IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 09 TH DAY OF FEBRUARY 2011 BEFORE THE HON’BLE MR. JUSTICE JAWAD RAHIM MS.A. NO. 134 OF 2010 BETWEEN: SRI DEJAPPA NAIK, AGED ABOUT 89 YEARS, 5/0 APPU NAIK, R/AT ‘RADHA NILAYA’ NEAR : TALUK OFFICE, KARKALA TALUK. APPELLANT (BY SRI O.SHIVARAMA BHAT, ADV.,) AND SRI HARISHCHANDRA HEGDE, AGED ABOUT 59 YEARS, Sb SRIMATHI HEGGADATHI, R/AT “NADIMAR HOUSE” MARNE VILLAGE, AJEKAR POST, KARKALA TALUK, UDUPI DISTRICT - 574 117 RESPONDENT (BY SRI H.JAYA KARA SHETTY, ADV.,) ‘V MSA FILED RULE 1(u) OF ORDER XLIII R/W SEC.104 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 01-10-2010 PASSED IN R.A.NO.97/2006 (OLD NO.109/2003) ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, KARKALA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 21-03- 2006 PASSED IN O.S.NO.109/2003 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) KARKALA, AND THE MATTER IS REMITTING BACK TO THE TRIAL COURT TO DISPOSE THE CASE IN ACCORDANCE WITH LAW. THIS APPEAL IS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT Plaintiff’s second appeal against judgment in R.A.No.96/2006 dated 1.10.2010, on the file of the District and Sessions Judge, remanding O.S. No.109/2003 to the file of the learned Civil Judge(Jr.Dn), Karkala, to give opportunity to both sides and considered the commissioner’s report to decide the matter finally. 2. The appeal is admitted and taken up for final hearing by consent. 3. The contextual facts are: a) Appellant filed a suit in O.S.No.109/2003, seeking a decree of permanent injunction to restrain the respondent/defendant from interfering in any manner or trespassing on the property described in the schedule and also to restrain the respondent from putting up any construction thereon. In support of such relief, the plaintiff averred his father — Appu Naik had acquired the property bearing No.97/2 of Marne Village, Karkala Taluk and by virtue of grant, he was in physical possession and enjoyment of the same till his death. Upon death of Appu Naik (his father), he (plaintiff) acquired the said property as the only legal heir and has been in physical possession and enjoyment of the same. He alleged, the respondent who has no manner of right, title and interest is attempting to encroach the schedule property taking advantage of the fact that on the land abutting suit .(7• 7 4 property a building has been constructed for use of Bramhasthana by the villagers. The defendant who has no manner or right, title and interest in the Bramhasthana or the said abutting land, with ulterior motive attempted to encroach the suit property and was making attempt to put up a compound wall. b) The appellant/plaintiff further averred that hastily the defendant has put up a compound wall encroaching a portion of suit property belonging to him and on this ground sought an order of mandatory injunction to direct the defendant to remove the compound wall constructed upon a portion of the suit property and also for an order of permanent injunction to restrain him from interfering with his possession. c) The plaintiff further averred that the defendant has no right, title and interest either in the Brahmasthana or any portion of the land abutting to it. Therefore, the acts of the defendant are illegal. d) In response to the suit summons, the respondent/defendant entered appearance and resisted the suit mainly on the ground that plaintiff is not the owner of the property described in the schedule nor he has acquired the same in the manner averred in the plaint. The respondent claims to be in physical possession of the property described in the schedule and thereby disputed the plaintiff’s claim not only of the title, but also possession. e) Based on the material proposition in the pleadings, the learned trial Judge framed the following issues for consideration: 1) Does the plaintiff prove his exclusive possession and enjoyment of plaint ‘A’ schedule property by virtue of inheritance? 2) Does the plaintiff prove that the defendant illegally in violation of court constructed compound in the plaint ‘A’ schedule property after service of notice? 6 3) Does the plaintiff prove the alleged interference on the plaint ‘A’ schedule property by defendant? 4) Does the defendant prove that plaint ‘A’ schedule property has been using for worship of Brahmastana, Kodamanthaya and other daivas by co-owner of plaintiff and local people? 5) Does the defendant prove that the compound wall constructed at old collapsed compound wall in plaint ‘A’ schedule property? 6) What reliefs, the plaintiff is entitled in this suit? 7) What order? In the trial that ensued, the appellant tendered evidence as P.WJ. and placed reliance on Ex.P.1 to lEx.P4 while respondent tendered evidence as D.W.1 and examined one witness as D.W.2. 7 f) The learned trial Judge appointed a commission to conduct local inspection of the property described in the schedule and for ascertainment as to whether there was any encroachment on the suit property claimed by the plaintiff. g) The learned trial Judge having considered the evidence led by both the parties and the commissioner’s report opined that plaintiff had established he is the absolute owner in possession of the suit property and also held that appellant/plaintiff had established that respondent had encroached portion of the land by erecting a compound wall. Thus the learned trial Judge decreed the suit granting an order of permanent injunction restraining the respondent from interfering with the suit property and also directed the defendant by the order of mandatory injunction to remove the compound wall. 8 h) Assailing the said judgment of the First Appellate Court, the respondent was in R.A.No.97/2006. The learned Appellate Judge considering the evidence on record and finding of the learned trial Judge opined that the learned trial Judge has ignored the material evidence on record and has accepted the commissioner’s report without giving opportunity to the respondent/defendant. Therefore, the learned Appellate Judge set aside the judgment and decree of the learned trial Judge in O.S.NoJO9/2003 and remanded the case back to the Trial Court to give opportunity to both sides to question the commissioner’s report and then pass the order in accordance with law. i) Assailing the said judgment of the First Appellate Court, the plaintiff is in Miscellaneous Second Appeal. 9 3. The learned appellant’s counsel has urged several grounds against the impugned judgment of the First Appellate Court, amongst which, the main ground urged is that the evidence tendered by the plaintiff has remained unimpeached and therefore the plaintiff had succeeded in establishing he is the owner of the property in question. He would submit the plaintiff having succeeded in establishing he had acquired the property by succession from his father - Appu Naik was entitled to protect his possession which the learned trial Judge had rightly granted. He would submit that the trial Court had appointed a commissioner, who did not record any specific finding to such a report found support thereof. Appellant claims that he was in possession of the land in question and that the defendant had encroached portion of it and had constructed a compound wall. He would submit the learned trial Judge has rightly accepted the commissioner’s report, as the report submitted to the Court after local inspection depicting the factum of possession. He would submit as far as the title of the plaintiff is concerned, except for denial the defendant had not produced any document to establish his ownership. Therefore, the Trial Court has rightly granted a decree of injunction which was unjustifiably disturbed by the learned Appellate Judge. 4. The learned counsel has drawn my attention to the observation of the learned Appellate Judge in paragraph- 15 of the judgment in R.A.No.97/2006 to contend that such a reason is erroneous. Paragraph — 15 of R.A.No.97/2006 reads as follows: “Further the plaint schedule goes to show that the plaintiff is the owner of Sy.No.97/1BPL same survey number depicts by R.T.C extract Ex.P.1. But on careful perusal of commissioner’s report, the commissioner pointed out that the Sy.No.97/1BPL is not plotted by the survey authority, still Sy.No.97/1B is continuing. But the plaintiff has not got amended the plaint by mentioning the Sy.No.97/1B instead of 97/1BPL. Absolutely no evidence produced by the plaintiff to show that he is the owner of Sy.No.97/1B. Further the commissioner has narrated the commissioner is not able to say whether the defendant has reconstructed the compound wall around the above Daivasthanas at the place of old compound wall.” If we consider this narration of the court commissioner, the report of the commissioner is surrounded by cloud.” 5. In negation to all that is urged by the learned counsel for the appellant, the learned counsel for the respondent/defendant would submit that the judgment and decree of the trial Court was unsustainable as the plaintiff had not sought declaration of title nor filed a suit for possession. He draws my attention to the fact that plaintiff had filed a suit for bare injunction and later sought an order of mandatory injunction to 12 remove the alleged construction put by the defendant. He submit that in a suit for bare injunction the Trial Court could not have gone into the question of title in respect of the schedule property nor finding recorded by the trial Court on this issue is unsustainable. 6. As far as the commissioner’s report is concerned, he would submit that the respondent/defendant has filed objection to the commissioner’s report and all that is urged before the trial Court did not establish factum of possession of the plaintiff and therefore the decree of injunction could not have been granted: 7. As far as the order of mandatory injunction to remove the compound wall is concerned, he would submit such an order was impermissible in a bare suit for injunction without determination of the rights of the parties. In support of the impugned judgment of the Appellate Court he submits even though the Trial .. 7 13 Court had appointed a commissioner for local inspection, it was incumbent on the Trial Court to give opportunity to the respondents to contest this finding of the commissioner. He submits that even though the respondent had filed objection to the commissioner’s report, the Trial Court has rejected It and accepted the commissioner’s report without basis. He therefore supports the impugned judgment passed in R.A.No.97/2006. 8. ContentIons of both sides have been received my consideration. 9 . It is not in dispute that the plaintiff had not filed a suit for declaratory relief, but he filed a suit for • bare injunction in which, he added a prayer for grant of mandatory injunction. There can be no dispute that in such a suit when the plaintiff seeks only for an order of injunction, he will be required to establish factum of possession and factum possession should be lawful. 4 Incidentally, he may establish his lawful title to be in possession, but for grant of an order of mandatory injunction necessarily, the Trial Court had to frame an issue. In a bare suit for injunction, a decree of injunction could be granted on proof of factum of possession. To grant an order of mandatory injunction detailed enquiry regarding his right, title and interest in respect of the property from which alleged encroachment is to be removed has to be established. 10. It must be further noticed that the Courts are empowered to issue commission as envisaged under Order XXVI Rule 9 of the Code of Civil Procedure in different circumstances. Rule 9 of Order XXVI permits issuance of a commission for local inspection and when such report is submitted by the commissioner appointed by the Court after local inspection, it becomes part of the record, Once it becomes part of the record, undoubtedly it could be considered by the 15 Court while deciding the issues that arises for consideration. This issue has been decided by this Court in the case of PARAPPA AND OTHERS -VS BHIMAPPA AND ANOTHER reported in ILR 2008 KAR 1840, wherein this Court held thus: “The report of the Commissioner once submitted to the Court, shall be evidence in the suit and shall form part of the record. It is not necessary that the said Commissioner’s report is to be marked as an exhibit in the case. Similarly, it is not necessary that the said Commissioner is to be examined, to prove the contents of the said report — However, if either of the parties do not accept the correctness of the Commissioner’s report, it is open for them to file their written objections opposing the said Commissioner report. In order to substantiate the said objections and to request the Court not to act on the Commissioner’s report, with the permission of the Court, they have been given an opportunity to examine the Commissioner personally in the open court touching any of the matters referred to by him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation. Further held, if the party is successful in discrediting the entire report or a portion of the report in respect of which he has grievance, the Court in its discretion may reject the report of the Commissioner. If the report is rejected in total, it is open to the parties to have one more Commissioner appointed for the very same purpose — without marking the Commissioner’s report as exhibit, without the Commissioner being examined in the case, the said Commissioner’s report can be taken as evidence in the case — The Trial Court was not justified in rejecting the Commissioner’s report on the ground that it was not marked and he was not examined.” From the said dictum, it is evident that even though the report received by the Court through the commissioner appointed by it in exercise of powers 17 conferred by Rule -9 of Order XXVI of the Code of Civil Procedure, such a report will not be a substantive evidence. Parties are at liberty to question the finding of the commissioner and in this regard to file objections to it. The party which is not satisfied with the commissioner report can certainly requests the Court to reject the commissioner’s report. For this purpose, the Court to summon the commissioner for examination. In the instant case, the learned trial Judge had not summoned the commissioner for evidence, consequent to which, the contention of the respondent/defendant that the factual finding recorded is not correct has remained unconsidered. The respondent was entitled to an opportunity to question the correctness of the findings of the commissioner which opportunity the trial Court has denied to the respondent. The learned Appellate Judge has noticed the lapses on the part of the Trial Court in accepting the commissioners report and acting on it ignored the 18 fact that plaintiff had not established his title. Secondly, the commissioner’s report did not affirmatively indicate that the defendants had encroached on a particular portion of the suit property. The observation of the Appellate Court in paragraph - 15 •of the judgment extracted above, reveals the Appellate Judge has bestowed its serious concern to this aspect and has recorded a specific finding of fact that commissioner’s report suffered from discrepancies and was not free from dispute. 11. In this fact situation, apart from the decree for permanent injunction, the Trial Court could not have ventured to pass an order of mandatory injunction to demolish the wall allegedly constructed by the defendants. In a suit for bare injunction as in the instant case, the scope of enquiry is limited. If the plaintiff succeeds in establishing factum of possession, the order of injunction could be given only to protect 34> 19 his possession, but an order of mandatory injunction will not be justified. It all depends on the proof of title also. It will also depend on clear evidence that a particular portion was encroached by the defendants. Reference could be made to the decision of the Apex Court in the case of ANATHULA SUDHAKAR -VS P.BUCHI REDDY reported in AIR 2008 SC 2033, wherein the Apex Court has laid down a clear guidance as to the nature of enquiry to be conducted by the Trial Court and the nature of decree that could be sought in suits for bare injunction and suits for declaratory decrees. Ultimately, the Apex Court has summarized its conclusion in paragraph -17 which is as follows: “To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under: (a) Where a cloud is raised over plaintiff’s title and he does not have possession, a 20 suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff’s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff’s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantiafly in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where Disciplinary Inquiry jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title either specific or implied as noticed in Annaimuthu Thevar (2005 AIR SCW 3516). Where the averment regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. (d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.” 12. I am therefore satisfied that the learned Trial Judge has not examined the case made out by the plaintiff and also the defence of the respondents in the right perspective. The finding of the learned Trial Judge seems to be mainly on the basis of the commissioner’s report, which the learned Appellate 23 Judge has rightly held as improper. However, it is necessary to notice that the learned Appellate Judge has directed the Trial Court to consider the commissioner’s report. The learned Appellate Judge has passed an order of limited remand. On re appraisal of the evidence, I am satisfied that not only the issue regarding acceptance or rejection of the commissioner’s report after giving opportunity to the defendant could be considered by the Trial Court, the Trial Court should also examine as to whether the plaintiff’s evidence supports his title and as to whether a decree for mandatory injunction could be granted in a suit for bare injunction. In the result, though I find no substance in the contention of the appellant that the Appellate Court has committed an error in directing the Trial Court to reconsider the commissioner’s report after giving opportunity to the defendant, I am satisfied from the submission of the appellant’s counsel that the matter requires total 24 remand to direct the trial court to consider the entire material afresh on record and to dispose of the suit in accordance with law. 13. In this view, the appeal is disposed of, confirming the judgment of the Appellate Court in R.A.NO.97/2006, on the file of the Fast Track Court, Karkala, the Trial Court with further direction to the Trial Court to de novo consider the matter on record and after giving opportunity to the defendant to contest the commissioner’s report and decide the issues between the parties finally in accordance with law. 14. In the circumstances, no order as to costs. Sd’ JUtCE VK/Msu