Andhra HC (Pre-Telangana)
Shaik Fathima Bi vs Shaik Nanne Saheb (Died) By Lrs. on 15 April, 2005
Equivalent citations: 2005(4)ALD164, 2005(4)ALT269
JUDGMENT P.S. Narayana, J.
1. Heard Sri Narayana the learned Counsel representing Sri M. Ravindranath Reddy, Counsel for the appellant and Sri M.P. Chandra Mouli, Counsel representing the 2nd respondent.
2. Shaik Fathima Bi, the plaintiff in O.S.No. 45/85 on the file of District Munsif, Gudur, being aggrieved of the reversal of the said judgment and decree made in A.S.No. 18/93 on the file of Principal Subordinate Judge, Gudur had preferred the present second appeal. The defendant in the suit, Shaik Nanne Saheb, died during pendency of A.S.No. 18/93 and the legal representatives of the deceased 1st appellant therein in A.S.No. 18/93 were brought on record in I.A.No. 113/90 dated 6-4-1993. It would be appropriate to make a mention here itself that as against Respondents 3 and 4, the legal representatives of Shaik Nanne Saheb, the second appeal was dismissed for default and the other legal representative Shaik Najeer Ahmed, 2nd respondent in the second appeal alone is on record at present. The Counsel on record advanced contentions taking this Court through the findings recorded by the Court of first instance and by the first Appellate Court as well. The Counsel representing the appellant would contend that the well reasoned judgment of the Court of first instance had been reversed by the Appellate Court and on the contrary the Counsel representing the 2nd respondent would contend that this being a suit for permanent injunction, a personal action, in view of the fact that the appeal was dismissed for default as against Respondents 3 and 4, the same need not be considered on merits even as against the 2nd respondent, the other legal representative of the deceased defendant. The Counsel also pointed out to the findings recorded by the Appellate Court and would maintain that in the facts and circumstances of the case, the same may have to be confirmed. While admitting the second appeal on 13-6-1997, this Court framed the following substantial question of law:
"Whether the report of a Commissioner cannot be taken as a part of record unless marked as an exhibit in the suit."
3. Appellant herein, the plaintiff in O.S.No. 45/85 on the file of District Munsif, Gudur, filed the suit against Shaik Nanne Saheb, the defendant in the suit praying for the relief of permanent injunction restraining the defendant, his men from in any manner obstructing the plaintiff and her men from making use of path way on the North of schedule mentioned property. The respective pleadings of the parties are as hereunder:
4. The plaintiff is the absolute owner of the plaint schedule property and she purchased the same on 17-8-1983 under a registered sale deed and she is in possession of the property since the date of purchase of the property. The Northern boundary for the schedule mentioned property is the way leading to the municipal road on the East and the same is being enjoyed by the plaintiff. The defendant who has no property to the North of the said path way is obstructing the plaintiff and her men from making use of the same since two days. The defendant is having numerical strength in the locality and the plaintiff is constrained to file the suit for a permanent injunction against him and the suit is to be decreed.
5. The defendant filed a written statement pleading as hereunder:
The defendant is not aware of the registered sale deed mentioned in Para-4 of the plaint. The description of the Northern boundary as the way leading to the municipal road on the East is false. If such a recital exists in the registered sale deed, it is a false recital as there is no way at all on the Northern side of the plaint schedule site. Adjoining the plaint schedule property on the Northern side, there is the property belonging to the defendant. No other person has any right or interest over the same. The allegation that the defendant has no property to the North of the alleged pathway and that the plaintiff and his men are using the pathway and the defendant is causing obstruction to the usage of the path way by the plaintiff etc., are false. There is person pathway at all to the North of the plaint schedule property and in order to show that there is no pathway, the defendant filed an application for appointment of a Commissioner whose report was filed in the Court. There is no space belonging to the plaintiff to the North of her plaint schedule property. The description of the Northern boundary of the property of the plaintiff is in- correct. Having obtained an ex parte injunction, the plaintiff is trying to meddle with the said site. There is no cause of action at all for the suit and the Court fee paid is not correct.
6. Of the strength of the above pleadings before the Court of first instance, the following Issues were framed:
1. Whether the description of the Northern boundary of the plaint schedule is incorrect?
2. Whether the suit for bare injunction not maintainable?
3. Whether the Court fee paid is incorrect?
4. Whether there is no cause of action to file this suit?
5. Whether the plaintiff is entitled for permanent injunction as prayed for against the defendant?
6. To what relief?
PW-1 to PW-3 were examined and Ex.A-1 was marked. PW-1 is the plaintiff and PW-2 and PW-3 are the witnesses. Ex.A-1 is the sale deed dated 17-8-1983 executed in favour of plaintiff by Ramanamma and others. Likewise, on behalf of the defendants, DW-1 to DW-3 were examined. DW-1 is the defendant. DW-2 and DW-3 are the witnesses. The Court of first instance decreed the suit without costs and the matter was carried in appeal A.S. No. 18/93 and during the pendency of the same, the defendant died and his legal representatives were added as per orders in I.A. No. 113/90. The Appellate Court framed the following points for consideration:
1. Whether the respondent/plaintiff is entitled for a permanent injunction as prayed for?
2. To what relief, the appellants are entitled to?
The Appellate Court after taking into consideration the oral and documentary evidence ultimately allowed the appeal with costs dismissing the suit of the plaintiff and aggrieved by the same the present second appeal had been preferred.
7. In the light of the substantial question of law which had been referred to supra, it may be appropriate to have a look at the findings recorded by the Appellate Court at Para-14 which are as hereunder:
"In this case, the report of the Commissioner plays a vital role. The plaintiff did not file any sketch along with the plaint. In a suit of this type, the plaintiff ought to have filed a sketch/plan along with the plaint depicting the true topographical features of the property purchased by her. The plaintiff, for the reasons best known to her, did not file any sketch, the original defendant came forward for appointment of a Commissioner for inspecting the property. In his report, the Advocate-Commissioner stated that ABCD is the suit site and that in the said site into two portions and that the site to the south of plaint 'A' point belongs to the plaintiff and the site to the north of "E" point belongs to the defendant. Though the Advocate-Commissioner stated so in his report, the plaintiff has not chosen to file her objections and did not dispute the observations made by the advocate-Commissioner. Since the plaintiff has not raised any dispute with regard to the observations made by the Advocate-Commissioner in his report, it has to be taken into consideration that the suit site is in two portions and that point "E" is the dividing line for the two portions and that the site to the south of the "E" point belongs to the plaintiff and the site to the north of "E" point belongs to the defendants. According to the boundaries given in Ex.A-1, there is no site on the north of the property purchased by the plaintiff. The report of the Commissioner and the sketch filed by the Advocate-Commissioner will belie the contention of the plaintiff. It is for the plaintiff to come out and say whether the report of the Commissioner is false or not. It is for the plaintiff to come and say that the Commissioner did not inspect the property and that he prepared the report only at the instance of the defendant. In her evidence also, the plaintiff did not whisper anything about this i.e., the report of the Commissioner and the sketch of the Commissioner."
The main grievance ventilated by the learned Counsel representing the appellate/ plaintiff is that the reversal was made on the strength of the unexhibited report of the Commissioner and hence the same cannot be sustained. Order 26 Rule 9 C.P.C. reads as hereunder:
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.
Order 26 Rule 10 C.P.C. reads as hereunder:
(1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him to the Court.
(2) Report and depositions to be evidence in suit-Commissioner may be examined in person:- The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report or as to the manner in which he has made the investigation.
(3) Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.
It is no doubt true that when substantial objections are raised to the report of the Commissioner, it would be advisable and desirable to examine the Commissioner for the purpose of having a clear picture. But on that ground alone, it cannot be said that the report of the Commissioner cannot be looked into by the Court unless the same is exhibited or the Commissioner is examined. Such a narrow proposition cannot be laid down and this would depend upon the facts and circumstances of a particular given case. In Chintalapatla Arvind Babu v. K. Balakistamma, , it was held that the report of the Commissioner appointed under Order 26 Rule 9 C.P.C., is evidence and it is generally more credible evidence. In V. Appayyamma v. L. Sahu, , it was held that the report of the Commissioner is a part of record and can be considered as evidence irrespective of the fact whether the Commissioner was examined as a witness or not. In Kalandi Swain v. Braja Kishore, , it was held that a report is automatically admitted in evidence under Order 26 Rule 9 C.P.C., and forms part of the record. In Sathya Engineering Contractors v. Nachammal, 1992(2) MLJ 221, it was held that unless it appears to the Court that the examination of the Commissioner is necessary, his report can be exhibited and acted upon. In Chandrapal v. Roop Rama, 1979 All.LJ 55, it was held that the report of the Commissioner may be read in evidence but it is not conclusive or binding on the Court and the report to be assessed in the light of other evidence and material on record like any other piece of evidence. Reliance also was placed on Marcoli Achuthan v. Kunhipathumma, , and State of Uttar Pradesh v. Smt. Ram Sri and Anr., .
8. In the light of the legal position discussed supra, the contention of the Counsel for the appellant that placing reliance on the report of the Commissioner when the same is not exhibited cannot be sustained, definitely can be said to be an untenable contention. It may also be appropriate to have a look at Para-17 of the judgment of the Appellate Court wherein the Appellate Court observed as hereunder:
"From the evidence of PW-1, it is crystal clear that there is a vacant site belonging to the municipality on the northern side of the suit schedule property. If the plaintiff had approached the Court with clean hands with required pleadings, this Court would have considered the case of the plaintiff. The plaintiff ought to have filed the suit against the municipality and also against the defendant who is obstructing her from enjoying the property purchased by her. If the defendant has no interest at all in the vacant site, the plaintiff ought to have stated the same in her plaint and ought to have asked the Court to grant a permanent injunction restraining the defendant and the municipality from intervening with her enjoyment of the vacant site which is adjoining to her property on the north to enter into road which is on the northern side of the said property. In that case, this Court would have known whether the Municipality is really interested in the property or not. Since the northern boundary in Ex.A-1 is an incorrect boundary, the Court has to presume that with some mala fide intention i.e., to knock away the vacant site of the municipality or to cause inconvenience to the defendant who is in possession of the municipality site, the plaintiff has got this suit filed. It is abundantly clear that the plaintiff has not approached the Court with clean hands. The person who approaches with clean hands alone is entitled to the discretionary relief of a permanent injunction and not the person who comes to the Court with unclean hands".
As can be seen from the findings which had been recorded by the Appellate Court and also the Court of first instance, the Appellate Court had considered all the aspects and recorded findings in relation thereto. It is pertinent to note that the dispute relates to a pathway. The Court of first instance after elaborate discussion observed that if the disputed site belongs to the Municipality the defendant has no right to prevent the plaintiff to make use of the pathway. Evidently, the Municipality was not impleaded as a party. It is no doubt true that this judgment between the private parties may not be binding on the Municipality not being a party to the litigation. The evidence of PW-1, PW-2 and PW-3, Ex.A-1, the registered sale deed dated 17-8-1983, had been discussed at length and the evidence of DW-1, DW-2 and DW-3 also had been appreciated by the Appellate Court. Findings in detail had been recorded while reversing the findings of the Court of first instance. The Appellate Court as a final fact finding Court, recorded findings on appreciation of the evidence available on record. The Counsel for the appellant was unable to point out how these reasons recorded by the Appellate Court are either based on no evidence or on misappreciation of evidence or the findings are perverse findings. In the light of the limitations imposed on this Court under Section 100 C.P.C., this Court is of the considered opinion that the said factual findings unless they are perverse or for non-consideration of the crucial evidence normally cannot be disturbed in a second appeal.
9. No doubt an attempt was made to invoke the doctrine of representation stating that one of the legal representatives being on record, the suit can be decreed though it is a suit for permanent injunction. The doctrine of representation by one of the legal representatives cannot be stretched too far. Injunction being an equitable right, equity acts in personam and injunction acts in personam. It is needless to say that a decree for injunction is a personal decree and not a decree in rem (R. Subba Rao v. S. Narayana, 1990 (2) An. WR 73). Hence, in the light of the default order made as against Respondents 3 and 4, the other legal representatives of the deceased defendant, the 1st appellant in A.S. No. 18/93, the second appeal is bound to fail even on this ground.
10. Viewed from any angle, the second appeal is devoid of merit and the same shall stand dismissed, without costs.