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Judgment
A.V. Chandrashekara, J.—1. The appellant is the defendant in original suit bearing No. 64/2001 which was pending on the file of the Civil Judge (Junior Division), Harapanahalli, Dadvanagere has filed this appeal under Section 100 CPC. Concurrent findings are called in question by filing an appeal in RSA No. 2349/2007. The respondent is the sole respondent in the said suit. They are referred to as plaintiff and defendant as per their ranking given in the Trial Court.
The plaintiff chose to file a suit for the following relieves as found in para - 9 of the plaint. For better clarity, schedule appended to the plaint is also extracted below:--
"Para - IX : The plaintiff therefore prays that the Hon''ble Court be pleased to pass a Judgment and decree in favour of plaintiff against defendant as follows:--
a) For declaration of plaintiff''s title to the schedule mentioned property and permanent injunction restraining the defendant, their men, agents, servants, assignees, executors, heirs, or any persons claiming under them in any manner whatsoever interfering within the peaceful possession and lawful enjoyment of the plaintiff s plaint schedule property.
a1) Award actual possession of 3 feet East -West and 42 feet North - South which is possession of the defendant just to the West after the suit wall.
a2) Grant mandatory injunction in favour of the plaintiff to demolish the wall of the defendant built immediately to the west of the suit wall.
b) for awarding cost of the suit, and
c) exemplary costs of Rs. 10,000/-.
d) for granting such other relief or reliefs as the Honourable Court deems fit and proper in the circumstances of the case.
SUIT SCHEDULE
Plaint property situated within the limits of Banageri Street in Harapanahalli Town within the sub-registration district of Harapanahalli and registration district of Davanagere bearing Door No. 35, Ward No. 2.
Measurements:--
North-South : about 51 feet Width of the wall wall is 1 feet 9 inch and including Faced towards Western side from Wall to 3 feet East-West.
Boundaries:
East - Plaintiff''s house,
West - P.S.U. Abdul Malik open space,
North - Road,
South - Open space & Karodi Mohammed Sab''s House."
The case of the plaintiff is that he is the absolute owner in possession of the suit schedule property and it originally belonged to Late B. Hussain Peer Sab, who died in the year 1976. The plaintiff is stated to have derived the suit schedule property through partition deed and also mutation effected to the plaintiff on 27.08.1997.
It is the specific case of the plaintiff that the suit schedule property is described in the schedule appended to the plaint came to him by way of gift deed executed by his mother and the same is registered. According to the plaint, there was an open space of 3 1/2 feet absolutely belonging to him on the Western side of the wall of his house and that he is the absolute owner of the space measuring East to West : 3 1/2 feet. It is his clear case that the Western wall of his house absolutely belongs to him and the defendant has no right over that and that it is not a common wall.
It is the case of the plaintiff that according to him, the defendant intended to obstruct the free passage of natural light and air to his house and the defendant wanted to put up wall by closing the windows fixed by his father i.e., father of the plaintiff. The defendant has attempted to put up wall adjacent to the wall of the plaintiff illegally that too without obtaining any license from the competent authorities. According to him, the defendant has put up a wall abutting the western wall of the plaintiffs house and therefore he got the plaint amended seeking the relief of possession of 3 1/2 feet of vacant wall abducting the house.
The defendant has filed the written statement and denied all the averments. He admits that the plaintiff is her neighbourer. She has specifically averred that the wall in question is a common wall belonging to the plaintiff and defendant and that the very suit of the plaintiff is not maintainable. The averment that windows have been put in the Western wall of the plaintiffs house and that he was enjoying the air and light through these windows is also specifically denied. It is the case of the defendant that he purchased the property through a registered sale deed dated 15.03.2001 for a consideration of Rs. 1,25,000/- from Sri. Abdul Malik who was the absolute owner of the property.
It is the case of the defendant that father of plaintiff had not fixed any windows in the Western wall of the plaintiffs house and that one window was put up by plaintiff three years prior to filing the suit unauthorizedly that too in the absence of the vendor of the defendant. With these pleadings, he has requested to dismiss the suit.
The trial Court has framed the following issues for its consideration:
"(1) Whether plaintiff proves that he derived the suit property under a partition deed?
(2) Whether plaintiff proves that he is the absolute owner of the suit property?
(3) Whether plaintiff proves that he is in possession of the suit property?
(4) Whether plaintiff proves the alleged obstruction by the defendant for the enjoyment of the suit property?
(5) Whether plaintiff proves that he is entitled for the reliefs prayed?
(6) What order or Decree?"
The additional issues were framed on 5.06.2005, which as under:
"1) Whether Plaintiff proves that defendant has constructed the wall measuring 9 inches thickness "Eash-west" 42 feet length North-South and about 10 feet height, during pendency of the suit on February 2004?
2) Whether Plaintiff proves that he is entitled possession Of property measuring East-west 3 feet and 42 feet North-south vacant space after the suit wall?".
Plaintiff is examined as PW.1 and has got marked 15 exhibits on his behalf. In all, four witnesses have been examined on behalf of the defendant inclusively of her husband Nijamsab and has got marked 12 exhibits. Ultimately, the learned Judge chose to answer question Nos. 1 to 5 in affirmative and suit came to be decreed.
Appeal filed by the defendants in R.A. No. 35/2006 before the Court of Civil Judge (Jr. Dn.), Harihara, is allowed in part declaring that the plaintiff is the absolute owner of the western wall of the house property and the relief of possession measuring 3 feet x 42 feet after the suit wall is dismissed. The defendant is directed to demolish the parallel wall and re-build it so that there would be space left to the plaintiff to facilitate him to repair the suit wall and to white wash etc. The judgment of the appellate Court is dated 06.08.2007.
Present appeal is filed under Section 100 of CPC and is admitted to consider the following substantial questions of law on 27.03.2015:
"(1) Whether the first appellate court has committed a serious illegality and perversity in not properly assessing the oral and documentary evidence on record?
(2) Whether the trial court has committed a serious error in not allowing additional evidence under Order XLI Rule 27, C.P.C. and also not considering the plea for appointment of a commissioner under Order XXVI Rule 9, C.P.C?"
Both the Counsel have submitted their arguments at length. In the light of the facts and circumstances of the case, this Court intends to take up the substantial question of law No. 2 first.
Case of the plaintiff is that he is the absolute owner in possession of the property gifted to him by his mother. Ex. P.1 is the gift deed executed in his favour by his mother. Schedule to Ex. P.1 is the original gift deed, wherein the number of the property is mentioned as Door No. 238(A), situated in Harapanahalli town, second ward. The dimension of the house mentioned in Ex. P.1 is as follows:
"East and west by 12 1/2 feet and north and south by 29 feet bounded by east - open space belonging to the plaintiff west - house of Varabaddi Abdul Maalik''s house, north - municipality road and south - house of the plaintiff."
The case of the plaintiff is that, the western wall of the plaintiff house is the absolute wall belonging to him and that a vacant space measuring 3 feet x 42 feet had been left vacant and that space measuring 3 feet x 42 feet is the absolute property belonging to the plaintiff. According to him, western wall of the plaintiffs house is not a common wall belonging to the plaintiff and defendant; but it exclusively belongs to him i.e., plaintiff.
Per contra, the averment in the written statement of the defendant is that he purchased the property under Ex. D.1 dated 15.03.2001 from Abdul Malik. The schedule mentioned in Ex. D.1 relating to the house purchased by D1 is as follows:
"East west - 29 feet and north south by 42 feet bounded on the East - house of Razak Sab which is built with mud, west -house of Rangari Balakrishnappa which is also built with mud, North - road and south -house of Mohammed Sab. It is specifically mentioned in the schedule appended to the Ex. P. 1 that the wall on the eastern side is the common wall."
What is argued by the learned Counsel for the respondent/plaintiff is that, for the fist time in the document Ex. D.1 there is reference about wall being common to the defendant and plaintiff and the same is not found in the mother documents. Ex. D.2 is the document executed in favour of the Abdul Malik Sab, the vendor of the defendant by one Nagendrappa, son of Billappa dated 09.02.1972. In the scheduled appended to the Ex. D.2, the extent is mentioned as East and west 29 ft. and north and south 42 ft. The eastern boundary is shown as the house of Jinning house (flour mill) of Hussain Sab. The western property is shown as the house of Rangadi Chandramma. It is true that there is no mention in Ex. D.2 about the walls on the eastern and northern being common.
In fact in the Appellate Court, an application vide I.A. No. 3 had been filed under Order 26 Rule 9 of C.P.C. by the defendant requesting to appoint a competent person to visit the spot and measure the disputed area and submit a report so as to enable the Court to arrive at a proper decision; but it came to be dismissed. When the appeal was disposed of by the learned Judge of the first Appellate Court, necessary discussion is found in paragraph Nos. 39 and 41 at page No. 16 of the judgment of the first Appellate Court. What is observed by the Appellate Court is that appointment of commissioner is not necessary. The learned Judge, while considering the application filed under Order 26 Rule 9 of CPC, has assigned reasons as to why appointment of commissioner is not required. What is held by the first Appellate Court is that in view of the clear documents produced by the parties as evidence, the question of appointment of commissioner does not arise.
Admittedly, plaintiffs property measures in all measuring east and west by 12 1/2 feet as mentioned in Ex. P.1, the documents under which he has acquired the title from his mother. The plaintiff has to prove that the said 3 feet vacant space abutting on the western space is a part and parcel of the property acquired vide Ex. P.1. Then only he is able to get the relief. If the plaintiff fails to prove that the space beyond the western wall is a part and parcel of the extent shown in Ex. P.1, it would be very difficult for him to sustain his claim.
This Court in the case of N. Swamygowda Vs. Ramegowda reported in , ILR 2010 Kar 897, had an occasion to deal with provisions of Order 26 Rule 9 of CPC at length. The facts of the said case are that, an application was made for the appointment of Taluka Surveyor as the Court Commissioner for ascertaining as to in which Survey Number the suit schedule property was situated. At para No. 10 of the said judgment, the Court held that ''When there are conflicting versions regarding the location of the suit schedule property, no amount of oral and documentary evidence may enable the Trial Court to adjudicate the matter. It has therefore, appointed the Court Commissioner for ascertaining whether the suit schedule property is situated in the lands at Sy.Nos.175, 291 or 297.'' The report of the commissioner will not be all end and all. The report of the Commissioner will be analysed in the light of oral and documentary evidence. Of course, the appointment of the Court commissioner falls within the discretion of the Court. At para No. 9 of the said judgment, it has held that when the identity of the property is under dispute, the Court can unilaterally appoint a Court Commissioner. It is further held that if there is a serious dispute with regard to the area and boundaries of the land in question, non-appointing of the Court Commissioner results in the serious miscarriage of justice.
In the present case, the appointment of commissioner would have enabled the first Appellate Court to comprehensively decide the matter. For effective adjudication of the dispute in question, measurement of the existing house of the plaintiff, with reference to the extent found in Ex. P.1 would be relevant. It is in this view of the matter, the first Appellate Court has not adopted right approach to the real state of affairs. If the report of the commissioner were to disclose that apart from the area of the house in which the plaintiff is living, there is still a vacant space belonging to the plaintiff on the western side, suitable relief could be granted by the first Appellate Court.
If the commissioner is appointed, the parties would be given opportunity to cross-examine the commissioner and there cannot be any difficulty to lead additional evidence to that effect also. In this view of the matter, this Court is of the opinion that the approach adopted by the first Appellate Court is wholly incorrect. The whole object of the Court is to find out the truth and nothing comes in the way of the Court to take steps to find out truth and decide the matter comprehensively. Accordingly, the substantial question of law is answered in the affirmative. Ultimately, the question of answering the substantial question of law No. 1 does not arise. After receipt of the report from the competent Court Commissioner, the first Appellate Court being the final Court of facts, can reassess the evidence.
In the result, the following order is passed:
ORDER
Appeal is allowed.
The matter is remanded to the first Appellate Court and is directed to appoint the Assistant Executive Engineer, PWD, Harapanahalli to visit the spot and measure the dimensions of the plaintiffs and defendant''s house with reference to the observations made above as per Exs.P.1 and D.1 and submit a detailed report along with a clear sketch to the first Appellate Court.
The Judge of the first Appellate Court to decide the matter after reassessing the entire matter and after the receipt of the report of the Commissioner.
The commissioner''s fee shall be borne by the appellant and defendant and the first Appellate Court can fix the fee of the Commissioner.
This exercise shall be made at the earliest.
Parties to appear before the first Appellate Court on 31.03.2016 and thereafter, the first Appellate Court to appoint commissioner. Memo of instructions to the Commissioner be filed by both the parties without undue delay and the report be submitted on or before 18.04.2016 and the Court to dispose of the appeal on or before 30.06.2016, without fail.
Parties and counsel to co-operate with the Court.
Parties are at liberty to file their respective objections to the report, if they intend to do so, after the receipt of the same.
Parties to bear their own cost.