Karnataka High Court
Sri. Raja vs Sri. K Narayana Shetty on 28 August, 2023
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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NC: 2023:KHC:30626
WP No. 8637 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 8637 OF 2017 (GM-CPC)
BETWEEN:
1. SRI. RAJA
S/O LATE. MADHAVA,
AGE 54 YEARS,
2. MRS. VINAYA
S/O LATE. MADHAVA,
AGE 53 YEARS
3. SMT. N. SUNANDA
W/O LATE. MADHAVA,
AGE 85 YEARS
ALL ARE R/AT KUDUKORIGUDDA,
KANKANADY BYPASS ROAD,
MANGALORE 575002.
Digitally
signed by
NARASIMHA ...PETITIONERS
MURTHY
VANAMALA (BY SRI. G. KRISHNA MURTHY, SENIOR ADVOCATE FOR
Location:
HIGH SRI. MADHAV BHALAJI KASHYAP., ADVOCATE)
COURT OF
KARNATAKA
AND:
SRI. K NARAYANA SHETTY
S/O. KORAGA SHETTY,
AGED MAJOR,
WORKING AS TAILOR,
R/AT KUDKORI GUDDA,
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WP No. 8637 of 2017
KANKANADY,
MANGALORE 575002.
...RESPONDENT
(BY SRI. CYRIL PRASAD PAIS.,ADVOCATE)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 16.2.2017 PASSED IN
EX.CASE NO.244/1991 ON THE FILE OF THE
EXECUTING COURT II ADDL. CIVIL JUDGE & JMFC,
MANGALURU D.K. WHEREIN THE EXECUTING COURT
HAS ACCEPTED THE COMMISSIONER REPORT DATED
4.1.2017 AND THEREBY ORDERED FOR DELIVERY
WARRANT VIDE ANNEXURE-A.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This petition is by the Judgment Debtors in Execution No.244/1991 on the file of the II Additional Civil Judge and JMFC, Mangalore, Dakshina Kannada [for short, the 'executing Court']. The petitioners are aggrieved by the executing Court's -3- NC: 2023:KHC:30626 WP No. 8637 of 2017 order dated 16.02.2017, and the executing Court by this order has accepted the Court Commissioner's Report, which is filed along with plans, holding that the petitioners must hand over the property that is marked in color 'Pink' in Plan-2 annexed to the Report. Sri G. Krishna Murthy, the learned Senior Counsel for the petitioners, and Sri Cyril Prasad Pais, the learned counsel for the respondent, are heard for final disposal of the petition.
2. The undisputed facts are that the respondent's suit in O.S.No.179/1977 is decreed on 24.11.1981, but this judgment and decree is revisited by this Court in RSA No.621/1989 at the instance of Sri M. Madhava [the first defendant in the suit] and his wife Sunanda [the second defendant in the suit and the third petitioner herein]. Sri M.Madhava has died, and he is represented by his children [the first and the second petitioners]. The dispute relates to the respondent's case that Sri Madhava and the third -4- NC: 2023:KHC:30626 WP No. 8637 of 2017 petitioner, who assert title to 10 cents in Sy.No.4/3A1 of Kankanady village, Mangaluru Taluk, Dakshina Kannada under the sale deed dated 24.01.1975, have encroached upon an extent of 9 cents in the total extent of 28 cents purchased by him under the Mulgeni Chit dated 29.11.1973 [Ex.P5] and the sale deed dated 17.05.1974 [Ex.P1].
3. The culmination of this dispute is by this Court's order in RSA No.621/1989, and this Court's order is in the light of the submissions made on behalf of both the respondent and the petitioners. The submissions on behalf of Sri M.Madhava and the third petitioner and this Court's consequential clarification and direction read as under:
"4) Sri.H.B.Datar, Senior counsel submits that the appellants-defendants have no objection whatsoever for the plaintiff getting totally 28 cents of land covered by the documents Exs. P-1 and P-5. The trial Court has decreed the suit of the plaintiff and has given a direction to -5- NC: 2023:KHC:30626 WP No. 8637 of 2017 demarcate 9 cents in extent regarding which possession is ordered to be delivered and the demarcation was to be done at the time of execution. The land bearing 4/3A1 totally measures 43 cents. Out of this land plaintiff has acquired 28 cents as stated above. The defendants have purchased 10 cents under Ex. 2-2 subsequent to Ex.P-1.
Mr.Datar submits that defendants have no objection to demarcate 28 cents of land covered by Ex. P-1 and P-5 including 5 cents said to have been sold by plaintiff subsequently to one Jyothi Bai. It is only when any area is required to cover up 28 cents that may be demarcated in the land of the defendants and possession of it may be delivered to the plaintiff.
5) In view of these submissions, the trial Court on execution side is directed to appoint an advocate as commissioner to measure and demarcate 28 cents of land covered by Ex. P-5 and P-1 including 5 cents of land sold by plaintiff to one Jyothi bai and if any area is required to make up this 28 cents, it will be measured and demarcated on the -6- NC: 2023:KHC:30626 WP No. 8637 of 2017 land of defendants covered by Ex. P-2 so that possession of so much area can be delivered to the plaintiff. The advocate- commissioner shall take assistance of expert."
4. The respondent, after this Court's order as aforesaid on 12.11.1990, has filed the present execution petition, and the executing Court has appointed a Court Commissioner for the purposes of achieving the direction as aforesaid. A learned Member of the bar, who is appointed as the Court Commissioner, has executed the warrant with the assistance of a surveyor from the local office of the Assistant Director of Land Records. The Commissioner's Report reads inter alia that Exhibit P.5, a Mulgeni chit relied upon by the respondent, is not found proper and hence the measurement of the disputed properties is done according to the Field Measurement Book Plan [FMB]. The petitioners have filed their objections to this Commissioner's Report. -7-
NC: 2023:KHC:30626 WP No. 8637 of 2017 The executing Court, considering such objections, has accepted the Commissioner's Report.
5. The first question for consideration is whether the executing Court could have accepted the Report without the petitioners being permitted to cross- examine the Commissioner in view of the Statement of Objections filed by the petitioners thereto, especially given the fact that the directions of this Court in RSA No.621/1989 are categorical in that the Commissioner must be appointed to measure and demarcate 28 cents of land covered in Ex.P5 and P1 [including the extent of 5 cents sold by the respondent in favor of certain Jyothi Bai] and if any area is required to make up the short fall, it will have to be from the extent purchased by Sri M. Madhava and the third petitioner. The executing Court's impugned order is rendered susceptible in law because the document [sketch annexed to Mulgeni Chit - Ex.P5] found by the respondent is found to be -8- NC: 2023:KHC:30626 WP No. 8637 of 2017 incorrect and it is not disputed that the petitioners have not been given an opportunity to cross examine the Commissioner.
6. The salient of the Commissioner's Report, as could be seen in Paragraph-6 of the Report, is as hereunder:
• The Plan No. I is the plan measured as per Ex.P.5 sketch in which the demarcation of property is not proper. The point marked at 'C' is shown as 150 meters distance between survey line and the western boundary of property in the sketch annexed to Ex.P.5, while in the location it is only 10-meter distance. Hence as per the Order dated 02.11.2007 passed by this Hon'ble Court the Advocate Commissioner confirmed the survey lines from western side till the boundaries of schedule properties as per FMB Plan.
• The exact location of properties at the spot is shown in the annexed Plan No. II provided by the surveyor which is enclosed to this report. The measurement of the schedule property as found in location while measuring as per descriptions and boundaries mentioned in Ex.P.5 document is shown in blue color, and it is 14 cents in extent. • The property mentioned in Ex.P.1, including 5 cents of land sold to Jyothi Bai which is overlapping to property described in Ex.P2 and the location of -9- NC: 2023:KHC:30626 WP No. 8637 of 2017 property mentioned in Ex.P2 from which the remaining area of 9 cents, is carved out to make total extent of 28 cents is shown in pink color and it is 14 cents in extent. Hence total extent of 28 cents is shown in Plan No. II.
• There is a compound wall existing on all four sides of property described in Ex.P.5. There is a residential building and tree growths in property covered in Ex. P5. The land covered in Ex. P1 including land sold to Jyothi Bai and Ex. P2 is vacant land. There is 3 feet pathway in between property covered in Ex.P.5 and Ex.P.1, Ex. P2.
The Plans referred to in the Commissioner's Report read as hereunder:
Plan No. I Plan No. II
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7. This Court could have no hesitation in opining that the Commissioner's Report is called for to comply with the direction issued in the light of the concession made before this Court in the backdrop of the decree in favor of the respondent, and this essentially would mean measuring 28 cents as described in both Exhibits P.5 and P.1, and if upon such demarcation and measurement it is found that the respondent, and the person who claim under him [Smt. Jyothi Bai] are in possession of any extent less than 28 cents, the same will have to be made good by the petitioners who assert possession of 10 cents in the same survey number.
8. The Commissioner to achieve this has availed the assistance of the FMB Plan recording that the sketch annexed to Mulgeni Chit - Ex.P5 is incorrect, and that could be impermissible as FMB is not part of the records marked in evidence in the
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NC: 2023:KHC:30626 WP No. 8637 of 2017 original proceedings and the petitioners have had no opportunity to say on the significance of this exercise.
9. The Commissioner for compliance with the decree will have to identify the portion that is in the respondent's possession qua the 28 cents (14+14) as per Exhibits P.5 and P.1, to ascertain whether the respondent, and the person claiming under him, are in possession of any extent less than 28 cents and then indicate the extent in the petitioners' possession viz., the extent of 10 cents which will have to be handed over to ensure that the respondent and the person claiming under him have the advantage of 28 cents. This Court's clarification and direction in RSA No.621/1989 brooks no exercise other than this exercise, and the Commissioner's Report and the acceptance thereof by the executing Court must fail because this direction is not complied with. If this direction could not be complied with for any reason and report is filed by the Court Commissioner relying
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NC: 2023:KHC:30626 WP No. 8637 of 2017 upon FMB, the petitioners should have been given an opportunity to have their say on the exercise undertaken and the Report filed.
10. Sri G. Krishna Murthy submits that it is not disputed that Mulgeni Chit dated 29.11.1973 [Exhibit P.5], under which the respondent claims the first extent of 14 cents has a sketch annexed to it and the sale deed dated 17.05.1974 [Exhibit P.1] does not have a sketch and hence, the property claimed by the respondent must necessarily be ascertained from the description of the boundaries as found in Exhibits P.5 and P.1 along with the sketch annexed to Ex.P.5. As regards this, it would suffice for this Court to observe that this Court in RSA No.681/1989 has not excluded the consideration of the boundaries or the sketch, and the Commissioner to be appointed after this Court's order will also have to consider the same in filling the report.
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11. This Court, for the reasons aforesaid, must favour the petition and quash the executing Court's impugned order dated 16.02.2017 accepting the Commissioner's Report holding that the petitioners must deliver possession of the property in terms of such report. The executing Court must be directed to appoint a Court Commissioner afresh observing that such Commissioner must firstly, identify the possession of the respective extents possessed by the petitioners and the respondent in Sy.No.4/3A1 of Kankanady village, Mangaluru Taluk, Dakshina Kannada as described in the respective documents; secondly, compare the same in terms of Exhibits P.5 and P.1 [including the description of the boundaries and the sketch annexed]; thirdly, demarcate that portion which the petitioners will have to be yielded if there is occasion to ensure that the respondent has possession of 28 cents in this Survey number. If there is any difficulty in executing the Commissioner's warrant, the
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NC: 2023:KHC:30626 WP No. 8637 of 2017 Commissioner to be appointed must seek necessary clarification from the civil Court.
12. Sri G. Krishna Murthy further submits that the parties must explore the possibilities of a settlement inasmuch as the respondent could be shown to be in possession of more than the extent that he now asserts and that the petitioners will have no access to the other property purchased by them [other than the 10 cents] if some portion of the 10 cents is marked to be given up in favour of the respondent. It would be needless to observe that as the proceedings are restored for fresh appointment of Commissioner and execution of Commissioner's warrant afresh, it would be open to the parties to explore the possibilities of a settlement, and the executing Court may encourage the parties to explore the possibility of a settlement but ensuring early closure of the proceedings. The dispute has
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NC: 2023:KHC:30626 WP No. 8637 of 2017 prevailed over five decades and if the parties do not settle the dispute amicably at the earliest, the executing Court must ensure that the execution proceedings are closed on or before 31.03.2024. Hence, the following:
ORDER [A] The petition is allowed, and the order dated 16.02.2017 is quashed.
[B] The executing Court is called upon to appoint another Commissioner to execute the warrant and file a Report in the light of the observations in this regard. The executing Court shall appoint the court Commissioner after hearing both the petitioners and the respondent.
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NC: 2023:KHC:30626 WP No. 8637 of 2017 [C] The executing Court shall ensure that the execution proceedings are closed on or before 31.03.2024.
Sd/-
JUDGE NV