IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.40603 OF 2017 (GM-CPC) BETWEEN:
RAMAIAH SINCE DECEASED BY HIS L.R.S 1a. SIDDAMMA W/O LATE RAMAIAH, AGED ABOUT 85 YEARS.
CHANDRAIAH SINCE DECEASED BY HIS L.R.S. 2b(a) CHELUVAMMA, W/O LATE CHANDRAIAH, AGED ABOUT 48 YEARS, 2b(b) PREMALATHA K.C.S. D/O LATE CHANDRAIAH AGED ABOUT 25 YEARS.
2b(c) SAVITHA K.C.
D/O LATE CHANDRAIAH, AGED ABOUT 23 YEARS.
2b(d) JAGADISH K.C. S/O LATE CHANDRAIAH, AGED ABOUT 21 YEARS.
PETITIONERS NO.2a TO 2d ALL ARE R/O KADEGOWDANA DODDI, HAROHALLI HOBLI, KANAKAPURA TALUK, RAMANAGAR DISTRICT.
1c. MADAIAH S/O LATE RAMAIAH, AGED ABOUT 56 YEARS.
1d. CHIKKANNA S/O LATE RAMAIAH AGED ABOUT 53 YEARS, Ie. RAJANNA S/O LATE RAMAIAH AGED ABOUT 60 YEARS, PETITIONERS NO.1a TO 1e ARE ALL R/O KADEGOWDANA DODDI, HAROHALLI HOBLI, KANAKAPURA TALUK, RAMANAGAR DISTRICT – 571 511.
... PETITIONERS (BY SRI. S.R.HEGDE HUDLAMANE, ADVOCATE FOR PETITIONERS NO.1B (1 TO 4) AND:
1. SRI. DEVASENA REDDY, AGED ABOUT 58 YEARS, W/O C. CHANDRAMOHANA REDDY REDDY ESTATE, ANJANAPURA VILLAGE & POST BANGALORE SOUTH TALUK, BANGALORE – 560 062.
2. SMT. MARAKKA AGE: MAJOR, W/O MALIGEGOWDA 3. M. KUMARA AGE: MAJOR, S/O MALIGEGOWDA 4. SATHISHA AGE: MAJOR, S/O MALIGEGOWDA RESPONDENTS NO.1 TO 4 ALL ARE R/O JAKKASANDRA, MARALAVADI HOBLI, KANAKAPURA TALUK, RAMANAGARA DISTRICT – 571 511.
5. MARILINGEGOWDA AGE: MAJOR S/O MARIGOWDA 6. LAKSHMANAGOWDA AGE: MAJOR S/O SIDDEGOWDA RESPONDENTS NO.5 & 6 ARE ALL R/O HANUMANTHANAGARA MARALVADI HOBLI, KANAKAPURA TALUK, RAMANAGARA DISTRICT – 571 511.
... RESPONDENTS (BY SRI. A.SHIVARAMA, ADVOCATE FOR R1;
V/O DTD 30/11/2017 NOTICE TO R2 HELD SUFFICIENT; R3 TO 6 SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER MADE ON I.A.NO.X PASSED BY THE LEARNED SR. CIVIL JUDGE KANAKAPURA, MADE IN O.S.NO.123/2014, DTD 7.8.2017 VIDE ANNEXURE-F, BY EXERCISING IF SUPERVISORY JURISDICTION AND ALLOW THE APPLICATION NO.X FILLED BY THE PETITIONER AND APPOINT COURT COMMISSIONER/SURVEYOR AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioners being the plaintiffs in a declaration suit in O.S.No.224/2009 re-numbered as O.S.No.123/2014 are invoking the Writ jurisdiction of this Court for assailing the order dated 07.08.2017, a copy whereof is at Annexure-F, whereby, the learned trial Judge having rejected their application filed under Order XXVI Rule 9 r/w Section 151 of CPC, 1908 has refused to appoint Court Commissioner for identifying and measuring the subject property. After service of notice, respondents having entered appearance through their counsel resist the Writ Petition.
2. Having heard the learned counsel for the parties and having perused the Petition Papers, the impugned order cannot be faltered inasmuch as there is no dispute as to identity or the location or measurement of the property in question; because there is a rival claim in respect of the very same property, one cannot jump to a conclusion that there is a dispute as to the identity or the extent of the property. In fact, no issue has been framed by the trial Court in this regard.
3. The reasoning of the court below in declining to grant request of the petitioners that the Commissioner cannot be appointed for collection of evidence may not be correct since that is nobody’s case; but the impugned order otherwise also cannot be faltered in terms of law or facts.
In the above circumstances, Writ Petition is dismissed. No costs.
Sd/- JUDGE DS