Shekarappa vs Basavaraj

B. Veerappa, J.—This miscellaneous second appeal is filed against the judgment and decree dated 22.08.2012 made in R.A. No. 25/2011 on the file of the learned Senior Civil Judge, Yelburga, setting aside the judgment and decree of the trial court date 9.9.2011 made in O.S. No. 76/2009 on the file of the learned Civil Judge and JMFC, Yelburga, remanding the matter to the trial court for adjudication and opined that if the appointment of Court Commissioner is allowed true facts will come before court for adjudication of the dispute between the parties.

The appellant who was plaintiff before the trial court, had filed O.S. No. 76/2009 for declaration and consequential relief of permanent injunction, contending that the plaintiff is the owner of suit schedule property i.e. property bearing Sy. No. 879/E measuring 2 acres situated at Mudhol, more fully described in the schedule and defendant is the owner of Sy. No. 879/A measuring 2 acres and Sy. No. 879/AA measuring 1 acre 20 guntas and the defendant has purchased the suit properties about four to five years from his vendor Kansiddappa Andanappa Jathi and Mahanthappa Shivarudrappa Jathi.

The plaintiff further contended that earlier property bearing No. 879 was ancestral property of plaintiff and vendor of defendant in the partition Sy. No. 879/E fallen to the share of father of plaintiff, Sy. No. 879/AA fallen to the share of vendor of defendant and Sy. No. 879/A was fallen to the share of one Mahanthappa and Shivarudrappa Jathi. About 30 to 40 years back they have partitioned properties and they were in possession of their respective shares. The plaintiff since from his forefathers, used to go their land proceeding from Mudhol village to Sankanur Tar road by entering into eastern side bund of Sy. No. 879/A and going through the property bearing Syh. No. 879/AA towards Western-Southern side. Earlier since the property bearing Sy. No. 879 belong to one family as such the plaintiff and his forefathers used to go to his property and also he is carrying agricultural implements and bullock cart through the above said properties without any interruption. Knowing fully well the said conditions, defendant started to interfere with the easementary right of plaintiff by obstructing the plaintiff to go to his land. Therefore he filed the suit against the defendant.

Defendants filed written statement and denied entire plaint averments and contended that the sketch furnished by the plaintiff is false and defendant has not executed any settlement deed in favour of the plaintiff The said document is bogus and the plaintiff never had any easementary right in the property of defendant, etc. Therefore, sought for dismissal of the suit.

Based on the pleadings, the trial court framed the following issues:

Whether the plaintiff proves that, he has got easementary right over the suit property?

Whether the plaintiff entitled for the relief of permanent injunction as prayed?

What order or decree?

In order to substantiate his case, the plaintiff examined himself as PW. 1 and two witnesses as PWs. 2 and 3 and got marked documents as Ex. P. 1 to Ex. P. 7. On the other hand, defendant got himself examined as D.W. 1 and two witnesses as DW. 2 and DW. 3 and got marked documents as Ex. D. 1 to D. 3.

After considering the entire material on record, the trial court recorded a finding that plaintiff failed to prove that he has got easementary right over the suit property and therefore, he is not entitled for permanent injunction. Accordingly, the trial court answered issue Nos. 1 and 2 in the negative and dismissed the suit.

Aggrieved by the said judgment and decree, the plaintiff filed appeal in R.A. No. 25/2011 before the Senior Civil Judge, Yelaburga, who after hearing both parties, by the impugned judgment and decree allowed the appeal and set aside the judgment and decree of the trial court and remanded the matter for fresh consideration, expressing opinion that if the appointment of Court Commissioner is allowed, the true facts will come before Court for adjudication of the matter between the parties and opportunity should be given to both parties after receiving Commissioner Report as per Memo filed by both the parties and dispose of the same on merits.

Against the said order, the present MSA is filed.

I have heard the learned Counsel for the parties to the lis.

In view of the rival contentions between the parties the only point that arise for consideration is:

"Whether the I Appellate Court is justified in remanding the matter to the trial court to consider O.S. No. 76/2009 afresh, after giving an opportunity to both parties after receipt of Commissioner Report as per Memo filed by both the parties and dispose of the case on merits?"

Sri. Prashant S. Hosamam, learned Counsel for the appellant has contended that the impugned order passed by the lower appellate court is contrary to the provisions of Order 41 Rules 23A, 27 and 28 of Code of Civil Procedure. He also contended that the appellate Court ought to have decided the case on merits and there is no reason to remand the matter for fresh consideration and the opinion expressed by the appellate court with regard to appoint of Commissioner and filing of Memo by both the parties to the Commissioner Report does not arise and it is not the case of either the plaintiff or the defendant in the trial court. Therefore, he sought to set aside the impugned judgment and decree of the trial court.

Per contra, Sri. S.K. Kayakamath, learned Counsel for respondent fairly submitted that the material available on record would be sufficient to appellate court to decide the case on merits and question of remanding the matter does not arise. He also submitted that the application filed before the trial court for appointment of Court Commissioner was rejected and ultimately the suit came to be dismissed. The appellate court ought to have decided the case on merits. No question of appointment of Court Commissioner would arise and remanding the matter for fresh disposal is also not correct.

I have given my thoughtful consideration to the arguments advanced by learned Counsel for the parties to the lis and perused the entire material on record.

The admitted facts are the plaintiff filed suit for declaration and permanent injunction and the trial court after considering the entire material on record has come to the conclusion that the plaintiff failed to prove that he has got easementary right over the suit schedule property and therefore, he is not entitled for permanent injunction. The lower appellate court ought to have decided the appeal on merits. Instead of that, the lower appellate court has remanded the matter only the ground that evidence of DW. 1 and DW. 2 has not been taken into consideration while passing the impugned judgment by the trial court and the contents of letter Ex. P. 5 is not considered and therefore, the lower appellate court remanded the matter to the trial court for fresh consideration and opined that if the appointment of Court Commissioner is allowed the true facts will come before court for adjudication of the matter between the parties and also observed that opportunity should be given to both parties after receiving Court Commissioner as per Memo filed by both parties and dispose of on merits. The said finding recorded by the lower appellate court is without any purpose as rightly contended by both the learned Counsel for the parties to the lis.

In the trial court, the plaintiff examined himself as PW. 1 and produced documents Ex. P. 1 to P. 7 and defendant examined as DW. 1 and examined two witnesses as DWs. 2 and 3 and ultimately the case was decided on merits. If the lower appellate proceeded on the basis of oral and documentary evidence, it should have decided the case on merits. There is no reason why the appellate court has remanded the matter to the trial court for fresh consideration. If it is the opinion of the lower appellate court, that the appointment of Court commissioner is necessary it was open for the lower appellate court itself to do so by exercising power under Order 41 Rules 23A, 27 and 28 of Code of Civil Procedure. The same has not been done in the present case.

It is also relevant to state that, it is nobody''s case before lower appellate court that appointment of Court Commissioner is required. As rightly submitted by both the learned Counsel for the parties, the appellant or respondent have filed application before the lower appellate court for appointment of Court Commissioner. If for any reason the appellate court comes to the conclusion that the appointment of Commissioner is necessary to resolve the dispute between the parties, the appellate court can exercise such power and proceed with the matter on merits and the same has not been done in the present case. The lower appellate court is not justified in remanding the matter to the trial court for fresh consideration. Therefore, the point framed is answered in the negative.

In view of the aforesaid reasons, the MSA is allowed m-part and the impugned judgment and decree dated 22.8.2012 made in R.A. No. 25/2011 on the file of the learned Senior Civil Judge, Yelburga, is set aside and the matter is remitted back to the lower appellate court for fresh adjudication on merits in accordance with law.

The lower appellate court shall decide the appeal on its merits within six months, provided both the parties shall cooperate with the lower appellate court. Both the parties are directed to appear before the lower appellate court without for any notice on 15.09.2015.