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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 2^ND DAY OF FEBRUARY, 2018

BEFORE

THE HON’BLE MR. JUSTICE B. VEERAPPA

WRIT PETITION NO.58388/2016(GM-CPC)

BETWEEN:

SMT. SARASWATHAMMA,

W/O K. N. NARASIMAIHA,

AGED ABOUT 64 YEARS,

R/AT NO.5, VIDYAPEETA CIRCLE,

BSK 1^ST STAGE,

BANGALORE-560050.

REPRESENTED BY HER G.P.A.HOLDER,

SRI K.N. PUTTEGOWDA @ PUTTARAJU,

S/O K. N. NARASIMAIAH,

AGED 45 YEARS,

R/AT NO.5, VIDYAPEETA CIRCLE,

BSK 1^ST STAGE,

BANGALORE-560050.

... PETITIONER

(BY SRI R. A. DEVANAND, ADVOCATE)

AND:

SMT. SEETHA,

W/O SRI ANAND,

AGED ABOUT 55 YEARS,

R/AT NO.9, VIDYAPEETA CIRCLE,

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BSK 1^ST STAGE, KATHRIGUPPE MAIN ROAD,

BANGALORE-560050.

... RESPONDENT

(BY SRI DEVARAJA GOWDA, ADVOCATE FOR

SRI V. VISHWANATH SETTY, ADVOCATE)

****

THIS WRIT PETITION IS FILED UNDER ARTICLE 227

OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE

ORDER PASSED ON I.A.8 IN O.S.5257/2006 BY THE COURT

OF X ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT

BANGALORE CITY DATED 26.10.2016 AT ANNEXURE-G.

THIS WRIT PETITION COMING ON FOR PRELIMINARY

HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE

FOLLOWING:-

O R D E R

The plaintiff filed the present writ petition against the

order dated 26^th October 2016 on I.A. No. VIII made in O.S.

No.5257/2006 on the file of the X Addl. City Civil &

Sessions Judge, Bangalore City, dismissing the application

filed by the plaintiff under Order XXVI Rule 9 of Code of

Civil Procedure for appointment of Court Commissioner for

the purpose of measurement of ‘A’ schedule property with

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reference to its boundaries and submit a report as to

whether the defendant has encroached ‘B’ schedule

property as alleged.

2. The plaintiff filed the suit for declaration that he is

the absolute owner of ‘B’ schedule property and to put her

in possession of the same and to direct the defendant to

pay

compensation/damages

for

illegal

and

unlawful

possession of the ‘B’ schedule property as may be assessed

by the Court. It is the case of the plaintiff that she has

purchased the ‘A’ schedule property morefully described in

the schedule to the plaint under the registered sale deed

dated 2.5.1998 through GPA holder, who is none other than

husband of the plaintiff. The Encumbrance Certificate and

the documents clearly indicate that she is the owner of ‘A’

schedule property. It was further contended that in

pursuance of the application filed by the plaintiff for change

of khatha and the objection made by the defendant, the

Corporation authorities visited ‘A’ schedule property and

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made spot inspection in the month of October-2013. At the

time of spot inspection, the fact of illegal encroachment

made by the defendant came to the knowledge of the

plaintiff. According to the plaintiff, the defendant has

encroached a portion of ‘A’ schedule property measuring

East to West 30 feet and North to South on eastern side 1

feet and North to South on western side 9 feet, in total

157 ½ square feet, which is morefully described in ‘B’

schedule to the plaint. Therefore the plaintiff filed the suit

for the reliefs sought for.

3. The defendant filed the written statement and

denied the plaint averments and contended that the very

suit filed by the plaintiff is not maintainable and baseless

and the plaintiff has not come to the Court with clean

hands. It was further contended that the defendant is the

owner in possession of the property bearing Nos.9 and 10

carved out in Sy.No.21 situated at Sunkenhally village,

Bangalore, presently within the Corporation Division Ward

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NO.53, having acquired the same under the registered sale

deed dated 15.12.1975. The defendant further stated that

as there was interference by the Corporation, she had filed

the suit for injunction against the Corporation and the said

suit came to be decreed confirming the possession of t