Sri.M H Gangappa vs Sri.M.H.Honnashamaiah
2022 Latest Caselaw 9882 Kant

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     IN THE HIGH COURT OF KARNATAKA, BENGALURU

        DATED THIS THE 29TH DAY OF JUNE, 2022

                         BEFORE

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

               R.F.A.NO.1152 OF 2004(DEC)
BETWEEN
SRI. M.H. GANGAPPA
S/O HONNAGANGAIAH
SINCE DECEASED BY HIS LRS

A)     SMT. LAKSHMAMMA
       W/O LATE. M.H. GANGAPPA
       SINCE DECEASED BY LRS APPELLANTS 1(B) TO (G)

B)     SRI. G. MAHADEVAIAH
       S/O LATE. M.H. GANGAPPA
       AGED ABOUT 59 YEARS.

C)     SRI. G. SHIVASHANKARAIAH
       S/O LATE M.H. GANGAPPA
       AGED ABOUT 44 YEARS.

D)     SRI. G. VISHWANATH
       S/O LATE M.H. GANGAPPA
       AGED ABOUT 49 YEARS.

E)     SMT. G. HONNAMMA
       D/O LATE. M.H.GANGAPPA
       AGED ABOUT 61 YEARS.

F)     SMT. G. PREMA
       D/O LATE M.H. GANGAPPA
       AGED ABOUT 55 YEARS.

G)     SMT. VASANTHAKUMARI
       D/O LATE M.H. GANGAPPA
       AGED ABOUT 45 YEARS.
       ALL ARE RESIDING AT
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      MALLARABANUVADI VILLAGE
      NELAMANGALA TALUK
      BENGALURU DISTRICT - 562 123.
                                                ...APPELLANTS

[BY SRI. Y.K. NRAYANASHARMA, ADVOCATE FOR APPELLANT(b)
AND (d); V/O DATED V/O/DT: 28.02.2019 (B-G) ARE TREATED AS LRS
APPELLANT (a); SRI. K.R. RAMESH, ADVOCATE FOR APPELLANT(c)]

AND

SRI. M.H.HONNASHAMAIAH
S/O HONNAGANGAIAH
AGED ABOUT 75 YEARS
R/AT MALLARABANUVADI
NELAMANGALA TALUK
BENGALURU DISTRICT - 562 123.
                                                ...RESPONDENT

(BY SRI. V. RAMESH BABU, ADVOCATE)



      THIS APPEAL IS FILED UNDER SECTION 96 R/W ORDER 41 R

1 CPC AGAINST THE JUDGEMENT AND DECREE DATED: 28.08.2004

PASSED IN O.S.NO. 255/1992, ON THE FILE OF THE 1ST ADDL. CIVIL

JUDGE (SR.DN) BENGALURU RURAL DISTRICT, BENGALURU

DISMISSING   THE   SUIT   FOR    DECLARATION,    POSSESSION,

MANDATORY INJUNCTION, PERMANENT INJUNCTION AND FOR

MESNE PROFITS.


      THIS APPEAL COMING ON FOR FURTHER HEARING , THIS

DAY, THE COURT DELIVERED THE FOLLOWING:
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                          JUDGMENT

This appeal by the plaintiffs in O.S.No.255/1992 is

directed against the impugned judgment and decree dated

28.08.2004 passed by the I Addl. Senior Civil Judge,

Bangalore Rural District, Bangalore, whereby the said suit for

declaration, possession, mandatory injunction and other reliefs

in respect of the suit schedule immovable property was

dismissed by the trial Court.

2. Heard learned counsel for the appellants and

learned counsel for the respondent and perused the material

on record.

3. A perusal of the material on record including the

impugned judgment and decree will indicate that the appellant

herein instituted the aforesaid suit in respect of two items of

plaint schedule immovable properties viz., land bearing

Sy.No.125/1B measuring 1 acre 2 guntas described as item

No.1 and Sy.No.4/1 measuring 20 guntas described as item

No.2, both situated at Mallahara Banawadi Village,

Nelamangala Taluk, Bangalore District. The said suit was

contested by the respondent / defendant who not only

disputed the title and possession of the plaintiff over the suit

schedule properties but also, the location and identity of the

properties as alleged by the plaintiff. The trial Court framed

the following issues:

" 1. Whether the plaintiff proves that plaintiff is the absolute owner of Item No.2 of suit schedule properties in furtherance of the settlement deed dated: 06.05.1973?

Or Alternatively Whether the defendant proves that he has acquired title and possession in respect of 0.20.0 in Sy.No. 4/1 by settlement deed and by sale deed executed by his father, as averred in para - 2 of the written statement?

2. Whether the plaintiff proves that he was in possession of Item No.2 of the plaint properties?

3. Whether the plaintiff proves that the defendant has encroached 0-20-0 in S.No. 4/1

with boundaries morefully described at Item No.2 of plaint schedule?

4. Whether plaintiff proves that plaintiff and purchased Item No.1 of plaint schedule properties as per the registered sale deed executed on 6-9-51 by Veeraiah of Goundanapalaya?

5. Whether defendant proves that S.No.125/1 sold by father of Veeraiah was Sold with an understanding to reconvey?

6. Whether defendant proves that S.No. 125/1 sold by Veeraiah was repurchased by father in the name of plaintiff?

7. Whether defendant proves that S.No. 125/1 measuring 4.30-0 was retained by father without including it in the settlement deed dated: 6.5.73 and father was the owner of the entire extent of 4.30.0?

8. Whether defendant proves that 1.02 reconveyed from Veeraiah in the name of plaintiff is a part and parcel of the said 4.30.0 retained by father?

9. Whether defendant proves that on account of sale in favour of Veeraiah S.No. 125/1 was renumbered as 125/1a and 125/1b?

10. Whether defendant proves that his father had sold S.No. 125/1A and 125/B totally measuring 4.30.0 to him in 1979?.

11. Whether defendant proves that he has acquired title in respect of both suit schedule properties by adverse possession?

12. Whether plaintiff proves that defendant has encroached and illegally occupied item No.1 of plaint property on 21.08.1991?

13. Whether plaintiff proves that suit is within time?

14. Whether plaintiff proves that the valuation of suit properties made and Court fee paid is correct?

15. Whether plaintiff proves that he is entitle for declaration and possession of suit properties?

16. Whether plaintiff proves that he is entitle for the relief of mandatory injunction?

17. Whether plaintiff proves that he is entitle for mesne profits?

18. To What relief parties are entitled?"

4. The original plaintiff having expired during the

pendency of the suit, his wife and children - the appellants

herein continued to prosecute the suit and on their behalf, his

son G. Shivashankaraiah was examined as PW-1 and Exs.P1

to P43 were marked. The defendant - respondent examined

himself as DW1 and two witnesses DW2 and DW3 and

Exs.D1 to D48 were marked on his behalf. The trial court

heard both sides and proceeded to pass the impugned

judgment and decree dismissing the suit, aggrieved by which,

the appellants are before this Court by way of the present

appeal.

5. After hearing the learned counsel for the

appellants and the learned counsel for the respondent, this

Court passed the following order on 28.01.2020:-

"Actually the arguments in this case are over. Sri Y.K.N.Sharma, learned counsel for the

appellants, while arguing submitted one point that in the trial court an application for appointing a Commissioner was made by the appellants. The trial court dismissed the said application. The appellants have sought for possession of two items of the property as described in items 1 and 2 of the plaint schedule. The clear pleading of the plaintiff is that he was allotted 4 acres 10 guntas of land in Sy. No. 4/1 of Mallarabanawadi Village in a settlement that took place in the year 1973. The respondent- defendant was allotted 10 guntas of land, but the defendant has encroached upon 20 guntas of plaintiff's land. The defendant has contended that he is in possession of 10 guntas of land that was allotted to him besides another 10 guntas that was sold to him by his father and he denies the encroachment. But, documents do not establish that 10 guntas was sold by the father to the defendant. The sale deed that the defendant relies upon is unregistered. There is ambiguity in the evidence. Therefore, to find out whether there is encroachment or not, the appellants sought for appointment of Commissioner. But, the trial court dismissed the application and now in the appeal the Commissioner can be appointed to find out the extent of encroachment. He therefore submitted that the Commissioner may be appointed now.

2. Sri Ramesh Babu, learned counsel for the respondent, argued that the trial court has given cogent reasons for dismissing the application. Plaintiff has just stated that there is encroachment of 20 guntas of land belonging to him, but the plaint does not disclose as to on which side of the plaintiff's site there is encroachment. There is no ambiguity in the evidence. There is no need to appoint a Commissioner.

3. On perusal of I.A.No.14 filed by the plaintiff in the trial court, it is found that the plaintiff sought for appointment of Commissioner to find out the encroachment and also for identification of the suit properties. I have perused the order dated 21.6.2004 passed by the trial court on this application. The main reason given by the trial court is that the plaintiff has specifically and distinctively given the extent of land and its boundaries of the encroached land. By relying upon a judgment of this court report in ILR 2002 (3) KAR 3599, the trial court dismissed the application. The trial court extracted the principle laid down in the said decision. It is observed that if the party himself has stated in his pleading about the extent of land that had been encroached upon by the other party, there is no need to have a Commissioner appointed.

4. While deciding the application of this nature, the court has to take into consideration the facts and circumstances of the given case before it and decide whether Commissioner needs to be appointed or not. In this case, it is no doubt true that the plaintiff has given the boundaries and the extent of the land said to have been encroached upon by the defendant. The plaintiff has given evidence with regard to it but, the defendant has contended that in addition to 10 guntas of land given to him in the settlement, his father sold him another 10 guntas of land. The sale deed produced by him in this regard is unregistered. The trial court has observed this.

5. The plaintiff has also produced another document as per Ex.P43 which shows that the plaintiff's father Honnagangaiah gifted 23 acres of land in Sy. No. 4/1 to his sister Honnamma. Column No.9 of the RTC in respect of Sy. No. 4/1 indicates that the defendant is in possession of only 10 guntas. Therefore, ambiguity between the oral evidence and documentary evidence can be made out. To arrive at a just decision whether there is real encroachment or not, I am of the opinion that the Commissioner needs to be appointed now. There is no bar for appointing a Commissioner in the appeal though there is no application for the said purpose

by any of the parties. It is a matter to be mentioned here that the application filed by the appellant in the trial court was not considered and the order passed on said application can be taken as a ground in the appeal according to Order 43 Rule 1A of CPC. Therefore, Commissioner is appointed for giving report in regard to the following : -

(i) Whether the plaintiff's land and the defendant's land in Sy.No.4/1 of Mallarabanawadi are situate adjacent to each other?

(ii) Is there any encroachment on the plaintiff's land in the said Sy. No., if so to what extent and in which side of the plaintiff's property?

The advocates for the parties suggest that the Assistant Director of Land Records, Nelamangala Taluk be appointed as Commissioner. Therefore the said officer is appointed as Commissioner. His initial fee is fixed at Rs.5,000/-. The same shall be deposited in the Registry within a week from today. The parties are also at liberty to file memo of instructions to be given to the Commissioner. The Commissioner shall carry out the commission work with advance notice to the parties and their advocates. The Commissioner shall give report with regard to the above two points and also memo of instructions of the parties in case

they are filed. Commissioner shall give report within 30 days from the date of issue of warrant. Issue Commissioner warrant. Process fee to be paid by the appellants".

6. In pursuance of the same, the Court

Commissioner appointed by this Court has conducted the

survey and submitted a report. However, on 30.09.2021, this

Court noticed that the jurisdictional ADLR, who was appointed

as the Court Commissioner had sub-delegated the

Commission work to a Taluk Surveyor, which was

impermissible in law and accordingly, directed the ADLR

himself to conduct a fresh survey and submit a report. The

said order dated 30.09.2021 reads as under:

" On 28.1.2020, an order was passed appointing the Assistant Director of Land Records (for short 'ADLR') of Nelamangala Taluk to conduct survey. Survey report has been submitted, but it shows that survey was not conducted by ADLR. Instead he delegated his power to Taluk surveyor for conducting survey. Learned counsel for the appellants submits that respondent did not take any objection at the time of conducting survey on 2.3.2020 for the first time by the Taluk surveyor and therefore the

respondent cannot take an objection now. Respondent's counsel submits that though the respondent did not take objection on 2.3.2020, survey was not completed on 2.3.2020. The next date of survey was fixed on 21.3.2020. The ADLR, Nelamanagala Taluk himself addressed a letter to this court seeking extension of time to complete the survey work and therefore the respondent was under the impression that the ADLR would himself conduct the survey on 21.3.2020. But the Taluk surveyor completed the survey. In this view, he submits that the report of the Commissioner cannot be accepted. ADLR could not have delegated his power to the Taluk surveyor. Learned counsel for the respondent relies upon the judgment of this court in the case of Shamanna Setty Vs. B.L.Channegowda (ILR 2006 KAR 3588).

I have perused the survey report. The order dated 28.1.2020 is very clear and the ADLR was directed to conduct survey. In this view as has been held by this court in Shamanna Setty's case, there cannot be delegation of authority by the Commissioner to his sub-ordinate. Therefore the survey report submitted by the Taluk Surveyor cannot be accepted and it is rejected.

The counsel for the appellant now submits that the Commissioner may be directed to conduct survey once again. Therefore, the ADLR, Nelamangala is

hereby directed to conduct survey himself in accordance with order dated 28.1.2020 of this court. The ADLR shall not delegate his power to his sub- ordinate. Since this appeal is considerably old, the ADLR shall complete the survey within a period of one month from the date of receipt of this order. The parties are at liberty to file fresh memo of instructions well in advance to enable the ADLR to conduct survey. Issue commissioner warrant. The appellants shall pay the process fee for issuing commissioner warrant.

7. In pursuance of the same, the ADLR - Court

Commissioner has submitted his report and the same was

received on record by this Court vide order dated 07.03.2022

and the matter was listed for hearing. It is relevant to state

that the respondent has filed his objections on 28.03.2022 to

the report of the Court Commissioner.

8. During the pendency of the appeal, the appellants

have filed an application I.A.1/2017 under Order 41 Rule 27

CPC for permission to adduce additional evidence by

producing 5 documents. The respondent has filed objections

to the said application.

9. The following points arise for consideration in the

present appeal:-

(i) Whether the appellants have made out sufficient

grounds to seek production of additional documents as sought

for in I.A.1/2017?

(ii) Whether the impugned judgment and decree passed

by the trial court warrants interference in the present appeal?

Re-Point No.1:-

10. A perusal of the impugned judgment and decree

will indicate that the trial court took into account the rival

contentions and claims put forth by both sides as regards their

alleged right, title, interest and possession over the suit

schedule properties as well as their identity and location and

framed as many as 18 issues, pursuant to which, both sides

adduced oral and documentary evidence. The trial court

answered the issues against the appellants - plaintiffs and

came to the conclusion that they have failed to establish their

title and possession as well as the identity and location of the

suit schedule properties. By way of additional evidence, the

appellants - plaintiffs seek to produce additional documents to

substantiate their claim of title, possession as well as identity

and location over the suit schedule properties. As stated

supra, the ADLR - court commissioner was appointed by this

Court to conduct survey and local inspection of the suit

schedule properties.

10.1 Further, the respondent has filed objections to

I.A.1/2017 disputing and denying the said documents as well

as to the report submitted by the court commissioner. In view

of various contentious issues that arise for consideration

between the parties and in the light of the additional

documents sought to be produced by the appellants -

plaintiffs which are seriously disputed by the respondent, I am

of the view that the additional documents which purported to

relate to the suit schedule properties are relevant and material

for the purpose of adjudication of the issues in controversy

involved in the present appeal. So also, a perusal of the

Affidavit in support of I.A.1/2017 will clearly indicate that valid

and sufficient grounds have been made out by the appellants

to seek permission of this Court to produce additional

evidence which are said to be relevant and material for the

purpose of disposal of the present appeal. Under these

circumstances, I am of the considered opinion that without

prejudice to the rights and contentions of the parties and

without expressing any opinion as regards the legality, validity

admissibility, proof etc., of the said documents, the same

deserves to be received on record by allowing the application

I.A.1/2017.

Point No.1 is answered accordingly.

Re-Point No.2:-

11. After having allowed I.A.1/2017 and receiving /

accepting the additional evidence produced by the appellants-

plaintiffs on record, the next question that arises for

consideration is the procedure to be followed by this Court for

the purpose of disposal of the present appeal.

11.1 In this context, it is relevant to state that since the

respondent has seriously disputed and denied the additional

documents, it would be necessary to grant both parties an

opportunity to adduce additional oral and documentary

evidence in support of their respective claims including the

said additional documents.

11.2 Further, the respondent has also filed his

objections to the report of the court commissioner - ADLR

appointed by this Court; in this regard, learned counsel for the

respondent submits that the respondent intends to summon

the said court commissioner for cross-examination. Under

these circumstances, in view of Order 26 Rule 10(2) CPC, it is

necessary that an opportunity is provided to the respondent to

summon the court commissioner for cross-examination.

11.3 The aforesaid facts and circumstances are

sufficient to indicate that in the light of the additional evidence

being permitted by this Court and the report of the court

commissioner appointed by this Court being accepted by the

appellants and opposed by the respondent, it would be just

and appropriate to set aside the impugned judgment and

decree and remit the matter back to the trial court for

reconsideration afresh in accordance with law. This Court is

conscious of the fact that the present appeal is of the year

2004 arising out of a suit filed in 1992 and consequently, a

direction to the trial court to dispose of the suit pursuant to

remand within a stipulated timeframe would serve the ends of

justice.

Point No.2 is answered accordingly.

12. In the result, I pass the following:-

ORDER

(i) The appeal is hereby allowed.

(ii) The impugned judgment and decree dated

28.08.2004 passed in O.S.No.255/1992 by the I Additional

Civil Judge (Sr.Dn), Bangalore Rural District, Bangalore, is

hereby set aside.

(iii) I.A.No.1/2017 filed by the appellants under Order 41

Rule 27 CPC is hereby allowed and the documents produced

along with the same are received on record.

(iv) The matter is remitted back to the trial Court for

reconsideration afresh in accordance with law.

(v) Registry to transmit I.A.No.1/2017 along with the

documents to the trial Court forthwith; the Registry is also

directed to transmit all the papers pertaining to the

commission work conducted by the court commissioner

including report, evidence, photographs, sketch, objections

etc., to the trial court forthwith.

(vi) Liberty is reserved in favour of both the parties to

adduce such further oral and documentary evidence in

support of their respective contentions; it is needless to state

that both the parties would be entitled to cross-examine each

other.

(viii) Liberty is reserved in favour of both the parties to

summon the Court Commissioner appointed by this Court and

examine/cross-examine himself with reference to his report,

evidence etc.,

(ix) All rival contentions are kept open and no opinion is

expressed on the same.

(x) The trial court is directed to dispose of the suit on

merits as expeditiously as possible and at any rate, within a

period of six months from 18.07.2022, on which date, both

parties undertake to appear before the trial court without

awaiting further notice from the trial court.

(xi) Registry is directed to re-transmit the entire Trial

Court Records back to the trial court, forthwith.

Sd/-

JUDGE

Bmc/Srl.