Writ Petition No. 2555 of 2025 · The High Court
Case Details
- 1 - NC: 2025:KHC:21028 WP No. 2555 of 2025 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 2555 OF 2025 (GM-CPC) BETWEEN: 1. SARVASHREE POOJARTHI AGED ABOUT 86 YEARS W/O LATE GIRIYA POOJARY 2. CHANDRASHEKARA POOJARY AGED ABOUT 52 YEARS, S/O LATE GIRIYA POOJARY PETITIONER NOS.1 AND 2 ARE RESIDING AT UMMAKKINAILU KARKADA VILLAGE-576104 SALIGRAMA POST, BRAHMAVARA TALUK [THE PETITIONER NO.1 BEING A PERSON OF UNSOUND MIND REPRESENTED BY HER SON/GUARDIAN CHADRASHEKARA POOJARY (PETITIONER NO.2)] Digitally signed by NAGAVENI Location: High Court of Karnataka
Legal Reasoning
(BY SRI. CHANDRANATH ARIGA K., ADVOCATE) …PETITIONERS AND: 1. THE STATE OF KARNATAKA REPRESENTED HEREIN BY THE - 2 - NC: 2025:KHC:21028 WP No. 2555 of 2025 HC-KAR DEPUTY COMMISSIONER, UDUPI DISTRICT RAJATHADRI MANIPAL POST-576104, UDUPI TALUK 2. THE REVENUE INSPECTOR KOTA HOBLI SALIGRAMA POST-576 104, BRAHMAVARA TALUK, UDUPI DISTRICT 3. THE VILLAGE ACCOUNTANT KARKADA VILLAGE- 576 104 SALIGRAMA POST, BRAHMAVARA TALUK 4. THE SALIGRAMA PATTANA PANCHAYATHA SALIGRAMA POST-576 104, BRAHMAVARA TALUK, UDUPI DISTRICT REPRESENTED BY ITS CHIEF OFFICER …RESPONDENTS (BY SRI. NEELAKANTAPPA PUJAR, HCGP FOR R1 TO R3; SRI. HARISH N., ADVOCATE FOR R4) THIS W.P. IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN O.S.NO. 68/2024 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC, KUNDAPURA AND ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - NC: 2025:KHC:21028 WP No. 2555 of 2025 HC-KAR CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA
Decision
ORDER The petitioners – plaintiff Nos.1 and 2 are before this Court calling in question an order dated 22.01.2025, passed by the Principal Civil Judge and JMFC, Kundapura, by which an application – I.A.No.LIV filed by the petitioners under Order XXVI Rule 9 r/w. Section 151 of the CPC, in O.S.No.68/2024, comes to be rejected. 2. Heard Sri Chandranath Ariga K., learned counsel for petitioners, Sri Neelakantappa Pujar, learned High Court Government Pleader for respondent Nos.1 to 3 and Sri Harish N., learned counsel for respondent No.4. 3. Facts in brief, germane, are as follows: The plaintiffs – petitioners file a suit for permanent injunction in O.S.No.26/2015 along with an application therein under Order XXXIX Rules 1 and 2 of the CPC, seeking temporary injunction. Defendant No.4 files written statement along with an application under Order XXXIX Rule 4 of the CPC - 4 - NC: 2025:KHC:21028 WP No. 2555 of 2025 HC-KAR seeking vacation of the temporary injunction. The concerned Court rejected the application seeking temporary injunction and allows the application under Order XXXIX Rule 4 of the CPC. The plaintiffs then challenge the order before the first appellate Court in M.A.No.1/2021. 4. The issue in the lis does not pertain to the aforesaid application. On 28.11.2024, an application is filed for appointment of a Court Commissioner for local investigation for topography of scheduled ‘A’ and ‘B’ properties. This comes to be rejected. The rejection of the application has driven the petitioners to this Court in the subject petition. 5. Learned counsel for petitioners would contend that the application seeking temporary injunction restraining the defendants not to interfere with the peaceful possession and enjoyment of schedule ‘B’ property is allowed by the concerned Court granting temporary injunction, exparte. The written statement is filed and the application seeking vacation of the temporary injunction is rejected and the appellate Court - 5 - NC: 2025:KHC:21028 WP No. 2555 of 2025 HC-KAR confirms it. The matter reaches this Court in W.P.No.4603/2023 and a coordinate bench of this Court disposes the petition on 12.06.2023, directing both the parties to maintain status quo, in all respects and till the disposal of the suit. The suit then comes to be transferred and renumbered. The evidence of the plaintiffs commence and the respondents examine the Tahsildhar. It is then the application is preferred as there was dispute with regard to the topography of scheduled ‘A’ and ‘B’ properties. The concerned Court perfunctorily rejects it though there were grounds to consider the application. 6. Per contra, learned counsel for respondents would seek to contend that the application is preferred only to drag the proceedings and therefore, the concerned Court has not entertained any confusion with regard to the properties, it was not necessary for the Court Commissioner to be appointed to submit a report when there was not dispute with regard to the properties. Learned counsel would seek dismissal of the petition. - 6 - NC: 2025:KHC:21028 WP No. 2555 of 2025 HC-KAR 7. I have given my anxious consideration to the submissions made by the learned counsel appearing for the respective parties and have perused the material on record. 8. What has driven the petitioners to this Court is rejection of I.A.No.LIV under Order XXVI Rule 9 r/w. Section 151 of the CPC. The concerned Court rejects the application observing as follows: “8) According to the Plaintiffs, they have furnished correct topography of suit 'A' and 'B' Schedule Property in the plaint as well as their evidence. However the Defendants have mislead the Court by taking false contention regarding actual topography of suit properties. As such to prove the actual topography properties, the appointment of commission is necessary as such prays to allow the application. suit of 9) On the other hand learned AGP and Counsel for the Defendant Nos. 2 to 4 by way of filing detailed objections contended that the Plaintiffs have filed this suit for permanent injunction against the Government and Revenue Officials in respect of Government land by alleging that 'B' Schedule property/Government land is their Kumki property and are in settled possession of the same. If it is the case of the Plaintiffs, the Plaintiffs have to prove their case by filing relevant documents in support of their contention. However the Plaintiffs instead of producing the relevant documents, have filed this application with an intention to drag on the proceedings at the flag end of the case. As such prays for dismissal of the application. - 7 - NC: 2025:KHC:21028 WP No. 2555 of 2025 HC-KAR that suit 10) Admittedly, the Plaintiffs have filed this suit for permanent injunction to restrain the Defendant Nos. 1 to 4/Government and Revenue Officials from interfere with their settled possession of suit 'B' Schedule property measuring 0.70 cents of land. Further it is the case of the Plaintiff that suit 'B' schedule property is also forms kumki to suit 'A' Schedule property. Even in the plaint, the Plaintiffs have stated 'B' schedule property measuring to an extent of 0.70 cents of land is Government waste land and they are in settled possession of the same by encroaching the land. Admittedly there is no dispute with regard to identity and boundary. Further, the suit of the Plaintiff is not based on topography of the schedule 'A' and 'B' property. It is for the plaintiff to prove their settled possession over suit 'B' schedule property and 'B' schedule property form kumki to suit 'A' schedule property by leading cogent and convincing evidence. More over case of the Plaintiffs is based on possession, Commissioner cannot be appointed for the purpose of collection of evidence and no purpose will be served. Hence there is no any merit in the application filed by Plaintiffs and the same is liable to be rejected. Hence POINT No. 1 answered in the NEGATIVE. POINT NO.2: 11) In view of the above discuss this court proceed to pass the following: : : O R D E R : : I.A. No. LVI, filed Under Order XXVI Rule 9 R/W Sec.151 of C.P.C. is hereby dismissed. Sd/- 22/1/2025 (Manjula B.) Prl. Civil Judge & J.M.F.C., Kundapura.” - 8 - NC: 2025:KHC:21028 WP No. 2555 of 2025 HC-KAR A perusal at the order would indicate that the issue revolves around a Kumki land. Learned counsel for petitioners rightly contends that they are entitled to retain the land in terms of the law and there is dispute with regard to the ‘A’ and ‘B’ scheduled properties. If the Kumki land is identified, the issue could be resolved as the suit is for permanent injunction. 9. In the light of the said dispute as also the advancing age of petitioner No.1, it would be necessary to direct the concerned Court to appointment a Court Commissioner and a report be submitted within two weeks from such appointment and regulate its procedure thereafter. 10. For the aforesaid reasons, the following: (i) (ii) ORDER The writ petition is allowed. The application – I.A.No.LIV filed under Order XXVI Rule 9 of the C.P.C., is allowed. - 9 - NC: 2025:KHC:21028 WP No. 2555 of 2025 HC-KAR (iii) The suit is of the year 2015. Therefore, it shall be considered within an outer limit of three (3) months, if not earlier. Ordered accordingly. Sd/- (M.NAGAPRASANNA) JUDGE nvj List No.: 1 Sl No.: 59