EN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 18'" DAY OF OCTOBER, 2010
BEFORE
THE HON'BLE MR. 3'Us'r:CE ANAND BYRg§{{fEj§1)Y'v..
REGULAR SECOND APPEAL NO. 09 ms E '
B ETWEEN:
Kempeeregowda,
S/0 Manchegowda,
Since Deceased by LRs
1. MK. Putta1inga§.af;- ,
Aged about 55 years,'
'Aged about "49 ye*a_1:é§; "
3.4;' " R.ChaRn"ay_e'efagO'=wda
ged aboutfii ' years,
*
A§edA’ab0ut 37 years,
A11 aEe«;_sOns of Late Kempeeregowda
= R. Residing at Makli Village,
. _Mé§;1ur Hobli,
Channapatna Taluk. .. APPELLANTS
” (By Shri. s.R. Hegde Hudlamane, Advocate)
AND:
Ereegowda
S/o Kempeeregowda,
Aged about years,
R/o Makali Village,
Malur Hobli,
Channapatna Town and Taluk,
Ramanagar District — 571 501.
(By Shri. C.R. Subramanya,VAdyocate*)._
This Regular Second Appeal isv._filed.under Section 100
of Code of Civil Proce’d.ure,_”i1 ;agai’npst the judgment and
decree dated 2.1 l.2007’passec_i_ i’npiR.As..l_\lo;’79/2007 on the file
of the Principal Ci}./11:’ =Jud_.ge_ Ramanagaram,
dismissing thefappealfigfiled_fagainst–.the judgment and decree
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coming on for Hearing
this d.ay,= the coui’t~,’de1iVere’d the following:
« = _ * “~¥_UDGMENT
_ Fleard*the ‘plearned”ii’counsel for the appellant and the
counsel”for..the respondent.
A V’ ” 1 facts briefly stated are as follows:–
.Thic1i_p_a.f)pellant was the plaintiff before the trial court in
a suitifor bare injunction. The suit property was land
measuring 6 acres 20 guntas called out of 1000 acres of
forest land which was said to have been granted in favour of
Boraiah, son of Channegowda on 145.1956 and renumbered
as Block No.20 and 26. After the death of Boraiahfhis-«.son
Puttalingaiah is said to have been cultivating th’e_.’sa,me:.”t-ll
5.3.1990, the original plaintiff, whgi is
have purchased the land for valuablelconsidgerationiundera 5
registered sale deed and soughtto’ have entered his name in
the record of rights. was the respondent —
defendant who’. «claimed», in unauthorised
Cultivation intheisaid block of land and that
he had __filed and seeking regularisation of his
cultivation and he also relied upon RTC entries for the year
.tio–..Vestablish that his possession of the land.
‘~ the respondent also challenged the grant made
inlfavouriof the petitioner’s vendor on the ground that there
, vvas no revenue record as regards any such grant being made
in favour of the vendor of the appellant. The said objections
were turned down by the competent authorities resulting in
an appeal before the Karnataka Appellate Tribunal, which
also came to be dismissed as on 10.1.1994. The dismissal
was affirrned in writ proceedings before this court ii} WP
5043/ 1994 and the finding against the respondent as”re’gard$
tampering of the record was also taken note of.
it is the case of the appellantpthat meta: lla’sf}the–.p
respondent’s attempts to tal<epposselss__io'n_of thelvlandv thei'ei"ore' ~.
resulted in the proceedings attairiiiig finality 'be-forelvthils court
on the writ side. it isi._in«.the.'_aboye-«background, that the suit
was filed for injunction–,against ttheilrespiondent which was
resislitedfil produced material evidence to
establish this ease.for,possiession. However, the trial court on
b:;is;is~»of thellC'orn'r11issioner's Report negated the material
to be produced by the appellant and held
that the' identity of the property was in doubt and the plaintiff
A. had failed to prove his possession over the suit property and
'accordingly, dismissed the suit. The same having been
/' K
'-…W
affirmed in appeal before the lower appellate court, the
present appeal is filed.
3. The appellant has now filed an application_.u__nder
Order XLE Rule 27 of the Code of Civil Procedure,V”:l9.:0l’8,
seeking to produce additional documents, ‘l”namely,’ V’
judgment passed by the Karnatakaffrkppellate
revision petition dated 10.13994 andlan order
proceedings passed by this in 1994. The
respondent, on the other lliand, objections to the
same that the4_o”rd_er was available
datelofv the trial and therefore, the
same ,soug_ht be–produced at this point of time, to fill
up ;the 1acuna”‘i.nV’the appellanfis case, cannot be considered as
.l ‘ ‘acriteria -fo’r..adrI1itting the additional evidence and hence, the
id ‘- reduires to be rejected off–hand.
‘”lThe appeal was admitted on the following
2 » if s’u”0.,Stantial question of law, namely,
“l. Whether in the facts and circumstances of
the case, the courts below were justified in
dismissing the suit of the plaintiff on. th_e basis
of the Commissioner’s Report, without
considering Exhibits P.l to; P29, in their
proper perspective?”
5. The learned counsel for the appellant
this court through the reasoning of the trial court-._woiiildll V’
out that the trial court has piaced
Commissioner’s Report ancl9a-._comrnissioner appoignted
even before the parties had tendered their e”vidence,l}which in
itself was an infirmity} *ilAnd_ fifi,rt:i1i%lr–,l;’:ihie -trial court having
nega.ted’a’t-he’Y;dociiii’ients,”–whieh’*were public documents and
which-. were -notlfinll’vdispute, while also overlooking the
consistentli findings the respondent of having tampered
., ‘ fnaterial documents which he had set up to establish
._ “his.icase’_~ifor»l.po’ssession of the suit property. The counsel for
the ‘appellant would endeavour to point out that there was no
2 disputle as regards grant of land to the extent of 6 acres 20
guntas of land in favour of the appellants vendor and the
same having been purchased 20 years after such grant, could
not be lightly dismissed on a purported infirmity in the
description of the boundaries merely based on the
Commissioner’s Report, when it was also not in dispute that
the notice of the Commissioner’s inspection of.«jthe}._suit
property was never served on the appellant and service V’
the alleged brother’s son of theiiiappellant
service. Even though the p1aintiffi’hald.. crossgeexatnined. ‘th.ei’=,
commissioner at length, the totallreliance’-placed the trial
court on the Comniissiorier’si__repo.rt”inrholding that there was
serious infirmity in the”dc-scription io.f’_the:’.vbioundaries in the
suit _ ‘ ‘howeveri,Waddressing the innumerable
docurnimtisyppreducied Vat-.__:l:’:tliibits R1 to R29 to establish
possession ov_e_r”the suit property was a travesty of justice
.A Hand sthereifore, the substantial question of law would
‘– Ai.n’eices’s’ari1l§/Vliave to be addressed in favour of the appellant as
there is no discussion or reasoning forthcoming in negating
V’ , Exhibits R1 to P29 while proceeding to judgment merely
on the basis of the Commissioner’s Report. it is in this vein
that the learned counsel for the appellant would seek to
demonstrate that the courts below were not justified in
negating the appellant’s case especially, in the light of the
adverse findings against the respondent insofar his conduct is
concerned in seeking to set up documents which were
to be tampered with.
6. The learned counsel formtheé respondent l.”wl_o.uld_
submit that there is no substantial q”u.es:t–ion of –that
arise for consideration. The”-vs.appellant,’—-inva bare
injunction, was requi:red,_to establish. claim for possession
with reference to the S_1..1.il:. Property iv ought to have
described in in’o1’der to establish his claim for
possessiorn It ‘is-.or1._Vr’ec…oird that the appellant had sought to
am°end.yttrepboundaries of the suit property subsequent to the
“the._vC.ommissioner’s Report. The contention that
there __vW£1VS.l~” no service of notice of the Commissioner’s
A. intended investigation of the suit property is also not correct,
‘since the finding of the court is that a member of the family
of the appellant was duly served with the notice and
therefore, the responsibility was of the appellant to be present
at the inspection by the Commissioner. The further
circumstance that the appellant had cross–exarninecl the
Commissioner at length is also a matter of recot’d;-.if7lV”heA4
findings of the trial court as regards boundariesrof’thee-iiisuitl’ ii
property and the discrepancies wiithi”liefeifenceito._ _votheri”.
revenue documents are clearusfindingsp of factg,\.vjhic’lii’doi’. not
give rise to any substantial que’st.i_ion of law-. he additional
documents sought to be._p’i*odi1ced ares._docur_rients which were
available with appellantliati the._approlpriate point of time
and the appeiilantiiipiiattehipt to produce documents to defeat
the claira of the.._respond–e_n’t< "is an exercise in futility, since
the "1'espondentH'isii application for regularisation of his
. :'ocVcupat.i:on:'of the land is pending consideration before the
* ycornpeten§'t—-aiuIthority even as on date and it is incorrect on the
pairt.o'f.the appellant to contend that the challenge to the grant
«favour of the appellants vendor having reached finality,
there is no case made out by the respondent for his claim for
possession. The learned counsel would submit that the
10
question remains open as long -as the application for
regularisation of occupation, which is supported by.___the
revenue entries in the RTC pertained to the year’V.i.97:S%76,.
not in serious dispute and would yet remain foryconsideratioii
by the competent authority. Th6I:[£)fOI:6,V’1l,1ii3;> {Suit ifor.__ba.re
injunction, the plaintiff having ass to ; his f.
possession over the suit defined
boundaries to the samHe,:ii_,.’it that the courts
below have, rejecting the
plaintiff’ question of law
which wouidvarise. for éconsideratilon.
L7. aboye ‘background, the appointment of a
» :’«C_om.miSsione.r even before the parties had tendered their
“.e’vidence7f–: isexplained by the circumstance that this court
while.’ ‘considering the appeal preferred against an order of
ii V._ter:_nporary injunction granted by the court below, was
impelled to direct that there be an appointment of a
Commissioner since the identity of the property was in
1.1
serious dispute. It is in that background that the court below
had appointed a Commissioner. The Commissioner’s Report
having raised certain questions as regards infirmity:”i-nfthe.
description of the boundaries has possibly”coinpelleid’ _
appellant to amend the boundaries
Notwithstanding such amendment, ith_e”trial ,eo2irt:4_ halving
found infirmities in the descriptioh-_o_f the suit property, and its
boundaries, has resulteidin the to the conclusion
as it is by its impugned’judgen1e4nt.:.*–__ 3
Be gas lip, circumstance that the
responden’t’s cliallengei’l’–toV”‘the”grant made in favour of the
appellant”s.,vevn.dor_ haviingiiiattained finality in the same having
2/_1V,3_iC3vCAtCd and”‘notwithstanding the application of the
.ijespo,n’d.entiiseejezing regularisation of his occupation over the
very suitifpropeity in respect of 4 acres of land pending
it A. eonside1*ation, the appellant seeking to place reliance on
Exhibits P.l to P29 has been lightly overlooked by the courts
i below. The Commissioner’s Report by itself could not have
/.f’:/
12
set at naught several documents on the basis of which the
appellant was seeking to establish his case for “injunction
against the respondent. The respondent, if were to succeed
on the application seeking regularisation of his occu.patio–n’of
the land is independent of the appellant’s ”
injunction which ought to have been c’onsidered_:’wijt_h
more circurnspection in the light offithe. circuglrustpaiice
weighed against the bona fidseaslof the ‘relspoladent. The
revenue documents wlziclz are publ.ic-..documents on the basis
of which the appellant”‘Wasfbefore the ought to have
beenV’llgiye’a’~d,ue upholding the alleged infirrhjties
insofar’ as ypthev…de-sc-rilptior1« “of the boundaries of the suit
property was .,conlce1’ned.. The added circumstance that by
.s ‘«chancse~stor4or-herwise the appellant was not in a position to be
* ppresent –.thss=-zltirne of inspection by the Court Commissioner
of the suit property, is yet another circumstance which would
, :warrant a further reconsideration by the court below of the
material evidence and the alleged discrepancies in the
boundaries of the suit property. The courts have taken a
l3
highly technical View of the description of the boundaries
when in fact the appeiiant was not in doubt of his title or the
grant made in favour of his vendor which again wa:s”at.
naught by proceedings initiated by the respopndeint K
attained finality.
In this View of the rnatter, thelapipeal is ‘The -‘
judgment and decree of the appellate court’asy_iWell the trial
court are set aside andiiitthe ‘i.ma;tter”;~:em_anded for fresh
consideration. The app’ellant’pis”at.”‘liberty…to’ tender additional
evidence €insofa£i..aS–_V °th.e–.._a’dditiona_i documents sought to be
proditced there is reference to the orders
which to be produced by way of
additionally.evidencerthere is no injustice caused or added
to the appellant in the appellant being
€f}.abl€_§d’ produce the documents as additional evidence.
at The trial court shall also appoint a commissioner in order that
‘fresh report be obtained in accordance with law, after
H affording opportunity to both the parties to be present at such
14
inspection by the Commissioner on the terms of reference
which are to be issued by the trial court.
{IV