Karnataka High Court
H.V. Nagendrappa vs M.H. Hanumappa And Others on 2 March, 2000
Equivalent citations: 2000 A I H C 3866, (2000) 5 KANT LJ 331 (2001) 1 CURCC 125, (2001) 1 CURCC 125
ORDER
1.Being aggrieved by the order dated 14-12-1992 passed by the Civil Judge, Chitradurga, on LA. 8 in O.S. No. 134 of 1986, the petitioner has preferred the above revision petition.
2. The facts of the case as mentioned by the petitioner are: The plaintiffs are claiming to be the owners of the property in question by virtue of a sale deed dated 15-1-1945. The first defendant petitioner claims the ownership of the said property by virtue of a sale deed dated 20-1-1981 in respect of 3 acres 13 guntas in Sy. No. 10. The land in Sy. No. 10 has undergone changes inasmuch as divisions and sub-divisions have taken place and the property which was bearing Sy. No. 10 has lost its characteristic and the sites have been formed and buildings have come including a cinema theatre and silk reeling industry. These factors are within the knowledge of the plaintiffs. They have not taken steps to assert their possession or claim by virtue of the alleged sale deed. However, one of the plaintiffs had filed a suit in O.S. No. 201 of 1983 and had stated that the land measuring 3 acres 13 guntas belonging to the petitioner, is different from the one purchased by him under a sale deed dated 15-1-1945. Similar objections were also raised before the Licensing Authority and the same was rejected. The suit in O.S. No. 201 of 1983 against Sri C.G. Mallappa was disposed of in the light of the report submitted by the Commissioner. The Commissioner had stated that the land in Sy. No. 10/1B measuring 3 acres 13 guntas does not form part of the land purchased by the plaintiff in the said suit. Thus, the present suit filed by the plaintiffs is hit by the principles of res judicata. Moreover, a cinema theatre has already been constructed in the said land.
3. In the present suit the petitioner has denied the right, title and possession of the plaintiffs and issues have been framed and the plaintiffs are required to prove their title, possession and boundaries. Before starting of the evidence, an application is filed for appointment of a Commissioner.
4. Heard the learned Counsel for the petitioner.
5. The suit which is of the year 1986, out of which the revision petition has arisen, is one for declaration of ownership and for possession, apart from injunction. The suit appears to have been filed in 1986 and the written statement filed somewhere in 1988 and issues were framed in 1989. On 10-12-1991 an application under Order 26, Rule 9 has been filed to appoint a Zonal Survey Officer as the City Commissioner to measure Sy. No. 10 of former Jodi Cholagudda also known as Garehatty, Chitradurga Taluk, with reference to the sale deeds of the plaintiff's predecessors and the defendant and submit a report and the sketch showing the areas purchased and the location of the cinema theatre. The application was contested by the first defendant contending mainly that the property has been divided, sub-divided and again resubdivided in the several bits of lands and the suit property itself is in imaginary things and not in existence from the date of the suit. There can be no correction of the suit land, as the objections appears to be not either serious or substantial. Reliance was placed upon the dictum in , which is to the following effect:
"When a party complains that the opposite party was attempting to disturb the features and applies for appointment of a Commissioner under Order 26, Rule 9 of the Civil Procedure Code, refusal to allow such petition prevents the party from having clinching evidence in proving the said fact. There may be cases where the matter in dispute can be resolved by appointment of a Commissioner for localising the site in dispute with reference to the title deeds and the boundary dispute in regard to the vacant site is one such case".
6. It is contended that before starting evidence, the Commissioner should not be appointed and the plaintiff has to prove the title to the possession. Reliance was placed in Jagannath B. v N.C. Narayanappa and Another, and except the two grounds no other grounds are raised in the memorandum of grounds.
7. The dictum in Puttappa v Ramappa , is as follows:
"In a suit for injunction, the question as to who is in possession of the property, is a matter to be decided by the Court on the basis of the evidence, either oral or documentary, to be adduced by the parties. That function cannot be delegated to a Commissioner who cannot find out as to who is in possession of the property".
The dictum in Jagannath's case, supra, is as follows:
"Where the dispute relates to the accuracy of the sketch of the suit property filed along with the plaint, the need for appointment of Commissioner under Order 26, Rule 9 for measuring and demarcating the suit property with a sketch will arise only after the parties have adduced evidence in regard to matters in issue in the suit in order to better appreciate the evidence. The Court will appoint a Commissioner only when both parties agree to be bound by his report".
8. On the basis of the facts and the contention raised before the Trial Court, the Court has chosen to appoint a Commissioner. A new fact has been brought before this Court stating that in another suit a Commissioner was appointed and he has submitted a report which was filed on 7-2-2000. This is a new point raised before this Court and this Court cannot go into the question as to whether the earlier Commissioner's report obtained in another suit can be made relevant for the purpose of deciding the issues in the present suit out of which the present revision has arisen.
9. The only objection made in the counter filed before the Trial Court was that the plaintiff must prove the case and in the grounds of appeal except relying upon the dictum of this Court, no further grounds are urged against the impugned order. As rightly pointed out in the above said dictum, the appointment of the Commissioner is a discretion to be exercised by the Trial Court and in accordance with the circumstances of each case. In this case the Trial Court has chosen to exercise the powers for appointment of the Commissioner for the reasons given therein which are not shown before me as perverse and not warranted by the facts of the case.
10. In the above circumstances, I do not find any merit in the revision petition. The revision petition is dismissed. As the suit is of the year 1986, I direct the Trial Court to dispose of the case within a period of six months from the date of receipt of the certified copy of the order. I also direct the High Court Office to return the records within a period of two weeks from the date of receipt of the certified copy is made available.