Dismissed

The Karnataka State Road v. Nagaraju

Karnataka HC25 Jul 2024WP/14429/2015

Case brief

AI extract

What is this about?

In a suit for declaration and injunction arising after an earlier injunction suit failed, the plaintiffs sought appointment of an advocate commissioner to measure the disputed and acquired lands. Despite the earlier commissioner's findings, the High Court upheld the trial court's decision that a fresh commissioner appointment was necessary for proper adjudication, and dismissed the defendants' wri

What the court decided

AI extract

The Karnataka State Road Vs Nagaraju — Property and Title | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF JULY, 2024

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 14429 OF 2015 (GM-CPC)

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BETWEEN:

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THE KARNATAKA STATE ROAD TRANSPORT CORPORATION, KENGAL HANUMANTHAIHA ROAD, BANGALORE REPRESENTED BY ITS GENERAL MANAGER. THROUGH ITS CHIEF LAW OFFICER

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THE TRAFFIC CONTROLLER K.S.R.T.C. GOVERNMENT BUS STAND, IJOOR, RAMANGARAM -571 511 THROUGH ITS CHIEF LAW OFFICER

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…PETITIONERS

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Digitally signed by MEGHA MOHAN Location: HIGH COURT OF KARNATAKA

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(BY SRI. P.D.SURANA, ADVOCATE)

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AND:

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NAGARAJU S/O LATE KEMPAIAH, AGED ABOUT 53 YEARS, SINCE DEAD OF LR’S

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1A. SMT.AMBUJA W/O LATE K.NAGARAJAIAH AGED ABOUT 48 YEARS

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1B. SRI.SANTOSH KUMAR S/O.LATE K.NAGARAJAIAH AGED ABOUT 32 YEARS

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1C. SRI.PRADEEP Y.N. S/O.LATE K.NAGARAJAIAH AGED ABOUT 29 YEARS

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1D. MISS.Y.N.PAVITHRA D/O LATE K.NAGARAJAIAH AGED ABOUT 28 YEARS

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ALL ARE R/A YERAHALLI GRAMA KOOTAGAL HOBLI RAMANAGARA TALUK RAMANAGARA DISTRICT-562 159

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SMT. PUTTACHANNAMMA W/O LATE KEMPAIAH, AGED ABOUT 73 YEARS, RESIDENT OF YERERNAHALLI, VILLAGE AND POST, KOOTAGAL HOBLI, RAMANAGARA TALUK-562 159

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SMT.CHANDRAMMA D/O LATE DEMPAIAH AND W/O LATE VENKATAPPA, AGED ABOUT 55 YEARS, MALLUHOLA, MANGALAWARPET CHANNAPATNA TOWN RAMANAGARAM-571 501

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SMT.RAJAMMA D/O LATE KEMPAIAH, AND W/O THIMMAPPA, AGED ABOUT 51 YEARS, HOSADODDI, AJJANAHALLI POST MOODABAL HOBLI, MAGADI TALUK RAMANAGARA

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SMT.RENUKA D/O LATE KEMPAIAH, W/O MALAVEGOWDA, AGED ABOUT 49 YEARS, IJOOR, RAMANAGARAM

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SMT.SHOBHA D/O LATE KEMPAIAH W/O H.P.JAYARAM, AGED ABOUT 48 YEARS, IJOOR, RAMANAGARAM

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SMT.SUDHA D/O LATE KEMPAIAH, W/O RAGHU AGED ABOUT 44 YEARAS, IJOOR, RAMAANAGARAM TOWN.

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…RESPONDENTS

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(BY SRI.NARAYAN MAYYER, ADVOCATE FOR R1(A) TO R1(D) R2- SERVED AND UNREPRESENTED

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R4- SERVED AND UNREPRESENTED

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V/O/D 23/7/2024, NOTICE TO R3, R5-R7 IS HELD SUFFICIENT)

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THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH/SET ASIDE THE ORDER DATED:17.11.2014 MADE IN O.S.572/2007 ON I.A.FILED U/O 26 RULE 9 CPC (BY THE PLAINTIFF) ON THE FILE OF THE COURT OF ADDL. SENIOR CIVIL JUDGE, RAMANAGARA AVAILABLE IN ANNEXURE-E.

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THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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ORAL ORDER

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(PER: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI)

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Aggrieved by the order passed in the I.A. filed by the plaintiffs in O.S.No.572/2007 dated 17.11.2014 by the Additional Senior Civil Judge, Ramanagara, the petitioners are before this Court.

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The petitioners in this writ petition are the defendants in the suit. The plaintiffs had filed the suit in O.S.No.572/2007 seeking declaration and injunction. Before filing the said suit,

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they had filed O.S.No.134/1991 seeking injunction against the very same defendants. O.S.No.134/1991 was dismissed on 29.07.1998. Thereafter, the matter was carried in the second appeal in RSA No.846/2006 and the same was dismissed by this Court. This Court had given liberty to the plaintiffs to file suit for declaration. Now, the present suit in O.S.No.572/2007 came to be filed. As per the plaint, the cause of action for filing the suit arose on 21.12.2006 when the High Court gave the liberty to file comprehensive suit for declaration and permanent injunction and subsequently, when the defendants denied the right and possession of the plaintiff of the suit schedule property at Ramanagara within the jurisdiction of the Court.

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When the matter is coming up for the crossexamination of the defendants, the present application is filed seeking appointment of Court Commissioner. It is stated that the contention of the KSRTC is that they have acquired 27 ½ guntas in Sy.No.19 in the year 1963 and also subsequently, acquired 38 guntas in Sy.No.19/A and they are in possession of 38 guntas as well as 27 ½ guntas. It is stated that the defendants have been denying the same. Hence, it is necessary to appoint ADLR as Court Commissioner to measure the suit

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schedule property and also property of the defendants and its boundaries and to submit a report. It is stated that the defendants do not know the exact property or where it is acquired, but simply by misusing the official power is trying to encroach the suit schedule property by denying the rights. As such, it is necessary to look at the properties of defendants as well as the suit schedule property and the property of others in Sy.No.19 as the property of the defendants has been encroached towards western side by some third persons.

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It is the case of the plaintiffs that the defendants are

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trying to grab the suit schedule property for wrongful gain. For that, the defendants have filed their objections wherein they have referred to the appointment of Court Commissioner in the earlier suit and also produced the sketch. According to them, the plaint boundaries in the said suit did not tally with the property acquired by the KSRTC and the Court had held that the plaintiff could not prove his possession. Accordingly, the suit was dismissed. Now, as a Court Commissioner is already appointed in the earlier suit, again they cannot seek such a plea in the present suit. It is the case of the defendant that the appointment of the Court Commissioner is not necessary.

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The trial Court by order impugned had allowed the application. While allowing the application, the trial Court had observed that the Court Commissioner needs to be appointed in this case, specifically, when there is a boundary dispute and also regarding the acquired property. The trial Court had observed that it is the contention of the plaintiffs that if the report of the Commissioner is given before the Court, he could cross-examine DW1 effectively to elicit the truth and it is a fit case for appointment of a Court Commissioner and the Court has also further taken a view that unless and until the report of the Commissioner is given and the Commissioner is examined personally, the said evidence cannot be considered. If the counsel for the plaintiffs had not disputed the Commissioner's report given in the other suit, things would have been different and there is scope of marking the Commissioner's report through the author of that report. But in the present set of facts, the appointment of Court Commissioner is necessary and the application deserves to be allowed and accordingly, the trial Court had allowed the application.

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Learned counsel appearing for the petitioners submits that in a suit for injunction which came to be dismissed and

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confirmed by this Court in RSA, wherein a Court Commissioner is appointed and basing on the said Court Commissioner's report, the Court had come to the conclusion that the plaintiffs therein, i.e., the respondents herein is not in possession of the property. Once the Court Commissioner is appointed, basing on the Commissioner's report, when the matter has reached up to the High Court and the findings are confirmed, there is no necessity to appoint the Court Commissioner. He submits that the Court without considering the said aspect had appointed ADLR as Court Commissioner. He submits that the said order passed by the Court is without application of mind, contrary to law and the same has to be set aside.

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Learned counsel for the respondent submits that there

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is no dispute about the fact that the suit for injunction is dismissed and the same had attainted finality. This Court in the RSA had given liberty to the plaintiff to file a comprehensive suit for declaration and injunction. It is the specific case of the plaintiffs that the defendants have encroached the land that is purchased by the plaintiff on 13.02.1983. It is further submitted that earlier when the land was surveyed, the Court Commissioner was not examined either by the plaintiffs or by

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the defendants. Without examining him, the Court cannot rely on the report filed by the Commissioner. He submits that in a suit for declaration, when it is a comprehensive suit for declaration injunction just because the suit for injunction is dismissed, on that ground the application cannot be dismissed and the trial Court had rightly allowed the application. He had relied on the judgment of the co-ordinate Bench of this Court in the case of Sri.Shadaksharappa Vs. Kumari Vijayalaxmi and others¹ , wherein the Court in para No.20 of the said judgment had elaborated and summarized broad guidelines that can be followed while exercising the power under Order XXVI Rule 9 and 10 of CPC.

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"a) The power of the court to appoint the Commissioner for local inspection or any other purpose provided in Order XXVI of the Code is discretionary. However, the said discretion is guided by not only Order XXVI Rules 9 and 10 of the Code but also the provisions of the Indian Evidence Act dealing with relevancy, expert opinion, and the burden of proof.

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b) The discretion to exercise the power under Order XXVI of the Code of Civil Procedure is not governed by the form of the suit. The Court can appoint the Commissioner in any kind of suit, provided a report of

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1 W.P.No.201274/2022 dated 24.01.2023

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the Commissioner under Order XXVI of the Code is necessary for elucidating the matter in dispute.

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c) The issue framed in the suit, or where the issue is not yet framed, the pleadings which give rise to issue/s and the documents placed on record would be a guide to ascertain the 'matter in dispute' referred in Order XXVI Rule 9 of the Code.

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d) The power to appoint the Commissioner for local inspection or scientific investigation/expert's opinion can be invoked even suo motu by the court, without there being an application by either of the parties, if the Court deems it appropriate to secure the report of the Commissioner. However, the appropriate reasons must precede the order appointing the Commissioner. And such orders are to be passed only after hearing the parties before it.

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e) The Commissioner can be appointed either before or after the commencement of the trial. However having due regard to the nature of the controversy, if the report is essential for elucidating the matter in dispute, it is desirable to have the local inspection before the commencement of trial as it is likely to reduce the volume of oral evidence in a given case.

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f) In addition to the report, having regard to Order XXVI Rule 10 of the Code, the evidence taken by Commissioner reduced in writing can also be taken on record and examined by the court while considering the report.

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g) The report of the Commissioner is not conclusive proof of what is stated therein. The report is only a

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piece of evidence, that the Court has to examine based on the other materials on record.

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h) Report of the Commissioner need not be formally marked for being considered as evidence. Once submitted to the court, the report is part of the court record and can be looked into by the court.

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i) The court may in its discretion examine the Commissioner on any matter concerning the report. There is no compulsion to examine the Commissioner. However, if the objection is filed to the report, and the party filing objection seeks to examine the Commissioner then the Commissioner should be examined. In either case, once the Commissioner is examined, the court having due regard to the evidence, may reject or accept the report in its entirety or in part, provided there are materials to justify such a finding on the report. In appropriate cases, the merit of the report can be considered at the final hearing. While considering the report at the final hearing, if the court finds that the report is erroneous and fresh commission is required, the court may pass appropriate order in this regard.

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j) If the court is dissatisfied with the 'proceedings of the Commissioner' as found in Order XXVI Rule 10 (3), it may direct further inquiry depending on the facts. As a matter of caution, it is clarified that examination and order under order XXVI 10 (3) are only to verify if the Commissioner has followed the proper procedure while carrying out his task.

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k) The person who has filed an objection to the report has the option of cross-examining the Commissioner to substantiate his objections or even without cross-

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examination, it is open to establish that the report is inadmissible in evidence.”

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Learned counsel submits that it is a fit case for appointment of Court Commissioner, the trial Court had rightly allowed the application and the writ petition is liable to be dismissed.

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Having heard the learned counsels on either side, perused the entire material on record. The admitted facts in this case are that the earlier suit for injunction was dismissed. The ADLR was appointed as Court Commissioner and when they wanted the second Commissioner to be appointed, the said appeal was rejected and in the second appeal, this Court had given liberty to the plaintiff to file comprehensive suit for declaration. The findings of the Court Commissioner are that the plaintiff is not in possession of the property. The case of the respective parties is that according to the defendants, the property was acquired in the year 1977 and his vendor has also received the compensation. Now, according to the plaintiff, he has purchased the property from the vendor on 13.02.1983 by way of registered sale deed. According to the defendant, his vendor has no other property but the suit schedule property which is already acquired by the defendants. When the Court

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Commissioner is already appointed and that suit for injunction has attained finality, there is no requirement to appoint Court Commissioner in this suit.

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In the considered opinion of this Court, the appointment of Court Commissioner is necessary for the following reasons:

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The suit is at the stage of defendant’s crossexamination. No doubt that earlier the suit for injunction was dismissed. Now, the plaintiff has filed comprehensive suit for declaration. The disputes between the parties have to be decided and there should be a proper adjudication of the disputes between the parties. The whole dispute is about what is the land acquired and what is the land the plaintiffs are claiming. If the land that is acquired is what the plaintiffs are claiming, they will not be entitled for any relief and the suit for declaration would be dismissed for this the appointment of advocate commissioner is very much required. As the latest acquisition of the land is in the year 1977, if the Court Commissioner is appointed and if the report is placed

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before the Court, the Court will be in an advantageous position to decide the disputes between the parties. According to the defendants, they are in possession of the property. They also had an advantage of judgment and decree which is against the plaintiff. Now, in a suit for declaration if all these materials are placed before the Court, it would be easy for the Court to decide the dispute between the parties and no prejudice would be caused to the defendant.

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Hence, in the light of the above discussion, considered opinion of this Court, the trial Court had rightly allowed the application. Accordingly, the following:

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ORDER

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i. Accordingly, the writ petition is dismissed .

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