Karnataka High Court
Rahul S Shah vs Jinendra Kumar Gandhi on 23 November, 2021
Author: B. M. Shyam Prasad
Bench: B. M. Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF NOVEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT PETITION NO. 19698/2021 [GM-CPC]
BETWEEN :
1. RAHUL S SHAH
S/O SHANTHILAL C SHAH
AGED ABOUT 49 YEARS
REPRESENTED BY HIS
POWER OF ATTORNEY HOLDER MR KETAN S SHAH
S/O SHANTHILAL C SHAH
AGED ABOUT 49 YEARS,
R/AT R-602
SPARTA II PRESTIGE ACROPOLIS
HOSUR MAIN ROAD
BENGALURU - 560 034.
2. SRI GOPILAL LADDHA
S/O LATE SRI RAMPAL
AGED ABOUT 75 YEARS,
R/AT NO.2741 17TH CROSS
8TH B MAIN ROAD BSK II STAGE
BENGALURU - 560 070.
3. SRI P PREMCHAND
S/O LATE G PARASMAL
AGED ABOUT 62 YEARS
R/AT NO.1123 GEETHA ROAD
CHAMRAJAPURAM
MYSORE - 570 004.
2
REPRESENTED BY HIS GPA HOLDER
P RAMESHCHAND
S/O LATE G PARASMAL
AGED ABOUT 60 YEARS
NO.4143, PRESTIGE SOUTH
RIDGE APARTMENT
HOSKEREHALLI
BANASHANKARI III STAGE
BENGALURU -560 085.
... PETITIONERS
(BY SRI . RAJESWARA P N., ADVOCATE)
AND:
1. SRI. JINENDRA KUMAR GANDHI
S/O MULCHAND GANDHI
AGE MAJOR,
2. SMT URMILA KUMARI GANDHI
W/O LATE MOOLENDRA KUMAR GANDHI
AGE MAJOR,
3. SRI AMITH KUMR GANDHI
S/O LATE MOOLENDRA KUMAR GANDHI
AGE MAJOR,
4. SMT DEEPIKA V JAIN
D/O LATE MOOLENDRA KUMAR GANDHI
AGE MAJOR,
5. SMT BABY KUMARI GANDHI
D/O SRI AMRITHLAL
AGE MAJOR,
RESPONDENT NOS. 1 TO 5
R/AT MICRO STRIPS, AVALAHALLI
TIMBER YARD LAYOUT MYSORE ROAD
BENGALURU - 560 026.
6. SRI A RAMACHANDRA REDDY
S/O SRI V ANJAN REDDY
3
AGE MAJOR
R/AT NO.41 1ST CROSS
MALLESWARAM
BENGALURU - 560 003.
... RESPONDENTS
(BY SRI. PARAS JAIN FOR C/R1 TO R5
VIDE ORDER DATED 08.11.2021;
NOTICE TO R6 STANDS WAIVED )
THIS WP IS FILED UNDER ARTICLE 226 AND 227 OF THE
CONSTITUION OF INDIA PRAYING TO SET ASIDE THE COMMON
ORDER DATED 02.11.2021 PASSED IN EXECUTION CASE
NO.458/2007 C/W EXECUTION NO.459/2007 BY THE VI ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH.NO.11)
ANNEXURE-A AND CONSEQUETLY SET ASIDE THE COURT
COMMISSIONER REPORT AND DISMISS THE EXECUTION PETITION.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
17.11.2021 AND COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THIS COURT MADE THE FOLLOWING:
ORDER
The petitioners have impugned the order dated 2.11.2021 in Execution Case No.458/2007 connected with Execution No.459/2007 on the file of the VI Additional City Civil and Sessions Judge, Bengaluru [for short, 'the executing Court']. The executing Court by this impugned order has accepted the Report dated 07.10.2021 filed by the Deputy 4 Director of Land Records and Survey, Department of Survey and Settlement, Bengaluru ['the Court Commissioner'], and the executing Court has concluded that the Decree Holders [the first to fifth respondents, and hereafter referred to as, 'the Respondents'] are entitled to take possession of the two portions marked as portion 'Part - A' and 'Part- B' excluding the extent shown marked as acquired for M/s BMRCL. The executing Court has also appointed the Commissioner to deliver possession of the respective portions to the first to fifth respondents. The directions in this regard are as follows:
(i) The Commissioner is directed to deliver the possession of 'A' and 'B' portion mentioned in the sketches except the portion acquired by METRO which is shown as '46.6 feet from F to G' at the West on Bangalore - Mysore Road, by putting Decree Holders in physical possession of 'A' and 'B' portions by removing all the resistance or obstruction whatsoever in nature, with the assistance of the Police and drawing Panchanama.5
(ii) The Commissioner is directed to complete the entire process of delivering the 'A' and 'B' portions to the respondents by putting them in physical possession by 07.11.2021 and to submit the report along with panchanama by 08.11.2021.
(iii) The Court Bailiff is directed to assist the Commissioner in execution of delivery warrant and to submit the report to the Court to the said effect.
2. The dispute between the petitioners, who are arrayed as objectors in Execution Nos.458 and 459 of 2007, and the respondents has a chequered history, and the dispute was multi hued. However, after the decision of this Court on 16.01.2020 in W.P. No.39296/2016 and the connected matters, and the confirmation thereof in Rahul S. Shah vs. Jinendra Kumar Gandhi and Others1, the dispute 1 AIR 2021 SC 2161, and it is submitted that the review petition is also rejected by the Hon'ble Supreme Court. 6 between them is vastly rendered monochromatic. A synoptic narration of facts leading to this petition would be thus.
3. The details of the transfers which forms the basis for the dispute.
The petitioners and the respondents claim under the original owner, Smt. Narayanamma, the undisputed owner of the property measuring 1 acre in Sy. No.15/2 of Deevitiga Ramanahalli Village, Kengeri Hobli, Bengaluru South Taluk, which is subsequently assigned municipal Nos.327, 327/1A, 327/2,327/3,327/4, 327/5 and 327/6. Smt. Narayanamma has transferred two parcels in this property in favour of the respondents/ their predecessors-in-title under the sale deeds dated 13.05.19862. Later, Smt. Narayanamma has entered 2 The Sale Deeds on the date of its presentation are rejected by the Sub Registrar referring to under Rule 171 of the Karnataka Registration Rules 1963 read with Section 34 of the Indian Registration Act, 1908, but is registered on 27.03.1991 after the order dated 26.3.1991 in RA No. 241/1986-87. A reference found in copies of the Sale Deeds [Annexure S and T].
7into the Partition Deed dated 25.03.1991 with her husband, Sri. Anjan Reddy, and her son, and Sri.Ramachandra Reddy partitioning the same property, and her son, Sri.Ramachandra Reddy has transferred certain portions of this property in favour of the petitioners/ their predecessors- in-title in the years between 2001 and 2004. The present dispute is about the identity of the properties purchased by the respondents, who have a decree for recovery of possession.
4. The details of the disputes leading to the present execution petition are as follows.
The respondents/ their predecessors-in-title, the purchasers under the two sale deeds dated 13.05.1986 as aforesaid, have filed the suits for possession in O.S.Nos.9077/1996 and 9078/1996 of the properties conveyed in their favour, and Smt. Narayanamma has filed her suit in O.S. No.986/1987 for permanent injunction, and these suits are disposed of by the common Judgment and 8 decree dated 21.12.2006. The respondents' suits for possession of the properties purchased by them (hereafter referred together as, 'the subject property' are decreed and Smt. Narayanamma's suit for permanent injunction is dismissed. A Division Bench of this Court has also dismissed Smt. Narayanamma's appeal filed against this common Judgment and decree in RFA No.661-663/2007 by its order dated 22.10.2009, and the Hon'ble Supreme Court has also rejected the subsequent Special Leave Petition [Civil] in No.16349-16351/2010 by its order dated 23.07.2010. The petitioners/ their predecessors-in-title have purchased certain portions of the property during the pendency of the aforesaid proceedings from Smt. Narayanamma's son.
5. The details of the proceedings that immediately precede the present petition.
The respondents have filed the present execution petitions in the year 2007 for enforcement of the decree dated 21.12.1996 in O.S. No.9077/1996 and O.S. No.9078/1996 9 to recover possession of the subject property. The petitioners are arrayed as objectors invoking Order XXI Rule 97 of CPC. A number of proceedings, including applications under Order XXI Rule 97 of CPC and the proceedings under Section 200 of Cr.P.C, are commenced. The parties are permitted to lead evidence on the respondents' application filed under Order XXI Rule 97 of CPC for removal of obstruction, and both the petitioners and the respondents have examined their respective witnesses and also marked different documents. As regards the proceedings under Section 200 of Cr.PC in PCR No.3053/2016 commenced against the respondents, the same have culminated in this Court's orders dated 16.03.2017 in Criminal Petition No.6281/2016 and 5916/2016. This Court, in these proceedings under Section 482 of Cr.PC, by way of an interim order dated 28.10.2016, has appointed Sri. Venkatesh Dalwai, an advocate, as the Court Commissioner to identify and measure the subject property, and he has also filed his report in such proceedings. 10
6. In the meanwhile, the executing Court, after the evidence by the parties, by its order dated 31.10.2014 has appointed a Taluka Surveyor attached to the office of BBMP as the Court Commissioner to visit the subject property to fix its boundaries and file a report. Subsequently, the executing Court by its order dated 25.06.2016, while directing delivery of possession of the subject property to the respondent, has reiterated its earlier order dated 31.10.2014 rejecting the Judgment Debtors' application/memo for recall of such order and for referring the signatures in the sale deeds for forensic examination. These orders are subject matter of the proceedings before this Court in W.P. No.39296/2016 and connected matters which are disposed of on 16.01.2020
7. This Court has partly allowed the petitions setting at naught the executing Court's order for issuance of delivery warrant and remanding the execution petition for fresh consideration by appointing an Expert person/official as a 11 Court Commissioner for the purposes of identification and measurement of the subject property with the participation of all the stakeholders which would include the petitioner and the respondents. The operative portion of this Court's order dated 16.01.2020 in this regard reads as under:
"(a) the other challenge by the JDrs and the Obstructors having been partly favoured, the impugned orders of the Executing Court directing issuance of Delivery Warrant, are set at naught, and the matter is remitted back for consideration afresh by appointing an expert person/official as the Court Commissioner for accomplishing the identification & measurement of the decretal properties with the participation of all the stake-
holders, in that exercise subject to all they bearing the costs & fees thereof, equally;
(b) It is open to the Executing Court to take into consideration the entire evidentiary material on record hitherto including the Report already submitted by the Court Commissioner Shri Venkatesh Dalwai,"
12
8. The petitioner's special leave petition before the Hon'ble Supreme Court as against this order dated 16.01.2020 is dismissed. The Hon'ble Supreme Court has observed that this Court has "adopted a fair approach requiring the executing Court to appoint a Court Commissioner to verify the identity of the suit properties and also consider the materials brought on record including the reports of the previous local commission". The Hon'ble Supreme Court has also issued general directions for expeditious disposal of the execution proceedings pending amendments to the relevant Rules.
9. The executing Court on 5.2.2020, in compliance with this Court's directions as aforesaid, has appointed the Director of Land Records and Survey, Department of Survey and Settlement, Bengaluru [hereafter referred to as, 'the Commissioner'], for identifying and measuring the subject property with the participation of the petitioner, the respondents and the Judgment debtors. After the executing 13 Court's order dated 5.2.2020, the parties have also filed their separate memo of instructions and the executing Court by its order dated 10.03.2020 has allowed certain instructions proposed while rejecting certain instructions. The executing Court has observed that the instructions filed by the Judgment Debtors and the fourth Objector will not survive because the respondents propose similar instructions. The executing Court has directed the Commissioner to consider the Sketches appended to the Sale Deeds dated 12.08.1986. The Instructions that are allowed by the executing Court read as under:
The Common Instructions proposed by the respondents, and allowed by the executing Court..
• To identify survey number 15/2 of
Deevatigeramanahlli village, Mysore Road,
Bengaluru and new No. 327 (with Sub-numbers 327/1, 327/2, 374,3, 327/4., 327/5 and 14 327/6) Mysore Road, Bengaluru and to measure the same with the assistance of Total survey machine.
• To take measurement of the property on the Road side commencing from the edge of Petrol Bunk bearing No. 326, Mysore Road, Bengaluru, upto 243 running feet sold to the respondents by the first J. Dr. • To mark the points on the Mysore Road side (Eastern side as per sale deed) up to 243 running feet 54+189=243 feet).
• To mark the points on the BHEL side (Western side as per the sale deed) upto 100 running feet plus 51 feet as per sketch attached to the sale deed).
10. The executing court has even allowed instructions proposed by the first petitioner [the third obstructor]. These instructions mostly mirror the instructions referred to above but the first petitioner has sought for measurement of the 15 entire property described as bearing municipal Nos.327, 327/1A, 327/2, 327/3, 327/4, 327/5 and 327/6 by fixing the coordinates as they existed prior to the acquisition of the property by BMRCL and for drawing sketches with the measurements shifting the boundaries as directed by this Court in W.P. No. 39296/2016 and Connected matters. It must at this stage be recorded that a portion of the subject property is admittedly acquired by BMRCL, and there is no dispute that the respondents cannot recover possession of this portion of the subject property3.
11. The Commissioner has filed his report and the parties have also filed their objections. The Commissioner's report has two parts i.e., a sketch drawn to a scale and the Commissioner's finding on the instructions. The salient 3 This Court in W.P. No.39296/2016 and connected matters has directed the parties, who ultimately succeed in the present proceedings, to deposit the compensation received from M/s BRCL, and subsequently, i.e., prior to impugned order, the Judgment Debtors have also deposited such.
16features of the Commissioner's Report 07.10.2021 are as follows:
a) The subject property is identified as Part-A and Part-B in the sketch. The portion of the subject property that is subject matter of the decree which is put into execution in Execution Case No.458/2007 is identified as Part-A, and the portion of the subject property that is subject matter of the decree which is put into execution in Execution Case No.459/2007 is identified as Part-B.
b) These two parts, marked 'A' and 'B,' are identified as being within the portions claimed by the petitioners.
The portions claimed by the petitioners are marked as part-I to part-IV-A and IV-B. The property is measured from south eastern edge of the property that is from the petrol bunk side as per the measurements in the sketches annexed to the respondents' sale deeds. 17 Insofar as the instructions that are filed by the respondents and approved by the executing Court, the Commissioner has noted the following:
a) The property is measured based on the city survey records maintained by the City Survey Department in CTS No.16, PT Sheet No.816 and CTS No.679 because Sy. No.15/2 of Deevitige Ramanahalli Village, Kengeri Hobli, Bengaluru South Taluk is mapped and maintained by the City Survey Department in terms of the relevant notifications issued by the State Government.
b) As regards the memo of instructions filed by the first petitioner, the Commissioner has reported inter alia that the area acquired for the purposes of BMRCL is indicated in 'yellow' while again specifying that the portion of the subject property that is put into execution in Execution No.459/2007 is marked as part-B and the 18 other portion of the subject property which is put into execution in Execution No.458/2007 is marked as part-
A. Further, the Commissioner has opined that the boundaries of these two portions as indicated in the Report are different from the boundaries mentioned in the sale deed.
12. This Court must record the details of the hearing dates after the Commissioner filed this Report on 07.10.2021 to consider the submissions by the learned counsel for the petitioners that the executing Court did not hear the petitioners on the issuance of Commissioner's warrant for delivery of possession. The respondents have filed their objections to the Commissioner's report on the date the report is filed; however, the first petitioner has filed objections on the next date of hearing viz., 25.10.2021. The executing Court has heard the learned counsel for the respondents and the first petitioner on the objections to the Commissioner's 19 report on this day. The execution cases are adjourned to 26.10.2021 for objections by the third petitioner and the other objectors. On 26.10.2021, the third petitioner has also filed his objections and the executing Court has again heard the learned counsel for the parties. The execution cases are listed for orders on 29.10.2021, and ultimately the impugned order is made on 02.11.2021.
13. A summation of the first petitioner's objection to the Commissioner's report would be as follows:
a) The total area of Part-A and Part-B is not mentioned and according to the sale deeds it could only be 34,849 sq. feet [17,172 + 17,677 sq feet]. The measurement of the area acquired for BMRCL has not been shown. The respondents are not entitled for the area earmarked by the Commissioner as Part A and Part-B; 20
b) The Commissioner has not fixed the eastern boundary taking note of the total measurements as found in the sale deeds.
c) The Commissioner could not have relied upon the records secured from the office of the City Survey Department because it had, on an earlier occasion not accepted the suggestion by the Judgment Debtor to appoint City Survey Authorities, K.R. Circle, Bengaluru as the Court Commissioner.
d) The Commissioner has shown the measurement of 54 feet and 140 feet between points 'E' and 'ED' respectively. But, there is no basis for the same.
e) The Commissioner has been assisted by M/s. Skanda Services, an agency appointed by Sri. Venkatesh Dalwai, a Surveyor who is appointed by this Court in the earlier criminal proceedings.
14. A summation of the second petitioner's objection to the Commissioner's report would be as follows, 21
a) The Commissioner could not have identified the subject properties because of the admitted difference in the boundaries. The identification of the subject properties by the Commissioner, and the acceptance thereof in the manner done, would be beyond the scope of the decree.
b) The Commissioner is appointed only to identify the property as per the decree and this identity is not established because of the difference in the boundaries and the measurements. The Commissioner has relied extensively on the sketch annexed to the sale deeds, but this could not have been done.
c) The respondents are claiming properties which are very distinct from the properties described in the sale deed and the decrees.
The third petitioner has also filed similar objections to the Commissioner's report emphasizing the alleged error in 22 mentioning the measurement of the subject properties and in placing reliance on the sketch annexed to the sale deeds.
15. The executing Court has accepted the Commissioner's report in the light of the report filed by Sri Venkatesh Dalwai after his appointment by an interim order in the criminal proceedings that are adverted to above, the description of the properties as mentioned under the two corresponding sale deeds dated 13.05.1986 and the sketches annexed thereto as also the undisputed fact that the Judgment Debtors, under whom the petitioners assert title to certain portions, did not dispute the identity of the subject property in the original proceedings. The executing Court, referring to the pleadings in the earlier proceedings, has observed that the dispute about the identity of the property is set up for the first time in the execution proceedings. 23
16. Further, the executing Court has also examined the entire controversy about the identity of the subject property because of the difference in the boundaries as mentioned in the respective sale deeds and the Commissioner's report referring to this Court's conclusions that have attained finality with the confirmation thereof by the Apex Court. The two conclusions that are referred to by the executing Court are:
(a) the original vendor, Smt. Narayanamma, after the sale of the subject property to the respondents, could not have conveyed the same extent in favour of the petitioners as she could not have transferred that title which she did not possess. But, her son Sri. Ramachandra Reddy, because the original owner had retained some portion of the property when she transferred the subject property to the respondents, could have transferred a much larger area to the petitioners including the property 24 transferred in favour of the respondents.
Therefore, the petitioners to the extent that the area purchased by them does not include the subject property would be entitled for protection against dispossession pursuant to the decree in favour of the respondents;
(b) the shifting of eastern boundary to the southern side facilitates identification of the subject property without changing its location, and the Bangalore-Mysore road, which cannot but be static and a constant, would be the polestar. The identity of the subject property must be established with this change.
17. Sri P. N. Rajeswara, the learned counsel for the petitioners, submits that this Court must interfere with the executing Court's order for issuance of delivery warrant and its execution by the Commissioner with the help of the police 25 in exercise of special jurisdiction under Article 227 of the Constitution of India. He argues that the executing Court heard the parties only on the Commissioner's report and not on the issuance of warrant as a consequence of accepting the report. The petitioners, in the light of the provisions of Order XXVI Rule 10 (3) of CPC and the decision of this Court in Parappa and others v. Bhimappa and another4, should have been granted an opportunity to examine the Commissioner on oath to bring out the anomalies in the report which would demonstrate that the subject property cannot be identified in terms of the decree and therefore the respondents are not entitled for recovery in enforcement of the decree.
18. Sri P N. Rajeswara, while insisting that the petitioners are not seeking a right to examine the Commissioner on oath as an empty formality (admitting that it would be, if the anomalies in the Commissioner's report are 4 ILR 2008 Kar 1840 26 not substantial), submits that it can be demonstrated that the Commissioner has gone overboard in identifying the subject property as part of the properties purchased by the petitioners during the pendency of the proceedings between the respondents and the judgment debtors. He draws the attention of this Court to the following:
a) The Commissioner, who has relied upon the sketches annexed to the sale deeds, has used the same agency used by Sri Venkatesh Dalwai for the purposes of carrying out the execution of the Commissioner's warrant. Therefore there is no independent identification. The sketches, purportedly appended to the sale deeds, could not have been relied upon by the Commissioner in view of the controversy about the registration of such sketches as part of the sale deeds.
b) The Commissioner in his report on the
instructions furnished by the petitioner has
27
categorically opined that there is a mismatch in the description of the measurements/boundaries of the subject property in the sale deeds and the measurements/boundaries on ground. This material circumstances has not been appreciated to report on the question whether the subject property is sufficiently identified as mentioned in the decree for its execution. He also draws the attention of this Court to the report where the Commissioner has recorded that parties are advised to file a separate suit because of the mismatch in the description to emphasize that there is overreach;
c) The Commissioner has identified the properties purchased by the petitioners/other purchasers in the sketch, which is part of the Report, as Parts I - VI with the total measurements. But, the Commissioner has not given the detailed measurements such as the 28 measurements along the boundaries of each of these blocks. This has resulted in an erroneous identification of the subject property;
d) The Commissioner has shifted the boundaries as mentioned in the sale deeds to identify the property in a manner that is convenient to the respondents and without measuring the entire length along the southern, northern and eastern boundaries.
e) The area acquired by M/s BMRCL, though indicated separately in the Sketch, the measurements of the same are not mentioned.
19. Sri. Paras Jain, the learned counsel for the respondents submits that after the decision of this Court in WP No. 39296/2016 and the connected matters, none of the petitioners can sustain any objection to the identification of the subject property in the manner concluded by the report, 29 either because the Commissioner has measured the subject property from the south eastern edge or because the Commissioner has identified the boundaries of the subject property with the Bangalore-Mysore Highway as the static and undeniable boundary.
20. Sri. Paras Jain submits that the petitioners' right is entirely restricted by the finding by this Court in WP No. 39296/2016 and the connected matters in consonance with the settled law and the decision of the Hon'ble Supreme Court in Usha Sinha v. Dina Ram and others5. He submits that a purchaser of a property during the pendency of the litigation from a party to such litigation has no right to resist or obstruct the execution of the decree; the resistance at the instance of a transferee of a judgment debtor cannot be said to be resistance or obstruction by a person in his own right and therefore, the transferee cannot rely upon the provisions 5 (2008) 7 Supreme Court cases 144 30 of either rule 98 or rule 100 of Order XXI of CPC. The petitioners, who are admittedly transferees under the judgment debtors, cannot object or seek any adjudication, and they are not bona fide in their objections to the Commissioner's report.
21. In the light of the rival submissions, the questions for consideration is:
• Do the petitioners' objections on the
Commissioner's Report impel a reasonable
finding that the executing Court has erred in accepting the Commissioner's report and in issuing the directions as it has done? And • Are the petitioners justified in contending before this Court for the first time that they should have been given an opportunity to cross-examine the Commissioner on the report?
22. At the outset, this Court must observe that the canvas of the dispute is rather defined without room for 31 doubt by the decision of this Court in WP No. 39296/2016 and connected matters. Therefore, this Court in the present decision must perforce refer to the following conclusions in the earlier decision. This Court, on the question of existence of the subject property and the identification of the subject property, has already held:
"....... however, the Executing Court has to make all reasonable efforts to know what property the decree in question comprises of; where despite reasonable efforts, the property comprised in the decree does not become identifiable, such decree may be treated as in executable vide Shafiqur Rehaman Khan case is also true; however, that is not the case here; at no point of time during the suit proceedings, the JDRs had disputed the existence or extent of the suit property assuming such a dispute also will not yield anything to the advantage of the DHRs since no finding in support of their contention has been obtained;" 32
23. This Court has further held6 that the Judgment Debtors and the Obstructors have not made out a case to conclude that the decree in favour of the respondents is inexecutable and they must be relegated to a new suit, and whatever little discrepancy that may exist in the description of the subject property can be erased in the very execution proceedings with the evidentiary material on record coupled with the report that will be submitted by the Commissioner. This Court, while commenting on the merits of the executing Court's previous order, has also observed7 that there cannot be any error in referring to the Bangalore Mysore Highway for the purposes of identification of the subject property because the parties do not dispute that the subject property has been described in the schedule of the sale deeds as being bound by this road on one side and in 6 Para viii of the decision dated 16.0 1.2020 in WP No. 39296/2016 and connected matters 7 Para xii of the decision dated 16.0 1.2020 in WP No. 39296/2016 and connected matters 33 fact, this Court has observed that this admitted boundary should serve as a polestar for a reasonable identification of the subject property.
24. The primary question for consideration is whether the subject property is sufficiently identified to exclude the additional area that the petitioners could be entitled to. The executing Court, in accepting the Commissioner's report despite these differences in the description of the boundaries, has held that the subject property is sufficiently identified without any additional area notwithstanding the differences in the boundaries as mentioned in the schedules to the sale deed/decree and the Commissioner's report.
25. The boundaries of the subject property as mentioned in the schedules appended to the respondents' sale deeds and the Commissioner's report are as detailed in the 34 following tabular column, and there cannot be any denial of the differences in the description of the boundaries. For Part A - the portion of the subject property that is subject matter of the proceedings in Ex Case No. 458/2007 As mentioned in the Sale As mentioned in the Deed 13.05.1986 registered Commissioner's report in No. Book I Volume No. dated 07.10.2021 1415 in No. 4122 East By Bangalore - Mysore Road • Part A of the Subject Property that is sold in favour of the Decree Holders in Ex Case No. 458/2007 and • A part of the portion marked as Part - III and held by Sri. Rahul S Shah [the first petitioner] West By BHEL factory Shell Petrol Bunk North By Portion of the property BHEL Compound retained in Corporation No. 327 and 328 [M/s Navalco Limited Factory] South By Property owned by Sri. Bangalore - Mysore Lingaiah's successors Road For Part A - the portion of the subject property that is subject matter of the proceedings in Ex Case No. 459/2007 As mentioned in the Sale As mentioned in the Deed 13.05.1986 registered Commissioner's report in No. Book I Volume No. dated 07.10.2021 1415 in No. 4122 35 East By Bangalore - Mysore Road A portion of the Property marked as Part IV A held by Sri. Parasmal [the third petitioner] West By Portion of the property No. Part B of the Subject 327 sold to Sri. Jinendra Property that is sold in Kumar Gandhi and another favour of the Decree
- Decree Holders in Ex Case Holders in Ex Case No. No. 459/2007 458/2007 and North By Portion of the property • Part B of the retained in Corporation No. Subject Property 327 and 328 [M/s Navalco that is sold in Limited Factory] favour of the Decree Holders in Ex Case No. 458/2007 and The portions of the • Properties marked as Part III and IV A held by Sri. Rahul S Shas [the first petitioner] and Sri. Parasmal [the third petitioner] South By Portion of the property No. Bangalore - Mysore 327 sold to Sri. Jinendra Road Kumar Gandhi and another
- Decree Holders in Ex Case No. 459/2007
26. The executing Court, notwithstanding these differences, has opined that the identity of the subject property is reasonably established by the Commissioner in 36 the report dated 07.10.2021 relying upon the undisputed location of the subject property along the Bangalore-Mysore highway. The executing Court, in accepting that the identity of the subject property as reported by the Commissioner, has compared the measurements of the subject property as found in the sketches annexed to the sale deeds with the measurements as reported by the Commissioner. This Court must observe that, in the facts and circumstances of the case, the undisputed measurements also help in establishing the identity of the subject property beyond dispute.
27. The schedules appended to the respondents' sale deeds mention the measurements of the respective portions of the subject property, and the probative value of these sketches for the purposes of establishing the identity of the subject property, is highly enhanced as the measurements are not mentioned in the schedules. This Court in W.P. No.39296/2016 and connected matters has directed the 37 executing Court to consider every evidentiary material brought on record, including the earlier commissioner's report. As such, this Court is not persuaded to opine that the executing Court has erred in relying upon either measurements mentioned in the sketches annexed to the respondent's sale deeds or the earlier commissioner's report. Further, a conjoint reading of the sketches appended to the respondent's sale deed and the sketch in the Commissioner's report, in the light of the earlier directions by this Court, also renders the petitioners' objections rather tenuous.
28. This Court opines that a conjoint presentation of these two sketches only reinforces the reasonableness of the executing Court's conclusion relying upon the measurement of the subject property. These two sketches establish the overlap between the subject property and the properties purchased by the petitioners, which would be a material 38 circumstance. Therefore, a conjoint presentation of these two sketches:
Sketch as annexed to the Sale Deeds Sketch that is part of the Commissioner's Report
29. This Court, on a conjoint reading of the measurements in the schedules annexed to the sale deeds 39 and the Commissioner's Report dated 07.10.2021, is not persuaded to opine that the executing Court has erred in its conclusion that the identity of the subject property is reasonably established. This Court is also not persuaded to opine that the contentions such as that the Commissioner has not measured the petitioners' respective portions; the entire length along the southern boundary should have been measured; and that the Commissioner has considered the Bangalore-Mysore highway as the southern instead of the eastern boundary impel a conclusion that the executing Court's impugned order is either perverse or irregular justifying an interference by this Court. As regards these contentions, this Court must again reiterate this Court's earlier observation that the subject property does not stretch out exactly along the North-South axis and is neither a square nor a trapezium. The first question is answered accordingly.
40
30. On the second question, this Court must observe that the Hon'ble Supreme Court in Misrilal Ramratan and Others v. A. S. Shaik Fathimal and others8 held that:
"it is now settled law that the report of the Commissioner is part of the record and that therefore the report cannot be overlooked as rejected on specious plea of non-examination of the Commissioner as a witness since it is part of the record of the case".
On behalf of the petitioners, reliance is placed upon the decision of this court in Parappa and others v. Bhimappa and another (supra) to assert that the petitioner should have been granted an opportunity to cross-examine the Commissioner and that would have enabled the petitioners to bring all the anomalies in the Commissioner's report. This Court in the aforesaid decision has recognised the right of a party who is aggrieved by the report filed by a Commissioner to seek examination of the Commissioner in the light of the 8 1995 Supp (4) SCC 600 41 provisions of Order XXVI Rule 10 of CPC. This Court has dilated on the expression examination as found in these provisions and held that this expression must include the examination in chief, cross-examination and re-examination while declaring that that if a party does not accept the correctness of the report, it is open to such party to file written objections, and to substantiate such objections, to request the court for providing an opportunity to examine the Commissioner in person.
31. This decision cannot be cited as an authority for contending that notwithstanding the circumstances, the courts must necessarily permit the party to examine the Commissioner. This Court must hold that it is incumbent upon the party, who has a grievance with the Commissioner's report, not only to file written objections but also make a prayer for examination of the Commissioner. If a party does not choose to make such a request, he/she cannot later 42 contend that the Commissioner's report should not have been accepted without an opportunity to examine the Commissioner.
32. In this regard, this Court must refer to the decision in S Ramakrishna v. S. Appaiah and others9 and also the decision of the High Court of Andhra Pradesh in VaddaRajeswaramma v. V L Narasimha Charyulu and others10. This Court must observe that the petitioners have not made any request for examination of the Commissioner either on 25th or 26th October, 2021. This Court, for the aforesaid reason and also in the light of the discussion on the first question, must hold even the second question against the petitioners.
For the foregoing reasons, the writ petition is rejected. However as the respondents have not taken any action for 9 2020 SCC Online Kar 1635 10 1998 SCC Online A.P. 61.
43execution of the Commissioner's warrant because of this petition and in terms of the undertaking before this Court, the executing Court's order for Report by 8.11.2021 is modified and the concerned is directed to file such Report with the executing Court by 08.12.2021.
SD/-
JUDGE nv*