Karnataka High Court
Smt Rathnamma vs Sri Nandibasappa U on 29 May, 2024
-1-
NC: 2024:KHC:18044
WP No. 2730 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.I.ARUN
WRIT PETITION NO.2730 OF 2024 (GM-CPC)
BETWEEN:
1. SMT. RATHNAMMA
W/O. LATE MAHESHWRAPPA U.
AGED ABOUT 79 YEARS
R/AT ATTIGERE VILLAGE
MAYAKONDA HOBLI
DAVANAGERE TALUK
DAVANAGERE DISTRICT-577 534.
REPRESENTED BY GPA HOLDER
MANJAPPA U.M.
S/O LATE MAHESHWARAPPA
AGED ABOUT 53 YEARS
MAYAKANDA HOBLI
Digitally
ATTIGERE VILLAGE
signed by V DAVANAGERE TALUK & DISTRICT
MANJUSHA
BAI KARNATAKA - 577 534.
Location: High
Court of ...PETITIONER
Karnataka
(BY SRI HARSHA D. JOSHI, SENIOR ADVOCATE
FOR SRI SUHAS T.L., ADVOCATE)
AND:
1. SRI NANDIBASAPPA U.
S/O LATE UJJAPPA
AGED ABOUT 69 YEARS,
-2-
NC: 2024:KHC:18044
WP No. 2730 of 2024
2. SMT. KALLINGAMMA
W/O. NANDIBASAPPA U.
AGED ABOUT 59 YEARS,
3. SRI NAGARAJA U.N.
S/O NANDIBASAPPA U.
AGED ABOUT 44 YEARS,
4. SRI SHIVAKUMAR U.N.
S/O NANDIBASAPPA U.
AGED ABOUT 42 YEARS,
ALL ARE R/AT ATTIGERE VILLAGE
MAYAKONDA HOBLI, DAVANAGERE TALUK
DAVANAGERE DISTRICT-577 534.
...RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN
THE NATURE OF CERTIORARI AND QUASH THE ORDER DATED
14.12.2023 IN O.S.NO.153/2019 BY THE I ADDITIONAL CIVIL
JUDGE AND JMFC., DAVANAGERE BY WHICH ORDER THE TRIAL
COURT HAS DISMISSED I.A.NO.4, AN APPLICATION FILED BY
THE PLAINTIFF UNDER ORDER XXVI RULE 9 OF CPC AS PER
ANNEXURE 'F' AND CONSEQUENTLY ALLOW THE APPLICATION
AND PERMIT THE PLAINTIFF TO APPOINT A COMMISSION FOR
LOCAL INVESTIGATION, ETC.
THIS PETITION COMING ON FOR ORDERS, THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING THIS DAY, THE
COURT MADE THE FOLLOWING:
-3-
NC: 2024:KHC:18044
WP No. 2730 of 2024
ORDER
1. Aggrieved by the order passed in I.A.No.IV filed under
Order XXVI Rule 9 of Code of Civil Procedure, 1908 in
O.S.No.153/2019 by the I Additional Civil Judge and JMFC,
Davanagere, the applicant therein has preferred this writ
petition.
2. The applicant is the plaintiff in the original suit. She has
filed the original suit for declaration that she is the owner of the
suit schedule property and also for a relief of perpetual
injunction against the defendants therein. The petitioner has
let-in her evidence. It is submitted that presently the suit is
posted for pronouncement of judgment. After completion of
evidence, the petitioner / plaintiff preferred an application
under Order XXVI Rule 9 of Code of Civil Procedure, 1908 for
appointment of a Commissioner for measuring the suit schedule
property. The trial Court on the ground that the prayer of the
petitioner is one for declaration and for that she has to prove
her ownership over the suit schedule property independently
and appointment of Court Commissioner is not required to
NC: 2024:KHC:18044
decide the dispute on hand, dismissed the said application.
Aggrieved by the same, the present writ petition is filed.
3. Admittedly, the suit filed by the petitioner is one for
declaration and perpetual injunction. The prayer made in the
plaint is as under:
DzÀÝjAzÀ, ªÀiÁ£Àå £ÁåAiÀiÁ®AiÀÄzÀ°è ªÁ¢AiÀÄÄ
¥Áæyð¹PÉƼÀÄîªÀÅzÉãÉAzÀgÉ, ¥ÀæwªÁ¢AiÀÄgÀ «gÀÄzÀÝ F PɼÀPÀAqÀAvÉ
DzÉñÀªÀ£ÀÄß ¤ÃqÀ¨ÉÃPÉAzÀÄ ¥ÁæxÀð£É,
1) ªÁ¢AiÀÄÄ zÁªÁ µÉqÀÆå¯ï D¹ÛAiÀÄ ªÀiÁ°ÃPÀ¼ÉAzÀÄ
WÉÆö¸À¨ÉÃPÉAvÀ®Æ,
2) ¥ÀæwªÁ¢ 1 jAzÀ 4 gÀªÀgÀÄ ªÀÄvÀÄÛ CªÀgÀ ¥ÀgÀ AiÀiÁgÉÃ
DUÀ°Ã ªÁ¢AiÀÄ ¸Áé¢üãÀPÉÌ SÁAiÀÄA DV vÉÆAzÀgÉ ªÀiÁqÀzÀAvÉ,
SÁAiÀÄA ªÀÄ£Á¬Ä DzÉñÀªÀ£ÀÄß ¤ÃqÀ¨ÉÃPÉAvÀ®Æ,
3) £ÁåAiÀiÁ®AiÀÄPÉÌ AiÀÄÄPÀÛªÉAzÀÄ vÉÆÃZÀĪÀ EvÀgÉ
¥ÀjºÁgÀUÀ¼À£ÀÄß MzÀV¹PÉÆqÀ¨ÉÃPÉAzÀÄ ¥ÁæxÀð£É.
4. It is submitted that the trial Court has framed the
following issues to decide the dispute on hand
"1. Whether plaintiff proves that she is the owner
of Suit Schedule Property as alleged?
2. Whether plaintiff proves that alleged
interference by the defendants?
NC: 2024:KHC:18044
3. Whether defendants prove that Suit Schedule
Property was allotted to the share of first
defendant in the family partition dated
05-07-1977?
4. Whether plaintiff is entitled to the relief of
Declaration as prayed?
5. Whether plaintiff is entitled to the relief of
Permanent Injunction as prayed?.
6. What order or decree?"
5. To prove the aforementioned issues, the petitioner is
required to prove her ownership over the suit schedule property
by producing documents of title. To prove the title of the
petitioner over the suit schedule property appointment of a
Commissioner is not required. With regard to interference in
her peaceful possession of the property, the allegation made by
the petitioner is that the respondents, in her absence illegally
entered upon the suit schedule property and demolished the
wall. It is not that they have encroached upon the suit
schedule property and are retaining the possession of a portion
of the suit schedule illegally. Under the said circumstances, in
my opinion there is no need to appoint a Commissioner to
measure the suit schedule property. As stated above, it is not
NC: 2024:KHC:18044
required to resolve the dispute on hand. For the said reasons, I
do not find any error in the well reasoned order of the trial
Court. Hence, the writ petition is hereby dismissed.
6. Pending interlocutory applications, if any, stand disposed
of.
Sd/-
JUDGE
VMB
