SMT. P. RAJITHA v. M/S. VIGNESHWARA ESTATES

REP. BY ITS DIRECTOR MR. ADITYA KAURA.

3. MRS. INDU MODI PARTNER-M/S VIGNESHWARA ESTATES, W/O MR. J.K. MODI, AGED ABOUT 74 YEARS, R/AT C-9/15, DLF CITY, PHASE-1, GURGAON, HARYANA-122 002 AND ALSO AT: FLAT NO.100, OORVE APARTMENTS, NO.60, MUNI MARAPPA ROAD, OFF. NANDIDURG ROAD, JAYAMAHAL, BENGALURU-560 046.

4. RAM PRASAD S/O LATE A.C. PRAKASH REDDY, AGED ABOUT 45 YEARS, R/AT NO.21, 12TH MAIN, 14TH CROSS, WILSON GARDEN, BENGALURU-560 030. SINCE FROM THE YEAR 2008 DEFENDANT NO.1 IS RESIDING AT FLAT NO.CPH-2, MANTRI SAROVAR APARTMENTS, H.S.R. LAYOUT, BENGALURU-560 102. (BY SMT. SHALINI JOHN, ADVOCATE FOR R.1 TO R.3; SRI A.MADHUSUDHANA RAO, ADVOCATE FOR R.4.) …RESPONDENTS THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER IN DATED O.S.NO.1938/2019 BY THE HON'BLE XVII ADDITIONAL CITY JUDGE, AT BENGALURU AND CIVIL AND SESSIONS I.A.NO.8 FILED BY THE CONSEQUENTLY ALLOW THE (ANNEXURE-A)

23.04.2024 PASSED - 3 - NC: 2024:KHC:24447 WP No. 16763 of 2024 PETITIONER AND DISMISS THE I.A.NO.9 FILED BY THE RESPONDENT NOS.1 TO 3-PLAINTIFFS 1 TO 3, ETC. THIS PETITION COMING ON FOR PRELIMINARY HEARING, THROUGH PHYSICAL HEARING/VIDEO CONFERENCING THIS DAY, THE COURT MADE THE FOLLOWING: ORDER

1. Respondent nos.1 to 3 are the plaintiffs O.S.No.1938/2019, respondent no.4 is defendant no.1 and the petitioner is defendant no.2.

2. For the sake of convenience, the parties are referred to herein as per their status before the trial court.

3. The plaintiffs are said to have purchased 24.79 guntas of land in Survey No.34/4 of Junnasandra village, Varthur Hobli, Bengaluru East Taluk, by way of a registered sale deed dated 21.08.2012 and another 2 acres 11 guntas of land in the same survey number by a registered sale deed dated 22.02.2012 and that they have a common khatha for the entire land. Defendant no.2 is said to be the owner of 3 acres 5 guntas in Survey No.34/2, Junnasandra village, Varthur Hobli, Bengaluru East Taluk. She is said to - 4 - NC: 2024:KHC:24447 WP No. 16763 of 2024 have become the owner of the same by virtue of a gift deed dated 03.10.2012 executed by defendant no.1 who had purchased the same by virtue of an exchange deed dated 23.03.2007. Both the properties are adjacent properties.

4. The plaintiffs filed a suit for declaration and permanent injunction against the defendants in respect of 24.79 guntas of land, which is the suit schedule property. The defendants have filed their written statements. The case of the plaintiffs is that they are the owners of 3 acres of land in Survey No.34/4, of which the defendants are disputing and disturbing their peaceful possession in respect of 24.79 guntas of land, as a result of which, a declaration suit along with injunction is filed in respect of the said 24.79 guntas of land.

5. The plaintiffs place their reliance upon the sale deeds executed in their favour. Per contra, the defendants submit that they are the owners of 3 acres 5 guntas of - 5 - NC: 2024:KHC:24447 WP No. 16763 of 2024 land in Survey No.34/2 as per the measurements and boundaries given in the exchange deed.

6. During cross examination of PW.1, defendant no.2 made an application under Order 14 Rule 5(2) of CPC for framing of additional issues (I.A.No.8) and the plaintiffs made an application under Order 26 Rule 9 of CPC for appointment of a Court Commissioner to conduct a survey of the property of the plaintiffs and defendant no.2 and submit a report. The trial court did not pass any orders on I.A.No.8 for framing of additional issues and by way of the impugned order, the same has been kept in abeyance and has appointed the Assistant Director of Land Records, Bengaluru East Taluk, as the Court commissioner to conduct the survey of the property of the plaintiffs and defendant no.2 and submit a report. Aggrieved by the same, defendant no.2 therein has preferred this writ petition.

7. The case of defendant no.2 is that, when she has made an application for framing of additional issues, the - 6 - NC: 2024:KHC:24447 WP No. 16763 of 2024 same ought to have been allowed and the trial court erred in not allowing the same. It is further contended that before completion of the trial, the appointment of a Court Commissioner under the given facts and circumstances of the case amounts to collection of evidence and the said application for appointment of a Court Commissioner ought to have been rejected by the trial court. On the said grounds, the impugned order is assailed and the present writ petition is filed.

8. Per contra, the plaintiffs/respondent nos.1 to 3 justify the order passed by the trial court and prays for dismissal of the writ petition.

9. The question that arises for consideration in this writ petition is whether the trial court was justified in keeping in abeyance the application filed by defendant no.2 for framing of additional issues and whether the trial court was justified in appointing a Court Commissioner? - 7 - NC: 2024:KHC:24447 WP No. 16763 of 2024

10. As per Order 26 Rule 9 of CPC, in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court. It is not necessary that the said Commissioner has to be appointed only after recording the entire evidence. The Court can appoint the Commissioner at any given stage, depending on the facts and circumstances of the case.

11. In the instant case, the trial court is of the opinion that, as the properties of the plaintiffs and defendant no.2 are adjacent properties, there is a boundary dispute between them and to resolve the same, it would be appropriate to appoint a Court Commissioner and for that reason, it has appointed the Assistant Director of Land Records as the Court Commissioner. The contention of defendant no.2 is that the dispute is not limited to boundary and that the suit involves a dispute - 8 - NC: 2024:KHC:24447 WP No. 16763 of 2024 relating to title of the property and it is submitted that defendant no.1 has purchased 3 acres 5 guntas of land in Survey No.34/2 as per the measurements and the boundaries mentioned in the exchange deed and that the same family members are involved in alienating the property in favour of defendant no.1 as well as the plaintiffs and defendant no.1's exchange deed being anterior to that of the sale deed of the plaintiffs, the plaintiffs would be entitled to only those lands which would be available after deducting the land of defendant no.1 which in turn has now been gifted to defendant no.2. In the course of the arguments, it is also submitted that there is a possibility of a portion of the land of defendant no.2 may fall within Survey No.34/4 also and in that event, defendant no.2 would be entitled for the same. This contention is seriously rebutted by the plaintiffs contending the documents produced by defendants indicate that they purchased the land available in Survey No.34/2 and not Survey No.34/4 and the persons who have sold the properties to defendant no.1 - 9 - NC: 2024:KHC:24447 WP No. 16763 of 2024 and the plaintiffs are totally different and that the plaintiffs' property lies in Survey No.34/4 and that they have got the khatha done in their names and if there is a shortage of land in Survey No.34/2, it is at the peril of the defendants and they cannot make any claim to the lands of the plaintiffs.

12. These facts are to be decided by the trial court after recording of evidence and based on the materials placed by the parties to the dispute.

13. The only question to be decided by this Court at this stage is whether the appointment of a Court Commissioner is appropriate or not?

14. Admittedly, the trial court is of the opinion that there is a boundary dispute between the plaintiffs and the defendants and is appropriate to appoint a Commissioner to verify the same. No fault can be found in the conclusion arrived at by the trial court in this regard. However, I am of the opinion that under the given peculiar - 10 - NC: 2024:KHC:24447 WP No. 16763 of 2024 facts and circumstances of the case, it would also be appropriate to direct the Court Commissioner to mark the boundaries of the land as per the exchange deed executed in favour of defendant no.1 and the gift deed executed in favour of defendant no.2 on the one hand and the sale deed executed in favour of the plaintiffs on the other hand in the report to be submitted in addition to whatever that has been ordered by the trial court and this may facilitate the trial court to resolve the dispute on hand in a better manner. The impugned order of the trial court insofar as it relates to the order passed on I.A.No.9 is modified to that extent.

15. Insofar as it relates to keeping the application- I.A.No.8 (framing of additional issues) in abeyance, this Court is of the opinion that it is not appropriate. Issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. It is always advisable for the Courts to frame an issue before commencement of the trial. However, nothing prevents - 11 - NC: 2024:KHC:24447 WP No. 16763 of 2024 the Courts to frame an issue even after commencement of the trial, but the same is required to be framed at the earliest. Under the said circumstances, this Court is of the opinion that interest of justice would be met, if the trial court is directed to decide upon I.A.No.8 filed by defendant no.2 as early as possible.

16. For the aforementioned reasons, the trial court is hereby directed to consider the application-I.A.No.8 filed under Order 14 Rule 5 of CPC by defendant no.2 as expeditiously as possible. The writ petition stands disposed of accordingly. Sd/- JUDGE hkh.