Karnataka High Court
Smt Javaramma vs Sri Shivashetty on 5 November, 2012
Author: Mohan Shantanagoudar
Bench: Mohan Shantanagoudar
-1-
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 5th DAY OF NOVEMBER, 2012
BEFORE
THE HON'BLE MR.JUSTICE MOHAN SHANTANAGOUDAR
R.S.A. NO.2504 OF 2011
BETWEEN :
Smt. Javaramma
Dead & her LRs are already
On record
1. Sri Dilip Kumar
Aged 50 years
S/o Shivegowda
2. Sri Shankara
Age 48 years
S/o Shivegowda
3. Sri Nagaraja
Age 46 years
S/o Shivegowda
All are residing at
Arjunahalli Village
Hosa Agrahara Hobli
K.R. Nagar Taluk
Mysore District-571602. ..Appellants
(By Sri B.S. Nagaraj, Adv.,)
AND :
Sri Shivashetty
Aged 50 years
-2-
S/o late Siddasetty
Arjunahalli Village
Hosa Agrahara Hobli
K.R. Nagara Taluk-571602
Mysore District. ..Respondent
This RSA is filed under Section 100 of CPC., against
the Judgment and decree dated 17.8.2011 passed in
R.A.No.280/2007 on the file of the Senior Civil Judge &
JMFC., K.R. Nagar, dismissing the appeal and confirming
the Judgment and decree dated 30.10.2004 passed in
O.S.No.75/1995 on the file of the Civil Judge (Jr.Dn.) &
JMFC., K.R. Nagar.
This RSA coming on for admission, this day the Court
delivered the following:-
JUDGMENT
This is the plaintiffs' second appeal against the concurrent findings of fact arrived at by both the Courts below.
2. Suit filed for declaration and injunction in respect of Sy.No.217/1 of Arjunahalli, measuring 1 acre 5 guntas is dismissed holding that the plaintiffs purchased the property in Sy.No.217/2 and not in Sy.No.217/1 of Arjunahalli Village. Case of the plaintiffs is that the first plaintiff purchased 1 acre 5 -3- guntas of land in Sy.No.217/1 of Arjunahalli Village from Jagadish through the sale deed Ex.P1, dated 13.2.1986; Said Jagadish, in turn had purchased the property from Lakshmamma, W/o. Koteshetty and her son Subbasetty under the sale deed dated 6.3.1982 (Ex.P2); The first plaintiff and her sons-plaintiffs 2 to 4 are in possession and enjoyment of the suit property; Since there was obstruction by the defendant, suit came to be filed.
3. Case of the defendant is that he is in possession of Sy.No.217/2 to an extent of 1 acre 17 guntas and therefore is not open for the plaintiffs to contend that they are in possession of the suit property and therefore the suit is liable to be dismissed. It is his further case that the plaintiffs are in possession of 1 acre of wet land which is lying on the east of the suit property and same is bearing No.217/2; the plaintiffs ought to have obtained -4- rectification deed in their favour in respect of Sy.No.217/2 from their vendor.
4. Koteshetty and Shivashetty (defendant) are brothers. Koteshetty expired leaving behind his wife Lakshmamma. Said Lakshmamma sold 1 acre 5 guntas of property in Arjunahalli Village, under sale deed Ex.P2, dated 6.3.1982 in favour of Jagadish. Jagadish, in turn, sold the very property in favour of the plaintiffs under the sale deed at Ex.P1, dated 13.2.1986. The sum and substance of the litigation between the parties is relating to identity of the property purchased by the plaintiffs. Both the parties have led evidence both documentary and oral.
The Courts below on evaluation of the material on record have concluded that what was sold in favour of the plaintiffs is Sy.No.217/2 to an extent of 1 acre and not an area of 1 acre 5 guntas in Sy.No.217/1 as alleged by the plaintiffs. The revenue records clearly -5- reveal that the defendant is in possession of Sy.No.217/2 to an extent of 1 acre 17 guntas as the owner thereof. So also other material on record including the oral evidence justify the contention of the defendant that what was sold by the plaintiffs' vendor to the plaintiff is Sy.No.217/2 to an extent of 1 acre though it is wrongly mentioned in the sale deed as Sy.No.217/1 in favour of the first plaintiff. In order to get further clarification, the Court Commissioner was appointed by the Trial Court. The Commissioner submitted his report after visiting the spot. The said report was not objected to by the defendant and plaintiffs. Thus, the said report was rightly relied upon by the Courts below along with the other records. The Commissioner on visiting the spot has found that the plaintiffs are in possession of Sy.No.217/2 to an extent of 1 acre including 2 guntas of kharab lands and that the defendant is in possession of Sy.No.217/1 to an extent of 1 acre 15 -6- guntas. As aforementioned, the Commissioner's report has remained uncontraverted. The Courts below on evaluation of the entire material on record have rightly held that the defendant is the owner in possession of the property bearing Sy.No.271/1 which lies on the east of Sy.No.217/2 and that the property in possession of the plaintiffs falls under Sy.No.217/2 to an extent of 1 acre including 2 guntas of Kharab. Thus, wrong mentioning of Sy.No. in Ex.P1 and P2 has created confusion. The plaintiffs ought to have got their sale deed rectified by getting the rectification deed executed.
5. It is well settled that the boundaries of the property will prevail over the wrong description of survey number and extent. The boundaries of the property in occupation of the plaintiffs tally with the boundaries as shown in the sale deeds at Ex.P1 and P2. However, there is wrong mentioning of Sy.No. in the sale deeds at Ex.P1 and P2. Since the boundaries -7- of the property will prevail over the wrong description of survey number and extent, the Courts below are justified in dismissing the suit of the plaintiffs.
Be that as it may, since the Courts below on facts have correctly concluded that the property which was sold in favour of the plaintiffs is Sy.No.217/2 to an extent of 1 acre, Sy.No.217/1 cannot be held to be under the ownership of the plaintiffs.
No question of law, much less substantial question of law arises for consideration in this appeal. The appeal completely rests on appreciation of the evidence on record, which is already been done by both the Courts below in a just and proper manner.
Hence, no interference is called for. Appeal stands dismissed at the stage of admission itself.
SD/-
JUDGE *ck/-