IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30th DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B.VEERAPPA WRIT PETITION NO.36535 OF 2017 (GM – CPC) BETWEEN:
1. SRI. KAMARAJU S/O BADANAIKA AGED ABOUT 50 YEARS 2. SRI. SHIVANNA S/O BODANAIK AGED ABOUT 38 YEARS BOTH ARE R/O MADINADU VILLAGE KALLAMBELLA HOBLI SIRA TALUK TUMAKUR DISTRICT – 572 137 …PETITIONERS (BY SRI. V.B.SIDDARAMAIAH, ADV.,) AND:
1. SRI. SREERANGAIAH S/O CHIKKATHIMMAIAH AGED ABOUT 53 YEARS 2. SMT. LAKSHMIDEVAMMA W/O THIMMAIAH AGED ABOUT 58 YEARS 3. SRI. M.R.RANGASWAMAIAH S/O RANGANNA AGED ABOUT 58 YEARS 4. SRI. KUMAR S/O LINGAIAH AGED ABOUT 68 YEARS 5. SRI. KARIYANNA S/O LINGAIAH AGED ABOUT 43 YEARS 6. SMT. LAKKAMMA W/O SHIVARAJU AGED ABOUT 48 YEARS 7. SRI. HANUMANTHARAYAPPA S/O GOPAIAH AGED ABOUT 48 YEARS ALL ARE R/O MADINADU VILLAGE KALLAMBELLA HOBLI SIRA TALUK TUMAKUR DISTRICT – 572 137 …RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYNG TO SET ASIDE THE ORDER DATED 22.07.2017 PASSED BY THE COURT OF CIVIL JUDGE [JR.DV.] SIRA, IN O.S.NO.322/2009 PASSED ON I.A. FILED BY THE PETITIONERS FOR APPOINTMENT OF SURVEYOR AS COURT COMMISSIONER UNDER ORDER 26 RULE 9 AND 10 R/W SC.151 OF CPC, VIDE ANNEXURE – E AND CONSEQUENTLY ALLOW THE IA FILED BY THE PETITIONER VIDE ANNEXURE – C AND ETC., THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING ORDER The plaintiffs No.1 and 2 have filed the present writ petition against the order dated 22.7.2017 on IA made in O.S.No.322/2009 rejecting the application filed under Order XXVI Rule 9 & 10 r/w Section 151 of CPC for appointment of Surveyor to survey the suit survey numbers and demarcate the land encroached by the defendants.
2. The present petitioners, who are the plaintiffs filed the suit for declaration to declare the plaintiffs are the owners of suit schedule properties and for mandatory injunction directing the defendant No.2 and 3 to remove the raised stone slab in O P R N and P Q M R portions respectively and hand over the vacant possession to the plaintiffs and for permanent injunction restraining the defendants from interfering with plaintiff’s possession and enjoyment of the suit schedule properties morefully described in the suit schedule property contending that the plaintiffs are the owners of the suit schedule properties. The defendants No.2 and 3 owning a house towards the southern side of the suit schedule property and encroached OPRN and PQMR portions respectively in the 2nd bit of the suit schedule property and they had illegally raised the stone slab and compound where they are not entitled to do so and also contended that all the defendants are colluded and attempting to interfere with plaintiff’s suit schedule property by putting up construction in the suit schedule property illegally by denying the title of the plaintiffs etc.
3. The defendants filed the written statement denying the plaint averments and contended that they never encroached the OPRN and PQMR portions as alleged by the plaintiffs. The suit filed by the plaintiffs was for declaration and mandatory injunction and for recovery of possession is liable to be dismissed as barred by limitation. They further contended that suit is bad for non joinder of necessary and proper parties. There are 10 persons who are having houses since last 60 years in the suit properties to the knowledge of the plaintiffs and their predecessors etc., and sought for dismissal of the suit.
4. After completion of the evidence on both sides and when the matter was posted for arguments, at that belated stage, the plaintiffs have filed the present application under Order 26 Rule 9 and 10 r/w Section 151 of CPC for appointment of the Surveyor to survey the suit survey number and demarcate what extent of land encroached by the defendants reiterating the averments made in the plaint. The defendants filed the objections denying the averments of the plaint and contended that the defendants No.2 and 3 never encroached OPRN and PQMR portions as alleged in the rough sketch of the plaint. The plaintiffs have to establish their case by producing oral and documentary evidence, if there is any ambiguity, the Commissioner is necessary to decide the case. The application filed is only to harass the defendant Nos.2 to 7 and drag the proceedings and therefore sought for dismissal of the application.
5. After considering the application and objections, the trial Court by the impugned order dated 22.7.2017 rejected the application filed by the plaintiffs under Order 26 Rule 9 and 10 r/w section 151 of CPC. Hence, the present writ petition is filed.
6. I have heard the learned counsel appearing for the petitioners.
7. Sri V.B.Siddaramaiah, learned counsel for the petitioners vehemently contended that the impugned order passed by the trial Court rejecting the application for appointment of Surveyor is without any basis and contrary to the materials on record. He further contended that the trial Court has committed an error in coming to the conclusion that the application was filed when the matter was posted for arguments, but the application filed only after completion of the evidence. The trial Court mechanically dismissed the application without application of mind. Therefore, he sought to quash the impugned order passed by the trial Court by allowing the present writ petition.
8. Having heard the learned counsel for the parties, it is not in dispute that the plaintiffs filed the suit for declaration of title in respect of the suit properties and for mandatory injunction directing to remove the raised stone slab in OPRN and PQMR portions respectively and for possession of the said property and for permanent injunction contending that they are the owners and in possession, same is disputed by the defendant by filing written statement and they never handed over portion of the property as alleged by the plaintiffs. It is also contended that after completion of the evidence when the matter was posted for arguments at that stage, the present application was filed by the plaintiffs under Order 26 Rule 9 and 10 of CPC. The prayer sought for in the application is to appoint the Surveyor to survey the suit survey numbers and demarcate what extent of land encroached by the defendants in the suit schedule survey number for effective adjudication of the matter. The prayer sought in the application shows that the plaintiffs got their own doubt that to demarcate what extent of land encroached by the defendants. It is for the plaintiffs who filed the suit for declaration and injunction to prove the declaration of title and what is the extent encroached by the defendants No.2 to 7. In the absence of any specifications of the extent encroached, the application filed to demarcate what extent land encroached is nothing but collecting the evidence, which is not permissible. On going through the evidence adduced by the parties to the suit and materials available on record, it is evident that the materials which are already on record are enough to decide the controversy between the parties. The suit was filed in the year 2009 and the application filed when the mater was posted for arguments. Therefore, the trial Court is of the opinion that application filed by the plaintiffs to know what extent the property encroached by the defendants by surveying is not necessary. Accordingly, the application came to be rejected.
9. It is well settled law that when the suit filed for declaration of title, mandatory injunction it should specified the extent of encroachment made by the defendants. In the absence of the same, the application filed to appoint Surveyor to know what extent property has been encroached is nothing but collection of evidence. The trial Court considering the materials on record dismissed the application filed by the plaintiffs, same is in accordance with law. The Petitioners have not made out any case to interfere with the impugned order under Article 227 of the Constitution of India. Accordingly, the writ petition is dismissed. However, it is made clear that the trial Court shall not influenced by any of the finding recorded under this order while considering the IA filed under Order XXVI Rule 9 and 10 and proceed with the suit strictly in accordance with law based on the oral and documentary evidence adduced by both the parties in accordance with law.
Sd/- JUDGE KLY/