Abdulbee D/O Abdulsa Pinjar vs Ghudu Saheb S/O Abdulla Sab ...
2023 Latest Caselaw 1103 Kant

                           1



          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

      DATED THIS THE 24TH DAY OF JANUARY, 2023

                       BEFORE

      THE HON'BLE MR.JUSTICE C.M.POONACHA

           RSA No.7145/2009 (DEC/INJ)

BETWEEN

1. ABDULBEE D/O ABDULSA PINJAR
AGE: 25 YEARS, OCC: HOUSEHOLD

2. SOFABEE D/O ABDULSA PINJAR
AGE: 26 YEARS, OCC: HOUSEHOLD

3. ABDULSAA S/O SAFISAB PINJAR
AGE: 50 YEARS, OCC: AGRI.,

ALL R/O: DORANHALLI, TQ: SHAHAPUR
DIST: GULBARGA
                                         ...APPELLANTS
(BY SRI B. D. HANGARKI,
SRI S.B.HANGARKI AND
J.B.HANGARKI, ADVOCATES)

AND
1. GHUDU SAHEB S/O ABDULLA SAB KADAPPA
AGE: 37 YEARS, OCC: AGRIL.,

2. AZIZ SAHEB S/O ABDULLA SAB KADAPPA
AGE: 24 YEARS, OCC: AGRIL.,

3. LALBEE W/O ABDULLA SAB KADAPPA
AGE: 50 YEARS, OCC: HOUSEHOLD
                               2



ALL R/O: DORANHALLI, TQ: SHAHAPUR
DIST: GULBARGA
                                                ...RESPONDENTS

(BY SRI VIKRAM VIJAY KUMAR, ADVOCATE FOR R1;
R2 & R3 SERVED & UNREPRESENTED)

    THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT AND DECREE DTD. 25.03.2009 PASSED IN
R.A.NO.3/2007 (OLD R.A.NO.10/2006) ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT-I, YADGIR,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT
AND DECREE DTD 15.12.2005 PASSED IN OS.NO.169/04 ON
THE FILE OF THE CIVIL JUDGE (SR.DN) SHORAPUR SITTING AT
SHAHAPUR.

      THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
19.01.2023,  COMING    ON  FOR   'PRONOUNCEMENT  OF
JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                      JUDGMENT

The above second appeal is filed by the

defendants to set aside the judgment and decree

dated 25.03.2009 passed in R.A.No.3/2007 (old

R.A.No.10/2006) by the Court of the Presiding Officer,

Fast Track Court-I at Yadgir (for short 'first appellate

Court') and to set aside the judgment and decree

dated 15.12.2005 passed in O.S.No.169/2004 by the

Court of the Civil Judge (Sr.Dn.) at Shorapur sitting at

Shahapur (for short 'Trial Court').

2. The parties will be referred to as per their

rank before the Trial Court for the sake of

convenience.

3. The plaintiffs instituted O.S.No.169/2004

for declaration that they are the owners and

possessors of land in Survey No.664/1, measuring 6

acres 25 guntas in Doranhalli village, Shahapur taluka

(for short 'suit land') and to restrain the defendants

from interfering with the peaceful possession of the

plaintiffs over the suit land. It is the case of the

plaintiffs that they are the absolute owners in

possession of the suit land and they have grown trees

(14 numbers) in the suit land. That between the land

of the plaintiffs and the land of the defendants, there

is a bund raised by the plaintiffs about 25 years back.

That the defendants are nowhere concerned to the

said trees grown by the plaintiffs and have nothing to

do with the bund constructed by the plaintiffs. That

the defendants with ulterior motive, are interfering

with the peaceful possession of the plaintiffs over the

suit land and trying to destroy the bund and cut the

trees. Hence, the suit is filed.

4. The defendants have entered appearance

and filed their written statement denying the case of

the plaintiffs. It is the specific case of the defendants

that they are the owners of land in Survey No.664/2,

measuring 6 acres 25 guntas, situated in Doranhalli

village and are living in the said land and they have

grown various trees in the said land. That defendant

No.3 having no male issues and no support from any

male member and being in helpless condition, taking

advantage of the poverty of the defendants, the

plaintiffs have filed a suit to usurp the standing trees

inside the property of the defendants in Survey

No.664/2. That the bund is raised by the defendants

and there is a canal in between the lands in Survey

No.664/2 and Survey No.662. It is the further specific

case of the defendants that the plaintiffs are in actual

possession of Survey No.662 and never in possession

of land in Survey No.664 or Survey No.664/1. Hence,

the defendants have sought for dismissal of the suit.

5. The plaintiff No.1 examined himself as

PW.1 and examined 2 witnesses as PW.2 and PW.3

and marked Exs.P1 to P9. The defendant No.1

examined herself as DW.1 and examined another

witness as DW.2 and marked Exs.D1 to D21.

6. The Trial Court vide its judgment and

decree dated 15.12.2005, dismissed the suit of the

plaintiffs. Being aggrieved, the plaintiffs have filed

R.A.No.3/2007. The defendants entered appearance

in the said appeal and contested the same. The first

appellate Court by its judgment and decree dated

25.03.2009, allowed the appeal filed by the plaintiffs,

set aside the judgment and decree passed by the Trial

Court and decreed the suit filed by the plaintiffs,

declaring that the plaintiffs are the owners of the suit

land and restrained the defendants from interfering

with the suit land. Being aggrieved, the present

second appeal is filed by the defendants.

7. This Court by order dated 11.01.2010,

framed the following substantial questions of law:

1. Whether the lower appellate Court is legally justified in not applying the legal principles that boundaries will prevail when there is discrepancy in survey number and extent of land?

2. Whether the lower appellate Court is legally correct in not placing reliance on

Exts.D13 to D21 when they are marked in evidence without any objections?

8. The learned counsel for the

appellants/defendants contends:

i. That the Trial Court has noticed Exs.D13 to

D21, which are the depositions of the parties and

the Commissioner Report that was furnished in

O.S.No.226/2000, which was the earlier number

granted to the suit of the plaintiffs and the plaint

in the said suit has been returned to the

plaintiffs for want of pecuniary jurisdiction to try

the suit, which documents ought to have been

taken into consideration by the first appellate

Court;

ii. That the plaintiffs have not described the

boundaries in the plaint and have failed to prove

that they are the owners of the suit land;

iii. That the Trial Court has rightly appreciated

the materials available on record including the

Commissioner Report that was part of the record

in O.S.No.226/2000 and has rightly dismissed

the suit of the plaintiffs;

iv. That the first appellate Court has erroneously

discussed only with regard to Ex.P1 - Sale Deed

dated 30.04.1969 and has not discussed

regarding the possession of the suit land by the

plaintiffs and erred in allowing the appeal.

9. Learned counsel for the appellants sought

to distinguish that judgment passed by a Coordinate

Bench of this Court in the case of

B.N.Siddananjappa (deceased) by LRs. vs.

P.Srinivasan1, which was relied upon by the first

appellate Court and relied on the Order 26 Rule 10 of

CPC to contend that the Commissioner Report ought

2006 (3) KCCR 1931

to have been considered by the first appellate Court.

Making the aforementioned submissions, learned

counsel for the appellants seeks for grant of the reliefs

sought for in the above second appeal.

10. Per contra, learned counsel for the

respondents/plaintiffs supports the finding recorded

by the first appellate Court and submits:

i. That the report of the Court Commissioner,

which is part of record in O.S.No.226/2000,

cannot be looked into;

ii. That the first appellate Court has rightly

recorded a categorical finding that the sale deed

at Ex.P1 has been proved and that the Trial

Court had erroneously not relied on the same

since only a certified copy of Ex.P1 was

produced;

iii. That the contents of the Commissioner Report

cannot be looked into since the sale deed at

Ex.P1 is proved;

iv. That the defendants not having challenged

Ex.P1 and the revenue entries, which are more

than 35 years old and have presumptory value;

11. In support of his submissions, learned

counsel for the respondents relied on the following

judgments:

1. Ranganath Ramchandra Suryavanshi vs. Mohan & Ors.2;

2. Smt.Dayamathi Bai vs. K.M.Shaffi 3;

3. Sanjay K. Shetty vs. B.Narayana Shetty4.

4. Baijnath vs. Radhelal Mahore5.

2008 (5) AIR Kant HCR 369

2004 AIR SCW 4419

(2006) 2 REC CIV R 642.2

AIR ONLINE 2021 MP 159

5. Kirpashankar Mukundlal Sahu vs. Tilakraj

Khushalchandra Wadhawan in Second Appeal

No.77/1999.

Making the aforementioned submissions and

relying on the said rulings, learned counsel for the

respondents seeks for dismissal of the above second

appeal.

12. I have considered the submissions made by

both the learned counsel and perused the material

available on record.

13. The plaintiffs have described the suit

property at paragraph No.2 of the plaint as follows:

"The description of the suit property is land Sy.No.664/1 Adm. A 6-25 Gts Assessed at Rs.7-63 ps situated at village Doranhalli."

14. The reliefs claimed by the plaintiffs in the

plaint are as follows:

1. "It be declared that plaintiffs are the owners and possessors of the suit land as shown in the plaint para-2.

2. That the defendants be perpetually restrained from interfering into peaceful possession of the plaintiffs over the suit land., as shown in plaint para-2.

3. Cost of the suit be awarded.

4. Any other reliefs be granted to which the plaintiffs are found entitled to."

15. The defendants apart from denying the

case of the plaintiffs upon appearance have

categorically contended that they are the owners in

possession of the land in Survey No.664/2 and the

plaintiffs are in actual possession of the land in Survey

No.662.

16. The Trial based on the pleadings of the

parties framed the following issues:

1.Does plaintiffs proves their exclusive title and possession over suit land Su.No.664/1 of Doranhalli village and further proves existence of bund in Su.No.664/1 and standing trees are in the suit land belonging to them?

2.Whether plaintiffs proves that correctness of suit sketch?

3.Whether defendants proves that, suit trees are grown within Sy.No.664/2 and the suit bund is raised by them?

4. Whether plaintiffs proves that defendants have attempted to cut the standing trees and also tried to damage the bund?

5. Whether plaintiffs are entitled for the relief of declaration and consequential relief of injunction?

6. What order or decree?

17. While considering issue Nos.1 to 4, the

Trial Court has recorded the following findings:

i. That the plaintiffs are in possession of the

land in Survey No.662 and not the land in

Survey No.664/1;

ii. That plaintiff No.1 was examined as PW.1 in

O.S.No.226/2000. In his cross-examination

on 24.09.2001, admits that after the canal,

there are 14 trees towards the land of the

defendants and he has not applied for survey

of the land;

iii. That reading of the evidence of PW.1 and the

sale deed recitals, the boundaries of the suit

land tallies with the land in Survey No.662;

iv. The Court Commissioner in

O.S.No.226/2000, who conducted the survey,

found possession of the parties as per the

actual Kabja and Wahiwat and plaintiffs are

in possession of land in Survey No.662 and

not in possession of land in Survey No.664/1

and as per the Commissioner Report, the

trees and bund are not in existence in Survey

No.664/1, whereas, they exists between the

lands in Survey Nos.663 and 664/2.

v. Having regard to Order 26 Rule 10 of the

Civil Procedure Code (for short 'CPC'), the

Commissioner Report produced at Ex.D15 to

D19 and D21 including Ex.D6 are admissible

in evidence;

vi. The plaintiffs have not placed on record any

convincing evidence of their vendor namely,

Bhimappa S/o. Saibanna, who was in

possession of Survey No.664/1;

vii. There is no mention regarding standing of

trees in Column No.7 in the ROR extract

produced by the plaintiffs shows only one

mango tree, whereas, they are claiming title

over 14 standing trees;

viii. That the plaintiffs have failed to prove their

exclusive possession and title over the land in

Survey No.664/1 and failed to prove their

exclusive enjoyment and ownership over the

suit trees including the suit bund;

ix. The plaintiffs have failed to prove the

correctness of the sketch produced by them

along with the plaint;

x. That the plaintiffs have failed to establish

that the defendants have attempted to cut

the standing trees and tried to destroy the

bund.

18. By recording the aforementioned findings,

the Trial Court dismissed the suit filed by the

plaintiffs. Being aggrieved, the plaintiffs prepared

R.A.No.3/2007.

19. The first appellate Court has framed the

following points for consideration:

1. Whether the plaintiffs prove that they are the owners and in possession of suit land?

2. Whether the plaintiffs prove that the trees which are mentioned in para 3 of the plaint are the part and parcel of the suit land?

3. Whether the plaintiffs prove that the bund which is mentioned in para 3 of the plaint is within the area of suit land?

4. Whether the plaintiffs prove that the defendants have interfered in their peaceful possession and enjoyment over the suit land?

5. Whether the impugned judgment and decree under appeal passed by the lower court are illegal, capricious or perverse and hereby requires the interference by this Court?

6. What order or decree?

20. The first appellate Court while discussing

point Nos.1 and 4, has recorded the following

findings:

i. That only in the course of the trial, the

defendants have come up with a plea that the

plaintiffs are not the owners in possession of the

suit land, but, they are the owners in possession

of the land in Survey No.662;

ii. That Ex.P1 is admissible in evidence and non

production of the original sale deed will not

render the case of the plaintiffs untrustworthy;

iii. Ex.P2 is the record of rights pertaining to land

in Survey No.664/A, measuring 6 acres 25

guntas and the said ROR is for the year 1968-69

to 1972-73. For the year 1968-69, the name of

the previous owner by name, Bhimappa S/o.

Saibanna Iliger is appearing in Column Nos.9

and 12, but, for the year 1969-70 onwards, the

name of the father of the plaintiff Nos.1 and 2 is

appearing in Column Nos.9 and 12 and in

Column No.10 of Ex.P2, the sale transaction

under the sale deed dated 30.04.1969 is

mentioned;

iv. That in Ex.P4, which is the ROR of the land in

Survey No.664/1, for the year 1978-79 to 1982-

83, the name of the father of plaintiff Nos.1 and

2 is mentioned;

v. That in Exs.P5 and P6, which are the RORs for

the year 1983-84 to 1993-93, the name of the

father of plaintiff Nos.1 and 2 is deleted and the

name of the plaintiffs is entered by virtue of the

entry No.360 dated 24.09.1992, on the basis of

the succession, on account of death of the father

of the plaintiff Nos.1 and 2;

vi. That the entry made in the revenue records

have got presumptory value under Section 133

of the Land Revenue Act, 1964 and hence the

plaintiffs have proved that they are the owners

in possession of the suit land;

vii. Since the defendants have denied the title of

the plaintiffs, that itself amounts to interference.

21. While considering point Nos.2 and 3, the

first appellate Court has recorded that the

Commissioner Report that was recorded in

O.S.No.226/2000, cannot be looked into in the

present suit and has relied on certain judgments,

which shall be discussed hereafter. The first appellate

Court has also recorded a finding that the plaintiffs

have failed to prove that there is a bund and trees,

which are part and parcel of the suit land in Survey

No.664/1.

22. With regard to the question as to whether

the Commissioner Report can be looked into, in the

case of B.N.Siddananjappa (supra), a Coordinate

Bench of this Court was considering a case, where the

plaintiffs in the said case had filed O.S.No.167/1998

and the defendants had entered appearance, filed

their written statement, issues were framed and

evidence was also recorded. Thereafter, the Court

has held that it had no pecuniary jurisdiction and on

an application made by the plaintiffs, the plaint was

returned and thereafter the plaintiffs presented the

plaint before the Court which has jurisdiction.

Thereafter, the Court to which the plaint was

subsequently presented has relied on the pleadings

and evidence recorded by the earlier Court and

decreed the suit of the plaintiffs. In the said case, it

was held that the earlier Court had no jurisdiction to

entertain the suit and even though had recorded the

evidence, the same cannot be made use by any of the

parties before the transferee Court and that the

transferee Court ought not have disposed off the suit

relying on the written statement filed by the

defendants and evidence recorded by the Court which

had no jurisdiction to entertain the suit. The said case

is wholly in-applicable to the facts of the present case.

23. In the case of Sanjay K. Shetty (supra), a

Division Bench of this Court was considering the

evidentiary value of the opinion of a handwriting

expert for execution of the pronote and held that the

Commissioner/handwriting expert ought to have been

examined for the opinion of the handwriting expert to

be exhibited.

24. In the case of Ranganath (supra), a

Coordinate Bench of this Court while interpreting

Section 83 of the Indian Evidence Act with regard to

the presumption as to the maps and plans made by

the Government Authority, held that as per Section 83

of the Indian Evidence Act, the map or plan will have

to be proved to be accurate and hence held that the

plaintiffs in the said case ought to have examined the

surveyor to prove the report as accurate.

25. In the case of Smt.Dayamathi Bai

(supra), the Hon'ble Supreme Court was considering

the scope of Order 23 Rule 3 of CPC and held that

since no objection was raised when the sale deed was

marked as exhibit, which was a certified copy of the

sale deed of more than 30 years old, the same was

held to be admissible in evidence, invoking Section 90

of the Indian Evidence Act.

26. In the case of Baijnath (supra), a

Coordinate Bench of Madhya Pradesh High Court was

dealing with a second appeal, where, vide the sale deed

dated 08.09.1995, the plaintiff had purchased the land

in question and the said sale deed was never

challenged by the defendants. The said judgment is in-

applicable to the facts of the present case as the

specific issue which was falls for consideration in the

present case is on the one with regard to identity and

location of the land in question.

27. In the case of Kirpashankar (supra), a

Coordinate of Nagpur Bench of High Court of Bombay

had held that the Court Commissioner Report can be

made part of the record and exhibited if report is not

objected to by the parties to the suit, but question is

regarding correctness of the contents of report, can

only be proved by examining writer/author of

document. The said judgment is inapplicable to the

facts of the present case and the legal position with

regard to consideration of the Commissioner Report has

been discussed having regard to the judgment of a

Coordinate Bench of this Court in the case of Parappa

(supra).

28. A Coordinate Bench of this Court in the case

of Parappa and Another vs. Bhimappa

and Another 6, has held as under:

"22. xxx It is thereafter when the commissioner/expert submits his report to the Court which appointed him, the report of the Commissioner shall become evidence in the suit and shall form part of the record.

Therefore, the report of the commissioner/expert prepared and submitted on the orders of the Courts stands on a totally

ILR 2008 KAR 1840

different footing in the matter of admissibility than the report of an expert prepared at the instance of either of the parties of the suit or at the instance of the prosecution in a criminal case xxx.

23. Therefore, the expert becomes a Commissioner only when court appoints him under order XXVI of the CPC. The expert is only a witness for the prosecution in a criminal case, and a witness for the party who appointed him in civil cases. It is only the report of the Commissioner, who is appointed by the Court, shall be evidence in the suit and shall form part of the record and it is not necessary to examine him and get it marked through him to make it evidence."

(Emphasis supplied)

29. Order 26 Rule 10 of CPC reads as follows:

"10. Procedure of Commissioner. - (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together

with his report in writing signed by him, to the Court.

        (2)   Report     and        deposition        to   be
evidence      in   suit.-      The        report   of      the

Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to suit may examine the Commissioner personally in open Court touching any part of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.

(3) Commissioner may be examined in person.-Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit."

(Emphasis supplied)

30. Having regard to the specific wordings in

Order 26 Rule 10 (2) of the CPC and the law laid down

in the case of Parappa (supra) as noticed above, it is

clear that the records of the earlier suit in

O.S.No.126/2000 are a piece of evidence, which can

be considered. The documents relied on by the

defendants are from the proceedings in

O.S.No.226/2000. Exs.D13 and D14 are the

depositions of the parties and Ex.D21 is the map

produced by the Commissioner. It is clear that the

same can be relied upon in the present proceedings

and no error was committed by the Trial Court in

considering the same while appreciating the evidence

of the parties.

31. Further, in the cross-examination of PW.1

and PW.2, they have admitted that the property of

Saibanna Chinnakar is on the East side of Survey

No.664. Further, PW.1 in his cross-examination has

admitted regarding the fact that the surveyor from the

Survey Department was appointed as a Court

Commissioner and has conducted survey by visiting

the spot in the presence of both the parties and after

conducting the commission work, he has done

panchanama and submitted his report before the

Court. In the report of the Court Commissioner filed

in O.S.No.226/2000, the property of Saibanna is

shown on the East side of the suit land. Saibanna is

admittedly the predecessor in title of the vendors.

32. It is to be noticed that in Ex.P1 - Sale Deed

dated 30.04.1969, the property number is mentioned

as 'Survey No.664/A', whereas, in the record of rights,

it is mentioned as 'Survey No.664/1'. It is clear that

there is discrepancy in mentioning the survey number

of the suit land. In the plaint, the plaintiffs have not

mentioned the boundaries of the suit land.

33. The first appellate Court has erroneously

misdirected itself in only considering as to whether the

plaintiffs have proved that the Sale Deed at Ex.P1 and

erred in not noticing the fact that, having regard to

the case putforth by the plaintiffs in the plaint and the

categorical defence set up by the defendants, the

dispute between the parties is one with regard to the

identity and location of the properties. The plaintiffs

have categorically stated in the plaint that they are

the owners of land in Survey No.664/1, whereas, in

the sale deed, the survey number is mentioned as

'664/A'. The defendants have specifically taken a

defence that the plaintiffs are the owners of the

property in Survey No.662. Having regard to the

same, the boundaries of the properties ought to have

been considered for the purpose of considering the

case of the parties, which the Trial Court has

adequately done and the first appellate Court has

failed to do.

34. The first appellate Court erred in recording

a finding that only in the course of trial, the

defendants have come with a plea that the plaintiffs

are not the owners in possession of the suit land, but,

they are the owners in possession of land bearing

survey No.662. It is clear from a perusal of the

written statement that at page No.4, it is specifically

contended by the defendants that 'plaintiffs are in

actual possession of land Sy.No.662 and they are

never in possession of land Sy.No.664 or 664/1 at any

point of time till today.' Having regard to the

categorical plea of the defendants as stated in the

written statement, the said finding recorded by the

Trial Court is erroneous and liable to be set aside.

35. It is clear from the finding of fact recorded

by the Trial Court as noticed above that, having

elaborately discussed with regard to the boundaries of

the properties and its location, the Trial Court has

recorded a categorical finding that the plaintiffs have

failed to prove their case as stated in the plaint and

accordingly recorded the issues framed against the

plaintiffs. In addition, as noticed above, in the

Commissioner Report at Ex.D21 as well as in the

cross-examination of PW.1 and PW.2, they have

specifically admitted with regard to the location of the

land of the plaintiffs. In view of the same, the

substantial question of law No.1 framed by this Court

is answered in the negative and the finding recorded

by the first appellate Court is liable to be set aside.

36. Further, having regard to the settled

proposition of law as laid down by this Court in the

case of Parappa (supra) and having regard to the

specific wording of Order 26 Rule 10 (2) of CPC, as

noticed above, the substantial question of law No.2

framed by this Court is answered in the negative and

the finding of the first appellate Court in not placing

reliance on Exs.D13 to 21 is set aside.

37. Having regard to the fact that the first

appellate Court has not properly re-appreciated the

materials on record and has erroneously interfered

with the categorical findings of fact recorded by the

Trial court and in view of the fact that the first

appellate Court has misdirected itself in only recording

its finding with regard to Ex.P1 i.e., certified copy of

the sale deed as well as and the record of rights and

did not record any finding with regard to the

boundaries of the properties, the judgment and decree

of the first appellate Court is liable to be set aside and

the judgment and decree of the Trial Court is required

to be confirmed.

38. In view of the aforementioned, I pass the

following:

ORDER

i. The second appeal is allowed;

            ii.      The judgment and decree of the first

                     appellate   Court    dated    25.03.2009

                     passed      in    R.A.No.3/2007        (old

                     R.A.No.10/2006) is set aside;

            iii.     The judgment and decree of the Trial

                     Court    dated   15.12.2005   passed     in

                     O.S.No.169/2004 is confirmed.

            iv.      No costs.



                                           SD/-
                                          JUDGE

Srt