Karnataka High Court
Sri Chandrappa vs Sri B R Krishna Murthy on 5 January, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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WP No. 485 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 485 OF 2024 (GM-CPC)
BETWEEN:
SRI CHANDRAPPA
S/O SRI. CHANDAPPA
AGED ABOUT 59YEARS
AGRICULTURIST
RESIDENT OF V. BANIHATTY VILLAGE
UBRANI HOBLI, CHANNAGIRI TALUK,
DAVANAGERE DIST.
...PETITIONER
(BY SRI. H N BASAVARAJU.,ADVOCATE)
AND:
1. SRI B R KRISHNA MURTHY
S/O LATE RANGASWAMY
AGED ABOUT 59 YEARS.
2. SRI NARASIMHAMURTHY
S/O LATE RANGASWAMY
AGED ABOUT 57 YEARS.
Digitally
signed by 3. SRI AGANNATH
VANDANA S S/OLATE RANGASWAMY
Location: AGED 53 YEARS
HIGH
COURT OF
KARNATAKA ALL ARE RESIDENTS OF
V.BANIHATTY VILLAGE,
UBRANIHOBLI, CHANNAGIRI TALUK
DAVANAGERE DIST-577 213.
...RESPONDENTS
THIS W.P. IS FILED UNDER ARTICLES 227 OF THE CONSTITUTION
OF INDIA PRAYING TO i) SET ASIDE THE ORDER PASSED BY THE
LEARNED PRINCIPAL CIVIL JUDGE AND JMFC, CHANNAGIRI DATED
02/12/2023 ON I.A.NO. 6/2023 IN OS NO. 259/2019 AS PER ANNEXURE-Q
AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
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WP No. 485 of 2024
ORDER
This petition by the defendant is directed against the
impugned order dated 02.12.2023 passed on I.A.No.6 in
O.S.No.259/2019 on the file of Prl.Civil Judge & JMFC, Channagiri,
whereby the said application filed by the plaintiffs under Order 26
Rule 9 CPC for appointment of a Court Commissioner to conduct
local inspection was allowed by the Trial Court.
2. Heard learned counsel for the petitioner and perused the
material on record.
3. After taking into account the rival contentions, pleadings
and documents on record, the trial Court proceeded to pass the
impugned order allowing I.A.No.6, by holding as under:
" ORDER ON I.A.NO.VI
The plaintiffs filed application under Order 26 Rule 9
R/w Sec.151 of the Code of Civil Procedure. The said
application was filed on 22.05.2023, immediately after the
examination in chief of DW.1 and the same is kept in
appearance till conclusion of the trial. The defendant closed
his side on 12.07.2023 and thereafter the plaintiffs pressed
into service the application at hand for consideration.
2. SOME AND SUBSTANCE OF THE AFFIDAVIT
AS UNDER:
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The plaintiff No.1 has sworn the affidavit filed in
support of application. Wherein, he stated on oath that, the
plaintiffs have filed suit for declaration and recovery of
encroached portion by the defendant. The plaintiffs have
specifically made out the case that, the defendants did
encroach an area measuring 5 Guntas in suit schedule 'A'
property, which is described in suit schedule 'B' property.
The defendant has contested the suit by relying the Ex.D-
16 and 17 and allegedly contended that, no such
encroachment is made by them in the suit schedule 'B'
property. The plaintiffs have categorically pleaded and
approached this court with the allegation that, the
defendants did encroach 5 Guntas of land in suit schedule
'A' property. Therefore, the plaintiffs have submitted that, the
appointment of court commissioner is absolutely warranted
in the facts and circumstances of the case and without
which the suit cannot be decided effectively and completely.
Thus, the plaintiffs pray to allow the application.
3. STATEMENT OF OBJECTION FILED BY THE
DEFENDANT AS UNDER:
The defendant disputed all the grounds narrated under the
affidavit filed in support of the application. The defendant
contended that, there is no encroachment in suit schedule
'B' property. The plaintiffs had filed suit bearing
O.S.No.89/2014 before this court and the same came to be
dismissed on merits. In the said suit, the plaintiff was
entered into witness box and examined as PW.1. In the
cross examination he had categorically admitted that,
second survey was conducted by the Tahasildar and then
no encroachment was seen. Thereafter, the first survey
conducted by the surveyor at the instance of plaintiffs came
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to be set aside. The plaintiffs by suppressing these facts
have filed this false suit to harass the defendant and also
filed the application on had without any valid, legal grounds
to protract the proceedings. In between the properties of
plaintiffs and defendant, there is huge ridge and therefore
there is no question of demarcating the properties as well as
measurement. The available evidence on record are
sufficient enough to conclude the dispute between the
parties and no need to appoint the commissioner to
measure the properties of plaintiffs and defendant.
By these such other grounds the defendant prayed to reject
the application.
4. Based on the rival claims setforth by both the
parties in application as well as objections statement, the
following points would emerge for my consideration;
POINTS
1. Whether the appointment of court commissioner is
essential to elucidate the fact in issue?
2. What order?
5. Heard the learned counsel appearing for the
plaintiffs and defendant. Perused the documentary as well
as oral evidence which are already on record. On perusal of
the same my findings to the aforesaid points would be:
POINTS
Point No.1 : In the Affirmative,
Point No.2 : As per final order, for the following ;
REASONS
6. POINT NO.1:- At the outset, the plaintiffs have
filed the suit for declaration, to declare that, the suit
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schedule 'A' property is the part of suit schedule 'B' property
and they may be declared as owners to the same. The
plaintiffs have also prayed for mandatory injunction to
remove the alleged encroachment of defendant in suit
schedule 'B' property. The plaintiffs have categorically
alleged that, the suit schedule 'A' property belongs to lord
Hanumanthadevaru of Bannihatti village. Their grandfather
Sri.Ranga Manoraiah @ Poojari Ranga Manoraiah was the
poojar of said temple and as such the said grandfather was
cultivating the suit schedule property in order to eking the
livelihood. The said land was granted by the government in
favour of his son namely, B.R.Rangaswamy, by virtue of the
order passed by the Special Deputy Commissioner,
Shimogga, on 17.09.1977, in INA(21)Misc.Cr.162/1970-71.
Accordingly, his name came to be mutated in the revenue
records concerning to suit schedule property and since then
the plaintiffs are in enjoyment of the suit suit property. The
said Rangaswamy died in the year 1988- 89, leaving behind
the plaintiffs and their names came to be mutated in the
revenue records pertaining to the suit schedule property as
per the I.H.C.No.14/1988-89. It is alleged that, the defendant
is owing the land bearing Sy.No.60, on the middle southern
side of suit schedule 'A' property and he had fixed the
electric transformer. In order to maintain the same, the
defendant encroached the suit schedule 'A' property with all
his high handedness and illegal attempts. By virtue of the
application, the survey settlement and land records
department measured the property by fallowing due
procedure and come to conclusion that the defendant did
encroachment in suit schedule 'B' property to the extent of 5
Guntas. The request of the plaintiffs for removal of
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encroachment, yield nothing and as such the suit on hand is
filed for possession and declaration.
7. In resisting the claim of plaintiffs, the defendant
filed the written statement and contended that, the plaintiff
No.1 filed O.S.No.89/2014 for the relief of permanent
injunction in respect of suit schedule 'A' property and which
came to be dismissed on merits. Against which, the appeal
bearing R.A.No.80/2019 was filed and is pending for
consideration before the Hon'ble Senior Civil Judge Court at
Channagiri. The said suit came to be dismissed by
considering the evidence of the plaintiff, No.1 of the suit.
The plaintiffs have suppressed the said facts and as such
their suit is liable to be dismissed with cost. It is also
contended that, the very survey report relied by the plaintiffs,
dt: 28.03.2012 is not in existence in view of the order
passed by the Tahashildar, Channagiri, setting aside the
said report. In the second survey, the competent authority
has opined that, there was no such encroachment in the suit
schedule 'A' property or 'B' property. Further the defendant
contended that, the suit is bad for non joinder necessary
parties and also is barred by limitation. Thus, the defendant
prayed to dismiss the suit.
8. The learned counsel for plaintiffs has vehemently
argued that, the plaintiffs are relying the Ex.P-15 and 16 to
establish the alleged encroachment of defendant in suit
properties. The defendant contested the same by relying the
subsequent alleged survey conducted at the instance of
defendant and also alleged order of Thaahsildar in setting
aside the survey. Therefore, the parties are at variance as to
the alleged encroachment if any in suit schedule B property.
In order to establish it, appointment of Court Commissioner
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is necessary and any amount of oral or documentary
evidence would not substitute the same. As such he prays
to allow the application.
9. The learned counsel for defendant has
vehemently argued by referring the Ex.D-1 and D-2 that, the
very reports finding place at Ex.P15 and 16 are no more in
existence, in view of the order passed by the Tahashildar,
Channagiri, on the basis objection filed by the defendant.
Thus, the appointment of court commissioner is in any way
material and therefore he prayed to reject the application. In
the course his arguments, the learned counsel for the
defendant has taken the attention of this court on the Ex.D-
1, which is certified copy of cross examination of PW.1, of
O.S.No.89/2014, who is none other than the plaintiff No.1 of
this suit.
10. Having taken note of the arguments and the pleadings of
the parties, have careful perused the Ex.P-15 and 16. Ex.P-
15 is the statement of the persons, who were present
during the process of measurement and Ex.P-16 is the
survey map, prepared by the surveyor, on 28.03.2012. The
plaintiffs claim is based on the said documents. In this
regard, it is also essential to refer the cross examination of
PW.1, in O.S.No.89/2014, which is marked on confrontation
to the PW.1. Wherein, the PW-1 has categorically admitted
that, the survey dt: 28-03-2012 was questioned by the
defendant before the Tahashildar. Thereafter, the resurvey
was conducted on 19-05-2012 and at that time, the
boundary marks were put up in respect of the properties of
plaintiffs and defendant. In the said survey, it is also opined
that, no such encroachment was taken place in the property
of plaintiffs or the defendant. On the basis of said report the
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Tahashildar passed an order canceling the very survey
conducted on 28.03.2012.
11. Having referred the pleadings as well as
arguments that, are canvased by the learned counsels
appearing for plaintiffs as well as defendant, the
documentary evidence placed on record, what it appears is
the parties are it variance with reference to the alleged
encroachment in suit schedule 'B' property. According to
plaintiffs, the defendant encroachment in suit schedule 'B'
property and as per earlier survey report it as come to the
light. 12. On the other hand, the defendant contended that,
the said survey report was cancalled by the Tahasildar on
due enquiry and after the survey report from the competent
survey department. Therefore, the appointment of court
commission to resurvey the suit property and the properties
of defendant is absolutely not essential to conclude the lis
between the parties. In that regard, the learned. counsel for
defendant much highlighted on the cross examination of
PW.1, did in O.S.No.89/2014 and also in this suit. He also
referred the Ex.D-15 to 17. I have carefully perused the
Ex.D-16 referred by the plaintiffs, Ex.D-15 to 17 referred by
the defendant. Both the survey records are of the year 2012
and the plaintiffs filed the suit in the year 2019 alleging that,
the defendant encroached 5 Guntas of land in suit schedule
'B' property at the middle Southern portion of suit schedule
'A' property. The plaintiffs have narrated the cause of action
to the effect that, it accrued as the defendant refused to
handover the said encroached portion in the year 2019 and
as such they filed the suit on hand for the reliefs as sought
under the plaint.
13. In this factual scenario of the case, the available
evidence are not sufficient enough to conclude the alleged
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encroachment of the defendant in suit schedule 'B' property.
Earlier survey records of the year 2012. The lis between the
parties put before the court after the said survey and the
orders of Tahasildar of Channagiri. Therefore, in my
considered opinion, the alleged encroachment if any cannot
be ascertained on the basis of disputed documents which
are relied by both the parties and are finding place at Ex.P-
16, Ex.D-15 to 17. Therefore, in the light of factual aspects
of the matter, the appointment of court commission is
absolutely warranted and which would meet the ends of
justice and equity. It would also help the court to decide the
matter completely and effectually.
14. The oral evidence that has been taken note of by
the learned counsel for defendant are absolutely
considerable points and that can be taken into account at
the time of decision of the matter on merits. The plaintiffs
are claiming that, they are entitle for an area measuring 5
Acre 35 Guntas and the defendants are contending that the
5 Guntas is karab land, whereunder the public road is
situated. The report submitted by the surveyor as well as the
survey conducted through the orders of Tahasildar,
Channagiri are disclosing some different aspects of the
matter. Therefore, the real state of affairs cannot be inferred
from the disputed documents, which are before the court
and therefore the fresh survey reports needs to be taken
into account for consideration of the matter before this court.
The Hon'ble High Court of Karnataka was pleased to held in
the recent judgment passed in the matter
Sri.Shadaksharappa S/o Veeranna v/s The Commissioner
City Municipal Council, Sindhanuru (W.P. No.201274/2022
(GM-CPC)), In the case of encroachment of properties, the
appointment of court commissioner is necessary. In view of
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the factual matrix of the case at hand, the appointment of
court commissioner is just necessary. Thus, the point No.1
held in the Affirmative.
15. Point No.2:- As a result, I proceed to pass the
following:
ORDER
The I.A.No.VI filed U/O.26 Rule 9 R/w Sec.151 of
CPC is hereby allowed.
Consequently, the surveyor attached to he office of
ADLR, Channagiri is hereby appointed as a court
commissioner to make a local inspection of suit properties,
properties of defendants comprised in Sy.No.60/4P-6,
Sy.No.60/4-P5 and Sy.No.60/5 and to report the alleged
encroachment if any in the suit schedule 'B' property by
taking proper recourse of measurements in accordance with
the survey manual.
The commissioner fees is tentatively ixed at
Rs.2000/-. The parties are at liberty to file memo of
instructions to the commissioner at the spot as well as
before the court.
Issue court commissioner warrant once the
commissioner fees is deposited. "
5. A perusal of the impugned order will indicate that the
same is in conformity with the well settled principles of law
governing appointment of Court Commissioner to conduct local
inspection as enunciated by this Court in the case of Sri.
Shadaksharappa Vs. Kumari Vijayalaxmi & others - 2023(3)
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KLJ 543, particularly when there was a dispute regarding identity,
location, measurements, boundaries, etc., of properties claimed by
both sides.
6. In view of the aforesaid facts and circumstances, I am
of the considered opinion that the impugned order passed by the
Trial Court allowing I.A.No.6 and directing appointment of Court
Commissioner does not suffer from any illegality or infirmity nor has
the same occasioned failure of justice warranting interference by
this Court in exercise of my jurisdiction under Article 227 of the
Constitution of India as held in Radhey Shyam Vs. Chhabi Nath -
(2015) 5 SCC 423 case.
7. In the result, I pass the following:
ORDER
(i) Petition is hereby disposed of without interfering with
the impugned order.
(ii) Liberty is reserved in favour of the parties to submit
their respective memos of instructions before the Court
Commissioner including parties to file objections, if any, to the
Commissioner's report and examine / cross-examine, if they so
desire.
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(iii) Liberty is also reserved in favour of the parties to seek
amendment of the their respective pleadings, if they so desire.
(iv) All rival contentions on all aspects of the matter including
the report and evidence of the court commissioner are kept open
and no opinion is expressed on the same.
Sd/-
JUDGE
Srl.
