Kondamma and Others vs V. Rajamma

V. Bhaskara Rao, J.—The judgment and decree in A.S. No. 18/1994 on the file of Principal Subordinate Judge, Anantapur, dated 14-6-1995, reversing the judgment and decree in O.S. No. 74/1984 on the file of Principal District Munsif, Anantapur, dated 23-11-1987 and consequently decreeing the suit of the plaintiff for declaration of the right of way of the respondent-plaintiff to the western road and for consequential perpetual injunction as well as mandatory injunction directing the appellants to remove Cuddapah stone slabs fixed across the suit way, are challenged by the defendants in this second appeal. The parties will be referred to as arraigned in the trial Court.

The facts of the case in brief are:

That the plaintiff''s father purchased the plot on 20-1-1947 and constructed the house in the year 1954. On his death the house was mutated in the name of the plaintiff in the municipal records on the representation of her brothers and sister The Government sub-divided the survey number and patta was granted to the plaintiff. Ever since the construction of the house in 1954, her father and after his death, plaintiff used to pass through north-west corner where there is a gate at point ''A'' and join the road on the west. The house of defendant No. 1 is on the western side and the house of defendant No. 2 is on the northen side of the plaintiff''s house. When the defendants started obstructing the plaintiff from having ingress and egress to the western road, she filed a suit for declaration of her right of way and for perpetual injunction restraining the defendants from interfering with her right and also mandatory injunction to remove the obstruction of Cuddapah slabs to the passage. Both the defendants contested the suit. Defendant No. 1 averred that there was no notice of sub-division to her and hence she is not bound by the proceedings. She preferred an objection petition before the Revenue Authorities and fresh proceedings are ordered after notice to the concerned parties and the matter is still pending with the revenue authorities. To the best of her knowledge, no portion of the site of the plaintiff touches the western road and there was no entrance to that site from the western road and there was no gate. There is a public road on the south of her house and that is the entrance to her plot. The plot of defendant No. 1 which is on the western side and the plot of defendant No. 2 which is on the northern side are both triangular in shape and they meet at the apex point and the plaintiff has no right, title or any interest in the alleged Rastha. Defendant No. 2 filed a separate written statement, but raised same averments as defendant No. 1. It is asserted that no portion of the plot of the plaintiff touches the road on the north-west corner and she has no legal right to claim any declaration of right of way across the plots of defendants Nos. 1 and 2.

The following issues have been framed on the above pleadings:

(1) Whether the plaintiff is the owner of D. No. 12/590 in Jesus Nagar?

(2) Whether the plaintiff has no access to the road towards the northwest corner of her house?

(3) Whether the sub-division record is true, valid and binding on the defendants?

(4) Whether the plaintiff is entitled for declaration and injunction as prayed for?

(5) Whether the plaint plan is correct?

(6) To what relief?

The plaintiff examined herself as PW.1 and she also examined one Narasimhappa, who was cultivating her land and visiting her house in that connection as P.W.2 and A.K. Jaya Raj, a retired Police Constable as P.W.3. P.Ws. 2 and 3 are examined to substantiate her case that she was having ingress and egress through north-western corner to the western road. Exs.A-1 to A-5 are marked. Ex.A-1 is registered sale deed, dated 20-1.-1947 in favour of the plaintiff''s father, Ex.A-2 is the order of Tahsildar, dated 29-10-1983, Ex.A-3 is plaint plan, Ex.A-4 is surveyor plan and Ex.A-5 is sub-division survey proceedings in T.S. No. 846/84, dated 5-9-1986. In rebuttal, defendant No. 1 examined herself as D.W.1. She also examined three other witnesses as D.Ws. 2 to 4. D.W. 2 B. Nagendra and D.W. 3 B. Guru Murthy are having houses in the neighbourhood and they deposed that there is no path way for P.W. 1 through D.W.1''s open place. D.W.4 Parthasarathy is a Junior Assistant in Revenue Divisional Officer''s Office and he speaks about the pending appeal relating to sub-division and survey in the office of Revenue Divisional Office and Exs.A-5, X-1 and X-2 are marked through him- Ex.B-1 is registered sale deed, dated 9-8-1951 in favour of defendant No. 1. The learned District Munsif scrutinized the above evidence and held that the plaintiff could not substantiate her contention that her house touches the western road or that she has access to the road from the north-west corner and that the sub-division as evidenced by Ex.A-4 surveyor''s plan is not valid and not binding on the defendants as it is pending disposal before the Revenue Divisional Officer. Accordingly the suit has been dismissed with costs.

Aggrieved by the above findings, judgment and decree; the plaintiff preferred an appeal to the Court of Principal Subordinate Judge, Anantapur, who not only reassessed the evidence on record, but he appointed an Advocate-Commissioner Mr. K. Yoganandam to inspect the suit locality and to measure the suit site on all sides and also to measure the site of the defendants if necessary by taking necessary assistance from the District Surveyor. The Revenue Divisional Officer before whom the appeal in respect of survey by the Surveyor who prepared Ex.A-4, filed by defendant No. 1 on the ground that no notice was given to her, dismissed the appeal and Ex.A-4 survey plan was confirmed. Taking into consideration the evidence on record, the report of the Advocate-Commissioner and order of Revenue Divisional Officer, Anantapur, confirming Ex.A-4 survey plan, the learned Principal Subordinate judge reversed the findings recorded by the trial Court and held that the plaintiff succeeded in establishing her case. Accordingly, the appeal has been allowed and the judgment and decree of the trial Court has been set aside and consequently the plaintiff''s suit has been decreed as prayed for. Hence, this Second Appeal by the defendants.

Mr. R.V. Prasad, learned Counsel for the appellants contended that the appellate Court had no jurisdiction to appoint a Commissioner and to admit his report without a petition under Order 41 Rule 27 of Code of Civil Procedure; that the survey was conducted without notice to the defendants and in contravention of Sections 9 and 10 of Survey and Boundaries Act and that Ex.A-1 title deed of the plaintiff does not show that she has right of way on the north-west corner of her plot. He, therefore, urged that the judgment and decree of the appellate Court may be set aside and that of the trial Court may be restored. On the other hand Mr. S.R. Sanku, learned Counsel for the respondent/plaintiff pointed out that the other side consented to the appointment of Commissioner for conducting local inspection and hence he cannot now raise an objection in that regard. He vehemently contended that the Commissioner had issued notices to all the parties and conducted the proceedings in their presence and the learned Principal Subordinate Judge considered the report thread-bare and accepted the same. He placed reliance upon a Judgment of Constitution Bench of the Supreme Court reported in K. Venkataramiah Vs. A. Seetharama Reddy and Others, . As regards the criticism regarding survey, it is argued that it was defendant No. 1 who carried the matter in appeal and both the parties were given opportunity by the Revenue Divisional Officer and hence his judgment approving Ex. A-4 Surveyor''s plan is itself an answer. Adverting to the contention that Ex.A-1 title deed is silent about the right of way, he argued that admittedly there was no road in 1947 and that the road was formed only 10 years prior to the suit and hence there could not have been an indication of path way at that place. Yet he asserted that the subsequent material viz., Ex.A-4 survey plan and the plan prepared by the Commissioner are sufficient proof of the existence of path way and hence the appellate Court has rightly decreed the suit of the plaintiff.

Having regard to the pleadings, issues framed by the trial Court, findings recorded by the trial Court as well as the appellate Court and the rival contentions raised in this Court, the following substantial question of law arises for determination:

"Whether the Commissioner''s Report and plan could have been relied upon without any application for receiving additional evidence and if so, what is the effect."

It is well settled that this Court cannot go into questions of fact in a Second Appeal. The lower appellate Court is the final Court of fact and hence the factual findings and the contentions of learned Counsel assailing those findings except to the extent of the substantial question of law formulated above need not be discussed. Here itself the objection as to the procedure followed by Surveyor that it is contrary to Sections 9 and 10 of Survey and Boundaries Act may be taken up. It is not in dispute that the appeal preferred by defendant No. 1 to the Revenue Divisional Officer, Anantapur, has been dismissed and Ex.A-4 Surveyor plan is confirmed. It is, therefore, rightly urged by Mr. Sanku that by virtue of dismissal of appeal by Revenue Divisional Officer, survey proceedings have reached finality. Hence, there is no necessity to dilate further on this aspect. I shall now turn to the aforesaid question of law.

In the judgment cited supra (1), it is held:

"The appellant challenged the decision of the High Court mainly on the ground that in reaching its conclusion on the question of age of the respondent on the date of election, the High Court took into consideration evidence which was not legally available for consideration and that the additional evidence was admitted without complying with the provisions of law.

Held, that the High Court allowed additional evidence to be admitted as it required that evidence either to enable it to pronounce judgment or for any other substantial cause within the meaning of Rule 27 (1) (b) of Order 41 of the Code of Civil Procedure. It could not be said that the High Court made the order for admission of additional evidence without applying its mind.

The appellate Court has power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment" but also for "any other substantial cause". There may be cases where even though the Court finds that it is able to pronounce judgment on the state of the record as it is and so it cannot strictly say that it requires additional evidence "to enable it to pronounce judgment" it still considers in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence "for any other substantial cause".

Held, also, that the omission of the High Court to record the reasons for allowing additional evidence does not vitiate such admission. The provision is not mandatory although where a further appeal lies from the decision of the appellate Court, the recording of the reasons may be necessary and useful to the Court of further appeal for deciding whether the discretion had been judicially exercised by the Court below or not and the omission to record the reasons must be treated as a serious defect.

When additional evidence was taken with the assent of both sides or without objection at the time it was taken, it is not open to a party to complain of it later on. As the appellant did not press his application against the admission of additional evidence, the objection must be overruled".

In the case on hand the plaintiff filed I.A. No. 39/1994 under Order 26 Rule 9 read with Section 151 of the CPC seeking appointment of Commissioner to note the physical features and to measure the plots of the parties and to submit a report and plan. When notice was given to other side, the learned Counsel for the respondents endorsed as under:

"Taken notice. I have no objection".

The petition was ordered on the same day i.e., 2-9-1994 and it is specifically recorded by the Principal Subordinate Judge that the respondent''s Counsel stated no objection and hence the petition was allowed and the Advocate-Commissioner was appointed. I, therefore, fail to understand as to how Mr. Prasad is contending that the very appointment of Commissioner is bad. On the contrary the scope of the work of the Commissioner as can be seen from the petition itself extended to the plots of all parties. Therefore, it appears that all the parties intended that an Advocate-Commissioner should inspect the plots and to measure the same so that the controversy may be set at nought. Thus, the Commissioner was rightly appointed in this case.

Another objection of Mr. Prasad is that the Commissioner''s Report and plan ought not to have been received in evidence without there being a petition under Order 41 Rule 27 of the CPC to receive additional evidence. The Constitution Bench considered the scope of Order 41 Rule 27 of the CPC and held that additional evidence can be admitted if the Court required that evidence either to enable it to pronounce judgment or for any other substantial cause, so much so that if the Court considers that in the interest of justice something which remains obscure should be filed up so that it can pronounce its judgment in a more satisfactory manner, such a case will be one for allowing additional evidence "for any other substantial cause". It is noteworthy that in the above case no reasons were recorded for receiving the additional evidence and yet the Constitution Bench held that it cannot be said that the High Court made the order without applying its mind. Whereas in the case on hand, weighty reasons are recorded for receiving the Commissioner''s Report and plan in evidence. In view of the ratio in the aforecited case, I do not find any merit in the contention of the learned Counsel for the appellants.

It is evident from the Commissioner''s Report that he measured the plot of the plaintiff and also the plot of defendant No. 1, which is on the western side and the plot of defendant No. 2, which is on northern side. He has only prepared a sketch showing the location of the aforesaid plots, but he also noted the measurements as well as the physical features. Evidently north-west corner of the plaintiff''s plot touches the road, which leads to Parasayanapalli which is on the western side, but there appears to be a small vent at the exact corner where the plaintiff is asserting that she has been enjoying the right of ingress and egress. Apart from the Commissioner''s Report and plan, Ex.A-4 which has since become final in view of the dismissal of appeal filed by defendant No. 1, by the Revenue Divisional Officer clinchingly show that the plaintiff''s plot touches the road at that corner. The lower appellate Court has taken correct view of the matter on the basis of the above evidence. Above all, the averments in the written statements of both the defendants go to show that their plots are triangular in shape and the apex point of both these triangular plots meet at Parasayanapalli road. If that is correct, the plot of plaintiff also, which is in between these two triangular plots, should be located in such a manner that north-western tip must join the very point. Viewing from that angle also the case of the plaintiff appears to be well founded. As already indicated above, this Court need not embark upon the facts. The substantial question of law being held in favour of the plaintiff, I hold that mere is no merit in this Second Appeal.

In the result, the Second Appeal is dismissed with costs confirming the judgment and decree in A.S. No. 18/1994 on the file of Principal Subordinate Judge, Anantapur.