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2023 DIGILAW 176 (KAR)

Sharada Shedthi v. Susheela Shedthi

2023-02-01

SACHIN SHANKAR MAGADUM

body2023
JUDGMENT/ORDER 1. The captioned second appeal is filed by the legal heirs of deceased defendant No.1, questioning the divergent findings of the Courts below wherein plaintiff's suit for injunction, which was dismissed by the Trial Court, has been reversed by the Appellate Court in R.A.No.530/2005. 2. For the sake of brevity, the parties are referred as they are ranked before the Trial Court. 3. Plaintiffs filed a bare suit for injunction and damages against the defendants, alleging that defendants tried to trespass on the suit schedule property that was allotted to plaintiffs. Plaintiffs claimed that the suit schedule property belong to one kavaru of one Sundari Shedthi, who is the mother of the plaintiffs. Plaintiffs further contended that the suit property was allotted to the said kavaru under compromise recorded in a partition suit in O.S.No.66/1963. Plaintiffs therefore contended that, postcompromise decree, the said kavaru took possession of all the properties through Court and, from the date of securing possession, the said kavaru was in exclusive possession and enjoyment of the suit schedule A properties. 4. Plaintiffs also contended that defendant No.1, who represents another kavaru was allotted schedule B property along with other properties and, therefore, contended that defendants with out semblance of right have tried to interfere with the plaintiff's property and, hence, sought for an injunction. 5. The defendants, on receipt of summons, tendered appearance and filed written statement. Defendants though admitted the decree passed in O.S.No.66/1963, but disputed the location and allotment of portions as indicated in the plaint. The defendants specifically disputed the allotment of schedule A property to the plaintiff's share. Though defendants admitted that they were allotted 69 cents, they seriously disputed the claim made by the plaintiffs with regard to a specific portion in terms of the compromise decree. 6. Plaintiffs and defendants to substantiate their respective claims, have let in oral and documentary evidence. 7. The Trial Court, on answering issue No.2 in the negative, held that plaintiffs have failed to prove that they are in possession of the portions marked as 'A, B, C', Well marked as portion 'G' and the 'Bavikatte' marked as 'G1' and also held that plaintiffs have failed to prove that they are in possession and enjoyment as per the compromise decree passed in O.S.No.66/1963. Consequently, the suit was dismissed. 8. Consequently, the suit was dismissed. 8. The Appellate Court, pursuant to a remand order by this Court, has relegated the parties to cross-examine the commissioner, who has measured the suit properties and submitted his report and sketch. Post-remand, defendants have cross-examined the commissioner. The Appellate Court, referring to the material on record as well as the commissioner's report, has come to the conclusion that the sketch prepared by the commissioner would clinch the entire controversy between the parties. While referring to the commissioner's report and other supporting documents, the Appellate Court has come to the conclusion that a well is situated in the property allotted to the share of Susheela Shedthi, under whom plaintiffs are asserting possessory rights. It is in this background, the Appellate Court has proceeded to allow the appeal, and consequently, the suit for injunction is decreed. 9. It is against this divergent findings, the present appeal is filed. 10. Heard learned counsel appearing for the legal heirs of defendant No.1 and learned counsel appearing for the plaintiff. Perused the divergent findings of the Courts below. 11. This case has got checquered history. Plaintiff, feeling aggrieved by the dismissal of the suit by the judgment and decree dtd. 28/6/1976, preferred an appeal before the Appellate Court in R.A.No.71/1976, which was dismissed as abated on 8/12/1980. Again, defendants preferred an appeal in RSA.No.664/1981 and this Court allowed the appeal, and the matter was remitted back to the Appellate Court for fresh disposal. After remand, the Appellate Court renumbered the appeal as R.A.No.41/1992. On re-appraisal of evidence on record, the Appellate Court allowed the appeal and decreed the suit filed by the plaintiffs. The judgment and decree passed by the Appellate Court in R.A.No.41/1992 was questioned in a second appeal by defendant No.1 in RSA.No.294/1993. 12. This Court in RSA.No.294/1993, though herd that plaintiffs are owners to an extent of 87 cents and defendants are owners to an extent of 69 cents, was of the view that unless spot inspection is done and the properties held by plaintiffs and defendants are demarcated in terms of a compromise decree, the actual lis cannot be resolved. Therefore, the appeal was allowed, and the matter was remanded back with a direction to appoint a survey commissioner to demarcate the land in two portions. 13. Therefore, the appeal was allowed, and the matter was remanded back with a direction to appoint a survey commissioner to demarcate the land in two portions. 13. Pursuant to the direction issued by this Court, the Appellate Court appointed A.D.L.R. as a commissioner, and after securing the report from the commissioner, the Appellate Court again allowed the appeal and set aside the judgment and decree passed in O.S.No.448/1971. 14. Feeling aggrieved by the judgment and decree, defendants again preferred an appeal in RSA.No.1196/2009 with a direction to the Appellate Court to offer an opportunity to the defendants to cross-examine the commissioner. After remand, the defendants have cross-examined the commissioner as C.W.1, and report was marked as Ex.C.1. The Appellate Court, as per the direction of this Court and after the conclusion of cross examination by the defendants, has reheard the matter on merit and again allowed the appeal, and reversed the decreed passed in O.S.448/1971 by allowing the appeal. Consequently, suit is decreed restraining the defendants from interfering with the plaintiff's peaceful possession over the suit schedule properties. 15. The second appeal is pending for admission since 2014. On the last date, the learned counsel appearing for the appellant fairly submitted that his client intends to withdraw the appeal, and therefore, the matter was ordered to be listed today. Today, however, learned counsel submits that he was not able to secure instructions in that regard; therefore, he was permitted to argue the matter on merits. 16. This captioned second appeal arises out of a suit which was filed in 1971. The parties to the suit have been litigating for almost 52 years. This Court, to put a quitus to the lis between the parties, allowed the appeal in RSA.No.294/1993, and the matter was remitted back with a direction to the Appellate Court to take aid of local inspection by appointing a court commissioner. The Appellate Court, after receipt of the court commissioner's report, proceeded to allow the appeal and decreed the suit, which was again challenged by the defendants in RSA.No.1196/2009 on the ground that they had not offered any opportunity to cross examine the commissioner. This compelled this Court to allow the appeal in RSA.No.1196/2009, thereby offering one more opportunity to the defendants to cross-examine the commissioner. 17. After remand, the defendants have extensively cross examined the commissioner. This compelled this Court to allow the appeal in RSA.No.1196/2009, thereby offering one more opportunity to the defendants to cross-examine the commissioner. 17. After remand, the defendants have extensively cross examined the commissioner. While examining the commissioner, the defendants made a feeble attempt by confronting one more sketch and a suggestion was made that sketch was also prepared by the court commissioner. The said sketch appears to have been prepared in a revenue proceeding. The commissioner, however, has outrightly denied and specifically stated that this sketch was not drawn at his instance. While he has specifically deposed that he has prepared only one sketch, which was produced before the Appellate Court and marked as Ex.C.1. The material on record indicates that the commissioner, who is of the rank of assistant director of land records, has carried out measurements of both properties in the presence of both parties. Therefore, the defendants claim that the sketch was prepared in his office is misconceived, and the same is not substantiated. The Appellate Court, taking cognizance of the commissioner's report coupled with the compromise decree, vide Ex.P.1, has come to the conclusion that the well is situated in the portion allotted to the plaintiffs, which measures 87 cents. 18. Due to the peculiar nature of the case, the dispute over alleged encroachment or location of a well can only be resolved through local inspection. The existence of a well can only be asserted by way of local inspection. The court commissioner, who is of the rank of assistant director of land records, has measured the entire land and, in terms of the compromise decree, vide Ex.P.1, has demarcated the portion held by plaintiffs and the portion held by defendants, and on spot inspection, he has indicated that the disputed well is located in the portion allotted to plaintiffs. Though defendants have cross examined the court commissioner extensively, nothing worth is elicited to disbelieve or disregard the commissioner's report in the present case on hand. On spot inspection, if it is found that the well is situated in a portion allotted to the plaintiffs, and in absence of any right conferred on defendants in the compromise decree, vide Ex.P.1, which is not in dispute, defendants cannot assert and claim a share in the well, which is located in a portion allotted to the plaintiffs. On spot inspection, if it is found that the well is situated in a portion allotted to the plaintiffs, and in absence of any right conferred on defendants in the compromise decree, vide Ex.P.1, which is not in dispute, defendants cannot assert and claim a share in the well, which is located in a portion allotted to the plaintiffs. All these significant details are dealt by the Appellate Court in detail. On examining the findings and conclusions recorded by the Appellate Court, I do not find any infirmities or illegalities in the judgment rendered by the Appellate Court. Therefore, no substantial question of law would arise for consideration. Accordingly, the regular second appeal is dismissed. In view of dismissal of second appeal, I.A.No.1/2014, does not survive for consideration and stands disposed of.