Karnataka High Court
Yuvraj S/O. Sharanabasappa Kurthakoti vs G.Shankar on 23 August, 2022
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RFA No. 4223 of 2013
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF AUGUST, 2022
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR FIRST APPEAL NO.4223 OF 2013
BETWEEN:
YUVRAJ S/O. SHARANABASAPPA KURTHAKOTI
AGE: 51 YEARS, OCC: AGRICULTURE
R/O H. NO.102, MATOSHREE BUILDING,
IST CROSS, VIDYANAGAR, ANAGOL
BELGAUM 590004
...APPELLANT
(BY SRI. RAVI S. BALIKAI, ADV.)
AND:
G.SHANKAR
AGE: MAJOR, OCC: CLASS-I CONTRACTOR
SHAMALI AMBALPADI 583843, TQ AND DIST. UDUPI
SOUTH KANNADA
...RESPONDENT
(BY SRI. SHREEVATSA S. HEGDE, ADV.)
THIS RFA IS FILED UNDER SECTION 96 OF CPC 1908,
AGAINST THE JUDGMENT AND DECREE DATED 14.08.2013 PASSED
IN O.S. NO.4/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE,
KHANAPUR, DISMISSING THE SUIT FILED FOR RECOVERY OF
DAMAGES AND FOR PERPETUAL INJUNCTION.
THIS RFA HAVING BEEN HEARD AND RESERVED FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, M.G.S.KAMAL J.,
DELIVERED THE FOLLOWING:
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RFA No. 4223 of 2013
JUDGMENT
Present appeal is by the plaintiff aggrieved by the judgment and decree dated 14.08.2013 passed in O.S. No.4/2012 on the file of Senior Civil Judge, Khanapur by which the suit of the plaintiff for recovery of damages is dismissed.
2. Parties are referred to with their ranks before the trial Court.
3. Plaintiff filed the above suit originally against the respondent herein as defendant No.1 and three others, namely;
i) the Executive Engineer Karnataka Neeravari Nigam Limited, Government of Karnataka, ii) the Managing Director Karnataka Neeravari Nigam Limited and iii) the Special Deputy Commissioner, Land Acquisition and Rehabilitation for Ghataprabha and Malaprabha Project, Belagavi as defendant Nos.2 to 4 respectively. The suit against defendant No.4 was dismissed on 06.06.2012 and against defendant Nos.2 and 3 was dismissed on 26.06.2012 upon the memos filed by the plaintiff as the suit is not pressed against them. -3- RFA No. 4223 of 2013 Case of the plaintiff:
4. Plaintiff filed the suit seeking relief of judgment and decree directing the defendants to jointly and severally pay sum of Rs.16,00,000/- by way of damages with future interest at 18% p.a. from the date of suit till realization and for consequential relief of permanent injunction contending inter alia:
a. That the plaintiff is the absolute owner of agricultural land bearing R.S.No.127 measuring 16 acres 7 guntas including 1 acre 33 guntas of pot kharab situated at Kanakumbi Village, Khanapur Taluk, Belagavi District having purchased the same under a deed of sale dated 23.07.1988 and that his name has been entered into the revenue records as owner thereof.
b. That with an intention of pursuing agricultural avocation, he levelled the land for cultivation, installed bore wells and made the land fertile with the irrigation facilities, thereby investing huge amounts of money. That he was earning by raising cash crops in the said land and he was also an income tax assessee. c. That he had raised loan from Union Bank of India, Tilakwadi Branch, Belagavi to put up a green house for carrying on floriculture in gerbera flowers with high- tech scientific method.
-4-RFA No. 4223 of 2013 d. That the suit land is situated on the banks of Malaprabha river enclosed with a compound wall are constructed of latrite stones. There are valuable trees in the land like mango, jack fruit, guava, banyan, nana, sahan etc. e. That there is Mauli Devi Temple, Shri Sateri Temple and Ganesh Temple worshiped by large number of devotees for which the plaintiff has permitted the trustees of the Temple to use 13 guntas of his land. f. That an extent of 20 guntas out of the aforesaid land measuring 16 acres 17 guntas was acquired for the purpose of the aforesaid project and plaintiff was paid compensation thereof.
g. That the defendant No.1 being class I contractor had undertaken the excavation work for the Kalasa Project of the Government of Karnataka. That without any permission from the plaintiff, defendants started dumping large quantity of soil on the aforesaid land in the absence of the plaintiff, thereby causing irreversible damage to the land.
h. Since the plaintiff had borrowed the loan for cultivation of gerbera plantation in view of dumping of the soil by the defendant and damage caused thereof, plaintiff became defaulter in repaying the loan.
-5-RFA No. 4223 of 2013 i. That plaintiff is also owner of another land in Sy.
No.68 of village Kankumbi which is also situated near the river Malaprabha. The defendants had committed the same act of dumping excavated soil thereon. That the plaintiff had made claims in that regard and the matter was amicably resolved in terms of which the defendant paid Rs.19,75,000/- to the plaintiff as damages.
j. In view of the high handed acts of the defendants, the plaintiff filed a complaint before the Commissioner for Persons With Disabilities, who by an order dated 29.06.2011 and 30.11.2011 held that the defendant had caused damage to the land in Sy.No.127 of Kankumbi Village and directed the plaintiff to approach a competent Court of law seeking damages. Hence, the present suit by the plaintiff.
Case of the defendant No.1:
5. Defendant No.1 filed written statement in that, a. The defendant No.1 though denied the plaint averments in general, however, admitted that the defendant had paid a sum of Rs.19,75,000/- to the plaintiff towards his claim in respect of land bearing Sy. No.68 pursuant to which the complaint which had been filed by the plaintiff against the defendant in C.C. No.686/2009 was withdrawn by filing a memo.-6- RFA No. 4223 of 2013
b. That the plaintiff being a greedy and to grab further money from the defendant, in collusion with State Commissioner For Persons With Disabilities had obtained orders dated 29.06.2011 and 30.11.2011 to which the defendant No.1 was not a party. That upon the representation made by the defendant No.1, the said order dated 30.11.2011 was rectified and a fresh order was passed clarifying that the amended order does not apply to the defendant No.1. As such, the suit of the plaintiff on the basis of the said orders is not maintainable.
c. That the land in R.S. No.127 of Kankumbi Village is a barren land and not at all cultivated at any point of time. No trees, flower plants or temples exist except Mauli Devi Temple.
d. That the Kalasa Project was completed in the year 2009 itself. The suit of the plaintiff is therefore barred by limitation.
e. That the order passed by the State Commission for Persons with Disability was without any enquiry with regard to assessment of damage. The property has not been identified with the help of the competent surveyor. No application for appointment of Commissioner is made to value the alleged damages. f. That the defendant never interfered with the possession and enjoyment of the plaint schedule -7- RFA No. 4223 of 2013 property either on 29.06.2011 or thereafter and the project was completed as far back as in June 2019. Hence sought for dismissal of suit.
Issues:
6. Based on the aforesaid pleadings, the trial Court framed the following issues, namely:
"1. Whether the plaintiff proves that he is the owner of the suit property?
2. Whether the plaintiff proves that he was in lawful possession of the suit property as on the date of the suit?
3. Whether the plaintiff proves that 1st defendant illegally stored the large quantity of soil in the suit land thereby causing damage to the bore well, green house and plantation of plaintiff?
4. Whether the plaintiff is entitled for damages?
5. What rate of interest the plaintiff is entitled to?
6. What order?"
7. Plaintiff examined himself as PW1 and marked 22 documents as Exs.P1 to P22. Though he has examined another witness as PW2, the evidence of the said witness has not been considered as he passed away before tendering for cross- examination. A power of attorney holder of defendant No.1 was -8- RFA No. 4223 of 2013 examined as DW1 and have marked 13 documents as Ex.D1 to Ex.D13. The Vice President of Mauli Temple Trust is examined as DW2.
8. The trial Court by the impugned judgment and decree held issue Nos.1 to 4 in negative and consequently dismissed the suit of the plaintiff. Being aggrieved by the same, the plaintiff is before this Court.
Application in I.A. Nos.1 and 2 of 2014 filed by the appellant:
9. The plaintiff has filed I.A.No.1/2014 seeking permission to amend the plaint by incorporating para 7(A) to 7(D) after plaint para 7. In the affidavit accompanying the said application, it is stated that the said amendment is necessary inasmuch as the trial Court has dismissed the suit on the ground of plaintiff not giving details of the date and timings and the quantity of soil was dumped causing damage to his land. That though in the plaint he has pleaded that the defendant had excavated the land, has dumped huge quantity of soil, destroying the entire land, green house, floriculture plantation, fruit bearing trees, bore-wells, pipelines, compound wall etc., and the suit land had become uncultivable yet the trial Court -9- RFA No. 4223 of 2013 has dismissed the suit. He submits that he is filing the amendment application upon the advise providing details of quantification of damages as claimed in the plaint and the same would not change the nature and scope of the suit.
10. The plaintiff has also filed I.A. No.2/2014 under Order XLI Rule 27 of CPC seeking to produce 15 items of documents namely English translation of Ex.P3-sale deed, mutation entry No.621 of Kankumbi Village and its translation, RTC extract of Sy. No.127 from 1982-83 to 1988-89 and 1997- 98 to 2001-02 and 2002-03 to 2013-14, certified copy of the judgment and decree in O.S. No.142/1992, mutation entries for having raised loan in the suit land, bank letters of different dates (7 in number), rough sketch, photo album containing 24 photographs and bill issued by the photo studio. In the affidavit accompanying the said application, it is contended that he did not produce the translation of the sale deed Ex.P3 and other revenue documents under the bona fide impression, the defendant No.1 had not disputed his title and the suit was only for recovery of damages. Further, though the photographs were produced before the trial Court and the same were taken note of, but they have not been marked inadvertently. That the bank
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RFA No. 4223 of 2013 letters were not in his possession during the trial and he obtained only now from the suppliers and contractors. Rough sketch sought to be produced would show the actual topography of the property. Thus the documents sought to be produced are necessary for effective and proper adjudication of the dispute. Since he was not conversant with the legal formalities, he inadvertently could not produce. Hence sought for allowing the applications.
11. Defendant filed common objection to the aforesaid applications contending that the application seeking amendment of the plaint after commencement of the trial is barred under law and same cannot be allowed. As regards application in I.A. under Order XLI Rule 27 of CPC is concerned, the same does not satisfy the ingredients of limitation imposed under Order XLI Rule 27 of CPC and the same are against the law laid down by the Apex Court in the case of Union of India vs. Ibrahim Uddin supra.
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RFA No. 4223 of 2013 Submission of counsel for appellant/plaintiff:
12. Sri.Ravi S. Balikai, learned counsel appearing for the plaintiff reiterating the grounds urged in the memorandum of appeal submitted that:
a. though there is no denial by the defendant No.1 with regard to ownership and title of the plaintiff over the suit land, the trial Court held issue Nos.1 and 2 in the negative merely because the plaintiff had not furnished the translated copy of the sale deed at Ex.P1. That the very fact of plaintiff having raised the loan from the Union Bank of India, RPD College Branch, Belagavi and who on default of the plaintiff to repay the amount, initiated the proceedings before DRT in O.A. No.771/2012 produced at Ex.P18 would reveal that the said loan was advanced the plaintiff on the mortgage of the subject lands which the trial Court has failed to take note of.
b. That the defendant No.1 has not entered the witness box but his power of attorney holder who is not personally aware of the facts and circumstances of the case has been examined as DW1 and the trial Court relying upon his evidence erroneously dismissed the case of the plaintiff.
c. The trial Court failed to appreciate that the defendant has not specifically denied about dumping of huge
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quantity of excavated soil on the land of the plaintiff. In that view of the matter, the trial Court erred in not awarding the damages. Further the trial Court erred in concluding that the plaintiff has not deposed, who, when and in what quantity the soil was dumped on the premise of there being no eye witness to establish the said fact of dumping of the soil.
d. The reasoning of the trial Court that the extent of the land is not shown in the revenue records in occupation of the plaintiff after deduction of the acquired land that the plaintiff is therefore not in lawful possession of the suit land is unjustifiable.
e. That the Court below failed to take into consideration that the defendant who was similarly dumping the soil in another land of the plaintiff in Sy. No.68 of Knakumbi Village has settled the claim of the plaintiff for Rs.19,75,000/- but has deliberately denied the entitlement of the plaintiff in respect of the subject land.
f. Referring to the report of the Commissioner who was appointed by the order of this Court dated 13.09.2021, learned counsel submitted that the Commissioner report would reveal the existence of traces of green house and dumping of the soil. He submitted that the defendant deliberately caused obstructions to the
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Commissioner in carrying out his task by creating commotion at the spot.
g. Addressing the arguments on I.A. No.1/2014 filed seeking amendment of the plaint he submitted that the amendment sought for is to supplement the pleading which is already made for the purpose of determination of damages and the same would not change the nature and scope of the suit causing any harm to the defendant. As regards I.A. N.2/2014 seeking production of additional documents, he submitted that the same are just and necessary for the proper and effective adjudication and disposal of the lis between the parties.
h. Hence, sought for allowing the appeal as well as the aforesaid application I.A. No.1/2014 and I.A. No.2/2014 Submission of counsel for respondent/defendant:
13. Per contra, Sri.Shreevatsa Hegde, learned counsel appearing for the defendant submitted that:
a. Originally suit was against four defendants seeking direction against them to pay the compensation jointly and severally. That subsequently suit against defendant Nos.2 to 4 has been dismissed. However, the original pleading made against all the defendants has remained unchanged. Consequently there is no
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specific averment against defendant No.1 of any specific act or omission on his part. Thus claim for damages in the circumstances against defendant No.1 cannot be considered.
b. That the plaintiff has no clarity as to the extent of land, owned and possessed by him. As on the one hand, the plaintiff claims 16 acres 7 guntas of land to be in his possession while on the other has stated that he has allowed the trustees of the temple use 13 guntas of land and that another extent of 20 guntas of land has been acquired. Besides, 1 acre 33 guntas of land being pot kharab, the plaintiff's claim for 16 acres 7 guntas of land cannot be considered.
c. When the plaintiff is claiming real damage, he has to come out with clarity. There is no foundational pleading, quantification or assessment for the claim of Rs.16,00,000/- as damages made by the plaintiff. The case of the plaintiff consist of absurd pleading and lacks required details.
d. That the defendant has never dumped any soil on the suit land. The burden is on the plaintiff to prove the same. That in the written statement at para 7, the defendant at the earlier point in time had disputed the claim of the plaintiff. The plaintiff without taking any steps in appointing the Commissioner for the
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RFA No. 4223 of 2013 inspection of the land and assessment on the damages has failed to discharge his burden.
e. Referring to Exs.D5 and D6 compliant and the memo filed in C.C. No.686/2009, he submitted that the action under the said proceedings was only in respect of land in Sy. No.68 and nothing prevented the plaintiff to claim relief if existed in respect of suit land. f. That the report of the Commissioner appointed by this court helps the case of the defendant instead, in which the Commissioner has stated about his inability to differentiate between the natural soil and dumped soil. That the Commissioner has not found any traces of the green house, bore well or other trees on the land as claimed by the plaintiff.
g. That DW1 is a power of attorney holder of defendant No.1 who also filed the written statement. The authority of DW1 has not been denied. Referring to the judgment of the Apex Court in the case of Mohinder Kaur vs. Sant Paul Singh reported in (2019) 9 SCC 358, paragraph 6 and 7 he submitted that DW1 was fully competent to depose and there is nothing on record to discredit its evidence. h. Addressing the argument on I.A. No.1/2014 and I.A. No.2/2014, he submitted that the plaint at this stage cannot be permitted to be amended, as the same would amount to change in the nature and scope of
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RFA No. 4223 of 2013 the suit. Similarly, plaintiff cannot be permitted to lead additional evidence for reasons assigned in the affidavit accompanying the said application seeking production of additional documents. The reasoning in the application and the affidavit are contrary to the rigour of Order XLI Rule 27 of CPC. Plaintiff cannot be permitted to overcome grounds on which his suit has been dismissed in an appeal. He relied upon the judgment in the case of Andisamy Chettar vs. Subburaj Chettar reported in (2015) 17 SCC 713 and also in the case of Union of India vs. Ibrahim Uddin and another reported (2012) 8 SCC 148. Hence seeks for dismissal of the appeal.
14. Heard the learned counsel for the parties. Perused the records. The points that arise for our consideration are:
"i. Whether the appellant-plaintiff has made out a case for allowing applications in I.A. No.1/2014 filed under Order VI Rule 17 of CPC?
ii. Whether the appellant-plaintiff has made out a case for allowing applications in I.A. No.2/2014 filed under Order XLI Rule 17 of CPC?
iii. Whether the trial Court is justified in dismissing the suit of the plaintiff and whether the plaintiff is entitled for damages as claimed?"
Regarding point Nos.1 and 2:
15. The suit of the plaintiff is one for claiming damages on the grounds of defendant No.1 dumping excavated soil on
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RFA No. 4223 of 2013 the suit land belonging to the plaintiff. The amendment is sought to introduce paragraph Nos.7(A) to 7(D) seeking to provide details of quantification of damages. The defendant has vehemently opposed the said application on the grounds of same amounts to filling up the lacuna and would change the nature and scope of the suits besides being barred under law as the same is filed at the appellate stage that after conclusion of the trial. As regards application for production of additional documents, the plaintiff has stated that the said documents are required for just and effective disposal of the suit. That some of the documents were not produced due to bona fide impression and belief of defendant not disputing the title. While other documents were procured subsequent to the disposal of the suit. The defendant has opposed the said application as the same is against the vigor of Order XLI Rule 27 of CPC and against the law laid down by the Apex Court in the case of Ibrahim Uddin supra.
16. It is settled law that an application seeking production of additional evidence is required to be considered at the time of final hearing of the appeal on merits. The test to determine is to find out if the additional evidence is having
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RFA No. 4223 of 2013 important bearing on main issue, or found to be necessary to remove any lacuna in evidence and for clearing any doubt for pronouncing judgment and required in the interest of justice. Also to find out if the Appellate Court is able to pronounce Judgment on the material before it without taking into consideration the additional evidence sought to be produced.
17. The present appeal since taken up for final disposal, the aforesaid application for amendment and production of documents will be considered after appreciation of the matter on merits as hereunder.
Regarding point No.3:
Evidence of plaintiff:
18. The plaintiff in support of his case has filed affidavit evidence reiterating the plaint averments and has produced the following documents:
a. Ex.P1 RTC extract for the year 2011-12 wherein the subject land in Sy. No.127 measuring 16 acres 7 guntas is shown to be in the ownership and possession of the plaintiff. An extent of 1 acre 33 guntas is shown as pot kharab land. In column No.11 of the said RTC, 13 guntas of land is shown to have been permitted to be used by Temple Trust. There is
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also reference of creation of encumbrance in favour of United Bank of India, Belagavi.
b. Ex.P2 is the Mutation Register extract dated 29.09.2004 reflecting the other rights in respect of the said land.
c. Ex.P3 is the certified copy of the sale deed in marathi language.
d. Exs.P4 and P5 are the notice dated 30.04.2009 and the postal receipts issued on behalf of the plaintiff to the Managing Director and Executive Engineer of Karnataka Neeravari Nigam pointing out the damage being caused by them during the work of Kalasa Project and asking them to compensate. e. Ex.P6 is an endorsement issued by the Special Deputy Commissioner, Land Acquisition and Rehabilitation and Resettlement, Belagavi dated 05.05.2009 forwarding the notice received from the plaintiff and directing the Executive Engineer to take suitable action in this regard.
f. Ex.P7 is the order dated 29.06.2011 and 30.11.2011 passed by the Commissioner for Persons With Disabilities by which it is prima facie held that injustice has been caused to the plaintiff by dumping the soil on his land and the plaintiff was directed to approach competent civil Court seeking damages. The said order has been passed against the
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RFA No. 4223 of 2013 defendant No.1 and original defendant Nos.2 to 4 in the suit. By order dated 30.11.2011, it is clarified that the order dated 29.06.2011 is applicable in respect of land in Sy. No.127 as well.
g. Ex.P8 is the certified copy of the complaint in C.C. No.686/2009 dated 01.07.2009 filed by the plaintiff against the defendant No.1 and others before the Judicial Magistrate of First Class, Khanapur requesting to take cognizance and necessary action under various provisions of Indian Penal Code.
h. Ex.P9 is memo filed on behalf of the complainant (plaintiff herein) reporting receipt of Rs.19,75,000/- as settlement and payment of damages and withdrawing the complaint.
i. Ex.P10 is the order sheet of the said compliant in C.C. No.686/2009.
j. Ex.P11 is the pass book of Bank of India of the plaintiff.
k. Exs.P12, P13, P14, P15 and P16 are the letters issued by the plaintiff seeking information regarding the project Kalasa and also regarding the work undertaken by the defendant No.1 under Right to Information Act.
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RFA No. 4223 of 2013 l. Ex.P17 is the tender document issued by the Karnataka Neeravari Nigam Limited regarding Kalasa Reservoir Project.
m. Ex.P18 and P19 are the summons issued by the Debt Recovery Tribunal, Bengaluru in O.A. No.777/2012 upon the application filed by the Union Bank of India, Belagavi against the plaintiff alongwith the application and annexures thereof.
n. Exs.20, P21 and P22 are the Income Tax Returns of the plaintiff for the years ending on 31.03.2007, 31.03.2008 and 31.03.2009.
19. In the cross-examination of the plaintiff-PW1 has deposed that on 15.09.2008, the defendant No.1 undertook the canal work. He was aware that the work was undertaken in the year 2008. That on and after 01.04.2009, the defendant No.1 started to dump the soil on his land. That within four to five days, the soil was dumped on his land. That he has not filed any objections while the defendant was dumping the soil. He has denied the suggestion that he did not file any complaint against the defendant No.1 before the Commissioner for Persons With Disabilities in respect of land in Sy. No.127. That he has given a complaint to the Police in C.C. No.585/2012 dated 20.03.2013. That he met with an accident on 08.01.2007
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RFA No. 4223 of 2013 and was admitted as inpatient and he was suffering from diabetes, therefore, he was under treatment for 1½ year. During the said period and in his absence, defendant No.1 had dumped the soil. He has admitted the receipt of compensation in respect of Sy. No.68. It is suggested that the defendant No.1 has never gone to land in Sy. No.127 and the defendant No.1 does not even know the situation of the said land. He has also denied the suggestion that defendant No.1 completed the work in the year 2011 January and has handed over the same to the Government.
Evidence of defendant:
20. On behalf of the defendant, one Ramesh Kotiyan, a power of attorney holder of the defendant No.1 was examined as DW1. He has reiterated the contents of written statement and produced 13 documents namely;
a. Ex.D1 is the special power of attorney. b. Ex.D2 is the notice dated 09.05.2009 issued on behalf of the plaintiff in respect of land in Sy. No.68 calling upon payment of damages.
c. Ex.D3 is the order dated 30.11.2011 passed by the Commissioner for Persons With Disabilities stating that the order dated 29.06.2011 passed upon
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RFA No. 4223 of 2013 the application filed by the plaintiff in respect of land in Sy. No.68 would also include the land bearing Sy. No.127.
d. Ex.D4 is the order dated 23.01.2012 wherein it is stated that the earlier order dated 30.11.2011 shall be read excluding the name of G.Shankar- defendant No.1.
e. Ex.D5 is the memo filed by the complainant (plaintiff) in C.C. No.686/2009 reporting receipt of Rs.19,75,000/- as damages in respect of land in Sy. No.68.
f. Ex.D6 is the certified copy of the complaint filed by the plaintiff against Defendant No.1 and others before the Judicial Magistrate First Class, Khanapur under Section 200 of Cr.P.C. in respect of land in Sy. No.68.
g. Ex.D7 is the sworn statement of the plaintiff. h. Exs.D8 to D11 are various work orders.
i. Ex.D12 is the completion certificate dated 15.07.2010 regarding construction of interconnecting candle from Kalasa reservoir to Malaprabha river from 145 to 5005 meters (phase I balance work). j. Ex.D13 is the complaint dated 20.10.2009 by the Assistant Executive Engineer to the Circle Inspector, Khanapur to take action against the
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RFA No. 4223 of 2013 plaintiff for his interference in defendant No.1 carrying out the project work.
21. In the cross-examination, recorded on 20.04.2013, DW1 has admitted that there has been no contract entered into with him in respect of Kalasa Banduri Project and that all the contracts are entered into only with defendant No.1. He does not know about the supplementary agreements entered into between the government and defendant No.1. He does not know which the terms of the agreements have been violated. He admits that as per the terms of the contract, permission of the land owners was required to be taken before dumping the soil. That he is not aware which is the land in Sy.No.127 belonging to the plaintiff. He is also not aware if land in Sy. Nos.127 and 68 are situated adjoining each other. He states that during the canal work, Mauli Temple must have been destroyed. He does not know in which survey number Mauli Temple is situated. He states that there may be a mention in the agreement between the Neeravari Nigam and the defendant No.1 regarding Mauli Temple being situated in Sy. No.127. He does not know what are the documents defendant No.1 has produced in the suit. That there was no necessity for him to
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RFA No. 4223 of 2013 know as to whom does land in Sy. No.127 belong. He does not know what is the objections filed by defendant No.1 in the suit in respect of Sy. No.127. Since it was not relevant, he did not ask with the defendant No.1 with regard to Sy. No.127. He denies the suggestion that the plaintiff has not sought any relief in respect of Sy. No.68 in the present suit. He pleads ignorance as to when the dispute with regard to Sy. No.68 was settled. He denies the suggestion that there is no civil suit filed before any Court in respect of Sy. No.68. He admits that without taking permission of the plaintiff, they had dumped soil on land in Sy. No.68. He admits that there was objection in this regard and the plaintiff was repeatedly asking for compensation in that regard. He admits paying entire compensation to the plaintiff in respect of dumping of soil in land bearing Sy. No.68. He admits that a criminal case was filed only in respect of land in Sy. No.68 during the settlement of which he, plaintiff and the officers of Neeravari Nigam were present and the compensation was paid as per the directions of Neeravari Nigam. That the plaintiff has not made any application thereafter in respect of land in Sy. No.68. He admits that the plaintiff has not filed any case before criminal Court in respect of Sy. No.127. He denies
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RFA No. 4223 of 2013 that Ex.D5 compromise memo was only in respect of Sy. No.68. He denies that taking undue advantage of the said compromise memo, he is deposing falsely that the matter in respect of Sy. No.127 is also settled. He volunteers that they have not dumped any soil on the land in Sy. No.127.
22. He admits that he has no personal knowledge of the application filed by the plaintiff before the Commissioner for Persons With Disabilities and he has not verified before the commission as to what are the survey numbers in respect of which the plaintiff had filed applications. He has pleaded ignorance about the proceedings between the first defendant and the plaintiff before the High Court.
23. In the further cross-examination recorded on 07.06.2013, DW1 has deposed that he has not read any agreements. That defendant No.1 has not given him any information with regard to land in Sy. No.127. He admits that Mauli Temple is situated within the land in Sy. No.127. He admits that there is a road in front of the said Temple leading towards Chigare Village. There is also a public road on the southern side of temple. He admits that portion of the said
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RFA No. 4223 of 2013 temple has been destroyed during the Kalasa Banduri Project work. He admits that a Technical Committee headed by one D.N.Desai had come to assess the damages to the land in Sy. No.127. He also admits that the said committee has given a report with regard to the extent of damage to the Mauli Temple and also to the suit land in Sy. No.127, but he has not seen the said report and he has also not asked about the said report with the defendant No.1. He admits that defendant No.1 has information about the said report. He denies the suggestion that he is deposing on behalf of defendant No.1 only to suppress the fact of defendant No.1 knowing all the above facts.
ANALYSIS
24. From the aforesaid evidence and the documents produced by the plaintiff, it is seen that Exs.P1 and P2 reveal the name of the plaintiff to be the owner of the suit land in Sy. No.127. There is also reference that 1 acre 3 guntas of land being pot kharab and Temple Trust having been permitted to utilize 13 guntas of land. In the written statement, there is no specific denial of the ownership of the plaintiff. Merely because the plaintiff produced certified copy of the sale deed Ex.P3 and
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RFA No. 4223 of 2013 did not produce the translated copy of the same, the trial Court referring to provisions of Order XIII Rule 12 of CPC (Karnataka Amendment) has come to the conclusion that the plaintiff has failed to prove his title over the suit property. As per Order XIII Rule 12, court has to first require the party producing such document to produce the translation of the same. In this case court has not done that. Therefore, finding of the Trial Court in that regard, in our considered opinion cannot be countenanced. It is settled principle of law that non-compliance with procedural law would not take away the substantive right of the party, as the procedure is to aid in effective dispensation of justice. Further the plaintiff has also produced Exs.P18 and 19 being the copy of the application filed under Section 19 of recovery of debt due to banks and financial institutions, 1993 by the Union Bank of India seeking recovery of amount from the plaintiff. In that the subject land of the plaintiff is shown to have been mortgaged as a security for availing the loan. This encumbrance is also reflected in column No.11 of Ex.P1. The said documents were sufficient enough to probablise the exercise of ownership right over the subject land by the plaintiff. Thus in the facts and circumstances of the case, the
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RFA No. 4223 of 2013 trial Court in our opinion erred in holding that the plaintiff failed to prove his title over the suit property merely for non- production of a translated copy of Ex.P3, that too when there is no denial by the defendant.
25. It is not in dispute that land in Sy. No.68 measuring 18 acres 8 guntas of Kanakumbi Village also belongs to the plaintiff where the defendant had dumped the soil resulting in the initiation of proceedings by the plaintiff before the Judicial Magistrate First Class, Khanapur in C.C. No.686/2009. In which matter was amicably resolved and the defendant No.1 has paid a sum of Rs.19,75,000/- to the plaintiff as damages.
26. The aforesaid land in Sy. No.68, is situated near the land in Sy. No.127. Portion of land measuring 20 guntas out of 16 acres 7 guntas of land in Sy. No.127 has been acquired for the formation of canal. This fact is not disputed by the defendant. This goes to show that the soil excavated from the canal running through the lands in Sy. Nos.68 and 127 has been dumped by defendant No.1 on these lands.
27. From the evidence and the documents produced by the DW1, it is clear that defendant No.1 had undertaken the
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RFA No. 4223 of 2013 project of excavation. That he had dumped the soil and land in Sy. No.68 belonging to the plaintiff and had paid compensation thereof. He is also aware of the dispute and objections being raised by the plaintiff with regard to dumping of soil on the suit land in Sy. No.127. The complaint at Ex.D13 dated 20.10.2009 filed by the Assistant Executive Engineer asking the Circle Inspector, Khanapur to initiate action for alleged interference by the plaintiff into the work of the defendant No.1 reveal that the plaintiff continued to object with regard to dumping of soil even as on 20.10.2009 which is subsequent to filing of the complaint in C.C. No.686/2009. The said complaint has been filed on 01.07.2009 which was disposed of as settled by a memo dated 03.10.2011 as per Ex.D5. Thus making it clear that while the issue with regard to dumping of soil in Sy. No.68 was seized before the JMFC, Khanapur, there were objections by the plaintiff in defendant No.1 carrying on with the work. Ex.P7 which includes order dated 29.06.2011 and 30.11.2011 reveal that proceedings were initiated before the Commissioner for Persons With Disabilities who had on spot inspection and verification had reported the damage caused to the land belonging to the plaintiff. The order dated 30.11.2011
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RFA No. 4223 of 2013 specifically records that the previous order dated 29.06.2011 to be read to include land in Sy. No.127, though it is submitted on behalf of the defendant that the said order dated 30.11.2011 was modified at his instance by a clarificatory order in Ex.D4 dated 23.01.2012 stating that the earlier order dated 30.11.2011 shall be read excluding the name of G.Shankar.
28. Though order dated 23.01.2012 at Ex.D4 has been obtained by defendant No.1 to state to the earlier order to be read excluding his name, the fact remains that in the earlier order damage caused to the lands has been found in favour of the plaintiff by the Commission. Thereby establishing the factum of defendant No.1 causing damage to the land in Sy. No.127 belonging to the plaintiff by dumping the excavated soil thereon.
29. As noted above, the very admission of DW1 with regard to situation of Mauli Temple inland in Sy. No.127 which is partly destroyed during the project work and also the admission with regard to committee headed by D.N.Desai visiting land in Sy. No.127 on 24.04.2009 for assessment of damages caused to the land and Temple would reveal that the
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RFA No. 4223 of 2013 defendant No.1 and DW1, are completely aware of their acts of dumping soil causing the damage to the subject land.
30. Defendant No.1 has kept himself away from tendering evidence. DW1 though has pleaded ignorance about situation and extent of land in Sy. No.127 and dumping of any soil thereon has however in the deposition recorded on 07.06.2013 as noted above has spoken about the situation of Mauli Temple in the land in Sy. No.127 and extent of damages being caused to the said land. Thereby completely probablising the case and claim of the plaintiff.
31. This Court by order dated 13.09.2021 had allowed I.A. No.1/2019 appointing Assistant Director, Survey and Settlement of Land Records, Khanapur as Court Commissioner to inspect land in Sy. No.127 and to submit the report if excavated soil and mud is dumped in the extent of 16 acres 7 guntas of land or not. Pursuant thereto, the Commissioner has submitted his report dated 28.10.2021 in which the Commissioner has stated that on local inspection it was very difficult to differentiating between the excavated soil and natural soil due to non availability of the differentiate marks on
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RFA No. 4223 of 2013 the suit land. Due to natural erosions (by wind, rain) there is no mark of dumped soil. Entire suit land looks like other lands. He has also stated that there are no traces of bore-well and no traces of green house but the bore-well shown by plaintiff and broken house of green house are depicted in the map. He has also spoken about plinth type wall about 3 feet height constructed with jambu brick is found on the suit property. The Commissioner has also stated that he has referred to google map of 2010-11 wherein he could trace that two structures in the suit property exactly where the plaintiff claims the position of green house was existed. The said map is enclosed.
32. The aforesaid report of the Commissioner is of 2021 while the excavation and dumping of the soil has taken place during 2008-09. It is quiet obvious that over passage of time, the dumped soil must have lost its character and got naturalized making it difficult to differentiate. The fact remains that even in the absence of the Commissioner report, there is sufficient material and evidence and the admission of DW1 as extracted herein above regarding dumping of soil on the land in Sy. No.127.
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RFA No. 4223 of 2013
33. The trial Court has not adverted to these aspects of the matter. The rejection of the suit by the plaintiff on the premise of plaintiff not providing proof of his title over the property and plaintiff not being able to give the date time, length and measurement of dumping of soil is unjustified in the given facts and circumstance of the case. The approach of the trial Court that even according to the plaintiff soil was dumped in his absence so therefore he not being eye witness and personally aware of the same is incompetent to depose thereof also cannot be countenanced.
34. Thus on the assessment of the aforesaid material evidence and deposition of the parties, we are of the considered view that the plaintiff is the owner of the suit property and has proved dumping of soil by defendant No.1 on the suit land without his permission causing damage to the land.
Regarding damages:
35. This takes us to the issue with regard to determination of damages.
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RFA No. 4223 of 2013
36. In the plaint, except pleading regarding dumping of soil, causing damage to borewell, structures, accessories attached to the land and to the fruit bearing trees and destruction of fertility of land, plaintiff has not pleaded regarding quantification of damages. However, this Court is of considered view that remand of this matter on this count is not warranted as evidence regarding land in Survey No.68 belonging to plaintiff similarly situated is available on record.
37. It is an admitted fact that the defendant No.1 who dumped the soil in respect of land in Sy. No.68 measuring 18 acres 8 guntas has paid the compensation of Rs.19,75,000/- which works out to Rs.2,713/- per gunta. The land bearing Sy. No.127, subject matter of the present suit is situated near the land in Sy. No.68. The land in Sy. No.127 measures 16 acres 7 guntas of which 20 guntas have been acquired and 1 acre 3 guntas is pot kharab. Excluding the said extent of 1 acre 23 guntas (20 guntas + 1 acre 3 guntas), the plaintiff is in possession of 13 acres 8 guntas.
38. Taking note of the compensation paid earlier by the defendant No.1 to the plaintiff in respect of Sy. No.68 at the
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RFA No. 4223 of 2013 rate of Rs.2,713/- proportionate compensation needs to be calculated in respect of the suit land. Accordingly, we are of the considered view that to an extent of 13 acres 8 guntas of land, it is just and proper that the defendant No.1 is directed to pay Rs.15,03,000/- as compensation.
39. The plaintiff has claimed interest at 18% per annum from the date of suit till realization. We are of the considered view that the plaintiff can be granted interest at the rate of 6% p.a. from the aforesaid compensation from the date of the suit till realization.
40. According to plaintiff, the amendment application is filed only in furtherance to the plea already made in the plaint claiming damages. The reasons stated in the affidavit accompanying the said application reveal that the amendment sought is only for determination of quantum of damages. Similarly, the application seeking additional documents is also made for production of documents to facilitate determination of damages. In view of we having come to the aforesaid conclusion, based on the pleadings in the plaint and the evidence produced by both the parties, we are of the
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RFA No. 4223 of 2013 considered opinion that no purpose would be served by allowing I.A. No.1/2014 and I.A. No.2/2014. Besides the plaintiff has not made out grounds for allowing of said applications. Accordingly, the said applications are dismissed.
41. Point Nos.1 to 3 raised above are answered accordingly.
42. Before parting with we deem it necessary and appropriate to refer to the report of the Commissioner appointed by this Court as noted above, wherein, the commissioner has stated that at the time of inspection of the suit property villagers, Panch Mandali and Vishwasth Mandali had given three memorandums. He has further stated that villagers of Kankumbi had obstructed his proceedings several times. They were asking him as to why notice was not given to the adjoining holders and to Panch Mandali members of Sri Maulidevi Devasthan existing on the suit property. They also objected for the spot inspection claiming that 19.10.2021 was a public holiday. The Commissioner could not proceed and was forced to stop the work despite the police protection as the pressure of the villagers mounted high. That the said incident
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RFA No. 4223 of 2013 was reported in Marathi daily newspaper, 'Tarun Bharath', Edition dated 20.10.2021. Copy of which is also enclosed with the report.
43. The Commissioner is an officer and representative of the Court. Causing deliberate obstructions and impediment in functioning of the Commissioner would amount to obstructions in the administration of justice. This Court taking serious note of this event, hereby reserves liberty to the appellant to initiate appropriate action in the matter against the individuals who obstructed and forced the Commissioner to stop the work assigned by this Court.
44. With these observations, the following:
ORDER A. Appeal in RFA No.4223/2013 is allowed.
B. The judgment and decree dated 14.08.2013 passed in O.S. No.4/2012 on the file of the Senior Civil Judge, Khanapur is set aside.
C. Suit of the plaintiff is allowed in part with costs.
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D. Defendant is directed to pay Rs.15,03,000/- as damages together with interest at the rate of 6% per annum from the date of filing of the suit till realization.
Sd/-
JUDGE Sd/-
JUDGE Rsh