Smt. Basavva W/O Laxman Chalavadi vs Dr. Baba Saheb Ambedkar
2021 Latest Caselaw 5381 Kant

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     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

        DATED THIS THE 3RD DAY OF DECEMBER, 2021

                           BEFORE

         THE HON'BLE MS. JUSTICE JYOTI MULIMANI

              M.S.A. NO.100153 OF 2017 (RO)
BETWEEN:
1.      SMT.BASAVVA
        W/O LAXMAN CHALAVADI,
        AGE:61 YEARS, OCC:HOUSEHOLD WORK,
        R/O MADIWAL BUILDING II MAIN, 4TH CROSS,
        CITB PLOTS, SADASHIVANAGAR,
        DHARWAD - 580 007.

2.      SMT.RENUKA
        W/O ARJUN BASANNANAVAR,
        AGE:45 YEARS, OCC:HOUSEHOLD WORK,
        R/O MADIWAL BUILDING II MAIN, 4TH CROSS,
        CITB PLOTS, SADASHIVANAGAR,
        DHARWAD - 580 007.

3.      MANJUNATH,
        S/O VEERPAXAGOUDA UDAKERI,
        AGE:37 YEARS, OCC:AGRICULTURE,
        R/O RAJATGERI,
        DHARWAD - 580 004.

4.      DR.SANJEEVA
        S/O MADVARAJ KULKARNI,
        AGE:63 YEARS,
        OCC:AGRICULTURE & MEDICAL PRACTICE
        R/O MAHISHI ROAD,
        DHARWAD - 580 001.

5.      DR.SOMALINGAPPA
        S/O MAHADEVAPPA NAVAGUND,
        AGE:69 YEARS,
        OCC:AGRICULTURE & MEDICAL PRACTICE,
                             2




       R/O LINGARAJ NAGAR, HUBBALLI,
       DIST:DHARWAD - 580 031.

6.     YASHAVANTH
       S/O RAMACHANDRA KHAIRE,
       AGE 49 YEARS, OCC:AGRICULTURE,
       R/O KAMALAPUR ROAD,
       DHARWAD - 580 008.

7.     RAJASHEKARGOUDA
       S/O KALLANAGOUDA HALEMANI,
       AGE 58 YEARS, OCC:AGRICULTURE,
       R/O KELAGERI - 580 007,
       TQ & DIST:DHARWAD.

8.     SMT.SAVITHA
       W/O BASAPPA MUSHIKERI,
       AGE:62 YEARS,
       OCC:AGRICULTURE & HOUSEHOLD WORK,
       R/O MAHANT NAGAR, KELAGERI,
       DHARWAD - 580 007.                ...APPELLANTS


(BY SMT.PADMAJA TADAPTRI, ADVOCATE FOR
    SRI.K.L.PATIL AND S.S.BETURMATH, ADVOCATES)

AND:


DR.BABA SAHEB AMBEDKAR SAMUDAYA PRAGATI SAMSTE,
KALYANAGAR, DHARWAD - 580 007.
NOW AT 1ST CROSS, MALHA HOUSING SOCIETY,
P.B.ROAD, NEAR M.G.BANK, DHARWAD,
REPRESENTED BY ITS SECRETARY,
SRI RUDRAPPA
S/O NARASHINGAPPA BEVINAKATTI,
AGE:52 YEARS, OCC:TEACHER/SECRETARY,
R/O RAJAJINAGAR, SATTUR,
DHARWAD TQ & DIST:
DHARWAD - 580 009.                       ... RESPONDENT

(SOLE RESPONDENT SERVED &
  REMAINED UNREPRESENTED)
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       THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CPC.


       THIS MSA POSTED FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                         JUDGMENT

Smt.Padmaja Tadapatri, learned counsel on behalf of

Sri.K.L.Patil, for appellants has appeared in-person.

2. Though this appeal is listed for admission, with

the consent of learned counsel for appellants, it is heard

finally.

3. This appeal is from the Court of the Principal

District Judge, Dharwad.

4. For the sake of convenience, the parties are

referred to as per their rankings before the trial Court.

5. The short facts are stated as under:-

It is stated that the total extent of land bearing block

No.1 of Daddikamalapur Village is 5 Acres and 27 Guntas. It

was a fallow land and the same belongs to Government. It

is stated that out of 5 Acres 27 Guntas, 4 Acres of land is

allotted to the defendant - Society in which the suit 18 feet

width road runs from Goa Road to the lands of the plaintiffs

and other land owners. The Deputy Commissioner, Dharwad

on behalf of the Government of Karnataka granted 4 acres

of land on certain terms and conditions by order dated

07.09.2000. In the said order, an area of 1 acre is left for

grazing cattle and the remaining land is granted to the

defendant - Society for education, Kalyana Mantapa and

other social purpose.

It is averred that the plaintiffs are lawful owners of

their respective lands and are cultivating their lands. They

have planted valuable trees. They are in peaceful

possession and enjoyment of the lands. Contending that the

use of the road is absolutely necessary to reach their lands,

plaintiffs filed a suit for declaration to declare that they have

right to use the suit land and also the relief of permanent

injunction was sought.

After the service of suit summons, the defendant

appeared through its counsel. The defendant filed written

statement and denied plaint averments.

Based on the above pleadings, the Trial Court has

framed the following issues.

1. Whether plaintiffs prove the existence of suit road as described in para No.2 of the plaint?

2. Whether plaintiffs prove that they have been using the suit road since more than 20 years to reach their respective agricultural lands?

3. Whether plaintiffs prove that they have no other alternative way so as to reach their respective lands from Dharwad-Goa road?

4. Whether plaintiffs prove that they are legally entitled to use the suit road as a matter of right?

5. If so, whether the plaintiffs are entitled for declaration as prayed for?

6. Whether plaintiffs prove that defendant is trying to close down the suit road by fencing it?

7. Whether plaintiffs are entitled for the relief of permanent injunction as prayed?

8. Whether defendant proves that the suit of the plaintiff is not maintainable under Order I Rule 8 r/w. Order VII Rule 4 of the C.P.C. as contended in para No.2 of the written statement?

9. Whether defendant proves that the suit of the plaintiffs is not maintainable under Section 67(2) of the Karnataka Land Revenue Act?

10. What order or decree?

In support of the case of the plaintiffs, plaintiff No.4

was examined as PW-1. The Power of Attorney Holder of

plaintiff No.7 was examined as PW-2 and produced twenty-

six documents which were marked as Exs.P-1 to P-26. In

support of the defendant's case, one Sharanappa Durgappa

Hosamani was examined as DW-1 and produced fourteen

documents which were marked as Exs.D.1 to D.14.

On the trial of action, the suit came to be decreed

holding that plaintiffs have a right to use the road which is

situate in the land bearing block No.1 of Daddikamalapur

village to reach their respective lands. The defendant was

also restrained by means of permanent injunction from

interfering with the plaintiff's peaceful use and enjoyment of

the road.

On appeal, the First Appellate Court set aside the

judgment and decree of the Trial Court and remanded the

case to the Trial Court. Hence, this Miscellaneous Second

Appeal is filed challenging the remand order on various

grounds as set out in the appeal.

6. Smt. Padmaja Tadapatri, learned counsel

submits that the judgment of the First Appellate Court is

contrary to the evidence on record and law.

Next, she submitted that the order of remand on the

ground of appointment of Commissioner is not justified.

A further submission was made that the application for

appointment of Commissioner was dismissed by the Trial

Court. Thereafter, the Trial Court in extenso referred to the

material on record and decreed the suit.

Counsel vehemently urged that the First Appellate

Court ought to have considered the matter on merits.

Lastly, she submitted that the judgment of the First

Appellate Court lacks judicial reasoning. Accordingly, she

submitted that the appeal may be allowed.

7. Heard the contentions urged on behalf of

appellants and perused the records with utmost care.

The case really falls within a small compass. The suit

giving rise to this appeal was filed by the plaintiffs for

declaration of easement of necessity. The suit road is 18

feet wide road leading from Goa Road to the lands of

plaintiffs and other land owners.

The defendant had made moved an application

(I.A.No.V) for appointment of Court Commissioner for local

inspection before the trial Court on 12.07.2010. The first

plaintiff had filed objections. The Trial Court passed the

order on 21.09.2010. The operative portion of the order

reads as under:-

"I.A.No.V filed by the applicant /defendant-society under Order XXVI Rule 9 of CPC filed for appointment of court commissioner for local inspection of the suit land shall be kept in abeyance till closure of the evidence of both sides. Thereafter, after closure of the evidence, the defendant-society is at liberty to press for I.A.No.V, if it deems it proper".

As things stood thus, during the pendency of the suit

proceedings, the defendant-Society filed one more

application I.A.No.14 under Order 26 Rule 9 of CPC for

appointment of Court Commissioner for carrying the local

inspection of the suit pathway and connected matters to it.

The application is dated 19.08.2013. The application was

opposed by the plaintiffs by filing objections. The Trial Court

considered the application and dismissed the application on

05.09.2013.

Subsequently, the Trial Court in extenso referred to

the material on record and decreed the suit. Aggrieved by

the judgement and decree of the Trial Court, the defendant

preferred an appeal before the First Appellate Court.

In the appeal, the defendant moved an application

(I.A.No.V) and sought for appointment of a City Survey

Officer, Dharwad as a Court Commissioner to look after the

existence of the suit property and also to look after the

alternative way to reach the plaintiff's land. The application

is dated 17.08.2017. The plaintiff filed objections.

The First Appellate Court formulated three points for

consideration. The third point for consideration relates to

appointment of Commissioner which reads as under: -

"Whether the appellant has made out grounds to appoint Commissioner as prayed in I.A.No.5?"

It is relevant to notice that the First Appellate Court

has dealt with point No.3 and answered in the affirmative

and passed the final order on 22.09.2017. The Court

proceeded to direct the trial Court to appoint Advocate

Commissioner with a direction to take assistance of Survey

officer to execute Commissioner Warrant. It is this order

which is challenged in this appeal on various grounds as set

out in the memorandum of appeal.

In my view, what is required to be considered is

whether the First Appellate Court is right in directing the

trial Court to appoint Advocate Commissioner.

As already noted above, the controversy revolves

around the appointment of Commissioner. Hence, it would

be relevant to refer to Order 26 Rule 9 of CPC.

Order 26 Rule 9 of CPC deals with appointment of

Commissioner which reads as under:

Commissions to make local investigations.-- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit

directing him to make such investigation and to report thereon to the Court:

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.

The object of local investigation under Rule 9 is to

obtain evidence which from its peculiar nature can best be

had from spot itself. Such evidence enables the Court to

properly and correctly understand and assess the evidence

on record. It clarifies or explains any point which is left

doubtful on the evidence on record.

In the present case, the defendant moved two

applications for appointment of Commissioner before the

trial Court. The first application was kept in abeyance till the

closure of the evidence. There is nothing on record to show

that the defendant did insist the Court to pass appropriate

order on the first application. The second application came

to be dismissed. Subsequently, the trial Court proceeded to

consider the matter on merits and decreed the suit.

The defendant filed application for appointment of

Commissioner for local inspection before the First Appellate

Court. The First Appellate Court allowed the application. In

my considered view, there is no necessity for appointment

of Commissioner for local inspection. The parties to the suit

have led evidence on the point and accordingly, the trial

Court considered the documentary and oral evidence on

record.

It is perhaps well to observe that it is not the object of

Order 26 Rule 9 of CPC to assist a party to collect evidence,

where the party can get the evidence itself. A Court should

not issue writs or pass order for appointment of

Commissioner where the parties can themselves get the

evidence for on the points for which they seek the

appointment of a Commissioner. A Judge may issue a

Commission in any case where he deems it fit to do so,

irrespective of his own convenience.

In the present case, both the parties led their

evidence and the trial Court considered the oral and

documentary evidence on record and decreed the suit. It is

strange that the First Appellate Court except saying that in

view of finding on various points, the judgment and decree

of the trial Court is set aside with a direction to appoint

Commissioner and get the report. I may venture to say that

no cogent reasons are assigned.

It is needless to say that the evidence on record is

sufficient to decide the matter. Hence, I have no hesitation

in saying that the First Appellate Court instead of

considering the matter on merits unnecessarily ordered for

appointment of a commissioner. In my opinion, the remand

order is unjust.

The substantial questions of law is answered

accordingly.

8. For the reasons stated above, the Miscellaneous

Second Appeal is allowed. The judgment and decree dated

22.09.2017 passed by the Court of Principal District Judge,

Dharwad in R.A.No.181/2017 is set aside. The First

Appellate Court is directed to consider the appeal on merits

and dispose of the same, in accordance with law.

Sd/-

JUDGE

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