Karnataka High Court

The Karnataka State Road vs Nagaraju on 25 July, 2024

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                                                   NC: 2024:KHC:29225
                                                 WP No. 14429 of 2015




            IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                    DATED THIS THE 25TH DAY OF JULY, 2024

                                      BEFORE
             THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
                  WRIT PETITION NO. 14429 OF 2015 (GM-CPC)
            BETWEEN:

            1.    THE KARNATAKA STATE ROAD
                  TRANSPORT CORPORATION,
                  KENGAL HANUMANTHAIHA ROAD,
                  BANGALORE
                  REPRESENTED BY ITS
                  GENERAL MANAGER.
                  THROUGH ITS CHIEF
                  LAW OFFICER

            2.    THE TRAFFIC CONTROLLER
                  K.S.R.T.C.
                  GOVERNMENT BUS STAND,
                  IJOOR, RAMANGARAM -571 511
                  THROUGH ITS
                  CHIEF LAW OFFICER
                                                         ...PETITIONERS
            (BY SRI. P.D.SURANA, ADVOCATE)
Digitally
signed by
MEGHA       AND:
MOHAN       1.    NAGARAJU
Location:         S/O LATE KEMPAIAH,
HIGH              AGED ABOUT 53 YEARS,
COURT OF
KARNATAKA         SINCE DEAD OF LR'S

            1A.   SMT.AMBUJA
                  W/O LATE K.NAGARAJAIAH
                  AGED ABOUT 48 YEARS

            1B.   SRI.SANTOSH KUMAR
                  S/O.LATE K.NAGARAJAIAH
                  AGED ABOUT 32 YEARS

            1C.   SRI.PRADEEP Y.N.
                  S/O.LATE K.NAGARAJAIAH
                  AGED ABOUT 29 YEARS
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                                      NC: 2024:KHC:29225
                                    WP No. 14429 of 2015




1D. MISS.Y.N.PAVITHRA
    D/O LATE K.NAGARAJAIAH
    AGED ABOUT 28 YEARS

     ALL ARE R/A YERAHALLI GRAMA
     KOOTAGAL HOBLI
     RAMANAGARA TALUK
     RAMANAGARA DISTRICT-562 159

2.   SMT. PUTTACHANNAMMA
     W/O LATE KEMPAIAH,
     AGED ABOUT 73 YEARS,
     RESIDENT OF YERERNAHALLI,
     VILLAGE AND POST,
     KOOTAGAL HOBLI,
     RAMANAGARA TALUK-562 159

3.   SMT.CHANDRAMMA
     D/O LATE DEMPAIAH AND
     W/O LATE VENKATAPPA,
     AGED ABOUT 55 YEARS,
     MALLUHOLA, MANGALAWARPET
     CHANNAPATNA TOWN
     RAMANAGARAM-571 501

4.   SMT.RAJAMMA
     D/O LATE KEMPAIAH,
     AND
     W/O THIMMAPPA,
     AGED ABOUT 51 YEARS,
     HOSADODDI, AJJANAHALLI POST
     MOODABAL HOBLI, MAGADI TALUK
     RAMANAGARA

5.   SMT.RENUKA
     D/O LATE KEMPAIAH,
     W/O MALAVEGOWDA,
     AGED ABOUT 49 YEARS,
     IJOOR, RAMANAGARAM

6.   SMT.SHOBHA
     D/O LATE KEMPAIAH
     W/O H.P.JAYARAM,
     AGED ABOUT 48 YEARS,
     IJOOR, RAMANAGARAM
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                                               NC: 2024:KHC:29225
                                             WP No. 14429 of 2015




7.   SMT.SUDHA
     D/O LATE KEMPAIAH,
     W/O RAGHU
     AGED ABOUT 44 YEARAS,
     IJOOR, RAMAANAGARAM TOWN.
                                                   ...RESPONDENTS

(BY SRI.NARAYAN MAYYER, ADVOCATE FOR R1(A) TO R1(D)
   R2- SERVED AND UNREPRESENTED
   R4- SERVED AND UNREPRESENTED
   V/O/D 23/7/2024, NOTICE TO R3, R5-R7 IS HELD SUFFICIENT)

     THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH/SET ASIDE THE
ORDER DATED:17.11.2014 MADE IN O.S.572/2007 ON I.A.FILED
U/O 26 RULE 9 CPC (BY THE PLAINTIFF) ON THE FILE OF THE COURT
OF ADDL. SENIOR CIVIL JUDGE, RAMANAGARA AVAILABLE IN
ANNEXURE-E.

     THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:

CORAM:       HON'BLE SMT. JUSTICE LALITHA KANNEGANTI


                          ORAL ORDER

(PER: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI)

Aggrieved by the order passed in the I.A. filed by the

plaintiffs in O.S.No.572/2007 dated 17.11.2014 by the

Additional Senior Civil Judge, Ramanagara, the petitioners are

before this Court.

2. The petitioners in this writ petition are the defendants

in the suit. The plaintiffs had filed the suit in O.S.No.572/2007

seeking declaration and injunction. Before filing the said suit,

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they had filed O.S.No.134/1991 seeking injunction against the

very same defendants. O.S.No.134/1991 was dismissed on

29.07.1998. Thereafter, the matter was carried in the second

appeal in RSA No.846/2006 and the same was dismissed by

this Court. This Court had given liberty to the plaintiffs to file

suit for declaration. Now, the present suit in O.S.No.572/2007

came to be filed. As per the plaint, the cause of action for filing

the suit arose on 21.12.2006 when the High Court gave the

liberty to file comprehensive suit for declaration and permanent

injunction and subsequently, when the defendants denied the

right and possession of the plaintiff of the suit schedule

property at Ramanagara within the jurisdiction of the Court.

3. When the matter is coming up for the cross-

examination of the defendants, the present application is filed

seeking appointment of Court Commissioner. It is stated that

the contention of the KSRTC is that they have acquired 27 ½

guntas in Sy.No.19 in the year 1963 and also subsequently,

acquired 38 guntas in Sy.No.19/A and they are in possession of

38 guntas as well as 27 ½ guntas. It is stated that the

defendants have been denying the same. Hence, it is necessary

to appoint ADLR as Court Commissioner to measure the suit

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schedule property and also property of the defendants and its

boundaries and to submit a report. It is stated that the

defendants do not know the exact property or where it is

acquired, but simply by misusing the official power is trying to

encroach the suit schedule property by denying the rights. As

such, it is necessary to look at the properties of defendants as

well as the suit schedule property and the property of others in

Sy.No.19 as the property of the defendants has been

encroached towards western side by some third persons.

4. It is the case of the plaintiffs that the defendants are

trying to grab the suit schedule property for wrongful gain. For

that, the defendants have filed their objections wherein they

have referred to the appointment of Court Commissioner in the

earlier suit and also produced the sketch. According to them,

the plaint boundaries in the said suit did not tally with the

property acquired by the KSRTC and the Court had held that

the plaintiff could not prove his possession. Accordingly, the

suit was dismissed. Now, as a Court Commissioner is already

appointed in the earlier suit, again they cannot seek such a

plea in the present suit. It is the case of the defendant that the

appointment of the Court Commissioner is not necessary.

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5. The trial Court by order impugned had allowed the

application. While allowing the application, the trial Court had

observed that the Court Commissioner needs to be appointed in

this case, specifically, when there is a boundary dispute and

also regarding the acquired property. The trial Court had

observed that it is the contention of the plaintiffs that if the

report of the Commissioner is given before the Court, he could

cross-examine DW1 effectively to elicit the truth and it is a fit

case for appointment of a Court Commissioner and the Court

has also further taken a view that unless and until the report of

the Commissioner is given and the Commissioner is examined

personally, the said evidence cannot be considered. If the

counsel for the plaintiffs had not disputed the Commissioner's

report given in the other suit, things would have been different

and there is scope of marking the Commissioner's report

through the author of that report. But in the present set of

facts, the appointment of Court Commissioner is necessary and

the application deserves to be allowed and accordingly, the trial

Court had allowed the application.

6. Learned counsel appearing for the petitioners submits

that in a suit for injunction which came to be dismissed and

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confirmed by this Court in RSA, wherein a Court Commissioner

is appointed and basing on the said Court Commissioner's

report, the Court had come to the conclusion that the plaintiffs

therein, i.e., the respondents herein is not in possession of the

property. Once the Court Commissioner is appointed, basing on

the Commissioner's report, when the matter has reached up to

the High Court and the findings are confirmed, there is no

necessity to appoint the Court Commissioner. He submits that

the Court without considering the said aspect had appointed

ADLR as Court Commissioner. He submits that the said order

passed by the Court is without application of mind, contrary to

law and the same has to be set aside.

7. Learned counsel for the respondent submits that there

is no dispute about the fact that the suit for injunction is

dismissed and the same had attainted finality. This Court in the

RSA had given liberty to the plaintiff to file a comprehensive

suit for declaration and injunction. It is the specific case of the

plaintiffs that the defendants have encroached the land that is

purchased by the plaintiff on 13.02.1983. It is further

submitted that earlier when the land was surveyed, the Court

Commissioner was not examined either by the plaintiffs or by

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the defendants. Without examining him, the Court cannot rely

on the report filed by the Commissioner. He submits that in a

suit for declaration, when it is a comprehensive suit for

declaration injunction just because the suit for injunction is

dismissed, on that ground the application cannot be dismissed

and the trial Court had rightly allowed the application. He had

relied on the judgment of the co-ordinate Bench of this Court in

the case of Sri.Shadaksharappa Vs. Kumari Vijayalaxmi

and others1, wherein the Court in para No.20 of the said

judgment had elaborated and summarized broad guidelines

that can be followed while exercising the power under Order

XXVI Rule 9 and 10 of CPC.

"a) The power of the court to appoint the Commissioner for local inspection or any other purpose provided in Order XXVI of the Code is discretionary. However, the said discretion is guided by not only Order XXVI Rules 9 and 10 of the Code but also the provisions of the Indian Evidence Act dealing with relevancy, expert opinion, and the burden of proof.

b) The discretion to exercise the power under Order XXVI of the Code of Civil Procedure is not governed by the form of the suit. The Court can appoint the Commissioner in any kind of suit, provided a report of

W.P.No.201274/2022 dated 24.01.2023

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the Commissioner under Order XXVI of the Code is necessary for elucidating the matter in dispute.

c) The issue framed in the suit, or where the issue is not yet framed, the pleadings which give rise to issue/s and the documents placed on record would be a guide to ascertain the 'matter in dispute' referred in Order XXVI Rule 9 of the Code.

d) The power to appoint the Commissioner for local inspection or scientific investigation/expert's opinion can be invoked even suo motu by the court, without there being an application by either of the parties, if the Court deems it appropriate to secure the report of the Commissioner. However, the appropriate reasons must precede the order appointing the Commissioner. And such orders are to be passed only after hearing the parties before it.

e) The Commissioner can be appointed either before or after the commencement of the trial. However having due regard to the nature of the controversy, if the report is essential for elucidating the matter in dispute, it is desirable to have the local inspection before the commencement of trial as it is likely to reduce the volume of oral evidence in a given case.

f) In addition to the report, having regard to Order XXVI Rule 10 of the Code, the evidence taken by Commissioner reduced in writing can also be taken on record and examined by the court while considering the report.

g) The report of the Commissioner is not conclusive proof of what is stated therein. The report is only a

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piece of evidence, that the Court has to examine based on the other materials on record.

h) Report of the Commissioner need not be formally marked for being considered as evidence. Once submitted to the court, the report is part of the court record and can be looked into by the court.

i) The court may in its discretion examine the Commissioner on any matter concerning the report. There is no compulsion to examine the Commissioner. However, if the objection is filed to the report, and the party filing objection seeks to examine the Commissioner then the Commissioner should be examined. In either case, once the Commissioner is examined, the court having due regard to the evidence, may reject or accept the report in its entirety or in part, provided there are materials to justify such a finding on the report. In appropriate cases, the merit of the report can be considered at the final hearing. While considering the report at the final hearing, if the court finds that the report is erroneous and fresh commission is required, the court may pass appropriate order in this regard.

j) If the court is dissatisfied with the 'proceedings of the Commissioner' as found in Order XXVI Rule 10 (3), it may direct further inquiry depending on the facts. As a matter of caution, it is clarified that examination and order under order XXVI 10 (3) are only to verify if the Commissioner has followed the proper procedure while carrying out his task.

k) The person who has filed an objection to the report has the option of cross-examining the Commissioner to substantiate his objections or even without cross-

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examination, it is open to establish that the report is inadmissible in evidence."

Learned counsel submits that it is a fit case for appointment of

Court Commissioner, the trial Court had rightly allowed the

application and the writ petition is liable to be dismissed.

8. Having heard the learned counsels on either side,

perused the entire material on record. The admitted facts in

this case are that the earlier suit for injunction was dismissed.

The ADLR was appointed as Court Commissioner and when

they wanted the second Commissioner to be appointed, the

said appeal was rejected and in the second appeal, this Court

had given liberty to the plaintiff to file comprehensive suit for

declaration. The findings of the Court Commissioner are that

the plaintiff is not in possession of the property. The case of the

respective parties is that according to the defendants, the

property was acquired in the year 1977 and his vendor has also

received the compensation. Now, according to the plaintiff, he

has purchased the property from the vendor on 13.02.1983 by

way of registered sale deed. According to the defendant, his

vendor has no other property but the suit schedule property

which is already acquired by the defendants. When the Court

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Commissioner is already appointed and that suit for injunction

has attained finality, there is no requirement to appoint Court

Commissioner in this suit.

9. In the considered opinion of this Court, the

appointment of Court Commissioner is necessary for the

following reasons:

The suit is at the stage of defendant's cross-

examination. No doubt that earlier the suit for injunction

was dismissed. Now, the plaintiff has filed comprehensive

suit for declaration. The disputes between the parties

have to be decided and there should be a proper

adjudication of the disputes between the parties. The

whole dispute is about what is the land acquired and what

is the land the plaintiffs are claiming. If the land that is

acquired is what the plaintiffs are claiming, they will not

be entitled for any relief and the suit for declaration

would be dismissed for this the appointment of advocate

commissioner is very much required. As the latest

acquisition of the land is in the year 1977, if the Court

Commissioner is appointed and if the report is placed

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before the Court, the Court will be in an advantageous

position to decide the disputes between the parties.

According to the defendants, they are in possession of

the property. They also had an advantage of judgment

and decree which is against the plaintiff. Now, in a suit

for declaration if all these materials are placed before the

Court, it would be easy for the Court to decide the

dispute between the parties and no prejudice would be

caused to the defendant.

10. Hence, in the light of the above discussion, considered

opinion of this Court, the trial Court had rightly allowed the

application. Accordingly, the following: