Karnataka High Court
B S Siddaraju S/O Late Patel Siddegowda vs Siddegowda S/O Mayamma Siddegowda on 20 February, 2015
Author: R.B Budihal
Bench: R.B Budihal
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF FEBRUARY 2015
BEFORE
THE HON'BLE MR.JUSTICE BUDIHAL R.B.
REGULAR SECOND APPEAL NO.2941/2006(DEC/INJ)
BETWEEN
B S Siddaraju
S/o Late Patel Siddegowda
Aged 49 years
R/at Dodda Banaswadi Village
Keragodu Hobli
Mandya Taluk-571 401. ...APPELLANT
(Sri Yoganarasimha, Senior Counsel
a/w Ms. Deepashree, Adv.)
AND
1. Siddegowda
Aged 63 years
S/o Mayamma Siddegowda
2. Siddaraju
Aged 40 years
S/o Nathegowda
@ Channegowda
3. Channappa
S/o Nathegowda
@ Channegowda,
Aged 38 years
2
4. Kantha
S/o Nathegowda
@ Channegowda,
Aged 38 years
All are residents of
Doddabanaswadi Village
Keragodu Hobli & Post
Mandya Taluk-571 401. ...RESPONDENTS
(By Sri. M Shivaprakash, Adv. For R1 to R4)
This R.S.A. is filed under Section 100 of CPC against
the judgment and decree dated: 24.7.2006 passed in
R.A.No.131/2006 on the file of the Addl. District Judge,
Mandya, dismissing the appeal and confirming the judgment
and decree dated: 06.12.2005 passed in O.S.No.39/1997 on
the file of the Addl. Civil Judge (Sr. Dn.), Mandya.
This RSA having been heard and reserved for orders,
coming on for pronouncement of judgment, this day, the
Court delivered the following:
JUDGMENT
This appeal is preferred by the appellant-plaintiff against the respondents-defendants being aggrieved by the judgment and decree dated 24.7.2006 passed by the Additional District Judge, Mandya in R.A. No.131/2006 confirming the judgment and decree dated 6.12.2005 passed by the Additional Civil Judge (Sr. Dn.), Mandya in O.S. No.39/1997.
3
2. Brief facts of the case of the appellant plaintiff before the trial court was that originally, two acres of land in Sy. No.14 of Dodda Banasavadi was granted to Kenchegowda by Assistant Commissioner, Madya Sub-division, by order dated 8.1.1964. Under the said grant, Kenchegowda paid the upset price and saguvali chit dated 31.1.1964 was issued to him and he was put into possession of the said property. He was the owner in possession and enjoyment of the said property. Pursuant to that, Kenchegowda sold the said property in favour of one Manchegowda of Keelara village under the registered sale deed dated 13.3.1975 for valuable consideration and delivered the possession of the property to Manchegowda. The survey authorities measured the land and fixed the boundaries by ascertaining new survey No.154 which is the suit schedule property. There was some discrepancy on the revenue sketch and also the boundaries mentioned in the sketch. The same was corrected by the competent revenue and survey authorities by assigning the new number. The plaintiff purchased the said property from Manchegowda under registered sale deed dated 19.4.1994 4 and he was put in possession and enjoyment of the said property. Since form the date of purchase, he is in possession and enjoyment of the suit schedule property. The plaintiff learnt that his vendor had filed a suit for bare injunction against the defendant and two others in O.S. No.232/1978 and the same was dismissed on 18.1.1994, against which plaintiff's vendor filed an appeal in R.A. No.18/1984 and the same was also dismissed on 12.9.1986. Then, RSA was preferred in No.28/1987. While dismissing the RSA, this Court made an observation that it is open to the plaintiff i.e., the vendor of the plaintiff, to establish his title and in such event, finding recorded in the earlier suit does not come in the way and does not operate as resjudicata. It is the further case of the plaintiff that the defendants have absolutely no manner of right, title or interest over the property and they were never in possession and enjoyment of the said property. Taking undue advantage of the previous judgment and decree, the defendants were attempting to dispossess the plaintiff from the possession. Hence, he filed the suit. Defendants filed their written statement denying all 5 the plaint allegations except about the legal proceedings between the plaintiff's alleged vendor Manchegowda and the first defendant and others. The defendants contended that Kenchegowda is a fictitious person invented by the plaintiff. Manchegowda was never in possession and enjoyment of two acres of land. The 1st defendant and the father of other defendants occupied the suit schedule property during the year 1950 and since from that date, they were in actual possession and enjoyment of the same. No eviction proceedings were initiated against the defendants. Hence the question of dispossessing the plaintiff's vendor's vendor or any other person from the property does not arise. The revenue authorities have no jurisdiction to grant the suit schedule property in favour of the plaintiff's vendor. The alleged grant in favour of Kenchegowda is not in respect of suit schedule property. Hence, identity of the property is in dispute. The alleged sale deed dated 19.4.1994 would not create any right, title or interest to the plaintiff over the suit schedule property. As on the date of the suit, the defendants have already 6 perfected their title over the suit schedule property. The suit is barred by time. Hence, sought to dismiss the suit.
3. On the basis of the above pleadings the trial court framed the following issues:
1. Whether the plaintiff proves that he is the absolute owner of the suit schedule property?
2. Whether the plaintiff proves that he is in lawful possession of suit schedule property?
3. Whether the plaintiff proves the interference of the defendants?
4. Whether the defendants prove that they have perfected their title by adverse possession over the suit schedule property?
5. Whether the defendants prove that suit is barred by law of limitation?
6. Whether the suit is not properly valued and correct and fee paid is insufficient?
7. Whether the plaintiff is entitled for alternative relief of possession of the suit schedule property?
8. Whether the plaintiff is entitled for mesne profits?
9. What order?7
4. After the trial, the trial court, ultimately, dismissed the suit of the plaintiff. Being aggrieved by the judgment and decree of the trial court, the plaintiff-appellant preferred regular appeal in R.A. No.131/2006. The first appellate court, after perusing the materials, has also concurred with the findings of the trial court and dismissed the appeal by imposing cost of Rs.10,000/-.
5. Being aggrieved by the judgment and decree of the courts below and challenging the legality and validity of the said judgment and decrees, the appellant has preferred the present appeal on the grounds urged in the appeal memorandum.
6. While admitting the appeal, this Court has framed the following substantial questions of law:
1. Whether the Courts below are right in dismissing the suit of the plaintiff/appellant for declaration of title and for possession, thereby nullifying the grant made in favour of the vendor of the 8 plaintiff/appellant, about 40 years ago, on the basis of the difference in the boundaries ?
2. Whether the approach of the Courts below in nullifying the grant made by going into the correctness of the procedure adopted for the grant is in accordance with law ?
7. Heard the arguments of the learned Senior counsel appearing for the appellant-plaintiff and also the learned counsel appearing for the respondent-defendant.
8. Learned Senior Counsel appearing for the appellant, during the course of the arguments, submitted that the government granted the land in the year 1964 itself to plaintiff's vendor's vendor. The grant of the land is undisputable and the survey authorities fixed the boundaries and thereby, identity of the land has been clearly established by the appellant-plaintiff. He submitted that the survey authorities conducted the survey of the land under the provisions of the Karnataka Land Revenue Act and the said 9 proceedings are also of binding nature. The civil court is bound by the grant order, saguvali chit and revenue sketch. He made it clear that though there was an earlier suit filed by the plaintiff's vendor against the first defendant and the others and the matter reached up to this Court in RSA No.28/1987 but while disposing of the said RSA, it was made clear that the plaintiff was at liberty to establish his title to the suit schedule property and in such event, the earlier proceedings would not be resjudicata. Hence, he submitted that when the identity of the land is established and grant order is also proved to satisfaction of the court, the trial court ought to have decreed the suit. However, the trial court without appreciating the materials on record, has dismissed the suit by its judgment and decree, which was confirmed by the first appellate court in regular appeal. Hence, he submitted to allow the appeal by setting aside the judgment and decrees of the courts below.
9. Per contra, learned counsel for the respondents defendants during the course of the arguments submitted 10 that there is no grant order in favour of the vendor of the plaintiff as alleged by the plaintiff. No grant order is issued in favour of the plaintiff's vendor in respect of the suit schedule property. He further submitted that, on an earlier occasion, there was litigation between the alleged vendor of the plaintiff and also defendant No.1 and the others in O.S. No.238/1978 and the said suit was dismissed. The appeal preferred in R.A. No.18/1994 was also dismissed by the first appellate court. When the matter was taken up before this Court in RSA, this Court has also dismissed the RSA. Hence, the learned counsel submitted that the present suit is not maintainable since the grounds that they have taken in the present suit were already considered in the earlier proceedings. He further submitted that the identity of the property itself is not established. Therefore, in the absence of such identity, it cannot be said that there is grant order in respect of the suit schedule property. It is submitted that the plaintiff has miserably failed to establish his case with cogent and satisfactory materials. Hence, considering the entire merits of the case, the trial court has dismissed the suit which is 11 confirmed by the first appellate court. The courts below have already given concurrent findings on the factual aspects and therefore, this Court again need not go into the factual aspects in this second appeal. Hence, he submitted that there is no merit in the appeal and the same may be dismissed. In support of his contentions, learned counsel for the respondent has relied on the following decisions:
1. (2010) 3 Supreme Court Cases 251 (Santosh Vs. Jagat Ram and Another)
2. LAWS (KAR)-2007-3-54 (Shivaji T Sonavale Vs. Parvathibai B Pawar)
3. LAWS(KAR)-1998-8-49 (Yashodabai Vs. Gangawwa)
4. AIR 1968 SC 956 (Ningawwa Vs. Byrappa Shiddappa Hireknrabar and Others)
5. AIR 2010 SC 3240 (Daya Singh and Another Vs. Gurdev Singh through L.Rs.)
10. I have perused the pleadings submitted by the parties before the trial Court, oral evidence of P.Ws.1 and 2, D.Ws.1 to 3 and documents Exs.P1 to P14 and D1 to D5, the grounds urged in the appeal memorandum and also the judgments and decrees passed by the Courts below. 12
11. The case of the appellant-plaintiff before the trial Court is, originally 2 acres in Sy.No.14 of Doddabanasavadi was granted to Kenchegowda S/o Siddegowda by the order of Assistant Commissioner, Mandya dated 8.1.1964 and said Kenchegowda paid the upset price and saguvali chit dated 31.1.1964 was issued to him and he was put in possession of the said property. He sold the said property in favour of one Manchegowda under the registered sale deed dated 13.3.75 for valuable consideration and Manchegowda was in possession and enjoyment of the said property. The survey authorities, as per rules, measured the said land and fixed the boundaries by assigning new Sy.No.154 which is the suit schedule property. It is also mentioned that there are some discrepancies in the revenue sketch and also boundaries mentioned in the sale deed and the same was corrected by the competent revenue and survey authorities by assigning new survey number and the road bifurcates into two pieces. It is also the case of the plaintiff that he has purchased the property from said Manchegowda under the registered sale deed dated 19.4.1994 and he was put in possession and 13 enjoyment of the schedule property. It is seen from the judgment of trial Court that plaintiff's vendor filed the suit for bare injunction against the defendant No.1 and two others in O.S.No.232/1978 and same was dismissed on 18.1.94 against which, plaintiff's vendor preferred appeal in R.A.No.18/84 before the Civil Judge, Mandya. The same was also dismissed confirming the judgment and decree passed by the trial Court and against the same judgment and decree plainitff's vendor had preferred second appeal before this Court in R.S.A.No.28/87, which was also dismissed by this Court, but however, with an observation that it is open to the vendor of the plaintiff to establish his title to the land purchased by him under the sale deed and secure decree of title.
12. Plaintiff filed the present suit seeking the relief of declaration of title that he is the absolute owner in possession of the suit schedule property and also sought for injunction against the defendants to restrain them from interfering with his possession and enjoyment. Alternatively, he has sought for relief of possession of suit schedule property from the 14 defendants. Perusing the judgment of the trial Court, it is seen that the trial Court has discussed in detail referring to the materials produced in the case and at paragraph No.34 it is observed by the trial Court that in the evidence of plaintiff, he has clearly admitted that road in between his land is public road and public are utilizing the said road. However, in the sale deed Ex.P1 it is mentioned that a road passes through the lands of plaintiff and said road is only cart road and belongs to him. In paragraph No.36 of the judgment the trial Court has observed that at the time of arguments learned counsel for the plaintiff submitted that excluding the road portion he has mentioned the total extent of two bits. In the saguvali chit or in the sale deed of the plaintiff's vendor, there is no mention about the existence of this road and there is no whisper about two bits in the property. They have given common boundaries to these two properties. In paragraph No.40, it is observed that the learned counsel for the plaintiff has argued that there was wrong mentioning of boundaries in the original grant certificate. Hence, plaintiff's vendor had resurveyed the lands and at present the boundaries were 15 correctly mentioned. In paragraph No.42 it is observed by the trial Court that on careful perusal of the above documents mentioned at paragraph No.41, the Court found that after grant of the property in favour of Kenchegowda and after sale of this property to Manchegowda, the property is surveyed and new survey No.154 is assigned. However, these documents do not reveal that the road passes through in the said property. Although it was newly surveyed, the new survey sketch is not produced. The earlier suit filed by the plaintiff's vendor was dismissed mainly because western and northern boundaries given to the suit schedule are incorrect and said boundary includes 3-4 acres of land. As observed by the trial Court in paragraph No.43 of its judgment, even in the present suit the defendants have specifically denied the boundaries of the suit schedule properties that too western and northern boundaries. It has also referred to the oral evidence of plaintiff and his cross-examination wherein he has deposed that he does not know the extent of said road and what was the portion in suit schedule property went to said road. After perusing the entire documents produced before 16 the trial Court, it was observed that western and northern boundaries mentioned in the original grant certificate is not continued in further documents i.e., in the sale deed of the plaintiff's vendor, so also the plaintiff. Moreover, the above said boundaries mentioned in the sale deed of the plaintiff and his vendor is not shown in the suit schedule. The plaintiff has not examined any person to say that road bifurcates his property and his property is situated in two bits.
13. The trial Court has also considered the oral evidence of both sides so also, the documents produced and ultimately, has come to the conclusion that plaintiff was not able to establish the identity of the suit schedule property and dismissed the suit of the plaintiff. When the plaintiff has challenged the judgment of the trial Court by filing the appeal before the first appellate Court, it has also after re- appreciating the oral and documentary evidence, concurred with the findings of the trial Court and ultimately, dismissed the appeal by imposing cost of Rs.10,000/- and confirmed the 17 judgment of the trial Court. With regards to the material fact of establishing the identity to the suit schedule property, both the Courts have recorded concurrent finding that plaintiff was not able to establish identity to the suit schedule property and even the earlier suit filed by the plaintiff's vendor was dismissed on the similar ground. Therefore, as no illegality has been pointed out by the appellant in this appeal, there are no valid and justifiable grounds for this Court to interfere with the judgment and decrees passed by the Courts below.
There is no merit in the appeal. Hence, it is hereby dismissed.
Sd/-
JUDGE Cs/bkp