’ schedule is existed and they have no objections to pass judgment and decree. According to written arguments of respondents 14 to 18 they admitted that the suit schedule survey number is totally measuring 3 acres 21 guntas of land and D.W.3 has produced the document i.e., Ex.D.7 along with the sketch, which clearly shows that the suit schedule property was sub divided phode numbers are all shown in the said Ex.D.7 sketch. For elucidating the actual facts of the case after submission of the respondents, it is just and necessary to appoint a Court Commissioner for making the measurement of the entire suit schedule survey number according to the document Ex.D.7. The said application was opposed by the respondents 14 to 18. However, the say of the appellants that all respondents at the time of their arguments submitted that if the ‘B’ schedule property is existing, they have no objection to allow the appeal, hence sought to dismiss the application.
4. The Lower Appellate Court considering the application and objections, by the impugned order dated 20.10.2018 rejected the application No.3 filed by the appellants- petitioners. Hence, present writ petition is filed.
5. Sri K. Sreedhar, learned counsel for the petitioners contended that the impugned order passed by the Lower Appellate Court rejecting the application filed under Order 26 Rule 9 read with Section 151 of Code of Civil Procedure measuring the suit schedule property is erroneous and contrary to material on record. He further contended that Trial Court dismissed the suit without giving any finding in respect of ‘B’ schedule property. Therefore, appeal was filed by the appellants. If Court Commissioner is appointed, no harm or prejudice would be caused, on the other hand dispute will be settled amicably and parties will be knowing the location of the schedule ‘B’ property with reference to CTS numbers. Appellants are entitled for partition of ‘B’ schedule property along with ‘A’ schedule property. Which has not been done. Hence he sought to allow the writ petition.
6. Having heard the learned counsel for the parties, it is not in dispute that the plaintiffs filed suit for relief of partition and separate possession in respect of ‘A’ and ‘B’ schedule properties. The Trial Court after contest, by the judgment and decree dated 14.10.2014 decreed the suit in part declaring that the plaintiffs and defendants are entitled for equal ¼ share in ‘A’ schedule property by meets and bounds and not given finding in respect of ‘B’ schedule property. Aggrieved by the said judgment and decree, present petitioners-appellants filed R.A.No.79/2014 challenging entire judgment and decree in toto. The appeal is still pending for adjudication on merits. During the pendancy of the appeal, the appellants-plaintiffs filed application under Order 26 Rule 9 read with Section 151 of Code of Civil Procedure to appoint Court Commissioner comparison for making survey of the suit schedule survey numbers and corresponding property as per Ex.P.40.
7. The Lower Appellate Court considering application and objections, recorded the finding that the Trial Court after hearing both the parties has decreed the suit and granted ¼ equal share in ‘A’ schedule property. The appellants-petitioners not satisfied with the impugned judgment and decree passed by the Trial Court have filed the appeal in the year 2014. After arguments on both sides, at the fag end of the appeal, the appellants filed application seeking the appointment of Court Commissioner for surveying the suit schedule properties. The contention of the appellants-petitioners is that the suit schedule property is totally measuring 3 acres 21 guntas of land and the appellants admit that D.W.3 has produced the document i.e., Ex.D.7 along with the sketch. Considering the entire material on record, the Lower Appellate Court is of the opinion based upon oral as well as documentary evidence on record, it is sufficient to proceed with the case and there is no need to appoint the Court Commissioner for getting the report. The appellants have not made out any ground to allow the application. Accordingly the application filed by the appellants for seeking the appointment of Court Commissioner does not survive for consideration and was dismissed.
8. Though the learned counsel for the petitioners contented that appeal was filed only against showing non agricultural land granting decree in respect of ‘B’ schedule property, but the court below disposed of the appeal which clearly indicates that appellants-petitioners challenged entire decree passed by the trial court. Ultimately the lower appellate court has dismissed the application with reference to the material document on record. If ultimately the primary decree reached finality, it is for the parties to adjudicate or raise any dispute with regard to the survey in F.D.P. proceedings. The impugned order passed by the Lower Appellate Court rejecting the application filed by the appellants present petitioners under Order 26 Rule 9 read with Section 151 of Code of Civil Procedure is just and proper.
The petitioners-appellants have not made out prima facie case to interfere with the impugned order passed by the Lower Appellate Court in exercise of power under Article 227 of the Constitution of India.
Accordingly, writ petition stands dismissed.
Sd/- JUDGE HR