Karnataka High Court
Smt Sannamma vs Mysuru District School on 6 October, 2023
Bench: Vijaykumar A Patil
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WP No.19978 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO.19978 OF 2019 (GM-CPC)
BETWEEN:
1. SMT. SANNAMMA
AGED ABOUT 88 YEARS
SINCE DEAD BY LR'S.
1(a) SMT. MALLAMMA
AGED ABOUT 71 YEARS
W/O THIMMAIAH.
1(b) SMT. SAROJAMMA
Digitally signed AGED ABOUT 69 YEARS
by RUPA V
W/O NALLANNA.
Location: HIGH
COURT OF
KARNATAKA 1(c) SMT. PADMA
AGED ABOUT 68 YEARS
W/O KULLAIAH.
1(d) SMT. CHANDRAMMA
AGED ABOUT 56 YEARS
W/O RAMANNA
R/AT. DOOR NO.344, MAIN ROAD
RAGHAVENDRA NAGARA
MYSURU CITY-560005.
1(e) SMT. CHIKKAPADMA
AGED ABOUT 63 YEARS
W/O ASHOK
R/AT. DOOR NO.22, KULUME PALYA
BANNERUGHATTA
BENGALURU-560083.
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1(f) SRI. KRISHNA
AGED ABOUT 61 YEARS
S/O SHIVAIAH.
1(g) SMT. SARASAMMA
AGED ABOUT 41 YEARS
W/O LATE DEVARAJU.
PETITIONERS NO.1(a), 1(b), 1(c), 1(f)
AND 1(g) ARE R/AT. GIRIYA BHOVI PALYA
NAZARABAD MOHALLA
MYSURU CITY-570010.
...PETITIONERS
(BY SRI. R. SHIVANANDA, ADV., FOR
SRI. P. NATARAJU, ADV.,)
AND:
1. MYSURU DISTRICT SCHOOL
TEACHERS HOUSE BUILDING
CO-OPERATIVE SOCIETY
REPRESENTED BY IT'S PRESIDENT
SRI. RAMALINGEGOWDA, MAJOR
R/AT NO.101, NEAR GANAPATHI TEMPLE
2ND CROSS, AGRAHARA
MYSURU - 570004.
2. SRI. T.R. SHESHADRI, MAJOR
S/O LATE RAMAIAH
R/AT NO.977, LAKSHMI NARASIMHA KRUPA
GEETHA ROAD, MYSURU - 570004.
3. SMT. BHAGEERATHAMMA
AGED ABOUT 86 YEARS
W/O LATE B.V. NANJUNDAIAH
R/AT NO.464, 3RD CROSS
8TH MAIN, H BLOCK
RAMAKRISHNA NAGAR
MYSURU - 570022.
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4. SRI. R. ESHWARA, MAJOR
S/O RAMAIAH
R/AT NO.1616, UPPINAKERI
2ND CROSS, MANDI MOHALLA
MYSURU CITY - 570021.
5. SMT. G. SUNDARI, MAJOR
W/O C. GOPALAKRISHNA
R/AT NO.427, 7/A CROSS
SANMARGA CROSS
SIDDARTHA NAGAR
MYSURU CITY - 570011.
6. SRI. M.D. SHIVANANJAPPA, MAJOR
S/O M. DEVAIAH
R/AT NO.2930/2C, 2ND MAIN
CHAMUNDIPURAM, K R MOHALLA
MYSURU CITY - 570004.
7. SRI. M.D. SHIVALINGAIAH, MAJOR
S/O LATE S. RAMALINGAIAH
R/AT SWATHI
SANGOLLIL RAYANNA ROAD
GUNDLUPET TOWN
CHAMARAJANAGARA DISTRICT - 571111.
8. SMT. SANNAMMA, MAJOR
W/O LATE MOGANNA
R/AT YERAGANAHALLI VILLAGE
MYSURU - 570011.
9. SMT. V. LAKSHMI, MAJOR
R/AT NO.812, 9TH CROSS
VIGNESHWARA MARGA
YERAGANAHALLI LAYOUT
MYSURU - 570011.
SRI. SOMASHEKAR
SINCE DEAD BY LR'S.
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10. SMT. JAYALAKSHMI
AGED ABOUT 71 YEARS
W/O SOMASHEKAR.
11. SRI. SOMASUNDAR
AGED ABOUT 54 YEARS
S/O SOMASHEKHAR.
12. SRI. SANTHOSH
AGED ABOUT 51 YEARS
S/O SOMASHEKHAR.
13. SMT. RANI
AGED ABOTU 48 YEARS
D/O SOMASHSEKHAR
W/O RAMESH.
14. SRI. SHIVAKUMAR
AGED ABOUT 47 YEARS
S/O SOMASHEKHAR.
RESPONDENTS NO.10 TO 14 ARE
R/AT NO.82, GIRIYABHOVI PALYA
1ST CROSS, SIDDARTHA NAGARA
MYSURU - 570010.
15. SRI. M. KAILASMURTHY, MAJOR
S/O LATE M. KEMPANNA
R/AT NO.10, 8TH BLOCK
ADI SHAKTHI ROAD
SHAKTHI NAGAR, MYSURU - 570029.
16. SMT. PUTTATHAYAMMA, MAJOR
W/O LATE S.R. SHIVALINGAIAH.
17. SRI. RAJASHEKAR, MAJOR
S/O LATE S.R. SHIVALINGAIAH.
18. SMT. SUMA, MAJOR
D/O LATE S.R. SHIVALINGAIAH.
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RESPONDENTS NO.16 TO 18 ARE
R/AT S.R. ROAD, 19TH WARD
GUNDLUPET TOWN
CHAMARAJANAGARA DISTRICT - 571111.
19. SMT. RADHA S. PURANIK, MAJOR
W/O SRI. N. SHRISHA PURANIK
R/AT NO.123, 4TH CROSS
ITTEGEGUDU NEW EXTENSION
NAZARABAD MOHALLA
MYSURU CITY - 570003.
...RESPONDENTS
(BY SRI. K. VIJAYA KUMAR, ADV., FOR R1
SRI. AKARASH KUMAR GOWDA, ADV., FOR
SRI. NARENDRA D.V. GOWDA, ADV., FOR R16-R18
NOTICE TO R4, R5, R9, R10, R11, R12, R14, R19 ARE
SERVED
V/O DTD:24/01/2020, NOTICE TO R8 IS HELD
SUFFICIENT
V/O DTD: 29/11/2021, NOTICE TO R2 IS HELD
SUFFICIENT AND PLACED EXPARTY
V/O DTD:29/11/2021, R16 TO R18 ARE LRS OF
DECEASED R7
V/O DTD:17/10/2022, NOTICE TO R3, R6, R13 & R15 ARE
HELD SUFFICIENT AND PLACED EXPARTY)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER PASSED BY THE LEARNED JUDGE, PRL. COURT
OF SMALL CAUSES AT MYSURU IN O.S.NO.248/2006
DATED 08.04.2019 ON I.A.NO.26 VIDE ANNX-L AND
MAYBE PLEASED TO ALLOW I.A.NO.26 ON IT'S FILED AS
PRAYED FOR. GRANT AN INTERIM ORDER TO STAY THE
FURTHER PROCEEDINGS OF O.S.NO.248/2006 PENDING
ON THE FILE OF LEARNED JDUGE, PRL. COURT OF
SMALL CAUSES AT MYSURU, PENDING DISPOSAL OF THE
ABOVE W.P.
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THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
This petition is filed under Article 227 of the
Constitution of India by the legal representatives of original
plaintiff assailing the order dated 08.04.2019 passed on
I.A.No.26 in O.S.No.248/2006 which was rejected by the
Trial Court.
2. Brief facts leading to filing of this petition are that
the plaintiff has filed O.S.No.248/2006 seeking for the relief
of declaration and mandatory injunction against the
respondents. In the said suit, the plaintiff has filed an
application under Order XXVI Rule 9 and Rule 10-A read
with Section 151 of the Code of Civil Procedure, 1908
seeking to appoint a Court Commissioner for identification
and demarcation of the eastern boundary of plaint A and B
schedule properties. The said application was opposed by
the respondents by filing statement of objections. The Trial
Court, after considering the rival contentions, was pleased to
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reject the said application. In the aforesaid factual matrix,
the present petition is filed.
3. Sri.R.Shivananda, learned counsel for the
petitioners submits that the Trial Court has committed a
grave error in rejecting the application for appointment of
Court Commissioner. It is submitted that the plaintiff has
filed the suit for declaration and mandatory injunction and
during the pendency of the suit, it is noticed by the plaintiff
that the defendants have encroached upon certain portion of
the suit schedule properties which has compelled the
plaintiff to file the application seeking appointment of a
technical person to identify and demarcate the plaint A and
B schedule properties for the purpose of complete
adjudication of the suit to enable him to get the decree of
declaration and mandatory injunction. However, the Trial
Court without considering the material in its proper
prospective has rejected the application. He seeks to allow
the writ petition.
4. Per contra, learned counsel for the respondents
supports the impugned order of the Trial Court and submits
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that the son of the plaintiff namely defendant No.10 in the
present suit has earlier filed O.S.No.117/1991 seeking relief
of declaration and mandatory injunction insofar as the same
suit schedule properties which came to be dismissed and in
the said suit, the Court Commissioner was appointed and he
has given a report which is already available on record in the
present suit and which is produced and marked. It is
submitted that filing of the present application is nothing
but dragging the proceedings before the Trial Court and the
suit being of the year 2006, and if application is now allowed
it would further delay the proceedings. It is further
submitted that the Trial Court has recorded a finding that it
is not necessary to appoint any Court Commissioner at this
stage as sufficient material is available on record to decide
the suit. He seeks for dismissal of the petition.
5. Heard the learned counsel for the petitioners,
learned counsel for the respondents and perused the
material available on record. It is not in dispute that the
plaintiff has filed a suit for declaration that she is the
absolute owner of plaint B schedule property and further
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sought a direction against respondent Nos.2 to 9 to
handover possession of plaint B schedule property. During
the pendency of the said suit, the plaintiff has moved an
application for appointment of Court Commissioner which
was rejected by the Trial Court. Being aggrieved by the
same, she had filed W.P.No.13799/2011 wherein this Court
has refused to interfere with the order of the Trial Court.
However, liberty was reserved to the plaintiff to file an
application after the evidence was recorded.
6. On perusal of the material available on record, it
is evident that the defendant No.10 who is none other than
the son of plaintiff, has filed O.S.No.289/1996 seeking a
declaration to declare that he is the owner of Sy.No.176
which is the suit schedule property and sought permanent
injunction against the defendant therein and also filed
another suit in O.S.No.117/1991 on the file of the II
Munsiff, Mysore against the defendant No.1. In the said
suit, the Court has appointed the Court Commissioner to
draw a sketch and to find out the contention raised by the
plaintiff therein. The Court Commissioner has carried out
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the exercise and submitted the report in the said suit. It is
also not in dispute that the said report of the Court
Commissioner is placed on record in the present suit and
the same is marked in the evidence. When things stood
thus, the filing of the present application seeking for
appointment of Court Commissioner in respect of the same
property urging similar contentions in the plaint and
application, is nothing but abuse of process of law. The
Trial Court has recorded a categorical finding that the
plaintiff has already completed recording of evidence and the
matter is posted for the defendant's evidence and the
documents were also marked. The Trial Court has further
recorded a finding that there are sufficient material available
on record to decide the issue on merits. Hence, the question
of appointing the Court Commissioner at this stage would
not arise and if necessary, before passing the judgment, the
Trial Court shall consider the request of the parties. This
Court is of the considered view that the finding recorded by
the Trial Court is neither perverse nor contrary to the
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material available on record calling for interference of this
Court.
7. For the aforementioned reasons, this Court do not
find any reason to interfere with the impugned order passed
by the Trial Court. Accordingly, writ petition is devoid of
merits and the same is dismissed.
8. At this stage, learned counsel for the respondents
submits that the suit is of the year 2006 and a direction may
be issued to the Trial Court to dispose of the suit in a time
bound manner. In reply learned counsel for the plaintiff
submits that he will co-operate with Trial Court for early
disposal of the suit. Submissions are placed on record.
9. The Trial Court is directed to take up the suit on
priority basis and dispose of the same in an expeditious
manner. Ordered accordingly.
Sd/-
JUDGE
RV
