Karnataka High Court
Sri. Annappa Prabhu vs Sri Sanjeeva Shetty on 18 April, 2023
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
R.F.A.No.913/2005 (DEC/INJ)
BETWEEN:
1. SRI.ANNAPPA PRABHU,
SON OF LATE NARASIMHA PRABHU,
AGED ABOUT 58 YEARS,
R/AT GURUPURA,
MULOOR VILLAGE,
MANGALORE TALUK - 575 001.
2. SRI.MANJUNATHA,
SON OF LATE NARASIMHA PRABHU,
AGED ABOUT 60 YEARS,
R/AT GURUPURA,
MULOOR VILLAGE,
MANGALORE TALUK - 575 001.
... APPELLANTS
(BY SRI. RAVISHANKAR, ADVOCATE)
AND:
SRI.SANJEEVA SHETTY,
SON OF LATE NARAYANA SHETTY,
AGED ABOUT 70 YEARS,
RESIDENT OF GURUPURA,
MULOOR VILLAGE,
MANGALORE TALUK - 575 001.
SINCE DEAD BY HIS LRs.,
1. SMT. HARINAKSHI,
AGED 78 YEARS,
W/O SRI.SANJEEVA SHETTY,
2
2. SRI.HARISH SHETTY,
AGED 58 YEARS,
S/O SRI.SANJEEVA SHETTY,
3. SRI.PRAKASH SHETTY,
AGED 53 YEARS
S/O SRI.SANJEEVA SHETTY,
4. SRI.RAJESH SHETTY,
S/O SRI.SANJEEVA SHETTY,
AGED 50 YEARS,
5. SMT.RAJASHREE,
D/O SRI.SANJEEVA SHETTY,
AGED 47 YEARS,
6. TEGASH SHETTY,
S/O SRI.SANJEEVA SHETTY,
AGED 39 YEARS,
ALL ARE R/AT DOOR No.5-98,
NEAR JANGAMA METE GURUPUR-574 145,
MANGALORE TALUK,
DAKSHINA KANNADA DISTRICT.
... RESPONDENTS
(BY SRI.S.VIVEK REDDY, SENIOR COUNSEL FOR
SRI.T.RAJARAM, ADVOCATE)
THIS APPEAL IS FILED UNDER SECTION 96 CPC,
AGAINST THE JUDGMENT AND DECREE DATED:15.09.2004
PASSED IN OS.No.271/2003 ON THE FILE OF THE PRL. CIVIL
JUDGE (SR.DN) & C.J.M., MANGALORE, PARTLY DECREEING
THE SUIT OF THE RESPONDENT HEREIN BY DECLARING HIM
AS THE ABSOLUTE OWNER OF THE PLAINT SCHEDULE
PROPERTY BY VIRTUE OF REGISTERED SALE DEED DATED:
01.03.1984.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 14.02.2023, COMING ON FOR
3
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
1. Annappa Prabhu and his brother Manjunatha, the defendants are in appeal.
2. Sanjeeva Shetty instituted a suit seeking, initially, a decree of injunction to restrain Annappa Prabhu and his brother from digging any portion of the land bearing R.S. No.25/B-3A measuring 10 cents with a view to put up any permanent structure as additional rooms to the existing residential building under their present occupation or from trespassing in any manner to the peaceful possession and enjoyment of the property by Sanjeeva Shetty.
3. It was his case that the suit property was acquired by him under the registered sale deed dated 01.03.1984 from Smt.K.Umavati and ever since he was in possession. Along with the plaint, he also produced a rough sketch and stated that as per this sketch, there 4 was an old building in the schedule property which belonged to him and on the western corner of his property, he was running a hotel along with his son-in- law and in the eastern corner of the suit property, Annappa Prabhu and Manjunatha were residing in the house bearing door No.5-99 for the past few years. He stated that he had permitted them to reside in the said building which had been shown as 'RH' in the rough sketch. He stated that he had permitted them to occupy the said property for a temporary period and they were thus in permissive possession and possessed no right whatsoever over the suit property.
4. It was stated that the hotel, being run by him and his son-in-law, had been shown as 'H' in the rough sketch and in between the hotel and the residential house where Annapppa Prabhu and Manjunatha were residing, there existed a textile shop which had been shown as 'TS' in the sketch.
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5. He stated that to the west of the suit property, the Mangalore-Karkala Main Road was situated, and he had sold 2 cents of the land to his son-in-law Chandrahasa i.e., the portion marked as 'H' in the rough sketch.
6. He stated that there was a vacant land on the portion behind the textile shop, which had been shown as 'TS' in the annexed sketch. He stated that all the buildings situated in the suit property belonged to him. He stated that though he had been requesting Annappa Prabhu and Manjunatha to hand over possession of the residential house in their occupation, they did not handover the same and went on postponing the handing over of possession on one pretext or the other.
7. He stated that all of a sudden, they had begun to dig a portion of the vacant portion behind the textile shop with a view to erect a permanent structure and they were essentially seeking to put up additional rooms. He stated that they had no right to put up any construction since they were only in permissive 6 occupation. He stated that since there was a serious attempt to put up the construction, he had been constrained to file the suit.
8. It may be pertinent to state here that subsequently Sanjeeva Shetty sought for a declaration that he was the absolute owner in possession of the property bearing R.S. No.25/B3-A measuring 10 cents, which he had purchased under the Sale Deed dated 01.03.1984, including the buildings that were situated thereon.
9. Annappa Prabhu and Manjunatha Prabhu entered appearance and filed their written statement and contested the suit. They denied all the assertions of Sanjeva Shetty.
10. They contended that there was a road which ran from South to North which was called as Mangalore- Moodbidiri road. From this road, they stated that there was one more public road that branched off towards the East, which was called the School Road. They stated 7 that abutting this Road, the disputed property was situated and abutting the Road, there were three structures i.e., Hotel Ganesh Prasad, Central Cloth Stores building and a residential building. They admitted that Hotel Ganesh Prasad was situated in an extent of 2 cents of land but contended that the other 2 buildings belonged to them absolutely.
11. They stated that they had purchased 8 cents of land under a registered Sale Deed dated 11.01.1956 from Harinarayana Prabhu and his minor son Baburai Prabhu and in these 8 cents of land, the Central Cloth Stores building was situated. They also stated that their father Narasimha Prabhu had purchased 50 cents of land from one Deviamma under the registered Sale Deed 20.08.1936 and in these 50 cents of land, there was a residential building as well as vacant land. They stated that ever since the purchase in 1936, the property was in their possession and enjoyment.
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12. They stated that by virtue of the two Sale Deeds of the year 1950 and 1936, they owned a total extent of 58 cents. However, they admitted that on measurement, it was noticed that 58 cents of the property were not actually available for enjoyment. They stated that in the year 1984, a Sale Deed came into being in the name of Sanjeeva Shetty in which purchase of 12 cents of land had been shown and these 12 cents of land included the hotel building. They stated that 12 cents of land were not at all conveyed to Sanjeeva Shetty under the Sale Deed of the year 1984. They stated that as per the recitals at page No.4 of the Sale Deed dated 01.10.1984, only that extent of building covered under this sale deed i.e. 806 square feet had been conveyed and there was no reference to the house building in the sale deed and it was therefore clear that Sanjeeva Shetty had not at all purchased the house building which was in the occupation of Annappa Prabhu and Manjunatha. 9
13. They also stated that the vacant land which was situated behind the hotel and the Central Cloth Stores building, was surrounded by a compound wall and there also existed a drinking water well, which was also covered by a compound wall on all sides.
14. They also stated that this vacant land was in their possession and enjoyment, along with the enjoyment of Central Cloth Stores Building and the house building since the date they purchased them under the sale deeds of the year 1936 and 1956. They stated that Sanjeeva Shetty was never in possession and enjoyment of an inch of land situated behind the hotel building.
15. They also stated that under the sale deed of the year 1956, the joint owners G.K.Narasimha Prabhu and G.Vasudeva Prabhu had purchased 8 cents of land comprising of the Central Cloth Stores building and subsequently, there were two release deeds dated 23.03.1990 and 29.10.1996 whereby the Central Cloth Stores Building was transferred in the name of 10 Manjunatha Prabhu, Annappa Prabhu and Ganesh Prabhu.
16. They stated that insofar as 50 cents of land, which has been purchased under the sale lead of the year 1936, there had been a release deed executed on 23.03.1990, by which Manjunatha Prabhu, Annappa Prabhu and Ganesh Prabhu had been conferred complete ownership rights.
17. It was also stated that in the 50 cents of property, there existed a big residential building measuring about 2000 square feet and behind it was the vacant land, in which there was a Hutty Kottige and a number of Coconut trees, Jack fruit trees, etc. They also contended that Sanjeeva Shetty had deliberately not produced the sale deed under which he had sold 2 cents of his property to his son-in-law Chandrahasa and as per the terms of this sale deed dated 01.08.1984, the western boundary had been shown as Grama Chavadi and on the eastern portion, the property of their father--Narasimha 11 Prabhu was situated. It was also stated that to the north, lay the road and on the South, was once again the property of their father--Narasimha Prabhu. They, thus, stated that as per the boundaries, Sanjeeva Shetty did not own or possess even an inch of space on the southern and eastern side of the hotel building and what he had purchased under the 1984 sale deed was only the hotel building and nothing more. They also stated that the Central Cloth Stores Building had been assigned Door No.5-24A and the residential house was also assigned Door No.5-24 and as per the records maintained by the Gurupura Gram Panchayat, the ownership of these two properties from 1968 was always in their name.
18. It was also stated that had Sanjeeva Shetty being the owner, permitted them to occupy the house, the Panchayat records would have revealed this fact. But, as a matter of fact, the house bearing D.No.5-24 stood in their name and was thus obvious that Sanjeeva Shetty 12 did not own the house in which they were in possession. He therefore sought for dismissal of the suit.
19. The Trial Court, initially, framed four issues and after the amendment to the plaint, went on to frame twelve more issues.
20. Sanjeeva Shetty's son was examined as PW-1 and two other witnesses were also examined on his behalf. In all, twenty-four documents were admitted in his evidence and marked as exhibits.
21. Annappa Prabhu, the defendant No.1 examined himself as DW-1, apart from seven other witnesses. In all, eighty-one documents were admitted and marked in his evidence.
22. The Trial Court on a consideration of the pleadings and the evidence adduced before it, recorded a finding that Sanjeeva Shetty had a right over the vacant space situated behind the hotel, the Central Cloth Stores Building and the residential building, as pleaded by him 13 in the plaint. It also held that he had established that he was the owner of the said property and was entitled for a declaration.
23. The Trial Court held that defendants had been unable to prove that the boundaries of the property mentioned in the sale deed dated 01.03.1984 was in respect of only 2 cents and not 12 cents.
24. The Trial court also held that Central Cloth Stores Building was not situated in the property which was the subject matter of the sale deed Ex. D-11. It also held that Annappa Prabhu and Manjunatha had failed to prove that the house under their occupation belonged to them and had been purchased under Ex. D-10 / Sale Deed.
25. The Trial Court however came to the conclusion that the plaintiff had not been able to establish his possession and it was in fact admitted by him that Annappa Prabhu and Manjunatha were in possession and therefore the prayer for injunction could not be granted. 14 It however came to the conclusion that Sanjeeva Shetty was entitled to be declared as the owners of the suit property by virtue of the registered sale deed dated 01.03.1984 executed by K.Umavati in his favour.
26. The Trial Court accordingly decreed the suit in part and held that Sanjeeva Shetty had proved his title over the suit property, but it proceeded to dismiss the suit insofar as it related to the prayer for injunction.
27. Learned counsel for Annappa Prabhu and Manjunatha-the defendants contented that the Trial Court had seriously erred in decreeing the suit.
28. It may be pertinent to state here that after the denial of the prayer for injunction, Sanjeeva Shetty had instituted a suit in O.S. No.341 by 2005 seeking for mandatory injunction to direct Annappa Prabhu and his brother Manjunatha to quit and surrender vacant possession of the suit property and also to grant mesne profits.
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29. After contest, the Trial Court by its judgment dated 26.11.2015 has decreed the suit filed by Sanjeeva Shetty and has directed Annappa Prabhu and Manjunatha to surrender the vacant possession and it has also directed the mesne profits at the rate of Rs.500/- per day to be paid to Sanjeeva Shetty.
30. It is stated at the Bar that an appeal has been preferred against this decree and the same is pending adjudication.
31. It is also stated at the Bar that Ganesh Prabhu, son of late Vittal Prabhu had also instituted a suit in O.S. No.72 of 2011 against Manjunatha Prabhu, Annappa Prabhu and Sanjeeva Shetty, seeking for a declaration and cancellation of the decree passed in the present suit (O.S. No.271 of 2003) and also for partition and grant of 1/3rd share in the same to Ganesh Prabhu and the said suit in O.S. No.72 of 2011, after trial, has been dismissed on 28.02.2017.
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32. The learned counsel for the defendants/appellant contended that the Trial Court had seriously erred in decreeing the suit. He stated that the Trial Court could not have cast the burden on defendants to prove that the boundaries of the sale deed dated 01.03.1984 would prevail over the area mentioned in the sale deed. He also stated that the suit was not maintainable since Sanjeeva Shetty was out of possession and he could not have filed the suit for a declaration and for an injunction. He stated that a mere suit for declaration was not maintainable, and the suit was therefore not maintainable. It was also contended that the boundaries had been incorrectly stated and therefore the suit could not have been decreed. It was also contended that the identity of the suit property was in dispute and therefore it was essential that a Commissioner ought to have been appointed.
33. The learned counsel also submitted that the original sale deed of the year 1925 under which the suit property 17 was alleged to have been purchased by Muthayya Shetty had not been produced and no foundation has been laid for the production of a certified copy. It was also stated that neither in this sale deed of the year 1925 nor in the Will executed by Muthayya Shetty in favour of K.Umavathi, the boundaries had been mentioned and therefore those documents did not in anyway establish the title of Sanjeeva Shetty over the suit property. The learned counsel stated that the suit was bad for non- joinder of Ganesha Prabhu and therefore, the suit was liable to be dismissed.
34. Learned Senior counsel appearing for Sanjeeva Shetty--the plaintiff contended that there were no infirmities in the judgment and decree passed by the Trial Court. He contended that the Trial Court on a meticulous analysis of the evidence had come to the conclusion that the location of the 12 cents which had been purchased by Sanjeeva Shetty was not in serious dispute. He also contended that the Trial Court had 18 noticed that the flow of title in respect of this 12 cents was clear right from 1925 and this 12 cents was situated on the western side of Sy.No.25/B3 and since this location was admitted by Annappa Prabhu and Manjunatha, the Trial Court was justified in coming to the conclusion that Sanjeeva Shetty had established that he owned 12 cents of land abutting the Mangalore- Karkala Highway.
35. He also contended that the Trial Court had noticed that though Annappa Prabhu and Manjunatha contended that they owned 58 cents of land, they had not even been able to establish the boundaries of this 58 cents. Further, since they admitted that 58 cents that they had claimed to have purchased was not actually available, their assertion that they owned the property on which the Central Cloth Stores and the residential building was situated cannot be accepted.
36. Learned Senior Counsel also highlighted the fact that in the sale deeds relied upon by Annapppa Prabhu 19 and Manjunatha i.e., Exs.D-10 and 11, there had been no mention at all about the existence of the Central Cloth Stores Building and he lastly submitted that under the sale deed relied upon by them, the middle portion of Sy.No.25/B-3 had been purchased and therefore, they could not claim any rights over the lands which were situated on the western side. He submitted that even according to the sale deed relied upon by the defendants, the western boundary had been shown as the property of Mutthayya Shetty i.e., the father of Sanjeeva Shetty's vendor. He, therefore, submitted that the Trial Court was justified in decreeing the suit.
37. In the light of the arguments advanced, the points that arise for consideration in this appeal are:
(I) Whether Sanjeeva Shetty had established that he had purchased 12 cents of land bearing Sy.No.25/B-3A, which was abutting Mangalore-Karkala Road?
and 20 (II) Whether he had also established that in this 12 cents of land, the Hotel Ganesh Prasad, Central Cloth Stores and the residential buildings were situated? and (III) Whether after the sale of 2 cents in favour of his son-in-law wherein the hotel was situate, he had retained 10 cents?
38. From the pleadings itself, it is clear that the parties to the suit are claiming title over their respective portions under the registered seeds. In the light of the fact that all of them are claiming title through registered sale deeds and the entire land forms a part of Sy.No.25/B3, the oral evidence would really pale into insignificance. Thus, in order to ascertain the rights of both the parties, it will be necessary to analyse the title deeds that both the parties have produced and relied upon to determine their respective titles. 21
39. In this suit, Sanjeeva Shetty claims that 12 cents of land were sold by Kogga @ Narasimha Prabhuand G.Ganapathi Prabhu under the registered Sale Deed dated 14.08.1925 to one Muthayya Shetty vide Ex. P-2.
40. He also contends that Muthayya Shetty bequeathed the property that he had purchased under this 1925 sale lead in favour of his daughter K.Umavati under the registered Will dated 02.12.1955(Ex.P-20).
41. He lastly submits that K.Umavati conveyed this property that she had acquired under the bequest to him under the sale deed dated 01.03.1984 (Ex. P-19).
42. The sale deed dated 14.08.1925 states that the land in Sy.No.25/3 totally measured 7 acres 10 cents and the western portion measuring 12 cents, in which a shop was situated, was being conveyed to Mutthayya Shetty. This 97-year-old document, thus, indicates that the Western side of Sy.No.25/3 measuring 12 cents, which was belonging to Gurupura Mutt and which was 22 being enjoyed by Kogga@ Narasimha Prabhu and G.Ganapati Prabhu, was being conveyed. Muthayya Shetty, who had purchased the property under Ex. P-2 vide sale deed dated 14.08.1925, bequeathed the property to his daughter K.Umavati under a registered Will dated 02.12.1955.
43. This Will indicates that the property that Muthayya Shetty had purchased on 14.08.1925 upon which he had constructed a new building with tile roofing along with the shop was being bequeathed to his daughter. Thus, the western portion of 12 cents that he had acquired in Sy.No.25/3 under the sale deed dated 14.08.1925 was bequeathed in its entirety to his daughter K.Umavati. These two documents, thus, establish that K.Umavati acquired 12 cents of land which was situated on the western portion of survey No.25/3.
44. In the written statement, Annappa Prabhu and Manjunatha stated as follows:
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"7. This defendant submits that there is a road which runs from South to North. It is called as Mangalore Moodbidri Road. From the said road there is one more public road that branches off and runs towards east. This is called school road. By the side of this road, the disputed property is situated. Touching the abutting the road there are 3 structure viz., Hotel Ganesh Prasad, Central Cloth Stores Building and a Residential building. Hotel Ganesh Prasad is situated in an extent of 2 cents of land. The other 2 buildings are absolutely belonging to this defendant. As per the terms of a registered sale deed dated 11-1-1956, property to the extent of 8 cents was purchased by one Harinarayana Prabhu and his minor son Baburai Prabhu. In the said 8 cents of land, Central Cloth Stores building is located. Again late Narasimha Prabhu had purchased 50 cents of land from one Smt.Deviamma as per the terms of a registered sale deed dated 20-8-1936. The said 50 cents of land consists of a residential house stated supra as well as vacant land situated behind it. Since 1936 the said property was in the possession 24 and enjoyment of late Narasimha Prabhu.
Any allegations made to the contra showing that plaintiff is in possessions and enjoyment of vacant land or the residential house are all false and hence the same are hereby denied."
45. From this averment in the written statement, it is clear that the location of these 12 cents was on the western side of Sy.No.25/3, which was the subject matter of dispute between the parties, was essentially admitted.
46. K.Umavathi sold this property that she had acquired under the bequest to Sanjeeva Shetty under the sale deed dated 01.03.1984 (Ex.P-19). The boundaries to the said sale deed reads as follows:
"D¹Û «ªÀgÀ ªÀÄAUÀ¼ÀÆgÀÄ vÁ®ÄÌ ¸À.r.UÉ ¸ÉÃjzÀ ªÀÄAUÀ¼ÀÆgÀÄ vÁ®ÄÌ ªÀÄƼÀÆgÀÄ UÁæªÀÄzÀ ¨Á§ÄÛ-
¸À.£ÀA. ¸À.r.£ÀA. Q¸ÀA «¹ÛÃtð
J-¸É.
25/3 3A1 ¨sÁUÉÊvÀÄ 0-12
ªÀÄÆgÀÄ CA±À
25
EzÀgÀ UÀr:
¥ÀƪÀð- EzÉà ¸À.r.AiÀÄ°è £ÀjìAºÀ ¥Àæ¨sÀÄ ¸ÀܼÀ
¥À²ÑªÀÄ- UÁæªÀÄ eÁªÀr
GvÀÛgÀ- AiÀĸï. AiÀÄeÉ. gÉÆÃqÀÄ
zÀQët- EzÉà ¸À.r.AiÀÄ°è £ÀjìAºÀ ¥Àæ¨sÀÄUÀ¼À ¸ÀܼÀ
F D¹Û ªÀ EzÀgÀ°ègÀĪÀ PÀmÉÆÖÃt ªÀ EzÀPÉÌ ªÀ¦àzÀ ªÀÄƪÀÄÆ®Ä zÁj ºÀPÀÄÌ ªÀÄÄAvÁzÀ ¸ÀªÁð¢."
47. As could be seen from this sale deed, the western portion of Sy.No.25/B3A1, measuring 12 cents was sold by K.Umavati in favour of Sanjeeva Shetty. The boundaries indicate that to the east of these 12 cents was situated the property of Narasimha Prabhu and to the West was Grama Chavadi. The north of this property was the SH Road, and the South of the property was once again the property of Narsimha Prabhu and in these 12 cents of land, there existed a structure measuring 806 square feet, which was about 60 years old.
48. As already narrated above, in the sale deed of Muthayya Shetty itself, the existence of a shop was indicated. Further, in the bequest made by him, it is also stated that he had constructed a new structure and there 26 existed a shop in those 12 cents of land. These registered documents spanning from 1925 to 1984, thus, clearly record the fact that 12 cents of land were purchased and in these 12 cents of land, there existed a shop and structure. It can also be gathered from these sale deeds that this property is situated abutting the S-H road and Grama Chavadi and as admitted by the defendants themselves, there is the Mangalore- Moodabidri (Karkala)Highway Road, running on the western side. It is thus clear that Sanjeeva Shetty acquired 12 cents of land which was situated on the western portion of Sy.No.25/3 and abutting the Mangalore-Moddabidri Road.
49. The Trial Court, has correctly come to the conclusion that this location of 12 cents purchased by Sanjeeva Shetty, was not in serious dispute and the flow of title right from 1925 also indicated that these 12 cents was situated on the western portion of Sy.No.25/B3. 27
50. As far as the title of Annappa Prabhu and Manjunatha over their property, they rely upon two sale deeds. The first sale deed is dated 28.03.1936 (Ex.D-10) executed by Deviyamma in favour of Narasimha Prabhu--father of the defendant, under which a total extent of 15 cents was conveyed. The sale deed dated 28.03.1936 contains the following boundaries:
"ªÁ¹Û «ªÀgÀ ªÀÄAUÀ¼ÀÆgÀÄ ¸À.r. ªÀÄAUÀ¼Æ À gÀÄ vÁ®ÆèPÄÀ ªÀÄļÀÆgÀÄ UÁæªÀÄzÀ ¸ÀªÉð £ÀA§æ 25/3 gÀ ¥ÉÊQ ªÀÄzsåÀ CA±ÀªÁzÀgÄÀ ªÀÄÆgÀÄ 50 ¸ÉAlì «¹ÛÃtðzÀ¸Á°AiÀiÁ£À ªÀgÄÀ µÀ 1 gÀ gÀÆ¥ÉÊ 2-0-0gÀ ¥ÀæPÁgÀ UÀÄgÀÄ¥ÀÆgÀ dAUÀªÄÀ ªÀÄoÀPÌÉ ªÀ¼À wêÉð vÉvÀÄÛ §gÀĪÀ ¨ÁUÉÊvÀÄ »vÀÄè EzÀgÀ°ègÄÀ ªÀ ºÀÄ®Äè bÁªÀt vÀvÛÀ PÉÆÃuÉ ªÀÄ£É 1 §ZÀÑ®Ä PÉÆnÖUÉ 1 ZÁA© 1 vÉÛAUÀÄ vÀAUÀÄ ºÀ®Äì ªÀUÊÉ gÉ AiÀįÁè ªÀÄgÀUÀ¼ÀÄ ªÀUÉÊgÉ PÀÆrgÀĪÀ ¸ÀªÁð¢.
EzÀgÀr ªÀÄÆqÀÄ: zÁ¸À £ÀA«ÄÛ »vÀÄè, vÉAPÀÄ: gÀAUÀ¥æ¨À ÄÀs »vÀÄè, ¥ÀqÀÄ ¸ÀPÁðj ¸ÀܼÀ, §qÀUÄÀ gÁdªÀiÁUÀð. F ªÉÄÃgÉUÉ DVgÀÄvÀÛzÉ."
51. As could be seen from the above schedule, the northern portion is indicated as Raja Marga (Royal Way) and the southern portion is shown as Ranga Prabhu Hitlu (Backyard), the eastern portion is shown as Dasa Namti 28 Hitlu (Backyard) and the western portion, which would be relevant, indicates that it was a Government land.
52. Even more importantly, what is to be noticed in the schedule is that this passage of 50 cents of land is situated in the middle of Sy.No.25/3. This indicates that in the total extent of 7 acres 01 guntas, these 50 cents of land is situated in the middle and thereby, it is clear that it is not on the western portion of Sy.No.25/3. This thereby indicates there is no question of any overlap of the lands purchased by Muthaya Shetty and the property purchased by Narasimha Prabhu, the father of Annappa Prabhu and Manjunath.
53. The second sale deed which has been relied upon by Annappa Prabhu and Manjunatha is the sale deed dated 11.01.1956 (Ex. D-11) under which they have purchased an additional extent of 8 cents abutting the 50 cents that they purchased in the year 1936. The schedule to this sale deed reads as follows: 29
" ¤ªÀÄUÉ PÀæ¬Ä¹zÀ ¹ÛgÀ ¸ÉÆvÀÄÛ vÀ¦ìïï zÀQët PÀ£ÀqÁ jf¸ÉÖçñÀ£ï ªÀÄAUÀ¼Æ À gÀÄ ¸À¨ï r¹ÖçPïÖ ªÀÄAUÀ¼ÀÆgÀÄ vÁ®ÆPÀÄ ªÀÄļÀÆgÀÄ UÁæªÄÀ zÀ ¸ÀªÉð £ÀA§æ 25-©3 ¨ÁUÉÊvÀÄ ¸ÀÛ¼ÀzÀ ¥ÉÊQ zÀQët ªÀÄzÀå CAvÀ ¸ÉAlì 8 (JAlÄ) «¹ÛÃtðzÀ UÀÄgÀÄ¥ÀÄgÀ dAUÀªÄÀ ªÀÄoÀPÌÉ ¸Á°AiÀiÁ£À ªÀgÄÀ ±À 1gÀ gÀÆ 1-0-0 ªÀÄÆ®UÉÃt vÉvÄÀ Û §gÀĪÀ ¸ÀÛ¼À ªÀÄvÀÄÛ EzÀgÀ°ègÄÀ ªÀ ºÉAZÀÄ ZÁªÀt vÀUÀÛ ¥ÉÆù G¥ÀàjUÉ EgÀĪÀ 3 CAUÀrUÀ½AzÀ PÀÆrgÀĪÀ PÀmÉÆÖÃt ªÀÄvÀÄÛ F PÀmÆ É ÖÃtPÉÌ §qÀUÄÀ ¢QÌ£À gÁdªÀiÁUÀðzÀ §¢UÉ ¬ÄgÀĪÀ CAvÀÛgÀ AiÀiÁ£É ºÉÆÃ¯ï ¸ÀªÄÉ ÃvÀ PÀÆrgÀĪÀ ¸ÀªÁð¢.
EzÀgÀr ¥ÀƪÀð ªÀÄvÀÄÛ zÀQët ¤ªÀÄä ªÀÄ£É »vÀÄè, ¥À²ÑªÀÄ PÀjAiÀÄAUÀ¼À ªÀÄÄvÀÛAiÀÄ ±Élæ CAUÀr PÀmÆ É ÖÃt, GvÀÛgÀ gÁdªÀiÁUÀð."
54. As could be noticed from this schedule also, these 8 cents is also situated in the middle of Sy.No.25/3 just as the 50 cents of land that had been purchased in 1936. It is also to be noticed that the 50 cents of land that had been purchased was lying to the east and to the south of the 8 cents of the land. This fundamentally indicates that the 58 cents of land was situate on the middle of Sy.No.25/3.
55. It has to be noticed here that in this sale deed, the western boundary is shown as Muthayya Shetty's land. There is an obvious contradiction, because in this sale 30 deed of the year 1936, the western portion was shown as the Government land and not as a private land. This becomes relevant because in the year 1956, 8 cents of land lying to the west of the 50 cents was sold by Harinayrayana Prabhu to the father of the defendants-- Narasimha Prabhu and his brother Vasudeva Prabhu. Since in the 1936 sale deed, the Western boundary to the 50 cents (lying in the middle of Sy.No.25/3) was stated to be Government land, it was obvious that this was not the land, which Hari Narayan, a private individual, the vendor of the 1956 sale deed conveyed to the father of the defendants.
56. If the 1936 sale deed indicated that the land lying to the west of 50 cents was Government land, obviously, Harinarayana Prabhu could not possess title over these 8 cents of land. Of course, if there was some evidence indicating that Harinarayana Prabhu had been conferred title over these 8 cents of land from the Government, the sale deed would have relevance. However, admittedly, 31 no such evidence is produced which indicates that Harinarayana Prabhu had acquired title over the land lying to the west of the 50 cents of land that had been purchased under the 1936 sale deed. In the light of this contradiction, the title and location of these 8 cents of land would be suspect.
57. It has to be noticed here that Manjunath Prabhu and his brother-Annappa Prabhu, admitted that under these two sale deeds of 1936 and 1956, they had purchased a total extent of 50 cents + 8 cents i.e., 58 cents in all. However, they admitted that, in their written statement filed on 19.11.2002, that as a matter of fact, 58 cents were not actually available for enjoyment. Thus, even according to the defendants, the extent of land measuring 58 cents that their father had purchased did not actually exist.
58. However, they produced an agreement of sale dated 26.10.2022 (Ex.D3) which was stated to have been executed by Shri Shri Shivaprakash Swamiji of Sri 32 Jangama Mutt, Gurupur, Mangalore Taluk, in respect of 58 cents of land in Sy. No.25/B-3. The schedule of this agreement also indicates that an extent of 50 cents + 8 cents in the middle portion of Sy.No.25/B-3 was agreed to be sold by this Swamiji. Even in this agreement of sale, the western boundary of 50 cents was once again shown as the Government land.
59. It has to be noticed here that this agreement of sale is dated 26.10.2002 i.e., after the suit has been filed on 07.10.2002 but before the written statement had been filed on 19.11.2002. Though in the written statement, it was conceded that 58 cents of land was not available, yet, Annappa Prabhu and Manjunath had entered into an agreement of sale agreeing to purchase 58 cents of land, which admittedly were not available on the spot. This thereby proves that documents were sought to be created to establish title over 58 cents, even when 5 cents were not available.
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60. In the agreement of sale, the boundaries to the 8 cents of land states that to the east and South was the house of Narasimha Prabhu. In the said agreement of sale, there is no mention of the existence of the Central Cloth Stores. However, on the western side, it is admitted that there existed the shop of K.Muthayya Shetty, though as a matter of fact, the property had been purchased by Sanjeev Shetty in the year 1984.
61. From the above, it is clear that though the defendants admitted that the 58 cents that their father did not exist, nevertheless, they entered into an agreement of sale agreeing to buy 58 cents from Gurupur Mutt, the original owner under whom all persons in Sy.No.25/3 were claiming title as Moolgenidar.
62. It may also be pertinent to state here that they also produced two sale deeds executed by the Swamiji of Gurupur Mutt, both dated 11.08.2003 pursuant to the agreement of sale dated 26.10.2002. Though the 34 agreement of sale was for an extent of 58 cents, the two sale deeds seek to convey only an extent of 8 cents and 22 cents i.e., a total of 30 cents.
63. Thus, as per these sale deeds, though they claim to have purchased 58 cents under the sale deeds of the year 1936 and 1956, they proceed to, by virtue of this sale deed executed by the Swamiji of Jangama Mutt, Gurupur, claim conveyance of title only in respect of 8 cents + 22 cents = 30 cents. In other words, by virtue of these sale deeds, they give up their claim of ownership over 58 cents and confined their title to only 30 cents. This, thus, leads to the inference that they admit that only about 30 cents of land were available, and they were claiming only 30 cents.
64. It is inconceivable that the defendants who were all along claiming that they had acquired 58 cents, would suddenly agree for conveyance of only 30 cents of land from the Swamiji. This would basically indicate and affirm their own admission that 58 cents of land did not 35 exist in Sy.No.25/B3 as contended by them, and which lay in the middle of Sy.No.25/B3. It is therefore clear that they were basically trying to acquire the land that existed on the western portion of Sy.No.25/B3 by virtue of the sale deeds executed by the Swamiji.
65. These sale deeds which have been produced as Exhibits D-65 and 66, also have sketches annexed to them. These sketches indicate the total layout of Survey No.25/B3. It also indicates that the two portions that defendants were claiming were actually lying in the western portion of Sy.No.25/B3, contrary to their original assertion that that 58 cents were situated in the middle of Sy.No.25/B3.
66. Since, an attempt is being made to contend that the land that they had purchased, which was originally 58 cents and which were lying in the middle of Sy.No.25/B3, and which was subsequently reduced to 30 cents under the two sale deeds of 2003, was actually lying on the western portion of Sy.No.25/B3 abutting 36 Muthayya Shetty's property. It is thus clear that they were basically trying to translocate the land that they purchased in 1936 and 1956, which was in the middle of Sy No 25/B3, to the western portion of Sy No 25B/3 and thereby claiming title on the land which had been purchased by Sanjeeva Shetty, which was admittedly lying on the western portion of Sy No 25B/3.
67. As already stated above, in the sale deed of the year 1936, the western portion of 50 cents was shown as Government land and this western boundary cannot be converted to the property belonging to Harinaryana Prabhu as per the 1956 sale deed and the location of these 58 cents, cannot be shifted from the middle of Sy.No.25/B3 to the western side of Sy.No.25/B3.
68. In the light of the fact that the defendants admit that 58 cents were not actually available on the spot and when they also admitted that they could not indicate the boundary stones of their 58 cents of land, it is clear that 37 the defendants were fundamentally attempting to encroach upon the western portion of Sy.No.25/B3.
69. The Trial Court has correctly come to the conclusion in paragraph 17 of its judgment that Annappa Prabhu and Manjunatha were not able to indicate the boundaries of Sy.No.25/B3 and this coupled with the fact that 58 cents was not actually available, it was clear that their entire claim over this land that they had purchased under the 1936 and 1956 sale deeds, cannot be accepted.
70. As already indicated above, though they claim that they have purchased 58 cents, they ultimately put forth the plea that the Jangama Samsthan Mutt of Gurupur which owned the property had conveyed only 8 cents + 22 cents = 30 cents of land, notwithstanding the fact that an agreement of sale had been executed by the very same Mutt to an extent of 58 cents.
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71. This makes it crystal clear that the defendants are not exactly sure about either the location of their land or the extent of their land.
72. On the other hand, the plaintiff--Sanjeeva Shetty has clearly established that his predecessors had purchased 12 cents of land on the western portion of Sy.No.25/B3 and this was the subject matter of the bequest in favour of his vendor, which he has in turn purchased it under a sale deed of the year 1984. Since the location of the property purchased by Sanjeeva Shetty is basically admitted by the defendants and as noted by the Trial Court, the purchase of 12 cents is also admitted, it is clear that the plaintiff has been able to establish his title clearly and unambiguously.
73. It may also be pertinent to state here that the defence put forth initially was that Sanjeeva Shetty had purchased only 02 cents i.e., the hotel building and not 12 cents. This, by itself, indicates that an attempt was being made by the defendants to reduce the very extent 39 of land purchased by Sanjeeva Shetty by about 10 cents and this was obviously to ensure that the buildings that existed on these 10 cents of land could be claimed by them. Since the evidence on record clearly indicate that from the edge of the Highways and the Grama Chawadi, Sanjeeva Shetty had purchased 12 cents of land under the sale deed dated 01.03.1984, it will have to be held that he is the owner of this western portion of 12 cents.
74. Since, it is admitted that he has sold 02 cents out of these 12 cents in favour of his son-in-law Chandrahasa,he would have to be declared as the owner of the remaining 10 cents. The Trial Court has therefore correctly decreed the suit and there is no infirmity in the judgment of the Trial Court.
75. Learned Counsel for Annappa Prabhu and Manjunath relied upon the following judgments:
(I) Vishwanatha Achari vs. Kanakasabapathy, AIR 2005 SC 3109, for 40 the proposition that the issue was not framed properly, inasmuch as the burden was wrongly cast on the defendants. This argument cannot be accepted, since the issue was framed on the basis of the averments made in the written statement and since the averment was made in the written statement that only 2 cents had been purchased under the 1984 sale deed, the issue had rightly been framed.
(II) Sri Aralappa Vs. Sri Jagannath and
others, ILR 2007 KAR 339, for the
proposition that the suit for mere declaration was not maintainable, when the plaintiff was out of possession. This judgment cannot be applicable since the suit had initially been filed only for injunction to restrain the defendants from erecting a structure on the vacant land and subsequently in the light of 41 the denial of title, the prayer fro declaration was made. It is to be stated here that the prayer for injunction was to restrain the defendants from putting up a structure and hence the decision can be of no relevance. (III) Ambanna vs. Ghanteappa, AIR 1999 Karnataka 421 and Ernath vs. Digameer and another, 2000 (1) KLD 411, for the proposition that in the event of a conflict between the boundaries and the areas mentioned, boundaries had to prevail. This judgment can have no relevance to this case since it was the admitted case of the defendants that to the west of their property lie the property of the plaintiff and more importantly the extent purchased by them as stated in the deed was sought to be denied. In the light of the admitted fact that 58 cents as claimed by the defendants was not 42 available, this citation actually runs counter to the case set up by them.
(IV) Shreepat vs. Rajendra Prasad and others, JT 2000 (7) SC 379, for the proposition that whenever the identity of a property was under dispute, a commissioner was required to be appointed. In this case, the defendants admitted the exact location of the disputed property by explaining the same in detail in their written statement and that too with reference to the sketch produced by the plaint. Thus, the identity of the property was not really in dispute in the suit and hence the judgment would be of no avail.
(V) Kalidindi Venkata Subbaraju and others vs. Chintalapati Subbaraju and others, AIR 1968 SC 947 and Sri.Lakhi Baruah and others vs. Padma Kanta Kalita and others, AIR 1996 SC 1253 for 43 the proposition that there is not presumption regarding the genuineness of a certified copy of a 30-year-old document and that presumption under S. 90 of the Evidence Act would apply only for an original instrument. This argument is advances since the plaintiff had produced certified copies of the sale deed of 1925 and 1956. It is to be stated here that the documents of title of both parties were nor denied by each other and both of them basically set up title under registered documents and the documents were certified copies which were almost 80-90 years old and which were referred to in the later documents. In the light of this fact, the reliance placed on the said decisions will have no application at all.
76. It is therefore clear that none of the judgments relied upon by the learned Counsel appearing for 44 Annappa Prabhu and Manjunatha would support their case.
77. The points for consideration are answered accordingly.
78. The appeal fails and is accordingly dismissed.
Sd/-
JUDGE RK CT:SN