Karnataka High Court
Smt.Vijayalaxmi W/O Pampanna vs K.Basavaraj S/O Amarappa on 26 May, 2023
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RSA No. 7310 of 2010
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
REGULAR SECOND APPEAL NO. 7310 OF 2010 (DEC/INJ)
BETWEEN:
SMT.VIJAYALAXMI W/O PAMPANNA
AGE: 44 YEARS, OCC: HOUSE HOLD
R/O NO.6-1-148, KOTE AREA
AT SINDHANUR, TQ: SINDHANUR
DIST: RAICHUR
...APPELLANT
(BY SRI. AJAYKUMAR A. K., ADVOCATE)
AND:
K.BASAVARAJ S/O AMARAPPA
AGE: 44 YEARS, OCC: AGRI &
PETTY BUSINESS
R/O : FORT AREA, SINDHANUR
TQ : SINDHANUR
...RESPONDENT
(BY SRI. SRINIVAS S. SIDHAPURKAR, ADVOCATE)
Digitally signed THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST
by LUCYGRACE
Location: HIGH THE JUDGEMENT AND DECREE DTD- 24.04.2010 PASSED IN
COURT OF
KARNATAKA R.A.NO.21/2008 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) AT
LINGASUGUR (SITTING AT SINDHANUR), DISMISSING THE APPEAL
AND CONFIRMING THE JUDGEMENT AND DECREE DATED 19.04.2008
PASSED IN OS NO. 61/2001 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE (JR.DN.) AT SINDHANUR.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 7310 of 2010
JUDGMENT
This regular second appeal is filed by unsuccessful plaintiff, challenging the judgment and decree dated 19.04.2008, passed by the Principal Civil Judge (Jr.Dn.), Sindhanur (henceforth referred to as 'Trial Court') in O.S.No.61/2001 and the judgment and decree dated 24.04.2008 passed by the Civil Judge (Sr.Dn.), Lingasugur (henceforth referred to as 'First Appellate Court') in R.A.No.21/2008.
2. The parties in this appeal shall be referred to as per their rank before the Trial Court. The respondent herein was the defendant while appellant was the plaintiff before the Trial Court.
3. The suit in O.S.No.61/2001 was filed for declaration and perpetual injunction in respect of dilapidated house and an adjacent open site bearing TMC No.6-1-148 new TMC No.6-1- 153, Killa Locality, Sindhanur Town (henceforth referred to as 'suit property'). The plaintiff claimed that she was the absolute owner of the suit property, having purchased it from Smt.Siddamma in terms of a sale deed dated 23.03.1994. She -3- RSA No. 7310 of 2010 claimed that the municipal records were transferred to her name by mutation order dated 07.05.1994 and her name was entered in Katha utar of the suit property. She claimed that the suit property was assigned new municipal number '6-1- 153'. She claimed that she was paying property tax to the municipal council till 1997 and was contesting the demand of tax for the subsequent years, before the appropriate authority. The plaintiff claimed that her vendor had succeeded to the suit property from Malkanagouda S/o. Basangouda in the year 1972. She claimed that the suit property was earlier numbered as 6-1-73 and 6-1-74, which was renumbered as 6-1-105/1, 6-1-155 and thereafter, renumbered as 6-1-106 and thereafter as 6-1-148. The plaintiff claimed that she constructed a house towards East, leaving open space towards West and was residing thereon with her family. She alleged that the defendant though has no manner of right, title or interest, was interfering with her possession and on 15.04.2001, the defendant tried to dispossess the plaintiff from the suit property. Therefore, the plaintiff sought for the relief of declaration and consequent injunction.
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4. The defendant contested the suit and claimed that the plaintiff was trying to grab the property that belonged to Smt.Nasimunnisa, who was the owner of the suit property. He contended that Smt.Nasimunnisa was employed as a Craft Teacher at the Municipal Government School, Sindhanur during the year 1976 and that she purchased the suit property on 14.09.1976 from Basanagouda S/o. Sharanagouda. He contended that Smt.Nasimunnisa was residing at Bengaluru and employed at a school in Bengaluru. He contended that Smt.Nasimunnisa got the property transferred to her name in the records of the Municipal Council, Sindhanur on 25.07.1979. She also obtained permission from the TMC, Sindhanur for renovation and extension of the existing house and plan submitted by her was approved. The defendant contended that Smt.Nasimunnisa lost her husband and there was no other person in the family to look after her property and therefore, the plaintiff, her husband and her brother-in-law taking advantage of the absence of Smt.Nasimunnisa, were attempting to grab the suit property, which is situated next to their house. He contended that the plaintiff and her husband requested Smt.Nasimunnisa to give away the house on rent, -5- RSA No. 7310 of 2010 which she refused. Thereafter, Smt.Nasimunnisa executed a power of attorney authorizing the defendant to look after the property on her behalf. He contended that he was in possession and enjoyment of the suit property as an agent of Smt.Nasimunnisa. Therefore, he contended that the suit was not maintainable in law.
5. Further, he contended that Smt.Nasimunnisa being apprehensive of the conduct of the plaintiff and her husband, submitted a representation before the Sub-Register, Sindhanur on 03.06.1992, requesting him not to register any documents in respect of the suit property. Nonetheless, the plaintiff managed to get the sale deed registered from an unauthorized person. He claimed that Smt.Nasimunnisa on coming to know about the sale deed created by the plaintiff, submitted a petition before the Hon'ble Governor of Karnataka, who referred the case to the Divisional Commissioner, Kalaburagi to enquire, who in turn advised Smt.Nasimunnisa to take necessary action under the municipal law. Therefore, she filed a petition before the director of Municipal Administration, Bengaluru and the Deputy Commissioner, Raichur on 20.12.1994. She had also lodged a complaint before the -6- RSA No. 7310 of 2010 Education Minister to provide protection to her property. Therefore, he contended that Smt.Nasimunnisa was always diligent in protecting her possession against the plaintiff. He contended that the property bearing municipal No.6-1-148 did not exist and the name of Smt.Siddamma was never found in the municipal records. He also contended that the predecessor of the plaintiff had no title to the suit property.
6. He further contended that the property bearing TMC No.6-1-73, 6-1-74, which was changed to 6-1-105/1, 6-1-155, which was in turn changed to 6-1-106 and later assigned the number as 6-1-148 and thereafter numbered as 6-1-153 do not pertain to the suit property. He contended that the Municipal Council had assigned old municipal number as 6-1-75 and the new municipal number was 6-1-154/1 in respect of the suit property. Therefore, he prayed for dismissal of the suit.
7. Based on these contentions, the Trial Court framed the following issues:
1. Whether the plaintiff proves that she is the owner in lawful possession of suit property as on the date of suit as contended in the plaint?-7- RSA No. 7310 of 2010
2. Whether the plaintiff further proves that the interference by defendant as contended in the plaint?
3. Whether the court does not have the pecuniary jurisdiction to entertain the suit?
4. Whether court fee paid is sufficient?
5. Whether the plaintiff is entitled for the relief sought for?
6. What order or decree?
8. The plaintiff was examined as PW.1 and she marked Exs.P1 to P49. She examined the deed writer as PW.2. PW.3 and PW.4 are the persons, who spoke about the possession of the plaintiff in the suit property and PW.5 is the person, who had created the sale executed by Smt.Siddamma in favour of the plaintiff. The defendant No.1 was examined as DW.1 and he marked Exs.D1 to D19. DW.2 is a witness, who spoke about the possession of the suit property by Smt.Nasimunnisa and DW.3 was a witness to the power of attorney executed by Smt.Nasimunnisa in favour of the defendant. -8- RSA No. 7310 of 2010
9. Based on the oral and documentary evidence, the Trial Court dismissed the suit of the plaintiff in terms of the judgment and decree dated 19.04.2008, on the ground that the boundaries mentioned in the sale deed at Ex.P1 did not correspond with the boundaries at the spot. It also held that the plaintiff did not examine her vendor Smt.Siddamma to prove her antecedent title. It also held that PW.5 admitted that the suit property was purchased by Smt.Nasimunnisa from Sri.Basanagouda and that the documents produced as Exs.D2 to D4 showed the name of Smt.Nasimunnisa in respect of the property bearing municipal No.6-1-154/1. It also considered the sale deed executed by Sri.Basanagouda in favour of Sri.P.N.Badi (Ex.D9) and the sale deed executed by Sri.Basanagouda in favour of Sri.Shivanagouda at Ex.D8 and held that the boundaries mentioned in those sale deeds indicated that the property of Smt.Nasimunnisa existed. The Trial Court therefore held that the plaintiff had not proved her title to the suit property and had not made any effort to prove the title of her vendor and that the document placed on record clearly indicated that the claim made by the plaintiff was in respect of a property owned by Smt.Nasimunnisa and -9- RSA No. 7310 of 2010 consequently, dismissed the suit. Being aggrieved by the judgment and decree of the Trial Court, the plaintiff filed a regular appeal before the First Appellate Court.
10. The First Appellate Court secured the records of the Trial Court and heard the learned counsel for the parties. It perused the records and judgment of the Trial Court and framed the following points for consideration:
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11. The First Appellate Court after hearing the learned counsel for the plaintiff as well as defendant, re-appreciated the evidence on record and dismissed the appeal in terms of the judgment and decree passed by the Trial Court.
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RSA No. 7310 of 2010
12. Being aggrieved by the concurrent finding of fact by both the Courts, the plaintiff filed this regular second appeal. This Court has admitted this appeal to consider the following substantial question of law:
"Whether the Courts below were right in dismissed the suit filed by the appellant plaintiff despite production of oral and documentary evidence with regard to the suit schedule properties particularly Ex.P1 which is a registered sale deed dated 23.03.1994, on which the plaintiff sought declaration of title and other documents supporting Ex.P1?
13. I have heard the learned counsel for the plaintiff as well as the learned counsel for the defendant.
14. I have also perused the records of the Trial Court as well its judgment and decree. I have also considered the judgment and decree of the First Appellate Court.
15. The suit of the plaintiff for declaration and injunction was based on the sale deed dated 23.03.1994 executed in favour of the plaintiff by her vendor
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RSA No. 7310 of 2010Smt. Siddamma. The boundaries of the property mentioned in the suit are:
East by: Road,
West by: Open site,
North by: House of relative of one
Narasanagowda,
South by: House of P.N.Badi, now purchased by
one Kariyamma, the mother of the
defendant.
16. The defendant claimed that the plaintiff was
attempting to grab the house property of Nasimunnisa who purportedly was the owner of the suit property. He claimed that the said Nasimunnisa was employed as a craft teacher at Government School during the year 1976 and later transferred to Bengaluru, where she worked as a craft teacher until she retired. He claims that Smt. Nasimunnisa purchased the suit property in terms of the sale deed dated 14.9.1976 from Basanagowda and the property so purchased was assigned municipal No.6-1-75 which was later assigned municipal No.6- 1-108, 6-1-150 and presently numbered as 6-1-154/1. He claimed that the property sold by Basanagowda in favour of Smt. Nasimunnisa was bound on:
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East: By road;
West: By road;
North: By House of Narasanagouda and
South: By remaining portion of Basanagouda.
17. It is stated that Basanagouda subsequently sold some portion on the southern side to Shivannegouda Kannari who in-turn sold it to Mr. P.N.Badi and who thereafter sold the same to Smt. Kariyamma. The defendant claim that after Smt. Nasimunnisa purchased the property, she got mutated her name in the municipal records on 25.07.1979. She also obtained permission for renovation and extension of the existing house. The Town Municipal Council, Sindhanur approved the plan submitted by her. He contended that Smt. Nasimunnisa was paying the property tax regularly. He therefore, contended that Smt. Nasimunnisa was the owner of the suit property and that the plaintiff, her husband and her brother-in-law took the absence of Smt. Nasimunnisa and were trying to grab her property. He claimed that the plaintiff and her husband requested Smt. Nasimunnisa to give the house on rent, but when she refused, the plaintiff developed hatred against Smt. Nasimunnisa.
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RSA No. 7310 of 2010
18. The defendant claimed that Smt. Nasimunnisa executed a power of attorney in favour of defendant to look after the property and therefore, he was in possession of the property as a power of attorney holder. The defendant claimed that since Smt. Nasimunnisa apprehended that the plaintiff concocted documents to grab the property and therefore, submitted a representation before Sub-Registrar, Sindhanur on 3.4.1992, requesting him not to register any document in respect of suit property. The defendant alleged that plaintiff and her husband still managed to get a sale deed. On coming to know about this document, Smt. Nasimunnisa filed a petition before His Excellency Hon'ble Governor of Karnataka on 23.8.1984 seeking protection to her property. This was forwarded and referred to Divisional Commissioner, Gulbarga, who in-turn advised Smt. Nasimunnisa to take appropriate action under Municipal Law. The defendant claimed that Smt. Nasimunnisa then filed a petition before the Director of Municipal Administration, Bengaluru and Deputy Commissioner, Raichur. She also appraised the Minister for Education, Government of Karnataka. The defendant claimed that the plaintiff falsely claimed ownership of the suit property
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RSA No. 7310 of 2010contending that she purchased the property bearing Municipal No.6-1-148 from Smt. Siddamma in terms of the sale deed dated 23.09.1994. He claimed that the property bearing Municipal No.6-1-148 did not exist. No such number was assigned by the Town Municipal Council, Sindhanur. He further claimed that the name of Smt. Siddamma never appeared in the municipal records of the property bearing Municipal No.6-1-
148. He contended that the plaintiff colluded with the municipal authorities who gave a certificate to the plaintiff giving the boundaries and measurements of house of Smt. Nasimunnisa. He further claimed that the southern portion of the property purchased by Smt. Nasimunnisa was later sold to a person called P.N.Badi, who also objected for granting permission for construction of a building by the plaintiff.
19. He contended that Basanagouda was the owner of the property bearing Municipal No.6-1-75, Fort Area Sindhanur, who sold six portions to six different persons. The first portion was sold to Narasanagouda through a registered sale deed dated 01.07.1977, the second portion was sold to Smt. Nasimunnisa which is adjoining to the property of Narasanagowda through registered sale deed dated
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RSA No. 7310 of 201014.09.1976. A person Shivanagouda Kannari purchased another portion on 22.7.1977. While, three others purchased the other portions. He contended that the three portions purchased by Narasanagooda, Smt. Nasimunnisa and Shivanagouda were assigned municipal Nos.6-1-75. Later Shivanagouda Kannari sold it to one Sri. P.N.Badi through a registered sale deed dated 23.1.1985, who later sold it to Smt.Kariyamma. He therefore contended that Smt. Nasimunnisa is the owner of the suit property and the sale deed executed by Siddamma in favour of plaintiff conveying the house bearing Municipal No.6-1-48 was false and created. Based on these contentions, the defendant denied lawful right, title interest of plaintiff over the suit schedule property.
20. The plaintiff amended the plaint and inserted paragraph No.2(a) and contended that her vendor Smt. Siddamma had succeeded to the suit property from Malkanagouda, and that she purchased it from Smt. Siddamma. She claimed that suit property was then bearing CMC No.6-1-73 and 6-1-74. Later from 1978 to 1984, the municipality had assigned the property number as 6-1- 105/6-1-155. However, from 1984 to 1990, the municipality
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RSA No. 7310 of 2010had assigned one Municipal No.6-1-106 and thereafter new Municipal Number T.M.C. No.6-1-148 was assigned. She claimed that the latest municipal number of the suit property assigned was T.M.C. No.6-1-153.
21. In response to the amended plaint, the defendant denied and claimed that the property bearing Municipal Nos.6- 1-73, 6-1-74, 6-1-105/1, 6-1-155, 6-1-106, 6-1-148, 6-1-153 do not pertain to suit property but pertained to property of Smt. Nasimunnisa whose property bearing old municipal number was No.6-1-75 and the latest number is 6-1-154/1.
22. Before adverting to the oral evidence, it is appropriate that the documentary evidence is scanned as that would give a clear picture of the case of the plaintiff.
23. The sale deed at Ex.P1 shows that a dilapidated house lay on the eastern side of the property bearing Municipal No.6-1-148 and measured east to west 45 feet and north to south 10 feet. Abutting this there is a vacant space, measuring East to West - 40 feet and North - South 15 feet. The boundaries of the dilapidated house is shown as:
East: By 06 feet road;
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West: By 04 feet road;
North: By house of Narasanagouda and
South: By house of P.N.Badi.
The boundaries of vacant space was shown as;
East by : Four feet road,
West by : Road,
North by : Vacant site of Gowdappa,
South by : 03 feet road.
These boundaries therefore indicate that the portion where a dilapidated house was situated and the vacant site were separated by a 04 feet road.
24. Ex.P2 is a intimation regarding transfer of title in the property register concerning the property No. 6-1-148 and Ex.P3 is the assessment list extract of the property No.6-1-148 and new No.6-1-153. EXs.P4, 5, 6, 7 and 8 are the house tax paid receipts. Ex.P9 is a special notice issued by municipality in respect of property bearing municipal No.6-1-148 and 6-1-153. While Ex.P10 is a reply given by the plaintiff to the special notice. Ex.P11 is an order of mutation in the name of vendor of the plaintiff in respect of the property bearing municipal No.6- 1-73, 6-1-74. While, Ex.P12 is a rough hand sketch issued by
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RSA No. 7310 of 2010town municipality, Sindhanur. Ex.P13 is the tax demand register extract of the property bearing Municipal No.6-1-106 and Ex.P14 is the assessment register extract of the property bearing municipal Nos.6-1-148 and 6-1-153 for the years 1990 to 2001-2002 which indicates the name of plaintiff as the owner. Exs.P15 and 16 are two house tax paid receipts of property bearing Nos.6-1-148, 6-1-153. Ex.P17 is the notice issued by the municipality under Section 103(3) of the Karnataka Municipality Act, 1964 in respect of property bearing No.6-1-148. ExP18 - notice issued by municipality intimating to pay property tax to the house property bearing Nos.6-1-148 and 6-1-153. Exs.19, 20 and 21 are the self assessment tax paid receipts in respect of property bearing Nos.6-1-148 and 6- 1-153. Ex.P22 is the certificate of ownership of the property bearing Municipal Nos.6-1-148 and 6-1-153. Ex.P23 is the nil no due certificate issued by the municipality to the property bearing Nos.6-1-148 and 6-1-153. Exs.P24 - endorsement issued by Municipal Council, Sindhanur stating that the property stood in the name of Siddamma W/o. T.Amaregowda was assigned Municipal Nos.6-1-73-, 6-1-74, 6-1-105/1(old), 6-1-155(old), 6-1-106 (old) and it was stated that this property
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RSA No. 7310 of 2010was re-numbered as property bearing No.6-1-148 in the name of plaintiff and was later numbered as 6-1-153. It is claimed that till the year 1996 the property was numbered as 6-1-148 and from 1997 till 2007, it was numbered as 6-1-153. Ex.25 is an endorsement stating that there are no records to the property prior to the year 1978. Exs.P26 to 45 are the electricity bills and the receipts for having paid the bills. Ex.P46 is a photographs of the suit property. Ex.P47 is a sale deed dated 7.10.1950 executed in favour of the husband of predecessor of the plaintiff by which, a house and a vacant space bound on the east side of vendor's another house and vacant space, west by government club, north by property of Malkangowda Sahib south by government land. Ex.P48 is the Kannada translation of Ex.P47. While, Ex.P49 is the receipt issued by the photographer. The documentary evidence disclose that the plaintiff claiming title to the property bearing No.6-1-153.
25. Per contra, the documents marked by the defendant shows that as per Ex.D1 dated 14.09.1976, Smt.Nasimunnisa had purchased a site bearing Municipal No.6-
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RSA No. 7310 of 20101-75 measuring East to West 45 feet, North to South - 10 feet of Sindhanur Taluk, bound on:
East: By road;
West: By road;
North: By Narasanagouda;
South: By remaining portion.
Ex.D2 is a mutation order in the name of defendant concerning the property bearing No.6-1-108. While, Ex.D3 is the khatha extract. Ex.D4 is the assessment list of building bearing No.6-1-150. Ex.D5 is an endorsement issued by Town Municipal Corporation, Sindhanur assigning municipal No.6-1- 154/1 to the property bearing Old No.6-1-150. Ex.D6 is the plan sanctioned in favour of Smt. Nasimunnissa in respect of the property bearing No.6-1-108. Ex.D8 is the sale deed dated 22.07.1977 executed by Basangouda in favour of Sivangouda. It shows western boundary of house of Smt. Nasimunnisa. Ex.D9 is the sale deed dated 23.1.1985 executed in favour of Premanath Sha by Shivanagowda and the western boundary of this property shown as house of defendant. Ex.D10 is the sale deed dated 16.06.1994 executed by Premanath Sha to Smt. Kariyamma which shows the northern boundary as the property of the Smt. Nasimunnia bearing No.6-1-150. Ex.D11 is power
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RSA No. 7310 of 2010of attorney executed by Smt. Nasimunissa in favour of defendant. Ex.D12 is an objection filed by Mr. P.N.Badi against grant of building license to Smt. Lakshmi Devi W/o. Pampanna (plaintiff). Ex.D13 is the letter dated 03.08.1994 addressed by the Chief Officer to the Police Inspector to verify the property number of the plaintiff and defendant. Ex.D14 is a letter dated 01.08.1994 addressed by Smt. Nasimunnisa to the Chief Officer to set aside mutation order dated 07.05.1994 issued in favour of the plaintiff in respect of house bearing Municipal No.6-1-
148. Ex.D15 is the letter addressed by the Police Inspector, Sindhanur to the Chief Officer of Municipal Council asking for particulars of the property bearing Municipal Nos.6-1-148 and 6-1-150. Ex.D16 is an acknowledgment issued by the Chief Officer. Ex.D17 is a certified copy of the sale deed dated 01.07.1976 executed by Basanagouda in favour of Narasanagowda in respect of the property bearing Municipal No.6-1-75 which indicates that this property is bound on east side by a road. Ex.D18 is the assessment list of the property bearing Municipal No.6-1-150. Ex.D19 is the tax demand extract of Municipal No.6-1-154. Ex.D20 is the certified copy of the sale deed dated 07.04.1976 executed by Basanagouda in
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RSA No. 7310 of 2010favour of Smt. Karatagi Mahiboobi in the property bearing No.6-1-75. Likewise Ex.D21 is a certified sale deed dated 31.05.1976 executed by Basanagouda in favour of Smt. Aiyyamma. Ex.D22 is another sale deed dated 16.03.1976 executed by Basanagouda in favour of Julekhabi in respect of the property bearing Municipal No.6-1-75. Ex.D23 is the letter addressed by Smt. Nasimunnisa to the Sub-Registrar requesting him not to entertain any document of conveyance in respect to the property bearing Municipal No.6-1-75.
26. The aforesaid documentary evidence clearly indicates that the property claimed by the plaintiff was assigned Municipal No.6-1-148 while the property claimed by the defendant was assigned Municipal No.6-1-150. Obviously both the properties cannot be the same. The husband of the vendor of the plaintiff namely, Amarappa had purchased a house and vacant space from Erappa Dodda, Erappa Sanna and Bassappa, S/o Nagappa and after the death of Amarappa, his wife Smt. Siddamma succeeded to it and she sold it to the plaintiff in terms of Ex.P1. However, the property claimed by the defendant was earlier owned by Basanagouda S/o Sharanegouda and he sold 6 portions to six different people
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RSA No. 7310 of 2010including Smt. Nasimunnisa. Therefore, both the plaintiff and Nasimunnisa were claiming under two different persons. Thus, it is obvious that the property claimed by both of them were different. The plaintiff claimed title to the property bearing erstwhile No.6-1-148 and New No.6-1-153, Smt. Nasimunnissa was claiming title to the property bearing No.6-1-75, later renumbered as No.6-1-150. The documentary evidence produced by both the plaintiff and the defendant showed the respective title of the plaintiff and Smt. Nasimunnisa to the property bearing Nos.6-1-148 and 6-1-150. However, Ex.P24 indicates that the property bearing No.6-1-148 was renumbered as property No.6-1-153 from the year 1997 till the year 2007. It was therefore, incumbent upon the plaintiff to demonstrate that the suit property was the property bearing Municipal No.6-1-148/6-1-153. In order to demonstrate this, plaintiff was examined as PW.1. In her cross-examination, she stated as follows:-
"zÁªÁ D¹ÛAiÀÄ°è ªÀÄ£ÉAiÀÄ ¥ÀƪÀð ¢QÌUÉ gÀ¸ÉÛ, ¥À²ª Ñ ÀÄ ¢QÌUÉ §AiÀÄ®Ä eÁUÀ, GvÀÛgPÀ ÉÌ £Àg¸ À £ À U À ËqÀ EªÀgÀ ªÀÄ£É, zÀQëtPÉÌ PÀjAiÀĪÀÄä EªÀgÀ ªÀÄ£É EzÉ. ¸Àzj À PÀjAiÀĪÀÄä C£ÀÄߪÀgÀ ªÀÄ£ÉAiÀÄ°è ªÉÆzÀ®Ä §¢ C£ÀÄߪÀªg À ÀÄ ªÁ¸ÀªÁVzÀÝgÀÄ. §¢AiÀiÁzÀªg À À PÀq¬ É ÄAzÀ PÀjAiÀĪÀÄä C£ÀÄߪÀªg À ÀÄ Rjâ ªÀiÁrzÀÝgÀÄ. D ªÀÄ£ÉAiÀÄ£ÀÄß
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RSA No. 7310 of 2010
²ªÀ£U
À ËqÀ C£ÀÄߪÀªg
À À PÀq¬
É ÄAzÀ §¢ Rjâ ªÀiÁrzÀÝgÀÄ.
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À ËqÀ EªÀgÀÄ §¸À£U
À ËqÀ C£ÀÄߪÀªg
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She further stated
"6. zÁªÉAiÀÄÄ eÁUÉAiÀÄ ¥ÀƪÀðPÉÌ 4 Cr eÁUÀ ©lÄÖ £ÀªÀÄä ªÀÄ£É, ¥À²ª Ñ ÀÄPÉÌ gÀ¸ÉÛ, GvÀÛgPÀ ÉÌ §AiÀÄ®Ä eÁUÀ ªÀÄvÀÄÛ zÀQëtPÉÌ mɤ߸À PÀè©£À UÉÆÃqÉ EzÉ."
27. The plaintiff also examined PW.2, who was a document writer and an acquaintance of the plaintiff and his evidence is of no consequence as he neither knew the parties nor the suit property. PW.3 claimed to be residing near the suit property. However, it was found that this person was working in the Advocates Association. This witness seem to be planted by the plaintiff and therefore, his evidence is not of any use to the plaintiff. PW.4 also claims to be residing near the suit property. He claimed that the plaintiff was in possession of the suit property. This witness claimed that he had taken a house situate on the northern side of the suit property on rent. This witness claimed that the suit property was measuring 80 feet and that the house measured 12 feet and vacant space measured 12-15 feet. This witness was also a planted witness
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RSA No. 7310 of 2010as he deposed that the husband of the plaintiff was employed with him as a helper. This witness obviously did not know anything about the property owned by the plaintiff and the defendant and therefore, his evidence is also of no use. PW.5 was the scribe of Ex.P1 who also knew nothing about the plaintiff and defendant as well as the suit property.
28. Thus, except the self-serving testimony of the plaintiff who was examined as PW.1, there is no evidence to establish the prior title of the vendor of the plaintiff to the suit property.
29. Be that as it may, the boundaries of the dilapidated house and the vacant space in Ex.P1 shows that both of them were separated by a 4 feet road. However, in the cross- examination of plaintiff, she revealed that the entire suit property was bound on the east by road, west by open space, north by house of Narasanagouda and south by house of Kariyamma, which did not match with the boundaries mentioned in the sale deed. However, to a suggestion that this 4 feet space is used to access the road, plaintiff claimed that the 4 feet space belonged to her. Ex.P46 is the photograph of a
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RSA No. 7310 of 2010house which the plaintiff claimed belonged to her. This photograph do not indicate the existence of any vacant space on its western side and what is found is a pathway. Therefore, the plaintiff is not sure about her case and she also not been able to establish that the suit property corresponds to the property mentioned in Ex.P1. In a suit for declaration based on prior title, the plaintiff has to mention the boundaries mentioned in the title deed and not something else. If there is any discrepancy in the title deed, the plaintiff has to first get it rectified and then take out proceedings for declaration or other reliefs. He or she cannot furnish a different boundary and expect to succeed in the suit. Even otherwise, the defendant is only a power of attorney of Smt. Nasimunnisa and therefore, she must have been arrayed as a party in the suit.
30. In that view of the matter, the substantial question of law framed is answered against the plaintiff and the appeal is dismissed.
Sd/-
JUDGE SRT/HJ/PMR List No.: 2 Sl No.: 5