HOTTAIAH Vs. KYASAPURADA

JUDGEMENT

(1.) THIS is the plaintiff second appeal.

(2.) APPELLANTS instituted O.S. 35 of 2003 before the Civil Judge (Jr. Dn.) at Challakere, arraigning the respondent as defendant for permanent injunction restraining the defendant from constructing a latrine room and digging a pit measuring 8' x 8' feet in the suit schedule property, being, land bearing Sy.No.3 measuring 27 acres 5 guntas. The defendant entered appearance, resisted the suit by filing written statement interalia contending that the suit schedule land measuring 8' x 8' feet is a part of the defendant's site bearing No.1 formed out of the gramatana and measures East to West 23 feet and North to South 20 feet, while the house constructed thereof measures East to West 19 1/2 feet and North to South 13 1/2 feet and that the pit in the site measures 8' x 8' which does not belong to the plaintiffs. The trial Court, in the premise of pleadings of parties, framed 4 issues, where afterwards the 3rd plaintiff was examined as PW- 1 and 2 other witnesses as PWs.2 and 3 and marked documents Exs.P1 to P5, while the defendant was examined as DW-1 and another witness as DW2 and marked documents as Exs.D1 to D.6. In the evidence of PW- 1, the report of the Commissioner and the sketch appended thereto, were marked as Exs.C1 and C2. The trial Court having regard to the material on record, declined to consider the Commissioner's report Exs.C1 and C2 on the premise that the Commissioner was not examined and accordingly answered the issues in the negative and dismissed the suit by judgment and decree dated 28-7-2006.

(3.) THIS appeal when admitted on 1-10-2010, the following substantial question of law was framed: "Whether the reasoning of the trial Court and the appellate Court in not considering the Commissioner's report in view of the law declared by this Court in M.R. Chandrasekharaiah Vs. Shivanna, (1981 (1) KLJ 361) about the impact of the report of the Commissioner under Order 26, Rule 10(2), is proper?"