Karnataka High Court
Alex D' Souza vs Dinoysius Mohan Pinto on 24 March, 1995
Equivalent citations: ILR1995KAR1123, 1995(3)KARLJ286
JUDGMENT Bharuka, J.
1. This Appeal has been preferred by the defendant against the judgment and decree of the lower appellate Court whereby after reversing the judgment and decree of the trial Court, the suit of the plaintiff has been decreed in terms of the prayer made.
2. Plaintiffs filed the present suit for declaration that they are the owners of the suit schedule property and for recovery of possession, According to the schedule to the plaint, the suit property being one of the portions of the twin quarters was situated at S.No. 129 of Athikudige in Koppa Taluka with the boundaries set out therein. The defendant contested the suit by asserting that the suit property is situated in Survey No. 130 of the said village and he is the owner thereof. During the course of the trial to ascertain as to whether the suit property is situated in Survey No. 129 or 130 the trial Court appointed the Assistant Director of Land Records as the Court Commissioner to make a survey and submit a report in this regard. The said officer in his report opined that the suit property is situated in Sy.No. 130, but the plaintiffs objected to the said report on various grounds. Admittedly, despite the said objection, the Commissioner was not examined in the case. The documentary and oral evidence was led on behalf of the contesting parties to putforth their respective case. The trial Court on appreciation of evidence and particularly the report of the Court Commissioner held that the suit property is situated in Survey No. 130 and accordingly dismissed the suit.
3. On appeal by the plaintiffs, the lower appellate Court has appraised the entire evidence in detail in paragraphs 20 to 23 of the impugned judgment. It has been held therein that the report of the Court Commissioner is misleading and incorrect. The lower appellate Court has clearly held that the plaintiffs have proved that the suit schedule property is in Survey No. 129 and they are the owners of the same. It was also found that the defendant is the tenant in the suit schedule property and his tenancy has been determined in accordance with law. Accordingly, after setting aside the judgment and decree of the trial Court, as noticed above, the suit was decreed.
4.'ln the present case, at the time of admission of the Appeal, the following Substantial Question of Law was framed.
"Whether the 1st appellate Court was justified in rejecting the Report of the Commissioner who is in Assistant Director of Land Records that the suit house is situated in Sy.No. 130 solely on the ground that the appellant did not choose to examine him?".
5. Mr. Acharya appearing for the defendant-appellant has strenuously argued that in law it is not necessary that after filing of the report by the Commissioner under Order XXVI Rule 10 of the Code of Civil Procedure the Commissioner should necessarily be examined. According to him, under Rule 10(2) of Order XXVI the report of the Commissioner and the evidence taken by him shall be the evidence in the suit and shall form part of the record. He is right in his submission to this extent. But, nonetheless the report remains only as a piece of evidence. Therefore, it is for the Court of facts to ascertain and find out as to how much reliance can be placed on such evidence, keeping in view of the other evidences in the case. In the present case, as noticed above, the lower appellate Court, on detailed consideration of all the relevant materials on record has found the report of the Commissioner to be unreliable. This is a finding of fact. It is not correct to say that the Court below has rejected the report of the Commissioner solely on the ground that unless the Commissioner himself is examined his report cannot be accepted as a piece of evidence. Mr. Acharya has further submitted that since the report was submitted by an officer of the rank of Assistant Director of Land Records, it required a higher credence at the hands of the lower appellate Court, In my opinion, the status of a person is not always a good ground for attributing credibility. The assessment of evidence has to be made by taking into account the totality of the circumstances and the materials placed on record.
6. For the reasons aforesaid, I find the Appeal devoid of any merit. it is accordingly dismissed. Parties to bear their own costs.