SMT. SAROJAMMA v. SMT. K.C. MANJULAMMA

SMT. K.C. MANJULAMMA W/O H.P. ANNE GOWDA AGED ABOUT 58 YEARS R/O HEGGUDLU VILLAGE AND PST BANAKAL HOBLI MUDIGERE TALUK-577113.

THE VILLAGE ACCOUNTANT BASNE CIRCLE BANAKAL HOBLI MUDIGERE TALUK-577113.

THE REVENUE INSPECTOR BANAKAL CIRCLE BANAKAL HOBLI MUDIGERE TALUK-577113.

THE TAHASILDAR MUDIGERE TALUK-577113 AT MUDIGERE. - 2 - NC: 2024:KHC:26140 WP No. 11773 of 2019

THE BLOCK EDUCATION OFFICER BEO OFFICE MUDIGERE-577113.

THE CHIEF SECRETARY GOVERNMENT OF KARNATAKA BENGALURU-560001. …RESPONDENTS (BY SRI. U. BYREGOWDA, ADV., FOR R1 (ABSENT) SRI. BASAVARAJ GODACHI, AGA FOR R2 TO R6) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DTD 27.10.2018 PASSED BY THE ADDL. CIVIL JUDGE, J.M.F.C., MUDIGERE ON I.A.NO.V IN O.S.NO.190/2016 VIDE ANNX-F AND TO DISMISS THE I.A.NO.V. GRANT AN INTERIM ORDER TO STAY THE OPERATION OF THE IMPUGNED ORDER DTD 27.10.2018 PASSED BY THE ADDL. CIVIL JUDGE, J.M.F.C., MUDIGERE ON I.A.NO.V IN O.S.NO.190/2016 VIDE ANNX-F. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER Petitioner-plaintiff is assailing the order dated 27.10.2018 passed on I.A.No.5 in O.S.No.190/2016 on the file Additional Civil Judge and JMFC., Mudigere, (for short, 'the trial Court'), whereby the application filed by respondent No.1-defendant No.1 under Order XXVI Rule 9 of CPC was allowed by - 3 - NC: 2024:KHC:26140 WP No. 11773 of 2019 appointing the Surveyor, Mudigere to measure the Sy.No.118 of Heggudlu village, Banakal Hobli, Mudigere Taluk.

2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court.

3. Sri.B.R.Prasanna, learned counsel for the petitioner- plaintiff submits that the trial Court has committed grave error in allowing the application for appointment of Court Commissioner filed by defendant No.1. It is submitted that the petitioner, who is the plaintiff, has filed the suit for bare injunction seeking prayer to restrain the defendants from interfering with the possession of the suit schedule property by removing the fence and causing act of waste and dispossessing the petitioner-plaintiff from the schedule property. It is further submitted that the petitioner is the owner of the land measuring 2 acre 24 guntas in Sy.No.72 of Heggudlu village and she is not seeking any prayer with regard to Sy.No.118, for which the application is filed seeking appointment of Court Commissioner by the defendant No.1. It is also submitted that the defendant No.1, being the busy body, claming as the President of Grama Panchayat, has filed an application stating - 4 - NC: 2024:KHC:26140 WP No. 11773 of 2019 that the petitioner-plaintiff has encroached 20 guntas of the land which was allotted to the School in Sy.No.118 of Heggudlu village. The trial Court considering such averments in the affidavit, has erroneously allowed the application appointment of the Court Commissioner to measure the land in Sy.No.118 of Heggudlu village. Hence, he seeks to allow the petition by setting aside the impugned order passed by the trial Court.

4. Per contra, learned AGA representing respondent Nos.2 to 6 submits that the subject matter of the suit is different than the Sy.No.118 of Heggudlu village. Hence, the trial Court has committed error in ordering for appointment of the Court Commissioner to measure the Sy.No.118 of Heggudlu village.

5. There is no representation for the respondent No.1- defendant No.1.

6. Heard the arguments of learned counsel for the petitioner, learned Additional Government Advocate and perused the material available on record. - 5 - NC: 2024:KHC:26140 WP No. 11773 of 2019

It is not in dispute that the petitioner-plaintiff has filed the suit for bare injunction in O.S.No.190/2016. In the said suit, the defendant No.1 filed the written statement. During the pendency of the said suit, the defendant No.1 has filed an application - I.A.No.5 under Order XXVI Rule 9 of CPC seeking prayer to appoint the Surveyor as Court Commissioner to identify and locate the suit schedule property and an extent of 2.15 acres of land belonging to defendant No.5 situated in Sy.No.118 of Heggudlu Village, Banakal Hobli, Mudigere Taluk. The said application was duly opposed by the petitioner-plaintiff by filing objections. The said application I.A.No.5 filed by the defendant No.1 came to be allowed by the trial Court. The trial Court has recorded the finding that since there is a dispute between the parties with regard to boundaries, identification of the boundaries can only be done by an expert and proceeded to allow the application.

Admittedly, the claim of the petitioner-plaintiff is that the plaintiff is the owner of the land measuring 2 acre 24 guntas (excluding 0-02 guntas of karab land) in Sy.No.72 of Heggudlu village, Banakal Hobli, Mudigere Taluk. The plaintiff is neither claiming that the Sy.No.72 forms the part of Sy.No.118 - 6 - NC: 2024:KHC:26140 WP No. 11773 of 2019 nor is disputing the boundary with regard to Sy.No.72 and Sy.No.118 of Heggudlu village. The affidavit accompanying the application - I.A.No.5 indicates that the petitioner has encroached 20 guntas of land belonging to the defendant No.5- School in Sy.No.118 of the Heggudlu village. It is always open the defendants the suit initiate appropriate proceedings against the petitioner-plaintiff if the plaintiff has encroached the aforesaid extent of land which is allotted to defendant No.5 School. Merely the assertion that the petitioner- plaintiff has encroached 20 guntas of land in Sy.No.118 cannot be the basis to seek appointment of Court Commissioner to measure, locate and identify the suit schedule property and the land belonging to defendant No.5 in Sy.No.118 of Heggudlu village. Ultimately, the petitioner-plaintiff, who is before the trial Court seeking the relief of bare injunction, is required to prove her case based on the oral and documentary evidence. Hence, I am of the considered opinion that the trial Court committed grave error in allowing the application filed by defendant No.1 to measure, identify and locate the land in Sy.No.118 of Heggudlu village, which is not the subject matter of the suit. - 7 - NC: 2024:KHC:26140 WP No. 11773 of 2019