Karnataka High Court
Smt Gangamma vs Sri Seshagiri on 7 March, 2024
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RFA No. 968 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 968 OF 2014 (DEC/POS)
BETWEEN:
SMT. GANGAMMA,
W/O LATE VENKATAIAH,
AGED ABOUT 61 YEARS,
SHOWN AS R/AT SITE NO.10,
BBMP NO.46, I MAIN,
KAREKALLU COLONY,
KAMAKSHIPALYA,
BANGALORE-560 079.
AND R/AT NO.391/315/2
(OLD NO.127/131), NOW NEW
NO.143/131), KAMAKSHIPALYA
BANGALORE-560 079.
...APPELLANT
(BY SRI JAYAPRAKASH R V & SRI M MUNIRAJU, ADVOCATES)
Digitally AND:
signed by
NANDINI R
Location: SRI SESHAGIRI,
High Court of SINCE DECEASED BY HIS LRS
Karnataka
1(a). SMT. KASTURI BAI,
W/O LATE SESHAGIRI,
AGED ABOUT 52 YEARS.
1(b). S. SRINIVASAMURTHY,
S/O LATE SESHAGIRI,
AGED ABOUT 36 YEARS.
1(c). S.RAVIKUMAR,
S/O LATE SESHAGIRI,
AGED ABOUT 35 YEARS.
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RFA No. 968 of 2014
ALL ARE R/AT DOOR NO.46/1,
4TH CROSS, II MAIN, VIJAYANAGAR,
BANGALORE-560 040.
...RESPONDENTS
(BY SRI KARTHIK, ADVOCATE FOR R1 [a TO c])
THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 21.3.2014 PASSED IN
O.S.NO.1033/2012 ON THE FILE OF THE XII ADDL. CITY CIVIL
AND SESSIONS JUDGE, (CCH NO.27) BANGALORE, DECREEING
THE SUIT FOR DECLARATION, POSSESSION, DAMAGES.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
23.02.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the appellant/defendant No.1
against the judgment and decree dated 21.3.2014 passed
in O.S.No.1033/2012 by the learned XII Additional City
Civil and Sessions Judge, (CCH No.27) Bangalore, whereby
the suit of the plaintiff for declaration, possession and
damages came to be decreed.
2. The parties would be referred to as per their
ranks before the trial Court for the sake of convenience.
3. Brief facts of the case of the plaintiff are as
below:
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The plaintiff (now represented by his LRs)
approached the trial Court seeking a declaration of title
and consequential relief of possession against the
defendants. The plaintiff contended that he is the absolute
owner of the house property bearing Site No.10, BBMP
No.46,1st Main, Karekallu Colony, Kamakshipalya,
Bangalore-560079, measuring East to West 15 feet and
North to South 27 feet bounded on: East by: Road; West
by: Road; North by: House of Krishnappa and South by:
House of Munimaraiah.
4. It was contended that plaintiff acquired the title
over the suit schedule property by virtue of Hakku Patra
(Title Deed) issued by the Government of Karnataka under
'Ashraya Scheme' and also through a Possession
Certificate No.16250 dated 28-10-1992. Earlier, in the
year 1980, the plaintiff acquired the suit schedule property
from one Venkatappa son of Thimmaiah under an
Agreement of Sale dated 20-10-1980 for a consideration.
The said Venkatappa was in unauthorized occupation of
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the property, who put the plaintiff in possession and
enjoyment and since then plaintiff is in actual possession
and enjoyment of the same. Later, he constructed a RCC
structured residential building after obtaining the
necessary licence from the Panchayat. He is paying the
taxes, has obtained electricity connection and had availed
the loan from ITI Employees Union Co-operative Society,
for construction of the house. Further, it is the case of the
plaintiff that the husband of defendant No.1, who was
none else than the brother of the plaintiff approached him
and sought permission to stay in the suit schedule
property along with his mother Yellamma and other family
members on a monthly rent of Rs.150/-. It was further
contended that when the plaintiff wanted the suit
schedule property for his personal use and occupation and
requested his brother Venkataiah to vacate the suit
schedule property and when it was refused, he filed a HRC
Petition No.1679/1990 before Small Causes Court,
Bangalore, for eviction. The said Court passed an exparte
order on 05-1-1991 and in pursuance to the decree,
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obtained the possession by executing the same. The said
Venkataiah and defendant No.2 filed Misc.No.189/1991 to
set aside the decree of eviction and the same came to be
allowed and as such, HRC No.1679/1990 was reopened. A
revision against the said order before this Court in
CRP No.886/1993 also came to be dismissed and later, it
was confirmed by the Hon'ble Supreme Court in SLP (C)
No.7336/1994. An expeditious disposal of the HRC matter
was directed by the Apex Court and thereafter, HRC
No.1679/1990 came to be dismissed on 13-1-1995 since
there was no jural relationship of landlord and tenant
between plaintiff and Venkataiah. On a request by the
mother of the plaintiff i.e., Yellamma and also the
defendants, the plaintiff permitted his mother Yellamma
and the defendants to reside in the suit schedule property
on humanitarian consideration, but with the condition that
it would be only during the life time of Yellamma. The
mother of plaintiff and Venkataiah died on 13-10-2011. In
the meanwhile, Venkataiah also died and the defendants
who are the wife and son of Venkataiah did not vacate the
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suit schedule property and therefore, he was constrained
to file the suit for declaration of his title and for
consequential possession of the suit schedule property.
5. The defendants appeared before the trial Court
through their counsel and filed their written statement.
6. Defendants contended that during the life time
of Venkataiah he was the absolute owner of the property
bearing No.391/315/2 (Old No.127/131) New No. 143/131
situated at Kamakshipalya village, Yeshwanthapur Hobli,
Bangalore North Taluk, Saneguruvanahalli Group
Panchayat and he had entered into a sale agreement with
the previous owner in respect of a vacant site and he
came in possession on 2-1-1981. He had agreed to
purchase the same for a total consideration of Rs.2,700/-
and paid a sum of Rs.1,500/- as an advance and agreed to
pay the balance by 6-7-1990. After receiving the entire
sale consideration, the previous owner Venkatesh son of
Venkatappa executed a GPA and affidavit on 6-7-1990 in
favour of Venkataiah. Thus, Venkataiah along with his
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mother Yellamma and the defendants lived in the said
property. The defendants also contended that the plaintiff
and Venkataiah lived together with their mother at House
No.3, D Street, Gopalpura, Bangalore, and their another
brother G.Gangadhar had purchased an adjacent site in
the year 1985-86 and constructed a residential premises.
During the same period, Venkataiah also constructed a
building on the property held by him with his own funds
and in the year 1987, he shifted to the said house with his
mother Yellamma and the defendants. The plaintiff shifted
his family to his father-in-law's house at Vijayanagar.
Venkataiah died in the year 1994, living behind the
defendants and three daughters as his legal heirs. Thus,
the defendants are in possession of the property bearing
Old No.143/131, New No.127/131, which was again
numbered as 391/315-2 at Kamakshipalya, measuring
East to West 20 feet; North to South 12 feet, bounded by
road on East and North; property of Kempaiah on the
West, property of Ramakka on the South. They contended
that the plaintiff is not the owner of the suit schedule
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property and the suit schedule property which is in
possession of the defendants is different from the property
over which the plaintiff is claiming ownership.
7. On the basis of the above pleadings, the trial
Court framed the following issues:
1. Whether the plaintiff proves his title over the suit
property?
2. Whether the plaintiff proves that the defendants
are in permission possession of the suit schedule
property?
3. Whether the plaintiff proves cause of action?
4. Whether the plaintiff proves that the defendants
are liable to pay damages at Rs.5000/- per month
from January 2012?
5. Whether the defendants prove that the plaintiff
has created documents and they are the owners
of the suit schedule property?
6. Whether the suit is in the time?
7. Whether the suit is not maintainable for want of
necessary parties?
8. What order or decree?
8. In order to prove his case, plaintiff examined
himself as PW1 and Exhibits P1 to P25 were marked in
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evidence. Defendant No.1 examined herself as DW1 and
Exhibits D1 to D4 were marked in evidence.
9. After hearing both the sides, the trial Court
answered issue Nos. 1 to 3 and 6 in the affirmative, issue
No.4 partly in the affirmative, issue Nos. 5 and 7 in the
negative and by the impugned judgment, decreed the suit
of the plaintiff.
10. Being aggrieved by the impugned judgment and
decree, defendant No.1 has presented this appeal .
11. On issuance of notice, respondent/plaintiff
appeared before this Court through his counsel. During
the pendency of this appeal, respondent/plaintiff died and
his LRs were brought on record.
12. On admitting the appeal, the trial Court records
have been secured and heard the arguments by both the
sides.
13. During the pendency of this Appeal, an interim
order was passed by this Court staying the impugned
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judgment subject to condition that the appellant herein
has to deposit a sum of Rs.1,000/- per month.
14. The learned counsel for the appellant/defendant
No.1 would submit that the property in HRC Petition and
the present suit are not one and the same. It is submitted
that the description in Ex.P1-Hakku Patra, is different than
the schedule of the property in the HRC proceedings.
Therefore, the plaintiff has to prove that the property in
Ex.P1 and property in HRC proceedings are one and the
same. It is pointed out that the boundaries and
measurement of the property are totally different and
therefore, the suit should have been dismissed by the trial
Court. He also points out that PW1 admits in the cross-
examination that he is an employee of the Central
Government and therefore, he obtaining the house under
the Ashraya scheme is very much doubtful. It is further
submitted that the trial Court comes to the conclusion that
the properties are different and even then it decreed the
suit. The learned counsel for the appellant/defendant No.1
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has taken this Court through the entire evidence and
demonstrated how the description of the suit schedule
property is in variance.
15. Per contra, learned counsel appearing for the
respondent/plaintiff (now represented by LRs) contended
that the plaintiff has produced Hakku Patra as a title
document which is not rebutted by any cogent evidence.
It is submitted that the defendants have not produced any
document to show their ownership, but on the other hand,
the plaintiff, has produced voluminous material to show
that the plaintiff after obtaining the Hakku Patra,
constructed a building on the suit schedule property with
the approval of the Building plan by the concerned
authority and has been continuously paying the tax to the
Municipal Authority. He had availed the loan by
mortgaging the suit schedule property to the Co-operative
Society and the encumbrance Certificates also depict the
same. It is submitted that the defendants have not
rebutted the evidence of the plaintiff and except the
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General Power of Attorney, they have not produced any
document in support of their case. Therefore, he supports
the view taken by the trial Court and sought for dismissal
of the appeal.
16. During the pendency of this appeal, the
respondents have filed an application in IA No.1/2019
under Order 41 Rule 27 of CPC, seeking to produce certain
additional documents (written statement filed by the
defendant in HRC Proceedings) contending that the said
document is essential for the just adjudication of the
matter. So also, the respondents have filed an application
under Order 26 Rule 9 of CPC seeking to appoint the
Court Commissioner to conduct local inspection, scrutinize
revenue records (old and new) and consequently, to
furnish report of the suit property which is situated at Site
No.10, BBMP No.46, 1st Main, Karekallu Colony,
Kamakshipalya, Bangalore-79.
17. These applications filed by the respondents are
opposed by appellant/defendant No.1 contending that the
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additional documents sought to be produced are not
relevant at this juncture and the contentions taken up by
the defendants in HRC proceeding is already part of the
records in the form of a finding given by the HRC Court. It
is contended that the appointment of the Court
Commissioner is not at all required since the burden of
proving that the suit schedule property and the property
which was the subject matter of the HRC proceeding was
on the plaintiff. When the plaintiff is seeking declaration
of title over the suit schedule property, it is his duty to
establish that the documents produced by him pertain to
the property which is occupied by the defendants and
those documents alone will determine the title of the
property in the absence of the report of the Court
Commissioner.
18. After hearing the arguments by learned
counsels for both the sides, the points that arise for
consideration are as below:
(i) Whether the plaintiff/respondents
proved that the property occupied by the
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defendants in pursuance to the order in HRC
proceedings is the same property which was
granted to him by the Government under Ex.P1
and as such, he has proved title to the suit
schedule property?
(ii) Whether the plaintiff/respondents are
entitled for the relief sought in the plaint?
(iii) Whether the appointment of the Court
Commissioner is necessary for ascertaining suit
schedule property?
(iv) Whether the application for additional
evidence filed under order 41 Rule 27 of CPC in IA
No.1/2019 by respondents deserves to be allowed?
19. It is relevant to note that the suit of the plaintiff
who has approached the Court seeking declaration that
the suit schedule property mentioned in the plaint is the
property which was the subject matter of HRC proceedings
earlier and the petition seeking eviction of defendants
from the suit schedule property came to be dismissed for
want of the proof of the relationship of the landlord and
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the tenant. Therefore, when the plaintiff contend that the
property which is the subject matter of the HRC
proceedings and the present suit schedule property are
one and the same, the burden is on him to prove the
same. All along, it is his contention that the property was
in his possession and he constructed a structure in the
same. It is the specific contention in the plaint that, the
suit schedule property was the subject matter of HRC
proceedings which was decreed earlier and later after the
contest, the petition came to be dismissed. Therefore, it is
essential for the plaintiff to establish that the plaintiff is
the holder of the title in respect of the suit schedule
property, which was the subject matter of the HRC
proceedings and later, the possession of the plaintiff as
well as title is regularized by way of issuance of Hakku
patra by the Government as per Ex.P1. This contention of
the plaintiff being clear and categorical in plaint, the
burden of proving the same is also on him.
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Re.Point No.1 and 2:
20. It is the case of the plaintiff that the suit
schedule property is, "site No.10 BBMP No.46, situated at 1st
Main, Karekalu Colony, Kamakshipalya, Bangalore-560 079,
measuring East-West 15 ft., North-South 27 ft., and it is
bounded by road on East and West, house of Krishnappa on
North and house of Munimaraiah on South". The plaint avers
that the above suit schedule property was acquired by the
plaintiff from one Venkatappa, son of Thimmaiah by virtue
of an agreement of sale deed dated 20-10-1980 for a
consideration. The said Venkatappa was in unauthorized
occupation of the property. Thereafter, the plaintiff being
owner had approached the Village Panchayat,
Sanegoravanahlli who have considered the property of the
plaintiff and assessed the property tax. Later he obtained
licence from the Administrator of the village panchayat
and constructed a pucca house. Thereafter, plaintiff has
obtained electricity connection from BESCOM on 8-1-1987.
He had also raised loan from ITI Employees Union Co-
operative Credit Society Limited, Bangalore, for the
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purpose of construction of the house. Then the
Tahasildar, Bangalore North Taluk, adopted the suit
schedule property allotted to plaintiff under 'Ashraya
Scheme' by regularizing his unauthorized occupation and
issued Hakku Patra which is at Ex.P1. The averments of
the plaintiff in paras 7,8, and 9 are clear in this regard. It
is the case of the plaintiff that his brother Venkataiah
i.e. the husband of defendant No.1 approached the
plaintiff along with his mother Yellamma as they have no
accommodation and therefore, the plaintiff permitted them
to stay in the suit schedule property along with his family
members on a monthly rent of Rs.150/-. Therefore, it is
contended that the defendants were in permissible
possession of the suit schedule property and later, they
did not vacate the premises and as such, he was
constrained to file the petition in HRC No.1679/1990 which
ended in a decree and later it was taken up before this
Court and it was also taken up further in SLP
No.7336/1994, where the trial Court was directed to afford
an opportunity the defendants and ultimately, HRC petition
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ended in dismissal, on the ground that the jural
relationship of landlord and tenant was not established.
21. Thus, it is the specific case of the plaintiff that
the suit schedule property which is described as above was
the subject matter of the HRC proceedings and that the
defendants were in permissive possession and enjoyment
of the property.
22. Per contra, the defendants contend that the suit
schedule property is as not described by the plaintiff in the
plaint. They specifically contended that the subject matter
of the suit in the HRC petition was totally different one and
therefore, the plaintiff is trying to make a case for him by
saying that the property in HRC proceedings as well as in
the present suit are one and the same. In the guise of
allotment letter issued by Tahasildar as per Ex.P1, the
plaintiff is trying to evict the defendants from the property
which they held as mentioned in the HRC petition. It is the
specific case of the defendants that the property which
they are in occupation is as described in HRC proceedings,
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but not as mentioned in the plaint. Therefore, the plaintiff
is required to establish that the property which was
described in the HRC proceedings is the same property,
which is now the subject matter of the suit.
23. In this regard, it would be proper to refer to the
documents produced by the plaintiff. The plaint describes
the suit schedule property as "Site No.10, measuring 15 ft.
East to West and 27 ft. North to South, BBMP No.46". The
written statement of the defendants contend that the
property which they are in occupation is, "property bearing
Old No.143/ 131, later it was numbered as 127/131 and now it
bears No.391/315/2 and measuring 20 feet East to West and
12 feet North to South." Thus, the measurements are also
different. Ex.P2, tax assessment extract for the year 1989-
90 shows that the property claimed by the plaintiff is,
"403/A/315/2". The plaintiff has relied on the building
permission dated 30-1-1993, by contending that during
the brief possession of the suit schedule property which he
had obtained on the basis of an exparte decree by the
Rent Court, he had constructed the structure. Of course,
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there is no specific pleading that he had constructed the
RCC roofed structure during the interregnum when he was
in possession as per the exparte decree in the HRC
proceedings. It is not in dispute that the defendants were
restored with the possession on the basis of restoration of
the HRC proceeding as per the direction of this Court,
which was confirmed by the Apex Court later. In the
building permission at Ex.P3, the property is described as
'Site No.10'. The Nil encumbrance certificates, which are at
Exs.P13,15 and 16 also show that they are for 'Site No.10
as per Ex.P1'.
24. Ex.P1, the Hakku patra issued by Tahasildar
dated 20-10-1992 describes the suit schedule property as
the one measuring "15 feet East to West and 27 feet North to
South and is bounded by; Road on the East and West, House of
Krishnappa on the North and house of Munimaraiah on the
South" which is in consonance with the description of the
property mentioned in the plaint.
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25. Ex.P19, which is the order of the Rent Court
shows that the property was described as "the one bearing
No.391/315/2 and later numbered as 127/131". The
boundaries were described as "East by: the road, West by:
Private property, North by: Private property and South by:
Road ". It is evident that the order passed by the Rent
Court as per Ex.P19, do not tally with the numbers as well
as the boundaries mentioned in the plaint. Thus, it is
evident that the property which was described before the
Rent Court, of which the plaintiff had claimed the
possession is totally different.
26. Ex.D1, which is the General Power of Attorney
on the basis of which, the defendants are claiming that
they are in possession of the property describe the
property as "measuring 20 feet x 12 feet, and is bearing No.
138/131 and later numbered as 128/131 and is bounded by
East by: Road, West by: Property of Kempaiah, North by: Road
and South by: Property of Ramakka". Evidently, this
document tallies with the description as mentioned in
Ex.P19 which is the order passed by the Rent Court. The
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affidavit filed in support of Ex.D1 by the Vendor also
describes the similar number, measurement and the
boundaries.
27. The other documents relied by the plaintiff are
the Electricity Bills. The said bills which is at Ex.P11 show
that the electricity connection is in the name of the
plaintiff and it pertains to the property bearing
No.391/315/2. It is pertinent to note that the house
numbers were changed on different occasions and when
there were changes are not available before the Court. Of
Course, it is true that electricity bills at Ex.P11 and the
decree of the Rent Court as per Ex.P15, bears similar
house number. It is not in dispute that the plaintiff was in
possession of the said property for a short period when he
was enjoying the decree of the Rent Court, by which, the
defendants were evicted for a short duration. Therefore,
the electricity bill cannot be of much relevance in the
matter.
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28. The above discussions would show that the
description of the suit schedule property as mentioned in
the various documents aforesaid, has variance. For ready
reference, the following table will show the document,
measurement, boundaries and the property number for
comparison;
Document/ Measurement Boundaries
property number
1. Plaint - 15' x 27' E -Road
Plot No. 10, BBMP, EW NS W-Road
46,1st Main Karekal N- House of
Colony Krishnappa
S- House of
Munimaraiah
2. WS- 20' x 12' E-Road
No. 143/131 EW NS W-property of
127/131 Kempaiah
391/315/2 N-Road
S-property of Ramakka
3. Ex.P2 - Tax - -
Assessment
Extract 1989-90
403A/315/2
4. Ex.P3 - Building Site No.10 E-Road
permission dated W-Road
30.01.1993 N-property of
Site No. 10 Krishnappa
S-property of
Munimaraiah
5. Ex-P13 - Letter Site No.10 As per Ex.P1
along with Nil (E-Road
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Encumbrance W-Road
certificates from N- property of
01.04.1980 to Krishnappa
19.01.1993 S-property of
Site No. 10 Munimaraiah)
6. Ex.P1- Hakkupatra 15' x 27' E-Road
28.10.1992 EW NS W-Road
N- Property Krishnappa
S-property
Munimaraiah
7. Ex.P15 & Ex.P16- 15' x 27' E-Road
Nil Encumbrance W-Road
certificates N- property of
19.01.1993 to Krishnappa
23.06.1997 S-property of
Munimaraiah
8. Ex.P19 - HRC - E-Road
Order W-Private Property
391/315/2 N- Private Property
127/131 S-Road
9. Ex-D1- GPA 20' x 12' E-Road
138/131 W-property of
128/131 Kempaiah
13.07.1990 N- Road
S- property of
Ramakka
10 Affidavit 20' x 12' E-Road
13.07.1990 W-Property of
Kempaiah
N- Road
S- Property of
Ramakka
29. The ocular evidence of the plaintiff in this
regard is worth to be examined. PW-1 in his affidavit
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evidence has reiterated the plaint averments. It is his
specific case that, in the year 1980, he purchased suit
schedule property from one Venkatappa son of Thimmaiah
by virtue of an agreement of sale and the said Venkatappa
was in unauthorized occupation. Therefore, he was paying
tax to the Saneguruvanahalli village panchayat and later,
he applied for the allotment of the said property under
Ashraya Scheme which was granted as per Ex.P1. It is his
specific case that the property was assessed for tax and it
was bearing No.315/2. He also admits that the petition
before the Rent Court came to be dismissed for want of
the jural relationship of the landlord and the tenants.
30. In the cross-examination, it is elicited that he
had obtained the construction permission as per Ex.P3. It
was obtained in the year 1993. He also admits that it was
not produced in the HRC proceedings. He denies that the
boundaries in Ex.P3 are not tallying with the boundaries
and site Number of the suit schedule. All along, the
discrepancy in the boundaries of the documents produced
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by him and the description in the suit schedule are put
across to him and he denies that there is any variance
between the boundaries and the measurement of the
property. Thus, it is evident that the discrepancy of the
boundaries and the measurement are specifically put
across to him and he maintains that the description as
mentioned in the petition before the Rent Court and that
of the suit schedule property are one and the same.
Evidently this is not so.
31. Defendant No.1 Gangamma is examined as
DW1. She admits that it may be true that document has
been given by way of Hakku Patra, to some of the sites
situated in survey No.75. The defendants are relying on
Ex.D1 the General Power of attorney executed in their
favour. Of course, this document dated 13-7-1990
describes the suit schedule property as the one mentioned
in HRC proceedings. Nowhere in the cross-examination,
DW1 admits that the suit schedule property i.e., site No.10
is the same as mentioned in the rent proceedings and she
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maintains that they are in possession on the basis of an
independent acquisition through an unauthorized
occupant. She bases her claim on Ex.D1 and the affidavit.
32. Thus, it is evident from the above evidence that
the suit schedule property which is claimed by the plaintiff
in the plaint is not the same one as claimed by him in HRC
No.1679/1990. In other words, the plaintiff is trying to
take possession of the house occupied by the defendants
by depicting the same as the one allotted to him by the
Tahasildar as per Ex.P1.
33. When the above situation is juxtaposed with the
contention of the defendants, it is evident that there is
total change in the description of the property as
mentioned by the plaintiff in HRC proceedings and as in
the present suit. One can accept that the property
numbers as existed in the Panchayat record have
undergone change and therefore, they may not be
tallying. But however, the boundaries and the
measurement of the property are also not tallying to each
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other. In present proceedings, the house property was
bounded by road on East as well as on West and whereas,
in the Rent Court proceedings, it is shown as road on
East and South. This discrepancy cannot be accepted. Not
only that, the measurement as mentioned in Ex.P1 Hakku
Patra, is "15 feet x 27 feet", whereas, the property claimed
by the defendants is measuring "27 feet x 12 feet".
Therefore, there is a total change in the measurement as
well as the boundaries. The fact that the property which
was bound by the Road on East and West when the suit was
filed was the same property which was bound by Road on
East and South in HRC proceedings cannot be
comprehended.
34. Therefore, this Court comes to the conclusion
that the property claimed by the plaintiff in the plaint is
not the property which is occupied by the defendants in
pursuance to the order passed in Execution Petition arising
out of HRC No.1679/1990.
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35. The finding of the trial Court is worth to be
seen. In para No.11, the trial Court observes that, as per
Hakku patra the site measuring 27 feet x 15 feet bearing
site No.10 was the property claimed by the plaintiff. Then
it observes that the Supreme Court directed to surrender
the possession of the property to the defendants and after
adjudication and the defendants got the possession as per
order of the Supreme Court. Evidently, it was the property
as mentioned in the Rent Court proceedings. The trial
Court observes discrepancies in Site Number in para 12 of
its judgment. In para 13, it observes that the defendants
had never attempted to obtain the Hakku patra, in respect
of the site in their possession. The trial Court observes
that DW1 does not know anything about the Hakku patra
and about the Demand Register Extract. Further, the trial
Court observes in para 15 that, the plaintiff had restored
the possession of the suit schedule property to the
defendants.
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36. It is pertinent to note that, the trial Court
comes to the conclusion that respondent/plaintiff has not
filed this suit in respect of the property claimed in HRC
No.1679/1990, but the property as per Hakku patra at
Ex.P1 is granted by the Government to the plaintiff. This
conclusion by the trial Court clearly shows that it
concluded that the properties are different. Further, in
para 16, the trial Court compares the description of the
suit schedule property as well as the property as affirmed
by the defendants in their written statement, and holds
that the property in dispute between the parties is not only
unidentifiable and also different from the documents. This
conclusion is obviously based on the documents which are
appreciated by this Court as stated supra.
37. In para 17 of the impugned judgment, the trial
Court concludes that the land in Survey No.75 within the
limits of Sanegoruvanahalli was a Government land and
after forming sites, site No.10 was allotted to the plaintiff.
Then it says that plaintiff thereby has perfected his title
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and interest over the said site. It is not known on what
basis this observation was made by the trial Court. It
cannot be said that the plaintiff had perfected his title over
the suit schedule property on the basis of Hakku patra,
when the property was totally different one. At the end of
para 17, the trial Court observes that the defendants have
not at all adduced at least probable rebuttal evidence so
as to discard the material evidence adduced by the
plaintiff relevant to the subject matter and on taking into
consideration, inconsistent plea with regard to the subject
matter of the suit as pointed out by the defendants, the
trial Court finds force in the arguments advanced by the
counsel for the plaintiff. Obviously, this is a perverse
finding which is contrary to the evidence available on
record. The trial Court, after noting all the discrepancies in
the boundaries and the measurement as well as the site
numbers/property numbers, comes to the conclusion that
the argument of the plaintiff has force. Obviously, this
conclusion is not sustainable in law. Therefore, point No.1
and 2 are to be answered in the negative.
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Re.Point Nos. 3 and 4:
38. During the course of the arguments, when this
Court wanted to know as to how the plaintiff is
establishing the fact that the property which was involved
in the HRC proceedings and the present suit are one and
the same, apart from relying on the documents which are
already produced, learned counsel for the respondents has
come up with an application under Order 26 Rule 9 of CPC.
In this regard, he submitted that the appointment of the
Court Commissioner would establish the present situation
of the suit schedule property and ascertain its boundaries.
He submits that the Court Commissioner may be
appointed at any stage of the suit and therefore, if a Court
Commissioner is appointed, he can be directed to visit the
suit schedule property, scrutinize the documents which are
available and then to submit a report. In this regard, he
relied on the judgment rendered by the Apex Court in the
case of Pratibha Singh and another Vs. Shanti Devi
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Prasad and another,1. In the said judgment, it is held
as below:
"17. When the suit as to immovable property
has been decreed and the property is not definitely
identified, the defect in the court record caused by
overlooking of provisions contained in Order 7 Rule
3 and Order 20 Rule 3 of the CPC is capable of
being cured. After all a successful plaintiff should
not be deprived of the fruits of decree. Resort can
be had to Section 152 or Section 47 of the CPC
depending on the facts and circumstances of each
case -- which of the two provisions would be more
appropriate, just and convenient to invoke. Being
an inadvertent error, not affecting the merits of the
case, it may be corrected under Section 152 of the
CPC by the court which passed the decree by
supplying the omission. Alternatively, the exact
description of decretal property may be ascertained
by the executing court as a question relating to
execution, discharge or satisfaction of decree within
the meaning of Section 47 CPC. A decree of a
competent court should not, as far as practicable,
be allowed to be defeated on account of an
accidental slip or omission. In the facts and
Civil Appeal Nos.7891-7819/2002 DD 29-11-2022
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circumstances of the present case, we think it
would be more appropriate to invoke Section 47 of
the CPC".
39. Then he relied on the judgment rendered by the
Bombay High Court at Aurangabad, in the case of
Dattatraya Kashinath Mandekar and another Vs.
Changdeo Dagdu Kule and others2. In the said
decision, the decision of the Apex Court in Pratibha
Singh's case has been relied upon, which is also on the
same point. Then he relied on the judgment rendered by
the Apex Court in the case of Government of Goa by its
Chief Secretary Vs. Maria Julieta D'Souza and
others,3 wherein, regarding burden of proof, in para 8 it
was held as below:
"8. On law, the position is as follows. There is a
clear distinction between burden of proof and
standard of proof. This distinction is well-known to
civil as well as criminal practitioners in common law
jurisprudence. What Ms. Ruchira sought to point
out is that the documents relied on by the plaintiff
did not point out the existence of title at all. She is
W.P.NO.1849/2018 DD 15-2-2018)
Civil Appeal No.722/2016 DD 31.01.2024
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NC: 2024:KHC:10446
right to the extent that no single document in itself
concludes title in favour of the plaintiff, but this is
not an issue of burden of proof. This is a matter
relating to the sufficiency of evidence. While
inquiring into whether a fact is proved, the
sufficiency of evidence is to be seen in the context
of standard of proof, which in civil cases is by
preponderance of probability".
40. Then he also relied on the judgment of the Co-
ordinate Bench of this Court in the case of Sri
Shadaksharappa Vs. Kumari Vijayalaxmi and others4,
where the law in respect of the Court Commissioner was
summarized in para 20.
41. Per contra, the learned counsel for the
appellant/defendant No.1 submitted that the primary
burden of proving that the suit schedule property and the
property which was in occupation of the defendants are
one and the same is on the plaintiff. He submits that the
plaintiff in order to claim the property which is in
occupation of the defendants, is trying to make out a case
W.P.No 201274/2022 DD 24-01-2023
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that the said property has been granted to him by the
Government. He submits that the plaintiff wants to get a
declaration about the property which is not at all granted
to him by the Government under Ex.P1. He submits that in
HRC proceedings, the plaintiff trying to evict the
defendants from property which they are in occupation.
After having suffered the dismissal of HRC petition, the
plaintiff has come up with the present suit. He submits
that by depicting the property which is in possession and
enjoyment of the defendants as the property which has
been granted to him by the Government, the plaintiff
wants to seek a declaration and possession. In fact, the
two properties are different and therefore, he submits that
the application for appointment of the Court Commissioner
to ascertain as to whether the suit schedule property and
the property which was the subject matter of the HRC
proceedings are one and the same is not maintainable.
The primary burden of proving the said fact is on the
plaintiff and therefore, the Court Commissioner's report
cannot be of any relevance. When it is the case of the
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plaintiff that the defendants were the tenants and when
the question of tenancy was rejected by the Rent Court,
he has come up with the present suit showing a different
boundaries. Therefore, he submits that the Court
Commissioner cannot be appointed for the purpose of
gathering the evidence and as such, the application is
liable to be rejected.
42. In this regard, he relies on the judgment
rendered by a Co-ordinate Bench of this Court in the case
of Puttappa Vs. Ramappa,5 wherein, it was observed
that, "The Court Commissioner cannot be appointed to find
out as to who is in possession of the property".
43. It is trite law that the appointment of the Court
Commissioner is for the purpose of elucidating the
controversial aspects in the lis. A co-ordinate Bench of this
Court has stated in Sri Shadaksharappa Vs. Kumari
Vijayalaxmi and others referred supra, lays down that
the appointment of the Court Commissioner for local
AIR 1996 Karnataka 257
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NC: 2024:KHC:10446
inspection is indeed to secure the evidence and the same
is not only permissible but also desirable in certain cases.
The various circumstances under which the Court
Commissioner may be appointed was culled out in para 20
of its judgment, which are as below:
"20. In the backdrop of the discussions made
above, this Court cannot lose sight of the fact that
in a large number of suits before the Trial Court,
the applications are filed for the appointment of a
Commissioner. In other words, this is one of the
frequently invoked provisions of the Code. For this
reason, this Court deems it desirable to summarise
the broad guidelines that can be followed while
exercising the power under Order XXVI Rules 9 and
10 of the Code of Civil Procedure.
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
- 39 -
NC: 2024:KHC:10446
governed by the form of the suit. The Court can
appoint the Commissioner in any kind of suit,
provided a report of 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
- 40 -
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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 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
- 41 -
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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- examination, it is open to establish
that the report is inadmissible in evidence."
44. It is pertinent to note that, if the controversy is
in respect of the boundaries and there is need for securing
certain evidence or to elucidate the contentious issues
through an expert, the Court Commissioner may be
appointed. In the case on hand, the plaintiff had
- 42 -
NC: 2024:KHC:10446
contended certain boundaries in HRC No.1679/1990. The
matter had reached upto the Supreme Court and
ultimately, it ended in dismissal on the ground that there
is no such relationship of landlord and tenant. It is also
relevant to note that the present suit is filed contending
that the property involved in HRC No.1679/1990 and the
property in this suit are one and the same. However, there
is a substantive difference in respect of the measurement
as well as the boundaries. Not only that, except the oral
testimony of PW.1, there is nothing on record to show that
the site No.10 as per Ex.P1 is the same property which
was the subject matter of HRC No.1679/1990. It may be
true that the property records in the municipal records,
panchayat records etc., may differ as they have changed
from time to time. It is also relevant to note that except
the Ex.P1 and the nil encumbrance certificate produced by
the plaintiff, there is no such documentary evidence which
is available to establish that both the properties are one
and the same. Therefore, the appointment of the Court
Commissioner and his report will not cure the discrepancy
- 43 -
NC: 2024:KHC:10446
which exists in the pleading. The burden of proving the
property involved in HRC No.1679/1990 and the present
suit are one and the same is squarely upon the plaintiff.
For establishing such a contention, a Court Commissioner
cannot be appointed at an appellate stage.
45. It is pertinent to note that the appointment of
the Court Commissioner at an appellate stage for
collection of certain evidence will definitely have the
implications under Order 41 Rule 27 of CPC. Such report of
the Court Commissioner would definitely come within the
purview of Order 41 Rule 27 of CPC. If the report of the
Court Commissioner is only in the form of opinion, then it
may not come within the scope of Order 41 Rule 27 of
CPC. But however, if the report is a piece of evidence
which was not otherwise established or explained by the
plaintiff in the trial, then definitely, it amounts to an
additional evidence under Order 41 Rule 27 of CPC. Under
these circumstances, the question remains whether the
- 44 -
NC: 2024:KHC:10446
application filed under the provisions of Order 41 Rule 27
of CPC can be permitted by this Court.
46. It is also to be noted that the application under
Order 41 Rule 27 of CPC has been filed seeking to produce
certain photographs. Evidently, those photographs could
have been produced by the plaintiff at the time of the trial.
In this regard, the judgment of the Apex Court in the case
of Union of India Vs. Ibrahim Uddin and another6
deals with scope of Order 41 Rule 27 of CPC in an
elaborate manner.
47. It is to be noted that if the plaintiff had made an
effort before the trial Court to appoint a Court
Commissioner and to permit such report of the
Commissioner to be placed on record, then the provisions
of Order 41 Rule 27(1)(a) of CPC could have been pressed
into service. It is not the case of the plaintiff that he had
filed such an application but it was rejected.
(2012) 8 SCC 148
- 45 -
NC: 2024:KHC:10446
48. The second ground that would be available
under order 41 Rule 27 of CPC would be that the plaintiff
was prevented from producing such material before the
trial Court for any of the acceptable reason. No such effort
was made by the plaintiff to establish that the Hakku
Patra, Ex.P1 was in respect of the same property which
was the subject matter of the HRC No.1679/1990.
Therefore, Order 41 Rule 27(1)(aa) of CPC is also not
applicable to the case on hand.
49. Learned counsel for the appellant has placed
reliance in the case of Puttappa Vs Ramappa referred
supra, wherein, it was held that under Order 26 of CPC, a
Commissioner can be appointed to make local
investigation to investigate the facts or other materials
which are found in the property and to make a report, in a
suit for injunction the question as to who is in possession
of the property cannot be the task of a Court
Commissioner. In the case on hand also, the plaintiff
wants to appoint the Court Commissioner in order to prove
- 46 -
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a fact which he was squarely called upon to do. Such
exercise having not been done before the trial Court
cannot be allowed to be done in the appeal.
50. The third circumstance would be that if the
Court feels that such a report of the Commissioner is
necessary. It is pertinent to note that the specific
contention in the plaint is that the site No.10 which was
allotted under Ex.P1 is the same which was subject matter
of HRC No.1679/1990. This contention was taken by the
plaintiff in the light of the previous litigation also.
Therefore, the plaintiff was aware about the facts and
circumstances of the case and also his contention of
landlord and tenant was rejected in earlier lis. Therefore,
when there is a discrepancy in the pleading itself, it would
not be possible for this Court to accede to the contention
of the plaintiff that for just decision in the matter, the
Court has to exercise the discretion in his favour. It is
subjective satisfaction of the Court which can be invoked
under Sub-clause (b) of Rule 1 of CPC. Under these
- 47 -
NC: 2024:KHC:10446
circumstances, even the application under Order 41 Rule
27 of CPC cannot be acceded to. The essential ingredients
that are required under Order 41 Rule 27 of CPC are not
forthcoming from the facts and circumstances of the
present case. Therefore, both these applications deserve
to be rejected.
Conclusions:
51. The learned counsel for the appellant has also
placed reliance on the judgment in the case of Bachchaj
Nahar Vs Nilima Mandal and others 7, wherein, it was
held that 'when a new case is made out which is bereft of
any pleadings, cannot be entertained in the appellate
stage'. It was held that 'in the absence of pleadings and
opportunity to defendant No.1 to deny such claim, the
High Court could not have granted the relief of injunction
by assuming that the plaintiff had an easementary to use
the schedule property as a passage'. Based on this
decision, the learned counsel for the appellant would
(2008) 17 SCC 491
- 48 -
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submit that the plaintiff when had specifically contended in
the plaint that the property which is the subject matter of
HRC No.1679/1990 was allotted to him by the Government
under Ex.P1, the manner in which, the boundaries had
changed should have been explained by him. It is one
thing to say that the Municipal Authorities had changed
the number as per the convenience over a period of time,
but that circumstance is not only established but the other
circumstance regarding the boundaries is also not properly
explained by the plaintiff. I find considerable force in the
said submission. When the plaintiff is contending that the
suit schedule property which is described in Ex.P1 and
various other documents including the permission for
construction etc., is claimed to be the same property as
mentioned in HRC No.1679/1990, it was incumbent upon
the plaintiff to explain how the boundaries and
measurements changed. The road on one side itself has
been changed and it has come on western side. In fact,
there was no such road on the western side of the
property when HRC No.1679/1990 was filed. Therefore,
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there is considerable force in the contention of the counsel
for the appellant.
52. It is trite law that no load of evidence contrary
to the pleadings is permissible. Evidence has to be lead on
the basis of the pleadings and such fact need to be
proved. When the plaintiff approached the Court
contending "the property bearing site No.10, BBMP No.46
situated at 1st Main, Karekallu Colony, Kamakshipalya,
Bangalore-560 079, is measuring 15 feet East to West and 27
feet North to South and is bound by; road on East and West,
the property of Krishnappa on the North and property of
Munimaraiah on the South", he should have explained that
the same property was occupied by the defendants under
permissive capacity. But the other documents like the
order in HRC No.1679/1990 produced at Ex.P19 show that
the property is 'bearing No.391/315/2, Old No.127/131 and is
bounded by road on the East and South; private property on
the West and private property on the North', there is a clear
contradiction in the case of the plaintiff. This aspect has
not been explained by the plaintiff in a proper way. But on
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NC: 2024:KHC:10446
the other hand, the contention of the defendants is
consistent and the defendants have reiterated their
contention that the property measuring 20 feet X 12 feet
bound by; road on the East and North; property of
Kempaiah on the West and property of Ramakka on the
South, is occupied by them and this property is not of the
ownership of the plaintiff as claimed by him. Under these
circumstances, though the trial Court has observed these
discrepancies, it ultimately, in para 17 holds that the
plaintiff is entitled for the relief. Thus, the observations of
the trial Court are not in accordance with its findings on
the other issues.
53. It has failed to notice that the plaintiff has to
stand on his own legs in order to prove the title to the
property. The weakness of the defendants cannot be a
ground to uphold the claim of the plaintiff. The defendants
have shown that the property occupied by them is not the
property which had been allotted to the plaintiff by the
Government under the 'Ashraya Scheme' as per Ex.P1.
- 51 -
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Therefore, when the evidence of the plaintiff is found
lacking and such lacking having been observed by the trial
Court in various paragraphs of its judgment, should have
concluded that the plaintiff is not entitled for the relief
claimed. Therefore, the impugned judgment is not
sustainable in law.
54. For the above reasons, the applications filed by
the respondents/plaintiff under Order 41 Rule 27 of CPC as
well as the application filed under Order 26 Rule 9 of CPC
are to be rejected and the appeal deserves to be allowed.
Hence, the following:
ORDER
(i) IA.No.1/2024 filed under Order 26 Rule 9
of CPC and IA.No.1/2019 filed under Order 41 Rule
27 of CPC are dismissed.
(ii) The appeal is allowed.
(iii) The impugned judgment and decree
passed by the trial Court in O.S.No.1033/2012 dated
21-3-2014 is hereby set aside.
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(iv) The suit of the plaintiff stands dismissed
with cost.
(v) The amount deposited by the appellant
before this Court is ordered to be refunded to them.
Sd/-
JUDGE
tsn*
