Karnataka High Court
N Shivappa vs Smt. Kamalamma on 16 October, 2012
Author: Mohan Shantanagoudar
Bench: Mohan Shantanagoudar
-1-
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 16th DAY OF OCTOBER 2012
BEFORE
THE HON'BLE MR.JUSTICE MOHAN SHANTANAGOUDAR
R.S.A.NO.488/2011
BETWEEN:
N.Shivappa s/o late Nanjegowda,
Aged about 74 years,
C/o K.B.Nanjundegowda,
Gangadhareshwara Nilaya,
P & T Colony quarters Behind road,
Shankaripura, Hassan.
Presently residing at No.170,
4th main road, 3rd cross, K.S.R.T.C. Layout,
J.P.Nagara 2nd phase, Bangalore-560 078.
...APPELLANT
(By Sri.A.V.Gangadharappa, Adv.)
AND:
1. Smt.Kamalamma
W/o H.M.Mallegowda @ Thammanna,
Aged about 60 years,
2. H.M.Mallegowda @ Thammanna,
Aged about 70 years,
Ex-Municipality Member,
-2-
Both are residing at Shankaripura
Extension, II Stage, Near Taluk office,
Hassan City-573201.
...RESPONDENTS
(By Sri.M.V.Hiremath, Adv.)
This R.S.A. is filed under Section 100 of C.P.C.
against the judgment and decree dated 04.10.2010
passed in R.A.No.57/2004 (old No.46/1998) on the file
of the Addl.District Judge and Presiding Officer, Fast
Track Court, Hassan, dismissing the appeal and
confirming the judgment and decree dated 23.06.1998
passed in O.S.No.35/1995 on the file of the Addl.Civil
Judge (Jr.Dn) & JMFC, II Court, Hassan.
This R.S.A. coming on for admission this day, the
Court delivered the following:
JUDGMENT
This is the plaintiff's second appeal filed against the concurrent findings of facts recorded by the courts below.
2. The case of the plaintiff-appellant is that he is the owner of the property bearing Sy.No.110/3A2 measuring 4½ guntas and that the defendants- respondents are the owners of the property adjoining -3- the suit property. It is alleged that the defendants have encroached certain portion of the suit property and have constructed the house and therefore, the defendants need to be evicted from the encroached portion.
3. The case of the defendants is one of total denial and they contended that they have not encroached the suit property as alleged by the plaintiff.
4. Both the courts below on evaluation of the materials on record have concluded that the plaintiff has failed to prove that the defendants have encroached certain portion of the suit property. During the pendency of the suit, the jurisdictional ADLR was appointed as the Court Commissioner by the trial Court to inspect the spot. However, the ADLR did not visit the spot and submitted the report as directed by the trial court. On the contrary, the ADLR deputed his subordinate officer to perform the duties of the -4- Commissioner entrusted to him. Accordingly, the surveyor/the subordinate officer of the ADLR visited the spot and filed a report before the Court to the effect that the defendants have encroached certain portion of the plaintiff's property. The trial court has rightly refused to look into the Court Commissioner's report, in as much as, the Surveyor was not the Court Commissioner appointed by the Court. It was ADLR who was appointed as a Commissioner. Therefore, it is not open for the ADLR to delegate his powers to his subordinate i.e., the surveyor.
5. Even otherwise, the first lower appellate court as well as the trial court have given independent reasons to conclude as to why the Commissioner's report cannot be accepted. Since both the courts below have found that the evidence adduced by the plaintiff is not consistent and as the plaintiff was not sure about -5- the exact measurement of his property, the courts below have concurrently dismissed the suit. No question of law muchless the substantial question of arises in this appeal. Hence, no interference is called for.
6. Appeal stands dismissed without being admitted.
Sd/-
JUDGE.
Srl.