Karnataka High Court

B. Suresh vs R. Sundara Murthy on 3 February, 2023

Bench: H.P.Sandesh

                                1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 3RD DAY OF FEBRUARY, 2023

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

               REVIEW PETITION NO.762/2022
                            IN
                    R.F.A.No.2089/2010

BETWEEN:

1.   B. SURESH,
     S/O P. RUDRAPPA,
     AGED ABOUT 58 YEARS,
     R/AT NO.16/2, 7TH CROSS,
     SUBBANA GARDEN,
     VIJAYANAGARA,
     BENGALURU-560 040.

2.   V. NARAYANA MURTHY,
     AGED ABOUT 52 YEARS,
     S/O K.V. CHALAPATHY,
     R/AT NO.16/1, 7TH CROSS,
     7TH MAIN, SUBBANA GARDEN,
     VIJAYANAGARA,
     BENGALURU-560 040.

3.   C. PRASANNA,
     AGED ABOUT 47 YEARS,
     S/O K.V. CHALAPATHY,
     R/AT NO.16/1, 7TH CROSS,
     7TH MAIN, SUBBANA GARDEN,
     VIJAYANAGARA,
     BENGALURU-560 040.
     REPRESENTED BY GPA HOLDER,
     V. NARAYANA MURTHY,
     AGED ABOUT 52 YEARS,
     S/O K.V. CHALAPATHY                     ... PETITIONERS

      (BY SRI DHYAN CHINNAPPA, SENIOR COUNSEL FOR
               SRI RAJASHEKAR S., ADVOCATE)
                                  2



AND:

R. SUNDARA MURTHY,
S/O RAMUNUJAM,
AGED ABOUT 69 YEARS,
RESIDING AT NO.16, 1ST MAIN
2ND STAGE, DOMLUR,
BENGALURU-560 071.                                ... RESPONDENT

               (BY SRI JANARDHANA G., ADVOCATE)

     THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE 1
R/W SECTION 114 OF CPC, PRAYING TO REVIEW JUDGMENT AND
DECREE DATED 15.09.2021 PASSED BY THIS HON'BLE COURT IN
RFA NO.2089/2010 AND THE APPEAL MAY KINDLY BE POSTED FOR
RE-HEARING ON MERITS OF THE CASE.

     THIS REVIEW PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 18.01.2023, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:

                            ORDER

This review petition is filed praying this Court to pass an

order to review the judgment and decree dated 15.09.2021

passed by this Court in R.F.A.No.2089/2010 and to post the

appeal for re-hearing on merits of the case.

2. The factual matrix of the case of the plaintiff before

the Trial Court while filing the suit for declaration and possession

claimed that the property bearing site Nos.1, 2 and 3 formed in

Sy.No.371/4-5 of Marenahalli Village, Kempapura Agrahara,

Bengaluru, measuring East to West 40 feet and North to South

41 feet, acquired under sale deed dated 15.12.1980 executed by

one Thimmappa and Pillappa. It is contended that his vendor

formed site Nos.1 to 9 in their property in Sy.No.371/4-5 and

that site Nos.1, 2 and 3 were sold to the plaintiff under sale deed

dated 15.12.1980. It is contended that his vendor left 15 feet

road on the northern side and 20 feet road on the eastern side of

schedule 'A' property and in support of his claim produced the

hand sketch which is marked as Ex.P.6. It is contended that the

entire area was not developed and as such, he also did not

develop his aforesaid site Nos.1, 2 and 3 and left it vacant. It is

his case that on the southern side of his property, property

bearing Sy.No.267/3 is situated which belonged to Masalappa

and his son Subbanna and during their lifetime they formed sites

and sold all the sites except site No.16 measuring East to West

67 feet and North to South 70 feet and that the said site No.16

fell to the share of Subbanna's son Seetharam in partition deed

dated 15.03.1997. It is the claim of the plaintiff that the said

Seetharam divided his aforesaid site No.16 to three portions and

sold the same to defendant Nos.1 to 3 describing the same as

north western portion, southern portion and north eastern

portion. It is contended that sites formed in Sy.No.267/3 has

nothing to do with the suit schedule property and they are

different properties with different site numbers. It is contended

that defendant No.1 started putting up construction in February

2000 and when the plaintiff noticed the same and on

verification/inspection came to know that defendant No.1 has

encroached plaint 'A' schedule property towards northern side by

35 feet, north to south and 24 feet east to west and the said

encroached portion is morefully described in plaint 'B' schedule.

The defendant Nos.2 and 3 started putting up construction and

hence the plaintiff filed a suit not to put up the construction and

the said encroached portion is described as 'C' schedule

property. It is contended that taking advantage of the plaintiff's

absence, they encroached 'B' and 'C' schedule properties and

they are in illegal occupation and hence sought for declaration

and possession.

3. The defendants entered their appearance and

defendant No.1 pleaded that he had purchased the western

portion of site No.16 measuring east to west 24 feet and north to

south 35 feet and all the documents are transferred to his name.

It is contended that the plaintiff claimed right in respect of site

Nos.1 to 3 formed in site No.371/4-5 sold by Pillappa and

Thimmaiah to three other different persons in the year 1970-

1971, and as such, there is no property belonging to the plaintiff

at the spot. The defendant No.1 also gave the particulars of

three separate sale deeds executed by Thimmaiah and Pillappa

in favour of the said three persons viz., Smt. Shylaja,

Smt.Puttagangamma and Smt. Nagamma. Hence, took the

contention that the suit is bad for non-joinder of necessary

parties.

4. The defendant Nos.2 and 3 in their written statement

contended that the plaintiff has filed a suit by mentioning wrong

boundaries of site Nos.1, 2 and 3 and the suit is filed in respect

of the property of defendants, who are in possession of site

formed in Sy.No.367/3 and Sy.No.371/4-5 is nowhere connected

with the property bearing site No.16. It is contended that they

have constructed the house by availing the loan and hence the

plaintiff is not entitled for any relief.

5. The main contention of the review petitioners in this

review petition is that without affording an opportunity to the

review petitioners, appeal was disposed of and in the month of

August and September 2021, the counsel for the parties were

not in a position to conduct the case by addressing their

argument due to ill-health and they were indisposed on account

of Covid-19 pandemic circumstances which was prevalent as at

that point of time. This Court was pleased to take note of the

absence of the counsel for the review petitioners herein and

proceeded to hear the appeal on merits and disposed of the

appeal by allowing the appeal, which ought to have been

dismissed. Non-hearing the review petitioners has affected the

outcome of the appeal, which has in turn adversely affected the

rights and interest of the defendants in respect of their

ownership and enjoyment of the property. It is contended that

during Covid-19 pandemic, all final arguments could have been

heard in the presence of the learned counsel for both parties.

The appeal could not have been dismissed for non-appearance.

Failure to hear the counsel for the petitioners before allowing the

appeal is an error apparent on the face of the record and there is

a need to review the impugned judgment.

6. It is contended that even on merits also this Court

ignoring the crucial aspects of deficiency in the title deed of the

plaintiff has granted the relief of declaration of title in respect of

alleged schedule 'A' property in its entirety by relying on the

incorrect and inconsistent report submitted by the Court

Commissioner. The Court Commissioner has included the public

roads on eastern and northern portion and has shown the same

as part and parcel of schedule 'A' property by including 20 feet

width public road which is on the eastern side and 15 feet public

road on the eastern side as part and parcel of schedule 'A'

property and declaring the plaintiff as the owner of the same is

an error apparent on the face of the record.

7. The learned counsel submits that this Court has

passed the decree for declaration on the basis of Exs.P.3, 4, 5,

Ex.D24, 24(a) and 24(b). Ex.P.3 is the phodi sketch in respect

of Sy.No.371/4-5. Ex.P.4 is the phodi sketch in respect of

Sy.No.367/3. Ex.P.5 is the village map of Kempapura Agrahara.

Ex.D.24 is the report submitted by the Court Commissioner and

Ex.D.24(a) and 24(b) is the survey sketch prepared by the Court

Commissioner. These documents are not the documents of title

and cannot form basis for grant of declaration of title. It is

contended that the evidence before the Court indicates that the

vendors of the plaintiff have sold their site Nos.1, 2 and 3 in

Sy.No.371/4-5 to one Puttagangamma, S. Shylaja and B.M.

Anupama executing the sale deed on different dates. This fact

could not be brought to the Court notice on account of non-

appearance of counsel before this Court and the plaintiff has to

obtain the declaration of title on his own evidence producing title

deeds, which have not been produced and cannot get the relief

of declaration on the weakness of the defendants. The very

identification of the property is disputed and the Commissioner

report is also not based on the survey records and ought to have

measured both the survey numbers and given the report and the

report is given based on only the sale deed produced by the

plaintiff. Hence, the Trial Court not accepted the report of the

Commissioner, but this Court while considering the appeal comes

to the conclusion that the Commissioner report is accepted and

the said observation is also erroneous and mistake is apparent

on record. The plaintiff has not sought any relief of cancellation

of the sale deeds within the prescribed period of limitation and

the sale deeds which have been executed by the vendors have

remained intact and now cannot contend that the review

petitioners have encroached the property. This fact has been

suppressed during the course of argument before this Court and

hence it requires interference of this Court.

8. The learned counsel also filed I.A.No.1/2022 to

condone the delay of 215 days in filing the review petition,

wherein it is contended that the review petitioners were not

having the knowledge of posting of the matter and without

hearing and not complying the principles of natural justice, the

judgment was passed. It is contended that disposal of the case

came to the knowledge of the petitioners when the execution

petition was filed and notice was ordered. On service of notice

they came to know about the same and on verification came to

know about the disposal of the case. In compelling

circumstances visited the advocate and verified the same and

came to know that when the learned counsel was indisposed in

the month of August and September 2021, the judgment was

passed only on the basis of the arguments of the learned counsel

for the respondent before this Court and hence the delay has to

be condoned and the review petition has to be allowed.

9. The learned counsel for the respondent has filed a

detailed objection statement to the main petition as well as I.A.

In the objection statement, the respondent contend that the

review petition could be filed under the circumstance where

discovery of new and important matter or evidence or the

exercise of due diligence which was not within the knowledge or

could not be produced when the judgment and decree was

passed or on account of some mistake and error on the face of

the record. This Court decided the matter on merits and hence

no grounds are made out to review the judgment. The ground

urged in the review petition to review the judgment that the

judgment was passed without hearing the petitioners herein and

that has occasioned an error apparent on the face of the record,

is not a ground available for review and this Court has

considered both oral and documentary evidence placed on record

and passed the reasoned order and on the ground of non-

hearing, the review cannot be considered. It is contended that

they have served with notice in the appeal and engaged the

counsel and the same has been reflected in the cause list and

this Court granted sufficient opportunity. Even though the

counsel did not appear on 02.09.2021, it was heard in part and

posted the matter on 15.09.2021 for argument of the petitioners

and thereafter only considered the matter on merits. The

ground urged in the review petition is with regard to non-hearing

of the review petitioners counsel and inspite of an opportunity

was given, the said opportunity was not utilized and the matter

has been considered based on merits. When their counsel

names was also shown in the cause list, instead of approaching

their counsel to find out the reason for non-appearance, if any,

they have made an incorrect statement to that effect and this

review petition is also filed through different counsel and not by

the same counsel. On that ground also, review petition cannot

be entertained and this Court passed a reasoned order and

hence not made out any ground to invoke Order 47 of CPC for

reviewing the same.

10. The statement of objection is also filed to the delay

application and it is contended that they have received notice in

the execution petition on 16.08.2022 and even after receipt of

notice also, there is a delay in filing the review petition and the

same was filed on 31.10.2022 after 30 days and the contention

is that they were unaware of the appeal decided by this Court on

merits and only came to know about it on receipt of notice given

in execution petition cannot be accepted. The learned counsel

names was reflected in the cause list. If really such was the

problem, the same advocates could have filed the review petition

giving reasons for their non-appearance. The question would be

whether they have made out sufficient ground to condone the

delay in filing the review petition even after the date of

knowledge of judgment since appeal has been filed beyond 30

days after the said date and hence prayed the Court to dismiss

the delay application and consequently dismiss the review

petition.

11. The learned counsel for the review petitioners in

support of his argument relied upon the judgment of the Apex

Court in the case of CHIKKAM KOTESWARA RAO v. CHIKKAM

SUBBARAO AND OTHERS reported in AIR 1971 SC 1542 and

the same is with regard to admissions must be clear in their

meaning and no specific admission in the cross-examination of

D.W.1 and there should not be any ambiguity in the admission

and if there is any ambiguity, the same cannot be considered as

ambiguity.

12. The learned counsel also relied upon the judgment of

this Court in the case of SMT. PARAMESHWARI BAI v.

MUTHOJIRAO SCINDIA reported in AIR 1981 KAR 40 and

contend that stray sentences elicited in the cross-examination

could hardly be construed as admission. Before the right of a

party can be considered to have been defeated on the basis of

an alleged admission by him, the implication of the statement

made by him must be clear and conclusive. There should not be

any doubt or ambiguity about the alleged admission and to

examine whether there is ambiguity in the admission, it would

be necessary for the Court to read the other parts of the

evidence and the stand taken by him in the pleadings. The

learned counsel referring this judgment would contend that the

admission in the pleading has got more value than the admission

in oral evidence.

13. The learned counsel relied upon the Division Bench

judgment of this Court in the case of SMT. SUMA GOUDA @

ANITHA @ VASANTHI v. SRI M.K. POOVAIAH reported in

2010 (4) KCCR 2713 and brought to the notice of this Court

paragraph No.35, wherein this Court held that admission made

by a party in pleadings is conclusive but admission made in the

evidence is only a piece of evidence unless it operates as

estoppel. Even otherwise, admission in a pleading is binding

only in the proceedings in which it is made and it may be shown

to be wrong in subsequent proceedings.

14. The learned counsel relying upon the said judgments

would contend that this Court while disposing of the appeal

taken note of the admission given by D.W.1 and the same

cannot be a basis for passing the judgment and decree in a suit

for declaration.

15. Per contra, the learned counsel for the respondent in

his argument would contend that in the case on hand, the

advocate who did not appear before the Court has not filed the

review petition and the review petition is filed by different

advocate. The learned counsel relied upon the judgment of the

Apex Court in the case of T.N. ELECTRICITY BOARD AND

ANOTHER v. N. RAJU REDDIAR AND ANOTHER reported in

AIR 1997 SC 1005 and brought to the notice of this Court the

principles laid down in the judgment, wherein it is observed that

unfortunately, it has become, in recent, time, a practice to file

such review petitions as a routine; that too, with change of

counsel, without obtaining consent of the advocate on record at

earlier stage. This is not conducive to healthy practice of the Bar

which has the responsibility to maintain the salutary practice of

profession.

16. The learned counsel also relied upon the judgment of

the Apex Court in the case of AHMED SAHEB AND OTHERS v.

SAYED ISMAIL reported in (2012) 8 SCC 516 and contend

that admission made either in pleadings or orally is the best

evidence. Needs no further corroboration. The learned counsel

referring this judgment would contend that there is a specific

admission by D.W.1 in the cross-examination that houses are

constructed in the property of the plaintiff was relied upon by

this Court while disposing of this appeal.

17. The learned counsel relied upon the judgment of the

Apex Court in the case of PARSION DEVI AND OTHERS v.

SUMITRI DEVI AND OTHERS reported in (1997) 8 SCC 715,

wherein the Apex Court held that in a case of review, mistake or

error apparent on the face of the record, is one which is self-

evident and does not require a process of reasoning. So

rehearing the matter for detecting an error in the earlier decision

and then correcting the same do not fall within the ambit of

review jurisdiction. Review jurisdiction cannot be used as

appellate jurisdiction.

18. The learned counsel also relied upon the Division

Bench judgment of this Court in the case of INDIRABAI AND

ANOTHER v. PROF. SHYAMASUNDAR AND ANOTHER

reported in 1988 (1) KAR.L.J.426 and brought to the notice of

this Court Order 7 Rule 7 of CPC with regard to moulding of relief

and the particularly relied upon paragraph No.27 wherein

discussed with regard to Order 7 Rule 7 of CPC with regard to

moulding of relief in view of the contention taken by the review

petitioners that the property is not available to the extent which

he has claimed for the relief of declaration and the Commissioner

report is also clear that no such dimension of property is

available and road is formed on the eastern side and northern

side.

19. Having heard the respective learned counsel and also

on perusal of the material available on record, the points that

arise for the consideration of this Court are:

(i) Whether the review petitioners have made out a ground to condone the delay of 215 days in filing the review petition?

(ii) Whether the review petitioners have made out a ground to exercise the power under Order 47 Rule 1 of CPC to review the judgment and decree passed in appeal?

(iii) What Order?

Point No.(i):

20. The petitioners have sought for condonation of delay

of 215 days in filing the review petition and in the application it

is contended that they were not aware of the order passed by

this Court in view of Covid-19 pandemic circumstances and

taking advantage of the said circumstances, the learned counsel

for the plaintiff argued the matter and misled the Court. The

principles of natural justice has not been complied. In paragraph

No.7, in so far as the reasons for delay is concerned, it is stated

after filing of Execution case No.25514/2022 before the Court,

notice was served on the petitioners and thereafter on making

enquiry only came to know about the disposal of the RFA and

hence there was a delay in filing the review petition and the

delay is not intentional. Hence, the delay of 215 days has to be

condoned.

21. In the objection statement, the respondent has

contended that the reason assigned for the delay cannot be

accepted and this Court has given ample opportunity to the

learned counsel for the petitioners and did not pass the order on

02.09.2021 itself and adjourned the matter to 15.09.2021 and

thereafter only taking note of the non-appearance proceeded to

pass the order. It is also contended that the reasons assigned

that they came to know about the disposal of the case when the

execution petition was filed cannot be accepted. The learned

counsel was aware of the practice of listing the matter before the

Court and cause list was also issued on the particular day and

having knowledge with an intention to protract the proceedings,

the review petition is filed after the delay.

22. Having heard the respective learned counsel and also

on perusal of the material available on record, the main

contention of the review petitioners is that not given an

opportunity and the said contention cannot be accepted. This

Court taking note of the non-appearance of the review

petitioners learned counsel on 02.09.2021, adjourned the matter

to 15.09.2021 and on that day, when the counsel did not appear

again, proceeded to dispose of the matter on merits. No doubt,

it is the contention of the learned counsel for the review

petitioners that after service of notice in execution petition only

they came to know about the same and the said fact is not

disputed by the learned counsel for the respondent in placing the

material. It is contended that cause list was also issued and the

learned counsel was having knowledge. In order to prove the

fact that they were having knowledge, not placed any document.

However, the earlier counsel appearing for the review petitioners

has also filed an affidavit and he also stated in paragraph No.2 of

the affidavit that when he came to know about the disposal of

the case, he was shocked and surprised and submits that in the

month of August and September 2021, he was suffering from

illness and was advised to take complete rest and also produced

the documents of medical certificate dated 01.09.2021 and

28.10.2022 regarding he took the treatment and the same is

also objected to by filing the affidavit by the respondent

contending that on the date of taking the treatment, the case

was not listed and it was listed on 02.09.2021 and not on

01.09.2021 and also no material is placed that on 15.09.2021

also he was suffering from any ailment. The fact that his name

was shown in the cause list is not in dispute and also the fact

that both physical and video conferencing hearing was done on

that day is also not in dispute. It is stated that he used to

instruct the other counsel to appear before the Court on his

behalf and also admitted the same in affidavit and when such

being the case, I do not find any good ground with regard to not

making any arrangements in this case also. However, when it is

stated in the sworn affidavit by the advocate as well as

appellants that they came to know about the disposal of the case

on receipt of the notice in the execution petition, lenient view

can be taken and substantial justice has to be done and not on

technicality. Immediately after coming to know about the same

though not filed within 30 days, but no longer delay in filing the

petition immediately after coming to know about the same in

execution petition and hence the delay of 215 days in filing the

petition is condoned by allowing I.A.No.1/2022. Hence, I answer

point No.(i) in the affirmative and condone the delay.

Point No.(ii):

23. The main contention of the review petitioners before

this Court is that the order was passed without hearing the

review petitioners and the principles of natural justice has not

been complied. On perusal of the records, it discloses that the

case was listed on 02.09.2021 and the review petitioners counsel

were not present on that day and the matter was heard in part

and posted the matter to 15.09.2021 for arguments of the

review petitioners herein and on that day also, they have not

appeared and argued the matter and hence the order has been

passed. The contention of the learned counsel is that on that

day, the learned counsel for respondent No.1 was indisposed due

to ill-health. On perusal of the records of R.F.A.No.2089/2010,

the counsel who was suffering from ill-health was appearing for

respondent Nos.1 and 2 and one more advocate Sri B.G.Sriram

was appearing for respondent No.3. Though it is contended that

the counsel Sri Shashidhara was not keeping good health, no

answer with regard to other counsel Sri B.G.Sriram appearing for

petitioner No.3 in the appeal and this review petition is filed not

only on behalf of respondent Nos.1 and 2 in the appeal, but on

behalf of respondent No.3 also. The earlier counsel has filed an

affidavit before the Court that he was not keeping well and also

produced the document of medical certificate and no doubt, the

medical certificate is with regard to 01.09.2021 and on that day,

the matter was not listed. The matter was listed on 02.09.2021.

He has produced the medical certificate dated 28.10.2022,

wherein it is stated that he had taken the treatment from the

hospital on 01.09.2021 as an outpatient and he was advised

treatment with physiotherapy for four weeks and to be reviewed

later. The fact that the matter was listed on 02.09.2021 is not in

dispute and also the matter was adjourned to 15.09.2021 is also

not in dispute. In paragraph No.5 of the affidavit of the counsel,

he has stated when the matter was listed on 15.09.2021, the

same was unnoticed and he was completely unaware of the

same. But in the affidavit he says that in some of the matters

where hearing date was given, he got the same attended

through other advocates known to him who are his friends. But

he did not state anything about the issuance of cause list on

02.09.2021 and also on 15.09.2021 and no proper explanation is

given in the affidavit. When he was able to attend his cases

through other advocates known to him, what prevented him in

not giving instructions to his friends to attend the case or to seek

for an adjournment, nothing is stated. I have already pointed

out that it is not his case that he did not receive the cause list

pertaining to the appeal. On 02.09.2021 and 15.09.2021, he did

not visit any hospital and to that effect, he has not produced any

documents and also in terms of medical certificate dated

28.10.2022, though he was advised treatment with

physiotherapy for four weeks, no such document is produced

before the Court for having taken physiotherapy treatment. This

affidavit of advocate is filed subsequent to the filing of the

objection to the main petition and also the delay application.

But the fact that he was not heard when the appeal was

disposed of is not in dispute. With regard to his absence is

concerned, he has not produced any relevant material before the

Court except the certificate.

24. The second ground urged before this Court is that he

was not heard in the matter amounts to an error apparent on

the face of the record. The said contention cannot be accepted

and non-appearance before the Court is not a ground for review

and the same is not apparent on record as contended by the

learned counsel for the review petitioners. The fact that the

matter was heard in his absence is not in dispute. The main

contention is that on merits also he is having a case. It has to

be noted that it is the case of the respondents before the Trial

Court that he had purchased the sites based on the sale deed

dated 05.12.1980 and claimed the relief of declaration and

possession in respect of 'B' and 'C' schedule property and he had

purchased the property at site Nos.1, 2 and 3 in Sy.No.371/4-5

of Marenahalli Village from Pillappa and Thimmaiah. It is the

claim of the review petitioners before the Trial Court that one

Seetharam sold western portion of site No.16 in Sy.No.367/3 on

28.01.1999 to Sharada Naik and the said Seetharam also sold

western portion of site No.16 in the same survey number to

defendant No.1 as per sale deed dated 09.04.1999 and the said

Sharada Naik sold eastern portion of site No.16 in Sy.No.367/3

of Marenahalli Village to defendant Nos.2 and 3. Hence, it is

clear that both the plaintiff and the defendants are claiming right

in respect of different sites, which have been formed in

Sy.Nos.371/4-5 and 367/3. It is also the claim of the plaintiff

that Sy.No.367/3 is situated on the southern side of the

plaintiff's property and the defendants claim that their property

is nowhere concerned to the claim of the plaintiff.

25. The Commissioner was also appointed before the

Trial Court. On perusal of the order of appointment of

Commissioner, it is very clear that the plaintiff and the

defendants properties are different and they are formed

admittedly, in different survey numbers. The said survey

numbers are situated adjacent to each other, as can be seen

from village map. Sy.No.371/4-5 is situated towards northern

side of Sy.No.367/3. The Commissioner was appointed after

leading the evidence for the parties. The case of the defendants

is that the plaintiff has not identified the property which he has

purchased and also their claim is that his property is not existing

as the vendors of the plaintiff sold the same to other three

persons. Therefore, the situation or location of the suit property

in which survey number the suit property is actually situated,

can only by ascertained by actual measurement of two said

survey numbers as per their extent in the revenue records. The

same cannot be had by oral and documentary evidence and

hence allowed the Commissioner application to locate the suit

property and to find out the encroachment, if any, and to

properly appreciate both oral and documentary evidence placed

on record, the Commissioner report is necessary. The record

discloses that the Commissioner submitted the report and while

disposing of the appeal by this Court in the absence of

arguments by the review petitioners counsel, this Court made an

observation in page No.14 that the Commissioner report is not

disputed and the said observation is erroneous and the same is

error apparent on record since the Commissioner report was

objected and the Commissioner also examined. The Trial Court

while passing the order on Commissioner report, in paragraph

No.10, made an observation that the surveyor has found out his

own innovative method of showing the property as a disputed

area and conducted survey on the basis of the sale deeds

produced by the parties. The Commissioner was appointed to

survey both Sy.Nos.371/4-5 and 367/3 of Marenahalli Village

and no dispute that both are adjacent properties. There must be

a clear finding in the Commissioner report with regard to

Sy.Nos.371/4-5 and 367/3 and the Trial Court did not accept the

Commissioner report since an observation is made that only on

the basis of sale deed, he has demarcated the sites.

26. It is important to note that it is the contention of the

defendants that the vendors of the plaintiff have sold the

property of said site number in favour of three persons, Shylaja,

Puttagangamma and Anupama W/o Krishnaswamy and this issue

has not been touched by this Court while disposing of the appeal

since the review petitioners have not argued the matter and

given any assistance to this Court. When the said issue has not

been touched by this Court and no doubt, discussed in detail

with regard to the evidence of the witnesses and counsel have

also relied upon certain judgments with regard to admissibility of

admission given by parties during the course of evidence. This

aspect cannot be decided in a review petition with regard to

admission whether the same is based on pleadings or on the oral

evidence and the same can be considered while considering the

appeal on merits. It is also important to note that the relief

sought in the suit is for declaration and possession on the

ground that the defendants have encroached upon the property

of the plaintiff and constructed the house. With regard to the

Commissioner report is concerned, it requires to be considered

while deciding the matter on merits. I have already pointed out

that this Court comes to the conclusion that the Commissioner

report is not disputed as observed in the order and having taken

note of the material on record, when there is an error apparent

on the face of the record with regard to the Commissioner report

and the same is observed that the Commissioner report is not

disputed and when the Commissioner report is disputed and

witnesses have been examined before the Court, it requires

exercising of the powers under Order 47 Rule 1 of CPC to set

aside the order and to restore the appeal for fresh consideration.

27. The real dispute between the parties has to be

adjudicated in RFA appreciating both question of fact and

question of law. The reasons are assigned in the review petition

regarding non-appearance of the counsel and the counsel was

suffering from illness and the same has not been substantiated

as observed in the order and the affidavit is filed by the counsel

appearing for respondent Nos.1 and 2 and not by respondent

No.3, who is also a review petitioner in the matter and also the

certificates which have been produced with regard to ill-health is

concerned, not inspires the confidence of this Court. Inspite of

the matter was listed twice on 02.09.2021 and 15.09.2021, the

learned counsel for the review petitioners who engaged the

different counsel did not assist the Court to decide the matter on

merits. In order to meet the ends of justice, an opportunity has

to be given to both the parties and hence the review petitioners

are liable to pay the cost since the matter was disposed of in

2021 and the review petition is filed in 2022 claiming that they

came to know about the same on receipt of the execution

petition notice inspite of cause list was issued. The Court has to

take note of the date of the order and date of filing of review

petition and also made the Court to consider the matter twice to

decide the issue involved between the parties for the absence of

respective counsel.

28. In view of the discussions made above, I pass the

following:

ORDER

(i) The delay of 215 days in filing the review petition is condoned.

(ii) The review petition is allowed on payment of cost of Rs.30,000/-. Out of the said amount, an amount of Rs.20,000/- is payable to the respondent and remaining Rs.10,000/- shall vest with the State.

(iii) R.F.A.No.2089/2010 is restored on condition of payment of cost to the appellant in R.F.A.No.2089/2010 within two weeks and produce the receipt before the Registry for having paid the amount of Rs.20,000/- to the respondent of this review petition and also deposit remaining Rs.10,000/- with the Registry. On payment of cost only R.F.A.No.2089/2010 is restored.