Karnataka High Court
Sri.C.P. Balachandre Gowda vs Sri.K.S.Nanjunda Rao on 24 November, 2023
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A NO. 689 OF 2016
BETWEEN:
SRI.C.P. BALACHANDRE GOWDA
S/O PUTTE GOWDA
AGED ABOUT 46 YEARS
R/O JYOTHINAGAR EXTENSION,
CHICKMAGALURU CITY-577101
...APPELLANT
(BY SRI.BALAGANGADHAR G S, ADVOCATE)
AND:
SRI.K.S.NANJUNDA RAO
S/O LATE K.K.SUBBA RAO
AGED ABOUT 71 YEARS
SEWING MACHINE BUSINESS,
CHRISTIAN COLONY,
CHICKMAGALURU CITY-577101
...RESPONDENT
(BY SRI.G NARAYANA RAO, ADVOCATE)
THIS RSA IS FILED UNDER SEC.100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 10.03.2016
PASSED IN RA.NO.12/2015 ON THE FILE OF THE 2ND
ADDL. SENIOR CIVIL JUDGE CHIKKAMAGALURU,
2
DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 11.02.2015 PASSED IN
OS.NO.382/2005 ON THE FILE OF THE I ADDL. CIVIL
JUDGE AND JMFC., CHIKMAGALUR.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 18.11.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by the
defendant assailing the concurrent judgments of the
Courts below wherein the plaintiff's suit seeking
declaration that he is the absolute owner of the
schedule 'B' property and to direct the defendant to
demolish the compound wall constructed by the
defendant is decreed.
2. For the sake of convenience the parties are
referred to as per their rank before the trial court.
3. The facts leading to the case are as under:
Plaintiff has instituted the present suit by
contending that he is the absolute owner of the
schedule 'A' property measuring 30 ft. north-south
and 80 ft. east-west. Plaintiff claims that he has
acquired right and title on the basis of the registered
sale deed executed by one Gangaiah on 10.12.1964.
Plaintiff has further contended that defendant owns a
property towards eastern portion of their property.
Plaintiff has alleged that defendant who is the owner
of the adjacent property has encroached to an extent
30 ft. north-south and 10 ft. east-west and
constructed a compound wall.
4. Defendant on receipt of summons tendered
appearance and filed written statement and has
stoutly denied the entire averments made in the
plaint.
5. Defendant while countering the plaintiff's
claim contended that the plaintiff's property is situated
in survey No.100/1 and defendant's property is
situated in survey No.99. The defendant further
alleged that plaintiff had filed the suit against one
Eshwara in O.S.No.464/1996 and the said suit is
dismissed by the Court on the ground that the present
plaintiff has failed to establish the identity of the plaint
schedule property.
6. Plaintiff and defendant to substantiate their
respective claim have let in oral and documentary
evidence.
7. A Court Commissioner was appointed to
inspect the spot in presence of both the parties and
submit a sketch depicting the measurements of the
properties held by plaintiff and defendant. The
defendant though filed objections to the
Commissioner's report did not cross-examine the
Commissioner by summoning him.
8. The trial Court having examined the title
documents of both the parties coupled with the
Commissioner's report has answered issue Nos.1 to 6
in the affirmative and the trial Court has held that
plaintiff has succeeded in establishing his title over
schedule 'A' and schedule 'B' properties. While
answering issue no.2 in the affirmative, trial Court
held that plaintiff has succeeded in substantiating the
alleged encroachment made by defendant which is
referred as schedule 'B' property. Having answered
Issue no.6, the trial Court decreed the suit thereby
directing the defendant to demolish the compound
wall measuring 9 ft. East-West and 30 ft. North-South
and handover vacant possession to plaintiff.
9. Feeling aggrieved by the judgment and
decree of the trial Court, plaintiff preferred an appeal
before the appellate Court in RA.No.12/2015.
Appellate Court being a final fact finding authority has
reassessed the entire evidence on record
independently. Referring to the local inspection and
report submitted by the Commissioner and having
taken cognizance of the title documents, appellate
Court also found that defendant is in possession of 66
ft. east-west when the title documents of defendant
clearly demonstrates that property owned by
defendant measured 53 ft. east-west. Appellate court
found that there is a reduction in the extent of
plaintiff's property while defendant is found to be in
possession in excess of 53 ft. east-west. Appellate
Court having taken note of these significant details
proceeded to dismiss the appeal.
The said concurrent findings are under
challenge.
10. Learned counsel appearing for defendant
re-iterating the grounds urged in the appeal memo
would vehemently argue and contend that the
judgments rendered by the Courts below are patently
erroneous. He would submit that both the Courts
have committed a grave error in decreeing the suit
ignoring the judgment rendered in the earlier round of
litigation. He would further contend that both the
Courts erred in relying on Commissioner's report. He
would point out that Commissioner's report and sketch
are not part of the record and as such no reliance can
be placed on the Commissioner's report. He would
further submit that plaintiff's claim based on Ex.P1-
sale deed is negatived in earlier suit bearing
O.S.No.464/1996 and hence, would vehemently argue
and contend that the appeal needs to be admitted in
terms of the substantial question of law indicated in
the appeal memo.
11. Heard the learned counsel for the
defendant and perused the concurrent findings
recorded by both the Courts below. I have gone
through the synopsis submitted by the learned
counsel for the appellant.
12. On meticulous examination of the pleadings
of both the parties, this Court would find that there is
no serious dispute in regard to the title of the plaintiff
over the suit land. Defendant on the contrary claimed
that he has purchased the property in Survey No.99
while plaintiff's property is situated in survey
No.100/1. Defendant is heavily banking on the
judgment rendered in the earlier suit which was filed
against one Eshwara in O.S.No.464/1996. Defendant
claims that identity of the property held by the
plaintiff is not substantiated in the earlier suit.
13. On examination of the judgments rendered
by both the Courts, I am of the view that the findings
recorded in O.S.No.464/1996 in regard to the identity
of plaintiff's property does not take away the plaintiff's
right to seek declaration and mandatory injunction.
Defendant cannot take benefit of the decree passed in
O.S.No.464/1996. In the present suit, plaintiff is
alleging encroachment by defendant. At the instance
of the Court, Assistant Executive Engineer of
Municipality is appointed as Commissioner to inspect
the spot and submit a report. A technical hand of a
local body under whose jurisdiction the suit property is
situated is appointed as a Court Commissioner. The
defendant's property which is adjacent to the
plaintiff's property measures 53x30 ft. Defendant
has purchased the site bearing No.6 in Survey No.99.
Plaintiff's property measures 80 ft. east-west and 30
ft. north-south. The Commissioner has measured the
property of the plaintiff and defendant. On spot
inspection and measurement, the commissioner has
found that defendant is in possession of 66 ft. east-
west, when the title deed of the defendant clearly
reveals that his property measures 53 ft. east-west.
The dispute between plaintiff and defendant relates to
boundary. Since, defendant has disputed the very
identity of the suit land, the same is sought to be
established by issuing a survey commission to locate
not only the property in dispute but also demarcate
the boundaries of properties held by plaintiff and
defendant.
14. It is a trite law that report of the
Commissioner together with evidence, if any, recorded
by him is a legal evidence in the suit irrespective of
whether Commissioner is examined or not. Once a
report of the Commissioner is received by the Court, it
forms the part of the record. The defendant has not
availed the opportunity of cross-examining the
Commissioner having tendered objections to
Commissioner's report. Though the Commissioner's
report is only a evidence in the case and does not bind
the Court, but having regard to the nature of the
dispute in the case, the Court of first instance thought
it fit to secure local inspection as the Court based on
title documents could not have collected the evidence
and the controversy in regard to encroachment and
boundary dispute could have been obtained by the
Court only through commission on account of its
peculiar nature which can be gathered only on the
spot.
15. On examining the Commissioner's report,
this Court is of the view that both the Courts were
justified in accepting the Commissioner's report. the
defendant's except filing objections to the
Commissioner's report has not lead any counter
evidence to displace the local inspection indicating the
encroachment made by the defendant as indicated in
the sketch. The contention of defendant that the
memo of instructions submitted by the defendant is
not taken note by the Commissioner while taking up
the commission work cannot be examined by this
Court under section 100 of CPC. An adverse inference
has to be drawn against the defendant who has failed
to summon the Commissioner and cross-examine him.
16. Among the array of elements comprising a
Commissioner's report, the inclusion of a meticulously
prepared sketch by a technical expert, particularly
when delineating encroachment, stands as an
indispensable facet. The Commissioner's sketch
transcends mere words, serving as a illuminating
visual exposition of location of plaintiff and
defendant's property. Therefore, the Commissioner's
report/sketch bestows upon the Court an invaluable
visual context that assists the Court for effective
adjudication of complex dispute of encroachment
which cannot be resolved based on title documents of
both the parties. At the crux of encroachment
disputes lies the exigency for pinpoint accuracy in
boundary delineation and therefore, bestows a level of
precision and clarity that conventional enquiry by a
competent civil Court referring to title documents may
not be possible. A sketch prepared by a technical
expert on spot inspection leaves scant room for
equivocation, thereby fortifying the Commissioner
report's evidentiary potency. The spot inspection by
a technical expert on account of his professional
judgment and technical competence lends additional
weight to the sketch as a reliable piece of evidence.
Both the Courts while placing reliance on
Commissioner's report have not found any compelling
reasons to impugn the Commissioner's spot inspection
and encroachment indicated in the report. The
measurements taken by the Commissioner at the spot
and the extent of possession held by the defendant
contrary to the extent indicated in the title deed of
defendant clearly establishes the encroachment made
by the defendant.
17. Therefore, the concurrent findings recorded
by both the Courts by accepting the Commissioner's
report supported by title deed produced by plaintiff to
establish his title over the suit schedule property to an
extent of 80 ft. east-west and 30 ft. north-south and
thereby granting mandatory injunction calling upon
the defendant to remove the encroachment and hand
over possession does not suffer from illegality. No
substantial question of law arises for consideration.
18. Hence, I proceed to pass the following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
*alb/-
