Karnataka High Court
Shamanna Setty vs B.L. Channegowda on 14 July, 2006
Equivalent citations: ILR2006KAR3588, 2007(5)KARLJ494, 2007 (1) AJHAR (NOC) 206 (KAR.) = 2006 (5) AIR KAR R 351, 2006 (5) AIR KAR R 351
Author: K.L. Manjunath
Bench: K.L. Manjunath
ORDER K.L. Manjunath, J.
1. This is a defendant's appeal. The respondent herein was the plaintiff in O.S. No. 3438/1980 on the file of the City Civil Judge, Bangalore. He filed a suit against the defendant for declaration of his title, possession and for mandatory injunction and also for mesne profits. The suit filed by the plaintiff was dismissed on merits on 8-1-1988. Being aggrieved by the judgment and decree of the Trial Court dated 8-1-1988, the respondent - plaintiff had filed an appeal before this Court in R.F.A. No. 361/1988. The Learned Judge of this Court on 25th September 1998 allowed the appeal in part and set aside the judgment and decree of the Trial Court and remitted the matter to the Trial Court with a direction to appoint a survey Commissioner at the instance of the plaintiff to locate the properties covered under the sale deeds and then to dispose of the matter in accordance with Law. This Court also directed the parties to adduce further evidence if any. With the above directions, the appeal was allowed. Pursuant to the directions of this Court, the Trial Court appointed Asst. Director of Land Records and Survey Settlement as Commissioner on the application filed by the plaintiff. A surveyor one Narayan Incharge Supervisor executed the warrant and he submitted his report. Thereafter one P.L. Venkatesh Murthy was examined as CW-1. According to him he was working as an ADLR. Bangalore Sub-Division till 13-6-2002 and thereafter he has handed over charge to one B.S. Venugopal, who has been examined as CW-2 and P.L. Venkatesh Murthy deposed that he had not executed the warrant. CW-2 Venugopal also deposed the Court that he has not carried the work personally and he is not aware of commission work. The commission work was executed by one Narayana and he has only sent the report submitted by Narayana, who was examined as CW-3, the Trial Court relied upon the evidence of CW-3 and has decreed the suit of the plaintiff. Being aggrieved by the judgment and decree of the Trial Court the present appeal is filed by the defendants.
2. I have heard the learned Counsel for both the parties.
3. Though several grounds are urged by the learned Counsel for the appellant in his appeal memo, at the time or argument he raised an important question in regard to the right of Narayan CW-3 to execute the warrant and accepting of such report of CW-3 by the Court contending that the report submitted by Narayan is without jurisdiction and the Trial Court without considering this fact relying upon the report submitted by CW-3 Narayan has decreed the suit. Therefore the contends that the appeal has to be allowed only on this short ground.
4. Mr. Vijay Kumar, learned Counsel for the respondent made an attempt to convince this Court that even though CW-3 who executed the warrant was not the ADLR of Bangalore Sub-Division, there is no flaw in the report submitted by him as he is an expert in the field, therefore, he requests this Court to dismiss the appeal.
5. Having heard the learned Counsel for the parties, the only point to be considered is whether the Trial Court is justified in accepting the report of CW-3 - Narayana, even though he was not the Commissioner appointed in the case and whether the by the Court under Order 26, Rule 10 of Code of Civil Procedure, has got power to delegate his power to another person. The facts of this case are not disputed. This Court while allowing the RFA has permitted the plaintiff to file an application for appointment of surveyor as a Commissioner. In obedience to the directions of this Court, the plaintiff filed an application for appointment of the Commissioner. Accordingly the Court allowed the application; appointing the ADLR, Bangalore, as Commissioner. But unfortunately the ADLR, Bangalore Sub-Division instead of executing the warrant has directed the Supervisor CW-3 Narayana to execute the same. Accordingly the Supervisor has executed the warrant and at the time of execution of the warrant the appellants have opposed for execution of the warrant by a Supervisor on the ground that he is not the authority to execute a warrant. Still the warrant has been executed by him. The report by CW-3 has been forwarded to the Court by the ADLR who has been examined as CW-2. It is no doubt true that if the ADLR is not well versed with the Commission work, without the permission of the Court he cannot delegate his powers calling upon his subordinate to execute the warrant. The Trial Court without considering this aspect of the matter by accepting the report of CW-3 has decreed the suit. Therefore, this Court is of the opinion that there was inherent defect in execution of warrant by CW-3 as he was not the Commissioner appointed by the Court. Whatever may be the experience or expertise of CW-3 in execution of the work, even if his report is perfect the same could not have been accepted by the Trial Court in view of the admission of CW-2, the Asst. Director of Land Records. According to CW-2 Commission work is executed by CW-3 and therefore this Court is of the opinion that under Order 26, Rule 9 of Code of Civil Procedure, if a person is appointed by the Court as a Commissioner for local inspection, he cannot delegate the said work to any other person as it is the right of the Court alone and if such person has executed the warrant, the report cannot be relied upon by any Court as the execution of the warrant itself is without jurisdiction. Therefore the judgment and decree of the Trial Court is to be set aside.
6. In the result the appeal is allowed. The matter is remitted back to the Trial Court. The Trial Court is directed to appoint the Surveyor attached to the office of the ADLR as a Commissioner to inspect the property and submit his report and thereafter the Trial Court shall proceed with the matter as per the directions issued by this Court in RFA No. 361/1988 and dispose of the entire suit within six months.
7. Office is directed to send the LCR forthwith. Both the parties are directed to appear before the Trial Court on 23-8-2006.