Sri. Subramani. N vs Sri. Kannappanavar Byrappa
2022 Latest Caselaw 10281 Kant

                              1



     IN THE HIGH COURT OF KARNATAKA, BENGALURU

         DATED THIS THE 5TH DAY OF JULY, 2022

                         BEFORE

     THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

            R.F.A.NO.1352 OF 2018 (PAR / INJ)

BETWEEN

1.     SRI. SUBRAMANI N.,
       SON OF LATE NANJAPPA
       AGED ABOUT 51 YEARS

2.     SRI. NAGENDRA.N
       SON OF LATE NANJAPPA
       AGED ABOUT 45 YEARS

3.     SMT. BHAGYAMMA
       W/O LATE MUNIRAJA
       AGED ABOUT 49 YEARS

       ALL ARE RESIDING AT
       NO.109, UTTANAHALLI NANJAPPA'S HOUSE
       GOVERNMENT SCHOOL MAIN ROAD
       KODIGEHALLI, SAHAKARANAGAR POST
       BENGALURU - 560 092.
                                              ...APPELLANTS
(BY SRI. K.K. VASANTH AND
    SRI. G. BALAJI NAIDU, ADVOCATES)

AND

1.    SRI. KANNAPPANAVAR BYRAPPA
      AGED ABOUT 71 YEARS,
      RESIDING AT NO.226,
      RAMMANDIR ROAD,
      KODIGEHALLI, SAHAKARANAGAR POST,
      BANGALORE-560 096.
                                2



2.   SRI. ASHOK KUMAR
     SON OF SRI. KANNAPPANAVAR BYRAPPA,
     AGED ABOUT 49 YEARS,
     RESIDING AT MASAL SUBBANNA BUILDING,
     GOVERNMENT SCHOOL MAIN ROAD,
     KODIGEHALLI,
     SAHAKARANAGAR POST,
     BANGALORE-560 096.

3.   BRUHAT BANGALORE MAHANAGARA PALIKE
     KODIGEHALLI, BYATARAYANAPURA,
     BANGALORE-560 092.
                                       ...RESPONDENTS

(BY SRI. VEERABHADRAIAH.M.C., ADVOCATE FOR R-1 & R-2;
    R-3 SERVED)

       THIS APPEAL IS FILED UNDER SECTION 96 R/W ORDER 41
RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED:
21.06.2018 PASSED IN O.S.NO.2089/2015 ON THE FILE OF THE X
ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU,
DISMISSING THE SUIT FOR PERMANENT INJUNCTION AND ETC.

     THIS APPEAL COMING ON FOR ORDERS , THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                            JUDGMENT

This appeal by the unsuccessful plaintiffs in

O.S.No.2089/2015 is directed against the impugned judgment

and decree dated 21.06.2018 passed by the X Additional City

Civil and Sessions Judge, Bengaluru (for short "the trial

Court"), whereby the said suit filed by the appellants-plaintiffs

for permanent injunction, mandatory injunction, possession

and other reliefs in respect of the suit schedule immovable

properties was dismissed by the trial Court.

2. Heard learned counsel for the appellants, learned

counsel for respondent Nos.1 and 2 and perused the material

on record.

3. The appellants-plaintiffs instituted the aforesaid

suit inter alia contending that they were the absolute owners in

lawful and peaceful possession and enjoyment of the suit 'A'

schedule property. It was contended that despite not having

any manner of right, title, interest or possession over any

portion of the suit 'A' schedule property, defendant Nos.1 and

2 - respondent Nos.1 and 2 had illegally and high handedly

encroached upon a portion of the suit 'A' schedule property on

its eastern side measuring 4 x 40 fts. and put up illegal and

unauthorised construction on the said portion, which was

described as suit 'B' schedule property. It is further contended

that despite approaching defendant No.4 - BBMP to change

the khata in their favour, the BBMP did not take any steps in

this regard and as such, the plaintiff instituted the instant suit

for the aforesaid reliefs.

4. Respondent Nos.1 and 2 - defendant Nos.1 and

2 filed the written statement inter alia disputing and denying

the contentions and claims put forth by the plaintiff. They not

only disputed the alleged title and possession of the plaintiffs

over the suit schedule properties but also disputed the location

and identity of the suit schedule properties as claimed by the

plaintiffs. Defendant Nos.1 and 2 contended that they had not

encroached or trespassed upon any portion of the suit 'A'

schedule property or 'B' schedule property and that the

construction was put up by them in the property belonging to

them over which the plaintiffs did not have any right. It was

therefore contended that there was no merit in the suit and

that the same was liable to be dismissed.

5. The trial Court framed the following issues:

1) Whether the plaintiffs prove their lawful possession over schedule 'A' property?

2) Do they prove that defendants 1 & 2 have put up illegal construction in suit schedule 'B' property?

3) Do they prove the alleged obstructions of defendants?

4) Do they entitle for relief of permanent injunction and mandatory injunction as prayed?

5) What decree or order?

6. Plaintiff No.1 examined himself as PW.1 and

documentary evidence at Exs.P-1 to 28 were marked, while

defendant No.2 was examined as DW.1 and documentary

evidence at Exs.D-1 to D-13 were marked.

7. After hearing the parties, the trial Court answered

the aforesaid issue No.1 in the affirmative in favour of the

plaintiffs by holding that they are the absolute owners in lawful

and peaceful possession and enjoyment of the suit 'A'

schedule property; however, the trial Court answered issue

Nos.2 to 4 in the negative against the plaintiffs by coming to

the conclusion that they had not established encroachment by

defendant Nos.1 and 2 in respect of the suit 'B' schedule

property and consequently, the plaintiffs were not entitled to

any reliefs in the suit, which was dismissed by the trial Court

by passing the impugned judgment and decree, aggrieved by

which, appellants-plaintiffs are before this Court by way of the

present appeal.

8. Along with the appeal, the appellants have filed

two applications viz., I.A.No.1/2018 under Order 41 Rule 27

CPC for permission to produce additional documents and

I.A.No.2/2018 under Order 26 Rule 9 CPC for appointment of

a Court Commissioner to conduct survey/local inspection of

the suit 'A' and 'B' schedule properties. The said applications

are opposed by the respondents.

9. The following points arise for my consideration in

this appeal:

i. Whether the applications, I.A.Nos.1/2018 and 2/2018 deserve to be allowed?

ii. Whether the impugned judgment and decree passed by the trial Court warrants interference by this Court in the present appeal?

Re. Point No.i:

10. A perusal of the impugned judgment and decree

will indicate that as stated supra, the trial Court upheld the

claim of the appellants-plaintiffs that they are the owners in

possession and enjoyment of the suit 'A' schedule property.

However, the claim of the plaintiffs in respect of the 'B'

schedule property was negatived by the trial Court on the

ground that the plaintiffs had not established the location and

identity of the 'B' schedule property and that the plaintiffs had

not proved that defendant Nos.1 and 2 had encroached upon

the 'B' schedule property. While arriving at this conclusion,

the trial Court took into account the fact that the plaintiffs had

not sought for appointment of a Court Commissioner to

conduct local inspection/survey of the suit schedule property

and that the material on record did not establish or prove

encroachment by defendant Nos.1 and 2 on the 'B' schedule

property. As stated supra, the appellants have filed

I.A.Nos.1/2018 and 2/2018 for permission to produce

additional documents and to appoint Court Commissioner to

conduct local inspection/survey of the suit schedule

properties.

11. A perusal of the documents produced along with

I.A.No.1/2018 will indicate that the same are relevant and

material for the purpose of adjudication of the present appeal

and the reasons set forth by the appellants in the application

and affidavit for not producing the same earlier merit

acceptance and accordingly, I am of the considered opinion

that since no prejudice would be caused to the respondents if

the said documents are permitted to be produced particularly

when the respondents would be entitled to impeach the same,

I.A.No.1/2018 deserves to be allowed and accordingly, the

same is hereby allowed.

12. In so far as I.A.No.2/2018 is concerned, having

regard to the material on record, which clearly establishes that

there is a serious dispute with regard to location and identity of

the suit 'A' and 'B' schedule properties and the property

claimed by defendant Nos.1 and 2 and in the light of the

findings recorded by the trial Court that the appellants had not

proved the alleged encroachment and had not taken steps to

seek appointment of Court Commissioner to conduct

survey/local inspection, I am of the considered opinion that for

the purpose of adjudication of the issues in controversy

between the parties, appointment of a Court Commissioner to

conduct local inspection/survey and to submit his report is

essential in the facts and circumstances of the instant case.

Accordingly, I.A.No.2/2018 is also allowed.

Accordingly, point No.i is answered in favour of the

appellants.

Re. Point No.ii :

13. After having come to the conclusion that

I.A.Nos.1/2018 and 2/2018 deserve to be allowed, the next

question that arise for consideration is whether the said

additional evidence and report of the Court commissioner has

to be obtained by this Court or the matter be remitted back to

the trial Court for reconsideration afresh in accordance with

law by setting aside the impugned judgment and decree. As

stated supra, the trial Court has rejected the claim of the

appellants on the ground that they had not proved the alleged

encroachment on the suit 'B' schedule property and that no

steps had been taken by them to obtain the report of the Court

Commissioner. It is well settled that the report of the Court

Commissioner and the evidence collected by him becomes

part of the record as provided under Order 26 Rule 10 (2)

CPC; however, both parties would be entitled to file their

objections to the Commissioner's Report and examine/cross-

examine him. Further, the respondents-defendants would

also be entitled to impeach the documents, which are

permitted to be produced on behalf of the appellant. Under

these circumstances, I deem it just and appropriate to invoke

Order 41 Rules 23-A and 28 r/w. Section 107 CPC and set

aside the impugned judgment and decree and remit the matter

back to the trial Court for reconsideration afresh in accordance

with law by appointing a Court Commissioner and disposing of

the suit on merits after providing sufficient opportunity to all

the parties.

Point No.ii is answered accordingly.

14. In the result, I pass the following:

ORDER

i. Appeal is hereby allowed.

ii. The impugned judgment and decree dated

21.06.2018 passed in O.S.No.2089/2015 by

the X Addl. City Civil & Sessions Judge,

Bangalore, is hereby set aside.

iii. The matter is remitted back to the trial Court

for reconsideration afresh in accordance with

law.

iv. Liberty is reserved in favour of all parties to

adduce additional, oral and documentary

evidence in support of their respective

contentions.

v. I.A.1/2018 filed by the appellants for

production of additional documents is

allowed and the same are received on

record; Registry is directed to transmit

I.A.1/2018 along with documents to the trial

Court.

vi. I.A.2/2018 for appointment of Court

Commissioner to conduct survey/local

inspection is also allowed and the Trial Court

is directed to appoint Court Commissioner

and secure his report as expeditiously as

possible.

vii. Liberty is reserved in favour of the parties to

file their memo of instructions before the

Court Commissioner appointed by the trial

Court.

viii. Liberty is also reserved in favour of the

parties to file their objections to the

Commissioner's Report and to

examine/cross-examine him, if they so

desire.

ix. All rival contentions are kept open and no

opinion is expressed on the same.

x. Parties undertake to appear before the trial

Court on 01.08.2022 without awaiting further

notice.

xi. The trial Court shall decide the suit in

accordance with law as expeditiously as

possible and at any rate not later than nine

months from 01.08.2022.

xii. Liberty is also reserved in favour of the

parties to file such appropriate interlocutory

application before the trial Court which shall

be considered and disposed of by the trial

Court in accordance with law.

Sd/-

JUDGE

SV