Karnataka High Court
Smt. Kattemma @ Revamma vs P. Yerriswamy S/O. Late Khasim Sab on 8 February, 2013
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 8TH DAY OF FEBRUARY, 2013
BEFORE
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
M.S.A. No.536/2012
BETWEEN:
1. Smt. Kattemma @
Revamma W/o. late
Hanumantha Reddy
Age: 52 years
2. Lakshmi Reddy S/o.
Late Hanumantha Reddy
Age: 32 years
Both are r/o. Hosa Yallapur Village
Bellary Taluk and District-583 116
...Appellants
(BY Sri. Gode Nagaraj, Adv.)
AND:
P.Yerriswamy S/o. late Khasim Sab
Age: 28 years, Auto Rickshaw Driver
R/o. Yellapur Village, Bellary Taluk
District: Bellary -583 116.
...Respondent
(By Sri.V.Shivaraj Hiremath, Adv.)
****
2
This MSA is filed U/s.104 R/w. Order 43 Rule 1(U) of CPC
against the judgment and decree dated 31.10.2011 passed in
R.A.No.40/11 on the file of the II Addl. Senior Civil Judge at
Bellary, allowing the appeal filed against the judgment and
decree dated 23.02.2011 passed in O.S.No.289/2009, on the
file of the Prl. Civil Judge (Jr.Dn.) Bellary, partly decreeing the
suit filed for declaration and injunction.
This appeal coming on for admission this day, court
delivered the following:
JUDGMENT
Though this appeal is posted for admission, with the consent of the learned counsel appearing on both sides, the matter is taken up for final disposal.
2. The defendants in O.S.No.289/2009 have filed this appeal, assailing the order of remand dated 31/10/2011, passed in R.A.No.40/2011, by the II Addl. Senior Civil Judge at Bellary.
3. For the sake of convenience, the parties shall be referred to in terms of their status before the trial Court. 3
4. The respondent No.1, who is the plaintiff filed the suit against the defendants, seeking a declaration that the plaintiff is the absolute owner of the suit schedule property and directed the defendants to remove the encroached building constructed on the plaintiff's land and to deliver vacant possession of the suit property to the plaintiffs. The suit was contested by the defendants. On the basis of the rival pleadings, the trial Court framed the following issues for its consideration:-
1) Whether the plaintiff proves that he is the absolute owner of the suit schedule property?
2) Whether the plaintiff further proves that he is in lawful possession and enjoyment of the suit schedule property?
3) Whether the plaintiff further proves that the defendant is illegally encroaching the suit schedule land?
4) Whether the defendant proves that the suit is barred by limitation?
5) Whether the plaintiff is entitled for the relief of declaration, mandatory injunction and possession of the suit schedule property?
6) What order or decree?4
5. In support of his case, the plaintiff examined himself as P.Ws.1 and 3 and other witnesses as P.Ws.2 to 4 and produced 16 documents, which were marked as Exs.P.1 to P.16, while the defendants examined 3 witnesses and produced 4 documents, which were marked as Exs.D.1 to D.4.
6. On the basis of the said evidence, the trial Court answered Issue Nos.1 and 2 in the affirmative, Issue No.5 partly in the affirmative and Issue Nos.3 and 4 in the negative and partly decreed the suit, declaring that the plaintiff is the absolute owner of the suit schedule property but declined to grant mandatory injunction for possession against the defendants.
7. Being aggrieved by the same, the plaintiff filed R.A.No.40/2011 before the first appellate Court.
8. After hearing the parties, the first appellate Court framed the following points for its consideration:-
1) Whether the finding given by trial court on issue No.3 is correct and proper?5
2) Whether the judgment and decree passed by the trial court needs to be interfered with?
3) To what relief and decree parties are entitled for?
It held Point No.1 in the negative and Point No.2 in the affirmative and set aside the judgment and decree of the trial Court and directed the trial Court to appoint a Commissioner, for measurement of the suit property and on receipt of the report of the Commissioner, to give an opportunity to both parties to the suit, to lead additional evidence if any and then to dispose of the suit, based on the report of the Commissioner and also additional evidence of the parties if any. This order is assailed by the defendants in this appeal.
9. I have heard the learned counsel for the parties.
10. It is contended on behalf of the appellant that the first appellate Court was not right in remanding the matter to the trial Court by directing the trial Court to appoint a Commissioner with reference to the 6 measurement of the suit property. It is contended that the plaintiff had produced the evidence with regard to the alleged encroachment of the defendants. The trial Court was of the view that the plaintiff had failed to prove the said encroachment. All that the first appellate Court had to do was to re-appreciate the said evidence and come to its own independent finding as to whether there was any encroachment made by the defendants. The first appellate Court could not have on its own appoint a Commissioner for measurement of the suit property. He therefore, submitted that the appointment of a Commissioner could not have been the reason for remanding of the matter. He hence, submitted that the order of remand as well as the appointment of the Commissioner may be set aside.
11. Per contra, learned counsel for the respondent supporting the order of remand has brought to my notice an interlocutory order passed by the trial Court dated 9/12/2010, wherein an application filed by the respondent under Order XXVI Rule 9 of CPC, for appointment of a 7 Taluka Surveyor to measure the suit property and to submit a report was dismissed as being premature. It is under these circumstances, that the first appellate Court thought it fit that a Commissioner be appointed to measure the suit property. He therefore, submitted that there is no merit in this appeal.
12. Having heard the learned counsel on both sides, the only point that arises for my consideration is as to whether the order of remand calls for any interference in this appeal.
13. From the material on record, it is not in dispute that the first respondent - plaintiff had sought a two fold relief. One is the relief of declaration and that he is the absolute owner of the suit property and the other for mandatory injunction with reference to encroachment of the suit property. It is significant to note that the trial Court has declared that the plaintiff is the absolute owner of the suit schedule property. After holding the same, mandatory injunction has been refused on the premise 8 that there has been no proof of encroachment by the defendants. However, the first appellate Court in the appeal filed by the plaintiff had to only give a finding as to whether the plaintiff was entitled to the mandatory injunction as a consequential relief of declaration that the plaintiff is the owner of the suit scheduled property. Instead of considering that aspect of the matter, the first appellate Court gave a direction to appoint a Commissioner for measurement of the suit property and directed the trial Court to provide an opportunity to let in additional evidence and remanded the matter to the trial Court for disposal. This in my view, is wholly incorrect for two reasons. Firstly, because after the trial Court had declared that the plaintiff was the owner of the suit property, appointment of a Commissioner for measurement of the suit property was wholly unnecessary. If at all the Commissioner was required to be appointed, it was with regard to the encroachment of the suit property, so as to consider the consequential relief for mandatory injunction. Secondly, no application had been made by the plaintiff 9 before the first appellate Court seeking appointment of such a Commissioner. In the absence of such an application, the first appellate Court could not have on its own directed the trial Court to appoint a Commissioner for the measurement of the suit property. Therefore, the appointment of the Commissioner on the premise that the Commissioner had to measure the suit property is also not in accordance with law. The same is therefore, set aside.
14. At this stage, it would be relevant to consider the fact that when an application was filed by the plaintiff before the trial Court for appointment of a Commissioner, the same was dismissed as having been filed at premature stage. Subsequently, no application was filed by the plaintiff before the trial Court.
15. The matter is now remanded to the first appellate Court. Accordingly, this MSA is allowed giving liberty to the plaintiff to file an application seeking appointment of a Commissioner. If such an application is 10 filed, an opportunity be given by the first appellate Court to the respondent before it to file objections and to consider such an application on merits and thereafter, to dispose of the appeal in accordance with law.
15. Since the parties are represented by their respective counsel, they are directed to appear before the first appellate Court on 20/03/2013, without insisting on any notice from the Court. Liberty is given to the respondent herein to file such an application on the said date. First appellate Court is directed to dispose of the appeal in accordance with law.
SD/-
JUDGE *mvs