Nataraj vs K.T. Byrappa

Ram Mohan Reddy, J.—Fifth plaintiff in OS No. 53/2003, aggrieved by the order dated 1.10.2012, of the Prl. Civil Judge, Jr. Dn. and JMFC, Chikkaballapura, allowing interlocutory applications under Order 18 Rule 17; Order 16 Rules 1 and 2 and Order 8 Rule 1A, read with section 151 CPC, filed by the defendant, has presented these petitions.

One Munegowda, instituted OS No. 53/2003 before the Principal Civil Judge [Jr. Dn.,] and JMFC, Chikkaballapur, arraigning the respondent as defendant for declaration of ownership of land bearing Sy. No. 82/2 measuring 1 acre 39 guntas, of Kuduvathi Village, Nandi Hobli, Chikkaballapur Taluk and for permanent injunction restraining the defendant from interfering with its peaceful possession and enjoyment as well as from damaging the borewell, cutting and removing the standing trees thereon.

That suit was opposed by filing written statement, inter alia, denying the claim of the plaintiff and asserting that the suit schedule property measured 29 guntas, while the defendant was the owner of the land in Sy. No. 82/1 measuring 1 acre 39 guntas including kharab of 2 guntas.

The Trial Court framed issues where afterwards Munegowda is said to have died and his legal representatives brought on record including the petitioner as 5th legal representative whence an additional written statement was filed by the defendant denying the claim of the legal representatives too.

Parties entered trial and after closure of the evidence, at the stage of arguments, defendant filed interlocutory applications (i) under Order 18 Rule 17 CPC to recall the witness, and examine the Taluka Surveyor; (ii) under Order 16 Rules 1 and 2 CPC to summon the said witness to speak to the Commissioners report; and (iii) under Order 8 Rule 1A and 2 CPC to produce documents as per list. In those applications, it was asserted that the suit was for a declaration over 1 Acre 39 guntas of land in Sy. No. 82/2 though Byramma instituted OS No. 357/2007 for declaration of title to land measuring 1 acre 39 guntas, including 2 guntas of kharab in Sy. No. 82/1 arraigning as defendants all the parties in OS No. 53/2003. In that suit, the Court, on an application of the plaintiff therein, by order, appointed the Taluka Surveyor as a Court Commissioner to survey and fix the measurements of both the agricultural lands in Sy. Nos. 82/1 and 82/2. That order having become final, since not called in question by the parties in OS No. 53/2003, the Court Commissioner submitted his report. Therefore, it was asserted that the report of the Commissioner recording the measurements of lands in Sy. No. 82/1 subject matter of OS No. 357/2007 as 1 acre 39 guntas including 2 guntas kharab, and land in Sy. No. 82/2 as measuring 29 guntas, subject matter of OS No. 53/2003, between the parties, was relevant material for a full adjudication of the points of dispute between the parties in OS No. 53/2003.

It is in this backdrop of facts that it was further asserted that the evidence of the Court Commissioner would clinch the disputed facts of measurement of the plaint schedule property in Sy. No. 82/2 and in Sy. No. 82/1 since both the properties are carved out of Sy. No. 82. In addition, it was stated that for bona fide reasons, the said document was not placed before Court at an earlier stage.

Those applications were opposed by filing objections, inter alia, contending that the applications are not maintainable in law and the documents to be produced cannot be received in evidence and therefore recalling D.W. 1 does not arise, in addition to the contention, that the Taluka Surveyor though appointed as Court Commissioner in OS No. 357/2007 cannot be examined as a witness in the suit. Moreover, it was asserted since the stage was for arguments, the applications are belated.

Lastly, it was contended that the Commissioner Report submitted in OS No. 357/2007 does not relate to the property in dispute in the suit and if the applications are allowed, plaintiffs would be put to great hardship and inconvenience.

The Trial Court, in the premise of pleadings of parties, formulated points for consideration and observed that the dispute between the parties is over the correct extent of the plaint schedule property i.e., Sy. No. 82/2 since plaintiff asserted that it measures 1 acre 39 guntas, while defendant asserted that it was only 29 guntas, although the defendant further asserted that the land in Sy. No. 82/1, measured 1 acre 39 guntas including 2 guntas kharab. The plaintiffs in the suit asserted that the revenue authority i.e., Tahsildar passed an order rectifying the entry in the revenue records recording the measurement of the plaint schedule property being Sy. No. 82/2 as 1 acre 39 guntas, nevertheless, those entries were subject matter of challenge by the defendant in appeal proceeding under the Karnataka Land Revenue Act, 1964. The Trial Court, noticed that this Court in WP No. 9173/2006 held that there was no iota of truth in the revenue Court''s orders. In that view of the matter, the Trial Court observed that it was bound to decide the dispute over the exact measurement of the suit schedule property in Sy. No. 82/2 i.e., whether it measured 1 acre 39 guntas as claimed by the plaintiffs or it measured only 29 guntas as asserted by the defendant. There being no dispute that the plaintiffs in OS No. 53/2003 were arraigned as defendants in OS No. 357/2007 instituted by one Byramma, none other than the sister of the defendant in OS No. 53/2003, in respect of land in Sy. No. 82/1 and in which Taluka Surveyor was appointed as Commissioner to identify the measurement of lands in Sy. Nos. 82/1 and 82/2, following which the report submitted, was relevant material over the measurements of the lands in question, the trial court opined that the said report has relevance in order to ascertain the true and real facts over the disputed measurements. In that view of the matter the Trial Court concluded that placing on record the evidence of the Taluka Surveyor and his report would pave way for a full adjudication of the dispute between the parties, more appropriately, over the exact and true measurements of the lands in Sy. No. 82/1 and 82/2, and accordingly allowed the applications by the order impugned.

Learned Counsel for the sole petitioner [since there is no material on record to state as to why other legal representatives/plaintiffs have not joined the sole petitioner] submits that the order of the Deputy Commissioner was confirmed by this Court in WP No. 9173/2006 and when asked to read the reasons assigned in the order impugned, submits that he will have to secure instructions.

Having read the order in WP No. 9173/2006 uploaded in the IT infrastructure of the Court, the learned Single Judge pointed out specifically that orders passed by the revenue authorities are not to be relied upon by civil courts while adjudicating the dispute and controversy over the measurement of agricultural land subject matter of suit.

Regard being had to the reasons assigned in the order impugned and the disputed fact to be adjudicated before Court, no legal grounds are made out for interference with the said order.

Petitions are dismissed with cost. However, since learned Counsel for the respondent does not press for cost, is waived.