Vrishabhendra vs K G Manjunatha
2021 Latest Caselaw 6889 Kant

                        1




 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 20TH DAY OF DECEMBER, 2021

                     BEFORE

    THE HON'BLE MR.JUSTICE B M SHYAM PRASAD

      WRIT PETITION NO. 22498/2021 (GM-CPC)


BETWEEN:

VRISHABHENDRA
S/O LATE RAMAPPA
AGED ABOUT 60 YEARS
AGRICULTURIST
RESIDING AT KUNDANAHALLI
VILLAGE,
PERIYAPATNA TALUK - 571107
MYSORE
                                     ...PETITIONER
(BY SRI SUNEEL S NARAYAN, ADV)


AND

1     K G MANJUNATHA
      S/O LATE GOVINDEGOWDA
      AGED ABOUT 36 YEARS
      RESIDINGAT KUNDANAHALLI
      CIRCLE VILLAGE
      KASABHA HOBLI
      PERIYAPATNA TALUK - 571107
      MYSORE

2     SMT VINODHA
      W/O VRISHABHENDRA
      AGED ABOUT 52 YEARS
      AGRICULTURIST
      RESIDING AT KUNDANAHALLI
      VILLAGE, PERIYAPATNA TALUK - 571107
      MYSORE
                               2




3    SMT.VEDHAVATI
     W/O LATE LOKESH
     D/O RAMEGOWDA
     AGED ABOUT 45 YEARS
     RESIDING AT KUNDANAHALLI
     VILLAGE,
     PERIYAPATNA TALUK - 571107
     MYSORE

4    SMT SHANTHA
     W/O CHANDREGOWDA
     D/O RAMEGOWDA
     AGED ABOUT 50 YEARS
     RESIDING AT KUNDANAHALLI
     VILLAGE, PERIYAPATNA TALUK - 571107
     MYSORE
                                  ..RESPONDENTS


     THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA PRAYING
TO SET ASIDE THE ORDER DATED 27.10.2021 ON
I.A.NO.13 PASSED IN O.S.NO.101/2011 ON THE FILE OF
CIVIL JUDGE AND JMFC,PIRIYAPATNA AT ANNEXURE-L
AND IN TURN ALLOW THE APPLICATION.

     THIS PETITION COMING ON FOR                PRELIMINARY
HEARING    THIS   DAY,        THE       COURT    MADE       THE
FOLLOWING:


                        ORDER

The petitioner is the first defendant in

O.S.No.101/2011 on the file of the Civil Judge and

JMFC, Periyapatna (for short, 'the civil Court'). The

petitioner has impugned the civil Court's order dated

27.10.2021. The civil Court by its impugned order

has rejected the petitioner's application (I.A.No.13)

under Order XXVI Rule 9 read with Section 151 of

the Code of Civil Procedure,1908 (for short, 'the CPC')

for appointment of the Commissioner opining that

the burden of establishing the identity and location of

the suit schedule property is on the first respondent -

plaintiff and he must discharge the burden of

establishing the identity and location of the subject

property to succeed in declaration of title in the suit

for injunction.

The civil Court has also observed that though

the application is filed asserting that first respondent

is trying to seek declaration of title to a portion of

land in Sy.Nos.46/1 and 46/2 of Kundanahalli

village, the petitioner has not stated in his written

statement that the first respondent has encroached

any portion of the lands in Sy.Nos.46/1 and 46/2.

Further, the civil Court has opined that there is no

ambiguity either in the pleadings or the documents.

The learned counsel for the petitioner submits

that the petitioner has succeeded in his earlier suit

for declaration of title and injunction against the first

respondent and this judgment and decree, in favour

of the petitioner, is also confirmed with the dismissal

of the first respondent's appeal. The first respondent

has commenced this suit during the pendency of

earlier proceedings. If a Commissioner is appointed to

visit the schedule property and report whether the

property claimed by the petitioner is either

gramathana or the lands in the aforesaid survey

numbers, the litigation would be minimized.

This Court is not persuaded to interfere with

the civil Court's order. It must be observed that if the

petitioner has the advantage of declaration of title of

property to which he says that first respondent

stakes a claim, he must rely upon such declaration.

Therefore, the petition stands rejected.

SD/-

JUDGE

*sp