IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JUNE, 2017 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.23061/2017(GM-CPC) BETWEEN:
1. SMT. SHANKARAMMA, W/O LATE ANNEGOWDA, AGED ABOUT 64 YEARS, 2. SRI SURESH, S/O LATE ANNEGOWDA, AGED ABOUT 44 YEARS, 3. SRI RAMESHA, S/O LATE ANNEGOWDA, AGED ABOUT 41 YEARS, 4. SRI MANJA, S/O LATE ANNEGOWDA, AGED ABOUT 39 YEARS, PETITIONERS 1 TO 4 ARE R/AT: SANNAIAH STREET, PETE, MYSORE DISTRICT-570001.
5. SMT. SHYLA, W/O SOMASHAKER, AGED ABOUT 34 YEARS, R/AT KANCHAGAARANAKOPPALU VILLAGE, K.R.NAGAR TALUK, MYSORE DISTRICT-570002.
... PETITIONERS (BY SRI SUNEEL S. NARAYAN, ADVOCATE) AND:
1. KUM. MEGHASHRI, D/O SURESH & SUJATHA, AGED ABOUT 13 YEARS, 2. KUM. SAHANA, D/O SURESH & SUJATHA, AGED ABOUT 10 YEARS, BOTH THE RESPONDENTS ARE MINORS, HENCE, REPRESENTED BY THEIR NATURAL GUARDIAN/NEXT FRIEND, MOTHER: SMT.SUJATHA, W/O SURESHA, AGED ABOUT 36 YEARS, R/AT DOOR NO.1486, ASWATH KATTE ROAD, KYTHAMAMAHALLY, MYSORE TALUK, MYSORE DISTRICT-570001.
... RESPONDENTS **** THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH/SET ASIDE THE ORDER DATED 7.4.2017 AT ANNEXURE-G PASSED ON I.A.NO.15 IN O.S.NO.48/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, PERIYAPATNA.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The defendants filed the present writ petition against the order dated 7.4.2017 on I.A. No.15 made in O.S.No.48/2011, dismissing the application filed by the defendants under Order 26 Rule 9 r/w Section 151 of Code of Civil Procedure, 1908 for appointment of Taluk Surveyor for the purpose of conducting local investigation of item Nos.1 & 5 of suit schedule properties to ascertain whether there exists any tobacco barns in the said properties.
2. The respondents/plaintiffs filed the suit for partition and separate possession in respect of the suit schedule properties, morefully described in the schedule contending that the suit schedule properties are the joint family properties of the plaintiffs and the defendants and there was no partition in the joint family and therefore they are entitled to the relief of partition.
3. The defendants filed the written statement and denied the entire plaint averments and contended that the suit schedule properties are not the joint family properties of the plaintiffs and the said properties belongs to the defendants and therefore sought for dismissal of the suit.
4. After the completion of evidence on both sides, when the matter was posted for arguments, the defendant no.4 alone filed I.A. No.XV under Order 26 Rule 9 r/w Section 151 of Code of Civil Procedure, 1908 for appointment of Court Commissioner, more particularly the Taluk Surveyor for the local investigation of item Nos.1 and 5 of the suit schedule properties and report whether there exists any tobacco barns in the said properties, reiterating the averments made in the written statement.
5. The said application was resisted by the plaintiffs by filing objections contending that the said application is filed only to drag on the proceedings and for the last seven years, the defendants are in the habit of filing one or the other application to drag on the proceedings, without any reason; The defendants are not cooperating with the Court to proceed with the suit. The plaintiffs have produced all the relevant documents to prove their case. If there are no tobacco barns in the suit schedule properties, then in the Final Decree Proceedings, there is a separate procedure to follow. Therefore sought for dismissal of the application.
6. The trial Court considering the material on record by the impugned order dated 7.4.2017 rejected the application filed by the defendants. Hence the present writ petition is filed.
7. I have heard the learned counsel for the petitioners.
8. Sri Suneel S. Narayan, learned counsel for the petitioners vehemently contended that the impugned order passed by the trial Court rejecting the application for appointment of Taluk Surveyor after completion of evidence of both sides, is erroneous and contrary to the material on record. He further contended that the suit filed by the plaintiffs is for partition and separate possession in respect of all the items of the suit schedule properties and there is a specific plea in the plaint that there exists tobacco barns in the suit schedule properties and the defendants have denied the same and therefore the trial Court ought to have appointed the Commissioner to know whether there exists tobacco barns in the suit schedule properties. The same has not been done by the trial Court and therefore he sought to quash the impugned order passed by the trial Court by allowing the present writ petition.
9. Having heard the learned counsel for the petitioners, it is an undisputed fact that the respondents filed the suit for partition and separate possession contending that the suit schedule properties are the joint family properties of the plaintiffs and the defendants. The defendants denied the entire plaint averments and specifically contended that the suit schedule properties belong to them and question of granting partition does not arise. It is also not in dispute that after completion of evidence of both the parties, when the matter was posted for arguments, at that stage, the present application is filed by defendant no.4 for appointment of Court Commissioner to find out whether there exists tobacco barns in item Nos.1 and 5 of the plaint schedule properties.
10. The trial Court considering the entire material on record, recorded a finding that the suit filed by the plaintiffs is for partition and separate possession including item Nos.1 and 5 of the suit schedule properties. It is for the plaintiffs to establish that the suit schedule properties are joint family properties and there exists tobacco barns in item Nos.1 and 5 of the suit schedule properties based on the oral and documentary evidence on record. Therefore appointment of Court Commissioner to ascertain whether there exists tobacco barns at this stage would amount of collection of evidence, which cannot be permitted under the law. Accordingly, the trial Court rejected the application.
11. The material on record clearly indicates that the defendants have taken specific defence in the written statement denying all the plaint averments and contended that the suit schedule properties belong to defendants. It is for the plaintiffs to establish that the suit schedule properties are the joint family properties of the plaintiffs and the defendants. It is for the plaintiffs to establish that there exists tobacco barns in item Nos.1 and 5 of the suit schedule properties. In view of the same, question of appointment of Court Commissioner at the instance of the defendants does not arise. The trial court rightly rejected the application. The same is in accordance with law. The petitioners have not made out any ground to interfere with the impugned order exercising the powers under Article 227 of the Constitution of India.
Accordingly, writ petition is dismissed.
Sd/-
JUDGE Gss/-