H.V. Nagendrappa Case

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Page 1 Thursday, June 15, 2023

Printed For: 2150112 DEON DYLAN FERNANDES, School of Law Christ University
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2000 SCC OnLine Kar 164 : (2000) 5 Kant LJ 331 : 2000 AIHC
3866 : (2001) 2 ALT (DNC 5.1) 5 : (2001) 1 CCC 125 : (2001) 1
Civ LT 61 : (2000) 3 KCCR 1913
BEFORE T.N. VALLINAYAGAM, J.
H.V. Nagendrappa
Versus
M.H. Hanumappa and Others
Civil Revision Petition No. 198 of 1993
Decided on March 2, 2000
ORDER
1. Being aggrieved by the order dated 14-12-1992 passed by the
Civil Judge, Chitradurga, on I.A. 8 in O.S. No. 134 of 1986, the
petitioner has preferred the above revision petition.
2. The facts of the case as mentioned by the petitioner are : The
plaintiffs are claiming to be the owners of the property in question by
virtue of a sale deed dated 15-1-1945. The first defendant petitioner
claims the ownership of the said property by virtue of a sale deed dated
20-1-1981 in respect of 3 acres 13 guntas in Sy. No. 10. The land in
Sy. No. 10 has undergone changes inasmuch as divisions and sub-
divisions have taken place and the property which was bearing Sy. No.
10 has lost its characteristic and the sites have been formed and
buildings have come including a cinema theatre and silk reeling
industry. These factors are within the knowledge of the plaintiffs. They
have not taken steps to assert their possession or claim by virtue of the
alleged sale deed. However, one of the plaintiffs had filed a suit in O.S.
No. 201 of 1983 and had stated that the land measuring 3 acres 13
guntas belonging to the petitioner, is different from the one purchased
by him under a sale deed dated 15-1-1945. Similar objections were
also raised before the Licensing Authority and the same was rejected.
The suit in O.S. No. 201 of 1983 against Sri C.G. Mallappa was disposed
of in the light of the report submitted by the Commissioner. The
Commissioner had stated that the land in Sy. No. 10/1B measuring 3
acres 13 guntas does not form part of the land purchased by the
plaintiff in the said suit. Thus, the present suit filed by the plaintiffs is
hit by the principles of res judicata. Moreover, a cinema theatre has
already been constructed in the said land. In the present suit the
petitioner has denied the right, title and possession of the plaintiffs and
issues have been framed and the plaintiffs are required to prove their
title, possession and boundaries. Before starting of the evidence, an
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application is filed for appointment of a Commissioner.

3. Heard the learned Counsel for the petitioner.
4. The suit which is of the year 1986, out of which the revision
petition has arisen, is one for declaration of ownership and for
possession, apart from injunction. The suit appears to have been filed
in 1986 and the written statement filed somewhere in 1988 and issues
were framed in 1989. On 10-12-1991 an application under Order 26,
Rule 9 has been filed to appoint a Zonal Survey Officer as the City
Commissioner to measure Sy. No. 10 of former Jodi Cholagudda also
known as Garehatty, Chitradurga Taluk, with reference to the sale
deeds of the plaintiffs predecessors and the defendant and submit a
report and the sketch showing the areas purchased and the location of
the cinema theatre. The application was contested by the first
defendant contending mainly that the property has been divided, sub-
divided and again re-subdivided in the several bits of lands and the suit
property itself is in imaginary things and not in existence from the date
of the suit. There
Page: 333
can be no correction of the suit land, as the objections appears to be

not either serious or substantial. Reliance was placed upon the dictum
in AIR 1992 A.P. 300, which is to the following effect:
“When a party complains that the opposite party was attempting to

disturb the features and applies for appointment of a Commissioner
under Order 26, Rule 9 of the Civil Procedure Code, refusal to allow
such petition prevents the party from having clinching evidence in
proving the said fact. There may be cases where the matter in
dispute can be resolved by appointment of a Commissioner for
localising the site in dispute with reference to the title deeds and the
boundary dispute in regard to the vacant site is one such case”.
5. It is contended that before starting evidence, the Commissioner
should not be appointed and the plaintiff has to prove the title to the
possession. Reliance was placed in Jagannath B. v. N.C. Narayanappa1 ,
and except the two grounds no other grounds are raised in the
memorandum of grounds.
6. The dictum in Puttappa v. Ramappa2 , is as follows:
“In a suit for injunction, the question as to who is in possession of
the property, is a matter to be decided by the Court on the basis of
the evidence, either oral or documentary, to be adduced by the
parties. That function cannot be delegated to a Commissioner who
cannot find out as to who is in possession of the property”.
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7. The dictum in Jagannath's case, supra, is as follows:

“Where the dispute relates to the accuracy of the sketch of the suit
property filed along with the plaint, the need for appointment of
Commissioner under Order 26, Rule 9 for measuring and
demarcating the suit property with a sketch will arise only after the
parties have adduced evidence in regard to matters in issue in the
suit in order to better appreciate the evidence. The Court will appoint
a Commissioner only when both parties agree to be bound by his
report”.
8. On the basis of the facts and the contention raised before the Trial
Court, the Court has chosen to appoint a Commissioner. A new fact has
been brought before this Court stating that in another suit a
Commissioner was appointed and he has submitted a report which was
filed on 7-2-2000. This is a new point raised before this Court and this
Court cannot go into the question as to whether the earlier
Commissioner's report obtained in another suit can be made relevant
for the purpose of deciding the issues in the present suit out of which
the present revision has arisen. The only objection made in the counter
filed before the Trial Court was that the plaintiff must prove the case
and in the grounds of appeal
Page: 334
except relying upon the dictum of this Court, no further grounds are
urged against the impugned order. As rightly pointed out in the above
said dictum, the appointment of the Commissioner is a discretion to be
exercised by the Trial Court and in accordance with the circumstances
of each case. In this case the Trial Court has chosen to exercise the
powers for appointment of the Commissioner for the reasons given
therein which are not shown before me as perverse and not warranted
by the facts of the case.
9. In the above circumstances, I do not find any merit in the revision

petition. The revision petition is dismissed. As the suit is of the year
1986, I direct the Trial Court to dispose of the case within a period of
six months from the date of receipt of the certified copy of the order. I
also direct the High Court Office to return the records within a period of
two weeks from the date of receipt of the certified copy is made
available.
———
1. (1981) (2) Kar. L.J. 432 : AIR 1982 Kar. 233.
2. (1996) (2) Kar. L.J. 70 : ILR 1996 KAR 1443.

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SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.

Page 1 Thursday, June 15, 2023

BEFORE T.N. VALLINAYAGAM, J.

application is filed for appointment of a Commissioner.

can be no correction of the suit land, as the objections appears to be

“When a party complains that the opposite party was attempting to

7. The dictum in Jagannath's case, supra, is as follows:

9. In the above circumstances, I do not find any merit in the revision

2. (1996) (2) Kar. L.J. 70 : ILR 1996 KAR 1443.

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