IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL MISCELLANEOUS SECOND APPEAL NO.77/2014 BETWEEN:
NINGE GOWDA S/O MULLE GOWDA AGED ABOUT 45 YEARS R/AT CHIKKABYADAGERE VILLAGE KASABA HOBLI, BELUR TALUK HASSAN DISTRICT – 573 115 … APPELLANT (BY SRI B.N.ANANTHANARAYANA, ADVOCATE) AND:
1. RAMABHADRE GOWDA S/O MALLE GOWDA AGED ABOUT 57 YEARS R/AT KEMPAGODANAHALLI VILLAGE HALEBEEDU HOBLI, BELUR TALUK HASSAN DISTRICT – 573 115 2. MULLE GOWDA S/O MULLEGOWDA AGED ABOUT 51 YEARS R/AT CHIKKABYADAGERE VILLAGE KASABA HOBLI, BELUR TALUK HASSAN DISTRICT – 573 115 3. PUTTE GOWDA S/O MULLE GOWDA AGED ABOUT 47 YEARS R/AT CHIKKABYADAGERE VILLAGE KASABA HOBLI, BELUR TALUK HASSAN DISTRICT – 573 115 4. SMT.JAYAMMA W/O MULLE GOWDA AGED ABOUT 51 YEARS R/O KEMPANAHALLI CHIKKAMAGALURU – 573 201 …RESPONDENTS (BY SRI B.M.MOHAN KUMAR, ADV. FOR R1;
R2 AND R4 ARE SERVED AS UNREPRESENTED; NOTICE TO R3 IS DISPENSED WITH VIDE ORDER DATED 20.01.2016) THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 09.10.2014 PASSED IN R.A.NO.7/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE, BELUR BY CONFIRMING THE JUDGMENT AND DECREE DATED 13.08.2010 PASSED IN O.S.NO.108/2003 ON THE FILE OF CIVIL JUDGE (JR.DN.), BELUR.
THIS MSA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This second plaintiff’s second appeal arises out of the judgment and decree dated 09.10.2014 in R.A.No.7/2013 passed by the Senior Civil Judge, Belur.
2. By the impugned judgment and decree, the First Appellate Court allowed the appeal of the defendant and set aside the judgment and decree dated 13.08.2010 passed by the Civil Judge (Junior Division), Belur in O.S.No.108/2003.
3. Appellant and his mother Ningamma (Plaintiff Nos.1 and 2) filed OS No.108/2003 against respondent No.1 before Civil Judge (Junior Division), Belur for permanent injunction. Pending suit, the plaintiffs amended the suit seeking mandatory injunction in respect of 0.14 guntas of land out of the suit schedule property.
4. Subject matter of the suit was land bearing Survey No.64/2 measuring 3 acres 37 guntas and Survey No.64/3 measuring 3 acres 38 guntas of Chatchatnahalli village, Halebeed Hobli, Belur Taluk.
5. When the matter was pending in RA No.7/2013, plaintiff No.1 died and the present respondent Nos.2 to 4 were brought on record as her legal representatives.
6. For the purpose of convenience, parties will be referred to hereafter with their ranks before the trial Court.
7. Plaintiffs contended that the suit schedule property were granted to them under grant order No.10/89 dated 11.04.1990 and since then they were in possession and enjoyment of the same as absolute owners thereof. They further contended that the defendant with an intention to grab the property attempted to construct the house in the said property. It was further alleged that during pendency of the suit, he put up structure in 0.14 guntas of land.
8. Defendant contended that suit property is granted to his wife and three others by Taluka Executive Officer, Belur Taluka Panchayath on 18.10.1996 and since then they were in possession. He contended that the land allotted to the plaintiffs and one Lakshmamma was earlier allotted to a freedom fighter by name Sri K.M.Chikkannashetty in Belur Taluk and he challenged the subsequent allotment to the plaintiffs and Lakshmamma. He further contended that the allotment in the names of plaintiffs and Lakshmamma was cancelled which was confirmed by this Court by order dated 09.10.2001 in WP No.34534/2001.
Defendant contended that the allottees are necessary parties to the suit. He denied possession of the plaintiffs.
9. On the basis of above pleadings, the trial Court framed the following issues:
(i) Whether the plaintiffs prove that they are the owners of the 0.14 guntas land mentioned in their sketch?
(ii) Whether the plaintiffs prove that they are in lawful possession and enjoyment of the suit schedule properties?
(iii) Whether plaintiffs prove that alleged interference by the defendant?
(iv) Whether plaintiffs prove that defendant has encroached 0.14 guntas of plaintiff property and constructed house?
(v) Whether plaintiffs are entitled for the relief sought?
(vi) What Order or Decree?
10. During pendency of the suit, the plaintiffs applied for appointment of commissioner to survey the property and to fix up the identity of the property in question. Defendant did not oppose the application. Therefore, Assistant Director of Land Records, Belur was appointed as Commissioner. He executed the work and submitted his report.
11. Plaintiffs in support of their case examined second plaintiff as PW.1 and a neighbour was examined as PW.2 and the Commissioner was examined as PW.3. Exs.P1 to P21 were got marked. Defendant got himself examined as DW.1 and Exs.D1 to D15 were marked. Commissioner’s report, Sketch and mahazar were marked as Exs.C1 to C3.
12. The trial Court after hearing the parties decreed the suit on the following grounds:
(i) Grant in favour of the plaintiffs is proved by grant certificates Ex.P1 and Ex.P2;
(ii) Their possession is proved by revenue records Exs.P3 to P12, the evidence of PW.1 to PW.3 and the commissioner’s report- Ex.C1.
(iii) Defendant admits the grant of land to plaintiff Nos.1 and 2. Though he contends that the same land was allotted to his wife and others under Exs.D1, D6, D9 and D11, the allotment certificates relied upon by him show that the sites allotted to defendant’s wife and three others were formed in Survey No.67 and not in the suit land.
(iv) Nothing is elicited impeaching evidence of PW.1 to PW.3. Evidence of DW.1 contains admission and ignorance of the facts of the case.
13. Defendant challenged the said judgment and decree before the Senior Civil Judge, Belur in RA No.7/2013. The First Appellate Court after hearing the parties, by impugned judgment and decree allowed the appeal and set aside the judgment and decree of the trial Court and remanded the matter to the trial Court for retrial on the following grounds:
(i) The trial Court has not passed any order on objections of the defendant to the commissioner’s report;
(ii) The trial Court without perusing the order of the commissioner has rendered judgment solely relying on the commissioner’s report which is unsustainable;
(iii) The trial court has not considered plea of non joinder of necessary parties;
(iv) Plaintiffs could not have maintained suit for bare injunction without seeking declaration of title and the boundaries of the suit schedule property do not match with the grant order; and (v) The commissioner had not conducted chain survey.
14. Sri B.N.Anantha Narayana, learned Counsel for the appellant seeks to assail the impugned judgment and decree of the First Appellate Court on the following grounds:
(i) First Appellate Court without re-appreciating pleadings and evidence of the parties has solely on the ground of non consideration of the commissioner’s report resorted to remand the matter which is unsustainable;
(ii) Observations of the First Appellate Court that the trial Court has not passed any order on the commissioner’s report and not accepted the objections to the commissioner’s report is perverse;
(iii) Documents of the defendant himself show that the properties allegedly allotted to his wife and others were in Survey No.67 and not in Survey Nos.64/2 and 64/3;
(iv) The trial Court on thorough appreciation of the oral and documentary evidence had arrived at conclusion and that should not have been reversed without meeting the said reasons and findings;
(v) Since the property allegedly is allotted to the wife of the defendant and others was unconnected to suit property and the plaintiffs did not seek any relief in respect of the said property namely survey No.67, there was no need to implead them.
15. In support of his contention, he relies upon the decision in Laliteshwar Prasad Singh v. S.P.Srivastava [(2017) 2 SCC 415].
16. Per contra, Sri B.M.Mohan Kumar, learned Counsel for respondent No.1 strenuously seeks to support the impugned judgment and decree on the following grounds:
(i) Identity of the property was not proved;
(ii) Allotment of land to the plaintiffs was cancelled in view of litigation raised by Sri Chikkannashetty;
(iii) Commissioner did not conduct commission work in accordance with law and as per memo of instructions issued by defendant;
(iv) No order was passed on commissioner’s report;
(v) Since allotment in favour of the plaintiffs was cancelled and they were not in possession, they have no right to seek any reliefs;
(v) Since commissioner’s report was incomplete and defective, the First Appellate Court was justified in remanding the matter to the trial Court; and (viii) Defendant’s wife and other allottees shown in Exs.D1, D6, D9 and D11 were necessary parties to the suit.
17. In support of his contentions, he relies upon the following judgments:
(i) Jegannathan v. Raju Sigamani [(2012) 5 SCC 540] (ii) Shanthaveerappa vs. K.N.Janardhanachari [ILR 2007 KAR 1127] 18. Having regard to the rival contentions, the points that arise for consideration in this appeal are:
(i) Whether First Appellate Court’s finding that the trial Court granted decree solely based on the commissioner’s report is sustainable?
(ii) Whether the finding of the First Appellate Court that the trial Court did not pass any order accepting commissioner’s report is sustainable?
(iii) Whether First Appellate Court’s remand order is sustainable in law?
19. It is prime contention of learned Counsel for the appellant plaintiff No.2 that the Appellate Court cannot resort to remand order unless, it re-appreciates the pleadings and evidence adduced by the parties and transverse the findings recorded by the trial Court on the issues. It is his contention that only on so transversing the findings of the trial Court, if the First Appellate Court found it necessary to receive any additional evidence and frame additional issue or give opportunity, then that could be resorted.
20. In Laliteshwar Prasad Singh’s case referred to supra, the Hon’ble Supreme Court has laid down guidelines in exercise of power to remand in para 13 of the judgment as follows:
“13. An appellate court is the final court of facts. The Judgment of the appellate court must, therefore, reflect the court’s application of mind and record its findings supported by reasons. The law relating to powers and duties of the first appellate court is well fortified by the legal provisions and judicial pronouncements. Considering the nature and scope of duty of the first appellate court, in Vinod Kumar v. Gangadhar (2015) 1 SCC 391 : (2015) 1 SCC (Civ) 521, it was held as under:
“12. In Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179, this Court held as under:
‘15. .... The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court.
... while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it.’ The above view has been followed by a three- Judge Bench decision of this Court in Madhukar v. Sangram (2001) 4 SCC 756, wherein it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. ”
(Emphasis Supplied) 21. Even in Shanthveerappa’s case relied upon by the learned Counsel for the defendant himself, it was held that the Appellate Court shall exercise power of remand sparingly and cautiously as re-trial of the case is a serious matter and may mean complete waste of public time. An order of remand should not be taken as a matter of course. It was further held that the remand shall be resorted only if the First Appellate Court finds that no real trial of the dispute and no complete or effectual adjudication was taken place before the trial Court otherwise, as it causes material prejudice to the party to the case.
22. In Shanthaveerappa’s case and Jegannathan’s case were relied upon by the learned Counsel for the defendant to contend that the power to remand is conferred on the First Appellate Court under Order 41 Rule 23 of CPC even in cases other than the one decided on preliminary issue. Absolutely, there is no dispute with regard to the said principle. But in the very same judgment, it is held that even in such cases, Appellate Court having regard to Section 107 of CPC has to first re-appreciate pleadings, evidence presented by the parties and the findings recorded by the trial Court and only if the First Appellate Court finds that the findings of the trial Court are unsustainable, it should disagree with those findings and then resort to remand in the aforesaid circumstances.
23. Whether the above said principles were followed in this case is the question. To consider that, this Court should also has to consider the merits of the contentions of each parties. The defendant did not dispute the allotment of suit land measuring 3 acres 37 guntas in Survey No.64/2, measuring 3 acres and 38 guntas in Survey No.64/3 under Ex.P1 and two grant certificates. But his contention was that the very said land was allotted to a freedom fighter by name Sri Chikkaveerannashetty and he challenged the grant under Ex.P1 and that was cancelled and cancellation was upheld by this Court.
24. Except, taking such contention in the written statement, defendant did not place any material to substantiate the said contention. The contention of cancellation of the grant remained a bare pleading without any proof. The trial Court held that Ex.P1-grant certificates and Exs.P2 to P5, RTC, and mutation Register extract have presumptive value under Section 91 of the Indian Evidence Act, 1872 and under Section 133 of the Karnataka Land Revenue Act, 1964 and the said presumption was not rebutted by defendant.
25. One more contention raised by defendant was Survey No.64 in all measured 35 acres, and out of the very same property, four sites were allotted to his wife and three others under Exs.D1, D6, D9 and D11 and the plaintiffs were claiming sites of those allottees.
26. As observed by the trial Court, Exs.D1, D6, D9 and D11 themselves state that those sites formed part of Survey No.67. Defendant did not adduce any evidence to show that Survey No.64 was sub-divided and re-numbered as Survey No.67 and sites mentioned in Exs.D1, D6, D9 & D11 formed part of Survey No.64. As held by the trial Court, Exs.D1, D6, D9 & D11 are grant certificates have presumptive value under Section 91 of the Indian Evidence Act.
27. Section 91 of the Indian Evidence Act bars leading of oral evidence contrary to the contents of said written grant orders. DW.1 did not depose that those sites were in Survey No.64. In absence of such pleadings and evidence, learned Counsel for the appellant in thin air vehemently contended that Exs.D1, D6, D9 and D11 are part of erstwhile survey No.64 which deserves no merit.
28. Plaintiffs also examined PW.2 neighbouring land owner who speaks about possession of the plaintiffs. Infact defendant himself in his written statement has stated that PW.2 is neighbouring land owner and he is cultivating land. Under such circumstances, evidence of PW.2 was credible and natural. The trial Court rejected the contention of defendant and examined Exs.D1 to D15 and held that the defendant’s documents related to Survey No.67 and not Survey No.64. Defendant did not choose to examine any of allottees under Exs.D1, D6, D9 & D11 to substantiate his contention that they are in possession of suit property and they have constructed house there.
29. In addition to such appreciation of oral and documentary evidence, the trial Court appreciated commissioner’s report and evidence of Commissioner- PW.3.
30. Learned Counsel for defendant contended though Commissioner is Court officer, affidavit evidence of the commissioner was prepared by the plaintiff’s counsel, that shows that the commissioner was biased. Infact, no such contention was raised before the trial Court. No suggestion of bias or prejudice was made to the commissioner in cross-examination. Only suggestion made to the commissioner in the cross-examination was that in the report he has not answered the memo of instructions of defendant which he denied.
31. The defendant in his memo of instructions to the Commissioner, sought following information from the Commissioner:
(i) Identity of land of Sri K.M.Chikkannashetty;
(ii) Total extent of survey No.64, location of land of Chikkannashetty, mosque, school and land under cultivation of Mallamma W/o. PW.2.
32. In his memo of instruction, he did not seek for any chain survey. Commissioner in his report Ex.C1, Sketch Ex.C2 state that entire survey No.64 measured 35 acres 5 guntas. Commissioner has answered all the querries of defendant in the report. The defendant in his cross-examination unequivocally admitted that he has no right over suit property, he does not know whether the plaintiffs were in possession, he does not know where it is situated, he does not know grant certificates produced by him belongs to which property, he does not know if those grant certificates were in no way related to the suit schedule property, he does not know in respect of which property, suit is filed, he did not verify if documents produced by him relate to which property, he does not know which department has given those documents.
33. He says that he does not know the area and boundary of the suit property and when they were granted to the plaintiffs. He states that after service of summons, in the suit, he did not verify about the suit property. He goes to the extent of saying that he has not filed any written statement in the suit. To the suggestion, whether there was house in the suit property, he states that since it is not related to him he does not know about it.
34. So far as commissioner’s work, he states that when the commissioner came to the spot, he was present. He states that the particulars mentioned in the commissioner’s report may be correct. He states that when the commissioner came for execution of the work, he did not produce any documents. He admits that the commissioner conducted inspection in his presence and prepared report. He has given clear admission that he has no right over Survey No.64/2 or possession of the same. To the suggestion that he has put up construction encroaching 0.14 guntas of land, he states that he does not know that.
35. The trial Court after considering such clear admission of the defendant and appreciating other oral and documentary evidence on record, relying upon commissioner’s report decreed the suit. But, still the First Appellate Court says that the trial Court has rendered judgment solely based on the commissioner’s report which is apparently incorrect.
36. The First Appellate Court says that the trial Court did not consider the objections to the commissioner’s report and it had not passed any order on that. In Paras 22, 23 and 24 of the judgment of the trial Court, the trial Court considered the objections raised by the defendant to the Commissioner’s report and the evidence of the commissioner with reference to cross-examination by the defendant also. In para 29 of the judgment, the trial Court observed as follows:
“29. ............ Except this nothing has been asked and questioned the PW.3. The defendant has not disputed the Commissioner report which remained unquestioned. Hence, I do accept the report given by the Commissioner i.e. Exs.P19 to 21.”
(Emphasis supplied) 37. Unfortunately, the First Appellate Court inspite of such clear findings says that the trial Court has not accepted the commissioner’s report. Order 26 Rule 10 states that Commissioner’s report forms part of record of the Court. It is settled position of law that the party at whose instance commissioner is appointed may not even examine the commissioner. It is for the person who objects the commissioner’s report, to summon him and examine him with reference to the objections raised by him.
38. At this juncture, it is necessary to note the objections were raised by defendant to the commissioner’s report are on two grounds. In the first ground, he alleges that before the commissioner he told that one Timmegowda S/o. Siddaramegowda has encroached on the suit property, but commissioner in the report states that the house is constructed by the defendant. The defendant has not put up any such construction.
39. The second ground of objection is that though he briefed the commissioner about possession of his wife and others and furnished all records concerning that, the same was not mentioned in the commissioner’s report. But he himself admitted in the cross-examination that he did not furnish any record to the commissioner. Thus, the defendant failed to substantiate such objections in the cross-examination of the commissioner.
40. Under those circumstances, the trial Court has rightly accepted the commissioner’s report. The First Appellate Court without re-appreciating the pleadings and evidence and without transversing the findings recorded by the trial Court which in the opinion of this Court is sound and sustainable, in one stroke said that the order was passed by the trial Court solely on the basis of the commissioner’s report and without any order on the objections raised by the defendant on the commissioner’s report.
41. Such observations and findings of the First Appellate Court were clearly contrary to the materials on record. Therefore, the impugned judgment and decree of the First Appellate Court reversing the findings of trial Court and remanding the matter to the trial Court is wholly unsustainable in law. Under the circumstances, the points formulated for consideration are answered in the negative.
The appeal is allowed with compensatory costs of Rs.10,000/- payable by the defendant. The impugned judgment and decree of the First Appellate Court dated 09.10.2014 passed by Senior Civil Judge, Belur in RA No.7/2013 is hereby set aside and the judgment and decree dated 13.08.2010 in OS No. 103/2003 passed by the trial Court namely, the Civil Judge (Junior Division), Belur is hereby confirmed.
KSR Sd/- JUDGE