Karnataka High Court
Smt Mariyamma vs Sri Rajappa on 2 January, 2015
Author: Ravi Malimath
Bench: Ravi Malimath
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 2ND DAY OF JANUARY 2015
BEFORE
THE HON'BLE MR.JUSTICE RAVI MALIMATH
REGULAR SECOND APPEAL NO.137 OF 2011(DEC/INJ)
BETWEEN:
1. Smt.Mariyamma
W/o late Basappa
Aged about 63 years
Household work
R/o Lalbahadhur Shasthri Nagar
5th Cross, Basapur Main Road,
Near Anakonda,
Davanagere - 573 101.
2. Sri Durugappa
S/o late Basappa
Aged about 44 years
Household work
R/o Lalbahadhur Shasthri Nagar
5th Cross, Basapur Main Road,
Near Anakonda,
Davanagere - 573 101. ...APPELLANTS
2
(By Sri S.Vishwajith Shetty, Advocate)
AND:
1. Sri Rajappa
S/o late Basappa
Aged about 37 years
R/o Site No.61:A, 5th Cross,
Lalbahadhur Shasthri Nagar,
5th Cross, Basapur Road,
Davanagere- 573 102.
2. Hanumakka
W/o late Basappa,
Aged about 52 years
R/o Site No.61:A, 5th Cross,
Lalbahadhur Shasthri Nagar,
5th Cross, Basapur Road,
Davanagere- 573 102.
3. Duggamma
W/o late Basappa
Aged about 71 years
Coolie Work,
Presently R/o 2nd Cross,
Near Anjenaya Temple
Industrial Area,
Ramanagar,
Davanagere - 573 101.
4. Block Development Officer
Davanagere,
Bethur Road
Infront of Girl Talkies,
Davanagere - 573 101.
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5. The Secretary
Tolahunase Gram Panchayath
Tolahunse Village,
Davanagere- 573 102.
...RESPONDENTS
(By Sri B.Shekarappa, Advocate for R1 & R2
Sri R.Om Kumar, AGA for R4
R3 & R5 are served and unrepresented)
*****
This RSA is filed under Section 100 of CPC
against the judgment and decree dated 23.11.2010
passed in R.A.No.26/2010 on the file of the II Addl.
Senior Civil Judge, Davanagere, allowing the appeal
and setting aside and modifying the judgment and
decree dated 10.2.2010 passed in O.S.No.285/2004
on the file of the Addl.Civil Judge (Jr.Dn.),
Davanagere.
This RSA coming on for final hearing this day,
the court delivered the following:-
JUDGMENT
The case made out is that the plaintiff is the owner of the plaint schedule property. The 2nd plaintiff is her son. The property in question is the site bearing No.66/A measuring 40' x 15' carved out of Survey No.24 of Anekonda village of Davangere 4 Taluk in terms of the schedule of the plaint. That originally the land was acquired for Ashraya sites by the State of Karnataka. The first plaintiff is the beneficiary of site bearing No.66/A namely, the suit schedule site. The Block Development Officer, Davangere has issued the Hakku Patra dated 13-5-1987 for the site bearing No.66/A allotted to the plaintiff. The other portion was allotted to one Duggamma. That on receipt of the Hakkupatra the 1st respondent constructed a hut and was residing there since 2003. Due to poverty she was forced to leave her house and go in search of an occupation. It is then that the defendant encroached the land by dismantling the hut constructed by the plaintiff. When the same came to the knowledge of the plaintiffs in October 2004, they approached the defendants and requested them to vacate the site. The same was denied. The plaintiffs contend that 5 the defendants have no manner of right, title or interest over the suit schedule property and hence the defendants cannot encroach the property belonging to the plaintiffs. Hence they filed the instant suit seeking for a declaration that the 1st plaintiff is the owner in possession of the suit schedule property and for a mandatory injunction against the defendants to vacate and handover the vacant suit scheedule property to them. The trial court framed the following Issues and Additional Issues.
"1. Whether the first plaintiff proves that she is the absolute owner of schedule property ?
2. Whether the first plaintiff proves that after receiving the Hakku Patra she had constructed hut and residing till 2003 ?
3. Whether the defendants prove that, the State Government of Karnataka through BDO has granted written statement 6 schedule property in favour of Basappa and he was in possession of the site No.61/A?
4. Whether the defendants further prove that subsequent to the death of said Basappa, they succeeded the said property?
5. Whether the defendants prove that the written statement schedule property is different from the schedule property ?
6. Whether the plaintiffs are entitled for relief of declaration and mandatory injunction against the defendants ?
Addl.Issues
1. Whether the plaintiff proves that the site No.66 has two portions as 'A' and 'B' out of one i.e., 'A' portion has been allotted to plaintiff and 'B' portion has been allotted to one Durgamma ?7
2. Whether the defendant No.3 proves that the suit is not properly valued and court fee paid is not proper?
3. Whether the suit is bad for mis-joinder of unnecessary parties?
4. Whether the suit is bad for non-joinder of necessary parties ?
5. Whether the suit is hit by Sec.295(2) of Zilla Panchayat Act ?"
In support of their case the plaintiffs examined 3 witnesses and relied upon 11 Exhibits. The defendants examined 5 witnesses and relied on Exs.D-1 to D-17(a).
On contest the suit was decreed holding that the 1st plaintiff is the owner of the suit schedule property. Further, defendants 1 to 3 were directed to vacate and handover possession of the property to 8 the plaintiff by removing the construction put up by them within 3 months from that date. Aggrieved by the same, the defendants preferred RA No.26/2010. The appeal was partly allowed. The Judgment & decree of the trial court was set aside and modified by confirming the declaration that the plaintiff No.1 is the owner in possession of the suit schedule property. The claim for mandatory injunction was dismissed. Hence, the present second appeal by the plaintiffs.
2. By the order dated 19-6-2012 the following substantial question law was framed:-
"When the appellant/plaintiff claimed the relief of declaration, mandatory injunction and possession on the ground that she is not in possession of the suit property, whether the First Appellate Court was justified in refusing the relief of possession, 9 though it granted a relief of declaration stating that she is already in possession of the suit property?"
3. Heard learned counsels and examined the records.
4. The plea of the plaintiffs is that they are the owners of site bearing No.66/A morefully described in the schedule to the plaint. In the written statement filed by defendant No.2 they narrate that there is no conflict of interest with regard to the suit schedule property. That the suit schedule property is entirely different from the property owned by the defendant. That the property owned by the defendant is property bearing No.61/A with a specific schedule. The plaintiffs therefore with a mala fide intention to knock off the property belonging to the defendant have filed the suit. 10 Therefore, the suit requires to be dismissed. The trial court having considered the contentions rightly decreed the suit. However, the first appellate court was of the view that since the plaintiffs continue to be in possession of the suit schedule property the question of granting the mandatory injunction would not arise for consideration. Therefore, while holding that the plaintiffs are in possession of the suit schedule property dismissed the plea for mandatory injunction.
5. On considering the material evidence on record. I'am of the considered view that the order of the 1st appellate Court requires appropriate modification. The plea of the plaintiffs is with reference to Sy.No.66/A with a specific schedule. His claim is that there has been encroachment by defendants 1 & 2. The case of defendants 1 & 2 has 11 nothing to do with the suit schedule property. Their claim is based on their ownership and possession of a site bearing No.61/A with a specific schedule. The schedule of the plaintiffs property does not match the schedule of the defendants property. Infact in the written statement also the defendants' specific contention is that his property be referred to as written statement schedule property. Apparently there is no dispute with regard to the plaint schedule property. The defendants could not have any grievance with regard to the same as no legal right of the defendants' is infringed by any decree that may be granted. Both the Courts below on appreciation of the material on record have held that the plaintiff No.1 is the owner in possession of the suit schedule property. The property encroached is the site in question. Therefore, it is only appropriate that the suit be decreed as prayed for.
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6. However, the claim for mandatory injunction was dismissed by the appellate Court on the ground that plaintiff No.1 is not only the owner but also in possession of the suit schedule property. Therefore having held that the plaintiff is in possession of the property the 1st appellate Court was of the view that the question of granting injunction would not arise for consideration. On the other hand, it is the case of the plaintiff that a hut has been put up on his property namely, the suit schedule property bearing No.66/A. When the hut has not been claimed by the contesting defendants the question of granting mandatory injunction to direct the defendants to demolish the said structure therefore would not arise for consideration. Under these circumstances, therefore, in view of the specific case of the defendants it is only just and 13 appropriate that the plaintiffs be permitted to demolish the structure put up on the suit schedule property. The finding of both the Courts below so far as ownership of plaintiff No.1 for the suit schedule property is concerned has been affirmed. For all the aforesaid reasons, the substantial question law is answered by holding that the 1st appellate Court was not justified in refusing the relief with regard to the demolition of the hut put up on the suit schedule property.
7. The trial court having decreed to the effect of directing the defendants to vacate and handover the suit schedule property by removing the construction put up by them, the appellate Court modified by holding that plaintiff No.1 is the owner in possession of the suit schedule property. Since the first appellate Court held that the plaintiff is in 14 possession of the suit schedule property the direction to the defendants to demolish the structure was denied to him. Under these circumstances, it is just and necessary for the reasons aforesaid, that the plaintiff be permitted to demolish the structure put up on his suit schedule property. The question of taking possession of the land in question does not arise for consideration since the finding of the first appellate Court that the plaintiff is in possession of the suit schedule property is affirmed by the 1st appellate Court. Therefore it is held that the plaintiff is in possession of the suit schedule property.
Consequently, the appeal is allowed in the following terms:-
The decree of both the Courts below holding that the plaintiff No.1 is the owner in possession of the suit schedule property is affirmed. The plaintiff 15 is permitted to demolish the construction that is said to have been put up on the suit schedule property.
Ordered accordingly.
Sd/-
JUDGE Rsk/-