Full Judgment
-1- IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 27TH DAY OF MAY, 2024 BEFORE THE HON'BLE MR. JUSTICE RAJESH RAI K WRIT PETITION NO. 200176 OF 2024 (GM-CPC) BETWEEN: BASAPPA S/O SHANKREPPA HADAPAD, AGE: 61 YEARS, OCC: RTD ASST. AGRICULTURE OFFICER RESIDENT OF SINDAGI, TALUK: SINDAGI -586128 …PETITIONER (BY SRI. PRADEEP KUMAR, ADVOCATE) AND:
1. SMT. SHANTAMMA W/O SIDDAPPA MANGALUR, Digitally signed
by RAMESH AGE: 80 YEARS, OCC: HOUSEHOLD WORK, MATHAPATI R/O BASAVANAGAR, WARD NO.12 SINDAGI, Location: HIGH TQ. SINDAGI, DISTRICT: VJIAYAPUR.COURT OF KARNATAKA
2. SRI. RAJU S/O SIDDAPPA MANGLUR, AGE: 55 YEARS, OCC: SERVICE, R/O SINDAGI NOW AT GOVT B.ED. COLLEGE JAMAKHANDI.
3. SHASHIKALA D/O SIDDAPPA MANGLUR, AGE: 50 YEARS, OCC: TEACHER, R/O BASAVANAGAR, SINDAGI TQ. SINDAGI, -2-
4. SUNANDA D/O SIDDAPPA MANGLUR, AGE: 47 YEAR, OCC: HOUSEHOLD WORK, R/O BASAVANAGAR, SINDAGI TQ. SINDAGI
5. RAVINDRANATH S/O SIDDAPPA MANGLUR, AGE: 44 YEARS, OCC: BUSINESS, R/O BASAVANAGAR, SINDAGI TQ. SINDAGI, …RESPONDENTS (BY NOTICE TO R1 TO R5 ARE SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLES 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO ALLOW THE PETITION AND QUASH THE IMPUGNED ORDER DATED 18.12.2023 ON I.A. NO.IX. FILED UNDER ORDER 16 RULE 07 CPC PASSED BY THE ADDL. CIVIL JUDGE AND JMFC AT SINDAGI IN O.S. NO.80/2014 PRODUCED AT ANNEXURE-F CONSEQUENTLY ALLOW THE SAME. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY THE COURT MADE THE FOLLOWING:
ORDER
The petitioner/plaintiff being aggrieved by the order
dated 18.12.2023 passed on I.A.No.IX filed under Order
16 Rule 7 of CPC in O.S.No.80/2014 by the Additional Civil Judge and JMFC, Sindagi has preferred this Writ Petition.
2. The factual matrix of the case is that the petitioner being the plaintiff has filed a suit for the relief of -3-
declaration, possession and mandatory injunction against the respondents in O.S.No.80/2014 before the Additional Civil Judge and JMFC, Sindagi and in the said suit, the plaintiff claims that he is the owner of the property bearing TMC No.2379, plot No.93 and the defendants are the owners in possession of property bearing TMC No.2380 plot No.94 and the respondents being the adjacent owners of the plaintiff’s property have encroached into the property of the petitioner as shown in hand sketch by the letters “AEFD” mentioned in the suit schedule property. Hence, he filed I.A.No.IX under Order 16 Rule 7 read with Section 151 of CPC to summon the Chief Officer of TMC, Sindagi to adduce evidence on his behalf. The said application was opposed by the respondents-defendants and vide order dated 18.12.2023, learned Civil Judge dismissed the said application. Challenge to the same is lis before this Court.
3. Heard the learned counsel for the petitioner/plaintiff. -4-
4. It is the primary contention of the learned
counsel for the petitioner that the Chief Officer of TMC, Sindagi is the best person to ascertain the alleged encroachment made by the respondents to the property of the petitioner. He would further contend that he has filed a complaint before the TMC Officer, Sindagi in respect of the encroachment made by the defendants and based on that a notice has been issued by the TMC Officer, Sindagi to both the parties. Accordingly, the measurement has been conducted on 20.01.2005 and an acknowledgment is also
issued to the petitioner regarding the alleged
encroachment made by the respondents. The said endorsement has been placed before the learned Civil Judge and the same has been marked as Ex.P10. Such being the case, according to the learned counsel for the petitioner, the Chief Officer of the TMC is a proper person to depose to that effect. Inspite of that, the learned Civil Judge has dismissed his application. Accordingly, he prays to allow the Writ Petition.
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5. Though notice served to the respondents, they have not appeared before the Court.
6. Having heard the learned counsel for the
petitioner and perusing the materials made available before this Court, it could be seen from the affidavit accompanying to the application that the petitioner has already filed a complaint before the TMC Officer, Sindagi in
respect of the alleged encroachment made by the respondents to his property and as rightly contended by the learned counsel, the concerned authority has issued an endorsement and the same has been marked before the Trial Court as Ex.P10. Such being the position, the reasoning of the learned Trial Court Judge that the petitioner could have proved his case by producing cogent
documents seems to be incorrect. Therefore, the order
passed by the Trial Court deserves to be set aside. Accordingly, I pass the following:
ORDER
i. The Writ Petition is allowed. -6-
ii. The order dated 18.12.2023 passed on I.A.No.IX filed under Order 16 Rule 7 of CPC in O.S.No.80/2014 by the Additional Civil Judge and JMFC, Sindagi is set aside. iii. The application in I.A.No.IX filed by the petitioner is allowed and the Trial Court is directed to summon the Chief Officer, TMC, Sindagi to lead his evidence within an outer limit of 15 days and dispose of the original suit at the earliest.
Sd/- JUDGE VNR List No.: 1 Sl No.: 14 CT;BN