SRI.S.N. PATIL v. JAGANNATH
Case at a glance
- Bench
- SACHIN SHANKAR MAGADUM
Provisions considered
- Constitution of India art. 227
- Code of Civil Procedure, 1908 O. 26 r. 9
Key paragraphs
- Para 66. Though learned Judge was justified in directing the Court Commissioner to measure respondents’ property, however, this Court deems it fit to measure petitioner’s property also to ascertain the encroachment. Two vital aspects are to be looked into by the Court. If there is an…
Judgment
SRI.S.N. PATIL S/O NINGANAGOUDA PATIL AGED ABOUT 71 YEARS OCC: ADVOCATE R/O HOUSE NO.87, KHB COLONY SUBHAS NAGAR, HUBBALLI HUBBALLI-TQ PIN CODE - 580029 DHARWAD-DIST (SENIOR CITIZEN BENEFIT NOT CLAIMED) (BY SRI.H.R. GUNDAPPA, ADVOCATE) AND:
JAGANNATH S/O GURUNATH MISKIN AGED ABOUT 67 YEARS OCC: BUSINESS R/O. H.NO.86, KHB COLONY SUBHAS NAGAR, HUBBALLI HUBBALLI-TQ PIN CODE - 580029 DHARWAD- DIST
SMT. NAGARATNA W/O JAGANNATH MISKIN AGED ABOUT 63 YEARS OCC: HOUSEHOLD WORK SUBHAS NAGAR, HUBBALLI HUBBALLI-TQ. 580029, DHARWAD-DIST YASHAVANT NARAYANKAR YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA, DHARWAD BENCH …PETITIONER …RESPONDENTS - 2 - NC: 2024:KHC-D:7489 WP No. 103117 of 2024 THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS OF THE COURT BELOW; ISSUE A WRIT OF CERTIORARI OR SUCH OTHER APPROPRIATE WRIT OR ORDER OR DIRECTIONS, TO QUASH THE IMPUGNED ORDER DATED 12.04.2024, PASSED BY THE V ADDL. CIVIL JUDGE AND JMFC COURT AT HUBBALLI, IN O.S. NO.656/2017, ON I.A. NO.13, VIDE ANNEXURE-F, BY ALLOWING THE WRIT PETITION AND ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER The respondents – plaintiffs have filed a suit for declaration, possession and also mandatory injunction in respect of the suit schedule property.
2. Pending consideration of the suit, the respondents – plaintiffs have filed an application – I.A.No.13 requesting to appoint a City Surveyor as Court Commissioner to measure the house bearing LIG No.86 comprised in CTS No.439/1A2 and submit the report. The said application is allowed. - 3 - NC: 2024:KHC-D:7489 WP No. 103117 of 2024
The petitioner - defendant assailing the order passed on I.A.No.13 filed under Order 26 Rule 9 read with Section 151 of CPC is before this Court.
Heard learned counsel appearing petitioner. Perused the order under challenge.
On examining the records, this Court would find that the property owned by the present petitioner – defendant is H.No.87, while respondents – plaintiffs owned property is bearing No.86. Both properties are adjoining to each other. The respondents – plaintiffs have alleged that there is an encroachment by the petitioner – defendant.
Though learned Judge was justified in directing the Court Commissioner to measure respondents’ property, however, this Court deems it fit to measure petitioner’s property also to ascertain the encroachment. Two vital aspects are to be looked into by the Court. If there is an allegation of encroachment, the party, who is - 4 - NC: 2024:KHC-D:7489 WP No. 103117 of 2024 alleging encroachment, should have suffered reduction in the area and the party, who is an encroacher, his property measurement should have enhanced. Therefore, the learned Judge shall issue appropriate direction to both parties and secure Commissioner’s report and proceed thereafter. The petitioner – defendant is at liberty to file memo of instructions in terms of this order. In view of the above, the writ petition stands disposed off. Pending applications, if any, are also disposed off. Sd/- JUDGE NBM List No.: 1 Sl No.: 38
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.