Karnataka High Court
Dr.Ramdev S/O B S Shankaregowda vs The Commissioner Bangalore ... on 22 April, 2014
Author: B.S.Patil
Bench: B.S.Patil
RFA 1204/2002
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22ND DAY OF APRIL, 2014
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
R.F.A.No.1204/2002
BETWEEN:
Dr. Ramdev,
S/o B.S.Shankaregowda,
Aged about 57 years,
Ulsoor Clinic,
'G' Street, Ulsoor,
Bangalore - 560 020. ... APPELLANT
(By Sri G.Balakrishna Shastry, Adv.)
AND:
1. The Commissioner,
Bangalore Development Authority,
Kumara Park West,
Bangalore - 560 020.
2. Sri C.T.Ramachandra,
Major,
Retd. Executive Engineer,
B.D.A.,
R/a. 6th Main, HAL II Stage,
(Next to Ganesh Temple),
Indiranagar,
Bangalore. ... RESPONDENTS
(By Sri I.G.Gachchinamath, Adv. for R-1;
Sri P.D.Surana, Adv. for R-2)
This Regular First Appeal is filed under Order XLI Rule 1
r/w Section 96 of CPC against the judgment and decree dated
12.08.2002 passed in O.S.No.5739/1989 on the file of the XVI
RFA 1204/2002
2
Addl. City Civil & Sessions Judge, Bangalore City, partly
decreeing the suit for declaration and permanent injunction.
This appeal having been heard and reserved for judgment
on 29.01.2014, coming on for 'Pronouncement of Judgment',
this day, the Court delivered the following:
JUDGMENT
1. This Regular First Appeal is filed by the plaintiff - appellant herein against the defendants - respondents challenging the judgment and decree dated 12.08.2002 passed in O.S.No.5739/1989 by the learned XVI Additional City Civil & Sessions Judge, Bangalore, thereby partly decreeing the suit, but dismissing the same as regards the rest.
2. Plaintiff filed the suit seeking declaration of his title and for permanent injunction in respect of the suit schedule property contending inter alia that though the Sale Deed under which he purchased the property on 13.01.1981 from one C.G.Rayan described the measurement as 35' East to West and 60' North to South, as per the boundary mentioned in the registered Sale Deed, the schedule property, in fact, measured East to West on the Northern side 42' and East to West on the Southern side 52', whereas North to South, it measured 60'. According to the plaintiff, in all the documents of title with regard to the schedule property, the Eastern boundary, was RFA 1204/2002 3 shown as CITB Road but the registered document incorrectly depicted the measurement towards East to West as 35'. If there was any discrepancy between the measurement and the boundaries, the boundaries shall prevail over the measurement.
3. As per the plaint averments, boundaries of the suit property set out are East by road, West by site No.3, North by 20 feet road, South by Doddamuniyappa's property. The plaintiff asserted that he had put up a residential house and a small temple in the suit property, wherein the idol of a deity was installed. He further urged that the suit property bears old katha No.351-A and new No.405 of Motappanapalya, Krishnarajapuram Hobli, Bangalore South Taluk and it was previously part of Sy. No.8/2 and had been assigned site No.2. The temple constructed, according to the plaintiff, was to the eastern side of his residential house over which defendants 1 & 2 had no title, right or interest. Plaintiff claimed to have put up compound to the entire schedule property as per the boundaries. He urged that the BDA has not acquired the said property by issuing any Preliminary or Final Notification and hence, it had no right over the same. However, BDA - the 1st defendant was illegally trying to dispossess the plaintiff alleging RFA 1204/2002 4 that the suit property had been acquired. This made the plaintiff to issue a notice to the 1st defendant on 18.08.1989 notifying them not to indulge in illegal and unlawful interference.
4. Plaintiff further urged that the BDA had acquired entire Sy. No.7 of Thippasandra Village possession whereof had been taken and sites had been formed. No portion of the said Sy.Nos.7 and 7/1 was left unacquired and hence the 2nd defendant had no property owned or possessed by him in the said survey number. However, he was making false claim in respect of the schedule property contending that the temple was situated in Sy. No.7/1. It was urged that 2nd defendant, who was illegally trying to interfere with the enjoyment of suit property by the plaintiff, being a retired Engineer of the BDA, was wielding lot of influence and the 1st & 2nd defendants were hand in glow to dispossess the plaintiff from the schedule property. Hence, he was constrained to approach the Court seeking declaratory relief along with a decree of permanent injunction.
5. The 1st defendant-BDA filed its written statement stating that Sy. No.7/1 of Thippasandra had been acquired, wherein RFA 1204/2002 5 sites were formed and allotment was made in favour of members of general public. It further pointed out that a Court Commissioner had been appointed in O.S.No.3495/1985 to demarcate the boundary line between Sy. No.7/1 & 8/2. The Court Commissioner, ADLR, had measured the lands and demarcated the lines between the two survey numbers and in alignment of the boundary line, a retaining wall had been constructed by BDA on the western side of sites bearing Nos.3799 & 3800. They contended that the temple in question was constructed by the previous land owners of Sy. No.7/1. The BDA stated that it had issued preliminary Notification for acquisition of Sy. No.8/2 on 28.11.1959 and the final notification on 19.08.1964 and that no private layout had been approved in Sy. No.8/2. It has not stated whether the acquisition proceedings were finalized.
6. The 2nd defendant filed his written statement asserting that Sy. No.7/1 was under his ownership along with his brother T.Krishnamurthy. The BDA having acquired an extent of 1 acre 35 guntas of land in Sy. No.7/1 formed sites therein. Sy. No.8/2 of Thippasandra Village was situated towards the west of Sy. No.7/1 which belonged to one Ramaiah and his two RFA 1204/2002 6 brothers. A portion in Sy. No.8/2 lying to the West of Sy. No.7/1 was allotted to the share of Muniraju @ Doddamuniyappa, one of the brothers. After his death, his widow Akkayamma sold sites formed in Sy. No.8/2 to certain persons. To the south of Sy. No.8/2 & Sy. No.7/1, Sy. No.5 of Thippasandra is situated. The BDA has constructed a retaining wall along the boundary line of Sy. No.7/1. The BDA had formed sites bearing Site Nos. 3799 & 3800 in Sy. No.7/1, western boundary of the said sites is the western boundary of Sy. No.7/1. The retaining wall constructed by the BDA is along the boundary of these two sites. Towards the north of site No.3800, a portion of land comprised in Sy. No.7/1 has been left out from acquisition , wherein Lord Shiva Temple is located, which was constructed by the villagers of Motappanapalya by taking permission from the defendant and his brothers. Public at large were attending the Temple. The disputed plot of land lies at the junction of 30' & 60' road. There existed no road on the eastern boundary of Sy. No.8/2.
7. He further urged that site No.3799 formed in Sy. No.7/1 was allotted to one Rafiq Anwar by the BDA. Akkayamma to whom the plaintiff traces his title caused obstruction to Rafiq RFA 1204/2002 7 Anwar. This led to Rafiq Anwar filing suit O.S.No.3495/1985 against Akkayamma for permanent injunction and the said suit was decreed on 15.04.1989. In this suit, ADLR Bangalore was appointed as a Court Commissioner to prepare a sketch of Sy.Nos.7/1 & 8/2 and the report submitted by the Commissioner was accepted and acted upon in the said suit.
8. The 2nd defendant has urged in the written statement that the eastern boundary of Sy. No.8/2 was not road and the road formed by the BDA was in the middle of Sy. No.7/1 and on either side of the cross road connecting the 6th main road & 7th main road, large extent of land comprised in Sy. No.7/1 was located. The 2nd defendant asserted that he was in possession of the area covered under Shiva Temple and has been holding the same for the benefit of the public. He urged that CITB had formed a layout in Sy. No.7/1 of Thippasandra Village and a 30' road was formed in Sy. No.7/1. Towards the West of the 30 feet road, Sites bearing Nos.3799, 3801 & 3800 and also the property where the Temple was constructed were situated, which were all part of Sy. No.7/1.
9. Based on these, pleadings the Trial Court framed the following issues:
RFA 1204/20028
1) Whether the plaintiff proves his lawful possession of the suit property?
2) Whether the plaintiff proves issuance of notice under Section 64 of the BDA Act?
3) Whether plaintiff is entitled for permanent injunction sought for?
4) To what relief or order the parties are entitled to?
Additional Issues:
i) Whether the plaintiff has valued the suit property and paid the court fee as per the relief sought for?
ii) Whether the plaintiff has furnished proper
boundaries in respect of the suit schedule
property?
1a) Whether the plaintiff proves his alleged title to the suit schedule property as claimed by him?
2a) Whether the plaintiff is entitled to the relief of declaration as prayed for?
10. In support of his case, the plaintiff examined himself as P.W.1 and three more witnesses on his behalf as P.Ws.2 to 4. He got marked Exs.P1 to P24. No evidence was led in by the 1st defendant - BDA. Defendant No.2 examined himself as D.W.1 and got marked Exs.D1 to D39.
RFA 1204/20029
11. On consideration of the evidence on record and after hearing the parties, the Trial Court has recorded its findings holding that the plaintiff had admittedly not got his site measured from any technically qualified person. Therefore, he did not have any basis to say what was the actual measurement of his site towards East to West as claimed by him in the plaint. He has also not deposed in his evidence that he had personally measured the site with the help of the boundaries mentioned in the document of title. Even the document of title, namely Ex.P1
- Sale Deed did not mention the measurement as claimed by the plaintiff, but mentioned it as only 35' X 60'. Though the boundaries given in the Sale Deeds of the plaintiff and his predecessors in title were same, there was nothing to show on what basis the said boundaries had been given. The boundaries shown could be approximate also. Therefore, there was a duty cast on the plaintiff to show that he got measured the site in accordance with the boundaries and ascertained its actual measurement as claimed by him in the suit.
12. The Trial Court has further placed reliance on the sketch prepared by the Court Commissioner in O.S.No.3495/1985, who had shown the existence of Sy.Nos.7 & 8 and the RFA 1204/2002 10 demarcation of the two survey numbers. The Commissioner's report is marked as Ex.D21(a). Reliance is also placed on Ex.D18 produced by Defendant No.2 to come to the conclusion that preliminary and final notifications had been issued with respect to Sy. No.8/2 of Thippasandra Village with regard to the total extent of 1 acre 19 guntas and hence, the court could take judicial notice of the fact that the said land had been acquired. Reliance is also placed on Ex.D19 sketch issued by the BDA and Atlas marked as Ex.D22.
13. Referring to the decision in the case of NARASIMHA SHASTRY VS MANGESHA DEVARU - ILR 1988 (1) KAR 554 and the principle laid down to the effect that where the Sale Deed mentions the boundary specifically and clearly to identify the property, the actual extent of the land not being clear, the recitals as to boundary should prevail, the Trial Court has persuaded itself to hold that as there was no admission with regard to the boundaries of the suit property, the plaintiff had failed to establish the boundaries and therefore, because there was specific mention of the measurement of the sites in many registered documents, the plaintiff could not be permitted to claim more extent than what is specifically mentioned in the RFA 1204/2002 11 title deeds. However, in paragraph 26 of the judgment, the Trial Court records as under:
"The plaintiff has further averred in his plaint and evidence that the boundaries to the schedule property are to the east, there is a CITB road, to the west site No.3, north 20 ft. road and south Doddamuniyappa's property. Though the defendant has disputed the said boundary, but the records relied on by the plaintiff substantially speaks to the said boundaries. All the title deeds produced by the plaintiff refers to the said boundaries to the site No.2. There is no much serious dispute about the boundaries. The dispute is only with respect to the total measurement of the site No.2, where actually the disputed temple is situated and whom that area belongs to. I have already dealt in the above said paras in detail while discussing the issue No.1. Excluding the area where the temple is situated plaintiff is able to show his title and possession to an extent of 35 X 60' ft. site. Hence, for these reasons I answer Additional Issue No.ii in affirmative."
14. It is necessary to refer to additional Issue No.ii framed which reads as under:
"ii) Whether the plaintiff has furnished proper boundaries in respect of the suit schedule property?"RFA 1204/2002 12
Answer to this issue as referred to supra is that the plaintiff has proved that he has furnished proper boundaries for the suit schedule properties. Even with regard to proof of title by the plaintiff, the Trial Court finds that plaintiff has substantially proved his title to the suit property, but with respect to only 35' X 60' and not for the remaining portion. The Trial Court has answered all the other issues in favour of the plaintiff and as regards the title and possession over the suit property, it has answered in favour of the plaintiff to the extent of the measurement mentioned in the title deeds i.e. 35 ' East - West and 60' North - South. Thus, while decreeing the suit in respect of an extent of area measuring East - West 35' and North - South 60', the claim of the plaintiff for declaration of his title over the area wherein temple is situated has been dismissed. A decree of permanent injunction is granted restraining the defendants 1 & 2 from obstructing the plaintiff in the peaceful possession and enjoyment of the schedule property 'excluding the temple area and the temple'. Aggrieved by this judgment and decree, the present appeal is filed.
15. Sri Balakrishna Shastry, learned counsel for the appellant has urged the following contentions: RFA 1204/2002 13
(i) That right from 1974, when the suit property was sold by its original owner Smt.Akkayamma and her children in favour of Thyagaraja vide Ex.P6, the boundaries of the suit schedule site No.2 carved out in Sy. No.8/2 bearing H.A. Sanitary Board Khatha No.351-A, have been mentioned as CITB Road towards the East. Ex.P8 dated 23.10.1974 Sale Deed executed by Thyagaraja in favour of Dorairajan, also mentions the Eastern boundary as CITB Road. He has emphasized on Ex.P24, which is a sketch showing the boundaries of the property sold as per the registered Sale Deed dated 23.10.1974
- Ex.P8 disclosing that the property sold extended on the Eastern side up to the CITB Road and there was a road on the Northern side. He further points out that as per Ex.D28 -
Encumbrance Certificate, Dorairajan sold it to C.G.Rayan and from C.G.Rayan as per Ex.P1 - Sale Deed dated 09.10.1980, the plaintiff has purchased the same property, wherein also the Eastern boundary is shown as CITB Road. He, therefore, urges that at an undisputed point of time, the Eastern boundary of the suit property is shown as CITB Road and this boundary is the boundary in the suit schedule, therefore, it was not open to dispute these boundaries. Hence, on the principle that boundaries prevail over measurement, plaintiff is entitled for a RFA 1204/2002 14 declaration of his title in respect of the plaint schedule property. In this connection, he has placed reliance on the following judgments:
i) NARASIMHA SHASTRY VS MANGESHA DEVARU -
ILR 1988 (1) KAR 554;
ii) DHARMAKANNY NADAR SIVISESHAMUTHU & ORS.
VS MAHALINGAM NADAR GOPALAKRISHNA NADAR
& ORS. - AIR 1963 MADRAS 147;
iii) SUBRAMONIAN NAMBOORIPAD VS. CHEERAN
VARIAYATHU & ORS. - AIR 1950 TRAVENCORE -
COCHIN 19;
iv) SHEODHYAN SINGH & ORS. VS. MST.SANICHARA
KUER & ORS. - AIR 1963 SC 1879;
v) ALLA BASAVAPUNNAREDDY VS. KALAGA
KRISHNAYYA & OTHERS - AIR 1966 AP 260.
(ii) Referring to Ex.P16, Plaint in O.S.No.1421/1986 filed by the brother of defendant No.2 against defendant No.2 and his family members seeking partition, Sri Shastry points out that the suit schedule properties in the said suit are five sites formed in Sy. No.7/1 re-conveyed by the BDA in favour of owners of Sy. No.7/1 and if any portion of Sy. No.7/1 had remained unacquired, either the plaintiff or the defendants in the said suit could have referred to the said site, apart from claiming relief in respect thereof, particularly because according to the 2nd defendant the temple existed there since 30 years. RFA 1204/2002 15 Learned counsel draws the attention of the Court to the written statement filed by the 2nd defendant herein in O.S.No.1421/1986 wherein he has admitted that no portion of Sy. No.7/1 was left unacquired and nothing is stated regarding the existence of the temple. He, therefore, contends that this admission of defendant No.2 is sufficient to belie the defence taken by defendant No.2 and the assertion made by him laying claim over the temple and the appurtenant property.
(iii) Sri Shastry invites the attention of the Court to the evidence of D.W.1, wherein he has admitted in the cross- examination that he did not inform the Land Acquisition Officer about the existence of the temple in Sy. No.7/1. He also invites the attention of the Court to the written statement filed by the BDA admitting that entire area of Sy. No.7/1 was acquired. He points out that if any area was left out from acquisition in Sy. No.7/1, the sketch prepared by the BDA would have disclosed it and a new number could have been assigned to it.
(iv) He further contends that the Trial Court committed serious error in stating that suit is decreed 'excluding the area of temple' because there is no measurement of the area of temple.
RFA 1204/200216
(v) It is urged by him that the Trial Court could not have placed reliance on the report of the Court Commissioner who was appointed in another suit to which the plaintiff herein was not a party and the suit land was not the subject matter therein. He urges that Ex.D21 - report pertains to site No.3799 with which the plaintiff is not concerned. He has relied on the judgment in the case of VOKKALIGARA SANNAPPA VS VOKKALIGARA ANNAIAH - ILR 1995 KAR 3286 in this connection.
(vi) He has also relied on the judgment in the case of VIDHYADHAR VS MANKIKRAO & OTHER - AIR 1999 SC 1441 to contend that where defendant failed to lead evidence, the case set up by him has to be taken as false.
16. Learned counsel appearing for respondent No.2 Sri P.D.Surana has strongly supported the judgment and decree under challenge. He principally urges the following contentions:
(i) It is the obligation of the plaintiff to show that the area claimed by him was part of Sy. No.8/2 by proving the acquisition of title either by purchase or by inheritance or otherwise. The plaintiff has failed to establish the same.RFA 1204/2002 17
(ii) Plaintiff cannot establish his title over the suit property by showing or eliciting that Sy. No.7/1 was fully acquired and nothing remained after acquisition in Sy. No.7/1 because he has to establish that suit property was part of Sy.
No.8/2.
(iii) It is urged by him that an interim application seeking appointment of Court Commissioner was filed by the 2nd defendant in the suit to locate and measure the suit property, but the same was opposed by the plaintiff. An order dated 08.06.1992 was passed by the Trial Court. While rejecting the application, it has been held that already a Commissioner had been appointed in the previous suit and parties could rely upon the said report. This order binds the plaintiff as it is the result of the plaintiff's objection to the application filed by the defendant for appointment of Court commissioner. Hence, he contends that in this report of the ADLR/Court Commissioner the boundaries of Sy. No.7/1 and 8/2 are clearly demarcated as per which the temple property falls within Sy. No.7/1.
RFA 1204/200218
(iv) Referring to Ex.P11 - legal notice dated 18.08.1989 given by the plaintiff to the Commissioner, BDA, he points out that measurement of the property is shown there as 35' X 60' and not what is claimed in the suit.
(v) None of the vendors of the plaintiff being examined to show that they possessed larger area than what was disclosed in their Sale Deeds, the plaintiff has failed to prove his claim.
(vi) Evidence of D.W.1 was not challenged in the cross- examination and therefore defendants proved his case whereas the plaintiff has failed to establish his case.
(vii) Contending that in a suit for declaration of title, plaintiff has to show that his vendor had title, he has placed reliance on the judgment of the Apex Court in the case of CEMENT CORPN. OF INDIA LTD. VS PURYA & ORS - (2004) 8 SCC
270. As regards the effect of not cross-examining the witnesses, he relies on the judgment in the case of BOBY MATHEW VS STATE BY COD (HB) POLICE, BANGALORE - (2004)5 KAR.L.J. 415 to contend that it tantamounts to admitting the version of the witnesses. Reliance is also placed in this regard on the RFA 1204/2002 19 judgments in the case of SARWAN SINGH VS STATE OF PUNJAB
- 2003(1) SCC 240 and in the case of M/S. CHUNI LAL DWARKA NATH VS HARTFORD FIRE INSURANCE CO.LTD. & ANOTHER - AIR 1958 PUNJAB 440. He has also placed reliance on the judgment in the case of L.N.ASWATHAMA & ANOTHER VS P.PRAKASH - 2010(1) KCCR 113 to contend that the Trial Court judgment being a well reasoned judgment, the same cannot be upset in appeal.
17. Having regard to the contentions urged by the learned counsel for the parties, the points that arise for consideration in this appeal are:
(1) Whether plaintiff has proved his claim over the suit schedule property as per the boundaries mentioned in the Sale Deed - Ex.P1 dated 09.10.1980 and the sale deeds of his predecessors-in-title and that the actual extent mentioned in the registered sale deed was indeed less than the measurement actually found within the boundaries?
(2) Whether the evidence on record establishes that a portion of the land in Sy. No.7/1 remained unacquired and the temple in question was constructed on the said unacquired portion?
RFA 1204/200220 (3) Whether the findings of the Trial Court are illegal and perverse?
(4) What order?
18. Point Nos.1 to 3:- The contentious issue between the plaintiff and defendant No.2 boils down to the actual extent and measurement of the property purchased by the plaintiff under the Sale Deed - Ex.P1 and its boundaries. According to the plaintiff, the suit schedule property in his enjoyment comprised in Site No.2 extends up to the CITB Road on the eastern side and up to 20 ft. Village Road towards the northern side, bounded on the southern side by Doddamuniyappa's property and site No.3 towards West. The plaintiff claims to have constructed a house, a small temple which measures 10' X 10' and covered the entire area by compound wall. Whereas, the 2nd defendant contends that Sy. No.7/1 which was owned by him and his family members prior to acquisition extended beyond the 30 ft. CITB Road and the temple was part of his property, which was used by the villagers with his permission and the same was in his possession.
19. In order to show the boundaries of the suit schedule property, the plaintiff has produced Ex.P6 - Sale Deed dated RFA 1204/2002 21 13.03.1974 executed by the original owner Smt. Akkayamma and her children in favour of Thyagaraja. The description of the boundaries in the schedule given in Ex.P6 as corrected in the Rectification Deed - Ex.P7 is as under:
Site bearing No.2 formed in Sy. No.8/2 H.A. Sanitary Board khata No.351A situated in Motappanapalya, a hamlet of Thippasandra Village, Krishnarajapura Hobli, Bangalore South Taluk, measuring east to west 35' and north to south 60' and bounded as follows:
East : by CITB Road West : by Site No.3 North : by the New Road 20 ft. wide & South : by M.Doddamuniyappa @ M.Muniraju's portion
20. Ex.P8 is the Sale Deed executed by Thyagaraja in favour of Dorairajan in respect of the very Site No.2, where also the same boundaries are mentioned. A sketch showing the boundaries of the property sold by Thyagaraja to Dorairajan in Site No.2 is enclosed to this registered document. This document is part of the registered Sale Deed registered as Document No.6209 and it bears the seal and signature of the Sub-Registrar. A perusal of the said sketch shows the location RFA 1204/2002 22 of Site No.2 and the northern boundary is shown as 20 ft wide road and the eastern boundary is shown as a road and thereafter Trust Board Layout. The measurement of the property in these sale deeds is shown as East - West 35' and North - South 60'. This very property is sold by Dorairajan to C.G.Rayan vide registered Sale Deed dated 23.10.1974 as is evident from Ex.D28 - Encumbrance Certificate. From C.G.Rayan, the property is purchased by the plaintiff on 09.10.1980 vide Ex.P1, wherein also the same boundaries are mentioned. Particularly, the eastern boundary which is relevant for the present case is mentioned as CITB Road. Thus, the title deeds of the plaintiff clearly disclose the boundaries of the suit schedule property showing CITB Road towards the eastern side. Therefore, in order to establish that the plaintiff purchased the property comprised in specific boundaries, he has produced not only his own title deed, but also the title deed of Thayagraja, the 1st purchaser who purchased from the original owner Akkayamma and her children dating back to 13.03.1974. Consistent with this Sale Deed and the boundaries mentioned therein, in the latter Sale Deeds, same boundaries are mentioned. Plaintiff's sale deed is the fourth sale deed in succession. Ex.P24 is the sketch attached to the registered RFA 1204/2002 23 document dated 23.10.1974 bearing registered document No.6209 while registering the Sale Deed Ex.P8, wherein also the same boundaries are mentioned and the eastern boundary is mentioned as road. In the said sketch, Site No.2 is shown to extend on the northern side up to 20 ft. road.
21. Admittedly, the measurement shown in the registered document and the actual measurement of the property within the boundaries differ. The fact remains that the plaintiff has established the boundaries of the suit schedule property by producing his own title deed and also the title deeds of his vendor.
22. It is the defence of the 2nd defendant that in his property Sy. No.7/1, 30 ft. CITB Road was formed and a portion of his property in Sy. No.7/1 remained unacquired, and the said unacquired portion was located towards the west of 30 ft. road and it is in this portion he had allowed the public to construct a temple and worship it and therefore, the claim made by the plaintiff that his property extended upto 30 ft. road towards eastern side of his property was untenable. Hence, it becomes necessary to see the evidence that the 2nd defendant has produced in support of his assertion. He has strongly relied on RFA 1204/2002 24 the report of the Court Commissioner - Ex.D21(a). The Court Commissioner was appointed in O.S.No.3495/1985 in the suit filed by one Rafiq Anwar. Plaintiff is not a party to the said suit.
In the case of VOKKALIGARA SANNAPPA VS VOKKALIGARA ANNAIAH - ILR 1995 KAR 3286 this Court after referring to the provisions contained under Order XXVI Rule 10(2) of CPC and to the decision of the Division Bench of the Calcutta High Court in the case of SARAT CHANDRA RAKHIT VS SARALA BALA GHOSH - AIR 1928 CAL 63 has held in paragraph 11 as under:
"11. In the present case, the question to be considered is whether Ex.D5 which is the Commissioner's Report which had been filed in O.S.No.65/77 could be relied as piece of admissible evidence without said Commissioner being examined in evidence. The Commissioner had been appointed in O.S.No.192/75 and after having the visited spot, the Commissioner submitted his Report in the suit O.S.No.192/1975. It is an undisputed fact that the Commissioner of that case while filing his Report has not been examined in the Trial Court in the present suit to prove the contents of his Report and to state about the accuracy of the Report etc. Question is whether in these circumstances, the Commissioner's Report was admissible as evidence for the purpose of this case. Under Order 26 Rule 10(2), it has been provided that a Report will be piece of evidence only RFA 1204/2002 25 in the case in which the Commissioner was appointed. Order 26 Rule 10(2) reads as under:-
"Report and depositions to be evidence in suit:- The report of the Commissioner & the evidence taken by him (but not the evidence without the report) shall be evidenced in the suit and shall form part of the record, but the court, or, with the permission of the Court, any of the parties, to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made investigation."
The specific use of the expression "shall be evidence in the suit" specifically points out that for the purpose of the suit in which the Commissioner had been appointed and the Commissioner submits the Report in that suit, Commissioner's Report will be evidence. The suit refers to, the specific suit, namely, the suit in which the Commissioner had been appointed and in which Report as given by him not to any other suit. So, that Report could be taken to be the piece of evidence in that case only even without examining the Commissioner. But, it is open to the parties and the Court to examine the Commissioner in that case, as it has evidentiary value and admissible. In any other legal proceedings or suit, it RFA 1204/2002 26 cannot be taken by itself to be a piece of evidence unless the Commissioner has been examined to prove the contents and accuracy of his Report. When I so opine, I find support for my view from the decision of the Division Bench of the Calcutta High Court in the case of Sarat Chandra Rakhit Vs Sarala Bala Ghosh."
23. In the present case, the Court Commissioner appointed in O.S.No.3495/1985 has not been examined as a witness. Therefore, in view of the ruling referred to above of this Court, the report of the Commissioner cannot be relied as a piece of evidence. The Trial Court has placed reliance on the said report. Hence, the findings recorded based on such an inadmissible material is vitiated.
24. It is well established that when there is discrepancy in the boundaries and the measurement regarding a property mentioned in the registered document, the recitals regarding the boundaries shall prevail over the measurement. Learned Counsel for the appellant has placed reliance on several judgments in this regard. This Court in the case of NARASIMHA SHASTRY VS MANGESHA DEVARU - ILR 1988(1) KAR 554 following the judgment of the Privy Council in the case of BKAPCS VS GOVERNMENT OF PALESTINE - AIR 1948 PC 207 RFA 1204/2002 27 has held that where Sale Deed mentions the boundary specifically and clearly to identify the property, the actual extent of the land not being clear, the recitals as to boundary should prevail. Similar is the decision in the case of SIVASESHAMUTHU VS BALAKRISHNA - AIR 1963 MADRAS 147. In the judgment in the case of ALLA BASAVAPUNNAREDDY VS KALAGA KRISHNAYYA & ORS. - AIR 1966 ANDHRA PRADESH 260, it has been held that even in the case of Sale Certificate issued, in the first instance, the area within the boundaries must be held to prevail over the extent, but under Sections 95 & 97 of the Indian Evidence Act, the parties could lead extrinsic evidence to show what was the true state of affairs i.e., to say whether the whole land lying within the boundaries described was taken possession of and enjoyed in fact or only the extent specified was taken possession of and enjoyed.
25. In addition to producing the title deeds showing the boundaries of the suit schedule property which the plaintiff purchased, he has examined three witnesses as P.Ws.2 to 4 apart from examining himself. If the evidence of the plaintiff is juxtaposed with the evidence adduced by the defendant, he has asserted in his oral evidence that the suit schedule property RFA 1204/2002 28 where the temple has been constructed was part of Sy. No.7/1 and it was a portion which was left out after acquisition by the BDA and belonged to him. According to him, the total extent of Sy. No.7/1 was 2 acres 2 guntas., Himself and his brother Krishnamurthy were the owners of Sy. No.7/1. The BDA formed five sites of different measurement in Sy. No.7/1 and it acquired 1 acre 35 guntas of land. He sought for re-conveyance of five sites and the BDA reconveyed all the sites in favour of himself and his brother Krishnamurthy executing Deed of Reconveyance in that regard. He has admitted that he did not inform the Land Acquisition Officer about the existence of Dakshineshwara Temple in Sy. No.7/1. But, the stand of the BDA is that the entire land comprised in Sy. No.7/1 has been acquired and no portion remained unacquired in the said survey number.
26. Ex.P.16 is the plaint in O.S.No.1421/1986 filed by T.Muniyappa, brother of the 2nd defendant against the 2nd defendant, his son and another brother C.T.Krishnamurthy & others. The said suit was filed seeking partition of the five reconveyed sites by the BDA contending that they were the joint family properties to which the plaintiff therein was also entitled. RFA 1204/2002 29 Ex.P17 is the written statement filed by the 2nd defendant herein in the said suit. In paragraph 6 of the said written statement, he has stated that in the year 1969, the CITB, Bangalore, acquired 1 acre 36 guntas of land in Sy. No.7/1 of Motapannapalya, Indiranagar, Bangalore and the other 6 guntas was considered as kharab, though the entire survey number was acquired. The allegation made in the plaint that a portion of survey number was only acquired was denied as false. He, no doubt, denied that the suit property therein was the joint family property. The fact of reconveyance of five sites in favour of defendants 1 & 3 therein has been admitted.
27. Thus, it is clear from the stand taken by the 2nd defendant herein in the suit filed against him by one of his brothers that the entire land Sy. No.7/1 was acquired by the BDA and the BDA reconveyed five sites in favour of himself and his brother Krishnamurthy and that there was no other unacquired portion that remained in Sy. No.7/1. In addition to this, the beneficiary of the acquisition the BDA has taken a specific stand in the written statement that the entire land in Sy. No.7/1 has been acquired. If that is so, the 2nd defendant cannot contend that a portion of the unacquired land lies RFA 1204/2002 30 within the boundary of the property purchased by the plaintiff as the plaintiff had wrongly mentioned the eastern boundary as CITB Road. If any portion of Sy. No.7/1 had remained unacquired, the 2nd defendant having served as an Executive Engineer in the BDA could not have kept quiet and would have certainly got prepared a sketch from the BDA to locate and identify the unacquired portion and also taken steps to have a new number assigned to the unacquired portion. He would have also got his name entered in the khatha in respect of the unacquired portion of the land in Sy. No.7/1.
28. A perusal of the judgment of the Trial Court discloses that there is total inconsistency and contradiction in the finding recorded on additional issue No.2 and the reasons assigned and discussion made in the body of the judgment. Additional issue No.ii is - 'whether the plaintiff has furnished proper boundaries in respect of the suit schedule property.' This issue is answered in the affirmative. In paragraph 18 of the judgment, the Trial Court observes that D.W.1 (defendant No.2) has alleged that vendors of the plaintiff unnecessarily mentioned excess area by giving wrong boundaries. Despite such allegation of D.W.1, the plaintiff did not chose to examine any of his vendors to show to RFA 1204/2002 31 the Court what was the property sold. It further observes that 'merely because in certain Sale Deeds boundary is mentioned, it cannot be said that the actual extent of the site was up to that boundary and not as specifically mentioned in the documents'.
29. In paragraph 26 of the judgment, quite contrary to the above observations, the Trial Court observes as under:
"26. ......... Though the defendant has disputed the said boundary, but the records relied on by the plaintiff substantially speaks to the said boundaries. All the title deeds produced by the plaintiff refers to the said boundaries to the site No.2. There is no much serious dispute about the boundaries. ...."
30. It is thus clear that as per the title deeds produced by the plaintiff, he is held to have proved the boundaries to site No.2. The Trial Court has given yet another strange reason in support of its conclusion holding that the plaintiff did not get the actual area within the boundaries measured either through a technically qualified person or by himself and therefore, he was not entitled for the decree as sought by him. The title deeds clearly mention the boundaries of Site No.2 showing that it was carved out of Sy. No.8/2. This is evident from Exs.P6, P7, P8 & P24. In the light of the law laid down holding that in case of RFA 1204/2002 32 discrepancy between the actual measurement and the boundaries, the boundaries shall prevail, the plaintiff is entitled for a declaration that he is the absolute owner of the property within the boundaries specified in the suit schedule.
31. It is not the case of the defendants that the measurement of the property within the boundaries as mentioned in the title deeds and also the suit schedule is not what is claimed by the plaintiff. On the other hand, it is their case that the eastern boundary mentioned itself is wrong and that a portion of the property belonging to the 2nd defendant lies beyond the 30 ft. CITB Road which is incorrectly shown as the eastern boundary of the plaintiff's property. Therefore, in my considered view, the Trial court has failed to appreciate the evidence on record in its proper perspective and it has failed to take note of the totality of the evidence. Certain amount of confusion has set in the mind of the Trial Court while recording findings regarding proof of actual boundaries by the plaintiff of the suit schedule site. At one stage, the trial Court holds that the plaintiff has proved the boundaries of the suit schedule property, but at another stage it doubts the boundaries mentioned in the title deeds on the ground that the vendors were not examined by him. As a result RFA 1204/2002 33 of this inconsistency and confusion in the approach of the Trial Court, the findings arrived at by it are vitiated.
32. Ex.D18 is the final notification published in the Gazette dated 27.08.1964 issued under Section 6 of the Land Acquisition Act by the Government of Mysore declaring that certain lands specified therein were needed for public purpose. Sy. No.8/2 of Thippasandra Village measuring 1 acre 18 guntas is one of them. In paragraph 17 of its judgment, the Trial Court has erroneously proceeded to hold that judicial notice could be taken regarding the acquisition of land comprised in Sy. No.8/2. Unless the acquisition proceedings culminated in passing of the award and taking of possession pursuant to the final notification published, presumption regarding acquisition of land cannot be drawn. In fact, there is nothing to show that the possession of the land was indeed taken and an award was passed culminating in the finalization of the acquisition proceedings. Indeed in paragraph 27 of the judgment, the Trial Court has observed that though the 1st defendant-BDA had contended that Sy. No.8/2 had been acquired, it was not known whether the said acquisition reached finality because no other documents were produced to show that possession was taken RFA 1204/2002 34 over and award had been passed. The Trial Court has further held that the 2nd defendant also did not seriously dispute the title, possession and enjoyment of the suit schedule property as per the area mentioned in the title deeds and other public records and it is on this basis, the Trial Court has proceeded to decree the suit in part declaring the title of the plaintiff to the extent of 35' East to West and 60' North to South. It is relevant to notice here that there is no dispute regarding the acquisition of land bearing Sy. No.7/1. No material is produced to show that any portion of Sy. No.7/1 remained unacquired. Ex.P19 - sketch prepared by the Assistant Executive Engineer, BDA, does not establish the defence of the defendant that a portion of the land in Sy. No.7/1 remained unacquired and it is in that portion that the defendant had allowed the construction of a temple. Therefore, Ex.P19 - sketch will not help the defendant.
33. The evidence on record clearly discloses that the plaintiff has established that he has purchased the suit schedule property bearing Site No.2 carved out of Sy. No.8/2. Whereas, the 2nd defendant has failed to establish his defence that the boundaries mentioned in the title deeds of the plaintiff and his predecessor in title was wrong and that a portion of the suit RFA 1204/2002 35 schedule property in the boundaries mentioned in the suit schedule was part of Sy. No.7/1 which remained unacquired and which continued to be in the possession and ownership of the 2nd defendant.
34. The contention urged by the learned counsel for the 2nd respondent that in view of the order passed by the trial Court on the I.A. filed for appointment of Court Commissioner holding that already a Court commissioner had been appointed in the previous suit which could be looked into as the plaintiff himself had objected for the said application, is not tenable. Any observations made in the course of such an order cannot make a document which is otherwise inadmissible, a valid and admissible piece of evidence. If the 2nd defendant wanted to rely on the said report, he ought to have examined the Court Commissioner, who had prepared the report/sketch, in which event, the plaintiff would have had an opportunity to cross- examine the Court Commissioner. As defendant No.2 has not chosen to examine the Court Commissioner, it is not open for him to place reliance on the observations of the Trial Court made in the course of the interlocutory order. RFA 1204/2002 36
35. The other contention of the counsel for the 2nd respondent that in Ex.P11 - legal notice, the plaintiff had admitted the measurement of the suit site as shown in the sale deed cannot be accepted. In fact, the grievance made in the notice is that measurement of his property was more than what was mentioned in the sale deed. Therefore, the contents of Ex.P11 - legal notice cannot be taken as adverse material to the plaintiff.
36. The judgments on which the counsel for the respondent has placed reliance are not of any assistance to him in the facts of the present case.
37. The further contention of the counsel for the 2nd respondent that substantial portion of the evidence of D.W.1 was not challenged in the cross-examination and therefore, it should be taken as admitted is untenable in the facts of the case, inasmuch as P.W.1 in the cross-examination has specifically denied the suggestion that Akkayamma had cheated the purchaser by giving false measurement in the Sale Deed. He has clearly and categorically denied the suggestion that Shiva Temple was in the portion of Sy. No.7/1. In such circumstances, as the 2nd defendant had contended that the RFA 1204/2002 37 temple was in the unacquired portion of Sy. No.7/1, he ought to have shown that there was a portion in Sy. No.7/1 which remained unacquired. The plaintiff, on his part, has discharged his burden showing that he purchased the property in the boundaries mentioned in his title deeds by producing not only his own registered title deed, but also the title deeds of his predecessor in title.
38. It is true, merely because a registered sale deed is produced, the same by itself would not mean that the contents thereof stood established as held in the case of CEMENT CORPN. OF INDIA LTD. VS PURYA & ORS. - (2004) 8 SCC 270. If materials are brought on record by the parties to the lis, the Court is entitled to appreciate the evidence brought on record for determining the issues raised before it and in the said process, the court may accept one piece of evidence and reject the other. Though Mr. Surana relies on this judgment of the Apex Court, while the principle stated therein requires to be applied to the case on hand as well, but the same will not in any manner aid the case of the 2nd defendant so long as no materials are brought on record to show that any portion of the land in Sy. No.7/1 remained unacquired and therefore, the RFA 1204/2002 38 boundaries shown in the registered Sale Deed - Ex.P1 of the plaint cannot be relied. Similarly, the judgment in the case of SARWAN SINGH VS STATE OF PUNJAB - 2003(1) SCC 240 will be of no avail to the 2nd defendant because the observations made in paragraph 9 of the said case to the effect that whenever the opponent has declined to avail himself of the opportunity to put his case in the cross-examination, it must follow that the evidence tendered on that issue ought to be accepted, was in the background of absence of any other evidence nor any suggestion of existence of any other factor. The facts of the present case being totally different and there being ample material brought on record by the plaintiff apart from lengthy cross-examination of P.W.1, the said principle cannot be made applicable. For the same reasons, reliance placed by Mr. Surana on the other two judgments in the case of BOBY MATHEW VS STATE BY COD (HB) POLICE, BANGALORE - 2004 (5) KAR.L.J. 415 and M/S. CHUNI LAL DWARKA NATH VS HARTFORD FIRE INSURANCE CO. LTD. & ANOTHER - AIR 1958 PUNJAB 440, are also not apposite to the facts and circumstances of the case on hand.
RFA 1204/200239
39. Similarly, the judgment in the case of L.N.ASWATHAMA & ANOTHER VS P.PRAKASH - 2010(1) KCCR 113 (SC), does not have any application to the facts of the present case because the principle laid down in that case in paragraph 8 makes it very clear that if the appraisal of evidence by the Trial Court suffered from material irregularity, as per example when its decision was based on mere conjunctures and surmises or when its decision relies upon inadmissible evidence or ignores material evidence or when it draws conclusions and inferences which do not naturally or logically flow from the proved facts, the Appellate Court is bound to interfere with the findings of the Trial Court. If the Trial Court has considered the entire evidence and recorded several material findings, the First Appellate Court would not reverse them on the basis of conjunctures and surmises or without analyzing the relevant evidence in entirety. In the instance case, after examining and analyzing the evidence in detail, it is held by me that the Trial Court has seriously erred in placing reliance on an inadmissible document i.e. Ex.P21 - Commissioner's Report. I have also recorded findings holding that the Trial Court has made untenable presumption and has drawn certain inferences without any basis. In addition, I have found that the stand taken by the 2nd RFA 1204/2002 40 defendant in the suit filed against him by his brother has not been taken note of and therefore, material evidence has been ignored. Hence, the principle laid down in the judgment of the Apex Court in Aswathama's case does not help the 2nd defendant. On the other hand, it supports the conclusion reached by this Court and the reversal of the decree passed by the Trial Court.
40. Hence, I hold that the judgment and decree passed by the Trial Court is liable to be set aside and the plaintiff is entitled for declaration of his title and for permanent injunction as prayed for by him. Therefore, the appeal is allowed. The judgment and decree insofar as it dismisses the suit in respect of a portion of the suit schedule property is set aside. The suit is decreed as prayed for. In the facts and circumstances of the case, the parties shall bear their respective costs.
Sd/-
JUDGE PKS/KK