Karnataka High Court
Siddappa @ Siddagond, Lrs vs Balasaheb Malkappa Patil, on 26 July, 2017
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF JULY 2017
BEFORE
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
REGULAR SECOND APPEAL No.7099/2008
BETWEEN:
Sri Siddappa @ Sidagonda
S/o Narasappa Bhui
R/o Torvi
Since deceased by his LRs
1. Smt. Laxmibai
W/o Sidagonda Bhui
Aged 76 years
Occ: Household work
2. Sri Nagaraj @ Nagappa
S/o Sidagonda Bhui
Aged 49 years
Occ: Driver
Since deceased his LRs
(a) Boramma
W/o late Nagaraj Bhui
Age: 41 years, Occ: Nil
R/o Post Torvi
Tq. & Dist. Bijapur.
(b) Vishwanath
S/o Late Nagaraj Bhui
Age: 13 years
2
Occ: Student minor
U/g of adoptive mother
Boramma W/o Late Nagaraj Bhui
R/o Post Torvi
Tq. & Dist. Bijapur.
3. Sri Basavaraj
S/o Sidagonda Bhui
Aged 39 years
Occ: Driver
4. Sri Narasappa
S/o Sidagonda Bhui
Aged 25 years
Occ: Agriculture
5. Smt. Vimalabai
W/o Shivappa Nidoni
Aged 30 years
Occ: Household work
6. Smt. Kamalabai
W/o Annaraya Iragonda
@ Biradar,
aged 35 years
Occ: Household work
All are R/o Torvi
Tq. & Dist. Bijapur.
...APPELLANTS
(By Sri P. Vilas Kumar, Advocate)
AND:
Sri Balasaheb Malkappa Patil
@ Choudhari
Aged: Major, Occ: Agriculture
3
R/o Torvi
Tq. & Dist. Bijapur
...RESPONDENT
This Regular Second Appeal is filed under Section
100 of CPC praying to set aside the judgment and decree
passed by the Prl. Civil Judge (Sr.Dn.) Bijapur in
R.A.No.67/2007 dated 16.07.2008 and the judgment and
decree passed by the Prl. Civil Judge (Jr.Dn.) in
O.S.No.38/1996 dated 14.02.2007. Consequently, decree
the suit of the appellants in O.S.No.38/1996.
This appeal coming on for admission this day, Court
delivered the following:
JUDGMENT
This appeal is filed by the legal representatives of deceased Siddappa, who was the original plaintiff in O.S.No.38/1996, being aggrieved by the judgment and decree passed in R.A.No.67/2007 dated 16.07.2008 by the Court of Principal Civil Judge (Senior Division), Bijapur by which, judgment and decree passed in O.S.No.38/1996 by the Principal Civil Judge (Junior Division) Bijapur dated 14.02.2007 has been confirmed.
2. For the sake of convenience, parties shall be referred to, in terms of their status before the trial Court. 4
3. The original plaintiff, Siddappa filed the suit seeking a decree of permanent injunction restraining the defendant from interfering with his possession and enjoyment of the suit property, measuring East-West 10½ feet and North-South 43½ feet shown by letters 'BCEF' in the plaint sketch in part of VPC No.231 of Torvi village. During the pendency of the suit, original plaintiff died and his legal representatives were brought on record and they converted the suit into one for declaration, that they are the owners of the suit property and for consequential relief of possession, by directing the defendant to remove the shed constructed by the defendant in the said open space. According to the plaintiffs, VPC No.231 described by letters 'ABCD' in the plaint sketch totally measures 46½ feet East - West and 43½ feet North - South 'BCEF' area is an open space on which defendant constructed a shop measuring East-West 8 feet and North-South 12 feet. The open space is bound on the east, by open site bearing VPC No.232; which 5 belongs to defendant, on the west, house of the plaintiff bearing VPC No.231; north, by open site of Vijayakumar Chawan and South, by road. That defendant is the owner of VPC No.232 which is situated on the eastern side of the suit property. Plaintiff has contended that he applied for building permission to the local Gram Panchayat, but permission was not accorded by the Panchayat being influenced by the defendant. That defendant has no right, title or interest over the suit property, but he is interfering with plaintiffs' possession and enjoyment of the same. That during the pendency of the suit, defendant encroached an area measuring 8 feet x 12 feet by constructing a shed thereon and started running an electrical shop in the said shed. That the suit property is part of VPC No.231.
4. In response to the suit summons and Court notices, defendant appeared and filed his written statement denying plaintiffs' averments in the plaint. Defendant admitted that plaintiff is the owner of VPC 6 No.231, but denied the measurement shown in the sale deed. Defendant has contended that VPC No.231 formerly belonged to Lakkappa Danappa Biradar which was purchased by the father of the plaintiffs. That on the date of purchase there was no variation or alteration in the property sold to plaintiff's father. But the plaintiff has filed a false suit against the defendant. According to the defendant, there is no water spouts or windows in the eastern side of the plaintiff's house. That defendant acquired VPC No.232 under a Will executed by Channappa Nagappa Boovi who had purchased the said property from one Sharanayya Dundayya Huded in the year 1954. That since the date of purchase, the predecessors in interest were in possession and enjoyment of VPC No.232 without any interruption and with the knowledge of the plaintiff and his relatives. That having obtained consent of the plaintiff in the year 1985-86, defendant constructed a shop in the disputed area and started an electrical shop in the name and style of Shivaganga Electrical Shop, by obtaining a loan from State Bank of India. Plaintiff became jealous 7 of this fact and in order to harass the defendant, has filed a false suit. Defendant has further contended that plaintiff does not own any open space towards the eastern side and there is no recital to that effect in the sale deed of the year 1947. Therefore, the question of interference by the defendant does not arise. In the above premise, defendant sought for dismissal of the suit.
5. On the basis of the rival pleadings, the trial Court framed the following issues and additional issues for its consideration:
1. Whether plaintiff proves he is in lawful possession over suit property?
2. Whether plaintiff proves defendant illegally interfering in his peaceful possession over suit property?
3. Whether plaintiff entitle for relief sought?
4. What order or decree?
Additional issues
1. Whether plaintiff further proves that the defendant encroached 'BCEF' portion shown in 8 the plaint sketch measuring 43.5 feet x 10.5 feet and illegally constructed shed abutting 'EF' line towards southern side?
2. Whether plaintiff proves that he is owner of suit property?
3. Whether plaintiff is entitled for relief of possession as prayed?
6. In support of their case, plaintiffs examined Nagaraj, son of original plaintiff as PW-1. Another witness was examined as PW-2. Plaintiffs produced nine documents, which were marked as Exs.P-1 to P-9. Defendant examined himself as DW-1. Three other witnesses were examined as DW-2 to DW-4. The Court Commissioner's evidence was recorded and he was examined as CW-1. Defendant produced sixteen documents, which were marked as Exs.D-1 to D-16. On the basis of the said evidence, the trial Court answered all the issues and additional issues in the negative and dismissed the suit. Being aggrieved by the dismissal of the suit, plaintiffs preferred R.A.No.67/2007 before the first appellate Court which, on hearing learned counsel for 9 the respective parties, framed the following points for its consideration:
1. Whether the plaintiff has proved that he is the owner of the suit property and he is entitled for recovery of possession?
2. Whether the trial Court has properly appreciated the evidence?
3. Whether the judgment and decree of the trial Court needs any interference?
4. What order?
7. The first appellate Court answered point Nos.1 and 3 in the negative and point No.2 in the affirmative and dismissed the appeal by confirming the judgment and decree of the trial Court. Being aggrieved by the concurrent findings of the Courts below as well as the dismissal of the suit, the legal representatives of the original plaintiff have preferred this second appeal.
8. I have heard learned counsel for the appellants. He contended that the Courts below were not right in dismissing plaintiffs' suit. That the plaintiffs are 10 the owners of VPC No.231 situated at Torvi village. Said property measures 46½ feet East-West and 43½ feet North-South. The disputed area is the open space shown as 'BCEF' in the plaint sketch. The defendant is the owner of the adjacent property which is VPC No.232. Plaintiffs' father purchased VPC No.231 under a registered sale deed from one Lakkappa Biradar. The plaintiff thereafter succeeded to the said property. The defendant who is the owner of the adjacent land has no right, title and interest in respect of the suit property purchased by the plaintiffs' father. That the disputed property 'BCEF' which is an open space falls within the extent purchased by plaintiffs' father. Therefore, the defendant who is not having any right, title or interest in the said open space could not have interfered in respect of that open space. Therefore, the original plaintiff was constrained to file a suit for bare injunction and thereafter his legal representatives sought declaration of title in respect of VPC No.231 and a decree of possession with regard to 'BCEF' area measuring 10½ feet 11 East-West and 43½ feet North-South after removing the shop on the western wall constructed by the defendant.
9. Learned counsel for the appellant submitted that the trial Court was not right in holding that the plaintiff had not proved his lawful possession of the suit property or that there was any interference by the defendant. According to appellants, the additional issues also have been answered in the negative by the Courts below and thereby dismissed plaintiffs' suit. As a result, the relief sought by the plaintiffs has been declined by the Courts below. Learned counsel for the appellant submitted that substantial questions of law would arise in this appeal and therefore the appeal may be admitted for a detailed hearing.
10. Having heard learned counsel for the appellants and on perusal of the material on record, it is noted that the plaintiffs claim to be the owners in possession of VPC No.231 while the defendant is admittedly the owner in possession of VPC No.232 situated 12 at Torvi village. The said properties are adjacent properties. The grievance of the plaintiffs is with regard to the encroachment said to have been made by the defendant in respect of 8 feet East - West and 12 feet North - South in VPC No.231. In other words, the grievance of the plaintiffs is that the said property belongs to plaintiffs and defendant was illegally interfering with the plaintiffs' possession of the said property. Thus, VPC No.231 is a house property and the dispute is with regard to the open space.
11. It is further noticed that the house property was purchased by the original plaintiff's father from one Narsappa under a registered sale deed dated 02.04.1947 and that the predecessor in title of the defendant, Channappa had purchased VPC No.232 under a registered sale deed in the year 1954. The dispute arose between the parties on account of the measurement shown in the sale deed dated 02.04.1947 under which, Lakkappa Biradar sold VPC No.231 to the father of the plaintiff. The 13 said sale deed was produced before the trial Court as Ex.D-11 by the defendant and not by the plaintiff. In fact plaintiffs produced only certified copy of the sale deed as Ex.P-3. The trial Court has further noted that the defendant has produced the previous sale deed also i.e., certified copy of the sale deed which took place in the year 1927 as per Ex.D-12. There is no explanation as to how the original sale deed Ex.D-11, has been produced by the defendant. According to the trial Court probably, Narasappa and Channappa were brothers and the original sale deed remained with Channappa, who subsequently may have handed it over to the defendant. But the plaintiffs are claiming title over the suit property by way of inheritance. But defendant has claimed to be a legatee of the Will made by Channappa in respect of disputed open space which according to the plaintiff belongs to them. However, the Courts below have concurrently noted that the plaintiff has not produced any document to that effect. 14
12. On the other hand, plaintiff has admitted in the plaint that defendant is the owner of VPC No.232. When plaintiffs are seeking the relief of declaration of title and also possession in respect of the suit property, the plaintiff ought to have produced the relevant documents in that regard as well as the measurements of VPC No.231. According to the plaintiffs Lakkappa Biradar had sold the house property as well as the open space to the father of the plaintiffs. But the boundaries mentioned in the said document are not tallying with the boundaries as stated by the plaintiff. The trial Court has noted that the sale deeds of the plaintiff and defendant however contain certain boundaries but there is a dispute with regard to the open space shown as 'BCEF' in the plaint sketch produced by the defendant.
13. In order to unravel the dispute between the parties, the trial Court appointed two Court Commissioners. After perusing the report of the second Court Commissioner, it observed that the property 15 purchased by Narsappa was house property as well as open space measuring east -west 31 cubits and north south 29 cubits. According to the defendant the measurement shown in Ex.D-11 is totally wrong and that there is no open space which belong to Narsappa and that the only open space belonging to Narsappa was in the Northern side of his house and which he had purchased. The trial Court has further noted that PW-1 has categorically admitted in his evidence that 'EF' wall shown in the plaint sketch is the eastern wall which has not been altered since the year 1947 and the said wall does not have any windows, doors or water spouts. Similarly, he has admitted the contents of Ex.D-4 boundaries shown towards western portion of the property purchased by Chennappa. But according to the defendant 'EF' wall is the border wall towards the eastern side between defendant and plaintiff's property which does not have the water spouts, niches or windows. This fact is also admitted by the plaintiff.
16
14. On the basis of the report of the second Court Commissioner, the trial Court held that the property purchased by Lakkappa in the year 1927 was the property alienated by him in favour of Narsappa and when Narsappa purchased the property as per Ex.D-12 there were no doors, water spouts or windows on the eastern side. The said property was transferred to Lakkappa Biradar by its previous vendor, Malasiddayya Huded and the same was transferred to Narsappa who is the father of the original plaintiff. Having regard to the aforesaid transactions, wherein the boundaries of VPC No.231 has been recorded in the respective sale deeds, the trial Court concluded that 'BCEF' area which is shown as the open space is not part of VPC No.231 and accordingly dismissed plaintiffs' suit.
15. On re-appreciating the evidence on record, the first appellate Court has come to a conclusion that the trial Court has properly appreciated the evidence on record and that the plaintiffs are not entitled to any relief and that the 17 judgment and decree of the trial Court does not require any interference.
16. Having considered the material on record, in the light of the submissions made by the learned counsel for the appellants, I find that the findings arrived at by the Courts below are not only concurrent but are also factual findings. In my view, no substantial question of law would arise in this appeal. Hence, the appeal is dismissed.
In view of dismissal of the appeal, the applications in Misc.Cvl.No.152547/2011, I.A.No.1/2017 and Misc.Cvl.No. 152548/2011 seeking condonation of delay in filing L.R. application, for setting aside abatement and for bringing on record the legal representatives of deceased respondent, also stand dismissed.
Sd/-
JUDGE swk