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2019 DIGILAW 1146 (KAR)

N. Jeevamani v. Alamelu Ammal

2019-06-07

H.B.PRABHAKARA SASTRY

body2019
JUDGMENT : H.B. Prabhakara Sastry, J. 1. The present appellants were the defendants in O.S.No.10336/1984, in the Court of the learned XXVIII Additional City Civil Judge at Mayo Hall Unit, Bangalore, (hereinafter for brevity referred to as the R.F.A.No.1273/2003 "Trial Court"), which suit was filed by the present respondent No.1 in the capacity as a plaintiff for the relief of Declaration, Possession and Permanent Injunction, seeking restraining of the defendants therein from interfering with the plaintiff's alleged peaceful possession and enjoyment of the suit schedule property. The Trial Court by its judgment and decree dated 10-07-2003, decreed the suit of the plaintiff. It is against the said judgment and decree, the present appeal is filed. 2. The suit schedule property is said to be a vacant site bearing No.124 formed in Sy.No.467/1 (old No.209/4), Kempapura Agrahara, 21st Division of Corporation, Bangalore City, now known as 13th Main Road, Vijayanagar, measuring 30 ft.x50 ft. 3. According to the plaintiff, the said site was purchased by her husband on 07-05-1969 from one Sri. L.S. Ramalingaiah and thereafter the khata was made in the name of the plaintiff on 27-03-1984. The property originally was a land bearing Sy.No.467/1 which was divided into various sites and the plan was approved for conversion and site No.124 was sold in favour of the plaintiff's husband. The plaintiff also contended that she had earlier filed a suit in O.S.No.1328/1981 against the said Sri. L.S. Ramalingaiah and Binny Mills Labour Association House Building Co-operative Society Limited (hereinafter for brevity referred to as "Binny Mills House Building Society") for Permanent Injunction which came to be decreed in her favour on 12-09-1983. But in March 1984, she found unR. authorised illegal temporary shed and one tank put up by the defendants in the suit schedule property belonging to her. As such, she instituted the suit for the relief of Permanent Injunction. 4. On receipt of summons, the defendants appeared through their counsel and filed their Written Statement, where they took a contention that the first defendant is the owner of the suit schedule property having purchased the same under a registered Sale Deed dated 07-01-1974 executed by Binny Mills House Building Society which House Building Society earlier had purchased the entire land from one Sri. L.S. Ramalingaiah in June 1969 and had formed 150 sites after obtaining approval from the City Improvement Trust Board in 1970. 5. L.S. Ramalingaiah in June 1969 and had formed 150 sites after obtaining approval from the City Improvement Trust Board in 1970. 5. It was contended by the defendants that since the date of purchase of the suit schedule property by them, they have been in possession of the property. They specifically denied the plaint averments that the plaintiff's husband was the purchaser and owner of the suit schedule property. They also denied the possession of the suit property with the plaintiff. They further contended that the site said to have been purchased by the plaintiff does not relate to the schedule property. 6. Based on the pleadings of the parties, the Trial Court framed the following issues:- "(1) Whether the plaintiff proves that she is the lawful owner of the suit schedule site? (2) Whether the plaintiff proves that she is in lawful possession of the property? (3) Whether the defendants prove they are in lawful possession of the property? (4) What decree or order?" 7. In support of her claim, the plaintiff got examined herself as PW-1 and examined her son as PW-2 and got marked documents from Exhibits P-1 to P-14. On the other hand, the second defendant examined himself as DW-1 and got marked Exhibits D-1 to D-8. 8. After hearing both side, the Trial Court through its judgment and decree dated 23-01-1989 disposed of the matter, by declaring that the plaintiff was the absolute owner of suit schedule property, i.e. site No.124 in Sy.No.467/1 of Kempapura Agrahara having purchased the same from aforesaid Sri. L.S. Ramalingaiah under a registered Sale Deed dated 07-05-1969. 9. Aggrieved by the said judgment, both the plaintiff and the defendants approached this Court in two separate Regular First Appeals, viz. R.F.A.No.89/1990 and R.F.A.No.532/1989. Both the said appeals were disposed of by this Court on 04-01-1999 under a common judgment by which the case was remanded to the Trial Court with a direction to identify the site by appointing a Court Commissioner and with certain other directions for the disposal of the suit. Later on, the suit was taken up for disposal and came to be dismissed on 20-12-2001. Aggrieved by the said dismissal, the plaintiff filed R.F.A.No.491/2002 before this Court. Later on, the suit was taken up for disposal and came to be dismissed on 20-12-2001. Aggrieved by the said dismissal, the plaintiff filed R.F.A.No.491/2002 before this Court. By judgment dated 02-12-2002, this Court allowed the said R.F.A. No.491/2002 and set aside the impugned judgment and decree dated 20-12-2001 passed by the Trial Court and remanded the case for its fresh disposal in accordance with law. 10. On remand, the suit was taken up for trial. A Court Commissioner was appointed to inspect the schedule property. After receiving the Commissioner's report and giving opportunity to the parties to cross-examine the Commissioner and hearing both side, the Trial Court passed the present impugned judgment and decree on 10-07-2003 decreeing the suit filed by the plaintiff and declared the plaintiff as the absolute owner of the suit schedule property and the defendants were directed to deliver the vacant possession of the suit property after removing the illegal structure built by them on the suit schedule property, within three months from the date of the said order. The defendants were also restrained by an order of Permanent Injunction from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff. It is against the said judgment and decree, the defendants in the Court below have preferred the present appeal. 11. The plaintiff in the Trial Court who is the first respondent in this appeal is being represented by her counsel. 12. During the pendency of this appeal, the second respondent came to be impleaded at his application, on considering his contention that he was the subsequent purchaser of the suit schedule property from the plaintiff. As such, he was permitted to come on record as Respondent No.2 in this appeal. 13. Lower Court records were called for and the same are placed before this Court. 14. Heard the arguments of the learned counsel from both side and perused the material placed before this Court including the memorandum of appeal and the impugned judgment. 15. Learned counsel for the appellants in his argument submitted that the plaintiff has not produced the Layout plan said to have been developed by Sri.L.S. Ramalingaiah, the alleged vendor of the site to her. Thus, there is no evidence to show that there was any formation of Layout in accordance with law by said Ramalingaiah. 15. Learned counsel for the appellants in his argument submitted that the plaintiff has not produced the Layout plan said to have been developed by Sri.L.S. Ramalingaiah, the alleged vendor of the site to her. Thus, there is no evidence to show that there was any formation of Layout in accordance with law by said Ramalingaiah. He also submitted that the plaintiff's Sale Deed gives a different schedule than the suit schedule property, whereas, the plaintiff has copied the schedule of site No.124 purchased by the defendants and showing the said schedule, the plaintiff is falsely claiming her alleged ownership against that particular property which does not belong to her. Learned counsel for appellants also submitted that the plaintiff has not at all produced any document to show that site No.124 said to have been purchased by her husband in the year 1969 comprises the boundary which is shown by her in the plaint as suit schedule property. He also submitted that the suit is hopelessly barred by limitation. He further stated that Ex.P6 though is issued by the Binny Mills Housing Society, but, it does not say that site No.124 is the suit schedule property or the said site No.124 bears the boundary and the description as given in the schedule to the plaint. Therefore, it cannot be treated that the mentioning of site No.124 in Ex.P-6 is nothing but the very same site No.124 allotted to and purchased by the defendants. Learned counsel for the appellants more emphatically submitted that, the impugned judgment of the Trial Court mainly relies upon the Court Commissioner's report at Ex.C-1. However, the said report is not in accordance with the directions given by this Court in R.F.A.No.532/1989 c/w. R.F.A.No.89/1990, on 04-01-1999 and also the Court Commissioner has not acted upon the Memo of Instructions filed by the defendants in the Court. Therefore, the entire Court Commissioner's report is on some other point but not on the specific instructions which he was required to perform. Therefore, the entire judgment deserves to be set aside and the matter requires to be remanded for its fresh consideration in accordance with law. 16. Therefore, the entire Court Commissioner's report is on some other point but not on the specific instructions which he was required to perform. Therefore, the entire judgment deserves to be set aside and the matter requires to be remanded for its fresh consideration in accordance with law. 16. Learned counsels for the respondents in their argument submitted that in the judgment and decree passed in O.S.No.1328/1981 by the learned XIII Additional City Civil Judge, Bangalore City, it is clearly held that the plaintiff is the owner of the site No.124 which was more fully described in the schedule to the plaint in the said suit. As such, the title of the plaintiff with respect to the suit property has reached its finality. The said aspect is further confirmed by this Court in its judgment in R.F.A.No.532/1989 c/w. R.F.A.No.89/1990 on 04-01-1999. The learned counsels for respondents also submitted that Ex.P-3 is the khata in the name of the plaintiff which further supports the contention of the plaintiff. It was submitted from the respondents' side that the present appellants as defendants in the Court below have not denied the ownership of the plaintiff with respect to suit schedule property, in the cross examination of PW-1. Further, they submitted that the defendants have not challenged the Court Commissioner's report and the identity of the property was also not disputed in the Cross-examination of CW-1 - the Court Commissioner. As such, the Trial Court has rightly decreed the suit filed by the plaintiff. 17. The case of the plaintiff in the Trial Court was that, she is the owner of the suit schedule property formed in Survey No.467/1 of Kempapura Agrahara having purchased the same from her vendor, Sri. L.S. Ramalingaiah under a registered Sale Deed dated 07-05-1969. The plaintiff has produced a copy of the Sale Deed at Ex.P-1. The schedule shown in the said Sale Deed is as below:- Vacant site bearing No.124 measuring East West: 30 feet and North South: 50 feet and belonging to the land with old Survey No.209/4 and present Survey No.467 of Kempapura Agrahara in 21st Division of Bangalore City Corporation. The site is bounded on the East by Site No.123, West by Site No. 125, North by Site No.107 and South by Road. 18. The site is bounded on the East by Site No.123, West by Site No. 125, North by Site No.107 and South by Road. 18. As observed above, the very same plaintiff in her previous suit for Declaration and Injunction filed against her vendor Sri.L.S. Ramalingaiah and Binny Mills House Building Society in O.S.No.1328/1981 has described the same property as the suit schedule property therein with the following description:- Vacant site bearing No.124, formed in Survey Number .467/1 (old No.209/4), Kempapura Agrahara, 21st Division, Bangalore City, Corporation area measuring East to West 30 feet, North to South 50 feet and bounded on the East by site No.123, West by Site No.125, North by site No.107 and South by Road. Ex.P-4 which is the copy of the decree in the said O.S.No.1328/1981 depicts the said schedule. 19. Comparing these two schedules, the schedule in Ex.P-1 shows Survey Number of the land as 467' whereas the schedule in Ex.P-4 shows it as Survey Number 467/1'. Incidentally in the plaint, the plaintiff has stated the Survey Number of the land as 467/1'. 20. The suit schedule property in O.S.No. 10336/1984 from which suit the present appeal has arisen is as below:- Vacant site bearing No.124, formed in Survey Number 467/1 (old No.209/4) Kempapura Agrahara, 21st Division of Corporation, Bangalore City, now known as 13th Main Road, Vijayanagar, measuring East to West 30 feet, North to South 50 feet, is bounded on the East by site No.123, West by site No.125, North by site No.107 and south by Road. 21. The description of the property which the defendant No.1 claims to have purchased by the plaintiff from the Binny Mills House Building Society under a registered Sale Deed dated 07-01-1974, which is at Ex.D-2 describes it as below:- "Site bearing No.124 I of Kempapura Agrahara, Bangalore North Taluk, (Hosahalli Extension, Bangalore-40) forming part and parcel of several Survey Numbers acquired by the First Party, measuring 30' feet x 50' feet and bounded as hereunder: East -Site No.123 West -Site No.125 North -Site No.107 South - 30' Road The Possession Certificate with respect to the same property of Defendant No.1 which is in support of Ex.D-2 mentions the said Site Number as site No.124 in the First Stage of the Layout. 22. 22. From a comparison of all the above schedules of Site No.124, it goes to show that there is a difference in description of the schedule property by the plaintiff between her alleged original Sale Deed at Ex.P-1 to that of the schedule given in her suit in O.S.No.1238/1981 and to that of the suit schedule property to the present suit in O.S.No.10336/1984, against the impugned order of which suit, the present appeal has arisen. 23. Similarly, the schedule of the property given by defendant No.1 based upon which the Sale Deed produced by her at Ex.D-2 also does not mention about the 13th Main Road and Vijayanagar Extension which are mentioned in the present suit schedule. It is for this reason, this Court in the earlier proceeding in R.F.A.No.532/1989 c/w. R.F.A.No.89/1990 between the same parties had made an observation that the Trial Court was required to appoint a Court Commissioner with a specific instruction to find out from the Layout plan available either with the Binny Mills House Building Society or with the Government Surveyor or with the Revenue Department and locate both the sites said to have been purchased by both the plaintiff and the defendant. It was also observed that, at the same time, the Court Commissioner should identify the plot of the defendant as per Sale Deed and if there are two different and distinct properties, declare the same as being owned by the plaintiff and defendant respectively. 24. Though this Court has observed that the plaintiff's title purchased under the Sale Deed was confirmed and the same cannot be re-opened by the Trial Court, but the identity of the site against which her title is confirmed since was required to be made, this Court had given the specific instruction for the appointment of a Court Commissioner and what the Court Commissioner was required to do. 25. However, from a perusal of the Lower Court records, it goes to show that after remanding of the matter by this Court, the plaintiff in the Trial Court filed a memo on 18-02-2003, bringing to the notice of the Trial Court about the order passed by this Court in R.F.A.No.532/1989 c/w. R.F.A.No.89/1990 and requesting the Court to appoint a Court Commissioner. Accordingly, on the very same day, the Trial Court appointed one Sri. Raghunath as the Court Commissioner. The said Commissioner filed his report in the Court on 10-04-2003. Accordingly, on the very same day, the Trial Court appointed one Sri. Raghunath as the Court Commissioner. The said Commissioner filed his report in the Court on 10-04-2003. However, earlier to that, on 06-02-2003 itself, the defendants in the Trial Court had filed their Memo of Instructions. In the said Memo of Instructions, the defendants are said to have requested the Court to instruct the Court Commissioner to secure the revenue survey map of the Layout area and also to superimpose the said plan on the plan of the Layout formed inter alia in the very same survey number by Binny Mills House Building Society and then to identify the sites. But there is no indication in the order sheet maintained by the Trial Court that any specific instructions were given to the Commissioner by the Court as to what he was required to do. There is also no material including any recording in the order sheet of the Trial Court that the Court Commissioner was given the knowledge about the instructions given by this Court in R.F.A.No.532/1989 c/w. R.F.A.No.89/1990 in its judgment dated 04-01-1999 as to what the Court Commissioner was required to do in his act as a Court Commissioner in the matter. 26. The report of the Court Commissioner which is marked as Ex.C-1 which runs into two and a quarter page would go to show that the Court Commissioner when inspected the spot on 30-03-2003, it was only the learned counsel for the plaintiff and the plaintiff who were present and the defendants and their counsel were absent. As such, he proceeded to conduct inspection upon the instructions given to him by the plaintiff. It is because his report says as below:- " To the instructions of the plaintiff I answer as under:" The instructions which are five in number and the answer of the Court Commissioner to them are reproduced herein below: "1. THE COURT COMMISSIONER SHOULD IDENTIFY THE PROPERTY OF THE DEFENDANT IF ANY, OTHER THAN THE SUIT SCHEDULE PROPERTY OF THE PLAINTIFF: The undersigned on the date of inspection found only one property in existence ie., site No.124 at Kempapura Agrahara, Now 13th Main Road, Vijayanagar, Bangalore, with two small temporary shed construction, over it a name board was installed describing the site number as No.124. 1. 1. THE COMMISSIONER SHOULD GIVE MEASUREMENTS AND SCHEDULE OF THE SUIT SCHEDULE PROPERTY AND DEFENDANT PROPERTY IF ANY, AFTER INSPECTING THE SAME: As stated supra the site/property identified as No.124, measures East West :30' North South :50' And the boundries are: East by : Premises No.123 (Srinivasan Nilayam) West by : Premises No.125 (Kathyani Kripa) North by : Private Property South by : Road. 2. THE COURT COMMISSIONER SHOULD GIVE NOTICE TO BOTH PARTIES AND INFORM THE PARTIES ON WHICH DAY HE WILL VISIT THE SUIT SCHEDULE PROPERTY. The Undersigned issued Notices to parties and their respective Counsels fixing up the date for execution of Commission Warrant on 23/3/2003, as the said date was inconvinent to the Plaintiff's Counsel at his request a date was fixed on 30/3/2003, informing the Counsel for the Defendants, and this Hon'ble Court fixed the said date, dispensing the notice to the Parties. 3. THE COURT COMMISSIONER SHOULD INSPECT THE SUIT SCHEDULE PROPERTY AND THE DEFENDANT PROPERTY IF ANY, IN THE PRESENCE OF BOTH THE PARTIES AND THEIR RESPECTIVE COUNSELS: As answered supra. 4. THE COURT COMMISSIONER SHOULD SUBMIT THE REPORT ABOUT THE INSPECTIONS OF THE PROPERTIES TO THIS HON'BLE COURT: The Undersigned herewith produces the spot mahzar. The work of the Undersigned was completed by 12.45 PM, and waited upto 1 PM, Counsel for the Defendants, nor the Defendants were present." A reading of the above report of the Court Commissioner would go to show that he has not put any effort in finding out the location of the alleged sites of the plaintiff as well that of the defendant based upon the description of the properties given by them in their pleadings. It is also clear that the Commissioner was not at all aware of the instructions given by this Court in R.F.A. No.532/1989 c/w. R.F.A.No.89/1990 on 04-01-1999. On the contrary, he has proceeded in searching for the property of the defendant, if any, presuming that the site he visited was of the plaintiff. The very first instruction of the plaintiff which is extracted above makes it very clear. 27. The Court Commissioner proceeded on a notion that the site he visited with Site No.124, Kempapura Agrahara in 13th Main Road, Vijayanagar, Bengaluru was belonging to the plaintiff, as such, he had to look for another property (if it was there) said to be belonging to defendants. 27. The Court Commissioner proceeded on a notion that the site he visited with Site No.124, Kempapura Agrahara in 13th Main Road, Vijayanagar, Bengaluru was belonging to the plaintiff, as such, he had to look for another property (if it was there) said to be belonging to defendants. Thus, the Court Commissioner has not put any effort in identifying the properties of both parties provided, both properties were in existence differently and also he did not put any effort in finding out whether the property which the plaintiff claims to have purchased vide Sale Deed at Ex.P-1 with the said description as per Ex.P-1 is the very same property which has attained the description as given by the plaintiff in her plaint in O.S.No.10336/1984 and also in ascertaining whether the very same property is also the property which he claims to have visited in his inspection on 30-03-2003. Therefore, the said exercise made by the Court Commissioner in the form of inspection of the spot has not served the purpose. 28. Even though the defendants have filed their statement of objections to the report of the Court Commissioner and had an opportunity to cross-examine the said Commissioner who was examined as CW-1, but, in the cross-examination of the said Court Commissioner, the defendants did not dispute his report on the above said lines. Therefore, even though the said report of the Commissioner can be thus considered as not seriously disputed, however, since the very direction given by this Court in R.F.A. No.532/1989 c/w. R.F.A.No.89/1990 on 04-01-1999 was not communicated in the form of instructions to the Court Commissioner, the very purpose of appointing the Court Commissioner has been defeated. As such, if the Commissioner's report at Ex.C-1 is accepted as it is and proceeded further, the other available material in the form of oral and documentary evidence by the parties including the Commissioner's report do not appear to be sufficient to find out the identity of the disputed property and its location. Therefore, the Commissioner's report being an essential requirement for the proper adjudication of the matter and since it is found that the Commissioner's report at Ex.C-1 is an incomplete and imperfect report, acceptance of the same would defeat the very purpose of litigation and would not meet the ends of justice between the parties. Therefore, the Commissioner's report being an essential requirement for the proper adjudication of the matter and since it is found that the Commissioner's report at Ex.C-1 is an incomplete and imperfect report, acceptance of the same would defeat the very purpose of litigation and would not meet the ends of justice between the parties. As such, I am of the view that without touching the other aspects of the matter including appreciation and analysis of the evidence of the witness, both oral and documentary, suffice it to say that the judgment and decree under appeal deserves to be set aside and the matter requires to be remanded with a direction to the Trial Court to appoint a fresh Court Commissioner and in the light of the observations made above, to give him suitable instructions including the instructions given from this Court in R.F.A.No.532/1989 c/w. R.F.A.No.89/1990 on 04-01-1999 and thereafter proceed further in accordance with law in disposing of the matter. However, the evidence of the prosecution and defendants' witnesses already given by them both oral and documentary remain as it is and the Trial Court to consider them at the time of appreciation of the evidence. Accordingly, I proceed to pass the following: ORDER [i] The appeal is allowed in part; [ii] The judgment and decree dated 10-07-2003 passed by the Court of XXVIII Additional City Civil Judge, Mayo Hall Unit, Bangalore in O.S.No.10336/1984 is hereby set aside; [iii] The matter is remanded to the Trial Court with a direction to it to appoint a Court Commissioner afresh for the purpose of local investigation to identify the sites of the parties on the lines of the observations made above in this judgment and thereafter to dispose of the matter in accordance with law; [iv] Considering the fact that the Original Suit is of the year 1984 and to avoid any further delay in the matter, both side parties herein are directed to appear before the Trial Court, without anticipating any notice or summons from it, on 24-06-2019 at 11:00 a.m. and seek further instructions from the Trial Court in the matter; [v] There is no order as to costs. Registry to transmit a copy of this judgment along with the Lower Court records to the concerned Trial Court immediately.