IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION No.6095/2019 (GM – CPC) BETWEEN SIDDAPPA S/O LATE NALLURU ERAPPA AGED 69 YEARS KURUBARAPET, 1ST MAIN ROAD, WARD NO.4, KOLAR TOWN, KOLAR DISTRICT - 563101. (BY SRI. NEERAJA KARANTH, ADV.,) AND 1. SRI M ANJINAPPA S/O LATE YENNANGUR MUNIYAPPA AGED ABOUT 66 YEARS, 2. M SHANKAR KUMAR AGED ABOUT 43 YEARS S/O LATE YANNANGUR MUNIYAPPA RESPONDENT Nos.1 & 2 ARE R/AT DYAPASANRA VILLAGE, KASABA HOBLI, MALUR TALUK KOLAR DISTRICT – 563 101.
3. SMT. MUNIYAMMA AGED ABOUT 68 YEARS W/O LATE DODDA SIDDAPPA 4. VENKATARAMANAPPA AGED ABOUT 78 YEARS S/O LATE NALLURU ERAPPA ... PETITIONER RESPONDENT Nos.3 AND 4 ARE R/AT DYAPASANRA VILLAGE, KASABA HOBLI, MALUR TALUK KOLAR DISTRICT - 563101.
5. SRI RAMAPPA @ RAMEGOWDA AGED ABOUT 66 YEARS S/O LATE NALLURU ERAPPA R/AT 1ST MAIN ROAD, VIVEKANANDA NAGAR 3RD CROSS, BANGARPET TOWN KOLAR DISTRICT - 563101.
... RESPONDENTS (BY SRI. KALYAN R, ADV., FOR C/R2) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 23.1.2019 ON I.A.NO.35 IN O.S.NO.175/11 ON THE FILE OF SENIOR CIVIL JDUGE, MALUR, FILED AS ANNEXURE-A TO THE WRIT PETITION.
THIS PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Learned counsel Sri. Kalyan R, waives of notice for respondent No.2.
The petitioner has challenged the order dated 23.01.2019 on I.A.No.35 in O.S.No.175/2011 on the file of the Senior Civil Judge, Malur (‘Trial Court’ for short), wherein the application – I.A.No.35 filed by defendant Nos.1, 3 and 4 under Order 26 Rule 9 read with Section 151 of CPC has been dismissed.
2. It is the contention of the petitioner that the plaintiffs have wrongly shown the boundaries and are claiming defendants’ properties as their properties. The plaintiffs’’ Kaneshmari number shown as 174 is claimed by the defendants as Kaneshmari number 172 with a different measurement. In the said circumstances, appointment of Commissioner to identify the properties is necessary. The Trial Court rejected the application without considering this vital aspect and accordingly, the same calls for interference by this Court.
3. On the other hand, learned counsel for respondent No.2 justifying the order impugned would submit that the plaintiffs have filed O.S.No.70/2007 against the defendants for declaration of their title and for declaring that the compromise decree in O.S.No.34/2006 is not binding on them and for permanent injunction against the defendants with respect to the suit schedule properties. It is submitted that in the proceedings pending before this Court in RSA No.270/2008, the petitioner along with defendant Nos.3 to 5 has entered into a compromise decree in O.S.No.34/2006 and subsequently, O.S.No.94/2011 has been filed by the petitioner seeking declaration and permanent injunction in respect of the suit property based on the compromise decree passed in O.S.No.34/2006. In the circumstances, it is for the plaintiffs to establish their title and right over the suit properties and there was no necessity for the Court to appoint the Commissioner for the measurement of the property as sought for by the defendants. Hence, seeks for dismissal of the writ petition.
4. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the material on record.
5. As could be seen from the material available on record, it is not in dispute that O.S.No.70/2007 has been filed by the plaintiffs seeking for the declaration of their title and for declaring that the compromise decree in O.S.No.34/2006 is not binding on them and other consequential reliefs. In the said proceedings, the Trial Court has considered I.A.No.35 filed by defendant Nos.1, 3 and 4 under Order 26 Rule 9 read with Section 151 of CPC extensively and arrived at a decision that delegating the responsibilities of the Court to the Commissioner is not necessary in the case, more particularly when the documents and evidence are available on record to consider the issues raised in the suit.
6. It is a settled law that the appointment of the Commissioner depends on the facts and circumstances of the case. The Trial Court considering the factual aspects of the matter has arrived at a decision in rejecting the said application for appointment of the Commissioner. This Court exercising the supervisory jurisdiction under Article 227 of the Constitution can examine whether the order impugned is passed judiciously. When the Trial Court has exercised its powers in a fair manner and has arrived at a decision, merely for the reason that the other view is possible, this Court cannot interfere unless a jurisdictional error is found in the order. No such error being found in the order impugned and the appointment of the Commissioner being not necessary for establishing the rights of the plaintiffs when the burden lies on the plaintiffs, rejection of the application filed by the defendant Nos.1, 3 and 4 cannot be found fault with.
Accordingly, the writ petition stands dismissed.
Sd/- JUDGE PMR