Smt. Bhagyalakshmi vs Sri R.V Prasannakumar
2021 Latest Caselaw 50 Kant

 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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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*