Karnataka High Court
Sri H Naganna vs Sri Marilinge Gowda Since Dead By Lrs on 6 November, 2020
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
1
R
IN THE HIGH COURT OF KARNATAKA BENGALURU
DATED THIS THE 6th DAY OF NOVEMBER 2020
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR SECOND APPEAL NO.2110/2010 (DEC/ INJ)
BETWEEN:
1. SRI.H. NAGANNA
AGED ABOUT 85 YEARS
S/O LATE HONNAIAH
R/AT WESTERN PORTION OF 2374
KANTHARAJA URS ROAD
K.G. KOPPAL, MYSORE.
2. SRI.H. SEENAPPA
SINCE DEAD BY LRS
a) SMT. LAKSHMAMMA
AGED ABOUT 75 YEARS
W/O LATE H. SEENAPPA
b) SRI.S.PRASANNA
AGED ABOUT 38 YEARS
c) SRI.S.RAMESH
AGED ABOUT 36 YEARS
d) SMT.S.PREMA
AGED ABOUT 50 YEARS
e) SMT.S.VIJAYA
AGED ABOUT 46 YEARS
2
f) SMT.RATNA
AGED ABOUT 42 YEARS
APPELLANTS 2(a) TO 2(f) ARE WIFE
AND CHILDREN OF LATE H.SEENAPPA
AND APPELLANTS 2 TO 7 ARE
RESIDING AT EASTERN PORTION OF
D.NO.2374, KANTHARAJA URS ROAD,
K.G.KOPPAL, CHAMARAJA MOHALLA,
MYSORE-570 014.
3. SRI.H.RAMU
SINCE DEAD BY LRS
a) SMT.SIDDAMMA
(SINCE DEAD, DELETED)
b) SMT.LAKSHMI
AGED ABOUT 42 YEARS
c) SMT.GEETHA
AGED ABOUT 38 YEARS
D/O LATE H.RAMU
d) SRI.M.R.SWAMY
AGED ABOUT 35 YEARS,
S/O LATE H.RAMU
e) SMT.JAYALAKSHMI
AGED ABOUT 32 YEARS
D/O LATE H.RAMU
f) SRI.R.MANJU
AGED ABOUT 30 YEARS
S/O LATE H.RAMU
APPELLANTS 3(b) TO 3(f) ARE THE CHILDREN
OF H.RAMU AND RESIDENTS OF PORTION OF
2374, KANTHARAJA URS ROAD, K.G.KOPPAL,
3
CHAMARAJA MOHALLA
MYSORE-570 014. ...APPELLANTS
(BY SRI. Y.K.NARAYANA SHARMA, ADVOCATE)
AND
1. SRI. MARILINGE GOWDA
SINCE DEAD BY LRS
i)(a) SMT. LAKSHMAMMA
AGED ABOUT 76 YEARS
ii)(b) SRI.SHIVAKUMAR
AGED ABOUT 44 YEARS
iii)(c) SRI. MOHANKUMAR @ MADAPPA
AGED ABOUT 39 YEARS
iv)(d) SMT. MOHAN KUMARI
AGED ABOUT 36 YEARS
v)(e) SMT.RENUKA
AGED ABOUT 32 YEARS
W/O KUMAR
vi)(f) SMT. LAKSHMI
AGED ABOUT 34 YEARS
W/O.THIBBAIAH
LRs 1 IS THE WIFE AND 2 TO 6
ARE THE SONS AND DAUGHTERS
OF THE 1ST RESPONDENT.
ALL ARE R/AT NO.2376/1,
KANTHARAJA URS ROAD, K.G.KOPPAL,
CHAMARAJA MOHALLA, MYSORE-570 014.
2. SRI. THIMMA ALIAS CHIKKANNA
SINCE DEAD BY LRS
4
(a) SMT. PUTTALINGAMMA
AGED AOUT 60 YEARS
W/O. LATE THIMMA ALIAS CHIKKANNA,
(b) SRI. PRAKASH
AGED ABOUT 35 YEARS
S/O.LATE THIMMA ALIAS CHIKKANNA
(c) SMT.C.LEELA
AGED ABOUT 30 YEARS
D/O.LATE THIMMA ALIAS CHIKKANNA
(d) SMT. BHAGYA
AGED ABOUT 26 YEARS
D/O.LATE THIMMA ALIAS CHIKKANNA
(e) SRI.RAGHU
AGED ABOUT 22 YEARS
D/O.LATE THIMMA ALIAS CHIKKANNA
(f) SRI.RAVI
AGED ABOUT 20 YEARS
D/O.LATE THIMMA ALIAS CHIKKANNA
3. SMT.PUTTALINGAMMA
AGED ABOUT 60 YEARS
W/O.LATE THIMMA ALIAS CHIKKANNA
2(a) TO 2(f) AND NO.3 ARE
R/AT D.NO.2374/A, CH-15,
KANTHARAJA URS ROAD,
K.G.KOPPAL, CHAMARAJA MOHALLA
MYSORE-570 014.
... RESPONDENTS
(V/O.DATED 17.01.2014, SERVICE OF NOTICE TO
R1(i) (a), R1(ii) (b), R1(iii) (c), R1(iv) (d), R1(v) (e),
R1(vi) (f), R2(b), R2(f) are held sufficient,
5
NOTICE TO R2-A, R2-D, R2-E AND R3 ARE SERVED)
---
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
CHALLENGING THE JUDGMENT AND DECREE DATED
25.06.2010 PASSED BY THE FAST TRACK COURT-IV,
MYSORE, IN R.A.NO.98/2006 CONFIRMING THE
JUDGMENT AND DECREE DATED 01.02.2001 PASSED BY
THE COURT OF V ADDITIONAL 1ST PRINCIPAL CIVIL JUDGE
(JR. DN.), MYSORE IN O.S.NO.66/1995.
THIS RSA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This is an appeal from the Court of Fast Track Court- IV at Mysore, confirming the judgment and decree passed by the V Additional Ist Civil Judge (Jr.Dn.) at Mysore.
2. The parties will be referred in their original characters as plaintiff/s and defendant/s keeping in mind that plaintiff/s are now appellants and defendant/s are respondents.
3. The events out of which the present dispute between the parties may be shortly stated. Plaintiffs brought simple suit for declaration and consequential relief 6 of permanent injunction in respect of plaint schedule property.
The original plaintiffs are the sons of Late Honnaiah and defendant No.1 is alleged to be the purchaser of some property from defendant No.2. The 2nd defendant is one among the co-owner of the plaint schedule property. Defendants 2 and 3 are husband and wife and defendants 4 to 8 are their children.
It is the specific case of plaintiffs that the house property bearing Door.No.2374, situated in Kantharaje Urs Road, K.G.Koppal, Chamaraj Mohalla, Mysore, originally belonged to one Hanumanthe Gowda, the father of defendant No.2 . After the death of Hanumanthe Gowda, his wife Smt.Thibbamma and as a guardian of her children including defendant No.2 sold the entire northern portion of the house 40 feet east to west and 19 feet 3 inches north to south along with the vacant space attached to this property on the northern side up to Kantharaje Urs Road in 7 favor of the father of plaintiffs 1 to 3 namely, Honnaiah under a registered sale deed dated 6.11.1957.
It is stated that Sri.Honnaiah has executed a Will on 03.03.1971 bequeathing the property in favor of his children plaintiffs 1 to 3 giving the western 1/3rd portion to 1st plaintiff, eastern 1/3rd portion to 2nd plaintiff and the middle 1/3rd portion to 3rd plaintiff. They have been in continuous possession of the same all along in their own right inclusive of the northern vacant space attached to each one of the portions of their houses.
It is averred that Honnaiah during his lifetime had extended the construction by putting a lane to roof construction to an extent of 6 feet by 40 feet leaving 3 feet space both on the eastern and western side and the remaining vacant space attached to these properties up to Kantharaje Urs Road, on the northern side has been in occupation and possession of plaintiffs. Plaintiffs specifically pleaded after the sale of northern portion in favor of plaintiffs father, defendants 2 to 8 retained only 8 southern portion of Door No 2374. It has been specifically averred that defendants 2 to 8 did not retain any property on the northern side of the property.
It is stated that plaintiff No.1 has already constructed a toilet on the western side of the vacant space lying to the north of his 1/3rd portion. Plaintiff No.3 applied for a license to put up a toilet and compound on the western side of his property in the space on the northern side attached to his portion. It has been stated that after obtaining license, he made an attempt to excavate foundation to construct a toilet and compound in the northern vacant space adjacent to his house, but defendant No.1 obstructed the construction stating that he has purchased a vacant space of about 35 feet east to west and 16½ feet north to south from defendants 2 to 8 and he has given a police complaint against plaintiff No.3 .
Plaintiffs specifically averred that what was sold in favor of their father was the entire property which extended up to Kantharaje Urs Road on the northern side. 9 Hence, they specifically urged that defendants 2 to 8 have not retained any property on the northern side and as such, they could not have sold any portion lying towards Kantharaje Urs Road. Based on these averments, plaintiffs filed suit for the relief of declaration and injunction in respect of vacant space only which lies to the northern side of the property purchased by their father. The suit schedule property is denoted by the alphabets 'ABCDEF' in the rough sketch which was produced along with the plaint.
Defendant No.1 filed written statement and denied the plaint averments. In brief, defendant No.1 in his written statement denied that Smt.Thibbamma has sold the entire northern side of the property in favour of plaintiffs' father and retained only the southern portion of the house property.
In paragraph No.5 of written statement, he stated that he has purchased the vacant site about 35 feet East to West and 16½ feet North to South from defendants 10 No.2 to 8 under a registered sale deed dated 31.03.1994. He also denied plaintiffs possession over the entire suit schedule property.
In paragraph No.6, he stated that he purchased the property of defendants 2 to 8 which was retained by them after a portion of the property to an extent of 35 feet east to west and 19 feet three inches north to south and 6 feet vacant space lying towards the North of the property was sold to the plaintiffs father. He pleaded ignorance about the Will. Accordingly, prayed for dismissal of the same.
Defendant Nos.2 to 8 have not filed any written statement.
Based on the above said pleadings, the trial Court has framed the following issues:
"1. Whether the plaintiff proves that he is the absolute owner of suit schedule property?
2. Whether the plaintiff proves that Thibbamma had sold the northern portion of D.No.2374 measuring 40' east to west, 11 19.3 feet north to south along with vacant space to one Honnaiah, father of plaintiffs?
3. Whether the plaintiff proves that their father executed Will bequeathing 1/3rd share to each of the sons?
4. Whether the plaintiff proves that the 3rd plaintiff constructed compound and toilet with due license?
5. Whether the defendant No.1 proves that he is the owner of disputed vacant space?
6. Whether this Court has no jurisdiction to try the suit?
7. Whether the court fee paid is insufficient?
8. Whether the plaintiff is entitled for suit claim?
9. What decree or order?"
Plaintiffs have examined one Prasanna as PW.1 and Nagarajachar as PW.2 and produced 10 documents which were marked as Exs.P1 to P10 and Ex.P8a, 9a and 10a - negatives, were also marked. Defendants have not led any evidence, nor they have produced any documents. 12
On trial of the action, the trial Court partly decreed the suit (O.S.No.66/95) declaring that plaintiffs are the absolute owners of the house property bearing Door No.2374 situated in Kantharaj Urs Road, K.G.Koppala, Chamarajmohalla, Mysore, measuring East to West 40 feet, North to South 19 feet 3 inches and vacant space measuring 6 feet towards the Northern side of the said house property, wherein, plaintiffs have already put up lane to the roof construction of the said property.
Aggrieved by the said judgment and decree, plaintiffs preferred an appeal before the First Appellate Court and the Appellate Court has dismissed the appeal. Therefore, plaintiffs have filed this appeal under Section 100 of the Code of Civil Procedure, 1908.
4. The appeal was admitted on 09.09.2020 to consider the following substantial questions of law:
a. Whether both the Courts below committed an error in law, in not considering the settled principles that boundaries prevail over the 13 measurement when there is a dispute in the measurement of the property?
b. Whether both the Courts below justified in not considering the material evidence on record and proved facts and circumstances of the case, and in interpreting the documents including Exs.D1 and D5?
c. Whether both the Courts below justified in not considering the long and continuous use and enjoyment of the open space along with the old house ever since the purchase of the property by the father of plaintiff Nos.1 to 3?
5. Sri.Y.K.Narayana Sharma, learned counsel for plaintiffs submitted that both the Courts below have totally erred in not holding that plaintiffs are the owners of the open space on the northern side which runs up to Kantharaje Urs Road. He submitted that the said findings insofar as the declaration is concerned, are opposed to proved facts and material on record.
14
He submitted that after the death of Hanumanthe Gowda, his wife Smt.Thibbamma and as a guardian of her children including defendant No.2 sold the entire northern portion of the house 40 feet east to west and 19 feet 3 inches north to south along with the vacant space attached to this property on the northern side up to Kantharaje Urs Road in favor of plaintiffs father under a registered sale deed 6.11.1957.
A further submission was made that the Courts below failed to note that plaintiffs have been and are in possession and enjoyment of the disputed open space continuously, ever since the date of purchase of the property by their father.
Next, he contended that the Courts below failed to note that defendants 2 to 8 are not in possession of the disputed open space and they never put forward any claim in respect of disputed open space, earlier to 1995 and hence, they have lost their right, if any, long back. 15
Counsel vehemently contended that both the Courts have failed to appreciate the settled principle and proposition of law that the boundaries prevail over measurement whenever there is discrepancy about the measurements. To substantiate his contention, counsel relied upon the decision in NARASIMHA SHASTRY V. MANGESHA DEVARU reported in ILR 1998 KAR 554.
Lastly, he contended that the Courts below have totally misread the oral and documentary evidence on record and have erroneously proceeded to decree the suit in part.
6. Heard and perused the material on record with care.
The facts have been sufficiently stated. The real question to be determined is whether learned Judges justified in restricting plaintiffs ownership to an extent of 6 feet on the northern side of the vacant space of the house property bearing Door No.2374.
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This is partly a question of fact and partly of law. So far as facts are concerned, counsel for plaintiffs has attacked Judge's finding on the ground that both the Courts below have erroneously proceeded to restrict plaintiffs ownership to an extent of 6 feet. Counsel, therefore, urged that both the Courts below have erred in not granting the relief as prayed for.
Sri.Y.K.Narayana Sharma, has invited my attention to the recital in the sale deeds dated 06.11.1957 (Ex.D5 - certified copy and Ex.D9-original sale deed) and submitted that plaintiffs father purchased the house property and the same is bounded by East by Galli and vacant space belongs to Marki Madegowda, West by Galli and house of Marki Madegowda, South by house of defendants 2 to 8 and North by vacant space attached to the house property and Kantharaje Urs Road.
He has argued that in Exs.D-1 and D-5, only an approximate measurement was given and the property purchased by plaintiffs' father is extended up to Kantharaje 17 Urs Road. Therefore, the findings recorded by both the Courts below insofar as ownership is contrary to the material evidence on record.
I find considerable force in the said contention. While there is no dispute about other three boundaries, the northern boundary is contested by the parties.
It is the specific case of plaintiffs that defendants 2 to 8 have sold the entire northern portion of the property bearing Door No.2374 situated at Kantharaje Urs Road, K.G.Koppal, Chamaraj Mohalla, Mysore, along with vacant space on the northern side which extends up to the Kantharaje Urs Road.
As against this, defendant No.1 did not put forth any specific defence about boundaries. I may venture to say that it was a brief written statement and defendant No.1 referred only to the fact that he had purchased the property from defendants 2 to 8 under a registered sale deed dated 31.03.1994. The written statement was as bald as anything without giving anything specific about the 18 northern boundary. Therefore, it is very apparent that the defendant kept his defence as vague as possible as to the exact northern boundary.
This is a matter which may be capable of a great deal of exposition, but the case really falls within a small compass, and I think that the clue to be found in the proper interpretation of Exhibits D-1, D-5, D-2 and Ex.P-1. Once the true significance of these documents is understood, it seems to me to follow that, not only in justice, but in common sense, plaintiffs ownership could not have been restricted to 6 feet.
Let me consider the documents.
• Ex D-1 is the deed of partition dated
19.02.1951 in respect of plaint schedule
property.
• Ex D-5 is the sale deed dated 6.11.1957 executed by Thibbamma in favor of plaintiff's father Sri. Honnaiah.
19• Ex P-1 is the certified copy of the registered Will dated 03.03.1971 executed by Sri.Honnaiah in favour of plaintiffs.
• Ex D-2 is the sale deed dated 31.03.1994.
It is relevant to observe that plaintiffs based their claim to identify the property by boundaries.
As early as in the year 1948, the Privy Council in THE PALESTINE KUPAT AM BANK CO-OPERATIVE SOCIETY LTD.VS GOVERNMENT OF PALESTINE AND OTHERS reported in AIR 1948 PC 207 observed as follows: -
"In construing a grant of land, a description by fixed boundaries is to be preferred to a conflicting description by area. The statement as to area is to be rejected as falsa demonstratio."
Same view was taken referring to this decision by the High Court of Madras in DHARMAKANNY NADAR SIVISESHAMUTHU AND OTHERS VS MAHALINGAM NADAR GOPALAKRISHNA NADAR AND OTHERS 20 reported in AIR 1963 MADRAS 147 and it is reproduced as under:
"Where the property sold is part of a definite survey number and in the sale deed the exact boundaries of the part sold are given and the area mentioned is only approximate, the description by boundaries should prevail in ascertaining the actual property sold under the document".
This Court in NARASIMHA SHASTRY VS MANGESHA DEVARU reported in ILR 1988 KAR 554 has held as under: -
"Where the sale deed mentioned the boundaries specifically and clearly to identify the property, the actual extent of the land not being clear, the recitals as to boundaries should prevail."
Keeping in view of these well-established propositions and principles in the matter of construction of a document or instrument, let me consider what was the property sold under sale deed relied upon by plaintiffs. 21
Plaintiffs placed reliance on the recitals in the sale deed and also the rough sketch which was filed along with the plaint. I have perused the same with care.
The schedule is shown as under:
"ZÀPÀÄÌ §A¢ ¥ÀƪÀðPÉÌ UÀ°è ªÀÄvÀÄÛ ªÀÄQðªÀiÁzÉÃUËqÀ SÁ°Ã eÁUÀ ¥À²ÑªÀÄPÉÌ UÀ°è ªÀÄvÀÄÛ ªÀÄQðªÀiÁzÉÃUËqÀ£À ªÀÄ£É zÀQëtPÉÌ £ÀªÀÄä ¨Á§ÄÛ ªÀÄ£É GvÀÛgÀPÉÌ F ªÀÄ£ÉUÉ ¸ÉÃjzÀ PÁ°Ã eÁUÀ ªÀÄvÀÄÛ PÁAvÀgÁeÉà CgÀ¹£ÀgÀªÀ gÉÆÃqï".
It is evident from Ex.D-5, that the property towards northern side runs up to Kantharaje Urs Road. The recital in the admitted sale deed are clear and specific stating that what are the boundaries and the reality is that defendants 2 to 8 did not retain any portion on the northern side and they had in fact, sold the entire house property along with the vacant space towards the northern side in favor of plaintiffs father.
I would observe that in the sale deed, the boundaries are specifically stated and shown to identify the property. I would observe further that the vacant space 22 towards the northern side runs up to Kantharaje Urs Road. There is abundant evidence to show that towards the northern side, there is a vacant space which runs up to Kantharaje Urs Road. The area was described and worded. Parties were not left in any doubt as to the boundaries.
Indeed, when the realities of the case are examined, Honnaiah during his life time had extended the construction by putting a lane to roof construction to an extent of 6 feet by 40 feet leaving 3 feet space both on the Eastern and Western side. The remaining vacant space attached to the properties runs up to Kantharaje Urs Road on the northern side has been in continuous occupation and possession of plaintiffs.
It has been urged by plaintiffs that the measurements shown in Exs.D-1 and D-5 are only approximate. In reality, the property purchased by plaintiffs' father runs up to Kantharaje Urs Road. As already noted above, the recital in the admitted sale deed are clear and specific stating that what are boundaries. 23
It seems to me to be quite clear that what was sold was the whole of the property with definite boundaries and that the measurements were not accurately given, the mistake being in the measurement alone. Therefore, there was no reason for Judges to restrict the ownership to a smaller extent. It is well established by several decisions of Courts that where the boundaries in a document are vague and indefinite, the area should prevail, but where the boundaries are specific and definite, the area must be taken as given only approximately.
This is, therefore, a clear case of precise and accurate description in a document of the property sold by its boundaries. The measurement by area should, therefore, be considered only approximate. I, therefore, come to the conclusion that the general principles laid down by the decisions cited above that the description by boundaries should prevail where the boundaries are exact and where the area is approximate should be applied in 24 this case, and that therefore, the decree restricting plaintiffs ownership to an extent of 6 feet is not proper.
I repeat that it is not a case where the boundaries in a document are vague and indefinite, so that the area should prevail. It follows therefore, that if the boundaries are specific and definite, the area must be taken as has given only approximate.
As already observed above, it is well established by several decisions of Courts that where the boundaries in a document are vague and indefinite, the area should prevail, but where the boundaries are specific and definite, the area must be taken as given approximately. It is perhaps well to observe that if the description of a boundary is ambiguous, otherwise uncertain or in conflict with the occupation, Courts may settle the position of the disputed boundary.
If the foregoing analysis of the relevant law is correct, I can summarise quite briefly that plaintiffs 25 ownership over the vacant space on the northern side of the property extends beyond 6 feet i.e., up to Kantharaje Urs Road.
It seems to be that learned Judges for no particular reason created confusion regarding the extent / measurements of the property and restricted plaintiffs ownership to 6 feet towards northern side of the vacant space, because plaintiffs father extended the construction till 6 feet and displaced the case made by a party in his pleading and has given effect to an entirely new case which that party has not made out in his pleading. The confusion which, I may venture to think, has sometimes crept into the cases is, in my view, due to a failure to ascertain and understand the material propositions put forth by the parties.
The long and confusing proceedings which have occurred have, at any rate, made one fact doubly clear that boundary lines (commonly called property lines) define the extent of the legal limits of ownership of any 26 parcel of land. This is a case, where plaintiffs based their claim to identify the property by boundaries. Therefore, if the boundaries are to prevail, then the area would extend beyond 6 feet i.e., up to Kantharaje Urs Road.
With all respect to learned Judges, my view is that, on the facts, they are not justified in restricting plaintiffs ownership to 6 feet towards northern side of the vacant space only because the construction extending only till 6 feet. I regard it as not merely erroneous in law, but also, to adopt the language of CLAUSON, L.J., a shock to one's sense of justice.
In the result, I think, that the conclusion of both the Courts below cannot be sustained. I think that the appeal should be allowed, and that the plaintiffs in the circumstances, are declared to be the owners of the vacant space beyond 6 feet i.e., up to Kantharaj Urs Road, as prayed for.
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7. The substantial questions of law are answered accordingly. The second appeal is allowed.
Registry is directed to draw up the decree accordingly. Parties to bear their costs.
Sd/-
JUDGE VMB