Karnataka High Court
Kencharangaiah vs Karikenchaiah on 10 February, 2020
Author: Nataraj Rangaswamy
Bench: Nataraj Rangaswamy
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF FEBRUARY 2020
BEFORE
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
REGULAR SECOND APPEAL NO.780 OF 2013 (DEC/INJ)
BETWEEN:
1. KENCHARANGAIAH
S/O LATE KENCHAIAH
SINCE DEAD BY HIS
LEGAL REPRESENTATIVES
1a) SMT. PARVATHAMMA
W/O LATE KENCHARANGAIAH
AGED ABOUT 55 YEARS
R/A RANGEGOWDANADODDI
DHAKHALE,
BIDADI HOBLI-562109
RAMANAGARA TALUK AND DISTRICT.
1b) SRI. K. NAGARAJA
S/O LATE KENCHARANGAIAH
AGED ABOUT 40 YEARS
R/A RANGEGOWDANADODDI
BILLAKEMPANAHALLI DHAKHALE,
BIDADI HOBLI-562109
RAMANAGARA TALUK AND DISTRICT.
1c) SMT. LAKSHMINARASAMMA,
D/O LATE KENCHARANGAIAH
W/O PARAMESHWARA
AGED ABOUT 30 YEARS
2
R/AT NO.366/A, 6TH MAIN,
3RD CROSS, EWS, K.S.TOWN,
KENGERI UPANAGARA,
BENGALURU-560060.
1d) SRI. LOKESH
S/O LATE KENCHARANGAIAH,
AGED ABOUT 25 YEARS,
R/A RANGEGOWDANADODDI
BILLAKEMPANAHALLI DHAKHALE,
BIDADI HOBLI-562109,
RAMANAGARA TALUK AND DISTRICT.
... APPELLANTS
(BY SRI. PRADEEP J.S., ADVOCATE FOR SRI. N.SUBBA
SHASTRY, ADVOCATE)
AND:
1. KARIKENCHAIAH
AGED ABOUT 72 YEARS
S/O LATE NARASAMMA,
R/A RANGEGOWDANADODDI,
BILLAKEMPANAHALLI DHAKHALE,
BIDADI HOBLI-562109
RAMANAGARA TALUK AND DISTRICT.
2. K. RANGASWAMY
AGED ABOUT 69 YEARS
S/O KURIRANGAIGH
#115, EAST ANJANEYA TEMPLE STREET,
(OPP. BRIGADE MM COMPLEX)
YEDIYUR,
BENGALURU-560082.
3. SMT. NAGAMMA
W/O RANGAIAH
AND D/O KENCHAIAH,
3
MAJOR IN AGE,
#14, 11TH MAIN, SHAKAMBARI NAGAR,
BANASHANKARI,
BENGALURU-560078.
...RESPONDENTS
(BY SRI. PATEL D. KAREGOWDA, ADVOCATE FOR
RESPONDENT NO.1;
RESPONDENT NOS.2 AND 3 - SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CIVIL PROCEDURE CODE AGAINST
THE JUDGMENT AND DECREE DATED 24.09.2012 PASSED
IN R.A.NO.61/2009 ON THE FILE OF PRINCIPAL SENIOR
CIVIL JUDGE AND CJM, RAMANAGARA, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 21.02.2009 PASSED IN O.S.NO.143/2001 ON THE
FILE OF PRINCIPAL CIVIL JUDGE (JR.DN.) AND JMFC,
RAMANAGARAM.
THIS REGULAR SECOND APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This Regular Second Appeal is filed by the defendant No.2 in the suit challenging the Judgment and Decree dated 21.02.2009 passed by the Prl.Civil Judge (Jr.Dn.) and JMFC at Ramanagaram in O.S.No.143/2001 and the concurring Judgment and Decree dated 24.09.2012 passed by the First Appellate Court (Prl. Senior Civil Judge and 4 CJM at Ramanagara) in R.A. No.61/2009. Both the Courts declared that the plaintiff is the full and absolute owner of the suit schedule properties and also declared that the survey numbers as found in Exs.P1, P2 and P3 were incorrect and that the plaintiff had purchased the suit schedule properties in terms of the three sale deeds at Exs.P1, P2 and P3.
2. For the sake of convenience and easy understanding, the parties shall henceforth be referred to as they were arrayed before the Trial Court. The appellant herein was the defendant No.2, while the respondent No.1 was the plaintiff, respondent Nos.2 and 3 were the defendant Nos.1 and 3 before the Trial Court.
3. The plaintiff filed O.S.No.143/2001 for declaration that he is the owner of the suit schedule properties and to declare that the properties shown in 'A', 'B', 'C' and 'D' schedule were in fact the properties bearing Sy.Nos.25/15, 25/17 and two portions of land in Sy.No.28/6.
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4. It is the claim of the plaintiff that he had purchased the land bearing Sy.No.25/15 in terms of a sale deed dated 21.10.1974. He also contended that he purchased Sy. No.25/17 under the said sale deed, but the survey number was wrongly shown as Sy. No.25/34. The plaintiff also contended that in terms of a sale deed dated 01.05.1967, he had purchased Sy.No.28/6 from the father of the defendant Nos.2 and 3. However the survey number was wrongly shown as Sy.No.25/31. Likewise, he contended that in terms of another sale deed dated 18.10.1967, he had purchased the land bearing Sy.No.28/6 from the father of the defendant Nos.2 and 3, but the survey number was wrongly shown as Sy.No.25/31. He further contended that when durasth proceedings were initiated by the survey department, it was found that the survey numbers that were mentioned in the sale deed of the plaintiff did not conform to the boundaries and the extent mentioned therein. The plaintiff therefore contended that the survey numbers were all wrong but the boundaries of the suit schedule properties 6 were correct and it corresponded to the survey numbers that were mentioned in the plaint. The survey authorities thereafter prepared a detailed sketch showing the correct survey numbers as per the hissa mojini uttaar and the akarband settlement. The plaintiff immediately approached the defendants and demanded them to execute the rectification deeds with correct survey numbers and extent. However, the defendants evaded the request of the plaintiff. Thus, in order to get the revenue documents, the plaintiff approached the survey authorities and obtained the mutation in respect of the suit schedule properties in his name. The katha of the suit property was thereafter transferred to the name of the plaintiff. The defendants attempted to take advantage of the mistakes in the sale deeds and tried to lay a false claim over the suit schedule properties. Thus the plaintiff contended that the cause of action for the suit arose during January 2001 when the plaintiff learnt about the mistake in the survey numbers. Therefore the plaintiff filed a suit for declaration that he is the owner of the suit 'A', 'B', 'C' and 'D' schedule 7 properties and to declare that the properties shown in the sale deeds corresponded to the actual survey numbers and not the ones which are mentioned in the sale deeds.
5. The defendant No.2 alone contested the suit by filing his written statement. In his written statement, he contended that the plaintiff had approached the Court with unclean hands since the defendant No.2 had challenged the survey proceedings before the Assistant Commissioner, Ramanagaram sub-division in R.A.(LKP)No.68/2001-2002 and the Assistant Commissioner had set aside the mutation entries made in favour of the plaintiff and remanded the case to the Tahsildar for fresh enquiry. He contended that as on the date of filing the suit, the plaintiff was neither the owner of the suit properties nor he was in possession of the same.
6. Based on the aforesaid contentions, the Trial Court framed the following issues:
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"1. Whether the plaintiff proves that he is the absolute owner of suit schedule properties?
2. Whether the plaintiff further proves that due to oversight, the Sy.No.'s pertains to schedule properties, have been wrongly stated?
3. Whether the plaintiff proves that he is in possession and enjoyment of the suit schedule properties?
4. Whether the plaintiff proves that the defendants are trying to interfere into the suit schedule properties?
5. Whether the 2nd defendant proves that suit is not maintainable for the reasons stated in para-2 of his written statement?
6. Whether the 2nd defendant proves that suit is barred by law of limitation ?
7. Whether the plaintiff is entitled for the reliefs as prayed?
8. What Decree or Order?"
7. Before the Trial Court, the plaintiff was examined as PW.1 and he marked Exs.P1 to P23. The defendant No.2 was examined as DW.1 and he marked Exs.D1 to D34.
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8. The Trial Court after considering the evidence on record and after comparing the boundaries of the actual Sy.Nos.25/15 and 25/17 held that what was sold to the plaintiff by the defendant No.1 in terms of the sale deed dated 21.10.1974 - Ex.P1 were Sy.Nos.25/15 and 25/17 and that the survey numbers were wrongly mentioned as Sy.Nos.25/25 and 25/34. The Trial Court relied upon the evidence of DW.1, wherein he claimed that:
"zÁªÁ D¹ÛUÀ¼ÀÄ £À£ÀUÉUÉÆvÀÄÛ. zÁªÁ D¹Û C£ÀĸÀÆa 'J' £À°è £ÀªÀÄÆ¢¹zÀ ¸ÀªÉð £ÀA.25/15 PÉëÃvÀæ 8 UÀÄAmÉUÉ ZPÀÄ̧A¢ £ÀªÀÄÆ¢¹zÀÄÝ, CzÀÄ ¸ÀjAiÀiÁVgÀÄvÀÛzÉ."
He further stated as follows:
"zÁªÁ '©' C£ÀĸÀÆa ¸ÀªÉð £ÀA.25/17 PÉëÃvÀæ 3 UÀÄAmÉ EzÀPÉÌ ZÀPÀÄ̧A¢ £ÀªÀÄÆ¢¹zÀÄÝ, CzÀÄ ¸ÀjAiÀiÁVzÉ."
He further stated as follows:
"C£ÀĸÀÆa '¹' ¸ÀªÉð £ÀA.28/6 PÉëÃvÀæ 15 UÀÄAmÉUÉ £ÀªÀÄÆ¢¹zÀ ZÀPÀÄ̧A¢AiÀÄ°è GvÀÛgÀPÉÌ zÉêÀ¸ÁÜ£ÀzÀ D¹ÛAiÀÄ£ÀÄß ºÉÆgÀvÀÄ¥Àr¹, ¥ÀƪÀð ¥À²ÑªÀÄ ªÀÄvÀÄÛ zÀQëtPÉÌ £ÀªÀÄÆ¢¹zÀÄÝ ¸ÀjAiÀiÁVzÉ. zÁªÁ C£ÀĸÀÆa 'r' ¸ÀªÉð £ÀA.28/6 PÉëÃvÀæ 10 UÀÄAmÉ EzÀPÉÌ ZÉPÀÄ̧A¢ £ÀªÀÄÆ¢¹zÀÄÝ GvÀÛgÀPÉÌ zÉêÀ¸ÁÜ£ÀzÀ D¹ÛAiÀÄ£ÀÄß 10 ºÉÆgÀvÀÄ¥Àr¹, G½zÀ ZÉPÀÄ̧A¢ ¸ÀjAiÀiÁVzÉ. F J¯Áè D¹ÛUÀ¼ÀÄ ©®èPÉA¥À£ÀºÀ½î UÁæªÀÄPÉÌ ¸ÉÃjgÀÄvÀÛªÉ. zÁªÁ '¹' ªÀÄvÀÄÛ 'r' C£ÀĸÀÆa D¹ÛAiÀÄ GvÀÛgÀPÉÌ gÀAUÀ¸Áé«Ä EªÀgÀ d«ÄãÀÄ DzÀ £ÀAvÀgÀ HjUÉ ¸ÀA§AzsÀ¥ÀlÖ zÉêÀ¸ÁÜ£ÀzÀ d«ÄãÀÄ EgÀÄvÀÛzÉ J£ÀÄߪÀÅzÀÄ ¸ÀļÀÄî."
9. The Trial Court compared the boundaries of Sy.No.28/6 and also compared the same with the boundaries as mentioned in Exs.P3 and P2 which were the sale deeds in respect of the 'C' and 'D' schedule properties respectively and held that the property that was actually conveyed by the father of defendant Nos.2 and 3 was the land in Sy.No.28/6 and not Sy.No.25/31.
10. The Trial Court therefore decreed the suit and declared that the plaintiff was the owner of the suit 'A', 'B' 'C' and 'D' schedule properties.
11. Being aggrieved by the aforesaid Judgment and Decree of the Trial Court, the defendant No.2 alone filed R.A.No.61/2009. The First Appellate Court framed points for consideration, secured the records of the Trial Court and after considering the evidence on record, held 11 that the plaintiff had proved that what was purchased under Ex-P1 were the lands in Sy.No.25/15 and Sy. No.25/17 and not Sy.No.25/25 and Sy. No.25/34 as shown in Ex.P1. The First Appellate Court also held that the boundaries as set out in Exs.P2 and P3 relate to the property in Sy.No.28/6 and not Sy.No.25/31. The First Appellate Court therefore dismissed the appeal and confirmed the Judgment and Decree of the Trial Court.
12. The defendant No.2 feeling aggrieved by the Judgment and Decree of the Courts below, has filed this Regular Second Appeal.
13. Heard the learned counsel for the appellants / legal representatives of the defendant No.2and the learned counsel for respondent No.1 / plaintiff. I have perused the records of the Courts below and also their respective Judgments and Decrees. I have also perused the grounds urged by the legal representatives of defendant No.2 / appellants in support of the appeal memorandum. 12
14. The learned counsel for the appellants / legal representatives of defendant No.2 vociferously contended that: (1) the suit was barred by limitation and (2) the Trial Court while disposing off the suit could not have relied upon the evidence adduced by defendant No.2 in another suit in O.S.No.148/2001. He also contended that the plaintiff had not placed any material on record to establish the fact that what was purchased by him in terms of Exs.P1, P2 and P3 were not the properties as mentioned in the respective sale deeds but different properties. The learned counsel for the appellants also contended that the plaintiff had failed to prove the boundaries of Sy.Nos.25/15, 25/17 and 28/6 and therefore, it could not lie in his mouth that the survey numbers mentioned in the sale deeds at Exs.P1, P2 and P3 were incorrect.
15. Before I consider the contentions of the learned counsel for the appellants, let me first consider the pleadings on record. The defendant No.2 having filed his written statement, did not categorically mention that the 13 boundaries which are set out in Exs.P1, P2 and P3 were in fact the boundaries of survey numbers mentioned in those respective sale deeds. There was no specific reply to the averment of the plaint that Sy.No.25/25 was wrongly shown instead of Sy.No.25/15; Sy.No.25/34 was wrongly shown instead of Sy.No.25/17 and Sy.No.25/31 was wrongly shown instead of Sy.No.28/6. The written statement is as bald as it could be. The contention of the plaintiff is that the boundaries which are mentioned in the sale deeds correspond to the property bearing Sy.Nos.25/15, 25/17 and 28/6. There is no reply in the written statement filed by the defendant No.2 refuting this contention.
16. The cause of action for the plaint as averred in the plaint is that when the survey authorities proposed to conduct a survey and initiate durast proceedings, they indicated that the properties that were purchased by the plaintiff were lying in a different survey number than the one which were mentioned in the sale deeds. The plaintiff 14 contended that the cause of action for the suit arose during January 2001 when he learnt about the mistake in the survey numbers and the extent in the sale deeds and subsequently during April 2001, when he demanded the defendants to rectify the mistakes as per the survey and durasth records.
17. It is seen from Exs.P4, P5, P6, P7, P8 to P12, P21 and P23 that the revenue proceedings were initiated and thereafter mutation was accepted in respect of Sy.Nos.25/15, 25/17 and 28/6 and the name of the plaintiff was entered in the revenue records. The plaintiff has paid the property tax in respect of the suit schedule properties. It is no doubt true that as per Ex.D21, the proceedings of the Tahasildar, Ramangara Taluk, (vide MR Nos.22 to 26 of 2000-01) were set aside by the Assistant Commissioner, Ramanagaram sub-division in R.A.(ALKP).68/2001-02 by his order dated 05.08.2002 and the case was remanded back to the Tahsildar for reconsideration after issuing notice to all the parties 15 concerned. Subsequent to the order passed by the Assistant Commissioner, the Tahsildar conducted proceedings after issuing notice to all the parties concerned and passed an order dated 31.03.2005 (Ex.P16) and directed the name of the plaintiff to be entered in respect of Sy.Nos.25/15, 25/17and 28/6. The defendant No.2 had contended in O.S.No.148/2001 that the order passed by the Tahsildar at Ex.P16 was thereafter challenged before the Assistant Commissioner and that the appeal before the Assistant Commissioner was rejected and a revision was filed before the Deputy Commissioner which was pending consideration. The Trial Court noticed the contention of the defendant No.2 that he was the kathedar of the land bearing Sy.Nos.25/15 and 25/17 pursuant to IHC.No.192/1995-1996. He therefore contended that the plaintiff did not have any title to the property bearing Sy.Nos.25/15 and 25/17 since he had purchased the property from the defendant No.1 who had no title to the suit schedule property. It is not in dispute that the lands bearing Sy.Nos.25/15 and 25/17 were held 16 by the family of the defendants. It cannot therefore lie in the mouth of the defendant No.2 to now contend that the sale deed executed by the defendant No.1 in respect of Sy.Nos.25/15 and 25/17 way back in the year 1974 did not confer any right, title or interest in favour of the plaintiff. The Trial Court and the First Appellate Court have dealt at length the right of the father of the defendant No.1 to the land bearing Sy.Nos.25/15 and 25/17 and the Trial Court and First Appellate Court have held that the defendant No.1 had absolute right to convey the suit schedule properties in favour of the plaintiff.
18. In so far as the land in Sy.No.25/31 is concerned, the Courts below have compared the actual boundaries of Sy.No.28/6 and the boundaries as mentioned in Exs.P2 and P3 and have come to the conclusion that what was conveyed to the plaintiff in terms of Exs.P2 and P3 were two different portions of land in Sy.No.28/6 and therefore, held that the Judgment and Decree of the Trial Court did not suffer from any infirmity. 17
19. The Trial Court had indeed referred to certain evidence of the defendant No.2 in O.S.No.148/2001. This was necessitated since the defendant No.2 in the present proceedings had deliberately misled the Court in producing a family tree which was truncated and did not contain all the particulars. This reference by the Trial Court was only to find out the truth and this Court cannot find any fault in the Trial Court relying upon the evidence recorded in O.S.No.148/2001. This is so since all the suits in O.S.Nos.143/2001, 148/2001 and 145/2001 were listed before the Court and were tagged together.
20. It is now well settled that the boundaries would prevail over the survey number and the extent. It is seen from Ex.P1 that the plaintiff had purchased 17 guntas in Sy.No.25/25 and 5 guntas in Sy.No.25/34. By virtue of the present suit, the plaintiff has restricted his claim to 08 guntas in the corresponding Sy.No.25/15 and 03 guntasin Sy.No.25/17. Thus, by virtue of the declaration of the Trial Court, the defendants are benefited to an extent of 22 18 guntas in Sy.No.25/25andSy.No.25/34. One more circumstance that goes against the defendant No.2 is that in the cross-examination of PW.1, the defendant No.2 has not suggested that what was purchased by the plaintiff in terms of Exs.P1, P2 and P3 were the lands in Sy.Nos.25/25, 25/34 and 25/31. The defendant No.2 did not make any attempt to demonstrate before the Trial Court that the boundaries of the land that were purchased by the plaintiff in terms of exhibits P1, P2 and P3 corresponded to the land bearing Sy.Nos.25/25, 25/34 and 25/31. The defendant No.2 did not make any effort of whatsoever nature to indicate that the properties bearing Sy.Nos.25/25,25/34 and 25/31 belong to the family of the defendants and that they were entitled toencumber the same. It cannot be said that thedefendant No.1 and father of the defendant Nos.2 and 3 have sold the properties that did not exist. If Sy.Nos.25/25, 25/34 and 25/31 existed and were owned by the defendants and their predecessors, it was for the defendant No.2 to place before the Trial Court sufficient evidence to show that their predecessors 19 possessed the aforesaid survey numbers and that they had rightfully sold the said survey numbers and that the boundaries mentioned in the sale deeds corresponded to the survey numbers which are mentioned therein. The Trial Court has labored hard to ascertain the boundaries of Sy.No.28/6 and has held that the plaintiff had purchased the land in Sy.No.28/6 in terms of exhibits P2 and P3 and not Sy.No.25/31. In fact Ex.P16 is another document which weighs in favour of the plaintiff. Ex.P16 is the order passed by the Tahsildar after conducting revenue and survey proceedings and has found that the properties that were purchased by the plaintiff were infact the land bearing Sy.Nos.25/15, 25/17 and 28/6. If the revenue and survey proceedings have reached finality then it is upto the defendant No.2 to challenge the same in accordance with law. But in so far as the order of the Tahsildar is concerned, the same has attained finality and I do not find any irregularity or illegality in the Judgments and Decrees of the Courts belowin declaring that the plaintiff is the owner of the suit schedule properties and also that the 20 boundaries mentioned in Ex.P1, P2 and P3 concern the land in Sy.Nos.25/15, 25/17 and 28/6 of Billakempanahally village, Bidadihobli, Manchanayakanahalli Post, Ramanagaram Taluk and District.
Hence, this Regular Second Appeal lacks merit and the same is dismissed.
In view of dismissal of this appeal, I.A. No.2/2013 for stay does not survive for consideration and the same stands dismissed.
Sd/-
JUDGE sma