Bangalore District Court
Munkrishnappa vs Sri.Anantharam on 18 June, 2015
IN THE COURT OF THE XII ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH.No.27), AT BANGALORE.
PRESENT:SRI.BHAIRAPPA SHIVALING NAIK,B.Com.,LL.B.(Spl),
XII ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
DATED: THIS THE 18TH DAY OF JUNE 2015
O.S.No.8597/2010
Plaintiffs:- Munkrishnappa
S/o. late Hanumaiah,
Aged:about 60 years,
Resident of Luggere village,
Yeshwanthpura Hobli,
Bangalore North Taluk.
(By Sri.S.Vema Reddy, Advocate)
-VS-
Defendants:- 1. Sri.Anantharam
S/o. late Muddappa
Aged: about 42 years,
Resident of Luggere Village,
Yeshwanthpura Hobli,
Bangalore North Taluk
2. Sri.Srinivasa @ Seenappa
S/o. late Muddappa,
Aged about 40 years,
Resident of Luggere village,
2 O.S.No.8597/2010
Yeshwanthpura Hobli,
Bangalore North Taluk.
(By Sri. D.J.Govinda Raju-
Advocate)
Date of Institution of the suit : 10.12.2010
Nature of the suit : Declaration & Possession
and Mandatory Injunction
Date of commencement of
recording of the evidence : 25.06.2011
Date on which the Judgment was
pronounced : 18.06.2015
Total Duration Years Months Days
: 04 06 10
(BHAIAPPA SHIVALING NAIK)
XII Addl. City Civil & Sessions Judge,
Bangalore
J U D G M E N T
This suit is filed by the plaintiff for declaration, possession and permanent injunction against the defendants.
2. The case of the plaintiff is that, he is the co-owner of the property bearing Sy.No.1 measuring 32 guntas out of total extent of 4 acres 29 guntas situated at Laggere village, 3 O.S.No.8597/2010 Yeshwanthpura Hobli, Bangalore North Taluk. The schedule property is a portion of composite property totally measuring 4 Acres 29 Guntas including 1 Gunta of Kharab land originally belonged to the landlords Mr.Doddamuniswamappa, Mr.Shamanna and Mr.Marappa. The father of the plaintiff Hanumaiah was the lessee in possession and cultivation of the said property along with other lands. The father of he plaintiff had applied for grant of occupancy rights and Land Tribunal Bangalore North Taluk granted occupancy rights as per order dated 20.08.1976 in L.R.F.No.1243, 1244 and 1245/1974-75. The legal heirs of landlords namely Smt.Pillamma and Smt.Yashodamma filed W.P.No.9817/1976 and W.P.No.9818/1976 before the Hon'ble High Court of Karnataka. Both the Writ Petitions came to be disposed of in terms of joint memo filed by the parties, wherein the legal heirs of the landlords conceded for confirmation of registration of occupancy rights in respect of Sy.No.1 and 81/6 of Laggere Village in favour of the plaintiff's father. The katha and Mutation effected in M.R.No.46/1986-87 in 4 O.S.No.8597/2010 pursuance to the grant by the Land Tribunal. The defendants filed an application before the Asst. Director of Land Records for conducting survey behind the back of the plaintiff. The exact land of the plaintiff was 32 guntas. The Asst. Director of Land Records reduced the extent of the land of the plaintiff to 0-21 Guntas as against the actual extent of 0-32 Guntas without issuing the notice and without conducting the spot inspection. The father of the plaintiff died intestate. The plaintiff is the second male member and kartha of his joint family. There is no partition by metes and bounds affected by his joint family. Hence, the plaintiff alone as kartha of his joint family has filed this suit.
3. The plaintiff further submitted that the defendants are utter strangers having no manner of right, title or interest in any manner whatsoever over the suit schedule property. In fact, the defendants also having an extent of 38 guntas of land in the same Sy.No.1 of Laggere village situated towards western and northern sides of suit schedule property. The defendants 5 O.S.No.8597/2010 are greedy to have more land to their estate and interfered with the possession by and towards northern side. The defendants have encroached upon to an extent of 11 Guntas measuring East to West 100 ft. and North to South 110 ft. in the suit schedule property belonging to the plaintiff. The plaintiff came to know about the encroachment when the survey was made and revenue sketch was prepared by survey officials. As per the survey sketch the extent of land of the plaintiff was reduced to 0-21 guntas as against the total extent 0-32 Guntas. The plaintiff has described the total extent of property bearing Survey No.1 0-32 Guntas out of total extent of 4 Acres 29 Guntas as schedule A and encroachment to an extent of 100 feet x 120 feet is described in schedule 'B' annexed to the plaint. The encroachment made by the defendants is illegal and unauthorised. The plaintiff is entitled for possession of the encroached portion from the defendants. Hence, the plaintiff has constrained to file the suit for declaration, mandatory injunction and also recovery of possession of schedule 'B' property.
6 O.S.No.8597/2010
4. The plaintiff has further asserted that on 12.06.2007 the defendants along with their henchmen made attempt to trespass, interfere and encroach upon the suit schedule property towards the southern side and it was resisted by the plaintiff. The plaintiff questioned the illegal and high handed acts of the defendants. The defendants went away by posing threat of dire consequences, but they would encroach upon the suit schedule property and dispossess the plaintiff at any cost. The plaintiff filed complaint before the jurisdictional police, but the police failed to take any action as the dispute is of civil in nature. The plaintiff filed O.S.No.4626/2007 on the file of Addl. City Civil Judge, Bengaluru and withdrew the same with a liberty to file fresh suit on the same cause of action. Wherefore, the plaintiff prayed to decree the suit as prayed against the defendants in respect of suit schedule 'B' property.
5. In response to the suit summons the defendants have appeared through their Learned Counsel and resisted the claim of the 7 O.S.No.8597/2010 plaintiff by filing their written statement. The defendants have denied all material averments made in the plaint as false. It is specifically denied that the plaintiff the co-owner along with his family members is in peaceful possession and enjoyment and cultivation of Survey No.1 measuring 32 Guntas out of total extent of 4 Acres 29 Guntas. It is also denied that the schedule property is a portion of the composite property totally measuring 4 Acre 29 Guntas including 01 gunta of kharab land. Neither the defendants nor their father late Muddappa was parties to the alleged proceedings of the Land Tribunal. Hence, the same are not binding on the defendants. The defendants have shown their ignorance about the legal heirs of the landlords preferred writ petitions and those petitions were disposed of on 12.02.1982 in terms of joint memo filed etc. In fact, neither the plaintiff nor his father was in possession of schedule property at any time as alleged and the same is evidenced by survey records as it was conducted way back in the year 1984-85 and it was accepted by the parties who were in possession of the land in Survey 8 O.S.No.8597/2010 No.1 of Laggere village including the father of the plaintiff and his father late Hanumaiah. As per the said survey the father of the plaintiff was in possession of only 21 guntas but not as alleged 32 Guntas in Survey No.1 of Laggere village as claimed by the plaintiff. The alleged documents produced by the plaintiff are of sham and created for the purpose of this false suit. The proceedings held in writ petitions are also not binding on the defendants as they were not parties to the said proceedings.
6. The defendants further denied that the defendants have filed an application before ADLR for conducting survey behind the back of the plaintiff and exact extent of land is 32 Guntas. It is also denied that the ADLR reduced to 21 guntas without issuing notice and without conducting spot inspection. The said survey was conducted in accordance with the possession of the lands held by the parties who were claiming registration of the occupancy rights in Sy.No.1 of Laggere village. As per the survey, Sy.No.1 of Laggere village totally measures 4 Acre 29 9 O.S.No.8597/2010 Guntas and the father of the defendants namely Muddappa was in possession of 38 Guntas, which was in conformity with his claim made before the Land Tribunal for registration of his occupancy right, the father of the plaintiff namely Hanumaiah was in possession of only 0-21 guntas, one Anjinappa was in possession of 0.24 Guntas and remaining land measuring 2 Acres 26 Guntas was kept as per Index of Lands. That survey was conducted in accordance with law in the presence of all the parties by following all necessary procedures. Accordingly, after conducting survey, the necessary survey revenue sketch was prepared by the surveyor in accordance with the possession of land held by the parties in Sy.No.1 of Laggere Village and it was accepted by all the parties including the plaintiff and his father. The plaintiff has deliberately and malafidely called the said survey in question under this suit after the lapse of nearly about 27 years based on the cock and bull story. Neither the plaintiff nor his father was in possession of 32 Guntas in Sy.No.1 of Laggere village as alleged in the plaint. If the said Hanumaiah would have survived the 10 O.S.No.8597/2010 members as pleaded in the plaint, the plaintiff alone cannot maintain the suit and the plaintiff is not entitled for the relief sought in the plaint.
7. The defendants have admitted that they are not belonging to the alleged joint family of the plaintiff, but it is denied that the defendants are utter strangers having no manner of right, title whatsoever over the suit schedule property. It is also admitted that the defendants are having 38 Guntas in Sy.No.1 of Laggere village and they are in possession of the said land but it is absolutely false that the defendants land is situated towards the western and northern side of the suit schedule property. Infact, the defendant's property is situated towards the northern side of the schedule property. As such, there is no land held by the plaintiff either towards western side or eastern side of the defendants' property. The defendants have stoutly denied that the plaintiff encroached upon an extent of East to West: 100 ft. and North to South:
110 ft. in the schedule property belonging to the plaintiff. The 11 O.S.No.8597/2010 alleged measurement of the land shown in schedule 'A' and 'B' property are imaginary and self-styled and the boundaries shown therein are all disputed by the defendants since same are invented, since the defendants property is situated only towards northern side of the schedule property and there is no consistency to the measurement one shown in the pleadings and to the suit schedule 'B' property. The plaintiff is not at all entitled to alleged relief of mandatory injunction and for possession of suit schedule 'B' property for the simple reason.
Neither the plaintiff nor his father was in possession of 32 Guntas in Sy.No.1 of Luggere village as is clearly evidenced by the survey sketch which was drawn way back in the year 1984- 85 after being conducted the survey. The defendants have also denied the alleged interference into the possession of the plaintiffs on 12.6.2007. The defendants have admitted that the plaintiff has field the suit in O.S. No. 4626/2007 on the file of Addl. City Civil Judge (CCH.No.16). It is further pleaded that the plaintiff has filed the said suit for the relief of bare injunction in respect of 32 Guntas of Laggere Village 12 O.S.No.8597/2010 on the same set of facts alleging that the defendants are interfering with the possession of the plaintiff's land i.e., 32 Guntas of land. The defendants have filed their detailed written statement denying the alleged ownership and possession in respect of 32 Guntas of land in Sy.No.1. The plaintiff has filed an application for appointment of Commissioner for making spot inspection to measure the land in this suit. The said application came to be dismissed. Thereafter the plaintiff sought for permission to withdraw the said suit by granting liberty to file a fresh suit. But the Hon'ble Court was declined to grant liberty. Meanwhile, the said suit came to be dismissed on 9.12.2007 in view of memo filed by the plaintiff. But the plaintiff has suppressed all these facts deliberately. Infact, no such liberty was granted to file the present suit. Therefore, the suit filed by the plaintiff is highly misconceived and without cause of action. The alleged cause of action is self styled, sham, imaginary and invented for the purpose of filing this false suit. The defendants have also disputed the Court Fee paid on the plaint. 13 O.S.No.8597/2010
8. In turn, the defendants have submitted that the land in Sy.No.1 of Laggere village is measuring 4 Acres 29 Guntas. The father of the plaintiff filed an application for grant of occupancy rights in respect of land measuring 38 Guntas in Sy.No.1 personally. The land Tribunal granted occupancy rights in proceedings bearing LRF:2173/1975-76 to the same extent. Accordingly the claim of the father of the defendants came to be mutated in the Revenue Records. After grant of occupancy rights, the possession of the land held by the parties would require to be surveyed; accordingly the land in Sy.No.1 was surveyed in accordance with the possession of the parties. As per the survey conducted in the year 1984-85 under LRF:
CR:46/84-85, the father of the defendants was in possession of 0-38 Guntas, whereas the plaintiff's father was in possession of only 0-21 Guntas in Sy.No.1 of Laggere village. Accordingly the survey sketch was drawn and it was accepted by all the parties including the father of the plaintiff. Now it is not open for the plaintiff to call the very survey in question 14 O.S.No.8597/2010 after lapse of 27 years on the set of false and untenable grounds. If at all if any grievance against the said survey, the father of the plaintiff could have challenged the same before the appropriate authority but the same was not done till this time because, the possession of the plaintiff and his father late.Hanumaiah was to an extent of 0.21 Guntas only. In the circumstances, merely because of claiming alleged occupancy right in respect of 0.32 Guntas without possession thereto will fall of no avail and rather the survey done way back in the year 1984-85 would bind the parties to the land in Sy.No.1 of Laggere village. The alleged claim put forth by the plaintiff in respect of 0-32 Guntas in Sy.No.1 is without right, title and possession. Further the defendants and their father have partitioned the family properties among them by way of registered Partition Deed dated.29.11.2000 during the year 2000 and put in respective possession of the said properties. As per the said partition, the defendants were allotted 0-19 Guntas each in Sy.No.1 of Luggere village and they are in lawful, peaceful, physical possession and enjoyment of the 15 O.S.No.8597/2010 same without any interference. The revenue records were also transferred in their names. The entire 38 Guntas of land has bee fenced long back with barbaric wire, the time when the land was surveyed and demarcated the boundaries by the surveyor during the year 1984-85 and further in the boundaries between plaintiff's property and defendants property, they are yielding coconut trees aged 26 years planted by the defendants and there is a borewell in the property of the defendants. Similarly, the plaintiff has also constructed compound wall along side the border of his property and he has also constructed many buildings in the remaining property and has given the same for rents and hence the plaintiff and defendants are in settled possession of their properties. There is no any encroachment of schedule property as alleged by the plaintiff. The defendants have kept their property vacant towards the northern side of the schedule property, taking advantage of the said fact, the plaintiff is trying to grab the said property to have wrongful gain on the guise of false and untenable facts by calling the 16 O.S.No.8597/2010 survey in question after the lapse of 27 years even without any such alleged rights. The plaintiff alone cannot maintain the suit as such without the other family members, according to him; the plaintiff is claiming the property through his father. No declaratory relief is maintainable alone by the plaintiff without other legal heirs of late.Hanumaiah. The suit of the plaintiff is also bad for non-joinder of parties to the suit. In the absence of all the parties in Sy.No.1 to the suit, the dispute raised by the plaintiff under the suit cannot be adjudicated comprehensively. Therefore, it is prayed to dismiss the suit with exemplory costs.
9. On the basis of the pleadings of both the parties, the following issues were formulated on 7.6.2011 and an additional issue was framed on 7.2.2013:-
ISSUES
1. Whether plaintiff proves that himself and other co-owners are the title holders and possessors of 0-32 Guntas in Sy.No.1 ('A' schedule property)?
2. Whether the plaintiff proves the identity and boundaries of 'A' schedule property? 17 O.S.No.8597/2010
3. Whether the plaintiff proves that 'B' schedule property measuring 0-11 Guntas is part and parcel of 'A' schedule property?
4. Whether the plaintiff proves that during the survey of Sy.No.1 in L.RF;CR 46/84-85, the extent of 'A' schedule property was reduced from 0-32 guntas to 0-21 guntas as pleaded in par-6 of the plaint?
5. Whether the plaintiff proves that the defendants have encroached 11 guntas measuring East to West: 100 ft. and North to South 110 ft. ('B' schedule property)?
6. Whether the plaintiff proves cause of action?
7. Whether the defendants prove that as per survey conducted in 1984-85, the father of the plaintiff Late Hanumaiah was in possession of 0-21 guntas only and not 0-32 guntas?
8. Whether the suit is bad for non-joinder of necessary parties as pleaded in para-21 of the written statement?
9. Whether the defendants prove that they are in possession and enjoyment of 0-38 guntas in Sy.No.1?
10. Whether the plaintiff is entitled for the reliefs?
11. What order or decree?18 O.S.No.8597/2010
Addl. Issue No.1:
Whether the suit is in time?
10) In order to substantiate the claim, the plaintiff was examined as P.W.1 and adduced documentary evidence from Ex.P1 to Ex.P17. Meanwhile, defendant No.1 was got examined on behalf of defendants as D.W.1 and adduced documentary evidence from Ex.D1 to Ex.D26.
11) It is relevant to note here that after having heard the counsel for both the parties, by predecessor-in-office dismissed the suit of the plaintiff by judgment dated.28.2.2013. Meanwhile, the plaintiff preferred R.F.A.No.487/2013 against the defendants before the Hon'ble High Court of Karnataka. The said appeal came to be allowed on 18.11.2013 thereby setting aside the Judgment & Decree under appeal remanded the matter to the Trial Court with liberty to both the parties to lead additional evidence and directed the court to dispose of the remanded matter in accordance with law.19 O.S.No.8597/2010
12) It is relevant to note here that, the Asst.Director for Land Reform, Bengaluru Urban District under Deputy Commissioner's Office was appointed as Court Commissioner who was filed his report. Thereafter both the parties appeared through their learned counsel before this court. At the instance of the plaintiff, the ADLR, Bangalore Urban Dist., under Deputy Commissioner's office was appointed court Commissioner. The court Commissioner has filed his report. The plaintiff has submitted no objection to Commissioner's report. The defendants have filed the objections to the Commissioner's report. The court Commissioner was examined as C.W.1 and got marked Ex.C1 and Ex.C1(a) to C1(y).
13) The defendants have filed objections to the report of the Court Commissioner. The Court Commissioner was got examined as C.W.1 and got marked Ex.C.1 and Ex.C-1(a) to Ex.C-1(y).20 O.S.No.8597/2010
14) I have heard the counsel for both the parties. Besides, the counsel for the plaintiff has filed written arguments.
15) My finding on the above Issues are :-
Issue No.1: In the Negative
Issue No.2: In the Negative
Issue No.3: In the Negative
Issue No.4: In the Negative
Issue No.5: In the Negative
Issue No.6: In the Negative
Issue No.7: Partly in the Affirmative
Issue No.8: In the Affirmative
Issue No.9: In the Affirmative
Issue No.10: In the Negative
Addl.Issue In the Negative
No.1:
Issue No.11: As per final order
For the following:-
R E A S O N S
16) Issue Nos.1 to 5,7 and 9:- Since, these issues being
inter related to each other in order to avoid repetition of discussion are taken up together.
17) The plaintiff is claiming his absolute ownership over the suit schedule 'A' property and possession of suit schedule 'B' property against the defendants. The plaintiff is relying on 21 O.S.No.8597/2010 his oral testimony supported by documentary evidence adduced by him. P.W.1 has reiterated the averments made in the plaint in the course of his examination-in-chief. It is evident from the cross-examination of P.W.1 that, he does not know the contents of his affidavit filed in lieu of his examination-in-chief. But he knows the defence so set up by the defendants. The father of the plaintiff acquired the suit schedule property on the strength of the order passed by the Land Tribunal. The defendants have a property towards north of schedule 'A' property. As per the orders of Land Tribunal, the defendants are allotted 1 acre 19 guntas of land and they are in possession to that extent. The landlords by name Smt.Pillamma and Doddamuniswamappa, Shamanna, Thamanna, Moda Thamanna were the owners of Sy.No.1 totally measuring 4 acres and odd. But P.W.1 does not know the individual holding of Sy.No.1 by the above 4 owners. Land of one Anjanappa is situated towards south of schedule 'A' property which is part and parcel of Sy.No.1 as granted by the Land Tribunal. The government has formed 22 O.S.No.8597/2010 layout in Sy.No.1. The father of the plaintiff had got suit schedule 'A' property and the extent shown in Ex.P.8 survey sketch is correct. P.W.1 has furnished the boundaries of suit schedule 'A' property on the basis of possession; The suit Schedule 'B' property is situated towards the North of 'A' schedule property. According to P.W.1, the defendants have approximately encroached 11 guntas of his property. P.W.1 is said to have measured his own land by foot steps and it was less in extent and thus he has filed the suit. P.W.1 has admitted fence separates his property and the property of the defendants. The coconut trees are visible in Ex.P.17- the photographs. About 8 to 10 years back, the P.W.1 had been to Dharmastala. In his absence stone pillars were fixed and barbed wire was fixed on the said boundaries. P.W.1 approached the police but they advised to approach Civil Court. The house of P.W.1 is abutting to stone pillar which was built by his father. The brothers and sisters of P.W.1 are also having their house in 'A' schedule property as he has given shares to them and defendants are in possession of 23 O.S.No.8597/2010 their respective shares by constructing houses. There is a vacant space towards east of the houses of the defendants.
P.W.1 had not filed any suit against the defendants immediately after coming to know about the encroachment. However it is admitted that he had filed a suit for injunction in respect of schedule 'A' property in CCH.No.16. P.W.1 has shown his ignorance about the proceedings in the said suit as he is an illiterate. Even P.W.1 does not know whether the defendants have encroached North to South: 120 feet as shown in 'B' schedule of the plaint or North to South 110 feet as sworn to in his affidavit evidence at paragraph-8. As deposed by P.W.1, the defendants have encroached northern portion of his land. There is a bore well after the coconut trees in his area. The power connection to the bore well is obtained by the defendants and that bore well is drilled about 2 years back when the earlier suit was pending. P.W.1 had objected for drilling bore well. The defendants had other bore wells in their land and power connection was taken from the old bore wells. There are two bore wells in 'B' 24 O.S.No.8597/2010 schedule property. The landlords of his father had preferred Writ Petitions against the orders of Land Tribunal in respect of other lands and also 'A' schedule property and that matter was compromised in the High Court. P.W.1 has denied that he is in possession of only 21 guntas in Sy.No.1 and not 32 guntas as claimed by him. It is also denied that the defendants are in possession of their landed property as per the orders passed by the Land Tribunal.
18) On the other hand, D.W.1 has reproduced his written statement in the course of his examination-in-chief by way of an affidavit. It reveals from the cross-examination of D.W.1 that the land Sy.No.1 totally measures 4 acres 29 guntas and that belonged to Dodda Thammanna, Marappa, and Chikkaswamppa. The father of D.W.1 had filed application for occupancy right under Dodda Thammanna to an extent of 38 guntas within the following boundaries:-
East: Government Land West: Venkataramanappa's property North: Kempanarasappa's property South: Plaintiff's property.25 O.S.No.8597/2010
19) Admittedly the father of defendant, father of plaintiff and one Anjanappa were cultivating their respective lands. The father of the plaintiff had applied for occupancy right in respect for 32 guntas but he does not know whether the father of the plaintiff was cultivating 32 guntas of land from the year 1973-74. After the grant of occupancy rights, the Tahsildar inspected the spot, prepared sketch and handed over possession to respective parties. Accordingly, the name of plaintiff's father is shown to an extent of 32 guntas in the pahanis and name of the defendant is shown for 38 gunats.
D.W.1 has constructed a house in a quarter portions and cultivating the remaining portion. The area under cultivation is shown in the pahani. D.W.1 has got vacant space towards the north of the property of the plaintiff wherein he has grown flowers. The Partition between D.W.1 and his brothers has taken place in the year 2000 through registered document. The mutation has also taken place in the year 2005 but the revenue department has not drawn 11(E) sketch and no survey was done during the mutation. 26 O.S.No.8597/2010 D.W.1 has objections for surveying his 38 Guntas of land. According to D.W.1, the Land Tribunal had conducted survey in 1984-85. At that time they had furnished sketch copy, mutations and pahanis and order of the Land Tribunal but the copy of mahazer was not produced. During survey the father of the D.W.1 and the father of the plaintiff were present and both of them signed on the mahazer. The father of D.W.1 has put up barbed wire fencing in 1984 itself. The defendants have constructed 10-12 houses and some houses are let out. D.W.1 has neither knows the name of any tenant nor Lease Agreements but he is receiving rent of Rs.25,000/- per month. P.W.1 is not paying income tax. It is also admitted that plaintiff had filed O.S.4626/2007 for injunction against the defendants herein, but they had not caused any interference. The land of the plaintiff is situated towards the south of his land as shown in Ex.D.3. D.W.1 and his brother were allotted 19 guntas each. The portion allotted to D.W.1 is bounded by the east vacant space, to the west his house, to the south space belonging to 27 O.S.No.8597/2010 his brother and to the north land of Kempanarasimhappa. The boundaries of the property of 19 guntas allotted to his brother are: To the east - Vacant space of his brother, West-Houses of his brother, North his vacant space and South-Property of the plaintiff is situated. D.W.1 has no objection if remaining land after measuring 38 guntas is given to the plaintiff. It is evident from the further cross- examination of D.W.1 that, mutation had taken place in the year 1984. Earlier 38 Guntas was surveyed and possession was given to defendants. D.W.1 has denied that the defendants have encroached 11 Guntas of land belonging to the plaintiff and got prepared Ex.D3 without the knowledge of the plaintiff.
20) Ex.P1 the order dated.20.8.1976 passed in case No.LRF.
No.1243,1244 and 145/1974-75 discloses that the Land Tribunal, Bengaluru North Taluk granted occupancy rights in favour of the father of the plaintiff in respect of land to the extent of 32 Guntas out of Sy.No.1 and 2 Acres 33 28 O.S.No.8597/2010 Guntas of Sy.No.81/6 of Laggere village. In pursuance to the Tribunal order, the name of the father came to be mutated in the Revenue Records in respect of both the Survey Numbers to the said extent as it is evident from Ex.P2- Mutation Order. The Record of Rights of land Sy.No.1 totally measuring 4 Acres 29 Guntas for the period from 2008-2009 to 2010--2011 at Ex.P3 to Ex.P6, the Record of Rights for the period from 2006-2007 to 2010-2011 at Ex.P10 to Ex.P15 as well as Ex.D6 and Ex.D7 the Record of Rights for the period 2010-2011 go to show that the said Muniswamappa, Thammanna, B.Sonnappa, Srinivasa together are the owners to the extent of 23-08 Guntas. The father of the plaintiff was holding 32 Guntas and the defendants 1 and 2 are holding 19 Guntas each during the said period. Infact, the names of either father of the plaintiff or the father of the defendants is appearing in column No.12(2) of the Record of Rights so as to take into consideration. The certified copy of the order dated.12.2.1982 passed in Writ Petition No.9817/1976 and 1918 /1976 at Ex.P7 disclose that 29 O.S.No.8597/2010 as per joint memo filed by the father of the plaintiff and the said landlord by name Pillamma and Yashodamma, the father of the plaintiff was entitled to be as an occupant of Sy.Nos.1 and 81/6 and therefore, the grant of occupancy rights in respect of Sy.Nos.1 and 81/6 of Laggere village in favour plaintiff respondent No.2 is confirmed. Accordingly the father of the plaintiff being respondent No.2 in those proceedings had withdrawn his entire claim in so far it related to Sy.No.86 of Laggere village. Accordingly his claim in respect of the said land came to be rejected. Both the petitioners have agreed to take the possession of the land in Sy.No.81/6 as mentioned in para-3 of the Agreement and the same was affirmed. Accordingly, both the Writ Petitions came to be disposed of. This fact itself goes to show that the occupancy right granted by the Land Tribunal in favour of the plaintiff to the extent of 32 Guntas of Sy.No.1 was confirmed by the concerned landlords. The sketch at Ex.P8 reflects the topographical situation as well as location of four Hissas made in Sy.No.1 totally measuring 4 Acres 29 30 O.S.No.8597/2010 Guntas. Accordingly the father of the defendants by name Muddappa was holding Hissa No.1 - 0.38 Guntas. The father of the plaintiff -Hanumaiah was holding Hissa No.2 - 0.21 Guntas. The 3rd Hissa to the extent of 24 Guntas was held by Anjanappa and 4th Hissa is disclosing 2 Acres 26 Guntas as per index in the proceedings held in LRF.CR.46/84-85. The Encumbrance Certificate -Ex.P9 also discloses that the father of the plaintiff was holding 32 Guntas of land out of 4 Acre 32 in Sy.No.1 including 100 x 120 ft. within the boundaries as mentioned therein. The photographs at Ex.P16 and Ex.P17 disclose the location of the suit property in dispute between the parties with building surrounding the same.
21) The defendants are also relying on certain documents in support of their defence so far as the suit schedule property is concerned. Ex.D1 is the order dated.18.9.1980 passed in LRF.2173-75-76 by the Land Tribunal, Bengaluru North Taluk thereby the occupancy rights in respect of land Sy.No.1 to the extent of 38 Guntas was granted in favour of the father 31 O.S.No.8597/2010 of the defendants by name Muddappa s/o. Muniyappa as on 18.9.1980. Accordingly form No.10 was issued by the land Tribunal in respect of the said land to the extent of 38 Guntas in favour of the father of the defendants as per Ex.D2. Ex.D3 is survey sketch similar to that of Ex.P8. Ex.D4 is the notice issued to the tenant and landlords in LRF.11/74-75-2173/75-76 by the Land Tribunal, Bengaluru North Taluk fixing the date of appearance before the Land Tribunal as on 25.6.1980. The name of the father of the defendants came to be mutated in the Mutation Register in respect of Sy.No.1 to the extent of 0.38 Guntas as per Ex.D5- Mutation Register extract. Ex.D8 and Ex.D9 denote that as per the registered Partition Deed, the name of both the defendants came to be mutated in respect of Survey Number 1 to the extent of 19 Guntas each through Mutation Register No.8/2005-2006 and 19/2006-2007. The father of the defendants Muddappa obtained certificate from the BESCOM dated.27.7.2011 issued by the Asst.Executive Engineer, (EL) N4-Sub division, BESCOM, Peenya, Bengaluru - 32 O.S.No.8597/2010 58 as per Ex.D10. Ex.D11 and Ex.D12 the Electricity bills and receipt go to show that the father of the defendant was paying the said electricity bills in the month of March 2011. Ex.D13 to Ex.D18 the photographs reflect the building with open space surrounding the property of defendants, standing coconut trees along boundaries and flower cultivation of defendant as narrated by them. Ex.D21 the certified copy of order sheet dated.4626/2007 goes to show that the plaintiff herein had filed suit for bare injunction against both the defendants on 16.6.2007. The plaintiff had sought for appointment of Court Commissioner in that suit, but his request was rejected as pointed out by the defendants. Subsequently the plaintiff sought for permission to withdraw the suit with liberty to file a fresh suit by filing an application under Or.XXIII Rule 1(3) (b) of CPC on 15.11.2010. Whereas, in view of memo dated.9.12.2010, the I.A.5 came to be dismissed and also dismissed the suit as not pressed. As per the order dated.9.12.2010, the said suit was simply dismissed and no liberty was given to file a fresh suit 33 O.S.No.8597/2010 under same cause of action as asserted by the defendants herein. Ex.D24 the plaint, Ex.D25 and Ex.D26 separate written statements filed by the defendants 1 and 2 go to show that the respective parties have set up claim and defence based on the similar pleadings in the earlier suit to that of instant suit.
22) The Surveyor appointed as Court Commissioner in this case is got examined as C.W.1. It has come from the mouth of C.W.1 that, he executed Commission Warrant in the presence of both the parties and their counsel in accordance with the commission warrant and memo of instructions furnished by both the parties and then submitted his report under covering letter at Ex.C1 along with mahazar, memo of instructions submitted by plaintiff and defendants as per Ex.C1(a) and Ex.C1(b). Besides, the Court Commissioner has drawn the sketch indicating the location of the property of plaintiff and defendants in Sy.No.1 of Laggere village as per Ex.C1(c). The mahazar at Ex.C1 (d) denotes that both the 34 O.S.No.8597/2010 parties and their counsel were present at the time of Court Commissioner conducting the commission work. The Court Commissioner has also obtained photographs marked as Ex.C1
(e) to Ex.C1(y). It is evident from the cross-examination of C.W.1 that as per the survey, the land Sy.No.1 is measuring only 23 Guntas and the defendants are in physical possession of 38 Guntas which includes 11 Guntas of land. As per the sketch at Ex.C1(c), the plaintiff is in possession of 23 Guntas in Sy.No.1 and constructed the some residential houses as shown therein. On the other hand, the defendants are in exclusive possession of their portion measuring 38 Guntas in Sy.No.1 and constructed residential houses within the area marked as 'ABCDEA'. The defendants are having Nursery, Coconut bearing trees in open space within the hallow bricks compound demarcated in the sketch. Two bore wells are also within the area in possession of the defendants.
23) On scrutinizing the evidence on record, it is proved before the court that admittedly the land Sy.No.1 totally measuring 35 O.S.No.8597/2010 4 Acres 29 Guntas under the ownership of Mr.Doddamuniswamappa, Mr.Shamanna and Mr.Marappa. The father of the plaintiff and father of the defendants and others were in occupation of portions of land Sy.No.1 as tenants prior to 1974. In pursuance to the applications submitted by the father of the plaintiff and father of defendants, the Land Tribunal granted occupancy rights as per the Revenue Records to the extent of 32 Guntas in favour of father of the plaintiff and 38 Guntas in favour of father of the defendants. The fathers of both plaintiff and defendants got mutated their names in the Revenue Records in pursuance to Form No.10 issued by the Land Tribunal in the year 1981. The survey was conducted during the year 1984-85 and fixed the boundaries of the portion of land held by father of defendants and plaintiff to the extent of 38 Guntas and 21 Guntas as Hissa 1 and 2 respectively within the knowledge of the father of the plaintiff. As per the survey conducted during the year 1984-85, the father of the plaintiff was in possession to an extent of 21 Guntas but not 36 O.S.No.8597/2010 38 Guntas as continued in the Record of Rights till today. Except the survey sketch at Ex.D3, other revenue records are showing the extent of land held by the father of the plaintiff as 32 Guntas. The Record of Rights discloses that two persons Hanumaiah and Hanumaiah are holding 32 Guntas each; defendants 1 and 2 are holding 19 Guntas each apart from 23.08 Guntas remained with Doddamuniswamapa and others. Whereas the survey sketch at Ex.D3 discloses that the father of the defendants, father of the plaintiff one Anjanappa are holding land to the extent of 38 Guntas, 32 Guntas and 24 Guntas respectively apart from remaining land measuring 2 Acres 26 Guntas i.e., 4th Hissa situated towards West of the portion of land and South of defendants' portion. Though the said survey sketch was prepared after survey during the year 1984-85, yet it is not brought on record in the other Revenue records particularly, Record of Rights to take into consideration. As deposed by P.W.1, the person Hanumaiah is concerned to the Anjanappa who is holding 24 Guntas as against 32 Guntas as mentioned in 37 O.S.No.8597/2010 Record of Rights. It is a fact that the father of the defendants was in occupation of 38 Guntas out of Sy.No.1 of Laggere village as tenant under the landlord. The extent of land held by father of the defendants during the relevant period and subsequently partitioned same extent between the defendants 1 and 2. The extent of land in the physical possession and enjoyment of the defendants is remained constant even at the time of survey and subsequent to it. As noted supra, there is variation in extent of land held by not only the father of the plaintiff, but also another Hanuamaiah or said Anajanappa on comparing the survey sketch and other Revenue Records.
24) On the other hand, the Court Commissioner being Taluk Surveyor has ascertained the location as well as actual measurement of the portions of lands held by plaintiff and defendants. The Court Commissioner has not measured the entire Sy.No.1 and ascertained the actual extent of other Hissas adjoining to the suit schedule property as claimed by 38 O.S.No.8597/2010 the plaintiff. On taking into consideration the revenue records as well a survey sketch and the report of the Court Commissioner, there is no possibility of defendants to encroach upon the suit schedule land particularly, suit schedule 'B' portion measuring East to West: 100 ft. and Survey No. 120 ft. Looking to the variation in measurement as shown in Revenue Records and Survey records particularly the Ex.D3 the extent of land held by father of the plaintiff and Anjanappa (Hanumaiah) were reduced to 21 Guntas and 24 Guntas instead of 32 Guntas each. The photographs produced by not only both the parties to the suit, but also the Court Commissioner reflect that defendants are in possession of their actual area as granted by the Land Tribunal. Looking to the extent of land occupied by the father of the defendants, the occupancy rights granted by the Land Tribunal and Mutation order passed subsequent to survey conducted in respect of entire Survey Number -1, the defendants are in exclusive possession and enjoyment of portion of land as described in the survey sketch within the 39 O.S.No.8597/2010 hallow bricks compound from the lifetime of their father. The coconut trees along the boundary evidence that the defendants are in possession of the entire suit schedule 'B' portion as claimed by the plaintiff within the knowledge of not only the plaintiff, but also his father. The evidence on record clarifies that the defendants have not at all encroached upon the portion of land under the ownership of plaintiff. Except the self serving oral testimony of P.W.1, nothing is placed on record to show that the plaintiff or other co-owners are the title holders and in possession of entire 32 Guntas in Sy.No.1 i.e., 'A' schedule property. Even the boundaries in dispute as described in the suit schedule annexed to the plaint are also falsified by the rebuttal evidence adduced by the defendant.
25) It is also proved from the documentary evidence coupled with cross-examination of P.W.1 that though the plaintiff is claiming the schedule 'B' property measuring 11 Guntas as part and parcel of 'A' schedule property, yet it is proved 40 O.S.No.8597/2010 before the court that the said schedule 'B' portion is part and parcel of the property under the ownership and possession of the defendants. As noted supra, neither the father of the plaintiff nor the plaintiff had/has taken any steps to rectify the survey conducted by the Survey Department in LRF.CR.No.46/84-85 by challenging the extent of land granted by the Land Tribunal reduced from 32 Guntas to 21 Guntas as now asserted by the plaintiff. The plaintiff has failed to prove that his father was in possession of 32 Guntas of land either at the time of conferring the occupancy rights by the Land Tribunal or subsequent to survey conducted by the Survey Department. On the contrary, it is proved from the evidence adduced by the defendants that the alleged encroachment to the extent of 11 Guntas as described in the schedule 'B' portion is not only a part and parcel of 38 Guntas of land under the ownership of defendants, but also in their exclusive possession from the lifetime of their father till today. Infact, the plaintiff and his father kept quite for a considerable period from 1984-85 41 O.S.No.8597/2010 till the date of filing of the suit without challenging the order passed by the Survey Authority during the year 1984- 85 for the reasons best known to them. As discussed supra, the report of the Court Commissioner is also not helpful for ascertaining any sort of encroachment over the property granted to the father of the plaintiff by other occupants other than the defendants. It is also uncertain whether the plaintiffs are in actual possession of 21 Guntas or 23 Guntas as reported by court commissioner in Sy.No.1 subsequent to survey conducted in the year 1984-85. Hence I answer Issue Nos.1 to 5 in the Negative, Issue No.7 partly in the Affirmative and Issue No.9 in the Affirmative.
26) Issue No.8:- The contentions of the defendants is that the plaintiff has filed the suit for declaration, possession and injunction in his individual capacity against the defendants as the defendants only encroached upon the 'B' schedule portion. As it is evident from the cross-examination of P.W.1 the plaintiff is having three brothers and four daughters. The 42 O.S.No.8597/2010 suit property was acquired by the father of the plaintiff who died intestate. Besides, the suit property is still standing in the name of the father of the plaintiff. In the absence of clinching evidence, it can be safely hold that the Class-I legal heirs of deceased Hanumaiah are together entitled to succeed the suit schedule property along with other properties left behind by the deceased father -Hanumaiah. The plaintiff is not legally authorised by other co-owners to file the suit. Looking to the nature of reliefs claimed with regard to the suit schedule property, the other heirs of the father of the plaintiff are necessary parties. In fact the suit of the plaintiff is bad for non-joinder of brothers and sister of plaintiff. But not at all bad for non-joinder of other adjoining owners of the land in Sy.No.1 as the plaintiff has set up a specific claim of encroachment as against the defendants herein only. If the plaintiff could have asserted encroachment by adjoining owners in Sy.No.1, then the matter would have been different. Looking from any angle, the suit of the plaintiff is also bad for non-joinder of 43 O.S.No.8597/2010 necessary parties. Hence I answer Issue No.8 in the Affirmative.
27) Issue Nos.6 and Addl. Issue No.1:- As averred in the plaint, the cause of action for the suit arose since one week from 12.6.2007 and subsequently when the defendants made attempts to trespass, encroach and disturb the plaintiff's peaceful possession and enjoyment of the suit schedule property and illegally dispossessed him etc., In view of admission of P.W.1 in the course of his cross-examination, it is clarified that the father of the plaintiff had got surveyed the suit schedule 'A' property. The extent shown in Ex.P8- the Survey sketch is correct. The plaintiff has not got surveyed the suit schedule 'A' property before filing of the suit. The plaintiff has furnished the boundaries of the suit schedule 'B' portion on the basis of possession. According to the plaintiff, the defendants have approximately encroached 11 Guntas of his property and the plaintiff measured his own lands by foot steps and it was less in extent. Only on these grounds, the plaintiff has not only filed the earlier suit in 44 O.S.No.8597/2010 O.S.No.4626/2007, but also filed the instant suit. It is quite clear from the plaint in O.S.No.4626/2007 at Ex.D24 that the cause of action to file that suit was also arisen on 12.6.2007 when the defendants made attempts to trespass into the land of the plaintiff. Both the defendants have taken up similar defence as it is evident from their separate written statements at Ex.D25 and Ex.D26.
28) The plaintiff was expected to have sought for relief of declaration and possession along with permanent injunction even in the earlier suit, but the plaintiff for the reasons best known to him, not only got dismissed that suit by filing memo, but also filed the instant suit in respect of the same cause of action. When the plaintiff or his father knew that the extent of their land was reduced to 21 Guntas as against the total extent of 32 Guntas in the year 1985 and they were in possession of only 21 Guntas, then they ought to have filed the suit within two years as contemplated in Sec.41 of Karnataka Land Reforms Act 1961 seeking possession from 45 O.S.No.8597/2010 Tahsildar or within 12 years from the date of dispossession as provided under Article 64 of the Indian Limitation Act. Thus considering all the aspect of the matter, the suit of the plaintiff is not only barred by limitation, but also without cause of action against the defendants in respect of the suit schedule 'B' property. Hence I answer both the issues in the Negative.
29) Issue No.10:- In view of my findings on Issue Nos.1 to 9 and Addl. Issue No.1, without much discussion I hold that the plaintiff is not at all entitled for any of the reliefs as against the defendants herein. Hence I answer Issue No.10 in the Negative.
30) Issue No.11:- In view of my findings on Issue Nos.1 to 10 and Addl. Issue No.1 and reasons stated therein, in the result, I proceed to pass the following:-
46 O.S.No.8597/2010
O R D E R The suit of the plaintiff is dismissed.
No order as to costs.
Draw up a decree accordingly.
(Dictated to the Judgment Writer, transcript thereof corrected and then pronounced by me, in open Court, this the 18th day of June 2015.) (BHAIAPPA SHIVALING NAIK) XII Addl. City Civil & Sessions Judge, Bangalore A N N E X U R E I. List of witnesses examined on behalf of:
(a) Plaintiff' side :
P.W.1: Mr.Munikrishnappa
(b) Defendant's side :
D.W.1: Mr.Anantharamu
II. List of documents exhibited on behalf of :
(a) Plaintiff' side :
Ex.P1: Certified copy of order passed by Land Tribunal Ex.P2: True copy of mutation register extract Ex.P3 to RTCs. (four in number) P6:47 O.S.No.8597/2010
Ex.P7: Certified copy of order passed in
W.P.No.9817-18/1976
Ex.P8: Copy of sketch issued by Spl.Tahsdilar
Land Tribunal
Ex.P9: Encumbrance Certificate
Ex.P10 to RTCs
P15:
Ex.P16& Two photographs
P17:
Ex.P16(a) Negatives of Ex.P16 & Ex.P17
& 17(a):
(b) Defendants side :
Ex.D1: Certified copy of order
dt.18.9.1980 passed by Land
Tribunal Bangalore North Taluk.
Ex.D2: Copy of Form No.10 dt.19.3.1981
issued by Land Tribunal
Bangalore North Taluk.
Ex.D3: Copy of Survey Sketch issued by
Land Tribunal Bangalore North
Taluk.
Ex.D4: Copy of Notice dt.22.5.1980
issued by Land Tribunal
Bangalore North Taluk.
Ex.D5: Copy of mutation register
extract
Ex.D6: RTC
Ex.D7: RTC
Ex.D8: Mutation register extract
Ex.D9: Mutation register extract
Ex.D10: Certificate issued by BESCOM
Ex.D11: Electricity bill
Ex.D12: Receipt
48 O.S.No.8597/2010
Ex.D13-18: Six photographs
Ex.D19: CD
Ex.D20: Receipt issued by Alankar Studio
and Video
Ex.D21: Certified copy of order sheet in
O.S.4626/2007
Ex.D22: Certified copy of memo
dt.9.12.2010 in O.S.4626/2007
Ex.D23: Certified copy of I.A.filed in
O.S.4626/2007
Ex.D24: Certified copy of Plaint in
O.S.4626/2007
Ex.D25: Certified copy of written
statement O.S.4626/2007
Ex.D26: Certified copy of written
statement O.S.4626/2007
XII ADDL.CITY CIVIL & SESSIONS
JUDGE, BANGALORE CITY.
49 O.S.No.8597/2010
(Judgment pronounced in open
court)
The suit of the
plaintiff is dismissed.
No order as to costs.
Draw up a decree
accordingly vide Judgment
passed.
XII ACCJ;Bangalore