Karnataka High Court
Smt. Gowravva W/O Irappa Danappanavar vs Rudrappa Gopalappa Kotabagi on 7 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 07TH DAY OF JANUARY 2014
BEFORE
THE HON'BLE MR. JUSTICE A.V. CHANDRASHEKARA
RSA No. 497/2004 (DEC)
BETWEEN:
SMT. GOWRAVVA WIFE OF
IRAPPA DANAPPANAVAR,
AGED ABOUT 58 YEARS,
OCC.: HOUSEHOLD WORK,
MARATHA COLONY,
(NEAR FORT), DHARWAD.
- APPELLANT
(BY SRI LAXMAN T. MANTAGANI, ADVOCATE)
AND:
RUDRAPPA GOPALAPPA KOTABAGI,
S/O GOPALAPPA KOTABAGI,
AGE: 69 YEARS, OCC.: BUSINESS &
AGRICULTURE, R/O MARATHA
COLONY (NEAR FORT), DHARWAD.
- RESPONDENT
(SRI M.M. KHANNUR, ADVOCATE)
THIS R.S.A. IS FILED U/S 100 OF CPC AGAINST THE
JUDGMENT & DECREE DATED 4.2.2004 PASSED IN R.A. NO. 41/2003
(R.A. NO.30/1990) ON THE FILE OF THE PRINCIPAL SESSIONS JUDGE,
DHARWAD, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 16.2.1990 PASSED IN O.S.
NO.87/1986 ON THE FILE OF THE PRINCIPAL MUNSIFF, DHARWAD &
ETC.
THIS APPEAL HAVING RESERVED FOR JUDGMENT AND COMING FOR
PRONOUNCEMENT OF JUDGMENT ON THIS DAY, COURT DELIVERED THE
FOLLOWING:-
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JUDGMENT
1. This regular second appeal filed u/S 100 of C.P.C. is directed against the concurrent judgment and decree passed by the trial Court, i.e., the then Principal Court of Munsiff in Dharwad in O.S. No.87/1986 and R.A. No.41/2003 (Old R.A. No.30/1990).
2. Appellant was the defendant and the respondent was the plaintiff in the said case. Parties would be referred to as plaintiff and defendant as per their ranking in the trial Court.
3. Plaintiff had filed a suit for the reliefs of declaration of title and permanent injunction in respect of a space measuring 3 ft. North- South and 50 ft. East-West as described in the suit schedule appended to the suit as also the rough sketch appended to the plaint. Plaintiff and defendant are adjoining owners of residential premises. The schedule property is an open space measuring about 3 ft. of North- South, 50 ft. East-West with a cement water tank thereon and it is stated to be the absolute property of the plaintiff. Plaintiff has laid claim on this property on the strength of a sale deed executed by his 3 vendor Sri Guranagouda Devgiri pertaining to property bearing CTS No.29/17F. In the said property there is a cement water tank. The schedule property is stated to be part and parcel of the property purchased by him vide sale deed dated 09.05.1985. Since the defendant started interfering with his title and possession of the said space lying in between his house and the house of the defendant, he had to file a suit for the relief of declaration and title and getting injunction.
4. Defendant had contested the suit stating that the schedule property is a part and parcel of the property purchased by him from the same vendor Sri Guranagouda Devgiri through a registered sale deed dated 28.09.1970 and that the plaintiff does not have any title or possession over the schedule properties. According to him the suit was a frivolous one. According to him Guranagouda Hanamantagouda Devgiri sold in his favour an open site measuring East-West 45 ft. North-South 18 ft. bounded on the East by the compound of original vendor Sri Devgiri, West - public road, North- 4 house of original vendor and South-open site of Sri Shivappa Sangappa Mallappannavar. The defendant is stated to be in actual possession and enjoyment of the entire measurement shown in the sale deed and he is stated to have put up a house by leaving a space of 3 ft. on the Southern side as well as 3 ft. on the Northern side. According to him, the measurement given by the plaintiff in the plaint is at variance with the existing state of affairs as well as the contents incorporated in his Sale deed dated 09.05.1985. With these pleadings he had requested the Court to dismiss the suit.
5. On the basis of the above pleadings the following issues came to be framed by the learned Principal Munsiff, Dharwad.
1. Whether plaintiff proves that he is owner of suit property XYCB as shown in the sketch?
2. Whether in consequence he is entitled for injunction against the defendant?
3. Whether defendant proves that she is owner of the suit property by way of sale deed in her favour by Boodanagoud Hanamantagouda Devagiri?
4. Whether suit is hit by principle of non-joinder of necessary party?
5. Whether the Court fee paid is proper?
6. What order? What decree?
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6. R.G. Kotabagi and V.K. Sheelavanth have been examined as P.W.1 and P.W.2 on behalf of the plaintiff and G.I. Danappanavar and I.F.Danappanavar have been examined as D.W.1 and D.W.2 on behalf of the defendant. 8 exhibits have been marked on behalf of the plaintiff and one exhibit is marked on behalf of the defendant.
7. After hearing the arguments and appreciating the evidence, the then learned Munsiff, Dharwad chose to decree the suit and grant reliefs of declaration of title and permanent injunction as prayed for vide considered judgment dated 16.02.1990, as against which, a Regular Appeal was filed u/S 96 C.P.C. before the Court of the then Civil Judge at Dharwad, which came to be numbered as R.A. No.30/1990. Once appeal came to be dismissed after contest as against which a Regular Second appeal was filed. Matter was remanded by this Court with a direction to appoint a Commissioner to measure the properties on the basis of the sale deeds of the parties. During the pendency of the appeal the learned Principal District Judge chose to withdraw the said appeal to his Court and as such the appeal 6 was renumbered as R.A. No. 41/2003. The said appeal has been dismissed by a considered judgment dated 04.02.2004. Being aggrieved by the concurrent findings of the trial Court as well as the first appellate Court the present second appeal has been filed u/S 100 CPC challenging the same on various grounds as set out in the appeal memo.
8. After hearing the learned counsel for the appellant at the time of admission my learned predecessor has been pleased to frame the following substantial question of law for consideration on 14.09.2006 and the same is as follows:
Whether the Courts below were justified in decreeing the suit of the plaintiff-respondent on the basis of Ex.P.3 when a reading of Ex.P.3 would disclose that the suit passage was kept as a common passage?
Counsel for the parties in this appeal have been heard at length.
REASONS
9. The vendor of the space purchased by the plaintiff and defendant is one and the same. The property is situated in Dharwad 7 city. There is no dispute about the title or the dimension of the houses put up by the plaintiff and the defendant on the respective spaces purchased by them through registered sale deeds dated 28.09.1970 and 09.05.1985 respectively. The regular appeal was filed in R.A. No.30/1990 which was pending on the file of the First Additional Civil Judge, Dharwad, came to be dismissed on merits vide judgment dated 03.10.1994. Against the said judgment a Regular Second Appeal has been filed in R.S.A. No. 1258/1994 before this Court. The said appeal came to be allowed on 11.03.1998 with a direction to appoint a Commissioner for the second time so that the Commissioner could measure the property of both the parties on the basis of the respective sale deeds and thereafter to dispose of the matter in accordance with law. As such, the matter was once again taken up by the First Appellate Court. In the meantime the said appeal was withdrawn by the learned Principal District Judge to his Court.
10. The City Surveyor of Hubli-Dharwad Municipal Corporation had been appointed as Commissioner to visit the spot and measure the 8 properties of both the sides, based on the measurement found in the respective sale deeds and to submit a report as to whether the passage lies within the ownership of the plaintiff or the defendant. The defendant has chosen to file objections to the Commissioner's report and the same had been considered by the learned Principal District Judge while dismissing the appeal. The report of the Commissioner was not accepted by the First Appellate Court vide considered order dated 17.01.2003 and therefore once again the City Surveyor was directed to measure the properties of both the parties on the basis of the dimensions found in the respective sale deeds and to submit a detailed report. The said report has been relied upon by the learned District Judge and is part of the record.
11. Ex.P.3 is the original sale deed executed by Devgiri in favour of the plaintiff on 09.05.1985. The dimension of the property mentioned in Ex.P.3 is 50 ft. East-West, 17 ft. North-South bounded by East by the compound wall of the vendor, West the common space ear marked for the use of public; North-another house belonging to the vendor, 9 South-house of Danappa, the husband of the defendant. It is also mentioned in Ex.P.3 that there is an open well on the Southern side of the property sold to the plaintiff and the same is a common wall to the residence in that space. Plaintiff had been conferred with the right of using the water from the said common well. It is specifically mentioned in Ex.P.5 that a space measuring 3 ft. North-South had been left on the Southern side of the property sold to him and there is a cement water tank in the said space. It is also clearly mentioned that there is an underground chamber in the said space of 3 ft. measuring North-South and that the purchaser, i.e., the plaintiff was the absolute owner of the said space and the tank.
12. Ex.P.5 is the certified copy of the sale deed executed by the same Devgiri in favour of the defendant on 28.09.1970. This would disclose that the defendant was in unauthorized possession of the properties sold vide Ex.P.5 and the space for which unauthorized construction had bee put alone do not convey. The total space measuring East-West 45 ft. North-South 18 ft. bounded with East by 10 the compound wall of the vendor, West-common space left by him, North-house of the vendor and South-open space of Maralappannavar had been conveyed to the defendant. It is also made clear that the only space used for putting up the unauthorized construction by the defendant alone had been conveyed.
13. As rightly pointed out by this Court in R.S.A. No. 1258/1994 a report of the competent person was absolutely required to elucidate the matter in dispute and thereby take an appropriate decision. Any amount of oral evidence will not be helpful for a proper decision in a case of this nature. The entire case of the parties is depending upon the report of the Commissioner.
14. The report of the Commissioner is a part of the record submitted by the first appellate Court. The Commissioner had been appointed in his official capacity, and City Surveyor attached to the Hubli-Dharwad Municipal Corporation, was the Commissioner. He had been furnished with the copies of the sale deeds marked as Ex.P.3 and Ex.P.5. He visited the spot on 24.07.1973 and at that time the 11 parties were present. He chose to submit a detailed report on 29.07.1973. The said report consists of a sketch depicting the existence of the houses of the plaintiff and defendant as well as the disputed space. The entire space purchased by plaintiff from Devgiri is indicated in red colour with figures 1 2 3 4. The entire space purchased by the defendant is indicated in figures 3 4 5 6. The disputed space is shown in the red colour. The building abutting on the Northern side of the plaintiff's house is shown in the pencil dots.
15. What is contended on behalf of the appellant is that the defendant had left 3 ft. on the Southern side as well as Northern side and therefore the disputed space is part and parcel of the properties purchased by her vide Ex.P.5. It is specifically mentioned by the Surveyor that on the North-Western direction of the property of the house of the defendant, only one feet space is left. It is also mentioned that as per record, there is a space of 4½ feet on the Western side but actually there is a space of only 3 feet on the Western side. As per the records there is an open space measuring 5½ 12 feet space on the South-Eastern side of the property of the defendant but actually there is only a space of 4 ft. It is also mentioned that the compound wall indicated in English 'B' Capital Letter, later 'A' and 'B' comes within the purview of the properties purchased by the defendant.
16. Survey was done as per the measurement found in Ex.P.3 and Ex.P.5. The measurement of the building put up by the defendant is 27.9 feet East-West, 12.6 ft. North-South and the total measurement 346.87 sq.ft. The measurement of the latrine put up by the defendant is 4 ½ x 5 ft. in all, measuring 22.5 ft. The bathroom put up by her measuring 4½ x 6 feet, which in all measures 27 sq.ft. Bathroom as well as the latrine put up by the defendant have been shown in the sketch. It is specifically mentioned in the sketch as well as the report that the disputed space measuring 3 feet East-West and about 48 feet North-South and the cement water tank are part and parcel of the properties purchased by the plaintiff. In fact the actual measurement of the building put up by the plaintiff is 14 feet North-South. 13 Therefore, this space of 3 feet will necessarily become part and parcel of the property purchased by the plaintiff.
17. The learned counsel for the appellant has vehemently argued that objections had been filed to the Commissioner's report and the same has not been taken into consideration by the first appellate Court, i.e., the Principal District Judge. Hence it is argued that neither the report nor the sketch could be looked into. I am unable to accept the said contention for the reason that the defendant could have summoned the Surveyor who has prepared the sketch and the report. After summoning him the defendant could have cross-examined him and could have elicited as to how he had gone wrong. Having not done so, the defendant cannot turn around and say that the Commissioner's report cannot be accepted. Admittedly the Commissioner appointed by the first appellate Court was a competent Surveyor, attached to Hubli-Dharwad Municipal Corporation. He is a disinterested person and had no axe to grind against the plaintiff or the defendant.
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18. The learned Munsiff has considered the evidence in right perspective and nothing could be imputed to him insofar as the reasons assigned. Similarly, the first appellate Court, i.e., the learned Principal District Judge has elaborately dealt with the various contentions raised by the parties and has given detailed answers. The same is self-explanatory. It is pertinent to note that the plaintiff, before purchasing the property shown by letters A B C D was the tenant of the same for about 15 years and the plaintiff was using the suit schedule property and also the water tank shown by letter 'Z'. When the plaintiff came as a tenant to the said property there was only one tap near the said tank. From the said tap defendant used to take water, of course with the permission of Guranagowda. Since the plaintiff was not getting sufficient water, he had told his vendor not to permit the defendant to collect water from the tap near the said tank. Since Guranagowda did not agree and advised the plaintiff that he could take a separate tap connection at his own cost, ultimately plaintiff took a separate tap connection on his own to his property marked as A B C D. In the property purchased by the plaintiff the 15 water tank is also included. Apart from this the schedule space measuring 3 feet on the Southern side of the house purchased by him is also included. What is claimed by the defendant is that the schedule property belongs to her.
19. Though the sale deed of the plaintiff is later to that of the defendant, the learned appellate Judge has given cogent reasons as to how the schedule property was a part and parcel of the property sold to the plaintiff. It is to be seen that whatever was conveyed to the defendant was only the actual open space over which the defendant had illegally put up a building. Therefore, in the sale deed marked as Ex.P.5 her vendor has specifically mentioned as follows:
¸ÀzÀj eÁUÀzÀ ªÉÄÃ¯É ¤Ã£ÀÄ ¤£Àß Rað¤AzÀ EªÀiÁgÀvÀÄ PÀnÖ¹PÉÆArzÀÝgÉ EªÀiÁgÀvÀÄ ªÀĽUÉ ¤£ÀßzÉ EzÀÄÝ ¥sÀPÀÛ §AqÀÄQ£À eÁUÀ EªÀw£À ¢ªÀ¸À RjâUÉ PÉÆnÖzÁÝgÉ.
20. On a conjoint reading of the contents of both Ex.P.3 and Ex.P.5 and the report of the Commissioner, there is no dispute that the defendant could not have left any space on the Northern side of her 16 property, i.e., to the South of the house of the plaintiff. But measurement indicated in Ex.P.5 will have to be looked from the angle of the measurement of the property found in Ex.P.5 under which the vendor of the plaintiff and defendant purchased about 6 guntas. In fact Ex.P.5 does not disclose as to the measurement of the building and the exact location of the building constructed by the defendant. If the recitals of Ex.P.5 are taken in their entirety, clear impression would emerge that only that portion of the land which was lying below the building was sold to the defendant and nothing beyond that. The only document on which heavy reliance is placed on behalf of the defendant-appellant is Ex.D.1. It is of the year 1971. D.W.2 has been examined in support of the same. In his cross-examination D.W.2 has specifically stated that he does not know as to whether Ex.D.1 pertains to his property and the permission given from the Corporation. Even otherwise Ex.D.1 is not an authenticated document. It was only a blue print submitted for approval. There is nothing on record to depict that building was constructed strictly in accordance with the blue print.
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21. When the oral and documentary evidence adduced by the parties are considered in the light of the measurement and contents found in Ex.p.3 and Ex.P.5, it is clear that the schedule space measuring 3 ft North-South and the tank in existence come specifically within the area sold to the plaintiff.
22. My learned predecessor, while framing the substantial question of law, has mentioned that the schedule space is a common space used by both the plaintiff and defendant. In fact the same is not correct. The common space left by the vendor of the plaintiff and the defendant is on the Western side of the suit schedule property. It is not the case of the defendant that the schedule space measuring 3 ft. is a common space to her as well as the plaintiff. On the other hand, case of the defendant is that the schedule space measuring 3 ft. North- South about 50 ft. East-West and the water tank put up thereon are her absolute property. Per contra the plaintiff specifically claims that the schedule property absolutely belongs to him and the same is in accordance with the measurement and the boundaries and contents of 18 Ex.P.3. Suffice to state that the learned Principal District Judge has considered all the aspects raised before him in detail and has attached importance to the report submitted by the Commissioner. Apart from this, the Commissioner has submitted a report after properly measuring the properties in accordance with the dimensions mentioned in Ex.P.3 and Ex.P.5. He has indicated all the important land marks with specific measurements.
23. Cogent reasons are assigned in paragraph no. 31 of the first appellate Court judgment as to why the report of the Commissioner is acceptable. Hence both the Courts have adopted a right approach to the real state of affairs. The oral and documentary evidence have been properly analyzed by both the Courts in right perspective. The approach adopted by the first appellate Court u/S 96 of CPC is in accordance with the principles reiterated by the Hon'ble Supreme Court in Santosh Hazare Vs. Purushothamlal Tiwari dead by LRs reported in AIR 2001 SC 965. The learned District Judge has reassessed the entire oral and documentary evidence and has come to 19 a proper conclusion. No infirmity or illegality is committed either by the trial Court first appellate Court. Hence for the above reasons the appeal is liable to be dismissed with costs.
ORDER Regular Second Appeal filed u/S 100 of CPC challenging the judgment passed by the then learned Principal Munsiff, Dharwad in O.S. No.87/1986 dated 16.02.1986 and judgment of the first appellate Court in R.A. No.41/2003 (Old R.A. No.30/1990) dated 04.02.2004, is dismissed with costs. Accordingly the judgment and decree of both the trial Court as well as the first appellate Court are confirmed. Consequently substantial question of law is answered in the negative.
SD/-
JUDGE bvv