Karnataka High Court
K M Subbaraya Shetty S/O K S Muthyal ... vs T P Krishna Murthy Since Dead By Lrs on 13 August, 2012
Author: B.Sreenivase Gowda
Bench: B. Sreenivase Gowda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13TH DAY OF AUGUST 2012
BEFORE
THE HON'BLE MR. JUSTICE B. SREENIVASE GOWDA
R.S.A. NO.3091/2006
BETWEEN:
K.M. SUBBARAYA SHETTY,
S/O. K.S. MUTHYAL SHETTY,
AGED ABOUT 63 YEARS,
R/O. NO.421, ASHOKA ROAD,
MYSORE - 570 001.
... APPELLANT
(BY SRI R.GOPAL, ADVOCATE)
AND:
T.P. KRISHNA MURTHY,
SINCE DEAD BY LR's.
1. T.K. GIRIJA BAI,
W/O. LATE. KRISHNAMURTHY,
AGED ABOUT 62 YEARS.
2. SURESH BABU,
S/O. LATE. KRISHNAMURTHY,
AGED ABOUT 45 YEARS.
3. T.K. SATISH BABU,
S/O. LATE. KRISHNAMURTHY,
AGED ABOUT 42 YEARS.
4. T.K. DINESH BABU,
S/O. LATE. KRISHNAMURTHY,
AGED ABOUT 36 YEARS.
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ALL ARE R/O. 420,
ASHOKA ROD,
MYSORE - 570 001.
... RESPONDENTS
(BY SRI. P.S. MANJUNATH, ADVOCATE FOR R1-R4,
SRI. R.D. RENUKARADHYA, ADVOCATE FOR C/R)
THIS RSA FILED UNDER SEC.100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED
22.8.2006 PASSED IN R.A.NO.106/2001 ON THE FILE
OF THE II ADDL. CIVIL JUDGE (SR.DN) & CJM,
MYSORE, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DATE:
19.3.2001 PASSED IN OS.NO.621/1988 ON THE FILE
OF THE II ADDL.I CIVIL JUDGE (JR.DN.), MYSORE.
THIS APPEAL COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is by the defendant in the suit challenging the judgment and decree of the Lower Appellate Court dated 22.08.2006 in allowing R.A.No. 106/2001 and setting aside the judgment and decree of the Trial Court and decreeing the suit of the plaintiff by granting permanent injunction restraining him from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property.
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2. I have heard the learned counsel for the parties and perused the judgments and decrees of the Courts below including the records.
3. For the sake of convenience, the parties are referred to as they are referred to in the original suit before the Trial Court.
4. This Court by order dated 12.04.2007 has framed the following substantial question of law:
"Whether the Lower Appellate Court was justified in holding that item No.2, the vacant space in the Suit Scheduled Property is different from the property which is covered under the decree in OS No.98/40- 41, though the plaintiffs admit his evidence is relying on the Commissioner's report and photographers."4
5. The brief facts of the case of the plaintiff is as under:-
The deceased plaintiff, Sri.T.P.Krishnamurthy brought the suit against the defendant seeking the relief of permanent injunction restraining the defendant from interfering with his peaceful possession and enjoyment of the suit schedule property contending that the suit schedule property is one of the joint family properties of the plaintiff and his 3 brothers. He has a share in the said property and same is determined in O.S.71/72 on the file of the Prl.Cvl Judge, Mysore in the year 1975 by passing a preliminary decree and the final decree in FDP 18/1983 on the file of the II Addl. Civil Judge, Mysore and disposed of on 17.12.1988 entering compromise between the parties, the plaint suit schedule property has fallen to the share of the plaintiff and he became the absolute owner. The plaintiff is in possession of the entire suit property. The defendant is owning and 5 residing in the property adjacent to the suit property and the defendant has started construction of two shops in the backyard of his property. The suit property consists of 12¾ x 75 feet old building and 12¾ x 14 feet open space in the rear portion of the property. Since the suit property is old having country tiled roofing, the plaintiff began to repair the roofing of the said property. At that time, the defendant picked up some quarrel and threatened the plaintiff that he would occupy the open space of the plaint schedule property. Then the plaintiff gave the complaint to the police. From the last two or three days, the defendant has started putting debris of his building into the open space of the plaint schedule property and thereby obstructing the way out to the back door of the plaint schedule property. The plaintiff objected to his attempted encroachment, but the defendant is unmindful of it and is proceeding on his illegal way. The defendant is thus invading and threatening 6 further to invade the plaintiff's right. The plaintiff and his ancestors have been in enjoyment of the plaint schedule property from the time immemorial. There are water drainage line in existence in the said space connecting from the main drainage and water line to the house of the plaintiff, beneath the surface in near vacant portion of the plaint schedule property. The door has been opened in the western side wall of the plaintiff's house to the above said vacant space through which the maid servant, scavengers have been getting access to the plaintiff's house. The possession of the plaintiff is continuous, uninterrupted and open and hostile to all persons. Hence, the plaintiff has perfected his title over the said space by doctrine of adverse possession. Hence, the plaintiff has filed the suit.
6. The defendant has resisted the suit by filing written statement contending that the plaintiff is not the exclusive owner of the alleged property and 7 hence the suit is bad for non-joinder of parties. The house of the plaintiff is measuring 15 feet east to west and 60 feet north to south remaining is the property of the defendant. The said vacant land is bounded on the east by the house of the plaintiff and others, on the west by galli which is renamed as 'Ramamandiram Road', on the south by the defendant's brother K.M.Krishna Setty's property and on the north by Ragimandi street, now called Akbar road. This vacant site was purchased by the defendant's great grand-father Kaveripatnam Krishna Setty under a sale deed dated 10.5.1857. Since then it is in the possession of his successors and now with the defendant. The Mysore City Municipality has issued an endorsement on 21.3.1990 to the defendant's grand father Kaveripatnam Subbaraya Setty to encroach the said area with a compound wall. This vacant site fell to the share of the defendant's father Kaveripatnam Muthyala Setty by virtue of a 8 partition deed dated 15.8.1921. The father of the defendant during his lifetime, when he was in a sound disposing state of mind and body has bequeathed the said site to the defendant by virtue of a will dated 26.3.1985. The defendant thus is in possession of the said property. The entire area had been leased to one Andalamma to run a fuel depot for the past 25 years or even more. The said Andalamma had encroached the area with bamboo fence, but in some places she has given way. To the south of this vacant site there is an open space encroached by a compound wall belonging to the defendant's brother K.M.Krishna Setty, where he is constructing two shop premises. He is dumping debris in the land belonging to the defendant with the permission of the defendant. The suit is an attempt to take possession of the vacant site which is behind the house of the plaintiff and which belongs to this defendant. This attempt is being made from time to time. The defendant's father Kaveripuram Muthyala 9 Setty had filed a suit in O.S.No.98/1940-41 on the file of the 1st Munsiff, Mysore against the plaintiff's grand- father, late Tunga Krishna Setty for a permanent injunction which was dismissed on 16.6.1944 and it has become final. Hence, the suit is barred by principles of resjudicata. The suit is also not maintainable without the relief of declaration of title to the property.
7. In the additional written statement, the defendant has contended that the suit schedule property is not the properly described by the plaintiff. In order to overcome resjudicata, the plaintiff has not given the actual measurements of the same and has deliberately included the open space in the rear portion of the plinth area measuring 15 ft. x 14 ft. which does not belongs to him. This property belongs to the defendant and hence, the plaintiff has no manner of right, title and interest over the same. 10
8. In further additional written statement, the defendant has contended that as per the admission of PW1 the disputed plaint schedule property is a vacant site situated behind the house of the plaintiff measuring east to west 25 feet and north to south 12¾ feet, this property is a part of the house bearing Municipal door No.1802/139 and 139-1. The entire site measures 15 x 60 feet. This vacant site was purchased by the defendant's great grand-father and since then it is in possession of his successors. This defendant shown ignorance regarding the existence of the water drainage line. Probably the said drainage and water pipe line may be in existence in 3 feet space left over by the plaintiff in his own property and this defendant is not concerned with the same. If the said drainage and water pipes existed from time immemorial, the same ought to have been mentioned in the previous suit. Now, the plaintiff is estopped from raising that point in the present suit. Thus it is 11 hit by constructive resjudicata. A door has been opened in the western wall of the plaintiff's house to the above said vacant space is denied by the defendant. There is main road-Ashoka Road, to which the plaintiff's house is facing. Hence, the members of the plaintiff's family, work maids and scavengers get access to the house from Ashoka Main Road. The plaintiff has not perfected his title over the said vacant space by doctrine of adverse possession. The plea is inconsistent and this itself is sufficient to prove that the plaintiff has not approached the Court with clean hands. Hence, he prays for dismissal of the suit.
9. On the basis of the above pleadings, the following issues and additional issues have been framed:-
1. Whether the plaintiff proves that he is in possession of the entire property described in the plaint schedule?12
2. Does he prove the alleged interference by the defendant?
3. Is this suit hit by the principles of resjudicata and estoppel?
4. Is the suit bad for non-joinder of necessary parties?
5. Is the plaintiff entitled for the relief of permanent injunction as sought for?
6. What decree or order?
Addl. issue no.1:
Whether the suit is not maintainable without the relief of declaration of title to the property?
(framed on 8.1.1993) Addl. issue no.1:
Whether the plaintiff proves that he has perfected his right over his schedule space by doctrine of adverse possession?
(framed on 30.9.1996)
10. During the pendency of the suit, the original plaintiff Sri.T.P.Krishnamurthy died and his wife and children have been brought on record and they continued the suit. They in support of their case have examined plaintiff No.2 as PW-1 and a witness 13 by name Mariyappa as PW-2 and they have produced 15 documents and got them marked as Ex.P-1 to P-
15. On the other hand, the defendant has examined himself as DW-1 and produced 18 documents and got them marked as Ex.D-1 to D-18. A Civil Engineer by name Yogesh Rao.D.V. came to be appointed as Court Commissioner to inspect and report about certain things and he was examined as CW-1 and documents produced through him were marked as Ex.C-1 to C-8.
11. The Trial Court upon considering the oral and documentary evidence on record has dismissed the suit. The plaintiff aggrieved by the said judgment and decree of the trial Court challenged the same in R.A.No.106/2001 before the Lower Appellate Court. The Lower Appellate Court allowed the appeal by setting aside the judgment and decree of the Trial Court and decreed the suit by granting permanent injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the 14 plaintiff over the suit property. It is against this judgment and decree of the Lower Appellate Court, the defendant has preferred this second appeal.
12. The plaintiff approached the Trial Court seeking relief of permanent injunction restraining the defendant from interfering with his peaceful possession and enjoyment of the suit schedule property on the basis of title and possession, which he has secured under a compromise decree, dated 17.12.1998 passed in FDP 18/1983. The vacant space measuring 12¾ X 14 feet situated towards west of item No.1 of the suit property is not the subject mater of the compromise decree. This portion of the property came to be included to the decree by virtue of an amendment to which the defendant is not a party.
13. It is the specific case of the defendant that as there was dispute between the father of the 15 defendant and grand-father of the plaintiff, his father had to file a suit in O.S.No.98/40-41, for the relief of permanent injunction restraining the defendant therein from interfering with the possession and enjoyment of the property measuring East to West-5 yards and North to South-20 yards i.e., 15x60 ft. That suit came to be decreed and grand-father of the plaintiff has been restrained from interfering with the possession and enjoyment of the property of the father of the defendant as per Ex.D-3. The plaintiff's grand-father having not challenged the said decree further, it has become final and it is in force. However, Govinda Pillai, the owner of the property bearing No.1572 situated to the East of the disputed property which is the subject matter of the present suit has filed a suit in O.S.812/1969 against the defendant for the relief of declaration that he has got the easementry right over the disputed property. That suit came to be decreed. The defendant aggrieved by 16 the said judgment and decree of the trial Court, challenged the same in R.A.No.40/1977 which also came to be dismissed and hence he preferred RSA 228/1982 before this Court wherein the judgments and decrees of the courts below were set aside holding that the said Govinda Pillai has no easementry right over the present suit schedule property.
14. It is not the case of the plaintiff that the defendant is trying to interfere with his possession and enjoyment in respect of item No.1 of the suit property measuring East to West 75 feet and North to South 12¾ feet. It is his specific case that item No.2 that is the vacant space measuring 12¾ X 14 feet situated behind the item No.1 is in his possession and the defendant is trying to interfere with his possession of item No.2 of the suit schedule property by dumping building materials. If the plaintiff has acquired title to item No.2 of the suit schedule property by virtue of preliminary and final decree passed in O.S.No.71/72, 17 there was no need for him to plead in the plaint stating that he has perfected his title in respect of item No.2 by adverse possession. However, the said question does not arise for consideration in a suit for bare injunction. But the fact remains that he claims to be in possession in respect of item No.2 of the suit property having perfected his title by adverse possession. If that is so, then it has not fallen to his share under the partition effected in FDP No.18/1983 by way of compromise.
15. The trial Court considering the said fact of the matter has rightly dismissed the suit of the plaintiff. The Lower Appellate Court wrongly relying upon a statement of DW-1 that he has leased his property measuring 15x60 feet in favour of Andalamma and she has been running a fuel depot and except that there is no vacant space, has committed an error in allowing the appeal by setting aside the judgment and decree of the trial Court and 18 decreeing the suit of the plaintiff by granting permanent injunction in a suit where the plaintiff himself has failed to prove his lawful possession over item No.2 of the suit property as on the date of suit. In fact, the suit of the plaintiff in respect of item No.1 suffers from want of cause of action as there is no pleading in the entire plaint that the defendant is trying to interfere with his possession and enjoyment in respect of of item No.1 of the suit property. However, the learned counsel for the defendant fairly submits that the defendant has no concern with the item No.1 of the suit property. The total measurement of the property of the defendant is 15x60 feet and suit schedule property is portion of it. One more important factor, which has been lost sight of by both the Courts below, is boundaries furnished by the plaintiff to item No.2 of the suit property, which is as follows:
East : By House of defendant and others West : Galli which is renamed as Ramamandiram Road South : Property of defendant's brother 19 K.M.Krishna Shetty North : Ragimandi street, now called Akbar Road
16. As per the boundaries, on the eastern side it is the property of defendant and others, on the western side, it was Galli which is renamed as Ramamandiram road, on the southern side it is the property of the brother of the defendant and northern side, it is Ragimandi Street now called Akbar road. If that is so, it cannot be said that there exists a property belonging to the plaintiff and he is in lawful possession of the same. The Lower Appellate Court has failed to consider this aspect of the matter.
17. In the cross examination, the plaintiff has not only admitted that item No.2 of the suit property is the part of the subject matter of the suit O.S.N.98/40-41 filed by the father of the defendant against the grand-father of the plaintiff, in which permanent injunction has been granted restraining 20 the grand-father of the plaintiff from interfering with the possession of the property of the father of the defendant and suit schedule property is a portion of the said property. If that is so, the contention of the plaintiff that he was in lawful possession of the item No.2 of the suit property cannot be accepted. If the Lower Appellate Court has carefully considered the said admission of the plaintiff, it would not have allowed the appeal and set aside the judgment and decree of the trial Court and decreed the suit in favour of the plaintiff restraining the defendant from interfering with his alleged peaceful possession and enjoyment of item No.2 of the suit property measuring East to West-12¾ feet and North to South-14 feet situated towards East of the property of the plaintiff.
18. The substantial question of law framed by this Court is answered accordingly. Hence, I pass following order:-
a) The second appeal is allowed.
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b) The judgment and decree of the Lower Appellate Court dated 22.8.2006 passed in R.A.106/2011 is set aside and the judgment and decree of the Trial Court is confirmed and consequently the suit of the plaintiff filed in O.S.No.621/1988 on the file of the II Addl. I Civil Judge (Jr.Dn.), Mysore is dismissed.
c) Parties to bear their own cost.
Sd/-
JUDGE VM/DM