Karnataka High Court
Classic Pulps & Boards vs Smt Jayamma on 8 January, 2024
-1-
NC: 2024:KHC:773
WP No. 23218 of 2017
C/W WP No. 23219 of 2017
WP No. 23220 of 2017
WP No. 23221 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
WRIT PETITION NO. 23218 OF 2017 (GM-CPC)
C/W
WRIT PETITION NO. 23219 OF 2017 (GM-CPC)
WRIT PETITION NO. 23220 OF 2017 (GM-CPC)
WRIT PETITION NO. 23221 OF 2017 (GM-CPC)
BETWEEN:
CLASSIC PULPS & BOARDS,
BY ITS PROPRIETOR,
MR. M.V. PREMACHANDRA,
AGED ABOUT 68 YEARS,
NO.69, 3RD CROSS,
KALIDASA ROAD,
JAYALAKSHMIPURAM,
MYSORE - 570 017.
... COMMON PETITIONER
(BY SRI: SHARATH GOWDA .G.B., ADVOCATE)
Digitally IN W.P.NO.23218/2017
signed by
PAVITHRA N
Location:
AND:
high court of
karnataka SMT. JAYAMMA,
W/O. SANNACHAR,
AGED MAJOR,
NO.62, 4TH CROSS,
JAYADEVANAGARA,
METAGALLI, MYSORE - 572 102.
...RESPONDENT
(BY SRI: N.B. NIJALINGAPPA, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DTD:7.1.2017 PASSED BY THE V ADDITIONAL 1ST CIVIL JUDGE,
JUNIOR DIVISION AT MYSORE IN EX.NO.355/2009 AT ANNEXURE-A
AND CONSEQUENTLY, ALLOW THE OBJECTIONS FILED BY THE
-2-
NC: 2024:KHC:773
WP No. 23218 of 2017
C/W WP No. 23219 of 2017
WP No. 23220 of 2017
WP No. 23221 of 2017
PETITIONER HEREIN TO COURT COMMISSIONERS REPORT
DTD:9.11.2012 AT ANNEXURE-D AND THEREBY REJECT THE COURT
COMMISSIONER REPORT SUBMITTED IN EX.355/2009 ON THE FILE
OF V ADDITIONAL 1ST CIVIL JUDGE, JUNIOR DIVISION AT MYSORE
AT ANNEXURE-C AND ETC.,
IN W.P.NO.23219/2017
AND:
SMT. PARVATHAMMA,
W/O. NARAYANA,
AGED MAJOR,
NO.114, 7TH CROSS,
JAYADEVANAGARA,
METAGALLI, MYSORE - 570 016.
...RESPONDENT
(BY SRI: N.B. NIJALINGAPPA, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DTD:7.1.2017 PASSED BY THE V ADDITIONAL 1ST CIVIL JUDGE,
JUNIOR DIVISION AT MYSORE IN EX.NO.354/2009 AT ANNEXURE-A
AND CONSEQUENTLY, ALLOW THE OBJECTIONS FILED BY THE
PETITIONER HEREIN TO COURT COMMISSIONERS REPORT
DTD:9.11.2012 AT ANNEXURE-E AND THEREBY REJECT THE COURT
COMMISSIONER REPORT SUBMITTED IN EX.354/2009 ON THE FILE
OF V ADDITIONAL 1ST CIVIL JUDGE, JUNIOR DIVISION AT MYSORE
AT ANNEXURE-D AND ETC.,
IN W.P.NO.23220/2017
AND:
MR. RAJENDRA,
S/O. YAJAMAN MARIDEVARU,
AGED ABOUT 58 YEARS,
NO.3545, 27TH CROSS,
JAVARAPPA BEEDI,
VEERANAGERE,
LASHKAR MOHALLA,
MYSORE - 570 001.
...RESPONDENT
(BY SRI: N.B. NIJALINGAPPA, ADVOCATE)
-3-
NC: 2024:KHC:773
WP No. 23218 of 2017
C/W WP No. 23219 of 2017
WP No. 23220 of 2017
WP No. 23221 of 2017
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DTD:7.1.2017 PASSED BY THE V ADDITIONAL 1ST CIVIL JUDGE,
JUNIOR DIVISION AT MYSORE IN EX.NO.358/2009 AT ANNEXURE-A
AND CONSEQUENTLY, ALLOW THE OBJECTIONS FILED BY THE
PETITIONER HEREIN TO COURT COMMISSIONERS REPORT
DTD:9.11.2012 AT ANNEXURE-D AND THEREBY REJECT THE COURT
COMMISSIONER REPORT SUBMITTED IN EX.355/2009 ON THE FILE
OF V ADDITIONAL 1ST CIVIL JUDGE, JUNIOR DIVISION AT MYSORE
AT ANNEXURE-C AND ETC.,
IN W.P.NO.23221/2017
AND:
MR. RAMAKRISHNA,
S/O. LATE HANUMANTHAPPA,
AGED ABOUT 65 YEARS,
'ANJANADRI', VIDYANAGAR,
NEAR ARRACK OFFICE,
SHIRA TOWN, TUMKUR DISTRICT
NOW C/O. SHIVARAM, NO.1293,
VIJAYNAGAR 1ST STAGE,
MYSORE - 570 017.
...RESPONDENT
(BY SRI: N.B. NIJALINGAPPA, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DTD:7.1.2017 PASSED BY THE V ADDITIONAL 1ST CIVIL JUDGE,
JUNIOR DIVISION AT MYSORE IN EX.NO.357/2009 AT ANNEXURE-A
AND CONSEQUENTLY, ALLOW THE OBJECTIONS FILED BY THE
PETITIONER HEREIN TO COURT COMMISSIONERS REPORT
DTD:9.11.2012 AT ANNEXURE-D AND THEREBY REJECT THE COURT
COMMISSIONER REPORT SUBMITTED IN EX.357/2009 ON THE FILE
OF V ADDITIONAL 1ST CIVIL JUDGE, JUNIOR DIVISION AT MYSORE
AT ANNEXURE-C AND ETC.,
THESE WRIT PETITIONS, COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
-4-
NC: 2024:KHC:773
WP No. 23218 of 2017
C/W WP No. 23219 of 2017
WP No. 23220 of 2017
WP No. 23221 of 2017
ORDER
The defendant in O.S.No.1330/2007, O.S.No.1329/2007
O.S.No.1294/2007 and O.S.No.1370/2007 on the file of the
learned V Additional 1st Civil Judge, (Jr.Dn.), Mysore
(hereinafter referred to as 'the trial Court' for brevity), who is
the judgmet debtor in Execution Case Nos.355/2009,
354/2009, 358/2009 and 357/2009, is impugning the order
dated 07.01.2017 rejecting the objection filed by the judgment
debtor to the Commissioner's report seeking to reject the
Commissioner's report.
2. Heard Sri Sharath Gowda G.B., learned counsel for
the petitioner/judgment debtor and Sri N.B.Nijalingappa,
learned counsel for the respondents/decree holders in all the
petitions. Perused the materials on record.
3. Learned counsel for the petitioner/judgment debtor
contended that the plaintiffs in O.S.No.1330/2007,
O.S.No.1329/2007, O.S.No.1294/2007 and O.S.No.1370/2007
have filed the suit claiming site Nos.147, 141, 145, 148
respectively, situated in Sy.No.88/1, Metagalli village, Mysore.
NC: 2024:KHC:773
The said suits came to be decreed including the suit
O.S.No.1124/2008 filed by the defendant against all the
plaintiffs. The defendant is claiming right over the property
No.434/A, formed in Sy.No.88/2 of Metagalli village, Mysore.
The trial Court recorded a finding that both the properties are
two different independent properties and therefore, both the
suits came to be decreed. The plaintiffs approached the
Executing Court by filing the Execution Case Nos.355/2009,
354/2009, 358/2009 and 357/2009 alleging interference by the
defendant. The Court Commissioner was appointed. Memo of
instructions were filed both by the decree holders as well as by
the judgment debtor. While executing the Commissioner's
warrant, the Commissioner has filed a report along with the
sketch reporting that site Nos.147, 141, 145 and 148 claimed
by the plaintiffs fall in Sy.No.88/2. When the specific contention
of the plaintiffs is that their properties are situated in
Sy.No.88/1, the Commissioner could not have report that the
said sites are found in Sy.No.88/2 where the property of the
defendant is situated. The sketch appended to the report
discloses that the Commissioner has identified the property of
the plaintiffs in Sy.No.88/2 instead of Sy.No.88/1. Thereby, the
NC: 2024:KHC:773
Court Commissioner has exceeded his limit in reporting the
factual situation which is quite contrary to the contention taken
by the plaintiffs. Hence, objections were filed to the
Commissioner's report with a request to reject the same. The
trial Court without appreciating these contentions, rejected the
objection filed by the judgment debtor which is called in
question in the present petitions. Hence, he prays for allowing
the petitions.
4. Per contra, learned counsel for the
respondents/decree holders opposing the petitions submitted
that both the parties have filed their memo of instructions to
the Commissioner's report. Accordingly, the Commissioner has
surveyed the land, submitted the report along with the sketch.
The factual situation as found by the Court Commissioner is
reported in the report and so also in the sketch. There is no
question of exceeding the limits of the Commissioner as he
found site Nos.147, 141, 145 and 148 claimed by the plaintiffs
in Sy.No.88/1 to be in Sy.No.88/2 and accordingly, he has
reported. Therefore, the trial Court rightly rejected the
NC: 2024:KHC:773
objection raised by the judgment debtor. Hence, he prays for
dismissing the petitions.
5. It is stated that throughout the contention taken by
the plaintiffs/decree holders is that their site Nos.147, 141,145
and 148 are formed in Sy.No.88/1 of Metaglli village, Mysore,
whereas it is the contention of the defendant that his property
No.434/A is situated in Sy.No.88/2. Admittedly, different suits
filed by the plaintiffs and the defendant against each other in
respect of their respective properties came to be decreed by a
common judgment by the trial Court holding that both these
properties are separate and independent and both are entitled
for decree of permanent injunction. After decreeing the suit,
the plaintiffs in O.S.No.1330/2007, 1329/2007, 1294/2007 and
1370/2007 filed the execution case Nos.355/2009, 354/2009,
358/2009 and 357/2009 respectively alleging interference by
the judgment debtor in enjoyment of site Nos.147, 141, 145
and 148, situated in Sy.No.88/1. A Court Commissioner was
appointed. Both the parties have filed their memo of
instructions to identify their respective lands in Sy.No.88/1 and
Sy.No.88/2. The Court Commissioner measured both the
NC: 2024:KHC:773
properties i.e., Sy.No.88/1 and Sy.No.88/2 and identified their
respective properties as shown in the sketch appended to the
Commissioner's report. As per the report and the sketch, site
Nos.147, 141, 145 and 148 claimed by the plaintiffs are
situated in Sy.No.88/2, when the plaintiffs are claiming it to be
in Sy.No.88/1. Under such circumstances, it cannot be said
that the Court Commissioner has exceeded his limits as specific
memo of instructions were issued to the Commissioner to
measure both Sy.No.88/1 and Sy.No.88/2 of Hebbal Village,
Kasaba Hobli, Mysore Taluk, to identify the respective sites and
to report. The Court Commissioner measured the property and
submitted his report about the factual aspects as to where site
Nos.147, 141, 145 and 148 claimed by the plaintiffs are
situated. No objection could be raised regarding reporting of
the factual situation at the spot. It is for the Executing Court to
consider the report about situation of the suit properties i.e.,
site Nos.147, 141, 145 and 148 in Sy.No.88/2 against the claim
of the plaintiffs in Sy.No.88/1 and to proceed with the matter.
When the court commissioner is appointed to measure the
properties and to report the ground realities, he cannot be
insisted to give the report as per the contention of the parties.
NC: 2024:KHC:773
I do not find any merit in the contention raised by the
petitioner. Hence, petitions are dismissed.
Sd/-
JUDGE
PN
