ALEX DSOUZA Vs. DINOYSIUS MOHAN PINTO

JUDGEMENT

(1.) This appeal has been preferred by the defendant against the judgment and decree of the lower appellate Court whereby after reversing the judgment and decree of the trial Court, the suit of the plaintiff has been decreed in terms of the prayer made.

(2.) Plaintiffs filed the present suit for declaration that they are the owners of the suit schedule property and for recovery of possession. According to the schedule to the plaint, the suit property being one of the portions of the twin quarters was situated at Survey No. 129 of Athikudige in Koppa taluk with the boundaries set out therein. The defendant contested the suit by asserting that the suit property is situated in Survey No. 130 of the said village and he is the owner thereof. During the course of the trial, to ascertain as to whether the suit property is situated in Survey No. 129 or 130 the trial Court appointed the Assistant Director of Land Records as the Court Commissioner to make a survey and submit a report in this regard. The said officer in his report opined that the suit property is situated in Survey No. 130, but the plaintiffs objected to the said report on various grounds. Admittedly, despite the said objection, the Commissioner was not examined in the case. The documentary and oral evidence was led on behalf of the contesting parties to putforth their respective case. The trial Court on appreciation of evidence and particularly the report of the Court Commissioner held that the suit property is situated in Survey No. 130 and accordingly dismissed the suit.

(3.) On appeal by the plaintiffs, the lower appellate Court has reappraised the entire evidence in detail in paragraphs 20 to 23 of the impugned judgment. It has been held therein that the report of the Court Commissioner is mis-leading and incorrect. The lower appellate Court has clearly held that the plaintiffs have proved that the suit schedule property is in Survey No. 129 and they are the owners of the same. It was also found that the defendant is the tenant in the suit schedule property and his tenancy has been determined in accordance with law. Accordingly, after setting aside the judgment and decree of the trial Court, as noticed above, the suit was decreed.