IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE WRIT PETITION NO.48048 OF 2014 (GM-CPC) BETWEEN:
1. SMT. K.J.DEVAKI W/O LATE K.JINNAPPA GOWDA AGED ABOUT 67 YEARS 2. SMT. GEETHA K AGED ABOUT 46 YEARS 3. RAVINDRA AGED ABOUT 44 YEARS 4. SMT.BHARATHI AGED ABOUT 39 YEARS 5. RAJENDRA K AGED ABOUT 36 YEARS PETITIONER NOS.2 TO 5 ARE THE CHILDREN OF LATE K.JINNAPPA GOWDA ALL ARE R/AT POLYA HOUSE KABAKA VILLAGE PUTTUR TALUK – 574 212 REPRESENTED BY GPA HOLDER RAVEENDRA K S/O LATE K.JINNAPPA GOWDA AGED ABOUT 44 YEARS R/AT POLYA HOUSE KABAKA VILLAGE PUTTUR TALUK – 574 212 (BY SRI K.SHRIHARI, ADVOCATE) ... PETITIONERS AND:
GIRIYAPPA GOWDA S/O CHENNAPPA GOWDA AGED ABOUT 54 YEARS R/AT POLYA HOUSE KABAKA VILLAGE PUTTUR TALUK – 574 212 (BY SRI K.CHANDRANATH ARIGA, ADVOCATE) ---
... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 227 OF CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI TO QUASH THE ORDER PASSED ON I.A.NO.V IN O.S.NO.308/2014 DATED 27.09.2014 ON THE FILE OF THE CIVIL JUDGE AND JMFC AT PUTTUR PRODUCED HEREWITH AND MARKED AS ANNEXURE-A AND ISSUE SUCH OTHER APPROPRIATE WRIT, ORDER OR DIRECTION ON THE FACTS AND CIRCUMSTANCES OF THE CASE IN THE INTEREST OF JUSTICE AND EQUITY.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THIS COURT MADE THE FOLLOWING:
ORDER Heard the learned counsel appearing for the petitioners who are the plaintiffs and the learned counsel appearing for the respondent who is the defendant.
2. A suit is filed by the present petitioners for injunction simpliciter for preventing the respondent from disturbing the possession over the suit property described in ‘A’ schedule to the plaint. There is a written statement – cum – counter claim filed by the respondent claiming a declaration in respect of the property described in ‘D’ schedule that he is in settled and legal possession thereof. On an application made by the respondent, by the impugned order, the learned Trial judge has exercised the powers under Rule 9 Order XXVI of the Code of Civil Procedure, 1908 (for short “the said Code”) and has appointed a member of the Bar as a Commissioner. The Commissioner has been appointed for inspection of ‘A’ schedule property and ‘D’ schedule property and to submit a report regarding boundaries of both the properties, note the physical features of both the properties and the fence, well surrounded by rings, etc.
3. The submission of the learned counsel appearing for the petitioners is that the appointment of a Court Commissioner is for collection of evidence. He submitted that recording of the evidence in the suit has commenced from 20th February 2019.
4. The learned counsel appearing for the respondent submitted that no interference is called for with the impugned order as there is no attempt made to collect the evidence. The situation of the schedule properties will be brought on record by virtue of the report of the Court Commissioner.
5. I have considered the submissions. As per ‘A’ schedule property, the land subject matter of plaint bears RS 129-6 to the extent of 1.08 ½ cents. As per ‘D’ schedule annexed to the written statement – cum – counter claim, the relief is claimed in respect of the land in survey No.129/4 measuring 61 cents. From the averments made in the written statement – cum – counter claim there appears to be a dispute about the identity of the properties. In fact, in the counter claim it is contended that though the petitioners have given boundaries of ‘A’ schedule property, the sketch of the schedule property is not annexed.
6. Thus, the parties will have to lead evidence on the identity of the disputed property. Even before the evidence is recorded, there was no occasion for the learned Trial Judge to appoint a Court Commissioner. If ultimately it is found that there is a boundary dispute which could be resolved by a surveyor, at appropriate stage the Court can always appoint a surveyor as a Court Commissioner.
7. The petition succeeds and I pass the following order:
(i) The impugned order passed by the learned Trial Judge dated 27th September 2014 is hereby set aside and I.A.No.V in O.S.No.308/2014 stands rejected;
(ii) I make it clear that this order will not preclude the Trial Court from exercising powers under Rule 9 Order XXVI of the said Code if an occasion to exercise the said power arises;
(iii) The petition is accordingly partly allowed on the above terms.
Sd/- CHIEF JUSTICE AHB