Karnataka High Court
Bottangada M Annaiah vs Smt Muthamma on 4 July, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
R. F. A. NO.2206 OF 2006 (DEC)
BETWEEN:
BOTTANGADA M ANNAIAH
S/O LATE MADAPPA
AGED ABOUT 53 YEARS
THERALU VILLAGE,
BIRUNANU, SRIMANGALA NAD
SOUTH KODAGU - 571 262.
...APPELLANT
(BY SRI. SACHIN B S, ADVOCATE)
AND:
SMT. MUTHAMMA
SINCE DECEASED BY HER LR
BAFLIAMEDIRIRA RAJA
W/O LATE NANJAPPA
MAJOR, THERALU VILLAGE
SRIMANGALA NAD
SOUTH KODAGU - 571 262.
....RESPONDENT
(BY SRI. M.U. POONACHA, ADVOCATE)
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THIS RFA IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGEMENT AND DECREE DATED
15.09.2006 PASSED IN O.S.NO.50/2000 ON THE FILE OF
THE CIVIL JUDGE (SR.DN.) VIRAJPET, PARTLY DECREEING
THE SUIT FOR DECLARATION AND POSSESSION.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant aggrieved by the judgment and decree dated 15.09.2006, passed in O.S.No.50/2000 by the Civil Judge (Sr.Dn.), Virajpet, has filed this appeal.
2. The appellant is the plaintiff and respondent is the defendant No.2 before the Trial Court. Parties are referred to as per their ranking before the Trial Court.
3. Brief facts leading rise to filing of this appeal are as under:
Plaintiff filed a suit for declaration and possession. It is the case of the plaintiff that the 3 plaintiff is the absolute owner of Jamma bane land bearing Sy.No.47/23B measuring 2 acres 20 guntas situated at Theralu Village, Srimangala Nad, Virajpet Taluk. The said land was devolved on the plaintiff by way of inheritance under oral partition between the members of the family of the plaintiff along with other sharer, Madappa. After partition, Madappa took possession of the same and fenced the suit schedule property. Madappa died and after his death, plaintiff started cultivating the suit land. Further, the plaintiff submitted an application before the Tahsildar for demarcation by survey. The Tahsildar after verification and after demarcation, assigned the survey number as 47/23B. The defendants who are the adjacent land owners on the northern side of the suit schedule property, by taking undue advantage of the absence of the plaintiff during 2nd week of December 1999, unlawfully trespassed into the suit 4 schedule property by removing fence laid by the plaintiff on the northern side and by force encroached the whole of the suit schedule property. The plaintiff protested the illegal act of the defendants and lodged a complaint before the police at Srimangala on 16.12.1999. The police issued an endorsement directing the parties to approach the Civil Court for adjudication of their rights. The plaintiff got issued a legal notice to the defendants calling upon them to vacate and handover the schedule property. The defendants gave reply to the said legal notice denying the alleged encroachment of the suit schedule property. Hence the cause of action arose for the plaintiff to file the suit.
The defendants filed written statement admitting the ownership of the plaintiff over the suit schedule property. It is contended that the defendants are the holders of property bearing Sy.No.32/2 of same 5 village. Towards east-western side of Sy.No.32/2, a public tar road passes through north to south and the defendants' land is situated towards the western side of the road and the land of the plaintiff is situated towards east-southern side of the public tar road. It is denied that during the 2nd week of December 1999, the defendants have unlawfully trespassed into the suit schedule property and removed the fencing. It is denied that the defendants have destroyed the entire cultivation. It is admitted that the plaintiff lodged a complaint before the police regarding alleged encroachment. The police after spot inspection found that there is no merit in the complaint lodged by the plaintiff. It is contended that the defendants have replied to the legal notice got issued by the plaintiff. It is contended that there is no cause of action to file the suit and prayed to dismiss the suit.
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The Trial Court, on the basis of pleadings, framed the following issues:
1. Whether plaintiff proves that he is the owner of the suit property situated within the boundaries mentioned in schedule?
2. Whether plaintiff further proves that the defendants illegally occupied the possession of the suit property as alleged?
3. Whether the plaintiff is entitled for declaration as sought for?
4. Whether the plaintiffs are entitled for possession of the suit property?
5. What decree or order?
The plaintiff in support of his case examined himself as PW-1 and got marked documents Ex.P1 to Ex.P6. Defendant No.2 examined himself as DW-1 and got marked documents at Ex.D1 to Ex.D8. Court Commissioner was examined as CW-1 and got marked document at Ex.C1. The Trial Court after recording 7 the evidence and considering the material on record, held that the plaintiff has proved that he is the owner of the suit property situated within the boundaries mentioned in the schedule. Further held that the plaintiff has failed to prove that the defendants have illegally occupied the possession of the suit property as alleged in the plaint and consequently decreed the suit in part declaring that the plaintiff is the owner of the suit schedule property and dismissed the suit in respect of possession of the suit schedule property. The plaintiff aggrieved by the dismissal of suit in respect of possession, has filed this appeal.
4. Heard learned counsel for the plaintiff and learned counsel for the defendant No.2.
5. Learned counsel for the plaintiff submits that the Trial Court has committed an error in dismissing the suit of the plaintiff in respect of possession. He 8 submits that the Court Commissioner was appointed by the Trial Court. The Court Commissioner before inspection has not issued notice to the plaintiff and the plaintiff did not appear at the time of alleged inspection. He submits that the Commissioner has not submitted the report as per the memo of instructions. He submits that the plaintiff has filed an application for production of additional evidence. He submits that during the pendency of instant appeal, plaintiff made a request to the Assistant Director of Land Records (ADLR) to do haddabast survey in respect of the suit schedule property. The ADLR issued a public notice and conducted a survey in respect of the suit schedule property and prepared a survey report. He submits that the survey report prepared by ADLR is contrary to the report submitted by the Court Commissioner. He further submits that as per the survey report, the ADLR has opined that there is an encroachment in 9 respect of the suit schedule property by the defendant. Hence he submits that the additional evidence produced by the plaintiff is necessary to decide the real controversy in issue. Hence he prays to allow the application for production of additional evidence and also the appeal.
6. Per contra, learned counsel for the defendants submits that the Trial Court appointed a Court Commissioner to make a local inspection. As per the instructions, the Court Commissioner visited the spot and surveyed the property of the plaintiff and defendants and submitted a report. He further submits that the plaintiff has not raised objection in regard to non-issuance of notice by the Court Commissioner before spot inspection. He further submits that the plaintiff has not produced any evidence before the Trial Court to establish the alleged encroachment by the defendants. He submits that in 10 between the land of the plaintiff and land of the defendants, there is a public tar road and hence question of encroaching upon the land of the plaintiff does not arise. He submits that the Trial Court was justified in dismissing the suit in respect of possession. Hence on these grounds he prays to dismiss the appeal.
7. Perused the records and considered the submissions made by learned counsel for the parties.
8. The following points arise for my consideration:
(1) Whether the plaintiff proves that the defendants have encroached upon the suit schedule property?
(2) Whether the plaintiff has made out grounds to allow the application for production of additional evidence?11
(3) Whether the plaintiff has made out any grounds to interfere with the impugned judgment and decree?
9. Point No.1: It is an undisputed fact that the plaintiff is the owner of the suit schedule property. The only dispute is that the defendants have encroached upon the suit schedule property. In order to establish the case of the plaintiff, the plaintiff examined himself as PW-1. He has reiterated the plaint averments in the examination-in-chief. Except oral evidence, the plaintiff has not produced any records to establish that the defendants have encroached upon his land. The plaintiff in order to establish the location and identity of the suit schedule property, filed an application to appoint ADLR, Virajpet Taluk as Commissioner. The said application came to be allowed vide order dated 21.08.2002. ADLR was appointed as Court Commissioner to make a local 12 inspection of the properties as per the memo of instructions. The plaintiff and defendants filed memo of instructions. The Court Commissioner has carried out a Commission as per the memo of instructions and submitted a report to the Trial Court. The plaintiff filed objections to the Commissioner's report which is extracted as under:
1) The ADLR being the Commissioner appointed by this Hon'ble Court, the Commissioner has exceeded his power by making an observation in the report to the effect that the 1st defendant namely B.Nanjappa is not in possession of the suit schedule property and it is not known in whose possession the suit schedule properties lies is not known.
2) In the memo of instruction filed by the both the parties the Commissioner has not been instructed to note the name of the encroacher. Thus the 13 Commissioner has played the role of an investigating officer which is not called for.
Thereafter, the Court Commissioner was examined as CW-1 and report of the Court Commissioner was marked as Ex.C1. The Court Commissioner has deposed in his evidence that he has not found out the permanent mark for the purpose of measurement of the property of the plaintiff and defendants. Further he has stated that Sy.No.32/2 is situated towards the northern side of schedule property and further stated that there is a tar road running in the land of Sy.No.32/2 belonging to the defendants. Across the tar road, there is a portion of land of Sy.No.32/2. The plaintiff has not suggested to CW-1 that CW-1 has not issued prior notice of spot inspection to the plaintiff. From the perusal of the evidence of CW-1 and Ex.C1, it is clear that in between the land of plaintiff and land 14 of defendants, there is a public tar road. Hence the question of encroaching upon the land of plaintiff would not arise. Further, during the course of cross- examination of CW-1, the plaintiff has not denied about the existence of tar road in between the land of plaintiff and land of defendants and further not denied about the contents of Ex.C1. The plaintiff has not seriously disputed the contents of Ex.C1. Further the plaintiff except leading oral evidence of himself, has not produced any records to establish that the defendants have encroached upon the suit schedule land. The Trial Court, relying on the report of the Commissioner, recorded a finding that the plaintiff has failed to prove that the defendants are in illegal possession of the schedule property. The finding recorded by the Trial Court is based on the records. In view of the above discussion, I answer point No.1 against the plaintiff.
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10. Point No.2: The plaintiff filed an application for production of additional evidence. In support of the application, the plaintiff has filed an affidavit stating that during the pendency of appeal, plaintiff filed an application to the ADLR for haddbast survey. The ADLR issued a public notice and thereafter surveyed the property and prepared a survey report. As per the survey report, the defendants have encroached upon the suit schedule property and further contended that the Commissioner's report is contrary to the survey report prepared by ADLR. He submits that the proposed documents are necessary for the purpose of deciding the real controversy in between the parties. The said application was filed on 20.04.2017.
11. I have perused the application filed by the plaintiff. The said documents came into existence during the pendency of the instant appeal. The 16 plaintiff with an intention to fill up the lacuna, has produced the additional documents. The Appellate Court can allow an application for production of documents for pronouncement of judgment, but not to enable the party to make good deficiency of the case. A finding of fact however erroneous, cannot be challenged in the appeal. The Rule does not entitle the Appellate Court to let in a fresh evidence on appeal where, even without such evidence, the Appellate Court can render a judgment in a case. In the present case, as observed above, the Commissioner has submitted a report stating that there is a tar road in between the land of the plaintiff and land of the defendants and also stated that the defendants are not in possession of the land of the plaintiff. The material available on record is sufficient to render a judgment in the instant appeal. I would like to place reliance on the judgment of the Co- 17 ordinate Bench of this Court in the case of R.ESHWARAPPA VS. MARUTHI & ORS., reported in HCR 2015 KAR 597, wherein it is held that additional evidence is allowed to be produced for requirement of Court but not to enable the party to make a good deficiency. Further, the Hon'ble Apex Court in the case of N. KAMALAM (DEAD) & ANR. VS. AYYASWAMY & ANR., reported in (2001) 7 SCC 503, held that additional evidence cannot be permitted to be produced to fill up the lacuna or gaps in evidence or to patch up omission in appeal. In the instant case, the plaintiff has failed to establish that inspite of due diligence, such evidence was not within his knowledge or could not, after exercise of due diligence, be produced by him at the time when the decree appealed against was passed. The plaintiff has produced the additional documents with an intention to fill up the lacuna or gaps of evidence. The said 18 application filed by the plaintiff is uncalled for and same is liable to be rejected. More importantly, the claim for production of additional evidence is made almost 11 years after the filing of appeal. I would like to place reliance on the judgment of the Co-ordinate Bench of this Court in the case of SRI. THIMMA NAIKA VS. SRI. PAPANNA @ KEMPEGOWDA & ORS., reported in ILR 2012 (2) KAR 2643, wherein it is held that the claim for production of additional evidence is made almost 12 years after the institution of the suit and 8 years after filing of First Appeal before the Lower Appellate Court and hence rejected the application. In view of the above, the application filed by the plaintiff is liable to be rejected. Accordingly, this point is answered in the negative.
12. Point No.3: The Trial Court after considering the entire material on record was justified in recording a finding that the plaintiff has failed to 19 establish that the defendants are in illegal possession of the suit schedule property. I do not find any grounds to interfere with the impugned judgment and decree passed by the Trial Court. Accordingly, this point is answered in the negative.
13. In view of the above discussion, I proceed to pass the following:
ORDER The appeal is dismissed.
The application for production of evidence is also rejected.
No order as to costs.
SD/-
JUDGE RD