Karnataka High Court
Ramakrishna Narayan Bhat vs Suryanarayan Anant Bhat, on 5 July, 2012
Author: B.Sreenivase Gowda
Bench: B.Sreenivase Gowda
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 5TH DAY OF JULY, 2012
BEFORE
THE HON'BLE MR.JUSTICE B.SREENIVASE GOWDA
RFA NO.5338/2011(DEC/INJ)
BETWEEN:
1. RAMAKRISHNA NARAYAN BHAT,
A/A 55 YEARS, AGRICULTURIST,
2. NARASIMHA NARAYAN BHAT,
A/A 40 YEARS, AGRICULTURIST,
BOTH ARE R/O KICHNAL, TAL YELLAPUR,
3. RAVI NARAYAN BHAT,
A/A 35 YEARS, ENGINEER,
R/O JAYANAGAR, BANGALORE-590001
...APPELLANTS
(BY SRI. SRI.A.P.HEGDE JANMANE, SRI.K.S.PATIL, ADVS.)
AND:
1. SURYANARAYAN ANANT BHAT,
A/A 65 YEARS, AGRICULTURIST,
2. LAXMI W/O SURYANARAYAN BHAT,
A/A 62 YEARS, HOUSEHOLD,
BOTH R/O KICHNAL, TAL. YELLAPUR.
...RESPONDENTS
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THIS APPEAL IS FILED UNDER SECTION 100 CPC
AGAINST THE JUDGMENT AND DECREE DATED
27.08.2010 PASSED IN R.A.NO.131/2007 ON THE FILE OF
THE SENIOR CIVIL JUDGE, YELLAPUR, DISMISSING THE
APPEAL FILED AGAINST THE JUDGMENT DATED
28.08.2007 AND THE DECREE PASSED IN O.S.NO.16/2002
ON THE FILE OF THE CIVIL JUDGE (JR.DN.) YELLAPUR,
DECREEING THE SUIT FILED FOR DECLARATION AND
CONSEQUENTIAL RELIEF OF P.I.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the unsuccessful defendants challenging the concurrent judgments and decrees of Courts below in decreeing the suit of the plaintiffs declaring them as absolute owners in possession and enjoyment of the suit property and granting permanent injunction restraining the defendants from interfering with the possession and enjoyment of the plaintiffs over the suit property. 2 :3:
2. For the sake of convenience, parties are referred to as they are referred in the suit before the trial Court.
3. I have heard the learned counsel appearing for the defendants-appellants herein and perused the judgments and decrees of the Courts below.
4. The point that arises for my consideration in the appeal is:
"Whether there is any substantial question of law in the appeal, which arises for my consideration."
5. My answer is in the negative for the following reasons.
6. The brief case of the plaintiffs as pleaded by them in their plaint is as under:
The plaintiffs are the absolute owners and in possession and enjoyment of the suit property which is standing in the name of second plaintiff, who is the wife of first plaintiff. The suit property is the family property 3 :4: of the plaintiffs. On 16.02.1972, one Tammayya Anant Bhat has purchased 1 acre of land in Sy.No.173 for Rs.5,000/- from Ramachandra Shivaram Kichanal under a registered sale deed and obtained the actual possession. The said Timmayya Anant Bhat is the divided brother of the first plaintiff. The first plaintiff and his brother Timmayya Anant Bhat have purchased 2 acre 27 gunta of land in Sy.No.173 of Balagar village for Rs.3,000/- from one Narayan Tai Gouri under registered sale deed dated 26.04.1978 and obtained the actual possession. Thereby the first plaintiff and his brother purchased total area of 3 acres 27 gunta and 1 gunta Kh. Land in Sy.No.173. There was a partition in the joint family of the first plaintiff under a registered partition deed dated 17.01.1980, in which the suit property was allotted to the share of the first plaintiff.
The first plaintiff has applied to the Survey Department after the sale deed and partition deed for actual measurement and demarcation of the land. The survey 4 :5: was effected in the year 1981 at the instance of first plaintiff and Narayan Tai Gouri. The pot-hissas came to be prepared by the survey department to that effect. R.Survey No.173 of Balagar are re-numbered as 173/1+2B and remaining area is numbered as 173/1+2A. The survey was effected in presence of both the parties in the year 1981. The properties of the defendants have also shown in the survey held in the year 1981. The plaintiffs are in actual, peaceful possession and enjoyment of the area mentioned in the survey map effected in the year 1981. The defendants have no manner of right, title and interest over the suit property, they are trying to cause interference and threat to the possession and enjoyment of the plaintiffs over the suit property. The predecessor in title of the defendants had consented for the survey of 1981. The defendants estopped from contending contrary to the survey effected in the year 1981. The illegal acts of the defendants are to be curtailed by an order of this Court. 5 :6: The cause of action for the suit arose. With the above averments the plaintiffs have sought for declaring the plaintiffs as absolute owners in possession and enjoyment of the suit property and to grant permanent injunction restraining defendants from interfering with the possession of the plaintiffs over the suit property.
7. Though all the defendants have entered appearance in the suit through their counsel, but only defendant Nos.1 and 2 have filed written statement contending that the suit is not maintainable. The description of the suit property is not correct. The plaintiffs have not shown actual boundaries of the suit property. There are no boundary stones to the suit property. It is wrongly shown in the plaint schedule as properties bounded by the survey stones. It is not disputed that one Tammayya Anant Bhat has purchased an area of 1 acre in Sy.No.173 from one Ramachandra Shivaram Kichanal through registered 6 :7: sale deed dated 16.02.1972 and that in 1978, the plaintiff No.1 and his brother Tammayya Bhat have purchased an area of 2 acre 27 gunta in said Sy.No.173 as per registered sale deed in 1978, but they have not obtained the actual possession of the area shown in the sale deeds. It is not correct to state that the plaintiffs are the owners in suit property as described in the plaint, either from the date of purchase of suit properties or from the date of the alleged partition. It is not correct to state that the plaintiffs are in possession and enjoyment of the area as in the original Sy.No.173 of Balagar village and as shown in the survey map of 1981. Though it is true that there was a survey in 1981 regarding the entire area of Sy.No.173 of Balagar village and that in the said survey sub-divisions were noted. The said survey does not depict the true state of affairs existing in the spot, and does not show the area under the actual possession of the respective parties. During the course of the survey of 1981, it was noticed that the 7 :8: parties (plaintiffs and the defendants) are not in the actual possession of the area as per the original survey map of 1981. Further, at that time, it was noticed that the plaintiffs are not in the actual possession of the area belonging to them as per the original sale deeds. On the other hand, it was noticed that in the original Sy.No.173, the plaintiffs are in the actual possession and enjoyment of the southern portion and the defendants (Narayan Tai Gouri) are in the actual possession of the northern portion since long time and that the defendants were enjoying an area of 8 gunta in excess of the areas shown in their name in the R/R in the said Sy.No.173 and that the plaintiffs were enjoying an area of 8 gunta less than the area shown in their name in the said Sy.No.173.
8. The area under the possession of the plaintiffs and the defendants as stated above was bifurcated by a water channel, which was the boundary 8 :9: as per enjoyment regarding the said areas and the said water channel was clearly observed by the surveyor at that time. It was stated before the surveyor by both the parties that the pot hissa should be effected having regard to the above stated facts and the actual areas enjoyed by the parties within the boundaries as stated above should be noted and the pot hissa should be done strictly having regard to the areas under the possession of the parties whether the said area tally with the areas as recorded in the R/R standing in the name of the different parties or not. At that time, it was clearly expressed and consented by the parties that the area under their possession as stated above should be numbered as the respective sub-division numbers and even the surveyor had agreed and stated that he will prepare the pot hissa as stated above and the pot hissa map will be prepared accordingly by the survey department. Even the defendants had an impression that the surveyor has prepared that pot hissa map 9 : 10 : accordingly. However, few years ago, when the dispute started between the plaintiffs and the defendants, it was revealed that the surveyor though has shown the directions of the place of enjoyment in the said Sy.No.173 by the parties properly, he has not prepared the pot hissa map or the P.T. sheet correctly viz. a) he has not specified the areas under the possession of the parties, b) he has not shown the water channel existing in the spot, which was and is the boundary as per enjoyment in between the areas of the plaintiffs and the defendants, c) the map is prepared by imagination so as to show that the portion of the area under the possession of the defendants belongs to the plaintiffs, though in fact the total area under the possession of the defendants ought to have been considered and the lines in the map ought to have been drawn accordingly. As per the true facts, the area under the possession of the plaintiffs and the defendants at the time of the said survey of 1981 was as shown in the hand sketch 10 : 11 : produced along with the written statement and the same is continued in the spot even now. With this and other allegations, defendants have prayed for dismissal of the suit.
9. The trial Court based on the pleadings and materials, has framed the following issues:
i) Whether the description of suit property is correct?
ii) Whether the plaintiffs prove that they are the absolute owners of the suit property?
iii) Whether the plaintiffs prove that they are in actual possession of the suit property as on the date of filing suit?
iv) Whether the plaintiffs prove that the defendants are interfering in peaceful enjoyment of the suit property by the plaintiffs?
v) Whether the defendants prove that the parties to the suit are in possession of the survey number 173 as shown in the hand sketch annexed to this W.S.?
vi) Whether the suit in the present form and nature is maintainable one?
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vii) Whether this court has no jurisdiction to try the suit as cited in para no.8 in WS of defendants?
viii) Whether the defendants as entitled to compensatory cost?
ix) Whether the plaintiffs is entitled for compensatory cost?
x) What order/decree?
10. The plaintiffs in support of their case have examined the first plaintiff and a witness as P.Ws.1 and 2 respectively and have got marked Exs.P1 to 14.
Whereas the defendants have examined first defendant and a witness as D.Ws.1 and 2 respectively and have got marked Exs.D1 to 3.
11. The trial Court upon consideration of oral and documentary evidence on record holding Issue Nos.1 to 4 and 6 in the affirmative (although issue No.6 is answered in affirmative wrongly shown as negative) and issue No.5 and 7 to 9 in the negative decreed the suit of the plaintiffs and declared the plaintiffs as 12 : 13 : absolute owners and in possession and enjoyment of the suit property and granted permanent injunction restraining the defendants from interfering with the possession and enjoyment of the plaintiffs over the suit property.
12. The defendants aggrieved by the said judgment and decree of the trial Court have challenged the same in R.A.No.131/2007 before the lower appellate Court. The lower appellate Court on re-appreciation of entire oral and documentary evidence on record by the impugned judgment and decree dismissed the appeal. It is against these concurrent judgments and decrees of the Courts below, the defendants have preferred this second appeal.
13. The defendants in para 3 of their written statement have stated that one Tammayya Anant Bhat has purchased an area of 1 acre in Sy.No.173 from one Ramachandra Shivaram Kichanal under a registered 13 : 14 : sale deed dated 16.02.1972. The first plaintiff and his brother Tammayya Anant Bhat have purchased an area 2 acre 27 gunta in the said Sy.No.173 under a registered sale deed dated 26.04.1978. Thereby they admitted that plaintiffs are the owners of the suit Sy.No.173 measuring 3 acre 27 guntas, but their contention is that plaintiffs have not obtained the actual possession of the area shown in the sale deeds and partition deed and defendants Nos.1 and 2 have continued to be in possession of 8 gunta in the suit land of the plaintiffs. Their further case is that, surveyor who conducted the survey in presence of both the parties has not prepared the survey sketch as promised by him while conducting the survey. But defendants have not challenged the said survey sketch prepared by the surveyor in the year 1981, on the other hand they admitted that the rough sketch produced by them along with their written statement does not tally with that of the survey sketch prepared by the surveyor, which is 14 : 15 : produced by the plaintiffs. The defendants have failed to prove their contention that 8 guntas in the suit land is in their possession and they are in possession and enjoyment of 8 guntas more, than the area shown in their names in ROR and plaintiffs are in possession of 8 gunta less than the area shown in their names in the ROR. Further, it is not the case of the defendants that they have perfected their title in respect of this 8 guntas of land, admittedly belonging to the plaintiffs by adverse possession.
14. The trial Court based on the sale deeds, survey sketch and revenue records produced by the plaintiffs and admission made by the defendants and considering the oral and documentary evidence adduced by the parties decreed the suit and declared the plaintiffs as absolute owners in possession and enjoyment of the suit property.
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15. The lower appellate Court on re-appreciation of entire oral and documentary evidence on record dismissed the appeal of the defendants by confirming the judgment and decree passed by the trial Court. I have carefully gone through the said judgments and decrees of the Courts below and do not find any valid reasons to interfere with the same. Apart from that, there is no substantial question of law, which arises for my consideration in the above appeal.
Accordingly, the appeal is dismissed as devoid of merits.
No order as to costs.
Sd/-
JUDGE MBS/-
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