Karnataka High Court
Sri Devegowda vs Smt Ningamma on 12 September, 2017
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12th DAY OF SEPTEMBER, 2017
BEFORE
THE HON'BLE Mr. JUSTICE S.N.SATYANARAYANA
R.S.A. No.1127 OF 2006 (DEC & POS)
BETWEEN:
1. SRI. DEVEGOWDA
S/O. LAXME GOWDA,
AGED ABOUT 60 YEARS.
2. SRI. GOWDEGOWDA
S/O. LAXME GOWDA,
AGED ABOUT 65 YEARS.
PATEL JAVAREGOWDA,
SINCE DEAD BY LR
3. SRI. KRISHNEGOWDA,
S/O. LATE PATEL JAVAREGOWDA,
AGED ABOUT 59 YEARS.
4. SMT. LAXMAMMA
W/O. LATE PAPEGOWDA,
AGED ABOUT 75 YEARS.
5. SRI. LAXMEGOWDA @ MUGEGOWDA
S/O. LAXMEGOWDA,
AGED ABOUT 63 YEARS.
KEMPUGOWDA
SINCE DEAD BY L.R.
2
6. SRI. SANNEGOWDA
S/O. LATE KEMPUGOWDA,
AGED ABOUT 38 YEARS.
ALL ARE RESIDENTS OF
K. BETTAHALLI VILLAGE,
PANDAVAPURA TALUK,
MANDYA DISTRICT-571434.
... APPELLANTS
(BY SRI K. V. NARASIMHAN, ADV.)
AND:
1. SMT. NINGAMMA
W/O. LATE RAMEGOWDA,
AGED ABOUT 70 YEARS.
2. SRI. PRASANNA
S/O. LATE RAMEGOWDA,
AGED ABOUT 52 YEARS.
3. SRI. PRAKASHA
S/O. LATE RAMEGOWDA,
AGED ABOUT 47 YEARS.
4. SRI. KRISHNA
S/O. LATE RAMEGOWDA,
AGED ABOUT 35 YEARS.
5. SRI. HOMBEGOWDA
S/O. LATE RAMEGOWDA,
AGED ABOUT 30 YEARS.
6. SMT. CHIKKATHAYAMMA
W/O. PAPEGOWDA,
AGED ABOUT 65 YEARS.
7. SMT. JAYAMMA
W/O. GOWDEGOWDA,
3
DEAD BY LRS
A) MOOGEGOWDA
AGED ABOUT 45 YEARS
B) PUTTEGOWDA
AGED ABOUT 41 YEARS
C) SHANKAREGOWDA
AGED ABOUT 35 YEARS
D) UMA
AGED ABOUT 30 YEARS
7(A) TO (D) ARE RESIDENTS OF
K. BETTAHALLI VILLAGE,
PANDAVAPURA TALUK,
MANDYA DISTRICT-571434.
8. SMT. NAGAMMA W/O. SWAMYGOWDA,
AGED ABOUT 43 YEARS,
R/O. CHIKKAMARALI VILLAGE,
PANDAVAPURA TALUK,
MANDYA DISTRICT-571434.
9. SMT. RAMADEVI W/O. DEVARAJEGOWDA,
D/O. LATE RAMEGOWDA,
AGED ABOUT 40 YEARS.
10. SMT. CHOODAMANI
W/O. CHALUVEGOWDA,
D/O. LATE RAMEGOWDA,
AGED ABOUT 26 YEARS.
RESPONDENTS 1 TO 7, 9 AND 10
ARE R/O. K. BETTAHALLI VILLAGE,
CHINAKURALI HOBLI,
PANDAVAPURA TALUK,
MANDYA DISTRICT-571434.
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11. SRI. MOGANNA S/O. LATE PAPEGOWDA,
DEAD BY LRS
A) JAYALAKSHMI W/O LATE MUGANNA
B) NATARAJ S/O LATE MUGANNA
BOTH ARE RESIDENTS OF
K. BETTAHALLI VILLAGE,
PANDAVAPURA TALUK,
MANDYA DISTRICT-571434.
C) SARASWATHI W/O SHIVAKUMARA
RESIDENT OF DAMARAHALLI VILLAGE
PANDAVAPURA TALUK,
MANDYA DISTRICT.
12. SRI. CHANDREGOWDA S/O. LATE PAPEGOWDA
AGED ABOUT 30 YEARS,
13. SMT. JAYAMMA W/O. PUTTEGOWDA,
AGED ABOUT 55 YEARS,
R/O. DAMANAHALLI VILLAGE,
PANDAVAPURA TALUK,
MANDYA DISTRICT-571434.
SRI. KEMPUGOWA
SINCE DEAD BY HIS LRS
14. SRI. JAVAREGOWDA
S/O. LATE KEMPUGOWDA,
AGED ABOUT 40 YEARS,
15. SRI. PAPEGOWDA S/O. LATE KEMPUGOWDA,
AGED ABOUT 36 YEARS,
16. SMT. SHARADAMMA W/O. DEVEGOWDA
D/O LATE KEMPUGOWDA
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AGED ABOUT 35 YEARS,
17. SMT. NINGAMMA W/O KARIAPPA
D/O. LATE KEMPUGOWDA,
AGED ABOUT 33 YEARS,
R/O. HOSAYELEKERE VILLAGE,
PANDAVAPURA TALUK,
MANDYA DISTRICT-571434.
18. SMT. GEETHA W/O. SWAMYGOWDA,
D/O. LATE KEMPUGOWDA,
AGED ABOUT 30 YEARS,
R/O. CHIKKABOGANAHALLI,
PANDAVAPURA TALUK,
MANDYA DISTRICT-571434.
19. SMT. MANGALAGOWRI W/O RAMESHA,
D/O. LATE KEMPUGOWDA,
AGED ABOUT 28 YEARS,
R/O. KYATHANAHALLI,
PANDAVAPURA TALUK,
MANDYA DISTRICT-571434.
RESPONDENTS 11,12, 14, 15, 16
ARE RESIDENTS OF
K. BETTAHALLI VILLAGE,
PANDAVAPURA TALUK,
MANDYA DISTRICT.
SRI. PATEL JAVAREGOWDA
SINCE DEAD BY LRS
SMT. JAVARAMMA
W/O LATE PATEL JAVAREGOWDA
SINCE DEAD BY LRS
20. SRI LAKMEGOWDA
S/O LATE PATEL JAVAREGOWDA,
AGED ABOUT 65 YEARS,
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21. SRI GOWDEGOWDA S/O
LATE PATEL JAVAREGOWDA,
AGED ABOUT 63 YEARS,
22. SRI LAXMEGOWDA
S/O LATE PATEL JAVAREGOWDA,
AGED ABOUT 61 YEARS,
RESPONDENTS 20,21,22
ARE R/O K. BETTAHALLI VILLAGE,
PANDAVAPURA TALUK,
MANDYA DISTRICT-571434.
23. SMT. THAYAKKA
W/O JAVAREGOWDA
D/O. LATE PATEL JAVAREGOWDA,
AGED ABOUT 45 YEARS,
R/O CHANNAHALLI,
SRIRANGAPATNA TALUK,
MANDYA DISTRICT-571434.
24. SMT. MAHADEVI W/O SHANKARA
D/O. LATE PATEL JAVAREGOWDA,
AGED ABOUT 43 YEARS,
R/O SAKALESHPURA TOWN,
HASSAN DISTRICT-573134. ... RESPONDENTS
(BY SRI. KEMPANNA FOR R1-R6 & R8-R10
R7(A) - DISMISSED AS ABATED
SRI V.SRINIVAS FOR PROPOSED R11(B & C)
R7(B), (C), (D), R11(A), R12 TO R19, R21 ARE SERVED
R20 & R22 ARE HELD SUFFICIENT VIDE ORDER DATED
31.05.2008
SRI K.T.MOHAN KKUMAR, ADVOCATE FOR R23 & 24)
THIS RSA IS FILED U/S.100 OF CPC AGAINST THE
JUDGMENT AND DECREE DT.6.1.2006 PASSED IN
R.A.NO.25/2001 ON THE FILE OF THE PRL. CIVIL JUDGE
(SR.DN) AND JMFC, SRIRANGAPATNA, ALLOWING THE
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APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DT.24.1.2001 PASSED IN O.S.NO.487/1999 ON THE FILE
OF THE CIVIL JUDGE (JR.DN), PANDAVAPURA.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellants are defendant Nos.7, 8, 9(e), 1, 5 and 6(b) in O.S. No.487/1999 on the file of the Civil Judge (Jr.Dn), Pandavapura. They have come up in this regular second appeal impugning the divergent findings rendered in R.A.No.25/2001, on the file of the Principal Civil Judge(Sr.Dn) & J.M.F.C. at Srirangapatna.
2. The brief facts leading to this second appeal are as under;
The suit in O.S.No.487/1999 is for the relief of declaration of title and mesne profits of alleged encroached land to an extent of 10 guntas by defendant Nos.1 to 6 in survey No.7/4 of Chagashettahalli Village, Kasaba Hobli, Pandavapura 8 Taluk, Mandya District. The pleadings would indicate that the land in survey No.7/4 of Chagashettahalli measures 41 guntas. It is the case of the plaintiffs that the suit land is their ancestral land which is a portion of survey No.7/4 of Chagashettihalli. The defendants who are owners of several bits of properties in survey No.6/1 of Chagashetti halli Village, have encroached into their property to an extent of 10 guntas. According to the plaintiffs, the encroachment into their property bearing No.7/4 by first defendant is 2 ½ guntas, second defendant is 3 guntas, third defendant is 1¾ guntas, fourth defendant is 1½ guntas and fifth defendant is 1¼ guntas and 6th defendant ½ guntas. Therefore, they approached the court below to declare that the plaintiffs are owners of the entire extent of land in survey No.7/4 of Chagashettihalli and also to direct the defendant Nos.1 to 6 to vacate and deliver vacant 9 possession of the property which is in their unlawful possession and enjoyment. In the said suit, it is seen that defendant No.1 Laxmegowda son of Papegowda is owner of 14½ guntas of land in survey No.6/1b under registered sale deed dated 27.1.1977 vide Ex.D2 which is executed in favour of one Laxmegowda, son of Chikkaputtegowda. How he has come into possession of the said property is not explained either in the plaint or written statement. Defendant Nos. 2 to 5 are sons of one Laxmegowda who has purchased the land to an extent of 1 acre 14 guntas in survey No.6/1 under registered sale deed dated 27.9.1966. It is their case that the document under which they have purchased the property in their possession would indicate that the eastern portion of the property is bounded by 'halla'. Therefore up to the 'halla' they have right to be in possession. Accordingly, from the date of purchase of land under 10 Ex.D1 and Ex.D2 they have been in possession and enjoyment of the same. Therefore, there is no encroachment into the property of the plaintiffs. According to the defendants, though plaintiffs are owners of land in survey No.7/4, their ownership is only to an extent of 16 guntas according to the RTC.
3. Based on the pleadings, the following issues and additional issues were framed by the trial court;
1) Whether the plaintiffs prove that they are the absolute owner of the entire area described in the plaint schedule?
2) Whether the plaintiffs prove that the defendants have encroached any portion of the suit land?
3) Whether the defendants prove that they have perfected their title to the disputed area by adverse possession over the statutory period?
4) Whether the suit is barred by law of limitation?
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5) Whether the plaintiffs are entitled to recover possession of the area in the dispute?
6) Whether the plaintiffs are entitled past mesne profits claimed?
7) To what other relief, if any, the plaintiffs are entitled?"
Addl. issue
1.Whether the defendant proves that there is a big halla towards east of suit schedule property?
Thereafter, parties were called upon to adduce evidence. On behalf of the plaintiffs, second plaintiff- Prasanna was examined as P.W.2 and three other witnesses namely, M.Shivalingappa, Laxmegowda and Lingegowda were examined as P.Ws.1, 3 and 4. In support of their case, they produced in all sixteen documents which were marked as Ex.P.1 to Ex.P.16. On behalf of defendants, they examined in all three witnesses. Fifth defendant-Laxmegowda is examined as D.W.2. Other two witnesses are independent 12 witnesses. The defendants in support of their case produced in all 13 documents which were marked as Ex.D1 to Ex.D13.
4. The trial court on appreciation of the pleadings and evidence proceeded to answer first issue which is with reference to the plaintiffs establishing that they are absolute owners of the suit schedule property in the affirmative. So far as issue No.2 is concerned, which is with reference to encroachment of any portion of suit schedule property by defendants was answered in the negative. With reference to issue No.3 regarding claim of adverse possession as stated in the written statement by defendants was answered in the negative holding that they have not established their possession adverse to the plaintiffs. Issue No.4 which is with reference to the defence that the suit is barred by limitation is answered in the negative. With reference to issue 13 No.4 regarding the right of the plaintiffs to seek possession of the property which is in possession of the defendants was answered in the negative and the plaintiffs claim to seek mesne profits also in the negative and consequently, the suit of the plaintiffs is dismissed.
5. Though there is a finding to the effect that the suit schedule property is the absolute property of the plaintiffs, the same was not challenged by the defendants by filing cross-objection in the appeal filed by the plaintiffs in R.A.No.25/2001. The lower appellate court on appreciation of the pleadings and also finding on issues as could be seen in the judgment and also the grounds which are urged in the appeal proceeded to frame in all five points, which are as under;
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" 1) Whether the trial court erred in rejecting the report of the court commissioner i.e, the surveyor?
2) Whether the trial court erred in holding that, halla is the bifurcating boundary of both the survey numbers?
3) Whether the judgment and decree of the trial court are opposed to the settled principles of law, facts and probabilities?
4) Are there any grounds to interfere with the findings given by the trail court?
5) What order?"
6. Thereafter, the trial court proceeded to answer first point for consideration whether the trial court erred in rejecting the report of the court commissioner(the surveyor) in the affirmative and whether the trial court erred in holding that 'halla' is the bifurcating boundary of both the survey numbers in affirmative and third point regarding whether the judgment and decree of the trial court are opposed to settled principles of law, facts and probabilities, also in 15 the affirmative. With reference to any grounds to interfere with the findings given by the trial court is also answered in the affirmative and consequently set aside the judgment rendered by the trial court by re- appreciating the pleadings, evidence available on record and consequently, decreed the suit of the plaintiffs.
7. Being aggrieved by the said judgment, the defendants have come up in this second appeal impugning the divergent finding rendered in R.A. No.25/2001. This appeal was admitted on 13.3.2007 to consider the following substantial question of law which was framed at the time of admitting the appeal which is as under;
" Whether the lower appellate court was justified in declaring the title of the plaintiffs on the basis of oral evidence and survey records?"16
8. Heard the learned counsel for the appellants as well as contesting respondents. Perused the lower court records in the original suit as well as in the regular appeal. In the light of the grounds urged and on appreciating the same in the background of substantial question of law framed herein this court would answer the substantial question of law in the affirmative for the following reasons;
The records in the court below would clearly indicate that the plaintiffs are owners of land bearing Sy.No.7/4. It is an admitted fact that Sy.No.7/4 measures in all 1 acre 1 gunta, in other words 41 guntas. It is an undisputed fact that in the middle of said survey number there is in existence a gorge (halla) and that the ain land in said survey number is 20 guntas and 21 guntas is kharab land. Defendants Nos.1 to 6 in court below are admittedly owners of land bearing Sy.No.6/1 of very same village, namely 17 Chagashettalli village, Kasaba Hobli, Pandavapura Taluk, Mandya District. It is neither the case of plaintiffs that they are the owners of any portion of land bearing Sy.No.6/1 nor it is the defence of defendants that they own any land in Sy.No.7/4. To this extent the pleadings are not in dispute.
9. The plaintiffs in the court below are contending that the defendants whose land is Sy.No.6/1 is situated on the western side of Sy.No.7/4, that the defendants have encroached in to their property/land to an extent of 10 guntas. It is stated that when the land was subjected to survey, they came to know that the defendants have encroached in to their land in the manner as shown in the survey report and based on that they are claiming title. However, the defence of defendants is that actually the ain land which is in existence in Sy.No.7/4 is only 16 guntas and said 16 guntas is situated on the 18 eastern side of 'halla' and the plaintiffs are in possession and enjoyment of said land. According to them, the land in Sy.No.7/4 was lying fallow for many years and the same was not cultivated.
10. According to defendants, they are the owners of land bearing Sy.No.6/1 and 6/1b, which has been in their continuous possession and enjoyment and the boundary of Sy.No.6/1b is up to the 'halla' on its western side. It is stated that the 1st defendant became the owner of land in Sy.No.6/1b under registered sale deed dated 27.1.1977 and he is continuously in possession and enjoyment of said land up to 'halla' on its western side. It is further stated that the father of defendant Nos.2 to 5 late Laxmegowda was tenant of land bearing Sy.No.6/1 measuring to an extent of 1 acre 14 guntas excluding kharab, which according to them is situated up to the 'halla', which is in existence on the eastern side of 19 their land and the same is said to have been belonging to one S.K.Chikkannagowda of Seelanere. Subsequently, the father of defendant Nos.2 to 5 purchased said land for valuable consideration under registered sale deed dated 27.9.1966. Accordingly, he was in possession and enjoyment of said land from the date of sale deed and after his death, defendants 2 to 5 have become the absolute owners of land bearing Sy.No.6/1 by effecting partition. While doing so, they have divided the property up to the 'halla' and they have been in possession and enjoyment of same for more than 40 to 50 years. It is also their case that on the western side of 'halla' there is no land in existence in Sy.No.7/4 to which the plaintiffs can claim ownership.
11. In the proceedings before the court below, the plaintiffs have relied upon Exs.P15 & 16 - the survey sketches of land bearing Sy.Nos.6 and 7 of 20 Chagashettihalli village, where all the phodes of both Sy.Nos.6 and 7 are identified, wherein the encroached portion is shown in 'blue colour', which is on the western side of 'halla'. When said sketch is looked in to, the boundary which is dividing Sy.Nos.6 and 7 is clearly identified in said sketch prepared by the Court Commissioner appointed, who is also ADLR of Pandavapura Taluk. The said sketch clearly discloses that the 'halla' which is passing through Sy.No.7/4 is in the middle of said survey number on its northern portion where from the border of Sy.No.6/1 till the edge of 'halla' there are 6 items of properties, which are encroached by the defendants as shown in the said sketch. This is confirmed by another document, which is produced and marked by the plaintiffs Ex.P8
- the sketch issued from the office of ADLR, Pandavapura Taluk with reference to land bearing Sy.No.7/4. The said document at Ex.P8 also tallies 21 with the sketches prepared by the Court Commissioner, which are Exs.P15 and P16. The aforesaid 3 documents would correlate with the village map, which is produced and marked as Ex.P6 in the court below.
12. When the aforesaid documents at Exs.P6, P8, P15 and P16 are seen with reference to Exs.P1 and P2, which are again the survey sketches prepared by one Shivalingappa, First Division Surveyor on 18.11.1983, wherein Ex.P2 which clearly discloses the extent and measurement of Sy.No.7/4 as confirmed by hadubastu would clearly establish beyond all reasonable doubt that on the western side of 'halla' there is vacant land up to the boundary of Sy.No.6/1, which the defendants are claiming as land belonging to them based on the sale deeds, which are produced and relied upon by them at Exs.D1 and D2. In fact, the said documents at Exs.D1 and D2 would clearly 22 indicate that what is sold in favour of defendants under the said sale deeds of the years 1966 and 1977 respectively is only certain extent of land in Sy.No.6/1 and 6/1b only. Under both the sale deeds the defendants have not acquired title to any portion of land in Sy.No.7/4.
13. When these two documents at Exs.D1 and D2 along with other survey documents are seen, it is clear that the land which is existing on the western side of 'halla' and to the east of boundary line of Sy.No.6/1b is the land which forms part of land bearing Sy.No.7/4 which totally measures 1 acre 1 gunta. Though the ain land in said survey number is 20 guntas as could be seen from RTC, the kharab which is situated in the said land though it is located on either side of 'halla' the same belongs to the owners of ain land in Sy.No.7/4, who are none other than the plaintiffs. Therefore, an error is committed 23 by the trial court in accepting the defence raised by defendants relying upon the sale deeds that the boundary on the eastern side of their property goes up to the edge of 'halla'. Merely because it is referred to as boundary in the sale deeds executed in favour of defendants, the same would not confer any title on them in any portion of land bearing Sy.No.7/4 and their title under the sale deeds would get confined only to land bearing Sy.No.6/1. In fact, it is not even the case of defendants that they own any extent of land in Sy.No.7/4 and they are also not denying the title of plaintiffs to land bearing Sy.No.7/4 of Chagashettihalli village.
14. The mischief that is played by the defendants is trying to rely upon the boundary shown in both the sale deeds executed in their favour where the eastern boundary is shown as up to western margin of the 'halla'. But mere recital of such 24 statement in the sale deeds would not confer on defendants any title with reference to land in another survey number the title of which is not disputed by them. Further, when the land belongs to somebody, one cannot take advantage with reference to a recital regarding boundary in a document executed in his favour by a third party and set a claim to the land belonging to others. In the instant case, that is exactly what defendants have done and the same is established in all the survey sketches which are at Exs.P1, P15, P16 and P8 - village map.
15. Therefore, when all the documents are seen right from the village map to the survey sketches which is issued at an undisputed point of time and thereafter the Commissioner's report which is prepared based on the survey sketches available with ADLR would clearly disclose that the defendants have taken advantage of the recital in Exs.D1 and D2 in 25 showing the boundary line of their property as western edge of the 'halla' situated in Sy.No.7/4 and by relying on the same are trying to stake claim on a portion of land in Sy.No.7/4 though they do not have title to any extent of land in said survey number, which is rightly discussed by the lower appellate court highlighting the mistake committed by the trial court in accepting the documents relied upon by defendants as documents to confer title on them with reference to land in Sy.No.7/4 which is not even the portion conveyed to defendants under Exs.D1 and D2.
16. Accordingly, the lower appellate court on re- appreciation of the pleadings, evidence and material available on record has rightly set aside the judgment rendered by the trial court and has given a considered finding regarding the title of plaintiffs to entire extent of land in Sy.No.7/4 of Chagashettihalli village, which is to an extent of 1 acre 1 gunta or 41 guntas in all 26 which is inclusive of 20 guntas ain land and 21 guntas of kharab land. The said divergent finding rendered by the lower appellate court in RA.No.25/2001 on the file of Civil Judge (Sr.Dn), Srirangapatna is just and proper as against the erroneous judgment rendered by the trial court in OS.No.487/1999 on the file of Civil Judge (Jr.Dn), Pandavapura.
17. In that view of the matter, this court by upholding the judgment and decree rendered by the lower appellate court in RA.No.25/2001 and by answering the substantial question of law in the affirmative would dismiss this second appeal filed by defendant Nos.1, 5, 6(b), 7, 8 and 9(e).
Sd/-
JUDGE msu/nd