Mohanachar vs K. Sreedhara
2023 Latest Caselaw 3790 Kant

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 28TH DAY OF JUNE, 2023

                          BEFORE

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

                 R.S.A. NO.1182/2007 (DEC)
BETWEEN:

MOHANACHAR
S/O. SHANKARAPPACHAR
AGED ABOUT 62 YEARS,
R/O. KUBATOR VILLAGE,
ANAVATTI HOBLI,
SORAB TALUK,
SHIMOGA DISTRICT-577 429.
                                              ... APPELLANT

         (BY SRI H.S.SURESHAPPA GOWDA, ADVOCATE)
AND:

1.     K. SREEDHARA
       S/O. RUDRAPPA SHETTY
       AGED ABOUT 55 YEARS,
       R/O. KUBATOOR VILLAGE,
       ANAVATTI HOBLI,
       SORAB TALUK,
       SHIMOGA DISTRICT-577 429.

2.     K. NARAYANACHAR
       S/O. LAKSHMIKANTHCHAR,
       (SINCE DECEASED AND LRS ARE NOT BROUGHT ON
       RECORD IN O.S.No.26/90 AND HENCE, NOT MADE AS
       PARTIES IN THIS APPEAL)
                                          ... RESPONDENTS

           (BY SRI K.SRIDHAR, ADVOCATE [ABSENT])
                                     2




     THIS R.S.A. IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD 03.01.2007 PASSED IN R.A.NO
53/98 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE, (SR.DN),
SAGAR AND ETC.

    THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT   ON   16.06.2023, THIS  DAY,  THE  COURT
PRONOUNCED THE FOLLOWING:


                            JUDGMENT

This appeal is filed against the judgment and decree dated

03.01.2007 passed in R.A. No.53/1998 on the file the Additional

Civil Judge (Sr. Dn.), Sagar.

2. Heard the learned counsel appearing for the

appellant and the counsel for the respondent is absent, hence,

his arguments is taken as nil.

3. The parties are referred to as per their original

rankings before the Trial Court to avoid confusion and for the

convenience of the Court.

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

the Trial Court is that the suit schedule property is

Khaneshumari No.10 of Kubatur village in Aravatti hobli, Sorab

taluk measuring east to west 56 feet and north to south 100 feet

Mangalore tiled temporary house standing within the boundaries

to the east by Khaneshumari No.9 (property belonging to

Narayanachar), west by Khaneshumari No.11 (property

belonging to Veerabasaiah), north by pathway and south by cart

road. It is contended that the vacant site of suit schedule

property was formerly belonged to one Keriyamma W/o Eligoru

Sannappa of Kubatur village. One Nagappa S/o Keriyappa of

Sarekoppa, Kubatur village had purchased the said property on

04.10.1983 through Kariyamma and the said sale deed was

registered on 07.10.1983. After purchasing the suit schedule

property of vacant site, the said Nagappa got changed the khata

to his name. Afterwards the said Nagappa obtained the licence

from Kubatur Panchayath on 18.12.1983 to construct a house in

the suit schedule property and constructed a Mangalore tiled

temporary house with mud walls and let out the entire suit

schedule property including the house constructed by him to

defendant No.1 in the year 1984 on a monthly rent of Rs.25/-.

The tenancy month was starting from first day of each month

and ending on the last day of the said month. It is further

contended that on 08.03.1989, the said Nagappa sold the entire

suit schedule property including the house for a valuable

consideration of Rs.2,500/- in favour of the plaintiff and the said

sale deed was registered on 09.03.1989 and a symbolic

possession was also handed over to the plaintiff by his vendor.

Since then, the plaintiff become the owner of the suit schedule

property. It is also contended that the plaintiff's vendor

Nagappa attorned the tenancy of defendant No.1 intimating that

he had sold the property to the plaintiff by way of legal notice

dated 04.04.1989 and also informed defendant No.1 to pay the

rent for the month of March 1989 onwards to the plaintiff. Since

the suit schedule property is required for the plaintiff for

bonafide self occupation, he got issued quit notice on

01.05.1989 terminating the tenancy of defendant No.1 by the

end of 31.05.1989 and also asked defendant No.1 to pay the

arrears of rent from the month of March 1989 up to date.

Despite defendant No.1 is aware of the fact that the plaintiff has

become the owner of the suit schedule property and he is the

tenant under him, had sent a untenable reply denying the title of

Nagappa and the plaintiff over the suit schedule property and

also the tenancy. It is also contended that defendant No.1 got

executed sale deed through defendant No.2 and the said sale

deed is not binding on the plaintiff. It is also contended that the

plaintiff got issued another legal notice on 03.10.1989 but

defendant No.1 did not vacate the suit schedule property.

Hence, the plaintiff has filed the suit for the relief of declaration

and possession.

5. In response to the suit summons, the defendants

appeared and filed the written statement denying the averments

made in the plaint. It is denied that the suit schedule property is

the part and parcel of Khaneshumari No.10 of Kubatur village

and contended that Keriyamma was not having any title to sell

the suit schedule property in favour of Nagappa and also in turn

the said Nagappa also not having any right to convey any title in

favour of the plaintiff. It is admitted that there exists Mangalore

tiled house in the suit schedule property but contended that he

had purchased the same from defendant No.2 and defendant

No.1 had constructed the said house and denied that he was a

tenant from 1984 under Nagappa on monthly rent of Rs.25/- and

also contended that defendant No.1 never obtained the property

as a tenant and he denied all the averments made in the plaint.

6. Based on the pleadings of the parties, the Trial Court

framed the issues and allowed the parties to lead their evidence.

In order to prove the case of the plaintiff, he himself examined

as PW1 and examined two witnesses as PW2 and PW3 and got

marked the documents at Ex.P1 to P9. On the other hand,

defendant No.1 got examined as DW1 and got marked the

documents at Ex.D1 to D19. The Trial Court having considered

both oral and documentary evidence placed on record answered

all the issues as affirmative and decreed the suit of the plaintiff

declaring that the plaintiff is the owner of the suit schedule

property and directed defendant No.1 to hand over the vacant

possession of the suit schedule property to the plaintiff within six

months and defendant No.1 is also directed to pay Rs.75/-

towards arrears of rent due from 01.03.1989 to 31.05.1989 and

he is further directed to pay Rs.200/- towards loss of rental by

way of damages for the unauthorized continuance of possession

of the suit schedule property.

7. Being aggrieved by the judgment and decree of the

Trial Court, an appeal was preferred by the defendants in

R.A.No.53/1998. In the said appeal it is contended by the

defendant that the very judgment and decree of the Trial Court

is erroneous and the Trial Court has committed an error in

declaring that the plaintiff is the owner of the suit schedule

property in terms of the sale deed and erred in not appreciating

the factum of possession by the defendants since more than 25

years. Contesting defendant No.2 expired during the pendency

of the case and the plaintiff failed to bring the legal

representatives of deceased defendant No.2 and hence, the suit

is abated and so the suit become nullity when it is passed

against the dead person.

8. The First Appellate Court on re-appreciation of both

oral and documentary evidence placed on record comes to the

conclusion that the judgment and decree of the Trial Court is not

sustainable and the same is perverse and arbitrary hence, set

aside the same and consequently, dismissed the suit. Hence,

the second appeal is filed before this Court.

9. This Court having considered the grounds urged in

the second appeal framed the following substantial question of

law:

(1) Whether the Courts were justified in deciding the

case without giving a finding as to the boundaries

of Khaneshumari Nos.9 and 10?

(2) Whether it was necessary for appointment of a

Commissioner to demarcate the properties

involved in the facts of the case?

10. The counsel appearing for the appellant would

vehemently contend that there is a divergent finding and the

Trial Court rightly considered the material on record and decreed

the suit declaring that the plaintiff is the owner and entitled for

possession and also ordered to pay the arrears of rent as well as

damages. It is the contention of the appellant that originally the

suit schedule property belongs to one Keriyamma and she sold

the same in favour of Nagappa and the said Nagappa inturn sold

the suit schedule property in favour of the plaintiff. The counsel

also would vehemently contend that the licence was taken for

the construction of temporary shed in terms of Ex.P7 and the

vendor also let out the premises to defendant No.1 on monthly

rent of Rs.25/- and also tenancy was attorned and quit notice

was also issued in terms of Ex.P4. It is the contention of

defendant No.1 that he had purchased the suit schedule property

from defendant No.2. The Trial Court having considered both

oral and documentary evidence placed on record rightly comes

to the conclusion that the plaintiff has proved the case. The

counsel would vehemently contended that with regard to the

ownership is concerned, no dispute in respect of Khaneshumari

No.10 and defendant No.2 claims that he is the owner in respect

of Khaneshumari No.9. The Trial Court also rightly comes to the

conclusion that the boundaries will prevail. The First Appellate

Court failed to consider the documents at Ex.P1 and P2. The

documents at Ex.D5 and D6 disclose that the name of

Keriyamma was rounded off and the name of the vendor of the

plaintiff i.e., Nagappa was entered. The Trial Court disbelieved

the documents and held that the plaintiff is having the title in

respect of the suit schedule property. Though defendant No.2

filed the written statement, he has not contested. The counsel

would submits that defendant No.1 brought to Court notice that

defendant No.2 died but the First Appellate Court fails to take

note that the boundaries will prevail and the Trial Court has

taken the said fact into consideration but the First Appellate

Court erroneously reversed the finding of the Trial Court.

11. The counsel for the respondent did not address the

arguments. Hence, taken as no arguments.

12. Having taken note of the grounds urged in the

second appeal and also the submissions of the counsel for the

appellant and also considering the substantial question of law

framed by this Court, this Court opined that this Court has to

analyse the evidence on record since there is a divergent finding

since the Trial Court accepted the case of the plaintiff but the

First Appellate Court not accepted the case of the plaintiff.

Hence, the Court has to consider whether material evidence has

been considered or not.

13. Having considered the material on record, this Court

would like to rely upon the boundaries mentioned in the plaint.

In the plaint, it is mentioned as east to west 56 feet and north to

south 100 feet including temporary Mangalore tiled shed

bounded on east by Khaneshumari No.9 i.e., defendant No.2's

property, west by Khaneshumar No.11 i.e., the property of

Veerabasaiah, north by pathway and south by cart road. The

Court has to take note of the document at Ex.P1 - sale deed

executed by Keriyamma in favour of Nagappa wherein she has

stated that the property belongs to her mother Hanumakka and

khatha stands in the name of her mother and delivered the

possession on the date of the sale wherein the description of the

property is mentioned as east to west 28 feet (19 mola) and

north to south 55 feet (37 mola) and the boundaries are

mentioned in terms of the plaint schedule. The other document

is Ex.P2 - sale deed of the plaintiff wherein the vendor has

stated that he had purchased the property in the year 1983 and

also claims that he has constructed the temporary Mangalore

tiled shed and the same let out to defendant No.1 on monthly

rent of respondent.25/- and also informed about the tenancy

and attorned the tenancy and given the right to collect the rent

and description is given as Khaneshumari No.10 including the

Mangalore tiled house measuring east to west 56 feet and north

to south 100 feet and the same boundary was given in the sale

deed. Having considered these documents, there is no dispute

with regard to the boundaries mentioned in the plaint as well as

Ex.P1 and P2.

14. However, it is important to note that in Ex.P2,

measurement is mentioned as east to west 56 feet and north to

south 100 feet and the same is against the measurement

mentioned in Ex.P1 sale deed wherein it is mentioned as 28 x 55

feet and the First Appellate Court rightly comes to the conclusion

that there is no explanation on the part of the plaintiff with

regard to the measurement mentioned in the document at Ex.P1

and P2 and also in the plaint. No doubt, notice was given on

04.04.1989 by the vendor of the plaintiff to defendant No.1 in

terms of Ex.P3 and reply was given on 29.04.1989 and one more

notice was given in terms of Ex.P4 by the plaintiff himself on

03.10.1989. The plaintiff also relied upon the document at

Ex.P7 which is the licence for the construction of the house and

the document at Ex.P8 to show that the property belongs to

Hanumakka and her name was rounded off and also her

daughter Keriyamma's name was also rounded off and the

plaintiff's vendor name is found in the document at Ex.P8 that is

Village Panchayath revise book. The other document at Ex.P9 is

standing in the name of the vendor of the plaintiff.

15. On the other hand, the defendant relied upon the

document at Ex.D1 - sale deed which was executed by

defendant No.2 in favour of defendant No.1 in respect of

Khaneshumari No.9 and mentioned the measurement as 28 x 70

feet bounded on east by Tamarind tree and remaining portion of

the very same number, west Khaneshumari No.11 that is

Bangaraswamy's land, north by V. P. road and south by

remaining land belongs to him. Having considered this

document, the measurement is mentioned as 28 x 70 feet and

towards east and south shown as remaining lands belongs to the

vendor. The defendant also relied upon the document of Ex.D2

-Form No.V - records of rights wherein the name of the vendor

of defendant is found and so also in Ex.D3, the name of

defendant No.2 is found and in terms of Ex.D4, the name of

defendant No.1 is found in the records and in Ex.D5, the name

of defendant No.2 was found and so also in Ex.D6 and D7, the

name of Veerabasaish Patel was found and so also the vendor of

the defendant in Ex.D8 also in Ex.D9, the name of K S Nagappa

is mentioned and the tax paid receipts are produced as Ex.D10

and D11 and he claims that he has obtained licence from Mandal

Panchayath in terms of Ex.D12, Ex.D13 is the receipt for having

paid the licence charges and Ex.D14 for having purchased the

material for construction and Ex.D15 is for having purchased the

jungle wood and Ex.D16 and D17 are the tax paid receipts and

Ex.D18 is the Enumeration form and Ex.D19 is the voter list.

16. Having considered the documentary evidence, this

Court has to consider the oral evidence of the witnesses. The

plaintiff in his oral evidence reiterated the plaint averments and

he was subjected to cross-examination. In the cross-

examination, he admits that before purchasing the property, he

had seen the documents and also admits that khatha has not

been transferred to his name and he claims that the

measurement is east to west 50 feet and north to south 120 feet

and to all the boundaries, there may be private property and he

claims that the property belongs to the husband of Keriyamma

that is Eligara Sannappa and when he had purchased the same,

there was no house and he claims that Keriyamma constructed a

shed and she was residing in the premises that is on the side of

the house of Nagappa. He claims that he found the

measurement in the Panchayath documents and when he had

purchased the property, at that time, Keriyamma was alive and

he has not collected any document which was standing in the

name of the Keriyamma and except the documents which have

been produced before the Court, not having any other

documents. The suggestion was made that Khaneshumari No.10

not belongs to Yeligara Kariyamma and the same was denied. It

is suggested that the suit schedule property is the part of

Khaneshumari No.9 and the same was denied and also admits

that she is not having any claim in respect of Khaneshumari

No.9 and also admits that she cannot tell the boundaries in

respect of Khaneshumari No.9 and was also Khaneshumari No.8

and 11.

17. The plaintiff admits that the house in which

defendant No.1 is residing is bounded on east by house of

Ananthashetty and the property of the defendant No.2, west by

Bangaraswamy Gowda's land, north by cart road and south by

pathway. Defendant No.1's house measurement is east to west

56 feet and north to south 120 feet but denied the suggestion

that Ex.P8 is a created document and however admits that Ex.P8

is of the year 1936-37. It is suggested that his vendor was not

having any title to sell the property of Khaneshumari No.10 and

the same was denied. He admits that in the Panchayath

lincence, measurement is not mentioned and also not prepared

any sketch. But he paid the fee for obtaining the licence and the

suggestion was made that in Ex.P7, the name of Mallapura was

strike out and the same was denied that he is not aware of the

same and not having any copy of the application given for

licence. Witness also admits that not having any document to

show that there is any lease agreement between defendant No.1

and himself and also not having any document of rental receipt

but he claims that his vendor has let out the premises to

defendant No.1 and not having any accounts for having received

the rent. He also admits that after the purchase of the property,

he had not demanded the rent from defendant No.1 and he

cannot tell the month and date for having rented out the

premises to defendant No.1 by his vendor but he claims that

after the construction, his vendor let out the premises to

defendant No.1 and his vendor constructed the house in the year

1984 and he cannot tell the measurement of the house

constructed by his vendor. He admits that except the house in

which defendant No.1 is residing, he is not having any other

house. He cannot tell the measurement of the premises. He

had seen the document of Ex.P2 after reading the same. It is

suggested that the suit schedule property was purchased by

defendant No.1 from defendant No.2 and the same was denied

and also admits that the vendor has colleted the rent from

defendant No.1 but not produced any documents in this regard.

18. PW2 in his evidence says that the suit schedule

property originally belongs to Keriyamma and it was the vacant

property and he has purchased the same in the year 1983 and

he gave the statement in panchayath and licence was obtained

in the name of the plaintiff to construct the building in order to

help the plaintiff and he could not construct the same and in the

year 1984, he himself constructed a temporary shed and he let

out the same to defendant No.1 on monthly rent of Rs.25/- and

thereafter he had sold the same in favour of the plaintiff in terms

of Ex.P2 and one K P Bangaraswamy was also witness to the

said document. But he claims that in Ex.P1, by mistake lesser

measurement is given but in Ex.P2 correct measurement is

mentioned. He has handover the possession of the property to

the plaintiff and defendant No.1 was residing as tenant and when

he has sold the property, defendant No.1 was due for one month

rent and he has informed the sale of the property by giving a

notice to defendant No.1 in terms of Ex.P3.

19. In the cross-examination of PW2, he submits that

defendant No.2 may be having the property in Khaneshumari

No.9 and the defendant No.1 is residing from last 10 to 12 years

in his house with permissive possession and he cannot tell the

extent of Khaneshumari No.9 as well as the boundaries. He

claims that the suit schedule property is measuring 56 x 100 feet

and the same was purchased from Keriyamma and the said

property came to Keriyamma through her mother. He admits

that when he had purchased the property from Keriyamma, in

panchayath record, her name was not there. It suggested that

in order to mention his name in Ex.P9, there is no basis, he says

that he is not aware of the same. He also admits that in terms of

sale deed, khatha has not been transferred in favour of the

plaintiff but he claims that the house was built in between 19

feet to 21 feet. The suggestion that the same was constructed

by defendant No.1 after purchasing the same from defendant

No.2 and the same has been denied. But he claims that he is

not having any document to show that for having spent the

money but it was constructed in the year 1984. It is also elicited

that while handing over the property in favour of defendant

No.1, no one was there and he is not having any document to

show that having received the rent. He claims that rents are

received till 1988 at the rate of Rs.25/- but he is not having any

account for the same. But he claims that he sold the property in

favour of the plaintiff and defendant No.1 was due for one month

rent and the same is not mentioned in the sale deed but he

claims that he gave the notice in this regard and he also admits

that defendant No.1 has given the reply.

20. The other witness is PW3 and he has been examined

in chief but not cross-examined.

21. The other witness is DW1 i.e., defendant No.1 and

he deposed in terms of written statement claiming that

Khaneshumari No.9 had purchased by defendant No.2 in Court

auction and got marked the said document at Ex.D1- sale deed

as well as the document at Ex.D2 and also he claims that

Khaneshumari No.10 is not located adjacent to his building. In

the cross-examination a suggestion was made that in terms of

the decree, measurement was not shown and no document was

produced and the same was denied. He says in the cross-

examination that before purchasing the property in Court

auction, he has verified the attachment order and receipt and

defendant No.2 has informed the same about to him and also

admits that Narayanachar is not having any right in respect of

Khaneshumari No.10 and also he did not verify how his vendor

Narayanachar got the property No.9. He also admits that he

cannot tell where Khaneshumari No.10 is situated. He denies

the suggestion that he was the tenant on monthly rent of

Rs.25/-. He claims that he had constructed the house 12 years

ago in the suit schedule property in terms of Ex.D10 and he

admits that he had not paid the tax in respect of Khaneshumari

No.10 and also admits that Khaneshumari No.10 never belongs

to defendant No.2. He admits that he gave the reply in terms of

Ex.P4. He admits that on the west of the suit schedule property

Khaneshumari No.11 is in existence and the Bangaraswamy

Gowda is the son of Veerabasaiah and also he admits that on the

north of the suit schedule property, there is a pathway and on

the south there is a cart road and on the east Khaneshumari

No.9 is located and also he admits that in between the suit

schedule property and the property of defendant No.2 there is a

temporary fencing and he also admits that there is a tamarind

tree on the west side fencing and he also admits that both the

sons of defendant No.2 are advocates in Bengaluru. It is

suggested that even though no right in respect of Khaneshumari

No.10, document at Ex.D1 is created and the same is denied.

22. Having considered both oral and documentary

evidence placed on record it discloses that the plaintiff claims

that originally, the property belongs to Keriyamma and the same

was sold in favour of PW2 and PW2 in turn sold the same in

favour of the plaintiff. In the cross-examination also the plaintiff

admits that he is not claiming any right in respect of

Khaneshumari No.9 and also DW1 in the cross-examination

claims that he is not claiming any right in respect of

Khaneshumari No.10. It is also very important to note that in

the cross-examination of DW1, he categorically admitted the

description of the property which has been shown in the plaint

hence, there is no dispute with regard to the identity of the

property but defendant No.1 claims that Keriyamma was not

having any right to execute the sale deed. It is important to note

that DW1 categorically admitted each and every description of

the property i.e., east, west, north and south which has been

mentioned in the plaint in the cross-examination and also

categorically admits that on the east of the suit schedule

property Khaneshumari No.9 is in existence. When such being

the case, the First Appellate Court ought not to have comes to

the conclusion that the plaintiff was not having any right in

respect of the suit schedule property when the very location of

the suit schedule property is admitted by DW1 and also it is the

specific admission of DW1 that he is not claiming any right in

respect of Khaneshumari No.10. The very contention of DW1 in

the cross-examination that Khaneshumari No.10 was not in

existence, an admission given by DW1 has not been considered

by the First Appellate Court and hence it is clear that the

property in Khaneshumari Nos.9 and 10 are different and the

plaintiff claims the right in respect of Khaneshumari No.10 and

the defendant claims right in respect of Khaneshumari No.9.

When there is clear a admission given by DW1 in the cross-

examination that defendant No.2 is not having any right in

respect of Khaneshumari No.10, he cannot tell how his vendor

got the title in respect of site No.9. No doubt, on the weakness

of the defendant, the suit cannot be decreed. But there are

documents for having executed the sale deed by Keriyamma in

favour of the plaintiff's vendor in terms of Ex.P1 and also in

terms of Ex.P2, the vendor of the plaintiff executed the sale deed

in favour of the plaintiff and in all the documents, the boundaries

are mentioned as admitted by DW1 in the cross-examination. No

doubt, there is a discrepancy in the document at Ex.P1 and P2

but the Court has to take note of the fact that the boundaries

mentioned in Ex.P1 and P2 and the Trial Court having taken note

of the admission given by DW1 and also the boundaries, came to

the conclusion that the boundaries will prevail.

23. Even though DW1 disputed the boundary, but in the

cross-examination, specifically admitted the boundary. It is

important to note that in an ingenious method DW1 deposed

that no existence of Khaneshumari No.10 but he categorically

admits the Khaneshumari Nos.9 and 11 but denies the very

existence of Khaneshumari No.10. But in the cross-examination,

he clearly admits the boundaries mentioned in the plaint. It is

also important to note that DW1 claims that he had constructed

the house 12 years ago and no doubt, in the cross-examination,

nothing is elicited from the mouth of DW1 that he was a tenant

on monthly rent of Rs.25/- but the document at Ex.P2 clear that

defendant No.1 was a tenant. It is also important to note that

notice was issued by the vendor of the plaintiff in terms of Ex.P3

to defendant No.1. It is also important to note that DW1 claims

that he has got right in respect of Khaneshumari No.9 and also

part of Khaneshumari No.10 but no material is placed before the

Court for having right in respect of Khaneshumari No.10 but he

categorically admitted that Khaneshumari No.10 at no point of

time belongs to Narayanachar i.e., defendant No.2 and here he

cannot claim in respect of part of Khaneshumari No.10 i.e., suit

schedule property. When it is elicited from the mouth of DW1

that he cannot claim any right in respect of Khaneshumari No.10

which is the subject matter of the suit and he also identified the

property, the First Appellate Court committed an error in

reversing the finding of the Trial Court and fails to take note of

the admission given by DW1 and the plaintiff claims the title

based on Ex.P1 and P2. Though no documentary proof on record

that defendant No.1 was a tenant, I have already pointed out

that in x.P1 which is of the year 1989, it is stated that he was a

tenant. The evidence of PW1 and PW2 is clear with regard to

that the house was constructed and given to defendant No.1 on

rent and hence, the very order passed by the First Appellate

Court is not based on the documentary evidence available on

record when DW1 admits that he is not having right in respect of

Khaneshumari No.10 and his claim is in respect of Khaneshumari

No.9 and hence, the First Appellate Court committed an error in

setting aside the judgment and decree of the Trial Court hence, I

answer first substantial question of law as affirmative in coming

to the conclusion that the First Appellate Court finding is not

based on the material available on record and admission with

regard to the boundaries of plaintiff's property has not been

considered.

24. The second substantial question of law is that

whether an appointment of Commissioner is necessary to

demarcate the properties. In this regard DW1 categorically

admitted the location of the suit schedule property on all the

boundaries i.e., east, west, north and south thus, there is no

need to appointment of Court commissioner to demarcate the

suit schedule property and hence, the second substantial

question of law is answered as negative and the same is not

warranted in view of the clear admission of DW1 and no dispute

with regard to the identity of the suit schedule property.

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

following:

ORDER

The regular second appeal is allowed.

The impugned judgment and decree dated 03.01.2007

passed in R.A. No.53/1998 by the First Appellate Court is set

aside and the judgment and decree dated 18.09.1998 Passed in

O.S.No.26/1990 by the Trial Court is confirmed.

Sd/-

JUDGE

SN