1 WP 31840/09
IN THE HIGH COURT or KARNATAKA AT BANGALORE
DATED TfiIS THE 26" DAY or OCTOBER, 2o1of*o
BEFORE:
THE HON'BLE MR. JUSTICE A.S. PACHHEEUREE" K
WRIT PETITION No.31840 ggwzoos jéM¥c§c1',tI
BETWEEN:
1.
,VAND:,iu
'=a1}
C.Chikkasiddaiah, __~_
S/o. late DoddachannaiahfI'»
Aged about 44 years, "
C.Doddasidda, ,, _._ 3'
S/o. late Doddachannaiah;N'f
Aged about 46_yearsr_ta
Bothaare,Ifo.fi£hafifiegowadana
Doddi vi11age,~Kasaba Hobli,
Maddur'TaIuk;jman§yaEbistrict. PETITIONER/S
{By M/s. G,M,Afianoa'& hsha B.L., Advs.}
'c,sI§dai§h,
'S/o,'lateflDGddachannaiah,
1" Aged about 70 years,
Retd. KEB Employee,
Channegowadana Doddi,
Kasabalfiobli, Maddur Taluk,
xMandya'District.
.*v,:Thimmappa Gowda,
'IS/o. Veerappagowda,
_ Aged about 41 years,
R/o. Valagarahalli Village,
Maddur Taluk, Mandya District. RESPONDENT/S
[By Sri. T.N.Raghupathy, Adv. for R2.
R1 is served.}
2 WP 31840/09
This Writ Petition is filed u/Articles 226 and
227 of the Constitution of India praying to gpash
the impugned Order passed by the Prl. Civil Judge
{Jr. Dn.} & JMFC., Maddur in O.S. NO.l03[2303fdt,
12.08.2009 vide Annexure-A dismissed I.A..$oL3§£iiedL
by the petitioners under Order 26 Rule 9.&,1flfA)
r/w. Section 151 CPC 1908 seeking for appointment of*ux
Taluk Surveyor as Court Commissioner to measure the
suit schedule property and fix the b¢undaries;Vunder
Annexure-A illegal and not sustainable.’ ‘ “‘«’*
This Writ Petition coming on. for _Preiiminary*t
Hearing “B”-Group, this day uthe “Court: made the
following: “- *. * 3
i .<2R1?=_…._a'»-«:3 0 i
The petitionersiyheyeérchallenged the Order
rejecting itheir"vdappiisatisnT€Vfiled under the
provisions of Grder 26 Rule D and 10(A) r/w. Section
151 cpc.'*
,2§uiThe facts relevant for the purpose of this
'xpetition are as under:
leThe petitioners instituted the suit bearing
Thu’ 0,8. NoslQ3/2003 against their brotherwlst defendant
a hand lthe purchaser of the property of the 1″
wdefendant who is arrayed as the 2″” defendant in the
” suit. The copy of the plaint is produced at
uhnnexure–“C’. The suit property is the land bearing
Sy. No.1/10A, B-P1 dry land measuring 7 guntas
ssis
Ab)!
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assessed at 0.77 ps. with the boundaries mentioned
therein. A sketch is also been produced_’.,a_;n.dl~.._it
reveals that the property held by Dodda
the propositus was partitioned in 3 then.
eastwwest direction and the 15*”; reg o.ndent’*was’~., ixren
the strip on the southernps’side,AH_and pifoposjituslfl
was granted the share on northern-V5si’d,e. The
division amongst thep_artie’s”waspvdtowardvsi Veast–west
direction .
It is thiatithe]l%§:’V.’r’e’spondent has sold
the proper1::y_ whereas in the
Sale the property fallen
to his direction. Under
these Vc_ircuzh’stances,”v. when there was an obstruction
“by :p_2f’°defen’da1’ItV, the plaintiffs instituted a
‘fifo-r”.V4dec’;Laration and permanent infiunction
against thelrijdelfendants. The defendants appeared and
‘filedlthxeirv written statement and after framing the
issue-3’, the evidence was recorded and during the
-_lpeur:dency of the suit, an application came to be
‘mlfiled requesting for appointment of e Surveyor to
Jmeasure the suit schedule property and fix the
boundaries and to submit a report. The said
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application was opposed by the defendants alleging
that there was no dispute with regard atopfthe
identity of the land or the measurement” gfl than
property and therefore, they claim that there is no .*
question of appointing a Surveior afig that the oral
evidence is sufficient to, adjudicate that disputet7
In the circumstances, they sought for rejection of
the application. . l a i
The trial Court after hear$fi§¢gQ§fi the learned
counsel rejected the request for appointment of the
Surveycr and ;§g§§iev§a3 hy- the ‘same, the Present
petition has ‘ Leap’ _
3. 1 have heard the learned counsel for the
_ petitioners. x gjhe vlearned counsel for the 2″”
uV,respondent is absent. Respondent No.1 though served
is .a’b_sen”t
4.” As could be seen from the grievance of the
dlpetitipners, it is their apprehension that when
,thare” was a registered Partition Deed between
~ themselves, the la’ defendant and. their father, 3
Jstrips were made dividing the property owned by them
in the eastwwest direction and the propertxé
fifigr
V
5 WP 31840/09
measuring 7 guntas on the southern side was given to
the 1″ defendant, whereas the middle portionxVo_f’;the
property given to the share of the
plaintiffs and 1″ defendant’s was
side . If defendant No . 1 to whom “‘«south_e’r_n.s’tVri’p
in east–west direction was given to hisgshare “got;
it only to sell the property. fav’J_;i_«.1_.._.g’1’«.,1::”‘¢_v;sha.reVV
under the Partition So,
there is no question selling the
property in even if it has
been done,::. b_in.dimtheeWeinterest of the
Plainti.£’f’s’ that under the
registered 4′ referred to supra there
was a partitipone east-west direction. So,
wheng the piaintiffs claim that they are in
pAossess_ion,’eo–:E the middle strip running east-west
sg§_..~’?er the? registered Partition Deed,
he _ they’-.ca.j_n’ establish the same on the basis of the
document.-“i.e., registered Deed of Partition and in
_ case if there is any obstruction in their possession
,V can seek injunction also. when there is no
Udispute with regard to the boundaries between the
parties, the question of demarcation of the
boundaries does not arise for consideration. It is
/
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under these circumstances that the applicaticn of
the petitioners was rejected and I do not fiiaé any
merit in this petition. Hence it isf
accordingly.
Ksm*
dismisse&_