Karnataka High Court
B G Thimmappaiah vs The Mysore Lamp Works Ltd on 30 March, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR FIRST APPEAL NO.923 OF 2007 (DEC)
BETWEEN:
B.G. THIMMAPPAIAH
70 YEARS
SINCE DEAD BY LRS.
1. M. CHANNAMMA
AGED ABOUT 60 YEARS
W/O LATE B.G. THIMMAPPAIAH
2. T. SUJATHA
AGED ABOUT 50 YEARS
D/O LATE B.G. THIMMAPPAIAH
W/O A. DEVAKUMAR
3. T. SHASHIKALA
AGED ABOUT 48 YEARS
D/O LATE B.G. THIMMAPPAIAH
W/O PUTTARAMAIAH
4. T. SUKANYA
AGED ABOUT 45 YEARS
D/O LATE B.G. THIMMAPPAIAH
W/O M. KALLAPPA
5. T. BABU MAHADEV PRASAD
AGED ABOUT 43 YEARS
S/O LATE B.G. THIMMAPPAIAH
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ALL (1) TO (5) ARE RESIDING AT
NO. 1650/16 2ND MAIN ROAD
RAMAMOHANAPURA
BANGALORE - 560021
...APPELLANTS
(BY SRI.C.M.NAGABUSHANA, ADVOCATE)
AND
1. THE MYSORE LAMP WORKS LTD.
OLD TUMKUR ROAD
BANGALORE - 55, BY ITS
GENERAL MANAGER/SECRETARY
2. KARNATAKA INDUSTRIAL AREA
DEVELOPMENT BOARD
BY ITS EXECUTIVE DIRECTOR
RASHTROTHANA BUILDINGS
NRUPATHUNGA ROAD
BANGALORE - 560001
(BY SMT.PUSHPALATH. G FOR VIVEK HOLLA, ADVOCATE
FOR R-1;SRI B.R.SRNIVASA GOWDA, ADVOCATE FOR R-2)
.....RESPONDENTS
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 02.02.2007 PASSED IN O.S.NO.846/1995
ON THE FILE OF THE XXIV ADDITIONAL CITY CIVIL JUDGE
BANGALORE CITY (CCH.NO.6) DISMISSING THE SUIT FOR
DECLARATION AND PERMANENT INJUNCTION.
THIS RFA COMING ON FOR DICTATING JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
This captioned Regular First Appeal is filed by the appellant-plaintiff questioning the judgment and decree dated 02.02.2007 passed in O.S.No.846/1995, wherein the relief of declaration and perpetual injunction sought by the plaintiff is rejected by the Trial Court. It is against this dismissal decree, the plaintiff is before this Court.
2. For the sake of convenience, the parties are referred as per their ranks before the Trial Court.
3. The facts leading to the case are as under; The subject matter of the suit is land bearing Sy. No.34 totally measuring 1 acre 39 guntas situate at Yeshwanthpura, Bengaluru. The plaintiff has contended that the land was originally a tenanted land and was owned by one Mohammed Sheriff and plaintiff was cultivating the said land as tenant since 4 1946. It is also specifically pleaded that plaintiff's father was a original tenant and was cultivating the said land during his lifetime. After the death of plaintiff's father, the plaintiff herein started cultivating the land bearing Sy. No.34 measuring 1 acre 39 guntas. After coming into force of the Karnataka Land Reforms Act, 1961, the plaintiff filed an application in Form No.7 seeking grant of occupancy right to an extent of 1 acre 39 guntas in Sy. No.34. The Land Tribunal, Bengaluru North Taluk on enquiry conferred occupancy rights to the plaintiff to an extent of 1 acre 39 guntas vide order dated 01.12.1981.
4. The plaintiff has further specifically pleaded that the total extent in Sy. No.34 is 3 acres 32 guntas. Out of the said extent, the plaintiff has specifically pleaded that 1 acre 33 guntas of land is in possession and enjoyment of defendant No.1, which is much prior to grant of occupancy rights. The plaintiff has further 5 specifically pleaded that there is a clear demarcation of the land between the plaintiff's land to an extent of 1 acre 39 guntas and the land owned by the defendant No.1 to an extent of 1 acre 33 guntas.
5. At para No.5 of the plaint, the plaintiff has further specifically pleaded that defendant No.2 issued a preliminary notification on 02.02.1983 thereby proposing to acquire 34 guntas of land out of 1 acre 39 guntas owned by the plaintiff herein. The said acquisition proceedings, though challenged by the plaintiff, were confirmed by this Court in W.P.No.7770/1985 and by the Division Bench of this Court in W.A.No.1189/1985. The grievance of the plaintiff is that defendant No.1 having taken possession of 34 guntas in terms of acquisition, however, filed a bare suit for injunction in O.S.No.1985/1985. The plaintiff has further pleaded that the said suit was decreed on 19.10.1987. The 6 plaintiff has further specifically asserted in para No.7 of the plaint that having lost 34 guntas on account of acquisition, the plaintiff continued to be an owner to an extent of 1 acre 5 guntas in Sy. No.34. It is specifically pleaded that the remaining extent of 1 acre 5 guntas is being enjoyed by the plaintiff and is in possession and enjoyment over the land without anybody's obstruction.
6. At para No.8 of the plaint, the plaintiff has further specifically pleaded that the property retained by the plaintiff measuring 1 acre 5 guntas is clearly demarcated. The plaintiff has further pleaded that though only 34 guntas of land in Sy. No.34 was acquired, however, defendant No.1 has been falsely asserting right over the entire extent and a sketch was prepared to the entire extent of 1 acre 39 guntas. Based on an illegal sketch, defendant No.1 started asserting title over the property retained by the 7 plaintiff by stating wrong boundaries on the northern side. The cause of action is shown as 03.02.1995 and on the said date, the plaintiff has claimed that defendant No.1 tried to destroy the standing crops and also threatened the plaintiff by contending that defendant No.2 has delivered possession of entire extent in Sy. No.34, which extends up to National Highway No.4. On these set of pleadings, the present suit came to be filed by the plaintiff claiming relief of declaration and consequential relief of injunction.
7. Defendant No.1, on receipt of summons, contested the proceedings and filed written statement. Defendant No.1 having stoutly denied the entire averments made in the plaint, at para No.17 specifically contended that defendant No.2 after conclusion of acquisition proceedings, has delivered possession of 1 acre of land in Sy. No.34. At para No.18, the defendant No.1 claimed that Sy. No.34 8 measures only 1 acre and it was acquired by defendant No.2 and in the acquisition notification, it is clearly mentioned that Sy. No.34 consists of 1 acre as on the date of notification. Defendant No.1 also claimed that pursuant to acquisition, defendant No.1 is in exclusive possession of 1 acre of land in Sy. No.34.
8. Defendant No.2, which is Acquiring Authority, has filed a written statement on receipt of summons. At para No.8 of the written statement, defendant No.2 has contended that on survey, which was conducted on 12.10.1985, it was found that the land bearing Sy. No.34 measures only 34 guntas and not 1 acre as notified in the Gazette. It is in this background, the Acquiring Authority i.e., defendant No.2 has proceeded to pass award only in respect of 34 guntas of land in Sy. No.34 and not 1 acre as notified in the acquisition notification.
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9. Based on rival contentions, the Trial Court formulated the following issues;
1. Whether the plaintiff proves that he is the absolute owner of the suit schedule property?
2. Whether the plaintiff proves that he was in lawful possession of the suit schedule property as on the date of filing the suit?
3. Whether the plaintiff proves interference by the defendants?
4. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?
5. Whether the defendants prove that the suit is hit by the principles of res-juidcata?
6. What decree or order?
10. The plaintiff to substantiate his claim examined himself as P.W.1 and examined one independent witness as P.W.2 and to corroborate and substantiate his claim produced documentary 10 evidence vide Exs.P.1 to 25. Defendant Nos.1 and 2 have also led in ocular evidence by examining three witnesses as D.Ws.1 to 3 and relied on documentary evidence vide Exs.D.1 to 37.
11. The Trial Court having examined the ocular and documentary evidence has answered issue Nos.1 and 2 in the negative and has recorded a finding that the plaintiff has failed to prove that he is the absolute owner of the suit schedule property and consequently held that the plaintiff has failed to prove that he is in lawful possession of the suit schedule property as on the date of the filing of the suit. While examining the issue No.5, the Trial Court was of the view that in view of decree passed in a suit for bare injunction in O.S.No.1985/1985, the present suit is barred by principles of resjudicata and accordingly, issue No.5 came to be answered in affirmative in favour of the defendants and against the plaintiff. Feeling aggrieved 11 by the judgment and decree of the Trial Court, the present plaintiff is before this Court.
12. Sri.C.M.Nagabushana, learned counsel appearing for the appellant reiterating the grounds urged in the appeal memo would submit to this Court that the judgment and decree of the Trial Court suffers from serious infirmities and findings recorded by the learned Judge on issue Nos.1 and 2 is contrary to the clinching evidence on record adduced by the plaintiff. He would further submit to this Court that the total extent in Sy. No.34 measures 3 acres 32 guntas and before acquisition, defendant No.1 was in exclusive possession of 1 acre 30 guntas in Sy. No.34. He would further contend that the remaining portion measuring 1 acre 39 guntas was a tenanted land and plaintiff's father was cultivating 1 acre 39 guntas as tenant and after his death, the plaintiff continued to cultivate the land measuring 1 acre 39 guntas as 12 tenant and the Land Tribunal on enquiry conferred occupancy rights to an extent of 1 acre 39 guntas. He would further contend that defendant No.2 has acquired only 34 guntas and therefore, plaintiff has succeeded in establishing his title and possession to an extent of 1 acre 5 guntas, which is discarded by the learned Judge while appreciating the ocular and documentary evidence. He would heavily bank upon the statement made by defendant No.2 - Acquiring Authority. Placing reliance on Ex.D.3, which is an award passed by defendant No.2, he would contend that only 34 guntas is acquired and the same is reflected in Ex.D.3 and therefore, placing reliance on Ex.D.3, the learned counsel appearing for the plaintiff would contend that a false claim is made by defendant No.1, which is not at all substantiated by producing cogent and documentary evidence to support their claim. He would contend that if only 34 guntas of 13 land was acquired in the land bearing Sy. No.34 and the same is supported by defendant No.2, defendant No.1 cannot assert and claim rights in excess of 34 guntas of land.
13. To buttress his arguments, he has also placed reliance on para No.8 of the written statement filed by defendant No.2 and he would also place reliance on the statement of objection filed by defendant No.2 before this Court, wherein defendant No.2 has admitted in unequivocal terms that only 34 guntas was acquired in Sy. No.34.
14. Learned counsel has further placed reliance on the PT sheet prepared by the Commissioner as per Ex.C.7. Learned counsel would contend that title documents vide Ex.P.1, which is the Land Tribunal order conferring occupancy rights to an extent of 1 acre 39 guntas coupled with the stand taken by 14 defendant No.2 - Acquiring Authority and Commissioner Sketch as per Ex.C.7 would clinch the entire controversy between the parties. He would submit to this Court that the judgment and decree of the Trial Court suffers from serious infirmities as learned Judge has not even referred to the Commissioner sketch and mahazar, which are part of records and therefore, he would contend that the judgment and decree of the learned Judge in dismissing the suit ignoring the Commissioner report and other relevant documents has resulted in miscarriage of justice and therefore, the judgment under challenge is liable to be reversed at the hands of this Court.
15. Pending appeal before this Court, the plaintiff has also filed an application seeking amendment of plaint in I.A.No.2/2011 seeking leave of this Court to incorporate alternate relief of 15 possession by way of proposed amendment. The said application is resisted only by defendant No.1, who has filed objection. Addressing his arguments on the amendment application, learned counsel appearing for the plaintiff has placed reliance on the judgment rendered by the Co-ordinate Bench of this Court in the case of CHINNAWWA VS. YALLAPPA AND OTHERS reported in 2014(5) KCCR 594 and by placing reliance on the said judgment, he would contend that in an identical case, this Court, while considering the title of the plaintiff in absence of relief of possession, has held that the powers of the Court are not restricted, but on the contrary, the Courts can exercise inherent power to mould the relief by invoking provisions under Order 7 Rule 7 of CPC. Placing reliance on this said judgment, learned counsel appearing for the plaintiff would contend that the clinching evidence on record would clearly 16 establish the title of the plaintiff, which is a larger relief and if the plaintiff is entitled for the relief of declaration and is not found in possession, in a given deserving cases, the Court can mould the relief and grant relief of possession, which is comparatively smaller relief. To strengthen his claim on this controversy, he would also place reliance on the judgment rendered by the Division Bench of this Court in the case of RANGAPPA VS. JAYAMMA reported in ILR 1987 KAR 2889. To counter the findings recorded by the learned Judge on issue No.5 relating to the application of resjudicata to the present case on hand, he has placed reliance on the judgment rendered by the Hon'ble Apex Court in the case of WILLAMS VS. LOURDURSWAMY AND ANOTHER reported in AIR 2008 SC 2212.
16. On these set of grounds, the learned counsel appearing for the plaintiff would submit to this 17 Court that the findings recorded by the learned Judge on issue Nos.1 and 2 is contrary to the clinching evidence on record adduced by the plaintiff and therefore, the said findings are not at all sustainable and liable to be reversed at the hands of this Court. He would further contend that if this Court on re-appreciation of ocular and documentary evidence concurred with the findings of the Trial Court in so far as possession is concerned, he would request this Court to invoke the power conferred under provisions of Order 7 Rule 7 of CPC., and mould the relief and grant relief of possession.
17. Per contra, the learned counsel appearing for defendant No.1 repelling the contentions canvassed by the learned counsel appearing for the plaintiff, would submit to this Court that the judgment and decree of the Trial Court in refusing to grant the 18 relief of declaration of title and injunction is in accordance with law and would not warrant any interference at the hands of this Court. She would contend that the controversy between the parties is put at rest in view of the judgment and decree passed in O.S.No.1985/85 as per Exs.D.5 and D.6. Placing reliance on the averments made in the plaint as per Ex.D.4 and also taking this Court to the findings recorded by the Court in the earlier proceedings, she would submit to this Court that the issue relating to possession over the land bearing Sy. No.34 is adjudicated and on adjudication, the suit filed by the present defendant No.1 is decreed granting perpetual injunction against the plaintiff herein and therefore, the present suit is squarely hit by the principles of resjudicata as contemplated under Section 11 of CPC and therefore, she would contend that the findings recorded by the learned Judge on issue No.5 is in 19 accordance with law and based on the rebuttal evidence adduced by defendant No.1 and therefore, would not warrant interference at the hands of this Court.
18. The next contention that is raised by the learned counsel appearing for defendant No.1 is that Sy. No.34 measures only 34 guntas and therefore, she would contend before this Court that the plaintiff has ventured in filing the present suit seeking relief of declaration in respect of the property, which is not in existence. Taking this Court to the Final Notification, she would contend that initially, 1 acre was proposed to be acquired in Sy. No.34, but, however, on survey, it was found that Sy. No.34 measures only 34 guntas and it is in this background, the Acquiring Authority i.e., defendant No.2 was compelled to acquire 34 guntas in Sy. No.34 and therefore, she would submit to this Court that the present suit is filed in 20 respect of non-existing property. By placing reliance on Ex.D.31, she would further submit to this Court that as per joint measurement, the Authorities have measured Sy. No.34 measuring 34 guntas and it is in this background, the learned counsel appearing for defendant No.1 would submit to this Court that though plaintiff was conferred occupancy rights in Sy. No.34 to an extent of 1 acre 39 guntas, however, suit land measures only 34 guntas and therefore mainly because there is a grant to an extent of 1 acre 39 guntas, the same would not confer any right and title in excess of 34 guntas. She would further seriously dispute the Commissioner's Sketch, which is a part of record i.e., Ex.C7 she would submit to this Court that the Commissioner's report is not a conclusive evidence and therefore, the same is not at all relevant to adjudicate the controversy between the parties. Even in absence of objection, the said Report 21 cannot be looked into and even if it is looked into, the same would not come to the aid of the plaintiff and therefore, she would request this Court to discard the evidence. To counter claim made by the plaintiff on the application filed in I.A.No.2/2011 under Order 6 Rule 17 of CPC., she would contend that detailed objections are filed and the plaintiff at this belated stage is not entitled to seek amendment of plaint and therefore, she would request this Court to reject the plaint.
19. The learned counsel appearing for defendant No.2, while arguing the main matter, would support the claim made by the defendant No.1. However, in so far as extent is concerned, he would fairly submit that defendant No.2 - Acquiring Authority has acquired only 34 guntas in Sy. No.34. He would contend that the extent of land, which is acquired, is 22 also averred in the statement of objection filed by defendant No.2 before this Court.
20. Heard learned counsel appearing for the plaintiff and learned counsel appearing for defendant Nos.1 and 2.
21. The following points that would arise for consideration by this Court;
1. Whether learned Judge erred in holding that the plaintiff has failed to establish his right and title over the suit schedule property?
2. Whether learned Judge was justified in holding that the plaintiff has failed to prove his lawful possession over the suit schedule property?
3. Whether the plaintiff has made out a case to seek amendment of plaint and consequential alternative relief of possession of the portion, which is in possession of defendant No.1?
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4. Whether findings recorded on issue No.5 warrants interference at the hands of this Court?
22. Findings on point Nos.1 and 2:-
The plaintiff claims that he is owner of the land bearing Sy. No.34 to an extent of 1 acre 39 guntas. To substantiate his claim, the plaintiff has placed reliance on the order passed by the Land Tribunal granting occupancy rights in favour of the plaintiff, which is placed on record vide Ex.P.1. On perusal of Ex.P.1, this Court would find that the Land Tribunal on enquiry has conferred occupancy rights in favour of the plaintiff to an extent of 1 acre 39 guntas. This order has attained finality and therefore, the plaintiff has succeeded in establishing his right and title to an extent of 1 acre 39 guntas in Sy. No.34. The controversy and the dispute started in the present 24 case on account of claim made by defendant No.1 over the entire extent. Though the documents pertaining to acquisition indicate that only 34 guntas was acquired, however, defendant No.1 is denying the title of plaintiff over entire extent on an assumption that the land bearing Sy. No.34 measures only 34 guntas. The pleadings averred by defendant No.1 in its written statement at paragraph Nos.18 and 19 would be relevant for this Court and the same are culled out as under;
"18. The first defendant submits that the Sy.No.34 consists of only 1 acre and it was acquired by the second defendant as per the final notification dated 7.3.85. In fact in the acquisition notification, it has been clearly mentioned that the Sy.No.34 consists of 1 acre as on the date of notification and it is bounded on East by the Sy.No.32, West by Railway line, North by National Highway and South by the first defendant's compound Wall.
19. The first defendant submits that the defendant No.1 is in possession of 1 acre of land in Sy.No.34. The land which is 25 in possession of the first defendant is bounded on East by the property belonging to first defendant, West by Railway line, North by National highway, and south by land belonging to the first defendant. The only extent of land which is available in Sy.No.34 is 2 acre 33 guntas and which is in continuous and exclusive possession of the first defendant herein."
23. On plain reading of these averments made at para Nos.18 and 19, it is forthcoming that defendant No.1 is asserting title to an entire extent in Sy. No.34. The plaintiff's right and title is denied on the premise that Sy. No.34 measures only 34 guntas and the same is in exclusive possession of defendant No.1. On perusal of Ex.D.3, it is clearly evident that only 34 guntas is acquired. The extent reflected in the award is also supported by the stand taken by the defendant No.2, which is the Acquiring Authority. Even defendant No.2, in its written statement at para No.8, has contended that only 34 guntas was acquired in Sy. No.34, however, at para No.8, defendant No.2 has 26 also taken a contention that though initial proposal was to acquire 1 acre, but however, on survey, defendant No.2 found that Sy. No.34 measures only 34 guntas and it is in this background, defendant No.2 has issued Final Notification thereby notifying only 34 guntas as against 1 acre. The averments made by defendant No.2 at para No.8 are culled out and the same is reads as follows;
"8. In re paragraph 6 of the plaint it is submitted that after the Final Notification a Joint Measurement Committee was set up with representatives from both the 2nd defendant as well as the Director of Land Records, Bangalore. The survey of the land conducted and a sketch was prepared, on 12-10-1985. This survey revealed that the land available for acquisition in survey No.34 (part) was only 34 guntas and not 1 Acre as notified in the Gazette. In view of this, 2nd defendant passed an award for only 34 guntas of land in survey No.34 and not 1 acre. As there was dispute regarding the ownership of the land the award amount was deposited in the City Civil Court under Sections 30 and 31 of the Land Acquisition Act."27
24. Based on rival contentions, both parties have lead in voluminous evidence in the form of ocular and documentary evidence. The ocular evidence led in by both the parties is of no consequences having regard to the nature of the dispute involved in the present case on hand. The question that needs to be examined by this Court is; as to whether Sy. No.34 measures 1 acre 39 guntas or measures only 34 guntas as claimed by defendant No.1. Having regard to the peculiar nature of dispute, it is only by way of local inspection, the actual extent could be ascertained and therefore, this Court is of the view that the local inspection done by the Assistant Director of Land Records pursuant to the Court order would be a relevant piece of evidence in the present case on hand. On local inspection, the Commissioner has prepared a sketch and the same is placed on record as per Ex.C.7. The Assistant Director of Land Records 28 has measured not only 1 acre 39 guntas but also the entire extent measuring 3 acres 30 guntas in Sy.
No.34 and has prepared a PT sheet. The Commissioner sketch as per Ex.C.7 would clinch the entire controversy between the parties.
25. The sketch, which is prepared by the Commissioner clearly depicts the entire extent of the land comprised in Sy. No.34. On perusal of the same, this Court would find that the middle portion, which is in purple colour, measures 29 guntas and abutting to the said portion, there is a yellow portion, which measures 5 guntas. In the said portions, the Commissioner has shown that there are existing standing trees. If both portions together are taken into account, then it would come to 34 guntas. If the sketch is meticulously examined, then this Court would find that the sketch would totally falsify the defence set up by defendant No.1. The contention of 29 defendant No.1 that Sy. No.34 measures only 34 guntas is factually incorrect and a false stand is taken up by defendant No.1. To the north of this 34 guntas, the Commissioner has depicted further extent measuring 11 guntas, which is shown in green portion and adjoining to the said portion, there is another 3 guntas, which is in yellow colour. If both portions together taken into account, then it would come to 14 guntas. To the north of this portion, there is an another area measuring 26 guntas, which is in orange colour and adjoining to the said portion, there is another 2 guntas, which is in yellow colour. If both portions together taken into account, then it would come to 28 guntas. To the north of this portion, there is another portion measuring 3 guntas, which is in red colour. Both parties submit to this Court that 3 guntas, which is shown in red colour, is lost on account of formation of road. If Ex.C.1 is taken in 30 consideration, then this Court would find that defendant No.1 is already in possession of 1 acre 12 guntas in Sy. No.34, which is shown at southern portion of the sketch and therefore, defendant No.1 is in possession of 1 acre 12 guntas and is also in possession of 34 guntas, which was acquired in the portion measuring 1 acre 39 guntas owned by the plaintiff. The portion, which is shown in green colour measuring 11 guntas, is in possession of defendant No.1. If the Commissioner report coupled with title documents vide Ex.P.1 and award at Ex.D.3 are taken into consideration, then this Court would find that though the plaintiff has succeeded in establishing his title to an extent of 11 guntas of land, which is owned by the plaintiff, is found to be in possession of defendant No.1.
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26. All these significant details, more particularly the mahazar prepared by the Commissioner, spot inspection and sketch are totally ignored by the learned Judge and no reasons are assigned to discard the Commissioner report. This Court is of the view that Commissioner report coupled with the pleadings and ocular and documentary evidence led in by the plaintiff and also coupled with the stand taken by defendant No.2 - Acquiring Authority as well as Ex.D.3, which is award copy would clearly establish that the plaintiff has lost only 34 guntas in Sy. No.34, which totally measures 1 acre 39 guntas. Even if 34 guntas was acquired, plaintiff continued to be the owner of remaining extent measuring 1 acre 5 guntas and same is substantiated by the title documents as well as the Commissioner report, which is placed on record vide Ex.C.7. 32
27. In that view of the matter, I am of the view that point No.1 is answered in the affirmative and point No.2 is answered partly in the affirmative by holding that the plaintiff has succeeded in establishing that he is in possession of 28 guntas excluding 11 guntas, which is found to be in possession of defendant No.1.
28. Findings on Point No.3:-
While answering point Nos.1 and 2, this Court has come to the conclusion that the plaintiff has succeeded in establishing his title over the land bearing Sy. No.34 to an extent of 1 acre 39 guntas. This Court has also come to the conclusion the land, which was lost on account of acquisition, was only 34 guntas. Therefore, plaintiff has succeeded by placing cogent and clinching evidence that inspite of acquisition, he has retained 1 acre 5 guntas of land in Sy. No.34 and therefore, he is entitled for the relief of 33 declaration of title to an extent of 1 acre 5 guntas. Defendant No.1 being a Statutory Authority has indulged in litigating a frivolous claim. Since plaintiff has succeeded in establishing his title to an extent of 1 acre 5 guntas, the principles laid down by the Division Bench of this Court in the case of RANGAPPA VS. JAYAMMA (cited supra) as well as the principles laid down by the Co-ordinate Bench of this Court in the case of CHINNAWWA VS. YALLAPPA (cited supra) are squarely applicable to the present case on hand. If the plaintiff has succeeded in establishing his title, but merely because relief of possession is not sought, the plaintiff cannot be non suited. In identical cases, the Division Bench of this Court in the judgment cited supra has held that if the alternative relief is not barred by limitation and if the larger relief of declaration is granted, then consequential relief of possession can be granted by 34 exercising power conferred under the provisions of Order 7 Rule 7 of CPC. Therefore, the dictum laid down by the Division Bench and Co-ordinate Bench in the judgments cited supra are squarely applicable to the present case on hand. The plaintiff is entitled to seek moulding of relief at the hands of this Court.
Therefore, I am of the view that to do substantial justice, the plaintiff is entitled to seek alternative relief of possession by amending the plaint. In that view of the matter, I am of the view that to do substantial justice, the said application seeking amendment of plaint has to be allowed.
29. Having regard to the facts and circumstances of the case, the dictum laid down by the Hon'ble Apex Court in the case of AKKAMMA AND OTHERS VS. VEMAVATHI AND OTHERS reported in 2021 SCC Online SC 1146 would also come to the aid of the plaintiff. The Hon'ble Apex Court while examining the 35 scope of Section 34 of the Specific Relief Act, 1963 has held that if the plaintiff has succeeded in proving his ownership, then the plaintiff is entitled for declaration that he is the absolute owner of the suit property. Even if relief of declaration alone could not be an executable decree, merely on the ground that it is not a executable decree, the Court should not decline to grant a relief of declaration of title.
30. The Hon'ble Apex Court set-aside the findings of the Trial Court in so far as relief of declaration is concerned. I am of the view that the plaintiff is entitled for declaration of ownership of the property. Therefore, the said principles laid down by the Hon'ble Apex Court in the judgments cited supra would also come to the aid of the plaintiff. If he is entitled for relief of declaration of title, then I am of the view that on account of plaintiff having lost possession to an extent of 11 guntas is entitled to 36 seek possession. This Court has to bear in mind that the relief of possession is not barred by limitation in the present case on hand. Defendant No.1 has not set up a plea of adverse possession. Therefore, the plaintiff is entitled to seek relief of possession. If the plaintiff is entitled to seek relief of possession based on title, then this Court is of the view that this is a fit case, where the reliefs can be moulded and if relief can be moulded, nothing prevents this Court from allowing the amendment application to do substantial justice to the parties. In that view of the matter, the point No.3 is accordingly answered in the Affirmative and thereby, plaintiff is entitled to incorporate the relief of possession.
31. Findings on Point No.4 :-
To examine this controversy, it would be relevant for this Court to refer the averments made in the earlier suit filed by defendant No.1. The copy of 37 the plaint is produced at Ex.D.4. On bare perusal of the averments in the said suit, which is filed by the defendant No.1, this Court would find that the bare suit for injunction is filed by including two survey numbers i.e., Sy. No.32 and Sy. No.34. In the said suit, which is one for bare injunction, defendant No.1 claimed that he is in possession of 2 acres 10 guntas of land. What is quite interesting to note in the said plaint is that there are absolutely no specific pleadings as to what is entire extent of Sy.No.34. The said suit is filed seeking injunction in respect of two lands totally measuring 2 acres 10 guntas. The subject matter of the suit in the earlier proceedings is not one and the same. In the present case, the plaintiff has sought relief of declaration to an extent of 1 acre 39 guntas, whereas the subject matter of earlier suit have two lands bearing Sy. Nos.32 and 34 totally measuring 2 acres 10 guntas and therefore, the relief 38 sought were different in the earlier suit, which was one for bare injunction and the present suit is comprehensive suit and therefore, I am of the view that the provisions of Section 11 have no application to the present case on hand. In that view of the matter, point No.4 is accordingly answered in the Affirmative.
32. In the light of the findings recorded by this Court on point Nos.1 to 4, this Court has arrived at following conclusions.
(i) The findings of the Trial Court that the plaintiff has failed to prove his title over the suit land measuring 1 acre 5 guntas is perverse, palpably erroneous and contrary to Ex.P.1, which is the Land Tribunal order conferring occupancy rights to an extent of 1 acre 39 guntas coupled with Ex.D.3, which is award copy on account of acquisition proceedings initiated by 39 defendant No.2, wherein it is clearly stated that only 34 guntas of land is acquired.
(ii) The findings of the Trial Court, though the plaintiff was owner of 1 acre 39 guntas by virtue of the Land Tribunal order has lost his rights on account of acquisition as he has only right to receive the compensation, is palpably erroneous and contrary to the clinching evidence adduced by the plaintiff coupled with the Commissioner sketch, which is placed on record vide Ex.C.7.
(iii) The learned Trial Judge has totally misread the clinching evidence on record and for reasons best known to him has not even examined the Commissioner report in the light of the controversy between the parties. Though Commissioner Report is not a conclusive evidence, but having regard to the facts and circumstances of the case and having regard to the nature of dispute involved in the present case, the trial Court for the 40 reasons best known to it, has precluded best piece of evidence, which was placed on record and therefore, the final conclusion suffers from serious infirmities.
Trial court has committed an error and therefore, the findings recorded by the learned Judge on issue Nos.1 and 2 has to be reversed at the hands of this Court.
(iv) The findings recorded by the learned Judge while answering issue No.3 also suffers from serious perversity. The Commissioner sketch as per Ex.C.7 clearly indicates that the plaintiff is in lawful possession of 26 + 2 i.e. 28 guntas, which is marked by alphabets as G H J K in the sketch. Therefore, the clinching evidence on record clearly demonstrates that the plaintiff is in possession of 28 guntas excluding 11 + 3 i.e., 14 guntas, which is found to be in possession of defendant No.1 and therefore, the learned Judge erred in not granting perpetual injunction 41 to an extent of 28 guntas, which is still retained by the plaintiff.
(v) The learned Judge has not at all looked into the title documents and therefore, has committed a serious error in denying to grant relief of declaration in favour of plaintiff and therefore, the denial has virtually resulted in miscarriage of justice. It is a trite law that a declaration helps to perpetuate and strengthen the testimony regarding title of plaintiff so that adverse attacks on it will not weaken it. It seems to clear what is doubtful and which is necessary to make clear. The learned Judge has also not taken note of the fact that the relief of declaration sought in the present case would prevent future litagation by removing the existing cause of controversy. Therefore, having regard to the documents, which are placed on record by plaintiff, this Court is of the view that plaintiff is entitled for the remedy since the defendants are asserting adverse interest 42 to that of plaintiff. The object of Section 34 of Specific Relief Act is to provide a perpetual bulwark against adverse attacks on the title of plaintiff, where a cloud is cast upon him and to prevent further litigation by removing existing cause of controversy. The cogent and clinching evidence adduced by plaintiff clearly establishes his title to an extent of 1 acre 5 guntas excluding 34 guntas on account of acquisition by defendant No.2 in favour of defendant No.1. All these significant details are not taken into consideration and therefore, the judgment rendered by the Court below being contrary to clinching evidence on record is not at all sustainable and therefore, the findings and conclusions arrived at being contrary to the evidence on record are liable to be reversed and varied at the hands of this Court.
(vi) The findings recorded by the learned Judge on issue No.5 also suffers from serious perversity. The learned Judge 43 has not examined the nature of relief sought in the earlier suit and the one sought in the present suit. The present suit is a comprehensive suit and the plaintiff has claimed relief of declaration of title and consequential relief of injunction. In the earlier suit, there is an ambiguity in the schedule and earlier suit is not filed only in respect of Sy. No.34. The plaint in the earlier suit is quite silent in regard to measurement of Sy. No.34. In that view of the matter, the principles of resjudicata are not at all applicable to the present case on hand and therefore, the findings arrived at by the learned Judge on Issue No.5 is liable to be reversed. Accordingly, stands reversed.
33. In the light of the foregoing reasons, I pass the following;
ORDER
a. This appeal is allowed in part.
b. The suit of the plaintiff is partly decreed.
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c. The plaintiff is declared to be owner to an extent of 1 acre 5 guntas in Sy. No.34.
d. The defendants are restrained by way of perpetual injunction from interfering with the plaintiff's peaceful possession over 28 guntas of land shown in orange and yellow colour as per Ex.C.7 sketch.
e. The defendant No.1 is directed to hand over the vacant possession of 14 guntas marked in green and yellow colour as per Ex.C7 sketch within a period of three months.
f. Draw decree accordingly.
Sd/-
JUDGE NBM