Karnataka High Court
Mr Anantrao S/O Gumanna Halgekar vs Mrs Begumbi W/O Kasimsab Nadaf Deceased ... on 19 December, 2023
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RFA No. 100536 OF 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF DECEMBER, 2023
R
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 100536 OF 2022
BETWEEN:
1. MR. ANANTRAO S/O. GUMANNA @ GURUNNA
HALGEKAR, AGE: 71 YEARS, OCC: BUSINESS,
R/O: RUKAMINI PALACE, HINDWADI,
BELAGAVI-590011.
2. MR. BALASAHEB S/O. GURUANNA HALGEKAR,
AGE: 61 YEARS, OCC: BUSINESS,
R/O: RUKAMINI PALACE, HINDWADI,
BELAGAVI-590011.
Digitally signed
by 3. MR. SUDHIR S/O.GUMANNA @ GURUANNA HALGEKAR,
SHIVAKUMAR
HIREMATH AGE: 65 YEARS, OCC: BUSINESS,
Date: 2024.01.12
15:30:41 +0530 R/O: RUKAMINI PALACE, HINDWADI,
BELAGAVI-590011.
4. MRS. SANYOGEETHA W/O. SUDHIR HALGEKAR,
AGE: 57 YEARS, OCC: HOUSEHOLD,
R/O: RUKAMINI PALACE, HINDWADI,
BELAGAVI-590011.
...APPELLANTS
(BY SRI. ANANT R. MANDAGI, SENIOR COUNSEL FOR
SRI. SANGRAM S. KULKARNI, ADVOCATES)
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RFA No. 100536 OF 2022
AND:
. MRS BEGUMBI W/O. KASIMSAB NADAF
SINCE DECEASED LRS ALREADY ON RECORD
1. MRS. ARFIA W/O. ABUBAKR NADAF,
AGE: 58 YEARS, OCC: HOUSEWIFE,
R/O: SANKESHWAR-591317, TAL: HUKKERI,
DIST: BELAGAVI.
2. MR. MUSHTAQ AHMMAD S/O. KASIMSAB NADAF,
AGE: 55 YEARS, OCC: BUSINESS,
R/O: SANKESHWAR-591317, TAL: HUKKERI,
DIST: BELAGAVI.
. MR. MEHBOOB AHAMAD S/O. KASIMAB NADAF
SINCE DECEASED BY HIS LRS
3. SMT. SHIREEN WD/O. MEHBOOB NADAF,
AGE: 62 YEARS, OCC: HOUSEWIFE,
R/O: #2741, SG ROAD, OPP BUS STAND,
SANKESHWAR, TALUKA HUKKERI,
DIST: BELAGAVI 591317.
4. SHRI MUSEEF S/O. MEHBOOB NADAF,
AGE: 37 YEARS, OCC: BUSINESS,
R/O: #2741, SG ROAD, OPP BUS STAND,
SANKESHWAR, TALUKA HUKKERI,
DIST: BELAGAVI 591317.
5. MR. MUKHTAR S/O. KASIMSAB NADAF,
AGE: 47 YEARS, OCC: BUSINESS,
R/O: SANKESHWAR-591317, TAL: HUKKERI,
DIST: BELAGAVI.
6. MR. MOHEEN ALI S/O. KASIMSAB NADAF,
AGE: 37 YEARS, OCC: BUSINESS,
R/O: SANKESHWAR-591317, TAL: HUKKERI,
DIST: BELAGAVI.
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RFA No. 100536 OF 2022
7. MR. JAVED ALI S/O. KASIMSAB NADAF,
AGE: 49 YEARS, OCC: BUSINESS,
R/O: SANKESHWAR-591317, TAL: HUKKERI,
DIST: BELAGAVI.
8. ARVIND S/O. BALKRISHNA JADHAV,
AGE: 57 YEARS, OCC: BUSINESS,
R/O: PLOT NO. 289, BEHIND COMMERCE COLLEGE,
HOSTEL, HINDWADI, BELAGAVI-590006.
...RESPONDENTS
(BY SRI. V.M. SHEELAVANT ADVOCATE FOR R1 TO R7;
SRI. G.S. KANNUR, SENIOR COUNSEL FOR SRI ARVIND D.
KULKARNI, ADVOCATES FOR R8)
THIS REGULAR FIRST APPEAL FILED UNDER ORDER XLI
RULE 1 AND 2 R/W SECTION 96 OF C.P.C., PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED 20/08/2022
PASSED IN O.S.NO.08/2014 PASSED BY THE COURT OF II
ADDITIONAL SENIOR CIVIL JUDGE AND CJM BELAGAVI, BY
ALLOWING THE PRESENT APPEAL IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL HAVING BEEN HEARD, RESERVED ON
27.09.2023 AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY RAMACHANDRA D. HUDDAR J.,
DELIVERED THE FOLLOWING:
JUDGMENT
Appellants - defendant nos. 1 to 4 in OS No.8/14 on the file of II Addl.Sr.Civil Judge and CJM, Belagavi, have preferred this appeal being aggrieved by the judgment -4- RFA No. 100536 OF 2022 and decree dated 20.8.2022 passed by the Court decreeing the suit of the plaintiffs.
2. Parties to this appeal are referred to as per their rank before the trial Court for the purpose of convenience.
3. The plaintiffs filed suit against defendants seeking the relief of declaration, that they are the exclusive owners of the suit property bearing CTS No. 3927/1 to the extent of 1600 sq. yds as referred to in the sketch appended to the plaint with consequential relief of permanent injunction retraining the defendants from interfering with their possession and enjoyment of the suit property, from making any changes to the nature of suit property and also making any entries in the CTS extract in respect of the suit property.
4. It is the specific case of the plaintiffs that subject matter of the suit property is CTS No.3927/1 measuring 1600 sq.yds out of 3280 sq.yds. situate at -5- RFA No. 100536 OF 2022 Chavat Galli, near RTO Circle, Belgaum bounded by the boundaries as under:
to the East: Remaining portion of CTS No.3927/1 belonging to Defendant no.3 measuring 420 sq. yds.
to the West: Remaining portion of CTS No.3927/1 belonging to Defendant no.3 measuring 420 sq. yds.
to the North: Main Road (Court Road) to the South: Remaining portion of CTS No.3927/1 belonging to Defendant nos. 1 and 2 (Anant and Balasaheb) each measuring 420 sq. yds.
5. It is the case of the plaintiffs that the suit property was originally owned by Sri Kasimsab S/o.Peersab Nadaf, the predecessor of the plaintiffs. He purchased the suit property from one Mr.Arjun S/o. Jayappa Bhujange and Mr. Bansilal S/o. Jayappa Bhujange through their natural father Jayappa Narsing Bhujange under Registered Sale Deed dated 15.03.1956. Plaintiff No.1 is the wife, plaintiff nos. 2 to 7 are the children of said Kasimsab Peersab Nadaf. -6-
RFA No. 100536 OF 2022
6. It is the specific case of plaintiffs that their predecessor sold some portion of the suit property i.e., CTS no. 3927/1 under four different separate sale deeds. He sold the property to the extent of only 1680 sq.yds out of 3280 sq.yds at different points of time to the defendants. It is their case that, out of 1680 sq.yds., 1/4th portion measuring 420 sq.yds was sold in favour of Mr. Ganesh Shankara Rao Halagekar under Registered sale deed dated 22.10.1975, 1/4th portion measuring 420 sq. yds. Out of 1680 sq.yds was sold to defendant no.2 under registered sale deed dated 02.12.1976, 1/4th measuring 420 sq. yds was again sold to defendant no.3 under registered sale deed dated 27.1.1976 and under registered sale dated 16.02.1976 remaining 1/4th portion measuring 420 sq.yds sold to defendant no.1. Thus, their predecessor retained remaining 1600 sq.yds. which is the suit property.
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RFA No. 100536 OF 2022
7. It is the further case of the plaintiffs that, the said Ganesh Shankara Rao Halagekar is stated to have executed registered sale deed in favour of defendant no.3 on 09.03.2006 by transferring his share and in turn, defendant no.3 is said to have executed registered gift deed in favour of his (wife) defendant no.4 on 09.03.2006. Thus, late Kasimsab sold only 1680 sq. yds. out of 3280 sq. yds under the aforesaid sale deeds.
8. It is stated by the plaintiffs that said Kasimsab died on 9.11.2008 leaving behind the plaintiffs as his surviving legal heirs. It is contended that, though deceased Kasimsab executed the sale deed in respect of 1680 sq. yards in all to defendant nos. 1 to 3 out of 3280 sq. yards, these defendant nos. 1 to 3 got effected mutation entries in their names in respect of the entire 3280 sq. yards in CTS No. 3927/1. Thus, they played mischief on the deceased. On getting knowledge of the said fact of mischief, deceased Kasimsab submitted an application during the year 2007-08. He requested the -8- RFA No. 100536 OF 2022 CTS Authorities, Belagavi to make the rectification of the CTS records. But, his application was rejected on 18.10.2008. Thereafter, Kasimsab preferred an appeal before the DDLR, Belagavi. In the meantime, he died on 9.11.2008. Plaintiffs prosecuted the said appeal and the said appeal came to be allowed. Accordingly, names of the plaintiffs came to be entered in the CTS records in respect of the remaining portion of the said CTS number. Again, an application was preferred by defendant nos. 1 to 4 before the JDLR and the same was rejected. Being aggrieved by the same, defendant nos. 1 to 4 preferred Writ Petition Nos.61870-872/2010 before this Court. In the said writ petition, this Court held that the Revenue Authorities had no jurisdiction to decide the civil rights of the parties and accordingly Writ Petition was allowed on 16.9.2011. This Court also directed the authorities to effect entries in the revenue records based on the directions to be issued by the civil court. -9-
RFA No. 100536 OF 2022
9. Being aggrieved by the same, appeals were preferred by the plaintiffs in WA No.6466/2011 and WA Nos. 30484-30485/2012 before this Court. The said writ appeals came to be dismissed.
10. It is further case of the plaintiffs that, defendant nos. 1 to 4 approached the ADLR and sought for deletion of the names of plaintiffs in respect of the suit properties. The said application came to be allowed. Being aggrieved by the same, plaintiff no.6 preferred the appeal before JDLR and the said appeal came to be allowed on 25.2.2013.
11. It is further case of the plaintiffs that, JDLR directed the ADLR to verify the sale deeds of the year 1975-76, conduct spot inspection and rectify the entries in the CTS records pertaining to CTS No.3927/1. He also ordered for the deletion of the plaintiffs' name in the city survey records. Plaintiff no.6 preferred an appeal being aggrieved by that portion of the order before the JDLR.
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RFA No. 100536 OF 2022 Said appeal came to be dismissed by JDLR on 29.10.2013.
12. It is alleged by the plaintiffs that taking undue advantage of the same, now defendant Nos. 1 to 4 without waiting for conduct of the spot survey and verification of the records by ADLR, tried to get their names affected in the CTS records. Therefore, the plaintiffs were constrained to file the suit seeking the aforesaid reliefs. Hence for all these reasons, it is prayed by the plaintiffs to decree the suit as prayed for.
13. Pursuant to the suit summons before the trial Court, all the defendants appeared. Defendant nos.2 to 4 filed their common written statement and the same was adopted by defendant No.1. Subsequent to the filing of the suit, defendant no.5 got impleaded in the suit voluntarily.
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RFA No. 100536 OF 2022
14. It is the specific contention of defendant nos. 1 to 4 that, the suit in the present form is not at all maintainable. They admit Kasimsab was the owner of entire CTS number, but they denied that only a portion of the CTS number was sold to them. They contend that the entire property in CTS No.3927/1 to the extent of the respective ownership was acquired under the sale deeds dated 22.10.1975, 02.12.1976, 27.01.1976 and 16.02.1976 and also there was a gift dated 09.03.2006. Thus, defendant nos. 1 to 4 are in exclusive possession of 3280 sq.yards and not the portion as alleged by the plaintiffs. The boundaries have also been mentioned in their respective sale deeds. It is denied that, based upon the said sale deeds, these defendants are asserting their rights over the entire property. When they have purchased the entire property, the question of denying their rights by the plaintiffs do not arise at all. It is contended that the very fact that 1/4th portion was sold under each registered sale deed mentioning 420 sq. yds
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RFA No. 100536 OF 2022 out of total extent 1680 sq.yds. indicates the intention of the deceased vendor. He sold the entire extent of the property.
15. The deceased Kasimsab Peersab Nadaf during his lifetime had not objected for the said sale deeds. He has not put-forth any claim. Now the plaintiffs are fighting that the entire property to the extent of 3280 sq. yds is not sold by the said Kasimsab.
16. It is further contended that, each sale deed executed in favour of defendant nos. 1 to 3 and Ganesh Shankara Rao Halagekar shows that the area to the extent of 840 sq. yards out of the total extent of 3280 sq. yds.each was sold to them and not 420 Sq.yds. It is further contended that these sale deeds have not been challenged before any Court of law. So far as proceedings before ADLR, DDLR, JDLR and before the High Court in the Writ Petition is concerned, it is admitted. It is further
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RFA No. 100536 OF 2022 contended that there is no case made out by the plaintiffs.
17. It is contended that, plaintiffs instituted suit in OS No.116/08 before the III Addl.Civil Judge Belagavi claiming declaratory relief stating they had prescriptive easementary rights and permanent injunction in repeat of CTS No. 4767/2002 purchased by their Late father Kasimsab Peersab Nadaf under registered sale deed dated 02.04.1976. In the said suit, nephew of defendant nos. 1 to.3 obtained temporary injunction against these defendants and the Miscellaneous Appeal No.60 and 61/2009 were preferred before II Addl.Civil Judge, Belagavi. Said Rajesh Nathaji Rao Halagekar also filed Writ Petition before this Court in WP Nos.60826/2011 and 63593/2011. The said writ petitions came to be dismissed by confirming the judgment in Misc.Appeal. The plaintiffs and the said Rajesh Halagekar did not challenge the said judgment. Defendant no.3 executed the gift deed in favour of defendant no.4. Thus, these
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RFA No. 100536 OF 2022 defendants are claiming right over the property in question.
18. By voluntarily appearing, defendant no.5 filed written statement contending inter alia that he entered into an agreement of sale with the plaintiffs to purchase the suit properties for a sale consideration of Rs.1,32,23,148/-. It is contended by him that, he is also one of the interested parties with regard to the suit property. It is his contention that, there was an agreement of sale dated 14.09.2008. He waited for GPA holder of the plaintiffs Mr. Irfan Abdul Rehman Sheikh to appraise the progress and development in the CTS survey work. But to his utter shock, the GPA holder kept mum and did not whisper anything regarding City Survey work. When he started processing the names of Kasimsab Peersab Nadaf for the remaining portion is 1680 sq.yds by filing the wardi before ADLR, he came to know that, there was a refusal to accept the application. Thus, it is contended that he made several attempts to
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RFA No. 100536 OF 2022 communicate with the GPA holder as his interest is involved in the suit property; therefore, he got himself impleaded in the suit. The said Mr. Irfan Abdul Rehman Sheikh the power of attorney holder had no authority to cancel the agreement of sale.
19. Defendant nos.3 and 4 leased out the suit property to M/s. Confidence Petroleum Ltd., for installation of LPG dispensation unit and filed an I.A.No.10 by the plaintiffs seeking temporary injunction. It is further contended that the suit of the plaintiffs has to fail and prayed to dismiss the suit.
20. During the pendency of the suit, plaintiff no.4 was reported dead, his legal heirs were brought on record in the shape of plaintiff no.4 (a) and (b).
21. Based upon the rival pleadings of both the parties, the learned trial Court framed in all four issues and 6 additional issues. They read as under:
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RFA No. 100536 OF 2022 Issues
1. Whether the plaintiffs prove that they are exclusive owners of property bearing CTS No.3927/1 to the extent 1600 sq. yards?
2. Whether the plaintiffs prove that they are in possession of the said property?
3. Whether the plaintiffs are entitled for permanent injunction as prayed for?
4. What order or decree?
ADDL. ISSUES
1. Whether the plaintiffs prove that the description of the suit property as described in para No.1 of the plaint?
2. Whether the suit of the plaintiffs without seeking the relief of possession is maintainable in the present from?
3. Whether the suit of the plaintiffs is barred by limitation?
4. Whether the suit of the plaintiff is proper valued?
5. Whether the defendant No.5 proves that, Sri. Khasimsab Peersab Nadaf has sold 1/4th portion measuring each 420 sq. yards out of CTS No.3927/1 under 4 different sale deeds to Halagekar family by retaining 1600 sq. yards?
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RFA No. 100536 OF 2022
6. Whether the defendant No.5 further proves that, Sri. Khasimsab Peersab Nadaf through his P.A. holder Irfan has entered into agreement of sale dated:
14.09.2008 to the extent of 1600 sq. yards and therefore he being prospective purchaser is protected under the said agreement?
22. To substantiate the case of the plaintiffs before the trial Court, plaintiff No.7- Mr.Javed Ali Kasimsab Nadaf entered the witness box as PW.1. He is the power of attorney for other plaintiffs. On behalf of the plaintiffs, Exs.P1 to 17 are marked. Thereafter, the plaintiffs closed their evidence. On behalf of defendant nos. 1 to 4, defendant no.3- Mr.Prakash @ Sudhir Guruanna Halagekar entered the witness box as DW.1 and another witness was examined as DW.2 by name Sri. Arvind S/o. Guranna Halagekar and got marked Exs.D1 to D93 and closed defendants' evidence.
23. The learned trial court on hearing the arguments and on perusal of the documents both oral
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RFA No. 100536 OF 2022 and documentary evidence answered issue nos. 1 to 3, additional issue no.1 and 2 and 5 in the affirmative and answered issue nos.3, 4 and 6 in the negative and ultimately decreed the suit of the plaintiff as prayed for. It is this judgment and decree that has been challenged by the appellant-defendants nos. 1 to 4 by preferring this appeal.
24. Sri. Ananth Mandagi, learned Senior Counsel representing the appellants-defendants nos.1 to 4 with all vehemence, in addition to narrating the facts of the case made out by the plaintiffs and defendants submits, that the judgment and decree passed by the trial court is illegal, perverse and capricious. As per his submission, the findings on issue nos. 1 to 3 and additional issue nos. 1 to 5 are quite erroneous. The trial Court has failed to consider that Late Kasimsab Peersab Nadaf was estopped from claiming his ownership over the suit property in respect of entire CTS No. 3927/1 from the year 1976 itself till filing of the suit because, his name was not
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RFA No. 100536 OF 2022 appearing in the revenue records. It is his submission that, when the deceased Kasimsab Peersab Nadaf, the ancestor of the plaintiffs executed the four registered sale deeds in favour of four different purchasers and sold 1/4th portion each in entire CTS No. 3927/1, he cannot claim any right in the suit properties. Now the plaintiffs are taking advantage of the wrong extent recited in the sale deeds as 1680 sq.yds. instead of 3280 sq. yds., they cannot claim right over the property. The learned trial Court has failed to consider the boundaries of the each sale deed executed by the said Kasimsab Peersab Nadaf as per Ex.P2 to P6. It is not the case of the plaintiffs that defendants did not purchase the properties under four sale deeds. There is no proper appreciation of the evidence placed on record by the plaintiffs vide Ex.P1 to P4, There was a wrong interpretation of these documents by the learned trial Court. He further submits that, the evidence of PW. 1 especially admission given in the cross-examination with regard to the boundaries recited
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RFA No. 100536 OF 2022 in the four sale deeds in respect of the said CTS No. 3927/1, the trial Court ought to have dismissed the suit of the plaintiffs.
25. It is his further submission that, right from the year 1976 onwards i.e from the date of purchase of this property by defendant nos. 1 to 4, they have been in exclusive possession and enjoyment of the suit properties. They are exercising their lawful ownership over the suit properties and also are paying requisite property tax. Merely because there is a wrong mentioning of the extent of the suit property in the four sale deeds, the plaintiffs cannot take advantage of the same and now after lapse of more than 35 years, they cannot put-forth their plea that they are the owners of the suit property mentioned in the schedule appended therein.
26. It is his submission that, the description of the suit properties in the plaint is erroneous. The trial Court has committed a grave error by observing that while
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RFA No. 100536 OF 2022 executing the sale deed by Ganesh Halagekar in favour of Sudhir Halagekar-defendant no.3, the defendants have mentioned larger area than what was actually purchased by Ganesh Halagekar which was in possession from the year 1975. When 1/4th portion of CTS No. 3927/1 was purchased by each of these defendants, the plaintiffs cannot contend that 1/4th portion consists of just only 1680 sq. yds. As the boundaries so mentioned in the sale deeds tally with the entire extent of the properties purchased by the erstwhile owner Kasimsab Peersab Nadaf, now the plaintiffs cannot contend only 1680 sq.yds was purchased by these defendant nos. 1 to 3 under different sale deeds. It is these defendants No. 1 to 4 who are in possession of entire 3280 sq.yds. and the revenue records are standing in their name. It is submitted that they have unnecessarily dragged these defendants to the Revenue Courts i.e. before the ADLR, DDLR and JDLR and ultimately, upto this Court by filing the writ petitions and writ appeals. He further submits,
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RFA No. 100536 OF 2022 taking advantage of the orders of this Court to approach the Civil Court, they have filed this false suit on flimsy grounds. It is his submission that, the learned trial Court has committed a grave error in appreciating the evidence of defendant nos. 1 to 4. Even the trial court has failed to consider that the buildings were in dilapidated condition and there was demolition by the Corporation Authorities with due publication of demolition in the local news papers.
27. Sri Anant Mandagi, learned Sr. Counsel further submits that, the Hon'ble apex Court, Privy Council and this Court in many judgments, have held that, the boundaries would prevail over the extent. Thus, reiterating the grounds stated in the appeal memo, with all vehemence he submits that, the very description of the suit property in the suit is wrong and plaintiffs have wrongly construed the boundaries of the suit property and the boundary prevails over the extent. Further, the
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RFA No. 100536 OF 2022 trial Court has wrongly decreed the suit due to which, ultimate hardship is caused to defendant nos. 1 to 4.
28. He further submits that defendant No.5 was unnecessarily impleaded in the suit as he was an intending purchaser of the suit property based upon the agreement of sale which was entered behind the back of defendant nos.1 to 4. Even his suit for specific performance of contract was dismissed by the Civil Court. In fact, defendant no.5 is sailing with the plaintiffs. This suit is designed by the plaintiffs to deprive the rights of defendant nos. 1 to 4 and they prompted defendant no.5 to get impleaded in the suit in order to protract the proceedings and to take undue advantage of the situation. They want to extract more money from defendant nos.1 to 4 without any lawful right in the suit property as Kasimsab Peersab Nadaf has already lost his right over the suit property.
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RFA No. 100536 OF 2022
29. As against this submission, the learned counsel for the plaintiff-respondents Sri V. M. Sheelavant submits that, Kasimsab Peersab Nadaf had no occasion to sell the entire CTS No. 3927/1. Therefore, as per the say of the plaintiffs, just 1680 sq. yds was sold in favour of these defendant nos. 1 to 4 under different sale deeds. It is written very clearly in the sale deeds that 1/4th of 1680 sq. yds has been sold under each sale deed. Therefore, recitals in the said sale deeds do demonstrate the purchase of 1680 sq. yds only under 4 sale deeds by defendant nos. 1 to 4. According to the plaintiffs' submission, now defendant nos.1 to 4 cannot claim their right, title and possession over the entire 3280 sq. yds. His submission is that, as the learned trial Court has considered the entire evidence placed on record both oral and documentary and considering the pleadings of the plaintiffs has come to the conclusion that, it is just 1680 sq.yds that has been sold by Kasimsab Peersab Nadaf, remaning 1600 is still with the plaintiffs after the demise
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RFA No. 100536 OF 2022 of Kasimsab. His submission is that Kasimsab enjoyed 1680 sq.yds till his life time. But, now the defendant nos. 1 to 4 in the guise of their name appearing in the revenue records, contesting against plaintiffs that they are owners of entire CTS no. 3927/1. His submission is that because of illegal acts of defendant nos. 1 to 4, they were constrained to approach revenue authorities i.e. ADLR and DDLR. Initially there was an order passed by the ADLR in favour of the plaintiffs, thereafter, the proceedings were challenged by the defendants 1 to 4 before this Court which directed the parties to approach Civil Courts. Even there were writ petitions and writ appeals before this Court. They admit about the revenue proceedings as well as writ proceedings before this Court by both the parties. After a direction by this Court to get the rights decided by the Civil Court, the plaintiffs were constrained to file the civil suit. It is their submission that, the trial Court has not committed any illegality or perversity in arriving at conclusion that, it is the plaintiffs
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RFA No. 100536 OF 2022 who are in possession of the suit properties. Therefore, it is prayed by counsel for respondents to dismiss the appeal.
30. Being aggrieved by the findings given by the trial Court, defendant no.5 has not preferred any appeal that means whatever findings given by the trial Court against him have attained finality. Learned senior counsel for the appellants and also the counsel for respondents relied upon both oral and documentary evidence and also have taken us through the various findings of the trial Court during the course of their argument.
31. In view of the rival submissions of both side, and on perusal of the records of this appeal, the following points would arise for our consideration:
1. Whether the finding of the trial Court that plaintiffs have proved their title to the suit suit property which is more specifically described in the schedule is perverse and capricious?
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RFA No. 100536 OF 2022
2. Whether the finding of the trial Court that plaintiffs have proved their lawful possession and enjoyment over the plaint schedule property suffers from perversity and palpably erroneous?
3. Whether the finding of the trial Court that defendants have failed to prove their respective title over the suit properties under various sale deeds is perverse and suffers from serious infirmities?
4. Whether the trial Court has erred in holding that deceased Kasimsab Peersab Nadaf has just sold 1680 Sq.Yds. and has retained remaining 1600 sq.yds suffers from illegality?
5. Whether the findings of the trial Court on various issues require interference by this Court?
The above points are discussed together:
32. In view of the rival submissions of both sides and on perusal of the records it can be stated that more than the oral evidence, documentary evidence plays an important role to decide the lis between the parties.
33. PW.1 Plaintiff no.7 has spoken in line with the contents of the plaint averments. There is an intensive cross-examination directed to PW.1 by the counsel for
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RFA No. 100536 OF 2022 defendant nos.1 to 4 as well as defendant no.5. It is suggested to PW.1 by the counsel for defendant nos.1 to 4 that, by sale deed 15.3.1956, his father purchased CTS No. 3927/1. He admits that Ex.P2 is the sale deed to that effect. He says that in all, his father purchased 3280 sq. yds. Even he admits that there is revenue entry in the CTS records. He admits the boundaries mentioned in the said agreement Ex.P2. A strange answer has been given by this PW.1 that, at the time of execution of the sale deeds in favour of defendants/purchasers, his father has not given any instructions. He came to know about the said fact from his father. If really his father had not given instructions when he executed sale deeds in 1975-76, why his father kept mum till his life time. Thereafter, after demise of his father, these plaintiffs initiated the revenue proceedings challenging the entries in the revenue records. It is stated that when he came to know that his father had not given any instructions, he did not enquire his father as to who else had given instructions.
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RFA No. 100536 OF 2022 For the first time before the Court, he stated that the said sale deeds were got executed by defendant nos.1 to 4 forcing his father. To prove the defendants had got executed the sale deeds forcibly, PW.1's father would have been the best person to speak about it. He did not challenge the said alleged act of defendant's right from the date of execution of the sale deeds till his demise. So the questions that arise in plaintiffs authority to claim right over property.
34. Further, this PW. 1 in unequivocal terms admits that based upon the said sale deeds and even after execution of sale deeds, there were no phod/hissas or bifurcation of the said CTS No.3927/1 by the Revenue Authorities. He admits that, after execution of these four sale deeds, by his father, the names of defendant nos. 1 to 3 came to be entered in the revenue records. Defendant No.4 is the beneficiary of the property by way of a gift. When he was asked regarding why there is no challenge with regard to change of names of defendant
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RFA No. 100536 OF 2022 nos.1 to 4 in the revenue records, if they were aggrieved by wrong entries in the revenue records, he deposed ignorance. So many photographs have been confronted to him to show that in the suit property, the LPG Auto Station has been established in the area of 90 x 90 sq. ft. LPG Auto station is still existing as per the photographs which is admitted by both the side. He admits in the cross examination that the present value of the property is more than one crore. It is submitted by the senior counsel that, as there is escalation of the value of the property in Belagavi, that must have prompted the plaintiffs to file the suit to extract more money from defendant nos. 1 to 4.
35. So far as the documentary evidence is concerned, Ex.P2 is sale deed of the year 1956. It is an admitted document entered into by the father of plaintiffs with his erstwhile vendor. As it is in Marathi Language, the plaintiffs made available the true translation of the said document in English as per Ex.P2(a). It is admitted
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RFA No. 100536 OF 2022 fact between both side that the father of the plaintiffs Kasimsab purchased the entire 3280 sq. yds situated in Belagavi City which is also known as RTO office with the boundaries mentioned in the said sale deed. The said sale deed was registered on 15.3.1956. Likewise, the plaintiffs also relied upon Ex.P3 to P6 the sale deeds in favour of these contesting defendants and as they were scribed in Marathi language the translations of the same are produced by the plaintiffs both in Kannada and in English. These sale deeds show the total extent of the property which was sold under these four different sale deeds i.e. 420 sq. yds each. Contents of the sale deeds are not disputed by the defendants. Certain photographs are produced by the defendants to show that LPG gas station is installed in the suit property in area measuring 90x90sq.ft. The other documents are the revenue proceedings produced by the plaintiffs.
36. Now we are very much concerned about the boundaries of the suit property mentioned in the plaint as
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RFA No. 100536 OF 2022 well as in the sale deeds of plaintiffs at Ex.P2 and sale deeds produced by defendant nos. 1 to 4 as per Exs.P3 to P6. DW.1 being the defendant no.5 has reiterated the contentions taken up in the written statement and he is specific that the entire CTS No.3927/1 was purchased but, a false claim has been made by the plaintiffs contending that just 1680 sq.yds. was sold by their father. This DW.1 has been directed with severe cross- examination but, he is consistent throughout his cross- examination that it is defendant nos. 1 to 4 who are the owners of the entire CTS number and not just 1680 sq.yds, whereas, DW2 has reiterated his contentions taken up in the written statement.
37. Defendant nos. 1 to 4 have relied upon the various documents. Amongst them, Ex.D1 is issued by the City Surveyor, Belagavi showing the topographical features of the suit property with other properties situated abutting the suit property. The defendants have also produced certified copies of the documents and the
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RFA No. 100536 OF 2022 true copies with regard to the proceedings before the Revenue Authorities as well as before the various other Courts. These documents clearly shows that, these plaintiffs agitated their title over the suit properties even before the Revenue Courts. Even defendant no.5 has filed civil suit seeking specific performance of the contract but his claim was dismissed. The permissions were granted by the City Corporation. It was challenged before the City Corporation. It was ordered by the City Corporation that the permissions granted to be kept in abeyance till the disposal of OS No.8/14. Various proceedings were initiated. MFA No.1002600/2018 was filed by these defendants against the plaintiffs before this Court. It was decided on 11.4.2019. Some arrangement was made while passing the said order by this Court. The plaintiffs filed OS No.8/2014 before the Civil Judge and CJM, Belagavi. As stated supra, rather than the oral evidence, documentary evidence plays an important role in this appeal. To decide the lis between plaintiffs and
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RFA No. 100536 OF 2022 defendants, it is just and appropriate to read the boundaries.
38. Ex.P2 (a) is produced by the plaintiffs to show that to what extent the property was purchased by the father of the plaintiffs Kasimsab. The plaintiffs rely upon the description of the CTS No.3297/1 as under:
East: Poona- Bangalore
Road
West: CTS No.
4767/2+4767/4
South: Municipal Scavenge
alley
North: Road joining the
Belgaum-vengurala road
39. For better appreciation with regard to the boundaries mentioned and also the specific properties purchased by Kasimsab to avoid confusion, it is just and
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RFA No. 100536 OF 2022 proper to draw a rough sketch in this judgment. It reads thus:
NORTH Vengurala road WEST KHASIMSAB PEERSAB NADAF EAST CTSNo. Poona 4767/4 Bangalore and Road 4767/2 with open municipality space Municipal Road SOUTH
40. As stated, it is an admitted fact between both sides that under the said sale deeds, Kasimsab executed in all four sale deeds in favour of these appellants. They are marked in this case as per Exs.P3 to P6. The translations of the same are also produced as per Ex.P3(a) to (c). To avoid the confusion, it is also just and proper to mention the boundaries mentioned in these sale deeds in this judgment. It reads as under:
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RFA No. 100536 OF 2022
Ex. P3 and Ex. P3(a)
East: CTS No. 3927
vacant land and P.B.
Road.
West: 3927/1- 1/4th
portion of property of
Ganesh Shankar
Halagekar
South: 3927/1- 1/4th
portion of property of
Balasaheb Halagekar
North: vengurala road
Ex. P4 and Ex. P4(a)
East: Building, drainage
and open space and CTS
No. 3927 property
West: Property CTS NO.
3927/1 out of that, 1/4th
belongs to Anantrao
Halgekar
South: Municipal Road
North: Property CTS No.3927/1 in that
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RFA No. 100536 OF 2022 1/4th belongs to Sudheer Halagekar Ex. P5 and Ex. P5(a) East: 1/4th portion purchase by Defendant No. 3-Sudheer West: Property CTS No. 4767/4 and Open space of Municipality South: Properties of CTS No.4767/4 and CTS No.3927/1 North: Vengarula Road Ex. P6 and Ex. P6(a) East: 1/4th of CTS No.3927/1 purchase by Balasaheb Halagekar West: Property No.4767/4, 4767/1 South: Municipal Road North: 1/4th of CTS No. 3927/1 purchase by Ganesh Halagekar
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RFA No. 100536 OF 2022
41. To have better appreciation with regard to the extent of the land purchased under these sale deeds, it is just and proper to draw a rough sketch as per the boundaries mentioned in the sale deeds in this judgment which depicts as under:
NORTH Vengurala road Ganesh Shankar Sudheer Halagekar Halagekar WEST CTS NO. 3927/1 CTS NO. 3927/1 EAST CTS NO. Poona 4767/4 Bangalore and Road 4767/2 with open municipality space Anantrao Balasaheb Halagekar Halagekar CTS NO. 3927/1 CTS NO. 3927/1 Muncipal Road SOUTH
42. On perusal of these sale deeds and the boundaries depicted in the sale deed Ex.P2 and P3(a) to 6(a), we have to compare the boundaries mentioned in
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RFA No. 100536 OF 2022 these sale deeds with that of the boundaries mentioned in Ex.P2, the original sale deeds produced by the plaintiffs and its admitted boundaries.
43. On scrupulous reading of these sale deeds produced by the plaintiffs as stated supra, the boundary mentioned in all the sale deeds are quite important to decide the lis. Ex.P5 is the sale deed in favour of Ganesh Shankarao Halagekar and its translation is at Ex.P5(a). On scrupulous reading of the boundaries, on all the four sides i.e. East, West, South and North and under Ex.P6 and translation at Ex.P6(a), the property is owned by Ananthrao Guranna Halagekar and the boundaries also have been mentioned in this sale deed to East, West, South and North. Likewise, under Ex.P4, Balasaheb Gurappa has become the owner with the boundaries mentioned towards East, West, South and North and under Ex.P3, Prakash alias Sudhir Gurappa Halagekar has become the owner of properties mentioned in the sale deed towards East, West, South and North.
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RFA No. 100536 OF 2022
44. These boundaries mentioned in these Exs.P3 to P6 stated supra are not challenged by the plaintiffs before any authorities. On comparison of the boundaries mentioned in all these four sale deeds with that of Ex.P2 dated 15.3.1956, towards East of all these properties purchased under these four sale deeds there exist Poona- Bangalore Road, towards West CTS No.4762/2+ 4767/4 and towards South Municipal Scavenge alley as mentioned in the sale deed described in the aforesaid sale deeds also not as Municipal Scavenge but some other property. Towards North evidently, road joining the Belagavi-Vengurla Road. Even under the sale deeds Ex.P3 towards north, Vengurla road is situated. That means, these two properties have been purchased by these defendants under Ex.P3 and P5 and abutting with each other towards northern side, Vengurla Road is situated. Towards South to the property purchased under Ex.P3, CTS NO.3927/1 and 1/4th portion of the property of Balasaheb Halagekar is situated. Also Ex.P4 towards
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RFA No. 100536 OF 2022 south, Municipal road is situated and under Ex.P5, the property purchased shows that towards southern side property of CTS No.476/4 and CTS No.3927/1 is situated. Under Ex.P6, towards South, Municipal Road is situated. Likewise, each property described in the Ex.P3 to P6 is compared with Ex.P2 the admitted sale deed, These four properties show that within the boundaries mentioned under Ex.P2 this entire property purchased under these Ex.P3 to P6 is situated. That means, these boundaries mentioned under these Ex.P3 to P6 entirely cover 3280 sq.yds. and not 1680 sq.yds.
45. Thus, on scrupulous reading of the boundaries and also rough sketch drawn in the judgment, establish that the boundaries mentioned in Ex.P2 covers this entire extent of 3280 sq.yds purchased under these Ex.P3 to P6. That means, clear picture is brought on record by the defendants by producing the documents that entire 3280 sq.yds was purchased under these four sale deeds and not just 1680 sq.yds.
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RFA No. 100536 OF 2022
46. When the plaintiffs are not disputing the boundaries mentioned in these four sale deeds and now merely because the portion mentioned in these sale deeds as 1/4th sq.yds each shown to different sale deeds cannot be accepted for the simple reason that on going through each sale deed, it appears that the plaintiffs' father Kasimsab sold entire CTS No.3927/1 measuring 3280 sq.yds which is purchased by him on 15.3.1956.
47. It is an admitted fact between both the sides that, under the sale deed Ex.P2 dated 15.3.1956, entire 3280 sq.yds was purchased. In each of Ex.P3 to P6, the same facts have been mentioned in the sale deeds. So when entire 3280 sq.yds was the subject matter of the purchase dated 15.03.1956 and how this 1680 sq.yds has been mentioned in the four sale deeds is not properly explained by the plaintiffs. At one breath, PW.1 says that, his father had told him that, he has not given instructions to scribe the sale deeds Ex.P3 to P6. At
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RFA No. 100536 OF 2022 another breath, he says that, by force these sale deeds got executed by these defendants. With regard to the force being put by these defendants, except the self- serving testimony of PW.1, no evidence is placed on record. During the lifetime of his father Kasimsab, right from the execution of these sale deeds till his demise, no steps were taken to challenge these sale deeds. If really there was a mistake as alleged by the plaintiffs, nothing prevented these plaintiffs or their father from seeking rectification of the sale deeds. They admit the boundaries but, deny the extent. So, when the plaintiffs' father purchased entire 3280 sq.yds under the sale deed dated 15.3.1956, the entire extent of the same was sold under four sale deeds with same boundaries. It becomes clear by comparing the boundaries mentioned in sale deed dated 15.03.1956 with the boundaries mentioned in the four sale deeds. This itself establishes that the plaintiffs have filed this suit to have an unlawful gain. This possibility cannot be ruled out.
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RFA No. 100536 OF 2022
48. What is forthcoming is one block property measuring 3280 sq.yds are sold. If really the version of the plaintiffs is to be accepted, at least towards anyone of property sold under four sale deeds, the property retained by the plaintiffs' father would have been mentioned. But, plaintiffs never say that towards any of the boundaries, the property retained by their father is situated. This itself goes to establish that the plaintiffs' assertion cannot be accepted.
49. Sri Ananth Mandagi, learned Sr.Counsel for the appellant-defendants submits that, these appellants purchased the entire property lying in between the properties in their respective sale deeds. The identity of the property had never been in doubt. It is submitted that, taking advantage of pursued ambiguity in the appellants' sale deeds, these plaintiffs who ceased to be in possession of the property, initially tried to initiate proceedings before the Revenue Authorities. There were filing appeals/ revisions before the ADLR, DDLR JDLR
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RFA No. 100536 OF 2022 etc., there was a direction issued to approach the Civil Court, then they approached this Court by filing the writ petition. When there was a direction to approach the Civil Court, the plaintiffs filed writ appeal, thereafter, the plaintiffs ventured to file the suit.
50. He also pointed out the boundaries shown in the appellants sale deeds and those in the first sale deed of the father of the plaintiffs Kasimsab, are identical. No where, the plaintiffs whispered in the sale deeds executed by Kasimsab that the said Kasimsab had retained property after selling the extent of the properties mentioned in the respective sale deeds of these defendants. To conclude, Sri Ananth Mandagi, Senior Advocate, has submitted that, these appellants have got mutated their names in the revenue records. Plaintiffs never mutated their name in the revenue records because of the ignorance but, they attempted to create their names entered in the revenue records but,
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RFA No. 100536 OF 2022 that factum would not defeat the substantive rights of defendants-appellants over the suit properties.
51. As against this submission, the learned counsel for the plaintiffs Sri. V. M. Sheelavant submitted that, as the extent of the properties have been shown correctly in the sale deeds to the extent of 420 sq.yds of selling the properties in each sale deed thereby, there is retention of 1600 sq.yds by the deceased Kasimsab. Plaintiffs stress more on the contents of the four sale deeds. It is argued by the counsel for the appellants- defendants that always the boundaries would prevail over the extent and survey numbers.
52. As we have already noticed that, the sale deed of 1956 contains Sy.Number and extent describing the property purchased by the Kasimsab. The same Kasimsab sold the same property in favour of these appellants-defendant nos. 1 to 4. That means extent of the properties sold to defendants can be identified by the
- 47 -
RFA No. 100536 OF 2022 aforesaid diagram incorporated in this Judgment. So far as the identity of the property sold to the defendants- appellants are concerned, there is no dispute as such. Even PW.1 admits the boundaries mentioned in those sale deeds. On this score, the common law principles compel us to conclude that the boundaries prevail over the extent and even survey numbers.
53. There are judgments of the various High Courts including the Privy Council judgments i.e. in Sheodhyan Singh and others vs. Musammat Sanichara Kuer and others1 the Hon'ble Supreme Court has held that the boundaries prevail over the extent. Para 6 of the said judgment reads as under:
6. In the present appeal, the learned counsel for the respondents does not ask us to go beyond the sale certificate and the final decree for sale; his contention is that there is a mere misdescription of the plot number in the two documents and that the identity of the plot sold is clear from the circumstances which we have already set out above. He relies on 1 AIR 1963 SC 1879.
- 48 -
RFA No. 100536 OF 2022 Thakur Barmha v. Jiban Ram Marwari. In that case what had happened was that the judgment-debtor owned a mahal in which ten annas share was mortgaged while the remainder was free from encumbrances. A creditor of his attached and put up for sale six annas share out of the mortgaged share. The property attached was sold. When the auction purchasers applied for the sale certificate they alleged that a mistake had been made in the schedule of the property to be sold in that the word "not" had been omitted from the description of the six annas share and that the property should have been described as being six annas not mortgaged. This prayer of theirs was allowed by the executing court and the appeal to the High Court failed. On appeal to the Privy Council, it was held that in a judicial sale only the property attached can be sold and that property is conclusively described in and by the schedule to which the attachment refers, namely, the six annas share subject to an existing mortgage. The Privy Council therefore allowed the appeal and observed that a case of misdescription could be treated as a mere irregularity; but the case before them was a case of identity and not of misdescription. It was pointed out that a property fully identified in the schedule may be in some respects misdescribed, which would be a different case. Thus the effect of this decision is that where there is no doubt as to the identity and there is only misdescription
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RFA No. 100536 OF 2022 that could be treated as a mere irregularity. Another case on which reliance has been placed on behalf of the respondents is Gossain Das Kundu v. Mrittunjoy Agnan Sardar. In that case the land sold was described by boundaries and area; but the area seems to have been incorrect. It was held to be a case of misdescription of the area and the boundaries were held to prevail.
54. Further, it is relevant to refer to the decision of Hon'ble Supreme Court in Subhaga and others vs. Shobha and others2, the relevant portion of para 6 of the said judgment reads as under:
6. xxxxxxx That a property can be identified either by boundary or by any other specific description is well established. Here the attempt had been to identified the suit property with reference to the boundaries and the commissioner has identified that property with reference to such boundaries. Even if there was any discrepancy, normally, the boundaries should prevail.
55. In Subbayya Chakkiliyan vs. Maniam Muthiah Goundan and anothers3, a Division Bench of 2 (2006)5 SCC 466 3 AIR 1924 Mad 493
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RFA No. 100536 OF 2022 Madras High Court has held that "Ordinarily when a piece of land is sold with definite boundaries, unless it is very clear from the circumstances surrounding the sale that a smaller extent than what is covered by the boundaries was intended to be sold, the rule of interpretation is that boundaries must prevail as against measurements."
56. A similar view was expressed in The Palestine Kupat Am Bank Co- operative Society Ltd vs. Government of Palestine and others4, "In construing a grant of land, a description by fixed boundaries is to be preferred to a conflicting description by area."
57. We may also refer to Temple of Maruthi vs. Balakrishna Suryaji S. Kakodkar and anothers5 "where in the issue was, if the boundaries and area conflict with each other, which one should prevail. The 4 AIR (35) 1948 PC 207 5 1998 (3) Bombay CR.540
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RFA No. 100536 OF 2022 Bombay High Court has held that boundaries would prevail".
58. Thus, it is well settled law that the boundaries will prevail over the extent and it is also true that if the vendors have any complication between description of boundaries and the extent, the boundaries will prevail over the extent. In another judgment of this Court between DR. JAYASHEELA VENU AND ANOTHER V/s. A.J.F.D'SOUZA AND OTHERS6 the paras 53, 38,39 reads as under:
53. For the reasons assigned by us while adverting to the points formulated by this Court, we would hold that the plaintiffs have established their right and title over suit Schedule "A" as well as "B"
properties. The title of plaintiffs stands established in the light of the approved layout plan as per Ext. P-2, coupled with the survey sketch issued by the city survey authorities who have surveyed the suit schedule Site No. 22/9 in 1974. The title of plaintiffs over the suit schedule Site No. 22/9 stands 6 2021 (1) HCC (Kar)1
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RFA No. 100536 OF 2022 established in terms of the sale deed executed by Mrs Rose Mary D'Souza in favour of her son Anthony Alexis D'Souza and daughter-in-law Dorothy Sabina D'Souza as per Ext. P-3 and in turn the sale deed executed by the aforesaid Anthony Alexis D'Souza and his wife in favour of plaintiffs as per Ext. P-
4. The approved layout plan as per Ext. P-2 coupled with survey sketch as per Ext. P-7 and also the sketch in respect of Site No. 22/9 as per Ext. P-8 would clearly establish that the northern boundary of Site No. 22/9 would extend till the northern 20 ft road which is assigned CTS No. 328. The plaintiffs have succeeded in establishing that there is inconsistency between the description by boundaries and by area. The plaintiffs have also established that Site No. 22/9 is conveyed with definite boundaries and the description by boundaries is a leading description and the same would prevail over all other descriptions more particularly the measurements shown in the approved layout plan as per Ext. P-2 and the sale deeds as per Exts. P-3 and P-4. The plaintiffs have also established the ambiguity in regard to measurements in approved layout plan as per Ext. P-2 and subsequent PT sheet drawn by the city survey authorities as per Ext. P-6.
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RFA No. 100536 OF 2022 Applying the principle of boundaries prevail over measurements, we are not inclined to accept the recitals in regard to north-south measurement which is shown as 77 ft. On the other hand, we are of the view that the suit site bearing No. 22/9 must be taken to have been conveyed according to the dimensions based on boundaries and not by measurement. The above said clinching evidence adduced by plaintiffs establishes their title and also their lawful possession over the suit Schedule "A" property as well as Schedule "B"
property, which is in dispute.
38. If this relevant ocular evidence of DW 2 is taken into consideration, the same would clinch the controversy in regard to the width of the road. Neither the first defendant nor Defendants 2 and 3 have adduced any rebuttal evidence to prove that the width of the road is 30 ft. All these significant details which would have a bearing on the conclusion are totally discarded and ignored by the court below. The conclusion arrived at by the court below while examining additional Issue 5 suffers from serious infirmities. The learned Judge has virtually misread the entire evidence on record. In the absence of rebuttal evidence and by ignoring the approved sanctioned plan as per Ext. P-2 coupled
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RFA No. 100536 OF 2022 with Exts. P-6, 7 and 8, which are public documents issued by survey authorities which have got presumptive values and the order passed by KAT in Rev. No. 136 of 2008, the learned Judge has proceeded to hold that defendants have proved that the width of the road is 30 ft. this finding arrived at while answering additional issue 5 suffers from serious perversities.
39. We would find that a feeble attempt is made by Defendants 2 and 3 who assert right and title over the northern road in excess of what is notified under the approved layout plan. Defendants 2 and 3 are also bound by Ext. P-2 which is an approved layout plan and same indicates that the width of the road is 20 ft. However, Defendants 2 and 3 are claiming title over the northern road by contending that its width measures 30 ft and not 20 ft. However, to substantiate their case, Defendants 2 and 3 have not let in any rebuttal evidence. Except bald allegations in the written statement coupled with self-serving oral testimony of the official who is examined as DW 2, there is absolutely no clinching evidence indicating that to the northern side of Site No. 22/9, the road situated measures 30 ft. In view of the categorical admissions given by the first
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RFA No. 100536 OF 2022 defendant and also having regard to the admitted set of facts narrated in the written statement filed by the first defendant in the earlier suit bearing No. 6696 of 1992, we are of the view that the finding recorded by the court below on additional Issue 5 suffers from perversity and the same is in absence of rebuttal evidence let in by first defendant as well Defendants 2 and 3. In that view of the matter we would answer Point 3 in the affirmative.
59. In the said judgment, the question that arose before this Court was whether the description by measurement is relied upon to deny a title to the property when there is conflict between the boundaries and measurement pertaining to the immovable property. The answer given by the Division Bench of this Court in supra is, boundaries prevail over the extent of the land. The para 35 of said judgment reads as under:
35. The court below while dealing with Issue 5 has come to the conclusion that defendants have established the width of the road situated on the northern side of Site No. 22/9 as 30 ft and not 20 ft as averred in the plaint. As per PT Sheet No. 850 vide Ext. P-6, the
- 56 -
RFA No. 100536 OF 2022 road is assigned CTS No. 328 and its width is shown as 6, 10 m i.e. 20 feet.
The same is also reflected in survey sketch as per Ext. P-7. Ext. P-6 (PT Sheet) and Ext. P-7 (survey sketch) corroborates and tallies with the width of the road shown in layout sanctioned plan vide Ext. P-2. Insofar as this controversy is concerned, we have perused the written statements filed by first defendant as well as Defendants 2 and
3. The first defendant has at Para 4 of the written statement specifically contended that the width of the northern road is 30 ft and that it is wrongly mentioned as 20 ft in the approved layout plan as per Ext. P-2. We have meticulously examined the oral evidence let in by the defendants on this issue. There is absolutely no rebuttal evidence to indicate that northern road measures 30 ft The city survey authorities as per Ext. P-7 have assigned CTS No. 328 to northern road and its measurement is show as 6.10 m and that would work out to 20 feet. Even otherwise, the approved layout plan as per Ext. P-2 is not challenged by either of the parties. On the contrary, first defendant has admitted the approval of layout plan secured by his mother as per Ext. P-2. To rebut the contention of the first defendant, the plaintiffs have also relied
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RFA No. 100536 OF 2022 on Para 3 of the written statement filed by the first defendant in the earlier suit which was one for bare injunction filed by the plaintiffs against the first defendant, which is called out as under:
"3. The property actually purchased, owned and possessed by the plaintiffs and their predecessors in title right from the formation of the layout is and has been as follows 'Site No. 22/9, Oorguam Road, measuring north to south 77 feet, east to west 98 feet' and bounded on the north 20 ft road South by Site No. 22/8, East by Oorguam Road, west by Site No. 22/10."
60. Thus, the principle laid down by the aforesaid Division Bench, the Judgment of this Court can very well be applied to the present facts of the case. Further, in para.25 and 26 of the said judgment, it is observed as under:
"25. It is also trite that description by boundaries prevail over all other descriptions. The reliance placed by the learned Senior Counsel on decision rendered by this Court in
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RFA No. 100536 OF 2022 Narasimha Shastry V.Mangesha Devaru. and the judgment rendered by the High Court of Kerala in Savithri Ammal Vilasini Ammal V. Jayaram Pillai Padmavathi Ammaa are squarely applicable to the present case on hand. The dispute is in respect of site with is part and parcel of an approved layout. The approved layout comprises of 12 plots and the same are identified by their respective boundaries on all four sides of the plots. The properties are clearly identified by their boundaries and the actual measurement would not be that significant and cannot be a leading description What is agreed to be sold under Exts. P-3 and P-4 is the property which is in compact and bounded by specific boundaries on all four sides. Admittedly the layout is formed in 1962 and there is every possibility of there being error in measuring the plots. The same gets strengthened by the fact that city survey authorities measured the suit site property in 1974 and as per Ext, P-7 which is survey sketch, the boundaries and measurements of CTS 326, 327,329 and 330 are mentioned.
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RFA No. 100536 OF 2022 As per Ext. P-7 (survey sketch) there is inconsistency in the measurement shown at the time of approval of the layout and subsequent survey conducted by the city survey authorities in 1974.
26. The ratio laid down by the Privy Council in Palestine Kupat Am Bank Coop. Society Ltd. V. Govt. of Palestine is squarely applicable to the present case on hand and the precedent laid down therein would also bind this Court. The ratio laid down by the Privy Council in the said case has become locus classics and even after lapse of seven decades of its pronouncement, the principles laid down in the said judgment still holds the field and the ratio laid down has been followed by several High Courts in the cases relating to conflict between boundaries and measurements.
27. When there is ambiguity in regard to measurement and the fact that the controversy is in respect of a plot, we are of the view that the principle that description by boundaries would prevail over all other descriptions
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RFA No. 100536 OF 2022 has to be made applicable to the present case on hand."
61. In view of the principles laid down in the aforesaid judgments, it can very well be stated that description by boundaries prevail over all other descriptions. A comparative reading of the sale deeds of Kasimsab which was the first sale deed being admitted by the plaintiffs and the sale deeds of defendants- appellants do establish that the boundaries will prevail over the extent that has been considered. But, the learned trial Court simply believed the evidence of the plaintiffs and has come to the conclusion that the plaintiffs were able to prove their case with legal evidence. When the plaintiffs fail to prove that deceased Kasimsab had retained 1600 sq.yds., then in view of the boundaries mentioned in the four sale deeds, it can be said that entire 3280 sq.yds. had been sold.
62. Considering the judgment cited supra, it is well settled principle of law at the cost of repetition that if
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RFA No. 100536 OF 2022 there is any dispute in respect of extent sold, the boundaries only prevail over the extent. The learned trial Court has lost sight and misread the evidence placed on record by the plaintiffs and there is no proper appreciation of the evidence placed on record by the plaintiffs and defendants.
63. Thus, in the case of present nature, a duty is cast upon the Court to follow the rule of interpretation of documents/agreements. It is the duty of the Court to interpret a document of the Contract as was understood between the parties. The terms of the contract have to be construed strictly. That means a document has to be read as a whole, and the spirit of the subject should be taken note of, and not to be faded away by mere letters found therein. Anyone who tries to rely on mere wordings, without keeping in mind the object and spirit of the document would be considered as a person who throws the baby along with the bath water.
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RFA No. 100536 OF 2022
64. It is also a settled principle that, when the intention of the maker or makers of the deed cannot be given effect to in its full extent, effect is to be given to weight as far as possible, where the intention is sufficiently clear from the deed itself. Mis-rectial in some part of the deed cannot vitiate. Anything expressly mentioned in the deed excludes another view impliedly possible.
65. Thus it is very much clear that the learned trial Court has not properly appreciated the evidence placed on record by the defendants. In a judgment of the Supreme Court in Sant Ram vs. Rajinder Lal7 enunciated certain principles regarding the interpretation of a lease deed. His Lordship V.R.Krishna Iyer, Ajay, speaking for three-Judge Bench quoting with approval from "Lux Genetium Lux- Then and Now held as follows" and the para 6 of the said judgement reads as under:
7
AIR 1978 SC 1601
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RFA No. 100536 OF 2022
6. Two rules must be remembered while interpreting deeds and statutes.
The first one is: "In drafting it is not enough to gain a degree of precision which a person reading in good faith can understand, but it is necessary to attain if possible to a degree of precision which a person reading in bad faith cannot misunderstand."
The second one is more important for the Third World countries. Statutory construction, so long as law is at the service of life, cannot be divorced from the social setting. That is why, welfare legislation like the one with which we are now concerned, must be interpreted in a Third World perspective. We are not on the Fifth Avenue or Westend of London. We are in a hilly region of an Indian town with indigents struggling to live and huddling for want of accommodation. The law itself is intended to protect tenants from unreasonable eviction and is, therefore, loaded a little in favour of that class of beneficiaries. When interpreting the text of such provisions and this holds good in reading the meaning of documents regulating the relations between the weaker and the stronger contracting parties - we must remember what in an earlier decision of this Court, has been observed.
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RFA No. 100536 OF 2022
66. On reading all the four sale deeds and the boundaries mentioned therein, it can be stated that, now for the purpose of depriving rights of appellants- defendants, the plaintiffs must have designed the suit after lapse of more than 35 years.
67. The learned trial Court has not taken into consideration all these aspects, but simply believed by wrongly interpreting the sale deeds and has come to the conclusion that these plaintiffs are able to prove the case which in our opinion is erroneous. The plaintiffs have failed to prove their title to the suit property.
68. Therefore, the findings of the trial Court requires interference. The plaintiffs are also not able to prove their lawful possession and enjoyment of the property.
69. In view of the aforesaid discussion, the trial Court has wrongly held that defendants have failed to prove their respective title over the suit property even the trial Court has erred in holding that deceased Kasimsab
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RFA No. 100536 OF 2022 just sold 1680 sq.yds. Such finding of the Trial Court suffers from infirmities.
70. So in view of the findings on various points for consideration stated supra, definitely the findings of the trial Court require interference by this Court.
71. The appeal succeeds and the suit of the plaintiffs is liable to be dismissed.
72. Accordingly the aforesaid points are answered in favour of appellant-defendants. Resultantly we pass the following:
ORDER
i) Appeal filed by appellant-
defendant nos. 1 to 4 is
allowed.
ii) Judgment and decree
passed in OS No. 8/14 dated
20.8.2022 passed by the II
Addl. Sr.Civil Judge and CJM,
Belagavi, is hereby set aside.
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RFA No. 100536 OF 2022
iii) Consequentially, the suit
of the plaintiffs in OS
No.8/2014 on the file of II
Addl.Sr.Civil Judge and CJM,
Belagavi is dismissed with
costs.
iv) Send back the trial Court
records along with a copy of
this judgment forth with.
Sd/-
JUDGE
Sd/-
JUDGE
SK/-