IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B. VEERAPPA WRIT PETITION No.35055 OF 2017 (GM-CPC) BETWEEN :
1. SRI. RAMACHANDRA GOWDA, S/O. PUTTAPPA, AGED ABOUT 53 YEARS, R/A MUGABALA VILLAGE, JADIGENAHALLI HOBLI, HOSAKOTE TALUK, BANGALORE RURAL DISTRICT.
2. SMT. JAYAMMA, W/O. RAMACHANDRA GOWDA, AGED ABOUT 50 YEARS, R/A MUGABALA VILLAGE, JADIGENAHALLI HOBLI, HOSAKOTE TALUK, BANGALORE RURAL DISTRICT.
(BY SRI. KEMPANNA, ADV.) AND :
SRI. K.NANJE GOWDA, S/O. KARIYANNA, AGED ABOUT 70 YEARS, R/A MUGABALA VILLAGE, ...PETITIONERS JADIGENAHALLI HOBLI, HOSAKOTE TALUK, BANGALORE RURAL DISTRICT.
(BY SRI. SHANKARAPPA G. ADV. FOR …RESPONDENT SRI. P.M.SIDDAMALLAPPA, ADV.) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS FROM THE ADDITIONAL CIVIL JUDGE AND JMFC AT HOSAKOTE IN O.S.NO.195/2012 PERUSE THE SAME AND SET-ASIDE THE ORDER DATED 07.07.2017 ON I.A. UNDER ORDER XXVI RULE 9 READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE 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 1. The defendants have filed the present writ petition against the order dated 07.07.2017 on I.A. made in O.S.No.195/2012 rejecting the application for appointment of Court Commissioner under Order 26 Rule 9 of Code of Civil Procedure. The respondent who is the plaintiff before the Trial Court filed suit for declaration and for permanent injunction in respect of the suit schedule properties more fully described in the plaint contending that he is in actual physical possession of the suit schedule properties and the name of the plaintiff is entered in M.R.No.61/88-89 by the Mugabala Gram Panchayath, based on the statement given by the uncle of the plaintiff namely Chikkappaiah, son of Munishamappa, wherein the said mutation has been accepted and based on which the plaintiff was put in possession and is continuing in possession and enjoyment of the suit schedule properties. Defendants have no manner of right, title or interest over the suit schedule properties. Therefore he filed the suit for declaration and for permanent injunction in respect of the suit schedule properties.
2. The defendants filed the written statement denying the entire plaint averments and contended that the very suit filed by the plaintiff is not maintainable and further contended that the plaintiff has filed the suit after lapse of 15 years on the basis of false claim by making wrong description of the suit of the property including the property of the defendants in the plaint, etc. Therefore, they have sought for dismissal of the suit.
3. After completion of the evidence of the plaintiff, when the matter was posted for defendants’ evidence, at that stage, the defendants filed application under Order 26 Rule 9 of Code of Civil Procedure for appointment of Court Commissioner to make local investigation of the plaintiff’s properties and the defendants’ properties. The said application was resisted by the plaintiff by filing objections and contended that he is the absolute owner of the suit schedule properties and sought for injunction and reiterated the averments made in the plaint. The trial court considering the application and objections filed by the parties, by impugned order dated 07.07.2017 rejected the application filed by the defendants under Order 26 Rule 9 of Code of Civil Procedure. Hence, the present writ petition is filed.
4. I heard the learned counsel for the parties to the lis.
5. Sri. Kempanna, learned counsel for the petitioners vehemently contended that the impugned order passed by the trial court rejected the application for appointment of Court Commissioner is erroneous and contrary to material on record. He further contended that the plaintiff has no interest over the suit schedule properties. He is not in possession of the properties in question. The plaintiff has given wrong description of the defendants’ properties to knock off the same. The documents produced by the respondents during evidence as PW-1, are concocted by the concerned Mandal Panchayat and the same is admitted by him. The trial court has not considered the material documents produced and the admission made by the PW-1, while passing the impugned order. Therefore, he sought for quashing of the impugned order by allowing the Writ Petition.
6. Per Contra, Sri. Shankarappa G, learned counsel for Sri. P.M. Siddamallappa, learned counsel for the caveator - respondent No.1 sought to justify the impugned order and contended that when the plaintiff has filed the suit for declaration, he has to prove his ownership and possession and interference over the suit schedule properties by the defendants and that the very application filed by the defendants is pre-mature and liable to be dismissed and accordingly he sought for dismissal of the writ petition.
7. Having heard the learned counsel for the parties, it is not in dispute that the respondent-plaintiff filed the suit for declaration and permanent injunction in respect of the suit schedule properties more fully described in the schedule contending that he is the owner and in possession and enjoyment of the suit schedule properties. The same is disputed by the defendants by filing written statement and contended that the plaintiff has wrongly described and included the properties of the defendants, in the schedule to the plaint. Whether the plaintiff is the owner and whether he has given wrong description of the properties is the matter of evidence and matter has to be considered after adjudication of the trial between the parties.
8. Admittedly, in the present case, after completion of evidence, on the statement made by PW- 1, defendants have made present application. The trial court considering the entire material on record, rightly rejected the application holding that it is for the plaintiff who came to the court for declaration of title and permanent injunction has to prove his ownership over the suit schedule property. It is for the plaintiff to establish his case and the entire burden lies on the plaintiff. The defendants have not filed any counter claim along with the written statement. The person who comes to the court has to establish independently. Therefore, even before the completion of evidence, the application filed by the defendants for measurement of plaintiff’s properties and the defendants’ properties is pre-mature. The suit is filed in respect of Sy.No.33/1 measuring East to West 12 ft. and North to South 51 ft. and Sy.No.33/2 measuring East to West 18 ft and North to South 48 ft. more fully described in the schedule. The property claimed by the defendants is house property bearing house list No.130 and 131, is not the subject matter of the suit. Therefore, the question of appointment of Court Commissioner for measurement of defendant’s properties does not arise. It is only the plaintiff, who has to prove his title for the suit properties for declaration, permanent injunction. Therefore, the trial court was right in rejecting the said application and the same is in accordance with law.
The petitioner-defendants have not made out any ground to interfere under Article 227 of the Constitution of India.
Accordingly, the Writ Petition is dismissed.
Sd/- JUDGE sd