M. SOMASHEKHAR Vs. ERAMMA

JUDGEMENT

(1.) This petition is by the defendants in O.S. No.130/2015 on the file of the Additional Civil Judge and JMFC, Holenarasipura [for short, 'the civil Court']. The civil Court by the impugned order dtd. 1/7/2016 has allowed the respondent's application [I.A. No.IV] under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 [for short, 'the CPC'] appointing the Taluka Surveyor as the Court Commissioner to visit the property in Sy. No.53 of Chittanahalli Village, Kasaba Hobli, Holenarasipura Taluk and to file a report.

(2.) The respondent's suit is for declaration that she is the absolute owner of 2 acres 26 guntas in Sy. No.53 of Chittanahalli Village, Kasaba Hobli, Holenarasipura Taluk [the subject property], and the petitioners, who have encroached the subject property, must be called upon to vacate the same. The respondent's case essentially is that the petitioners' father, Sri. Madappa, is granted occupancy rights for only 15 guntas in Sy. No.53 of Chittanahalli Village, Kasaba Hobli, Holenarasipura Taluk but they have encroached the subject property, which is a much larger extent.

(3.) The petitioners, on the other hand, contend that their mother, Smt. Ningamma, was in possession of the subject property earlier as a tenant but because of certain circumstances, the occupancy rights to the subject property is granted to the respondent, and a similar grant is also made in favour of Sri. Basappa, son of Sri. Ajjegowda for another extent in Sy. No.53 of Chittanahalli Village, Kasaba Hobli, Holenarasipura Taluk [the subject property]. Both the respondents and Sri. Basappa, son of Ajjegowda have filed declaration with the authorities accepting that their mother, Smt. Ningamma is in possession of the subject property and that they accept she is entitled to the subject property and the other extent. The respondent has filed an application for appointment of a Court Commissioner after Issues are framed but before the evidence is let in.