IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO R.S.A.No.3125/2006 C/W R.S.A.No.1211/2007 R.S.A.No.3125/2006:
BETWEEN:
SRI SHANKARAPPA GOWDA S/O APPANNA GOWDA MAJOR R/AT BELMUDI, CHAVALAMANE VILLAGE KOPPA TALUK-577126 CHIKMAGALUR DISTRICT ..APPELLANT (BY SRI G LAKSHMEESH RAO, ADVOCATE) AND:
1.SRI B D SANNAPPA S/O DEVANNA GOWDA @ DYAVAPPA GOWDA MAJOR R/AT BELMUDI, CHAVALAMANE VILLAGE KOPPA TALUK-577126 CHIKMAGALUR DISTRICT 2.SRI C C KRISHNAPPA S/O CHANNAPPA GOWDA MAJOR R/O BELMUDI CHAVALAMANE VILLAGE KOPPA TALUK -577126 CHIKMAGALUR DISTRICT ..RESPONDENTS (BY SRI K PRAKASH, ADVOCATE FOR R-1, R-2 SERVED) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED:16.08.2006 PASSED IN R.A.NO.134/2006 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-I, CHIKMAGALURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED: 30.03.2002 PASSED IN O.S.NO.55/1998 ON THE FILE OF THE CIVIL JUDGE (JR.DN.), KOPPA.
R.S.A.No.1211/2007:
BETWEEN:
SRI B SHANKARAPPA GOWDA S/O.APPANNA GOWDA AGED 61 YEARS R/O.BELMADI CHAVALAMANE VILLAGE HARIHARAPURA HALLI, KOPPAL TALUK-577 126, CHICKMAGALUR DISTRICT ..APPELLANT (BY SRI G LAKSHMEESH RAO, ADVOCATE) AND:
DEVANNA GOWDA @ DEVAPPA GOWDA AGED 74 YEARS S/O.GUNDANNA GOWDA R/O.BELMUDI, MALIGEMANE, CHAVALAMANE VILLAGE HARIHARAPURA HALDI KOPPAL TALUK-577126, CHIKMAGALUR. ..RESPONDENT (BY SRI K PRAKASH, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED:23.12.2006 PASSED IN R.A.NO.382/2006 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-II, CHIKMAGALURU, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED: 03.11.2003 PASSED IN O.S.NO.40/1998 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) KOPPA.
THESE RSAs COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Counsel for appellant present. Counsel for respondents absent. Since the matters are interconnected they are taken up together for disposal.
2. R.S.A.No.3125/2006 is directed against the Judgment and decree dated: 16.08.2006 passed in R.A.No.134/2006 by the Presiding Officer, Fast Track Court-I, Chikkamagaluru, wherein appeal came to be dismissed with cost and Judgment and decree passed in O.S.No.55/98 came to be confirmed and R.S.A.No.1211/2007 is directed against the Judgment and decree dated 23.12.2006 passed in R.A.382/2006 by the Presiding Officer, Fast Track Court-II, Chikkamagaluru, wherein appeal came to be allowed and Judgment and decree dated 03.11.2003 passed in O.S.No.40/98 by the Civil Judge (Jr.Dn), Koppa was set aside and consequently suit came to be dismissed.
3. For the purpose of convenience the following tabular representation is made in respect of original suit and regular appeals in connection to present regular second appeals.
SL.
NO.
O.S. NO.
RESULT R.A. NO.
RESULT RSA NO.
1. 40/98 filed by B.Shanka-
Decreed on 382/2006 Allowed on 23.12.2006 1211/2007
B.D.Sannappa Against B.Shanka- rappa Gowda and anr 30.03.2002 16.08.2006 4. Thus, the plaintiff-B.Shankarappa Gowda in O.S.No.40/98 is the appellant in R.S.A No.1211/2007 and defendant-B.Shankarappa Gowda in O.S.No.55/98 is the appellant in R.S.A No.3125/2006.
5. For the sake of convenience, parties are hereinafter referred to with reference to their status as held by them before trial court.
6. The subject matter of the suit schedule is land in Sy.No.210 of Chavalmane Village, Hariharapur Hobli, Koppa Taluk, Chikkamagalur District, which is stated to be vast land wherein several grants are said to have been made by the Government.
7. O.S.No.40/98 is concerned was filed by Shankarappa Gowda, the plaintiff therein for the relief of injunction claiming that he was granted 10 guntas of land in Sy.No.210 of Chavalmane Village. Suit came to be decreed on 03.11.2003 wherein relief of injunction was granted. Being aggrieved by this, defendant-Devanna Gowda preferred appeal before the learned Presiding Officer, Fast Track Court-II, Chikkamagaluru in R.A.No.382/2006 that came to be allowed on 23.12.2006 consequently suit was dismissed. Being aggrieved by the same, Shankarappa Gowda has preferred R.S.A.No.1211/2007.
8. Similarly O.S.No.55/98 was filed by B.D.Sannappa in respect of land in Sy.No.210 of Chavalmane Village to the extent of 15 guntas came to be decreed in his favour on 30.03.2002. Being aggrieved by the said Judgment and decree of the trial court, defendant -Shankarappa Gowda preferred R.A.No.134/2006 before the Presiding Officer, Fast Track Court-I, Chikkamagalur and appeal came to be dismissed on 16.08.2006. Thus, Shankarappa Gowda is the appellant-defendant in R.S.A.No.3125/2006. Thus, the looser in both the cases is Shankarappa Gowda who won before the trial court but lost in the appellate court. Similarly lost in the trial court and first appellate court as well.
9. Learned counsel for appellant- Shankarappa Gowda in both the cases present. However, learned counsel for respondents is absent.
10. In O.S.No.40/98 the grant of land is said to be during the year 1991-92 in favour of Shankarappa Gowda, the plaintiff therein and saguvali chit was also issued on 01.10.1996 and plaintiff- Shankarappa Gowda was said to be in possession and enjoyment of the property to the extent of 10 guntas in Sy.No.356(old No.210/P) of Chavalmane Village and bounded on:
East by : Thunga river West by : Government vacant land and road North by : Government vacant land and burial ground South by : Land belong to B.C.Krishnappa 11. In this connection, trial court was accommodated with oral evidence of PW-1-plaintiff – Shankarappa Gowda, DW-1 - Devappa Gowda-defendant. Documentary evidence Exhibits P-1 to P-9 on behalf of plaintiff and Exhibit D-1 on behalf of defendant.
12. Suit in O.S.No.55/98 filed by Sannappa claiming that he is in possession and enjoyment of the land to the extent of 15 guntas in Sy.No.210 of Chavalmane Village and bounded on:
East by : Tunga River West by : Government land and then Taluk Board Road North by : Government Forest land (Govt.Hodya) South by: Land under cultivation of Puttanna Gowda The plaintiff-Sannappa claims that he was granted schedule property by the Land Grant Committee of Koppa Taluk as per the resolution of the Committee dated 07.07.1997. The land was said to have been measured and demarcated by the surveyor in the presence of Tahsildar, Revenue inspector and the plaintiff-Sannappa.
13. Learned trial Judge was accommodated with oral evidence of PW-1 Sannappa, PW-2- Narasimhaiah and DW-1- Shankarappa Gowda-defendant. Documentary evidence Ex.P-1 – Certified copy of the resolution, Ex.P-2-Revenue Sketch, Ex.P-3 & 4 –Boundary extracts, Ex.P-5 –Certified copy of plaint, Ex.P-6 – Certified copy of plaint, P-7- Certified copy of resolution on behalf of plaintiff. Exhibits D-1 to D-17 on behalf of defendant.
14. The plaintiffs in the respective case claim that they are in possession and enjoyment of 10 guntas and 15 guntas of land. The disposal of the case finally has been in favour of Dyavappa, who is said to be none other than father of Sannappa. Insofar as O.S.No.40/98 is concerned plaintiff- Shankarappa Gowda who is the defendant in O.S.No.55/98, being aggrieved has preferred these second appeals.
15. This court framed the following substantial questions of law on 01.04.2009 for both the appeals:
“1. Whether the manner of rejection of the application filed under Order 26 Rule 9 of the Civil Procedure Code has ultimately resulted in the wrong conclusion being rendered by the Courts below?
2. Whether the Courts below have erred in appreciating the evidence available on record without coming to a definite conclusion with regard to the boundaries as contended by the parties?”
16. The substantial questions of law are reframed as under:
“1. Whether the plaintiff and defendant in both the cases were wrong in not seeking clubbing of cases before the trial court and first appellate court in the facts and circumstances of the case.
2. Whether the courts erred in not applying the legal approach of appointing court commissioner for the purpose of identifying of the properties in Sy.No.210 of Chavalmane Village?”
17. In the light of common Sy.No.210 of Chavalmane Village and ownership of the Government, whether both the courts seriously erred in not ordering for joint survey to pave way for identification of both the properties.
18. Learned counsel for appellant in both the cases submits that the trial court and appellate court erred in not getting the suit schedule property surveyed jointly in the presence of parties to the lis. Learned counsel would further submit that it was an ideal case the presence of qualified surveyor could have allowed the bifurcation of rights and duties of the parties in respect of schedule properties in both the cases.
19. Insofar as O.S.No.40/98 is concerned Ex.P-2 is the RTC extract bearing Sy.No.210. Column No.9 of the RTC which meant for owner’s name contains the name of Shankarappa Gowda son of Appanna Gowda to the extent of 10 guntas of Chavalmane Village, Hariharapura, Koppa Taluk, Chikkamagalur District. His name is mutated and it is stated that there is a condition against alienation for 15 years and the granted property is Khatha No.88. Ex.P-3 is the mutation extract. The enabling and material document for Shankarappa Gowda is concerned it is Ex.P-1 is a grant certificate wherein description of the land granted to Shankarappa Gowda is mentioned as Sy.No.210 of Chavalmane Village to an extent of 10 guntas and date of grant is mentioned as 1st October, 1996.
20. The grievance of the appellant is that grant of land was made, property was identified, measured, it was fragmented, new number also was given as R.Sy.No.356 as borne out in Ex.P-7.
21. It is stated that a resolution was passed granting 15 guntas of land in Sy.No.210 of Chavalmane Village as per Ex.P-1 in O.S.No.55/98. Ex.P-2 is sketch. Ex.P-3 and 4 are the endorsement mentioning Sy.No.210, extent 15 guntas and boundaries of the land of Sannappa. Ex.P-5 and P-6 are certified copy of plaint and Ex.P-7 – certified copy of resolution.
22. Learned counsel for appellant would submit that each of the parties not disputing the existence of the property and that the land that was granted in Sy.No.210 is to the extent of 15 guntas for plaintiff- Sannappa and 10 guntas for defendant-Shankarappa Gowda. Both the matters would have been resolved and difference ought to have been removed at the bud had either trial court or the first appellate court focused attention on getting the schedule property surveyed in the presence of both the parties.
23. In the circumstances yes the suits of the present nature are invariably required to be clubbed for the purpose of common disposal. In this direction both the parties had responsibility to express upon the court the solution that would be available in the form of joint survey and even the court for that matter has responsibility to get the local inspection of the property made by a competent commissioner to thrash out the controversy in the suit.
Order XXVI Rule 9 of CPC is as under:
“9. Commissions to make local investigations – In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:
Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.”
24. It is an ideal case wherein court commissioner should have been appointed for getting the schedule properties local inspection and that would have cleared the claim and original claim in respect of the schedule properties in each of the case. As both the Judgments are connected to each other do not contain the material aspect of identification of the properties with reference to the land falling under description in the plaint schedule. As a result of which the lis is pending despite the matter is disposed of before the trial court and the first appellate court. In this direction the same makes the Judgment erroneous and infirm. They deserve to be set aside. The reframed substantial questions of law are answered accordingly.
In the circumstances of the case the legal point lied in surveying of the schedule properties in the presence of both the parties.
Hence, the following:
ORDER Appeals are allowed. The Judgment and decrees dated 16.08.2006 passed in R.A.No.134/2006 and dated 30.03.2002 in O.S.No.55/98 and Judgment and decrees dated 23.12.2006 in R.A.No.382/2006 and dated 03.11.2003 in O.S.40/98 are set aside. Matter is remanded to the trial court for fresh adjudication by clubbing both the suits with a direction that the trial court shall appoint the commissioner-surveyor and get the land in both the properties surveyed by means of joint survey and prepare sketch in respect of schedule properties in both the suits and in case of availability and existence, prepare a report, sketch and peruse the same with existing revenue records and grant details and thereafter the matter to be adjudicated with the help of report and sketch. The expenditure for surveying of schedule properties to be borne by both the parties. The parties are at liberty to examine and cross examine the court commissioner who is so appointed. Thereafter the trial court shall proceed to dispose of the matter by considering all the material documents and evidence available on record as expeditiously as possible.
In order to avoid wastage of judicial time the parties shall appear before the trial court on 16.09.2019 without waiting for further notice. Needless to state that both the suits to be taken together and shall be disposed of through a common order.
In the circumstances, parties to bear their costs.
Sd/- JUDGE SBN