SHANTAVEERAIAH S/O GURUSHANTHAIAH, VISHWANATH S/O GURUSHANTHAIAH, PRAKASH S/O GURUSHANTHAIAH AND RAJSHEKHAR S/O CHANDRASHEKARAIAH Vs. SMT. SHANTAVEERAMMA W/O P.S. PHANIYAPPA

JUDGEMENT

(1.) PETITIONERS when arraigned as Defendants in O.S. No. 147/2006 instituted by the Respondent for permanent injunction in respect of a vacant site bearing Katha Assessment No. 69/59 at Nayakanahatti Village, Challakere Taluk, resisted the suit by filing written statement interalia making a counter claim over a certain immovable property though not the suit schedule property. After a trial, the Civil Judge (Jr. Dn.), Challakere, allowed the suit and rejected the counter claim, by judgment and decree dated 11.03.2008 following which the Petitioners instituted RA. No. 50/2008 before the Senior Civil Judge, Challakere.

(2.) IN the appeal, Petitioners filed I.A. No. 1 under Order 26 Rule 9 Code of Code of Civil Procedure to appoint a Court Commissioner to measure the disputed property and inspect the same and submit a report. In the affidavit accompanying the application sworn to by the 4th Petitioner, it was stated that before the Trial Court, in the written statement, a specific contention was advanced that the counter claim property was the ancestral property of the Petitioners, in peaceful possession and enjoyment of the same without any interruption and therefore, the application to measure the disputed property and inspect the same and submit a report. In addition, it is stated that the measurement, boundaries and katha number as mentioned in the suit schedule and the counter claim schedule are not the same and are different and hence, to elucidate the truth, the necessity to appoint a Court Commissioner. That application was opposed by filing objections of the Respondent interalia contending that allowing the application would tantamount to collecting evidence by the Court Commissioner over, who was in possession of the suit schedule property and that the Defendants having taken a stand that the suit property did not exist while the description of the suit property was not the very same in the counter claim schedule property, it was for the Defendant to establish his counter claim. According to the Respondent, the appointment of the Commissioner was to fill up the lacuna and collect evidence at the appellate stage.

(3.) THE Lower Appellate Court before whom the applications were filed, considered the same and by a well -reasoned common order dated 18.12.2010, rejected the applications. The Court below, in the order impugned, observed that the appeal was filed in the year 2008 and ever since then upto the date of filing the I. As, the Appellants - Petitioners sought adjournments had prayed time to argue the appeal on merits. In addition, it was observed that in a suit for permanent injunction, it was for the party pleading possession and interference to prove the same while in the instant case, it was specifically pleaded by the Petitioners that the suit schedule property was not identical to the counter claim schedule property. In this backdrop of facts, the Court below opined that the appointment of the Commissioner would tantamount to collecting evidence over the factum of possession of the property in dispute. As regards the application for additional evidence, the Court, below, keeping in mind the specific contention of the Petitioners that there was no identity of the suit schedule property vis -Ã -vis the counter claim schedule property, and the Petitioners having failed to produce the records at the relevant stage before the Trial Court and in the absence of satisfactory explanation over not producing the documents at the relevant stage, cannot be permitted to fill up the lacuna in the case of the Petitioners, in the appeal. In other words, the applicants did not establish the requirements of Order 41 Rule 27 Code of Code of Civil Procedure that notwithstanding the exercise of due diligence, the fresh evidence was not within their knowledge or could not, after exercise of due diligence be produced by them at the time when the decree appealed against was passed, and hence disentitled to additional evidence.