Karnataka High Court
Sri M Sreepada Rao vs Sri Gowdara Neelakanta on 10 January, 2014
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10th DAY OF JANUARY, 2014
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
REGULAR SECOND APPEAL NO.789/2008 (DEC. & INJ.)
BETWEEN:
Sri. M. Sreepada Rao
S/o. late M. Lakshmana Rao
Aged 67 years
Retired Professor
Vijayanagar College
Residing at # 15/132
Nehru Cooperative Colony
Hospet 583201
Bellary District.
... APPELLANT
(By Sri. Ravi Hegde, Advocate)
AND:
Sri. Gowdara Neelakanta
S/o. Sri. Gowdara Ramanagouda
Aged 50 years
Residing at 9th ward, New Road
(Old Medar Road)
Hospet - 583 201
Bellary District.
... RESPONDENT
(By Sri. J. S. Shetty, Advocate)
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THIS APPEAL IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGEMENT & DECREE DATED 04.12.2007
PASSED IN R.A.NO.10/2004 ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT NO.III, HOSPET,
DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 24.11.2003 PASSED IN
O.S.NO.84/1998 ON THE FILE OF THE CIVIL JUDGE,
(SR.DN.), HOSPET.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned Counsel for the appellant regarding admission and perused the records.
2. The present appeal filed under Section 100 of CPC is directed against the concurrent judgment passed in O.S.No.84/1998, which was pending on the file of the Court of Civil Judge (Sr.Dn.), Hospet and confirmation of the same in Regular Appeal No.10/2004 by the learned Presiding Officer of Fast Track Court-III, Hospet on 04.12.2007. The plaintiff who is aggrieved by the said judgment and decree of the trial Court and confirmation of the same in the Regular 3 Appeal is challenging the concurrent finding on the various grounds as set out in the appeal memo.
3. Several grounds have been urged in the appeal memo apart from producing the following questions of law in the appeal memo as found in typed page 7 ink page 10 of the appeal memo in paragraph 28:
a. Whether the Courts below are right in rejecting the claim of the appellant in spite of oral as well as documentary evidence about ownership and possession which was not disputed by the respondent?
b. Whether the original Court is right in deciding all the issues even after reframing the issues as contemplated under Order XIV Rule 5 CPC?
c. Whether the original Court has right to decide all the issues by giving common findings, contrary to order XX Rule 5 CPC?
d. Whether the 1st Appellate Court is right in deciding the appeal by itself without recording evidence after having reframed the issues in the 4 form of points as contemplated under Section 107(c) of CPC?
The appellant was the plaintiff in the said suit and respondent was the defendant in the said suit. The parties will be referred to as plaintiff and defendant as per their rank in the trial Court.
4. A suit came to be filed by the plaintiff seeking relief of declaration to the effect that he is the absolute owner of the suit schedule property and for the consequential relief of permanent injunction as also mandatory injunction. The suit property is stated to be an open site measuring 7.74 acres situated in survey Nos.253 and 254 belonging to Nehru House Building Co-operative Society of Hospet, being bounded on east by plot No.54 i.e., plot of plaintiff, on west survey No.237/3 (property of Gandhi Housing Co-operative Society) north plot No.D-53 inclusive of open site with compound and south plot No.D-55 inclusive of open site. According to the plaintiff, construction of building in the said suit has come up measuring east to west 38ft and north to 5 south 40 ft. In the suit two house building co-operative societies have been referred to. One is Nehru House Building Co-operative Society and another is Gandhi House Building Co-operative Society. The said Nehru House Building Co- operative Society is also called as Hospet Building Co- operative Society. Nehru Society was established in the year 1924 at Hospet and it had been formed with a purpose to cater residential houses to needy. Per contra Gandhi Society was established in the year 1960 with the same intention. Nehru Society had acquired agricultural lands in survey Nos.254 and 255 of Hospet for the purpose of formation of residential sites and the lands were converted into non- agricultural lands and thereafter, sites were carried out in both these survey numbers. Sites so carried out in these survey numbers were approved by the Joint Director of Town Planning, Government of Madras on 19.07.1950. The said approved plan is marked as Ex.D2. Plot No.D-54 formed in survey No.253 and 254 has been allegedly allotted to the foster mother of the plaintiff whose name was Sundramma on 6 19.08.1960 under a registered sale deed, certified copy of which is marked as Ex.D1. Later the said Plot No.D-54 was transferred in the name of the plaintiff. Land bearing survey No.237-B2 measuring in all 7.74 acres of Hospet is stated to be situated on western side of survey Nos.253 and 254 and survey No.237-B2 was acquired by Gandhi Society for formation of residential plots and the land was converted into non-agricultural purpose and a legitimate plan of the same came to be approved in 1963 which is marked as Ex.D11. According to the plaintiff, plot No.54 was allotted and sold to Neelamma by the said Gandhi Society and subsequently the said Neelamma sold the same in favour of Anil Kumar and in turn Anil Kumar sold the same in favour of one Swamy Rao and the said Swamy Rao is stated to have sold the said land bearing plot No.54 to the defendant. The certified copy of the sale deeds mentioned above have been marked as Exs. D8 to D10.
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5. Averments of the plaintiff is that, a common boundary exists between the properties of the lands purchased by Nehru Society and that there is never ending dispute in respect of such boundary line. According to the plaintiff, suit property belonging to Nehru Society was purchased by him in a registered sale deed dated 10.12.1992 vide Ex.P19 for consideration of Rs.1,520/- based on the resolution passed by the said Nehru Society on 13.07.1979. He is stated to have taken possession of the suit schedule property situated behind the west of the plot purchased by his foster mother.
6. Plaintiff's further averment is that, suit schedule property is situated in survey Nos.253 and 254 belonging to Nehru Society and it is a land locked area and therefore, the owner of plot No.D54 alone would be the beneficiary. According to him, the said land locked area adjacent to D-54 plot was sold in his favour in a resolution passed by the Society. According to him, a temporary injunction had been 8 obtained by him restraining the defendant from encroaching suit property and from making any construction. In spite of the same, the defendant is stated to have violated the temporary injunction order and put up construction and therefore, the relief of mandatory injunction was sought during the pendency of the suit. With these pleadings suit had been filed.
7. The defendant had filed written statement. The defendant has averred that, the suit schedule property described in the schedule appended to the plaint is an imaginary property and that it does not exist. Identity of the plot given by the plaintiff is stated to be doubtful and plaintiff is stated to be claiming right over the suit schedule property through Nehru Society and that the said Nehru Society is a necessary party. It is further averred that the lands bearing Sy.Nos.253 and 254 were converted for non-agricultural purpose and layout was approved on 19.07.1950 and many plots of various sizes were formed as per Ex.D2 and it is 9 further averred that plots having numbers D48 to D58 i.e., 'D' class plots are situated on the western edge and western boundary line of the land of Sy.Nos.253 and 254. It is his case that some western bit of land in Sy.Nos.253 and 254 at the tale end was in his possession for quite a long time and therefore, he has perfected his title by way of adverse possession and that the adjacent land owner Mr.Tarihalli Jambappa, who was the owner of Sy.No.237/B2, had encroached the said land. It is his case that the plaintiff cannot deny the title of the defendant and that the plaintiff neither enjoyed nor possessed any irregular bit of land at any point of time and similarly Nehru Society also did not have either title or possession and that suit schedule property is not a part and parcel of Sy.Nos.253 and 254.
8. According to him, Gandhi Society had transferred its right in favour of Tarihalli Jambappa, adjacent owner of the land and that in all the sale deeds executed by Nehru Society pertaining to 'D' class plots, the western side of D-class plots 10 in Sy.Nos.253 and 254 name of Tarihalli Jambappa is mentioned as existing on the western side. According to him, even the sale deed executed in favour of the foster mother of the plaintiff also discloses the western boundary as the land of Tarighalli Jambappa. With these allegations he had requested the Court to dismiss the suit.
9. On the basis of which following issues came to be framed:
1. Whether the plaintiff proves that he is the owner of the suit schedule property?
2. Whether the plaintiff proves that defendant has encroached and put of construction on the portion of the suit schedule property after filing this suit?
3. Whether the Defendant proves that the suit of the plaintiff is liable to be dismissed with exemplary costs as in the written statement?
4. Whether the plaintiff is entitled to the reliefs sought for?
5. What order or decree?
Issues dated 04.11.1995 11
1. Whether the plaintiff proves his title over the plaint schedule property?
2. Whether the plaintiff proves that he was in the lawful possession of the plaint schedule property as on the date of the filing of the suit?
3. Whether the plaintiff proves that Defendant has put up the construction over the suit property illegally during the pendency of the suit?
4. Whether the Defendant proves that T.Jambappa was the owner of the extra un-even and irregular bit of land situated to the west of the plots D-48 to D-58 situated in Sy.No.253 and 254 of Hospet by virtue of adverse possession as contended in Para 3 of Written Statement ?
5. Whether the Defendant proves that the suit schedule property is worth more than Rs.2,50,000/-?
6. Whether the plaintiff is entitled to the reliefs which he has claimed in this suit?
7. What order or decree?
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10. In all eight witnesses have been examined on behalf of the plaintiff including the plaintiff examined as PW1. 36 documents have been got marked. Three witnesses including the defendant have been examined and 14 exhibits have been got marked. After recording the evidence and hearing the arguments, the learned Senior Civil Judge of Hospet, has answered issues 1, 2 and additional issues 1 to 3 and additional issue No.6 in the negative. Additional issue No.4 has been answered in the affirmative. Ultimately the suit has been dismissed. It is this judgment and decree passed in O.S.No.84/1998 which had been called in question on various grounds before the District Court at Bellary under Section 96 of CPC and the matter had been assigned to the Court of Fast Track Court-III, Hospet, and the same was numbered as R.A.No.10/2004. After hearing the arguments, the learned Judge of the First Appellate Court has chosen to dismiss the appeal and thereby confirmed the judgment and decree passed by the trial Court. It is this judgments passed 13 by the trial Court and the First Appellate Court which are called in question under Section 100 CPC.
11. Ex.D1 is the certified copy of the registered sale deed of the plot of foster mother of plaintiff pertaining to plot No.D-54. Admittedly the said plot bearing D54 had been purchased by the foster mother of the plaintiff during 1960 and later on she chose to transfer the said plot in favour of the plaintiff during 1992-93. The plaintiff has specifically stated that the said suit property is part and parcel of the land purchased by Nehru Society and the same is situated on the western side of the plot bearing No.D-54. As rightly pointed out by the trial Court, if really the suit property had been situated on the western side of plot No.D-54, it should have found a place in the registered sale deed executed by the Society in favour of the foster mother of the plaintiff. ExD1 is an undisputed document indicating the western boundary of plot No.D54 as land of one of Tarahalli Bharmappa. It is an undisputed fact that the said Bharmappa had purchased the 14 property from Gandhi Society during 1967 and the sites had been formed by Gandhi Society in 1967 and later on approved by the competent authorities which is evidenced by Ex.D11.
12. The pleadings are sacrosanct for a decision of any civil case. No pleading is forthcoming in the plaint as to why the suit property is not mentioned in Ex.D1. Even otherwise there is no convincing explanation offered during the course of his examination about this material fact. When Nehru Society itself had no right over the schedule property, it could not have conveyed any better title and this aspect has been considered by the trial Court and affirmed by the Appellate Court. If the open space considered as suit property really belonged to Nehru Society, it would have been mentioned in the sale deed Ex.D1. The boundaries of Ex.D1 relating to Plot D-54 would disclose that the property so sold in favour of the plaintiff's foster mother is the end and the last boundary of the property of Nehru Society. Thereafter the property of Tarihalli Bharmappa existed. The said property was later on 15 purchased by Gandhi Society. Critically analysing Ex.D1 in the light of the oral evidence of plaintiff and other witnesses, the trial Court has come to the conclusion that it falsifies the case of the plaintiff and he cannot go against the contents of his own sale deed. The rule of estoppel as per Section 115 of CPC has been applied and this Court does not find any infirmity in application of that rule of estoppel.
13. Ex.D2 is the approved layout map of the land purchased by Nehru Society and it had been approved by the Joint Director of Town Planning, Government of Madras. This document establishes that on the western side of the plot of the foster mother of the plaintiff, land of Tarahalli Bharmappa existed and after purchasing the same, Gandhi Society formed plots and were approved vide Ex.D11. As rightly pointed out even in Ex.D2 there is no reference about existence of suit property on the western side.
14. Ex.D2 which has come into existence at an undisputed point falsifies the case of the plaintiff or cuts the 16 case of the plaintiff at the root. Nehru Society never raised any objection or dispute in regard to Ex.D2 and it is not the case of Nehru Society or the plaintiff that Gandhi Society has encroached the area belonging to the Nehru Society. Ex.D3 is the certified copy of the proceedings of Town Municipality of Hospet, dated 18.12.1992 in regard to the resolution to transfer the open site purchased by the defendant in plot No.54 and Ex.D4 is the endorsement. This endorsement marked as Ex.D4 indicates that the plot No.54 was transferred in the name of predecessor of defendant. Ex.D5 is the Municipal licence dated 18.02.1993 and Ex.D6 is the licence issued by the TMC to put up construction by the defendant. These documents are not disputed and these documents falsify the alleged encroachment or illegal construction stated to have been made by the defendant. Ex.D7 is an entry regarding sale of plot Sy.No.54 purchased by the defendant with exact boundaries. Defendant has purchased the same from Swamy Rao and Swamy Rao had purchased it from Anil and the said Anil had purchased the 17 same from Neelamma. The eastern boundary of this document depicts that towards the east was the plot sold to defendant, West Plot No.53, North: Plot No.41 and South Road. If really the suit schedule space had existed, as claimed by the plaintiff, it would have been mentioned as the eastern side plot of the defendant but there is no such mention in Ex.D7. The certified copies of the said sale deeds have been marked as Exs.D8 to D10. They have not been challenged in any manner. Ex.D11 is a very material document being the layout of Gandhi Society approved by the competent authorities in 1969 and this document clearly indicates that towards the eastern side of plot No.54, reserved plot of Gandhi Society existed. This fact nullifies the case of the plaintiff and on the other hand it probabilises the case of the defendant.
15. Having considered the oral evidence of the parties and the various documents placed on record, the learned Trial Judge has given proper finding and these factual 18 findings are based on critical analysis of the oral and documentary evidence. The judgment of the trial Court is self-explanatory as to the manner in which the critical analysis has been done in regard to the oral and documentary evidence. The factual findings so given by the trial Court have been approved in toto by the First Appellate Court after proper re-assessment of the documentary and oral evidence. It is further held by the First Appellate Court that Exs.P28 to 31 are the Society documents and they do not confer any title on the plaintiff. It is specifically observed by the First Appellate Court that there should have been a specific averment in the plaint that towards the western portion of the land in Sy.Nos.253 and 254 there existed a space belonging to Nehru Society and it was found to be in the possession of Gandhi Society and later on, by mutual consent between the two societies that portion was taken back to Nehru Society. Without there being any specific plea by the plaintiff to that effect, the plaintiff could not have pursued his case, is the 19 observation. It is further held that PW4 cannot deviate from the pleadings.
16. In paragraph-16 of the First Appellate Court judgment, the learned First Appellate Judge has specifically held Nehru Society did not have any power to execute a sale deed as it was never the case of Nehru Society that to the western side of the land purchased by it, some vacant land belonging to their society still was lying. On the other hand, Jamappa was on the western side of Gandhi Society.
17. The First Appellate Court, based on the findings recorded by the trial Court, has specifically held that with respect to Plot No.54, the respondent has every right to continue it as a matter of right and if Gandhi Co-operative Society has powers to evict him, that society alone has the right and Nehru Society or the plaintiff has no right to do so. The appellant having purchased the property belonging to Nehru Co-operative Society has no right to seek eviction of the defendant which belonged to Gandhi Co-operative Society. 20
18. The First Appellate Court has discharged the responsibility as the final Court of facts as contemplated under Section 96 of CPC keeping in mind the principles reiterated by the Hon'ble Supreme Court in the case of Santosh Hazari Vs. Purushottam Tiwari reported in AIR 2001 SC 965. When the First Appellate Court intends to confirm the well reasoned judgment of the trial Court, it need not re-state all the facts and it is sufficient if main reasons are assigned by it in regard to the confirmation of the well reasoned factual findings. Neither the trial Court nor the First Appellate Court has committed any irregularity or illegality. No perversity or absurdity is found in the approach adopted by both the Courts and the concurrent findings of both the Courts cannot be interfered with any manner.
19. Suffice to state that the questions of law framed on behalf of the appellant in the appeal memo filed before this Court are not substantial questions of law as contemplated under Section 100 and even otherwise, no substantial 21 questions of law do arise for consideration of this Court. There is no other avenue except to dismiss the appeal at the stage of admission by confirming the concurrent judgment of the Trial Court and the Appellate Court.
ORDER Appeal filed under Section 100 of CPC is dismissed. The impugned judgment of the trial Court passed in O.S.No.84/1998 and affirmed in R.A.No.10/04 are confirmed.
No costs.
SD/-
JUDGE GAB/JT/-