IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.6443/2019 (GM-CPC) BETWEEN:
Sri. Krishnappa, 56 years, S/o. Gangaiah, R/at Kurudihalli Village, Kothagere Hobli, Kunigal Taluk, Tumakur District -572 130. ...Petitioner (By Sri. Siddamallappa P.M., Advocate) AND:
1) Sri. Thimmegowda, 63 years, S/o. late Mudlaiah, R/at Kurudihalli Village, Kothagere Hobli, Kunigal Taluk, Tumkur District -572 130.
2) Smt. Parvathamma, 43 years S/o. Thimmegowda, R/at. Kurudihalli Village, Kothagere Hobli, Kunigal Taluk, Tumkur District -572 130.
3) Sri. Mallappa, 53 years, S/o. Gangaiah, R/at Kurudihalli Village, Kothagere Hobli.
Kunigal Taluk, Tumkur District -572 130.
4) Sri. Gangathimmaiah, 55 years, S/o. Gangaiah, R/at Kurudihalli Village, Kothagere Hobli, Kunigal Taluk, Tumkur District -572 130.
5) Sri. Mudlaiah, 58 years, S/o. Gangaiah, R/at Kurudihalli Village, Kothagere Hobli, Kunigal Taluk, Tumkur District -572 130.
6) Smt. Siddagangamma, W/o. Late Srinivasa, Aged about 63 years, R/at Kurudihalli Village, Kothagere Hobli, Kunigal Taluk, Tumkur District -572 130. … Respondents This Writ Petition is filed under Articles 226 and 227 of Constitution of India praying to set aside the order dated 09.01.2019 passed by the Trial Court in O.S. No. 103/2011 as per Annexure –F and etc.
This writ petition coming on for Preliminary Hearing this day, the Court made the following:
O R D E R The petitioner/defendant-1 filed the present writ petition against the order dated 09.01.2019 rejecting the application filed by the defendant-1 on Order XXVI Rule 9 of Code of Civil Procedure in O.S. No. 103/2011 on the file of the Civil Judge and JMFC, Kunigal.
2. The respondent Nos. 1 and 2 were the plaintiffs before the trial Court and filed a suit for declaration and permanent injunction in respect of the suit schedule property more-fully described in the schedule to the petition, contending that they are the owner of the schedule property and petitioner/defendant has no manner right, title and interest to interfere with the same.
3. The defendant has filed written statement and denied the plaint averments and contended that the defendants 1 to 4 are in possession, enjoyment of the written statement schedule property Sy. No. 110/5 measuring 29 Guntas, with the boundaries mentioned there in. The defendants are the absolute owners having title of the same. The suit filed by the plaintiffs is not maintainable. The plaintiffs without acquiring the land belonging to the defendants for pathway, are also without giving any compensation, taking law into their own hands harassing the defendants, plaintiffs are again interefered with the written statement suit schedule property etc., and also contended that the plaintiffs are in possession of the ‘B’ schedule property and they have no easementry right as alleged in the plaint and sought for dismissal of the suit.
4. After completion of the evidence on both sides, the first defendant/present petitioner filed an application under Order XXVI Rule 9 read with Section 151 of Civil Procedure Code, seeking appointment of Court Commissioner to visit the spot i.e., Sy. No. 110/5 and to find out whether any pathway is existing towards northern side of the said survey numbers as shown in the plaint, reiterating the averments made in the written statement. The said application was resisted by the plaintiff. The trial Court considering the application filed by the petitioner proceeded to pass the impugned order dated 09.01.2019 rejecting the said application. Hence, the present writ petition is filed.
5. I have heard the learned counsel for the petitioner.
6. Shri. Siddamallappa, learned counsel for the petitioner contended that the impugned order passed by the trial Court rejecting the application filed under Order XXVI Rule 9 of Code of Civil Procedure is erroneous and contrary to the material on record. He would further contend that the trial Court is not justified by rejecting the application for appointment of Court Commissioner to visit the spot in Sy. No. 110/5 to find out whether any pathway exists towards Northern side survey numbers, as shown in plaint rough sketch and submit report, is much warranted and it helps in better adjudication of the facts and issues involved in the case. On that ground he submitted that the impugned order cannot be sustained. He further contended that the present application filed by the petitioner under Order XXVI Rule 9 after the completion of evidence, there is no impediment to appoint Court Commissioner as sought for. Therefore, he sought to allow the writ petition.
7. Having heard the learned counsel for the petitioner, the plaintiffs filed suit for declaration and for permanent injunction in respect of suit schedule ‘A’ and ‘B’ properties morefully described in schedule to the plaint, contending that they are the owners of the plaint Schedule property and there exists pathway towards No edge of the ‘A’ schedule property described in ‘B’ schedule property, as well as in the sketch. The said contentions raised by the plaintiffs have been denied by the defendants and contended that there is no pathway exists as alleged. It is for the plaintiffs who come to the Court for declaration and permanent injunction to prove the existence of the alleged pathway based on the oral and documentary evidence to be adduced. The entire burden is on the plaintiffs who asserted the existence.
8. The defendant in categorical terms has filed written statement and denied the very existence of the ‘B’ schedule property. Therefore, the very application filed by the defendant for appointment of Court Commissioner to visit the spot and to find out the alleged pathway existing towards North side in Sy. No. 110/5 would not arise. The trial Court considering the application and statement of objections, recorded the findings that the suit filed by the plaintiffs for declaration that they have the right over the ‘B’ schedule property, defendants have denied the very existence of ‘B’ schedule property. The evidence of the plaintiff and defendants is over; when the matter is posted for arguments, the application filed. The suit is filed by the plaintiffs asserting that he has right over the pathway. He is having the burden to prove the existence of pathway and its use. The defendants denied the existence and accordingly rejected the application.
9. Sri. Siddamallappa P.M., learned counsel for the petitioner submits that while rejecting the application trial Court observed that the plaintiffs resisted strongly for local inspection and defendant is confident that he has prove the existence of the pathway. Under the application defendant prays to appoint the surveyor or any other person to see whether there is any pathway, such prayer is not tenable, and it is unjust hence the trial Court rejected the application.
10. In view of the above, petitioner has not made out any ground to allow the writ petition in exercise of power under Article 227 of Constitution of India. Accordingly, writ petition is dismissed.
11. However, it is made clear that any observations made by the trial Court while deciding the application under Order XXVI Rule 9 of CPC and the observations made by this Court, shall not be taken into consideration by the trial Court and the trial Court has to decide the suit based on the oral and documentary evidence, strictly in accordance with law.
Sd/- JUDGE BVK