Karnataka High Court

Sri. C. N. Rudramurthy vs Sri. C. R. Nagappa & Sons on 17 January, 2022

Bench: Ashok S.Kinagi

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 17TH DAY OF JANUARY 2022

                      BEFORE

      THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

  WRIT PETITION NO.61170 OF 2016 (GM-CPC)

BETWEEN:

SRI. C. N. RUDRAMURTHY
S/O. LATE C.R. NAGAPPA,
AGED ABOUT 64 YEARS,
R/AT NO.40, HOSPITAL ROAD,
BANGALORE - 1.
                                       ...PETITIONER

(BY SRI. CHANDRASHEKHAR PATIL, ADV.)

AND

SRI. C. R. NAGAPPA & SONS
REGISTERED CHARITABLE TRUST,
NO.16, KASTURBA ROAD,
BANGALORE-560 001,
REPRESENTED BY ITS TRUSTEE SECRETARY,
SRI. C. N. KUMAR,
S/O. LATE C.R. NAGAPPA,
AGED ABOUT 64 YEARS.
                                    ...RESPONDENT

(BY SMT. VAISHALI HEGDE, ADV.)
                               2




     THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DTD. 21.10.2016 PASSED ON IA NO.XVI IN
O.S.NO.4168/2010 BY THE XVI ADDL. CITY CIVIL JUDGE,
BANGALORE [CCH NO.28] AT ANNEXURE-G AND
CONSEQUENTLY ALLOW THE APPLICATION I.A.NO.XVI AT
ANNEXURE-D SEEKING APPOINTMENT OF COMMISSIONER
UNDER ORDER XXVI RULE 9 R/W SEC.151 OF C.P.C.

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:

                        ORDER

The petitioner being aggrieved by the order

dated 21.10.2016, passed on I.A.No.16 in O.S.No.

4168/2010 by the XVI Addl. City Civil Judge,

Bangalore (CCH-28) has filed the present writ pn.

2. Brief facts leading rise to filing of this pn are

as under:

The petitioner filed a suit in O.S.No.4168/2010

for the relief of mandatory injunction directing the

respondent to take steps for removal of illegal and

unauthorized structures put up on the suit schedule

properties as shown in the annexed plan at Annexure-

B and to get the said structures removed forthwith

and also sought for mandamus directing that in the

event of failure on the part of the respondent to

remove the said structures, same may be got

removed by the Court by appointment of a

Commissioner or in any other manner. In the said

suit the respondent filed written statement. Parties

have adduced evidence. When the case was posted

for argument, the petitioner filed I.A.No.16 seeking to

appoint an ADLR as the Commissioner to conduct

survey and measure the properties bearing No.13 and

14 and report the entire extent of the properties along

with boundaries and also to find out the extent of the

entire land in 'A' and 'B' portion of the plaint sketch

map. The petitioner has filed an affidavit stating that

the petitioner has filed a suit for mandatory injunction

for removal of unauthorized structures put up on the

Schedule-B property. It is contended that property

bearing No.13 and 14 was originally owned by the

petitioner. Property No.13 measuring 14650 sq.ft.

was said to be gifted by the petitioner to the

respondent-Trust under the gift deed dated

29.03.1978, in order to construct a marriage hall and

student hostel. The respondent is said to have

illegally installed generators and other equipments in

the Schedule-B property belonging to the petitioner.

It is contended that the petitioner is said to have

continued to be in the ownership of the remaining

portion of land. It is further contended that common

tenant of petitioner and respondent is said to have

installed generators and other equipments in

Schedule-B property of the plaint sketch. The said

tenants vacated 'A' and 'C' schedule properties. The

respondent refused to remove the installation in

Schedule-B property. It is contended that during the

course of cross-examination of DW-1, it is stated that

respondents have no objection to appoint a surveyor

to measure the properties. Hence on the basis of the

admission made by DW-1, the petitioner has filed an

application to appoint ADLR as a Commissioner.

The said application was opposed by the

respondent contending that the application is filed at

the final stage of arguments and the said application

is filed to drag on the matter. It is contended that gift

deed in respect of property No.13 measuring 14,650

sq.ft., was gifted by the petitioner to the defendant-

Trust under the registered gift deed dated

29.03.1978. The ownership of the properties No.13

and 14 by the petitioner is an admitted fact. It is

contended that properties bearing No.13 and 14 is

said to be measuring 17,050 sq.ft. and not 18,034

sq.ft. as stated in the plaint. The petitioner executed

a gift deed to the extent of 14,650 sq.ft. The gifted

portion is said to include the main building bearing

Municipal No.13 (old) and a portion of Municipal No.14

(old), in all measuring 14,650 sq.ft. The

measurement of remaining property was retained by

the petitioner to an extent of 2,400 sq.ft. and not

3,384 sq.ft. It is contended that the generator

installed in 'B' portion in the plaint sketch belongs to

the respondent-Trust. There is no relationship of

common tenant to the petitioner and respondent. If

the petitioner is aggrieved by the measurement and

boundaries in respect of the properties No.13 and 14,

petitioner is always under the liberty to approach the

competent authority in its private capacity and get the

survey conducted and the same may be rectified, if

the petitioner feels necessary. The relief sought by

the petitioner is said to have no bearing on the

measurement of the property. Hence prayed to reject

the application.

The Trial Court after hearing the parties,

rejected the said application vide order dated

21.10.2016. The petitioner aggrieved by the same,

has filed this writ petition.

3. Heard Sri. Chandrashekar Patil, learned

counsel for petitioner and Sri. K. N. Phaneendra,

learned Senior counsel appearing on behalf of Smt.

Vaishali Hegde, for respondent.

4. Learned counsel for the petitioner submits

that if ADLR is appointed as a Commissioner to

measure the suit schedule properties, no injustice

would be caused to the respondent. He further

submits that if a report is submitted by the Court

Commissioner, it would not lead to collection of

evidence. He further submits that the title deed of the

petitioner is of the year 1955. In the said title deed,

measurement and extent is not mentioned. He

further submits that the respondent has categorically

disputed the extent of schedule properties as 18,034

sq.ft., as claimed by the petitioner, out of which

admittedly an extent of 14,650 sq.ft. was gifted by

the petitioner to the respondent. As such, remaining

extent was retained by the petitioner. He further

submits that the Trial Court can come to a conclusion

on the basis of the report of the Court Commissioner.

He further submits that the Trial Court has committed

an error in rejecting I.A.No.16. He further submits

that the impugned order passed by the Trial Court is

arbitrary and perverse and same is liable to be set

aside. Hence, on these grounds, he prays to allow the

writ petition.

5. Per contra, learned Senior counsel for the

respondent submits that the petitioner has gifted the

portion of property to an extent of 14,650 sq.ft. in

favour of respondent - Trust and the respondent is in

possession to an extent of 14,650 sq.ft. The

respondent is not in possession beyond what has been

gifted to the respondent. He submits that the

petitioner has filed a suit for mandatory injunction on

the ground that due to installation of generators, the

noise and sound are generating from the generators

and smoke emanating there from will result in noise

and air pollution and cause inconvenience and

hardship to the petitioner. It is not the case of the

petitioner that the respondent is in excess possession

of the property which was gifted. He further submits

that if the Court Commissioner is appointed and

submits a report, virtually it amounts to collecting

evidence. In support of his argument, he has placed

reliance on the following judgments:

1. H.R.Ramaiah & Ors. vs. Puttalaxmamma reported in 2015 SCC Online KAR 4102.

2. Annappa Mestha vs. Mutayya Achari reported in ILR 2002 KAR 3599.

3. Miss Renuka vs. Sri. Tammanna & Ors. reported in ILR 2007 KAR 3029

4. Sundaramma vs. S. Venkatesh reported in SCC Online KAR 11624.

He further submits that the Trial Court was

justified in passing the impugned order. Hence, on

these grounds, he prays to dismiss the writ petition.

6. Perused the records and considered the

submissions made by learned counsel for the parties.

7. The petitioner filed a suit for mandatory

injunction on the ground alleged in paragraph Nos.10

and 11 of the plaint, which reads as under:

"10. The plaintiff submits that since BPL Limited was the common tenant in respect of both A and C schedule properties, the entire property including the B schedule property was being used by them. The said BPL Limited recently vacated and has handed over vacant possession of the suit A and C schedule properties to the defendant and plaintiff respectively. It is only after taking possession of the suit C schedule property from the tenant that the plaintiff realized that the structures and installations on the suit B schedule property were causing inconvenience and nuisance for the enjoyment of the suit C schedule property belonging to the plaintiff. The noise and sound coming from the generators and the smoke emanating there from will result in noise and air pollution and cause inconvenience and hardship to the plaintiff in respect of the suit C schedule property belonging to him. In fact when the said structures and installations were put up on

the suit 'B' schedule property by the tenant, BPL in the year 1988. it was understood between the plaintiff and the defendant that the same would be removed after the tenant, BPL Limited had vacated and A and C schedule properties since the said structures and installations in B schedule property would not be required thereafter.

11. The plaintiff submits that as stated supra, he was not aware of the air and noise pollution that was being caused by the structures and installations on the suit B schedule property till the tenant BPL Limited vacated and handed over possessions of the suit C schedule property to him. The said structures and installations, in addition to causing air and noise pollution are also a hazard to the health of anyone in occupation of the A and C schedule properties. It is submitted that the plaintiff is entitled to own, possess and enjoy the suit C schedule property without

any obstruction or hindrance from the B schedule property or the installations and structures thereon. Photographs indicating the said structures and installations are herewith produced as Annexures-C1 to C6."

8. From the perusal of paragraphs 10 and 11 of

the plaint, the petitioner has filed a suit for mandatory

injunction on the ground that the noise and sound

coming from the generators and the smoke emanating

there from will result in noise and air pollution and

cause inconvenience and hardship to the petitioner.

From the perusal of the contents of the application

i.e., I.A.No.16, the petitioner has stated in the

application that respondent has illegally installed

generators and other equipments in 'B' schedule

property belonging to the petitioner. The said fact has

not been pleaded by the petitioner in the plaint. On

the contrary, the petitioner has stated that common

tenant of the petitioner and respondent has installed

generators and other equipments in 'B' schedule

property marked as 'B' portion in the plaint sketch and

after the tenants vacated the 'A' and 'C' schedule, the

respondent has refused to remove the installation in

'B' schedule property. The petitioner has sought for

appointment of ADLR as a Commissioner to conduct

the survey and measure the properties bearing No.13

and 14 of the suit schedule properties. The relief

sought in I.A.No.16 is not in consonance with the

prayer sought in the plaint. The relief sought in

I.A.No.16 is outside the scope of the suit. It is not the

case of the petitioner that the respondent has made

an encroachment in the property of the petitioner. As

discussed above, the suit is filed for mandatory

injunction to remove illegal and unauthorized

structures put up on the suit schedule 'B' property

only on the ground that because of noise and sound

coming from the generators, and not on the ground

that there is a variation of measurement in the

property. Further, the suit is not in respect of

measurement of suit schedule properties and no relief

is sought in respect of measurement and no issue was

framed on the point of measurement of suit schedule

properties. The petitioner has filed an application

seeking for appointment of Commissioner to measure

the properties and submit a report.

9. In order to consider the contention of the

petitioner, it is necessary to consider Order XXVI Rule

9 CPC, which reads as under:

"Commissions to make local investigations.--In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne

profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules"

The need to resort to Order 26 Rule 9 of CPC

ought to be felt by the Court for the purpose of

elucidating certain details which in its opinion can

neither be felt which can neither be had from the

records nor can be produced by the parties by way of

oral/documentary evidence. The details so required

by the Court ought to be sought, since in their

absence determination of issue in dispute cannot be

effectively adjudicated. Hence, necessitating the

appointment of Commissioner on its own or at the

instant of either of the parties.

10. In the present case, the Trial Court is of the