G. CHENNARAYAPPA Vs. AMBUJAMMA

JUDGEMENT

(1.) This petition is filed seeking the following reliefs:

(2.) Heard.

(3.) Sri.C.M.Nagabushana, learned counsel for the petitioners-defendant Nos.5 & 6 submits that respondent Nos.1 to 4 - plaintiffs have filed the suit in O.S.No.8874/2014 on the file of VI Additional City Civil and Sessions Judge, Bengaluru (for short, 'the trial Court') for partition and separate possession and further relief of declaration that defendant Nos.5 to 7 does not derive any right, title and interest of any kind over the portion of the suit schedule property based on the Will dtd. 23/2/1987. In the said suit, the petitioners have filed a detailed written statement; specific averment is made at paragraph Nos.10 & 11 that the suit schedule property has been fully developed by the petitioners, formed a layout and sold in favour of certain persons and thereafter khata is standing in the name of purchasers and thereafter buildings have come up. It is further submitted that the petitioners have raised objections with regard to payment of Court fees by respondent Nos.1 to 4-plaintiffs in the suit and requested the trial Court to frame an issue with regard to sufficiency of payment of Court fee and consider the said issue as a preliminary issue. It is also submitted that the trial Court framed the issue with regard to valuation of the suit schedule property and payment of Court fee and considered the said issue as a preliminary issue. While considering the said issue, the petitioners have filed an application in I.A.No.4 under Order XXVI Rule 9 read with Sec. 151 of CPC seeking for appointment of a Court Commissioner for local investigation to find out and report the existence of buildings in the suit schedule property. It is contended that the said application was moved after recording of the evidence by the trial Court on the preliminary issue as the parties to the proceedings dispute with regard to the existence of the structures in the suit schedule property. Hence, it is necessary to ascertain the existence of the buildings. It is further contended that this Court has directed the respondent Nos.1 to 4-plaintiffs to file an affidavit with regard to existence of the buildings. Respondent Nos.1 to 4 filed the affidavit, which indicates that the suit schedule property is a vacant agricultural land. When things stood thus, it is very much necessary to appoint a Court Commissioner to find out the truth. It is also contended that the trial Court in the impugned order at paragraph No.15 came to the conclusion that the issue with regard to Court fee can be considered along with other issues and in the said paragraph it has further recorded the finding that the question of paying the Court fee on the basis of market value does not arise and rejected the application for appointment of Court Commissioner. It is also contended that the findings of the trial Court at paragraph No.15 run contrary to each other, in the sense that the trial Court in one breath observes that the issue with regard to payment of Court fee can be considered along with other issues and in another breath it observed that the payment of Court fee on the market value does not arise and rejected the application. Hence, it is submitted that the matter requires reconsideration by the trial Court as once the trial Court framed an issue on the Court fee and decided the said issue as a preliminary issue, it is required to consider the same and record the finding on the said issue first and a separate order is required to be passed with regard to appointment of Court Commissioner as to whether appointment of Court Commissioner is necessary or not. Without doing so, the trial Court has committed a grave error in passing the impugned order, hence, he seeks to allow the petition by setting aside the impugned order with a further prayer to remand the matter to the trial Court for reconsideration of the application afresh.