Karnataka High Court
George Fernandez S/O G.J.Fernandez vs R. Shankareppa Sidramappa Chelva And ... on 21 February, 2024
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RSA No. 200232 of 2014
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 200232 OF 2014
(DEC/INJ)
BETWEEN:
1. GEORGE FERNANDEZ
S/O G.J.FERNANDEZ,
AGED ABOUT 59 YEARS,
OCC: CONTRACTOR,
R/O:F1, 3RD FLOOR, SURYA TOWERS,
S.P.ROAD, SECUNDERABAD,
TELANGANA STATE-500003.
2. PRAFUL S/O RAMESH KUMAR PANDE,
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O DEVI COLONY, BIDAR.
3. BABURAO S/O MALLAPPA MADIVAL,
AGE: 68 YEARS, OCC: AGRICULTURE,
Digitally
R/O H.NO.8-9-499, MALLIKARJUN NILAYA,
signed by DEVI COLONY, BIDAR.
SACHIN
Location:
HIGH 4. ANAND S/O MANAYYA KATKAM,
COURT OF
KARNATAKA AGED ABOUT 46 YEARS,
OCC: AGRICULTURE,
R/O STATION ROAD, BIDAR.
...APPELLANTS
(BY SRI.AMEET KUMAR DESHPANDE, SENIOR COUNSEL FOR
SRI.DESHPANDE G.V, ADVOCATE)
AND:
DR.SHANKAREPPA SIDRAMAPPA CHELVA,
SINCE DECEASED BY HIS LRS.
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RSA No. 200232 of 2014
1. SMT. MAHANANDA
W/O LATE DR.SHANKAREPPA CHALVA,
AGE: 68 YEARS, OCC: HOUSEHOLD,
2. AMRESH
S/O LATE DR.SHANKREPPA CHALVA,
AGED ABOUT 53 YEARS, OCC: SERVICE,
3. RAJESH S/O LATE DR.SHANKREPPA CHALVA,
AGED ABOUT 43 YEARS,
OCC: SERVICE,
4. MAHESH
S/O LATE DR.SHANKREPPA CHALVA,
AGED ABOUT 38 YEARS,
OCC: BUSINESS,
ALL ARE R/O OPP.INDIAN OIL PETROL PUMP,
UDGIR ROAD, SHIVANAGAR(NORTH),
BIDAR-585401.
...RESPONDENTS
(BY SRI. KADLOOR SATYANARAYANACHARYA, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF THE CPC,
PRAYING TO ALLOW THIS APPEAL AND SET ASIDE THE
JUDGMENT AND DECREE DATED 29.04.2014 PASSED IN R.A.
NO.30/2011 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE
AND CJM AT BIDAR, SETTING ASIDE THE JUDGMENT AND
DECREE DATED 30.06.2011 PASSED IN O.S.NO.11/1987 ON
THE FILE OF THE PRL.CIVIL JUDGE AT BIDAR.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 19.02.2024, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY THE COURT
DELIVERED THE FOLLOWING:
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RSA No. 200232 of 2014
JUDGMENT
1. This appeal is filed by the defendant,
challenging the judgment and decree dated 29.04.2014
passed in R.A.No.30 of 2011 on the file of the Principal
Senior Civil Judge & CJM, Bidar, allowing the appeal and
setting aside the judgment and decree dated 30.06.2011
passed in O.S.No.11 of 1987 on the file of the Principal
Civil Judge at Bidar, dismissing the suit of the plaintiff.
2. For the sake of convenience, parties in this
appeal shall be referred to in terms of their status and
ranking before the trial Court.
3. The plaint averments are that, originally plaint
was presented by one Dr.Shankerappa and during the
pendency of the suit, he died leaving behind the legal
representatives, who have continued the proceedings
before the Trial Court.
4. It is the case of the plaintiff that
Dr.Shankerappa and Dr.S.S.Siddareddy had jointly
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purchased the land bearing Sy.No.66/2 situate at Aliabad,
Bidar to an extent of 03 acres 36 guntas as per registered
sale-deed dated 13.10.1971. Thereafter, both of them got
converted the agricultural land for non-agricultural
purpose as per order dated 18.10.1973. The schedule land
was bifurcated between the plaintiff and
Dr.S.S.Siddareddy and each of them has got an extent of
01 acre 38 guntas, in the total extent of 03 acre 36
guntas. It is further averred in the plaint that, phodi was
effected and boundaries were fixed by the competent
authorities. It is further stated in the plaint that the
plaintiff made an application to Town Planning Authority
seeking sanctioning of formation of layout and same was
accorded as per order dated 31.05.1985. The plaintiff has
constructed house for himself and sold some of the plots
to third parties. In the meanwhile, the said
Dr.S.S.Siddareddy had formed layout and sold some of the
plots in the layout including to the defendant, as per
registered sale deed dated 16.10.1980. It is the grievance
of the plaintiff that the defendant made effort to encroach
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the land belonging to the plaintiff and tried to dig borewell
in the land belonging to the plaintiff and as such the
plaintiff has filed suit in O.S.No.11/1987 seeking relief of
injunction and thereafter the plaintiff has filed an
application to amend the prayers and the Trial Court,
allowed the said application and as such, the plaint was
amended and plaintiff has sought for relief of declaration
that the plaintiff is the owner of the suit property
measuring 05 guntas in Sy.No.66/2b of Aliabad Village,
inter alia sought for declaration that sale-deed dated
16.10.1980 between the defendant and
Dr.S.S.Siddareddy, is null and void in respect of 05 guntas
of schedule property and further the plaintiff sought for
mandatory injunction to demolish the temporary shed and
other structures put-up by the defendant in the schedule
property. Accordingly, the plaintiff has prayed for the
reliefs as stated above.
5. After service of summons, defendant entered
appearance and has filed detailed statement of objection
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and admitted that the land was demarcated by fixing
boundaries and separate hissa number was given to both
the portions. It is the specific contention of the defendant
that the defendant has not encroached the land belonging
to the plaintiff and further contended that the defendant,
pursuant to purchase the schedule land from
Dr.S.S.Siddareddy, got permission to put-up construction
and compound wall has been embedded and accordingly,
sought for dismissal of the suit. The defendant, further
contended that there is 30 feet road between the layout of
the plaintiff and the layout formed by Dr.S.S.Siddareddy
towards north-south direction and therefore, denied the
plea made by the plaintiff in the plaint.
6. On the basis of the rival pleadings, the Trial
Court has framed issues and additional issues for its
consideration.
1) Does plaintiff prove his lawful, exclusive
possession over the suit open space, shown in
red colour in the plaint sketch ? (Deleted)
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2) Does he prove interference, as alleged ?
(Deleted)
3) Whether Dr.S.S.Siddareddy is a necessary party
to the suit (Para-16 of the Written Statement) ?
4) a) Does defendant show that the suit against
him, is false and frivolous ?
b) If so, is he entitled to cost ?
c) What cost ?
5) Reliefs ?
ADDITIONAL ISSUES
1) Whether plaintiffs proves that they are the
owners of the portion of land shown in Red
colour of the Map annexed to the plaint ?
2) Whether plaintiffs proves that Defendant has
encroached an area shown in Red colour of the
Map? Whether they further prove that
Defendant has constructed temporary shed by
encroaching the portion of land as shown in
the Red colour ?
3) Whether plaintiff is entitled for possession of
portion of land which is encroached by the
Defendant as shown in the Red colour of the
Map ?
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4) Whether plaintiff is entitled for Declaration
that Sale-deed dated 16.10.1980 is null and
void and not binding on him in respect of
portion of land as shown in the Red Colour ?
5) Whether Plaintiff is entitled for relief of
Mandatory injunction as sought for ?
6) What Order or Decree ?
7. In order to establish their case, plaintiffs have
examined five witnesses as PW.1 to PW.5 and got marked
18 documents as Exs.P1 to P18. On the other hand,
defendant has examined three witnesses as DW.1 to DW.3
and produced nine documents as Exs.D1 to D9.
8. The Trial Court, after considering the material
on record, by judgment and decree dated 30.06.2011
dismissed the suit of the plaintiffs. Being aggrieved by the
same, the plaintiffs have preferred Regular Appeal in
R.A.No.30 of 2011 on the file of First Appellate Court and
the said appeal was resisted by the defendant. The First
Appellate Court, after re-appreciating the facts on record,
by its judgment and decree dated 29.04.2014, allowed the
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appeal and set aside the judgment and decree passed by
the Trial court in O.S.No.11/1987 Being aggrieved same,
the defendant has preferred this Regular Second Appeal
under Section 100 of Code of Civil Procedure.
9. This Court vide order dated 06.08.2009,
formulated the following substantial questions of law :
(i) Whether Dr.Sidda Reddy stated to be the joint
purchaser of the entire property including the
suit schedule property along with defendant
was necessary or proper party or did not come
under both ?
(ii) Whether the documents and records
evidencing the extent of land sold by the said
R.Sidda Reddy ?
(iii) Whether the extent of the property is trimmed
to a lesser extent than the share of the
plaintiff ?
(iv) Whether Section 44 of the Transfer of Property
Act is attracted and whether the said provision
of law is violated ?
(v) Whether the suit is barred by limitation ?
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(vi) Whether the first appellate Court's finding
regarding the tallying of the sketch and the
registered sale deed is just and proper?
10. I have heard Sri Ameetkumar Deshpande,
learned Senior counsel appearing on behalf of Sri
G.V.Deshpande, learned counsel appearing for the
appellant and Sri Kadloor Satyanaraynacharya, learned
counsel appearing for the respondent. Perused the
material on record.
11. Sri Ameetkumar Deshpande, learned Senior
counsel appearing for the appellant contended that the
First Appellate Court has committed an error in interfering
with the well reasoned judgment and decree passed by the
Trial Court and further contended that as the suit was filed
during the year 1987 and relief for declaration and
possession was sought through amending the plaint during
the year 2005 and therefore, it is the submission of the
learned Senior counsel that the suit is rightly dismissed by
the Trial Court on the question of limitation and as such,
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he argued that Article 58 of the Limitation Act is applicable
to the facts of case and same was erroneously interfered
with by the First Appellate Court.
12. Nextly, it is contended that as the property was
originally purchased by the plaintiff and vendor of
defendant jointly and as such Section 44 of the Transfer of
Property Act is applicable to the facts on record and
accordingly, it is the submission of the learned Senior
counsel that at no stretch of imagination the First
Appellate Court interfered with the judgment and decree
passed by the Trial Court granting declaratory reliefs to
the plaintiff and accordingly sought for interference of this
Court.
13. It is also submitted by the learned Senior
counsel that the defendant has purchased Plot Nos.1 to 7
and open space in front of Plot Nos..4 to 6 in the approved
layout of Sy.No.66/2 as per registered sale-deed dated
16.10.1980 for a valuable consideration and the said
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aspect was not properly appreciated by the First Appellate
Court.
14. Sri Ameetkumar Deshpande, leaned Senior
counsel further contended that the First Appellate Court
solely based on the report of the Commissioner, as per
Ex.P.9 and Ex.P.10 arrived at a conclusion to decree the
suit of the plaintiff and the said report of the surveyor is
based on the facts on record only during the pendency of
the suit and the survey report has not been proved before
the Trial Court and accordingly, sought for interference of
this Court.
15. Lastly, it is contended by the learned Senior
counsel that the layout in Sy.No.66/2 was formed after
partition between plaintiff and Dr.S.S.Siddareddy and the
First Appellate Court has committed an error in interfering
with the well reasoned judgment and decree passed by the
Trial Court and accordingly sought for interference of this
Court.
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16. Per contra, Sri Kadloor Satyanaraynacharya,
learned counsel representing the plaintiff/respondent
refers to the interim order dated 06.07.1987 passed in the
suit and argued that the plaintiff has filed I.A.No.1
seeking temporary injunction and the Trial Court, after
recording the undertaking given by the defendant, that the
defendant shall not take up any further construction in
the suit schedule property, disposed of the said application
and thereafter, in order to over come the said consent
given by the defendant in the present suit, the defendant
has filed O.S.No.45/1988 against the plaintiff and the said
suit came to be dismissed and as such, it is the submission
of the learned counsel appearing for the respondent that
the finding recorded by the First Appellate Court is just
and proper and does not call for interference in this
appeal.
17. Nextly, it is contended by the learned counsel
appearing for the respondent that though the suit was
filed during 1987 and thereafter applications were filed
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before the competent court in O.S.No.11/1987 and
O.S.No.45/1988 seeking appointment of Commissioner
and these applications were dismissed by the competent
courts and thereafter the plaintiff has approached ADLR
independently to survey the land in question pursuant to
the plea made by the defendant that he has not
encroached the land belonging to plaintiff and therefore,
the application was filed before the Trial Court seeking
relief of declaration with consequential relief of mandatory
injunction, having came to know that the defendant had
encroached 05 guntas of land in question after the survey
report and accordingly sought for dismissal of the appeal.
18. Learned counsel for the respondent refers to
the deposition of PW.3 as well as DW.1 and contended
that the plaintiff has proved before the Trial Court that the
defendant has encroached 05 guntas of land belonging to
the plaintiff and accordingly, sought to justify the
impugned judgment and decree passed by the First
Appellate Court.
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19. In the light of the arguments advanced by the
learned counsel appearing for the parties, I have carefully
perused the original records.
20. It is not in dispute that both the original
plaintiff-Dr.Shankareappa and Dr.S.S.Siddareddy,
purchased the schedule property jointly as per the sale-
deed dated 13.10.1971 (Ex.P.2.). Thereafter, the land was
converted for use of non-agricultural purpose. Partition
and phodi had taken place in the year 1981. It is the case
of the defendant that the partition took place during the
year 1972-73 itself. Both the parties agreed that the
property was divided into equal portion to an extent of 01
acre 38 guntas each and western side was allotted to
Dr.S.S.Siddareddy and eastern portion to the plaintiff. The
vendor of the defendant - Dr.S.S.Siddareddy, got the
layout sanctioned on 26.08.1975 and the layout was
modified on 27.11.1976 as per Ex.P.13 and Ex.D.5. The
plaintiff got approval of the layout plan as per Ex.D9 on
16.05.1978. He also got modified the layout plan on
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31.05.1985 as per Ex.P1. It is not the case of the plaintiff
that the defendant has purchased property from
Dr.S.S.Siddareddy, however the grievance is that the
defendant has encroached 05 guntas of land belonging to
the plaintiff. In order to establish the division in the
property, plaintiff has produced Ex.P.6 and Ex.P.7 and
phodi has been effected accordingly. Originally, plaintiff's
suit is for permanent injunction against the defendant and
looking into the order sheet of the Trial Court would
indicate that an application seeking appointment of
Commissioner to survey of the land belonging to the
plaintiff and defendant, came to be rejected. It is also
relevant to mention that the plaintiff has filed application
in I.A.No.1 seeking relief of temporary injunction and an
ex-parte order was passed and after appearance of the
defendant, by order dated 06.07.1997, recording the
undertaking made by the defendant, and the consent of
the parties, direction was issued to the defendant not to
take up any construction in the plots until final conclusion
of the suit.
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21. It is also to be emphasised that plaintiff has
filed application under Order 26 Rule 9 of CPC on
06.11.2009 (I.A.No.15) seeking appointment of
Commissioner, which came to be allowed on 21.11.2009,
appointing the Engineer of the office of Urban
Development Authority, Bidar as Court Commissioner, to
survey and measure the suit land and to demarcate the
boundaries. Pursuant to the same, Commissioner, Bidar
Urban Development Authority, addressed a letter that
there is no post of Senior Surveyor in the said authority
and as such, the Trial Court opined by order dated
03.08.2010 that as the post of Civil Engineer is not exists
in the said office, Commission of warrant was issued to the
Assistant Director of Town and Country Planning, Bidar to
survey the suit land in question. Subsequently by order
dated 08.11.2010, the Court issued intimation to Assistant
Director of Land Record, Urban Development Authority,
Bidar to be present at the time of surveying of the land in
question to effectuate the Commission of Warrant.
Thereafter, Commissioner's report was filed as per Ex.P.17
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and mahazar at Ex.P.18. The Trial Court arrived at a
conclusion that division of property had taken place before
1981 as per the finding at page 19 of the judgment,
however, the approved layout plan of Dr.S.S.Siddareddy
was during the year 1975 and thereafter the plaintiff got
approved the layout plan during the year 1978. Therefore,
the said finding recorded by the Trial Court is based on no
evidence and perusal of Ex.P.11 - certified copy of the
sale-deed would indicate the discrepancy of measurement
of plots. It is to be noted that as per the report of the
Commissioner, the borewell of the defendant situate in the
land belonging to the plaintiff. It is also relevant to
mention here that the defendant has filed O.S.No.45/1988
seeking relief of permanent injunction against the plaintiff
in O.S.No.11/1987. The said suit as per Ex.P.14 dismissed
by the Trial Court which has reached finality as the
defendant in the present case, did not challenge the same.
Issue Nos.1 and 2 in O.S.No.45/1988 reads as under :-
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i) Whether the plaintiff proves that there is an
alleged 30 feet wide road towards the
eastern side of property of plaintiff running
north-south between his plot and plot of
defendant ?
ii) Whether the plaintiff proves the defendants
are interference in the said road ?
22. The Trial Court by judgment and decree dated
15.04.2018 dismissed the suit. Undisputably the plaintiff in
the said suit is the resident of Secunderabad (Defendant in
O.S.No.11/1987). The Trial Court has arrived at a
conclusion that there is no road measuring 30 feet towards
eastern side of the property belonging to the plaintiff in
the said suit. In the said suit also Issue No.3 is relating to
appointment of Commissioner under Order 26 Rule 9 of
CPC and the Trial Court dismissed the application on the
ground that a similar application is filed in
O.S.No.11/1987. In this backdrop of the case, the perusal
of the cross-examination of DW.1 indicate that the
defendant admits that he has dug the borewell in the
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property and there was no interim order by the competent
Court. However, perusal of the cross-examination of DW.1
would indicate that the KEB has not issued licence for
providing electricity. It is also forthcoming from the cross-
examination of DW.2 that the defendant has closed the
borewell during the year 1983 and he has not aware about
the plots formed by the defendant. Perusal of the cross-
examination of DW.3 would further substantiate that DW.3
is unaware about the construction made by defendant in a
particular plot and therefore, the evidence of the witnesses
of the defendant cannot corroborate the actual existence
of the land of the defendant. If such being the case, the
only alternative open for the Trial Court is to accept the
Commissioner's report to demarcate the land of the
plaintiff and the defendant. Therefore, I am of the opinion
that the Trial Court has committed an error in arriving at a
conclusion that the Commissioner's report do not convince
the case of the plaintiff and on the other hand, the First
Appellate Court exhaustively in detail re-appreciated the
material on record, which manifests that the defendant
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has encroached the portion of suit property towards
eastern side. Commissioner and surveyor has been
examined by the plaintiff as PW.4 and PW.5, which
requires to be accepted in the absence of the boundaries
to the plot bearing Nos.1 to 7 as stated in the description
of the schedule property in the sale-deed dated
16.10.1980 (Ex.D1.) where the defendant has purchased
the land from its vendor - Dr.Siddanna S/o
Dr.S.S.Siddareddy. At this juncture, it is also relevant to
mention here that the Trial Court has dismissed the
application filed by the plaintiff under Order 26 Rule 9 of
CPC for apportionment of Commissioner and later allowed
the same by appointing the Commissioner, Urban
Development Authority, Bidar as Court Commissioner with
the assistance of ADLR, Bidar. The First Appellate Court
after re-appreciating the entire material on record
particularly taking into consideration the modified layout
made during the year 1985 (Ex.P.1), has arrived at the
conclusion that the defendant has encroached 05 guntas
of land. At this juncture, it is to be noted that the
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defendant has not challenged the modified layout plan of
1985 made in favour of plaintiff before the Competent
Authority and same has reached finality.
23. It is pertinent to mention here that the plaintiff
has examined the surveyor of Taluk Office as PW.3 and
same would aid the finding recorded by the First Appellate
Court that the defendant has encroached 05 guntas of
land belonging to the plaintiff and therefore the plaintiff
has proved the facts on record to establish that the
defendant has encroached the portion of the land
belonging to the plaintiff.
24. Insofar as the argument advanced by the
Senior counsel appearing for the defendant/appellant with
regard to the applicability of Section 44 of the Transfer of
Property Act to the case on hand, there is no dispute with
regard to the fact that the original plaintiff and
Dr.S.S.Siddareddy purchased the entire extent of land as
per registered sale-deed dated 13.10.1971 (Ex.P2) and
thereafter the defendant purchased the portion of the
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property belonging to Dr.S.S.Siddareddy as per registered
sale-deed dated 16.10.1980. The plaintiff has filed an
application before the Trial Court to amend the plaint to
incorporate the relief seeking declaration with recovery of
possession and issuance of mandatory injunction and the
said application was allowed by the Trial Court and same
was not challenged by the defendant, which reached
finality and at this juncture the arguments advanced by
the learned Senior counsel cannot be accepted that the
plaintiff cannot claim relief of possession after three years
of filing of the suit.
25. It is should be borne in mind that the Trial
Court has allowed the application for appointment of
Commissioner in the year 2005 itself and thereafter the
plaintiff came to know where exactly the encroachment
having been made by the defendant and the said aspect
has been ignored by the Trial Court and the same was
rightly reappreciated by the First Appellate Court. Taking
into consideration the said finding recorded by the First
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Appellate Court, I am of the view that the arguments
advanced by the learned Senior counsel appearing for the
appellant that Section 58 of the Limitation Act is not
applicable to the facts of the case and the First Appellate
Court rightly re-appreciated the entire material on record
as per paragraph No.34 of the judgment and thereby,
rejected the finding recorded by the Trial Court.
26. Insofar as acceptance of the Commissioner
report is concerned, this court in the case of Parappa and
others v. Bhimappa and another1, while confirming the
judgment and decree of the First Appellate Court, held at
paragraph Nos.19 to 23, which reads as under:-
"19. A reading of the aforesaid provision makes
it clear that the report of the Commissioner once
submitted to the Court, shall be evidence in the suit
and shall form part of the record. It is not necessary
that the said Commissioner's report is to be marked
as an exhibit in the case. Similarly, it is not necessary
that the said Commissioner is to be examined, to
prove the contents of the said report. It is up to the
choice of the party to examine the commissioner in
ILR 2008 KAR 1840
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respect of the matters referred to him or mentioned
in his report. The examination referred to in the
aforesaid provision is to be understood in the context
of the word examination referred to in Chapter 10 of
the Evidence Act. The examination includes
examination in chief, cross examination and re-
examination. Therefore, if a party to the proceedings
has no grievance whatsoever against the report of the
Commissioner the question of that party examining
the Commissioner would not arise. However, if either
of the parties do not accept the correctness of the
Commissioner's report, it is open for them to file their
written objections opposing the said Commissioner's
report. In order to substantiate the said objections
and to request the Court not to act on the
Commissioner's report, with the permission of the
Court, they have been given an opportunity to
examine the Commissioner personally in the open
Court touching any of the matters referred to by him
or mentioned in his report, or as to his report, or as
to the manner in which he has made the
investigation. Normally, when objection is filed to the
Commissioner's report contending that the said report
is incorrect, to substantiate the said stand it is
necessary for the party to examine the Commissioner
personally in Court and cross examine him on those
aspects in the light of the objections taken. If the
party is successful in discrediting the entire report or
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a portion of the report in respect of which he has
grievance, the Court in its discretion may reject the
report of the Commissioner. However, if that cross
examination do not substantiate the objection taken
by the party, it is open to the Court to accept and act
on the said Commissioner's report. Only when the
Commissioner is examined, then the Court has to
consider the report along with the oral evidence in
order to appreciate the probative value of the said
report and on such appreciation, may accept the
report or may reject the report. If the report is
rejected in total, it is open to the parties to have one
more Commissioner appointed for the very same
purpose. But for admission of the said
Commissioner's report as evidence, it is not
necessary that the Commissioner should enter the
witness box, or he should produce the said report
before the Court and the Court has to mark it as an
exhibit in the case. In other words, without marking
the Commissioner's report as exhibit, without the
Commissioner being examined in the case, the said
Commissioner's report can be taken as evidence in
the case. Merely because the said piece of evidence is
taken on record it does not follow that, all that is
stated there is true or proved. Proof and relevancy is
different from admissibility of the evidence.
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20. This provision should not be confused with
the general law governing the admissibility of an
expert's evidence. In a criminal case when the
prosecution relies on the expert's evidence to prove
the charges against the accused mere production of
the said expert's report into Court is not sufficient. It
does not become a part of the Court record on mere
production. If the prosecution relies on a report of the
expert, not only the report is to be produced, the
author of the report is also to be examined in the
Court on oath and an opportunity should be given to
the accused to cross-examine the said expert on the
correctness of the report. It is only then the said
evidence becomes admissible and not otherwise. In
such a criminal prosecution, the Court has not
appointed the expert. It is the prosecution, to prove
its case, needs report and they have to examine such
an expert to prove their case. In a criminal trial,
expert is a witness for the prosecution. He is not a
Commissioner appointed by the Court in the
proceedings.
21. It is also possible that even in civil cases, a
party to substantiate his case may rely upon the
report of an expert which he has obtained prior to the
institution of the suit or even after the institution of
the suit. If the party wants to rely on such report and
if he produces the said report into Court, the said
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report would not form part of the record and the
report of such expert would not be treated as
evidence in the suit by mere production of the same.
In such circumstances, it is obligatory on the part of
the party who relies on the said expert report to
examine him, produce the report through him, get it
marked and then subject the said expert for cross-
examination of the opposite party. It is only after the
examination of such expert, his report would become
admissible in evidence. Therefore, it is necessary to
bear this distinction in mind while dealing with a
report of an expert, who is not a Commissioner.
22. In a civil proceedings when an expert is
appointed as a Commissioner by the Court at the
instance of one of the parties to the proceedings, the
Court may issue commission to such experts for the
purpose of elucidating any matter in dispute directing
him to make such investigation and to report thereon
to the Court. 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 different
footing in the matter of admissibility than the report
of an expert prepared at the instance of either of the
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parties of the suit or at the instance of the
prosecution in a criminal case. This fundamental
difference is to be borne in mind before appreciating
the report of the expert/Commissioner.
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."
27. In that view of the matter, after considering the
material on record, the Trial court has erroneously
dismissed the suit of the plaintiff and same was rightly
set-aside by the First Appellate Court after re-appreciating
the martial on record as required under Order XLI Rule 31
of CPC. Accordingly, the substantial questions of law
framed above favours the plaintiff. The Hon'ble Supreme
Court in the case of C.Doddanarayanreddy (Dead) by
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Legal Representatives and others vs. C.Jayarama
Reddy (Dead) by Legal representatives and others2,
wherein at paragraph No.26 and 27 held as under :-
"26. In a judgment in Kondiba Dagadu Kadam
v. Savitribai Sopan Gujar [(1999) 3 SCC 722], this
Court held that from a given set of circumstances if
two inferences are possible then the one drawn by
the lower appellate court is binding on the High Court.
In the said case, the First Appellate Court set aside
the judgment of the trial court. It was held that the
High Court can interfere if the conclusion drawn by
the lower court was erroneous being contrary to
mandatory provisions of law applicable or if it is a
settled position on the basis of a pronouncement
made by the court or based upon inadmissible
evidence or arrived at without evidence. This Court
held as under: [SCC p.725, para 5]
"5. It is not within the domain of the
High Court to investigate the grounds on
which findings were arrived at, by the last
court of fact, being the first appellate court. It
is true that the lower appellate court should
not ordinarily reject witnesses accepted by the
trial court in respect of credibility but even
where it has rejected the witnesses accepted
(2020) 4 SCC 659
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by the trial court, the same is no ground for
interference in second appeal when it is found
that the appellate court had given satisfactory
reasons for doing so. In a case where from a
given set of circumstances two inferences are
possible, one drawn by the lower appellate
court is binding on the High Court in second
appeal. Adopting any other approach is not
permissible. The High Court cannot substitute
its opinion for the opinion of the first appellate
court unless it is found that the conclusions
drawn by the lower appellate court were
erroneous being contrary to the mandatory
provisions of law applicable of its settled
position on the basis of pronouncements made
by the Apex Court, or was based upon in
inadmissible evidence or arrived at without
evidence."
27. In another judgment in Santosh Hazari v.
Purushottam Tiwari [(2001) 3 SCC 179], this Court
held as under: [SCC pp.187-88, para 14]
"14. A point of law which admits of no
two opinions may be a proposition of law but
cannot be a substantial question of law. To be
"substantial", a question of law must be
debatable, not previously settled by law of the
land or a binding precedent, and must have a
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material bearing on the decision of the case, if
answered either way, in so far as the rights of
the parties before it are concerned. To be a
question of law "involving in the case" there
must be first a foundation for it laid in the
pleadings and the question should emerge
from the sustainable findings of fact arrived at
by court of facts and it must be necessary to
decide that question of law for a just and
proper decision of the case. An entirely new
point raised for the first time before the High
Court is not a question involved in the case
unless it goes to the root of the matter. It will,
therefore, depend on the facts and
circumstance of each case whether a question
of law is a substantial one and involved in the
case, or not; the paramount overall
consideration being the need for striking a
judicious balance between the indispensable
obligation to do justice at all stages and
impelling necessity of avoiding prolongation in
the life of any lis." "
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28. The Hon'ble Supreme Court in the case of
Tapas Kumar Samanta vs. Sarbani Sen and another3,
wherein paragraph Nos.13 and 14 held as under :-
"13. All the aforesaid evidence was noticed
and appreciated by the appellate court to come to
a definite finding about the relationship of the
plaintiff and the defendant as landlord and tenant
and the need for demolishing the existing building
for construction of a new building for his personal
use. The appellate court also held that the
defendant tenant had not paid rent to the plaintiff
landlord since he purchased the suit property.
14. Evidence being also on record,
relationship which was the only dispute raised by
the defendant without disputing the other
pleadings about personal necessity of the plaintiff
or non-payment of arrears of rent by the
defendant having been established, we are of the
view that the High Court was not correct in
entertaining the second appeal by interfering with
the finding of fact arrived at by the appellate court.
The finding of the appellate court being based on
evidence, the High Court erred in interfering with
the judgment and decree passed by the appellate
(2015) 12 SCC 523
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court while deciding a second appeal under section
100 CPC."
29. The aforesaid fact was reiterated by the Hon'ble
Supreme Court in the case of Balasubramanian and
another vs. M.Arockiasamy (dead) through LRs4 at
paragraph Nos.14 and 15 held as under:
"14. As against such conclusion, the first
appellate court in fact has placed heavy reliance
solely on the kist receipts which in fact had led the
first appellate court to arrive at the conclusion that
the continuous payment of kist would indicate that
the plaintiff was also in possession of the property.
When such divergent findings on fact were available
before the High Court in an appeal under Section
100 of the Civil Procedure Code though
reappreciation of the evidence was not permissible,
except when it is perverse, but it was certainly
open for the High Court to take note of the case
pleaded, evidence tendered, as also the findings
rendered by the two courts which was at variance
with each other and one of the views taken by the
courts below was required to be approved.
Civil Appeal No.2066/2012 DD 02.09.2021
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15. In view of the above, although the
counsel for the appellant may be technically correct
in his submission that the High Court erred in not
clearly answering the question of law framed by it
under Section 100, CPC, the High Court was still
within its jurisdiction to determine whether the
reading of the evidence on record by one of the
Courts below was perverse. Question of law for
consideration will not arise in abstract but in all
cases will emerge from the facts peculiar to that
case and there cannot be a strait jacket formula.
Therefore, merely because the High Court refers to
certain factual aspects in the case to raise and
conclude on the question of law, the same does not
mean that the factual aspect and evidence has
been reappreciated. As already noted, the divergent
view of the courts below on the same set of facts
was available before the High Court. From the
judgment rendered by the trial court, the nature of
contentions as noted would disclose that the
plaintiff except contending that the suit schedule
property was being enjoyed for the past 40 years
by paying kist has not in fact referred to the
manner in which such right had accrued so as to
suggest or indicate unassailable right to be in
physical possession. On the other hand, the
defendant while denying the right of the plaintiff to
claim the relief had traced the manner in which the
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property had devolved and the right which is being
claimed by the defendant. It was also contended
that the defendant No.1 is residing in the thatched
house which is on the property. It is in that light
the trial court having taken note of the assertions
made by the defendant No.1 and lack of evidence
by the plaintiff had arrived at the conclusion that
the possession of the plaintiff as claimed cannot be
accepted and that the plaintiff has not sought for
declaration despite the defendant having disputed
the claim of the plaintiff."
30. Applying the aforementioned principles to the
facts and circumstances of the case, Trial Court has
misconstrued the factual aspects on record and discarded
the evidence of the PW.3 and ignored Ex.P.17 and Ex.P.18
and thereby erroneously dismissed the suit of the plaintiff,
however, the First Appellate Court, after re-appreciating
the material on record set-aside the judgment and decree
of the Trial Court. This Court under Section 100 of CPC can
interfere, if the conclusion drawn by the First Appellate
Court was erroneous and contrary to the mandatory
provisions of law, however, in the present factual aspects
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on record, the First Appellate Court rightly interfered with
the finding of fact recorded by the Trial Court, which
requires to be confirmed by decreeing the suit of the
plaintiff and as such, I pass the following order :
i) Appeal is dismissed.
ii) The Judgment and decree dated
29.04.2014 in R.A.No.30/2011 on the file
of Principal Senior Civil Judge and CJM,
Bidar is hereby confirmed.
iii) The Judgment and decree dated
30.06.2011 in O.S.No.11/1987 on the file
of Principal Civil Judge, Bidar is hereby
set-aside and suit of the plaintiff is
decreed accordingly.
Sd/-
JUDGE
SN
