IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO R.S.A. No.2292 OF 2006 BETWEEN:
Smt. Ammanni Poojarhi, Aged about 67 years, D/o Manji Poojarthi, Agriculturist and R/at Nadubettu in Handadi Village, Udupi Taluk, P.O.Brahmavar, Udupi District-576213. ... Appellant (By Sri Sampath Anand Shetty, Advocate) AND:
Rama Poojary, Aged about 55 years, S/o Koraga Poojary, Agriculturist and R/at Handadi Village, Udupi Taluk, P.O.Brahmavar, Udupi District-576213. ... Respondent (By Sri.K.Manjunath, for Sri R.Mohandas Shettty, Advocate) This Regular Second Appeal is filed under Section 100 read with Order XLII Rule 1 CPC against the judgment and decree dated 29.07.2006 passed in R.A.No.73/2005 on the file of the Prl. Civil Judge (Sr.Dn.), Udupi, dismissing the appeal and confirming the judgment and decree dated 29.06.2005 passed in O.S.No.327/1990 on the file of the Prl. Civil Judge (Jr.Dn.), Udupi.
This RSA coming on for final hearing this day, the court delivered the following:-
JUDGMENT This appeal is directed against the judgment and decree passed in R.A.No.73/2005 on the file of the Prl. Civil Judge (Sr.Dn.), Udupi, dated 29.07.2006 wherein learned appellate Judge dismissed the appeal and confirmed the judgment and decree dated 29.06.2005 passed in O.S.No.327/1990 on the file of the Prl. Civil Judge (Jr.Dn.), Udupi wherein defendant was restrained by way of permanent injunction from encroaching upon any portion of suit schedule property and mandatory injunction to clear and remove the Hatti Kottige encroached by him as stated in the plaint ‘A’ schedule property, within three months from the date of the said order, failing which the plaintiff was at liberty to get the removal done in due process of law.
2. In order to avoid confusion and overlapping, the parties are addressed with reference to their ranking held by them in the trial Court.
3. To begin with this appeal, it is filed by the defendant-Smt. Ammanni Poojarhi against the plaintiff- Rama Poojary who is the cousin brother. In the beginning, the suit was filed for the relief of permanent- prohibitory and mandatory injunction. The prayer of the plaintiff in O.S.No.327/1990 is as follows:
a. For perpetual injunction restraining the defendant, her men, people, servants and/or all/any person claiming through or under her or any one of them from proceeding with the work of construction of any building over he granite stone foundation put up by the defendant on the northern portion of the land bearing Sy.No.17/3B encroaching upon the suit property, and/or interfering in any matter with peaceful possession and enjoyment of the suit property by the plaintiff. (This relief is valued at Rs.1,000/- under Section 26(c) of KCF & SV Act XVI of 1958).
b. For the grant of mandatory injunction directing the defendant to remove the granite stone foundation put to by her in northern portion of Sy.No.17/3B encroaching upon the suit property. (This relief is also valued at Rs.1,000/- under Section 26(c) of KCF & SV Act XVI of 1958).
4. The plaintiff claims that he is in possession and enjoyment of 8 cents of land bearing Sy.No.17/3 of Handadi Village, Udupi Taluk and the same was granted by the Land Tribunal in LRY 57/208/TRI/8399/79-80 and certificate of registration under Form No.10 was granted in pursuance of right of plaintiff. The defendant is enjoying 27 cents of land in the same survey number. The father of the plaintiff and mother of the defendant were enjoying the entire 35 cents of land in Sy.No.17/3 on chalageni right under one Subbakka Shedthi. The property of the plaintiff and defendant are abutting each other. About 11 cents is in the possession of the plaintiff and house is also situated in the western middle portion on the Sy.No.17/3A so far a plaintiff is concerned. The defendant’s land is situated on the south eastern portion. The dispute ended in the police complaint against the defendant regarding the interference and encroaching of land. Thus, the plaintiff claims that the defendant has encroached the portion of suit property and seeks for mandatory injunction.
5. The written statement is filed by the defendant denying the claim of the plaintiff.
6. The learned trial Judge was accommodate with the pleadings and oral evidence of the PWs.1 and 2 for plaintiff and documentary evidence of Ex.P1 to P9 on behalf of defendant, no evidence is adduced nor documents are produced.
7. Learned counsel, Sri. Sampath Anand Shetty appearing for appellant would submit that the suit of the plaintiff was decreed in the original suit. However, it was contrary to Rules and procedure and substantial of law. He would further submit that the plaint does not contain precision and certainty in putting forth the rights of the plaintiff if any in the order. Further, it is submitted that the land originally was the subject matter of Land Tribunal and the same is not dispute. As per Ex.P.1 and 2, the suit property was allotted to the extent of 8 cents to the plaintiff and 27 cents to the defendant. He would further submit that the property of the plaintiff also consists house. It was also submitted that the plaintiff presented the plaint on imaginary ground and claims some portion of his property was encroached and expects from the Court for the relief of permanent injunction and mandatory injunction for the said “some portion of suit schedule property” which was encroached by the defendant.
8. Learned counsel Sri. Manjunath K.M. appearing for respondent/plaintiff would submit that the grant of land to the plaintiff is not disputed so also to the defendant. The very basis of the question of title by the plaintiff and defendant is made out in Ex.P1 and P2 wherein the Land Tribunal has granted eight cents of land to the plaintiff. However, in fact the plaintiff is in possession and enjoyment of 11 cents of land as stated by him in para-2 and 3. However, in para- 2 and 3 , the plaintiff claims that he is enjoying 11 cents of land and thus claims for permanent and mandatory injunction.
9. While admitting the appeal, the Court framed following Substantial Question of Law on 30.08.2006.
“Whether the Courts below were justified in granting of decree for mandatory injunction when the claim of the plaintiff that the Land Tribunal granted occupancy rights in respect of 8 cents?”
10. However, I also framed the following additional Substantial Questions of Law:
1. Whether the suit in the circumstances would lie for permanent injunction and mandatory injunction?
2. Whether in a suit for permanent injunction and mandatory injunction the prayer for demolition/recovery of possession of the encroached area without actual measurement is maintainable?
11. The points that is amply clear from the case are: the source of title of property to the plaintiff and defendant is not dispute. The same was granted to both of them by the orders passed by the Land Tribunal, Udupi in LRY 57/208/TRI/8399/79-80 wherein out of total extent of 35 cents land in Sy.No.17/3, an extent of 8 cents was granted to the plaintiff and 27 cents to the defendant. The grant of land was in furtherance of the rights of tenancy under the Land Reforms Act, 1961. The plaintiff is the son of brother of defendant’s mother. It is further amply clear that the plaintiff does not clear about the extent of land in respect of which he is seeking mandatory injunction. In the plaint he is in apprehension of further encroachment of his property by the defendant. As stated above, in the very first and primary documents, the plaintiff does not mention the actual measurement, as whether cents or square feets. The schedule as mentioned in plaint as under:
Schedule-A:
Immovable property bearing Sy.No.17/3A- Bhagayath measuring 8 cents in extent and situated in Handadi Village of Udupi Taluk, bounded by north: land bearing Sy.No.17/2 and road, east: land bearing Sy.No.17/1A, south: portion of the same sub-division, west: land bearing Sy.No.18 with house, trees etc., 12. The extent of property is shown as 8 cents in Sy.No.17/3A (it appears that the original land was phoded and the portion of land of plaintiff is situated in the Sy.No.17/3a) However, the plaintiff is seeking an extent of 8 cents of land in Sy.No.17/3a. In this background, the prayer of the plaintiff is as under:
1. For perpetual injunction restraining the defendant, her men, people, servants and/or all/any person claiming through or under her or any one of them from proceeding with the work of construction of any building over he granite stone foundation put up by the defendant on the northern portion of the land bearing Sy.No.17/3B encroaching upon the suit property, and/or interfering in any matter with peaceful possession and enjoyment of the suit property by the plaintiff. (This relief is valued at Rs.1,000/- under Section 26(c) of KCF & SV Act XVI of 1958).
2. For the grant of mandatory injunction directing the defendant to remove the granite stone foundation put to by her in northern portion of Sy.No.17/3B encroaching upon the suit property. (This relief is also valued at Rs.1,000/- under Section 26(c) of KCF & SV Act XVI of 1958).
13. When litigant seeks removal of encroachment of his property and also for mandatory injunction, literally the plaintiff pleads for recovery of encroached area. Under such circumstances, more particularly, in the context of the case, the plaintiff does not explain regarding not filing the suit for declaration of title. No doubt, in the circumstances, where title is not disputed which would be sufficient to seek the same. Here is a case where title is disputed.
14. Learned counsel for the appellant submits that this is the second round of litigation wherein, earlier the matter was disposed of by the learned trial Judge granting permanent injunction to the plaintiff and defendant for Rs.2,000/- by way of damages instead of relief of mandatory injunction. It is submitted that both plaintiff and defendant preferred Regular Appeal before the First appellate Judge through RA No.71/1995 by the plaintiff and R.A.No.68/1995 by the defendant. The learned first appellate Judge passed a common order by clubbing both the appeals and remanded the matter to the trial court for fresh disposal as per the judgment dated 26.06.2003 and the said order was challenged by the defendant in M.S.A.No.197/2000 that came to be disposed of on 05.01.2005 with a direction to the trial Court to dispose of the suit within two months from the date of communication of the said order and this Court confirmed the order of remand passed by the First Appellate Court in the previously concluded round on the matter being remanded.
15. The learned appellate Judge disposed of the matter and decreed the suit on 29.06.2005 in favour of the plaintiff. Being aggrieved by the judgment and decree passed by the trial court in O.S.No.327/1990 dated 29.06.2005, the defendant preferred an appeal in R.A.No.73/2005 that came to be dismissed on 29.07.2006 and the said order being challenged under this appeal.
16. The moot question would be that the legal effect of the grant of land need not be further proved as neither of the parties disputed the same nor by the other parties. The extent of land that was granted in Sy.No.17/3 is 8 cents to the plaintiff and 27 cents to the defendant, again same is not disputed. The land of plaintiff and defendant are assigned under Sy.No. as 17/3A to the plaintiff 8 cents, 17/3B to the defendant as 27 cents as in some parts of State one acre is regarded as 100 cents and in remaining parts of State, one acre is regarded as ‘40 guntas’. More particularly, in South Karnataka i.e., one gunta of land is two and half cents.
17. Learned counsel for plaintiff would submit that the Court Commissioner who was appointed in the matter by the trial court has stated in the encroachment of schedule property by the defendant is to the extent of 5 feet X 17 feet on the southern side. It is necessary to mention that unless acts of possession or their actual possession cannot be determined by the Court Commissioner with precession. More particularly, when the total land is measuring 35 cents, it is necessary to mention that in para 2 and 3 of the plaint, the plaintiff claims that he is in possession and enjoyment of the 11 cents of the land in Sy.No.17/3A. The simple arithmetic is, total extent of land is 35 cents in Sy.No.17/3 i..e, bifurcating in the portion of 8X27 cents. Thus, the claim of the plaintiff to assert that he is in possession of 11 cents is not explained nor the source under which the extent swelled from 8X11 cents is also not mentioned nor justifiable documents to bind the defendant to the area is not mentioned. The claim of 11 cents by the plaintiff through his pleading cannot be considered as stray submission made on a scrap of paper of no significance. It is the pleadings that are culminated into the prayer and became the relief granted i.e., in the circumstances which is necessary to mention basically the plaintiff claims that he was granted 8 cents of property. Further asserted that he is in possession of 11 cents. To prove the same, circumstances, sources, material or reliable documents are not produced. There is no explanation for the same to accept i.e, conduct of the plaintiff in asserting 11 cents in the plaint does not inspire confident for the relief of mandatory injunction.
18. Further, the plaintiff though says that encroachment was apprehended, encroachment was already committed. The plaintiff claims that defendant was encroached and she has to be prevented otherwise further encroachment would be effected by her. In the circumstances of the case, I find another fault, that he is not filed a suit for declaration regarding to the fact in a recovery of possession of encroached land, the same is coupled with declaration of title. Unless, the other party admits ownership of plaintiff, let alone the plaintiff himself enjoyed 8 cents of land. Thereafter after getting himself filed a suit for 3 cents of property and the plaint does not say about any other extra land of 3 cents. Such being the circumstances, the learned trial Judge in the judgment dated 29.06.2005 and the first appellate Judge in R.A.No.73/2005 dated 29.07.2006 have exceeded the scope of the suit and granted relief to the plaintiff. Therefore, I find both the judgments are grossly erroneous and required to be set aside. Accordingly, the substantial question of law are answered. In the result, I pass the following:
ORDER Appeal is allowed.
The judgment and decree passed by the First Appellate Judge in R.A.No.73/2005 dated 29.07.2006 confirming the judgment and decree in O.S. No.327/1990 dated 29.06.2005 are hereby set aside. Consequently, suit of the plaintiff is dismissed.
JS/-
Sd/- JUDGE