Karnataka High Court
Sri.Basavanni Satyappa Korav vs Sri.Balappa Kallappa Jadhav on 6 December, 2018
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 06TH DAY OF DECEMBER 2018
BEFORE
THE HON'BLE MR. JUSTICE B.A. PATIL
RSA NO.5421/2013 (DEC)
BETWEEN
1. SRI.BASAVANNI SATYAPPA KORAV
AGE: 52 YEARS
OCC: AGRICULTURE, R/O.AMMINABHAVI
TQ: HUKKERI, DIST: BELGAUM
PIN CODE-591 309
2. SRI.BHAGAVANT SATYAPPA KORAV
AGE: 52 YEARS, OCC: AGRICULTURE
R/O.AMMINABHAVI, TQ: HUKKERI
DIST: BELGAUM 591 309
... APPELLANTS
(BY SRI.SANTOSH B.RAWOOT & SANTOSH S
HATTIKATAGI, ADVS.)
AND
1. SRI.BALAPPA KALLAPPA JADHAV
AGE: 62 YEARS, OCC: AGRICULTURE
R/O.AMMANAGI, TQ: HUKKERI
DIST: BELGAUM-591 309
2. SRI.DASTAGEER MODINASAB JAKATI
AGE: 62 YEARS, OCC: AGRICULTURE
R/O.AMMANAGI, TQ: HUKKERI
DIST: BELGAUM- 591 309
3. SRI.MALLAPPA SHANKAR HUNCHALI
AGE: 68 YEARS, OCC: AGRICULTURE
R/O.AMMANAGI, TQ: HUKKERI
DIST: BELGAUM 591 309
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4. SRI.BASAVANNI SHANKAR HUNCHALI
AGE: 66 YEARS, OCC: AGRICULTURE
R/O.AMMANAGI, TQ: HUKKERI
DIST: BELGAUM 591 309
5. SIDALING HALAPPA KURABAR
AGE: 78 YEARS, OCC: AGRICULTURE
R/O: AMMANAGI, TALUK: HUKKERI
DIST: BELGAUM-591 309
6. BHIMAPPA HALAPPA KURABAR
AGE: 73 YEARS, OCC: AGRICULTURE
R/O: AMMANAGI, TALUK: HUKKERI
DIST: BELGAUM-591 309
... RESPONDENTS
(APPEAL AGAINST R1& R6 STANDS DISMISSED,
BY SRI. M G NAGANURI,ADV. FOR R3 & R4, R2 SERVED,
SRI.DINESH M.KULKARNI, ADV. FOR R5)
THIS RSA IS FILED U/S.100 OF CPC, AGAINST THE
JUDGEMENT & DECREE DTD:27.02.2013 PASSED IN
R.A.NO.61/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE,
HUKKERI, DISMISSING THE APPEAL, FILED AGAINST THE
JUDGMENT DTD:28.09.2011 AND THE DECREE PASSED IN O.S.
NO.91/2004 ON THE FILE OF THE CIVIL JUDGE SANKESHWAR,
DISMISSING THE SUIT FILED FOR DECLARATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT, DELIVERED THE FOLLOWING:
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JUDGMENT
The present appeal has been preferred by the appellants/plaintiffs assailing the judgment and decree passed by Senior Civil Judge, Hukkeri in RA No.61/2011 dated 27.02.2013 where under the judgment and decree passed by Civil Judge, Sankeshwar in OS No.91/2004 dated 28.09.2011 was confirmed.
2. I have heard the learned counsel for the parties.
3. Though this case is posted for admission, with the consent of the learned counsel appearing for the parties, the same is taken up for final disposal.
4. It is the case of the plaintiff that survey No.156/1B belongs to plaintiffs and they are in actual possession and enjoyment of the suit property. Subsequently, defendants started obstructing their peaceful possession and as such he filed a suit for injunction and during the pendency of the case he got 4 amended the plaint for declaration, permanent injunction and possession of the suit schedule property.
5. In pursuance of the summons, defendants appeared and defendant No.4 filed written statement. Defendant No.3 adopted the same and it is the case of defendants that the plaintiffs are not in use and enjoyment of the suit schedule properties and the said land is barren since more than 30 years. Defendants never encroached the property of the plaintiffs and defendants nos.3 and 4 have got measured their land bearing Re. su.No.156/2 on 28.11.2000 and the said ADLR after giving notice to the neighboring land owners including plaintiffs have fixed the boundaries and the owners of Re. Su.No.152 are encroached their land and defendant nos.3 and 4 have never encroached the land. On these grounds they prayed to dismiss the suit.
6. The defendant No.5 also filed written statement by denying the contents of the plaint. It is further 5 contended that the said land being used by the villagers for grazing their cattle and there is also a Government road leading towards Ammanagi village and they never encroached the lands of the plaintiffs and pray to dismiss the suit of the plaintiffs.
7. On the basis of the pleadings, the trial Court framed as many as four issues and subsequently it also framed four additional Issues and thereafter by recording the evidence of the plaintiffs and defendants, the trial Court dismissed the suit. Being aggrieved by the said judgment and decree, the plaintiffs preferred Regular Appeal in RA No.61/2011. By judgment dated 27.02.2013, the said appeal came to be dismissed by confirming the Judgment and decree of the trial Court.
8. It is the specific contention of the learned counsel for the plaintiff/appellant that the PTC which has been prepared clearly goes to show that the defendants have encroached his land and there is a clear cut 6 demarcation in the said PTC. So considering the said fact, the Court below as well as the First Appellate Court ought to have decreed the suit. He further submitted that independent witness examined on behalf of the appellants as CW1 has clearly admitted that there is an encroachment made by the defendants /respondents. Under such circumstance, the Court below ought to have decreed the suit. He further submitted that it is an admitted fact that the plaintiffs are the owners of survey No.156/1 measuring about 2 acres 28 guntas then under such circumstance, the declaratory relief ought to have been granted. He further submits that the plaint was properly amended and by taking into consideration the amended portion at para No.2, the Court below ought to have decreed the suit for declaration as well as possession. On these grounds he prays to allow the appeal.
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9. Per contra, the learned counsel appearing on behalf of the respondent Nos.3 and 4 vehemently argued and submitted that there is no encroachment of any of areas in suit property. He further submits by drawing the attention of this Court under Order 20 Rule 9 CPC by contending that if a suit has been filed for declaration and possession of immovable properties the plaint must contain description of such property sufficient to identify the same and it may be stated by boundaries or numbers in records of settlement of survey. He further relied upon the decision of the Hon'ble Apex Court in the case of Naharsingh V/s Harnak Singh and others referred in (1996) 6 Supreme Court cases 699 and further contended that unless the property in question for which the relief has been sought for is identifiable, no decree can be granted in respect of the same. He further submits that PW1 in her evidence in cross examination itself has clearly stated that they are in possession and enjoyment of the 8 suit schedule property that being the case of plaintiff, there is no cause of action to file the suit and the suit is one without there being any jurisdiction. He further by drawing the attention of various PTCs, submits that earlier survey was got done by respondent Nos.3 and 4 during the year 2000 and subsequently the plaintiffs have got surveyed on 16.07.2001 and from the date of survey the suit is not filed within a period of three years and as such the suit is also barred by time as per Article 58 of Limitation Act. He further submits that there is a concurrent finding of both trial Court as well as First Appellate Court. It is further contention of the respondent Nos. 3 and 4 that in the present appeal insofar as respondent Nos.1 and 6 are concerned the appeal is dismissed. When a common declaration has been sought against the present defendants /respondents, then under such circumstances the appeal itself is not maintainable in Law. On these grounds also he prays to dismiss the appeal. In this 9 behalf and on the basis of the said judgment and decree he submits that appellants have not made out any good grounds to allow the appeal. Appeal is devoid of merits and prays for dismissal of the said appeal.
10. The learned counsel appearing on behalf of the respondent No.5 also vehemently argued and contended that though PTC shows that there is an encroachment but the plaintiffs have not approached the Court within the limitation time and even the Trial Court by framing the additional issue No.2 has categorically discussed and held that the suit is barred by time. On these grounds he prays to dismiss the appeal. He also supports all other contentions which have been urged by the learned counsel for the respondent Nos.3 and 4.
11. The substantial question of law which arises for consideration is that i. Whether appellant has made out a case to allow the appeal?
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ii. Whether without proper description of the properties with specific boundaries mentioned regarding encroachment, a Court can decree the suit?
12. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and I have also perused the records including original records and also gone though the judgment and decree passed by the trial Court as well as First Appellate Court and also gone through by giving cautious attention to the decision quoted by the learned counsel for the respondents.
13. It is not in dispute that survey No.156/1B belongs to plaintiffs and survey No.156/2 belongs to respondent Nos.3 and 4 and survey No.152/2 belongs to respondent No.5.
14. It is the specific case of the plaintiff that he is the absolute owner of the suit Re.Su. No.156/1B and he has filed a suit for declaration and injunction and also 11 for consequential relief of possession. I have carefully and cautiously gone through the plaint including the amended plaint. Though the plaint has been amended by mentioning that there is an encroachment made by the defendants but in the said amendment it is not mentioned the extent of encroachment on all the directions of the suit property. Plaint must contain encroachment of the property. It must be given with sufficient description of such property sufficient to identify such property. This is also mandate of order 20 Rule 9 CPC. Order 20 Rule 9 of CPC for the purpose of bravity, it reads as under:
"9. Decree for recovery of immovable property- Where the subject-matter of the suit is immovable property, the decree shall contain a description of such property sufficient to identify the same, and where such property can be identified by boundaries or by 12 numbers in a record of settlement or survey, the decree shall specify such boundaries or numbers."
15. Whenever the suit has been filed for declaration, injunction and possession the description of such property sufficient to identify the same has to be mentioned as per Rule 9. The said fact is not forthcoming in the instant case on hand. Even in the decision, in the case of Naharsingh V/s Harnak Singh and others reported in (1996)6 Supreme Court cases 699 at para No.6 it has been observed as under; " In view of the aforesaid findings of the Lower Appellate Court which could not be assailed before us by the learned counsel for the appellant, it is not for this Court to interfere with the decision of the Lower Appellate Court which has been confirmed by the High Court in second appeal in exercising power under Article 136 of the 13 constitution. It is well settled that unless the property in question for which the relief has been sought for is identifiable, no decree can be granted in respect of the same. The learned counsel in the course of his arguments, however, having not been able to dislodge the findings arrived at by the Lower Appellate Court merely urged that the agreement having been found to have been entered into between the parties the Court should issue the direction for enforcement of the same. We are unable to agree with this argument of the learned counsel for the appellant."
16. On going through the by said paragraph, it has been clearly stated that unless the property in question for which the relief has been sought for is identifiable, no decree can be granted in respect of the same. With above observation if we peruse the evidence of plaintiff there is no specific 14 description of the property stated in his evidence in this behalf. Even if we go through the evidence of PW1, in her evidence she has clearly stated that they are in possession and enjoyment of the suit schedule property. Then under such circumstance, the question of declaration as to their ownership does not arise at all and the recovery of the possession is also not a issue in this behalf. Looking from any angle the contention of the learned counsel for the appellant is not acceptable.
17. Even as could be seen from the records, the Court below has specifically framed issue No.2 and therein defendant No.5 has contended that the suit is barred by limitation Act after considering the facts trial Court has come to the conclusion that the suit is not within the period of 12 years from the date of the dispossession and other description has also not been specifically stated and pleaded in this behalf. On that ground the contention of the respondent No.5 is acceptable.
18. Be that as it may, it is the specific contention of respondent No.3 and 4 that the suit is also hit by article 58 15 of the Limitation Act. As per the Article 58 of the Limitation Act, the suit for declaration has to be filed within three years from the date on which the right to sue is first accrued.
19. I have carefully and cautiously gone through the PTCs which has been produced along with the lower Court records and the first PTC was got prepared by the defendant No.3 and 4 on 28.11.2000 through ADLR Hukkeri and by issuing notice to all the surrounding owners than the boundaries have been fixed and subsequently the plaintiffs have got surveyed the said land and it was surveyed on 16.07.2001 and in that also the encroached area in the suit property has been shown and subsequently another survey was also got done as per Ex.P2 on 25.10.2002. All these records clearly goes to show that though survey was done and the encroachment has been shown but the suit for declaration has not been filed within the period of three years from the date of cause of action even though in the said PTC the encroached area has been specifically stated but even in the plaint there is no specific area which has been encroached with description has been stated.
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20. Looking from any angle plaintiffs have utterly failed to prove the case. It is the contention of the learned counsel for the respondent No.3 and 4 that the suit as against the respondent No.1 and 6 has been dismissed before this Court and as such the decree which has been confirmed as against them can not be changed and this Court cannot be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees the court has no alternative but to dismiss the appeal as a whole.
21. It is will settled principles of Law by the Hon'ble Apex Court in the case of Sunkara Lakshminarasamma(D) by LRs V/s Sagi Subba Raju and others etc in Civil appeal Nos.4380-4382/2016 that the Court cannot be called upon to make two inconsistent decrees about the same subject matter. In order to avoid conflicting decrees the Court has no alternative but to dismiss the appeals as a whole. In that light also the appeal is liable to be dismissed.
22. Keeping in view the above said facts and circumstances the appellant has not made out any good 17 grounds to interfere with the judgment and decree of the trial Court.
23. I have carefully and cautiously gone through the judgment and decree passed by the trial Court and First Appellate Court and there is no illegality or inconsistency while passing the impugned order. The appeal is devoid of merits and the same is liable to be dismissed and accordingly it is dismissed.
Sd/-
JUDGE HMB