Karnataka High Court
Sri Nagaraja vs Smt Lalitha on 28 June, 2024
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WP No. 13744 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE M.I.ARUN
WRIT PETITION NO. 13744 OF 2024 (GM-CPC)
BETWEEN:
1. SRI. NAGARAJA,
S/O LATE VENKATAPPA,
AGED ABOUT 48 YEARS,
2. SRI. CHIKKAPPAIAH,
S/O LATE CHIKKANAGAPPA,
AGED ABOUT 51 YEARS,
3. SRI. MUNINAGAPPA,
S/O LATE VENKATARAMANAPPA,
AGED ABOUT 42 YEARS,
PETITIONERS 1 TO 3 ARE
Digitally R/AT MYLANAHALLI VILLAGE, JALA HOBLI,
signed by V
MANJUSHA BANGALORE NORTH TALUK - 562 149.
BAI ...PETITIONERS
Location:
High Court of (BY SRI. SHARATH N, ADVOCATE)
Karnataka
AND:
1. SMT. LALITHA,
W/O RAMAIAH,
D/O LATE CHIKKAMUDDAIAH,
AGED ABOUT 61 YEARS,
R/AT SEEGEHALLI VILLAGE,
BIDARAHALLI HOBLI,
BANGALORE SOUTH TALUK, BANGALORE.
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2. SMT. KANTHA,
W/O SUDHAKAR,
D/O LATE CHIKKAMUDDAIAH,
AGED ABOUT 57 YEARS,
R/AT NO. 203, PUSHPNAJALI APARTMENT,
RAYAN SARKAL, NEAR CANARA BANK,
CHAMARAJPETE, BANGALORE.
3. SMT. VANNAMALA,
W/O LATE NARAYANAPPA,
D/O LATE CHIKKAMUDDAIH,
AGED ABOUT 56 YEARS,
R/AT OPP AYYAPPA SWAMY TEMPLE MAIN ROAD,
MAHALAKSHMI LAYOUT,
BANGALORE NORTH.
4. SRI. C. MANJUNATH,
S/O LATE CHIKKAMUDDAIAH
AGED ABOUT 54 YEARS,
R/AT KADAYARAPANAHALLI VILLAGE,
JALA HOBLI, YELAHANKA TALUK
BANGALORE.
5. SMT. SHYLAJA,
W/O SRINIVAS,
D/O LATE CHIKKAMUDDAIAH
AGED ABOUT 52 YEARS,
R/AT HUSKURU VILLAGE,
BIDARAHALLI VILLAGE,
HOSKOTE TALUK,
BANGALORE RURAL DISTRICT.
6. SRI. K.C. SATISH,
S/O LATE CHIKKAMUDDAIAH,
AGED ABOUT 49 YEARS,
R/AT KADAYANAPANAHALLI VILLAGE,
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JALA HOBLI, YELAHANKA TALUK,
BANGALORE.
7. SMT. AKKAYAMMA,
D/O LATE MUNISHAMAPPA,
AGED ABOUT 45 YEARS,
8. SMT. NAGARATHNAMMA,
D/O LATE MUNISHAMAPPA,
AGED ABOUT 45 YEARS,
9. SRI. VENKATESH,
S/O LATE MUNISHAMAPPA,
AGED ABOUT 35 YEARS,
10. SRI. MUNIKRISHNAPPA,
S/O LATE MUNISHAMAPPA,
AGED ABOUT 32 YEARS,
11. SRI. VENKATARAMANAPPA,
D/O LATE MUNINAGAPPA @ MUNIGA,
AGED MAJOR
12. SRI. NARAYANASWAMY,
S/O LATE CHIKKANAGAPPA,
AGED MAJOR,
13. SRI. VENKATESH @ PAPAIAH,
S/O CHIKKANAGAPPA,
AGED MAJOR,
14. SMT. AKKAYAMMA,
S/O LATE CHIKKANAGAPPA,
AGED MAJOR,
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15. SRI. MUNISHAMI,
S/O LATE MUNIGA,
AGED ABOUT 65 YEARS,
16. SMT. NAGARATHNAMMA,
D/O LATE VENKATARAMANAPPA,
AGED ABOUT 45 YEARS,
R/AT THIMMASANDRA VILLAGE,
SULIBELE POST AND HOBLI,
HOSKOTE TALUK
BANGALORE RURAL DISTRICT - 562 114.
17. SMT. AKKAYAMMA,
W/O LATE RAJANNA,
AGED ABOUT 38 YEARS,
18. SRI. RAMANJINAPPA
S/O LATE VENKATARAMANAPPA,
AGED ABOUT 36 YEARS,
19. SRI. KRISHNAPPA,
S/O LATE VENKATARAMANAPPA,
AGED ABOUT 30 YEARS,
RESPONDENT NOS. 7 TO 15 AND 17 TO 19
ARE R/AT MYLANAHALLI, JALA HOBLI,
BANGALORE NORTH TALUK - 562 149.
20. SMT. PRAMILA,
D/O LATE VENKATARAMANAPPA,
AGED ABOUT 25 YEARS,
R/AT GOBBARAGUNTE VILLAGE,
AVATHI POST, KASABA HOBLI,
DEVANAHALLI TALUK
BANGALORE RURAL DISTRICT - 562 110
...RESPONDENTS
(BY SRI. MANJUNATH G. KANDEKAR, ADVOCATE FOR R4 & R6.,
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WP No. 13744 of 2024
SERVICE OF NOTICE TO OTHER RESPONDENTS ARE NOT
NECESSARY.,)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
DATED 22.3.24 PASSED BY THE HONBLE 1ST ADDL. SENIOR
CIVIL JUDGE AND JMFC, DEVANAHALLI, BENGALURU RURAL IN
OS NO. 476/2010 ON IA NO. XXVI DATED 15.3.24 FILED BY
PETITIONERS HEREIN UNDER ORDER 26 RULE 9 OF CPC AS
PER ANNEXURE A. AND ETC.,
THIS PETITION, COMING ON FOR ORDERS, THIS DAY
THROUGH VIDEO CONFERECNING / PHYSICAL HEARING, THE
COURT MADE THE FOLLOWING:
ORDER
1. The petitioners herein are defendant Nos.1, 3(b) and 5(b) before the trial Court.
2. O.S.No.476/2010 came to be filed with the following prayers:
"Wherefore, the plaintiffs prays that the Hon'ble court be pleased to pass a judgment and decree in their favour of the Plaintiff against defendants:-
(a) Declare that the plaintiff is the absolute owner in peaceful possession and enjoyment of the suit -6- NC: 2024:KHC:24231 WP No. 13744 of 2024 schedule property on the basis of the registered sale deed dated 17-10-1969, 10-01-1971 and 19-
01-1972.
(b) Declare that the alleged registered partition deed dated 18-10-2007 is not binding on the Plaintiff.
(c) Restraining the defendants from interfering with the plaintiff peaceful possession and enjoyment of the suit schedule properties either by themselves or their agents or any person's claiming through or under them by way of permanent injunction.
(d) Grant such other relief's as this Hon'ble court deems fit under the circumstances of the case in the interest of justice and equity."
3. Based on the pleadings of the parties, the trial Court framed the following issues:
"1) Whether the plaintiff proves that he is the absolute owner in possession of the suit schedule properties on the basis of registered sale deeds dated 17-10-1969, 19-11-1971 and 19-01-1972?
2) Whether the defendant No.1 and legal heirs of defendant No.3 prove that they are the owners in possession of the suit schedule properties, same -7- NC: 2024:KHC:24231 WP No. 13744 of 2024 has been divided through registered Partition Deed dated 18-10-2007?
3) Whether the plaintiff proves that the Partition Deed dated 18-10-2007 is not binding on him?
4) Whether the plaintiff is entitled for the relief of declaration?
5) What order or decree?"
4. The parties have let in their evidence. When the matter was posted for the arguments, the defendants filed an application under Order 26 Rule 9 read with Section 151 of the CPC with the following prayers:
"That for the reasons stated in the accompanying affidavit the defendant's prays that this Hon'ble court may be pleased to appoint a Court Commissioner i.e., Taluk Surveyor, Yalahanka Taluk to conduct the spot inspection and to measure the Plaint schedule property and who is in possession in the suit schedule property and identify who is constructed building in the suit schedule property and to report the same before this Hon'ble court by preparing the sketch, in the interest of justice and equity."-8-
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5. The trial Court has dismissed the said application holding that appointment of Court Commissioner under the facts and circumstances of the case is not required. Aggrieved by the same, the present writ petition is filed.
6. Admittedly, the suit is filed for a relief of declaration on the basis of sale deeds, for a prayer of registered partition deed not binding on the plaintiffs; and to restrain the defendants from interfering with the plaintiffs peaceful possession and enjoyment of the suit schedule properties.
7. The issues are also framed keeping in mind the prayer and the pleadings made by the parties.
8. The burden of proving the facts warranting the said relief is on the plaintiffs.
9. To establish the facts pleaded to prove the issues framed appointment of Court Commissioner as sought by the defendants / petitioners herein is not required. For that reason, the trial Court has dismissed the application. I do not see any error in the same.
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10. For that reason, the Writ Petition is hereby dismissed. As the writ petition being dismissed, notice to the unserved respondents is dispensed with.
Pending Interlocutory Applications, if any, stand disposed of.
SD/-
JUDGE CH List No.: 1 Sl No.: 13 CT: BHK