IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.57779/2018(GM-CPC) BETWEEN:
1. JAYASHEELA, AGED ABOUT 65 YEARS, W/O LATE K.SHEKARAPPA, 2. HEMANTH KUMAR AGED ABOUT 46 YEARS, S/O LATE K. SHEKARAPPA, 3. CHETAN KUMAR AGED ABOUT 44 YEARS, S/O LATE K.SHEKARAPPA, ALL ARE RESIDENTS OF PANDOMATTI VILLAGE, CHANNAGIRI TALUK, DAVANGERE DISTRICT-577002.
(BY SRI VINAYA KEERTHY M., ADVOCATE) AND:
1. RANGE FOREST OFFICER CHANNAGIRI RANGE, CHANNAGIRI TALUK, DAVANAGERE DISTRICT-577002.
... PETITIONERS 2. ASST. CONSERVATOR OF FORESTS CHANNAGIRI SUB-DIVISION, CHANNAGIRI TALUK, DAVANAGERE DISTRICT-577002.
3. DY.CONSERVATOR OF FORESTS BHADRAVATHI DIVISION, BHADRAVATHI, SHIVAMOGGA DISTIRCT-577202 ... RESPONDENTS (BY SRI D.R. ANANDEESWAR, HCGP FOR R1 TO R3) …… THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 13.12.2018 PASSED BY LEARNED PRL. CIVIL JUDGE, CHANNAGIRI DISMISSING IA-8 IN OS 79/12 (ANENXURE-E).
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioners who are the plaintiffs before the Trial Court, filed the present writ petition against the Order dated 13.12.2018 made in O.S.No.79/2012 dismissing the application filed by the plaintiff under Order XXVI Rule 9 r/w Section 151 of Code of Civil Procedure, seeking to appoint Taluk Surveyor as Court Commissioner to make local inspection.
2. The plaintiffs filed suit for declaration and mandatory injunction directing the defendants to remove the Pongamia (Honge) sapling from the suit schedule property which is planted towards the southern side of the suit schedule property. If the defendants fail to do so, the same may be removed through the Court process, and for permanent injunction to restrain the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property.
3. The defendants filed written statement, denied the plaint averments in toto and contended that the suit is filed without issuing notice under Section 80 of Code of Civil Procedure and therefore, the same is not maintainable and sought for dismissal of the suit.
4. When the matter was posted for final arguments, at that stage, plaintiffs filed an application under Order XXVI Rule 9 r/w Section 151 of Code of Civil Procedure seeking appointment of Taluka Surveyor, Channagiri, as Court Commissioner to make local investigation and to ascertain the real facts in respect of the suit schedule properties. The application was resisted by the defendants.
5. The Trial Court, considering the application and objections, by the impugned order, dismissed the application. Hence the present writ petition is filed.
6. I have heard the learned counsel for the parties to the lis.
7. Sri Vinaya Keerthy, learned counsel for the petitioners contended that the impugned order passed by the Trial Court dismissing the application is erroneous and contrary to the material on record and cannot be sustained. He further contended that the respondents have admitted that petitioners are in possession of the land, but have denied the encroachment. In order to ascertain the same, appointment of Court Commissioner is necessary. The same is not done by the Trial Court. Therefore, sought to allow the writ petition.
8. Sri Anandeeswar, learned High Court Government Pleader, sought to justify the impugned order.
9. Having heard the learned counsel for the parties, it is not in dispute that the plaintiffs filed suit for declaration and permanent injunction, raising various grounds. The same is denied by the defendants by filing written statement.
10. In the application filed for appointment of Court Commissioner, it is specifically averred that the Court Commissioner may be appointed to make local investigation to ascertain the real facts in respect of the suit schedule properties.
11. The Trial Court, considering the application and objections, has recorded a finding that, “Admittedly, the suit filed by the plaintiffs for declaration and mandatory injunction to direct the defendants to remove trees from suit schedule property put up towards southern side. When that being the case the plaintiff has to prove his case with cogent and corroborated evidence that the defendants had encroached the land. Mere denial in the written statement that the defendants were not encroached the plaintiff land is not imperative to appoint court Commissioner’. Accordingly, dismissed the application.
12. The parties have to establish their rights based on oral and documentary evidence. The instant application filed is nothing but collection of evidence which is impermissible in a suit for declaration and permanent injunction.
13. In view of the above, the impugned Order passed by the Trial Court is just and proper. The petitioners have not made out any ground to interfere with the impugned order in exercise of powers under Article 227 of the Constitution of India. Accordingly, writ petition is dismissed.
Sd/- JUDGE kcm