Karnataka High Court
Poornaprajna House Building ... vs Smt Rathnamma on 1 August, 2024
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NC: 2024:KHC:30692
WP No. 51577 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE M.I.ARUN
WRIT PETITION NO.51577 OF 2018 (GM-CPC)
BETWEEN:
1. POORNAPRAJNA HOUSE BUILDING
CO-OPERATIVE SOCIETY LTD.
HAVING ITS OFFICE AT NO.390
9TH MAIN ROAD,
KUMARASWAMY TEMPLE ROAD,
HANUMANTHANAGAR,
BANGALORE-560 019
REPRESENTED BY ITS CEO., L. NANJAPPA.
...PETITIONER
(BY SRI K.R. KRISHNA MURTHY, ADVOCATE)
AND:
Digitally
signed by H 1. SMT. RATHNAMMA
K HEMA W/O. R. LAXMANASWAMY,
Location: AGED ABOUT 60 YEARS,
High Court
of Karnataka R/AT AREHALLI, UTTARAHALLI HOBLI,
BANGALORE SOUTH TALUK-560 061.
...RESPONDENT
(BY SRI B.S. RAGHUPRASAD, ADVOCATE)
THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI OR ANY OTHER WRIT OR ORDER,
QUASHING THE ORDER ON I.A.NO.15 DATED 26TH OCTOBER,
2018 PASSED BY THE HON'BLE XXV ADDITIONAL CITY CIVIL
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WP No. 51577 of 2018
AND SESSIONS JUDGE, BENGALURU IN O.S.NO.7164/2009
(PRODUCED AT ANNEXURE-E) AND FURTHER BE PLEASED TO
ALLOW THE APPLICATION (PRODUCED AT ANNEXURE-C); ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THROUGH PHYSICAL HEARING/VIDEO
CONFERENCING THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
CORAM: HON'BLE MR JUSTICE M.I.ARUN
ORAL ORDER
1. Aggrieved by the order dated 26.10.2018 passed by
XXV Additional City Civil and Sessions Judge, Bengaluru
City, on I.A.No.15 in O.S.No.7164/2009, the plaintiff
therein has preferred this writ petition.
2. The case of the petitioner is that it filed
O.S.No.7164/2009 with the following prayers:
"WHEREFORE, the Plaintiff prays that this Hon'ble court
may be pleased to pass a Judgment and decree:
a. Declaring that the Plaintiff is the absolute owner in
possession of the property more fully described in
the schedule below.
b. For Mandatory injunction directing the defendant to
demolish the compound wall illegally put up by the
defendant in the suit schedule property and to hand
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over the vacant physical possession of the suit
schedule property to the plaintiff.
c. For Permanent Injunction restraining the defendant
her agent or servant or any body claiming through
her from interfering with the Plaintiff's peaceful
possession and enjoyment over the suit schedule
mentioned property in any manner and
d. Such other relief/s this Hon'ble court deems fit to
grant in the facts and circumstances of the case."
The petitioner claims ownership of the following schedule
property:
"SCHEDULE
All that piece and parcel of the encroached portion of the
land situated at North and North Western side of survey
No.101 of Uttarahalli village, Uttarahalli Hobli, Bangalore
South Taluk, measuring 01 3/4 guntas mention in the
survey sketch as "ABCZYXA" bounded on:
East by : Remaining portion of Survey No.101
& part of Survey No.20/2 C
West by : Survey No.22,
North by : Survey No.22 & 20/2C
South by : Sites formed in the remaining portion of
Survey No.101."
3. In the course of the proceedings, the petitioner made
an application under Order XXVI Rule 9 of CPC for
appointment of a Court Commissioner for finding out
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whether there was any encroachment made by the
respondent herein on the suit schedule property. The
respondent objected to the same contending that the land
has already been surveyed and the same is admitted by
the petitioner. The trial court accepted the contention of
the respondent and has dismissed the application.
Aggrieved by the same, the present writ petition is filed.
4. Learned counsel for the petitioner submits that he
does not dispute survey conducted in respect of the
properties of the petitioner and the respondent and also
admits that both the properties are adjacent properties,
though they are in two different villages bordering each
other. However, he submits that the survey as alleged by
the respondent was conducted prior to the respondent
constructing a compound wall and it is his specific case
that while constructing the compound wall, the respondent
has encroached upon a portion of the land belonging to
the petitioner.
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5. The said allegation is denied by the learned counsel
for the respondent and he submits that the respondent
has put up a compound wall on her property without
encroaching the property of the petitioner.
6. Under the said circumstances, more so when there is
a prayer made by the petitioner in the original suit for
issuance of a mandatory injunction directing the
respondent to demolish the compound wall, illegally put up
on the property belonging to the petitioner, it would be
appropriate to appoint a Government Surveyor, to survey
the property and submit a report as to whether the
compound wall is put up in the property of the petitioner
or the respondent.
7. For the aforementioned reason, the following order is
passed:
ORDER
(i) The writ petition is allowed;
(ii) The impugned order dated 26.10.2018
passed by XXV Additional City Civil and Sessions
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Judge, Bengaluru, on I.A.No.15 in
O.S.No.7164/2009 is hereby set aside;
(iii) I.A.No.15 filed under Order XXVI Rule 9 of
CPC by the petitioner herein is allowed with a
direction to the trial court to appoint the
jurisdictional Government Surveyor as a Court
Commissioner to inspect the properties of the
petitioner and the respondent and after the
survey, submit a report as to whether the
compound wall put up by the respondent is
within the property of the respondent or the
petitioner (whether the compound wall is put up
on the property bearing Survey No.101 of
Uttarahalli village or Survey No.20/2C of Arehalli
village) and proceed with the suit in accordance
with law.
Sd/-
(M.I.ARUN)
JUDGE
hkh.
