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IN THE HIGH COURT OF AT BENGALURU

DATED THIS THE 2 ND DAY OF MARCH, 2017

BEFORE

THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

RSA No.2433/2006(INJ)

BETWEEN:

1. Yashodamma W/o late Seenappasetty Aged about 50 years

As per Memo the legal heirs of 1 st Appellant are appellant 2 to 4, who are already on record. amended as per order dated 16.10.2009.

2. Jayaram S/o late Seenappasetty Aged about 40 years

3. Venkatachala S/o late Seenappasetty Aged about 40 years R/o. Holalagunda Village Hobli- 572 111 Taluk

4. Chandra S/o late Seenappasetty Aged about 36 years All are residents of

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Holalagunda village 572 111 Kunigal Taluk Tumkur District ..Appellants

(By Sri K.G. Sadashivaiah, Adv., For S & S Associates)

AND:

1. Sharadamma W/o Chowdaiahsetty Aged about 72 years

As per memo dated 5.10.2009 The legal heirs are respondents 2 to 11 are already on record as Per order dated 16.10.2009

2. H.C. Nagarajasetty S/o Chowdaiahsetty Aged about 60 years

Respondents 1 & 2 are R/of Holalagunda, Amruthur Hobli 572 111 Kunigal Taluk

3. H.C. Ramaiahsetty S/o Chowdaiahsetty Aged about 58 years Gramasevakas, Office of the CSDSK, Kanankapura Town District 562 117

4. Jayasheelamma D/o Chowdaiahsetty

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Aged about 56 years Ramanathapura Bangalore District 573133

5. H.C. Savithramma D/o Chowdaiahsetty Aged about 54 years Herur,Kunigal Taluk 572 130

6. Saraswathi D/o Chowdaiahsetty Aged about 52 years Yalagalavadi,Hutridurga Hobli Kunigal Taluk 572 130

7. Venkatachalasetty S/o Chowdaiahsetty Dommalur Bangalur, District 560 071

Respondents 3 to 7 deleted by filing a memo as per the order of Court dated 30.01.2009

8. H.C. Venkatrama S/o Chowdaiahsetty Aged about 26 years Holalagudda 572 111 Kunigal Taluk

9. Krishnasetty S/o Chowdaiahsetty Aged about 24 years Holalgudda 572 111 Kunigal Taluk

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10. Geethamani D/o Chowdaiahsetty Aged about 22 years 1 st Main Road, Veerabhadra Garden Pipeline, Malleshwaram Bangalore 560 003

11. Sudhamani D/o Chowdaiahsetty Aged about 20 years Siddappa Compound Muneswara Block, Palace Guttahalli Bangalore 560 003.

Respondents 10 and 11 are deleted as per memo the order of court dt. 30.01.2009

12. K. Mayanna S/o Kannegowda Aged about 55 years Residing at Hosahalli Amruthur Hobli Kunigal Taluk 572 111

Amended the cause title as per the order of Court dt. 30.01.2009

12(1) Laksmamma W/o late K .Mayanna 65 yrs

12(2) Smt. Mayamma D/o late K. Mayanna 45 yrs

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12(3) Smt. Jayamma W/o late K. Mayanna 43 yrs

12(4) Chandrappa S/o late K. Mayanna 40 yrs

12(5) Sri. Raja S/o late. Mayanna 38 yrs

12(6) Nagesh S/o K. Mayanna 35 yrs

All are residing at Hosahalli-village C/o Ramanna, Amruthur Hobli Kunigal Taluk. .Respondents

(By M/s. Agnihotri Associates, Advs. For R12 (2-6), Appeal is abated against R1 v/o dt. 7.9.2009, v/o dt. 16.10.2009, R2 to R11 are treated as LRs of deceased R1, R2, 8, 9,12(1) are served and unrepresented. v/o dt.30.1.09, R3-7, 10 & 11 are deleted.

This appeal is filed under Section 100 of CPC against the judgment and decree dated 22.04.2006 passed in R.A.No.27/2001 on the file of the Civil Judge (Sr. Dn.) Kunigal, Allowing the appeal and setting aside the judgment and decree dated 20.02.1995 passed in O.S.No.191/1984 on the file of the Munisiff & JMFC, Kunigal.

This appeal having been heard and reserved, coming on for Pronouncement this day, the Court delivered the following:

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JUDGMENT

This is a plaintiffs second appeal challenging the judgment and decree dated 22.04.2006 in R.A.No.27/2001 passed by the Senior Civil Judge, Kunigal. By the impugned judgment, the learned Civil Judge (First Appellate Court) has allowed the appeal and set-aside the judgment and decree passed in O.S.No.191/84 dated 20.02.1995 and dismissed the suit of the plaintiffs.

2. Appellants are the heirs of one Chowdaiah Setty and respondents are the heirs of K.Mayanna. Chowdaiah

Setty filed O.S.191/84 against K.Mayanna for permanent injunction restraining the defendant from damaging the eastern fence or the standing trees on the eastern side of the land bearing Sy.No.103 measuring 24 guntas of Holalgunda

Village of Kunigal Taluk.

3. Pending the suit, the plaintiff died and the present appellants came on record as his LRs. The trial Court

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decreed the suit against which the defendant – K.Mayanna filed R.A.27/2001 before the Senior Civil Judge, Kunigal.

When the matter was pending before this Court, the said

Mayanna also died and respondents 12 (1) to (6) are his LRs.

4. The plaintiff brought the suit contending that the property of the defendant bearing Sy.No.102 situates on the eastern side of the suit property i.e., sy.no.103. He contended that on the eastern boundary of the land bearing sy.no.103, there are standing 5 Jamoon, 2 Neeraganji, 6 coconut, 1 Mango and 10-12 Honge Trees and the defendant is trying to fell those trees. Plaintiff further contended that the defendant filed O.S.No.152/79 against him for permanent injunction in respect of the very same dispute which came to be dismissed on 02.09.1983 holding that the said trees are in his land. He contended that after the dismissal of the said suit again the defendant is trying to fell the trees and sought for permanent injunction.

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5. The defendant filed his written statement denying that the trees in question stand in the suit land. He claimed that those trees situate in his land namely Sy.No.102.

6. The trial Court after recording the evidence and hearing the parties decreed the suit, holding that in

O.S.152/1979 there is a concluded finding that the trees in question are in the land of the plaintiff and the defendant is trying to interfere with the plaintiff’s possession.

7. Questioning the said judgment and decree, defendant filed R.A.No.27/2001 before the Senior Civil

Judge, Kunigal. Learned Senior Civil Judge by the impugned judgment allowed the appeal and dismissed the suit holding that as per the Commissioner’s report, the said trees situate in the land of the defendant and the trial Court has failed to consider the Commissioner’s report and the survey sketch -

Ex.D.7.

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8. The appellants/plaintiffs challenge the said judgment in the above appeal. This Court while admitting the appeal, framed the following substantial questions of law:

(1) Whether the Appellate Court is justified in reversing the Judgment and decree passed by the trial Court?

(2) Whether the finding recorded in O.S.152/1979 does not operate as estoppel on the part of the defendant is justifiable?

(3) Whether the finding arrived at by the Appellate Court with regard to the Commissioner report is in accordance with law?

This court on hearing reframed 2 nd substantial question of law as follows:

“Whether the First Appellate Court was justified in reversing the judgment of the trial Court despite that the issue of possession was concluded by the findings in O.S.152/79 between the same parties?”

Then heard both the counsels on the above substantial questions of law.

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9. Some of the undisputed facts of this case are as follows:

- That the plaintiff is the owner of land bearing

Sy.No.103 measuring 24 guntas situated within Holalagunda

Village of Kunigal Taluk. Abutting the eastern boundary of the plaintiff’s land, the land of the defendant bearing

Sy.No.102 situates. Sy.No.102 was granted to the defendant by the Deputy Commissioner under the Inams Abolition Act during 1972-73. The dispute is with regard to some trees standing in a particular strip of land. Plaintiff claims that those trees are within the eastern boundary of his land bearing Sy.No.103. As against that the defendant claims that the said trees are within the western boundary of his land bearing Sy.No.102. Therefore the question is “Whether the trees in question lie within the land of the plaintiff bearing

Sy.No.103 or the land of the defendants bearing Sy.No.102?”

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10. There is no dispute that the defendant filed

O.S.No.152/79 against the present plaintiffs alleging that the trees in question lie within his land at Sy.No.102 and the plaintiffs are trying to interfere with his possession and enjoyment of the said property. The present plaintiff who was the defendant in O.S.152/1979 contested the said suit contending that the trees situate within his land. Exs.P.1 and P.2 are the judgment and decree passed in the said suit.

They show that the Court vide judgment dated 02.09.1983 dismissed the said suit holding that the trees in question fall within the land of the defendant (i.e plaintiff in this suit). In paragraph 8 of the judgment (Ex.P.1) the Court held as follows:

“The defendants versions are supported by independent witnesses D.W.2, D.W.3, D.W.2 has stated that there were no trees in the land cultivated by the plaintiff at any time. On the other hand, the defendants have grown various kinds of trees. Though he was cultivating his land, some years ago the relevancy of his

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evidence is that if any trees were planted in plaintiff’s land, then, there would have been scope for the plaintiff to contend that those trees are existing in his land since beginning. Because it is the case of the plaintiff himself that by virtue of order passed in his favour as per Ex.P.1, he has become the owner and he is in possession of that land since then. It means that he is in possession of that land since 7-8 years and therefore, it gives rise for doubt whether within 7-8 years, the plaintiff can grow trees which may yield fruits within that short period. It is not his case, that even prior to the grant of land, in his favour, there were trees in the said land.

The plaintiff is not entitled to urge that he is in possession of the portion of suit schedule land as owner. In fact, he is not at all in possession of the disputed portion of land.

At one stage, the plaintiff himself has given a futile answer in the examination in chief saying that:-

“ I have filed this suit against the defendants as they have encroached the suit land”

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So also the learned counsel for the plaintiff

suggests to defendants that they have put up

fencing on these two lands after the institution of

the suit. It means that the alleged encroached

portion is in possession of the defendants. For this

reason, it must be held that the plaintiff is not in

possession of the disputed portion of the suit

land.”

11. Plaintiff relied upon Ex.P.1 and 2, the certified copy of the judgment and decree in O.S.No.152/79, Ex.P.3 the RTC and Ex.P.5 Assessment Paid Receipt. Ex.P.4 is the copy of Form No.76A issued by the police on the plaintiff filing the complaint against the defendant alleging interference.

12. In the suit, the trial Court appointed the

Commissioner to inspect the suit property and submit report.

The trial Court decreed the suit holding that in

O.S.No.152/79 there is already a finding that the present

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plaintiff is in possession of the suit property which binds the parties. Thereby, the Commissioner’s report and the survey sketch Ex.D.7 were not accepted as evidence in proof of possession of the defendant.

13. As against that, the First Appellate Court holds that as per the Commissioner’s report and the survey sketch at Ex.D.7, the trees in question situate in the land of the defendant and the trial Court failed to consider those two documents. Therefore, based on those documents, the First

Appellate Court allowed the appeal and dismissed the suit.

14. The lower Appellate Court failed to note that the plaintiff filed objections to said Commissioner’s

Report still the Commissioner was not examined touching objections on the finding of the said report. It is no doubt true that as per Order XXVI Rule 10(2) the report of the Commissioner forms part of the record of the suit. However, that alone cannot become the

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evidence in the case. The Apex Court in PRAGA TOOLS

CORPORATION LTD. Vs MAHABOOBUNISSA BEGUM

(SMT.) & ORS (2001(6) SCC 238) held as follows:

“12……. The trial Court may have appointed a Commissioner to carry out survey but ultimately the findings had to be recorded by the trial Court. The report of the Commissioner could only be an aid to the trial Court in arriving at its findings…..”

15. In the KHAJA BEE vs JAMIA MASJEED (2009(1)

KCCR 753) this Court held as follows:

“13…. no doubt considerable significance is to be attached to the report of the Commissioner, as is sought to be done by the learned Judge of the lower appellate Court, it cannot be by misreading the report of the Commissioner. While the report of the Commissioner at the best supply the factual position as it prevails on the property visited and about which report is submitted, it is the duty of the Court to appreciate such evidence and to arrive at a conclusion.”

16. This Court in ALEX D’SOUZA vs DINOYSIUS

MOHAN PINTO (ILR 1995 Kar.1123) has held as follows:

“Under Rule 10(2) of Order XXVI CPC, the report of the Commissioner

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and the evidence taken by him shall be the evidence in the suit and shall form part of record. But, nonetheless the report remains only as a piece of evidence. Therefore, it is for the Court of fact to ascertain and find out as to how much reliance can be placed on such evidence keeping in view the other evidence in that case . The assessment of evidence has to be made by taking into account the totality of the circumstances and the material placed on record”.

17. Thus it is clear that the report of the

Commissioner has to be appreciated along with the other evidence on record. Exs.P1 and P.2 the judgment and decree in O.S.No.152/79 clearly showed that in an earlier suit between the same parties it was held that the trees in dispute stand in the land of the plaintiff and plaintiff is in possession of that property. The said findings have attained finality.

Therefore, they bind the parties and the said findings operate as res-judicata. Having accepted those findings it does not lie

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in the mouth of the defendant to contend that he is in possession of the property.

18. When there is a concluded finding of the competent Court to the effect that the plaintiff is in possession of the property based on which the trial Court had decreed the suit, the First Appellate Court reverses that judgment overlooking Exs.P.1 and P.2 and basing its decision on the Commissioner’s report to hold that the defendant is in possession of the property .

19. The First Appellate Court says that the trial Court has decreed the suit only basing on Exs.P.1 and P.2 i.e., the judgment and decree passed in O.S.NO.152/79. That reasoning also is incorrect because the trial Court in addition to Exs.P.1 and P.2 takes into consideration Ex.P.3 – the

Record of Rights of Sy.No.103. The said document depicted

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the name of the plaintiff as cultivator and in Column No.7 the existence of the trees in question is recorded.

20. The First Appellate Court would have been justified in reversing the judgment, if atleast the defendant pleaded that there is any post facto change or atleast subsequent to the judgment in O.S.No.152/79 he has dispossessed the plaintiff. Therefore, the judgment of first appellate Court is unsustainable. Therefore, substantial questions of law No.1, 3 and the reframed 2 nd additional substantial question of law are answered in negative. The appeal is allowed with costs. The impugned judgment and decree of the first appellate Court is hereby set aside and the judgment and decree of the trial court is hereby restored.

Sd/- JUDGE

Brn/hr