Appasaheb and Others vs Bhairu Dema Mane and Others

B.V. Nagarathna, J.—1. Though the appeal is listed for admission, with the consent of the learned Counsel on both sides it is heard finally.

This Second Appeal is preferred by defendants 1 to 5 and 8 in O.S. No. 4/2003, assailing judgment and decree dated 15.03.2010 passed in R.A. No. 22/2006 by the Fast Track Court-1, Chikkodi.

For the sake of convenience, the parties herein shall be referred to, in terms of their status before the trial court.

The respondents/plaintiffs filed a suit against the defendants, seeking a declaration that the plaintiffs and defendants 6 and 7 be declared as owners in possession of the respective portions of the suit properties. Consequential relief of permanent injunction restraining defendants 1 to 5 and 8 from causing any disturbance to the peaceful possession and enjoyment of the suit property by plaintiff and defendants 6 and 7 was sought and also the relief of mandatory injunction was sought directing defendant-1 seeking removal of latrine constructed over the suit property bearing Sy. No. 637/17C, failing which, to remove the same through Court Commissioner.

The original plaintiff, Bhairu Dema Mane who filed the suit before the Trial Court, died during the pendency of the suit. Subsequently, his legal representatives were brought on record. It is the case of the plaintiffs that the suit properties consist of an extent of land measuring 10 guntas in Sy. No. 236/17C, which is marked with the letters "ABCD" in the hand-sketch map, and an extent of land measuring 33 guntas in Sy. No. 236/19, situated within the limits of Kodni village, Chikkodi Taluk, Belgaum District. Description of the suit property is given in Schedule-A and its location is shown in the hand-sketch map filed along with the plaint. That, these survey numbers are ancestral properties of plaintiffs and defendants 6 and 7 and they are owners in possession to an extent of half share each. Both the suit properties are from South to North, in which other owners of Sy. No. 236/17C, namely, sons of Shivappa Mane, sons of Krishna Mane and Sri Dadu Topa Mane and Sri Balu Subhana Mane, have got their share to the extent as stated in the revenue records of Sy. No. 236/17C, which is on the Northern side of the suit properties. According to the plaintiffs, aforesaid holders are purchasers of suit property of said definite area lying towards Northern side totally measuring 10 guntas and they have no concern with the suit property measuring 10 guntas in Sy. No. 236/17C lying to the Southern side. In the said 10 guntas of suit land in Sy. No. 236/17C, there has been a family arrangement and plaintiff is the owner in possession of Eastern side of 5 guntas, while defendants 6 & 7 are owners in possession of the Western side measuring 5 guntas. Similarly, plaintiff is owner to the extent of 16 1/2 guntas in Sy. No. 236/19 lying towards Northern side and remaining area of equal extent towards southern side is in the ownership of defendants 6 & 7. Also, Sy. No. 236/19 is on the southern side of Sy. No. 236/17C, is the averment.

According to plaintiffs, defendants 2 to 5 and 8 have no right, title or interest in any portion of suit survey numbers. But defendant No. 1 has constructed a building on the eastern side of the suit Sy. No. 236/17C. Similarly, defendants 2 to 5 and 8 who are residents of Kodni village have their respective house properties adjacent to the house of defendant-1 and near the suit property. That, on account of location of the house properties of defendants 1 to 5 and 8 near the suit property, there have been attempts made to encroach upon the suit properties and there have been frequent boundary disputes between the parties. That, defendant No. 1, on 08.12.2002 has illegally dug a foundation towards western side of the residential building to construct a latrine by encroaching upon a portion of the suit property of plaintiff on Sy. No. 236/17C at point ''E''. The same was objected to by plaintiff and complaint was lodged before the Secretary, Grama Panchayat, Kodni. It is the further case of the plaintiff, that he approached police authorities with regard to the illegal encroachment made on the plaintiff''s land. The defendant-1 had stopped construction work for some days, but on the commencement of winter vacation to the Civil Court, he continued construction of the latrine by encroaching on the suit property in Sy. No. 236/17C and completed the work on 26.12.2002, despite protests and objections raised by the plaintiff. Photographs of work of construction put up by defendant-1 were taken by the plaintiff. In the circumstances, plaintiff sought the aforesaid reliefs by instituting the suit.

On service of suit summons and court notices, defendants 1 to 5 and 8 appeared through their advocate, while defendants-6 & 7 were placed ex-parte. Defendants 1 to 5 and 8 filed written statement contending that suit filed is vexatious and misconceived, it is not maintainable in law. Further, defendants denied description of the suit property given in paragraph 1 of plaint schedule and also contended that the hand-sketch map was incorrect. They contended that suit survey numbers are ancestral properties of plaintiffs and defendants 6 & 7 and the contention that other defendants have no manner of right, title or interest in the suit survey numbers was not correct. They denied that defendant No. 1 had constructed a building towards eastern side of Sy. No. 236/17C, adjacent to the eastern boundary of the suit property. It was also denied that there was any illegality in the construction put up by defendants. In so far as latrine was concerned, they contended that the suit filed is vexatious and the contentions and allegations made in the plaint are false. Therefore, they sought for dismissal of the suit.

While seeking dismissal of the suit, the defendants contended that defendants 1 to 5 and 8 are in possession of the land in Sy. No. 236/20 situated towards eastern side of suit Sy. No. 236/17C wherein these defendants'' forefathers had constructed their houses respectively in their own area of Sy. No. 236/20 of Kodni village. Even the latrine constructed by defendant-1 was within the boundaries of suit sy. No. 236/20 and defendants had not encroached upon the suit property of plaintiff. Accordingly, defendants 1 to 5 and 8 sought for dismissal of the suit.

On the aforesaid pleadings, the trial court framed the following issues for its consideration:

Whether plaintiff proves the suit properties are the ancestral properties of himself, defendant Nos. 6 & 7?

Whether plaintiff proves that himself, defendant Nos. 6 & 7 are in possession and enjoyment of the suit properties?

Whether plaintiff proves that defendant No. 1 illegally and high handedly constructed the latrine by encroaching the suit properties as alleged?

Whether plaintiff proves that the defendants 1 to 5 and 6 are causing obstruction for the enjoyment of the suit properties by plaintiff and defendant Nos. 6 & 7?

Whether plaintiff is entitled for the reliefs prayed for?

What order or decree?

In support of their case, plaintiff-IB let in his evidence as P.W. 1 and another witness was examined as P.W. 2. The Court Commissioner was examined as P.W. 3. They produced 11 documents which were marked as Ex. P. 1 to P. 11. On behalf of defendants, defendant-1 let-in his evidence as D.W. 1 and 9 documents were marked as Ex. D. 1 to D. 9.

On the basis of the said evidence, the Trial Court answered issue Nos. 1 and 2 in the affirmative, issue No. 5 was answered partly in the affirmative and issue Nos. 3 and 4 were answered in the negative and decreed the suit declaring that plaintiffs and defendants 6 & 7 are owners in possession of their respective portions of suit properties. That the defendants 1 to 5 and 8 are hereby permanently restrained from causing any type of disturbance to the peaceful possession and enjoyment of the suit properties by plaintiffs and defendants 6 and 7.

Being aggrieved by the judgment and decree of the trial court, the legal representatives of original plaintiff filed R.A. 22/2006 before the Civil Judge (Sr. Dn.), Chikkodi, which later transferred the matter to the Fast Track Court-I, Chikkodi. The said Court, on hearing the respective parties, framed the following point for its consideration:

"Whether the impugned judgment and decree requires the interference of this court and that the appeal is fit to be allowed?"

It allowed the appeal filed by the plaintiffs and decreed the suit and directed defendant No. 1 to remove the latrine within one month from the date of the order.

Being aggrieved by the judgment and decree of the I Appellate Court, defendants 1 to 5 and 8 have preferred this second appeal.

I have heard the learned Counsel for the parties.

Appellants'' Counsel contended that the I Appellate Court was not right in modifying the judgment and decree of the trial court and thereby granting decree of mandatory injunction, by directing defendant-1 to remove latrine within one month from the date of the order. He contended that the Trial Court on consideration of evidence of the Commissioner had come to a conclusion that there was no encroachment in the construction of the latrine by defendant-1 in the suit properties of plaintiff and defendants 6 and 7, but that finding of trial court has been given a go-by in a very casual manner and without assigning any reason, except what has been stated in paragraphs 19 and 20 of the I Appellate Court''s judgment. He contended that if the I Appellate Court was to modify the judgment and decree of the Trial Court, then the procedure contemplated under Order XLI Rule 31 of CPC, 1908, ought to have been followed. Strong reasons had to be assigned as to why the decree of mandatory injunction ought to have been granted against defendant-1. But in the absence of there being any reasons thereto, the I Appellate Court could not have granted the said relief.

It is also brought to my notice by the learned Counsel at the Bar and it is also borne out from the records that when an application was filed under Order XXVI Rule 9 CPC by the plaintiff, seeking appointment of Court Commissioner to measure the suit survey numbers, for the purpose of determining as to whether the latrine had been constructed within the suit survey numbers or outside the suit survey numbers, the Trial Court had appointed the Additional Director of Land Records (ADLR), Chikkodi, as Court Commissioner, but ultimately that Officer had delegated his power to the Surveyor of his office, who measured the suit properties. He was examined as P.W. 3 but his report was not accepted by the Trial Court, and hence no mandatory injunction was granted. Learned Counsel for the appellants submits that such being the case, the I Appellate Court could not have granted the mandatory injunction against defendant-1 and thereby directed him to remove the latrine, without giving a finding as to whether there was any encroachment caused by defendant-1 in the suit properties. He therefore contended that substantial questions of law would arise in this appeal which would require admission of the appeal for a detailed hearing.

Per contra, learned Counsel for plaintiffs/respondents, supporting the judgment and decree of the I Appellate Court, contended that the trial court was not right in granting only a decree of permanent injunction as against defendants 1 to 5 and defendant-8. By not granting the relief of mandatory injunction, prejudice was caused to the plaintiffs. Their rights were jeopardised and therefore, they preferred Regular Appeal and the I Appellate Court which rightly modified the judgment and decree of the trial court, by directing defendant No. 1 to remove the latrine within one month from the date of the order. He contended that the judgment and decree of the I Appellate Court would not call for any interference at the hands of this Court and that no substantial questions of law would arise in this appeal. He therefore contended that the appeal may be dismissed in limine.

Having heard the learned Counsel for the parties and on perusal of the record as also the original records, I am the view, the appeal would have to be admitted to consider the following substantial questions of law:

Whether the I Appellate Court was justified in modifying the decree of the Trial Court and thereby granting the decree of mandatory injunction against defendant-1, by directing him to remove the latrine constructed by him, within a period of one month from the date of judgment?

Whether the report submitted by the Surveyor in the instant case could have been considered by the courts below when the direction was issued by the Trial Court by its order dated 28.05.2004 on I.A. 3 filed under Order XXVI Rule 9 CPC, to the Assistant Director of Land Records (ADLR), Chikkodi, to measure the land and submit a report?

The appeal is admitted to consider the aforesaid substantial questions of law.

From the material on record, it is noted that the dispute in the instant case pertains to a portion of Sy. No. 236/17C and another portion of Sy. No. 236/19. These extents of land are admittedly in possession of the plaintiffs and defendants 6 and 7. The controversy between the parties has arisen on account of construction of latrine in Sy. No. 236/20, which portion of land admittedly, belongs to defendants 1 to 5 and 8 and is adjacent to the schedule properties. There is no dispute with regard to the title of the respective parties to the aforesaid extent of land. Therefore, trial court was right in declaring that the plaintiffs and defendants 6 and 7 are the owners in possession of the respective portions of suit land. But the controversy between the parties is with regard to the commencement of the construction of latrine and thereafter during the pendency of the suit completion of construction of their latrine by defendants 1 to 5 and 8 allegedly in Sy. No. 236/17C. According to defendants 1 to 5 and 8, it is within the extent of Sy. No. 236/20.

In order to ascertain as to whether there was an encroachment, the trial court had, on an application filed under Order XXVI Rule 9 of CPC, directed that the ADLR, Chikkodi, be appointed as Court Commissioner to measure the suit properties and to ascertain as to whether there was any encroachment made by defendants 1 to 5 and 8 in the suit land. But what has transpired in the instant case is, that the ADLR has not executed the common warrant issued to him as per the order dated 28.05.2004, instead, he delegated a Second Division Surveyor (SDS) in his Office (Sri Satish M. Kalyanashetti) to carry out the directions of the trial court. His report was submitted to the Trial Court. He was examined as P.W. 3. The trial court did not take into consideration his report and did not grant the relief of mandatory injunction against defendant-1. In fact, objections were filed to the said report by the plaintiffs also. But the trial court directed defendants 1 to 5 and 8 not to cause any disturbance to the peaceful possession and enjoyment of the respective portions of the suit properties by the plaintiffs and defendants 6 and 7. The trial court was not satisfied with the report submitted by the Surveyor and as a result, consequential relief of mandatory injunction was not granted to the plaintiffs.

Being aggrieved by the order of trial court in declining the consequential relief of mandatory injunction, plaintiffs filed R.A. 22/2006. Significantly, the I Appellate Court without reference to the Survey Report or any other material which was on record, and without giving any categorical finding and reasoning as to why the plaintiffs were entitled to the relief of mandatory injunction, modified the decree of trial court and granted the said relief.

Learned Counsel for the appellants has drawn my attention to the impugned judgment passed in R.A. No. 22/2006. He submits that the contents of paragraphs 19 and 20 of the said judgment do not in any way substantiate the requirement of grant of consequential relief of mandatory injunction. He brought to my notice provisions of Order XLI Rule 31 CPC to contend that the I Appellate Court ought to have given detailed reasoning as to why it was modifying the judgment and decree of the Trial court and in that regard he pointed out, that in the absence of there being any compliance of Order XLI Rule 31 CPC, in the sense that the reasons for the decision not being adequate, the judgment of the I Appellate Court requires to be set aside. In the instant case it is noted the Trial Court declined to grant the relief of mandatory injunction. But the I Appellate Court without any reference to the report submitted by the Surveyor and without giving any concrete reasons, has indeed given a finding that the plaintiffs were entitled to relief of mandatory injunction. The manner in which the I Appellate Court has proceeded to consider the appeal is not at all satisfactory. In the circumstances, substantial question of law-1 has to be answered in favour of the appellants herein and the judgment and decree of the I Appellate Court is set aside for the said reason.

Next it is noted that the trial court by order dated 28.05.2004 had appointed ADLR, Chikodi, as Court Commissioner on the application filed by the plaintiff under Order XXVI Rule 9 of CPC and the said Officer as Commissioner of the Court had to execute the commission warrant. But in the instant case, the ADLR delegated his work to the Surveyor in his office, who was not the Officer directed by the Trial court to measure the suit items. In the circumstances, the Trial Court was justified in not placing any reliance on the said report of the Surveyor though there are other reasons which have been assigned by the Trial Court for not doing so. It is in that context that the relief of mandatory injunction was not granted to plaintiffs. But that was precisely the grievance of the plaintiff in the I Appellate Court and it is noted from the judgment of the I Appellate Court, that the relief has been granted without assigning adequate reasons for doing so and that is the grievance of the defendants in this appeal.

For the aforesaid reasons, substantial question of law-2 has to be answered by placing reliance on a decision of this Court in the case of Shamanna Setty vs. B.L. Channegowda, , ILR 2006 KAR. 3588, wherein it has been held, that if under Order XXVI Rule 9 CPC a person is appointed by Court as Commissioner for local inspection of disputed property, he cannot delegate the said work to any other person, as it is the right of the Court alone to do so and if such person has executed the warrant, his report cannot be relied upon by the Court as execution of commission warrant is without jurisdiction. No doubt, the I Appellate Court has not relied upon the report of Court Commissioner in the instant case, but the trial court in its wisdom had appointed Court Commissioner, precisely to understand the encroachment, if any, made by defendants 1 to 5 and 8, for the purpose of ascertaining as to whether plaintiffs were entitled to mandatory injunction.

In the instant case, P.W. 3 had no jurisdiction to submit the report. Even if the report could not be relied upon by either the trial court or I Appellate Court but in the absence of there being any material on record, the trial court declined to grant the relief of mandatory injunction but the I Appellate Court reversed the order of trial court and granted the relief of mandatory injunction. In my view, having regard to the dictum of this Court, the report submitted by the Surveyor is not in accordance with law. But the necessity of such a report in the circumstances of the case was considered to be necessary by the Trial Court. I am of the same view, as after ascertaining the measurement and boundaries of the suit schedule properties, the question as to whether there was indeed any encroachment by defendants 1 to 5 and 8 in the construction of disputed latrine could be considered in the context of the relief of mandatory injunction sought by the plaintiffs. For these reasons also substantial question of law-2 has to be answered in favour of appellants herein.

Consequently, judgment and decree of the I Appellate Court and the Trial Court are set aside. The matter is remanded to the trial court with a direction to ensure that the order dated 28.05.2004 is complied with or having regard to the practical difficulties, the ADLR, Chikkodi, is permitted to take the assistance of surveyor in execution of commission warrant and on securing the report of the Court Commissioner, to consider only the question as to whether plaintiffs are entitled to relief of mandatory injunction in light of the issue Nos. 3 and 4. The judgment and decree of the Trial Court in all other respects remains in tact.

As the parties have been represented by their respective Counsel, except respondents 3 and 10, they are directed to appear before the Trial Court on 18.02.2016 without expecting a separate notice from the Trial Court. Learned Counsel for respondents/plaintiffs submits that the respondents would ensure the presence of respondents 3 and 10 herein before the Trial Court.

In view of the answers given to the substantial questions of law, the appeal is disposed of in the aforesaid manner.

The Trial Court is directed to dispose of the suit in accordance with law and in an expeditious manner.

Parties to bear their own costs.

Office to transmit the original records to the Trial Court forthwith.