T M SRINIVASAMURTHY Vs. VINAYAKA NAIK AND ANOTHER
LAWS(KAR)-2017-1-238
HIGH COURT OF KARNATAKA
Decided on January 16,2017

T M Srinivasamurthy Appellant
VERSUS
Vinayaka Naik And Another Respondents

JUDGEMENT

B. V. Nagarathna, J. - (1.)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 Sl. 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.)During 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-plaintiffs filed an application under Order XXVI, 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 Nyan-appanahalli, Begur Hobli, Bangalore South Taluk and to submit a report to the trial Court. That application has been allowed by the impugned order dated 18.04.2016. The said order has been assailed by the defendant in the suit before this Court.


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