IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO R.F.A.No.570/2005 BETWEEN:
1. B R NAGARAJ S/O. M RAYAPPA SINCE DECEASED BY HIS LRs.
1(a) SMT. SUSHEELA BAI W/O B R NAGARAJ AGED 59 YEARS.
1(b) SRI B N SRIDHAR W/O B R NAGARAJ AGED 45 YEARS.
SINCE DECEASED BY HIS LRs.
1(b)(a) SMT.MUKTHA BAI W/O LATE B N SRIDHAR AGED ABOUT 40 YEARS.
1(b)(b) SRI B S RAGHAVENDRA S/O LATE B N SRIDHAR AGED ABOUT 22 YEARS.
1(b)(c) B S KARUNYA D/O LATE B N SRIDHAR AGED ABOUT 19 YEARS.
1(c) SRI B N ANNAPPA S/O NAGARAJ AGE: 43 YEARS, OCC: BUSINESS.
1(d) SRI B N RAMESH S/O NAGARAJ, AGE:39 YEARS OCC:ELECTRICAL REPAIRS.
ALL ARE R/O HULIYUR ROAD BANAWARA TALUK ARSIKERE DISTRICT HASSAN – 573 112.
(BY SMT.KSHAMA NARGUND, ADVOCATE FOR LRS OF a-1[b(a to c)] AND:
1 . B R NARAYANASWAMY NAIDU S/O B.C. RAMASWAMY NAIDU AGED ABOUT 57 YEARS R/O. HULIYAR ROAD, BANAWAR TALUK, ARSIKERE DISTRICT HASSAN.
2 .SMT. PRAKASHI BAI W/O B.V. VASANTHKUMAR AGED ABOUT 42 YEARS R/O VIMALDEEP SHOP B.H. ROAD, BANAWAR TALUK ARSIKERE, DISTRICT HASSAN.
...APPELLANTS ...RESPONDENTS (BY SRI S VASANTH MADHAV, ADVOCATE) THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 17.12.2004 PASSED IN O.S.No.80/2003 ON THE FILE OF THE CIVIL JUDGE (SR.DN), ARSIKERE, DISMISSING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION.
THIS RFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Appeal is directed against the Judgment and decree dated 17.12.2004 passed in O.S.No.80/2003 on the file of the Civil Judge, Senior Division, Arsikere, wherein suit of the plaintiff for declaration and permanent injunction came to be dismissed with costs. Being aggrieved by the said Judgment and decree the plaintiff has come in appeal.
2. In order to avoid confusion and overlapping, the parties are addressed with reference to the status and rankings held by them before the trial court.
3. The appellant in the case is plaintiff now represented by his legal representatives. The relief sought in the suit is for declaration to the effect that the suit schedule property is at a distance of 40 Meters from middle of the road, to declare the plaintiff as the owner of the same and for permanent injunction to restrain the defendants and persons claiming under them by an order of permanent injunction and court costs and other reliefs.
4. There are two defendants in the original suit, namely (1) Narayanaswamy Naidu the vendor of the plaintiff and (2) Smt. Prakashi Bai, the purchaser of the schedule property.
5. The claim of the plaintiff is that, he had purchased the suit property from the father of the defendant No.1- Ramaswamynaidu on 04.06.1964 and the land was converted for non agricultural purposes on 22.06.1964. The schedule property is located at the eastern side of B.H.Road and in Sy.No.248. The said B.H.Road as per Government Order is 40 Mts on either side from the center. The plaintiff purchased the site which was beyond the distance of 40 Mts from the road under the registered sale deed dated 19-10- 1978. The sellers are none other than the defendant No.1 and his father. Thereafter, the property purchased by the plaintiff came under Kachighatta Village panchayat and as such all the panchayat records relating to the said property are maintained in the name of the plaintiff.
6. The uniform evidence regarding the location of the schedule property is, there is a clear description in the sale deed executed in favour of the plaintiff that the property is bounded on the East by – B.H.Road. The necessary panchayat records are standing in the name of the plaintiff.
7. The defendant No.1 misguided the plaintiff and told him that the property purchased by him is further away from the property that was earmarked by the plaintiff. Because of which, the plaintiff constructed the building in a place other than the property that was earmarked.
8. It is further stated that though the plaintiff entertained doubt, he believed defendant No1. The plaintiff is not having proper health hence, he allowed the supervision or the construction work of the property of the house on his son-Sridhar. But the said Sridhar is stated to be not a man of that maturity regarding the property. Nobody including the authorities interfered with the plaintiff while house was being constructed after leaving road margin. Thus, defendant No.1 successfully ensured that the plaintiff construct the house in a wrong place. It is also a case of the plaintiff that after the construction, he came into the possession of the property and was staying there. About one month prior to the suit of the plaintiff, the High way authorities informed regarding the existence of the road and earmarked the space that including the house and space on the backside of the house come within the limits of road and the margin. The plaintiff got frightened and when enquired with the officers of the authorities, they stood to their job. Immediately, he remembered the earlier property again took over possession and fenced stone poles. The said property is by the side of the said national high way and defendants are having knowledge of the same.
9. The plaintiff further states that about 15 days prior to the filing of the suit, when the defendants were contacted, he gave evasive answer and started questioning the plaintiff. Later, the plaintiff came to know that the defendant No.1 has sold the said property to the defendant No.2 under the registered sale deed dated 16.9.2003. The certified copy was obtained by the plaintiff. Thus, the plaintiff asserts that illegality was conducted at the instance of the defendant.
10. Thus, the sale deed of the schedule property notified in the plaint is as under:
Vacant site bearing Khatha No.142, measuring 65x43 situated at Kachighatta Village Panchayat, Banavara hobli, Arsikere Taluk, bounded on:
East by : B.H.Road, Margin and road West by : Road North by : Property of Beerappa and Chikkanna South by : House of Ramaswamynaidu 11. The defendants contested the matter and filed written statement denying the title of the plaintiff. Defendant No.1 is the vendor of the plaintiff and defendant No.2 claims to have purchased the schedule property from defendant No.1.
12. The learned trial Judge was accommodated with the oral evidence of plaintiff as PW1 and documentary evidence of Exs.P1 to P22 and oral evidence of defendant as DWs 1 to 5 and documentary evidence of Exs.D1 to D13.
13. The learned trial Judge after framing issues on ownership and possession over the schedule property, interference, violation and entitlement of the relief for mandatory injunction. After considering the oral and documentary evidence dismissed the suit of the plaintiff on 17.12.2004. It is against this judgment and decree, the plaintiff has come in this appeal.
14. Respondents did not appear before this Court.
However, Smt.Kshama Naragund for Smt. Sona Vakkund, learned counsel appearing for appellants who appeared, submitted arguments on behalf of the plaintiff-appellants.
15. Learned counsel would submit that the property which is in occupation of the plaintiff as owner and he is in possession of the same. Learned counsel would further submit that the schedule property wherein the house was constructed, it was a continuation of fraud conducted by the defendant No.1 who was instrumental in getting the plaintiff deviated from his property.
16. It was further submitted that after constructing the house, plaintiff started residing. It came to his knowledge about the mistake in the location. According to defendant plaintiff’s property was nearby road and plaintiff fenced it and is in possession of the same. Thus, the learned counsel for plaintiff submits that he retained the possession of the property and the house and also the property subsequently identified as the property of the plaintiff. Thus, it was vehemently submitted that the plaintiff is in possession of both the properties.
17. Insofar as nature of land is concerned, it is stated to be a converted land.
18. Learned counsel for the appellant would submit that appellants does not claim right or title over the property on which the house is constructed and the claim of the appellant-plaintiff is to declare the plaintiff as the owner of the schedule property and the declaration that it comes beyond the margin of 40 mtrs. from the National Highway.
19. The points that are amply clear in the proceedings are:
That the suit is filed for a declaratory relief in the nature of its own kind i.e., plaintiff seeks that the schedule property is well beyond the margin of 40 mtrs. from the centre of the road and permanent injunction against the defendants either one or two.
20. The plaintiff claims to have purchased the property under the registered sale deed morefully stated above and the same is marked as Ex.P13. The schedule stated in the plaint is as under:
Vacant site coming within the limits of Kachighatta Village Panchayat bearing khatha No.142, measuring, East to West: 65 Ft. North to South: 43 ft.
East: Bounded by BH road margin and the road: West: Road North: Buildings of Beerappa and Chikkanna South: Bounded by the house of Ramaswamy Naidu.
21. Incidentally, the property purchased by the plaintiff under the registered sale deed Ex.P13 is as under:
Property bearing Assessment No.2 measuring, East to West: 65 ft. North to South: 43 ft.
East: Bounded by BH road West: Bounded by house of the vendor North: Bounded by house of G.H.Beerappa and another South: by property of the vendor.
22. The nature of the property mentioned in the sale deed is ‘SWATHU’ which means, ‘property’ and there is no description as to whether it is a vacant site or house or related.
23. However, learned counsel would submit that at the time of purchase it was a vacant site (hereinafter referred to as ‘x’ property).
24. The crux of the claim of the plaintiff is that the sale deed Ex.P13 property as that was purchased by the plaintiff is stated above is `b’ property as mentioned in the plaint schedule property. The claim of the plaintiff has been that defendant No.1 mislead and misguided the plaintiff and shown his property to be that of the one on which plaintiff constructed the house.
25. Thus, it is the property as directed by the vendor of the plaintiff - the defendant No.1. He believed the representations made by defendant No.1 and bonafide constructed the house and that the plaintiff constructed the said house (for the purpose of convenience it shall be referred to as ‘b’ property). Thus, the properties that require to be given consideration is whether existing or fictitious are (i) ‘x’ property that was described in the sale deed, (2) Suit schedule property that is set out in the plaint and (3) property which the plaintiff was shown by the vendor - defendant No.1 to construct the house.
26. In the overall context and circumstances of the case, the embargo that was on the total property which consisted of vacant site and house is that as the National Highway was running piercing or by the side of the total property, a road margin of 40 mtrs. from the centre of the road is supposed to be left undisturbed as the same was identified as National Highway margin.
27. Plaintiff purchased the property from the defendant No.1 under Ex.P13- sale deed. Now that plaintiff came to know in the year 2002 that he was misguided by the vendor - defendant No.1 and that literally his property is in accordance with the suit schedule property, for which he is seeking a declaration. Thus, it is the unequivocal case that in so far as the property which he has purchased under the sale deed dated 19.10.1978 as per Ex.P13 defines the ‘x’ property.
28. He was not certain regarding the location.
Advantage was taken by defendant No.1 and allowed the plaintiff or his power of attorney holder to construct the house. Thus, according to plaintiff when he was struggling for want of identification, he was misguided by defendant No.1 to construct the house on the property stated above and that the plaintiff simply followed the defendant No.1 out of trust and confidence.
29. Learned counsel for the plaintiff would submit that it was in the year 2003, defendant No.1, who is the vendor of the plaintiff, sold the suit schedule property to defendant No.2 and it was then plaintiff came to know mischief played by defendant No.1 and that in order to protect his property the plaintiff fenced the suit schedule property to establish his possession.
30. It was submitted by learned counsel for the plaintiff that from 2003, the plaintiff has been in possession and enjoyment of the suit schedule property.
31. Learned counsel would submit that the plaintiff is holding the possession of the house property that was constructed earlier on the advise of defendant No.1. That all the matters morefully stated above regarding which the plaintiff is claiming a declaration to the effect that the suit schedule property does not come within the road margin of 40 mtrs. from the centre of the road and it is not the one that was purchased by him and it is admitted in unequivocal terms.
32. Plaintiff, after coming to know that he was mislead by defendant No.1 to construct got himself alerted and fenced the suit schedule property which is in the safer zone and beyond the road margin of 40 mtrs. In this connection, it is necessary to make a mention that if the plaintiff was cautious and innocent, if he was mislead by defendant No.1 to construct the house, it is nothing but construction or improvement made under erroneous circumstances. Regard being had to the fact that it was deliberately shown by defendant No.1 which amounts to fraudulent act. Further there is no evidence to the said effect before the Court.
33. The prayer of the plaintiff to be declared as owner of the property admittedly is in respect of that property which is stated to have been sold by defendant No.1 in favour of defendant No.2. In the circumstances, Section 51 of the Transfer of Property Act, 1882 is necessary to be mentioned which reads as under:
“51. Improvements made by bona fide holders under defective titles:
When the transferee of immoveable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he is subsequently evicted therefrom by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell his interest in the property to the transferee at the then market-value thereof, irrespective of the value of such improvement.
The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction.
When, under the circumstances aforesaid, the transferee has planted or sown on the property crops which are growing when he is evicted therefrom, he is entitled to such crops and to free ingress and egress to gather and carry them.”
34. Thus, when a transferee of an immovable property makes any improvement on the subject matter in good faith that he is absolutely entitled thereto is subsequently evicted therefrom by a person having better title, the transferee, who has made improvement or construction, has a right to request the person having better title either to sell his interest to him or to purchase the improvement barring that the transferee cannot declare himself and go on claiming another property under the banner that he identified a particular property to be his in addition to retain the property in respect of which erroneous or unauthorized construction admittedly stated to have been done.
35. In the circumstances of the case, the act of the plaintiff in respect of `x’ property was erroneous. Regard being had to the fact that plaintiff purchased ‘x’ property under the sale deed at Ex.P13. Added to it, suit schedule property is the one, in respect of which plaintiff claims that it is the said property which was sold to him. In the circumstances, there are no positive evidence to identify for demarcating the suit schedule property as the one said to have been sold by defendant No.1. Further, plaintiff, despite being asked about the legal effect of Section 51 of the Transfer of Property Act. There is no response.
36. Plaintiff has not left any space in this case and has by himself exhausted all the consideration and there is nothing left under Section 51 of Transfer of Property Act for adjudication.
37. Thus, in the result, in a property on which erroneous construction is made, which the plaintiff wants to retain and also seek a declaration in respect of which property he claims by demarcation without source only on the basis that it is the property that was sold to him. However, no corroborating circumstances or materials are placed before the Court. When the plaintiff who holds possession of one property wherein he claims that it was constructed or effected improvements and are erroneous consideration and wants the said property mentioned in the schedule property to be declared as under his ownership, the fact remains that the schedule property is stated to have been sold by defendant No.1 to defendant No.2 which plaintiff claims to be in possession from the year 2003.
38. The option open to the plaintiff under section 51 Transfer of property Act is not exercised and it makes the lapse fatal.
I find, the suit is misconceived. Away from the facts and probabilities, the intention of the plaintiff does not appear to be justifiable. I do not find any infirmity, irregularity or material mistake in the judgment and decree dated 17.12.2004 passed in O.S.No.80/2003 by the learned Civil judge (Senior Division), Arsikere, who, through his sound reasoning, dismissed the suit. Appeal is liable to be dismissed confirming the judgment and decree of the trial court.
Hence, appeal is dismissed with costs.
Sd/- JUDGE SBN/tsn*/Cm