Supreme Court - Daily Orders
Basavaraj vs The Commissioner, Karnataka Housing ... on 1 March, 2023
Bench: V. Ramasubramanian, Pankaj Mithal
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3599/2011
BASAVARAJ Appellant(s)
VERSUS
THE COMMISSIONER, KARNATAKA HOUSING BOARD,
BANGALORE, KARNATAKA Respondent(s)
O R D E R
This appeal arises out of the judgment of the High Court of Karnataka, Circuit Bench at Gulbarga, allowing a Regular First Appeal under Section 96 Code of Civil Procedure, 1908 (for short “CPC”) and thereby reversing the judgment and decree of the Trial Court in a suit for declaration and possession filed by the appellant herein.
We have heard Mr. D. Seshadri Naidu, learned senior counsel appearing for the appellant and Mr. Shailesh Madiyal, learned counsel for the respondents.
The appellant herein filed a suit in O.S. No.85/1995 on the file of the Principal Civil Judge (Senior Division) Gulbarga, seeking the following reliefs:
“Plaintiff claims;
1. Declaration of ownership and possession of the suit land Sy No.111/1Aa, measuring 01 acres 12 gunte forming part of Survey No.111/1Aa which measures 16 acres 39 gunte assessed at Rs.7-43 ps of Bramhapur Gulbarga which Signature Not Verified is bounded in the North and South by Tar Road and in the Digitally signed by NIRMALA NEGI Date: 2023.03.04 12:15:59 IST East and West by houses.Reason:
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2. In the alternative, the price of the said suit land Rs.3,00,000” Briefly stated, the claim of the appellant in his suit was that he and his ancestors held land measuring in extent of 37 acres 4 guntas in Survey No.111/1Aa of Bramhapur village Gulbarga; that out of the said land, land of an extent of 2 acres was acquired for the purpose of providing a gate by one M.S.K. Mills; that another portion of the land measuring 8 acres 7 guntas was acquired by the Government for the purpose of providing house sites to Harijans, who had formed themselves into a Housing Society; that thereafter M.S.K. Mills came into possession of 9 acres 38 guntas, without ever purchasing the same from the appellant; that the name of M.S.K. came to be entered in the Pahani Patrika to the extent of 11 acres 38 guntas; that the said Pahani Patrika was a product of collusion between the officials of the mills and the then village accountant; that the land of an extent of 9 acres 38 guntas encroached by the mills was purchased by the respondents herein namely Karnataka Housing Board; that the Karnataka Housing Board, despite purchasing only 9 acres 38 guntas of land, held possession of a large extent of 11 acres 12 guntas; that the respondent was thus in unlawful occupation of an excess land measuring 1 acre 12 guntas belonging to the appellant and that therefore, there must be a decree of declaration and recovery of possession.
The respondents/defendants admitted that they purchased land only of the extent of 9 acres and 38 guntas and that they neither purchased nor in possession of any land over and above, 2 9 acres 38 Guntas.
The Trial Court framed six issues as arising for consideration, namely:
“1. Whether Plaintiff proves that he is the owner of the suit land measuring 1 acre, 12 gunts in Survey No.11/1Aa?
2. Whether the plaintiff is entitled for possession of the same from the defendant?
3. Whether plaintiff proves that alternatively he is entitled for the price of the land amounting to Rs.3,00,000/-?
4. Whether the suit is bad for non-joinder of necessary parties?
5. Whether the suit is barred by limitation?
6. To what decree or order the parties are entitled to?
On Issue Nos.1 and 2, the Trial Court held that the appellant had proved his ownership of the land measuring an extent of 1 acre 12 guntas in Survey No.111/1Aa that therefore he is entitled to seek recovery of possession. Accordingly, the Trial Court decreed the suit.
Aggrieved by the said judgment and decree of the Trial Court, the respondents/defendants filed a Regular First Appeal. The Division Bench of the High Court allowed the First Appeal by the judgment impugned in this appeal. Hence, the plaintiff is before us.
As rightly pointed out by the High Court, the appellant did not produce a single document to show how title flowed either to him or to his ancestors.
3 The appellant merely produced ROR, which, as rightly pointed out by the High Court, did not prove title.
With a view to overcome the said aspect highlighted by the High Court, the appellant has now come up with an application under Order 41 Rule 27 CPC, seeking to mark a sale deed document No.329/1353 Fasli. This is a certified translated copy of the sale deed said to have been executed by the appellant’s father in favour of M.S.K. Mills.
But we do not think that even if we allow the application for filing additional documents it would enable the appellant to sail safely to the shore. This is for the reason that the said document covers lands in two survey numbers namely Survey No.110 and Survey No.111. The total extent of land indicated as situate in Survey No.111 is 34 acres 37 guntas. But the claim of the plaintiff in paragraph 3 of his plaint is that the total extent of land in Survey No.111 is 37 acres, 4 guntas.
There is a sketch attached to the said document No.329/1353 Fasli. The recitals contained in the document shows that what was sold to M.S.K. Mills was shown in red colour South, West one one yard in width as marked in the map in blue colour.
Interestingly, the extent of land sold under the document to M.S.K. Mills, is indicated in the sale deed, as follows:
“to the extent of 1 acre portion adjacent to eastern compound wall shown in red colour and 75 ft. from compound wall in width.” 4 Therefore, the said document actually does not improve in the case of the appellant.
Then one more aspect. The appellant had earlier filed a suit in O.S. No. 107/1981 on the file of the Civil Judge, Gulbarga against M.S.K. Mills itself. In the said suit, the appellant had claimed that M.S.K. Mills had purchased the land of the extent of 2 acres and built a compound and that subsequently M.S.K. Mills got into possession of a total extent of 11 acres and 38 guntas.
As per the plaint in O.S. No.107/1981, the entire extent of 11 acres 38 guntas partly purchased and partly said to have been encroached, by the M.S.K. mills, was acquired by the Government.
Therefore, the appellant confined the reliefs sought in O.S. No.107/1981 to the payment of compensation after rendition of accounts. In other words, the appellant had conceded to have lost possession of a total extent of 11 acres 38 guntas to M.S.K. Mills, even as early as in 1981.
Keeping the said facts in mind, if we come back to the plaint in the present proceedings, it is seen that the entire focus of the dispute as projected in paragraphs 3 and 4 of the plaint revolves around what was purchased and what was encroached by M.S.K. Mills.
The present suit was filed in 1985. Therefore, the present suit appears to be a second attempt, by creating some kind of confusion about the total extent of land available, the total extent of land sold, the total extent acquired, the total extent encroached and the total extent now remaining unoccupied. 5 In the documents filed before us, we do not even see a proper description of the plaint schedule property. The prayer itself which we have extracted earlier contains a broad indication of the boundaries on all four sides. We do not know how those boundaries tally with the sketch filed by the ADLR, Gulbarga on 27.09.1994.
Therefore, we are of the considered view that the judgment of the High Court does not call for any interference. Hence the appeal is dismissed.
Pending application(s), if any, shall stand disposed of.
.......................J. ( V.RAMASUBRAMANIAN ) .......................J. ( PANKAJ MITHAL ) NEW DELHI;
MARCH 01, 2023
RS
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ITEM NO.103 COURT NO.15 SECTION IV-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s).3599/2011
BASAVARAJ Appellant(s)
VERSUS
THE COMMISSIONER, KARNATAKA HOUSING BOARD, BANGALORE, KARNATAKA Respondent(s) Date : 01-03-2023 This appeal was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE V. RAMASUBRAMANIAN HON'BLE MR. JUSTICE PANKAJ MITHAL For Appellant(s) Mr. D. Seshadri Naidu, Sr. Adv.
Mr. Sharanagouda Patil, Adv.
Mr. V. P. Barude, AOR Mr. Pradeep Kumar Gupta, Adv.
Ms. Shivali Chaudhary, Adv.
Mr. H. Singh, Adv.
Mr. Digvijay, Adv.
Mr. S. Sood, Adv.
Mr. Ashok Kumar Gupta Ii, AOR For Respondent(s) Mr. Shailesh Madiyal, AOR Mr. Vinayaka S Pandit, Adv.
Mr. Rajan Parmar, Adv.
Mr. Akshay Kumar, Adv.
UPON hearing the counsel the Court made the following O R D E R The appeal is dismissed in terms of the signed order which is placed on the file.
Pending application(s), if any, shall stand disposed of.
(RADHA SHARMA) (RENU BALA GAMBHIR)
COURT MASTER (SH) COURT MASTER (NSH)
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