Karnataka High Court
Basu S/O Lalu Lamani And Anr vs Hanamant And Ors on 25 August, 2020
Author: P.N.Desai
Bench: P.N.Desai
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF AUGUST, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.N.DESAI
REGULAR FIRST APPEAL NO.200068/2017
BETWEEN:
01. BASU S/O LALU LAMANI
AGE:50 YEARS OCC: AGRICULTURE
R/O: NIMBAL B.K.
TQ: INDI DIST: VIJAYAPUR.
02. VANARAM S/O LALU LAMANI
AGE: 54 YEARS OCC: AGRICULTURE
DIST: VIJAYAPUR.
.... APPELLANTS
(BY SRI D.P.AMBEKAR, ADVOCATE)
AND:
01. HANAMANT S/O NAGAPPA WADDAR
AGE: 74 YEARS OCC: NIL
R/O: NIMBAL B.K. TQ: INDI
DIST: VIJAYAPUR - 586 209.
02. BASAPPA S/O HANAMANT WADDAR
AGE: 54 YEARS OCC: AGRICULTURE
R/O: NIMBAL B.K. TQ: INDI
DIST: VIJAYAPUR - 586 209.
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03. GOVIND S/O HANAMANT WADDAR
AGE: 51 YEARS OCC: AGRICULTURE
R/O: NIMBAL B. K. TQ: INDI
DIST: VIJAYAPUR - 586 209.
04. SHAMARAY S/O HANAMANT WADDAR
AGE: 47 YEARS OCC: AGRICULTURE
R/O: NIMBAL B.K. TQ: INDI
DIST: VIJAYAPUR - 586 209.
... RESPONDENTS
(BY SRI AMEET KUMAR DESHPANDE, ADVOCATE)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 READ WITH ORDER 41 RULE 1 OF CODE
OF CIVIL PROCEDURE PRAYING TO ALLOW THIS
APPEAL AND SET-ASIDE THE IMPUGNED JUDGMENT
AND DECREE DATED 06.04.2017 PASSED BY THE
SENIOR CIVIL JUDGE AND JMFC, INDI IN
O.S.NO.5/2013 AND FURTHER DECREE THE SUIT OF
THE PLAINTIFFS AS PRAYED FOR.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING
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JUDGMENT
This appeal arises out of judgment and decree passed by the Senior Civil Judge and JMFC, Court at Indi in O.S.No.5/2013 dated 06.04.2017 dismissing the suit of the plaintiffs.
02. This appeal is filed by appellants who are plaintiffs. The respondents are the defendants.
03. For the purpose of easy understanding and convenience and to avoid repetition of discussion and evidence the parties will be referred as per their respective ranks before the Trial Court.
04. Case of the plaintiffs in brief is as under:-
The plaintiffs are the law full owners, in peaceful possession and enjoyment of the property bearing Sy.No.89/1 measuring 22 acres 25 guntas including pot kharab situated at Nimbal B.K. village. It is further contended that defendants are the owners of land 4 bearing Sy.Nos.89/2A, 89/2B, 89/2C and 89/2D totally measuring 19 acres 33 guntas of Nimbal B.K. village. Though divisions are shown in the records of right of their land bearing Sy.No.89/2. But the defendants are cultivating the property till today jointly without any divisions in their land. In the plaint hand sketch map the land of the plaintiffs is shown as ABCD. The land of defendants is shown in the plaint hand sketch map by letters CDXY. The defendants' land is situated towards the eastern side of the plaintiffs' land. In the plaint hand sketch map the defendants land is demarcated by letters XY a small bund that is put up by the defendants, despite objected by the plaintiffs. It is further contended that in the last week of December 2012 the defendants got measured their land by a private surveyor. After that defendants suddenly put up the demarcation bund XY by destroying the pre-existing C.D. demarcating bund and put up a new XY bund high handedly with an intention to grab more land of 5 plaintiffs and are obstructing to cultivate the suit property shown in letters CDXY in their hand sketch map. The plaintiffs have filed the suit for declaration and consequential relief of permanent injunction restraining the defendants from causing obstructions to the plaintiffs' possession and enjoyment of the suit property in respect of ABCD portion as shown in the hand sketch map.
05. The defendants appeared through counsel and defendant No.1 has filed the written statement. The other defendants have adopted the written statement of defendant No.1.
06. In the written statement the defendants have denied the averments of the plaint Paras No.1 to 8. They have contended that there is boundary dispute. Hence, under the Karnataka Land Revenue Acts, the Civil Court has no jurisdiction to entertain the suit. They have denied the contentions of the plaintiffs that they 6 are cultivating the entire land. The plaintiffs have furnished imaginary hand sketch map, which is denied by the defendants. It is false to say that the defendants have put up XY bund even though objected by the plaintiffs. They have denied the cause of action arose for the plaintiffs to file this suit. They have contended that the defendants have purchased the property bearing Sy.No.89 to the extent of 19 acres 33 guntas under the registered sale deed dated 20.07.1981 from one Siddappa s/o Shankreppa Kumbar. So, he has handed- over the possession of the said land to defendant No.1. as per area sold to him by measurement, on the strength of sale deed the name of defendant No.1 came to be entered. The defendants have also produced the hand sketch map. In fact they have partitioned the lands among themselves. There are different strips in the lands among and they are cultivating the same. Again in the year 1986 the defendants have purchased land Sy.No.89/1 measuring 22 acres for consideration 7 amount of Rs.12,000/- from one Siddappa s/o Shankar Kumbar the same is entered in the M.E.No.1545 dated 01.12.1985. They further contended that they have purchased the said property prior to purchase of land by hand by plaintiffs. Hence, question of encroachment does not arise at all. The plaintiffs have shown wrongly CD demarcating line. The defendants are cultivating their strips upto XY as shown by the plaintiffs in their plaint hand sketch. On XY bund there is boundary stone is in existence. So, with these contentions the defendants prayed to dismiss the suit of the plaintiffs.
07. On the basis of the above pleadings the Trial Court has framed the following issues:-
01. Whether the plaintiffs prove that they are absolute owners in possession of land bearing Sy.No.89/1 measuring 22 acres 25 guntas including pot kharab land measuring 03 acres 11 guntas situated at Nimbal B.K. village?8
02. Whether plaintiffs prove that they are entitled the relief of permanent injunction?
03. Whether defendant No.1 proves that, he had purchased R.S.No.89 measuring 19 acres 33 guntas towards Eastern side for consideration amount of Rs.2,000/- under registered sale deed dated 20.07.1981 and since then he is in possession and enjoyment of the said land?
04. Whether defendant No.1 proves that the defendants have purchased R.S.No.89/1 measuring 22 acres in the year 1986 for consideration amount of Rs.12,000/- from Siddappa Kumbar?
05. Whether plaintiffs prove that, defendants are trying to grab more land belonging to the plaintiffs and are causing obstruction to the plaintiffs and are causing obstruction to the plaintiffs in cultivating the suit land?
06. Whether plaintiffs are entitled to the relief sought for?
07. What order or decree?9
08. In order to prove their case the plaintiffs have examined plaintiff No.1 as PW.1 and another witness as PW.2 and got marked nine documents as Exs.P.1 to 9. On behalf of the defendants, the defendant No.2 has examined as DW.1 and other two witnesses as DW.2 and DW.3 and got marked one document Ex.D.1 -
Power of Attorney.
09. After hearing both sides the Trial Court answered Issue Nos.1, 3 and 4 in the Affirmative and Issue No.2, 5 and 6 in the Negative. The Trial Court has dismissed the suit of the plaintiffs.
10. Aggrieved by the said judgment and decree of the Trial Court, the appellants - plaintiffs have filed this Regular First Appeal before this Court on the following grounds:-
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The judgment and decree of the Trial Court is contrary to the facts of the case. The Trial Court has failed to understand the pleadings of the parties. The Trial Court ought to have seen that the defendants are claiming to be cultivating land till XY line shown in the plaint hand sketch which clearly shows that the defendants are laying claim to the portion of the land of the plaintiffs. The Trial Court ought to have seen that having answered Issue No.1 in the Affirmative, there was no reason to deny the relief of declaration to the plaintiffs. The Trial Court ought to have seen that having held that the plaintiffs are the owners of the suit land and the defendants are claiming portion of land beyond the CD line till XY line in the plaint hand sketch, there was sufficient ground to grant the relief of injunction. The passing of such judgment and decree, the defendants have been given license to enter into lands of the plaintiffs as both the relief of declaration and injunction have been denied to the plaintiffs. The 11 Trial Court ought to have seen that every case in a suit for declaration and injunction against attempt to encroachment, if the defendant admits the title of the plaintiffs and denies any attempt to encroachment, then the suit has to be decreed and not dismissed. In case if the suit is dismissed, then the defendants can virtually have a free walk over the land of the plaintiffs. The defendants did not deny the title and not tried to encroach on the land of the plaintiffs, then they ought to have no objection for decreeing the suit. The findings of the Trial Court in dismissing the suit of the plaintiffs are erroneous. So, with these main grounds the appellants prayed to allow the appeal and set-aside the judgment and decree of the Trial Court.
11. I have heard Sri. D. P. Ambekar, learned counsel for the appellants and Sri. Ameet Kumar Deshande, the learned counsel for the respondents. 12
12. Sri. D. P. Ambekar, learned counsel for the appellants argued that the Trial Court though held Issue No.1 in the Affirmative, but wrongly dismissed the suit of the plaintiffs. The Issue No.1 reads that "Whether the plaintiffs prove that they are absolute owners in possession of land bearing Sy.No.89/1 measuring 22 acres 25 guntas including pot kharab land measuring 03 acres 11 guntas situated at Nimbal B.K. village?" So, that issue is answered in the affirmative. So, the Trial Court ought to have granted the relief as prayed for. It is further argued that if declaration is sought by the plaintiffs is not granted, then it gives license to the defendants to encroach the land of the plaintiffs and the plaintiffs will not get any remedy of ownership. Accordingly, he prayed to allow the appeal.
13. Sri. Ameet Kumar Deshpande, learned counsel for the respondents argued that the plaintiffs have not proved the hand sketch map as per their plaint prayer. Because, in the prayer column itself the 13 plaintiffs have prayed to declare that the plaintiffs are the owners of land bearing Sy.No.89/1 measuring 22 acres 25 guntas including pot kharab area of Nimbal B.K. village as shown in the plaint sketch by letters ABCD. So, when such hand sketch map is not proved, then no declaration can be granted. Further when there is no proof of interference then question of granting injunction does not arise at all. The learned counsel for the respondents supports the judgment and decree of the Trial Court and prayed to dismiss the appeal.
14. After hearing both the learned counsels for the appellants and respondents, the points that would arises for my consideration are as under:-
01. Whether appellants - plaintiffs prove that they are the owners of land bearing Sy.No.89/1 measuring 22 acres 25 guntas including pot kharab measuring 03 acres 11 guntas of Nimbal B.K. Village as shown in the plaint hand sketch map by letters ABCD.?14
02. Whether appellants - plaintiffs prove that defendants causing obstructions to the plaintiffs' peaceful possession and enjoyment of the land bearing Sy.No.89/1 measuring 22 acres 25 guntas including pot kharab measuring 03 acres 11 guntas of Nimbal B. K. Village as shown in the plaint hand sketch map by letters ABCD.?
03. Whether judgment and decree of the Trial Court is illegal, capracious, perverse and not based on the settled principles of law regarding appreciation of evidence and needs interference by this Court?
15. I have perused both the pleadings and evidences produced before the Court. The plaintiffs in their plaint have clearly mentioned at prayer column that they are to be declared as owner of the land Sy.No.89/1 as shown in the plaint hand sketch map by letters ABCD. So, it is specific prayer of the plaintiffs that they should be declared as owners of the suit property as per their plaint hand sketch map which is 15 annexed to the plaint. But plaintiffs have not shown any measurement nor the map shows any boundaries. Only on the vague plaint hand sketch map no relief can be granted. The Trial Court off course considered the evidence of the plaintiffs and documents produced by them. The Trial Court answered Issue No.1 in the Affirmative considering the sale deed produced by the plaintiffs as per Ex.P.9. The Trial Court has observed with regard to purchase of land, entries in the RTC, mutation register and held that plaintiffs are the joint owners of land Sy.No.89/1 measuring 22 acres 25 guntas. But simply because of Issue No.1 answered in the Affirmative, it does not mean that the plaintiffs have proved their hand sketch map and they are owner of the property as shown by letters ABCD in hand sketch map without giving its measurement or boundaries. It appears from the contentions of the plaintiffs and their evidence that the defendants have got measured their lands and they have encroached the suit property and 16 put boundary stone by letters XY as shown in the hand sketch map and encroachment.
16. However, in the cross-examination PW.1 - Basu has stated that the plaintiffs have filed this suit as there was shortage of 02 acres of land and defendants are enjoying that land. But he has admitted that the plaintiffs have not got measured their land while purchasing it. He has not got measured land and produced any P.T. Sheet. Even at Para No.2 of his cross- examination he has admitted that by seeing hand sketch map he cannot understand about what extent his land extends. So, PW.1 himself is not definite about the hand sketch map. The vague hand sketch map is produced by the plaintiffs seeking relief. The PW.1 himself not sure to what extent his land extends. Simply, because the plaintiffs have produced the title deed and RTC, they cannot declared as owner in respect of the hand sketch map, unless the plaintiffs have 17 proved that they are the owners to the extent and in possession to the extent of property as shown by plaintiffs in their hand sketch map with the letters shown in it. The defendants in their evidence have denied about any encroachment by DWs.1, 2 and 3. They have totally denied about making any encroachment.
17. The plaintiffs have examined the PW.2 - Bhimu U. Naik. The PW.2 - Bhimu U. Naik has stated that defendants in the year 2012 got measured their land by the private surveyor and suddenly put up the demarcation bund by destroying the pre-existing demarcating bund. But in the cross-examination he has admitted that he does not know whether owner of the plaintiffs has got measured the land at the time of sale of the said land and even he does not know that at the time of purchase of land plaintiff got measured the said land. He does not know about the encroachment of the 18 said land. He does not know about any P.T. Sheet prepared regarding encroachment. He has stated that the defendants after purchasing of the said land have partitioned amongst themselves. He has stated that they have given the land to private surveyor to survey the said land. Therefore, oral evidence of PW.2 is not helpful to the plaintiffs to show that defendants have encroached or destroyed any bund, in the plaintiffs land.
18. On the other hand, the defendants have clearly stated that they have not at all encroached the land of plaintiffs and nothing is elicited in the cross- examination of defendants. Therefore, the Trial Court though answered Issue No.1 in the Affirmative, but rightly declined in giving the declaration.
19. The Trial Court has clearly observed that on the basis of evidence of the plaintiffs, the case is that defendants extent is marked as CD and they have encroached XY bund is not made out. There is no 19 evidence placed on records by the plaintiffs. The burden is on the plaintiffs to prove the hand sketch map and CD area belongs to plaintiffs and XY area was encroached by the defendants.
20. The Trial Court has rightly answered Issue No.5 holding that the plaintiffs have failed to prove CD area belongs to plaintiffs and defendants caused obstruction to the plaintiffs over the suit property. Regarding Issue Nos.2 and 6 the Trial Court has rightly held that plaintiffs have failed to prove the encroachment and obstruction. Accordingly, the Trial Court has dismissed the suit.
21. Sri. D. P. Ambekar, learned counsel for the appellants submits that the apprehension of the plaintiffs is that since the suit is dismissed then plaintiffs will be precluded from claiming any right in the suit property, even if defendants claimed the possession over the suit property. Because the plaintiffs 20 suit for declaration of entire land is dismissed and they will be left with no remedy.
22. Per contra, Sri. Ameet Kumar Deshpande, learned counsel for the respondents submits that when there is no proof of interference then no declaration can be granted.
23. The apprehension of the plaintiffs counsel is not based any such inference. Here, the Trial Court has answered the Issue No.1 in the Affirmative. The defendants in their written statement have not claimed the entire land which is shown by the plaintiffs, as belongs to them. The defendants are only stating that they have not made any encroachment in plaintiffs land. The plaintiffs themselves came to the Court stating that the defendants have got measured their land. They have disputed about the encroachment of land. If that is so, then plaintiffs should have to filed proper suit. Instead of it, the plaintiffs have filed this type of suit claiming declaration as prayed in the prayer column that to 21 declare that the plaintiffs are the owners of land bearing Sy.No.89/1 measuring 22 acres 25 guntas including pot kharab measuring 03 acres 11 guntas of Nimbal B.K. Village as shown in the plaint hand sketch map by letters ABCD. The plaint hand sketch map is vague and it does not indicates any measurement. Even though plaintiffs have purchased Sy.No.89/1 by registered sale deed, but the plaintiffs are not entitled for declaration as prayed in the prayer column of the plaint in respect of ABCD area. The plaintiffs have not proved the interference also. The Trial Court has rightly rejected the relief of injunction also.
24. Considering the entire pleadings and evidence and on re-appreciation of evidence and also on the basis of arguments, I am of the considered view that the plaintiffs have failed to prove that they are entitled for declaration as shown in the plaint hand sketch map by letters ABCD. The plaintiffs have failed to prove that they are in possession of the suit property to the extent 22 and measurement as per their plaint hand sketch map by letters ABCD. The plaintiffs have also failed to prove the interference by the defendants.
25. The Trial Court after considering the both oral and documentary evidence has rightly come to the conclusion. The judgment of the Trial Court cannot said to be either illegal, perverse, contrary to the settled principles of law. Therefore, no interference is need in the judgment of the Trial Court. Hence, I answered points No.1 and 2 in the Negative. Accordingly, I proceed to pass the following...
ORDER The Regular First Appeal is dismissed.
The Judgment and decree in O.S.No.5/2013 dated 06.04.2017 passed by the Senior Civil Judge and JMFC, Indi, is hereby confirmed.
Both the parties to bear their own costs. Send back the records of the Trial Court forthwith.
Sd/-
JUDGE KJJ