Karnataka High Court
Doddashamanna vs Venkateshappa G on 20 September, 2012
Author: N.Kumar
Bench: N Kumar
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 20th day of September, 2012
BEFORE
THE HON'BLE MR. JUSTICE N KUMAR
RFA No. 864 OF 2005
BETWEEN:
Sri Doddashamanna @ Shamanna
S/o late Ramaiah
Aged about 49 years
Bachenahalli
Mandikal Hobli
Chikkaballapur Taluk - 562 101 ...Appellant
(By M/S. ALMT legal, Advocates)
AND:
1. Venkateshappa G
S/o Gurappa
Aged 42 years
Agriculturist
Bachenahalli
Mandikal Hobli
Chikkaballapur Taluk - 562 101
2. Narayanappa
S/o Venkatarayappa
Aged about 60 years
Bachenahalli
2
Mandikal Hobli
Chikkaballapur Taluk - 562 101 ...Respondents
(By Sri G. Balakrishna Shastry, Advocates
for R1 and R2)
This RFA filed under section 96 of CPC against the
judgment and award dated 13-4-2005 passed in OS
No.70/2001 on the file of the Civil Judge (Sr.Dn.) & JMFC,
Chikballapur, decreeing the suit of the respondents herein for
declaration and permanent injunction.
This RFA coming on for hearing this day, the Court
delivered the following :
JUDGMENT
This is a defendant's appeal against the judgment and decree of the trial Court which has decreed the suit of the plaintiffs for declaration and for permanent injunction.
2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit. 3
3. The subject matter of the suit is land situated in Sy. No. 9 at Bachenahalli, Mandikal Hobli, Chickballapur Taluk, measuring 4 acres 14 guntas bounded on the East by Muddappagari Venkatarayappa's land; West by Lands of B.N.Narayanaswamy and Venkatappa; North by Narasimhaiah's land and South by Halla and Narayanappa's land, which is hereinafter for short referred to as 'the suit land'.
4. The 2nd plaintiff is the paternal uncle of the 1st plaintiff. Suit property absolutely belongs to them. Their case is they are in peaceful possession and enjoyment of the property, raising crops thereon and have been paying the land revenue due on the land. The land was granted to Venkatarayappa, the grandfather of the 1st plaintiff under Darkast in ADR 6/50-51 under saguvali chit dated 28.3.1951. From that day the suit property is in peaceful possession and enjoyment of the family of the plaintiffs. The katha stands in their name. Mutation entries are also made in their names. 4
5. The defendant has absolutely no right or interest in the schedule land. He has been attempting to encroach upon the suit land. Defendant is obstructing the plaintiffs in their agricultural operations in the schedule land. If those illegal acts are not prevented, the plaintiffs would be put to irreparable loss and injury. Therefore, the plaintiffs filed the suit for declaration and for permanent injunction.
6. After service of summons, the defendant entered appearance. He filed a detailed written statement contesting the claim of the plaintiffs. He has denied all the allegations in the plaint. In para 5 of the written statement he has set out his case. It is his specific case that, the suit property measures in total an extent of 4 acres 14 guntas including kharab land of 36 guntas. The plaintiff is in possession and enjoyment to an extent of 3 acres 18 guntas. Whereas the kharab portion in the suit property is situated towards west of the property. This kharab possession of 36 guntas is in the possession and enjoyment of the defendant. The same is merged in survey 5 number 10 which belong to the defendant. This Sy.No.10, stands in the name of Akkayyamma, the mother of the defendant. There is no separate identity in respect of 36 guntas, out of plaint schedule survey number and the same is part and parcel of Sy.No.10. The entire Sy.No.10, along with kharab portion of 36 guntas, out of plaint schedule Sy.No.9, is in possession and enjoyment of the defendant for a period of more than 30 years. The plaintiffs are very well aware of the fact that the kharab portion of Sy.No.9 is in possession and enjoyment of the defendant and his mother. Even RTC of Sy.No.9 for several years reveal the name of Agasara Ramaiah, the father of the defendant and the husband of Akkayyamma. The defendant has perfected his title over the kharab portion of 36 guntas out of Sy. No.9 by way of adverse possession. The plaintiffs have filed the suit by furnishing false boundaries suppressing the real facts of the case. Therefore, he sought for dismissal of the suit.
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7. On the aforesaid pleadings, the trial Court framed the following issues:-
1. Whether the plaintiffs prove that he is the owner of the suit property?
2. Whether the plaintiffs prove that he is in lawful possession and enjoyment of the suit property as on the date of his suit?
3. Whether plaintiffs prove the alleged interference?
4. Whether the defendant proves that he has perfected his title by adverse possession over the portion of suit property as contended?
5. Whether the plaintiffs are entitled to the relief of declaration and injunction as prayed?
6. What decree or order?
8. Plaintiffs in order to substantiate their claim examined the first plaintiff as PW1. He also examined two 7 adjoining owners of the land by name V.Krishnappa and Venkatesh as PWs 2 and 3, produced 9 documents which are marked as Exs. P1 to P9. On behalf of the defendant, defendant examined himself as DW1. He has also examined two witnesses by name N.Shivappa and Venkateshappa as DWs 2 and 3. He produced 3 documents which are marked as Exs.D1 to D3.
9. The trial Court on appreciation of the aforesaid oral and documentary evidence on record held that the plaintiffs have proved that they are the owners of the suit schedule property. They have further proved that they are in peaceful possession and enjoyment of the suit property as on the date of the suit. They have also established interference by the defendant. Defendant has failed to prove that he has perfected his title by adverse possession over 36 guntas of kharab land which forms part of Sy. No.9. Therefore, the trial Court granted a decree for declaration and permanent injunction. Aggrieved 8 by the said judgment and decree of the trial Court, the defendant has preferred this appeal.
10. Learned counsel for the defendant assailing the impugned judgment and decree contended that, according to Ex.P1, the grant certificate in Sy. No. 9, only an extent of 3 acres 18 guntas was granted to the first plaintiff's grandfather. The total extent of Sy. No. 9 is 4 acres 14 guntas. Even the RTC produced shows 3 acres 18 guntas is the land and 36 guntas is the kharab land and thus the total extent is 4 acres 14 guntas. Therefore, the plaintiffs cannot be declared as the owner of 4 acres 14 guntas. Their title to 3 acres 18 guntas is not disputed. 36 guntas of kharab land in Sy. No. 9 lies to the West of the suit property. It is in the possession of the defendant. To the west of this 36 guntas of land is Sy. No.10 which stands in the name of defendant's mother Smt. Akkayyamma. She is the owner of 1 acre 38 guntas. The said 1 acre 38 guntas + 36 guntas of kharab land, in all measuring 2 acres 34 guntas constitute one compact unit which is in the 9 possession of the defendant and his mother for the last 30 years and therefore the trial Court was not justified in granting the declaration sought for as well as the decree for permanent injunction. Therefore, he submits the judgment and decree of the trial Court requires to be set aside.
11. Per contra, the learned counsel for the plaintiffs contended that, admittedly the total extent of Sy. No.9 is 4 acres 14 guntas. 3 acres 18 guntas is granted under Ex.P1. Remaining 36 guntas form part of the said survey number. It is in the middle of the said survey number and it is in the possession of the plaintiffs and their predecessor in title from the date of grant. No portion of 36 guntas of kharab land was either in possession of the defendant or his family members. Admittedly, the defendant has no title to the said 36 guntas. It is not a part of Sy. No.10. Therefore, the trial Court on a proper appreciation of the oral and documentary evidence on record rightly held that the plaintiffs are the owners of the said extent of land. Defendant has no right, defendant is not in 10 possession and therefore the trial Court was justified in granting the decree. Therefore, no case for interference is made out with the judgment of the trial Court.
12. In the light of the aforesaid facts and the rival contentions, the points that arise for consideration in this appeal are as under: -
(i) Whether the trial Court was justified in granting a declaration of title in respect of 4 acres 14 guntas in Sy. No.9 in favour of the plaintiffs?
(ii) Whether the trial Court was justified in granting a decree for permanent injunction?
13. Point No. (i):- As the suit is one for declaration of title, any amount of oral evidence, not even the entries in the mutation register can confer title. In order to establish title, plaintiffs have to show the source of acquisition of title. 11 Therefore, they have produced Ex.P1, an undisputed document which has come into existence at an undisputed point of time which shows Sy. No. 9 measures 3 acres 18 guntas is granted in favour of Venkatarayappa, the grandfather of the first plaintiff and the father of the second plaintiff. Therefore, the plaintiffs are the absolute owners in possession of 3 acres 18 guntas which is the subject matter of Ex.P1. The defendant do not dispute their title to the extent of 3 acres 18 guntas in Sy. No. 9. The dispute is only regarding 36 guntas of kharab land. It is also not in dispute that this 36 guntas of kharab land is a part of Sy. No. 9. Merely because it becomes part of Sy. No.9, when what is granted is 3 acres 18 guntas, title to 36 guntas is not conveyed to the plaintiffs. Therefore, Venkatarayappa acquired only 3 acres 18 guntas, he was not the owner of 36 guntas of kharab land which is not the subject matter of grant. To that extent, the judgment of the trial Court is vitiated and is hereby set aside.
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14. Point No. (ii) :- Notwithstanding the fact that the plaintiffs' predecessor was not the owner of this 36 guntas of kharab land, as it was not conveyed to him under Ex.P1, the fact remains that 36 guntas is a part and parcel of Sy. No.9. According to the plaintiffs, this 36 guntas is in the middle of the said survey number. According to the defendant it lies towards the west of the suit property. In other words it is in between Sy. Nos. 9 and 10. The defendant's mother Akkayamma is the owner of Sy. No. 10 which measures 1 acre 38 guntas. It is the case of the defendant that he is in possession of 36 guntas. No document is produced to show his possession over this 36 guntas of land for the last 30 years. The documents on which reliance is placed are Exs.D1 and D2- the RTC extracts of Sy. No.9. It shows the name of Gurappa, the father of the first plaintiff and below the said name, the name of Agasara Ramaiah is written and also in column No.9 in the column meant for person in possession Agasara Ramaiah is written. But, there is a note that this is an entry in a different ink. In other words, this is an interpolation. When 13 the defendant contends that he is in possession of this 36 guntas of kharab land, he has to produce document to show his possession. After the death of Agasara Ramaiah, the property has devolved on his wife. Her name is not shown in so far as the said survey number is concerned. The defendant is neither the owner of Sy. No. 10 nor in possession of this 36 guntas in Sy. No. 9 and therefore his plea that he has perfected his title by adverse possession has remained only as a plea. No evidence is adduced. On the contrary, the evidence on record shows especially by way of mutation entries they are marked as Exs. P3, P4, P5 that the entire extent of 4 acres 14 guntas is in the possession of the plaintiffs. Out of 4 acres 14 guntas, 36 guntas is phut kharab and therefore the plaintiffs have established possession over 36 guntas of land from the date of grant. It is the plaintiffs who are in possession of the property for more than 50 years uninterruptedly, peacefully, without any claim for title by any person. Though they have no title to the said extent of land, as the said land forms part of the said survey number and it is a kharab land attached to Sy. No. 9 14 and that they have shown that they are in possession for 50 years, certainly they could protect their possessory title and the trial Court committed no illegality in granting a decree for permanent injunction. In that view of the matter, no fault could be found with the judgment of the trial Court. Hence, I pass the following order : -
(a) Appeal is allowed in part.
(b) The suit of the plaintiffs for declaration that they are the absolute owners of Sy. No. 9 measuring 3 acres 18 guntas is affirmed.
They have no title in respect of 36 guntas of kharab land.
(c) However, they are in peaceful possession and enjoyment of this 36 guntas of land in Sy. No. 9 for more than 50 years peacefully and therefore the defendant is rightly restrained from interfering with the plaintiffs' peaceful possession and enjoyment of this 36 guntas 15 of land, in all 4 acres 14 guntas which is the suit property. In other words, the plaintiffs have made out a case of possessory title in respect of 36 guntas.
Parties to bear their own costs.
Sd/-
JUDGE ckl/-