Karnataka High Court
Gurunath Reddy, S/O Shivaramreddy vs Sidramappa S/O Chandrappa on 22 March, 2022
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF MARCH 2022
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
R. S. A. NO.7020 OF 2008 (INJ)
BETWEEN:
Gurunath Reddy S/o Shivarayreddy,
Mogha, Aged 42 Years,
R/o Koddi, Chincholi Taluk,
Gulbarga District-585 103.
... Appellant
(By Smt. Hema L.K, Advocate)
AND:
1. Sidramappa S/o Chandrappa,
Aged about 64 years,
R/o Kodli, Chincholi Taluka,
Gulbarga District-585 103.
2. Shivsharnappa S/o Sidramappa,
Aged about 40 years,
R/o Kodli, Chincholi Taluka,
Gulbarga District-585 103.
3. Revansiddappa S/o Chandrappa,
Dead by his LRs.
2
a) Putalabai W/o Late Revansiddappa,
Aged about 61 years,
R/o Kodli, Chincholi Taluka,
Gulbarga District-585 103.
b) Shivaraj S/o Late Revansiddappa,
Age: 40 years, Occ: PDO,
R/o: Kodli, Chincholi Taluka,
Gulbarga District-585 103.
... Respondents
(By Sri. Shivaraj Appaji, Advocate for R1 & R2;
By Sri. Harshavardhan R.Malipatil, Adv. for R3(a) & R3(b))
This RSA is filed U/s 100 of Civil Procedure Code
praying to allow this appeal by setting aside the judgment
and decree dated 30.05.2008 passed in R.A.No.98/06 by
the learned Civil Judge Senior Division Chincholli, reversing
the judgment and decree dated 14.06.2006 passed in
O.S.No.107/1996 by the Additional Civil Judge, Junior
Division Chincholli and to decree the suit of the plaintiff as
prayed for.
This appeal coming on for hearing this day, the Court
delivered the following:
JUDGMENT
This appeal is filed by the plaintiff challenging the judgment and decree dated 30.05.2008 passed in R.A.No.98/2006 by the Civil Judge (Sr.Dn.) Chincholi, reversing the judgment and decree dated 14.06.2006 3 passed in O.S.No.107/1996 by the Additional Civil Judge (Jr.Dn.), Chincholi.
2. For the sake of convenience, parties are referred to as per their ranking before the Trial Court. Appellant is the plaintiff and respondents are the defendants before the Trial Court.
3. Facts giving rise to the filing of the appeal briefly stated are as under:
The plaintiff filed a suit for permanent injunction restraining the defendants from interfering into peaceful possession and enjoyment of suit as described in para 2 of the plaint. It is the case of the plaintiff that, plaintiff is the owner and possessor of house bearing Grama Panchayath New No.3-05 and 3-06 (old No.141 and 142) measuring 55 feet towards North to South and 42 feet towards East to West. The said house was purchased by the plaintiff on 4 19.06.1975 from its previous owner one Shivarachappa S/o Sidramappa Gangiguda under registered sale deed for a valuable consideration of Rs.2,000/-. The said house included three rooms.
After purchase, the suit property was mutated in the name of plaintiff and plaintiff is the owner and in possession of suit property.
3.1. The defendants filed a petition to Mandal Panchayath seeking permission to construct their house and defendants are trying to open the door and windows towards the suit open space and also trying to interfere into the suit open space. Hence, the plaintiff filed an objection to the said application. The Grama Panchyath has not issued construction permission to defendants. The defendants are forcibly trying to open the windows and doors towards the suit open space and interfering into the suit open space. 5 Hence, the cause of action arose to the plaintiff to file a suit for injunction.
3.2. The defendants appeared and filed written statement admitting the ownership of the plaintiff over the suit property but denying the measurement of the house and boundaries shown in the plaint. It is contended that the plaintiff is claiming excess measurement than the actual measurement. It is also admitted by the defendants that plaintiff has purchased the house from its previous owner Shivarachappa. It is further contended that the open space is common between the plaintiff and defendants. The house of the plaintiff is towards the West of courtyard and house of the defendants is towards next courtyard. The measurement of open space between the plaintiff and defendants is 26.11"
North - South and 17" East - West. The defendants have no knowledge about the execution of registered 6 sale deed in favour of the plaintiff. It is contended that the defendants have purchased the house from Manikappa S/o Sangappa Gangani under registered sale deed dated 10.06.1968, and the said Manikappa is none other than the collateral of the mother of Shivarachappa, who sold the suit house to the plaintiff. Further, the defendants are residing separately by dividing their property. It is contended that defendant No.1 gave an application before the Grama Panchayath for construction of house, which is towards the South of the courtyard. The plaintiff has filed objection to the said application and denied rest of the averments made in the plaint and prayed to dismiss the suit.
3.3. The Trial Court, on the basis of pleadings of parties, framed the following issues:7
1. Whether plaintiff proves that the suit open space is in his lawful possession and enjoyment?
2. Whether plaintiff proves that defendants are opening windows and doors in the suit open space and thereby interfering into suit open space?
3. Whether defendants prove that measurement shown is wrong one?
4. Whether the defendants prove that suit open space is common courtyard?
5. What decree or judgment?
3.4. Plaintiff in order to prove his case, examined himself as PW-1 and got marked the documents as Ex.P1 to Ex.P3. On the other hand, the son of defendant No.3 was examined as DW-1 and examined defendant No.1 as DW-2 and got marked the documents as Ex.D1 to Ex.D4. The Trial Court, after recording evidence and considering the material on 8 record, held that plaintiff has proved that the suit open space is in lawful possession and enjoyment of the plaintiff and further recorded a finding that the plaintiff has proved that the defendants are opening the windows and doors in the suit open space and thereby interfering into open space and consequently decreed the suit of the plaintiff. 3.5. The defendants aggrieved by the judgment and decree passed by the Trial Court, filed an appeal in R.A.No.98/2006. The First Appellate Court framed the following points for consideration:
1. Whether appellant proves that the suit open space which is under dispute is common between plaintiff and defendants?
2. Whether plaintiff-respondent proves that it is his exclusive property and proved the alleged interference by the defendants? 9
3. Whether appellant proves that the judgment and decree passed by the trial Judge is erroneous and call for interference?
4. What order?
3.6. The First Appellate Court, after re-appreciation of the evidence on record, allowed the appeal and set aside the judgment and decree passed by the Trial Court and consequently, dismissed the suit of the plaintiff. Hence, the plaintiff filed the instant appeal.
3.7. This appeal is admitted to consider the following substantial questions of law:
Whether the Lower Appellate Court is right in law in reversing the decree of the Trial Court?
4. Heard learned counsel for the plaintiff and learned counsel for defendants.
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5. Learned counsel for the plaintiff submits that, the plaintiff has produced the copy of registered sale deed marked as Ex.P1 and in the said sale deed, it is shown that the suit open space is part and parcel of plaintiff's property. She further submits that, the Appellate Court, merely relying on Ex.D3 and Ex.D4 has recorded a finding that the vendor of the plaintiff has not sold the open space in favor of the plaintiff. She further contended that DW-2 has admitted in the course of cross-examination about the boundaries of the suit schedule property. She further submits that defendant No.1 has not examined the author of Ex.D3 i.e., vendor of the plaintiff. She further submits that the defendants have not examined the Panchas in order to prove the contents of Ex.D4. Hence, she submits that the Appellate Court has committed an error in passing the impugned judgment and decree. 11 Hence, on these grounds, she prays to allow the appeal.
6. Per contra, learned counsel for the defendants submits that the plaintiff has failed to establish that the suit open space is part and parcel of the plaintiff's property. Further, he submits that in the plaint, eastern side is shown as house of Sharanappa Karakamukali, but in the plaint sketch map it is shown as house of Revansiddappa. The description shown in the plaint in para-2 and in the plaint sketch map are inconsistent. He further submits that the boundaries shown in the registered sale deed and in the plaint sketch map do not tally. He also further submits that the suit for bare injunction without seeking for the relief of declaration is not maintainable. He further submits that, in order to prove that the plaintiff's vendor was the owner of open space, as alleged by the plaintiff, the plaintiff has 12 not produced any records. He further submits that, except producing the registered sale deed, plaintiff has not produced any other records to establish that the suit open space is part and parcel of the property purchased by the plaintiff. He submits that the Appellate Court was justified in passing the judgment and decree. On these grounds, he prays to dismiss the appeal.
7. The appeal is admitted for consideration on the following substantial question of law:
"Whether the lower Appellate Court is right in law in reversing the decree of the Trial Court?"
8. Perused the records and considered the submissions made by learned counsel for the parties.
9. It is the case of the plaintiff that plaintiff has purchased the property/house bearing new No.3-05 and 3-06 (old Nos.141 and 142) measuring 13 55 feet towards North to South and 42 feet towards East to West under registered sale deed dated 19.06.1975, consisting of three rooms and an open space. It is contended that the defendants are trying to open windows and doors towards the suit open space. Hence, plaintiff filed the suit. Plaintiff in order to prove his case, examined himself as PW-1 and reiterated the averments made in the plaint in examination-in-chief and produced the copy of original sale deed, marked as Ex.P1 and produced copy of the mutation order as per Ex.P2. On going through the evidence of PW-1, in his cross-examination, plaintiff has stated that he has purchased the suit property. Except the sale deed, plaintiff has not produced any other records to show what is the measurement of rooms and extent of open space that was purchased by the plaintiff under Ex.P1.
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10. From the perusal of Ex.P1, it is seen that the father of the plaintiff has purchased the suit property in the name of plaintiff during his minority. The plaintiff is not aware about the sale transaction taken place in between the father of plaintiff and his vendor. Further, the registered sale deed - Ex.P1 discloses the measurement and boundaries of property purchased under the said deed but sketch map is not enclosed to the registered sale deed. Further, defendants have filed written statement denying the measurement and boundaries shown in the plaint and contended that the suit area shown in the plaint is imaginary and excess in measurement than the actual measurement. When the defendants have denied the measurement and boundaries of the suit property, it is for the plaintiff to establish that the boundaries and measurement of suit open space shown in the plaint are correct. The plaintiff has 15 enclosed sketch map along with the plaint. In the sketch map, towards eastern side the house of Revansiddappa is shown but not the property of defendants. When the property of the Revanasiddappa is shown towards eastern side then, the question of opening door by the defendants towards suit open space does not arise. From the perusal of the records it is seen that there is serious dispute regarding the existence of boundaries towards eastern side. Further, plaintiff has also not produced any survey records to show that the suit open space is abutting to the property of defendants.
11. It is the case of the defendants that the house of the plaintiff is towards west of open space and house of defendants is towards east. The said open space is common between the plaintiff and defendants. The defendants have produced the copy of registered sale deed marked as Ex.D2 and copy of 16 sketch map marked as Ex.D2(a). Ex.D2(a) discloses that open space is common between the plaintiff and defendants. The registered sale deed of the defendants came in existence much prior to the registered sale deed of the plaintiff. The said aspect has been discussed by the Trial Court in paragraphs- 14 and 15 which reads as under:
"14. It is seen that, in the written statement the defendants have seriously disputed the extent of the suit property as well as its boundaries. That, no suggestion in the cross-examination of plaintiff is put to the plaintiff denying the measurement of the suit properties as well as its boundaries. On the other hand, the plaintiff has very clearly and categorically stated regarding the extent as well as the boundaries in his evidence. Above all the said extent of the property as well as the boundaries are corroborated by the contents of Ex.P1 registered sale deed through which the 17 plaintiff is claiming the exclusive title as well as possession over the suit open space.
15. That, apart from contending that the suit open space is common between the parties, the defendants have contended that the measurement of the suit property as well as the boundaries as shown in the plaint are false. There is no pleading in the written statement regarding the exact measurement of the suit property. However, in the evidence it is tried to brought on record by the defendants that, the suit property is measuring 47' towards North-South and 37' towards East-West, but no documents have been produced by the defendants to establish the aforesaid facts."
12. From the perusal of the judgment of the trial Court, the Trial Court has committed an error in recording the finding as in paragraphs-14 and 15. It is well established principle of law that under Section 18 101 of the Evidence Act, the burden lies on the plaintiff to prove his case on the basis of the material available. The plaintiff cannot rely upon the weakness or absence of any defence evidence of the defendant to discharge the onus. The said view is supported by the judgment of the Hon'ble Apex Court in the case of UNION OF INDIA AND OTHERS -vs- VASAVI CO- OPERATIVE HOUSING SOCIETY LIMITED AND OTHERS reported in (2014) 2 SCC 269, wherein the Hon'ble Apex Court has held that "burden is on the plaintiff to establish his case irrespective of the question whether the defendants have proved their case or not. In the absence of establishment of plaintiff's own title, plaintiff must be non-suited, even if the title set up by the defendants is found against them and weakness of the case set up by the defendants cannot be a ground to grant relief to the plaintiff."
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13. Further, learned counsel for the plaintiff submits that DW-2 has clearly admitted that the suit open space is part and parcel of plaintiff's property. Merely, on the stray admission of DW.2, it cannot be held that suit open space is part and parcel of plaintiff's property. The plaintiff has failed to establish his case independently. The entire evidence of DW-2 must be considered but not a stray sentence in the cross-examination. A stray sentence in an evidence would make no difference. The said law is reiterated by this Court in the case of SMT. NIRMALA AND ORS. -vs- SMT. YELLAMMA AND ORS. in R.S.A.No.2419/2005 disposed of on 22.08.2013.
14. In the present case, the Appellate Court, after considering the entire material on record, was justified in recording a finding that the plaintiff has failed to prove that the suit open space or court yard which he is claiming, exclusively belongs to him and it 20 is in his possession and the Trial Court has committed an error in decreeing the suit merely relying upon the weakness of the defendant's evidence.
15. In view of the above discussion, substantial question of law is answered against the plaintiff. Accordingly, the appeal is dismissed.
SD/-
JUDGE GRD