Karnataka High Court
Smt Kusuma Kumari vs Sri B G Chennappa on 8 November, 2024
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WP No. 29654 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
WRIT PETITION NO. 29654 OF 2024 (GM-CPC)
BETWEEN:
SMT. KUSUMA KUMARI
W/O LATE SRI. S. VENKATESHWARLU,
AGED ABOUT 71 YEARS,
REPRESENTED BY GENERAL POWER OF ATTORNEY
HOLDER,
SRI. S. SRAVAN CHAITANYA,
S/O LATE. SRI. VENKATESWARLU,
AGED ABOUT 41 YEARS,
R/AT NO. 189/A,
MLA COLONY ROAD,
NO.12, BANJARA HILLS,
HYDERABAD - 500 034.
...PETITIONER
(BY SMT. NALINA MAYEGOWDA., SENIOR ADVOCATE FOR
Digitally signed SMT. ANUSHA B. REDDY., ADVOCATE)
by AND:
MARKONAHALLI
RAMU PRIYA
Location: HIGH 1. SRI B G CHENNAPPA
COURT OF
KARNATAKA FATHER'S NAME NOT KNOWN TO THE PETITIONER,
AGED ABOUT 72 YEARS,
R/AT 17/2,
ONKARNAGAR, GANEKAL VILLAGE,
KENGERI HOBLI,
BANGLAORE SOUTH TALUK,
BANGALORE - 560 060.
2. SRI HARSHA VARDHAN
FATHER'S NAME NOT KNOWN TO THE PETITIONER,
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AGED ABOUT 53 YEARS,
R/AT 17/2,
ONKARNAGAR, GANEKAL VILLAGE,
KENGERI HOBLI,
BANGLAORE SOUTH TALUK,
BANGALORE - 560 060.
3. DR. HAFEEZUR RAHMAN
S/O LATE. A. ABDUL AZEEZ,
AGED ABOUT 88 YEARS,
R/AT 599, MINA, 2ND MAIN,
TEACHER'S COLONY, KORAMANGALA,
BANGALORE - 560 034.
4. SRI SHAFEEQUR RAHMAN
S/O LATE. A. ABDUL AZEEZ,
AGED ABOUT 82 YEARS,
R/AT 599, MINA, 2ND MAIN,
TEACHER'S COLONY, KORAMANGALA,
BANGALORE - 560 034.
5. SRI NAJEEBUR RAHMAN
S/O LATE. A. ABDUL AZEEZ,
AGED ABOUT 74 YEARS,
R/AT OF AREHALLI VILLAGE,
BELUR TLAUK, HASSAN - 573 101.
6. MRS. KAMARUNNISA
D/O LATE. A. ABDUL AZEEZ,
W/O LATE ABDUL GANK,
AGED ABOUT 99 YEARS,
R/AT AREHALLI VILLAGE,
BELUR TALUK,
HASSAN - 573 101.
REPRESENTED BY THEIR GENERAL POWER OF
ATTORNEY HOLDER,
SRI. NAJEEBUR RHAMAN,
S/O LATE. A. ABDUL AZEEZ,
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AGED ABOUT 74 YEARS,
R/AT AREHALLI VILALGE,
BELUR TALUK,
HASSAN - 573 101.
7. SRI FARHATH HAYATH
D/O LATE. A. ABDUL AZEEZ
W/O LATE. C. R. MOHD. HAYATH/
AGED 60 YEARS,
R/AT AREHALLI VILLAGE,
BELUR TALUK,
HASSAN - 573 101.
REPRESENTED BY THEIR GENERAL POWER OF
ATTORNEY HOLDER,
SRI. NAJEEBUR RHAMAN,
S/O LATE. A. ABDUL AZEEZ,
AGED ABOUT 74 YEARS,
R/AT AREHALLI VILALGE,
BELUR TALUK,
HASSAN - 573 101.
8. SRI. SYED AFROZ
S/O LATE. SYED GHOUSE,
AGED ABOUT 75 YEARS,
R/AT AREHALLI VILLAGE,
BELUR TALUK,
HASSAN - 573 101.
9. SRI SYED SHERAZ
S/O LATE SYED GHOUSE AND
LATE SMT. RAHAMATHUNNISA,
AGED ABOUT 75 YEARS,
R/AT AREHALLI VILLAGE,
BELUR TALUK,
HASSAN - 573 101.
10. SMT. SIARA RAFATH
D/O LATE. SYED GHOUSE AND
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WP No. 29654 of 2024
LATE SMT. RAHAMATHUNNISA,
AGED ABOUT 59 YEARS,
R/AT AREHALLI VILLAGE,
BELUR TALUK,
HASSAN - 573 101.
11. SRI. K. GANESH BABU
S/O LATE. SRI KRISHNAMURHTY,
AGED ABOUT 68 YEARS,
NO. 26/1-1, CHAITANYA,
2ND CROSS,M T LAYOUT,
13TH CROSS, BEHIND MES COLLEGE,
BENGALURU - 560 053.
12. SMT. SHIVAMMA K
W/O LATE MR. GURUSIDDAPPA,
AGED ABOUT MAJOR,
R/AT BHAVIHAL VILLAGE,
NARAGANAHALLI,
DAVANAGERE - 577 534.
...RESPONDENTS
(BY SRI. VINOD KUMAR.B.N., ADVOCATE FOR
SRI. BIPIN HEGDE., ADVOCATE FOR C/R11)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
IMPUGNED ORDER DTD. 29.10.2024 PASSED BY THE V ADDL.
CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-13) IN
O.S.NO. 8729/2004 AS PER ANNX-B AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE R. NATARAJ
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WP No. 29654 of 2024
ORAL ORDER
The plaintiff in O.S.No.8729/2004 on the file of V
additional Civil Judge (CCH-13), Bangalore City has challenged
an order dated 29.10.2005 by which the Court rejected
I.A.No.23 filed under Order XVIII Rule 17 read with Section 151
of Code of Civil Procedure (hereinafter referred as 'CPC'), 1908
and I.A.No.24 filed under Order XVI Rule 1 read with Section
151 of CPC.
2. The suit in O.S.No.8729/2004 was filed for
declaration of title of the plaintiff to a plot No.52, formed in
survey No.17/2A of Ganakal village, Kengeri Hobli, Bengaluru
South Taluk, Bengaluru, and for perpetual injunction to restrain
defendants from interfering with the possession of the plaintiff
in the suit property. The suit was contested by the defendants,
who contended inter-alia, that they were laying a compound
around the land bearing Survey No.17/2A, which did not
concern the plaintiff in any manner whatsoever.
3. The Trial Court framed issues and set down the
case for evidence of the parties.
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4. The plaintiff was examined as PW.1 and she marked
a survey sketch prepared by the Taluk surveyor as Ex.P5.
During the course of her cross-examination, it was suggested
that the sketch marked as Ex.P5 was a photocopy and since it
did not contain the date as to when it was drawn up, it was
fabricated and concocted.
5. After the evidence of PW.1, an application was filed
by the plaintiff to recall the stage of the suit and to summon
the Taluk surveyor who had issued Ex.P5 to produce the related
documents and also to tender evidence. The said application
was contested by the defendants on the following grounds:
(i) that there was no pleading in the plaint about a
sketch being drawn up by the Taluk surveyor in
respect of the suit property.
(ii) that an application was filed before the Tahasildar
seeking an authenticated copy of Ex.P5 and that the
office of the Tahasildar had issued an endorsement
dated 27.12.2023 that no survey sketch was issued in
respect of Survey No.17/2A of Ganakal Village.
(iii) That therefore, the survey report at Ex.P5 is
created, concocted and fabricated by the plaintiff.
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6. The Trial Court, after considering these contentions,
rejected both applications in terms of the impugned order on
the ground that Ex.P5 was already marked as a document and
that it was prepared by a public servant in the usual course of
discharge of his official duty. It was held that Ex.P5 was a
relevant document and it needed no further corroboration
about its existence, genuinity and probative value. Being
aggrieved by the said order, this writ petition is filed.
7. Learned Senior counsel representing the plaintiff
contended that defendants did not raise any objection at the
time of marking Ex.P5. She contends that if the document at
Ex.P5 was concocted, fabricated or was a photocopy of original
survey sketch, the same must have been brought to the notice
of the Trial Court before it was marked. She submits that after
the document was marked, PW.1 was suggested that said
document was concocted and fabricated on the ground that
what was produced was only a photocopy and did not contain
the date on which it was prepared, etc. She therefore contends
that in order to establish the genuinity of Ex.P5, it was
necessary that the officer from the concerned department was
summoned to give evidence about the authenticity of Ex.P5.
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She submits that Ex.P5 was a survey document, which was
prepared at her instance after duly notifying the neighboring
land owners, where it was specifically shown that the property
claimed by the plaintiff lies within Survey No.17/2A. She
submits that evidence of the concerned official is relevant to
establish the fact that the property claimed by the plaintiff lies
within Survey No.17/2A. She further submits that no prejudice
would be caused to the defendants if the official from
concerned department is summoned to produce documents and
also to tender evidence in support of Ex.P5.
8. Per contra, learned counsel for defendant No.11
submits that there were no pleadings in the plaint about
conduct of survey and the identification of the suit property
within Survey No.17/2A. He therefore contends that without
pleadings, the plaintiff had attempted to produce a document to
prove that the property claimed by her lay within Survey
No.17/2A. In support of his contention, he relied upon the
judgment of the Co-ordinate Bench of this Court in the case of
Smt.Rajamma v/s Doddava @ Channanka and others in
WP.No.38590/2016.
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9. He further contends that Ex.P5 was prepared by a
Taluk surveyor and therefore the person who conducted the
survey should alone be summoned and not an officer from the
said department. He submits that the officer who drew up the
survey sketch is privy to the fact as to how the document was
drawn up and therefore the plaintiff cannot choose to summon
any official from the said department.
10. He also submitted that the office of the Tahasildar
had issued an endorsement that document at Ex.P5 does not
exist and therefore no purpose would be served in summoning
a surveyor to adduce evidence.
11. I have considered submissions of the learned Senior
counsel for the plaintiff and learned counsel for defendant
No.11.
12. The suit is filed for declaration of title of the plaintiff
in respect of suit schedule property. The plaintiff claimed that
the land in Survey No.3 and Survey No.17/2 of Ganakal village
was owned by her vendors. She claimed that she purchased
0.07 Guntas in Survey No.3 in terms of a Sale Deed dated
24.11.1994. She amended the plaint and claimed that after
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filing the suit, she came to know that the property purchased
by her under the Sale Deed dated 24.11.1994 actually lay
within Survey No.17/2A. She claimed that the extent of land in
Survey No.17/2 was 2 Acres 18 Guntas. She claimed that the
land in Survey No.17/2 was bifurcated as Survey Nos.17/2A
and 17/2B measuring 1 Acre 5 Guntas and 1 Acre 13 Guntas
respectively. She claimed that her vendors sold 1 Acre 10
Guntas out of 2 Acres 18 Guntas in Survey No.17/2B in favour
of the vendors of Abdul Azeez and others and retained 1 Acre 5
Guntas in Survey No.17/2A and 0.03 Guntas in Survey
No.17/2B. Therefore, she contends that Mr.Abdul Azeez and
others are entitled to claim their right only in Survey No.17/2B.
However, the Khatha of the entire extent of 2 Acres 18 Guntas
was registered in the name of Abdul Azeez and others.
13. Therefore, the entire case revolves around the
question whether the property claimed by the plaintiff lies
within Survey Nos. 3/3B or 17/2A of Ganakal village. Ex.P5
was a survey sketch identifying the limits of Survey No.17/2A.
A copy of Ex.P5, which is a survey sketch of Survey No.17/2A,
shows that the property claimed by the plaintiff is identified in
the Survey No.17/2A. Therefore, it was necessary for the
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plaintiff to establish the genuinity, authenticity and correctness
of the sketch. In view of the contention of defendant No.11
that the document at Ex.P5 was concocted and fabricated, it
was just and necessary for the plaintiff to establish the
genuinity of the said document. One of the modes of
establishing such genuinity is by summoning the official from
the concerned department to produce documents in support of
Ex.P5 and also to call upon the said official to tender evidence.
14. The contention of defendant No.11 that there were
no pleadings to support Ex.P5 is inconsequential, as the plaintiff
was not expected to plead each and every fact. The plaintiff
has generally pleaded how she derived title to the suit property
and how her possession was interfered. The survey sketch,
which is marked as Ex.P5, was prepared on the basis of title
deed of the plaintiff. It is relevant to note that even after
marking Ex.P5, it is incumbent upon the plaintiff to establish
correctness of the said sketch. This could only be done through
summoning the concerned official and securing authenticated
documents from the concerned department.
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15. The contention of the learned counsel for defendant
No.11 that the Tahasildar had issued an endorsement that no
such sketch exists, makes it all the more necessary to summon
the documents from the concerned department.
16. The other contention of the learned counsel for
defendant No.11 that the person who had prepared Ex.P5
should alone be summoned is liable to be rejected, as Ex.P5 is
a document generated by an official in the usual course of
governmental duties and functions. It is needless to mention
that before drawing up Ex.P5, the concerned official would have
issued notices to all concerned, drawn up the sketch based on
title/revenue documents etc. Therefore, any custodian of these
documents is competent to depose about the circumstances
under which Ex.P5 was prepared.
17. In that view of the matter, the impugned order
passed by the Trial Court warrants interference. Hence, this
writ petition is allowed. The impugned order passed by the
Trial Court is set aside. The applications filed by the plaintiff
under Order XVIII Rule 17 of CPC and Order XVI Rule 1 of CPC
are allowed. The concerned Taluk Surveyor is summoned to
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produce the documents in relation to Ex.P5 and also to tender
evidence.
Sd/-
(R. NATARAJ)
JUDGE
AM
