Karnataka High Court
Vijaykumar S/Ovenkatesh Pola vs Suresh S/O Vishwanath Ainapure on 10 July, 2024
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NC: 2024:KHC-K:4784
RSA No. 7234 of 2010
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF JULY, 2024
BEFORE
THE HON'BLE Mrs JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.7234 OF 2010 (DEC/INJ)
BETWEEN:
VIJAYKUMAR S/O VENKATESH POLA
AGE: 43 YEARS, OCC: EMPLOYEE IN
VASAVADATTA CEMENT FACTORY
R/O : H.NO.3-1-61, SEDAM
TQ: SEDAM, DIST: GULBARGA-585222.
...APPELLANT
(BY SRI D. P. AMBEKAR, ADVOCATE)
AND:
1. SURESH S/O VISHWANATH AINAPURE
Digitally signed
by SWETA SINCE DECEASED BY LR'S.
KULKARNI
Location: HIGH
COURT OF 1A. SUREKHA W/O SURESH AINAPUR
KARNATAKA
AGE: 67 YEAR, OCC: HOUSEHOLD
1B. ANIL S/O SURESH AINAPURE
AGE: 45 YEARS, OCC: BUSINESS
1C. SANTOSH S/O SURESH AINAPURE
AE: 42 YEARS, OCC: BUSINESS
1D. SHRIDHAR S/O SURESH AINAPURE
AGE: 38 YEARS, OCC: BUSINESS
ALL ARE PERMANENT
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NC: 2024:KHC-K:4784
RSA No. 7234 of 2010
R/O. LAXMI NARAYAN TEMPLE ROAD,
SEDAM, TQ: SEDAM,
DIST: KALABURAGI-585222.
2. SRINIVAS S/O KASHINATH RAO
AGE: 63 YEARS,
OCC: RETD. JUDICIAL OFFICER,
R/O: BANGALORE,
NOW AT LAXMINARAYAN TEMPLE ROAD
SEDAM, TQ: SEDAM,
DIST: KALABURAGI-585222.
3. TOWN MUNICIPAL COUNCIL, SEDAM,
THROUGH ITS CHIEF OFFICER,
SEDAM-585222.
4. NAGAMMA W/O VERBHADRAPPA SAJJAN,
SINCE DECEASED BY HER LR RESPONDENT NO.5.
5. MAHANANDAMMA W/O RAJASHEKAR SAJJAN
AGE: 53 YEARS, OCCL HOUSEHOLD,
R/O: YADAGIR, TQ AND DIST: YADGIR-585201.
...RESPONDENTS
(BY SRI R. S. SIDHAPURKAR, ADV. FOR R1(A) TO R1(D);
NOTICE TO R2, R3 AND R5-SERVED;
APPEAL AGAINST R4 ABATED V/O DATED 31.07.2017)
THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO SET-
ASIDE THE COMMON JUDGMENT AND DECREE DATED
30.01.2010 IN R.A. NO.4/2007 AND R.A. NO.4(A)/2007
PASSED BY THE CIVIL JUDGE COURT (S.D.), SEDAM SETTING
ASIDE THE JUDGMENT AND DECREE DATED 04.12.2006 IN
O.S. NO.146/95 ON THE FILE OF THE CIVIL JUDGE COURT
(J.D.), SEDAM, AND DISMISS THE SUIT AND ALLOW THE
COUNTER CLAIM MADE BY THE APPELLANT, BY ALLOWING
THIS APPEAL.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-K:4784
RSA No. 7234 of 2010
JUDGMENT
Assailing the legality and correctness of the judgment and decree in R.A.No.4/2007 dated 30.01.2010 on the file of the Civil Judge (Sr.Dn.) at Sedam [hereinafter referred to as the 'First Appellate Court' for short] reversing the judgment and decree dated 04.12.2006 in O.S.No.146/1995 on the file of the Civil Judge (Jr.Dn.) Sedam [hereinafter referred to as the 'Trial Court' for short], defendant No.1 is before this Court in Regular Second Appeal.
2. Parties herein are referred to as per the ranking before the Trial Court for the sake of convenience.
3. This Court, on 24.08.2022 admitted the appeal on the following substantial question of law:
"Whether the First Appellate Court is justified in accepting the recitals of sale deed dated 24.05.1954 at Ex.P7, (translation of the same marked as Ex.P8) while holding that recitals of the sale deed at Ex.P9, rectification deeds at Exs.P10 and 11 are null and void and not binding on the plaintiff?"-4-
NC: 2024:KHC-K:4784 RSA No. 7234 of 2010
4. Learned counsel Sri D.P. Ambekar appearing for the appellant and learned counsel Sri R.S. Sidhapurker appearing for respondent Nos.1(A) to 1(D) have been heard on the substantial question of law framed by this Court.
5. Suit for declaration to declare that the suit open space as shown in the annexed map is 6 feet lane and to declare that the sale deed dated 25.11.1992 and the rectification deeds dated 11.12.1992 and 22.11.1994 respectively to the extent of the suit open space (6 feet lane) is null and void and for permanent injunction.
6. Plaintiff is the owner and possessor of house bearing No.3-1-61 having purchased the property in the year 1954 under the registered sale deed. Defendant No.1 is the owner of house No.3-1-59 towards the east of the plaintiff's house. The dispute between the plaintiff and defendant No.1 is regarding the land situated between the house of the plaintiff and defendant No.1's house. According to the plaintiff there is a 6 feet lane between the -5- NC: 2024:KHC-K:4784 RSA No. 7234 of 2010 house of the plaintiff and defendant No.1's house and also that there is a 6 feet lane between the house of defendant No.1 and the house of defendant No.2, the lane is in 'L' shape and the same is in existence since time immemorial.
7. On notice, defendant No.1 appeared and filed written statement, contending that at no point of time lane existed as stated by the plaintiff and the alleged area of 6 feet in width was not used either by the plaintiff and defendant No.2 or anyone else at any point of time, defendant No.1 alone is in exclusive possession and enjoyment and prior to him it was in the possession and enjoyment of his vendors and other previous owners.
8. The Trial Court arrived at a conclusion while answering issue No.1 that the plaintiff has failed to establish the 6 feet lane towards the side of his property but however, on perusal of the Court commissioner report and also the photographs produced by the parties, held that there is only 5 feet on one side and 1.5 feet on the other side is left open. The Trial Court answered issue -6- NC: 2024:KHC-K:4784 RSA No. 7234 of 2010 No.1 in the negative and by the judgment and decree dismiss the suit of the plaintiff.
9. In the appeal preferred by the plaintiff before the First Appellate Court, the First Appellate Court held that there is a lane of 5 feet width towards North and 1.5 feet width lane towards South is existing towards the Eastern wall of the plaintiff's house. Further held that the sale deeds and rectification deeds executed in favour of defendant No.1 to the extent of the lane as indicated is not binding on the plaintiff and defendants were restrained perpetually from constructing any structure over the common lane and also restrained from interfering in peaceful possession and enjoyment of the common lane by the plaintiff.
10. The learned counsel for the appellant submits that Ex.P7 the sale deed dated 24.05.1954 in favour of defendant No.1 translated copy at Ex.P8 cannot be relied to establish the way as it is between the plaintiff and third party. The plaintiff is claiming over the defendants' -7- NC: 2024:KHC-K:4784 RSA No. 7234 of 2010 property to be the lane by placing reliance on Ex.P7, which according to the learned counsel for the appellant is not permissible. Learned counsel submits that the recitals of the boundaries in the documents are not inter parties and will not be relevant and admissible in evidence. In support of his contention learned counsel placed reliance on the judgment of Co-ordinate Bench of this Court in the case of the Kallappa Siddappa Uppar and others Vs. Bheema Govind Uppar and others1.
11. Per contra learned counsel for the respondent taking this Court to the map and Ex.P9 and submits that the initial sale deed of defendant No.1 indicated that to the West is 65 feet and later rectification deed at Ex.P10 and Ex.P11 the extent of the property to the West was enhanced, making it clear that as on the date of the purchase by defendant No.1 there was a open space as stated by the plaintiff. Learned counsel submits that though the Trial Court held that there is 5 feet lane 1 AIR 1961 KAR 160 -8- NC: 2024:KHC-K:4784 RSA No. 7234 of 2010 between the plaintiff and defendants' property has erroneously dismissed the suit of the plaintiff, which has been rightly re-appreciated by the First Appellate Court and substantial question of law framed by this Court needs to be answered against the appellant.
12. This Court has carefully considered the rival contentions and has given a thoughtful consideration to the contentions raised by the learned counsel for the parties on the substantial question of law framed by this Court.
13. The ownership and possession of the plaintiff and defendant No.1 in respect of their properties is not in dispute, the dispute is in respect of the lane between the property of the plaintiff and defendant No.1. The plaintiff marked the registered sale deed dated 24.05.1954 as per Ex.P7, which was an Urdu version and its English translation with the map was exhibited in evidence as Ex.P8. The perusal of the Ex.P8 would indicate that one Mohammad Abdul Rahman s/o Fakeer Mohammad Sab has -9- NC: 2024:KHC-K:4784 RSA No. 7234 of 2010 executed the sale deed in favour of the plaintiff, the boundaries shown in the sale deed is as under:
East: Lane and house of Paramanna Basawaraj Kanagadda.
West: Shop and ware house of Parmanna Basawaraj Kanagadda.
North: Common way.
South: Area compound of Girni Daderao Pandappa.
14. Recitals of the sale deed states about measurements and boundaries of the properties which was purchased by the plaintiff. As stated supra, in the sale deed dated 24.05.1954 executed in favour of the plaintiff to the Eastern side is shown as a lane, the sale deed is executed at an undisputed point of time i.e., in the year 1954. The width of the lane however is not indicated in the sale deed, the plaintiff has also produced the certified copies of the registered sale deed dated 26.11.1992 and two rectification deeds which are also registered on 11.12.1992 and 22.11.1994, which are the deeds executed in favour of defendant No.1.
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NC: 2024:KHC-K:4784 RSA No. 7234 of 2010
15. Ex.P9 is the certified copy of the sale deed dated 26.11.1992 and Ex.P10 and Ex.P11 are the rectification deeds. In Ex.P9 the measurement shown is East-West 65 feet, North-South 55 feet. Ex.P10 and Ex.P11 are the rectification deeds in favour of defendant No.1 by the vendors, wherein the measurements are shown as East-West towards North 55 feet, East-West towards South 55 feet, North-South towards East 75 feet, North-South towards West 75 feet, further it is stated in Ex.P10 the excess area of Market value of Rs.12,000/- stamp duty has been paid. Once again on 16.03.1994, the vendors executed one more rectification deed Ex.P11 and the measurement shown is East-West towards North 55 feet, East-West towards South 55 feet, North-South towards East 77 feet, North-South towards West 82 feet.
16. In the sale deed as well as in the rectification deeds the boundaries to the West is shown as House of the Vishwanath who is the father of the plaintiff, the defendant by way of rectification deeds extended his
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NC: 2024:KHC-K:4784 RSA No. 7234 of 2010 portion to the West of his property up to the house of the plaintiff and on the basis of rectification deeds the defendant is claiming to be the owner of the extended portion and he is started to put up his construction, touching the Eastern wall of the plaintiff's house.
17. On perusal of the maps annexed to Ex.P9 to Ex.P11 it indicates that Western wall of the defendants house is kept open and the open space has become uneven in size by width, earlier it was 65 feet, enhanced to 75 feet and later to 85 feet, which indicates that defendant increased the measurement of the property purchased by him by extending it to the lane. The Court commissioner who was appointed before the Trial Court filed report indicating that there is only 5 feet one side and 1.5 feet on the other side.
18. Learned counsel for the appellant would contend as stated supra the registered sale deed dated 24.05.1954 in which the existence of the lane is indicated cannot be placed reliance since the sale deed is between
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NC: 2024:KHC-K:4784 RSA No. 7234 of 2010 the one of the party and a stranger and which cannot be used against the defendant herein. The decision of Co- ordinate Bench of this Court in the Kallappa's case stated supra, by placing reliance on the decision of Madras High Court reported in AIR 1956 Mad 226 held that the recital of boundaries in documents, cases fall under three different classes:
"Applying his test to the present case, I am unable to hold that the recitals contained in the documents in question make the existence or non- existence of the fact in issue so highly probable or improbable that they would be admissible under section 11(2) of the Evidence Act. It should be noted that this is not a transaction which took place entirely between strangers. The document in question was executed by the vendor of the plaintiffs in respect of a different land in favour of the plaintiffs This fact, in my opinion, to a great extent minimises the importance of the recitals contained in these documents. If the documents in question had been executed by a stranger in favour of another stranger, there would have been much force in the contention that they having no interest in the subject-matter of the recitals, great weight should be attached to such recitals. But the same thing cannot be said with regard to a document which is executed by a stranger in favour of one of the parties to the suit.
The recitals contained in such a document, in my opinion, would not make the existence or non- existence of the fact in issue highly probable or improbable as contemplated in Section 11(2) of the
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NC: 2024:KHC-K:4784 RSA No. 7234 of 2010 Evidence Act. Some support for this view can also be had from the very case cited before us by She learned Advocate for the respondents (AIR 1956 Mad
226). In that case His Lordship observed that in regard to recitals of boundaries in documents, cases fall under three different classes.
The first class is the class where the recital is in a document inter partes. In such a case the recital, His Lordship held, is a joint statement made by the patties to the document and therefore relevant against all of them as an admission. The second class of cases are those where the recital is contained in a document between a party and a stranger. "In such a case", His Lordship held, "the recital is relevant against a party as an admission but is not admissible in his favour, unless the fact recited is deposed to in court by the executant of the document, in which case the recital will become admissible under Section 157 of the Evidence Act to corroborate the evidence of the executant"
The third class of cases are those where the recital is in a document between strangers. It is with respect to this class of cases that His Lordship held that although the general rule is that ordinarily the recitals contained in such documents are not admissible to prove possession or title as against a person who is not a party to the document still the said rule is subject to exceptions which will again be classed under lour heads, viz. if those documents come within the relevancy and admissibility contemplated under (a) Sections 157 and 155 of the Evidence Act; (b) Section 32(3) of the Evidence; (c) under sec. 13 of the Evidence Act; and (d) under Sec. 11 of the Evidence Act."
(Emphasis supplied)
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19. This Court absolutely has no quarrel to the decision of the Co-ordinate Bench of this Court and is distinguishable, as fact remains that the recitals of boundaries in documents though not inter parties but when a document is at an undisputed point of time as in the instant case, which is of the year 1954 there are no compelling reason to doubt the contents of the sale deed dated 24.05.1954 so far as the boundaries towards the East of the property of the plaintiff. The defendants in his sale deed and in the rectification deed has shown the Western portion to be the property of the plaintiff i.e., in the year 1992 from 1954 till 1992, there was absolutely no interference to the use of 6 feet lane.
20. The sale deed executed extending the area of purchase on two occasion touching to the Eastern wall of the plaintiff's house clearly indicates the interference by defendant No.1, the plaintiff has proved that there is a lane though not to the extend stated in the plaint but a lane of 5 feet width towards North and 1.5 feet lane
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NC: 2024:KHC-K:4784 RSA No. 7234 of 2010 towards South is existing towards the Eastern wall of the plaintiff's house. The boundaries indicated in the registered sale deed of the defendant and the rectification deed to the Western portion to the extent of non- mentioning the lane is not binding on the plaintiff.
21. The First Appellate Court is right in accepting the recitals of the sale deed dated 25.04.1954 at Ex.P7 and there is no perversity or illegality in the order passed by the First Appellate Court warranting any interference by this Court, accordingly, the substantial question of law framed by this Court is answered against the appellant and this Court pass the following:
ORDER I. The regular second appeal is dismissed.
II. The judgment and decree of the first appellate Court stands confirmed.
Sd/-
JUDGE SWK,AT List No.: 1 Sl No.: 54 / CT: VD