Karnataka High Court
Smt Dhanawathi vs Sri B Venkatarayappa on 6 April, 2023
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A.NO.705 OF 2007 (INJ)
BETWEEN:
1. SMT. DHANAWATHI
W/O N.PARAMESHWARAPPA
AGED ABOUT 55 YEARS
2. SRI. N.PARAMESHWARAPPA
S/O NANJAPPA
AGED ABOUT 60 YEARS
BOTH ARE RESIDING
AT NO.391, ARALEPET,
CHICKBALLAPUR
KOLAR DISTRICT - 562 101.
...APPELLANTS
(BY SRI. K.N.NITISH, ADVOCATE)
AND:
1. SRI. B.VENKATARAYAPPA
S/O VENKATAPPA
DEAD BY LRS.
(a) SRI. P.V.MUNIYAPPA
S/O LATE B. VENKATARAYAPPA
MAJOR
2
(b) SMT. YASHODAMMA
D/O LATE B. VENKATARAYAPPA
MAJOR
2. SRI. RAMAPPA @ RAMAIAH
S/O GUNDAPPA
AGED ABOUT 45 YEARS
SINCE DEAED BY LRS.
(a) SMT. T.V. SUNANDAMMA
W/O LATE RAMAPPA @ RAMAIAH
AGED 62 YEARS
(b) SRI. B.R.MANJUNATH
S/O SRI. RAMAPPA @ RAMAIAH
AGED 38 YEARS
(c) SRI. B.R. VENKATESH
S/O SRI RAMAPPA @ RAMAIAH
AGED 36 YEARS
ALL ARE R/O BALAKUNDAHALLI
NANDI HOBLI
CHICKBALLAPUR TALUK & DISTRICT.
(AMENDED AS PER ORDER DTD:27.08.2021)
3. SRI. NARASIMHAIAH
S/O NYATHAPPA
AGED ABOUT 56 YEARS
LRs. 1(a) AND 1(b) AND RESPONDENTS
2 AND 3 ARE RESIDENTS OF BALAKUNTAHALLY
NANDI HOBLI, CHIKBALLAPUR TALUK - 562 101.
...RESPONDENTS
(BY SRI. C.M.NAGABHUSHANA &
SRI. P.M.CHANDRASHEKAR, ADVOCATES FOR R3;
R1(A & B) & R2(A TO C) SERVED)
3
THIS RSA IS FILED U/S 100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 27.11.2006 PASSED IN
R.A.NO.100/2003 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) &
JMFC, CHIKKABALLAPUR, DISMISSING THE APPEAL FILED
AGAINST THE JUDGMENT AND DECREE DTD:26.03.2003
PASSED IN O.S.NO.124/1988 ON THE FILE OF THE ADDL. CIVIL
JUDGE (JR.DN.) & JMFC, CHICKABALLAPUR.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 24.02.2023, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The captioned second appeal is filed by the plaintiffs feeling aggrieved by the concurrent judgment and decree of the Courts below wherein plaintiffs suit seeking relief of injunction simplicitor is dismissed by both the Courts below. These concurrent findings are under challenge.
2. For the sake of brevity, the parties are referred to as per their rank before the trial Court.
3. The facts leading to the case are as under: 4
Plaintiffs claim that they are the absolute owners of the suit schedule properties. The plaintiffs claim that site No.4 belongs to plaintiff No.1 and site No.3 belongs to plaintiff No.2. Plaintiff Nos.1 and 2 who are wife and husband respectively claimed that they are in lawful possession and enjoyment over the suit schedule properties. The present suit is filed alleging that defendants are highhandedly trying to plough the suit schedule properties in order to destroy the boundary of the suit schedule properties and tried to interfere with plaintiff's peaceful possession over the suit schedule properties.
4. The defendants, on receipt of summons, tendered appearance and filed written statement and denied the entire allegations made in the plaint. The defendants on the contrary claimed that suit Sy.No.37 totally measuring 2 acres 15 guntas was originally owned by one B.Venkatarayappa who in-turn sold southern portion of 2 acres of land in favour of one Abdul Salam and Riaz 5 Ahamed under registered sale deed dated 06.03.1984. The defendants further contended that the said purchasers in- turn sold 2 acres in favour of defendant Nos.2 and 3 under registered sale deed dated 31.03.1985. The defendants asserting title claimed that they are in actual possession of 2 acres of land in Sy.No.37 as absolute owners. The defendants furnished the sketch along with written statement and claimed that they have constructed a stone compound and the same is constructed much prior to filing of the suit and therefore, sought for dismissal of the suit.
5. The plaintiffs and defendants to substantiate their respective claim have let in oral and documentary evidence. While plaintiffs have placed on record the title documents which are marked at Exs.P-1 and P-2 and copy of approved layout plan vide Ex.P-8, the defendants by way of rebuttal evidence have placed on record copy of judgment and decree passed in R.A.Nos.82/1999 and 6 83/1999 vide Exs.D-1 and D-2, while copy of registered sale deed is produced at Exs.D-3 and D-4.
6. The trial Court having gone through the pleadings and oral and documentary evidence, examined the rival claim in regard to location of the suit schedule properties as there was serious dispute in regard to the claim of plaintiffs that they have purchased 2 sites measuring 40 x 60 ft. from B.Venkatarayappa in 1994. The learned Judge placing reliance on the judgment and decree rendered in O.S.Nos.46/1986 and 47/1986 which was also pertaining to the same layout and same survey number, accepted the contention of the defendants. Referring to the findings recorded in the connected suits, the trial Court held that since the topography of location of the properties as claimed in the connected suits by the plaintiffs is negatived, the learned Judge was of the view that since plaintiffs are also ascertaining the location of properties on same set of facts, proceeded to hold that plaintiffs' vendor namely 7 B.Venkatarayappa had no right to sell the southern portion of Sy.No.37.
7. The trial Court referring to the title documents was of the view that plaintiffs' vendor B.Venkatarayappa had retained only open space measuring East-West 270 feet and North-South 60 feet. Therefore, learned Judge has come to conclusion that the open space retained by the original owner B.Venkatarayappa measures only 60 feet facing Chikkaballapur-Gowribidanur Road i.e., towards North-South and therefore, plaintiffs cannot claim the measurement towards North-South as 270 feet. The learned Judge while examining the Mahazar at Ex.P-7 has compared the same with the sketch prepared by the Court Commissioner vide Ex.D-6. While referring to the sketch, learned Judge has come to conclusion that the sale deed executed by the erstwhile owner B.Venkatarayappa in favour of defendant Nos.1 and 2 vide Ex.D-1, the boundaries clearly tallies with each other. It is in this 8 context, learned Judge has come to conclusion that the portion retained by Venkatarayappa is not adjoining to Gowribidanur-Chikkaballapur Road, but it is situated towards the Northern side of entire suit survey number.
8. The learned Judge referring to rebuttal evidence let in by the defendants held that the sale deed vide Ex.D-1 executed by defendant No.1 in favour of Abdul Salam and Riaz Ahamed which is to an extent of 2 acres in Sy.No.37 prevails over the sale deed executed by defendant No.1 in favour of plaintiffs. Referring to the evidence on record, trial Court has recorded a finding that though defendant No.1 retained a portion to an extent of 15 guntas in Sy.No.37, but he has allegedly formed site in southern portion which was sold in favour of defendant Nos.2 and 3. The learned Judge, therefore, proceeded to hold that defendant No.1 had no saleable title over the southern portion and therefore, plaintiffs have not acquired right and title under Exs.P-1 and P-2. The learned Judge has 9 recorded a finding that plaintiffs have not disputed the defendants possession over 2 acres of land. Consequently, suit is dismissed.
9. Feeling aggrieved by the judgment and decree of the trial Court in dismissing the suit, the plaintiffs preferred appeal before the Appellate Court.
10. The Appellate Court has independently assessed the entire evidence on record. The Appellate Court while taking cognizance of the judgments rendered in R.A.Nos.82/1999 and 83/1999 arising out of O.S.Nos.46/1986 and 47/1986, found that the plaintiffs in the said suits suffered decree at the hands of the Appellate Court and though suit for injunction was dismissed, have not preferred second appeal questioning the decree in R.A.Nos.82/1999 and 83/1999. It is in this background, Appellate Court has come to conclusion that the trial Court has not committed any error in dismissing the plaintiffs suit 10 seeking injunction. Appellate Court has also placed reliance on the findings recorded in the above said two appeals, wherein a finding is recorded that these suit sites are not situated on the southern side of Sy.No.37. Consequently, Appellate Court proceeded to dismiss the appeal.
11. These concurrent findings are under challenge at the instance of the plaintiffs.
12. This Court vide order dated 02.04.2012 was pleased to admit the appeal on the following substantial question of law:
"In the light of the findings and conclusion in the judgment dated 03.09.2007 passed in RSA.Nos.1059/2001 c/w 17/2002, whether the impugned judgment is sustainable?"
13. Learned counsel appearing for the plaintiffs would vehemently argue and contend that the conversion order vide Ex.P-6 and Mahazar drawn in pursuance of 11 conversion order clearly establishes that the converted portion measuring 15 guntas retained by defendant No.1 is bounded on the western side by a road. The property is purchased by one Vajramma and Yashodamma who were the plaintiffs in the connected suits bearing O.S.Nos.46/1986 and 47/1986. Even there, the boundary towards the west of their site is shown as road. He would vehemently argue and contend that the commissioner report also clearly indicates that the road runs North-South and sites formed by defendant No.1 is on the Eastern side of the said road which presupposes that all the sites purchased are bounded by road on the west side.
14. Learned counsel reiterating the grounds urged in the appeal memo would straight away place reliance on the judgment rendered by this Court in RSA.No.1059/2001 c/w RSA.No.17/2002. Placing reliance on the findings recorded by this Court while reversing the judgment and decree of the Appellate Court in R.A.Nos.82/1999 and 83/1999, he 12 would point out that this Court has recorded a categorical finding that the portion retained by defendant No.1 Venkatarayappa was open space measuring 270 feet North- South and 60 feet East-West and the location, identity and title of the property is exclusively decided by this Court in the above said second appeals.
15. Learned counsel while placing reliance on the said judgment, has taken this Court to the provisions of Sections 41 to 45 of Indian Evidence Act and has placed reliance on the judgment rendered in the case of Ishwar Dutt vs. Land Acquisition Collector and Others1 and Dadu Dayalu Mahasabha vs. Ram Niwas & Others2. Relying on these two judgments, he would vehemently argue and contend that the findings recorded by this Court in RSA.No.1059/2001 c/w RSA.No.17/2002 is given a quietus insofar as location of the properties are concerned and therefore, the principles of res judicata are squarely 1 MANU/SC/0477/2005 2 MANU/SC/7674/2008 13 applicable and therefore, defendants are estopped from disputing the location under Section 11 of CPC.
16. Placing reliance on the judgment rendered in the case of Bhanu Kumar Jain vs. Archana Kumar3, he would contend that res judicata debars a Court from exercising its jurisdiction to determine the lis. He would conclude his arguments by contending that if such an issue is decided against a party, he would be estopped from raising the same in the latter proceedings. He would also argue and contend that Doctrine of res judicata creates a different kind of estoppel viz., estoppel by accord.
17. While placing reliance on the judgment rendered by the Coordinate Bench of this Court in RSA.No.1059/2001 c/w RSA.No.17/2002, he has placed reliance on the judgment rendered by the Hon'ble Apex Court in the case of Gaiv Dinshaw Irani and Others vs. Tehmtan Irani and 3 AIR 2005 SC 626 14 Others4. Placing reliance on the said judgment, he would contend that the Courts can take cognizance of subsequent development which would have a direct bearing on the lis. Therefore, he would vehemently argue and contend that the subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief, Courts are not precluded from taking a cautious cognizance of the subsequent changes of facts and it is well within the jurisdiction of the Appellate Court to mould and grant appropriate reliefs.
18. Per contra, learned counsel appearing for the defendants would, however, counter the arguments canvassed by the learned counsel appearing for the plaintiffs. Placing reliance on the judgment rendered by the Hon'ble Apex Court in the case of Kharkan and Others vs. State of Uttar Pradesh5, he would contend that the earlier judgment though admissible but, however, he would 4 MANU/SC/0475/2014 5 AIR 1965 SC 83 15 contend that it is not admissible for the purpose of relying upon the appreciation of evidence. Placing reliance on the judgment cited supra, he would contend that the judgment rendered by this Court in RSA.No.1059/2001 c/w RSA.No.17/2002, is not at all relevant while assessing the evidence in the present case on hand. He would vehemently argue and contend that the judgment of the Courts are admissible in evidence under the provisions of Sections 40 to 42 of Indian Evidence Act and those judgments which do not fall within four corners of Sections 40 to 42 are inadmissible unless the existence of such judgments is itself a fact in issue or a relevant fact under some other provisions of Evidence Act. Therefore, he would contend that the judgment rendered by this Court in RSA.No.1059/2001 c/w RSA.No.17/2002 is not at all relevant as it does not fulfill the conditions laid down by the Indian Evidence Act under Sections 40 to 42. 16
19. Learned counsel has also placed reliance on the judgment rendered by the Hon'ble Apex Court in the case of Surendra Kumar Vakil and Others vs. Chief Executive Office, M.P. and Others6. Relying on the said judgment, he would contend that the judgment rendered by the Coordinate Bench in RSA.No.1059/2001 c/w RSA.No.17/2002 cannot be relied as a piece of evidence as it is not tendered in evidence.
20. While arguing the admissibility of evidence as against appreciation of evidence, he has referred to Section 41 of the Indian Evidence Act to contend that the judgment relied on by the plaintiffs rendered by the Coordinate Bench is not a conclusive proof. Therefore, he would contend that the concurrent judgment rendered by both the Courts below is based on rebuttal evidence let in by the defendants and therefore, would not warrant any interference at the hands of this Court. He would therefore contend that the 6 AIR 2004 SC 3088 17 substantial question of law is liable to be answered against the plaintiffs and the second appeal is liable to be dismissed.
21. Heard learned counsel appearing for the plaintiffs and learned counsel appearing for the defendants. Perused the records.
22. The entire controversy in the present case on hand is in regard to location of 15 guntas retained by defendant No.1 having alienated 2 acres in favour of defendant Nos.2 and 3 in Sy.No.37. Defendant Nos.2 and 3 contend that the layout formed by defendant No.1 falls on the extreme Northern side and not on the Southern side. Therefore, defendant Nos.2 and 3 claim that all the sites are not facing the west road.
23. It is not in dispute that there were two more suits in respect of sites covered under 15 guntas retained by defendant No.1. The two site owners filed two separate 18 suits in O.S.Nos.46/1986 and 47/1986. Though both the suits were decreed, the Appellate Court in R.A.Nos.82/1999 and 83/1999 allowed the appeals filed by the defendants and the suits filed by the adjoining owners were dismissed. The plaintiffs in the said two suits preferred two separate second appeals in RSA.No.1059/2001 c/w RSA.No.17/2002. The present controversy in regard to location was the subject matter of the said two second appeals. It would be useful for this Court to refer to para 11 to 14 of the said judgment and the same is culled out as under:
"11. From a reading of the pleadings, the reasonings given by the trial court and also the appellate court, it is clear that Venkatarayappa was the original owner of 2 acres 15 guntas of land in Sy.No.37 of Poshettihalli Village. It is also not in dispute that out of the said 2 acres 15 guntas of land, Venkatarayappa retained 13 guntas of land for converting the same into non agricultural purpose. That 15 guntas of land was in fact allowed to be converted into non-agricultural purpose is clear from Ex.C-1 the proceedings issued by the Tahsildar, Chikkaballapur, dated 13.2.1984. The said proceedings reads as under:
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12. Therefore, it becomes once again clear towards the west of the converted land, there lies, public road. In the sketch Exs.C2 and C3, the public road is mentioned as Chikkaballapur-Gouribidanur Road and it lies to the west of Sy.No.37. Further, there is no dispute between the parties that 2 acres of land was purchased by Abdul Salam and Riyaz as per Ex.D-1 which document is dated 6.3.1984. Further the fact of the defendants herein having purchased the said 2 acres from Abdul Salam and Riyaz Ahmed under a registered sale deed dated 31.3.1985 is also not in dispute. So also the parties do not dispute the fact of the plaintiff in O.S.No.46/86 having purchased the suit land Plot No.7 measuring 60 ft. x 40ft. under the sale deed dated 29.5.1984. Likewise, there is also no dispute with regard to the plaintiff in O.S.47/86 having been gifted. Plot No.5 measuring 30ft. x 60 ft. out of Sy.No.37.
13. Thus, most of the facts are admitted by the parties. But, where lies the suit schedule properties to the question. Ex.D-1 the sale deed in favour of Abdul Salam and Riyaz Ahmed by Venkatarayappa mentions that what was sold to the said purchasers under Ex.D-1 is 2 acres of land in Sy.No.37. The said document also mentions that, out of the total extent of land i.e., 2 acres 15 guntas, the vendor i.e., Venkatarayappa had retained a portion measuring east to west 270 ft and north to south 60 ft. and the said document also mentions that this particular portion is situated towards north-western side. As far as the boundaries to the said 2 21 acres of land purchased by Abdul Salam and Riyaz Ahmed is concerned, the said document mentions that towards east there is a Halla and towards west there is Gouribidanur Road and towards North, Sy.No.36 and towards south, the land of Veerabhadrappa. Therefore, from a reading of the description of the boundary given in Ex.D-1, it cannot be said that the land retained by Venkatarayappa was located towards the extreme north of Sy. No.37. The reason for this conclusion is to be found in the sketch submitted by the commissioner. In the sketch Ex.C-3, three plots are shown towards the western side abutting the public road and if the argument of the learned counsel for the respondents is to be accepted that the retained portion measured 270 ft. east to west and 60 ft. north to west, then the said portion will have to fall in the area shown as ABMNOP. But the report of the Commissioner does not put the suit properties in the above mentioned area i.e., ABMNOP. Apart from this, it is also in the evidence of the Court Commissioner that, if the retained portion were to be located in the area shown as ABMNOP, then a portion of the said land falls within Sy.No.36 and the said portion is also indicated in the sketch Ex.C-3 BMNOCB.
14. It is nobody's case that 15 guntas of land for which Venkatarayappa obtained conversion fell within two survey numbers i.e., Sy.Nos. 37 and 26, but all the documents produced by the parties clearly mention that what was sold by Venkatarayappa was the total extent of land measuring 2 acres 15 guntas in Sy.No.37 and out of the said extent, 2 acres of land was sold as per Ex.D-1 to Abdul Salam and Riyaz Ahmed and the remaining 15 guntas were retained for conversion."
24. Having recorded the above said findings, the Coordinate Bench has also taken strong objection against the Appellate Court for having decided the regular appeal in the present case pending in R.A.No.100/2003. The said 22 findings are found in para 17 of the judgment rendered in RSA.No.1059/2001 c/w RSA.No.17/2002 and the same reads as under:
"17. Now coming to the contention put forward by the learned counsel for the respondent with regard to the other plot purchasers who filed the suits and having lost the said suits both before the trial court as well as the lower appellate court, as could be seen from the judgment rendered in R.A.No. 100/03, it was submitted that the view taken by the lower appellate court in R.A.No. 100/03 which arose out of O.S.No.46/86 having become final, this court cannot pass a contrary order in respect of the very same dispute and it will lead to conflict of decisions. I am of the view that a perusal of the judgment rendered in R.A.No.100/03 in O.S.No. 124/98 makes it clear that even in the said appeal before the lower appellate court it was brought to the notice of the learned judge that the regular appeals in R.A.Nos.82/99 and 83/99 were disposed of by setting aside the judgment of the trial court and that, against the said decision rendered in the above mentioned R.As., the plaintiffs had preferred appeals before this court (the present appeals R.S.A.Nos. 1059/01 and 17/02). It, therefore, becomes clear that the lower appellate court was fully aware of the pendency of the second appeal before this court in respect of the judgment rendered in R.A.Nos. 82 and 83 of 1999 and therefore, the proper course left to the lower appellate court was that ought have waited for the outcome of the decision in the present appeals, but without waiting, the lower appellate court had proceeded to pass the judgment in R.A.No. 100/03 which action on the part of the learned judge of the lower appellate court cannot be termed as justified and the lower courts will have to keep in view that, in respect of one and the same dispute, there should be no scope for conflicting judgments being rendered by different courts. Unfortunately, the learned judge of the lower appellate court has failed to observe this basic principle and the Judicial discipline and therefore, merely because the Judgment in R.A.No. 100/03 has become final in so far as the parties to the said R.A. is 23 concerned, that does not prevent this court from setting right the mistake committed by the lower appellate court while disposing of the second appeals. Hence, the submission made in this regard cannot be accepted as having any force behind it."
25. The Coordinate Bench thereafter proceeds to hold that the sites formed by defendant No.1 measures 270 feet North-South and 60 feet East-West and further records a categorical finding that the boundaries indicated on the western side of sites are not seriously disputed by the defendant Nos.2 and 3 and thereafter proceeds to hold that all the sites are bounded by road on the western side. Therefore, the location of the sites and its boundaries is adjudicated in the above said two second appeals by the Coordinate Bench and the controversy in regard to its location is also resolved in the above said judgment.
26. Therefore, the judgment rendered in another suit, though not inter-parties, can be received in evidence in the present case on hand to show that what was the subject matter of the suit and also to establish what was 24 decided and declared by the said judgment. The findings recorded in the said judgment can also be taken cognizance of to identify the property or to demonstrate how the location of the property is decided in the earlier suit. If in the previous judgment, the location and the boundaries have been dealt with and decided, then this Court is of the view that defendants are estopped from disputing the location in the present case on hand.
27. Therefore, the judgment rendered in the connected suits though not inter-parties to the suit, can be very much relied in the present case on hand to indicate the location and its boundaries. If defendants have suffered a judgment at the hands of this Court in RSA.No.1059/2001 c/w RSA.No.17/2002 which covers the same subject matter, though adjoining sites which were part and parcel of 15 guntas of converted land, the earlier judgment can be used not as a res judicata or as a evidence, but the said 25 findings recorded in the two second appeals would bind upon the defendants.
28. Therefore, the findings in regard to location of the property in the above two second appeals is certainly relevant for the decision of the same issue in the present suit and therefore, those findings can be taken cognizance of and is admissible in evidence. If the findings recorded in the judgment cited supra that 15 guntas of land retained by the defendant No.1 comprising of sites is bounded by road on the western side, then there is a finality to the controversy relating to location of 15 guntas which comprises of sites. Therefore, defendant Nos.2 and 3 cannot be permitted to dispute the said fact having suffered a decree in RSA.No.1059/2001 c/w RSA.No.17/2002 which has gone unchallenged. Therefore, there is a finality to the controversy relating to location of 15 guntas retained by defendant No.1. There is also finality to the adjudication in regard to boundaries and therefore, the said finding binds 26 defendant Nos.2 and 3. Therefore, the defendant Nos.2 and 3 cannot set up any contrary defence and any material which is contrary to the findings recorded in the connected suits will not displace the plaintiffs' case. The judgments cited by the learned counsel appearing for the defendants are not applicable to the present case on hand.
29. In the light of the discussion made supra, the substantial question of law is answered in the affirmative.
30. For the foregoing reasons, I pass the following:
ORDER
(i) The second appeal is allowed;
(ii) The judgment and decree dated
27.11.2006 passed in R.A.No.100/2003
confirming the judgment and decree dated
26.03.2003 passed in O.S.No.124/1988 is set aside. Consequently, suit is decreed;
(iii) Defendant Nos.2 and 3 are hereby restrained from interfering with plaintiffs 27 peaceful possession and enjoyment over the suit schedule properties;
(iv) The pending interlocutory applications, if any, do not survive for consideration and stand disposed of.
Sd/-
JUDGE CA