IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF APRIL 2017 BEFORE THE HON’BLE MR. JUSTICE H.G.RAMESH WRIT PETITION NO.3018/2014 (GM-CPC) BETWEEN:
1. SMT. N.U.KASTURI W/O LATE N.C.UTTAPPA AGED 54 YEARS R/O NAPOKALU, MADIKERI TALUK KODAGU DISTRICT – 571 201 2. MR. N.U.SACHIN S/O LATE N.C.UTTAPPA AGED ABOUT 31 YEARS R/O NAPOKALU, MADIKERI TALUK KODAGU DISTRICT – 571 201 3. MR. N.U.KAVIN S/O LATE N.C.UTTAPPA AGED ABOUT 31 YEARS R/O NAPOKALU, MADIKERI TALUK KODAGU DISTRICT – 571 201 ... PETITIONERS (BY SRI G.RAVISHANKAR SHASTRY, ADVOCATE) AND:
1. MR. AJJITIRA S.MANDANNA S/O MR. SOMAPPA AGED ABOUT 56 YEARS R/O NAPOKALU VILLAGE MADIKERI TALUK, KODAGU DISTRICT–571 201 2. MR. AJJITIRA M.SOMMAIAH S/O MR.AJJITIRA S.MANDANNA AGED ABOUT 26 YEARS R/O NAPOKALU VILLAGE MADIKERI TALUK, KODAGU DISTRICT–571 201 3. MR. AJJITIRA GAUTHAM MANDANNA S/O MR. AJJITIRA S. MANDANNA AGED ABOUT 23 YEARS R/O NAPOKALU VILLAGE MADIKERI TALUK KODAGU DISTRICT – 571 201 ... RESPONDENTS (BY SRI K.RANJAN KUMAR, ADVOCATE FOR C/R1 AND R2 & R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 2.1.2014 ON I.A.NO.14 IN O.S.NO.5/2013 PASSED BY THE PRINCIPAL CIVIL JUDGE, MADIKERI, CERTIFIED COPY OF WHICH IS PRODUCED AT ANNEXURE-A & CONSEQUENTLY ALLOW I.A.NO.14 IN O.S.NO.5/2013.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R H.G.RAMESH, J. (Oral):
1. This writ petition is by the plaintiffs and is directed against an interlocutory order dated 02.01.2014 passed in the suit in O.S.No.5/2013 whereby the trial court has rejected their application-I.A.No.14 filed to appoint a Taluka Surveyor for measurement of the suit property and to report regarding the alleged encroachment, if any.
2. I have heard learned counsel for the parties and perused the impugned order.
3. It is relevant to refer to the following reasoning of the trial court in rejecting the application:
“9. The application now filed is for the local investigation of the spot by appointment of the Court Commissioner. This is in order to ascertain where exactly the foundation lies. According to the plaintiff the cause of action for the suit was encroachment of her property by the defendants and putting up of illegal construction. If at all the defendants had encroached any portion of the suit schedule ‘A’ property the plaintiff ought to have taken steps to ascertain as to the position of the construction and get the place located as to whether the defendants had in fact encroached any portion of her property. The parties to the present suit have already let in evidence and it is the contention of Sri. CSP., advocate for the plaintiff that when the appointment of the Court Commissioner and local investigation of the spot, the facts in issue involved in this case cannot be appreciated even with the amount of oral and documentary evidence. On the contrary it is argued by DDC., Advocate that the appointment of the Court Commissioner for local investigation is to collect the evidence. When the plaintiff has asserted that the defendants have encroached her property merely on the pretext that DW-1 has denied that they have encroached any portion of the property belonging to the plaintiff would not in itself given way to the plaintiff to assimilate the evidence in the manner that is sought in the application. It is the pleading of the plaintiff that the defendants have encroached the portion of the suit schedule ‘A’ property. When the plaintiff is certain by filing such an application the doubt would further arises as to whether the application is for ascertaining the encroachment or whether it is for the collection of further evidence. There are sufficient materials already on record and therefore only for the purpose of ascertaining the location of the foundation the appointment of the Court commissioner is not necessary and therefore I am inclined to hold point No.1 in the negative.”
I find no error in the above reasoning of the trial court to warrant interference. The writ petition is accordingly dismissed.
Petition dismissed.
Sd/- JUDGE hkh.