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2023 DIGILAW 650 (KAR)

Khemanna v. Parashuram

2023-04-21

K.S.HEMALEKHA

body2023
JUDGMENT 1. The present appeal by the defendant, assailing the judgment and decree dtd. 26/10/2016, in RA.No.147/2014 on the file of I Addl. Senior Civil Judge & CJM, Belagavi, dismissing the appeal and allowing the cross-objection filed by the plaintiff and modifying the judgment and decree dtd. 24/11/2014 in O.S.No.954/2010 on the file of the III Addl. Civil Judge & JMFC, Belagavi. 2. The parties herein are referred to as per their ranking before the trial Court for the sake of convenience. 3. This Court, while admitting the appeal on 12/12/2018, has framed the following substantial question of law: "Whether the court below has justified in ordering for demolishing the building constructed by the appellant in his own area when a suit is only for injunction and mandatory injunction and whether the Court below has justified in passing such an order?" 4. Learned counsel for the appellant and the respondent are heard on the substantial question of law. 5. The relevant facts are that the plaintiff filed the suit for permanent injunction restraining the defendant, his agent, servants or anybody on his behalf from putting up any sort of construction on the suit property directing the defendant to remove the structure, which has already been erected on the suit schedule property immediately and keep the suit property as an open space restraining the defendant from encroaching the suit property. The suit property is piece and parcel of the open space (part of the western side) of House No.460 measuring 9.6 ft. x 20 ft. By way amendment, the plaintiff sought to amend the measurement of the suit property as 9.6 ft. and 16 ft. 6. The undisputed facts are that the plaintiff and the defendant are brothers and there was a partition effected on 16/06/2006 between the plaintiff and defendant and they are six brothers by way of a partition deed, the suit property i.e., the open space to the extent of 9.6 ft. x 16 ft. in House No.460 was allotted to the plaintiff and the built up area of 20 ft. x 20 ft. to the eastern side of the suit property has been allotted to the share of the defendant and the remaining portion of the said property to the extreme western side of the property has been kept common as the joint ownership between the eight brothers being a worship place. 7. x 20 ft. to the eastern side of the suit property has been allotted to the share of the defendant and the remaining portion of the said property to the extreme western side of the property has been kept common as the joint ownership between the eight brothers being a worship place. 7. The sum and substance of the plaintiff's case is that the defendant has encroached in the suit property i.e., the open space measuring 9.6 x 16 ft. in House No.460 and put up construction in the open space which belonged to the plaintiff without any permission and without the knowledge of the plaintiff. On the other hand, the defendant has asserted and admitted about the partition effected between the brothers and the open space measuring 9.6 x 16 ft. having allotted to the share of the plaintiff towards the western side and the built up area measuring 20ft. x 20 ft. to the eastern side has been allotted to the defendant in House No.460. However, the defendant has specifically denied about having encroached and put up construction in the open space measuring 9.6 x 16 ft. 8. The trial Court, on the basis of the pleadings, oral and documentary evidence, held that: (i) the plaintiff has proved his lawful possession and enjoyment of the suit schedule property and the alleged interference by the defendant. (ii) the defendant has put up an illegal construction in the plaintiff's open space and decreed the suit of the plaintiff for permanent injunction, however, the prayer sought by the plaintiff to remove the structure, which had already been erected on the suit property i.e., open space and prayer restraining the defendant to encroach over the suit property was not granted stating that the plaintiff had filed the suit only seeking for permanent injunction. 9. Aggrieved by which, the defendant preferred an appeal against the grant of injunction and by way of crossappeal, the plaintiff - respondent contended that the trial Court was wrong in answering issue No.6 rejecting the prayer of removal of illegal construction. 10. The first appellate Court, on re-appreciation of the material on record, dismissed the appeal filed by the defendant and allowed the cross-appeal filed by the plaintiff - respondent. Aggrieved by which the defendants are before this Court. 11. 10. The first appellate Court, on re-appreciation of the material on record, dismissed the appeal filed by the defendant and allowed the cross-appeal filed by the plaintiff - respondent. Aggrieved by which the defendants are before this Court. 11. The short question that arises in the present appeal, apart from the substantial question of law is, "Whether in a suit for mandatory injunction for removal of alleged encroachment on the suit property and to prove the encroachment, whether a Court Commissioner for local inspection can be appointed? 12. Material on record reveals that the trial Court rejected the application filed by the plaintiff under Order XXVI Rule 9 of the CPC seeking to appoint an advocate as a Court Commissioner for local investigation in respect of measuring the entire House No.460 and the ascertain whether there is any encroachment made by the defendant in the suit schedule property. The trial Court rejected the application on the ground that the application has been filed after completion of the trial and at a belated stage, the application filed cannot be entertained. In order to appreciate whether the appointment of a Court Commissioner is necessary in a suit for mandatory injunction for removal of the alleged encroachment the provision applicable for local inspection i.e., Order XXVI Rules 9 and 10 of the CPC has to be considered. The said Order reads as under: "9. Commissions to make local investigations. - In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court: Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules." From the reading of the said provisions it makes it clear that if the Court deems it fit that a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute may issue commission. 13. 13. In this regard, records reveal that the application under order XXVI Rule 9 of the CPC read with Sec. 151 of CPC was filed by the plaintiff to appoint a Court Commissioner for local investigation in respect of the entire House No.460. The said application was rejected by the trial Court vide order dtd. 25/07/2014 holding that the parties have adduced their evidence and the application is filed when the matter was posted for arguments and at that stage, the appointment of a Court Commissioner for local inspection cannot be exercised since the parties had let in their evidence and the application is filed at the belated stage. Against the said order of rejection of appointment of a Court Commissioner, the plaintiffs have not chosen to file any appeal. Learned counsel for the respondent - plaintiff filed an application under Order XXVI Rule 9 of the Code of Civil Procedure read with Sec. 151 of the CPC seeking to appoint the Assistant Director of Land Records, Belagavi as a Court Commissioner to measure the extent of encroachment in the suit property measuring 9.6 ft. x 16 ft. comprised in House No.460 to the west of the appellant - defendant's property measuring 20 ft. x 20 ft. comprised in the remaining eastern portion of House No.460 situated at 1st Cross, Babale Galli, Belagavi, along with the memo of instructions. 14. The dispute is comprising of House No.460 open space area of 9'.6" x 16', which was allotted to the plaintiff and built up area in the said House No.460 to the extent of 20' x 20' to the eastern side of said property was allotted to the defendant. It is the contention of the plaintiff that the defendant has encroached the open area and the same has been denied by the defendant. Under such circumstances, a Commissioner can be appointed to ascertain as to whether there is an encroachment or not and the Commissioner appointed needs to find out the nature of possession. The application is filed before this Court seeking to appoint the ADLR the Court Commissioner to measure the extent of encroachment in the suit property. 15. The co-ordinate bench of this Court in the case of Bheemappa Rayappa Chaugala vs. Shrikant (2014)2 KCCR 1652 ] has held as under: "4. The application is filed before this Court seeking to appoint the ADLR the Court Commissioner to measure the extent of encroachment in the suit property. 15. The co-ordinate bench of this Court in the case of Bheemappa Rayappa Chaugala vs. Shrikant (2014)2 KCCR 1652 ] has held as under: "4. xxx Only if the plaintiffs can show that the defendants have encroached upon their property, they would be entitled to the relief. Any amount of oral evidence is not a substitute or sufficient to prove the encroachment. To cut short the litigation to reduce recording evidence, the trial Court in its 15 wisdom, thought it fit to appoint a Commissioner even before the commencement of the trial. That is how the duration of the litigation could be curtailed and speedy disposal of the civil matter could be achieved." 16. In light of the judgment of the co-ordinate bench and for the reasons stated supra, this Court is of the considered view that, since an application is filed by the plaintiff seeking to appoint a Court Commissioner, the dispute between the parties is one relating to alleged encroachment and the dispute would be resolved between the parties if the application filed for appointing the Court Commissioner could be allowed. The rejection of the application by the trial Court on the premise that the trial is complete though no appeal was preferred against the said order by the plaintiff, the rejection of the application by the trial Court is unsustainable. Thus, this Court is of the considered view, that the dispute would be resolved if the matter is remitted back to the first appellate Court by allowing the application filed under Order XXVI Rule 9 of the CPC along with the memo of instructions and the first appellate Court to appoint the ADLR as Court Commissioner for resolving the dispute relating to the encroachment. The remand to the first appellate Court is only in respect of the mandatory injunction and the judgment and decree of the Courts below insofar as permanent injunction is concerned, needs to be confirmed in light of the undisputed fact that neither of the parties dispute regarding the possession of the property in view of the partition deed. The substantial question of law framed by this Court needs to be answered accordingly. 17. The substantial question of law framed by this Court needs to be answered accordingly. 17. The first appellate Court to fix the date and time for local inspection directing the parties to be present at the disputed property and to avoid the process of issuance of notice to the parties by the Court Commissioner. Resultantly, the appeal needs to be allowed and remitted back to the first appellate Court along with the application and memo of instructions and this Court pass the following: ORDER (i) The appeal filed by the defendant is hereby allowed. (ii) The impugned judgment and decree dtd. 26/10/2016 in R.A.No.147/2014 on the file of the I Addl. Senior Civil Judge and JMFC, Belagavi is hereby set aside and the matter is relegated back to the first appellate Court to appoint the ADLR as the Court Commissioner to find out whether there is any encroachment in the suit property and to measure the extent of encroachment in the suit schedule property. (iii) The parties to appear before the first appellate Court on 30/5/2023 without waiting for further notice from the appellate Court. On such appearance, the first appellate Court to fix the date and time for local inspection directing the parties to be present at the disputed property and get the report of the Court Commissioner and pass appropriate orders after receipt of the Commissioner's report in accordance with law.