IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
Miscellaneous Second Appeal No.54 OF 2013
BETWEEN:
Smt. Bhagyalakshmi
W/o Dr. P.R.Chidanandappa,
Aged about 61 years,
R/at Balaji Nagar,
Sira Town-572 137
Tumkur District.
...Appellant
(By Smt.P.C.Sunitha, Advocate)
AND:
Sri. R.V.Prasannakumar
S/o Venkataravanaiah Setty,
Aged about 76 years,
R/o New Post Office Road,
Sira Town -572 137,
Tumkur District.
...Respondent
(Respondent - served)
****
This Miscellaneous Second Appeal is filed under Order
43 Rule 1(U) of the Code of Civil Procedure, praying to set
aside the judgment and decree passed by the learned Senior
Civil Judge and JMFC, Sira in R.A.No.42/2012 dated:
20-08-2013 and to restore the judgment and decree passed
M.S.A.No.54/2013
2
in O.S.No.35/2006 dated:11.06.2012 passed by the learned
Civil Judge and JMFC at Sira.
This Miscellaneous Second Appeal coming on for
Hearing, through Physical Hearing/Video Conferencing
Hearing this day, the Court delivered the following:
JUDGMENT
It is a defendant's second appeal who has challenged the judgment of the learned Senior Civil Judge and J.M.F.C. at Sira (hereinafter for brevity referred to as the "first appellate Court) passed in Regular Appeal No.42/2012, wherein it has allowed the appeal by setting aside the judgment and decree passed in O.S.No.35/2006 by the learned Civil Judge and J.M.F.C., Sira (hereinafter for brevity referred to as the "Trial Court") dated 11-06-2012 and remanded the matter to the Trial Court with a direction to provide an opportunity to both side to lead further evidence on the M.S.A.No.54/2013 3 Court Commissioner's second report and also on the re- casted issues.
2. The summary of the case of the plaintiff, who is the respondent herein, in the Trial Court was that, he had instituted a suit against the present appellant arraigning her as a defendant for the relief of declaration, ownership and permanent and mandatory injunction and also for a direction to the defendant to demolish the alleged illegal construction over the suit schedule property and also for the delivery of alleged encroached portion of the suit property to him. The plaintiff had alleged that he is the owner in possession of the suit schedule immovable property and that the defendant who was his neighbour had put up construction in such a manner that, a sizeable portion of his property which is the suit schedule property was M.S.A.No.54/2013 4 encroached by the defendant and an illegal construction was put up by the defendant.
3. The defendant appeared in the matter and contested the suit by filing her Written Statement. The Trial Court framed issues and additional issues and also secured report from the Court Commissioner and ultimately proceeded to dismiss the suit of the plaintiff.
4. Aggrieved by the same, the plaintiff preferred a Regular Appeal in the first appellate Court in R.A.No.42/2012, which, by its impugned judgment dated 20-08-2013 allowed the appeal filed by the plaintiff and remanded the matter back to the Trial Court with a direction to re-admit the same in the original number and permit both parties to lead their further evidence on the second Court Commissioner's report and also on the re-casted issues and thereafter to dispose of the suit in accordance with law. It is the said M.S.A.No.54/2013 5 order of the first appellate Court, the defendant in the Trial Court has challenged through this Miscellaneous Second Appeal.
5. The respondent though served, has remained un-represented.
6. Heard the arguments of the learned counsel for the appellant.
7. Perused the materials placed before this Court including the impugned judgments and the records received from the Trial Court and also the first appellate Court.
8. Learned counsel for the appellant in her argument submitted that, the alleged re-casted issues are identical to the original issues, as such, it does not affect the interest of either of the parties. Therefore, re- casting of the issues in the judgment cannot be a ground for remanding the matter. She further submits M.S.A.No.54/2013 6 that since the Commissioner himself has given a modified report, question of he being examined by either of the parties does not arise. She further submits that the Trial Court finding is not mainly based on the alleged Commissioner's report and it has taken into consideration the other aspects also.
9. By a perusal of the materials placed before this Court, it is revealed that both parties have admitted that the suit schedule property was originally belonging to one Sri. Eswarappa S/o. Sannappa and that the plaintiff claims to have purchased the said suit schedule property from the said Eswarappa under a registered Sale Deed dated 24-08-1994 for a valuable consideration. It is based on the evidence led by the plaintiff on the similar line and also considering the registered Sale Deed which was marked as Ex.P-2, the Trial Court has answered the issue No.1 in the affirmative M.S.A.No.54/2013 7 holding that the plaintiff has proved that he is the absolute owner and in possession of the suit schedule property as on the date of the suit.
It is also an admitted fact that both the parties, i.e. the plaintiff and defendant are the owners of adjoining sites and defendant's property lies on the Eastern side of the suit schedule property of the plaintiff. However, the bone of contention of the plaintiff is about the alleged encroachment alleged to have been made by the defendant while putting up construction in his site. According to the plaintiff, the defendant has encroached a portion of his property in the guise of construction that was being put up by the defendant in her property.
10. Admittedly, the Trial Court, initially had framed the following six issues for its consideration:
"1. Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property as per the sale deed?
M.S.A.No.54/2013 8
2. Whether the plaintiff proves that, the defendant is attempting to encroach on the suit schedule property on its eastern side and also attempting to lay foundation?
3. Whether the cause of action is arise to file the suit?
4. Whether the defendant proves that the suit is not properly valued?
5. Whether the suit of the plaintiff is bad for non-joinder of necessary parties?
6. Whether the plaintiff is entitled for the relief as claimed in this suit?6. what order or Decree?"
Thereafter, the Trial Court framed the following four issues as additional issues:-
Additional issues "1. Whether the plaintiff proves that he is absolute owner of the suit schedule property?
2. Whether the plaintiff proves that the defendant encroached suit schedule property and constructed foundation over the suit schedule property by way of encroachment?
M.S.A.No.54/2013 9
3. Whether the plaintiff is entitled for recovery of the suit schedule property?
4. Whether the plaintiff is entitled for mandatory injunction?"
11. It is after framing these issues and additional issues, both parties led their evidence in the matter wherein from the plaintiff's side, two witnesses were examined as PW-1 and PW-2 and Exhibits from P-1 to P-8 were marked. From the defendant's side, one witness was examined as DW-1 and documents from Exs.D-1 to D-6 were marked. It is thereafter when the matter was reserved for judgment, the Trial Court re- casted the issues as follows:-
Recasted issues
1. Whether plaintiff proves that he is the absolute owner and in possession of suit property as on the date of suit?
2. Whether the plaintiff proves that the defendant laid foundation by encroaching eastern side portion of suit property?
M.S.A.No.54/2013 10
3. Whether the defendant proves that the court fee paid by the plaintiff is insufficient?
4. Whether the plaintiff is entitled for the sought for?5. what order or decree?"
12. The Trial Court proceeded to give its finding upon the re-casted issues and pronounced the impugned judgment of dismissal of the suit of the plaintiff. Neither in the order sheet maintained by the Trial Court nor in the impugned judgment passed by it, there are any reasons recorded which made the Trial Court to re-cast the issues, that too, after hearing the arguments from both side and when the matter was reserved for pronouncement of judgment. Admittedly, the evidence led by the parties were not upon the re-casted issues, but they were upon the original issues and additional issues framed by the Trial Court. As such, neither of the parties had any opportunity to lead their M.S.A.No.54/2013 11 evidence subsequent to re-casting of the issues by the Trial Court. However, the Trial Court proceeded to give its finding exclusively and only on the re-casted issues, thus abandoning the original issues and additional issues. Thus, the parties in the Trial Court got the finding on the re-casted issues upon which they had no opportunity to lead their evidence.
13. A perusal of the re-casted issues with that of the original issues and additional issues also would go to show that the re-casted issues are not exactly on the same line as that of the original issues and additional issues. Had the Trial Court really inclined to re-cast the issues, it should have necessarily given an opportunity to the parties to lead their additional evidence, if any, on the re-casted issues. However, the Trial Court has not given any such opportunity to either of the parties.
M.S.A.No.54/2013 12 Secondly and more importantly, in order to make a local inspection of the disputed encroachment, a Court Commissioner was appointed for local investigation. The said Court Commissioner had submitted his report which was also marked as Ex.P-6. The said Court Commissioner, in his report at Ex.P-6 has opined that, there was an encroachment by the defendant of around 12 ½ sq.ft. and 2 ½ sq.ft. of plaintiff's suit property. Incidentally, the said Court Commissioner was at first examined as PW-2. During the course of his evidence, the Trial Court directed the said Court Commissioner to once again visit the disputed property in accordance with the layout plan and to submit his report afresh. Accordingly, the Court Commissioner in pursuance of the said direction, once again visited the disputed property and submitted another report along with the sketch which was diametrically opposite to his first report, since M.S.A.No.54/2013 13 the second report stated that the defendant has not at all encroached any portion of the plaintiff's suit schedule property. The Trial Court, no doubt, gave opportunity to the parties to file their objections, if any, to the said second report submitted by the Court Commissioner. However, though the said second report was not acceptable to the plaintiff, still, it did not give any opportunity to either of the parties, more particularly, to the plaintiff to further examine the Court Commissioner on his alleged second report.
It is based on the evidence placed before it by both side on the original issues and additional issues and also based on the Court Commissioner's report, the Trial Court proceeded to answer the re-casted issue No.1 in the affirmative and re-casted issues No.2, 3 and 4 in the negative and proceeded to dismiss the suit of the plaintiff with costs. The said judgment of the Trial Court which was M.S.A.No.54/2013 14 challenged by the plaintiff before the first appellate Court was thoroughly scrutinised by the first appellate Court, wherein, it has rightly come to the conclusion that once the Commissioner has submitted his second report, though on the direction of the Trial Court, which is diametrically opposite to his original report, the parties should have an opportunity to further examine him or to lead their evidence further. Admittedly, the said exercise has not been done by the Trial Court. Even for accepting or otherwise of the Court Commissioner's second report also, the Trial Court ought to have been more careful and should have conducted a thorough scrutiny of the Commissioner's report, when in fact his two reports were contradictory to each other. Thus, the Trial Court re-casted the issues only in its judgment and gave the finding on the re-casted issues abandoning the original issues and additional issues M.S.A.No.54/2013 15 framed by it and also committed an irregularity of not giving an opportunity to the parties to further examine the Court Commissioner upon his subsequent report. Since the said in-action of the Trial Court has led it to pass a judgment dismissing the suit of the plaintiff, I am of the view that the same is not in consonance with due process of law, which has deprived the parties to place their case appropriately before the Trial Court, as such, the Trial Court's impugned judgment does not sustain. The first appellate Court, rightly observing so, has allowed the appeal and has set aside the impugned judgment passed by the Trial Court and remanded the matter with directions. I do not find any perversity, illegality or irregularity in the said finding recorded by the first appellate Court.
Accordingly, I proceed to pass the following:-
M.S.A.No.54/2013 16 ORDER [i] The Miscellaneous Second Appeal is dismissed; [ii] The impugned judgment dated 20-08-2013 passed by the Court of the Senior Civil Judge and J.M.F.C. at Sira in Regular Appeal No.42/2012 is confirmed;
[iii] However, in order to avoid any further delay by the Trial Court in proceeding further with the matter as observed in the Regular Appeal No.42/2012, the appellant herein is directed to appear before the Trial Court, without expecting any summons or notice from it on 02-02-2021 at 11:00 a.m.;
[iv] However, the Trial Court may take appropriate steps in a process known to law for ensuring the presence of the plaintiff before it.
[v] Considering the age of the original suit, it is expected that the Trial Court will dispose of the M.S.A.No.54/2013 17 remanded original suit at the earliest, not later than four months from the date of receipt of a copy of this judgment.
Registry to transmit a copy of this judgment along with the records of the Trial Court and first appellate Court to the concerned Courts without delay.
Sd/-
JUDGE BMV*