Karnataka High Court
G Puttaswamy vs C K Nanjundaiah on 3 July, 2017
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY 2017
BEFORE
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
R.S.A.NO.387/2006 (DEC & INJ)
BETWEEN:
G.PUTTASWAMY,
AGE : 76 YEARS,
S/O LATE N.GAFFE GOWDA,
SINCE DIED 1(A) TO 1(D) ARE THE
LEGAL REPRESENTATIVES
1(A) SMT.JAYALAKSHMAMMA
W/O LATE G.PUTTASWAMY,
AGED 60 YEARS,
1(B) SRI MAHESH KUMAR
S/O LATE SRI G.PUTTASWAMY,
AGED 43 YEARS,
1(C) SRI M.R.SANATH KUMAR
S/O LATE SRI G.PUTTASWAMY,
AGED 41 YEARS,
1(D) SRI ARUN KUMAR M.P
S/O LATE SRI G.PUTTASWAMY,
AGED 30 YEARS,
APPELLANT 1(A) TO 1(D) ARE
RESIDING AT
NO.1593, 1ST CROSS,
SRI VIDYA GANAPATHY TEMPLE STREET,
VIDYANAGAR,
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MANDYA. ...APPELLANTS
(BY SRI M.R.RAJAGOPAL, ADVOCATE)
AND :
SRI C.K.NANJUNDAIAH
AGE : YEARS,
S/O KEMPAHONNE GOWDA,
VIJAYANANDA MILITARY HOTEL,
M.C.ROAD,
MANDYA - 571 401. ...RESPONDENT
(BY SRI K.ANANDA, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGEMENT AND DECREE DATED 21.10.2005
IN R.A.NO.75/2005 ON THE FILE OF THE SESSIONS JUDGE,
FAST TRACK COURT-IV, MANDYA, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
23.3.2000 PASSED IN O.S.NO.563/1989 ON THE FILE OF
THE PRL. CIVIL JUDGE (JR.DN), MANDYA.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The unsuccessful plaintiff in OS.No.563/1989 on the file of Principal Civil Judge (Jr.Dn), Mandya, has come up in this second appeal impugning the concurrent finding of both the courts below in dismissing his suit for declaration and permanent injunction. However, during the pendency of this second appeal, plaintiff has -3- died and his legal representatives have come on record to prosecute this appeal.
2. Brief facts leading to this second appeal are as under:
The plaintiff is said to be owner of western half portion of property bearing municipal katha No.7437/8382/1491 of Mandya Town. Admittedly, said property originally belonged to one Anantharaj and the same was an agricultural land, which he sold in favour of one Boraiah under registered sale deed dated 15.11.1972 and the extent of land covered under said sale deed was approximately 6 guntas with the boundaries as referred to in said document. It is stated that said property which was subsequently referred to as site bearing aforesaid municipal katha number was later held by one Sreekantaiah s/o Rangappa and said Sreekantaiah sold western half portion of the property to plaintiff under registered sale deed dated 7.7.1983. The schedule as could be seen from sale deed dated 7.7.1983 is the entire extent of land, which was sold by Anantharaj to Boraiah and thereafter, reached -4- the hands of Sreekantaiah, which measures 59 feet east to west on north side, 53 feet east to west on southern side, 110 feet north to south on western side and 114 feet north to south on eastern side.
59 + 53 In other words, the total extent of said property would be 2 x 110 + 114 2 or 56 feet x 112 feet or 6272 square feet. If the same is looked into, there is difference in the extent of property from original sale deed under which Boraiah purchased from Anantharaj and what was purchased by him was approximately 6 guntas. If 6 guntas land is considered as the land that was available with Boraiah, the same would be 33 feet x 33 feet, which is the measurement of 1 gunta, which comes to 1089 square feet.
If the same is multiplied by 6, then it will come to 6534 square feet, which should have been the land that was held by Boraiah.
3. As could be seen from the records, what was available with Boraiah, which he conveyed to other persons, which ultimately reached to Sreekantaiah is 6272 square feet. In other words, there is deficiency of 262 square feet in measurement when -5- it transferred from one hand to another and reached the hands of Sreekantaiah s/o Rangappa i.e, vendor of the plaintiff. Further, the records would disclose that the entire extent is not sold to plaintiff and what was sold to him was western half portion of said property and that is described as site measuring east to west 29 feet on north side, east to west 26 ½ feet on southern side, north to south 114 feet on southern side and on western side 110 feet, which in other words would come to exactly 50% of 6272 square feet or 3136 square feet. This is the extent which the plaintiff thought he has purchased on the basis of original sale deed.
4. It is seen that when plaintiff planned to take up construction on the property in question, he noticed that there is an encroachment of 10 feet into his property east to west on northern side and ½ feet encroachment on the southern side and with reference to length i.e., from north to south an extent of 30 feet, in other words, 156 square feet. With reference to this alleged encroachment by his neighbour, the suit for declaration and -6- permanent injunction is filed by the plaintiff, where alternatively possession is also sought.
5. In the said suit, on service of summons, defendant entered appearance, denied in totality all the allegations made against him with reference to encroachment and tried to assert that he is in possession of the property that is conveyed to him by his predecessor in title.
6. With the aforesaid pleadings, the court below proceeded to frame the following issues:
"1. Whether the plaintiff proves that he is the owner in possession of 'A' schedule property?
2. Whether he further proves that the defendant encroached upon 'B' schedule property which forms part of 'A' schedule and started to put up construction?
3. Whether the plaintiff is entitled to a declaration and injunction as prayed for?
4. What decree or order?"
Thereafter, the matter went into trial, where the plaintiff adduced evidence as PW.1 and he also examined 3 other persons as PWs.2 to 4; one of them is his vendor in title, who is PW.4 and other two -7- are independent witnesses. In support of his case, the plaintiff produced and relied upon 10 documents which are marked as Exs.P1 to P10. Per contra, the defendant examined himself as DW.1 and he had produced and relied upon 6 documents, which are marked as Exs.D1 to D6, they are; original sale deed, licence for construction of building and tax paid receipts in his name.
7. In the court below what was required to be ascertained at the first place was, whether there is any encroachment, if so, what is the extent? Therefore, the court below required collection of evidence in that behalf by appointment of Court Commissioner. Accordingly, the Court Commissioner was appointed on four different occasions on filing of applications at different times by the parties. However, when one of the parties approached this Court in a revision petition in CRP.No.2787/1987, a co-ordinate bench of this Court observed that what could be accepted is only the report filed by the first Court Commissioner and if there is any ambiguity in said report, to take the assistance of ADLR to verify -8- the same. Accordingly, the court below proceeded and found that there is no substance in the material on record to identify any encroachment, inasmuch as the entire area being completely built with road on one side, the possible encroachment could not be identified either in the records or physically on the property, which is the subject matter of suit. Accordingly, answered issue Nos.1 to 3 in the negative and consequently, dismissed the suit of plaintiff.
8. As against the dismissal of suit, the plaintiff had filed an appeal in RA.No.75/2005 on the file of Fast Track Court, Mandya, wherein based on the pleadings, the lower appellate court had formulated the following points for consideration:
"1. Whether the appellant proves that the observation made by the trial court and the finding given by the trial court on all the issues are erroneous, perverse and devoid of merits as urged in the appeal?
2. Whether the judgment and decree passed by the trial court calls for the interference of this court in the present appeal?
3. Whether the plaintiff in the suit is entitled for the relief as prayed for in the suit?-9-
4. What order or decree?"
Thereafter, the lower appellate court on re-appreciation of the material on record found that the finding rendered by the court below on issue Nos.1 to 3 is just and proper and accordingly, answered the points for consideration in the negative and consequently, dismissed the appeal of plaintiff. As against the concurrent finding of both the courts below, the plaintiff has come up in this second appeal.
9. Heard the learned counsel for the appellants/legal representatives of plaintiff as well as the contesting respondent/defendant. On going through the judgment of both the courts below as well as the grounds urged in this second appeal, it is clearly seen that though the plaintiff in court below is under the apprehension that there is encroachment, the documents would speak otherwise, for the reason that the vendor's predecessor in title at the first instance Boraiah, who acquired the suit schedule property in the form of agricultural land, purchased approximately
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6 guntas land. If the measurement of said land is taken as 6 guntas, it would be 6534 square feet. However, when the said land was assigned municipal katha number, the same was measured on all four sides and the measurement as was available at the time of execution of sale deed in favour of plaintiff's predecessor in title was 6272 square feet as against 6534 square feet said to have been conveyed in favour of Boraiah. Therefore, at that stage itself there was deficiency in the extent of land of roughly about 270 square feet and that is cascaded down to subsequent purchasers, namely the plaintiff, who is the owner of western half portion of said property and also the defendant, who is the owner of eastern portion of very same property. If the plaintiff has lost approximately 150 square feet of land in measurement, that should be the extent of loss or nearer to about that with reference to defendant also. However, defendant has not come to Court seeking loss of any extent of land. Therefore, this Court would not venture in to ascertain what was the actual extent of land that was conveyed to plaintiff and what was available at
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his hands as on the date of filing of suit. It would suffice to say that when measurement as seen in the documents itself is ambiguous, based on that this Court cannot come to a conclusion that there is encroachment in to some portion of the land said to be belonging to plaintiff, which he claims to have acquired under sale deed vide Ex.P3, where the extent shown is cascaded down from Ex.P1, which was earlier held by Boraiah. Since there is already loss of an extent of 270 feet in measurement, it cannot be said to be encroachment by defendant, as observed by the trial court in its judgment in OS.563/1989 and confirmed by the lower appellate court in RA.75/2005. In that view of the matter, this Court find that no grounds are made out to admit this second appeal to reconsider the same, inasmuch as no substantial question of law arises for consideration in this second appeal.
Accordingly, this second appeal is dismissed. No costs.
Sd/-
JUDGE nd/-