Karnataka High Court
Narasimhamurthy Since Deceased By Lrs vs Smt Varalakshmi on 3 February, 2023
Author: V. Srishananda
Bench: V. Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
R.F.A.NO.1495/2011(DEC)
C/W
R.F.A.NO.1494/2011(INJ)
IN R.F.A.NO.1495/2011
BETWEEN
NARASIMHAMURTHY
SINCE DECEASED BY LRS
1. SMT C G RAJESHWARI
AGED ABOUT 56 YEARS
2. CHETHAN P N
AGED ABOUT 31 YEARS
3. POOJA N
AGED ABOUT 26 YEARS
WIFE AND CHILDREN OF
LATE NARASIMHAMURTHY
ALL ARE R/O NO.64,
HAL III STAGE,
BANGALORE.
...APPELLANTS
(BY SMT.ANJANA SUNDAR, ADVOCATE)
2
AND
1. SMT VARALAKSHMI
W/O NAGARAJA REDDY
MAJOR
2. SMT JANAKAMMA
W/O JAYARAMA REDDY
MAJOR
BOTH ARE RESIDENTS OF
BABUSABARAPALYA
K R PURAM,
BANASWADI POST,
BANGALORE 560043
3. SMT BALAMMA
AGED :MAJOR
4. SRI B G NAGARAJA REDDY
AGE :MAJOR
5. SRI B G JAYARAMA REDDY
AGE : MAJOR
6. SRI B G MANJUNATHA
AGE : MAJOR
APPELLANTS NO.1 TO 3 ARE
WIFE AND SONS OF LATE
B N GOPALAKRISHNA REDDY
ALL R/O BABUSABARAPALYA
BANASWADI POST,
BANGALORE
...RESPONDENTS
(BY SRI G.KRISHNAMURTHY, SR. COUNSEL
FOR SRI V.NAGA REDDY, ADVOCATE)
3
THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41
RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE
DATED 11.7.2011 PASSED IN O.S.10045/1996 ON THE
FILE OF THE V ADDL. CITY CIVIL JUDGE, BANGALORE,
(CCH 13), DECREEING THE SUIT WITH COST.
******
IN R.F.A.NO.1494/2011
BETWEEN
NARASIMHAMURTHY
SINCE DECEASED BY LRS
1. SMT C G RAJESWARI
AGED 56 YEARS,
2. CHETHAN P N
AGED 31 YEARS
3. POOJA N
AGED 26 YEARS
WIFE AND CHILDREN OF
LATE NARASIMHAMURTHY
ALL R/O NO.64,
HAL III STAGE,
BANGALORE.
...APPELLANTS
(BY SMT.ANJANA SUNDAR, ADVOCATE)
AND
1. SMT VARALAKSHMI
W/O NAGARAJA REDDY
4
2. SMT JANAKAMMA
W/O JAYARAM REDDY
BOTH ARE RESIDENTS OF
BABUSABARA PALYA
K R PURAM,
BANASWADI POST
BANGALORE -560 043
3. SMT BALAMMA
4. SRI B G NAGARAJA REDDY
5. SRI B G JAYARAM REDDY
6. SRI B G MANJUNATHA REDDY
WIFE AND SONS OF
LATE B N GOPALAKRISHNA
ALL R/O BABUSABARA PALYA,
BANASWADI POST
BANGALORE -43
...RESPONDENTS
(BY SRI G.KRISHNAMURTHY, SR. COUNSEL FOR
SRI V.NAGA REDDY, ADVOCATE FOR R1, R3, R4 AND R6;
R2 AND R5 ARE SERVED BUT UNREPRESENTED)
THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41
RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE
DATED 11.7.2011 PASSED IN O.S.7159/1995 ON THE FILE
OF THE V ADDL. CITY CIVIL JUDGE, BANGALORE, (CCH
13), DISMISSING THE SUIT FOR PERMANENT
INJUNCTION.
****
THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 28.10.2022, COMING ON
FOR 'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE
COURT DELIVERED THE FOLLOWING:-
5
JUDGMENT
1. These appeals are directed against the common judgment passed in OS No.10045/1996 and OS No.7159/1995 dated 11.07.2011 on the file of the V Addl. City Civil Judge, Bengaluru, whereby, the suit in OS No.7159/1995 came to be dismissed and OS No.10045/1996 is decreed with cost.
2. The parties who are plaintiffs in OS No.10045/1996 are referred to as "the plaintiffs" and the plaintiff in OS No.7159/1995 is referred to as "the defendant" for the sake of convenience.
3. The facts relating to OS No.10045/1996 are as under:
OS No.10045/1996 is filed by Smt.Balamma and others against Narasimnamurthy and others with a prayer that plaintiffs be declared as the absolute and exclusive owners of the suit schedule property to deliver back physical vacant possession of the area measuring 82' x 20' 6 being the portion of suit 'A' schedule property which is described as 'B' Schedule with a further prayer of mandatory injunction directing the defendant to demolish six shops constructed in 'B' Schedule and specifically shown in red colour in the sketch annexed to the plaint and with a permanent injunction restraining the defendant from peaceful possession and enjoyment of the suit schedule property.
4. The claim of the plaintiffs is that the husband of the first plaintiff and father of the other plaintiffs B.N. Gopala Krishna Reddy acquired the schedule property and its adjoining property through registered sale deed dated 12.11.1969 from Chinnappa and Subbamma and was in peaceful possession and enjoyment of the same as a rightful owner. On 5.3.1973 B.N. Gopala Krishna Reddy sold the suit property in favour of of Subbamma through registered sale deed dated 5.3.1973 and on the very same day itself, there was a repurchase of the said property by the first plaintiff. After the death of B.N. Gopala Krishna 7 Reddy, plaintiffs have succeeded to the right, title and interest in the suit property and were in continuous possession of the suit property as joint owners.
5. It is further contended that B.N. Gopalakrishna Reddy had put up foundation for two shops in the suit property during his life time but he passed away before the construction of the shops. The construction of the shops were completed in the year 1988 and the same were leased out to B.V. Shivanna Reddy and T. Narayana Reddy.
6. When the matter stood thus, defendant No.1 Narasimhamurthy laid a claim over the suit property and filed a suit for injunction against the second plaintiff and two others in OS No.2772/1988 based on some spurious documents while showing the property as house No.160 and managed to obtain an exparte order of injunction at first instance. When second defendant appeared and contested the suit, the exparte order was recalled and first defendant being the plaintiff in the said suit, preferred an 8 appeal against the order vacating the injunction. The said appeal was also dismissed and later on suit also got dismissed on 12.09.1994.
7. It is further contended by the plaintiffs that first defendant having failed to disclose the source of title in respect of the property claimed by him, left the attempt to interfere with the property. However, on 30.08.1985 again all the defendants came near the suit property and tried to occupy the shops by using high handed methods. Plaintiffs have to approach the jurisdictional police and despite the same, first defendant was successful in June, 1996 in illegally dispossessing the plaintiffs from the suit property to the extent of East to West 20' and North to South 82' and encroached the same and constructed six shops thereon.
8. It is also contended that since the first defendant has constructed the shops without there being any right in respect of the suit 'B' Schedule property suit was sought to be decreed.
9
9. Upon receipt of suit summons, defendant though entered appeared but died during the pendency of the suit. His legal representatives were brought on record and among them, Legal representative Nos.2,3,4,6,8 and 9 have contested the suit, whereas LR Nos.5, 7 and 10 remained exparte. During the life time of the defendant, he had filed a written statement denying the plaint averments in toto and suit was resisted by contending that the plaintiffs have filed a false suit to knock off the property belonging to the defendant. It is also contended that House List No.4 is said to have been measuring 86' x 82', but in the alleged repurchase transaction on the very same day between the husband of the plaintiff and Subbamma, the dimension of the House List No.4 is mentioned as 91' x 82' which shows that the documents are concocted. Defendant denied the existence of any road on the western side of House List No.4 and in fact, it is a vacant piece of land. He has specifically contended that in between House List No.4 and House List No.160, there exists a fence [kalli beli = row of shrubs dividing two 10 properties]. He has further contended that said kallibeli existed even on the western side. He has specifically denied that B.N. Gopalakrishna Reddy obtaining any licence to put up two shops on the suit property and leased out the same to the tenants. He has specifically contended that shops were actually built by the defendant and the same are existing in House List No.160 and it was let out to the tenants by the first defendant. He has further contended that OS No.2772/1988 was filed by the defendant against B.N.Govinda Reddy and the second plaintiff seeking permanent injunction and after obtaining an order of temporary injunction, B.N. Govinda Reddy who is the brother-in-law of the first plaintiff had filed another suit in OS No.2931/1988 and since he did not get any interim order there was no necessity for him to continue with the OS No.2772/1988 and therefore, sought for dismissal of the suit.
10. He further contended that House List No.160 has been in exclusive possession of the plaintiffs family 11 members for over a period of 50 years and after the death of the father of the first defendant in the year 1982, House List No.160 was being used for storing garbage. He has further contended that one Yellappa cousin brother of the first defendant had taken a contract of removing the canteen garbage of ITI and was storing the said garbage in the House List No.160 in addition to cow dung garbage. When the first defendant commenced digging up foundation for putting up construction on House List No.160, B.N. Govindareddy, brother in law of the first plaintiff along with Kamalanabha Reddy & Nagaraja Reddy attempted to prevent the first defendant from carrying out the work which necessitated in filing of OS No.2772/1988. He has further stated that plaintiffs have suppressed the real facts and boundaries furnished in respect of the property in House List No.4 are misleading and incorrect boundaries. He has also stated that first defendant has taken electricity connection and put up the compound were around his property by obtaining necessary licence from the village panchayath, constructed the shops and he is in 12 physical possession of the property and sought for dismissal of the suit.
11. Sri. B.N.Govinda Reddy and Narasimhamurthy are the first defendant in OS No.10045/1996, and defendant inOS No.7159/1995 respectively. Based on the contents of the written statement in respect of the House List No.160, the defendants in the said suit, repeated the contents of the plaint averments in OS No.10045/1996 and opposed the suit.
12. Based on the rival contentions of the parties, following issues were framed in both the suits: "In O.S.NO.7159/1995
1. Whether the plaintiffs prove their lawful possession over the suit schedule property ?
2. Whether the plaintiffs prove the unlawful interference by the defendants over the suit schedule property ?
3. What order or decree ?"13 In O.S.No.10045/1996
1. Whether the plaintiffs prove that they are the absolute owners of "A" Schedule property?
2. Whether the plaintiffs prove that the first defendant, in the first week of June 1996 Illegally dispossessed the plaintiffs from a portion of "A" Schedule property measuring East-West 20ft and North-South 82ft as shown in "B" schedule property?
3. Whether defendant No.1 proves his possession over the suit schedule property?
4. Whether the defendants prove that the court fee paid by the plaintiffs is insufficient and the valuation is Incorrect?
5. Whether the first defendant proves that the suit is time barred in respect of relief of possession ?
6. Whether the plaintiffs are entitled for possession of "B" schedule property and are also entitled for declaration and injunction as prayed for?
7. Whether the plaintiff is entitled for mandatory injunction as prayed for ?
8. What reliefs the parties are entitled to ?
9. What decree or order ?"
13. In order to prove the case of the parties, four witnesses were examined on behalf of the plaintiffs in OS 14 No.10045/1996 where the common evidence has been recorded as PWs.1 to 4. Plaintiffs in all relied on 25 documents which were exhibited and marked as Exs. P1 to P25 comprising of Ex.P.1-Suit sketch; Ex.P.2-Sale deed dated 12.11.1959; Ex.P.3-Sale deed dated 5.3.1973; Exs.P4 to 6-Assessment Register Extract; Ex.P.7-Certified copy of the order dated 05.11.99 in C.C.24009/1996; Ex.P.8-Endorsement of Horamavu Agara Grama Panchayat; Ex.P.9-Certified copy of the order in VPC Appeal No.2/96-97; Ex.P.10-Certified copy of the meeting proceedings of Horamavu Village Panchayat; Ex.P.11 to 15- The photographs; Ex.P.16-Negative; Ex.P.17- Endorsement issued by Horamavu Agara Grama Panchayat; Ex.P.18-Sale deed dated 22.08.1962; Ex.P.19- Certified copy of the order dated 25.07.1996; Ex.P.20- Certified copy of the order dated 22.7.96; Exs.P21 to 22- Rent agreements; Ex.P.23-Assessment Register Extract; Ex.P.24-Tax paid receipt; Ex.P.25-Certified Copy of the sale deed.
15
14. On behalf of the defendants C.G.Rajeshwari one of the LR of the defendant Narasimnamurthy is examined as DW-1. Court Commissioner Sri K.T. Srinivasa Murthy is examined as CW-1. Likewise, on behalf of defendants in all 94 documents were relied on which were exhibited and marked as Exs.D1 to D94. The surveyor who is appointed as Court Commissioner who has produced the report which is marked as Ex.C1. Thereafter, the learned Judge heard the parties in detail and on cumulative consideration of the oral and documentary evidence on record dismissed the suit of the plaintiff in OS No.7159/1995 and decreed the suit of the plaintiffs in OS No.10045/1996 as referred to supra.
15. Being aggrieved by the same, the plaintiff in OS No. 7159/1995 and defendant in OS No. 10045/1996 have preferred these appeals on the following grounds: Grounds in RFA.No.1495/2011
The Judgment passed is perverse, illegal unreasonable deviating the sound and well established basic 16 principles of law contrary to documentary and oral evidence on record.
The Learned Trial Judge failed to see that the plaintiffs in 0.S.No.10045/1996 had not produced any document in proof of their title or possession of the H.L.No.4, i.e. the Schedule Property in the said suit.
The Learned Judge failed to see that the appellants herein (L.R.s of 1st Defendant), produced unimpeachable documents to prove their possession of H.L.No.160, located on the Western side of H.L.No.4 to prove their possessory title for over 40 years.
The Learned Judge failed to appreciate the fact that the Respondents herein had laid a claim earlier in the year 1988 to appellants' property alleging it to bear the Number H.L.No. 160/1 and the said suit filed was dismissed for default, in the year 1994. PW-1 claimed knowledge of earlier proceedings.
The Learned Judge conveniently ignored the fact that the Appellants herein were enjoying the injunction since 1995. The Respondents application seeking injunction was dismissed on merits and the said order was confirmed by the Hon'ble High Court in M.F.A. No.3464/1990 on /9/1996.
The Learned Judge failed to peruse or even glance the Exhibits which clearly showed not only Appellants possession but the fact that H.L.No.4 is vacant even to this day.17
The 'Issues' framed in the case were misplaced and the Learned Judge framed an issue regarding Insufficiency of Court fee casting the burden on Defendants unaware of the earlier considered order by the same court recasting the issue regarding Court Fee' casting the burden on the plaintiffs in
0.S.No.10045/1996 to prove that court fee paid by them was sufficient.
The Learned Judge who gave a finding on Issue No.3, went to the extent of Holding The Appellants herein' i.e. First Defendant in 0.S. No.10045/1996 was not in possession of the Schedule Property and at the same breath directs defendant No.1 to hand over possession of suit Schedule property.
The Learned Judge appears to have deliberately over looked Ex.D-88 wherein the Village Panchayat refused licence to the plaintiffs in 0.S.No. 10045/1996 for giving the wrong boundaries to H.L.No.4.
The Learned Judge failed to see that EX.P a document relied upon by the plaintiffs in
0.S.No.10045/1996 showed that the property I.e. H.L. No.4 was a vacant land even in the year 2006 and No construction was existing thereon.
The Learned Trial Judge did not apply his mind either to the Objection regarding Limitation or Insufficiency of Court Fee and proceeded. to pass the Judgement recklessly.18
The Learned Judge failed to see that the contention in written Statement filed in 0.S. No.715/1995 was that
16 feet East to West and 80 feet North to South was encroached constantly increased from pleading to pleading to 20 feet East to West and 82 feet North to South without any basis whatsoever.
The Learned Judge failed to see that the Grama Panchayat had refused licence to the respondents as early as in 1995 as Respondents had given wrong boundaries to H.L.No.4 and there were no shops in H.L.No.4 as claimed by the Respondents and that order of refusal (Ex.D-88) was not challenged by the Respondents and the said refusal order has hence become final.
The Learned Judge decreed the suit to an extent of 94 feet East to West granting a relief that was neither sought for nor prayed by the Respondents herein in their suit 0.S.No.10045/1996 The Commissioner who colluded with the Respondents gave a measurement East to West 74 feet, refused to measure property from the beginning of H.L.No.3 by allowing relief as prayed in respect of Schedule 'B' the Learned Judge granted to an extent of 94 feet East to West. The Learned Judge conveniently ignored and sidelined the Eastern boundary of H.L.No.4 and allowed the Respondents to Shrink the boundaries and increase 19 the measurement and gravely erred in decreeing the suit with costs.
The Learned Judge failed to see that, the property said to have been purchased under the Sale Deed, dated 1969 and was 3, 4 and 5 measuring 86 feet East to West, the Learned Judge held even after excluding H.L.No.3 the property was 91 feet East to West and decreed to an extent of 94 feet East to West 1.e. 20 feet shown in Schedule 'B' plus 74 feet, shown as Existing by the Commissioner. The Commissioner's reported was unchallenged by Respondents herein. The plaintiffs who claimed knowledge of plan possessed since 1988 files an application seeking amendment so as to incorporate a prayer seeking possession in 2004 claiming possession. Appellants in possession of property over 50 years in whose favour injunction has been granted. A Sketch showing and exactly depicting the property sold Under the Deed dated / /1969, relied upon by the plaintiffs in
0.S.No.10045/1996 was filed along with the written arguments identical to the Sketch Marked as Ex.P2, relied upon and marked through PW-1. The Learned Trial Judge failed to understand even the simplified argument addressed on behalf of the Defendants 1 (a)
(b) and (c) that the property sold had Dodda Veerappa's property on the East and measured 86 feet and when the Eastern boundary is reduced to H.L.No.3 the measurement from East to West cannot continued 20 to be 86 but shrinks to the Extent of H.L.No.3 the Cross-examination of appellant on 25-2-2011 becomes crucial wherein appellants admitted that even to this day to the East of H.L.No.3 Doddaveerappa's property exists.
The conduct of PW-1 during the course of Cross- examination on 25/2/2011 shows his intention to hide true facts from the court. The vital fact and admissions given by the plaintiffs in 0.S.No.10045/1996 that through P-1 that they were sailing with the defendants in O.S.No.2772/1988 and that in 0.S.No.2772/1988, the plaintiffs in 0.S.No.10045/1990 through their uncle B.N.Govinda Reddy tried to knock off the same property with a imaginary number 160/1, giving the same schedule and not as part of H.L.No.4 was conveniently over looked by the Trial Court Judge. The Trial Judge deliberately overlooked the fact that
0.S.No.2931/1988 filed for injunction through B.N.Govinda Reddy in respect of the non existant property 160/1, to knock off 160 belonging to these appellants was dismissed for non prosecution and the suit filed by appellant in 0.S.NO.2772/1988 was withdrawn as not pressed thereafter.
The Learned Trial Judge in his unreasonable and arbitrary order failed to note that the fact the wrong boundaries on the Western side given by the plaintiffs in 0.S.No.10045/1996 cannot bind third parties. 21 The Learned Trial Judge has overlooked the fact that the plaintiffs in 0.S.No.10045/1996 had in the amended plaint made the mischief of showing the Eastern and Western measurements 95 feet and later on rectified it, after the appellants filed an application. The Leaned City Civil Judge, instead of refusing the relief to the plaintiffs on the ground of abuse of the process of law deli berate suppression of the facts, fabricating of documents, perjury etc. proceeded to decree the suit with costs, committing a grave error. The Learned Judge miserably failed in his duties, as he did not even apply his mind to the valid and tenable averments of the defendant No.1 supported by cogent documents.
The Learned Judge has Exhibited his ignorance of the Provisions of Section 92 of Evidence Act wholly relying upon interested testimony of witnesses who are not material in establishing the case of either plaintiffs or defendants.
The Learned Judge has thoroughly failed in understanding the questions of law and facts involved in the case.
The Grave and serious abuse committed by the plaintiffs increasing the length of the property by 4 feet in every document, while entering into Sham Transactions to knock off H.L.No.160 was totally ignored by the Learned Judge.
22 PW-1 examined on behalf of plaintiff stated that there are only 2 documents pertaining to the Schedule Property one document of the year 1969 and another of the year 1973, thereby suppressing the fact of another unscrupulous documents that came into a existence the same day i.e. on 5-3-1973, this suppressingly including the root of the case was deliberately overlooked by the learned Trial Judge. The plaintiffs have not produced any document in proof of their title or the title of their so called vendors to prove their owner ship of the Schedule property. The boundaries and measurement shown in the Schedule 'A' and 'B' to the plaint are not supported by any of the documents relied upon by the plaintiffs themselves as suit documents and the plaintiffs case has no legs to stand upon.
The plaintiffs earlier tried to knock off the property belonging to these appellants by giving a fictitious number 160/1 and same boundary and failed in their attempt.
The Learned Trial Judge gravely erred in coming to the conclusion that H.L.No.160 in is a part of H.L.No.4 ignoring the cogent and unimpeachable documents produced to prove appellants possessory title to H.L.No.160.
23 The Learned Judge failed to understand that the initial burden rests heavily on the plaintiffs who come to court seeking declaration and possession to establish their title to the property they claim.
Grounds in RFA.NO.1494/2011 The Judgement passed is perverse, illegal unreasonable deviating the sound and well established basic principles of law contrary to documentary and oral evidence on record.
The Learned Trial Judge failed to see that the plaintiffs in 0.S.No.10045/1996 had not produced any document in proof of their title or possession of the H.L.No.4, i.e. the Schedule Property in the said suit. The Learned Judge failed to see that the appellants herein (L.Rs of 1st Defendant), produced unimpeachable documents to prove their possession of H.L.No.160, located on the Western side of H.L.No.4 to prove their possessory title for over 40 years. The Learned Judge failed to appreciate the fact that the Respondents herein had laid a claim earlier in the year 1988 to appellants' property alleging it to bear the Number H.L.No. 160/1 and the said suit filed was dismissed for default, in the year 1994. PW-1 claimed knowledge of earlier proceedings.
The Learned Judge conveniently ignored the fact that the Appellants herein were enjoying the injunction since 1995. The Respondents application seeking 24 injunction was dismissed on merits and the said order was confirmed by the Hon'ble High Court in M.F.A. No.3464/1990 on /9/1996.
The Learned Judge failed to peruse or even glance the Exhibits which clearly showed not only Appellants possession but the fact that H.L.No.4 is vacant even to this day.
The 'Issues framed in the case were misplaced and the Learned Judge framed an issue regarding Insufficiency of Court fee casting the burden on Defendants unaware of the earlier considered order by the same court recasting the issue regarding 'Court Fee' casting the burden on the plaintiffs in
0.S.No.10045/1996 to prove that court fee paid by them was sufficient.
The Learned Judge who gave a finding on Issue No.3, went to the extent of holding 'The Appellants herein' i.e. First Defendant in 0.S. No.10045/1996 was not in possession of the Schedule Property and at the same breath directs defendant No.1 to hand over possession of suit schedule property.
The Learned Judge appears to have deliberately over looked Ex.D-88 wherein the Village Panchayat refused licence to the plaintiffs in 0.S.No.10045/1996 for giving the wrong boundaries to H.L.No.4. The Learned Judge failed to see that Ex.P a document relied upon by the plaintiffs in 0.S.No.10045/1996 25 showed that the property i.e. H.L.No.4 was a vacant land even in the year 2006 and No construction was existing thereon.
The Learned Trial Judge did not apply his mind either to the Objection regarding Limitation or Insufficiency of Court Fee and proceeded to pass the Judgement recklessly.
The Learned Judge failed to see that the contention in Written Statement filed in 0.S. No.715/1995 was that 16 feet East to West and 80 feet North to South was encroached constantly increased from pleading to pleading to 20 feet East to West and 82 feet North to South without any basis whatsoever.
The Learned Judge failed to see that the Grama Panchayat had refused licence to the respondents as early as in 1995 as Respondents had given wrong boundaries to H.L.No.4 and there were no shops in H.L.No.4 as claimed by the Respondents and that order of refusal (Ex.D-88) was not challenged by the Respondents and the said refusal order has hence become final.
The Learned Judge decreed the suit to an extent of 94 feet East to West granting a relief that was neither sought for nor prayed by the Respondents herein in their suit 0.S.No.10045/1996. The Commissioner who colluded with the Respondents gave a measurement East to West 74 feet, refused to measure property 26 from the beginning of H.L.No.3 by allowing relief as prayed in respect of Schedule B the Learned Judge granted to an extent of 94 feet East to West. The Learned Judge conveniently ignored and sidelined the Eastern boundary of H.L.No.4 and allowed the Respondents to Shrink the boundaries and increase the measurement and gravely erred in decreeing the suit with costs.
The Learned Judge failed to see that, the property said to have been purchased under the Sale Deed dated 1969 was 3, 4 and 5 measuring 86 feet East to West, the Learned Judge held even after excluding H.L.No.3 the property was 91 feet East to West and decreed to an extent of 94 feet East to West i.e. 20 feet shown in Schedule 'B' plus 74 feet, shown as Existing by the Commissioner. The Commissioner's report was unchallenged by respondents herein.
The plaintiffs who claimed knowledge of plan possessed since 1988 files an application seeking amendment so as to incorporate a prayer seeking possession in 2004 claiming possession. Appellants in possession of property over 50 years in whose favour injunction has been granted. A Sketch showing and exactly depicting the property sold Under the Deed dated / /1969, relied upon by the plaintiffs in 0.S.No.10045/1996 was filed along with the written arguments identical to the Sketch Marked as Ex.P2, 27 relied upon and marked through PW-1. The Learned Trial Judge failed to understand even the simplified argument addressed on behalf of the Defendants 1 (a)
(b) and (c) that the property sold had Dodda Veerappa's property on the East and measured 86 feet and when the Eastern. boundary is reduced to H.L.No.3 the measurement from East to West cannot continued to be 86 but shrinks to the Extent of H.L.No.3 the cross-examination of appellant on 25-2- 2011 becomes crucial wherein appellants admitted that even to this day to the East of H.L.No.3 Doddaveerappa's property exists.
The conduct of PW-1 during the Course of Cross- examination on 25/2/2011 shows his intention to hide true facts from the court. The vital fact and admissions given by the plaintiffs in 0.S.No.10045/1996 that through PW-1 that they were sailing with the defendants in 0.S.No.2772/1988 and that in
0.S.No.2772/1988, the plaintiffs in
0.S.No.10045/1990 through their uncle B.N.. B.N.Govinda Reddy tried to knock off the same property with a imaginary number 160/1, giving the same schedule and not as part of H.L.No.4 was conveniently over looked by the Trial Judge. The Trial Judge deliberately overlooked the fact that
0.S.No.2931/1988 filed for injunction through B.N.Govinda Reddy in respect of a non existent property 160/1, to knock off 160 belonging to these 28 appellants was dismissed for non prosecution and the suit filed by appellant in 0.S.No.2772/1988 was withdrawn as not pressed thereafter.
The Learned Trial Judge in his unreasonable and arbitrary order failed to note that the fact that the wrong boundaries on the Western side given by the plaintiffs in 0.S.No.10045/1996 cannot bind third parties.
The Learned Trial Judge has overlooked the fact that the plaintiffs in 0.S.No.10045/1996 had in the amended plaint made the mischief of showing the Eastern and Western measurements 95 feet and later on rectified it, after the appellants filed an application. The Learned City Civil Judge, instead of refusing the relief to the plaintiffs on the ground of abuse of the process of law deliberate suppression of facts, fabricating of documents, perjury etc. proceeded to decree the suit with costs, committing a grave error. The Learned Judge miserably failed in his duties, as he did not even apply his mind to the valid and tenable averments of the defendant No.1 supported by cogent documents.
The Learned Judge has Exhibited his ignorance of the Provisions of Section 92 of Evidence Act wholly relying upon interested testimony of witnesses who are not material in establishing the case of either plaintiffs or defendants.
29 The Learned Judge has thoroughly failed in understanding the questions of law and facts involved in the case.
The Grave and serious abuse committed by the plaintiffs increasing the length of the property by 4 feet in every document, while entering into Sham Transactions to knock off H.L.No.160 was totally ignored by the Learned Judge.
PW-1 examined on behalf of plaintiff stated that there are only 2 documents pertaining to the Schedule Property one document of the year 1969 and another of the year 1973, thereby suppressing the fact of another unscrupulous documents that came into a existence the same day i.e. on 5-3-1973, this suppressing including the root of the case was deliberately overlooked by the learned Trial Judge. The plaintiffs have not produced any document in proof of their title or the title of their so called Vendors to prove their owner ship of the Schedule Property. The boundaries and measurement shown in the Schedule 'A' and 'B' to the plaint are not supported by any of the documents relied upon by the plaintiffs themselves as suit documents and the plaintiffs case has no legs to stand upon.
The Plaintiffs earlier tried to knock off the property belonging to these appellants by giving a fictitious 30 number 160/1 and same boundary and failed in their attempt.
The Learned Trial Judge gravely erred in coming to the conclusion that H.L.No.160 is a part of H.L.No.4 ignoring the cogent and unimpeachable documents produced to prove appellants possessory title to H.L.No.160.
The Learned Judge failed to understand that the initial burden rests heavily on the plaintiffs who come to court seeking declaration and possession to establish their title to the property they claim."
16. The grounds urged in these appeals are practically similar. Re-iterating the grounds urged in the appeals, Smt. Anjana Sundar, learned counsel for the appellants in both the appeals vehemently contended that after dismissal of the OS No.2772/1988, for default, high handedly, defendant has encroached the property of the plaintiffs and constructed six shops and therefore, the plaintiffs were constrained to file the suit in OS No.7159/1995 and as a counter blast, the suit in OS No.10045/1996 came to be filed and sought for allowing of the appeals.
31
17. She further contended that the title to the property is not properly appreciated by the learned Trial Judge in the impugned judgment and has ignored the sale deed. She further contended that even though the sale deed of the defendants mentioned that they were sold the extent of 86' East to West and 82' North to South, the suit has been decreed for 91' East to West and 82' North to South, which per se establishes that learned Trial Judge has not properly appreciated the contents of the sale deed while passing the impugned judgment. She also pointed out that in the sale deed relied on by the defendant themselves on the western boundary, it has been mentioned as road, whereas the case of the defendants is that there exists a fence which is per se wrong and therefore, sought for allowing of the appeal.
18. She also pointed out that the learned Trial Judge has not properly appreciated the fact that plaintiffs herein have settled possession of the property since time immemorial and perfected their title to the property by 32 adverse possession and thus sought for allowing of the appeal.
19. Per contra, Sri G.Krishnamurthy, learned Senior counsel representing the respondents in both the appeals, contended that the claim of the plaintiffs in OS No.7159/1995 is based on the possession alone and there is no title to the suit property pleaded by the plaintiffs which has been rightly appreciated by the learned Trial Judge.
20. He further argued that title to the property in House List No.160 is established by placing necessary documents on record and therefore, plaintiff cannot question the title of the defendants in respect of the suit property; more so, when the plaintiff has no right title or interest over the suit property.
21. He also pointed out that in the Commissioner's report marked at Ex.C1 on the western side of the suit property there exists a 8 feet road which conclusively establish the case of the defendants and therefore, the suit 33 of the appellants herein has been rightly rejected by the Trial Court and the suit of the respondents herein has been rightly decreed by the Trial Court in the impugned judgment. As such, the grounds urged in the appeal memorandum are hardly sufficient to interfere with the well reasoned judgment of the Trial Court which are impugned in these appeals and sought for dismissal of both the appeals with costs.
22. In reply, the written submissions have been filed by the learned counsel for the appellant which reads as under:
"WRITTEN SUBMISSION OF THE APPELLANTS IN THE ABOVE CASE The Appellants in the above case seek the kind leave of this Hon'ble Court to submit the following written submission in order to assist this Hon'ble Court to arrive at just conclusion.
1) BACK GROUND IN BRIEF P.Narasimhamurthy (Since deceased) Filed O.S.No.2772/88, against:
(1) B.N.Kamalanabha Reddy S/o Nanjunda Reddy. (2) Nagaraja Reddy S/o B.N.Gopala Krishna Reddy 34 (3) B.N.Govinda Reddy S/o late Nanjunda Reddy on 15.06.1988 seeking injunction in respect of H.L.No.160, Babusabara Palya, Banaswadi Village Panchayath, K.R.Puram Hobli, Bangalore South Taluk bounded on:
East by: Late B.N.Gopalakrishna Reddy's Property, West by Road, North by:Gangappa's Property South by:Road, Document (I.A.Filed with supporting affidavit) is produced and marked as Ex.D.65. The extent is 30 ft. East to West: and 80 ft. North to South:
The stand of the Plaintiff in the said suit (Appellant herein) has been consistent throughout until now. As on 15.6.88, several documents were produced in proof of Appellant's possession since 1974- until 1988 for a period of 14 years.
Ex.D1 to D9 produced and marked herein were the documents relied upon in the said suit and on the basis an order of Temporary Injunction was granted on 15.6.1988.
The second Defendant (second Plaintiff in O.S.No.10045/96), though served did not represent and only B.N.Govida Reddy filed his statement of objections as at Ex.D.66 contending that Schedule Property is a Property bearing No.160/1 and belongs to him. The said B.N.Govinda Reddy, by suppressing 35 the service of notice filed O.S.No.2931/88 claiming injunction for a factitious H.L.No.160/1 showing the very same boundaries of H.L.No.160.
O.S.No.2931/88 was dismissed for default and since the interference ceased Appellant herein withdrew O.S.No.2772/88 as not pressed. Ex.D64 may kindly be perused.
The Appellant and his family members in continuous, exclusive possession of the Property bearing H.L.NO.160 as the absolute owners (with shops thereon put up as per the plan) for over 50 years, as on 27.10.95, filed O.S.No.7159/95 when again an attempt was made by B.N.Govinda Reddy, Smt. Varalakshmi, Smt.Janakamma and Lalanatha Reddy in respect of H.L.No.160, Babusabarapalya bounded on:
East by : Late B.N.Gopalakrishna Reddy's
Property,
West by : Road
North by : Gangappa's Property
South by : Road
Measuring 30 ft. East to West: and 80 ft. North to South:
On 12.01.1996
1) Smt.Balamma W/o B.N.Gopala Krishna Reddy
2)B.G.Nagaraja Reddy S/o B.N.Gopala Krishna Reddy,
3) B.G.Jayarama Reddy S/o B.N.Gopala........36
4) B.G.Manjunatha Reddy S/o Gopala Krishna filed O.S.No.10045/96 on 12.01.1996 against the Appellant in respect of H.L.No.4, situated at Babusabarapalya, Krishnarajapura Hobli, with following boundaries.
East by : House Property bearing No.3+5 West by : Road, North by : Property of Gangappa South by : BDA Service Road and property of Srinivasa Reddy.
Measuring East to West: 91 ft. North to South 82 ft.
Suppressing several facts and not disclosing that Appellant was in continuous possession of adjacent Property, by giving wrong measurements and boundaries to H.L.NO.4 seeking declaration and injunction pleadings were complete in both the cases.
On 15.06.2011, issues were framed in
O.S.No.10045/1996.
The first issue reads thus
"Whether the Plaintiffs prove that they are the absolute owners of 'A' Schedule Property"
2) Clubbing of two suits Unfortunately two suits were clubbed i.e. 7195/95, a suit filed for injunction simplicitor in respect of H.L.No.160, against four Defendants who were not Plaintiff in O.S.No.10045/96.37
The Schedule Property in O.S.No.7195/95 has been H.L.No.160 of Babusabarapalya and the Schedule Property in O.S.No.10045/96 has been H.L.No.4 with boundaries shown therein entirely different from the boundaries to H.L.No.160.
In O.S.No.10045/96 Temporary Injunction was sought by Plaintiffs that and IA was rejected by the Hon'ble Court. An appeal in MFA No.3464/96 was preferred before this Hon'ble Court by the Plaintiffs in O.S.No.10045/96 and the same came to be dismissed by this Hon'ble Court by order dated 11.09.96 confirming the order passed by the trial court.
Holding "the trial court after taking into consideration the documentary evidence produced by both sides as prima-facie found the existence of house list No.160 as well as the fact that the Defendant has put up a construction and let out the same to the tenants. For those reasons, the trial court has declined to grant the relief of Temporary Injunction. There is no infirmity in the order passed by the lower court which calls for interference by this court. Appeal is therefore dismissed". The said order was not challenged O.S.No.10045/96 (Appellants in MFA No.3464/96) by the Plaintiffs in the said order is 38 produced and marked as Ex.D21, Page 56 of Paper book Volume -II.
3) Anamolies and amendment of plaint in O.S.No.10045/96 The Plaintiffs in O.S.No.10045/96, having failed to establish their possession amended the plaint to incorporate a prayer for possession contending they were dispossessed from H.L.No.4 in the year 1996 and sought amendment in 2004 which sounds rather ridiculous. In order to corroborate their stand that encroachment was to an extent of 20 feet by 82 ft. the Plaintiffs in O.S.No.10045/96 had shown the East to West: measurement as 95 ft. and later amended and reduced to 91 ft. (No basis for both the measurements) The Plaintiffs in O.S.No.10045/96 relied upon a document styled as sale deed dated 10.11.1969 in support of their contention. Chinnappa and Subbamma executed a Sale Deed in respect of a Property comprising of H.L.No.3, 4 and 5 with a small house, encompassing also 3 and 5 with Doddaveerappa's Property as eastern boundaries measuring 86 ft. East to West:
and 82 ft. North to South (Ex.P2). the sketch produced at Ex.P1 gives wrong measurements to properties title to which is claimed as per Ex.P2. The measurements from eastern boundaries encompasses 3, 4 & 5, for the measurements of East to West: to tally with the Sale Deed Ex.P2 if H.L.No.3 and 5 are excluded the measurements of H.L.4 can 39 only be 56 ft. East to West: and 82 ft. North to South The Respondents did not file the typed copy of Ex.P2. Further Ex.P3 is (Document registered as No.6895/72-73) which is a Sale Deed executed by Subbamma in favour of B.N.Gopala Krishna Reddy claiming right over the said Property under a document of Sale deed bearing No.6894, executed by B.N.Gopala Krishna Reddy in favour of Subbamma. These two sham transactions have taken place the same day i.e. on 5.3.1973. Though Respondent herein chose not to produce document No.6894, the Appellant produced the same as Ex.P93 & typed copy at Ex.P93(a). Under the said document B.N.Gopala Krishna Reddy sells the Property purchased by him under Ex.P2 to Subbamma purchases under Document No.6895 on the same date i.e. on 05.03.1973 with a different boundary altogether. The intention to knock off the Appellant's Property becomes clear as the Schedule Property to the Sale Deed under Document No.6895 is as follows: Land bearing House List No.4 bounded on:
East by : H.L.No.3 and vacant land bearing No.5 West by : Road, North by Gangappa's Land, South by Srinivasa Reddy's land, East to West: 91 ft. and North to South 82 ft. without any basis either for the dimension or for the boundaries. During the course of cross examination 40 of PW.1, he admits that "It is true that still H.L.NO.4 is a vacant site" (Page -90 of paper book- I) It is pertinent to mention that on 11.12.2007, the cross examination was recorded.
The witness (PW1) further admits during the course of cross examination (Page 92 of paper Book
-1) that "To East of House List No.3 even now there is Property of Doddaverappa"
This categorical admission is recorded on 25.02.2011. The document referred in Ex.P2 of the year 1906 shows the western boundary as Segebeli or Soapnut bush. Taken collectively and read with the two Sale Deeds produced by Respondents the dimensions will be 86 ft. East to West: measured from Doddaveerappa's Property. 4) Appointment of Commission and illogical conclusion arrived by the Trial Judge. The totally confused Commissioner despite the memo of instructions given, measures the Property from H.L.No.3 & 5 as eastern boundaries, overwrites and shows the measurement as 74 ft. East to West (overwriting on 76 ft. East to West) After the exclusion of HL 3 & 5, HL. No.4 cannot measure anything but 56 ft. East to West.
Already the Respondent have usurped 20 feet more than what they were entitled to, by encroaching the western side of H.L.No.4 by altering their eastern boundaries.
41
5) Admissions by way of affidavit irretractable:
In their frustrated attempts to knock off H.L.160 and to stop the Appellant from putting up new shops as per the plan sanctioned to him by 'Horamavu Agara Village panchayath', the Plaintiffs in O.S.No.10045/96, prefer an appeal before the Assistant Commissioner Bangalore sub- Division on 22.7.96, the application supported by the affidavit of 6th Respondent herein reads thus.
"The Respondent No.3 is actually constructing the shop in H.L.No.160 and a portion of the village road" (marked as Ex.D94) Therefore the intention of the Plaintiffs in O.S.No.10045/96 to somehow knock off and interfere either by labeling the said Property as HL No. 160/1 or HL No.4, by themselves or through their relatives becomes evident and amply clear. Simultaneously Ex.P4 which is the document relied upon by the Plaintiffs in O.S.No.10045/96, states the boundaries as hereunder. East by :
Doddaveerappa's Property West by : Road, North by : Property of Gangappa, : Srinivas Reddy's Property South by The Plaintiffs in O.S.No.10045/96 have been taking inconsistent and contradictory stands in relation to Property bearing H.L.No.4.
6) Pleadings possessory title and the question of law O.S.No.7159/95 filed by Appellant against (1) 42 B.N.Govinda Reddy, (2) Varalakshmi, (3) Janakamma, and (4) Lalanatha Reddy B.N.Govinda Reddy, who was the Defendant in O.S.No.2772/88 and Plaintiff is 0.S.No.2931/88 remained ex-parte and did not choose to contest O.S.No.7159/95 giving way for other Defendants to take baseless and contradictory stands.
It is pertinent to mention that second Defendant in O.S.No.10045/96 B.G.Nagaraja Reddy, who was the second Defendant in O.S.No.2772/88 had chosen to remain absent in the said suit (O.S.No.2772/88).
O.S.No.7159/95 is a suit for bare injunction against Defendants therein by Appellant claiming right, title, interest and exclusive possession in respect of H.L.No.160.
The Defendants in O.S.No.7159/95 are not the Plaintiffs in O.S.No.10045/96 (filed for declaration and injunction in respect of H.L.No.4) Whereas suit O.S.No.7159/95 is filed in respect of H.L.No.160, O.S.No.10045/96 is filed in respect of H.L.No.4. Neither the parties, the Property numbers, boundaries nor the Property numbers tally in these two suits.
43
In O.S.No.7159/95 the law did not require pleadings of possessory title against Defendant who never claimed title over H.L.No.160.
In O.S.No.10045/96, the Plaintiffs therein claimed declaratory relief in respect of H.L.No.4. The Appellant herein being the first Defendant along with a number of other Defendants contested the suit, sensing the attempt to lay a false claim to his Property by showing wrong boundaries to H.L.No.4.
The Appellant averred that the boundaries shown in Ex.P2 were neither correct nor supported by any document/ parent deed, since the document of the year 1906 referred in Ex.P2 showed different boundaries altogether. The western boundary in the said document is shown as Segebeli or soapnut bush. The law contemplate that the person claiming to be the true owner should prove his title and it is only then the burden shifts on to the Defendant to prove his possessory title. This principle is also based on the well established principle of law that, "Plaintiff has to stand on his own legs".
7. The Plaintiffs in O.S.No.10045/96 failed to Discharge the burden cast on them as per issue No.1:
Again a person in settled possession can file a suit for bare injunction against a person who neither 44 claims title nor has possession this is the position so far as O.S.No.7159/95 filed in respect of H.L.No.160 is concerned. The Hon'ble Supreme Court of India has reiterated the position in A. Subramanian and another V/s R.Panner Selvam In civil Appeal No.9472/2010 decided on 8.2.2021. Holding in para 26 of the said judgment that the suit for injunction filed by the Plaintiff deserved to be decreed on the basis of admitted and established possession of the Plaintiff".
The land mark decision rendered in Ravindrakant Grewal and others V/s Manjith Kaur
and others Reported in (2019) 8 SCC 729 holding that 'Possessory title' recognized by the law from time immemorial can be used both as a sword and a shield and such person is not remediless (this citation and two other citations Viz (1) Ramaiah v/s The chief Secretary Government of Karnataka and others; 2) Darshan Kaur Bhatia v/s Ramesh Gandhi and another; Have already been filed before this Hon'ble Court with a Memo on 12.9.2022 for the kind perusal).
The Appellants submit that the Hon'ble Supreme Court of India in Civil Appeal Nos.2843 to 2844 of 2010 decided on 27.08.2020 in the matter between Nazir Mohammed V/S J.Kamala and others held "In the facts and circumstances of this case, 45 where the Appellant -Defendant was owner of only a portion of the suit Property but has admittedly been in possession of the entire suit Property, and the Appellant /Defendant has, in his written statement, claimed to be in continuous possession for years as owner, the defence of the Appellant in his Written Statement was, in effect and substance, of adverse possession even though ownership by adverse possession had not been pleaded in so may words......."
The Hon'ble Bombay High Court has held in Gangaram Rambhau Zite and others V/S Chindhu Degadu Tikone (Since deceased by LRS) Reported in AIR 2003 Bombay 1 At para 12 has held as ........In my opinion mere registered Sale Deeds are not conclusive and clinching evidence to prove the length and width of the Property as described therein when the third party has questioned the description of the Property wherein his Property was included. These registered Sale Deeds are no doubt binding on the vendor and the Purchaser but they cannot adversely affect the rights of the third party when the third party is disputing the description of the Property in the registered Sale Deeds. In that event heavy burden lies on the party who is claiming that what is described in the registered Sale Deeds was correct and that the third party had no right to claim any portion of the described lane in the Sale Deed". 46
Looked at from any angle the Judgment and Decree passed by the learned City Civil Judge is not sustainable and arbitrary and also perverse and as such deserves to be set aside.
23. In view of the above rival contentions of the parties and on perusal of the material on record meticulously and following points would arise for consideration:
(i) Whether the plaintiff in OS
No.7195/1995 has made out a case that
plaintiff is in absolute possession and
enjoyment of the suit property and is entitled for the decree as prayed for?
(ii) Whether the plaintiffs in OS No. 10045/1996 prove that they are the owners of the suit property and therefore, the decree granted by the Trial Court in their favour is justified?
(iii) Whether the impugned common judgment is suffering from legal infirmity or perversity and thus calls for interference?
(iv) What order?
47
24. As could be seen from the pleadings, the Original Suit filed by the parties in OS No.10045/1996, is a comprehensive suit. In the said suit, on behalf of the plaintiffs, Sri B.G. Manjunatha Reddy is examined as PW-1. He has filed an affidavit in lieu of his examination in chief and he has also filed additional affidavit in lieu of his further examination in chief. Manjunatha Reddy is the son of Gopalkrishna reddy resident of Babusabara Palya, Bengaluru. In his affidavit he reiterated the plaint averments contending that the suit property in OS No.10045/1996 is having a House List No.160 measuring east to west 91 feet and north to south 82 feet which is described in suit 'A' schedule to the plaint. The said property is adjoining the property of Chinnappa and Subbamma and was purchased on 12.11.1969 by Sri Gopalakrishna reddy through a registered sale deed. Thereafter, he enjoyed the said property as a rightful owner. Subsequent thereto on 5.3.1973, said property was sold in favour of Subbamma. However, on the same day, again Gopalakrishnareddy purchased the said 48 property from Subbamma. However, why such a sale and resale was made is not forthcoming on record.
25. But, the fact remains that after the sale by Subbamma on 5.3.1973 in favour of the father of the PW- 1, Gopalakrishna reddy enjoyed the property till his death on 28.12.1983.
26. PW-1 specifically contended that after the death of his father, all the plaintiffs namely Balamma, Nagarajreddy, Jayaramreddy and PW-1, enjoyed the said property as rightful owners and they obtained plan and licence and constructed two shops and leased out the same to the tenants for a period of five years from the year 1995. PW-1 further deposed that in the month of July 1996, Narasimhamurthy who is defendant in OS No.10045/1996 and plaintiff in OS No.7159/1995, illegally dispossessed the plaintiff from the said property to the extent of 20 feet east to west and 82 feet north to south ('B' schedule property). Therefore, plaintiffs were constrained to file the suit. After dispossessing the 49 plaintiffs, Narasimhamurthy illegally constructed six shops on the suit 'B' schedule property without there being any right, title or interest over the suit 'B' schedule property.
27. PW-1 further deposed that the claim of Narasimhamurthy that he is the owner of House List No.160 is not at all in existence and in order to grab the property of plaintiffs, he created documents and laid a false claim with active support of the elected representatives. He further deposed that previous suit filed by the defendant Narasimha Murthy ended in dismissal for default which did not create any right in favour of Narasimha Murthy. Detailed cross examination of PW1 did not yield any result in either pairing the case of appellants or dislodging the claim of plaintiffs in O.S.No.10045/1996.
28. To substantiate the plaint averments in OS No.10045/1996, three more witnesses were examined on behalf of the plaintiffs i.e., T.Narayanareddy, Sampath Kumar and Prakash. They all supported the case of the 50 plaintiffs by deposing in line with the examination in chief of PW-1. Among them, Praskash has specifically deposed that he is the owner of House List Nos.12, 13 and 14 and his properties are abutting to eastern side of the road formed by the Gramapanchayath. He also deposed that to the southern side of his property, property of plaintiffs are situated and in between his property and plaintiffs' property, property of Rangappa is situated which was a vacant land. He also deposed about the plaintiffs constructing two shops and letting out the same to the tenants. PWs.2 and 3 deposed about using the road formed by the Gramapanchayath and they are also aware of the plaintiffs enjoying the suit property.
29. In the cross examination of PW-1, he admits about the acquisition proceedings by the Bengaluru Development Authority in respect of suit property. PW-1 also admits that the plan granted in favour of Narasimha Murthy was challenged before the Asst. Commissioner, Bengaluru North Taluk. PW-1 further admits that his 51 junior uncle Govinda Reddy, has suffered an order of injunction in OS No.2931/1988 filed by Narasimha Murthy.
30. Likewise, in the cross examination of PW-2, it is elicited that there was a survey conducted by the Tahasildar in respect of dispute between Gopala Reddy and Narasimha Murthy in the year 1988. He has also answered that on the western side of the suit property in OS No.10045/1996, there exists a public road. He admits that he was in occupation of one of the shops constructed by Gopala Krishna Reddy.
31. In the cross examination of PW-3 he has answered that he is the owner of land bearing survey No.58. He has further answered that to reach his land, from his child hood he has been using 25 feet road situated to the western side of the suit property formed by Gramapanchayath. He has also answered in cross examination that Narasimha Murthy has illegally encroached portion of the road and Narasimha Murthy had 52 political background and constructed shops by utilising portion of the road and encroaching the land of plaintiffs.
32. In the cross examination of PW-4, it is elicited that he has not produced any documents to show that he is the owner of property in House List Nos.12 to 14.
33. On behalf of the defendants, wife of Narasimha Murthy is examined as DW-1. By the time, she was examined, Narasimha Murthy was no more. She filed an affidavit reiterating the contents of the written statement and plaint averments in OS No.7159/1995. She maintained that Narasimha Murthy and after his death, herself and her children namely Chetan and Pooja are in enjoyment of property bearing House List No.160 measuring 30' x 80'. She further deposed that said property was in possession of Narasimha Murthy and his family members for a period of more than 50 years. She also deposed about filing of OS No.2931/1988 and dismissal of the said suit in the year 1994 and there was no interference by plaintiffs in OS No.10045/1996 for a 53 period of 9 years and it is her husband who constructed six shops in property bearing House List No. 160 as per the sanctioned plan and therefore, sought for dismissal of the suit.
34. She further deposed that on 5.3.1973, transaction that took place between Gopala Krishna Reddy and Subbamma is only a make believe transaction in order to knock of the valuable property belonging to Narasimha Murthy. She also deposed that Subbamma did not possess any marketable title to sell in favour of the Gopala Krishna Reddy - father of PW-1.
35. In her cross examination, she admits the suggestion that to the eastern side of her alleged property, property of Sri Gopala Krishna Reddy is situated. She also admits the rough sketch produced by the plaintiff is true and correct. She further admits that in the sketch prepared and produced by the court commissioner, wherein the Court Commissioner has mentioned that to the western side of the plaintiffs property, there exits a 54 road. She also admits that Narasimha Murthy did not construct shops in the year 1995. She also admits that towards the northern side of the property bearing House List No.4 there exists the property of Gangappa and there is a house constructed by Gangappa. It is admitted by her that to the western side of Gangappa's property there exists a road, which connects the service road formed by Bengaluru Development Authority to reach Babusabara Palya. She also admits that she was very much present along with her advocate when Court Commissioner visited the suit property and she has seen the Court Commissioner measuring the suit property. She admits that the Court Commissioner also measured the adjoining properties and then boundaries of the suit property was fixed.
36. It is not in dispute that Sri K.T. Srinivasamurthy was appointed as the Court Commissioner to measure the property in House List No.4 and to find out whether there exists a property in House List No.160 as is 55 contended by Narasimha Murthy. In pursuance of the Commissioner's warrant, Sri K.T. Srinivasamurthy, visited the suit property and in the presence of parties to the suit and their respective advocates, measured the suit property and filed a report and a sketch, the same is marked as Ex.C1.
37. The relevant documentary evidence on record or the sale deed executed in favour of B.N. Gopala Krishna Reddy dated 12.01.1969 whereby property bearing House List No.4 was sold by Chinnappa and Subbamma. The same is marked as Ex.P2. However, there was a sale and resale on 5.3.1973 by Gopala Krishna Reddy in favour of the Subbamma and Subbamma in favour of the Gopala Krishna Reddy. One such sale deed is Ex.P3. Exs.P4 to P6 are the agreements showing that Gopala Krishna Reddy got assessed the property House List No.4 and was paying the taxes. Ex.P1 is the suit sketch and Ex.P24 is the tax paid receipt. Exs.P11 to 15 are the photographs of the suit property and Exs.P21 and P22 are the rent agreements 56 executed between Gopala Krishna Reddy and his tenants in respect of two shops.
38. Among 94 documents relied on behalf of the defendants, katha extracts are marked as Exs.D1, D2 and D6; licence is marked as Ex.D3; Sanctioned plans are marked as Exs.D4 and D19; Partition deed is marked as Ex.D5; copy of the application is marked as Ex.D7; survey sketch is marked as Ex.D8; mahazar Ex.D9; copy of the complaint is marked as Ex.D10; lease agreements are marked as Exs.D11, 16, 17, 86; estimate for electrical work Ex.D12; copy of FIR Ex.D13; endorsement given by police Ex.D14; copy of complaint Ex.D15; Building licence Ex.D18; certified copy of the order in OS No.10045/1996 is Ex.D20; certified copy of the order in MFA No.3464/1996 is Ex.D21; Electricity bills are marked as Exs.D22, 23, 51-54, KEB cards Exs.D24 to 29; Death certificate of Narasimha Murthy Ex.D30; Tax paid receipts are marked as Exs.D31 to 34, 67-70; letters are marked as Exs.D35, 36, 72, 82 and 90-92; Receipts for having purchased construction 57 materials Exs.D37 to 50; receipt dated 21.7.1996 Ex.D55; certified copy of mahazar Ex.D56; receipt issued by Basaveshwara electricals Ex.D57; acknowledgement issued by police Exs.D58-60; notice given by police Ex.D61; copy of suit summons Ex.D62; copy of emergent notice Ex.D63; certified copy of order sheet Ex.D65; certified copy of the written statement Ex.D66; General Power of Attorney Ex.D71; copy of complaint Ex.D73; certified copy of the judgment and decree in OS No.776/1996 Exs.D74-75; receipts for having paid electricity bills Exs.D76-81; Assessment Register Extract Ex.D83; RP Cover Ex.D84; copy of the caveat Ex.D85; copy of FIR in crime No.337/88 Ex.D87; certified copy of the endorsement issued by Horamavu Agara Grama panchayath Ex.D88; copy of police complaint Ex.D89; certified copy of the sale deed Ex.D93; certified copy of the IA filed before the Assistant Commissioner is marked as Ex.D94.
39. On cumulative consideration of the oral and documentary evidence on record, it is seen that plaintiff in 58 OS No.10045/1996 claimed the relief in the suit based on the title. The title has flown based on the registered sale deeds. Whereas, plaintiff in OS No.7159/1995 claims the title to the suit property based on continuous possession. No doubt, possession of the landed property for sufficient length of time assumes importance in a dispute with regard to the immovable property. Likewise, it is settled principles of law that when there is a discrepancy as to the measurement in a title deed and the actual possession, boundaries would prevail over the measurement/s furnished in the title deed.
40. Keeping these settled principles of law in the background, when the real dispute between the parties is analysed, plaintiff in OS No.7159/1995 not only claimed the suit property is the property of the Narasimhamurthy, but questioned the title of the plaintiff in OS No.10045/1996.
41. In this regard, Sri G. Krishnamurthy, learned Senior counsel vehemently contended that plaintiff in OS 59 No.7159/1995 cannot question the title of the plaintiff in OS No.10045/1996. He buttresses his arguments in this regard by contending that a registered document when not cancelled has got a better probative value than a oral contention that a party is in physical possession of the disputed property. Smt. Anjana Sundar refuted said contention on behalf of the plaintiff in OS No.10045/1996 by contending that plaintiff in OS No.7159/1995 has enjoyed the property for several decades and therefore, she had the benefit of an order of injunction, wherein possession of the suit property by her client was recognized by the courts of law and therefore, suit of her client is to be decreed and suit of the other side needs to be dismissed.
42. In a matter of this nature, no doubt possession of the property assumes greater importance in resolving the real dispute between the parties. Since both the parties claimed possession over the suit property, a Court Commissioner was appointed by the Trial Court to conduct 60 spot inspection and place the factual aspects on the spot before the court.
43. It is an admitted fact that Court Commissioner did visit the spot and in the light of the Memorandum of instructions furnished by the parties, conducted a detailed spot inspection and furnished a report marked at Ex.C1.
44. On placing Ex.C1 in juxtaposition with Ex.P1 marked in OS No.10045/1996, it is crystal clear that the boundaries mentioned in the sale deed of the plaintiff in OS No.10045/1996 tallies with Ex.C1. In fact, in Ex.C1, on the western side, the Court Commissioner has noted 25' road and the structure said to be belonging to the plaintiff in OS No.7159/1995 has encroached 17' of the road and only 8' of the road is remaining.
45. Smt. Anjana Sundar, learned counsel representing plaintiff in OS No.7159/1995, contended that before formation of the layout and the carving out the road, the suit property was being utilized for dumping 61 garbage yard and therefore, the structure, was well within the properties owned by the plaintiff in OS No.7159/1995 and later on the layout and road came to be formed which was resisted by the plaintiff by approaching the court of law and therefore, Commissioner's report is incorrect.
46. Court Commissioner is examined as CW-1. In his cross examination, it is elicited that he had carried documents relating to the disputed property to be measured while visiting the suit property. He has specifically answered that there is no document available relating to House List No. 160 and 4 in his office. He has further answered that he has not received any memo of instructions from the court but the same was sent to the Tahasildar. He denied that Ex.C1 is not in conformity with the rough sketch prepared by him. He denied the suggestion that property bearing House List No. 160 was surveyed in the year 1986 and there are records in his office.
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47. It is pertinent to note that in the entire cross examination of CW-1, there is no suggestion that the disputed property was being utilized for the purpose of dumping garbage. Nor any documents are furnished to establish that suit property was used as dumping yard.
48. Since CW-1 did not possess any enmity or animosity against the defendant in OS No.10045/1996 nor any extra affinity in favour of the plaintiff, his evidence assumes a greater significance insofar as the factual aspects prevailing in respect of the suit property is concerned and as such, Ex.C1 is to be accepted on its face value.
49. Further, in order to establish the title over the suit property, plaintiff in OS No.10045/1996 has produced the relevant sale deeds and they are also marked in evidence. Only one area which would give rise to some doubt about the transaction is the sale deed said to have been executed on 5.3.1973 in favour of Subbamma and Subbamma in turn selling the same property on the very 63 same day in favour of the plaintiff in OS No.10045/1996. However, that itself would not be sufficient enough to doubt the title of the plaintiff in OS No.10045/1996 especially when there is no title at all in favour of the defendant in OS No.10045/1996.
50. Smt. Anjana Sundar however contended that legal position with regard to the possessory title is well settled and when the appellants have enjoyed the property House List No.160 by paying taxes for a period of five decades, accepting the incorrect documentary proof is incorrect. In support of her contentions, she has relied on the decisions which are cited in her written submissions, submitted to the court, extracted supra.
51. No doubt, there cannot be any dispute as to the principles of law enunciated in Ravindrakant Grewal and other decisions referred to supra. However, when there is material evidence on record placed by a party, tracing his title based on registered documents, the possession if any i.e., held by the appellant is definitely 64 illegal possession. In other words, if the possession of the suit property is without there being a title, pleaded by the appellants, contrary to the title pleaded by the respondents based on the registered documents, the case of the respondent seeking declaration and possession of the property must prevail over the so called possessory title of the appellant.
52. Even assuming that the plaintiff in OS No.7159/1995 had possession in respect of the suit property, the same would not be sufficient to discard the claim of the plaintiff in OS No.10045/1996.
53. A feeble attempt is no doubt made by appellants that plaintiff in OS No.7159/1995 has perfected title in respect of the suit property by adverse possession.
54. On cumulative consideration of the materials on record, this court is of the considered opinion that plaintiff in OS No.7159/1995 has failed to establish the 65 said aspect of the matter by placing necessary evidence on record. Nor any requisite pleading is available on record.
55. Thus, the finding recorded by the Trial Court in decreeing the suit of plaintiff in OS No.10045/1996 and dismissing the suit of the plaintiff in OS No.7159/1995 is based on sound and logical reasoning. This court is unable to appreciate the grounds of attack in respect of the said finding. Nor this court is in a position to term the said finding as perverse in view of the foregoing discussion. Accordingly, the principles of law enunciated in the said decision and facts of the present case and the facts involved in those decisions are altogether different. Further, the principles stated in the aforesaid decision would not improve the case of the appellant any further.
56. However, as could be seen from the registered documents relied on by the plaintiff in OS No.10045/1996, the measurement of the suit property in House List No.4 is 86' x 82'. However, the learned Trial Judge has granted decree in OS No.10045/1996 to the extent of 91' x 82', 66 which is incorrect. As such, to that extent, the impugned judgment needs interference.
57. Thus, from the above discussion, the Point Nos.1 and 3 are answered in Negative and Point No.2 is answered in Partly in Affirmative.
58. REGARDING POINT NO.5: In view of my findings on Point Nos.1 to 4, following order is passed:
ORDER
(i) *RFA No.1494/2011 is hereby dismissed.
RFA No.1495/2011 is hereby allowed-in-part.
(ii) The decree granted by the Trial Court in OS No.10045/1996 is modified by mentioning the measurement as 86' x 82' instead of 91' x 82'.
(iii) Office to draw modified decree accordingly.
(iv) No order as to costs.
Sd/-
JUDGE
PL*
*Corrected vide Court order dated 19.06.2023