IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR M.F.A. NO.314 OF 2019 (CPC) BETWEEN:
SRI INDUSHEKHAR KOLLURI, AGED ABOUT 45 YEARS, S/O K MOHAN NAIDU, D NO.1/150, BANGARU MITTA, NEAR 200 FT. BYPASS ROAD, AVILALA VILLAGE & POST, TIRUPATHI RURAL, CHITTOR DISTRICT, ANDHRA PRADESH. ... APPELLANT (BY SRI SUBRAMANYA R, ADVOCATE) AND:
1. SMT. N A HEMAVATHI D/O SRI N H NARAYANA REDDY, AGED ABOUT 46 YEARS.
2. SMT T PUSHPA, W/O SRI N H ANANTHA REDDY, AGED ABOUT 64 YEARS.
3. SMT N A NALINA D/O SRI N H ANANTHA REDDY AGED ABOUT 41 YEARS.
4. SMT N A KAVITHA, D/O SRI N H ANANTHA REDDY, AGED ABOUT 40 YEARS, REPRESENTED BY HER GPA HOLDER, SRI N.H.ANANTHA REDDY, AGED ABOUT 77 YEARS.
RESPONDENTS NO.1 TO 4 ALL ARE RESIDING AT NO.668 14TH CROSS, 1ST MAIN ROAD II PHASE, J P NAGAR BENGALURU-560 078.
5. SRI M ANANTHA MURHTY S/O LATE MUNIVENKATAPPA AGED ABOUT 60 YEARS RESIDING AT NO.335 NAGAVARAPALYA C V RAMAN NAGAR POST, BENGALURU-560 093.
6. SRI M SRINIVAS, S/O LATE MUNUVENKATAPPA, AGED ABOUT 58 YEARS, RESIDING AT NO.335, NAGAVARAPALYA, C V RAMAN NAGAR POST, BENGALURU-560 093. ... RESPONDENTS (BY SRI SHANKARANARAYANA BHAT N, ADVOCATE FOR R1 TO R4) **** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(R) OF CPC, ORDER DATED:23.11.2018 PASSED ON I.A.NO.1 IN OS.NO.125/2017 ON THE FILE OF THE IV ADDITIONAL SENIOR CIVIL JUDGE BENGALURU RURAL DISTRICT, BENGALURU, ALLOWING THE I.A.NO.1 FILED BY THE PLAINTIFFS UNDER ORDER 39 RULE 1 AND 2 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard counsel for both the parties.
2. The defendant No.3, being aggrieved by the interim order dated 23.11.2018 passed on I.A.No.1 filed under Order XXXIX Rules 1 and 2 CPC, has preferred this appeal.
3. The main contention of the appellant is that the trial Court has passed the impugned order without considering the documents produced by him. Thus, it has resulted in miscarriage of justice.
4. On perusal of the impugned order, it is seen that the trial Court has referred to so many documents. The document at page No.9, which is the order passed by the Technical Assistant to Deputy Commissioner dated 26.08.2015, disclose that in Sy.No.10, originally 0-10 guntas of kharab land was there. In view of division of the said land bearing Sy.No.10 between the plaintiff and defendant, 4 acres was taken by the plaintiff and 1 acre 13 guntas was taken by the defendant Nos.5 and 6. Thereafter, in the said Sy.No.10, only 0-01 guntas was kharab land and remaining 0-09 guntas kharab land was added to the disputed khirda space, but RTC and mutations are not updated or regularized, based on these records it is not possible to decide as to whom the said disputed portion of 0-09 guntas of land belongs to.
5. During the course of arguments, the counsel for both parties have admitted that the defendant No.3 had filed an interim application for appointment of Surveyor/Court Commissioner to measure the property and to make local/spot inspection of the property to ascertain the boundaries and location of the land belonging to both plaintiff and the defendant. Even though the said application was filed on 24.04.2017, but it is not yet decided by the trial Court.
6. The dispute between the parties can be adjudicated based on the documents and survey report by the concerned competent authority.
7. In view of the submission of both counsels, there is need for appointment of Surveyor/Court Commissioner. Hence, this Court is of the considered opinion that the interim applications shall have to be reconsidered by the trial Court on the basis of survey report.
8. For the foregoing reasons, the appeal is allowed. The impugned order dated 23.11.2018 passed on I.A.No.1 in O.S.No.125/2017 by the IV Addl. Senior Civil Judge, Bengaluru Rural District, Bengaluru, is set aside and the trial Court is directed to reconsider the interlocutory applications on hearing the parties in respepct of report by the Surveyor to be appointed by the Court.
Till then both the parties are directed to maintain status quo in respect of construction in the disputed property.
Sd/- JUDGE BSR