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2017 DIGILAW 31 (KAR)

Ranappa v. Shivshankar

2017-01-03

A.S.BOPANNA

body2017
JUDGMENT : A.S. Bopanna, J. 1. The appellants are before this Court assailing the divergent judgments rendered by the Courts below. The appellants are the defendants in O.S. No. 59/1997. The parties are referred to in the same rank as assigned to them before the trial Court for the purpose of convenience and clarity. 2. The plaintiff filed the suit in O.S. No. 59/1997 against the defendants seeking to recover the damages of Rs. 20,000/- with interest at 18% per annum. The case of the plaintiff was that the father of the plaintiff was the owner of the property bearing Panchayat No. 57 situate at Sannur village. The plaintiff has thereafter succeeded to the said property. According to the plaintiff the house was enclosed by a compound wall on the southern side. The compound wall was of 5 feet height and was of 55 feet in length. The wall was situated about 9 feet away from the inner doors of the house. The plaintiff contended that the Panchayat had issued a notice calling upon the plaintiff to demolish the compound wall, against which the plaintiff had filed a suit in O.S. No. 494/1996. When the suit was pending consideration, the defendants 1 to 3 who are brothers and being no way connected with the property belonging to the plaintiff had indulged in demolishing the compound wall which was in existence, thereby causing loss to the plaintiff. In that regard, the plaintiff is also stated to have lodged a complaint with the jurisdictional police which is registered in Crime No. 73/1996. In that light, the plaintiff had filed the suit seeking a judgment and decree for Rs. 20,000/- as damages. 3. The defendants, on being served with the suit summons, had filed a written statement. The case as put forth by the plaintiff was disputed. It was contended by them that the compound wall as claimed by the plaintiff did not exist and as such the question of defendants having demolished such compound wall did not arise. 20,000/- as damages. 3. The defendants, on being served with the suit summons, had filed a written statement. The case as put forth by the plaintiff was disputed. It was contended by them that the compound wall as claimed by the plaintiff did not exist and as such the question of defendants having demolished such compound wall did not arise. It was their further contention that the plaintiff in fact had sought to encroach upon the public road by putting up the compound wall to their property due to which the defendants and the general public had complained to the Panchayat who had sought to take action but in any event the defendants did not have the occasion to demolish the compound wall as it did not exist. In that view the defendants had sought dismissal of the suit. 4. The trial Court, on taking note of the rival contentions, had framed four issues for its consideration. The plaintiff was called upon to prove that the defendants have illegally damaged the suit wall and that the plaintiff is entitled to claim damages of Rs. 20,000/- from the defendants 1 to 3. In order to discharge the burden cast on the plaintiff, the plaintiff examined himself as PW-1 and also examined the witnesses namely PWs-2 to 4 and relied upon the documents at Exs. P1 to P11. The defendant had also tendered evidence as DW-1. A Court Commissioner was appointed at the instance of the plaintiff and the report submitted by the Court Commissioner was also taken as the documents of the plaintiff. 5. The trial Court, after analyzing the evidence available before it and also taking into consideration the report submitted by the Court Commissioner, had arrived at the conclusion that the case as put forth by the plaintiff was not made out and accordingly the suit was dismissed by the judgment and decree dated 12.08.2003. 6. The plaintiff claiming to be aggrieved by the said judgment and decree had preferred an appeal before the Lower Appellate Court in R.A. No. 484/2004. The Lower Appellate Court on re-appreciation of the evidence has arrived at the conclusion that the plaintiff has proved the case and as such is entitled to the damages as claimed at Rs. 20,000/-. Accordingly the Lower Appellate Court has decreed the suit. The Lower Appellate Court on re-appreciation of the evidence has arrived at the conclusion that the plaintiff has proved the case and as such is entitled to the damages as claimed at Rs. 20,000/-. Accordingly the Lower Appellate Court has decreed the suit. The defendants claiming to be aggrieved by the said judgment passed by the Lower Appellate Court are before this Court in this second appeal. 7. This Court while admitting the appeal on 16.06.2005 has framed the following substantial question of law for consideration: "Whether the finding of the first Appellate Court reversing the judgment and decree passed by the trial Court and decreeing the suit of the plaintiff awarding damages of Rs. 20,000/-, is perverse and arbitrary, being contrary to law and the material on record and the reasons assigned by the trial Court in dismissing the suit?" 8. The substantial question as raised by this Court would indicate that what is required to be addressed by this Court is to come to a conclusion as to whether the judgment passed by the Lower Appellate Court would be sustainable in the background of the view that is taken by the trial Court on appreciation of the evidence which was available before it and in that light whether the Lower Appellate Court was justified in coming to a different conclusion on the very same evidence which had been appreciated by the trial Court. 9. In order to consider this aspect of the matter, a perusal of the appeal papers including the records received from the trial Court would disclose that apart from the evidence tendered by the parties, the issue essentially arises on the report that was submitted by the Court Commissioner and in that light both the Courts have taken note of the same and arrived at different conclusions based on the same report. The notice issued by the Court Commissioner, the sketch prepared and also the report submitted by the Court Commissioner are produced by the plaintiff and relied upon as his documents as at Exs. P8 to P11. If that be the position, on the face of it, the same indicates that the plaintiff had no objection to the report submitted by the Court Commissioner and did not chose to cross-examine the Court Commissioner on the report submitted by him. P8 to P11. If that be the position, on the face of it, the same indicates that the plaintiff had no objection to the report submitted by the Court Commissioner and did not chose to cross-examine the Court Commissioner on the report submitted by him. Therefore, in that light what is necessary to be taken into consideration is as to whether the report of the Court Commissioner alone would be sufficient to prove the case of the plaintiff and to hold that the plaintiff is entitled to damages. The trial Court while taking note of this aspect of the matter has arrived at the conclusion that the report submitted by the Court Commissioner does not establish the case put forth by the plaintiff inasmuch as the report as well as the admissions of the Court Commissioner would disclose that the Court Commissioner has not made a categorical statement with regard to the existence of the wall, the same being demolished and in that light has also not assessed the actual value of the alleged demolished compound wall. On the other hand, the Court Commissioner has merely stated that if the compound wall of the nature is to be constructed, about Rs. 20,000/- would be incurred. In that view of the matter, the trial Court was of the opinion that the report of the Court Commissioner cannot be relied upon to come to the conclusion in the suit and in fact the report would run contrary to the case of the plaintiff. 10. On the other hand, the Lower Appellate Court though has referred to the evidence of the witnesses who had been examined on behalf of the plaintiff and has thereafter taken into consideration the report of the Court Commissioner, the judgment would indicate that the Lower Appellate Court has not analyzed the report of the Court Commissioner to indicate as to the basis on which the Lower Appellate Court has thought it fit to rely upon the Court Commissioner's report and thereafter come to the conclusion that the report supports the case of the plaintiff to quantify the very amount as claimed in the plaint at Rs. 20,000/- as the damages. Therefore, in that background, I have thought it fit to refer to the report submitted by the Court Commissioner which is at Ex. P11. 20,000/- as the damages. Therefore, in that background, I have thought it fit to refer to the report submitted by the Court Commissioner which is at Ex. P11. A perusal of the same would indicate that the Court Commissioner has not specifically indicated with regard to the fact as to whether from the spot verification he was able to conclude that a compound wall existed and whether the wall had been demolished and the demolished material was lying in the place and also with regard to the extent of the damage that was caused and the likely cost that would be incurred. This aspect of the matter would also assume significance since the Court Commissioner had been appointed at the instance of the plaintiff. The plaintiff had also filed the memo of instructions dated 05.02.1998. As per the memo of instructions, among the other aspects relating to the existence of the basement of the demolished wall, the Court Commissioner was also required to note the accumulation of the stones at different place near the demolished wall. As noticed, in the report of the Court Commissioner, there is no reference to the demolished materials lying at the spot and in fact the Court Commissioner, as noted by the trial Court, has stated that it was not visible. 11. If that be the position, the report submitted by the Court Commissioner alone could not have been the basis for the Courts below to come to a conclusion either with regard to the compound wall having existed and the same being demolished. That apart, the fact that the defendants had demolished the compound wall was also to be established. If in that light the issues as framed by the trial Court is taken note and in that light the judgment of the Lower Appellate Court is also taken into consideration, the fact that the plaintiff had constructed a compound wall and in that regard it was done after obtaining approval has also not been established. It is only after the plaintiff establishes that a compound wall had been constructed in accordance with law and such wall had been demolished illegally by the defendants was established, the question of holding the defendants liable to pay the damages would have arisen and it is only in that context the actual amount of damages was required to be quantified. 12. 12. In the instant case, apart from this aspect that the plaintiff had not established the existence of the compound wall and even the report of the Court Commissioner indicates only with regard to the foundation/basement of the wall and further when it is the contention of the plaintiff that the length of the wall is about 55 feet and the height was of 5 feet, the demolition of such a big wall ought to have taken some time even if the defendants had indulged in such act and there is nothing on record to indicate the steps that had taken place in the meanwhile. No doubt, the plaintiff had filed a criminal complaint which relates to certain incident of assault which had taken place between two groups and it is not only against the defendants. The case as had been put forth by the defendants is also that the wall did not exist and when the plaintiffs were attempting to put up such a wall, there was resistance from the general public and the incident had taken place. Therefore, in the background of such defence being put forth and also the nature of the assertion made by the plaintiff, the report of the Court Commissioner based on which the judgment has been granted by the Lower Appellate Court cannot be sustained. In that view, the substantial question of law raised herein is answered in favour of the appellants. 13. Consequently, the judgment dated 22.01.2005 passed in R.A. No. 484/2004 is set aside and the judgment dated 12.08.2003 passed in O.S. No. 59/1997 by which the suit was dismissed is restored. The appeal is accordingly allowed with no order as to costs.