Karnataka High Court
Laxman Sabanna Athani vs Mahadev Babu Bastawade on 16 August, 2012
Author: H.S.Kempanna
Bench: H. S. Kempanna
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHRAWAD
DATED THIS THE 16 T H DAY OF AUGUST, 2012
BEFORE
HON'BLE MR. JUSTICE H. S. KEMPANNA
R.S.A. No.258/2004 (INJ)
BETWEEN
SRI.LAXMAN SABANNA ATHANI
AGE : MAJOR OCC : MEDICAL PRACTITIONER
R/O.HUNSHYAL P.G.
TALUK : GOKAK DIST. BELGAUM
... APPELLANT
(By Sri. SANJAY S.KATAGERI - ADV.)
AND
1. SHRI. MAHADEV BABU BASTAWADE
AGE : MAJOR OCC : GOVERNMENT SERVICE
R/O.NO.810, KHANAPUR ROAD
TILAKWADI, BELGAUM AT/DIST.
2. SHRI. ANAND BABU BASTAWADE
AGE : MAJOR OCC : GOVERNMENT SERVICE
R/O.PLOT NO.7, R.S.NO.51/3A/2, KANGRALI B.K.
TQ./DIST. BELGAUM
... RESPONDENTS
(By Sri.G.S.BALAGANGADHAR - ADV. )
RSA FILED U/SEC 100 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED:3.12.2003 PASSED IN
R.A.NO.286/2000 ON THE FILE OF THE III ADDL. CIVIL
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JUDGE (SR.DN.) BELGAUM, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
12.10.2000 PASSED IN OS.NO.842/1991 ON THE FILE OF
THE II ADDL. CIVIL JUDGE (JR.DN.), BELGAUM.
THIS RSA COMING ON FOR HEARING THIS DAY THE
COURT MADE THE FOLLOWING :-
JUDGMENT
This is a plaintiff's appeal challenging the judgment and decree dated 3.12.2003 passed in R.A.NO.286/2000 by the Civil Judge (Sr.Dn.), Belgaum, reversing the judgment and decree dated 12.10.2000 passed in O.S.NO.842/91 by the II Addl. Civil Judge (Jr.Dn.), Belgaum and dismissing the suit of the plaintiff filed for possession and mandatory injunction.
2. For the sake of convenience the parties in this appeal would be referred to by their rankings as they are arrayed in the suit before the trial Court.
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3. The plaintiff instituted the suit against the defendants for the relief of possession and mandatory injunction. The suit schedule property is an area measuring 10ft x 67ft. in plot No.8 carved out in R.S.No.51/3A(2) situated at Kangrali B.K.Taluk in Belgaum District morefully marked by the letter ACEF in the sketch annexed to the plaint which hereinafter would be referred to as the 'suit property'.
It is the case of the plaintiff that he is the owner in possession of plot No.8 measuring 36 ft. east west and 67 ft. north south. He has purchased the same from its previous owner under the registered sale deed dated 9.2.1981. The defendants are the owners of plot No.7 situated to the western side of the suit property. They started construction of their house in plot No.7 in the year 1989 by encroaching upon the 4 suit property and the same was obstructed by the plaintiff.
According to the plaintiff, defendants assured to demarcate the boundaries by getting the same surveyed. But, the defendants instituted O.S.NO.1809/89 against the plaintiff for the relief of perpetual injunction and obtained an order of temporary injunction restraining him not to obstruct from constructing the building. He appeared in the suit and filed an application for appointment of the Commissioner to inspect the suit property and for determination of the boundaries and also to show the alleged encroachment. The Court Commissioner was appointed. The defendants approached the High Court by way of filing a Civil Revision Petition against the order of appointment of Court Commissioner and during the pendency of CRP they completed their 5 construction by giving an undertaking before the Hon'ble High Court that in case the encroachment is found, they will remove the alleged encroachment. Thereafter, they have abruptly withdrawn O.S.NO.1809/89. Hence, the plaintiff was constrained to file the suit for the relief of possession and also for mandatory injunction.
After service of suit summons, the defendants appeared and contested the suit.
They contended that they are the owners in occupation of plot No.7 measuring 36ft x 67 ft. corresponding to plot No.7A and 7B each measuring 18 ft. x 67 ft. Originally plot No.7 was purchased by their mother Smt.Krishnabai under registered sale deed dated 12.2.1981. Thereafter, she transferred her right, title and interest over the said plot in favour of her sons i.e. the defendants under the registered deed 6 dated 19.9.1985 and accordingly, their names came to be entered in the concerned revenue record as owners in possession of the same. The defendants contended that they have constructed the building in their own area by obtaining necessary sanction from the City Corporation, Belgaum and Town Planning Authority, Belgaum. They started construction in the year 1985 itself. Due to financial difficulties they stopped the work and continued in the year 1989. They denied the alleged encroachment in plot no.8 to the extent of 10 ft. x 67 ft. They also contended that the suit is barred by time as it suffers from delay and laches and acquie scence. They also contended that the suit is not properly valued for the purpose of court fee and the court fee paid is insufficient. Accordingly, they sought for 7 dismissal of the suit with compensatory cost of Rs.3,000/-.
On the basis of the above pleadings, the trial Court framed the following issues :-
i) Whether the plaintiff proves that the defendants have encroached in his western portion plot No.8 measur8ing 10' east west and 67' north south shown as A.C.E.R. in the plaint sketch and made construction thereon?
ii) Whether the defendants prove that the plaintiff's claim is time barred?
iii) Whether valuation of this suit is correct and court fee paid is sufficient?
iv) Whether the defendants prove that they are entitled to get compensatory costs of Rs.3000/- from the plaintiff?
v) To what relief the parties are entitled?
vi) What order or decree?8
The plaintiff in support of his case got himself examined as PW1, produced 6 documents which came to be marked as exhibits P1 to P6.
The defendants in support of their case got examined the first defendant as DW1, produced 21 documents which came to be marked as exhibits D1 to D21. Apart from the plaintiff and the defendants (PW1 and DW1), the court Commissioner-ADLR came to be examined as CW1. Three documents came to be marked through him as exhibits C1 to C3.
The trial Court on consideration of the oral and documentary evidence on record held that the plaintiff has partly proved that the defendants have encroached on the western portion of plot No.8 to an extent of 4 ft. east west and 67 ft. north south. It further held that the defendants have failed to prove that the 9 plaintiff's claim is time barred. The suit is correctly valued and court fee paid is sufficient. The defendants have failed to prove that they are entitled to compensatory cost of Rs.3,000/- from the plaintiff. Accordingly, by its judgment and decree dated 12.10.2000 decreed the suit of the plaintiff.
The defendants being aggrieved by the said judgment and decree of the trial Court preferred R.A.NO.286/2000 before the Civil Judge (Sr.Dn.), Belgaum. The learned Appellate Judge on hearing the parties and on going through the records called for in the case reversed the judgment and decree of the trial Court by allowing the appeal and dismissed the suit of the plaintiff holding that the suit is barred by time and the plaintiff has failed to prove encroachment as alleged by his judgment dated 3.12.2003.
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4. The appellant/plaintiff being aggrieved by the said judgment and decree of the appellate court is in appeal before this court.
5. This appeal has been admitted on 18.7.2005 for consideration of the following substantial questions of law:-
i) Whether the judgment and decree passed by the First Appellate Court reversing the judgment and decree passed by the trial Court and dismissing the suit of the plaintiff on the ground of limitation is contrary to law and the material on record?
ii) Whether the finding of the First Appellate Court reversing the judgment and decree passed by the trial Court is contrary to the commissioner's report?
6. The learned counsel appearing for the appellant assailing the impugned judgment and 11 decree of the Appellate Court contended that the Appellate Court firstly erred in dismissing the suit as barred by limitation. In this connection he contended the suit was filed on 29.8.1991. Initially when the defendants started construction, plaintiff objected to the same and as the defendants agreed that they would settle the matter by getting two plots surveyed and measured, plaintiff did not take further steps. He further submitted that thereafter the defendants despite giving that assurance started proceeding with the construction in the year 1989. On coming to know of the same, plaintiff objected to the construction made by the defendants. The defendants instituted O.S.No.1809/89 and obtained an order of exparte injunction. On his appearance in the said suit, he filed an application for vacating the interim order and also for appointment of a 12 commissioner. The application filed for appointment of commissioner came to be allowed by the trial Court. As against the said order, the defendants preferred CRP No.343/90 before this Court. In the said CRP initially status quo order was granted. Thereafter, they filed I.A.2 seeking permission for fixing certain fixtures like doors, window frames and for plastering. The same was objected to by the plaintiff. They gave an undertaking in the said CRP that they would demolish the said fixtures if it is found that they have encroached upon the plaintiff's property and accordingly, with that undertaking the application came to disposed of.
Subsequently, the said CRP also came to be dismissed on 2.4.1991 confirming the order of appointment of commissioner. Subsequent to that the defendants without the knowledge of the plaintiff withdrew O.S.No.1809/89 instituted 13 by them on 20.4.1991. Thereafter, the plaintiff filed the present suit on 29.8.1991. Therefore, the suit instituted by the plaintiff is within the prescribed time. The Lower Appellate court without appreciating this material, which was on record, has erred in coming to the conclusion on the stray admission given by the plaintiff to the effect that he had come to know that the construction had commenced in the year 1986 as such the suit is barred by limitation which is apparently wrong having regard to the pendency of the proceedings both before the trial Court and before this court in CRP. Nextly, he contended that insofar the encroachment is concerned, the evidence of the Commissioner CW1 coupled with his report Ex.C2 clearly crystallises the encroachment that has been made by the defendants on the plaintiff's property. The trial Court on an appreciation of 14 the evidence and the documents has come to the right conclusion that the defendants have encroached to an extent of 4 ft x 67 ft. on the western side of the plaintiff's property. The learned Appellate Judge without appreciating this aspect in the right perspective has taken a contrary view and has held that the plaintiff has failed to establish the encroachment contrary to the material on record and therefore, the impugned judgment and decree of the Appellate Court cannot be sustained. It be set aside and the judgment and decree of the trial Court be restored.
7. Per contra, the learned counsel appearing for the contesting defendants supporting the impugned judgment and decree of the Appellate Court contended the evidence on record reveals that the plaintiff had the 15 knowledge of construction in the year 1985 itself. That is fortified from the fact of the pleadings in the suit instituted by the defendants in O.S.No.1809/89. It is further fortified from the admission given by the plaintiff in his cross examination that he came to know the alleged construction in the year 1986 itself. He further contended even otherwise the present plaintiff in his written statement in O.S.NO.1809/89 has specifically pleaded that he came to know the alleged construction on the encroached area about two years prior to the filing of the written statement which admittedly was filed on 7.12.1989. If that is taken into consideration the date of knowledge of encroachment to the plaintiff would be on 7.12.1987 and if these dates are taken into consideration, the suit having been filed on 29.8.1991, it is clearly barred by 16 limitation and the learned Appellate Judge has not committed any error in dismissing the suit as barred by time. In this connection he also submitted that the plaintiff has come for an equitable relief before the Court as to the infringement of his right. If according to him there was an encroachment on his property, he should have approached this Court immediately as, the material on record discloses that he had the knowledge in the year 1985 itse lf. As the suit is filed in the year 1991 it is completely barred by time and hence the learned Appellate Judge has committed no error in dismissing the suit on this ground also.
He nextly contended insofar as the actual encroachment as per the evidence and the documents is concerned, the evidence of the commissioner-CW1 as per his admission is of no assistance to hold that there is encroachment of 17 the property as alleged by the plaintiff. The evidence and the documents on record clearly discloses that the defendants have put up construction in site measuring 36 ft. x 67 ft. It is also fortified from the evidence of the Commissioner. In that view of the matter, the learned Appellate Judge has committed no error in dismissing the suit of the plaintiff which calls for interference in this appeal.
He also contended that the finding of the trial Court that there is an encroachment to the extent of 4 ft. x 67 ft. as against 10 ft. x 67 ft. as contended by the plaintiff is also not established by substantial evidence supported with documents. Therefore, no error has been committed by the Appellate Judge in dismissing the suit of the plaintiff.
It is the case of the plaintiff that the defendants have encroached to an extent of 10 ft 18 x 67 ft. on the western side of his plot No.8. The trial Court he ld that the encroachment is to an extent of 4 ft. x 67 ft. If according to the plaintiff it is 10 ft x 67 ft. as contended by him, he should have challenged the order of the trial Court by filing an appeal or cross appeal. Having not taken such a step, the impugned judgment and decree of the appellate court does not call for interference and accordingly, appeal be dismissed.
8. Taking the rival contentions, the evidence and documents on record, the points that arise for consideration are as under:
(i) Whether the suit is barred by
limitation?
(ii) Whether the plaintiff has established
that the defendant has encroached on the suit property to an extent of 10 ft x 67 ft? 19
(iii) Whether the impugned judgment and decree of the appellate court calls for any interference?
9. Point No.1: Plaintiff has instituted the suit against the defendant on 29.08.1991. He was constrained to file suit against the defendants as they proceeded with construction encroaching upon his property to an extent of 10 ft x 67 ft on the western side of the suit property. It is his case that initially when they started putting up construction he objected, at that point of time, defendants assured that they would proceed with the construction after getting the suit property measured by a competent surveyor and accordingly they stopped construction. Thereafter, defendants started construction in the year 1989. He obstructed to the said construction that was commenced by the defendants. Therefore they filed O.S.No.1809/1989 and obtained an order of temporary injunction. He appeared in the said suit and filed an 20 application for vacating the ex-parte temporary injunction order and also filed an application for appointment of commissioner. The said application filed for appointment of commissioner came to be allowed by the trial court. The same was challenged by the defendants in CRP No.343/1990 before this Court. During pendency of the said CRP, they gave an undertaking that they would remove all the fixtures and encroachment if in the suit it is held that they have made any encroachment upon his property. Subsequently, the said CRP came to be dismissed confirming the order of appointment of Commissioner. Thereafter, without his knowledge the defendants withdrew their suit O.S.No.1809/1989. As they proceeded with the construction contrary to the undertaking given before this Court in CRP the plaintiff filed the present suit on 29.08.1991. Therefore the suit filed by him having regard to the pendency of the 21 proceedings before the trial court and in CRP before this Court is not barred by time.
10. The defendants in their written statement have specifically contended that the suit is barred by time. It is their case, by obtaining lawful permission from the competent authority they started construction of the house in their plot no.7 in the year 1985. Ex.D.7 dated 25.04.1985 is the date on which the plan is approved and commencement certificate is sanctioned by the Town Planning Authority, Belgaum who is the competent authority. That document shows the construction of the building was commenced in the year 1985 itself. Further it is their case that the second defendant had availed a loan to the tune of Rs.33,600/- for the purposes of putting up construction of the house in their plot and Ex.D.9 is the loan sanction order granting the aforementioned loan on 21.10.1985. It is their further case that though they commenced the 22 construction in the year 1985 they could not complete the construction on account of paucity of funds. Therefore they raised another loan in the year 1989 and proceeded with construction of the building in the year 1989. It is their case that they availed a loan of Rs.90,000/- which amount was sanctioned by an order dated 26.07.1989 which is at Ex.D.10. These documents go to show that the defendants initially had started construction of the building in the month of April 1985 itself and the same was continued in the year 1989. It is their further case, as the plaintiff interfered with their construction they filed O.S.No. 1809/1989 on 25.11.1989 before the Prl. Munsiff Court at Belgaum for the relief of permanent injunction. The copy of the plaint in the said suit is at Ex.D.11. In the said suit, the present plaintiff has filed his written statement on 15.12.1989 which is at Ex.D.12, wherein he has stated as follows:
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"The plaintiff started construction of house about two years back by encroaching upon the property of the defendants and the same was seriously objected to on the ground that there is encroachment to an extent of 10 feet in width in the plot of the defendants."
11. Therefore, it is the case of the defendants that as the construction was commenced in the year 1985 itself after obtaining due permission from competent authority and by availing loan and as the construction was continued in the year 1989 which was well within the knowledge of the plaintiff and further, in view of his admission in the written statement in the suit filed by them against him in the year 1989 that he came to know that the defendants have made the alleged encroachment about two years prior to the date of filing of the written statement which falls some where 24 in the year 1987, as the suit is filed in the year 1991 it is barred by limitation.
12. The material on record reveals, initially defendants had started construction of the house in their plot no.7 in the year 1985. According to the plaintiff he objected to the said construction as they were constructing by encroaching upon his property and as the defendants assured that they would not proceed with the construction, on the other hand, they would get the suit property measured by the competent surveyor, he did not take any further steps. Thereafter, they continued construction of the house in the year 1989. When he objected they filed suit and obtained a restraint order against him. On his appearance and making an application for vacating the restraint order and also an application for appointment of Commissioner it was allowed and the said order of appointment of Commissioner was challenged by the 25 defendants in CRP No.343/1990 before this Court. Therefore, by virtue of the pendency of these proceedings and in view of the defendants having withdrawn the suit O.S.1809/1989 filed without his knowledge, he having filed the suit in the year 1991 thereafter, the same is not barred by limitation. As already pointed out, initially the construction was started in the year 1985 after obtaining due permission from the competent authority i.e., Town Planning Authority, Belgaum on 25.04.1985 along with sanction of commencement certificate. This was with the knowledge of the plaintiff which is admitted by him. The defendants have availed loan initially to the tune of Rs.33,600/- which is fortified from Ex.P.9. It is their case that on account of paucity of funds they could not continue with construction. Therefore, in the year 1989 again they availed another loan on 26.07.1989 to the tune of Rs.90,000/- which is supported by Ex.D.10. The building has been completed by the defendants as 26 per completion certificate dated 20.11.1990 which is at Ex.D.15. It is the case of the defendants, as the plaintiffs obstructed the construction they filed O.S.1809/1989 and obtained an order of temporary injunction. In the said suit the defendant/present plaintiff appeared and filed his written statement on 15.12.1989 which is at Ex.D.12. In the said written statement, he has clearly stated that the plaintiff started construction of house about two years back by encroaching upon the property of the defendant and he seriously objected on the ground that there is an encroachment to an extent of 10 ft x 67 ft. in width in his plot. Two years prior to the date of filing of written statement in the said suit dates back to the year 1987. The statement made in the said written statement binds on him. Apart from this, he has also made an admission in the cross examination that the defendants have taken up construction of the house in plot no.7A in the year 1986. It was contended that due to the 27 pendency of the proceedings, the plaintiff did not take any step. Ex.D.13 discloses that the suit filed by the defendants came to be withdrawn on an application filed by them on 20.04.1991. Ex.D.13 reveals that as on that day objections were not filed and the application filed by the plaintiffs was allowed permitting them to withdraw the suit reserving liberty to file fresh suit. Therefore, it cannot be said that plaintiff had no knowledge of defendants having withdrawn the said suit as on that day. Material on record, as already point out goes to show that the plaintiff had the initial knowledge of the construction in the year 1985. Later as per his own admission in the cross-examination in the year 1986 and subsequently in the written statement which he has filed as per Ex.D.12 it should be held that he had knowledge at least in the year 1987. The written statement filed by him binds on him. If that date is taken into consideration and coupled with Ex.D.15 the completion certificate of the building by the defendants 28 the date of knowledge of encroachment will have to be attributed to the plaintiff atleast from the year 1987. If that date is taken into consideration as the suit is filed by him on 29.08.1991, as rightly held by the learned appellate Judge, it is barred by time. As the material on record clearly and clinchingly reveals that plaintiff had the knowledge of the alleged encroachment by the defendants atleast as on the date he filed written statement in the suit filed by them which is at Ex.D.12 from that date the period of limitation commences and if that is taken into consideration, the suit ought to have been filed in the year 1990 which admittedly has not been done and therefore the suit is barred by time. The lower appellate court on appreciation of material on record has rightly come to the conclusion that the suit of the plaintiff is barred by time. Therefore the said finding does not call for any interference. 29
13. Point No.2: Coming to the question of encroachment made by the defendants, the burden is on the plaintiff to prove that defendants have encroached the suit property and have put up construction on the same. Defendants have contended that they have not made any encroachment in the property of the plaintiff as contended by him. It is their case that they have put up construction well within their plot measuring to an extent of 36 ft. x 67 ft. The plaintiff does not dispute the fact of defendants owning their plot measuring 36 ft. x 67 ft.
14. The plaintiff has based his case mainly on the rough sketch enclosed to the plaint. According to him the alleged encroached area is shown in the red colour by letters ACEF in the hand sketch which measures 10 ft East West and 67 ft North South. The said hand sketch is not according to scale and it is purely a private document prepared by the plaintiff for 30 the purpose of the suit which has been seriously disputed by the defendants. No material is placed before the Court as to how he has prepared the hand sketch and on what basis. Therefore, no reliance can be placed or no sanctity can be attached to the said hand sketch. According to the plaintiff, defendants have encroached on the suit property, but before filing the suit, he has not chosen to get his suit property measured through a competent surveyor and demarcate his boundaries. Plaintiff ought to have got measured the plot through a competent surveyor before instituting the suit. After getting such a report from the competent surveyor he could have approached the Court for the relief that he has sought for. There is nothing on record to show that plaintiff got measured the suit property in question and having got demarcated the boundaries prior to filing of the suit. Without doing so, he has rushed to the Court seeking the relief of mandatory injunction and possession alleging that the defendants 31 have encroached to an extent of 10 ft x 67 ft in plot No.8. However, during the course of the trial at the instance of the plaintiff, a Commissioner has been appointed to measure the disputed suit property and submit a report. The Asst. Director of Land Records, Belgaum is the Court Commissioner who had been appointed to measure the suit property and to demarcate the boundaries. The Court Commissioner after inspecting the suit property and on measuring the land in question, has prepared the sketch and has submitted the report. He has carried out the survey work as per the survey manual and as per the actual vahivat. He has also during execution of warrant has referred to the P.T. sheet and concerned revenue records. The said Commissioner has been examined as CW-1. The Commissioner in his report has stated that there is no encroachment. Further his report reveals that defendants are in possession of plot No.7A and 7B together to an extent of 37 ft. x 67 ft. It was pointed out 32 that the Commissioner report reveals that there is encroachment but it cannot be identified. In that view of the matter, it is difficult to hold that there is any encroachment as alleged by the plaintiff. The Commissioner being an officer attached to the office of the Asst. Director of Land Records is competent to execute the warrant and submit report. He is also competent to measure the land in question and demarcate the boundaries. No malafides are attached to his office either by the plaintiff or by the defendants. Therefore there is no reason to disbelieve the report of the Commissioner as he is an independent person who has carried out the commission work as per the orders of the Court. Though in the cross examination, on behalf of the plaintiff has stated that there is encroachment to an extent of 12 ft x 67 ft. he has denied the same during cross examination made on behalf of the defendants. However, having regard to the report of the Commissioner and his evidence in which 33 unequivocally has stated that he cannot identify the encroached area and that defendants have put up construction of building in their own property it cannot be said that the plaintiff has proved that the defendants have encroached on the suit property as alleged by him. Apart from this, it is seen from the judgment of the trial court that encroachment is to an extent of 4 ft x 67 ft. As already pointed out, according to the plaintiff, it is 10 ft x 67 ft. When the trial court gave a finding that the encroachment is to an extent of 4 ft x 67 ft, if according to the plaintiff the encroachment was to an extent of 10 ft x 67 ft, he ought to have challenged the said finding of the trial court. Having not done so, it goes to show by his conduct that there is no encroachment at all as alleged by him, in view of the material on record. The lower appellate court on appreciation of the entire material on record has come to the right conclusion in holding that the plaintiff has failed to prove any encroachment made by defendants as alleged by him. 34 The said finding of the trial court having been based on facts, does not call for interference in this appeal.
15. Point No.3: For the reasons adverted to above, the impugned judgment and decree of the appellate court having been based on facts and law supported with sound reasons does not suffer from any infirmity or illegality, calling for interference in this appeal. Accordingly, the substantial question of law framed by this court is answered in the affirmative and against the appellant/plaintiff. Accordingly, I proceed to pass the following:
ORDER Appeal is dismissed.
Parties to bear their own costs.
Sd/-
JUDGE RS/mkc