The President Vs G.v.Narayana Rao

…RESPONDENTS (V/O DTD 11/7/17 NOTICE TO R1 TO R3 IS HELD SUFFICIENT) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 24.01.2013 PASSED IN R.A.NO.102/2010 ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE, SHIMOGA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 11.3.2010 PASSED IN OS.NO.478/2006 ON THE FILE OF C/C PRINCIPAL CIVIL JUDGE (JR.DN.) AND JMFC, SHIMOGA.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellants, challenging the judgment and decree dated 24.01.2013 passed in R.A.No.102/2010 by the learned Second Additional Senior Civil Judge, Shimoga.

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For convenience, the parties are referred to based on their rankings before the trial Court. The

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appellants were the defendants and the respondent was the plaintiff.

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Brief facts leading rise to the filing of this appeal are as follows:

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The plaintiff filed a suit against the defendants for perpetual injunction. It is the case of the plaintiff that the plaintiff had purchased 35 guntas of land in Sy.No.125/2 of Navile village through a registered sale deed in 19741975. The land measuring 13 guntas of the said land was used for Thunga Channel. The remaining property is only 22 guntas. Subsequently, 5 guntas was taken over for Sevalal village and the remaining property available is only 17 guntas. It is contended that on the eastern side of the suit schedule property, the defendants constructed a school building. The plaintiff had filed a suit for mandatory injunction against the defendants for the removal of a school building in O.S.No.32/2000. The defendants appeared and contested the suit. In the said suit, Court commissioner was appointed to ascertain the

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encroachment by the defendants. The report filed by the Court Commissioner reveals that there is no encroachment on the plaintiff's property by the defendants. The joint memo was filed, wherein the parties admitted that they should not disturb the possession of each other.

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Plaintiff got dismissed the suit with the liberty to file a fresh suit. Again, the defendants tried to trespass into the suit schedule property and to disturb and dispossess the plaintiff from the suit property. Hence, a cause of action arose for the plaintiffs to file a suit for perpetual injunction. Accordingly, he prays to decree the suit.

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The defendants filed a written statement denying the averments made in the plaint. It is contended that the plaintiff, by misusing the process of law, filing the suit after suit. It is contended that the defendant is a charitable institution and occupied an extent of one acre of

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the land belonged to the government in Sy.No.112; the said survey number has been phoded as survey No.178.

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Some portion of land was allotted to the houseless and siteless Scheduled Caste people. The defendants constructed the school building in 1985, and they are enjoying the property and also one acre of land, which has been situated in front of the school building since 1985.

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They also used the said land as a play ground for the school children. The plaintiff is fully aware of the same and also allowed the defendants to enjoy the suit schedule property. By providing an incorrect description, the plaintiff had filed false and frivolous suit. Thereafter, the members of Dr. Ambedkar Mission Trust had filed a suit in O.S.No.316/1989. After the contest, the said suit was dismissed on 28.11.2000. Thereafter, the members instigated the plaintiff to file a fresh suit in O.S.No.32/2000. The said suit was withdrawn. Hence, the plaintiff filing the suit after the suit with a malafide intention to harass the defendants. Hence, prays to dismiss the suit.

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The trial Court, based on the pleadings of the

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parties, framed the following issues.

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1. Whether plaintiff proves that he is the owner in lawful possession of suit property as contended in the plaint?

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2. Whether plaintiff further proves the alleged interference by the defendants as contended in the plaint?

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3. Whether plaintiff is entitled for the relief sought?

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4. What Order or Decree?

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7. The plaintiff, to substantiate his case, examined

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himself as PW1 and marked 19 documents as Ex.P1 to Ex.P19. On the other hand, one Seethanayak who is working as a Director, was examined as DW1 and did not get marked any documents. The trial Court, after recording the evidence, hearing on both sides, and on assessing the verbal and documentary evidence, answered issued Nos.1 to 3 in the negative and issue No.4 as per the final order. The suit of the plaintiff was dismissed with

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costs vide judgment dated 11.03.2010. The plaintiff,

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aggrieved by the judgment and decree passed in O.S.No.478/2006 preferred an appeal in R.A.No.102/2010, on the file of II Additional Senior Civil Judge at Shimogga. The first appellate Court, after hearing the learned counsel

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for the parties, framed the following points for

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consideration:

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1. Whether the appellant proves that their father was in possession and enjoyment of the suit schedule property in his individual rights?

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2. Whether the Judgment under appeal is barred on legal principles?

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3. Whether the interference of this Court is absolutely necessary?

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4. What Order?

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The first appellate Court, on reassessing the

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verbal and documentary evidence, answered point Nos.1,3 in the affirmative, point No.2 in the negative, and point No.4 as per the final order. The first appellate Court allowed the appeal with cost, vide judgment dated 24.01.2013 and set aside the judgment and decree passed

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by the trial Court in O.S.No.478/2006 and consequently,

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decreed the suit of the plaintiff and restrained the defendants permanently from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property. The defendants, aggrieved by the judgment and decree passed in R.A.No.102/2010 filed this Regular Second Appeal.

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A notice was issued to the respondents. Despite

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service of notice, the legal representatives of the original plaintiff remained unrepresented.

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Heard the arguments of the learned counsel for the defendant. Learned counsel for the defendant submits that, the plaintiff, prior to the filing of the instant suit, filed the suit in O.S.No.32/2000 for the relief of declaration of title and mandatory injunction. The plaintiff withdrew the said suit. The plaintiff, instead of filing a comprehensive suit, filed a suit for permanent injunction. He also submitted that the plaintiff had admitted the possession of

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the defendants over the suit schedule property in O.S.No.32/2000.

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Hence, he submits that the suit filed by the plaintiff for mere injunction is not maintainable and he also submits that the defendants have denied the title of the plaintiff over the suit schedule property. A mere suit for an injunction without seeking the relief of declaration of title is not maintainable.

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To buttress his arguments, he has placed reliance on the judgment of the Hon’ble Apex Court in the case of Ananthula Sudhakar V/s P.Buchi Reddy (dead) by Lrs. and others reported in AIR 2008 SC 2033 . Hence, he submits that the first appellate Court has committed an error in passing the impugned judgment. He further submits that the first appellate Court has not assigned correctly the reasons for reversing the judgment and decree passed by the trial Court. He submits that the impugned judgment is not in compliance with Order 41 Rule 31 of CPC. He also submits that, the open land is

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situated in front of the property of the defendants. Hence, on these grounds, he submits that the impugned judgment passed by the first appellate Court is arbitrary and erroneous. Hence, on these grounds, he prays to allow the appeal.

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This Court, admitted the appeal to consider the following substantial questions of law.

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1. Whether the appellate Court was justified in taking exception to the report by the Court Commissioner in respect of the same property, but in an earlier suit in O.S.No.32/2000?

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2. Whether the plaintiff first filing O.S.No.32/2000 for declaration of title and injunction and after the Commissioner's report was filed, plaintiff withdrawing the suit with permission to file a fresh suit and thereafter, the plaintiff filing the present suit - O.S.No.478/2006 only for permanent injunction is valid and sustainable?

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3. Whether the Commissioner's report is conclusive proof to determine the actual possession of the schedule property?

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Reg. Substantial Question Nos.1 to 3:

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Substantial question Nos.1 to 3 are

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interconnected, and they are taken together for common discussion to avoid the repetition of facts.

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The plaintiff, to substantiate his case, examined

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himself as PW1; he reiterated the plaint averments in the examination-in-chief, and to prove the case, he has got marked the documents.

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Ex.P1 is the original sale deed dated 30.08.1971, which discloses that the suit schedule property is sold to the vendor of the plaintiff.

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Ex.P2 is the certified copy of the sale deed-executed by the plaintiff's vendor

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Ex.P3 is the tax-paid receipt

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Ex.P4 is the certified copy of the patta book

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Ex.P5 to Ex.P7 are the RTC extracts

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Ex.P8 is the M.R. extract

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Ex.P9 is the Akarbandh extract

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Ex.P10 is the atlas sketch

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Ex.P11 to Ex.P13 are the photos

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Ex.P14 is the negatives.

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Ex.P15 is the certified copy of the joint memo filed in O.S.No.32/2000.

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Ex.P16 and Ex.P17 are certified copies of the Commissioner's report and sketch, respectively, which disclose that the present plaintiff was the plaintiff in O.S.No.32/2000.

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In the said suit, the commissioner was appointed. The Court commissioner, after inspecting the suit schedule property, submitted the report stating that there is no encroachment by the defendants over the property of the plaintiff.

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Ex.P18 is the certified copy of the order sheet in O.S.No.32/2000, which discloses that the plaintiff has filed

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a memo seeking lieu of the Court to withdraw the suit with

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the liberty to file a fresh suit. The trial Court permitted the plaintiff to withdraw the said suit with liberty.

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Ex.P19 is the certified copy of the village map

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During cross examination, PW1 admitted

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regarding the filing of suit in O.S.No.32/2000 against the defendants with respect to the properties measuring 0.22 guntas and a Mangalore tiled room measuring 20X80 feet in Sy.No.125/2 and also admitted that the Court commissioner was appointed in O.S.No.32/2000. The Court Commissioner has submitted the report which reveals that the defendants have not encroached upon the property of the plaintiff in Sy.No.125/2. Both, the plaintiff and the defendants claim to be in possession of the suit schedule property. Although, the suit in O.S.No.32/2000 was between the plaintiff and the defendants, as the Court commissioner submitted the report, the plaintiff later withdraw the suit in O.S.No.32/2000. The trial Court relied

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upon the Court Commissioner's report submitted in O.S.No.32/2000 and has recorded a finding in para 16, which reads as under:

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"(A) CODE OF CIVIL PROCEDURE, 1908 - ORDER 26 RULE 10(2) - Evidentiary value of the Commissioner's report-HELD, The report of the Commissioner once submitted to the Court, shall be evidence in the suit and shall form part of the record. It is not necessary that the said Commissioner's report is to be marked as an exhibit in the case. Similarly, it is not necessary that the said Commissioner is to be examined to prove the contents of the said report-However, if either of the parties do not accept the correctness of the Commissioner's report, it is open for them to file their written objections opposing the said Commissioner's report. In order to substantiate the said objections and to request the Court not to act on the Commissioner's report, with the permission of the Court, they have been given an opportunity to examine the Commissioner personally in the open Court touching any of the matters referred to by him or mentioned in his report, or as to his report, or as to the manner in

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which he has made the investigation- FURTHER HELD, If the party is successful in discrediting the entire report or a portion of the report in respect of which he has grievance, the Court in its discretion may reject the report of the Commissioner - If the report is rejected in total, it is open to the parties to have one more Commissioner appointed for the very same purpose. Without marking the Commissioner's report as exhibit, without the Commissioner being examined in the case, the said Commissioner's report can be taken as evidence in the case- The trial Court was not justified in rejecting the Commissioner's report on the ground that it was not marked and he was not examined".

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On the perusal of the entire report and sketch submitted by the Court Commissioner, it discloses that 0.22 guntas of the land in Sy.No.125/2, the defendant Institution has encroached an area of 0.17 guntas for the purpose of vacant space in front of the school and area measuring 0.5 guntas for sevalal grama expansion. Even the plaintiff has not disputed the fact that, 0.35 guntas of

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the total land, and 0.5 guntas of property has been allotted for sevalal grama expansion. Although, the plaintiff had filed an objection to the Court Commissioner's report in O.S.No.32/2000, he did not examine the Court commissioner either in previous suit or in this suit, and relied upon the judgment of this Court in case of Parappa and others Vs. Bhimappa and another reported in ILR 2008 KAR 1840. The report submitted by the Court Commissioner in O.S.No.32/2000 i.e., in the suit filed by the present plaintiff against the defendants, the plaintiff has not explained any reasons to disbelieve the report of the Court Commissioner. Learned counsel for the plaintiff has produced a copy of the plaint in O.S.No.32/2000 wherein the plaintiff himself has admitted that the defendants started a primary school in Naveli village. In fact, the institution was running a primary school in another building. However, recently they constructed a Mangalore tile structure to run the said school in the suit schedule property. The plaintiff discover this fact when

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measuring the suit schedule property. Immediately, this plaintiff approached one Poorva Nayak, the founder of the Seva lal Vidya Samstha, regarding the encroachment of the suit schedule property. Therefore, Poorva Nayak passed away. Then, the plaintiff approached the defendants about the encroachment. The defendants instead of settling the matter, threatened this plaintiff with dire consequences, and also further encroached on the suit schedule property by constructing another room. The said incident occurred on the last date of December 1999. Further, upon perusing the plaint in O.S.No.32/2000, the plaintiff has admitted the possession of the defendants over the suit property, and also sought a mandatory injunction. The plaintiff, instead of continuing the said suit, has withdrew the said suit with the liberty to file a fresh suit.

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The plaintiff has filed a suit against defendants for a permanent injunction to restrain from interfering with the plaintiff's possession over the suit schedule property,

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when the plaintiff himself has admitted the possession of the defendants over the suit schedule property. Hence, the suit filed by the plaintiff for perpetual injunction is not maintainable. The first appellate Court did not properly consider the said aspect.

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20. Further, the plaintiff did not challenge the Commissioner's report. The trial Court not only relied on the Commissioner's report but also on the records produced by the plaintiff and has rightly passed the impugned judgment. The first appellate Court has not correctly re-assessed the evidence on record, and committed an error in passing the impugned judgment. The first appellate Court has not assigned correctly the reasons for reversing the judgment and decree passed by the trial Court. Further, the plaintiff has filed a comprehensive suit in O.S.No.32/2000, and the same was withdrawn with the liberty to file a fresh suit. In the aforementioned suit in O.S.No.32/2000, the defendants have denied the title. Thus, merely, the civil Court has

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granted permission to withdraw the suit with the liberty to file a fresh suit, is not a ground to file a fresh suit. In view of the law laid down by the Hon'ble Apex Court in the case of V.Rajendran and another Vs. Annasamy Pandian (D) through LR's Karthyayani Natchiar reported in (2017) 5 SCC 63 wherein it is held that,

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"The principle under Order XXIII Rule 1 (3) CPC is founded on public policy to prevent institution of suit again and again on the same cause of action. Further the Court held that the permission to bring a fresh suit when the Court is satisfied that the suit must fail for reason of some formal defect or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit."

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Further, it is settled law that the Court Commissioner's report is not a conclusive to determine the actual possession over the suit schedule property. However, the plaintiff in O.S.No.32/2000 has clearly admitted the possession of the defendants over the suit schedule property. The first appellate Court has committed

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an error in reversing the judgment and decree passed by

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the trial Court. The impugned judgment is arbitrary, and erroneous, and the same is liable to be set aside. In view of the above discussion, I answer substantial question Nos.1 to 3 in the negative. Accordingly, I proceed to pass

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the following order:

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ORDER

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1. The Appeal is allowed.

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The judgment and decree passed in

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R.A.No.102/2010 dated 24.01.2013 passed by the

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learned II Additional Senior Civil Judge and JMFC, Shimogga is set aside, and the judgment and decree passed in O.S.No.478/2006 dated 11.03.2010 by the learned Principal Civil Judge and JMFC, Shimogga is restored.

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3. No order as to the costs.

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