Karnataka High Court
Vishwanath vs Howgiappa on 26 April, 2019
1
R
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF APRIL, 2019
BEFORE
THE HON'BLE MR. JUSTICE P.G.M.PATIL
REGULAR SECOND APPEAL NO.1289/2007
BETWEEN:
1. Sri Vishwanath
S/o GovindRao
Aged about 55 years,
Occ: Agriculture
R/o village Mungnal,
Tq: Aurad-B,
Dist: Bidar 585 401.
2. Sri Waman
S/o GovindRao
Aged about 52 years,
Occ: Agriculture
R/o village Mungnal,
Tq: Aurad-B,
Dist: Bidar 585 401.
3. Sri Shivaji
S/o GovindRao
Aged about 46 years,
Occ: Agriculture
R/o village Mungnal,
Tq: Aurad-B,
Dist: Bidar 585 401.
... Appellants
(By Sri.K.M.Ghate (NOC), Smt Anupama Hegde,
Sri Vilas Rao M. More, Advocates)
2
AND:
Sri Howgiappa
S/o Gundayya,
Aged about 67 years,
Occ:Agriculture,
R/o village Mungnal,
Tq: Aurad-B,
Dist: Bidar -585401.
... Respondent
(By Sri. Ravi B.Patil, Advocate)
This RSA filed under Section 100 of the CPC against
the judgment and decree dated 03.02.2007 passed in
R.A.No. 22/2002 on the file of the Presiding Officer, Fast
Track Court-II, Bidar, dismissing the appeal and confirming
the judgment and decree dated 24.10.2002 passed in
O.S.No. 88/1995 on the file of Prl. Civil Judge (Sr.Dn), Bidar
partly decreeing the suit for declaration and rejecting the
relief of perpetual injunction.
This appeal having been heard on 25.03.2019 and
reserved and coming on for pronouncement of judgment this
day, the Court delivered the following:
JUDGMENT
The plaintiffs being aggrieved by the judgment and decree dated 24.10.2002 passed in O.S.No. 88/1995 by the Principal Civil Judge (Sr.Dn), Bidar, confirmed by the judgment dated 03.02.2007 passed in R.A.No. 22/2002 have filed this second appeal.
3
2. The parties are referred with their ranks before the Trial Court.
3. The plaintiffs filed suit O.S.No. 88/1995 seeking the relief of declaration and injunction in respect of suit land bearing Sy.No. 62/B measuring 09 acres 25 guntas of village Mungnal, Tq.Aurad-B, Dist. Bidar. The plaintiffs averred that their father Govind Rao was the exclusive owner in possession and enjoyment of the said land. He died during the year 1993. After the death of their father the plaintiffs are in joint possession and ownership of the suit land. The name of the father of plaintiffs was appearing in record of rights in respect of suit land. Though the plaintiffs have filed application for mutation, the same was pending. The defendant is owner of land bearing Sy.No. 61/B situated towards eastern side of the suit land and being adjacent owner was intending and encroaching upon the suit land with the help of anti social elements 4 and intended to dispossess the plaintiffs from the possession of suit land. Therefore, in pursuance of the such illegal acts and malafide intention the defendant filed application before Assistant Director of Land Records, Bidar for survey and demarcation of his land bearing Sy.No. 61/B measuring 07 acres 04 guntas and in collusion with the taluka surveyor got wrong report showing that the plaintiff No.3 is in possession of an area of 01 acre 28 guntas in Sy.No. 61/B belonging to the defendant. The survey was conducted without measuring the surrounding lands. Plaintiff No.3 objected for the survey and demarcation made by the surveyor. Plaintiff No.3 approached Assistant Director of Land Records, Bidar and requested for re-survey of the land of the defendant and the plaintiffs. The defendant filed an application before the Tahasildar on 16.08.1994 asserting that the plaintiff No.3 has committed criminal trespass in his land and sought for possession of said encroached area of 01 acre 28 5 guntas. On the basis of said application, the Tahasildar passed an order on 03.10.1994 for dispossessing the plaintiffs from the portion of the suit land to the extent of 01 acre 29 guntas. In spite of direction by the Assistant Director of Land Records Bidar, the Tahasildar passed an order on 10.05.1995 to dispossess the plaintiff No.3 from the land to the extent of 01 acre 28 guntas and also to pay penalty of Rs.50/- levied under section 145 of Karnataka Land Revenue Act. Therefore, the plaintiffs were constrained to file the said suit.
4. The defendant appeared in the suit through his counsel and filed written statement wherein he denied that the plaintiffs are the members of Hindu joint family. He also denied that the plaintiffs are exclusive owners and possessors of suit land Sy.No. 62/B measuring 09 acres 25 guntas. Defendant admitted that he is owner in possession of land Sy.No. 6 61/B to the extent of 07 acres 04 guntas. He denied that he is intending and encroaching the suit land. He has further contended that he filed application for survey of his land and on such survey was conducted by the taluka surveyor it is found that plaintiff No.3 has encroached portion of defendant's land to the extent of 01 acre 28 guntas. Plaintiff No.3 had filed an application before Tahasildar for re-survey of the land. Subsequently the Tahasildar Aurad passed an order for dispossessing the plaintiff No.3 in respect of 01 acre 28 guntas in Sy.No. 61/B belonging to defendant and hand over the possession of the said land to the defendant. The plaintiffs have encroached upon his land to the extent of 01 acre 28 guntas and there is no question of encroachment by the defendant. The plaintiffs have no cause of action and suit is liable to be dismissed. Further the defendant made a counter claim for recovery of possession of his land to the extent of 01 acre 28 guntas from the plaintiffs. Therefore he prayed 7 for decree for recovery of possession of the encroached land from the plaintiffs and also paid necessary Court fee on the said relief.
5. On the basis of pleadings of the parties, the trial Court has framed the following issues;
1. Whether plaintiffs prove that they are exclusive owners in possession of suit land Sy.No. 62/B measuring 09 acres 25 guntas?
2. Whether plaintiffs further prove that they are entitled for the relief of injunction sought for against the defendant?
3. Whether defendant is entitled for recovery of possession of an area 01 acre 28 guntas from the plaintiffs?
4. What order or decree?
6. In order to substantiate their case, plaintiff No.2 was examined as PW 1 and three witnesses were 8 examined and got marked 07 documents as Ex.P.1 to P.7. The defendant got examined himself as DW 1 and produced Ex.D-1 to D-10 documents.
7. The learned judge of the Trial Court after hearing both the counsels answered issue Nos. 1 and 3 in the affirmative and issue No.2 in the negative, consequently decreed the suit of the plaintiffs partly declaring that the plaintiffs are the joint owners in possession of suit land Sy.No. 62/B measuring 09 acres 25 guntas of Mungnal village, Tq. Aurad-B, Dist. Bidar, however the relief of perpetual injunction was rejected. The Trial Court also decreed the counter claim of the defendant for recovery of vacant possession of the land measuring 01 acre 28 guntas from the plaintiffs which is part and parcel of Sy.No. 61/B of the defendant.
8. Plaintiffs being aggrieved by the said judgment and decree filed R.A. No. 22/2002 on the file of Fast Track Court-II, Bidar. The first appellate Court 9 after securing the records, heard both the counsels and passed the judgment on 03.02.2007 dismissing the appeal and confirming the judgment and decree passed by the Trial Court.
9. The plaintiffs being aggrieved by both the judgments and decrees passed by the Trial Court and the first appellate Court have filed this regular second appeal on the following grounds;
The judgment and decree passed by the Courts below are illegal, arbitrary, perverse and passed without application of mind, the judgment and decree passed by the Trial Court is contrary to the evidence both oral and documentary on record and also contrary to its own findings and reasons. Both the Trial Court and the first appellate Court have erred in relying upon Ex.D-9 which is copy of panchanama drawn by the surveyor. The lower appellate Court has wrongly come to the conclusion that the plaintiffs are not in peaceful 10 possession and enjoyment of the portion of the land in which they are in possession for the reason that the plaintiffs have not filed an application for appointment of the Court commissioner to re-survey the land in question.
10. After hearing both the learned counsels, the appeal was admitted to consider the following substantial question of law.
" Whether the Courts below were justified in granting the decree based on the counter claim when the counter claim did not relate to the subject matter of suit namely Sy.No. 62/B and the counter claim was with reference to Sy.No. 61/B."
11. Heard the learned counsel for the parties.
12. In the course of trial of the suit the defendant admitted that the plaintiffs are the absolute owners and in possession of suit land Sy. No. 62/B 11 measuring 09 acres 25 guntas, however the contention of the defendant was that the plaintiffs have encroached upon his land Sy. No. 61/B to the extent of 01 acre 28 guntas. Therefore, the defendant approached the taluka surveyor and got surveyed his land bearing Sy. No. 61/B and the surveyor after conducting survey demarcated the boundaries of the land belonging to the defendant and also fixed boundary stones. On the basis of said survey documents like panchanama Ex.P-2 and Ex.D-9 were drawn during the course of conducting survey of the land. On the basis of said survey report the defendant filed counter claim in the suit of the plaintiffs seeking a decree for the recovery of possession of 01 acre 28 guntas of land in Sy. No. 61/B belonging to him.
13. Learned counsel for the appellants submitted that the plaintiffs had applied for re-survey of land belonging to the plaintiffs and when the said 12 application was pending, the Tahasildar passed order for handing over possession of 01 acre 28 guntas to the defendant which has been without jurisdiction. Learned counsel further submitted that plaintiffs had filed I.A.No. IV under order XXVI Rule 9 of CPC before the Trial Court for appointment of Court commissioner which was rejected by the trial Court on 31.07.2002. Learned counsel further submitted that Ex.D-10 survey sketch cannot be accepted. It was further submitted that defendant's property is not suit property and therefore, counter claim is not maintainable.
14. Per contra the learned counsel for the respondent submitted that the defendant has not denied that the plaintiffs are the owners in respect of land Sy. No. 62/B and the plaintiffs have also not denied that the defendant is the owner of land Sy.No. 61/B which is situated on the eastern side of the suit land. Though the Tahasildar passed order for delivery of 13 possession of encroached area to the defendant, the said order was not executed since the plaintiffs filed suit and sought for relief of declaration and injunction in respect of their land. The defendant is entitled to file counter claim in the suit of the plaintiffs and the defendant has proved his counter claim. Therefore, the Trial Court decreed the counter claim directing the plaintiffs to deliver possession of encroached area of 01 acre 28 guntas to the defendant. Learned counsel further submitted that this Court cannot go into question of facts and the only substantial question of law framed by this Court is as to when the counter claim relates to Sy. No. 61/B and whether the courts below were justified in granting decree based on the counter claim though the suit property is Sy. No. 62/B? Learned counsel further submitted that the counter claim is very much maintainable and decree passed by the Courts below decreeing the counter claim is legal and therefore, the appeal is liable to be dismissed. 14
15. The only substantial question of law framed by this Court is as stated supra and therefore, this Court is called upon to consider and decide as to whether Courts below were justified in granting decree based on counter claim which does not relate to subject matter of the suit namely Sy. No. 62/B and that it relates to Sy. No. 61/B. Order VIII Rule 6(A) of CPC provides for counter claim by the defendant. Order VIII Rule 6 (A) (1) of CPC reads as follows:
"A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not; 15
16. Therefore, the defendant can raise counter claim against claim of the plaintiffs, any right or claim in respect of cause of action accruing to the defendant against the plaintiff either before or after filing of the suit but before filing the written statement. Such counter claim may be in the nature of damages or not. Order VIII Rule 6(A)(2) provides that such a counter claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter claim. Order VIII Rule 6(A)(3) provides that plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court and sub-clause (4) provides that counter claim shall be treated as a plaint and governed by the rules applicable to the plaint.
17. The very object of Order VIII Rule 6(A) is to treat the counter claim as an independent suit to be 16 heard together with the plaintiffs' suit to enable the Court to pronounce the final judgment. The scheme of the Rule is to permit the defendants to set up counter claim which arise between the parties and are cognizable by the Courts. The object is to reduce pendency of the cases so that a cause of action and cross claim similar in nature could be clubbed together and disposed of by a common judgment.
18. In the case of Gurubachan Singh V/s Bhag Singh reported in AIR 1996 SC 1087, the Hon'ble Supreme Court has held as follows;
"Defendant by his counter claim may ask for any relief, for example declaration, injunction and receiver or specific performance, payment of money claim or damages. In a suit for injunction a counter claim for possession by the defendant can be entertained." 17
19. Therefore, in the present suit the defendant is entitled to raise counter claim in the suit of the plaintiffs for the very reason that the plaintiffs filed the suit alleging that the defendant is trying to encroach upon their land bearing Sy. No. 62/B and accordingly in order to restrain the defendant from encroaching in their land they sought for declaration and permanent injunction against the defendant. It is admitted that Sy. No. 61/B owned by the defendant is situated on eastern side of the suit land bearing Sy. No. 62/B. The counter claim raised by the defendant is to the effect that plaintiffs have encroached upon his land bearing Sy. No. 61/B to the extent of 01 acre 28 guntas and therefore he sought for the relief of possession of the encroached area from the plaintiffs by way of counter claim. Therefore, it is crystal clear that the claim of the plaintiffs and the claim of the defendant is in respect of an area of 01 acre 28 guntas which is admittedly part and parcel of Sy.No. 61/B and as such, though the 18 counter claim relates to Sy. No. 61/B which is not subject matter of the suit, the counter claim was very much maintainable and the Trial Court was very much competent to decide the counter claim of the defendant.
20. The arguments advanced on behalf of plaintiffs/appellants that the survey records produced by the defendant cannot be looked into and that the plaintiffs had filed application before Assistant Director of Land Records for re-survey of the land belonging to the plaintiffs and defendant and that pending the said application, the Tahasildar passed an order directing the plaintiffs to deliver possession of the encroached land to the defendant cannot be accepted at all. These matters being question of facts, the first appellate Court has recorded finding that the defendant has proved by producing necessary and cogent evidence that the plaintiffs have encroached upon his land to the extent of 01 acre 28 guntas and therefore, he is entitled for 19 recovery of possession of said land from the plaintiffs. The plaintiffs have not at all proved that the survey of the land of the defendant and documents issued by the survey department are false and got up by the defendant. The Trial Court and first appellate Court have recorded concurrent finding that the defendant has proved that the plaintiffs have encroached upon the land of the defendant bearing Sy. No. 61/B to the extent of 01 acre 28 guntas and therefore, defendant is entitled for recovery of possession of the said land from the plaintiffs. The arguments advanced on behalf of the appellants that plaintiffs had filed I.A. NoNo.IV under order XXVI Rule 9 of CPC for appointment of surveyor as Court commissioner and that said application was illegally rejected by the Trial Court, cannot be accepted. Admittedly I.A. No. IV filed under Order XXVI Rule 9 of CPC was for appointment of Court commissioner for local inspection of the suit property and not for appointment of surveyor for conducting survey of the 20 land. Under these circumstances I hold that the Courts below were justified in granting the decree based on the counter claim of the defendant though it did not relate to subject matter of the suit. Accordingly I answer substantial question of law in the affirmative. Therefore, the present second appeal being devoid of merits is liable to be dismissed. In the result I proceed to pass the following:
ORDER The Regular Second Appeal is hereby dismissed with costs throughout.
Sd/-
JUDGE *MK