Karnataka High Court
Smt Nanjamma @ Leelavathamma vs Smt M N Chandrakathamma on 16 July, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:27741
RSA No. 374 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR SECOND APPEAL NO. 374 OF 2012 (DEC/INJ)
BETWEEN:
1. SMT NANJAMMA @ LEELAVATHAMMA
W/O UMMATHURAIAH
SINCE DEAD BY HER LEGAL REPRESENTATIVE
1(a) MAHADEVASWAMY.M
S/O LATE M.UMMATHURAIAH
AGED ABOUT 49 YEARS
R/AT G.M.STREET,
MALAVALLI
MANDYA DISTRICT.
...APPELLANT
(BY SRI AKARSH KUMAR GOWDA, ADVOCATE)
AND:
Digitally
signed by 1. SMT M N CHANDRAKATHAMMA
MALATESH W/O M P PUTTASWAMY
KC R/AT GANGA STREEET
Location: MALAVALLI TOWN.
HIGH MANDYA DISTRICT.
COURT OF ...RESPONDENT
KARNATAKA
(BY SRI VIGNESH.K.M FOR SRI VIJAY NARAYAN & JYOTHI
BHAT R, ADVOCATES)
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 15.10.2011
PASSED IN R.A.NO.20/2009 ON THE FILE OF THE SENIOR
CIVIL JUDGE, J.M.F.C., MALAVALLI, REJECTED THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
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NC: 2024:KHC:27741
RSA No. 374 of 2012
17.10.2005 PASSED IN O.S.NO.298/1991 ON THE FILE OF THE
CIVIL JUDGE (JR.DN), MALAVALLI.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri Akarsh Kumar Gowda, learned counsel for the appellant and Sri Vigensh K.M., learned counsel for respondent.
2. Unsuccessful plaintiff is the appellant in the second appeal, challenging the decree of dismissal of the suit in O.S.No.298/1991 and confirmed in R.A.No.20/2009.
3. Facts in brief which are utmost necessary for disposal of the present second appeal are as under:
Plaintiff filed a suit in O.S.No.298/1991 in respect of property bearing No.2132/1920, situated in Ganga Street, Malavalli Town, bounded on East by Dundi Devamma's building, West by L. Nandundaiah's house, North by plaintiffs and Arasi Boraiah's house and South by street. The measurement was shown in the suit property as a gally, measuring 3 feet on the Eastern side, in the whole site measuring East to West 27 feet, North to South 43 feet which was more fully described in the hand sketch filed along with the plaint.-3-
NC: 2024:KHC:27741 RSA No. 374 of 2012
4. Plaintiff's claim that he became the owner of the property by virtue of the gift deed marked at Ex.P.5 and contended that the defendant has encroached the suit property to the extent of 3 feet x 27 feet and sought for declaration that she is the owner of the suit property and therefore, the illegal encroachment made by the defendant to the extent of 3 feet x 27 feet which is situated in front of the house of the plaintiff's be removed.
5. In pursuance of the suit summons, defendant appeared before the Trial Court and filed detailed written statement denying the plaint averments in toto and contending that the defendant is the owner of the property which is in his occupation as per the title acquired by the defendant and there was no encroachment whatsoever as is alleged by the plaintiff and sought for dismissal of the suit.
6. Trial Court raised the following necessary issues and trial was held.
1. Whether the plaintiff proves that she is owner of the galli in the suit schedule property as averred? -4-
NC: 2024:KHC:27741 RSA No. 374 of 2012
2. Whether the plaintiff proves that the defendant has encroached upon the suit galli by constructing the structures as alleged?
3. Whether the plaintiff proves that the defendant is interfering with the peaceful possession and enjoyment of the plaintiff in respect of suit schedule property ?
4. Whether the defendant proves that this suit is not properly valued ?
5. Whether the plaintiff is entitled to the reliefs as prayed for?
6. What order and decree ?"
7. In order to prove the case of the plaintiff, plaintiff got examined herself as P.W.1 and two witnesses namely; Ramu, Papanna as PWs.2 and 3 and placed on record 28 documents which was exhibited and marked as Exs.P.1 to P.28, comprising of certified copy of sale deeds, gift deed, endorsement, certified copy of the sale deeds, gift deed, licence, assessment extracts, tax paid receipts, photographs and rough sketch.
8. As against the evidence placed on record by the plaintiff, husband of the defendant was examined as D.W.1 and two more witnesses namely; M.N. Nanjundaswamy and M.N. -5- NC: 2024:KHC:27741 RSA No. 374 of 2012 Puttaswamy as D.Ws.2 and 3. As many as seven documents were placed on record on behalf of the defendants, which were marked as Exs.D.1 to D.7, comprising of General Power of Attorney executed by the defendant in favour of D.W.1, gift deed, notice, rough sketch, temporary stay order and assessment extracts.
9. Learned Judge after conclusion of recording of the evidence, heard the parties in detail and dismissed the suit of the plaintiff.
10. Trial Court recorded a categorical finding that plaintiff failed to prove that there existed 3 feet 'gally' (open passage) in front of the house, which has been encroached by the defendant and construction has been made on the said gally and dismissed the suit.
11. Being aggrieved by the same, plaintiff filed an appeal before the First Appellate Court in R.A.No.20/2009.
12. Learned Judge in the First Appellate Court, secured the records and heard the parties in detail in the light of the -6- NC: 2024:KHC:27741 RSA No. 374 of 2012 appeal grounds and recorded a categorical finding in paragraph No.19 to 21, which reads as under:
"19. Further, it is clear that, on the western side of the Galli, House of Ummathuraiah is situated. Said Ummathuraiah referred on the Western boundary in Ex.P10, is none other than, the donor of the Plaintiff. Before examining the relationship and the flow of title, it is necessary to find and the fact that, the property purchased under Ex. P8, which is had a passage on the Western side of the said property and the property of Ex. P8 was falling on the northern side of the property purchased under Ex.P10. On perusal of the evidence of the parties, it is admitted by the parties that, the gift deed was came to be executed on 4-7-1966, in favour of the defendant by name Dundi-Devamma, who had acquired the title under Ex.P8 to 10. The measurement described in the Gift deed was East-west 14 feet and North-South 30 feet., by going through said measurement, the property could not be appreciated unless the boundaries and measurements of Ex.P10, along with boundaries mentioned under Ex.P8, are kept in mind. Therefore, without comprehending the properties mentioned in Ex.P8, to 10, the property mentioned in Ex.P.11 cannot be easily assessed. But, on perusal of hand sketch produced by the parties, suit property which is not reasonably coming out from the said hand sketch. It is further Plaintiff described the suit property referred to the 3 feet Galli, falling on the Eastern side of the property measuring East-west 27 feet, and North-south;-7-
NC: 2024:KHC:27741 RSA No. 374 of 2012 43 feet It is pleaded that, the said property is bearing No.2132/1920 of Malavalli Municipality. The Plaintiff has produced the tax paid receipts and assessment extracts of the property. But, on perusal of it, which are for the period, after filing of the suit. However, the contentions canvassed by the parties has not touched to the entire property of the Plaintiff or defendant. But restricted to the said area of 3 feet falling on the Eastern side of the Plaintiff's property. As observed from the pleadings and evidence, the position of the house property of the Plaintiff and defendant are not in dispute. The Plaintiff had received the suit property under Gift deed, as per Ex. P5, which has measured the property East-west; 21 feet and North-south-37 feet and has not referred to the property Number in the said gift deed. On the other hand, the Plaintiff in his suit had described the suit property measuring East-west; 27 feet and North-south; 43 feet. It is a claim of the Plaintiff is that, the area in Gift deed has been wrongly mentioned. At this stage, it is necessary to note that, the difference of measurement on both side of east-west and North-south is reduced to the extent of 6 feet. In appreciating the measurement described in the gift deed, the boundary furnished was also to be considered. Accordingly, East-west measurements start from the house of Karadaiah to the house of Nanjundaiah. If such measurements have to be accepted on the both sides of Northern and southern side between East-west directions then said area ought to be 28 feet instead of 21 feet as described in the gift deed. Further, the measurement between Northern direction on both Eastern and Western side ought to be 43 feet instead of 37 feet as -8- NC: 2024:KHC:27741 RSA No. 374 of 2012 described in the Gift deed. However, such a difference of measurements appearing from Ex. P5 and P4, are not at all satisfactorily explained by the donor. The difference of 6 feet may be referred to the Well falling on the South- western side of the property, which was retained by the Doddaiah, at the time of executing Ex.P1. It is up to the plaintiff to satisfactorily explain the difference of measurement described in Gift deed along with possession and enjoyment of the said property. In addition, the Plaintiff is expected to take appropriate steps in claiming and establishing the title in respect of the area of East-west 27 feet and North-south; 43 feet. However, any steps taken by the plaintiff in establishing the entire claimed area of East-west 27 feet and North- south 43 feet cannot be appreciated. It is necessary to refer to the endorsement issued by the Town Municipality in which, it is endorsed under Ex.P7 issued by the Town Municipality about the galli ( Oni) area falling on East of the property of Assessment no.2132/1920 of Malavalli Town Municipality. In issuing said endorsement, the Chief officer had claimed for the reference of certain sale deeds. The sale deeds produced by the plaintiff, unless the suit does not refer to any Oni or galli area. Whereas, the galli and the Oni is coming out only at Ex P9 and 1. These 2 sale deeds Ex. P9 and 10 are relating to the property of the defendant. As observed about location of the said property in respect of the property of the defendant is very much established by the admitted sale deed of the defendant. Therefore, the Plaintiff has the burden to establish the endorsement of the Municipality. Because the Municipality is not the Owner of the property in -9- NC: 2024:KHC:27741 RSA No. 374 of 2012 dispute. At the time of issuing such endorsement the property was already owned by certain individuals. Therefore, mere endorsement issued by the Municipality cannot confer any right of alleged area of galli. Further, the Municipality conferring the title under the grant has to follow certain requirements. The procedure to be followed in the allotment are not at all coming out from the endorsement of Ex.P7. Therefore, the claim of the Plaintiff for a galli in Ex. P7 cannot be appreciated on any legal ground. Therefore, in appreciating the measurement of Ex.P5 on the East-west direction, both the measurement and boundaries are very much available. Therefore, while appreciating the measurement of the Gift deed Ex. P5, the expressed measurements in gift deed and boundaries are to be looked into. Because, when the donor has specifically stated about the measurement, it is not proper on the part of the court, to refer to the undisputed boundary in appreciating a dispute. Further, the Plaintiff has to make out a strong case for appreciating the boundaries, instead of the expressed measurements mentioned in the gift deed. Further, the boundaries for the purpose of measurement have to be considered only when there is a strong ambiguity in appreciating not only suit property, but also the surrounding properties. Though, the property of the defendant is very next door property of the plaintiff, any ambiguity in appreciating, either measurement of the plaintiff or the defendant cannot be appreciated. Therefore, boundaries mentioned in Ex.P5 alone, for the purpose of enhancing the measurement of the Gift deed is not proper. On the other hand, the counsel for the defendant has relied upon
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NC: 2024:KHC:27741 RSA No. 374 of 2012 Ex.P5, P9 and P10 had made certain suggestions to the plaintiff in appreciating the possession and enjoyment of the property by the defendant along with the stand of the donor of the Plaintiff. Defendant and also the alleged successor in interest of the said property, it is admitted by the plaintiff donor of the defendant was alive and aware of the defendant's construction and defendant had put up both the ground floor and the 1st floor at the same time.
20. It is claimed by the Plaintiff that, the gift deed executed in favour of the defendant was revoked. It is clear that, even if a gift is revoked under Ex. P12, the defendant had put up the construction. It is also admitted that, the Plaintiff is putting up the 1st floor construction recently. In other words, the staircase and the 1st floor of the defendant must have been put up much earlier to the time of plaintiff and the donor of the defendant was aware of such construction. It is admitted by the plaintiff that, building in the property of the plaintiff was already put up, when gift deed is executed. The dispute is on the Eastern side of the plaintiff property. The gift deed is also described the eastern neighbour. Therefore, the measurement of 21 feet has to Commence from the property of Nanjundaiah, which is falling on the western side. Though, the plaintiff had claimed the higher measurement has not taken any steps to correct the measurement of the Gift deed immediately. The plaintiff had referred only to the wrong measurement coming between the gift deed and title deeds of the donor. Therefore, the ambiguity in such measurement has to be
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NC: 2024:KHC:27741 RSA No. 374 of 2012 explained by the plaintiff alone. On the other hand, the measurement of the property described in the sale deed of the defendant at Ex.P8 to 11, cannot be disturbed on any reasonable grounds. Because, the property of the defendant has clearly described with the passage on the western side of the defendant's property., along with measurements. The property purchased under Ex.P8 is followed by the right, of passage acknowledged by the dominant heritance in Ex.P9 and 10 had strengthened the right of Ex.P8 and 9. Ex P11 is consisted of all these properties of Ex. P8 to 10 in the hands of the defendant. Therefore, the measurement of 14 feet East-west and 30 feet North-south along with the building of the defendant is to be accommodate the passage falling on the Western side of the defendant's property. Therefore, the passage falling on the Western side of the defendant's property or on the Eastern side of the Plaintiff's property has to be appreciated only under the title of the defendant and not the plaintiff.
21. Further on perusal of the cross-examination of PW.1 and 2, it is admitted by the PW.1 and 2 that, another brother of the Plaintiff is residing in a house abutting to the house of the defendant and said house of the Plaintiff's property is falling on the Eastern side of the defendant and a common wall is bifurcating the house of the defendant and the property of the Plaintiff. Therefore, it is obvious that, a common wall bifurcating the 2 houses cannot accommodate either the door or window. It is admitted by the plaintiff that, all the doors and windows of the defendant are facing only on the Western side.
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NC: 2024:KHC:27741 RSA No. 374 of 2012 Even such fact may very well seen on appreciating the possession of the property described under Ex. P8 to 11. It is clear that, the house having the doors on any direction must have a passage to ingress and aggress from the said property. It is claimed by the plaintiff that, the gift deed executed in favour of the defendant was revoked under Ex.P12 on 15/12/1969. At this stage, it is necessary to note that, Ex. P11 had contained the acknowledgment of defendant in receiving the Gift and admitted by the Plaintiff, the donor was alive when the building was put up by the defendant. The defendant had produced the temporary stay order of 1994 for the construction. The gift said to have been revoked in the year 1969. Said Ex.P12 does not bear the acknowledgment of the defendant to attest by the persons in favour of whom said property is gifted."
13. Thereafter the plaintiff is before this Court in this second appeal by raising following substantial questions of law.
"(i) Whether the courts below committed an error of law in misreading the documents?
(ii) Whether the defendant can claim more than what her donor had and as such whether the courts below have committed an error of law in dismissing the suit?
(iii) Possession follows title. In this case the source of title of the appellant would show that as per the measurement she was the owner of the galli. Whether the courts below have failed to appreciate this?"
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NC: 2024:KHC:27741 RSA No. 374 of 2012
14. Sri Akarsh Kumar Gowda, learned counsel for the appellant, reiterating the grounds urged in the appeal memorandum, vehemently contended that both the Courts have failed to properly appreciate the material evidence placed on record, resulting in miscarriage of justice and sought for allowing the appeal.
15. Per contra, Sri Vignesh K.M., learned counsel for the respondent supports the impugned judgment.
16. Having heard the parties in detail, this Court perused the material on record meticulously.
17. On such perusal of the material on record, it is crystal clear that the title to the property is based on Ex.P.5 which is gift deed in favour of the plaintiff. In the gift deed, the measurement of the subject matter of the gift was mentioned as East to West 21 feet, North to South 37 feet. Whereas in the suit, the measurement is mentioned as East to West 27 feet, North to South 43 feet. What is the title for the remaining area is not forthcoming on record.
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NC: 2024:KHC:27741 RSA No. 374 of 2012
18. Learned counsel for the appellant however made a feeble attempt in contending that for the remaining portion of the land, plaintiff has perfected the title by adverse possession.
19. Such a pleading is not available before the Court nor any evidence is placed on record. At any rate, since it is a suit for declaration, based on the title deed namely Ex.P.5, the measurements mentioned in Ex.P.5 has been taken into consideration by both the Courts and therefore, came to the conclusion that the plaintiff failed to make out a title in respect of the three feet gally measuring 3 feet East to West and 27 feet North to South and has rightly dismissed the suit of the plaintiff.
20. Learned Judge in the First Appellate Court not only concurred in the finding recorded by the Trial Judge, but also supplemented additional reasons by discussing the oral and documentary evidence on record as referred to supra and has dismissed the appeal of the plaintiff.
21. In the light of the concurrent finding on the fact that the plaintiff has failed to prove the title to the suit property, in the considered opinion of this Court, substantial
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NC: 2024:KHC:27741 RSA No. 374 of 2012 questions law raised in the appeal memorandum referred to supra, does not merit for further consideration.
Accordingly, the following:
ORDER
(i) Admission is declined.
(ii) Appeal is dismissed.
Sd/-
JUDGE
MR
List No.: 2 Sl No.: 31