Smt Parvathamma vs Shivabasappa B
2023 Latest Caselaw 11208 Kant

Karnataka High Court

Smt Parvathamma vs Shivabasappa B on 20 December, 2023

Author: S.G.Pandit

Bench: S.G.Pandit

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                                                       NC: 2023:KHC:46455
                                                     WP No. 28226 of 2023




                IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 20TH DAY OF DECEMBER, 2023

                                            BEFORE

                        THE HON'BLE MR JUSTICE S.G.PANDIT

                     WRIT PETITION NO. 28226 OF 2023 (GM-CPC)

                BETWEEN:

                1.   SMT. PARVATHAMMA
                     W/O MAHALINGAPPA,
                     AGED ABOUT 77 YEARS,

                2.   SRI PRAKASHA
                     S/O MAHALINGAPPA,
                     AGED ABOUT 58 YEARS,

                3.   SRI DAYANANDA
                     S/O MAHALINGAPPA,
                     AGED ABOUT 56 YEARS,

                4.   SRI CHANDRASHEKAR
                     S/O MAHALINGAPPA,
                     AGED ABOUT 53 YEARS,
Digitally
signed by A K
CHANDRIKA            ALL R/AT MELANAHALLY VILLAGE,
Location:            KASABA HOBLI, C N HALLI TALUK
HIGH COURT           TUMKUR DISTRICT 572101.
OF                                                           ...PETITIONERS
KARNATAKA
                (BY SRI. VEERESH BUDIHAL, ADV. FOR
                 SMT. JAITHRA J.NARAYAN, ADV.)

                AND:

                1.   SHIVABASAPPA B
                     S/O BETTAEGOWDA,
                     AGED ABOUT 77 YEARS,

                2.   M S SHAHSIKIRAN
                     S/O SHIVABSAPPA B,
                     AGED ABOUT 48 YEARS,
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                                               NC: 2023:KHC:46455
                                          WP No. 28226 of 2023




       BOTH R/O NEAR TALUK OFFICE
       B H ROAD, C N HALLY
       C N HALLY TALUK,
       TUMKUR DISTRICT-572101.
                                                   ...RESPONDENTS

      THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASHING THE IMPUGNED
ORDER DATED 07.12.2023 PASSED BY THE COURT OF THE PRL.
CIVIL JUDGE AND JMFC AT CHIKKABANAYAKANAHALLY ON IA NO.7
IN OS NO.253/2022 VIDE ANNX-A.

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

                               ORDER

Petitioners/defendants in O.S.No.253/2022 on the

file of the Principal Civil Judge and JMFC., at

Chikkanayakanahally (for short, 'Trial Court') are before

this Court challenging order dated 05.12.2023, allowing

I.A.No.7 filed under Order XXVI Rule 9 of CPC and

appointing Commissioner.

2. Heard the learned counsel Sri.Veeresh Budihal

for Smt.Jaithra J. Narayan, learned counsel for

petitioners/defendants. Perused the writ petition papers.

3. Learned counsel for the petitioners/defendants

would submit that suit of the respondents/plaintiffs is one

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for judgment and decree to declare that plaintiffs are

having right over ABCD-Gram Panchayath Road as shown

in the rough sketch and for mandatory injunction. Learned

counsel would submit that after completion of recording of

evidence, respondents/plaintiffs filed application under

Order XXVI Rule 9 of CPC praying for appointing PDO of

Grama Panchayath as Commissioner to measure 'B'

schedule property as per the sale deed dated 26.04.1961.

Learned counsel would submit that Trial Court without

appreciating as to whether appointment of Commissioner

would be necessary in the facts and circumstances of the

case, allowed application and appointed the Commissioner.

Learned counsel would further submit that appointment of

Commissioner and getting report would not assist the

Court in any way in the facts and circumstances. Further,

he would submit that any interim order passed in the suit

shall aid the final relief sought in the suit, but in the

instant case, present interim order would not aid the final

relief in any way. Further, learned counsel would submit

that it is for the respondents/plaintiffs to establish their

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right over ABCD-Grama Panchayath Road and existence of

the road and they cannot collect evidence through

Commissioner. Thus, he prays for allowing the writ

petition.

4. Having heard the learned counsel appearing for

the petitioners/defendants and on perusal of the writ

petition papers, I am of the view that it is not a case for

interference under Article 227 of the Constitution of India.

Moreover, impugned order would not in any way

prejudices the case of petitioners/defendants.

5. Suit of the respondents/plaintiffs is one for

declaration that plaintiffs are having right of over ABCD-

Grama Panchayath road and for mandatory and

permanent injunction. It is the case of the

respondents/plaintiffs that defendant Nos.1 to 4 have no

manner of right over ABCD-Grama Panchayath road and

they have blocked ABCD-Grama Panchayath road by

covering Zinc sheets. I.A filed under Order XXVI Rule 9 of

CPC is filed to measure 'B' schedule property so as to find

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out as to whether defendant Nos.1 to 4 have illegally

occupied the road or not.

6. Trial Court after completion of evidence, on the

application filed by respondents under Order XXVI Rule 9

of CPC in its discretion has allowed and appointed the

Commissioner to measure 'B' schedule property with

reference to measurement in the sale deed dated

26.04.1961. The report of Commissioner in terms of Rule

10 of Order XXVI would form part of the record and it

would be a piece of evidence. Such report shall have to be

appreciated along with other materials at the time of

disposal of the suit.

There is no merit in the writ petition and accordingly

writ petition stands rejected.

Sd/-

JUDGE

NC CT:bms