- 1 - NC: 2025:KHC-D:1289 RSA No. 6198 of 2012 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 23RD DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 6198 OF 2012 (-) BETWEEN: SIDDAPPA S/O. HANAMANT SAPTASAGAR, SINCE DECEASED BY HIS LRS. SRI. SHIVAPPA S/O. SIDDAPPA SAPTASAGAR, AGE: 44 YEARS, OCC: AGRICULTURE, R/O.MUGALKHOD, TQ: RAIBAG, DIST: BELGAUM. …APPELLANT (BY SRI. SHRIHARSH A. NEELOPANT, ADVOCATE) AND: BASAPPA S/O. BHIMAPPA HOSUR, AGE: MAJOR, OCC: AGRICULTURE, R/O.MUGALKHOD, TQ: RAIBAG, DIST: BELGUM SINCE DEAD BY HIS LR’S R1(a) SMT. SATTEWWA W/O. BASAPPA HOSUR AGE: 60 YEARS, OCC: HOUSEWIFE, R/O. MUGALKHOD, TQ: RAIBAG, DIST: BELGUM. R1(b) SMT. GANGAVVA W/O. BASAPPA HOSUR AGE: 46 YEARS, OCC: HOUSEWIFE, R/O. MUGALKHOD, TQ: RAIBAG, DIST: BELGUM. V N BADIGER Digitally signed by V N BADIGER Date: 2025.01.28 11:21:14 +0530 - 2 - NC: 2025:KHC-D:1289 RSA No. 6198 of 2012 R1(c) SRI. VITTAL S/O. BASAPPA HOSUR, AGE: 22 YEARS, OCC: AGRICULTURE, R/O. MUGALKHOD, TQ: RAIBAG, DIST: BELGUM. R1(d) SMT. SIDDAWWA W/O. YALLAPA MAKASHI AGE: 20 YEARS, OCC: HOUSEWIFE, R/O. JOKANATTI, TQ: GOKAK, DIST: BELAGAVI. R1(e) SRI. BHIMAPPA S/O. BASAPPA HOSUR AGE: 19 YEARS, OCC: STUDENT, R/O. MUGALKHOD, TQ: RAIBAG, DIST: BELGUM. R1(f) SRI. SHANKAR S/O. BASAPPA HOSUR, AGE: 18 YEARS, OCC: STUDENT, R/O. MUGALKHOD, TQ: RAIBAG, DIST: BELGUM. …RESPONDENTS (R1 (A) TO R1(F) SERVED UNREPRESENTED) ------- THIS RSA IS FILED U/SEC. 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 03.09.2012 IN R.A. NO.37/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., RAIBAG, CONFIRMING THE JUDGMENT AND DECREE DATED 20.07.2006 IN O.S.NO.217/2002 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) RAIBAG, AND ALLOW THE ABOVE APPEAL, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 3 - NC: 2025:KHC-D:1289 RSA No. 6198 of 2012 CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT This Regular Second Appeal is filed by the plaintiff challenging the judgment and decree dated 03.09.2012 in R.A.No.37/2008 on the file of the Senior Civil Judge and JMFC, Raibag (for short “the First Appellate Court”) dismissing the appeal and confirming the judgment and decree dated 20.07.2006 in O.S.No.217/2002 on the file of the Principal Civil Judge (Jr.Dn), Raibag (for short “the Trial Court”) dismissing the suit of the plaintiff. 2. For the sake of convenience, parties are referred to as per their rank before the Trial Court. 3. It is the case of the plaintiff that he is the owner in possession of the suit schedule property. It is stated that the plaintiff is the adoptive son of Sri. Hanamanth S/o. Bharmappa and the land bearing Survey No.706/4E belonged to the defendant situate towards the west of the suit schedule property. It is the grievance of the plaintiff that the defendant had purchased a portion of the land bearing Survey No.706/4E situate towards western side of the suit schedule property, however shown the discrepancy in boundaries in his sale deed. - 4 - NC: 2025:KHC-D:1289 RSA No. 6198 of 2012 Hence, the plaintiff has filed O.S.No.217/2002 seeking relief of declaration with consequential relief of permanent injunction in respect of the suit schedule property. 3.1. On service of notice the defendant entered appearance and filed detailed written statement denying the averments made in the plaint. 3.2. Based on pleadings on record, the Trial Court framed issues for its consideration. In order to prove his case, plaintiff has examined two witnesses as PW1 and PW2 and produced 7 documents and same were marked as Ex.P1 to Ex.P7. 3.3. On the other hand, the defendant has examined the witnesses as DW1 and DW2 and no documents were produced. The Court commissioner appointed was examined as CW1 and marked Ex.C1. 3.4. The trial Court after considering he material on record, by its judgment and decree dated 20.07.2006 dismissed the suit and feeling aggrieved by the same, the plaintiff has preferred R.A.No.37/2008 and same was resisted by the defendant. The First Appellate Court, after considering - 5 - NC: 2025:KHC-D:1289 RSA No. 6198 of 2012 the material on record, by its judgment and decree darted 03.09.2012 dismissed the appeal consequently confirmed the judgment and decree passed in O.S.No.217/2002. Feeling aggrieved by the plaintiff has preferred this appeal. 4. This Court, vide order dated 04.02.2014 framed the following substantial questions: 1) Whether both the Courts have misinterpreted report of the Commissioner marked as ‘C1’ inspite of categorical admission of the Commissioner examined in the case? 2) Whether both the Courts below have not considered the material evidence placed on record and thus judgment of the trial Court and the first appellate Court are perverse and capricious in the light of the contents mentioned in ‘C1’? 5. I have heard Sri. Shriharsh A Neelopant, learned counsel appearing for the appellants. The respondents were served and remained absent. 6. Sri.Shriharsh A Neelopant, learned counsel appearing for the appellant, contended that the both the Courts - 6 - NC: 2025:KHC-D:1289 RSA No. 6198 of 2012 below have committed an error in not considering the fact that the plaintiff has produced sale deed dated 15.11.1990 (Ex.P7) to substantiate his title in respect of the suit schedule property. Therefore, both the Courts below have committed an error in dismissing the suit. 7. Having taken note of the arguments advanced by the learned counsel appearing for the appellant it is not in dispute that the plaintiff has produced the sale deed dated 15.11.1990 (Ex.P7) to substantiate his title in respect of the suit schedule property. On the other hand, the defendant has not produced any document to establish his right in respect of the claim made in the written statement. That apart, the Trial Court has appointed a Court Commissioner to file report with regard to any encroachment that might have been made by the parties and in this regard, report of the Commissioner with the survey map was marked as Ex.C1. The Court Commissioner was examined as CW1. However, the Trial Court has rejected the report of the Commissioner and as such, passed the impugned judgment and decree, which requires to be interfered with by this Court. In this regard, it is well established principle in law that in the event the Trial Court reject the report of the - 7 - NC: 2025:KHC-D:1289 RSA No. 6198 of 2012 Court Commissioner and under such circumstances, it is open for the Trial Court to appoint one more Commissioner to find fact relating to discover the truth. In this regard, it is relevant to cite the judgment of the Hon’ble Supreme Court in the case of Ram Lal and others v. Salig Ram and others1 wherein paragraphs 10, 17 and 18 read as under: “10. Assailing the impugned judgment of the High Court, learned counsel for the plaintiff-appellant has strenuously argued that the demarcation was carried out by the Local Commissioner in the presence of parties and after hearing them; and his report, when accepted by the Trial Court and the First Appellate Court, could not have been discarded by the High Court only on the ground of the so-called want of fixing three permanent points. Learned counsel has also argued that apart from the report of Local Commissioner, there had been oral and documentary evidence on record to prove the encroachment by the defendants and as such, the High Court had been in error in assuming that there was no other evidence besides the Local Commissioner’s report on the question of encroachment by the defendants. 17. The fact that the Local Commissioner’s report, and for that matter a properly drawn up report, is requisite in the present case for the purpose of 1 AIR 2019 SC 729 - 8 - NC: 2025:KHC-D:1289 RSA No. 6198 of 2012 elucidating the matter in dispute is not of any debate, for the order dated 24.01.1991 passed by the First Appellate Court having attained finality whereby, additional issues were remitted for finding on the basis of Local Commissioner’s report. In the given set of facts and circumstances, we are clearly of the view that if the report of the Local Commissioner was suffering from an irregularity i.e., want of following the applicable instructions, the proper course for the High Court was either to issue a fresh commission or to remand the matter for reconsideration but the entire suit could not have been dismissed for any irregularity on the part of Local Commissioner. To put it differently, we are clearly of the view that if the Local Commissioner’s report was found wanting in compliance of applicable instructions for the purpose of demarcation, it was only a matter of irregularity and could have only resulted in discarding of such a report and requiring a fresh report but any such flaw, by itself, could have neither resulted in nullifying the order requiring appointment of Local Commissioner and for recording a finding after taking his report nor in dismissal of the suit. Hence, we are unable to approve the approach of High Court, where after rejecting the Commissioner’s report, the High Court straightway proceeded to dismiss the suit. The plaintiffs have been asserting encroachment by the defendants on their land and have also adduced oral and documentary evidence in that regard. As noticed, the First Appellate Court had allowed the appeal and decreed the suit filed by the plaintiff not only with - 9 - NC: 2025:KHC-D:1289 RSA No. 6198 of 2012 reference to the Commissioner’s report but also with reference to the other evidence of the parties. Unfortunately, the High Court appears to have overlooked the other evidence on record. 18. In the totality of circumstances, in our view, for just and effectual determination of all the questions involved in the matter, the proper course is of issuing a fresh Commission and for direction to the Trial Court to decide the entire suit afresh on the issues as originally framed as also on the additional issues after taking the report of the Local Commissioner afresh and affording an opportunity to the parties to submit their objections, if any.” 8. Following the declaration of law made by the Hon’ble Supreme Court in the above case and taking into account the fact that the Court Commissioner has been examined as CW1 and therefore, the Trial Court has committed an error in ignoring the report of the Commissioner marked as Ex.C1. Hence, I find force in the submission made by the learned counsel appearing for the appellant that the Trial Court has committed an error in appreciating the factual aspects on record and that apart the First Appellate Court has not examined the case as under Order XLI Rule 31 of CPC and has committed an error in confirming the judgment and decree - 10 - NC: 2025:KHC-D:1289 RSA No. 6198 of 2012 passed by the Trial Court without re-appreciating the law on the rejection of commissioner report. Therefore, the substantial question of law framed above favours the plaintiff and this is a fit case to remand the matter to the Trial Court for appropriate adjudication in the light of the facts on record. Hence, I pass the following: ORDER i) The appeal is allowed. ii) The judgment and decree dated 03.09.2012 in R.A.No.37/2018 passed by the Senior Civil Judge and JMFC, Raibag is hereby set aside. iii) Consequently, the judgment and decree dated 20.07.2006 in O.S.No.217/2002 passed by the Principal Civil Judge (Jr.Dn), Raibag is set aside and matter is remanded to the Trial Court for fresh consideration in the light of the observation made above after affording opportunity to both the sides. Sd/- (E.S.INDIRESH) JUDGE YAN CT:ANB List No.: 1 Sl No.: 33