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Judgment
H.S. Kempanna
Though this appeal is listed for admission with consent of learned counsel for the parties, it is taken up for final disposal. This is defendants'' appeal challenging the judgment and decree of the trial Court granting decree of permanent injunction in favour of the plaintiff and against them.
For the sake of convenience parties in this appeal would be referred to by their rankings as they are arrayed in the suit before the court below.
The brief facts of the case are as follows :-
The suit schedule A, B and C properties are the land measuring 2 acres each situated in S.No. 109 of Singapur Village, Yelahanka Hobli, Bangalore North Taluk, morefully described in the schedule appended to the plaint (hereinafter referred to as the ''suit schedule property'' in short).
3.2 The plaintiffs instituted the suit against the defendants seeking the relief of permanent injunction restraining the defendants or anybody claiming under them from interfering with their peaceful possession and enjoyment of the suit schedule properties.
3.3. It is the case of the plaintiffs that they are the owners in possession and cultivation of the land in S.No. 109 measuring to an extent of 2 acres each situated in Singapur village, Yelahanka hobli, Bangalore North Taluk. According to them they got the schedule properties granted to them in the year 1978 through the grant under darkast and all the records of the land including pahani stands in their name. It is their further case the revenue officials started to interfere with their possession over the suit schedule property and tried to dispossess them. The plaintiffs protested such interference. Thereafter, the Tahsildar cancelled the katha standing in their names in the year 1984. Hence, they approached this Court challenging the order of cancellation of kathas made in their favour in W.P. No. 10976-78/1994. The said writ petitions came to be allowed and the order passed by the Tahsildar cancelling the kathas were set aside by order dated 23.8.1994. Even thereafter, the revenue officials started interfering with their possession of the suit schedule properties and tried to dispossess them from cultivating the said lands and having no other alternative, they filed the suit for declaration and permanent injunction against the revenue officials viz. the Asst. Commissioner, Tahsildar and others in O.S. No. 1269/95, 1270/95 and 1273/95 before the city Civil Court and in the said suit, an interim order of maintaining status-quo was passed on 25.3.1995. It is further contended thereafter on contesting of the said suits they came to be decreed on 16.12.1998. Therefore, they are in peaceful possession, enjoyment and cultivation of the said lands. The Tahsildar and other revenue officials are aware of passing of the said judgment and decree in the above said suits and in order to defeat the fruits of the said judgment and decree, the revenue officials have set up the defendants to dispossess them from the suit schedule property with an intention to put up a compound. However, the plaintiffs protested the same, gave a representation on 28.5.1999 itself elucidating the order passed by the court and passing the judgment and decree against the defendants therein and requested not to interfere with their peaceful possession and enjoyment of the suit schedule lands. The defendants in spite of the same have threatened them that there is no such judgment and decree passed against them and it is not binding on them and further they also threatened saying that they are authorised to use the said lands for their work. Therefore, there was an apprehension of illegal dispossession from the defendants and as such they got issued legal notice on 3.6.1999 to the defendants which has been served on them, but they have not replied to the said notice. Even after service of the said notice, defendants continued to interfere with their peaceful possession and enjoyment of the suit schedule properties and have attempted to dispossess them illegally and therefore, the plaintiffs left with no other alternative filed the suit seeking the relief of permanent injunction.
3.4. After service of suit summons, the defendants entered appearance and contested the suit. They contended that the allegations and the averments in the plaint made against them throw burden of proof on the plaintiffs. They contended the suit brought by the plaintiffs is not maintainable either in law or on facts and the same is filed by suppressing the real facts to gain wrongful benefits if possible. It was further contended that the plaintiffs are not the owners in possession of the suit schedule properties and they have not produced any documents before the court in that connection. It is further contended that they are not aware of the plaintiffs filing the writ petition and the suits before the Hon''ble High Court and before the City Civil court and passing of the orders and judgments. Apart from the same they are not the parties to the said proceedings and as such it is not binding on them. It is further contended that the land bearing S. No. 109 of Singapura village totally measures 226 acres and it is a Government gomal land. The said entire extent is in possession of the Government. That being so, defendant with an intention to construct ground level reservoir for the benefit of the public approached the Deputy Commissioner with a request to grant 20 acres of land in their favour for the above said purpose. The Deputy commissioner on 20.5.1998 considering his request issued official letter to the Tahsildar and ordered to grant 20 acres of land in their favour. Thereafter based on the said directions of the Deputy Commissioner the Tahsildar through his Taluka Surveyor and revenue inspector measured the land by preparing the sketch of the grant of 20 acres of land. Based on the said measurement and the sketch of the Taluka Surveyor on 30.7.1998 possession certificate was issued to the defendant Board. Therefore, the defendants from 30.7.1998 and onwards are the owners in peaceful possession of 20 acres of land in S.No. 109 granted to them by the Government of Karnataka and it is bounded by the north- remaining land in Sy. No. 109, to the South - remaining land of Sy. No. 109, east - by land bearing Sy. No. 4 and 6 and remaining land in Sy. No. 109 and to the west - Sy. No. 102 and 108. It was further contended that they took possession of said 20 acres of land granted to them for the purpose for which it was granted and then issued work orders to commence the work of construction of ground level reservoir including allied works through M/s. Petron Global Constractors Bombay. Accordingly, work was commenced in the said land. The same is very essential and it is time bound project involving crores of rupees and as such if any disturbance is caused in the middle there will be lot of loss and damage to the defendant-Board. Apart from the same, the contractor will claim damages if the work is not completed in time. They further contended that the defendant board is a public service organisation and as such work cannot be stopped in the middle in the interest of the public. In fact, the plaintiffs have no right to claim gomal land and moreover the alleged schedule properties do not come or situate within 20 acres of land, which has been handed over to the defendant Board by the Government. Moreover, it is not the case of the plaintiff that the suit schedule properties come within the boundaries of the said land which is in possession of the defendant Board. That apart plaintiffs are not specific where exactly the schedule properties are situated out of 200 acres of land in S. No. 109. The burden is on the part of the plaintiffs to clarify their claim to revenue authorities if at all they have any such claim as the defendants are in possession and enjoyment of the said 20 acres of land. Further, according to them the plaintiffs themselves have tried to disturb their possession and in that regard on 29.6.1999, defendant -Board gave a police complaint against the plaintiffs. In fact, the entire land in the survey number particularly in 20 acres of land which has been allotted to the defendant-Board by the Government is not cultivable land as it is located in the hillock portion which is about 50 ft. in height from the ground level. As such, the construction of the reservoir project is in progress even before the plaintiffs instituted the suit and as the construction work of the defendant-board is well within the allotted 20 acres of land and not the land as alleged by the plaintiffs. In fact, the plaintiffs by furnishing created documents and by giving wrong boundaries and by taking advantage of the exparte order passed by the court are trying to restrain the defendant-Board only with an intention to encroach or grab the portion of the land belonging to the defendant-Board. That apart, further pleadings of the defendants are that the plaintiffs have shown in their alleged boundaries, given in the plaint schedule, towards north as the portion of S. No. 109, but the plaintiffs purposefully not explained that S. No. 109 northern portion belongs to whom and what is the total extent of S. No. 109. Moreover they have not produced any documents to show their title, right and their possession over the suit schedule properties and in the absence of the same, it is clear that the plaintiffs are not in possession of the suit schedule property as claimed by them and hence, on all these grounds, they sought for dismissal of the suit.
3.5. The trial Court on the basis of the above pleadings framed the following issues :-
Whether the plaintiffs prove their alleged lawful possession and enjoyment of the suit schedule property as on the date of suit?
Whether the plaintiffs further prove the alleged obstructions by the defendants?
Whether the plaintiffs are entitled to the suit reliefs sought against defendants?
What order or decree?
3.6. The plaintiffs in support of their case got examined plaintiffs 1 to 3 as PWs 1 to 3, produced 24 documents which came to be marked as exhibits P1 to P24. After completion of the evidence of the plaintiffs, plaintiff No. 2 i.e. PW.2 expired and her legal heirs have been brought on record.
3.7. The defendants in support of their case got examined one Mr. G.M. Shivaraju, Executive Engineer, as DW1 and produced 25 documents which came to be marked as exhibits Dl to D25.
3.8. After the closure of the evidence of both the parties, plaintiffs filed I.A.3 U/o. 26 Rule 9 of CPC for appointment of court commissioner to survey the suit schedule properties and to submit his report. The said application came to be allowed. Taluka Surveyor was appointed as court commissioner to survey the land and in turn the said surveyor submitted his report in detail. The trial Court observing that none of the parties filed their objections to the court commissioner''s report, it remained unchallenged and made as a part of the court records.
3.9. The trial Court thereafter on hearing the learned counsel for the respective parties and on the basis of the evidence and the documents on record held the plaintiffs have partly proved their case and accordingly, by its judgment dated 15.3.2011 decreed the suit of the plaintiffs against the defendants partly. Consequently, dismissed the suit of the plaintiffs 1 and 2. However, it granted the decree for permanent injunction in respect of plaintiff No. 3 in respect of ''C'' schedule property. It further directed the defendants to acquire A and B schedule properties in accordance with law and pay compensation to plaintiffs 1 and 2.
3.10. It is the correctness and legality of the said judgment and decree that has been assailed by the appellants/defendants in this appeal.
The learned counsel appearing for the appellants/defendants contended that the impugned judgment and decree of the trial Court cannot be sustained for the reason it has not taken into consideration the objections that had been filed by the defendants to the Commissioner''s report on 5.4.2010. In this connection he submitted after the commissioner filed his report, the defendants filed their objections to the same on 5.4.2010. It has been recorded in the proceedings of the court on the said day. The trial Court without looking into the same has wrongly recorded that both the plaintiffs and the defendants have not filed any objections to the Commissioner''s report and has proceeded on the footing that the commissioner''s report has remained unchallenged and thereby has come to a wrong conclusion in decreeing the suit partly. He further contended that if the objections which has been filed to the commissioner''s report had been taken into consideration, it would go contra to the report that had been submitted by the earlier surveyor who had conducted survey of the land that was given to the possession of the defendant - Board, which survey had been conducted on the directions of the Deputy Commissioner who has allotted the land in question to the defendant-Board. The report of the authorised earlier surveyor would go to show that the land allotted to the defendant-Board has no nexus with the suit schedule land. The suit schedule land and the land granted to the Board are different lands located in the same survey number i.e. 109 of Singapur village. Therefore, he submitted non consideration to the objections filed by the defendants to the Commissioner''s report has led the trial Court to come to a wrong conclusion in decreeing the suit partly which cannot be sustained.
4.1 He also contended even on merits having regard to the evidence on record since the lands which has been allotted to the defendant-board is in their possession in which they are putting up construction of a ground level reservoir for a public purpose, which construction has been taken up much prior to the institution of the suit would go to show that the plaintiffs have not made out any case for grant of the relief and despite the same, the court having partly decreed the suit contra to the material on record cannot be sustained and therefore, it be set aside by allowing the appeal.
On the other hand, learned counsel appearing for the contesting plaintiffs supporting the impugned judgment and decree submitted that the trial Court has not committed any error in granting the relief and as the said order is based on the evidence and the documents on record, it does not call for any interference and hence the appeal be dismissed.
Taking the rival submissions into consideration the evidence and the documents on record, the point that arises for my consideration is :-
Whether the impugned judgment and decree is sustainable?
It is the case of the plaintiffs that they have been granted the suit schedule land in darkast and they have perfected their title to the said property by filing O.S. No. 1269/95, 1270/95 and 1273/95. The decree passed in the said suits have not been challenged and therefore it has become final and as such they are the owners in possession and enjoyment of the suit schedule property. The defendants have no manner of right title over the suit schedule property. Despite the same, since the defendants were interfering with their peaceful possession and enjoyment, they have filed the suit for the relief of permanent injunction.
7.1. On the other hand, it is the case of the defendants that the land in S. No. 109 of Singapur Village measures to an extent of about 226 acres. The entire extent of the land is a gomal land belonging to the Government. As the defendant Board intended to put up a ground level reservoir, they approached the Government for sanction of 20 acres of land in S. No. 109 of Singapur village. Pursuant to their request made, the Government directed the Deputy Commissioner to allot 20 acres of land in the said Sy. No. 109 of Singapur village. The Deputy Commissioner in pursuance of the orders issued by the Government granted 20 acres of land in S. No. 109 of Singapur village and directed the jurisdictional Tahsildar to hand over possession to the defendant-Board of that extent of the land in the said survey number. In pursuance of the same, the Tahsildar after getting the land surveyed as per the directions of the Deputy Commissioner and after getting the surveyor report identified this 20 acres of land in the said survey number and handed over possession of the same to the Board. The land in question has no nexus of whatsoever with that of the suit schedule properties. Despite the same, the plaintiffs have filed the suit claiming that the defendant is trying to encroach upon their land, which has been allotted to them under darkast to which they have perfected their title by filing suits and are interfering with their peaceful possession by setting up a false claim. After the parties led their respective evidence on an application filed by the plaintiffs u/o. 26 Rule 9 of CPC, the commissioner came to be appointed to identify the land belonging to the plaintiffs i.e., the suit schedule properties and also the extent of the land that has been allotted to the possession of the defendant-Board. The Commissioner (The Taluka Surveyor) in response to the same conducted the survey of the land and submitted his report in detail to the court. After the submission of the said report, a perusal of the records of the court below discloses that on 5.4.2010, the defendant-Board has filed objections to the said report. This was not disputed to by the counsel for the plaintiffs on going through the proceedings of the trial Court from the records, which have been called for from the trial Court. The bone contention of the appellants/defendants is that the trial Court has proceeded without considering the objections filed to the Commissioner''s report which would go against the plaintiffs case. The court below in the impugned order at para 6 has recorded that after the commissioner submitted his report in detail, none of the parties have filed their objections to the court commissioner''s report. Hence, the same remained unchallenged and it is made a part of the court record: While appreciating the evidence and the documents on record for considering the case of the plaintiff for grant of the relief, the court has taken into consideration that the defendant has not filed any objections to the commissioner''s report which is in favour of the plaintiffs and has proceeded to pass the impugned judgment and decree. This in my view, as rightly contended by the counsel for the appellants/defendants cannot be sustained in view of the fact that the defendants had filed objections to the commissioner''s report which was on record and the same has not been considered by the trial Court.
7.2. The learned counsel appearing for the plaintiffs/respondents at this stage submitted that if that is the bone contention of the defendants that the objections to the commissioner''s report is not considered by the trial Court before proceeding ahead to consider the case of the respective parties, the impugned judgment and decree be set aside, the matter be remitted back to the court below with a direction to the trial Court to consider the objections filed by the defendants to the commissioner''s report and thereafter to dispose of the matter in accordance with law after affording opportunity to both the sides including leading of any further evidence in support of their respective case.
7.3. The learned counsel for the appellants/defendants also fairly submitted that he has no objection for the matter being remanded to consider the case of the defendants in the light of the objections filed to the commissioner''s report and also they be permitted to lead any other evidence if need be for the proper adjudication of the case. As already pointed out the record reveals that objections have been filed to the commissioner''s report on 5.4.2010 by the defendants. The trial Court ignoring this has recorded at para 6 that the parties have not filed any objections to the said report and since they have not filed any objections, it has remained unchallenged and therefore, it is taken on record. On the basis of the said presumption the court has proceeded to adjudicate the dispute between the parties, which has caused prejudice to the case of the defendants. However, in view of the objections having been filed by defendants which has not been considered, as submitted by the learned counsel for the parties, the impugned judgment and decree deserves to be set aside and the matter has to be remanded to the trial Court with a direction to consider the objections filed to the commissioner''s report, afford opportunity to both the parties to lead any additional evidence in support of their respective case and then dispose of the matter in accordance with law. In the result, for the foregoing reasons, I proceed to pass the following :-
ORDER
i) The appeal is allowed;
ii) The impugned judgment and decree is set aside;
iii) The matter is remanded to the trial Court with a direction to consider the objections filed to the Commissioner''s report on 5.4.2010 by the appellants/defendants and then to dispose of the matter in accordance with law after affording reasonable opportunity to both the sides to lead any additional evidence in support of their respective cases.
At this stage, learned counsel for the parties submitted that the suit is of the year 1999 and therefore, time limit be stipulated for disposal of the same having regard to the year in which the suit is filed.
In view of the submission made the trial Court is directed to dispose of the suit within 6 months from the date of receipt of the copy of the judgment and order passed in this appeal.
The learned counsel for the appellants/defendants and the respondent/plaintiff submit that they would appear before the court below on 15.6.2012 without notice to them. In view of the submission made, the trial court shall proceed with the suit from that date and dispose of the same.
Parties to bear their own costs.