Karnataka High Court
Smt Shabbana Begum W/O Sheik Samiyulla vs Smt K Renuka on 26 September, 2012
Equivalent citations: 2012 (4) AIR KAR R 571, (2013) 3 ICC 125
Author: K.L.Manjunath
Bench: K.L.Manjunath
1
R.F.A.No. 690/2006 (DEC)
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE K.L.MANJUNATH
R.F.A. No.690/2006 (DEC)
BETWEEN :
SMT SHABHANA BEGUM
W/O SHEIK SAMIYULLA
AGE : 35 YEARS, NO 7,
NEXT TO NEW OXFORD
ENGLISH SCHOOL, 2ND CROSS
LBS NAGAR, BANGALORE - 17. ...APPELLANT
(By SRI. G L VISWANATH, ADV.)
AND :
1 SMT K RENUKA
AGED 35 YEARS,
W/O SHRI K M SUNDARAM
2 K M SUNDARAM
AGED 43 YEARS,
S/O SHRI C P NAIR
BOTH ARE R/O NO 31, SREE SIDU,
I MAIN, 2ND CROSS, LBS NAGAR
BANGALORE - 17. ...RESPONDENTS
(By SRI. M A SEBASTIAN, ADV. FOR C/R-1 & R-2)
This Regular First Appeal is filed under Section 96 r/w Order
41 Rule 1 of the Code of Civil Procedure, prays that this Hon'ble
Court be pleased to call for the Records in O.S. No. 16236/2003 on
2
R.F.A.No. 690/2006 (DEC)
the file of the XXVIII Additional City Civil Judge, Mayo Hall Unit,
CCH-29, Bangalore, peruse the same and allow this appeal by setting
aside the Judgment and Decree dated 23.12.2005 and/or remand the
matter for fresh disposal in accordance with law by taking Additional
evidence/subsequent event into consideration.
This Regular First Appeal coming on for Final Hearing this
day, K.L.MANJUNATH. J., delivered the following :
JUDGMENT
The legality and correctness of the Judgment and Decree passed by the XXVIII Additional City Civil Judge, Bangalore dated 23rd December 2005 passed in O.S. No. 16236/2003 is called in question in this appeal. The appellant was defendant in the suit. She has suffered a decree in the hands of the Trial Court. Therefore, the present appeal is filed.
2. The respondents/plaintiffs filed the suit to declare that 15 feet wide road to the east of 'A' schedule property described as Schedule 'B' is a common road for both plaintiffs and defendant and for a perpetual injunction restraining the appellant/defendant herein from encroaching any portion of the road. According to the plaint averments, the plaintiffs are the owner of House Site No.31, Khatha No.132 situated at Annasandrapalya, Vibhuthipura Dhakle, K.R. Pura Hobli, Bangalore East, which was purchased by them from one Smt. 3 R.F.A.No. 690/2006 (DEC) S. Vasanthi under a registered sale deed dated 17.06.1998 and Vasanthi in turn has purchased the same from its previous owner by name Syed Akthar under a registered sale deed dated 01.02.1993. In all the sale deeds, the eastern boundary of the plaintiffs property is shown as road and that the defendant who has also purchased site No.29 from Syed Akthar under a registered sale deed dated 20 th March 2003, trying to encroach upon the road which is to the east of the plaintiffs' property. Therefore, she filed the suit.
3. The defendant contested the suit on the ground that she is the owner of the disputed area and the same cannot be termed as a portion of the road and that she had purchased the property from Syed Akthar measuring 25 feet x 55 feet and she never made an attempt to encroach the alleged road. According to her, there is no road in existence towards the east of the plaintiffs property.
4. Based on the above pleadings, the following Issues were framed :
1. Whether the plaintiffs prove that schedule B property is a common road for both plaintiffs and defendants ?
2. Whether the plaintiffs prove that defendant is 4 R.F.A.No. 690/2006 (DEC) trying to encroach the B schedule property by putting up unauthorised construction ?
3. Whether the plaintiffs are entitled for the relief of permanent injunction as sought for ?
Recasted on 19.12.2005 :
Whether the plaintiffs are entitled for the relief of declaration and permanent injunction as sought for ?
4. What order or decree ?
5. The 2nd plaintiff got himself examined as PW-1, he relied upon Ex.P1 to P23. The husband of the defendant was examined as DW-1, he relied upon Ex.D1 and D2. The Trial Court hold Issue Nos.1 to 3 in affirmative and decreed the suit. Challenging the legality and correctness of the Judgment and Decree of the Trial Court, the present appeal is filed.
6. I have heard Mr. Vishwanath, learned Counsel for the appellant and Mr. Sebastian, learned Counsel for the respondents.
7. According to the appellant's Counsel, the plaintiffs who claims to be the purchasers of site No.30 by giving the description of site No.31 has filed a suit and such a suit was not maintainable. The plaintiffs who have filed a suit for declaration to declare the disputed 5 R.F.A.No. 690/2006 (DEC) portion of the public road did not place any material before the Court to show the existence of a road. When the appellant and respondents are claiming title through a common vendor Syed Akthar who was the vendor's vendor of the plaintiff could have been summoned to show the existence of the road or atleast the layout plan prepared by him or atleast by appointing Commissioner to show the existence of the road in question. The Trial Court based on the self-serving testimony of PW-1 has wrongly decreed the suit even though it has come to the conclusion that the plaintiffs have not placed any material before the Court to show the existence of the road only on the ground of assumption. According to him, based on assumption and presumption, Civil Court cannot grant a decree in favour of a party. In the circumstances, he requests the Court to re-
appreciate the entire evidence and set aside the judgment and decree of the Court below.
8. Per contra, Mr. Sebastian, learned Counsel for the respondents contends that the appellant/defendant has purchased the suit property in the year 2003 from Syed Akthar and whereas Syed Akthar had sold site No.30 to Smt. Vasanthi in the year 1993, ten 6 R.F.A.No. 690/2006 (DEC) years earlier to the sale deed of the defendant. Therefore, the recital in the sale deed of Vasanthi, which is executed by the very same vendor of the defendant would bind on her vendor. Therefore, the Trial Court is justified in decreeing the suit. In the circumstances, he requests the Court to dismiss the appeal.
9. Having heard the learned Counsel for the parties, what is to be considered by this Court in this appeal is :
1. "Whether the plaintiffs have proved the existence of the road which is described as B Schedule ?
2. Whether the appreciation of the evidence by the Court below is just and proper" ?
10. The admitted facts are that Site No.29 and 30 are sold by Syed Akthar. Site No.29 is purchased by the appellant/defendant in the year 2003. Syed Akthar has sold Site No.30 to Smt. Vasanthi and who in turn sold the same to the plaintiffs. The dispute is in regard to the existence of a road. No layout plan was produced by the plaintiffs to show the existence of a road and no other neighbours were also examined to show the existence of the road and which was used by them from time to time. When it is contended that road is 7 R.F.A.No. 690/2006 (DEC) treated as municipal road to prove the existence of the road, there was no difficulty for the plaintiffs to appoint a Commissioner and to get his report. Such an attempt is also not made. As rightly pointed out by the appellant's Counsel that all the documents of title relied upon by the plaintiffs is in regard to site No.30, but the plaint schedule is described as Site No.31. Therefore, there is variation between the pleadings and the documents. In such circumstances, the finding of the Court below has to be set aside.
11. Since the plaintiffs have to prove the title as the suit is one for declaration to declare 'B' schedule property as road as both the parties have failed to examine their common vendor Syed Akthar or to summon relevant documents to show the existence of site Nos.29 and 30 and the road in question, this Court is of the opinion that the Trial Court has committed an error in granting a decree based on assumption. Accordingly, the points are held in favour of the appellant.
12. In the result, the appeal is allowed. The Judgment and Decree of the Court below is set aside. The matter is remanded to the Trial Court for fresh consideration giving opportunity to both the 8 R.F.A.No. 690/2006 (DEC) parties to let in further evidence and if necessary, the parties are at liberty to amend their pleadings and proceed with the matter on merits in accordance with law.
13. At this stage, the learned Counsel for the respondents submits that there was a direction issued by the Court from time to time to maintain status-quo in respect of the disputed property. Therefore, the said order shall be continued till the disposal of the suit.
14. The Trial Court is directed to dispose of the suit within six months from the date of receipt of copy of this Order. Parties are directed to appear before the Court below on 2nd November 2012, on which date they shall appear without any further notice from the Court below.
Parties to bear their own costs.
The Registry is directed to send LCR forthwith.
Sd/-
JUDGE.
Rbv