Karnataka High Court
Smt Gangamma vs Sri Seshagiri on 7 March, 2024
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NC: 2024:KHC:10446
RFA No. 968 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 968 OF 2014 (DEC/POS)
BETWEEN:
SMT. GANGAMMA,
W/O LATE VENKATAIAH,
AGED ABOUT 61 YEARS,
SHOWN AS R/AT SITE NO.10,
BBMP NO.46, I MAIN,
KAREKALLU COLONY,
KAMAKSHIPALYA,
BANGALORE-560 079.
AND R/AT NO.391/315/2
(OLD NO.127/131), NOW NEW
NO.143/131), KAMAKSHIPALYA
BANGALORE-560 079.
...APPELLANT
(BY SRI JAYAPRAKASH R V & SRI M MUNIRAJU, ADVOCATES)
Digitally AND:
signed by
NANDINI R
Location: SRI SESHAGIRI,
High Court of SINCE DECEASED BY HIS LRS
Karnataka
1(a). SMT. KASTURI BAI,
W/O LATE SESHAGIRI,
AGED ABOUT 52 YEARS.
1(b). S. SRINIVASAMURTHY,
S/O LATE SESHAGIRI,
AGED ABOUT 36 YEARS.
1(c). S.RAVIKUMAR,
S/O LATE SESHAGIRI,
AGED ABOUT 35 YEARS.
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NC: 2024:KHC:10446
RFA No. 968 of 2014
ALL ARE R/AT DOOR NO.46/1,
4TH CROSS, II MAIN, VIJAYANAGAR,
BANGALORE-560 040.
...RESPONDENTS
(BY SRI KARTHIK, ADVOCATE FOR R1 [a TO c])
THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 21.3.2014 PASSED IN
O.S.NO.1033/2012 ON THE FILE OF THE XII ADDL. CITY CIVIL
AND SESSIONS JUDGE, (CCH NO.27) BANGALORE, DECREEING
THE SUIT FOR DECLARATION, POSSESSION, DAMAGES.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
23.02.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the appellant/defendant No.1 against the judgment and decree dated 21.3.2014 passed in O.S.No.1033/2012 by the learned XII Additional City Civil and Sessions Judge, (CCH No.27) Bangalore, whereby the suit of the plaintiff for declaration, possession and damages came to be decreed.
2. The parties would be referred to as per their ranks before the trial Court for the sake of convenience.
3. Brief facts of the case of the plaintiff are as below:
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NC: 2024:KHC:10446 RFA No. 968 of 2014 The plaintiff (now represented by his LRs) approached the trial Court seeking a declaration of title and consequential relief of possession against the defendants. The plaintiff contended that he is the absolute owner of the house property bearing Site No.10, BBMP No.46,1st Main, Karekallu Colony, Kamakshipalya, Bangalore-560079, measuring East to West 15 feet and North to South 27 feet bounded on: East by: Road; West by: Road; North by: House of Krishnappa and South by:
House of Munimaraiah.
4. It was contended that plaintiff acquired the title over the suit schedule property by virtue of Hakku Patra (Title Deed) issued by the Government of Karnataka under 'Ashraya Scheme' and also through a Possession Certificate No.16250 dated 28-10-1992. Earlier, in the year 1980, the plaintiff acquired the suit schedule property from one Venkatappa son of Thimmaiah under an Agreement of Sale dated 20-10-1980 for a consideration. The said Venkatappa was in unauthorized occupation of -4- NC: 2024:KHC:10446 RFA No. 968 of 2014 the property, who put the plaintiff in possession and enjoyment and since then plaintiff is in actual possession and enjoyment of the same. Later, he constructed a RCC structured residential building after obtaining the necessary licence from the Panchayat. He is paying the taxes, has obtained electricity connection and had availed the loan from ITI Employees Union Co-operative Society, for construction of the house. Further, it is the case of the plaintiff that the husband of defendant No.1, who was none else than the brother of the plaintiff approached him and sought permission to stay in the suit schedule property along with his mother Yellamma and other family members on a monthly rent of Rs.150/-. It was further contended that when the plaintiff wanted the suit schedule property for his personal use and occupation and requested his brother Venkataiah to vacate the suit schedule property and when it was refused, he filed a HRC Petition No.1679/1990 before Small Causes Court, Bangalore, for eviction. The said Court passed an exparte order on 05-1-1991 and in pursuance to the decree, -5- NC: 2024:KHC:10446 RFA No. 968 of 2014 obtained the possession by executing the same. The said Venkataiah and defendant No.2 filed Misc.No.189/1991 to set aside the decree of eviction and the same came to be allowed and as such, HRC No.1679/1990 was reopened. A revision against the said order before this Court in CRP No.886/1993 also came to be dismissed and later, it was confirmed by the Hon'ble Supreme Court in SLP (C) No.7336/1994. An expeditious disposal of the HRC matter was directed by the Apex Court and thereafter, HRC No.1679/1990 came to be dismissed on 13-1-1995 since there was no jural relationship of landlord and tenant between plaintiff and Venkataiah. On a request by the mother of the plaintiff i.e., Yellamma and also the defendants, the plaintiff permitted his mother Yellamma and the defendants to reside in the suit schedule property on humanitarian consideration, but with the condition that it would be only during the life time of Yellamma. The mother of plaintiff and Venkataiah died on 13-10-2011. In the meanwhile, Venkataiah also died and the defendants who are the wife and son of Venkataiah did not vacate the -6- NC: 2024:KHC:10446 RFA No. 968 of 2014 suit schedule property and therefore, he was constrained to file the suit for declaration of his title and for consequential possession of the suit schedule property.
5. The defendants appeared before the trial Court through their counsel and filed their written statement.
6. Defendants contended that during the life time of Venkataiah he was the absolute owner of the property bearing No.391/315/2 (Old No.127/131) New No. 143/131 situated at Kamakshipalya village, Yeshwanthapur Hobli, Bangalore North Taluk, Saneguruvanahalli Group Panchayat and he had entered into a sale agreement with the previous owner in respect of a vacant site and he came in possession on 2-1-1981. He had agreed to purchase the same for a total consideration of Rs.2,700/- and paid a sum of Rs.1,500/- as an advance and agreed to pay the balance by 6-7-1990. After receiving the entire sale consideration, the previous owner Venkatesh son of Venkatappa executed a GPA and affidavit on 6-7-1990 in favour of Venkataiah. Thus, Venkataiah along with his -7- NC: 2024:KHC:10446 RFA No. 968 of 2014 mother Yellamma and the defendants lived in the said property. The defendants also contended that the plaintiff and Venkataiah lived together with their mother at House No.3, D Street, Gopalpura, Bangalore, and their another brother G.Gangadhar had purchased an adjacent site in the year 1985-86 and constructed a residential premises. During the same period, Venkataiah also constructed a building on the property held by him with his own funds and in the year 1987, he shifted to the said house with his mother Yellamma and the defendants. The plaintiff shifted his family to his father-in-law's house at Vijayanagar. Venkataiah died in the year 1994, living behind the defendants and three daughters as his legal heirs. Thus, the defendants are in possession of the property bearing Old No.143/131, New No.127/131, which was again numbered as 391/315-2 at Kamakshipalya, measuring East to West 20 feet; North to South 12 feet, bounded by road on East and North; property of Kempaiah on the West, property of Ramakka on the South. They contended that the plaintiff is not the owner of the suit schedule -8- NC: 2024:KHC:10446 RFA No. 968 of 2014 property and the suit schedule property which is in possession of the defendants is different from the property over which the plaintiff is claiming ownership.
7. On the basis of the above pleadings, the trial Court framed the following issues:
1. Whether the plaintiff proves his title over the suit property?
2. Whether the plaintiff proves that the defendants are in permission possession of the suit schedule property?
3. Whether the plaintiff proves cause of action?
4. Whether the plaintiff proves that the defendants are liable to pay damages at Rs.5000/- per month from January 2012?
5. Whether the defendants prove that the plaintiff has created documents and they are the owners of the suit schedule property?
6. Whether the suit is in the time?
7. Whether the suit is not maintainable for want of necessary parties?
8. What order or decree?
8. In order to prove his case, plaintiff examined himself as PW1 and Exhibits P1 to P25 were marked in -9- NC: 2024:KHC:10446 RFA No. 968 of 2014 evidence. Defendant No.1 examined herself as DW1 and Exhibits D1 to D4 were marked in evidence.
9. After hearing both the sides, the trial Court answered issue Nos. 1 to 3 and 6 in the affirmative, issue No.4 partly in the affirmative, issue Nos. 5 and 7 in the negative and by the impugned judgment, decreed the suit of the plaintiff.
10. Being aggrieved by the impugned judgment and decree, defendant No.1 has presented this appeal .
11. On issuance of notice, respondent/plaintiff appeared before this Court through his counsel. During the pendency of this appeal, respondent/plaintiff died and his LRs were brought on record.
12. On admitting the appeal, the trial Court records have been secured and heard the arguments by both the sides.
13. During the pendency of this Appeal, an interim order was passed by this Court staying the impugned
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NC: 2024:KHC:10446 RFA No. 968 of 2014 judgment subject to condition that the appellant herein has to deposit a sum of Rs.1,000/- per month.
14. The learned counsel for the appellant/defendant No.1 would submit that the property in HRC Petition and the present suit are not one and the same. It is submitted that the description in Ex.P1-Hakku Patra, is different than the schedule of the property in the HRC proceedings. Therefore, the plaintiff has to prove that the property in Ex.P1 and property in HRC proceedings are one and the same. It is pointed out that the boundaries and measurement of the property are totally different and therefore, the suit should have been dismissed by the trial Court. He also points out that PW1 admits in the cross- examination that he is an employee of the Central Government and therefore, he obtaining the house under the Ashraya scheme is very much doubtful. It is further submitted that the trial Court comes to the conclusion that the properties are different and even then it decreed the suit. The learned counsel for the appellant/defendant No.1
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NC: 2024:KHC:10446 RFA No. 968 of 2014 has taken this Court through the entire evidence and demonstrated how the description of the suit schedule property is in variance.
15. Per contra, learned counsel appearing for the respondent/plaintiff (now represented by LRs) contended that the plaintiff has produced Hakku Patra as a title document which is not rebutted by any cogent evidence. It is submitted that the defendants have not produced any document to show their ownership, but on the other hand, the plaintiff, has produced voluminous material to show that the plaintiff after obtaining the Hakku Patra, constructed a building on the suit schedule property with the approval of the Building plan by the concerned authority and has been continuously paying the tax to the Municipal Authority. He had availed the loan by mortgaging the suit schedule property to the Co-operative Society and the encumbrance Certificates also depict the same. It is submitted that the defendants have not rebutted the evidence of the plaintiff and except the
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NC: 2024:KHC:10446 RFA No. 968 of 2014 General Power of Attorney, they have not produced any document in support of their case. Therefore, he supports the view taken by the trial Court and sought for dismissal of the appeal.
16. During the pendency of this appeal, the respondents have filed an application in IA No.1/2019 under Order 41 Rule 27 of CPC, seeking to produce certain additional documents (written statement filed by the defendant in HRC Proceedings) contending that the said document is essential for the just adjudication of the matter. So also, the respondents have filed an application under Order 26 Rule 9 of CPC seeking to appoint the Court Commissioner to conduct local inspection, scrutinize revenue records (old and new) and consequently, to furnish report of the suit property which is situated at Site No.10, BBMP No.46, 1st Main, Karekallu Colony, Kamakshipalya, Bangalore-79.
17. These applications filed by the respondents are opposed by appellant/defendant No.1 contending that the
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NC: 2024:KHC:10446 RFA No. 968 of 2014 additional documents sought to be produced are not relevant at this juncture and the contentions taken up by the defendants in HRC proceeding is already part of the records in the form of a finding given by the HRC Court. It is contended that the appointment of the Court Commissioner is not at all required since the burden of proving that the suit schedule property and the property which was the subject matter of the HRC proceeding was on the plaintiff. When the plaintiff is seeking declaration of title over the suit schedule property, it is his duty to establish that the documents produced by him pertain to the property which is occupied by the defendants and those documents alone will determine the title of the property in the absence of the report of the Court Commissioner.
18. After hearing the arguments by learned counsels for both the sides, the points that arise for consideration are as below:
(i) Whether the plaintiff/respondents proved that the property occupied by the
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NC: 2024:KHC:10446 RFA No. 968 of 2014 defendants in pursuance to the order in HRC proceedings is the same property which was granted to him by the Government under Ex.P1 and as such, he has proved title to the suit schedule property?
(ii) Whether the plaintiff/respondents are entitled for the relief sought in the plaint?
(iii) Whether the appointment of the Court Commissioner is necessary for ascertaining suit schedule property?
(iv) Whether the application for additional evidence filed under order 41 Rule 27 of CPC in IA No.1/2019 by respondents deserves to be allowed?
19. It is relevant to note that the suit of the plaintiff who has approached the Court seeking declaration that the suit schedule property mentioned in the plaint is the property which was the subject matter of HRC proceedings earlier and the petition seeking eviction of defendants from the suit schedule property came to be dismissed for want of the proof of the relationship of the landlord and
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NC: 2024:KHC:10446 RFA No. 968 of 2014 the tenant. Therefore, when the plaintiff contend that the property which is the subject matter of the HRC proceedings and the present suit schedule property are one and the same, the burden is on him to prove the same. All along, it is his contention that the property was in his possession and he constructed a structure in the same. It is the specific contention in the plaint that, the suit schedule property was the subject matter of HRC proceedings which was decreed earlier and later after the contest, the petition came to be dismissed. Therefore, it is essential for the plaintiff to establish that the plaintiff is the holder of the title in respect of the suit schedule property, which was the subject matter of the HRC proceedings and later, the possession of the plaintiff as well as title is regularized by way of issuance of Hakku patra by the Government as per Ex.P1. This contention of the plaintiff being clear and categorical in plaint, the burden of proving the same is also on him.
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NC: 2024:KHC:10446 RFA No. 968 of 2014 Re.Point No.1 and 2:
20. It is the case of the plaintiff that the suit schedule property is, "site No.10 BBMP No.46, situated at 1st Main, Karekalu Colony, Kamakshipalya, Bangalore-560 079, measuring East-West 15 ft., North-South 27 ft., and it is bounded by road on East and West, house of Krishnappa on North and house of Munimaraiah on South". The plaint avers that the above suit schedule property was acquired by the plaintiff from one Venkatappa, son of Thimmaiah by virtue of an agreement of sale deed dated 20-10-1980 for a consideration. The said Venkatappa was in unauthorized occupation of the property. Thereafter, the plaintiff being owner had approached the Village Panchayat, Sanegoravanahlli who have considered the property of the plaintiff and assessed the property tax. Later he obtained licence from the Administrator of the village panchayat and constructed a pucca house. Thereafter, plaintiff has obtained electricity connection from BESCOM on 8-1-1987. He had also raised loan from ITI Employees Union Co- operative Credit Society Limited, Bangalore, for the
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NC: 2024:KHC:10446 RFA No. 968 of 2014 purpose of construction of the house. Then the Tahasildar, Bangalore North Taluk, adopted the suit schedule property allotted to plaintiff under 'Ashraya Scheme' by regularizing his unauthorized occupation and issued Hakku Patra which is at Ex.P1. The averments of the plaintiff in paras 7,8, and 9 are clear in this regard. It is the case of the plaintiff that his brother Venkataiah i.e. the husband of defendant No.1 approached the plaintiff along with his mother Yellamma as they have no accommodation and therefore, the plaintiff permitted them to stay in the suit schedule property along with his family members on a monthly rent of Rs.150/-. Therefore, it is contended that the defendants were in permissible possession of the suit schedule property and later, they did not vacate the premises and as such, he was constrained to file the petition in HRC No.1679/1990 which ended in a decree and later it was taken up before this Court and it was also taken up further in SLP No.7336/1994, where the trial Court was directed to afford an opportunity the defendants and ultimately, HRC petition
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NC: 2024:KHC:10446 RFA No. 968 of 2014 ended in dismissal, on the ground that the jural relationship of landlord and tenant was not established.
21. Thus, it is the specific case of the plaintiff that the suit schedule property which is described as above was the subject matter of the HRC proceedings and that the defendants were in permissive possession and enjoyment of the property.
22. Per contra, the defendants contend that the suit schedule property is as not described by the plaintiff in the plaint. They specifically contended that the subject matter of the suit in the HRC petition was totally different one and therefore, the plaintiff is trying to make a case for him by saying that the property in HRC proceedings as well as in the present suit are one and the same. In the guise of allotment letter issued by Tahasildar as per Ex.P1, the plaintiff is trying to evict the defendants from the property which they held as mentioned in the HRC petition. It is the specific case of the defendants that the property which they are in occupation is as described in HRC proceedings,
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NC: 2024:KHC:10446 RFA No. 968 of 2014 but not as mentioned in the plaint. Therefore, the plaintiff is required to establish that the property which was described in the HRC proceedings is the same property, which is now the subject matter of the suit.
23. In this regard, it would be proper to refer to the documents produced by the plaintiff. The plaint describes the suit schedule property as "Site No.10, measuring 15 ft. East to West and 27 ft. North to South, BBMP No.46". The written statement of the defendants contend that the property which they are in occupation is, "property bearing Old No.143/ 131, later it was numbered as 127/131 and now it bears No.391/315/2 and measuring 20 feet East to West and 12 feet North to South." Thus, the measurements are also different. Ex.P2, tax assessment extract for the year 1989- 90 shows that the property claimed by the plaintiff is, "403/A/315/2". The plaintiff has relied on the building permission dated 30-1-1993, by contending that during the brief possession of the suit schedule property which he had obtained on the basis of an exparte decree by the Rent Court, he had constructed the structure. Of course,
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NC: 2024:KHC:10446 RFA No. 968 of 2014 there is no specific pleading that he had constructed the RCC roofed structure during the interregnum when he was in possession as per the exparte decree in the HRC proceedings. It is not in dispute that the defendants were restored with the possession on the basis of restoration of the HRC proceeding as per the direction of this Court, which was confirmed by the Apex Court later. In the building permission at Ex.P3, the property is described as 'Site No.10'. The Nil encumbrance certificates, which are at Exs.P13,15 and 16 also show that they are for 'Site No.10 as per Ex.P1'.
24. Ex.P1, the Hakku patra issued by Tahasildar dated 20-10-1992 describes the suit schedule property as the one measuring "15 feet East to West and 27 feet North to South and is bounded by; Road on the East and West, House of Krishnappa on the North and house of Munimaraiah on the South" which is in consonance with the description of the property mentioned in the plaint.
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NC: 2024:KHC:10446 RFA No. 968 of 2014
25. Ex.P19, which is the order of the Rent Court shows that the property was described as "the one bearing No.391/315/2 and later numbered as 127/131". The boundaries were described as "East by: the road, West by:
Private property, North by: Private property and South by:
Road ". It is evident that the order passed by the Rent Court as per Ex.P19, do not tally with the numbers as well as the boundaries mentioned in the plaint. Thus, it is evident that the property which was described before the Rent Court, of which the plaintiff had claimed the possession is totally different.
26. Ex.D1, which is the General Power of Attorney on the basis of which, the defendants are claiming that they are in possession of the property describe the property as "measuring 20 feet x 12 feet, and is bearing No. 138/131 and later numbered as 128/131 and is bounded by East by: Road, West by: Property of Kempaiah, North by: Road and South by: Property of Ramakka". Evidently, this document tallies with the description as mentioned in Ex.P19 which is the order passed by the Rent Court. The
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NC: 2024:KHC:10446 RFA No. 968 of 2014 affidavit filed in support of Ex.D1 by the Vendor also describes the similar number, measurement and the boundaries.
27. The other documents relied by the plaintiff are the Electricity Bills. The said bills which is at Ex.P11 show that the electricity connection is in the name of the plaintiff and it pertains to the property bearing No.391/315/2. It is pertinent to note that the house numbers were changed on different occasions and when there were changes are not available before the Court. Of Course, it is true that electricity bills at Ex.P11 and the decree of the Rent Court as per Ex.P15, bears similar house number. It is not in dispute that the plaintiff was in possession of the said property for a short period when he was enjoying the decree of the Rent Court, by which, the defendants were evicted for a short duration. Therefore, the electricity bill cannot be of much relevance in the matter.
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NC: 2024:KHC:10446 RFA No. 968 of 2014
28. The above discussions would show that the description of the suit schedule property as mentioned in the various documents aforesaid, has variance. For ready reference, the following table will show the document, measurement, boundaries and the property number for comparison;
Document/ Measurement Boundaries
property number
1. Plaint - 15' x 27' E -Road
Plot No. 10, BBMP, EW NS W-Road
46,1st Main Karekal N- House of
Colony Krishnappa
S- House of
Munimaraiah
2. WS- 20' x 12' E-Road
No. 143/131 EW NS W-property of
127/131 Kempaiah
391/315/2 N-Road
S-property of Ramakka
3. Ex.P2 - Tax - -
Assessment
Extract 1989-90
403A/315/2
4. Ex.P3 - Building Site No.10 E-Road
permission dated W-Road
30.01.1993 N-property of
Site No. 10 Krishnappa
S-property of
Munimaraiah
5. Ex-P13 - Letter Site No.10 As per Ex.P1
along with Nil (E-Road
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NC: 2024:KHC:10446
RFA No. 968 of 2014
Encumbrance W-Road
certificates from N- property of
01.04.1980 to Krishnappa
19.01.1993 S-property of
Site No. 10 Munimaraiah)
6. Ex.P1- Hakkupatra 15' x 27' E-Road
28.10.1992 EW NS W-Road
N- Property Krishnappa
S-property
Munimaraiah
7. Ex.P15 & Ex.P16- 15' x 27' E-Road
Nil Encumbrance W-Road
certificates N- property of
19.01.1993 to Krishnappa
23.06.1997 S-property of
Munimaraiah
8. Ex.P19 - HRC - E-Road
Order W-Private Property
391/315/2 N- Private Property
127/131 S-Road
9. Ex-D1- GPA 20' x 12' E-Road
138/131 W-property of
128/131 Kempaiah
13.07.1990 N- Road
S- property of
Ramakka
10 Affidavit 20' x 12' E-Road
13.07.1990 W-Property of
Kempaiah
N- Road
S- Property of
Ramakka
29. The ocular evidence of the plaintiff in this regard is worth to be examined. PW-1 in his affidavit
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NC: 2024:KHC:10446 RFA No. 968 of 2014 evidence has reiterated the plaint averments. It is his specific case that, in the year 1980, he purchased suit schedule property from one Venkatappa son of Thimmaiah by virtue of an agreement of sale and the said Venkatappa was in unauthorized occupation. Therefore, he was paying tax to the Saneguruvanahalli village panchayat and later, he applied for the allotment of the said property under Ashraya Scheme which was granted as per Ex.P1. It is his specific case that the property was assessed for tax and it was bearing No.315/2. He also admits that the petition before the Rent Court came to be dismissed for want of the jural relationship of the landlord and the tenants.
30. In the cross-examination, it is elicited that he had obtained the construction permission as per Ex.P3. It was obtained in the year 1993. He also admits that it was not produced in the HRC proceedings. He denies that the boundaries in Ex.P3 are not tallying with the boundaries and site Number of the suit schedule. All along, the discrepancy in the boundaries of the documents produced
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NC: 2024:KHC:10446 RFA No. 968 of 2014 by him and the description in the suit schedule are put across to him and he denies that there is any variance between the boundaries and the measurement of the property. Thus, it is evident that the discrepancy of the boundaries and the measurement are specifically put across to him and he maintains that the description as mentioned in the petition before the Rent Court and that of the suit schedule property are one and the same. Evidently this is not so.
31. Defendant No.1 Gangamma is examined as DW1. She admits that it may be true that document has been given by way of Hakku Patra, to some of the sites situated in survey No.75. The defendants are relying on Ex.D1 the General Power of attorney executed in their favour. Of course, this document dated 13-7-1990 describes the suit schedule property as the one mentioned in HRC proceedings. Nowhere in the cross-examination, DW1 admits that the suit schedule property i.e., site No.10 is the same as mentioned in the rent proceedings and she
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NC: 2024:KHC:10446 RFA No. 968 of 2014 maintains that they are in possession on the basis of an independent acquisition through an unauthorized occupant. She bases her claim on Ex.D1 and the affidavit.
32. Thus, it is evident from the above evidence that the suit schedule property which is claimed by the plaintiff in the plaint is not the same one as claimed by him in HRC No.1679/1990. In other words, the plaintiff is trying to take possession of the house occupied by the defendants by depicting the same as the one allotted to him by the Tahasildar as per Ex.P1.
33. When the above situation is juxtaposed with the contention of the defendants, it is evident that there is total change in the description of the property as mentioned by the plaintiff in HRC proceedings and as in the present suit. One can accept that the property numbers as existed in the Panchayat record have undergone change and therefore, they may not be tallying. But however, the boundaries and the measurement of the property are also not tallying to each
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NC: 2024:KHC:10446 RFA No. 968 of 2014 other. In present proceedings, the house property was bounded by road on East as well as on West and whereas, in the Rent Court proceedings, it is shown as road on East and South. This discrepancy cannot be accepted. Not only that, the measurement as mentioned in Ex.P1 Hakku Patra, is "15 feet x 27 feet", whereas, the property claimed by the defendants is measuring "27 feet x 12 feet". Therefore, there is a total change in the measurement as well as the boundaries. The fact that the property which was bound by the Road on East and West when the suit was filed was the same property which was bound by Road on East and South in HRC proceedings cannot be comprehended.
34. Therefore, this Court comes to the conclusion that the property claimed by the plaintiff in the plaint is not the property which is occupied by the defendants in pursuance to the order passed in Execution Petition arising out of HRC No.1679/1990.
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NC: 2024:KHC:10446 RFA No. 968 of 2014
35. The finding of the trial Court is worth to be seen. In para No.11, the trial Court observes that, as per Hakku patra the site measuring 27 feet x 15 feet bearing site No.10 was the property claimed by the plaintiff. Then it observes that the Supreme Court directed to surrender the possession of the property to the defendants and after adjudication and the defendants got the possession as per order of the Supreme Court. Evidently, it was the property as mentioned in the Rent Court proceedings. The trial Court observes discrepancies in Site Number in para 12 of its judgment. In para 13, it observes that the defendants had never attempted to obtain the Hakku patra, in respect of the site in their possession. The trial Court observes that DW1 does not know anything about the Hakku patra and about the Demand Register Extract. Further, the trial Court observes in para 15 that, the plaintiff had restored the possession of the suit schedule property to the defendants.
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NC: 2024:KHC:10446 RFA No. 968 of 2014
36. It is pertinent to note that, the trial Court comes to the conclusion that respondent/plaintiff has not filed this suit in respect of the property claimed in HRC No.1679/1990, but the property as per Hakku patra at Ex.P1 is granted by the Government to the plaintiff. This conclusion by the trial Court clearly shows that it concluded that the properties are different. Further, in para 16, the trial Court compares the description of the suit schedule property as well as the property as affirmed by the defendants in their written statement, and holds that the property in dispute between the parties is not only unidentifiable and also different from the documents. This conclusion is obviously based on the documents which are appreciated by this Court as stated supra.
37. In para 17 of the impugned judgment, the trial Court concludes that the land in Survey No.75 within the limits of Sanegoruvanahalli was a Government land and after forming sites, site No.10 was allotted to the plaintiff. Then it says that plaintiff thereby has perfected his title
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NC: 2024:KHC:10446 RFA No. 968 of 2014 and interest over the said site. It is not known on what basis this observation was made by the trial Court. It cannot be said that the plaintiff had perfected his title over the suit schedule property on the basis of Hakku patra, when the property was totally different one. At the end of para 17, the trial Court observes that the defendants have not at all adduced at least probable rebuttal evidence so as to discard the material evidence adduced by the plaintiff relevant to the subject matter and on taking into consideration, inconsistent plea with regard to the subject matter of the suit as pointed out by the defendants, the trial Court finds force in the arguments advanced by the counsel for the plaintiff. Obviously, this is a perverse finding which is contrary to the evidence available on record. The trial Court, after noting all the discrepancies in the boundaries and the measurement as well as the site numbers/property numbers, comes to the conclusion that the argument of the plaintiff has force. Obviously, this conclusion is not sustainable in law. Therefore, point No.1 and 2 are to be answered in the negative.
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NC: 2024:KHC:10446 RFA No. 968 of 2014 Re.Point Nos. 3 and 4:
38. During the course of the arguments, when this Court wanted to know as to how the plaintiff is establishing the fact that the property which was involved in the HRC proceedings and the present suit are one and the same, apart from relying on the documents which are already produced, learned counsel for the respondents has come up with an application under Order 26 Rule 9 of CPC. In this regard, he submitted that the appointment of the Court Commissioner would establish the present situation of the suit schedule property and ascertain its boundaries. He submits that the Court Commissioner may be appointed at any stage of the suit and therefore, if a Court Commissioner is appointed, he can be directed to visit the suit schedule property, scrutinize the documents which are available and then to submit a report. In this regard, he relied on the judgment rendered by the Apex Court in the case of Pratibha Singh and another Vs. Shanti Devi
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NC: 2024:KHC:10446 RFA No. 968 of 2014 Prasad and another,1. In the said judgment, it is held as below:
"17. When the suit as to immovable property has been decreed and the property is not definitely identified, the defect in the court record caused by overlooking of provisions contained in Order 7 Rule 3 and Order 20 Rule 3 of the CPC is capable of being cured. After all a successful plaintiff should not be deprived of the fruits of decree. Resort can be had to Section 152 or Section 47 of the CPC depending on the facts and circumstances of each case -- which of the two provisions would be more appropriate, just and convenient to invoke. Being an inadvertent error, not affecting the merits of the case, it may be corrected under Section 152 of the CPC by the court which passed the decree by supplying the omission. Alternatively, the exact description of decretal property may be ascertained by the executing court as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47 CPC. A decree of a competent court should not, as far as practicable, be allowed to be defeated on account of an accidental slip or omission. In the facts and 1 Civil Appeal Nos.7891-7819/2002 DD 29-11-2022
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NC: 2024:KHC:10446 RFA No. 968 of 2014 circumstances of the present case, we think it would be more appropriate to invoke Section 47 of the CPC".
39. Then he relied on the judgment rendered by the Bombay High Court at Aurangabad, in the case of Dattatraya Kashinath Mandekar and another Vs. Changdeo Dagdu Kule and others2. In the said decision, the decision of the Apex Court in Pratibha Singh's case has been relied upon, which is also on the same point. Then he relied on the judgment rendered by the Apex Court in the case of Government of Goa by its Chief Secretary Vs. Maria Julieta D'Souza and others,3 wherein, regarding burden of proof, in para 8 it was held as below:
"8. On law, the position is as follows. There is a clear distinction between burden of proof and standard of proof. This distinction is well-known to civil as well as criminal practitioners in common law jurisprudence. What Ms. Ruchira sought to point out is that the documents relied on by the plaintiff did not point out the existence of title at all. She is 2 W.P.NO.1849/2018 DD 15-2-2018) 3 Civil Appeal No.722/2016 DD 31.01.2024
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NC: 2024:KHC:10446 RFA No. 968 of 2014 right to the extent that no single document in itself concludes title in favour of the plaintiff, but this is not an issue of burden of proof. This is a matter relating to the sufficiency of evidence. While inquiring into whether a fact is proved, the sufficiency of evidence is to be seen in the context of standard of proof, which in civil cases is by preponderance of probability".
40. Then he also relied on the judgment of the Co- ordinate Bench of this Court in the case of Sri Shadaksharappa Vs. Kumari Vijayalaxmi and others4, where the law in respect of the Court Commissioner was summarized in para 20.
41. Per contra, the learned counsel for the appellant/defendant No.1 submitted that the primary burden of proving that the suit schedule property and the property which was in occupation of the defendants are one and the same is on the plaintiff. He submits that the plaintiff in order to claim the property which is in occupation of the defendants, is trying to make out a case 4 W.P.No 201274/2022 DD 24-01-2023
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NC: 2024:KHC:10446 RFA No. 968 of 2014 that the said property has been granted to him by the Government. He submits that the plaintiff wants to get a declaration about the property which is not at all granted to him by the Government under Ex.P1. He submits that in HRC proceedings, the plaintiff trying to evict the defendants from property which they are in occupation. After having suffered the dismissal of HRC petition, the plaintiff has come up with the present suit. He submits that by depicting the property which is in possession and enjoyment of the defendants as the property which has been granted to him by the Government, the plaintiff wants to seek a declaration and possession. In fact, the two properties are different and therefore, he submits that the application for appointment of the Court Commissioner to ascertain as to whether the suit schedule property and the property which was the subject matter of the HRC proceedings are one and the same is not maintainable. The primary burden of proving the said fact is on the plaintiff and therefore, the Court Commissioner's report cannot be of any relevance. When it is the case of the
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NC: 2024:KHC:10446 RFA No. 968 of 2014 plaintiff that the defendants were the tenants and when the question of tenancy was rejected by the Rent Court, he has come up with the present suit showing a different boundaries. Therefore, he submits that the Court Commissioner cannot be appointed for the purpose of gathering the evidence and as such, the application is liable to be rejected.
42. In this regard, he relies on the judgment rendered by a Co-ordinate Bench of this Court in the case of Puttappa Vs. Ramappa,5 wherein, it was observed that, "The Court Commissioner cannot be appointed to find out as to who is in possession of the property".
43. It is trite law that the appointment of the Court Commissioner is for the purpose of elucidating the controversial aspects in the lis. A co-ordinate Bench of this Court has stated in Sri Shadaksharappa Vs. Kumari Vijayalaxmi and others referred supra, lays down that the appointment of the Court Commissioner for local 5 AIR 1996 Karnataka 257
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NC: 2024:KHC:10446 RFA No. 968 of 2014 inspection is indeed to secure the evidence and the same is not only permissible but also desirable in certain cases. The various circumstances under which the Court Commissioner may be appointed was culled out in para 20 of its judgment, which are as below:
"20. In the backdrop of the discussions made above, this Court cannot lose sight of the fact that in a large number of suits before the Trial Court, the applications are filed for the appointment of a Commissioner. In other words, this is one of the frequently invoked provisions of the Code. For this reason, this Court deems it desirable to summarise the broad guidelines that can be followed while exercising the power under Order XXVI Rules 9 and 10 of the Code of Civil Procedure.
a) The power of the court to appoint the Commissioner for local inspection or any other purpose provided in Order XXVI of the Code is discretionary. However, the said discretion is guided by not only Order XXVI Rules 9 and 10 of the Code but also the provisions of the Indian Evidence Act dealing with relevancy, expert opinion, and the burden of proof.
b) The discretion to exercise the power under Order XXVI of the Code of Civil Procedure is not
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NC: 2024:KHC:10446 RFA No. 968 of 2014 governed by the form of the suit. The Court can appoint the Commissioner in any kind of suit, provided a report of the Commissioner under Order XXVI of the Code is necessary for elucidating the matter in dispute.
c) The issue framed in the suit, or where the issue is not yet framed, the pleadings which give rise to issue/s and the documents placed on record would be a guide to ascertain the matter in dispute' referred in Order XXVI Rule 9 of the Code.
d) The power to appoint the Commissioner for local inspection or scientific investigation/expert's opinion can be invoked even suo motu by the court, without there being an application by either of the parties, if the Court deems it appropriate to secure the report of the Commissioner. However, the appropriate reasons must precede the order appointing the Commissioner. And such orders are to be passed only after hearing the parties before it.
e) The Commissioner can be appointed either before or after the commencement of the trial. However having due regard to the nature of the controversy, if the report is essential for elucidating the matter in dispute, it is desirable to have the local inspection before the commencement of trial
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NC: 2024:KHC:10446 RFA No. 968 of 2014 as it is likely to reduce the volume of oral evidence in a given case.
f) In addition to the report, having regard to Order XXVI Rule 10 of the Code, the evidence taken by Commissioner reduced in writing can also be taken on record and examined by the court while considering the report.
g) The report of the Commissioner is not conclusive proof of what is stated therein. The report is only a piece of evidence, that the Court has to examine based on the other materials on record.
h) Report of the Commissioner need not be formally marked for being considered as evidence. Once submitted to the court, the report is part of the court record and can be looked into by the court.
i) The court may in its discretion examine the Commissioner on any matter concerning the report.
There is no compulsion to examine the Commissioner. However, if the objection is filed to the report, and the party filing objection seeks to examine the Commissioner then the Commissioner should be examined. In either case, once the Commissioner is examined, the court having due regard to the evidence, may reject or accept the report'in its entirety or in part, provided there are
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NC: 2024:KHC:10446 RFA No. 968 of 2014 materials to justify such a finding on the report. In appropriate cases, the merit of the report can be considered, at the final hearing. While considering the report at the final hearing, if the court finds that the report is erroneous and fresh commission is required, the court may pass appropriate order in this regard.
j) If the court is dissatisfied with the 'proceedings of the Commissioner' as found in Order XXVI Rule 10 (3), it may direct further inquiry depending on the facts. As a matter of caution, it is clarified that examination and order under order XXVI 10 (3) are only to verify if the Commissioner has followed the proper procedure while carrying out his task.
k) The person who has filed an objection to the report has the option of cross-examining the Commissioner to substantiate his objections or even without cross- examination, it is open to establish that the report is inadmissible in evidence."
44. It is pertinent to note that, if the controversy is in respect of the boundaries and there is need for securing certain evidence or to elucidate the contentious issues through an expert, the Court Commissioner may be appointed. In the case on hand, the plaintiff had
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NC: 2024:KHC:10446 RFA No. 968 of 2014 contended certain boundaries in HRC No.1679/1990. The matter had reached upto the Supreme Court and ultimately, it ended in dismissal on the ground that there is no such relationship of landlord and tenant. It is also relevant to note that the present suit is filed contending that the property involved in HRC No.1679/1990 and the property in this suit are one and the same. However, there is a substantive difference in respect of the measurement as well as the boundaries. Not only that, except the oral testimony of PW.1, there is nothing on record to show that the site No.10 as per Ex.P1 is the same property which was the subject matter of HRC No.1679/1990. It may be true that the property records in the municipal records, panchayat records etc., may differ as they have changed from time to time. It is also relevant to note that except the Ex.P1 and the nil encumbrance certificate produced by the plaintiff, there is no such documentary evidence which is available to establish that both the properties are one and the same. Therefore, the appointment of the Court Commissioner and his report will not cure the discrepancy
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NC: 2024:KHC:10446 RFA No. 968 of 2014 which exists in the pleading. The burden of proving the property involved in HRC No.1679/1990 and the present suit are one and the same is squarely upon the plaintiff. For establishing such a contention, a Court Commissioner cannot be appointed at an appellate stage.
45. It is pertinent to note that the appointment of the Court Commissioner at an appellate stage for collection of certain evidence will definitely have the implications under Order 41 Rule 27 of CPC. Such report of the Court Commissioner would definitely come within the purview of Order 41 Rule 27 of CPC. If the report of the Court Commissioner is only in the form of opinion, then it may not come within the scope of Order 41 Rule 27 of CPC. But however, if the report is a piece of evidence which was not otherwise established or explained by the plaintiff in the trial, then definitely, it amounts to an additional evidence under Order 41 Rule 27 of CPC. Under these circumstances, the question remains whether the
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NC: 2024:KHC:10446 RFA No. 968 of 2014 application filed under the provisions of Order 41 Rule 27 of CPC can be permitted by this Court.
46. It is also to be noted that the application under Order 41 Rule 27 of CPC has been filed seeking to produce certain photographs. Evidently, those photographs could have been produced by the plaintiff at the time of the trial. In this regard, the judgment of the Apex Court in the case of Union of India Vs. Ibrahim Uddin and another6 deals with scope of Order 41 Rule 27 of CPC in an elaborate manner.
47. It is to be noted that if the plaintiff had made an effort before the trial Court to appoint a Court Commissioner and to permit such report of the Commissioner to be placed on record, then the provisions of Order 41 Rule 27(1)(a) of CPC could have been pressed into service. It is not the case of the plaintiff that he had filed such an application but it was rejected. 6 (2012) 8 SCC 148
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NC: 2024:KHC:10446 RFA No. 968 of 2014
48. The second ground that would be available under order 41 Rule 27 of CPC would be that the plaintiff was prevented from producing such material before the trial Court for any of the acceptable reason. No such effort was made by the plaintiff to establish that the Hakku Patra, Ex.P1 was in respect of the same property which was the subject matter of the HRC No.1679/1990. Therefore, Order 41 Rule 27(1)(aa) of CPC is also not applicable to the case on hand.
49. Learned counsel for the appellant has placed reliance in the case of Puttappa Vs Ramappa referred supra, wherein, it was held that under Order 26 of CPC, a Commissioner can be appointed to make local investigation to investigate the facts or other materials which are found in the property and to make a report, in a suit for injunction the question as to who is in possession of the property cannot be the task of a Court Commissioner. In the case on hand also, the plaintiff wants to appoint the Court Commissioner in order to prove
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NC: 2024:KHC:10446 RFA No. 968 of 2014 a fact which he was squarely called upon to do. Such exercise having not been done before the trial Court cannot be allowed to be done in the appeal.
50. The third circumstance would be that if the Court feels that such a report of the Commissioner is necessary. It is pertinent to note that the specific contention in the plaint is that the site No.10 which was allotted under Ex.P1 is the same which was subject matter of HRC No.1679/1990. This contention was taken by the plaintiff in the light of the previous litigation also. Therefore, the plaintiff was aware about the facts and circumstances of the case and also his contention of landlord and tenant was rejected in earlier lis. Therefore, when there is a discrepancy in the pleading itself, it would not be possible for this Court to accede to the contention of the plaintiff that for just decision in the matter, the Court has to exercise the discretion in his favour. It is subjective satisfaction of the Court which can be invoked under Sub-clause (b) of Rule 1 of CPC. Under these
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NC: 2024:KHC:10446 RFA No. 968 of 2014 circumstances, even the application under Order 41 Rule 27 of CPC cannot be acceded to. The essential ingredients that are required under Order 41 Rule 27 of CPC are not forthcoming from the facts and circumstances of the present case. Therefore, both these applications deserve to be rejected.
Conclusions:
51. The learned counsel for the appellant has also placed reliance on the judgment in the case of Bachchaj Nahar Vs Nilima Mandal and others 7, wherein, it was held that 'when a new case is made out which is bereft of any pleadings, cannot be entertained in the appellate stage'. It was held that 'in the absence of pleadings and opportunity to defendant No.1 to deny such claim, the High Court could not have granted the relief of injunction by assuming that the plaintiff had an easementary to use the schedule property as a passage'. Based on this decision, the learned counsel for the appellant would 7 (2008) 17 SCC 491
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NC: 2024:KHC:10446 RFA No. 968 of 2014 submit that the plaintiff when had specifically contended in the plaint that the property which is the subject matter of HRC No.1679/1990 was allotted to him by the Government under Ex.P1, the manner in which, the boundaries had changed should have been explained by him. It is one thing to say that the Municipal Authorities had changed the number as per the convenience over a period of time, but that circumstance is not only established but the other circumstance regarding the boundaries is also not properly explained by the plaintiff. I find considerable force in the said submission. When the plaintiff is contending that the suit schedule property which is described in Ex.P1 and various other documents including the permission for construction etc., is claimed to be the same property as mentioned in HRC No.1679/1990, it was incumbent upon the plaintiff to explain how the boundaries and measurements changed. The road on one side itself has been changed and it has come on western side. In fact, there was no such road on the western side of the property when HRC No.1679/1990 was filed. Therefore,
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NC: 2024:KHC:10446 RFA No. 968 of 2014 there is considerable force in the contention of the counsel for the appellant.
52. It is trite law that no load of evidence contrary to the pleadings is permissible. Evidence has to be lead on the basis of the pleadings and such fact need to be proved. When the plaintiff approached the Court contending "the property bearing site No.10, BBMP No.46 situated at 1st Main, Karekallu Colony, Kamakshipalya, Bangalore-560 079, is measuring 15 feet East to West and 27 feet North to South and is bound by; road on East and West, the property of Krishnappa on the North and property of Munimaraiah on the South", he should have explained that the same property was occupied by the defendants under permissive capacity. But the other documents like the order in HRC No.1679/1990 produced at Ex.P19 show that the property is 'bearing No.391/315/2, Old No.127/131 and is bounded by road on the East and South; private property on the West and private property on the North', there is a clear contradiction in the case of the plaintiff. This aspect has not been explained by the plaintiff in a proper way. But on
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NC: 2024:KHC:10446 RFA No. 968 of 2014 the other hand, the contention of the defendants is consistent and the defendants have reiterated their contention that the property measuring 20 feet X 12 feet bound by; road on the East and North; property of Kempaiah on the West and property of Ramakka on the South, is occupied by them and this property is not of the ownership of the plaintiff as claimed by him. Under these circumstances, though the trial Court has observed these discrepancies, it ultimately, in para 17 holds that the plaintiff is entitled for the relief. Thus, the observations of the trial Court are not in accordance with its findings on the other issues.
53. It has failed to notice that the plaintiff has to stand on his own legs in order to prove the title to the property. The weakness of the defendants cannot be a ground to uphold the claim of the plaintiff. The defendants have shown that the property occupied by them is not the property which had been allotted to the plaintiff by the Government under the 'Ashraya Scheme' as per Ex.P1.
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NC: 2024:KHC:10446 RFA No. 968 of 2014 Therefore, when the evidence of the plaintiff is found lacking and such lacking having been observed by the trial Court in various paragraphs of its judgment, should have concluded that the plaintiff is not entitled for the relief claimed. Therefore, the impugned judgment is not sustainable in law.
54. For the above reasons, the applications filed by the respondents/plaintiff under Order 41 Rule 27 of CPC as well as the application filed under Order 26 Rule 9 of CPC are to be rejected and the appeal deserves to be allowed. Hence, the following:
ORDER
(i) IA.No.1/2024 filed under Order 26 Rule 9 of CPC and IA.No.1/2019 filed under Order 41 Rule 27 of CPC are dismissed.
(ii) The appeal is allowed.
(iii) The impugned judgment and decree passed by the trial Court in O.S.No.1033/2012 dated 21-3-2014 is hereby set aside.
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NC: 2024:KHC:10446 RFA No. 968 of 2014
(iv) The suit of the plaintiff stands dismissed with cost.
(v) The amount deposited by the appellant before this Court is ordered to be refunded to them.
Sd/-
JUDGE tsn* List No.: 19 Sl No.: 2