Research › Search › Judgment

Karnataka High Court · body

2012 DIGILAW 179 (KAR)

Hottaiah v. Kyasapurada Eranna

2012-03-01

RAM MOHAN REDDY

body2012
Judgment Ram Mohan Reddy, J. 1. This is the plaintiff second appeal. 2. Appellants instituted O.S.35 of 2003 before the Civil Judge (Jr.Dn.) at Challakere, arraigning the respondent as defendant for permanent injunction restraining the defendant from constructing a latrine room and digging a pit measuring 8’ x 8’ feet in the suit schedule property, being, land bearing Sy.No.3 measuring 27 acres 5 guntas. The defendant entered appearance, resisted the suit by filing written statement interalia contending that the suit schedule land measuring 8’ x 8’ feet is a part of the defendant’s site bearing No.1 formed out of the gramatana and measures East to West 23 feet and North to South 20 feet, while the house constructed thereof measures East to West 19 ½ feet and North to South 13 ½ feet and that the pit in the site measures 8’ x 8’ which does not belong to the plaintiffs. The trial Court, in the premise of pleadings of parties, framed 4 issues, where afterwards the 3rd plaintiff was examined as PW-1 and 2 other witnesses as PWs.2 & 3 and marked documents Exs.P1 to P5, while the defendant was examined as DW-1 and another witness as DW2 and marked documents as Exs.D1 to D.6. In the evidence of PW-1, the report of the Commissioner and the sketch appended thereto, were marked as Exs.C1 and C2. The trial Court having regard to the material on record, declined to consider the Commissioner’s report Exs.C1 and C2 on the premise that the Commissioner was not examined and accordingly answered the issues in the negative and dismissed the suit by judgment and decree dated 28-7-2006. 3. The plaintiffs filed R.A.63/06 before the Civil Judge (Sr.Dn.), Challakere, who too concurred with the reasons, findings and conclusions of the trial Court to dismiss the appeal by judgment and decree dated 7-11-2009. 4. This appeal when admitted on 1-10-2010, the following substantial question of law was framed. “Whether the reasoning of the trial Court and the appellant Court in not considering the Commissioner’s report in view of the law declared by this Court in M.R, Chandrasekharaiah Vs. Shivanna, (1981 (1) KLJ 361) about the impact of the report of the Commissioner under Order 26, Rule 10(2), is proper?” 5. Heard the learned Counsel for the parties, perused the pleadings and examined the judgment and decree of the Courts below. Shivanna, (1981 (1) KLJ 361) about the impact of the report of the Commissioner under Order 26, Rule 10(2), is proper?” 5. Heard the learned Counsel for the parties, perused the pleadings and examined the judgment and decree of the Courts below. At paragraph 14 of the judgment and decree of the trial Court, it is held thus: “He has not done so and further more, Commissioner who filed his report and hand sketch map had not been examined by the plaintiff. Therefore, report of the Commissioner is also not at all admissible in evidence, as rightly, argued by the Counsel for the defendant.” 6. Undoubtedly the Commissioner was appointed by the trial Court on an application filed by the plaintiffs to hold a spot inspection and secure measurements of the suit schedule property and identify the location of the pit measuring 8’ x 8’ feet, following which the Commissioner is said to have issued notice to the parties, held an inspection and submitted the report Ex.C1 enclosing the sketch Ex.C2, indicating that the pit measuring 8’ x 8’ feet was within the property belonging to the plaintiffs. That report was not opposed by filing statement of objections as is evident from the order sheet maintained by the trial Court, since on 25-10-2005, though time was sought to file objections to the Commissioner’s report, nevertheless objections were not filed, but on 23-1-2006 the learned Counsel for the defendant orally submitted that the Commissioner’s report may be considered along with the suit on its merits. 7. In M.R. Chandrasekharaiah & Anr. Vs. Shivanna & others, (1981 (1) KLJ 361), a learned single Judge of this Court having regard to Order XXVI, Rule 10(2), CPC providing for treating the report of the Commissioner as evidence in the case, in the absence of objections to the report or pressing into service the right to call the Commissioner as a witness and elicit such answers as they thought would be to their advantage, it cannot be said that the Commissioner’s report was no evidence at all in the case. 8. In Parappa & others Vs. 8. In Parappa & others Vs. Bhimappa & Anr., ILR 2008 Kar 1840: ( 2008 (3) KCCR 1374 ), it is held that merely because the Commissioner’s report was not marked as an exhibit and the Commissioner was not examined in the case, the trial Court was not justified in rejecting the Commissioner’s report on the ground that it was neither marked nor the Commissioner was examined. 9. In the light of Order XXVI, Rule 10(2), CPC and the observations of this Court in the aforesaid two reported opinions, it is needless to state that the trial Court committed a serious error in law in declining to consider the Commissioner’s report though the Commissioner was not examined, sequentially, the judgment and decree of the Lower Appellate Court affirming the said finding of the trial Court, is unsustainable. 10. In the circumstances, the substantial question of law is answered in the negative. In other words, that the Courts below were not justified in declining to consider the Commissioner’s report Ex.C1 and the sketch appended thereto, Ex.C2. In the result, this appeal is allowed. The judgment and decree of the Courts below are set aside. The original suit is restored to file and the trial Court is directed to consider the Commissioner’s report as evidence and proceed to record its findings on all the issues. Parties since represented by learned Counsel, are directed to be present before the trial Court on 9-4-2012, without further notice.