In property disputes, the appellant must substantiate ownership with clear evidence; mere reliance on earlier weaknesses of the defendant does not suffice for overturning previous court decisions.

JUDGMENT :

V. SRISHANANDA, J.

Heard Sri.B.S.Nagaraj, learned counsel for the appellants and Sri.R.S.Ravi, learned Senior Counsel for the respondent.

2. Present second appeal is filed by the unsuccessful plaintiffs challenging the dismissal of the suit in O.S.No.236/2004 in respect of the property bearing No.6/118 measuring East to West 30 feet, North to South 22 feet, situated at Saligram village, K.R.Nagar Taluk bounded on East by road leading to rice mill and residential house of the plaintiff, West by the house of S.C.Javarayishetty and others, South by the road and North by plaintiff’s property.

3. Suit was one for declaration, possession and injunction. Validity of the dismissal of the suit was called in question in RA No.15/2012.

4. Learned Judge in the First Appellate Court while reappreciating the material on record, took into consideration the report of the Court Commissioner and also took into notice earlier suit in O.S.No.295/1970 and 18/1999 which has attained its finality with the vendors of the plaintiff and upheld the dismissal of the suit of the plaintiff by considered judgment dated 30.01.2020.

5. Being aggrieved by the same, plaintiff has filed the present appeal on following grounds and has raised following substantial questions of law:

Both the courts below have grossly erred in dismissing the suit, without considering the evidence on record and pleadings of the parties in the suit, and without answering to the Real question involved in the suit.

The trial court while answering on Issue No.1, not considered the documents produced by the Plaintiffs and the plaintiff in support of his contention he has marked Ex. P1 to Ex.P.34, and plaintiff examined himself as PW.1, and the suit schedule property is a portion of the property purchased through the sale deeds at EX. P1. and EX. P2, And the claim of the property by the defendant is different from the suit schedule property. Therefore, judgment and decree of the trial court holding an Issue No.1, as Negative is a perverse finding and not based on any material evidence. Hence, the both judgment and decree are unsustainable in law and the same is liable to be set aside by this Hon'ble court.

The 1 Appellate court committed a gross error in confirming the judgment and decree of the trial court without giving an opportunity to lead the Evidence, even after allowing the application filed under Order 26 Rule 9 R/W Section 151 of the Code of Civil Procedure as L.A.NO.3,; application filed under Order 41 Rule 27 of CPC as L.A.NO.V for production of Addi. Documents and Application under order VI rule 17 R/W Section 151 of CPC seeking permission to amend the plain1A. No.2. Therefore, the judgment and decree passed by the 1" Appellate court is liable to be set aside for recording fresh evidence as for the directions of this Hon'ble court.

The 1st Appellate court committed a gross error by not considering the evidence of the Cw 1, court commissioner, who is not discharged the duties of the court commissioner on what purpose of he was appointed, and thereby the impugned judgment and decree of both the courts below are liable to be set-aside by this Hon'ble court.

The 1st Appellate court Examined the court commissioner as CW-1 and it is very clear from his evidence that he has not discharged his duty for the purpose on which he was appointed as court commissioner; to find out the truth by measuring the schedule property and defendant's property on which she was claiming through the sale deed dated, 11.11.1968, Ex.D.27, the ownership and also not considered the Memo of instructions filed by both parties, and he has not taken any records