Karnataka High Court
Smt Annapurnamma vs Smt Sarojamma on 30 June, 2015
Equivalent citations: 2015 (4) AKR 505
Author: Anand Byrareddy
Bench: Anand Byrareddy
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®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JUNE, 2015
BEFORE:
THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY
REGULAR FIRST APPEAL No.1268 OF 2009
CONNECTED WITH
REGULAR FIRST APPEAL No.1269 OF 2009
BETWEEN:
Smt. Annapurnamma,
Aged about 68 years,
Daughter of Late Setru Sangappa,
Now residing at No.37,
MNK Rao Road,
Basavanagudi,
Bangalore - 560 004.
... APPELLANT
COMMON
(By Shri. B.N.Anantha Narayana, Advocate)
AND:
Smt. Sarojamma,
Aged about 71 years,
Wife of Late Nagarajappa,
No.188, Ramavilas Road,
Mysore 570005.
...RESPONDENT
COMMON
(By Shri. C.R.Gopalaswamy, Advocate )
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These Regular First Appeals filed under Section 96 of the
Code of Civil Procedure, 1908, against the judgment and decree
dated 06.10.2009 passed in O.S.No.4202/1988 on the file of the
VIII Additional City Civil Judge, Bangalore, decreeing the suit for
the declaration and permanent injunction.
These Regular First Appeals having been heard and reserved
on 17.6.2015 and coming on for pronouncement of Judgment this
day, the Court delivered the following:-
JUDGMENT
These appeals are by the defendant in the suit. The same are heard and disposed of by this common judgment .
2. It was the case of the plaintiff that house bearing no.12, M.N. Krishna Rao Road, Basavanagudi, Bangalore, originally belonged to one Settru Sangappa. The plaintiff and the defendant were his daughters. It transpires that Sangappa had gifted that portion of the property demarcated in plaint Schedule 'A' to the plaintiff and the portion demarcated in plaint Schedule 'B' in favour of the defendant.
The plaintiff is said to be a resident of Mysore city. It was alleged that taking advantage of her absence, the defendant had 3 attempted to encroach on a portion of Schedule 'A' property by putting up a wall and usurp a portion of the plaintiff's property . The plaintiff had thus filed the suit seeking the relief of declaration and permanent injunction, as the defendant is said to have subsequently completed the act of putting up the wall, the plaintiff had also sought for a mandatory injunction seeking the demolition and removal of the obstruction. It was claimed that by the act of the defendant the plaintiff was denied access to and the use of two lavatories and a jackfruit tree that were in the area illegally cordoned off by the erection of a wall, which was said to be five feet in height and a few feet in length.
The defendant had entered appearance and filed her written statement to contend that the claim of the plaintiff over the entire extent of Schedule 'A' property was denied. It was contended that the description was inaccurate and misleading. It was denied that there was any attempt at encroachment over the property of the plaintiff. The offending wall complained of was in existence for over 10 years prior to the suit and that it was built by the plaintiff 4 herself to demarcate the boundary of the respective properties of the plaintiff and the defendant. It was contended that the disputed area consisted of a garage, out house and a lavatory, which was in the possession of the defendant since inception on the same having been gifted by their father. And that even otherwise, she having possessed the said disputed area openly, continuously and to the knowledge of the plaintiff - adversely to her interest, had perfected her title to the same by adverse possession. The defendant had also filed a counter - claim seeking to lay claim over the disputed portion of the suit properties. The plaintiff had resisted the same by filing a written statement to the said counter claim.
On the basis of the above pleadings the court below had framed the following issues :
"1. Whether the plaintiff proves that she is in lawful possession of the suit property?
2. Whether the alleged interference is proved?
3. Whether the plaintiff proves that the defendant has after the temporary injunction order is granted has put up construction of the DE wall to a height of 5 feet?5
4. Whether the plaintiff is entitled to decree for Permanent Injunction sought for?
5. Whether the plaintiff is entitled for the decree for Mandatory Injunction sought for?
ADDITIONAL ISSUES:
1. Whether the plaintiff proves that she is the owner of the portion of premises marked the letters DEFGHKLILMD?
2. Whether the defendant proves that she is the absolute owner of the suit schedule property appended to the counter claim?
3. The plaintiff is entitled for Permanent Injunction against the defendant as prayed for?
4. Whether the defendant proves his plea for adverse possession?"
The court below had answered all the issues in the affirmative and additional issue no.3 in the affirmative and additional issues no.1,2, and 4 in the negative. It is that which is under challenge in these appeals.
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3. In appeal no. RFA 1268/2009, the defendant has challenged the decree in favour of the plaintiff. In RFA 1269/2009, the defendant has challenged the dismissal of her counter claim.
4. It is pointed out by the learned counsel for the appellant that a court commissioner had been appointed to inspect the disputed property and submit his report, according to which, there was no out-house to the West of the garage owned by the defendant and there was only one lavatory in the vacant space. Thus the very assertion of the plaintiff to the contrary was patently false and mischievous. There was no property belonging to her to the West of the garage , belonging to the plaintiff.
It was also emphasized that the plaint did not significantly indicate the measurements of the disputed area. According to the vague description in the plaint, the disputed area consisted of a out house, a jackfruit tree and two lavatories. And that there was a four foot wide passage providing access to the said area from her main house. The allegation was that the defendant had built a wall across the four foot wide passage thus cutting off the plaintiff's access to 7 the disputed area - it is contended, that if this were so, it was incumbent on the plaintiff to have sought for recovery of possession of the property without which the suit was not maintainable.
It is contended that the defendant had produced a sketch, marked in evidence as Exhibit D-6, which was consistent with the sketch produced by the Court Commissioner, but the court below had unfairly negated it. Further, the trial court had also discarded the two sanctioned plans obtained by the defendant from the Corporation of the City of Bangalore, in respect of construction put up in her property indicating the measurements of the property, of the years 1974 and 1983, respectively, produced and marked in evidence as Exhibits D-1 and D-2, which clearly indicated the dispute area claimed by the plaintiff as part of the defendant's property. The same was also borne out by the City Survey records indicating the topography and the measurements of the property, as per Exhibits D-4 and D-5.
The learned counsel would point out other errors committed by the lower court, in its reasoning , while reiterating the contention 8 that the court below had also overlooked the plea of adverse possession raised by the defendant in the alternative, and seeks that the judgment of the court below be set aside, to dismiss the suit and allow the counter -claim.
5. The counsel for the respondent on the other hand seeks to justify the judgment of the trial court.
6. At the outset, it is to be noticed that the defendant has, in her counter claim, asserted as follows :
"D. The plaintiff has no right, title and interest with respect to counter claim schedule property and in the event she had, the same has been lost as this defendant has perfected the right title and interest with respect to the counter claim scheduled property by adverse possession and by prescription. At no point of time from the past 30 years the rights of the defendant with respect to the above property has been objected or interfered with."
The trial court had framed an additional issue no.4 on the basis of the above pleading. In arriving at a finding that the 9 defendant had failed to establish the necessary animus in seeking to claim that she had perfected her title by adverse possession. The trial court has not however, found the inconsistent pleading to be amiss. This court on the other hand finds that this stance of the defendant was fatal to the case of the defendant, apart from the other reasons on which the suit has been decreed.
Under certain conditions a plaintiff may "rely upon several different rights although they may be inconsistent" (per Brett LJ, in Phillips v. P, 1878 , 4 QBD 127, 134)... "and a defendant also may raise by his defence without leave as many distinct and separate, and therefore , inconsistent defences as he may think proper. If alternate cases are alleged , the facts ought not to be mixed up, leaving the opponent to pick out the facts applicable to each case; but facts ought to be distinctly stated, so as to indicate on what facts is each alternative relief founded" (per Thfsieger, LJ, in Berdon v. Greenwood, 1878, 3 Ex D 351, 355). The rule is no different in India, see Order VII rule 8 and Order VIII Rule 7 of the Code of Civil Procedure, 1908, which insist that grounds of alternative claims 10 are to be stated separately. It must be shown that each of the inconsistent reliefs alternatively claimed is maintainable. However, inconsistent pleas which are mutually destructive of each other- cannot be permitted to be raised. (See: Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jadoo , ( 2009) 5 SCC
713).
In this context, the plea of adverse possession canvassed by the defendant, which is a ground raised in these appeals too, cannot be reconciled with her primary plea of absolute ownership. By raising a plea of adverse possession , she is deemed to have admitted that the plaintiff was indeed the owner of the property. The tenor of the alternative plea of adverse possession by the defendant, is nebulous. For the defendant to state thus: "The Plaintiff has no right, title and interest with respect to counter claim schedule property and in the event she had .........", would mean that the absolute ownership claimed by the defendant was in doubt and uncertain and therefore a self destructive plea. In the result the 11 defendant would be unable to surmount this inconsistency. Hence, the appeals are rejected on this one ground alone.
Sd/-
JUDGE nv*