Karnataka High Court

Smt. C Nagaveni vs Late Babu Reddy Dead By Lrs on 14 July, 2022

Bench: Sachin Shankar Magadum

                              1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 14TH DAY OF JULY, 2022

                           BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

       WRIT PETITION NO.13212 OF 2022 (GM-CPC)

BETWEEN:

SMT. C NAGAVENI
W/O MUNIREDDY,
AGED ABOUT 47 YEARS,
R/AT PARAPPANAAGRAHARA,
HONGASANDRA GRAMA PANCHAYATH
BEGUR HOBLI, BENGALURU SOUTH TALUK-560068
REP BY SPA HOLDER
P MUNIREDDY
S/O LATE PAPA REDDY
AGED ABOUT 67 YEARS,
NO.88, 4TH CROSS, DOLLAR SCHEME COLONY,
BTM 1ST STAGE, BENGALURU-560068

                                              ...PETITIONER

(BY SRI.H.N.SHASHIDHAR, SR.COUNSEL FOR
SRI.SOMASHEKAR NAIDU B, ADVOCATE)

AND:

LATE BABU REDDY DEAD BY LRS
(ORIGINAL DECREE HOLDER)
RESPONDENTS 1 TO 4

1. SMT. RAMADEVI B.M.
W/O LATE S.A BABU REDDY,
AGED ABOUT 56 YEARS
                              2


2. MS. MAMATHA
D/O LATE A BABU REDDY,
AGED ABOUT 36 YEARS

3. MS. DIVYA B.S
D/O LATE S.A BABU REDDY,
AGED ABOUT 31 YEARS

4. SRI. SATHISH KUMAR B
S/O LATE S.A BABU REDDY,
AGED ABOUT 42 YEARS

RESPONDENTS NO.1 TO 4 ARE
R/AT NO. 7, 7TH CROSS, 35TH MAIN,
BEHIND CENTRAL SILK BOARD,
2ND STAGE, BTM LAYOUT,
BENGALURU-560 068

MUNI REDDY
S/O LATE ADDAIAH REDDY
AGED ABOUT 70 YEARS
DEAD HIS LRS ALREADY IN RECORD
(JDR NO.2 TO 6) RESPONDENT NO.5 TO 9

5. SMT. RUKMANI
W/O LATE BABU REDDY
AGED ABOUT 43 YEARS

6. SRI. RAJAPPA
S/O MUNI REDDY
AGED ABOUT 43 YEARS

7. SRI. SATHISH
S/O MUNI REDDY
AGED ABOUT 33 YEARS

8. SRI. SRINIVAS REDDY
S/O MUNI REDDY
AGED ABOUT 33 YEARS
                               3


9. SRI. MANJU
S/O LATE MUNI REDDY
AGED ABOUT 35 YEARS

SMT. PAPAMMA
W/O LATE NARAYANA REDDY
AGED ABOUT 80 YEARS
DEAD HER LRS ALREADY ON RECORD
(JDR NO.8 AND 9) RESPONDENT NO.10

10. SMT. GULLAMMA
W/O LATE GOVINDA REDDY
AGED ABOUT 51 YEARS

SRI. ANANDA REDDY
S/O LATE NARAYANA REDDY
AGED ABOUT 53 YEARS
DEAD HIS LRS ALREADY ON RECORD
(JDR NO.9(a) TO 9(d) RESPONDENT NO.11 TO 14.

11. SMT. ANUSUYA
W/O LATE ANANDA REDDY
AGED ABOUT 53 YEARS

12. SMT. MANJULA
D/O LATE ANANDA REDDY
AGED ABOUT 35 YEARS

13. SRI. KIRAN
S/O LATE ANANDA REDDY
AGED ABOUT 28 YEARS

14. SRI. NAGENDRA
S/O LATE ANANDA REDDY
AGED ABOUT 28 YEARS

RESPONDENTS NO.11 TO 14 ARE
                                4


R/AT KUDLU VILLAGE,
SARJAPURA HOBLI,
ANEKAL TALUK-562 125

15. SRI. RAMASWAMY REDDY
S/O BHADRA REDDY
AGED ABOUT 61 YEARS,
R/AT NARAYANAGHATTA VILLAGE,
SARJAPURA HOBLI,
BENGALURU DISTRICT-562 125

                                               ...RESPONDENTS

(BY SRI.JAYAKUMAR.S.PATIL, SR.COUNSEL FOR SRI.AKASH.V.T,
ADVOCATE FOR C/R4)


        THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED
BY XI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE CCH 8
BANGALORE CITY DTD. 21.06.2022 IN EX. 2903/2011 ACCEPTING
COMMISSIONER REPORT AND REJECTING OBJECTIONS FILED BY
THE PETITIONER VIDE ANNX-M IN SO FAR AS REJECTION IS
CONCERNED AND CONSEQUENTLY PERMIT THE PETITIONER TO
CHALLENGE THE COMMISSIONER REPORT VIDE ANNX-K(A) TO
K(e).


        THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 05.07.2022, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
                                     5


                                ORDER

The captioned writ petition is filed by the judgment

debtor No.10 questioning the order of the Executing Court

passed in Ex.No.2903/2011 accepting the Commissioner

report.

2. The facts leading to the case are as under:

The father of respondent Nos.1 to 4/decree holders

namely Babu Reddy entered into an agreement to sell in

respect of land bearing Sy.No.15 as well as the present suit

schedule property bearing Sy.No.68/1 measuring 34 guntas.

The father of respondent Nos.1 to 4 was compelled to institute

a suit for specific performance in O.S.No.1748/2004 seeking

relief of specific performance against the respondent Nos.5 to

14. The present petitioner and respondent No.15 entered into

a compromise with Babu Reddy, the original decree holder in

respect of site Nos.5, 18, 6 and 17 respectively. In terms of

compromise petition, a decree was drawn in

O.S.No.1748/2004. In the said compromise, the original

decree holder and the owners of the land in question admitted

the sale deeds in favour of the present petitioner/judgment

debtor No.10 as well as judgment debtor No.11. In terms of

compromise decree, the father of respondent Nos.1 to 3 filed

execution proceedings in Ex.No.2903/2011 and sought for

execution of sale deed in terms of the agreement to sell dated

05.12.1993.

3. The present petitioner filed an application in

I.A.No.24 under Order 26 Rule 9 of CPC seeking appointment

of Court Commissioner. The respondent Nos.1 to 4 filed

statement of objections to I.A.No.24. The Trial Court having

examined the rival contentions allowed the application filed in

I.A.No.24 and in terms of memo of instructions, the Court

Commissioner submitted a report to the Court along with the

sketch. The petitioner, however, disputed the Commissioner

report and filed objections. The Executing Court has rejected

the objections tendered by the present petitioner herein and

consequently Commissioner report is accepted. The Executing

Court accordingly directed the decree holder to submit a draft

sale deed. It is this order which is under challenge.

4. Shri H.N.Shashidhar, learned Senior Counsel

appearing for the petitioner reiterating the grounds urged in

the writ petition would straight away take to the schedule

reflected in the decree. Referring to the decree and also the

schedule annexed to the sale deed, the petitioner would

contend that the respondent Nos.1 to 4 cannot dispute the

existence of road on the Northern side of the petitioner's

property. He would vehemently argue and contend that since

the commissioner report was strongly objected by the

petitioner herein, the Executing Court erred in denying an

opportunity to the petitioner to summon the commissioner and

cross-examine and therefore, he would contend that denial of

an opportunity to cross-examine the Court Commissioner has

resulted in miscarriage of justice.

5. Learned Senior Counsel would contend that in the

sale deeds of the present petitioner and judgment debtor

No.11, the original owner has clearly reflected in regard to

existence of road on the Northern side and since the original

decree holder has admitted the sale deeds in favour of the

petitioner and judgment debtor No.11 in the compromise

petition, the Court Commissioner was bound to mark the road

portion while preparing the sketch as per the description of the

boundaries to the sale deeds. Therefore, he would contend

that omission to mark Northern side road to the sites owned

by the present petitioner and judgment debtor No.11 in the

sketch is contrary to the terms of the compromise decree and

therefore, it was very much essential to permit the petitioner

to cross-examine the Court Commissioner in that regard.

6. To buttress his arguments, learned Senior Counsel

has placed reliance on the judgment rendered by the

Coordinate Bench of this Court in the case of Smt. Sharada

Shedthi vs. Susheela Shedthi and Others1. By referring to

para 7 and 8 of the said judgment, he would contend that the

when a Commissioner submits a report, any aggrieved party

disputing the commissioner report has every right to cross-

examine the commissioner questioning the manner in which

the local inspection is carried out. He has also placed reliance

on the judgment rendered by the Division Bench of this Court

in the case of Smt. Lakshmamma and Others vs. Sri

T.H.Ramegowda and Others2. Placing reliance on the said

judgment, he would contend that if respondents/decree

holders are aggrieved by the terms and conditions of the

compromise, then only recourse available to the aggrieved

persons is to approach the same Court which has passed the

compromise and therefore, he would contend that respondent

Nos.1 to 4 cannot be permitted to take a contrary stand to

what was resolved in terms of compromise decree passed in

O.S.No.1748/2004.

2014 (1) KCCR 486

ILR 2015 Kar 4024

7. Learned Senior Counsel has also placed reliance on

the injunction granted in favour of adjoining owner in

O.S.No.1748/2004. Placing reliance on this order, he would

contend that the said order would indicate that there is a road

on the Northern side of the property of the adjoining owner

also. He has also taken this Court through the provisions of

Section 51 of CPC and has further contended that Executing

Court is vested with power to examine the manner in which

decree has to be executed.

8. Shri Jayakumar S.Patil, learned Senior Counsel

appearing for the respondents, however, repelling the

contentions canvassed by the learned Senior Counsel

appearing for the petitioner would vehemently argue and

contend that that the order under challenge is in accordance

with law and would not warrant any interference at the hands

of this Court. Learned Senior Counsel would straight away

take this Court to para 17 of the impugned order. Referring to

para 17, he would contend that the present petitioner has

given up his claim in the earlier proceeding in

W.P.No.10265/2021. Taking this Court through the order

dated 12.08.2021 in the above said writ petition, he would

point out that the counsel appearing for the petitioner on

instructions has given up his claim over the alleged Northern

side road.

9. Learned Senior Counsel would heavily bank on the

commissioner report. Referring to the commissioner report,

he would point out that the present execution petition is filed

by the respondent Nos.1 to 4/decree holders to secure sale

deed in terms of the decree passed in O.S.No.1748/2004. In

terms of the compromise decree, excluding property owned by

the present petitioner herein and judgment debtor No.11, the

respondent Nos.1 to 4 are entitled to secure sale deed in

respect of remaining portion. He would further contend that

at the instance of the present petitioner, Commissioner was

appointed and on local inspection, the Commissioner has

clearly noted that there is no road in existence on the

Northern side of petitioner's property. In the report, the

Commissioner has clearly stated that the property owned by

the present petitioner is completely fenced by a compound

and petitioner has access through Southern road. He would

also refer to the observations made by the Court

Commissioner indicating that none of the parties have placed

any documents from the competent authority indicating

existence of road on the Northern side of the petitioner's

property. The Commissioner has also noted that there is 30

feet road on the southern side of petitioner's property.

10. Heard Shri H.N.Shashidhar, learned Senior Counsel

appearing for the petitioner and Shri Jayakumar S.Patil,

learned Senior Counsel appearing for the respondents.

Perused the order under challenge. I have also meticulously

examined the records produced by the respective parties.

11. The respondents/decree holders entered into

compromise with the present petitioner and judgment debtor

No.11. In terms of compromise decree, the respondent Nos.1

to 4 and the present petitioner and other respondents have

entered into compromise and the decree holders have

admitted the title of the present petitioner herein. At clauses

(1) and (2), the decree holders have admitted in unequivocal

terms admitting the title in respect of properties covered

under the sale deeds. At clause (3), the present petitioner has

also admitted that excluding his property and judgment debtor

No.11 property, the petitioner will not assert any right in the

remaining property. In terms of the compromise petition, the

suit filed by the original decree holder was decreed in part

against the present petitioner and other contesting

defendants. The operative portion of the judgment passed in

O.S.No.1748/2004 reads as under:

"The suit of the plaintiff is decreed in part with costs against defendants No.1 to 9.

The defendants No.1 to 9 are directed to execute the registered sale deed conveying the suit schedule property excluding the sites sold in favour of defendant No.10 and 11 under the sale deeds dated

7.9.1992 within one month from the date of this order.

In the event of failure on the part of the defendants No.1 to 9 to comply with the above direction, the plaintiff is at liberty to get the registered sale deed executed through the process of Court.

Draw decree accordingly."

12. Based on the decree passed in the above said suit,

the original decree holder i.e., father of the respondent Nos.1

to 4 filed execution petition seeking direction against the

vendors to execute registered sale deed and thereby convey

the suit schedule property excluding the sites sold in favour of

the present petitioner and judgment debtor No.11. At the

instance of the present petitioner, Court Commissioner was

appointed. The Court Commissioner having verified the title

documents and on spot inspection has prepared sketch and

sketch is furnished along with Commissioner report. I have

also given my anxious consideration to the sketch which is

produced at page 144 to the writ petition. The property

purchased by the petitioner and judgment debtor No.11 is

clearly demarcated in the sketch. Excluding the properties

owned by the present petitioner and judgment debtor No.11,

the Court having accepted the commissioner report has called

upon the decree holders to furnish a draft sale deed.

13. On perusal of the sketch, this Court would find that

the Commissioner on spot inspection found that there is no

road on the Northern side of petitioner's property as alleged.

In fact, he has specifically observed in the sketch that except

the Southern side road abutting to petitioner's property, no

such road exists on the Northern side of petitioner's property.

He has also observed that none of the parties have placed on

record any authentic document or an approved layout by

competent authority. There is no dispute that petitioner's

property is bounded by a road on the Southern side. The

petitioner's claim is that on Northern side there is a road and

therefore, Court Commissioner ought to have carved out the

road portion while preparing the sketch. The petitioner is

placing heavy reliance on the sale deed dated 07.09.1992.

The schedule of the petitioner's sale deed reads as under:

"SCHEDULE All that piece and parcel of the property bearing House List Khatha No.18, situated at Parappana Agrahara, Hongasandra Group Panchayathi, Begur Hobli, Bengaluru South Taluk in the measurement of East to West 30 feet and North to South 90 feet, bounded on

North by : Road and South by : Private Property in between these boundaries and measurements house constructed in the measurement of 10x10 feet with ACC Sheet roof not having water and electricity connections."

14. On perusal of the schedule, this Court would find

that the road is abutting only on the Northern side, while to

the Southern side of the petitioner's property, it is shown as

bounded by private property and not road. The present

execution petition is filed seeking direction against the vendors

to execute registered sale deed in favour of respondent Nos.1

to 4/decree holders excluding properties of petitioner and

judgment debtor No.11. Therefore, the execution is confined

only to secure sale deed from the original owners excluding

the petitioner's property. It is in this background, this Court

would find that question of providing an opportunity to the

petitioner to cross-examine the Commissioner in the present

set of facts is found to be unwarranted.

15. The petitioner is asserting right over the Northern

side road and if such a road emanates from the covenants in

the sale deed dated 07.09.1992, then the petitioner has to

seek redressal of his right in an independent suit. The nature

of right has to be also determined and petitioner has to seek

relief of declaration in that regard. The present execution

petition is filed for limited purpose wherein a direction is

sought against the decree holders' vendor to come forward

and execute sale deed excluding the petitioner's property. On

spot inspection, commissioner has stated that there is

factually no road in existence. In such a situation, the

petitioner cannot expand the scope of enquiry in the present

execution proceedings and seek adjudication of his right over

the Northern side road. The boundaries shown in the sale

deed do not tally with the commissioner report. Therefore,

these disputed questions of facts cannot be adjudicated in the

present execution petition. In terms of the compromise

petition, the property owned by the petitioner is carved out

and by excluding the petitioner's property, the decree holders

are called upon to submit a draft sale deed. In the process,

the Executing Court has accepted the commissioner report.

The question of cross-examining the Commissioner in the

present set of facts is a futile exercise and even if permitted,

will not assist the petitioner in any manner having regard to

the scope of the execution petition.

16. This Court has to also take judicial note of the

statement made by the learned counsel appearing for the

petitioner in the connected writ petition. Learned Senior

Counsel has placed reliance on the said statement made by

the learned counsel for the petitioner in earlier round of

litigation in W.P.No.10265/2021. The order sheet dated

12.08.2021 reads as under:

"Both the learned counsels, Sri. Srinivasa Murthy S.R. and Sri. Venkatesh S.Arabatti place on record copies of the sketches that they would like to rely upon to submit that there could be common ground between the contesting parties for completion of the sale deed in favour of the petitioner in W.P.No.7639/2021 in terms of the decree for specific performance. The only difference between these two sketches is that in the sketch filed by Sri. Srinivasa Murthy S.R., a road to the north of the properties of the petitioners in W.P.No.12793/2021 is indicated, but when queried Sri. Srinivasa Murthy S.R. accepts that this may not be a road but used as such and his clients would not insist on such access. With these submissions, the learned counsel Sri. Venkatesh S.Arabatti is permitted to place a draft of the sale deed and the sketch which he proposes to place before the Executing Court for completion of the sale deed and closure of the proceedings. These documents may be placed on record on 13.08.2021, and the office is directed to list these petitions on 13.08.2021."

17. If all these significant details are taken into

consideration, then I am of the view that the grounds urged in

the present writ petition cannot be entertained. If such

recourse is adopted, it would virtually expand the scope of

enquiry in pending execution proceedings which is

impermissible. The existence of road and petitioner's right

over the Northern road on the basis of registered sale deed

are all disputed questions of facts which cannot be decided in

the present execution proceedings.

18. Though learned Senior Counsel for petitioner has

placed reliance on Section 51 of CPC, the same has no

application to the present case. This Section defines the