Karnataka High Court
The Bangalore Water Supply vs Sri T K Kemaparaju on 27 February, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
R.F.A.No.650/2013
BETWEEN:
1 . THE BANGALORE WATER SUPPLY
AND SEWERAGE BOARD
CAUVERY BHAVAN
I FLOOR, K G ROAD
BANGALORE-560009
BY ITS CHAIRMAN
AUTHORISED SIGNATORY BY
CHIEF ENGINEER
2 . THE CHIEF ENGINEER
CAUVERY 4TH STAGE PLANNING
THE BANGALORE WATER SUPPLY
AND SEWERAGE BOARD
CAUVERY BHAVAN
K G ROAD
BANGALORE-560009 ..APPELLANTS
(BY SRI.M S NARAYAN, ADVOCATE)
AND:
1 . SRI T K KEMAPARAJU
S/O KRISHNAPPA
AGED ABOUT 57 YEARS
R/AT NO. 69, PIPELINE
YESHWANTHPURA
BANGALORE-22
2
2 . SMT. GAJALAKSHMAMMA
DEAD BY LRS
2(a)SRI SURESH
AGED ABOUT 58 YEARS
SON OF LATE GAJALAKSHMAMMA
W/O LATE R LAKSHMANAPPA
R/AT NO. 7/1, 7TH CROSS ROAD
PIPELINE, YESHWANTHPUR
BANGALORE-560 063
2(b) SRI RAMESH
AGED ABOUT 60 YEARS
SON OF LATE GAJALAKSHMAMMA
W/O LATE R LAKSHMANAPPA
R/AT NO. 7/1, 7TH CROSS ROAD
PIPELINE, YESHWANTHPUR
BANGALORE-560 063
2(c) SRI VENKATESH
AGED ABOUT 56 YEARS
SON OF LATE GAJALAKSHMAMMA
W/O LATE R LAKSHMANAPPA
R/AT NO. 7/1, 7TH CROSS ROAD
PIPELINE, YESHWANTHPUR
BANGALORE-560 063
3. SMT. CHINNAMMA
D/O LATE PUTTAPPA
AGED ABOUT 70 YEARS
R/O SINGAPUR
YELAHANKA HOBLI
BANGALORE NORTH TALUK
BANGALORE-560064 ..RESPONDENTS
(BY SRI.AMARESH A ANGADI, ADVOCATE FOR C/R-3,
APPEAL IS ABATED AS AGAINST R-1 AND R-2(a), APPEAL
3
AGAINST R-2(a -c) IS DISMISSED AS NOT PRESSED VIDE
ORDER DATED 06.02.2020)
THIS RFA IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 15.01.2013
PASSED IN O.S.NO.4851/99 ON THE FILE OF THE XL
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BANGALORE, PARTLY DECREEING THE SUIT FOR
PERMANENT INJUNCTION.
THIS RFA COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Appeal is directed against the Judgment and decree dated 15.01.2013 passed in O.S.No.4851/99 by the XL Additional City Civil and Sessions Judge, Bengaluru, wherein suit filed by the plaintiff came to be decreed in part as the claim of plaintiffs 1 and 2 respectively in respect of `A' and `B' schedule property was dismissed and suit by the plaintiff No.3 in respect of `C' schedule property came to be decreed. Accordingly defendants were restrained by an order of permanent injunction from interfering with 4 the peaceful possession and enjoyment of the suit `C' schedule property by plaintiff No.3.
2. In order to avoid overlapping and confusion, the parties are addressed in accordance with the status and rankings held by them before the Trial Court.
3. The schedule property consists of three items of landed property each measuring 2 acres situated at Singapur Village, Yelahanka Hobli, Bangalore North Taluk in common Sy.No.109. Sy.No.109 is stated to be vast land of gomal and 2 acres each claimed by the plaintiffs and claimed interference and filed suit against defendants -Bangalore Water Supply and Sewerage Board, Cauvery Bhavan, Bangalore, by its Chairman and the Chief Engineer, Cauvery 4th Stage planning, BWSSB, Cauvery Bhavan, Bangalore. 5
4. Insofar as claim of each of the plaintiffs claiming to be owners in possession of respective `A', `B' and `C' schedule property to the extent of 2 acres. The contentions of the defendant -BWSSB is that it is also grantee of land of 20 acres which was accorded by the Government for the purpose of installing ground level water reservoir.
5. Previous litigations are also stated to have been proceeded and the plaintiffs hold a decree in O.S.No.1269/95, O.S.No.1270/95 and O.S.No.1273/95, where claim over three items `A', `B' and `C' of suit schedule property were separately filed in respective three suits.
6. Before dwelling on the other aspects it is necessary to clarify that Schedule property consisting of three items viz., `A', `B' and `C' are claimed by the 6 plaintiffs to the extent of 2 acres each as per the description stated in the plaint schedule.
7. Learned trial Judge was accommodated with the oral evidence of PW-1- T.K.Kemparaju, PW-2- Gajalakshmamma and PW-3-Chinnamma and documentary evidence exhibits P-1 to P-23 on behalf of plaintiffs and oral evidence of DW-1-G.M.Shivaraju and documentary evidence Exhibits D-1 to D-21(a) on behalf of defendants.
8. On adjudication of the matter on 15.01.2013 suit of the Plaintiff No.1 in respect of `A' schedule, Plaintiff No.2 in respect of `B' schedule came to be dismissed. However in respect of plaintiff No.3 in respect of 2 acres of land Sy.No.109 of Singapur Village came to be decreed. The defendant -BWSSB being aggrieved by the said Judgment and decree has come in appeal. 7
9. Learned counsel Sri M.S.Narayan appearing for the defendant -appellant submits that the defendant don't claim as individual. On the other hand their claim is as the custodian of the schedule property being entrusted by Government connecting to water supply. It is undisputed that the plaintiffs among themselves as per grant order dated 19.04.78 were granted 2 acres each in gomal land of Singapur Village, Yelahanka Hobli. It is stated that on some difference and discrepancy the khatha of the schedule property in favour of the plaintiffs was revoked by order dated 24.03.94. Thereafter writ petition was preferred before this court in W.P.Nos.10976-78/94. On 23.08.94 the said writ petitions came to be allowed and revocation order in all three matters were cancelled.
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10. It is the claim of plaintiffs of interference over their respective portions of property by the defendant- BWSSB.
11. Learned trial Judge adjudicated the suit for permanent injunction on 15.01.2013 in which the suit of the plaintiff No.3 came to be decreed and defendant BWSSB is in appeal.
12. Learned counsel Sri Narayan for common defendants in all the suits would submit though the writ petitions filed against the State against revocation order in W.P.Nos.10976-98/94 BWSSB was not a party and as such it has no binding effect.
13. Now the suit is filed by the plaintiffs in order to have unfair advantage of the result of petition against Board BWSSB though was not bound by the same. 9 Learned counsel would further submit that the land in Sy.No.109 of Singapur Village is vast gomal land to the extent of 226 acres 15 guntas of land. BWSSB submitted a request to the Government for grant of 20 acres of land for raising ground level reservoir and related activities including construction of building and other necessary work. On 20.05.98 the Deputy Commissioner granted the same by directing the Tahsildar, Yelahanka to grant and issue necessary documents to BWSSB to the effect of grant of 20 acres of land. Learned counsel would further submit that 20 acres of land granted by the Government is in Sy.No.109 being bounded on the East by :Land in Sy.No.6 and Sy.No.4 and remaining land in Sy.No.109 West by : Sy.No.102 and 108 North by :remaining portion of land in Sy.No.109 South by :remaining portion of land in Sy.No.109 10
14. It is thus, sum and substance of the case of the appellant/defendant is that in the guise of grant of land i.e., not available to the plaintiffs a suit is being filed to harass Government agency. After getting possession from the revenue authorities the ground level reservoir being constructed and building came to be reared and it is functioning. In the suit plaintiff sought for ad interim injunction under Order 39 Rules 1 and 2 CPC and by order dated 26.06.99 ad interim injunction order was granted and it came to be vacated on 29.03.2000 against which the plaintiff preferred MFA No.2648/2000 and it was disposed of on 26.03.2002.
15. Regarding the boundary or dispute of the area of land, the Commissioner was appointed by trial court and basing on the report trial court comes to the conclusion in respect of `C' schedule property plaintiff 11 No.3 made out a case. Accordingly suit was decreed. Regard being had to the fact suit of plaintiffs 1 and 2 came to be dismissed.
16. Learned counsel Sri Amaresh N Angadi for respondent No.3 would submit that in the previous proceedings, the case of the plaintiffs came under the scanner of the court though defendant BWSSB was not a party records were scanned and certified to be authentic. Learned counsel would further submit that BWSSB is encroaching the land that was granted to the plaintiffs and the Commissioner has given an exact finding regarding possession of plaintiffs in respect of the plaint schedule properties.
17. The prime contention of the appellant-defendant BWSSB is that nodoubt the court commissioner was appointed and he was asked to conduct local 12 investigation and file report and as per the report of the court commissioner 20 acres of land granted to the defendant and plaintiff No.3 were marked. It is in this connection learned counsel Sri M.S.Narayan would submit that on the previous occasion court commissioner was appointed and this court in RFA No.1208/2011 by order dated 16.04.2012 allowed the appeal and set aside the Judgment and decree dated 15.03.2011 passed in O.S.No.4851/99 and the matter was remanded with a direction to consider the objections filed to the Commissioner's report by giving opportunity to the parties which meant opportunity to cross examine, opportunity to substantiate objections on the commissioner's report.
18. Thus, the second phase of proceedings in the same suit came up before the learned trial Judge. It appears that none of the parties adduced their further 13 oral evidence nor filed any application or separate claim or contentions were made. It was commissioner's report trial court was directed to test the veracity and applicability to the case on hand. It is in this connection learned trial Judge considered objection statement in detail and same came to be rejected. The material observation of the commissioner's report as extracted from order dated 05.10.2012 passed by learned trial Judge is as under:
"9. It appears that there is some force in the contention of the plaintiffs counsel. The defendants have not at all filed memo of instructions. In the absence of memo of instructions, the court Commissioner could not say anything in respect of the defendants land except to answer to the questions mentioned in the memo of instructions filed by the plaintiffs in respect of the suit schedule properties and the land of the defendants. Under these 14 circumstances, I hold that the objections raised by the defendants is not tenable.
10(a) It is the case of the defendants that 20 acres of land, out of 200 and odd acres of land in Sy.No.109 of Singapur Village has given to the defendants/BWSSB and they have put up compound wall to their (defendants) property. In the Commissioner sketch shown the compound wall put up by the defendants around their (defendants) property, and also stated that the suit A and B schedule properties comes within the compound wall put up by the defendants and the suit `C' schedule property comes outside the compound wall of the defendants. In the sketch shown the compound wall put up to the defendants property. Hence it cannot be said that the Commissioner has not properly show the defendants lands. The defendants lands come within the compound wall put up by them.15
(b) According to the defendants Commissioner has not shown the Project regarding the ground level reservoir which is already completed in their (defendants) land. The defendants have not at all filed memo of instructions and asked the court Commissioner to show the said project in the sketch and to submit the report regarding the ground level reservoir. Hence there is no substance in the contention of the defendant that the said project is not mentioned in the Commissioner's report.
(c) The defendants have contended that the Commissioner's report is different from the earlier surveyor report.
Whatever may be the earlier surveyor report, but in this case, the court has appointed the Commissioner for the purpose mentioned in the application (IA.3) and the court Commissioner has executed his work as per the memo of instructions filed by the plaintiffs (memo of instructions filed by the plaintiffs (memo of instructions not filed by 16 the defendants) and submitted his report. Under these circumstances, it is not proper to reject the Commissioner report only on the ground that Commissioner's report is different from the earlier surveyor report.
Absolutely no grounds to reject the Commissioner's report. Hence, I answer the point No.1 in the negative.
Point No.2: In the result, I pass the following:
Objection filed to the Commissioner' report by the defendants on 5.4.2010 is rejected. Commissioner's report is accepted.
19. It is in this connection the trial court should have taken the direction in its larger perception when objections to the commissioner report is filed it is not mechanical disposal of the case by stating non acceptance. On the other hand admittedly when the 17 extent of land is 226.15 acres and admittedly the defendant is also granted 20 acres of land.
20. Mentioning of the commencement of 20 acres of land of the defendant and 2 acres of the land of plaintiff No.3 would have thrown much light on the case. It is very much important to note none of the lands are bifurcated with reference to survey numbers. It could have directed the parties to get their lands phoded.
21. Further there should have been reference of grant register and also survey if any conducted with reference to tippani. Further plaintiffs and defendant should have been given opportunity of examining the Commissioner and without resorting to such procedure rejection of the objection and accepting of commissioner's report and pronouncement of 18 judgment. It should have been decided by full fledged enquiry giving opportunity to both the parties.
22. Thus, I do not find the disposal of the case by the learned trial Judge is full fledged one for the reasons stated on the face of it, it becomes incomplete and ineffective in the light of absence of consideration of commissioner's report in the manner in which it should have been considered. The court should have also ascertained from examining the survey authorities if any that was required.
23. The observation applies to plaintiff No.3 and defendant in respect of `C' schedule property.
For the reasons stated above, appeal is allowed and Judgment and decree dated 15.01.2013 passed in O.S.No.4851/99 is set aside and matter is remanded to the trial court with a direction to hold full fledged 19 enquiry on the commissioner's report and give opportunity to the plaintiff No.3 and defendant to examine themselves or the witnesses if they chose to do so and also examine the survey authorities with documents if need be and complete the formalities.
In order to avoid wastage of judicial time parties need not wait for further notice and they shall appear before the trial court on 30.03.2020.
Learned trial Judge shall dispose of the suit within time limit of four months from the date of first hearing.
Sd/-
JUDGE SBN