Karnataka High Court
George Fernandez S/O G.J.Fernandez vs R. Shankareppa Sidramappa Chelva And ... on 21 February, 2024
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RSA No. 200232 of 2014
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 200232 OF 2014
(DEC/INJ)
BETWEEN:
1. GEORGE FERNANDEZ
S/O G.J.FERNANDEZ,
AGED ABOUT 59 YEARS,
OCC: CONTRACTOR,
R/O:F1, 3RD FLOOR, SURYA TOWERS,
S.P.ROAD, SECUNDERABAD,
TELANGANA STATE-500003.
2. PRAFUL S/O RAMESH KUMAR PANDE,
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O DEVI COLONY, BIDAR.
3. BABURAO S/O MALLAPPA MADIVAL,
AGE: 68 YEARS, OCC: AGRICULTURE,
Digitally
R/O H.NO.8-9-499, MALLIKARJUN NILAYA,
signed by DEVI COLONY, BIDAR.
SACHIN
Location:
HIGH 4. ANAND S/O MANAYYA KATKAM,
COURT OF
KARNATAKA AGED ABOUT 46 YEARS,
OCC: AGRICULTURE,
R/O STATION ROAD, BIDAR.
...APPELLANTS
(BY SRI.AMEET KUMAR DESHPANDE, SENIOR COUNSEL FOR
SRI.DESHPANDE G.V, ADVOCATE)
AND:
DR.SHANKAREPPA SIDRAMAPPA CHELVA,
SINCE DECEASED BY HIS LRS.
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RSA No. 200232 of 2014
1. SMT. MAHANANDA
W/O LATE DR.SHANKAREPPA CHALVA,
AGE: 68 YEARS, OCC: HOUSEHOLD,
2. AMRESH
S/O LATE DR.SHANKREPPA CHALVA,
AGED ABOUT 53 YEARS, OCC: SERVICE,
3. RAJESH S/O LATE DR.SHANKREPPA CHALVA,
AGED ABOUT 43 YEARS,
OCC: SERVICE,
4. MAHESH
S/O LATE DR.SHANKREPPA CHALVA,
AGED ABOUT 38 YEARS,
OCC: BUSINESS,
ALL ARE R/O OPP.INDIAN OIL PETROL PUMP,
UDGIR ROAD, SHIVANAGAR(NORTH),
BIDAR-585401.
...RESPONDENTS
(BY SRI. KADLOOR SATYANARAYANACHARYA, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF THE CPC,
PRAYING TO ALLOW THIS APPEAL AND SET ASIDE THE
JUDGMENT AND DECREE DATED 29.04.2014 PASSED IN R.A.
NO.30/2011 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE
AND CJM AT BIDAR, SETTING ASIDE THE JUDGMENT AND
DECREE DATED 30.06.2011 PASSED IN O.S.NO.11/1987 ON
THE FILE OF THE PRL.CIVIL JUDGE AT BIDAR.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 19.02.2024, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY THE COURT
DELIVERED THE FOLLOWING:
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RSA No. 200232 of 2014
JUDGMENT
1. This appeal is filed by the defendant, challenging the judgment and decree dated 29.04.2014 passed in R.A.No.30 of 2011 on the file of the Principal Senior Civil Judge & CJM, Bidar, allowing the appeal and setting aside the judgment and decree dated 30.06.2011 passed in O.S.No.11 of 1987 on the file of the Principal Civil Judge at Bidar, dismissing the suit of the plaintiff.
2. For the sake of convenience, parties in this appeal shall be referred to in terms of their status and ranking before the trial Court.
3. The plaint averments are that, originally plaint was presented by one Dr.Shankerappa and during the pendency of the suit, he died leaving behind the legal representatives, who have continued the proceedings before the Trial Court.
4. It is the case of the plaintiff that Dr.Shankerappa and Dr.S.S.Siddareddy had jointly -4- NC: 2024:KHC-K:1703 RSA No. 200232 of 2014 purchased the land bearing Sy.No.66/2 situate at Aliabad, Bidar to an extent of 03 acres 36 guntas as per registered sale-deed dated 13.10.1971. Thereafter, both of them got converted the agricultural land for non-agricultural purpose as per order dated 18.10.1973. The schedule land was bifurcated between the plaintiff and Dr.S.S.Siddareddy and each of them has got an extent of 01 acre 38 guntas, in the total extent of 03 acre 36 guntas. It is further averred in the plaint that, phodi was effected and boundaries were fixed by the competent authorities. It is further stated in the plaint that the plaintiff made an application to Town Planning Authority seeking sanctioning of formation of layout and same was accorded as per order dated 31.05.1985. The plaintiff has constructed house for himself and sold some of the plots to third parties. In the meanwhile, the said Dr.S.S.Siddareddy had formed layout and sold some of the plots in the layout including to the defendant, as per registered sale deed dated 16.10.1980. It is the grievance of the plaintiff that the defendant made effort to encroach -5- NC: 2024:KHC-K:1703 RSA No. 200232 of 2014 the land belonging to the plaintiff and tried to dig borewell in the land belonging to the plaintiff and as such the plaintiff has filed suit in O.S.No.11/1987 seeking relief of injunction and thereafter the plaintiff has filed an application to amend the prayers and the Trial Court, allowed the said application and as such, the plaint was amended and plaintiff has sought for relief of declaration that the plaintiff is the owner of the suit property measuring 05 guntas in Sy.No.66/2b of Aliabad Village, inter alia sought for declaration that sale-deed dated 16.10.1980 between the defendant and Dr.S.S.Siddareddy, is null and void in respect of 05 guntas of schedule property and further the plaintiff sought for mandatory injunction to demolish the temporary shed and other structures put-up by the defendant in the schedule property. Accordingly, the plaintiff has prayed for the reliefs as stated above.
5. After service of summons, defendant entered appearance and has filed detailed statement of objection -6- NC: 2024:KHC-K:1703 RSA No. 200232 of 2014 and admitted that the land was demarcated by fixing boundaries and separate hissa number was given to both the portions. It is the specific contention of the defendant that the defendant has not encroached the land belonging to the plaintiff and further contended that the defendant, pursuant to purchase the schedule land from Dr.S.S.Siddareddy, got permission to put-up construction and compound wall has been embedded and accordingly, sought for dismissal of the suit. The defendant, further contended that there is 30 feet road between the layout of the plaintiff and the layout formed by Dr.S.S.Siddareddy towards north-south direction and therefore, denied the plea made by the plaintiff in the plaint.
6. On the basis of the rival pleadings, the Trial Court has framed issues and additional issues for its consideration.
1) Does plaintiff prove his lawful, exclusive possession over the suit open space, shown in red colour in the plaint sketch ? (Deleted) -7- NC: 2024:KHC-K:1703 RSA No. 200232 of 2014
2) Does he prove interference, as alleged ?
(Deleted)
3) Whether Dr.S.S.Siddareddy is a necessary party to the suit (Para-16 of the Written Statement) ?
4) a) Does defendant show that the suit against him, is false and frivolous ?
b) If so, is he entitled to cost ?
c) What cost ?
5) Reliefs ?
ADDITIONAL ISSUES
1) Whether plaintiffs proves that they are the owners of the portion of land shown in Red colour of the Map annexed to the plaint ?
2) Whether plaintiffs proves that Defendant has encroached an area shown in Red colour of the Map? Whether they further prove that Defendant has constructed temporary shed by encroaching the portion of land as shown in the Red colour ?
3) Whether plaintiff is entitled for possession of portion of land which is encroached by the Defendant as shown in the Red colour of the Map ?
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4) Whether plaintiff is entitled for Declaration that Sale-deed dated 16.10.1980 is null and void and not binding on him in respect of portion of land as shown in the Red Colour ?
5) Whether Plaintiff is entitled for relief of Mandatory injunction as sought for ?
6) What Order or Decree ?
7. In order to establish their case, plaintiffs have examined five witnesses as PW.1 to PW.5 and got marked 18 documents as Exs.P1 to P18. On the other hand, defendant has examined three witnesses as DW.1 to DW.3 and produced nine documents as Exs.D1 to D9.
8. The Trial Court, after considering the material on record, by judgment and decree dated 30.06.2011 dismissed the suit of the plaintiffs. Being aggrieved by the same, the plaintiffs have preferred Regular Appeal in R.A.No.30 of 2011 on the file of First Appellate Court and the said appeal was resisted by the defendant. The First Appellate Court, after re-appreciating the facts on record, by its judgment and decree dated 29.04.2014, allowed the -9- NC: 2024:KHC-K:1703 RSA No. 200232 of 2014 appeal and set aside the judgment and decree passed by the Trial court in O.S.No.11/1987 Being aggrieved same, the defendant has preferred this Regular Second Appeal under Section 100 of Code of Civil Procedure.
9. This Court vide order dated 06.08.2009, formulated the following substantial questions of law :
(i) Whether Dr.Sidda Reddy stated to be the joint purchaser of the entire property including the suit schedule property along with defendant was necessary or proper party or did not come under both ?
(ii) Whether the documents and records evidencing the extent of land sold by the said R.Sidda Reddy ?
(iii) Whether the extent of the property is trimmed to a lesser extent than the share of the plaintiff ?
(iv) Whether Section 44 of the Transfer of Property Act is attracted and whether the said provision of law is violated ?
(v) Whether the suit is barred by limitation ?
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(vi) Whether the first appellate Court's finding regarding the tallying of the sketch and the registered sale deed is just and proper?
10. I have heard Sri Ameetkumar Deshpande, learned Senior counsel appearing on behalf of Sri G.V.Deshpande, learned counsel appearing for the appellant and Sri Kadloor Satyanaraynacharya, learned counsel appearing for the respondent. Perused the material on record.
11. Sri Ameetkumar Deshpande, learned Senior counsel appearing for the appellant contended that the First Appellate Court has committed an error in interfering with the well reasoned judgment and decree passed by the Trial Court and further contended that as the suit was filed during the year 1987 and relief for declaration and possession was sought through amending the plaint during the year 2005 and therefore, it is the submission of the learned Senior counsel that the suit is rightly dismissed by the Trial Court on the question of limitation and as such,
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NC: 2024:KHC-K:1703 RSA No. 200232 of 2014 he argued that Article 58 of the Limitation Act is applicable to the facts of case and same was erroneously interfered with by the First Appellate Court.
12. Nextly, it is contended that as the property was originally purchased by the plaintiff and vendor of defendant jointly and as such Section 44 of the Transfer of Property Act is applicable to the facts on record and accordingly, it is the submission of the learned Senior counsel that at no stretch of imagination the First Appellate Court interfered with the judgment and decree passed by the Trial Court granting declaratory reliefs to the plaintiff and accordingly sought for interference of this Court.
13. It is also submitted by the learned Senior counsel that the defendant has purchased Plot Nos.1 to 7 and open space in front of Plot Nos..4 to 6 in the approved layout of Sy.No.66/2 as per registered sale-deed dated 16.10.1980 for a valuable consideration and the said
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NC: 2024:KHC-K:1703 RSA No. 200232 of 2014 aspect was not properly appreciated by the First Appellate Court.
14. Sri Ameetkumar Deshpande, leaned Senior counsel further contended that the First Appellate Court solely based on the report of the Commissioner, as per Ex.P.9 and Ex.P.10 arrived at a conclusion to decree the suit of the plaintiff and the said report of the surveyor is based on the facts on record only during the pendency of the suit and the survey report has not been proved before the Trial Court and accordingly, sought for interference of this Court.
15. Lastly, it is contended by the learned Senior counsel that the layout in Sy.No.66/2 was formed after partition between plaintiff and Dr.S.S.Siddareddy and the First Appellate Court has committed an error in interfering with the well reasoned judgment and decree passed by the Trial Court and accordingly sought for interference of this Court.
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16. Per contra, Sri Kadloor Satyanaraynacharya, learned counsel representing the plaintiff/respondent refers to the interim order dated 06.07.1987 passed in the suit and argued that the plaintiff has filed I.A.No.1 seeking temporary injunction and the Trial Court, after recording the undertaking given by the defendant, that the defendant shall not take up any further construction in the suit schedule property, disposed of the said application and thereafter, in order to over come the said consent given by the defendant in the present suit, the defendant has filed O.S.No.45/1988 against the plaintiff and the said suit came to be dismissed and as such, it is the submission of the learned counsel appearing for the respondent that the finding recorded by the First Appellate Court is just and proper and does not call for interference in this appeal.
17. Nextly, it is contended by the learned counsel appearing for the respondent that though the suit was filed during 1987 and thereafter applications were filed
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NC: 2024:KHC-K:1703 RSA No. 200232 of 2014 before the competent court in O.S.No.11/1987 and O.S.No.45/1988 seeking appointment of Commissioner and these applications were dismissed by the competent courts and thereafter the plaintiff has approached ADLR independently to survey the land in question pursuant to the plea made by the defendant that he has not encroached the land belonging to plaintiff and therefore, the application was filed before the Trial Court seeking relief of declaration with consequential relief of mandatory injunction, having came to know that the defendant had encroached 05 guntas of land in question after the survey report and accordingly sought for dismissal of the appeal.
18. Learned counsel for the respondent refers to the deposition of PW.3 as well as DW.1 and contended that the plaintiff has proved before the Trial Court that the defendant has encroached 05 guntas of land belonging to the plaintiff and accordingly, sought to justify the impugned judgment and decree passed by the First Appellate Court.
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19. In the light of the arguments advanced by the learned counsel appearing for the parties, I have carefully perused the original records.
20. It is not in dispute that both the original plaintiff-Dr.Shankareappa and Dr.S.S.Siddareddy, purchased the schedule property jointly as per the sale- deed dated 13.10.1971 (Ex.P.2.). Thereafter, the land was converted for use of non-agricultural purpose. Partition and phodi had taken place in the year 1981. It is the case of the defendant that the partition took place during the year 1972-73 itself. Both the parties agreed that the property was divided into equal portion to an extent of 01 acre 38 guntas each and western side was allotted to Dr.S.S.Siddareddy and eastern portion to the plaintiff. The vendor of the defendant - Dr.S.S.Siddareddy, got the layout sanctioned on 26.08.1975 and the layout was modified on 27.11.1976 as per Ex.P.13 and Ex.D.5. The plaintiff got approval of the layout plan as per Ex.D9 on 16.05.1978. He also got modified the layout plan on
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NC: 2024:KHC-K:1703 RSA No. 200232 of 2014 31.05.1985 as per Ex.P1. It is not the case of the plaintiff that the defendant has purchased property from Dr.S.S.Siddareddy, however the grievance is that the defendant has encroached 05 guntas of land belonging to the plaintiff. In order to establish the division in the property, plaintiff has produced Ex.P.6 and Ex.P.7 and phodi has been effected accordingly. Originally, plaintiff's suit is for permanent injunction against the defendant and looking into the order sheet of the Trial Court would indicate that an application seeking appointment of Commissioner to survey of the land belonging to the plaintiff and defendant, came to be rejected. It is also relevant to mention that the plaintiff has filed application in I.A.No.1 seeking relief of temporary injunction and an ex-parte order was passed and after appearance of the defendant, by order dated 06.07.1997, recording the undertaking made by the defendant, and the consent of the parties, direction was issued to the defendant not to take up any construction in the plots until final conclusion of the suit.
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21. It is also to be emphasised that plaintiff has filed application under Order 26 Rule 9 of CPC on 06.11.2009 (I.A.No.15) seeking appointment of Commissioner, which came to be allowed on 21.11.2009, appointing the Engineer of the office of Urban Development Authority, Bidar as Court Commissioner, to survey and measure the suit land and to demarcate the boundaries. Pursuant to the same, Commissioner, Bidar Urban Development Authority, addressed a letter that there is no post of Senior Surveyor in the said authority and as such, the Trial Court opined by order dated 03.08.2010 that as the post of Civil Engineer is not exists in the said office, Commission of warrant was issued to the Assistant Director of Town and Country Planning, Bidar to survey the suit land in question. Subsequently by order dated 08.11.2010, the Court issued intimation to Assistant Director of Land Record, Urban Development Authority, Bidar to be present at the time of surveying of the land in question to effectuate the Commission of Warrant. Thereafter, Commissioner's report was filed as per Ex.P.17
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NC: 2024:KHC-K:1703 RSA No. 200232 of 2014 and mahazar at Ex.P.18. The Trial Court arrived at a conclusion that division of property had taken place before 1981 as per the finding at page 19 of the judgment, however, the approved layout plan of Dr.S.S.Siddareddy was during the year 1975 and thereafter the plaintiff got approved the layout plan during the year 1978. Therefore, the said finding recorded by the Trial Court is based on no evidence and perusal of Ex.P.11 - certified copy of the sale-deed would indicate the discrepancy of measurement of plots. It is to be noted that as per the report of the Commissioner, the borewell of the defendant situate in the land belonging to the plaintiff. It is also relevant to mention here that the defendant has filed O.S.No.45/1988 seeking relief of permanent injunction against the plaintiff in O.S.No.11/1987. The said suit as per Ex.P.14 dismissed by the Trial Court which has reached finality as the defendant in the present case, did not challenge the same. Issue Nos.1 and 2 in O.S.No.45/1988 reads as under :-
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i) Whether the plaintiff proves that there is an alleged 30 feet wide road towards the eastern side of property of plaintiff running north-south between his plot and plot of defendant ?
ii) Whether the plaintiff proves the defendants are interference in the said road ?
22. The Trial Court by judgment and decree dated 15.04.2018 dismissed the suit. Undisputably the plaintiff in the said suit is the resident of Secunderabad (Defendant in O.S.No.11/1987). The Trial Court has arrived at a conclusion that there is no road measuring 30 feet towards eastern side of the property belonging to the plaintiff in the said suit. In the said suit also Issue No.3 is relating to appointment of Commissioner under Order 26 Rule 9 of CPC and the Trial Court dismissed the application on the ground that a similar application is filed in O.S.No.11/1987. In this backdrop of the case, the perusal of the cross-examination of DW.1 indicate that the defendant admits that he has dug the borewell in the
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NC: 2024:KHC-K:1703 RSA No. 200232 of 2014 property and there was no interim order by the competent Court. However, perusal of the cross-examination of DW.1 would indicate that the KEB has not issued licence for providing electricity. It is also forthcoming from the cross- examination of DW.2 that the defendant has closed the borewell during the year 1983 and he has not aware about the plots formed by the defendant. Perusal of the cross- examination of DW.3 would further substantiate that DW.3 is unaware about the construction made by defendant in a particular plot and therefore, the evidence of the witnesses of the defendant cannot corroborate the actual existence of the land of the defendant. If such being the case, the only alternative open for the Trial Court is to accept the Commissioner's report to demarcate the land of the plaintiff and the defendant. Therefore, I am of the opinion that the Trial Court has committed an error in arriving at a conclusion that the Commissioner's report do not convince the case of the plaintiff and on the other hand, the First Appellate Court exhaustively in detail re-appreciated the material on record, which manifests that the defendant
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NC: 2024:KHC-K:1703 RSA No. 200232 of 2014 has encroached the portion of suit property towards eastern side. Commissioner and surveyor has been examined by the plaintiff as PW.4 and PW.5, which requires to be accepted in the absence of the boundaries to the plot bearing Nos.1 to 7 as stated in the description of the schedule property in the sale-deed dated 16.10.1980 (Ex.D1.) where the defendant has purchased the land from its vendor - Dr.Siddanna S/o Dr.S.S.Siddareddy. At this juncture, it is also relevant to mention here that the Trial Court has dismissed the application filed by the plaintiff under Order 26 Rule 9 of CPC for apportionment of Commissioner and later allowed the same by appointing the Commissioner, Urban Development Authority, Bidar as Court Commissioner with the assistance of ADLR, Bidar. The First Appellate Court after re-appreciating the entire material on record particularly taking into consideration the modified layout made during the year 1985 (Ex.P.1), has arrived at the conclusion that the defendant has encroached 05 guntas of land. At this juncture, it is to be noted that the
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NC: 2024:KHC-K:1703 RSA No. 200232 of 2014 defendant has not challenged the modified layout plan of 1985 made in favour of plaintiff before the Competent Authority and same has reached finality.
23. It is pertinent to mention here that the plaintiff has examined the surveyor of Taluk Office as PW.3 and same would aid the finding recorded by the First Appellate Court that the defendant has encroached 05 guntas of land belonging to the plaintiff and therefore the plaintiff has proved the facts on record to establish that the defendant has encroached the portion of the land belonging to the plaintiff.
24. Insofar as the argument advanced by the Senior counsel appearing for the defendant/appellant with regard to the applicability of Section 44 of the Transfer of Property Act to the case on hand, there is no dispute with regard to the fact that the original plaintiff and Dr.S.S.Siddareddy purchased the entire extent of land as per registered sale-deed dated 13.10.1971 (Ex.P2) and thereafter the defendant purchased the portion of the
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NC: 2024:KHC-K:1703 RSA No. 200232 of 2014 property belonging to Dr.S.S.Siddareddy as per registered sale-deed dated 16.10.1980. The plaintiff has filed an application before the Trial Court to amend the plaint to incorporate the relief seeking declaration with recovery of possession and issuance of mandatory injunction and the said application was allowed by the Trial Court and same was not challenged by the defendant, which reached finality and at this juncture the arguments advanced by the learned Senior counsel cannot be accepted that the plaintiff cannot claim relief of possession after three years of filing of the suit.
25. It is should be borne in mind that the Trial Court has allowed the application for appointment of Commissioner in the year 2005 itself and thereafter the plaintiff came to know where exactly the encroachment having been made by the defendant and the said aspect has been ignored by the Trial Court and the same was rightly reappreciated by the First Appellate Court. Taking into consideration the said finding recorded by the First
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NC: 2024:KHC-K:1703 RSA No. 200232 of 2014 Appellate Court, I am of the view that the arguments advanced by the learned Senior counsel appearing for the appellant that Section 58 of the Limitation Act is not applicable to the facts of the case and the First Appellate Court rightly re-appreciated the entire material on record as per paragraph No.34 of the judgment and thereby, rejected the finding recorded by the Trial Court.
26. Insofar as acceptance of the Commissioner report is concerned, this court in the case of Parappa and others v. Bhimappa and another1, while confirming the judgment and decree of the First Appellate Court, held at paragraph Nos.19 to 23, which reads as under:-
"19. A reading of the aforesaid provision makes it clear that the report of the Commissioner once submitted to the Court, shall be evidence in the suit and shall form part of the record. It is not necessary that the said Commissioner's report is to be marked as an exhibit in the case. Similarly, it is not necessary that the said Commissioner is to be examined, to prove the contents of the said report. It is up to the choice of the party to examine the commissioner in 1 ILR 2008 KAR 1840
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NC: 2024:KHC-K:1703 RSA No. 200232 of 2014 respect of the matters referred to him or mentioned in his report. The examination referred to in the aforesaid provision is to be understood in the context of the word examination referred to in Chapter 10 of the Evidence Act. The examination includes examination in chief, cross examination and re- examination. Therefore, if a party to the proceedings has no grievance whatsoever against the report of the Commissioner the question of that party examining the Commissioner would not arise. However, if either of the parties do not accept the correctness of the Commissioner's report, it is open for them to file their written objections opposing the said Commissioner's report. In order to substantiate the said objections and to request the Court not to act on the Commissioner's report, with the permission of the Court, they have been given an opportunity to examine the Commissioner personally in the open Court touching any of the matters referred to by him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation. Normally, when objection is filed to the Commissioner's report contending that the said report is incorrect, to substantiate the said stand it is necessary for the party to examine the Commissioner personally in Court and cross examine him on those aspects in the light of the objections taken. If the party is successful in discrediting the entire report or
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NC: 2024:KHC-K:1703 RSA No. 200232 of 2014 a portion of the report in respect of which he has grievance, the Court in its discretion may reject the report of the Commissioner. However, if that cross examination do not substantiate the objection taken by the party, it is open to the Court to accept and act on the said Commissioner's report. Only when the Commissioner is examined, then the Court has to consider the report along with the oral evidence in order to appreciate the probative value of the said report and on such appreciation, may accept the report or may reject the report. If the report is rejected in total, it is open to the parties to have one more Commissioner appointed for the very same purpose. But for admission of the said Commissioner's report as evidence, it is not necessary that the Commissioner should enter the witness box, or he should produce the said report before the Court and the Court has to mark it as an exhibit in the case. In other words, without marking the Commissioner's report as exhibit, without the Commissioner being examined in the case, the said Commissioner's report can be taken as evidence in the case. Merely because the said piece of evidence is taken on record it does not follow that, all that is stated there is true or proved. Proof and relevancy is different from admissibility of the evidence.
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20. This provision should not be confused with the general law governing the admissibility of an expert's evidence. In a criminal case when the prosecution relies on the expert's evidence to prove the charges against the accused mere production of the said expert's report into Court is not sufficient. It does not become a part of the Court record on mere production. If the prosecution relies on a report of the expert, not only the report is to be produced, the author of the report is also to be examined in the Court on oath and an opportunity should be given to the accused to cross-examine the said expert on the correctness of the report. It is only then the said evidence becomes admissible and not otherwise. In such a criminal prosecution, the Court has not appointed the expert. It is the prosecution, to prove its case, needs report and they have to examine such an expert to prove their case. In a criminal trial, expert is a witness for the prosecution. He is not a Commissioner appointed by the Court in the proceedings.
21. It is also possible that even in civil cases, a party to substantiate his case may rely upon the report of an expert which he has obtained prior to the institution of the suit or even after the institution of the suit. If the party wants to rely on such report and if he produces the said report into Court, the said
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NC: 2024:KHC-K:1703 RSA No. 200232 of 2014 report would not form part of the record and the report of such expert would not be treated as evidence in the suit by mere production of the same. In such circumstances, it is obligatory on the part of the party who relies on the said expert report to examine him, produce the report through him, get it marked and then subject the said expert for cross- examination of the opposite party. It is only after the examination of such expert, his report would become admissible in evidence. Therefore, it is necessary to bear this distinction in mind while dealing with a report of an expert, who is not a Commissioner.
22. In a civil proceedings when an expert is appointed as a Commissioner by the Court at the instance of one of the parties to the proceedings, the Court may issue commission to such experts for the purpose of elucidating any matter in dispute directing him to make such investigation and to report thereon to the Court. It is thereafter when the commissioner/expert submits his report to the Court which appointed him, the report of the Commissioner shall become evidence in the suit and shall form part of the record. Therefore, the report of the commissioner/expert prepared and submitted on the orders of the Courts stands on a totally different footing in the matter of admissibility than the report of an expert prepared at the instance of either of the
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NC: 2024:KHC-K:1703 RSA No. 200232 of 2014 parties of the suit or at the instance of the prosecution in a criminal case. This fundamental difference is to be borne in mind before appreciating the report of the expert/Commissioner.
23. Therefore, the expert becomes a Commissioner only when court appoints him under Order XXVI of the CPC. The expert is only a witness for the prosecution in a criminal case, and a witness for the party who appointed him in civil cases. It is only the report of the Commissioner, who is appointed by the Court, shall be evidence in the suit and shall form part of the record and it is not necessary to examine him and get it marked through him to make it evidence."
27. In that view of the matter, after considering the material on record, the Trial court has erroneously dismissed the suit of the plaintiff and same was rightly set-aside by the First Appellate Court after re-appreciating the martial on record as required under Order XLI Rule 31 of CPC. Accordingly, the substantial questions of law framed above favours the plaintiff. The Hon'ble Supreme Court in the case of C.Doddanarayanreddy (Dead) by
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NC: 2024:KHC-K:1703 RSA No. 200232 of 2014 Legal Representatives and others vs. C.Jayarama Reddy (Dead) by Legal representatives and others2, wherein at paragraph No.26 and 27 held as under :-
"26. In a judgment in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar [(1999) 3 SCC 722], this Court held that from a given set of circumstances if two inferences are possible then the one drawn by the lower appellate court is binding on the High Court. In the said case, the First Appellate Court set aside the judgment of the trial court. It was held that the High Court can interfere if the conclusion drawn by the lower court was erroneous being contrary to mandatory provisions of law applicable or if it is a settled position on the basis of a pronouncement made by the court or based upon inadmissible evidence or arrived at without evidence. This Court held as under: [SCC p.725, para 5] "5. It is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted 2 (2020) 4 SCC 659
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NC: 2024:KHC-K:1703 RSA No. 200232 of 2014 by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the Apex Court, or was based upon in inadmissible evidence or arrived at without evidence."
27. In another judgment in Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179], this Court held as under: [SCC pp.187-88, para 14] "14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial", a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a
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NC: 2024:KHC-K:1703 RSA No. 200232 of 2014 material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis." "
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28. The Hon'ble Supreme Court in the case of Tapas Kumar Samanta vs. Sarbani Sen and another3, wherein paragraph Nos.13 and 14 held as under :-
"13. All the aforesaid evidence was noticed and appreciated by the appellate court to come to a definite finding about the relationship of the plaintiff and the defendant as landlord and tenant and the need for demolishing the existing building for construction of a new building for his personal use. The appellate court also held that the defendant tenant had not paid rent to the plaintiff landlord since he purchased the suit property.
14. Evidence being also on record, relationship which was the only dispute raised by the defendant without disputing the other pleadings about personal necessity of the plaintiff or non-payment of arrears of rent by the defendant having been established, we are of the view that the High Court was not correct in entertaining the second appeal by interfering with the finding of fact arrived at by the appellate court. The finding of the appellate court being based on evidence, the High Court erred in interfering with the judgment and decree passed by the appellate 3 (2015) 12 SCC 523
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NC: 2024:KHC-K:1703 RSA No. 200232 of 2014 court while deciding a second appeal under section 100 CPC."
29. The aforesaid fact was reiterated by the Hon'ble Supreme Court in the case of Balasubramanian and another vs. M.Arockiasamy (dead) through LRs4 at paragraph Nos.14 and 15 held as under:
"14. As against such conclusion, the first appellate court in fact has placed heavy reliance solely on the kist receipts which in fact had led the first appellate court to arrive at the conclusion that the continuous payment of kist would indicate that the plaintiff was also in possession of the property. When such divergent findings on fact were available before the High Court in an appeal under Section 100 of the Civil Procedure Code though reappreciation of the evidence was not permissible, except when it is perverse, but it was certainly open for the High Court to take note of the case pleaded, evidence tendered, as also the findings rendered by the two courts which was at variance with each other and one of the views taken by the courts below was required to be approved.4
Civil Appeal No.2066/2012 DD 02.09.2021
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NC: 2024:KHC-K:1703 RSA No. 200232 of 2014
15. In view of the above, although the counsel for the appellant may be technically correct in his submission that the High Court erred in not clearly answering the question of law framed by it under Section 100, CPC, the High Court was still within its jurisdiction to determine whether the reading of the evidence on record by one of the Courts below was perverse. Question of law for consideration will not arise in abstract but in all cases will emerge from the facts peculiar to that case and there cannot be a strait jacket formula. Therefore, merely because the High Court refers to certain factual aspects in the case to raise and conclude on the question of law, the same does not mean that the factual aspect and evidence has been reappreciated. As already noted, the divergent view of the courts below on the same set of facts was available before the High Court. From the judgment rendered by the trial court, the nature of contentions as noted would disclose that the plaintiff except contending that the suit schedule property was being enjoyed for the past 40 years by paying kist has not in fact referred to the manner in which such right had accrued so as to suggest or indicate unassailable right to be in physical possession. On the other hand, the defendant while denying the right of the plaintiff to claim the relief had traced the manner in which the
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NC: 2024:KHC-K:1703 RSA No. 200232 of 2014 property had devolved and the right which is being claimed by the defendant. It was also contended that the defendant No.1 is residing in the thatched house which is on the property. It is in that light the trial court having taken note of the assertions made by the defendant No.1 and lack of evidence by the plaintiff had arrived at the conclusion that the possession of the plaintiff as claimed cannot be accepted and that the plaintiff has not sought for declaration despite the defendant having disputed the claim of the plaintiff."
30. Applying the aforementioned principles to the facts and circumstances of the case, Trial Court has misconstrued the factual aspects on record and discarded the evidence of the PW.3 and ignored Ex.P.17 and Ex.P.18 and thereby erroneously dismissed the suit of the plaintiff, however, the First Appellate Court, after re-appreciating the material on record set-aside the judgment and decree of the Trial Court. This Court under Section 100 of CPC can interfere, if the conclusion drawn by the First Appellate Court was erroneous and contrary to the mandatory provisions of law, however, in the present factual aspects
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NC: 2024:KHC-K:1703 RSA No. 200232 of 2014 on record, the First Appellate Court rightly interfered with the finding of fact recorded by the Trial Court, which requires to be confirmed by decreeing the suit of the plaintiff and as such, I pass the following order :
i) Appeal is dismissed.
ii) The Judgment and decree dated
29.04.2014 in R.A.No.30/2011 on the file of Principal Senior Civil Judge and CJM, Bidar is hereby confirmed.
iii) The Judgment and decree dated 30.06.2011 in O.S.No.11/1987 on the file of Principal Civil Judge, Bidar is hereby set-aside and suit of the plaintiff is decreed accordingly.
Sd/-
JUDGE SN List No.: 1 Sl No.: 30