5. Whether plaintiff is entitled for the relief
claimed ?
10. In order to prove his claim, the plaintiff got
per Ex.P-1 to Ex.P-50. On the contrary, the defendant got
11. The trial Court, upon appreciation of the oral
12. Assailing the said judgement and decree of the
R.A.No.278/2016. The first appellate Court has framed
2. Whether the Plaintiff further proves that
Defendant has no manner of right, title or interest
over the 'C' schedule property?
3. Whether the Plaintiff further proves that
Defendant is in unauthorised. possession of 'C'
schedule property? illegal
4. Whether Court fee paid is sufficient?
5. Whether Plaintiff is entitled for the relief
claimed?
6. What order or decree?
13. The first appellate Court after considering the
facts and circumstances and after re-appreciating the
evidence on record, confirmed the judgment and decree of
the trial Court.
14. Hence, both the trial Court, and first appellate
Court, concurrently held that the plaintiff failed to establish
title or possession over the alleged suit 'C' schedule
property, despite relying on the sale deeds dated
16.12.2006 and 26.11.2007. Both the Courts below found
that the plaintiff admittedly failed to measure the
properties at the time of purchase and failed to produce
any authenticated survey or reliable evidence to prove that
the extent mentioned in the sale deeds actually existed on
the ground. On the other hand, the defendant's title under
the earlier sale deed dated 23.03.1984, supported by a
sketch and explicit recitals that the fenced property with
unequal measurements was delivered into his possession
and the same was accepted by both the Courts below. The
plaintiff's own admissions regarding the pre-existing
compound wall, the absence of any pleading or proof as to
when the alleged encroachment took place, and the total
lack of corroborative oral or documentary evidence led
both the Courts below to conclude that the plaintiff failed
to identify or prove the existence of the alleged suit 'C'
schedule property or any encroachment by the defendant.
15. On the other hand both the Courts below also
recorded specific findings regarding the plaintiff's repeated
attempt to secure appointment of a Court Commissioner.
The plaintiff had earlier filed an application I.A.No.7, which
was dismissed on 21.08.2012, remanded in
W.P.34137/2012, allowed on 09.11.2012, and finally
quashed by this Court in W.P.No.49023/2012 with a
binding direction that the suit must be decided on merits
based on the evidence already on record. This order
having attained finality, the first appellate Court held that
a fresh application under Order XXVI Rule 9 of the CPC
could not be entertained. Both Courts below thus
concluded that the plaintiff failed to discharge the burden
of proving title, possession, or encroachment, Hence, the
appeal and the application filed under Order XXVI Rule 9 of
the CPC was dismissed.
16. It is contended by the learned counsel
appearing for the appellant that the Courts below failed to
properly appreciate both oral and documentary evidence
and to draw correct inferences from the admitted and
proved materials. The plaintiff had established title and
ownership over 'A' and 'B' schedule properties through
registered title deeds and revenue records, including Ex.P2
dated 06.12.2006 and Ex.P3 dated 26.11.2007, as well as
subsequent khatha transfers at Exs.P10 and P11 and tax
register entries at Exs.P12 and P13 supported by tax
receipts at Exs.P14 to P17. The suit 'C' schedule property
forms part of the 'A' and 'B' schedule properties and the
Courts below ought to have declared the plaintiff's title
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accordingly. The rough sketches attached to the
registered sale deeds at Ex.P2 and Ex.P3 further
corroborate the plaintiff's ownership and the findings of
the Courts below.
17. It is contended that the Courts below have also
failed to appreciate that the defendant herself, in her reply
notice Ex.P20 and written statement admitted that she
had not encroached upon any property of others and that
the land in her possession was exclusively attributable to
her. However, the survey sketches at Ex.P42 and Ex.P43,
when converted into standard measurements, clearly show
that the defendant is in possession of roughly 63.82 feet,
as against only 30 feet purchased under Ex.D1. Further,
the Courts below erred in incorrectly reading Ex.D1 and
assuming without basis that the defendant's property was
fenced at the time of purchase, despite there being no
such recital in Ex.D1. The plaintiff had also demonstrated
that accurate measurement at the time of purchase was
not possible due to the site being filled with waste, which
he later cleared as evidenced in Ex.P22 to Ex.P30 and
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Ex.P34 and that the defendant thereafter occupied land in
excess of what was conveyed to her.
18. It is further contended that the measurement
disputes are further substantiated by Ex.P43 prepared by
the City Survey Department, Mysuru, showing that while
the plaintiff ought to have been in possession of 3600 sq.
ft. (50 x 72 feet), but he is actually in possession of only
3000 sq. ft., losing 600 sq.ft. to the defendant who is in
occupation of excess land beyond that conveyed under
Ex.D1. The same position is confirmed by Ex.P49, an
endorsement issued by the City Survey Department, which
records that the plaintiff is in possession of 15% less land
than he purchased under Ex.P2 and Ex.P3. These
documents, read with Ex.D1 and Ex.P43, clearly establish
that the defendant has exceeded her lawful boundary and
encroached towards the plaintiff's property.
19. It is also contended that in the given
circumstances, the Courts below ought to have appointed
a Surveyor/Commissioner to measure the properties,
particularly since both parties trace title to the common
- 12 -
vendors B.R. Yellappa and B.N. Shivashankar and neither
party disputes the other's title. The only issue is whether
encroachment has occurred and the documents on record
prima facie establish that the encroachment had occurred.
The rejection of the plaintiff's application under Order XLI
Rule 27 CPC by the first appellate Court on the ground of
earlier directions of this Court in W.P.No.49023/2012 is
erroneous. Since the trial Court itself recorded that there
was no evidence establishing the precise extent of
encroachment, the first appellate Court ought to have
permitted appointment of a Commissioner in view of
changed circumstances.
20. The learned counsel appearing for the appellant
has raised following substantial questions of law for the
consideration of this Court as under:
1. Whether the First Appellate Court has
erred in law in dismissing the application filed
by the appellant under Order 41 Rule 27 of the
Code of Civil Procedure for appointment of a
Commissioner to measure the property of the
plaintiff and that of the defendant ?
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2. Whether the Courts below have erred
in law in not appointing the
Commissioner/surveyor for measuring the
property purchased by the plaintiff and
defendant, so as to find out as to whether there
is any encroachment as alleged by the plaintiff?
3. Whether the Courts below have erred
in law in totally ignoring the documentary
evidence Ex.P42, Ex.P43 and Ex.P49, Ex.P13
which documents clearly establish that, plaintiff
is in possession lesser area than what is owned
by the plaintiff and defendant is in possession of
more area than purchased by the defendant ?
21. The respondent counsel vehemently contended
that he purchased the property in Sy.No.58 under a
registered sale deed dated 23.03.1984 from Sri Yellappa,
wherein possession of the fenced property as per the
sketch was delivered to him, and thereafter in the year
1986 he obtained an approved plan and constructed a
dwelling house, residing therein with his family without
objection from the vendor at any point of time. In
contrary, the plaintiff purchased the 'A' and 'B' schedule
properties only under sale deeds dated 16.12.2006 and
26.11.2007 and instituted the suit after a delay of two
- 14 -
years on the allegation that due to the presence of debris
and bushes at the time of purchase, he could not measure
the land and later discovered alleged encroachment of the
'C' schedule property.
22. However, it is contended that the plaintiff has
not explained how the exact measurements mentioned in
his sale deeds were arrived at without measurement and
has failed to specify the date or manner in which the
alleged encroachment occurred, nor produced any witness,
record, or neighbour's evidence to prove the existence of
suit 'C' schedule property or any encroachment by the
respondent.
23. It is further contended that the plaintiff's own
cross-examination reveals that he did not measure the site
at the time of purchase, that an eastern compound wall
existed and that the western compound wall of both
parties ran in the same line. The plaintiff's case was not
that the respondent was in possession of land in excess of
what he purchased under the registered sale deed dated
23.03.1984, nor that the respondent encroached after his
- 15 -
purchase. The burden of proof to establish a specific
encroachment on a particular date lies upon the plaintiff
and he has failed to discharge the same. Notwithstanding
this, after cross-examination, the plaintiff moved an
application under Order XXVI Rule 9 of the CPC for
appointment of a Chartered Engineer to investigate the
alleged encroachment.
24. It is also contended that though the trial Court
initially allowed the application, this Court in
W.P.No.34137/2012 directed reconsideration, and though
the trial Court again allowed the application on
09.11.2012, the same was set aside in
W.P.No.49023/2012 by order dated 13.12.2012, directing
the matter to be decided on merits based on existing
evidence. The said order has attained finality and hence
further request for appointment of a Commissioner was
rejected.
25. It is lastly contended that the documents
marked as per Ex.P-42, P-43, P-44 and P-49 have not
been proved in accordance with law, since the issuing
- 16 -
authorities were not examined, as required by settled legal
principles laid down in the case of M/s. Bareilly
Electricity Supply Co. Ltd. v. The Workmen reported in
(1971) 2 SCC 617, and in the case of The Life
Insurance Corporation of India v. Ram Pal Singh
Bisen reported in (2010) 4 SCC 491. The respondent
was not served notice before issuance of the endorsement
or sketch relied upon by the plaintiff, rendering such
material unusable. Having been in uninterrupted
possession since 1984 and there being no complaint by his
vendor at any point, the allegation of encroachment is
false and baseless. The Trial Court rightly dismissed the
suit, and the dismissal was properly upheld in
R.A.No.278/2016 by judgment and decree dated
18.06.2018.
26. Heard learned counsel appearing on either side.
27. In support of his contentions learned counsel
for the respondent has placed reliance on the following
judgments:-
- 17 -
• Life Insurance corporation of India and
another v. Ram Pal Singh Bisen reported in
(2010) 4 SCC 491:
25. We are of the firm opinion that mere
admission of a document in evidence does not amount
to its proof. In other words, mere marking of exhibit
on a document does not dispense with its proof, which
is required to be done in accordance with law.
26. As has been mentioned hereinabove,
despite perusal of the record, we have not been able
to come to know as to under what circumstances the
respondent-plaintiff had admitted those documents.
Even otherwise, his admission of those documents
cannot carry the case of the appellants any further
and much to the prejudice of the respondent.
27. It was the duty of the appellants to have
proved the documents, Exts. A-1 to A-10 in
accordance with law. Filing of the enquiry report or
the evidence adduced during the domestic enquiry
would not partake the character of admissible
evidence in a court of law. That documentary evidence
was also required to be proved by the appellants in
accordance with the provisions of the Evidence Act,
which they have failed to do.
• M/s. Bareilly Electricity Supply Co. Ltd., v.
The Workmen an others reported in (1971)
2 SCC 617;
14. An attempt is however made by the learned
Advocate for the appellant to persuade us that as the
Evidence Act does not strictly apply the calling for of
the several documents particularly after the
employees were given inspection and the reference to
these by the witness Ghosh in his evidence should be
taken as proof thereof. The observations of
Venkatrama lyer, J., in Union of India v. Varma [AIR
1957 SC 882 : (1958) 2 LLJ 259 and 263-264 : 1958
SCR 499] to which our attention was invited do not
justify the submission that in labour matters where
issues are seriously contested and have to be
established and proved the requirements relating to
proof can be dispensed with. The case referred to
- 18 -
above was dealing with an enquiry into the
misconduct of the public servant in which he
complained he was not permitted to be cross-
examined. It however turned out that lie was allowed
to put questions and that the evidence was recorded
in his presence. No doubt the procedure prescribed in
the Evidence Act by first requiring his chief-
examination and then to allow the delinquent to
exercise his right to cross-examine him was not
followed, but that the Enquiry Officer, took upon
himself to cross-examine the witnesses from the very
start. It was contended that this method would violate
the well recognised rules of procedure. In these
circumstances it was observed at p. 264:
"Now it is no doubt true that the evidence of the
respondent and his witnesses was not taken in the
mode prescribed in the Evidence Act; but that Act has
no application to enquiries conducted by Tribunal even
though they may be judicial in character. The law
requires that such Tribunals should observe rules of
natural justice in the conduct of the enquiry and if
they do so their decision is not liable to be impeached
on the ground that the procedure followed was not in
accordance with that which obtains in a court of law."
But the application of principal of natural justice
does not imply that what is not evidence can be acted
upon. On the other hand what it means is that no
materials can be relied upon to establish a contested
fact which are not spoken to by persons who are
competent to speak about them and are subjected to
cross-examination by the party against whom they
are sought to be used. When a document is produced
in a Court or a Tribunal the questions that naturally
arise is, is it a genuine document, what are its
contents and are the statements contained therein
true. When the appellant produced the balance-sheet
and profit and loss account of the company, it does
not by its mere production amount to a proof of it or
of the truth of the entries therein. If these entries are
challenged the appellant must prove each of such
entries by producing the books and speaking from the
entries made therein. If a letter or other document is
produced to establish some fact which is relevant to
the enquiry the writer must be produced or his
affidavit in respect thereof be filed and opportunity
- 19 -
afforded to the opposite party who challenges this
fact. This is both in accord with principles of natural
justice as also according to the procedure under Order
19 of the Civil Procedure Code and the Evidence Act
both of which incorporate these general principles.
Even if all technicalities of the Evidence Act are not
strictly applicable except insofar as Section 11 of the
Industrial Disputes Act, 1947 and the rules prescribed
therein permit it, it is inconceivable that the Tribunal
can act on what is not evidence such as hearsay, nor
can it justify the Tribunal in basing its award on copies
of documents when the originals which are in
existence are not produced and proved by one of the
methods either by affidavit or by witness who have
executed them, if they are alive and can be produced.
Again if a party wants an inspection, it is incumbent
on the Tribunal to give inspection insofar as that is
relevant to the enquiry. The applicability of these
principles are well recognised and admit of no doubt.
• Smt. S L Savithri v. Sri S
Ramalingeshwarasharma by order dated
28.09.2012 passed in W.P.No.34137/2012
(GM-CPC); and
4. On hearing learned counsels and examining
the impugned order, I' am of the considered view
that the petition is liable to be allowed. The trial
Court while passing the impugned order was of the
view that it is not proper on the part of the Court
to discuss with regard to the oral evidence of the
parties. Under these circumstances, if the
Commissioner is appointed, it will help the Court to
appreciate the evidence on record. The view of the
trial Court is erroneous. It would necessarily have
to consider what is the evidence on record and
thereafter come to a conclusion as to whether the
appointment of the Commissioner is just and
warranted. On the contrary to hold that the report
would be first examined and thereafter the
evidence would be appreciated is therefore
incorrect. Under these circumstances, it is
necessary that the trial Court should reconsider the
application afresh. It shall keep in mind the oral
evidence let in by the parties and thereafter, if
- 20 -
necessary, for the reasons to be assigned pass
appropriate orders on the application.
• Smt.S.L. Savithri v. Sri. S
Ramalingeshwarasharma by order dated
13.12.2012 passed in W.P.No.49023/2012
(GM-CPC).
10. It is relevant to note, the suit for
declaration that the respondent is the owner of 'C'
schedule property and for possession. The parties
have led evidence. PW.1 in his cross-examination
has admitted the compound wall to the east of his
house existed when he purchased the property. He
does not know who put up the compound wall. The
compound wall to the east of his house and the
western compound wall of defendant's house are in
the same line. He has purchased the property in
the year 2006. It was not measured. 'A' and 'B'
schedule properties are different properties. Since
1988, the defendant is residing in the same place
where he was residing. There is no specific plea
when the defendant i.e., the petitioner herein
encroached upon 'C' schedule property. The Court
Commissioner cannot be appointed to investigate
into encroachment. The Trial Court should have
decided the matter on the basis of evidence
available on record. In the circumstances of the
case, the Trial Court was not justified in Therefore,
the appointing the Court Commissioner. impugned
order cannot be sustained in law.
Accordingly, the writ petition is allowed and the
impugned order passed by the Trial Court in
O.S.No. 1810/2009 on I.A.No.7 is hereby set
aside. The Trial Court to decide the matter on
merits based on the evidence available on record.
The observations made in the course of this order
shall not influence the Trial Court in deciding the
matter on merits.
- 21 -
28. Having considered the contentions advanced
and perused the materials on record, this Court is of the
opinion that in the present case, it is of decisive relevance
that the order of this Court in W.P.No.49023/2012
directing the trial Court to decide the suit solely on the
basis of the evidence already on record has not been
challenged by the plaintiff at any point of time. The said
order, having attained finality, binds not only the trial
Court but also the parties and the first appellate Court.
Once the Writ Court conclusively held that the
appointment of a Commissioner to investigate alleged
encroachment was impermissible and that the suit must
be adjudicated on the existing evidence, the plaintiff was
estopped from re-agitating the very same request for local
investigation either before the trial Court at a later stage
or before the first appellate Court under Order XLI Rule 27
CPC. The failure to challenge the writ order therefore
renders it final and conclusive, and the Courts below were
justified in refusing to entertain any subsequent attempt
to reopen the said issue.
- 22 -
29. In view of the foregoing discussions, the
concurrent findings of both the trial Court and the first
appellate Court suffers from no perversity. Both the Courts
below independently found that the plaintiff, being a
subsequent purchaser, failed to produce cogent evidence
identifying the alleged suit 'C' schedule property or proving
the existence and extent of any encroachment. The
plaintiff admitted that he never measured the property at
the time of purchase and failed to establish how the
recited dimensions in his sale deeds were arrived at. On
the contrary, the title of the defendant under the earlier
sale deed dated 23.03.1984, supported by a sketch,
approved plan and uninterrupted possession since 1986,
stood proved. Both the Courts below further held that the
plaintiff neither pleaded nor proved the date, manner or
extent of any alleged encroachment and failed to produce
reliable survey evidence or examine the issuing authority
of the documents relied upon. Hence the said documents
were incapable of proving the disputed fact.
- 23 -
30. Accordingly, the concurrent finding that the
plaintiff failed to establish title, possession or
encroachment over the alleged suit 'C' schedule property
is fully justified and does not give rise to any substantial
question of law. The decree of dismissal is based on proper
appreciation of evidence, and the refusal to appoint a
Commissioner is fortified by the binding writ order which
has attained finality.
31. On hearing the submissions of the counsel for
the appellants, it appears at the outset that this being a
second appeal, it is only substantial question of law which
gives raise for this Court to clutch the jurisdiction and
answer the said question of law as otherwise, this Court
would lack jurisdiction to entertain second appeal.
32. In view of the above discussions, this Court
proceeds to pass the following:
ORDER
(i) The present appeal is dismissed.
- 24 -
(ii) The judgment and decree dated
18.06.2018 in R.A.No.278/2016 on the file of
the IV Additional District Judge, Mysuru and
the judgment and decree dated 07.10.2013
in O.S.No.1810/2009 on the file of the I
Additional Civil Judge and JMFC., at Mysuru
is hereby confirmed.
(iii) Registry to send the records to the
concerned Court, forthwith.
Sd/-
(DR.K.MANMADHA RAO)
JUDGE
bnv
