Karnataka High Court
Boraiah S/O Siddaiah vs N N Byatarayappa S/O Narayanappa on 22 September, 2012
Author: K.L.Manjunath
Bench: K.L. Manjunath
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22ND DAY OF SEPTEMBER, 2012
BEFORE
THE HON'BLE Mr. JUSTICE K.L. MANJUNATH
REGULAR FIRST APPEAL No.1108/2005 (DEC)
BETWEEN:
Boraiah s/o Siddaiah,
Major, No.2067/A, 3rd Main,
East End Road, Jayanagar
9th Block, Bangalore. .. APPELLANT
(By Advocate Sri.K.G.Sadashivaiah for
S & S Assts.)
AND:
1. N.N.Byatarayappa s/o
Narayanappa, 50 years,
No.51, Markandeya Layout,
Bangalore.
2. N.Ramanna s/o late M.
Nanjundappa, major, No.98,
1st Main, Chamarajpet,
Bangalore. .. RESPONDENTS
(By Advocate Sri.V.Vishwanath for R-1)
(R-2 .. Appeal dismissed)
- - - - -
This RFA is filed under Sec.96 of CPC
against the judgment and decree dated 14.7.2005
passed in OS No.721/84 on the file of 24th Addl.
2
City Civil Judge, Bangalore decreeing the suit
for declaration and permanent injunction.
This Appeal is coming on for final hearing
this day, the Court delivered the following:
J U D G M E N T
Legality and correctness of the judgment and decree passed by the XXIV Addl. City Civil Judge, Bangalore in OS No.721/1984 dated 14.7.2005 is called in question in this appeal by the appellant who was 1st defendant in the suit.
2. Facts leading to this appeal are as hereunder: R-1/plaintiff instituted the suit to declare plaintiff as a tenant in respect of plaint schedule property and that the defendant has no manner of right, title or interest in respect of plaint schedule property and to restrain the defendant or any person claiming under him from putting up any construction or interfering with the same.
3
Suit schedule property is a vacant land measuring east-west 15 feet and north-south 16 feet on the south-east corner of samadhi of one Nanjundappa situated in Sy.No.23/1 of Kari- thimmanahalli, Kasaba Hobli, Bangalore North Taluk bounded on east by 1st defendant's site bearing No.40 of Markandeya layout, west by plaintiff's property, remaining portion of the property taken by the plaintiff on lease, north by samadhi and the open space belonging to the plaintiff and south by 1st defendant's site bearing No.40 of Karkandeya layout. It is the case of the plaintiff that in Sy.No.23/1 of Karithimmenahalli village, a society known as Bhakta Markandeya Silk Handloom Weavers Co- operative Society has formed a layout known as Markandeya layout and 1st defendant has purchase a site bearing No.40 from the original allottee by name Subbanna and that plaintiff is a tenant in respect of an area surrounded of a samadhi of 4 Nanjundappa which was retained by them and that the plaintiff has also constructed a house and put up foundation for further construction and enclosing site purchased by him with barbed wire fencing and that the defendant made an attempt to dispossess the plaintiff on the south-eastern corner, therefore in order to protect his posse- ssion, he filed the suit for injunction, 1st defendant contested the case denying right, title and interest of the plaintiff over the suit property and it is contended by him that he is the owner of site No.40 measuring east-west 30 ft. and north-south 45 ft. He has purchased the same from one Subbanna who had in turn purchased the site from the original allottee S.Munivenkatappa and he never made any attempt to encroach any portion of the alleged site claimed by the defendant, therefore he requested the court to dismiss the suit. 2nd defendant is none other than the lessor of the plaintiff. 5
Trial court framed the following issues for its consideration:
1. Does plaintiff proves that he was in lawful possession of the suit schedule property on the date of suit?
2. Is the alleged interference proved?
3. Is the plaintiff entitled for relief of injunction?
In order to prove their respective contentions, on behalf of the plaintiff he got examined himself as PW-1 and one Venkataramu as PW-2 and relied upon documents Exs.P-1 to 19.
Appellant/1st defendant examined himself as DW-1 and he also examined one Krishnappa as DW-2 and relied upon Exs.D-1 to 28. Trial court after considering the evidence held issues 1 to 3 in the affirmative and decreed the suit. Challenging the same, present appeal is filed.
3. Heard the counsel for the parties.
4. The main contention of the appellant before the court is that trial court did not consider 6 that the defendant has no intention to encroach any portion of the property said to have been taken by the plaintiff on lease and that the lease deed relied upon by the plaintiff does not contain the schedule except measurement and therefore plaintiff did not prove his right over the property as described in the schedule with boundaries. He further contends that in view of his own pleadings, suit schedule property has been described stating that the defendant's site bearing No.40 is situated on the southern side as well as eastern side and when he is not disputing the existence of 1st defendant's property towards the east and south, when the measurement of the appellant's property is not in dispute as the same is measuring east-west 30' and north-south 45', trial court should not have granted a decree in respect of an un- identified property as the lease deed relied upon by the plaintiff does not have any 7 boundaries. He alternatively contends that he has no intention to encroach even an inch of land in excess of his site bearing No.40 measuring 30' east-west and 45' north-south. He further contends that on account of the injunction granted based on the surmise appellant is unable to utilize the entire site. In the circumstances, he requests the court to set aside the judgment and decree and allow the appeal declaring that the judgment of the trial court does not bind the defendant/appellant so far as it relates to his site No.40 measuring east-west 30' and north-south 45'. He further contends that looking into the evidence of PW-1 & 2, no court can hold that an attempt has been made by 1st defendant to encroach the portion of others in excess of his property. In the circumstances, he requests the court to set aside the judgment and decree and allow the appeal.
8
5. Per contra, counsel appearing for R-1 contends that the lease in favour of R-1/ plaintiff is not in dispute and that the suit is filed by him when an attempt is made by 1st defendant to put up construction encroaching the plaintiff's property. Therefore, he contends that the judgment and decree of the trial court is just and proper does not call for any interference.
6. After hearing the parties, what is to be considered by this court in this appeal is:
1. Whether the plaintiff has proved his lawful possession of the schedule property in view of the dispute in regard to the identity of the property of the plaintiff?
2. Whether the plaintiff has proved the identity of his property?
3. Whether the judgment and decree of the trial court requires to be set aside or modified?
7. On perusal of the plaint and boundaries given in the schedule, respondent/plaintiff 9 himself admits that 1st defendant is the owner of site No.40 and site No.40 is situated to the eastern and southern side of his property. Suit schedule property is measuring 15' x 16'. In order to show the existence of measurement of the lease granted to him, he has relied upon the un-registered lease deed. On perusal of the un- registered lease deed, it is clear that the boundaries to the lease deed has not been mentioned except saying that 20' in and around the samadhi of Nanjundappa. Therefore, it is difficult for any one to identify plaintiff's property which is alleged to have been taken on lease. Even if we consider that plaintiff has taken the property on lease, by looking into his pleadings as he has contended that he has put up a house and fenced with barbed wire, he has not placed any material to show that the nature of building constructed by him. He has stated in the plaint that he has constructed residential 10 building. If he has constructed residential building, there cannot be encroachment by the 1st defendant because there cannot be any vacant land unless and until he produces copy of the plan sanctioned to show the area in which the plaintiff has constructed a residential house and whether he has left any place. But the photographs produced by the plaintiff shows the existence of a tomb without any construction. Therefore, it is clear that plaintiff has not approached the court with clean hands.
8. When the appellant/defendant contends that he has no intention to encroach any portion of the property when plaintiff/R-1 has failed to prove the identity of the property taken on lease and no court can grant an injunction in respect of un-specified property. This aspect of the matter has not been considered by the trial court. Be that as it may, trial court did not consider right, title and interest of the 11 defendant's property. If the trial court had decreed the suit holding that the defendant shall not encroach any portion in excess of his site bearing No.40 measuring east-west 30' and north-south 45', this court would not have normally interfere with such judgment. When the 1st defendant is having a site both on southern and eastern side of plaintiff's property, it is difficult to accept the arguments of the respondent's counsel that an attempt is made to encroach 15' x 16' because the same will not fit into the defendant's site in any manner. Therefore, this court is of the opinion that trial court without appreciating that the plaintiff's lease deed does not contain the boundaries in order to identify the property taken on lease and without there being any evidence to show the alleged encroachment by the 1st defendant, suit for injunction could not have been granted. In addition to that, an injunction 12 can be granted if the plaintiff has proved his lawful possession and if he has further proved the interference by the 1st defendant. But in this case, both the points are mis-conceived, since there is no definite evidence to show the extent of property leased with boundaries. Defendant is willing to give an undertaking that he is not going to encroach any portion in excess of his site. In such circumstances, trial court should not have granted decree.
9. In addition to that, site No.40 purchased by the 1st defendant was formed by a society known as Bhakta Markandeya Silk Handloom Weavers Co-operative Society for which respondent/ plaintiff was a secretary when he was examined as PW-1. Therefore, there was no difficulty for him to produce copy of the layout plan of the society to show the measurement and boundaries of the 1st defendant's site and property retained by the family members of Nanjundappa in order to 13 lease out a portion of it to the plaintiff. In the absence of such material document, he being a secretary of the society in not producing the layout plan, an adverse inference has to be drawn against the plaintiff viewed from any angle this court is the opinion that the trial court has proceeded with a presumption that the plaintiff has become lessee of a property and on which portion an attempt is made by the 1st defendant to encroach the same. Trial court, without considering the evidence properly and wrongly decreed the suit.
10. In the result, the appeal is allowed. Judgment and decree of the trial court is hereby modified. Decree granted by the trial court shall not affect the rights of the 1st defendant/ appellant to construct a building or using his site bearing No.40 measuring east-west 30' and north-south 45' and appellant has no right to 14 encroach any portion of the land in excess of his site bearing No.40 measuring 30' x 45'.* Sd/-
JUDGE.
R/121012 * Corrected vide Court order dt:15.3.2013