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2017 DIGILAW 114 (KAR)

T. M. SRINIVASAMURTHY v. VINAYAKA NAIK

2017-01-16

B.V.NAGARATHNA

body2017
ORDER : B.V. Nagarathna, J. This writ petition has been listed for preliminary hearing in B' Group along with I.A. 1/16 filed by respondent Nos. 1 and 2 seeking vacation of the stay granted by this Court. By order dated 29.04.2016, this Court had stayed the impugned order dated 18.04.2016 until further orders. With the consent of learned counsel on both sides the writ petition is heard finally. 2. The petitioner herein is the defendant in O.S. No. 6137/2014 which is filed by the respondents herein and is pending on the file of the XXXIX Additional City Civil Court, Bengaluru City. That suit has been filed by the respondent - plaintiffs seeking a decree of permanent injunction against the defendant in the suit in respect of the suit schedule property. The suit schedule property reads as under : Schedule All that piece and parcel of the property immovable property No. 9/2, Present BBMP 'B' Khatha SI. No. 612, BBMP property No. 9/2, Situated at Nyanappanahalli village, begur Hobli, Bangalore South taluk now under the limits of BBMP, Bangalore, measuring East to west (114+82)/2 feet and North to South (70 + 63)/2 feet totally measuring 6517 square feet and bounded on. East by Remaining portion of the Khatha No. 9/2 West by Property bearing Katha No. 11 North by Property bearing Khatha No. 9/1 South by Road 3. Daring the pendency of the said suit, respondents - plaintiffs contended that the defendant is putting up construction on the suit schedule property. Therefore, the plaint was amended and the relief of mandatory injunction against the defendant directing him to demolish the existing structure constructed on the suit schedule property has also been sought. After the conclusion of recording of evidence on both sides, respondent-plaintiff's filed an application under Order 26, Rule 9 read with Section 151 of Code of Civil Procedure, 1908 seeking appointment of the Taluk Surveyor, Bangalore South Taluk as the Court Commissioner to inspect the plaint, schedule property and to conduct survey in respect of Sy. No. 9/2 and Sy. No. 11/1 situated at Nyanappanahalli, Begur Hobli, Bangalore South Taluk and to submit a report to the trial Court. The application has been allowed by line impugned order dated 18.04.2016. The said order has been assailed by the defendant in the suit before this Court. 4. No. 9/2 and Sy. No. 11/1 situated at Nyanappanahalli, Begur Hobli, Bangalore South Taluk and to submit a report to the trial Court. The application has been allowed by line impugned order dated 18.04.2016. The said order has been assailed by the defendant in the suit before this Court. 4. I have heard the learned Senior Counsel appearing for the petitioner and the learned counsel appearing for the respondents and perused the material on record. 5. Learned Senior Counsel submitted that it is the specific case of the defendant that the suit schedule property does not exist at all which is evident from Ex.D1, which is the certified copy of the Compromise Decree passed in O.S. No. 156/2001. That suit was filed by one Smt. R. Vaidehi against Venkataswamy and others who are the original owners of Sy. No.9/1 and 9/2 wherein it has been stated that the said Survey Number has been converted to non-agricultural use and sites have been formed and sold to various purchasers and then the plaintiff in that suit was one of the bona fide purchaser. He contended that when the suit schedule property is no longer in existence, it is difficult to believe that the plaintiff would have purchased 6 guntas of land in the said survey number under a registered sale deed dated 28.01.2014 from one Gumma Reddy who is stated to have purchased the same from Venkataswamy and others in the year 2012. He contended that the impugned order permitting appointment of the Court Commissioner was wholly unwarranted and illegal and therefore, the same is required to be quashed. 6. Per contra, learned counsel appearing for respondents 1 and 2 supporting the impugned order contended that it is not in dispute that while one Venkataswamy, was the original owner of Sy. No.9/2 in which the site is situated, Vajrappa was the original owner of the site in Sy. No. 11/1 purchased by the defendants in the suit, it is also an admitted fact that the said sites are adjoining to each other. It is contended that the burden of proving the said case is on the respondent - plaintiffs. In order to prove their case, an application for appointment of Court commissioner was filed and that the impugned order does not call for any interference in this writ petition. 7. It is contended that the burden of proving the said case is on the respondent - plaintiffs. In order to prove their case, an application for appointment of Court commissioner was filed and that the impugned order does not call for any interference in this writ petition. 7. Having heard the learned Counsel appearing for parties and keeping in mind the respective submissions made by them with regard to the location of the suit schedule property and Sy. No.11/1 in respect of which the petitioner has claimed to have purchased the site and the same being adjoining to each other, it is noted that the burden is cast on the respondent - plaintiffs to prove their case. They have sought for a dual relief, one, is for permanent injunction and the other, is for a mandatory injunction as against the defendants. Therefore, the plaintiffs would have to establish that they are in lawful possession of the suit schedule property and that the defendant has interfered with their possession and that the defendant has in fact put up an illegal construction on the said property. In order to establish those facts, the respondent-plaintiffs sought appointment of the Court commissioner. The mere appointment of court commissioner as well as the submission of the report would not imply that either the case of the plaintiffs or the case of the defendant is established. The commissioner's report would have to be considered by the Trial Court as an additional piece of evidence and thereafter the matter is to be adjudicated. Hence, if the respondent-plaintiffs have sought for appointment of court commissioner in order to establish their case and the Trial Court has ordered the appointment of Court Commissioner, I do not find any infirmity in the said direction being issued by the Trial Court. 8. Further, when it is the specific case of the petitioner herein that the suit schedule property is not in existence by which it is implied that it does not belong to the respondent - plaintiffs, then that is a matter to be established by the defendant and on the basis of the same, the Trial Court would have to give its finding. Therefore, mere appointment of a commissioner would not lead to any implication with regard to the final adjudication of the matter. Therefore, mere appointment of a commissioner would not lead to any implication with regard to the final adjudication of the matter. If the Trial Court has exercised its discretion to appoint court commissioner to seek further evidence in the matter, I do not find that any different view could be taken in the case as the Trial Court which is seized of the entire suit has exercised its discretion to do so. Therefore, I do not find any infirmity in the order of the Trial Court. There is no merit in the writ petition. Writ petition is dismissed. 9. In view of the dismissal of the writ petition, the stay order granted by this court stands vacated. 10. Accordingly, I.A. 1/16 is disposed.