Sri Anjinappa vs N V Ashwath Kumar
2022 Latest Caselaw 4024 Kant

    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 09TH DAY OF MARCH, 2022

                         BEFORE

          THE HON'BLE MR. JUSTICE E.S. INDIRESH

     WRIT PETITION NO.5042 OF 2022 (GM-CPC)

BETWEEN

    1. SRI ANJINAPPA
       S/O LATE NARAYANAPPA
       AGED ABOUT 60 YEARS

    2. SRI MALLESHA
       S/O ANJINAPPA
       AGED ABOUT 40 YEARS

    3. SRI NAVEEN @ BANGARI
       S/O ANJINAPPA
       AGED ABOUT 38 YEARS

    4. SRI LOKESH
       S/O ANJINAPPA
       AGED ABOUT 30 YEARS

    5. SRI BALAKRISHNA
       S/O LATE NARAYANAPPA
       AGED ABOUT 50 YEARS

    6. SRI SHANKAR
       S/O LATE NARAYANAPPA
       AGED ABOUT 48 YEARS

    7. SRI RAMESH
       S/O LATE NARAYANAPPA
       AGED ABOUT 44 YEARS
                            2




       ALL ARE R/AT NADAVTHI VILLAGE
       KASABA HOBLI,
       HOSKOTE TALUK
       BENGALURU RURAL DISTRICT-562 114.

                                           ...PETITIONERS

(BY SRI SHIVAKUMAR K, ADVOCATE)

AND

N V ASHWATH KUMAR
S/O VENKATAPPA
AGED ABOUT 46 YEARS
R/AT NADAVATHI VILLAGE
KASABA HOBLI,
HOSKOTE TALUK
BENGALURU RURAL DISTRICT
PIN-562 114.

                                           ....RESPONDENT

(BY SRI M B CHANDRA CHOODA, ADVOCATE)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN
NATURE OF CERTIORARI TO QUASH THE ORDER PASSED BY THE
COURT OF ADDITIONAL CIVIL JUDGE AND JMFC AT HOSAKOTE
ON IA. FILED UNDER ORDER XXVI RULE 9 READ WITH SECTION
151 OF CODE OF CIVIL PROCEDURE DATED 19TH FEBRUARY,
2022 VIDE AT ANNEXURE-G AND ETC.,

     THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
                                   3




                           ORDER

This writ petition is filed by the defendants 2 to 8,

challenging the order dated 19th February, 2022 in OS No.291 of

2008 on the file of Additional CJ and JMFC, Hosakote, allowing

the application filed under Order XXVI Rule 9 read with Section

151 of Code of Civil Procedure.

2. The case of the plaintiff is that the defendants are

interfering with the suit schedule property and suit schedule

property has been acquired by the plaintiff through deed of

partition dated 07th October, 2006. The said suit was contested

by the defendants and the trial Court by judgment and decree

dated 30th November, 2013, decreed the suit and being

aggrieved by the same, defendants/petitioners herein filed

Regular Appeal No.4 of 2014 before the First Appellate Court,

and the First Appellate Court, by judgment and decree dated

27th February, 2017 allowed the appeal, consequently, remanded

the matter to the trial Court for fresh disposal. In the

meanwhile, plaintiff has filed application under Order XXVI Rule

9 read with Section 151 of Code of Civil Procedure seeking

appointment of the Commissioner to determine the boundaries

of the suit schedule property. The said application was resisted

by the defendants. The trial Court, after considering the

material on record, by its order dated 19th February, 2022,

allowed the application and being aggrieved by the same, the

defendants have preferred this writ petition.

3. Heard Sri Shivshankara K, learned counsel appearing

for the petitioner and Sri M.B. Chandra Chooda, learned counsel

appearing for the respondent.

4. Sri Shivashankara K, learned counsel appearing for the

petitioner contended that the trial Court ought not to have

allowed the application as the same amounts to collection of

evidence and therefore, contended that the impugned order

passed by the trial Court requires interference in this writ

petition. In this regard, he places reliance on the judgment of

this court in the case of B.N. CHANDRASHEKAR v. M.

KRISHNAPPA reported in (2016)4 KCCR 3736.

5. Per contra, Sri M.B. Chandra Chooda, learned counsel

appearing for the respondent invited the attention of the Court

to the cross-examination of DW1 and argued that the issue

involved in the suit is with regard to determination of boundary

and as such, any amount of evidence adduced by the parties

would not render assistance to the trial court for adjudication of

the suit. Accordingly, he sought to justify the impugned order.

6. In the light of the submissions made by the learned

counsel appearing for the parties, it is not in dispute that the suit

is filed for permanent injunction and the defendant has disputed

the boundaries mentioned in the schedule to the plaint. The

DW1 in the cross-examination admitted that he has no objection

for appointment of Commissioner to inspect the suit schedule

property for effective adjudication of the suit. Taking into

consideration the disputed boundaries of the suit schedule

property and the schedule appended to the suit, I am of the view

that the trial Court rightly allowed the application filed by the

plaintiff appointing the Commissioner to determine the

boundaries. The judgment referred to by the learned counsel

appearing for the petitioner is not applicable to the case on hand

since the First Appellate Court, after considering the material on

record, remanded the matter for fresh disposal after affording

opportunity to both the sides. In that view of the matter, the

writ petition stands dismissed as devoid of merits.

Sd/-

JUDGE

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