SRI. SANJEEVAPPA v. SRI. GANGAIAH

MOHAN Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:3430 WP No. 40903 of 2019

4. SMT. PADMA D/O LATE KARIYAPPA AGED ABOUT 33 YEARS.

5. SRI. UMESH S/O LATE KARIYAPPA AGED ABOUT 31 YEARS.

6. SMT. MANJULA D/O LATE KARIYAPPA AGED ABOUT 29 YEARS. RESPONDENT NOS. 2 TO 6 ARE RESIDENT OF BYATARAYANAPURA NEW LAYOUT, 5TH CROSS MYSORE ROAD, BENGALURU – 560 026.

7. SRI. RAMACHANDRA S/O LATE HANUMAIAH AGED ABOUT 63 YEARS RESIDENTS OF BANJERAPALYA BYRASANDRA VILLAGE, AGARA DHAKALE, KENGERI HOBLI TATAGUNDI POST, BANGALURE SOUTH TALUK, BENGALURU – 560 034. …RESPONDENTS (BY SRI. H.M. SOMASHEKARIAH, ADV., FOR R-1; SRI. K. VIJAYA KUMAR, ADV., FOR R-7; V/O/D 25.01.2025 MEMO FOR DISPENSATION OF NOTICE TO R-2 TO R-6 D/W) THIS WP IS FILED UNDER ARTICLES 227 OF THE CONSTITUTION OF INDIA, 1950 PRAYING TO QUASH THE IMPUGNED ORDER DATED 19.08.2019 PASSED BY THE COURT BELOW IN REJECTING THE APPLCIATION FILED BY THE PLAINTIFF/PETITIONER UNDER ORDER 26 RULE 10 R/W SECTION 151 OF CPC, 1908 IN O.S.NO.1022/2006 PENDING JUDGE, BEFORE THE HON'BLE BENGALURU RURAL DISTRICT, AT BENGALURU VIDE ANNEXURE-A. II ADDITIONAL CIVIL - 3 - NC: 2025:KHC:3430 WP No. 40903 of 2019 THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI ORAL ORDER Aggrieved by the order passed in an application filed by the plaintiff in O.S.No.1022/2006 dated 19.08.2019 by the II Additional Civil Judge, Bengaluru Rural District, Bengaluru, whereby the trial Court had rejected the application seeking appointment of Taluk surveyor attached to the office of the Tahsildar for surveying the land covered under the Sale Deed dated 20.05.1974, the petitioner/plaintiff is before this Court.

2. The plaintiff herein had filed the suit for mandatory injunction directing the defendants to execute a Rectification Deed rectifying the Survey Numbers from 101/5 to 101/3 in respect of the schedule property in favor of the plaintiff, in the event the defendant fails to execute the Rectification Deed, the Rectification Deed may be executed by appointing a Court Commissioner and also sought for a permanent injunction. It is the case of the plaintiff that he is the absolute owner in possession and enjoyment of the land bearing Sy.No.101/3 situated at Byrasandra Village, Agara Dhakale, Kengeri Hobli, - 4 - NC: 2025:KHC:3430 WP No. 40903 of 2019 Tatagundi Post, Bangalore, measuring 2 acres 20 guntas. The plaintiff has purchased the schedule property under registered Sale Deed dated 20.05.1974 executed by Sri.D.Ramu S/o.Muniswamappa and the plaintiff has been in possession and enjoyment of the property. The land conveyed in favour of the plaintiff's vendor by the erstwhile owner i.e., Hanumaiah and his children by Sale Deed dated 20.09.1971 and it is the case of the plaintiff that ever since, he has been in possession and enjoyment of the said property. Subsequent to execution of the Sale Deed, the said Hanumaiah died leaving behind the defendants as his legal heirs. When the plaintiff came to know about the discrepancy with regard to Sy.No.101/5 which is mentioned in the Sale Deed, whereas he has been put in possession of Sy.No.101/3, he issued a notice and also asked them to rectify the same. When there was no response, the plaintiff had come up with the present suit. During the course of evidence, defendant No.1 - Gangaiah i.e., son of Hanumaiah has deposed that the plaintiff is in possession of Sy.No.101/3. Thereafter, the present application came to be filed under Order 26 Rule 10 read with Section 151 of CPC seeking appointment of Taluk surveyor attached to the office of the - 5 - NC: 2025:KHC:3430 WP No. 40903 of 2019 Tahsildar for surveying the land covered under the Sale Deed dated 20.05.1974 whether the same pertains to land bearing Sy.No.101/3 situated at Byrasandra Village, Kengeri Hobli, Bangalore South, as per the boundaries mentioned therein as well as to submit the report whether the boundaries mentioned in the Sale Deed pertains to Sy.No.101/3 or not for proper and complete adjudication of the matter in dispute.

3. By way of the impugned order, the trial Court had rejected the application. While rejecting the application, the trial Court had considered Sy.Nos.101/5 to 101/3 and recorded certain discrepancies where some land was acquired for formation of the lake and it is the observation of the trial Court that in Sy.No.101/3, after the land being acquired i.e., an extent of 15 guntas for the formation of the lake, what is left is 2 acres 8 guntas. But according to the plaintiff, he had purchased the property of an extent of 2 acres 20 guntas. When it comes to Sy.No.101/5, the trial Court gives a finding that the entire extent is 3 acres 20 guntas, but according to the plaintiff he has purchased only 2 acre 20 guntas. The trial Court has perused Ex.D.2, D.10 and also Ex.P.6, P.7 and P.4 and the plaintiff has filed the suit seeking relief of rectification of the - 6 - NC: 2025:KHC:3430 WP No. 40903 of 2019 Sale Deed. But as per the Sale Deed, the plaintiff's name was not mentioned in the RTC extract in respect of the suit schedule property. As per the prayer of the petitioner in the application, the Court held that the plaintiff has not made out a sufficient reason to allow the application. It is the case for the rectification not for possession. Hence, the appointment of Taluk surveyor as a Court Commissioner to measure the extent of scheduled property and identification of the property is not necessary and the trial Court held that the plaintiff had not made out a case and accordingly rejected the application. Aggrieved thereby, the plaintiff is before this Court.

4. Learned counsel appearing for the petitioner/plaintiff submits that he had been put in possession of the property in Sy.No.101/3. The vendor's vendor is the owner of both Sy.Nos.101/5 and 101/3. Though they have put them in possession of Sy.Nos.101/3, but in the Sale Deed, it is mentioned as Sy.Nos.101/5 and he has been continuing his possession right from the year 1974 ever since they have purchased the property. It is submitted that when there is an admission on behalf of the defendants that the plaintiff is in occupation of Sy.Nos.101/3, it shows that they have sold the - 7 - NC: 2025:KHC:3430 WP No. 40903 of 2019 said property to the plaintiff and it is a mistake and survey number is not properly mentioned.

5. Learned counsel appearing for defendant No.3, who is the 7th respondent herein submits that though it is stated that he has acquired the property by way of partition which is in the year 1993, the property is sold in the year 1971. He submits that in the light of the admission by defendant No.1, if the Taluk surveyor is appointed and the defendants are not disputing the sale, their case is that the plaintiff is in possession of Sy.Nos.101/5 and looking at the continuous possession, if the surveyor is appointed, it would clinch the issue and it would be easy for the Court to come to a just and reasonable conclusion.

6. A memo is filed seeking dispensation of notice to respondent Nos.2 to 6. There is no representation on behalf of respondent No.1.

7. Learned counsel appearing respondent No.7/defendant No.3 submits that apart from seeking rectification of the Sale Deed, plaintiff has also sought for permanent injunction. In a suit where the prayer is for - 8 - NC: 2025:KHC:3430 WP No. 40903 of 2019 permanent injunction, the Court Commissioner cannot be appointed and it amounts to collection of evidence. He submits that this application came to be filed at the fag end when the matter is reserved for judgment and right from the year 2019, in view of the stay granted by the Court in the pending writ petition, the suit is still pending. It is submitted that when both the parties have let in their oral and documentary evidence and basing on that, the Court would decide the issue. Here, as rightly observed by the Court, the plaintiff is not seeking recovery of possession and in such scenario, there is no requirement for appointment of the commissioner and the trial Court had rightly observed that there are no grounds made out for appointment of the commissioner. It is submitted that he is not a party to the Sale Deed. When he is not a party to the sale deed, as he is in possession of Sy.Nos.101/3, plaintiff cannot be in possession of 20 guntas. He submits that the Sale Deed is executed in the year 1974, filing a suit in the year 2006 seeking rectification of the same is barred by limitation and even on that count also, the suit itself is not maintainable. He submits that there are no grounds to interfere with the order - 9 - NC: 2025:KHC:3430 WP No. 40903 of 2019 passed by the trial Court and this writ petition is liable to be dismissed.

8. Having heard the learned counsel for the petitioner and the learned counsel appearing for respondent No.7, perused the entire material on record. The suit is filed for rectification of the Sale Deed dated 20.05.1974. According to the plaintiff, he is in possession of Sy.No.101/3 and the vendor's vendor is owner of Sy.No.101/3 and Sy.No.101/5. But in the Sale Deed, it is mentioned as Sy.No.101/5. When the plaintiff came to know about the said discrepancy, immediately he has issued a notice and he has asked them to rectify the same. When the defendants failed to rectify, he has come up with the suit. During the course of evidence, the defendant No.1, who is son of Hanumaiah who is the vendor's vendor has deposed before the Court that the plaintiff is in possession of Sy.No.101/3. At that juncture, the plaintiff has come up with this application seeking appointment of Taluk surveyor for surveying the land covered under the Sale Deed dated 20.05.1974. Whether the same pertains to the land bearing Sy.No.101/3 or Sy.No.101/5, the contention of the learned counsel appearing in the respondent No.7 that it amounts to collection of evidence which - 10 - NC: 2025:KHC:3430 WP No. 40903 of 2019 this Court is not able to appreciate in the particular facts and circumstances of the case. In a property that is sold in the year 1974, a person is in continuous possession and occupation of the property. It is an undisputed fact that the vendor is the owner of Sy.No.101/3 and Sy.No.101/5 and that is also admitted. Now, basing on the document as it is showing as Sy.No.101/5, the relief that is sought by the plaintiff is resisted by the defendants. If the surveyor is appointed and he gives a report whether the undisputed possession of the plaintiff is in Sy.No.101/3 or Sy.No.101/5, it will facilitate the Court to come to a just conclusion. In that view of the matter, the order of the Court is not a well considered one. ORDER i. Accordingly, the order passed on application plaintiff O.S.No.1022/2006 dated 19.08.2019 by the II Additional Civil Judge, Bengaluru Rural District, Bengaluru, is set aside and consequently, the application filed by the petitioner is allowed. ii. Both the parties are at liberty to file their memo of instructions within a period of one - 11 - NC: 2025:KHC:3430 WP No. 40903 of 2019 week from the date of receipt of copy of this order. iii. Accordingly, the writ petition is allowed. iv. All I.As. in this writ petition shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE MEG List No.: 1 Sl No.: 7