Karnataka High Court
Smt P N Shylaja vs B Vittala Shetty Dead By Lrs on 29 April, 2015
Author: A.S.Bopanna
Bench: A S Bopanna
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF APRIL, 2015
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
REGULAR SECOND APPEAL NO.302/2011 (INJ)
BETWEEN :
SMT. P N SHYLAJA
W/O K S MURTHY
AGED ABOUT 52 YEARS
R/AT NO.547, 22ND 'A' CROSS
BSK 2ND STAGE
BANGALORE-560 070
REP. BY HER GPA HOLDER
K.S. MURTHY
S/O LATE K N SHANKARAIAH
AGED ABOUT 61 YEARS
R/AT THE ABOVE ADDRESS
... APPELLANT
(BY SRI L.S. VENKATAKRISHNA &
SRI N KUMAR, ADVs.)
AND :
1. B VITTALA SHETTY
SINCE DECEASED BY LR's
1(a). ASHIT SHETTY
AGED ABOUT 38 YEARS
1(b). AJITH SHETTY
AGED ABOUT 36 YEARS
1(c). AMIT SHETTY
AGED ABOUT 34 YEARS
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NO.1 (a) TO 1(c) ARE SONS OF
LATE B. VITTALA SHETTY, MAJOR
R/AT NO.7-B, AJANTHA
APARTMENTS, LAVELLE ROAD
BANGALORE.
2. M.S GENESIS REALTORS PVT. LTD.,
PROJECT: GENESIS ECOSPHERE
NO.144, 1ST FLOOR, SUBRAM
COMPLEX, M.G. ROAD
BANGALORE-01
REP. BY ITS GENERAL MANAGER
3. M/S ITTINA PROPERTIES PVT. LTD.,
PROJECT: ITTINA MAHAVEER
SITUATE AT NO.1054, 7TH MAIN
3RD BLOCK, KORAMANGALA
BANGALORE-560 034
REP. BY ITS MANAGER
.. RESPONDENTS
(BY SRI T.S. AMAR KUMAR, ADV. FOR
M/S. LAWYERS INC. FOR R1 (a-c) & 2
R3-NOTICE HELD SUFFICIENT V/o DT. 15.02.2014)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 18.10.2010
PASSED IN OS.NO.115/2010 ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT-III,
BANGALORE, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 25.02.2010 PASSED
IN O.S.NO.201/2007 ON THE FILE OF THE II ADDL. CIVIL
JUDGE (SR.DN) BANGALORE RURAL DISTRICT,
BANGALORE AND ETC.
THIS APPEAL HAVING BEEN RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT PRONOUNCED THE FOLLOWING :
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JUDGMENT
The appellant herein is the plaintiff in O.S.No.201/2007. The suit was filed by the plaintiff seeking for a judgment and decree of permanent injunction to restrain the defendants from interfering with the peaceful possession and enjoyment of suit schedule 'A' property. A decree for mandatory injunction to direct the defendants to demolish the compound wall constructed along north to south of schedule 'A' property enclosing Schedule 'B' and 'C' properties waso also sought.
2. The trial Court on analyzing the evidence by its judgment dated 25.02.2010 dismissed the suit. The plaintiff was therefore before the Lower Appellate Court in RA No.115/2010. The Lower Appellate Court on re-appreciation of the evidence, by its judgment dated 18.03.2011 dismissed the appeal. Against such judgments 4 rendered by the Courts below, the plaintiff is before this Court in this second appeal under Section 100 of Civil Procedure Code.
3. The case of the plaintiff is that she is the absolute owner of the property measuring 1 acre in Sy.No.101 (Block No.6), Doddathoguru village, Begur Hobli, Bangalore South Taluk having purchased the same from Sri B.R.Vasudev and others under registered sale deed dated 19.10.1992. The said extent purchased under the sale deed is described as Schedule 'A' property. Subsequent to the purchase, mutation proceedings in M.R.No.6/1993-94 was effected and the revenue entries were made. The defendants are the owners of the adjacent properties having purchased the said property from the same vendor, indicated as different blocks in the same survey number. The case of the plaintiff is that while measuring the property with a view to develop the 5 same, it was noticed that defendant No.1 who is the adjacent owner of block No.4 and having entered into a development agreement with defendant No.2 had put up a compound wall enclosing an extent measuring 4394 sq. ft. belonging to the plaintiff on the eastern side. The said portion is shown as schedule 'B' property.
4. The further contention of the plaintiff is that defendant No.3 who is developing the property on the western side of the property belonging to the plaintiff which is block No.5 have put up a compound wall enclosing an extent of 1690 sq. ft. The said portion is described as schedule 'C' property. The plaintiff contends that on 27.09.2006 prior to filing the suit, a survey, measurement and mapping of schedule 'A' property with reference to the boundaries was made. The sketch drawn by the Tahsildar indicates that the construction put up by the defendants on the eastern and 6 western side is illegal by enclosing the portion of the property belonging to the plaintiff. It is in that circumstance, the plaintiff had instituted the suit claiming right in respect of the extent as purchased under the sale deed.
5. Defendants No.1 and 2 filed a common written statement while the defendant No.3 filed a separate written statement. Defendants disputed the claim of the plaintiff that she is the absolute owner of the schedule 'A' 'B' and 'C' properties. It was however contended that even if the claim that the plaintiff is the owner of schedule 'A' property is accepted, the purchase made by her is not 1 acre but less than 1 acre. It is contended that the plaintiff having represented to her developer about she having purchased 1 acre under the sale deed dated 19.10.1992 without actually having the said extent has cooked up the theory of encroachment. 7 The survey referred to by the plaintiff is disputed as the defendants have not been notified in that regard. The defendants contend that they are putting up construction in their own property which had been purchased by them and the plaintiff having purchased a lesser extent than 1 acre is seeking to grab a portion of the property purchased by the defendant. The defendants have further contended that the relief as sought in the plaint is not maintainable without seeking for declaration and possession. The defendants No.1 and 2 contend that having purchased 3 acres from Sri R.Vasudev under sale deed dated 01.03.1999, they are in possession of the said extent and are presently developing the property after constructing a compound wall surrounding the land which was purchased and no portion belonging to the plaintiff has been encroached.
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6. The trial Court on taking note of the rival contentions has framed the following issues for its consideration:
ISSUES
1. Whether the Plaintiff proves that she is absolute owner of the 'A' Schedule Property?
2. Whether the Plaintiff further proves that the Defendant No.3 encroached portion of measuring 1,690 Sq.feet in the 'A' Schedule Property on western side illegally (as shown as 'C' schedule)?
3. Whether the Plaintiff proves that the Defendant No.1, 2 also encroached upon the suit property illegally by putting compound wall on eastern side?
4. Whether the Plaintiff is entitle for the relief of permanent injunction and mandatory injunction as sought for?
5. What order or Decree?
7. In order to discharge the burden cast on the parties, the plaintiff examined her power of attorney holder as PW.1 and relied upon the documents at 9 Exhs.P1 to P29. The son of the original first defendant was examined as DW.1 and the documents at Exhs.D1 to D11 were relied. Sri Rajashekar Patel, who was appointed as Court Commissioner was examined as CW.1 and the notice, report and the sketch of the Commissioner were marked as Exhs.C1 to C3. As noticed, the trial Court on analyzing the evidence has answered the issue Nos.1 to 4 by which the burden had been cast of the plaintiff to establish the case put forth in the negative and accordingly dismissed the suit. The Lower Appellate Court having formulated four points for its consideration held point Nos.1 and 2 in the negative and as such was of the opinion that the trial Court was justified in dismissing the suit.
8. This Court while admitting the appeal on 30.06.2011 has formulated the following substantial questions of law for consideration:
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i) Whether the Courts below are legally correct in rejecting Ex.C1 to C3, the report submitted by the Taluka Surveyor when the same is in conformity with the order of this Court in MFA No.2417/2008 ? (The order referred to is in W.P.No.3294/2008, but wrongly indicated as in MFA)
ii) Whether the Courts below are legally correct in dismissing the suit of plaintiff on the ground that there is no prayer for declaration of title particularly, when the title of the plaintiff is not denied and disputed by the defendant?
9. In the light of the above, I have heard Sri L.S.Venkatakrishna, learned counsel for the appellant, Sri. T.S.Amar Kumar, learned counsel for the respondents and perused the appeal papers including the records received from the Courts below.
10. As noticed, the reference made in the first substantial question of law is to the order passed in W.P.No.3294/2008, though wrongly the number of the 11 Miscellaneous First Appeal is mentioned. Hence, keeping in view the nature of the first substantial question of law raised, it would be appropriate to notice the order passed in W.P.No.3294/2008. In a situation where the trial Court had appointed the Court Commissioner by the order dated 11.02.2008 passed on I.A.No.5, the respondents No.1 and 2 herein were before this Court assailing the same. This Court, though did not interfere with the appointment of the Commissioner, had however limited the role of the Commissioner only to measure the lands, state the boundaries and to submit the report and nothing more. Pursuant to the said order, the commission work has been conducted and report was submitted. The Commissioner was examined as CW-1 and the documents were marked. Ex.C-1 is the notice issued by the Commissioner. Ex.C-2 is the report which indicates that the measurement made is of the portions which is in possession and enjoyment of each of the parties. Ex.C-3 12 is the sketch drawn, indicating the extent as per the measurement in each of the blocks shown in different colours.
11. The fact that the Commissioner has measured the property and submitted the report as directed in three blocks is evident, but in the order though it was referred as block No.3, what was relevant is block No.5. The defendants had filed objections and in that light, the Commissioner who was examined as CW-1 was also cross-examined. In that circumstance, the Courts below were required to consider the same, analyse the report and also take note of the other evidence and thereafter arrive at its finding and conclusion. The order passed by this Court in W.P.No.3294/2008 does not suggest that no discretion was left to the Courts below and it had to accept the report of the Commissioner and 13 pass the judgment in terms thereof by only taking note of the measurement mentioned in the report/sketch.
12. In that background, it is necessary to notice the nature of consideration made by the Courts below on that aspect, keeping in view the extent to which this Court can traverse in a second appeal under Section 100 of CPC, that too when both the Courts below have made a similar consideration. The Courts below in addition to the oral and documentary evidence relied on by the parties have also referred to the oral evidence of the Commissioner as CW-1 and in that light, have referred to the measurement shown in Ex.C-3. Since the total extent of land in Sy.No.101 is 19 acres 04 guntas and out of the same, since different parties have purchased different extents which were demarcated with block numbers, it has been noticed that the entire extent in the said survey number has not been measured which probably would 14 have revealed the correct position. Even if the order of this Court is kept in view, the same required the measurement to be made of three blocks which were adjacent to each other in the said survey number and were subject matter of the suit.
13. In that regard, the measurement with respective colours indicated in Ex.C-3 has been referred in detail. In the portion purchased by the plaintiff, no doubt the extent shown is 0.34 ¾ i.e., 0.05 ¼ gunta less than 1 acre. Even if 6 ½ guntas shown as excess in the property of defendants No.1 and 2 is taken into consideration, the total extent in block Nos. 4, 5 and 6 will not tally since the extent shown in the sketch relating to the property of defendant No.3 is as per the purchase. When CW-1 in his cross-examination has admitted that there is no boundary stone available at the starting point of Sy.No.101, the measurement cannot be considered as 15 accurate. Even if the measurement in Ex.C-3 is kept in view, the same does not justify the correctness of the alleged enclosed extents indicated in Schedule-B and C of the plaint. The Lower Appellate Court has also analysed these aspects. It has also rightly taken note of the fact that there is no document to indicate that the plaintiff at the time of purchase had in fact taken possession of 1 acre from her vendor and the reduced extent is due to subsequent encroachment by the defendants. In the said circumstance, the Courts below on arriving at a finding of fact relating to the manner in which the Commissioner had measured the property have arrived at the conclusion that Ex.C-3 does not disclose the actual state of affairs and as such it cannot be accepted. I am of the opinion that in the present circumstance, the Courts below were justified and the order passed in W.P.No.3294/2008 cannot be considered as an impediment to do so. 16
14. On the second substantial question of law raised, the issue is as to whether the injunctive relief sought in the suit was sufficient or as to whether the relief of declaration was also required to be sought in a matter of the present nature. The learned counsel for the appellant sought to contend that it was only a case where the defendants had enclosed the portions of the property belonging to the plaintiff by putting up a compound wall and it has not been utilised by putting up construction. He contends that the title to the suit schedule-A property is not disputed and as such the relief of declaration and possession is not necessary to be sought. Reference is made to Section 39 of Specific Relief Act to contend that on mandatory injunction being granted to demolish the wall and permanent injunction being granted to protect the possession, the position would stand restored. 17
15. The learned counsel for the respondents while contending on that aspect has referred to the plaint averments wherein an allegation of encroachment is made. In that light, the contention urged in the written statement is referred wherein it is specifically denied that the plaintiff is the owner of the property described in Schedule- A, B and C to the plaint. Proof is sought to the execution of the alleged sale deed and delivery of possession of the property to the plaintiff. Though the sale deed dated 19.10.1992 is not seriously disputed, the claim that an extent of 1 acre was physically available for purchase has been disputed which in effect is the denial of title to the extent claimed in Schedule-A to the plaint.
16. The decision relied on by the learned counsel for the appellant in the case of Mrs. Christine Pais -vs- K.Ugappa Shetty and another (AIR 1966 Mysore
299) is of no assistance to the instant facts. In the instant 18 case, the plaintiff as well as the defendants have purchased different extent of lands in the same survey number from the same owner. The sale deeds for the relevant purpose are marked as Ex.P-2 and Exhs.D2 to D7 respectively. The sale deed by which the plaintiff purchased the property was at a point subsequent to the purchase made by the defendants. If that be the position, the mere indication of the extent in the sale deed and the same being mutated based on such sale deed or obtaining conversion for the extent as indicated in the sale deed will not establish the fact that an extent of 1 acre was in fact available to be sold as on the date of the sale deed and that extent was practically conveyed and possession was given. If the said position is kept in view, the Courts below were on the other hand justified in relying on the decision in the case of Gurunath Manohar Pavaskar and others -vs- Nagesh Siddappa Navalgund and others (2008(2) Kar.L.J 464-SC). 19
17. In addition, both the learned counsel have referred to the decision of the Hon'ble Supreme Court in the case of Anathula Sudhakar -vs- P.Buchi Reddy (Dead) by Lrs and others (2008 AIR SCW 2692), wherein the different circumstances have been referred and the manner in which relief is to be sought in those circumstances has been stated. The same reads as hereunder:
"11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
11.1 Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a 20 prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
11.2 Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
11.3 Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction."21
18. The learned counsel for the appellant contends that the case of the appellant fits into the circumstance mentioned in para-11.1 supra, while the learned counsel for the respondents contends that it fits in the circumstance stated in para-11.3 supra. As already noticed, the nature of the contention put forth in the plaint as well as the written statement if perused, the plaintiff has not come before the Court relying on any definite material to show that she had in fact been put in physical possession of the extent of 1 acre described in the sale deed and that she continued to be in possession of such extent even as on the date of filing the suit. On the other hand, it is the definite case of the plaintiff that the extent indicated in Schedule-C and D has already been enclosed by putting up compound wall prior to the date of filing the suit which even if it was established by evidence amounts to encroachment. The prayer for mandatory injunction as made could have been 22 considered in a circumstance if the plaintiff was before the Court seeking for injunction to protect her possession which she claims to be in possession as on the date of filing the suit and if the construction of the wall was shown to be made thereafter, either in violation of the temporary injunction granted or otherwise by a high handed act.
19. Further, in the instant case, though the transaction under which the plaintiff has purchased the property is not disputed, the claim of having purchased the extent of 1 acre has been seriously disputed and therefore, the claim to that extent was under a cloud. In any case, the plaintiff was admittedly not in possession of the extent mentioned in Schedule-B and C of the plaint as on the date of filing the suit and no material was produced to show that she was in possession earlier. Hence, the possession of schedule-B and C properties 23 was required to be sought on seeking a declaration that the plaintiff had right, title and interest over that extent also. If these aspects are kept in view, the situation of the plaintiff herein would fall in the category stated in para- 11.3 of the decision cited supra. If a properly constituted suit was filed, all aspects relating to the total measurement of the land in Sy.No.101 and the extent indicated in different blocks would have received appropriate consideration. In the circumstance when by issue No.1, the plaintiff was to establish right in respect of 1 acre, the Courts below were justified in holding it in the negative and dismissing the suit as there was no prayer for declaration.
20. In the above backdrop taking into consideration the facts and circumstances involved herein and the manner of consideration made by the Courts 24 below, the questions of law raised herein are answered against the appellant.
In the result, the appeal fails and the same is accordingly dismissed. In the peculiar facts, the parties to bear their own costs.
Sd/-
JUDGE akc/bms