Karnataka High Court
Vasanthrao S/O Gurunathrao Marthur vs Gurulingappa S/O Basappa Sajjan on 9 November, 2023
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NC: 2023:KHC-K:8574
RSA No. 7157 of 2012
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 9TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR SECOND APPEAL NO. 7157 OF 2012
(DEC/INJ)
BETWEEN:
1. VASANTHRAO
S/O GURUNATHRAO MARTHUR,
SINCE DECEASED BY HIS L.R'S
a. SMT. SEETHABAI
W/O VASANTHRAO KULKARNI,
AGE: 64 YEARS,
OCC: HOUSEHOLD,
Digitally signed by
SHILPA R
TENIHALLI b. SRI. ASHWIN KUMAR
Location: HIGH
COURT OF S/O VASANTHRAO KULKARNI,
KARNATAKA
AGE: 36 YEARS,
OCC: LECTURER,
c. SMT. SUPRIYA
W/O GOPAL KULKARNI,
AGE: 40 YEARS,
OCC: HOUSEHOLD,
ALL R/O PLOT NO. 15 VISHWARADEYA COLONY,
ALAND ROAD, KALABURAGI.
...APPELLANTS
(BY SRI B.D.HANGARKI,
SRI S.B. HANGARKI, ADVOCATES FOR 1(a) To 1(c))
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NC: 2023:KHC-K:8574
RSA No. 7157 of 2012
AND:
GURULINGAPPA
S/O BASAPPA SAJJAN,
AGE: 64 YEARS,
OCC: RETD PROFESSOR,
R/O GODUTAI NAGAR,
OPP: TO GARDEN,
NEW JEWARGI ROAD,
GUBLARGA
...RESPONDENT
(BY SRI AJAYAKUMAR A. K., ADVOCATE)
THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO, SET
ASIDE THE JUDGMENT AND DECREE PASSED ON 28-1-2012 IN
R.A.NO.42/2011 PASSED BY THE COURT OF THE IV ADDL.
DISTRICT JUDGE, GULBARGA AND CONFIRM THE JUDGMENT
AND DECREE PASSED IN O.S. NO.67/06 DATED 31-1-2011
PASSED BY THE COURT OF III ADDL. CIVIL JUDGE (S.D),
GULBARGA DECREEING THE SUIT OF THE PLAINTIFF.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiff in OS No.67 of 2006 on the file of the learned III Additional Civil Judge (Sr.Dn.) at Gulbarga (hereinafter referred to as 'the Trial Court' for brevity), is impugning the judgment and decree dated 28.01.2012 passed in RA No.42 of 2011 on the file of the learned IV Additional District Judge, at Gulbarga (hereinafter referred to as 'the First Appellate Court' for brevity), allowing the appeal and setting aside the impugned judgment and decree of the Trial Court and -3- NC: 2023:KHC-K:8574 RSA No. 7157 of 2012 consequently, dismissing the suit for declaration and for permanent injunction.
2. For the sake of convenience, the parties shall be referred to as per their ranks and status before the Trial Court.
3. Brief facts of the case are that, the plaintiff filed the suit OS No.67 of 2006 against the defendant seeking declaration that he is the absolute owner in possession of plot No.83 measuring 60 + 57/39 + 37 situated in Sy.No.61/A of Badepur, Gulbarga and for permanent injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the same. It is the contention of the plaintiff that Sy.No.61/A measuring 15.39 acres situated at Badepur of Gulbarga was owned by Ambanna Devangaon and his sons, viz., Bhimsha, Devendrappa and Subhash. Devendrappa was the general power of attorney holder of his father and two brothers. He had the authority to sell the plots formed in Sy.No.61/A, execute the sale deeds and to receive the sale consideration.
4. It is contended that the said land was converted into non- agricultural one as per the order of the Assistant -4- NC: 2023:KHC-K:8574 RSA No. 7157 of 2012 Commissioner, Gulbarga dated 09.03.1969. Layout was also formed. But the same was not approved by the Town Planning Authority till 1972. Therefore, subject to approval of the layout, the plots were being sold by the owners represented by the general power of attorney holder. The plaintiff purchased plot No.151 through the general power of attorney holder - Devendrappa under the registered sale deed dated 19.06.1972 for a consideration of Rs.400/- and the plaintiff was put in possession of the said plot. Since the sale deed was referring to the description of plot No.151 formed in the unapproved layout, there was an understanding between the vendor and vendee that in case of any change in the layout, on approval of the same, the vendor undertook to execute correction deeds as per the approved plan.
5. It is contended that the Town Planning Authority, Gulbarga had not approved the layout as formed by the vendor, but modified the same while approving it on 01.05.1974. After coming to know about the same, the plaintiff enquired about the modified layout plan and found that the site where plot No.151 was shown in the unapproved plan did not find a place in the approved plan. Therefore, the plaintiff approached the -5- NC: 2023:KHC-K:8574 RSA No. 7157 of 2012 vendor to execute the correction deed. Accordingly, the vendor executed the correction deed on 04.06.1979 by selling plot No.83 as described above as substitution to the earlier plot No.151. Since then, the plaintiff is in possession and enjoyment of the said property. His name was mutated in the revenue records.
6. It is stated that the defendant who is not having any right, title or interest over the suit plot, started interfering with the possession and enjoyment by the plaintiff and even made an attempt to construct the building. He managed to construct a temporary room in a corner. Therefore, the plaintiff filed the suit seeking declaration and injunction against the defendant.
7. The defendant has appeared before the Trial Court and filed the written statement denying the contention taken by the plaintiff. It is contended that the measurements of the suit plot as stated in the plaint are incorrect. It is stated that the measurements of plot No.83 is 40 x 60. Thus, the plaintiff is not entitled for any relief in respect of the plot described in the plaint.
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NC: 2023:KHC-K:8574 RSA No. 7157 of 2012
8. It is contended that originally Sy.No.61/A measuring 15.39 acres was owned and possessed by Ambanna and his sons. It is admitted that Devendrappa was the general power of attorney holder for his father and his two brothers. It is also admitted that the said land was converted and a layout was formed. The other allegations made by the plaintiff in that regard are denied. It is contended that the plaintiff has got created entries in the revenue records just before filing of the suit, he had not acquired any title over the suit plot under the alleged correction deed. Therefore, it is contended that the plaintiff is not entitled for any relief.
9. The defendant contended that he is the owner in possession of plot No.83 measuring 40 x 60 situated at Badepur, Gulbarga as he purchased the same from Ambanna and his sons through their general power of attorney holder - Devendrappa, under the registered sale deed dated 23.05.1972. Since then, he is in possession and enjoyment of the plot. He constructed a shed for watchman about 4 years back and he has also constructed basement on all three sides with an intention to construct the compound wall. The defendant has collected construction materials. Due to the -7- NC: 2023:KHC-K:8574 RSA No. 7157 of 2012 order to maintain status quo passed by the Trial Court, he could not complete the construction.
10. It is further contended that the vendors though the general power of attorney holder have executed the registered correction deed dated 28.03.1989 ratifying the boundaries of the suit plot and thus it is contended that plot No.83 measuring 40 x 60 situated at Badepur, Gulbarga, is owned by the defendant and the plaintiff has no manner of right, title of interest over the same. Hence, he prayed for dismissal of the suit.
11. On the basis of these pleadings, the Trial Court framed the following issues for consideration:
1) Whether plaintiff proves that he is the absolute owner in possession & enjoyment of the Suit property as alleged?
2) Whether the plaintiff further proves
that the defendant is interfering in his
possession and enjoyment as alleged?
3) Whether the plaintiff further proves
that the defendant has put up a temporary shed in the suit property illegally as alleged?
-8- NC: 2023:KHC-K:8574 RSA No. 7157 of 2012 4) Whether the suit of the plaintiff is
bared by limitation as contended in the written statement?
5) Whether the plaintiff is entitled for the relief of declaration and perpetual injunction as prayed?
6) Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for?
7) What order or decree?"
12. The plaintiff examined PWs.1 to 3 and got marked Exs.P1 to 9 in support of his contention. The defendant got examined DW1 and got marked Exs.D1 to D18 in support of his defence. The Trial Court after taking into consideration all these materials on record, answered issue Nos.1 to 3, 5 and 6 in the affirmative and issue No.4 in the negative and accordingly, decreed the suit of the plaintiff in part declaring that he is the absolute owner of the schedule property and granting permanent injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the schedule property. The defendant is also directed by way of mandatory -9- NC: 2023:KHC-K:8574 RSA No. 7157 of 2012 injunction to remove the temporary shed constructed on the suit plot within six months.
13. Being aggrieved by the same, the defendant has preferred RA No.42 of 2011. The First Appellate Court on re- appreciation of the materials on record, allowed the appeal by setting aside the impugned judgment and decree passed by the Trial Court and dismissing the suit of the plaintiff with costs.
14. Being aggrieved by the same, the plaintiff has preferred this appeal. During the pendancy of this appeal, the sole appellant- plaintiff died and his legal representatives were brought on record as appellant Nos.1(a) to (c).
15. Heard Sriyuths B D Hangarki and S B Hangarki, learned counsel for the appellants and Sri A K Ajayakumar, learned counsel for the respondent. Perused the materials including the Trial Court records.
16. Learned counsel for the appellants contended that the document that are produced before the Trial Court by the plaintiff are admitted. The contention of the plaintiff that he purchased one of the plots under the registered sale deed as per Ex.P1 is admitted. The recitals in Ex.P1 disclose that the
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NC: 2023:KHC-K:8574 RSA No. 7157 of 2012 vendor had undertaken to correct the description of the property sold under the sale deed, if in case while approving the layout, there was any change in the topography of the land. It is also admitted that after the sale deed - Ex.P1, the Town Planning Authority approved the layout, but subject to modification of the same. In place of plot No.151 purchased by the plaintiff under Ex.P1, a road was formed. Therefore, as undertaken by the vendor, the correction deed as per Ex.P2 was executed, whereunder plot No.83 in the same layout was sold in favour of the plaintiff. Thus, the plaintiff became absolute owner in possession of the suit plot No.83 since from the date of registered correction deed dated 28.03.1989.
17. Learned counsel further submitted that even though it is the contention of the defendant that he had purchased plot No.83 from the very same vendor under the registered sale deed dated 23.05.1972, the location of the said plot was also changed while forming the approved layout. The boundaries on all the four sides changed and therefore, while executing the correction deed in favour of the defendant, the vendor had described plot No.83, which was already the subject matter of the correction deed executed in favour of the plaintiff. When
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NC: 2023:KHC-K:8574 RSA No. 7157 of 2012 the vendor had already sold plot No.83 in favour of the plaintiff under Ex.P2, he could not have sold the same property in favour of the defendant subsequently under Ex.D17. Therefore, the Trial Court rightly decreed the suit of the plaintiff granting the relief of declaration and injunction, but the First Appellate Court committed an error in allowing the appeal and dismissing the suit. Hence, he prays for allowing the appeal and to restore the judgment and decree passed by the Trial Court, in the interest of justice.
18. Per contra, learned counsel for the respondent - defendant opposing the appeal submitted that the plaintiff had purchased plot No.151 under Ex.P1 which is dated 19.06.1972. The defendant purchased plot No.83 under Ex.D16 dated 23.05.1972. While approving the layout, the location of the plots changed and accordingly, plot No.83 which was sold in favour of the defendant got different boundaries and hence, a correction deed as per Ex.D17 came to be executed on 28.03.1989. By the time, the correction deed as per Ex.P2 was executed in favour of the plaintiff, Plot No.83 owned by the vendors was already sold in favour of the defendant and therefore, the vendor could not have executed the correction
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NC: 2023:KHC-K:8574 RSA No. 7157 of 2012 deed in favour of the plaintiff in respect of the suit plot. Even though the Trial Court has committed an error in decreeing the suit, the First Appellate Court on proper appreciation of the materials on record, dismissed the suit of the plaintiff. There is no merit in the appeal preferred by the appellants. Hence, he prays for dismissal of the appeal.
19. The appeal was admitted vide order dated 1502.2018 and the following substantial questions of law were framed:
1) Whether the lower appellate Court was justified in setting aside the judgment and decree passed by the trial court?
2) Whether the lower appellate Court was justified in law in holding that the defendant is the owner in possession of the suit plot when he could not be the owner and possessor, as the suit plot has defendant been already given to the plaintiff by the vendor in pursuance of the regd. correction deed executed on 4.6.1979 itself and plaintiff is in its possession as owner since then until now and that correction deed was not cancelled?
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NC: 2023:KHC-K:8574
RSA No. 7157 of 2012
3) Whether the lower appellate Court
was justified in holding that the plaintiff is not in possession of the suit plot but defendant is in possession, merely because in the absence of the plaintiff without his knowledge had illegally constructed a temporary room?"
Since there is a mistake apparent in mentioning the date of registered correction deed as 04.06.1979 as in fact, the said correction deed is dated 28.03.1989, I deem it appropriate to make necessary correction in the substantial question of law and to read the said correction deed as 28.03.1989.
REASONS
20. The undisputed facts of the case are that, the plaintiff purchased plot No.151 in the unapproved layout from its vendors under the registered sale deed dated 19.06.1972. The vendor undertook to provide and adjust the purchaser in case of alteration in the proposed layout and to indemnify him against any loss arising out of any third party claim. Earlier to that, the defendant had purchased plot No.83 in the same unapproved layout under a similar sale deed dated 23.05.1972 marked as Ex.D16. Admittedly, the layout was approved on a subsequent date and the entire topography in the layout
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NC: 2023:KHC-K:8574 RSA No. 7157 of 2012 changed. Plot No.83 shifted to the other end of the layout, with different boundaries. Plot No.151 purchased by the plaintiff lost its existence as a road was formed in the said place. Therefore, the vendor executed the correction deed in favour of the plaintiff on 04.06.1979 selling plot No.83 i.e., suit plot.
21. The recitals in the correction deed - Ex.P2 states that certain mistakes have accidentally crept in the principal deed which the parties have now agreed to rectify. Accordingly, plot No.151 was changed as plot No.83. The boundaries on all the four sides changed accordingly. Similarly, a correction deed as per Ex.D17 dated 28.03.1989 was executed by the vendor in favour of the defendant referring to the mistake crept in the parental deed as referred to in Ex.P2 and changing the boundaries of plot No.83 which was already sold in favour of the defendant. All these facts and circumstances are admitted and there is no dispute over the same.
22. Now, the question arises as to whether the vendor who had already sold plot No.83 in favour of the defendant under Ex.D16 could have sold the same with different
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NC: 2023:KHC-K:8574 RSA No. 7157 of 2012 boundaries in favour of the plaintiff by executing the correction deed - Ex.P2, when in fact, plot No.83 was already sold in favour of the defendant.
23. Both the learned counsel for the plaintiff and defendant are having their own their justification to substantiate their contention. In the light of such contentions, the recitals in Exs.P1 and 2 are to be considered along with the recitals in Exs.D16 and 17.
24. Under Ex.P1, the vendor sold plot No.151 in the unapproved layout in favour of the plaintiff with specific boundaries. The vendor undertook to provide and adjust the purchaser in case of alteration in the proposed layout besides undertook to compensate the vendee and keep him indemnified against any loss arising out of any third party claim. While approving the layout, the location of the sites changed and the number of sites formed in the unapproved layout was also considerably reduced. Therefore, plot No.151 originally sold in favour of plaintiff has lost its existence in the approved layout.
25. Ex.P2 - the deed of correction was executed by the vendor in favour of the plaintiff in respect of suit plot bearing
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NC: 2023:KHC-K:8574 RSA No. 7157 of 2012 No.83 by stating that certain mistakes have accidentally crept in the principal deed which the parties agreed to rectify under the deed.
26. Now, the question arises as to whether the vendor could have sold altogether a different property i.e., different plot number with different boundaries under the deed of correction under the guise of correcting mistakes which is said to have accidentally crept in the principal deed. When the plot number and the boundaries are all changed in Ex.P2, the same cannot be considered as a mere correction in description of the property. But it is in respect of an altogether a different plot which was already sold in favour of defendant under Ex.D16.
27. Now, the question arises as to whether the sale deed - Ex.D16 executed in favour of the defendant could have been corrected by executing Ex.D17. Plot No.83 with different boundaries was sold in favour of the defendant by the vendor under Ex.D16 and after forming the approved layout the location of Plot No.83 was changed and therefore, the correction deed as per Ex.D17 with different boundaries came to be executed. Under such circumstances, the recitals in
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NC: 2023:KHC-K:8574 RSA No. 7157 of 2012 Ex.D17 that in view of the alteration in the original layout by the Town Planning Authority, the correction deed was executed, can be accepted. It can also be accepted that the mistake has been crept in the principal deed and therefore, the parties have agreed to ratify the same in view of the subsequent events.
28. Even though, Ex.D17 is to be accepted as the correction deed, whereunder, the boundaries of suit plot No.83 was changed/corrected, the same is not the case with Ex.P2. As I have already stated, under Ex.P2 entirely different property altogether was sold in favour of the plaintiff by the vendor. When plot No.83 in the very same layout was already sold in favour of defendant under Ex.D16, the vendor will not have any right to sell the said plot in favour of the plaintiff under Ex.P2 under the guise of correcting the mistakes crept in the sale deed - Ex.P1.
29. Admittedly, in Ex.P1 the vendors had undertaken to compensate the purchaser or indemnify from any loss arising out of any third party claims. The plaintiff has not chosen to array the vendors as a party to the suit seeking any relief from them. It is not the contention of the plaintiff that the
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NC: 2023:KHC-K:8574 RSA No. 7157 of 2012 defendant has played any role in getting the deed of correction as per Ex.D17 from the vendor, even after knowing about Ex.P2. No fraud or misrepresentation are attributed against the defendant. Under such circumstances, it is to be held that the defendant is also a victim who was compelled to get the deed of correction from the vendor in view of alteration of the layout for approval of the same. Under such circumstances, I do not find any support to the contention of the plaintiff to get the relief in his favour against the defendant, for no fault of his. Thus, I am of the opinion that the remedy of the plaintiff lies with the vendor who could not have corrected the sale deed Ex.P1 by replacing plot No.151 which lost its existence, by showing plot No.83 which was already the subject matter of similar sale deed Ex.D16. Therefore, the plaintiff is not entitled for any relief against the defendant.
30. Even though, the Trial Court proceeded to decree the suit of the plaintiff, the reasons assigned by the Court for decreeing the suit is not convincing. Simply because, a deed of correction was executed by the vendor in favour of the plaintiff at the subsequent date, it cannot be concluded that the plaintiff has got right over the suit plot which is altogether a different
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NC: 2023:KHC-K:8574 RSA No. 7157 of 2012 property. The First Appellate Court on re-appreciation of the materials on record arrived at a right conclusion. Therefore, I do not find any reason to interfere with the same. Hence, I answer the substantial questions of law in favour of the respondent and proceed to pass the following:
ORDER
(i) The appeal is dismissed with costs.
(ii) The judgment and decree dated 28.01.2012 passed in RA No.42 of 2011 on the file of the learned IV Additional District Judge, at Gulbarga, is hereby confirmed.
(iii) Consequently, the suit of the plaintiff is dismissed.
Registry is directed to send back the Trial Court records along with copy of this judgment.
Sd/-
JUDGE BGN CT-VD List No.: 1 Sl No.: 15