Karnataka High Court
San Kankappa S/O Saiyanna Madan And Ors vs Manikappa S/O Saibanna Koli Died By Lrs on 15 December, 2020
Author: P.N.Desai
Bench: P.N.Desai
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IN TH E HIGH COURT OF K ARNA TAKA
KALA BURAG I BEN C H
DATE D TH IS THE 1 5 T H DAY OF D E CEMB ER, 2020
BEFOR E
THE H ON'BLE MR.JUST IC E P.N .D ESA I
REGU LAR S ECON D APP EAL N O .7178/2012
BETW EEN:
1. S AN KA NKA PPA S / O SA I YAN NA MA DAN
A GE: 71 YEA RS, OCC : PENS ION ER
R/O KOL IWADA TQ : HU MNABA D
D IST: BIDAR 585 401.
2. S AYA NNA S /O S AN KANK TA PPA
MA DA NMUKT I AGE:A BOUT 56 YE ARS ,
S INC E D EC EASED B Y L .RS .
A) NAGA MMA W/O SAY AN NA MADA N
MUK A TI A G E:60 YEA RS ,
OC C : H OUS EH OL D R/ O KOLI WA DA
HUMNA BA D DIST : B IDAR 585 401.
B) JOYA TI D/ O SAYAN NA AGE: 27 YE ARS ,
C) S HILPA D/O SA YA NNA 26 Y EAR S ,
D) REKH A D/O SA YAN NA AGE: 23 YEA RS ,
E) RUPA D/O SA YA NN A AG E: 21 Y EAR S,
F) S AN DEEP S /O SAY AN NA AGE: 19 YEA RS
G) A KAS H S /O S AYA NN A A GE: 15 YEA RS,
H) NAN DEER I D /O S A YA NNA A G E: 12 YEARS,
L.R S (G ) & (H) A RE U ND ER GUAR D IAN SH IP
OF L .R . N O.2(A )
.... AP PEL LAN TS
(B Y SRI HARSHAV A RDHAN R.MALI PA T IL , ADV OCA T E)
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AND:
1. MA NIKAP PA S/ O S AIBAN NA K OLI
D IE D BY L.RS.
A) CHANN AMMA W/ O MANIKA P PA KOL I
A GE: MAJOR, OC C: HOUSEHOLD,
B) PADMAV ATI W /O MA RUTI
A GE: MAJOR, OC C: HOUSEHOLD,
C) Y EL LA PPA S /O MA N IKA PPA
A GE: 36 YEA RS, OCC : NIL
D) V IDA YAWA TI W /O MA NIKA PPA KOL I
A GE: 32 YEA RS, OCC : HOUS EHOLD ,
E) B ASAVARAJ S /O MA NIKA PPA
A GE: 29 YEA RS, OCC : STUD ENT .
F) JAGA NA TH S /O MAN IKAA PPA
A GE: MI NOR U/ G OF HIS REA L MOTH ER
CHANA M MA W/O MANIKAP PA K OLI
OC C : H OUS EH OL D R/ O HU MNAB AD.
2. NAGA PP A S /O K ARA PP A KOLI
A GE: 45 YEA RS, OCC : PET TY BUS INESS
R/O KOL IWADA HUMNAB A D.
... RES PON D ENT S
(B Y SRI R .V.NA DA GOUDA AD VO CA T E. )
THIS REGULA R SE CO ND AP PEA L IS FILE D
UN DER SEC TIO N 100 OF THE CO DE OF C IV IL
PROC E DURE PRAY ING TO S ET- AS IDE THE
JU DGME NT A ND DEC REE DA T ED:10-02-2012 PA SS ED
BY THE L EARNE D S ENIOR CIVI L JU DG E HU MNABA D
IN R.A. NO .13/2011 AND TH E J UD GMENT AN D
DECR EE IN O. S. NO.11 /1991 DA TED:06.08.2002
PA SSED B Y A DD L. CIV IL JUDG E (JR. DN .) HU MN ABA D
AND CONS EQUENTLY D IS MISS THE S UIT OF THE
PLA I NTIFFS IN T H E I NTER ES T OF JUS TICE .
THIS A PPE AL COM ING ON FOR A DMISSION
THIS DAY , THE C OURT DELIV ERED TH E FOLL OWING
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JUDG MENT
This appeal arises out of the Judgment a nd
decre e passed in R.A.No.13/2011 by Senior Civil
Judge , Hum nabad, dated 10-02 -2012 wherein,
the Fir st Appellate Court ha s dism issed the
appeal confirming the judgment and decree
passed by the trial Court in O.S.No.11/19 91,
dated: 06-08-20 02 wherein the tria l Court had
decre ed the suit of the plaintiffs.
2. This appeal was filed by the appellants
who were the defendants and the respondents
were the plaintiffs before the trial court. It
appears that, pla intiff No.1 died during the
pendency of the case and his L.Rs were on record
and plaintiff No.2 is the respondent N o.2.
3. For the purpose of convenie nce and to
avoid repetition of discussion, the parties are
referred in this Judgment as per their re spective
ranks before the Trial Court.
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4. The plaintiffs fil ed suit the seeking
relief of declara ti on and recovery of possession in
respe ct of open spa ce measuring 40 X 33 feet
situated at Koliwa d street Humnabad. It is the
conte ntion of the plaintiffs tha t, their a ncestors
were the owners in possession of the open spa ce
measuring 1 05 feet North-South and 33 feet Ea st-
West si tua ted at Koliwa da street Humnabad
within the bou nd aries shown in the sketch map
produced along w ith plain t. The pl aintiff No.1 and
fathe r of plaintiff No. 2 sold p ortion of ope n spa ce
to the extent of 105 feet North-South and 87 feet
East-West through a registered sale deed date d
26-10-1 968 to th e defendant No.1. After this sale
their remains an portion of 105 feet North-South
and 33 feet Ea st-West. The pla intiffs were in
possession and enjoyment of the said open space.
Afte r the death of father of plaintiff No.2, these
plaintiffs became owners and possessors of the
suit open spa ce.
5. The plaintiffs have contende d that, the
defendants made forge ry regardi ng measurement
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in the origi nal sale deed by removing the figure
87 feet by inserting the figure 99 feet with a n
intention to grab the open spa ce of the plaintiffs
which is situated towards eastern side of the sold
out open space. The plaintiffs have filed a private
complaint in thi s regard. There are some small
temples over the said open space and there are
some graves of the a ncestors of the plaintiffs are
also situated. The defendants No.1 & 2 ha ve
ille gally and unauthorizedly oc cupied over a n
portion of 4 0 feet in length from North-South and
33 feet from East-West by d ispossessing the
plaintiffs which has been shown in red colour in
the plaint hand sketch. There are three standing
neem trees grown by the plaintiffs . The
defendants con structe d two latrines over the suit
open spa ce illegally. The plaintiffs asked the
defendants to deliver the possession of the suit
open space, but the defenda nts denied for w hich
the plaintiffs filed pre sent suit seeking above
relief.
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6. The defenda nts appea red before the
tria l cour t and filed written statement. In the
written statement defenda nts have denied the
conte ntion of the plaintiffs th at they are in
possession of the suit open space as a ll false. The
defendants have conte nded tha t, they are owners
in possession of a n area mea suring East-West 3 4
feet and Nor th-South 35 feet 6 i nch a nd 34 feet X
42 feet respe ctively. In fact the TMC Humnabad
has constructed 2 latrines for de fendant Nos.1 &
2 as shown in the hand sketch map. The
defendants are in possession of an area
measuring East-West 99 feet and North-South
105 feet and this area wa s sol d to them by
plaintiffs. There are public temples meant for
Koli commun ity people. The plaintiffs were never
in possession of the suit open space. The
plaintiffs have given wrong measurement cla iming
TMC property. The defenda nts ha ve contende d
tha t, eastern sid e 15 fe et in width is the open
space previously owned by the TMC. With these
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main grounds the defendants ha ve pra yed to
dism iss the suit of the pla inti ff with costs .
7. On the basis of the ple adings of the
parties, the Trial Court has framed the is sues.
8. On behalf of pla intiffs, the plai ntiff
No.1 got examine d himself as PW. 1, got examine d
five witnesses as PW.s 2 to PW. 6 and got marked
two docume nts Exs.P.1 & Ex.P. 2 On behalf of
defendants, de fendant No.1 examined himself as
DW.1 a nd exami ned two witnesses as DW.2 and
DW.3 . No d ocuments were marked for defenda nts.
9. The Trial Court after considering the
evide nce and material on record decreed the suit
of the plaintiffs holding that the suit open spa ce
was the ancestral property of the pla intiffs as
admitted b y the defendants and the plaintiffs
were the owners of the suit open space a s per the
sale deed dated 26-10 -19 68 situated towards ea st
of sold open spa ce, held that, the plaintiffs ha ve
proved their ti tle ove r the suit property and the
defendants have failed to prove that, they are the
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owners of the suit open space as per the sale
dee d dated 26-10-1968 and the defendants were
directed to hand over the possession of the suit
open space.
10. Being aggrieved by the said jud gment,
the defendants preferred an appea l in
R.A. No.13/2011 wherein the First Appellate
Court after hearing both side s dismissed the
appeal confirm ing the Judgment and decree
passed by the tria l court.
11. The same is now cha llenged in thi s
Regular Second Appeal by the defendants on the
followi ng ground s
a) that, the plaintiffs ha ve not produced
any title deeds. The only document produced are
sale deed executed in favour of the defe ndants
and a sketch map and they cannot be construed
as title of the pla intiffs.
b) the defendants have purchased an
extent of 99 feet East-West and 105 fe et North-
South and the municipal records sta nd in their
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name . There fore, the question of their being open
space to the extent of 33 feet East-West does not
arise.
c) It is not in dispute that there is nala
and the trench on the ea ste rn side of the
property. Such b eing the case the plaintiffs b y no
stretch of imagination can contend that the said
open space is par t of their house property.
d) The plaintiffs have not menti oned
municipa l numb er of the open space. In the
absence of same, the suit for decla ration cannot
be granted on an imaginary open space.
With these main grounds the appellants/
defendants have prayed to admit the appeal by
framing the substantial q uestion of law as
plea ded at pa ra No.9 of page No. 7 in the appeal
Memo.
12. Sri Harshavardhan R.Malipatil lea rned
counsel for appellants argued that, the plaintiffs
have not at all given municipal number of the
suit property. The property is situated in
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Humnabad city, d efinite ly there should have some
number to property. So without giving municipal
number the declara tion granted by the Courts is
not sustainable. Learne d counsel further argued
tha t, the pla intiffs ha ve not p roduced any title
dee ds so as to claim declaration of their title.
The plaintiffs ha ve failed to prove identity of the
property with its measurement shown in the
plaint. B oth the Courts without properly
appre ciating the evidence ha ve decreed the suit.
In this regard, the learned counsel for appellants
relied upon the decision of this Hi gh Court
reported in AIR 1999 Ka rnataka 421 in case of
Ambanna Vs Ghantea ppa wherein at para No.4 it
is held tha t, whenever, Orde r VII Rule 3 is
viola ted and particulars are absent in a plaint,
the plaint shall be rejected and ought not to have
bee n numbered. Learned counsel for appellants
further argued that, in the absence of clear
documents rega rding title a nd identity of the
property without there being mu nicipal number,
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the Judgment passed by both the Courts is not
sustainable and pra ys to admit the appeal.
13. Per contra, Sri.R.V.Nada gouda learned
counsel for respondents argued tha t both the
Courts on appreciating the oral and documentary
evide nce have come to a concurrent finding
regarding ownership of the p laintiffs as it is
foun d that, the defendants are not the owners or
having any right over the suit property. The
defendants we re dire cted to hand over the
possession of the same to the pla inti ffs. The
Judgment of b oth the Courts are based on findi ng
of fa ct. When the findings are based on the
find ing of facts, no substa ntia l question of law
arise for consideration in Regula r Second Ap peal
and prays to dismiss the a ppeal.
14. I have perused the Judgment of the
tria l court, first appellate court, evidence and the
documents produced by both the p arties.
15. The und isputed contentions are that,
the pla intiffs sold pr operty to the defe ndants
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through a registered sa le deed/Ex.P.1 dated: 26-
10-1968. The d efendants also admit the sa me.
But the defendants dispute the measurement
show n in the sale deed. On perusing Ex.P. 1 sale
dee d, it is evident that, the con tention s of the
plaintiffs regarding area sold i.e., North-South
105 feet and Ea st-West 8 7 feet is correct.
16. The defendants h ave not produced any
title deeds. The trial court ha s righ tly observed i n
this regard while answering the issues, but held
tha t, the defendants when admit tha t they have
purchased the part of the property from the
plaintiffs, then the defendants deem to have
admitted the ownership of the plaintiffs in
respe ct of the other part of property i.e., suit
property, which is also evident from the e vidence
of the plaintiffs and their witnesses. Plaintiffs
evide nce clearly indicates that after se lling the
property to defendants there is some open space
left out which belongs to the plaintiffs. The
evide nce of the plaintif fs witnesses is consistent
with the contention of the plaintiffs. Of course no
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documents regarding ow nersh ip of the plaintiffs
is pr oduced but the plaintiffs and their witnesses
have clea rly stated that, it is their ancestral
property. So might be when the property is
ancestral the plaintiffs might not be having any
documents of title as it is their ancestors
property. But the defe ndants admit tha t they
have purchase d the property from pla intiff s. The
defendants have purchased the house open space
with measurement shown in the sale deed.
17. Even DW.1 himself ha s admitted that,
they have purchased an area of 105 feet to wards
North-South and 87 fe et Ea st-West. So this is
contra ry to the defense taken by the defenda nts.
The de fendants a re changing their claim from 8 7
feet to 99 feet without there being any a uthority
just to lay their false claim over suit pr operty.
The defendants w itnesses a lso admitted that, the
defendant No.1 has purchased the property from
the plaintiffs. The witnesses have clearly
admitted that after selling the property to the
defendants, the said open space rema ined with
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plaintiff and it belongs to the plaintiff Nos.1 & 2.
Afte r the de ath of father of plaintiff No. 2, his
legal heirs are the owners of the suit property.
So the ownership is clearly a dmitted b y these
witne sses. Construc tion of the latrine is
admitted. The defendants contend that, it belongs
to municipa lity. The issues framed in this ca se
clearly indicates that, the burden casted upon
the plaintiff s is d ischarged b y the plaintiffs.
18. The firs t appella te court at para
Nos.16, 17 & 18 of the Judgment has discussed
and re-apprecia ted the evidence and held that the
defendants have change d the measurement f rom
87 feet to 99 feet. On the other hand the
plaintiffs have proved the ownership an d the
defendants failed to pr ove tha t, even two la trines
were constructed by the TMC Hum nabad. If a t all
the latrines were constructe d by the TMC
Humnabad it is for municipali ty to take steps
against the p laintiffs b ut not for the defenda nts.
It appears that, the defendants p osse ssi on ove r
the sui t p rope rty is illegal. The pla inti ffs being
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the owners and as the defendants have no better
title are righ tly directed by tria l Court to
handover the possession.
19. As per Order 7 Rule 3 of Code of Civil
Procedure, whe re the subject matter of the suit is
immovable prope rty, it sha ll be described either
by numbers or by measurement or boundaries. It
is not necessary that the number of the property
shall alwa ys be m andatory.
Order VII Rule 3 Code of Civil Procedure
re ads a s under:
3. Where the su bject matter of the sui t is
immo vab le p roper ty:- W here t he subject of the s uit is
immov able pr operty, the plaint s hall contain a
descr iption of the property sufficient to identif y it, and,
in cas e such pr operty can be identif ied by boundar ies
or numbers in a r ecord of settlem ent or survey, the
plaint shall spec ify such boundaries or num bers.
20. Further it is also settle d principle of
la w tha t, if there is any discrepancy between the
boundaries a nd measurement, the bou ndaries
will prevail. Herein in this case, the plaintiffs
have clearly mentioned the boundaries as pe r
ske tch ma p/Ex.P.2 and they have produced the
sale deed which i s in dicative of the ownership of
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the plaintiffs. The defendants have not produced
any documents. Therefore, the Judgment relied
upon the appellants/de fendants supra is of no
avail to the appella nts at this sta ge.
21. It is settled principle of law that, under
section 100 of C ode of Civil Procedure , while
considering Regular Second Appeal this Court
shall not interfere with the con current findi ngs of
the fact that, if there is no perversity in the
find ing by both the Courts. O n perusing the
Judgment of both the Courts it is evident that,
the Judgment is base d on sound principles
regarding apprecia tion of oral and documentary
evide nce. Therefore, in view of the above
discussion, I fi nd no grounds to admit the appeal
as no substantial question of law a rises for
consideration in this appeal. Th e a ppeal being
devoid of me rit is liable to be dismissed.
Accordingly I pass the foll owi ng:
ORDER
i) The Regular Second Appeal is dism issed.
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ii) The Judgment a nd decree passed by Senior Civil Judge Humna bad i n Regula r Appeal No.13/2 011 dated: 10-02-20 12 is hereby conf irmed.
iii) The parties are directed to bear their own costs.
iv) Send ba ck the secured records to the concerned courts forthwi th if any secured.
Sd/-
JUDGE MNS.