IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE H.P.SANDESH RFA.No.343/2008 BETWEEN:
B.M. RAMANATH S/O. MUNISWAMY AGED ABOUT 51 YEARS R/AT BAGALAGUNTE VILLAGE YESHWANTHPUR HOBLI BENGALURU NORTH TALUK ... APPELLANT (BY SRI. K. RAGHAVENDRA RAO AND SMT. V. VIDYA, ADVOCATES) AND:
SRI. SHESHADRI REDDY S/O. G. CHINNAPPA REDDY AGED ABOUT 32 YEARS R/AT NO.598/11 1ST CROSS, HMT LAYOUT 15TH MAIN, MATHIKERE BENGALURU-54 ... RESPONDENT (BY SRI. R.A. DEVANAND, ADVOCATE) THIS RFA IS FILED UNDER ORDER 41 RULE 1 READ WITH SECTION 96 OF THE CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 15.12.2007 PASSED IN O.S.NO.6111/2002 ON THE FILE OF X ADDL.
CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-26), DECREEING THE SUIT FOR DECLARATION, POSSESSION AND PERMANENT INJUNCTION.
THIS RFA COMING ON FOR HEARING AND HAVING BEEN RESERVED FOR JUDGMENT ON 30.08.2019, THIS DAY THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed challenging the Judgment and Decree dated 15.12.2007 passed in O.S.No.6111/2002 on the file of X Additional City Civil and Sessions Judge, Bengaluru City, (CCH-26).
2. The parties are referred to as per their original ranking before the Court below as plaintiff and defendant in order to avoid the confusion and for the convenience of the Court.
3. Brief facts of the case are:
The plaintiff has filed a suit against the defendant seeking the relief of declaration to declare that the plaintiff, who is the owner of the portion of 10 guntas of land shown in blue colour of the sketch in Sy.No.118 of Bagalakunte village to direct the defendant to deliver the possession of the same and for permanent injunction to restrain the defendant from alienating the ‘B’ schedule property.
4. The factual aspect of the case is that the plaintiff is the owner in possession and enjoyment of Sy.No.118 of Bagalakunte village to an extent of 1 acre 1 gunta + 2 guntas of kharab land, having purchased the same from one Abdul Azeez @ Anwar and Abdul Saleem under a registered Sale Deed dated 27.4.1995. The name of the plaintiff is mutated in the revenue records. The plaintiff further claims that the defendant is the owner of the adjacent land on the eastern side of ‘A’ schedule property bearing Sy.No.119. The defendant in the month of November 2001 started encroaching ‘A’ schedule property to an extent of 10 guntas, which is morefully described in ‘B’ schedule property.
5. On enquiry, plaintiff learnt that defendant is making an attempt to forming sites to sell the same to various purchasers. Immediately, plaintiff gave representation to ADLR, Bengaluru, to conduct the survey as to whether the 10 guntas of land is the portion of Sy.No.118 or Sy.No.119. The surveyor issued notices and directed the parties to appear before him on 23.1.2002 and produce documents. After the spot mahazar and local enquiry, the surveyor gave a report stating that, the extent of 10 guntas of land is in Sy.No.118 has been encroached by the owner of Sy.No.119. Hence, it is contended that the defendant has no right, title or interest over the ‘B’ schedule property. It is also contended that the defendant has negotiated with various purchasers to sell the property in Sy.No.118 and hence, he has approached the Court by filing the suit.
6. In pursuance of the suit filed by the plaintiff, notice was ordered and appeared through the Counsel and filed the written statement.
7. In the written statement, the defendant denied the very contention of the plaintiff that having been purchased the property bearing No.118 to the extent of 1 acre 1 gunta + 2 guntas of kharab land, under Sale Deed dated 27.4.1995 and disputed the possession, mutation and other records. The encroachment by the defendant in respect of 10 guntas of land has also denied; issuance of notice by the surveyor is also denied. The sketch is also denied and also denied the right and interest of the plaintiff over the said 10 guntas of land.
8. The defendant contends that he has purchased the land in Sy.Nos.119/3, 119/4, 120, 121 under the sale deed dated 4.10.1976 from Papamma and others. It is also his case that they also agreed to sell the adjoining properties including 10 guntas in Sy.No.118 of Bagalagune village and on the same day, he was put in possession. The possession was confirmed by executing the sale deed on 14.10.1978. The defendant is in possession and enjoyment of the same since more than 25 years without any interference from anybody. It is also contended that the suit is barred by limitation. The documents produced by the plaintiff are also concocted. The suit is also bad for non-joinder of parties.
9. Based on the pleadings and other materials available on record, the Court below has framed the following issues:
1. Whether the plaintiff proves his ownership over the 10 guntas of land as per the sketch of the surveyor?
2. Whether the plaintiff proves that he is entitled for the possession for the said 10 guntas?
3. Whether the plaintiff proves that he is entitled for permanent injunction in respect of B-schedule property?
4. What order?
The Court below while passing the Judgment, framed two additional issues, which are as follows:-
1. Whether the defendant has perfected his title by adverse possession?
2. Whether the plaintiff is entitled for the relief of permanent injunction to restrain the defendant from alienating the plaint schedule property?
10. Having considered the material on record, the Court below answered issue Nos.1 to 3 as in the affirmative; additional issue No.1 as in the negative; additional issue No.2 as in the affirmative and decreed the suit. Being aggrieved by the said Judgment and Decree, the present appeal is filed.
11. The appellant/defendant in the grounds of appeal would contend that based on the alleged report of the surveyor, the plaintiff has claimed the right and the same never conferred a title on the plaintiff nor proved the alleged encroachment by the defendant. The very evidence given by the plaintiff as P.W.1 is not sufficient to prove the falsity of the case put forward by the plaintiff. The other contention of the defendant is that, he has purchased 10 guntas of land in Sy.No.118 pursuant to a registered sale deed dated 14.10.1978. The plaintiff contends that, he has purchased Sy.No.118 pursuant to a registered sale deed dated 27.4.1995. The sale in favour of the plaintiff is for later in time; this aspect of the matter has not been considered by the Court Below. Since 10 guntas of land had been sold in Sy.No.118 to the defendant in the year 1978, the question of the vendors of the plaintiff selling the entire extent of Sy.No.118 does not arise and the Court below has committed an error in decreeing the suit. It is further contended that the very approach of the Court below with regard to the oral evidence lead by D.W.2 and documents produced by the defendant proves that the Court below has committed an error. It is contended that, it is a settled principle of law that, the documentary evidence would exclude the oral evidence and prays this Court to set aside the Judgment and Decree of the Trial Court.
12. The learned counsel appearing for the appellant/defendant, in his arguments, he reiterated the grounds urged in the appeal memorandum and would contend that the Court below has committed an error in framing the additional issues and there was no pleading in the written statement of the defendant that he has perfected the title by way of adverse possession and in the absence of the said pleading erroneously framed additional issue No.1. The vendors of the plaintiff have not been examined and the plaintiff claims the ownership based on the Sale Deed of the year 1995. The Court below failed to take note of the Sale Deed of the year 1978 and further failed to take note of the fact that in the year 1976 itself, the vendors of the defendant have agreed to sell the property and delivered the possession and only executed the Sale Deed in the year 1978 and the said pleading of the defendant and evidence have been ignored by the Trial Court and committed an error in decreeing the suit.
13. On the other hand, the learned counsel appearing for the respondent/plaintiff, in his arguments, he vehemently contended that in para-3 of the plaint, specifically pleaded the case of the plaintiff.
14. The defendant in the written statement admits receipt of surveyor notice and he did not choose to appear before the surveyor and surveyor given the report in terms of Ex.P7, the same has attained the finality. It is the contention that the vendors of defendant agreed to sell the property in possession in the year 1976 and to evidence the said fact; nothing is produced before the Court. The defendant relied upon Ex.D1 and on perusal of Ex.D1, no boundaries are mentioned in the Sale Deed and also not specified the extent, which has been sold in respect of Sy.No.118 in favour of the defendant. Ex.D12, the Sale Deed of the year 1976, which is in respect of 4 acres of land for different survey numbers and not in respect of Sy.No.118. The Court below in detail discussed in the Judgment and also considered the admission elicited in the cross-examination of D.W.1 and hence, the defendant cannot find fault with the Judgment of the Trial Court. The Court below considered the material available on record and the Judgment is based on sound and proper reasonings and hence, there are no grounds to interfere with the Judgment of the Trial Court.
15. In reply to the arguments of the plaintiff’s counsel, the counsel appearing for the defendant would contend that the Trial Court has committed an error in framing the issue with regard to the adverse possession. When the defendant never pleaded the same and the very approach of the Trial Court in framing the additional issues proceeded erroneously. Hence, it requires interference by this Court.
16. Having heard the arguments of the learned counsel appearing for the appellant/defendant and also the respondent/plaintiff, with regard to the respective contentions, the following points that arise for consideration of this Court are:
(1) Whether the Court Below has committed an error in decreeing the suit in favour of the plaintiff declaring that the plaintiff is the owner of the suit schedule property to the extent of 1 acre 1 gunta including 2 guntas of Kharab land and it requires an interference of this Court?
(2) Whether the Court Below has committed an error in directing the defendant to deliver the possession of ‘B’ schedule property in favour of the plaintiff and it requires an interference of this Court?
(3) What order?
17. Points No.1 to 3: The claim of the plaintiff before the Trial Court in the plaint at paragraph No.3 contended that, ‘A’ schedule property was purchased in terms of Sale Deed dated 27.4.1995 and further contended that since then the plaintiff is in absolute possession and enjoyment of the entire extent of ‘A’ schedule property. It is contended that the defendant is the owner of the adjacent land on the eastern side of ‘A’ schedule property bearing Sy.No.119 and started interference in 2001 encroaching the ‘B’ schedule property and hence, the present suit is filed seeking the relief of declaration, possession and also permanent injunction restraining the defendant from alienating the ‘B’ schedule property.
18. The defendant in the written statement denied the contention of the plaintiff, admitted the issuance of notice by the Survey Department. It is contended in the written statement that 10 guntas of land in Sy.No.118 of Bagalakunte Village was purchased vide Sale Deed dated 14.10.1978 including the other properties. But it is the contention that when they have purchased other survey number properties vide Sale Deed dated 4.10.1976, the vendors have agreed to sell the other adjoining properties including 10 guntas of land in Sy.No.118 and possession was delivered on the same day.
19. Having considered the pleadings and the documents of the plaintiff and defendant, the plaintiff relied upon the Sale Deed – Ex.P1 and the same is of the year 1995. The defendant claims the right in respect of the subject matter of the issue involved between the parties. The plaintiff relied upon Ex.D1, Sale Deed of the year 1978, which discloses that the Sale Deed is in respect of 1 acre 1 gunta including 2 guntas of Kharab land.
20. On perusal of the document, which is marked as Ex.P1, Sale Deed, it is mentioned that the vendors have purchased the suit schedule property vide Sale Deed dated 28.5.1977 to the whole extent from the vendors. The plaintiff has purchased the same in the year 1995. Hence, it is clear that, the title has to be traced from the original document dated 28.5.1977. No doubt, the said Sale Deed has not been produced before the Court below, but there is a reference in the Sale Deed that the vendors of the plaintiff have purchased the same from the original owners on 28.5.1977. The very sale of the property in favour of the vendors of the plaintiff has not been disputed by the defendant and defendant also did not dispute the contents of Ex.P1 with regard to the vendors had purchased the land to the extent of 1 acre 1 gunta including 2 guntas of kharab land. However, the defendant claims that their vendors have agreed to sell the disputed property i.e., 10 guntas of land, which is morefully described in the ‘B’ schedule property, when they have purchased the other properties in the year 1976 itself.
21. It is also the contention of the defendant that the possession was delivered in the year 1976 itself. The reason assigned by the defendant is that he was not having sufficient money in the year 1976 and hence, the same was purchased in the year 1978. The defendant claims the right in respect of 10 guntas of land based on the Sale Deed of the year 1978, which is marked as Ex.D1.
22. On perusal of Ex.D1, except mentioning the 10 guntas of land in Sy.No.118, no boundary was mentioned. It is also important to note that, the Sale Deed, which is marked as Ex.D12, is of the year 1976. There was no reference with regard to Sy.No.118 to the extent of 10 guntas, to which the survey number is claimed. The defendant also did not place any material before the Court that his vendors have agreed to sell the property in the year 1976 itself and also no document is placed before the Court that the possession was delivered in the year 1976 and except the oral claim of the defendant that they have agreed in the year 1976, possession was delivered and no material was placed. Ex.P1 is clear that the vendors had purchased the property in the year 1977 itself to the whole extent and to the extent of 10 guntas, the property has not sub divided and the vendors of the defendant have not retained any 10 guntas of land in Survey No.118 and they have sold the property in the year 1977 itself and subsequent Sale Deed in the year 1978 does not confer any right in favour of the defendant, unless 10 guntas of land in Survey No.118 had been retained by them to sell the same. There is no dispute with regard to the fact that the vendors of the plaintiff have purchased the property from the vendors of the defendant herein and the original owners are the vendors of the defendant. When such being the case, the very contention of the defendant that the Court below failed to take note of the fact that the plaintiff’s Sale Deed is of the year 1995, cannot be accepted. The Sale Deed-Ex.P1, clearly discloses that the full extent of Sy.No.118 was sold in favour of vendors of the defendant in the year 1976 itself. When such being the case, the very contention of the defendant is that they agreed to purchase the property in the year 1976 itself and possession was delivered in the year 1976 itself in their favour cannot be accepted. The same is not supported by any material.
23. No doubt, the Court below has committed an error in framing the additional issue No.1 with regard to the adverse possession and there was no defence in the written statement that they are in adverse possession and in the absence of pleading, the Trial Court ought not to have framed additional issue No.1 and answered the same. The same is unwarranted.
24. Mere framing of the issue in respect of the adverse possession cannot take away the case of the plaintiff. The plaintiff’s specific case is that, in the year 2001, the defendant tried to interfere with the possession of the ‘B’ schedule property by forming sites and made an attempt to sell the portions of the said property and hence, he sought for the relief of permanent injunction restraining the defendant not to alienate the ‘B’ schedule property and the same has been considered by the Trial Court. The claim of the defendant is not adverse possession, but his contention is that he agreed to purchase the said 10 guntas of land in the year 1976 itself and possession was delivered to his favour and subsequently in the year 1978, he had purchased. When such being the defence taken by the defendant, the Trial Court ought not to have framed additional issue No.1 at the time of passing the Judgment and the same is erroneous. But in order to substantiate the contention of the defendant with regard to the title in respect of 10 guntas of land, the same cannot be accepted. Prior to the year 1978, the property was already sold in the year 1977 in favour of plaintiff’s vendors itself, the defendant does not get any right as contended in the appeal and hence, the question of interfering with the findings of the Trial Court does not arise. Merely because the plaintiff has not produced his vendors Sale Deed, it cannot be a ground to reject the claim of the plaintiff and the document – Ex.P1, is clear that the full extent was sold in respect of the vendors of the plaintiff. It is not the case of the defendant that the vendors of the plaintiff have not sold the entire extent of 1 acre 1 gunta including 2 guntas of Kharab land in favour of the plaintiff and when such being the case, I do not find any error committed by the Court below in passing the decree in favour of the plaintiff.
25. In view of the discussions made above, I proceed to pass the following:
ORDER The appeal is dismissed. No costs.
cp* Sd/- JUDGE