IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF AUGUST, 2019 BEFORE The Hon’ble Mr. Justice B. M. Shyam Prasad Regular Second Appeal No. 537 of 2011 C/W Regular Second Appeal No 538 OF 2011 IN RSA NO. 537 OF 2011 Between:
1. SMT. MARTIL RAMAMURTHY WIFE OF LATE DR. RAMA MURTHY MAJOR, RESIDING AT DOOR NO. 4553/1, 6TH CROSS, N.R. MOHALLA, MYSORE – 570 007.
2. MR. RONALD RAMA MURTHY SON OF LATE DR. RAMA MURTHY MAJOR, RESIDING AT DOOR NO. 4553/1, 6TH CROSS, N.R MOHALLA, MYSORE – 570 007.
... APPELLANTS (BY SRI. G. BALAKRISHNA SHASTRY, ADVOCATE) And:
1. SMT. S. LALITHAMMA WIFE OF LATE C. BHAGAVAN DAS, MAJOR, R/AT: DOOR NO. 4553, "MANI NILAYA", 6TH CROSS, N.R MOOHALLA MYSORE -570 007.
2. SRI. B. RAJA SHEKAR SON OF LATE BHAGAVAN DAS, AGED ABOUT 54 YEARS, RESIDING AT DOOR NO. 4553, "MANI NILAYA" 6TH CROSS, N.R. MOHALLA, MYSORE.
3. SRI. B. GOUTAM DAS SON OF LATE BHAGAVAN DAS, AGED ABOUT 52 YEARS, RESIDING AT DOOR NO. 4553, "MANI NILAYA" 6TH CROSS, N.R. MOHALLA, MYSORE.
... RESPONDENTS (BY SRI. P. NATARAJU., ADVOCATE FOR R-1 TO R-3) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 26.11.2010 PASSED IN R.A.NO.182 OF 2002 ON THE FILE OF THE JUDGE, COURT OF SMALL CAUSE, MYSORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 2.8.2002 PASSED IN O.S.NO.543 OF1996 ON THE FILE OF THE PRL. FIRST CIVIL JUDGE (JR.DN) MYSORE.
IN RSA NO.538 OF 2011:
Between:
RONALD RAMAMURTHY SON OF LATE DR. RAMAMURTHY, MAJOR, RESIDING AT NO. 4553/1, VI CROSS, N.R. MOHALLA, MYSORE – 570 001. ... APPELLANT (BY SRI. G. BALAKRISHNA SHASTRY, ADVOCATE) And:
1. MYSORE CITY CORPORATION MYSORE , BY ITS COMMISSIONER – 570001.
2. SMT. S. LALITHAMMA WIFE OF LATE C. BHAGAWAN DAS, MAJOR.
3. SRI. B. RAJASHEKAR SON OF LATE C. BHAGAWAN DAS, MAJOR.
4. SRI. B. GOUTHAM DAS SON OF LATE C. BHAGAWAN DAS, MAJOR.
ALL ARE RESIDING AT NO.4553, ‘MANI NILAYA’, 6TH CROSS, N.R.MOHALLA, MYSORE – 570 001.
... RESPONDENTS (BY SRI. P. NATARAJU., ADVOCATE FOR R-2 TO R-4 SRI. H.C. SHIVARAMU, ADVOCATE FOR R.1.) THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF CPC.,. AGAINST THE JUDGMENT AND DECREE DATED 26.11.2010 PASSED IN R.A.NO.180/2002 ON THE FILE OF THE JUDGE,COURT OF SMALL CAUSES AND SENIOR CIVIL JUDGE,MYSORE,DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED: **02.08.2002 PASSED IN O.S.NO.693/1996 ON THE FILE OF THE PRINCIPAL –I CIVIL JUDGE (JR.DN.), MYSORE.
THESE REGULAR SECOND APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment These two appeals arise out of the common judgment and decree in two suits in OS No. 543/1996 and OS No. 693/1996 on the file of the Principal – I Civil Judge (Jr.Dn.), Mysore (for short, ‘the trial Court’) and the corresponding appeals in RA Nos.180 and 182 of 2002 on ** Corrected vide Court order dated 13.01.2020 the file of the Judge, Small Causes and Senior Civil Judge, Mysuru (for short, ‘the appellate Court’).
2. The appellant in RSA No. 538/ 2011 has filed the suit in O.S.No.693/1996 on the file of the Principal Civil Judge (Jr. Dn.), Mysuru. This suit is for declaration that the order passed by the Commissioner, the Mysore City Corporation under Section 321(1) and (4) and Section 321(3) of the Karnataka Municipal Corporation Act (for short ‘the Act’) is void and invalid. The appellant has also prayed for consequential relief of injunction restraining the Mysore City Corporation from initiating any action to demolish the building constructed by the appellant in the property bearing No.4553/1, 6th cross, St. Mary Road, N.R.Mohalla, Mysuru.
3. The appellant arrayed only the Mysore City Corporation in O.S.No.693/1996 as the defendant, but the respondent No. 2 to 4 in RSA No.538/2011 (the defendants Nos.2 to 4 in O.S.No.693/1996), who are owners of the adjacent property in No.4553/1, 6th cross, St. Mary Road, N.R.Mohalla, Mysuru implead themselves as party – defendants. These respondents, the owners of the aforesaid adjacent property filed their suit in O.S.No.543/1996 against the appellants in RSA No. 537/2011 (plaintiff in the suit in O.S.No.693/1996) for declaration of title with consequential relief of permanent injunction restraining the appellant from proceeding with the construction in the property demarcated by them in the plaint sketch by letters ‘A’, ‘B’, ‘C’ and ‘D’ and identified by them as part of their property with the prayer for further relief of mandatory injunction to remove the construction already put up by the appellants in this demarcated area.
4. The trial Court held separate trial in these two suits in O.S.No.693/1996 and O.S.No.543/1996 with evidence being recorded separately. However, after the separate trials, the suits were clubbed for the purposes of common judgment. The trial Court by its common judgment dated 02.08.2002 dismissed the suit in O.S.No.693/1996 and decreed the other suit in O.S.No.543/1996. As such, the appellants filed separate appeals in RA Nos.180 and 182 of 2002. The appellate Court by its judgment dated 26.11.2010 has dismissed both these appeals. As such, these second appeals.
5. The parties to the proceedings, for the sake of convenience, are referred to as they are arrayed in O.S.No.543/1996 and the respondent No.1 in RSA No.538/2011, the Commissioner, the Mysuru City Corporation, who is not a party to the suit in O.S.No.543/1996, is referred to accordingly.
6. The properties bearing Nos.4553 (the defendant's property) and 4553/1 (the plaintiffs' property) were one property that was allotted by the Mysore City Improvement Trust Board to a certain Smt. Lakshmi Bai Improvement Trust Board to a certain Smt. Lakshmi Bai David with the absolute conveyance thereof in her favour under the sale deed dated 5.5.1949 (Ex.P.). Smt. Lakshmi Bai David transferred this combined property in favour of Sri E. Chinnappa under the sale deed dated 13.7.1953 (Ex.P.1). Sri E.Chinnappa constructed residential premises in this property, and he bequeathed this larger property in two portions under the Will dated 25.11.1959. The details of the bequeath are as follows:
The Eastern portion with the construction thereon in favour of his elder son – Sri Devaprasad - with life interest in favour of his wife, Smt. Gnanamaniyamma, and The Western portion with the construction thereon, in favour of his younger son - Sri C. Bhagavan Das - again with life interest to his wife Smt. Gnanamaniyamma.
Sri Chinnappa did not mention either the measurement or boundaries of these portions. Smt. Gnanamaniyamma and Sri Devaprasad, the legatees under the Will dated 25.11.1959 insofar as Eastern Portion of the combined property, transferred the Eastern Portion under the sale deed dated 12.01.1973 in favour of Smt. Martil Ramamurthy - the defendant No.1, who in turn transferred this property in favour of his son, the defendant No. 2 under the sale deed dated 16.7.1990.
7. The plaintiffs, who are wife and sons of Sri Bhagvan Das - the elder son of Sri. E Chinnappa and the beneficiary of the bequest of the western portion of the combined property - instituted suit in O.S.No.543/1996 for declaration and consequential relief/s contending that Sri Chinnappa bequeathed:
The Western portion of the property measuring East – West 30 feet and North – South 75 feet The Eastern portion of the Property measuring East to West 20 feet and South to North 75 feet The defendants, who source their title to Sri Devaprasad and Smt. Gnanamaniyamma, were encroaching upon a portion in the southern part of western portion. They were encroaching an measuring East-West 10 feet and South – North 20 feet as described in the sketch enclosed in the plaint. The plaintiffs alleged that the defendants had stopped construction initially when the plaintiffs objected, but taking advantage of the fact that the plaintiffs had traveled to Bangalore to attend a wedding, the defendants commenced construction encroaching upon such portion of the western portion on the strength of a concocted and created building plan and licence purportedly issued by the Mysuru City Corporation. The complaints to the jurisdictional police were not helpful and as such, they were constrained to initiate the suit.
8. The defendants commenced a simultaneous suit in O.S.No.693/1996 contending that the Mysuru City Corporation had been instigated by the plaintiffs to initiate proceedings under the provision of KMC Act for demolition of the building constructed in the eastern portion that is bequeathed in favour of Sri Devaprasad and Smt. Gnanamaniyamma under the Will dated 25.11.1959 and subsequently purchased by the defendants. The defendants asserted that Sri. E. Chinnappa bequeathed:
The Western portion of the property measuring East – West 30 feet on the Northern Side, East – West 20 feet on the Southern Side The Eastern portion of the property measuring East – West 20 feet on the Northern Side, East – West 30 feet on the Southern Side and North – South 75 feet Smt. Gnanamaniyamma and Sri. Devaprasad transferred the entire extent as bequeathed by Sri E.Chinnappa under the Will dated 25.11.1959 in favour of his vendor, the defendant No. 1 under the Sale Deed dated *12.1.1973. However, there was an error in describing the property transferred under the Sale Deed dated *12.1.1973 as * Corrected vide Court order dated 25.11.2019 measuring 20 feet East to West and 75 feet North to South without clarifying that the property transferred measured East to West 20 feet on the Northern side and 30 feet on the Southern side.
9. The defendants further contended that the properties bequeathed by Sri. E Chinnappa comprised of outhouses constructed along the Southern boundary of the larger property but bifurcated by a common wall. The outhouse in the eastern portion comprised of a kitchen with Mangalore tiles roof. The defendant No.2 replaced the Mangalore tile roof of the kitchen with RCC Slab in the year 1990. The defendant No.1 proposed to put up new construct in the open area including the kitchen in the outhouse. Therefore, the defendant No. 2 obtained necessary sanction from the Mysuru City Corporation including this kitchen area. The plaintiffs wrongly claim that this kitchen area as an encroachment. The Mysuru City Corporation, at the instance of the plaintiffs, was insisting upon the defendant No. 2 to confine his constructions to an area measuring 20 feet East – West and 75 feet north to south.
10. The Mysuru City Corporation filed its Written Statement in O.S.No.693/1996 asserting that the defendants had constructed a room measuring 10x12 feet with a staircase unauthorizedly without any sanction plan and without licence and therefore, the Provisional Order dated 21.8.1996 under the provisions of the Act had been issued and thereafter Confirmation Order was issued on 19.9.1996. The Confirmation Order was served on the defendant’s wife on 23.9.1996. These orders were issued in strict compliance with the provision of the Act.
11. The trial Court, in the light of the rival pleadings, framed the following Issues:
Issues in O.S.No.543/1996 1) Whether the plaintiffs prove that they are the absolute owners of D.No.4553 measuring East to West 20 feet and North to South 75 feet.
2) Whether the plaintiffs prove that the defendants have encroached upon the schedule property and put up illegal construction thereon.
3) Whether the defendant No. 2 proves that he has perfected his title by adverse possession of D.No.4553/1 measuring East to West 30 feet on southern side and 20 feet on the northern side and north to South 75 feet .
4) Whether this Court has pecuniary jurisdiction.
5) Whether the suit is barred by time.
6) Whether the plaintiff is entitled for the reliefs claimed.
7) What order or Decree.
Issues of O.S.No.693/1996 1) Whether the plaintiff (the defendant No. 2 in O.S.No.543/1996) proves that he has put up construction over the schedule property in accordance with law.
2) Whether the plaintiff (the defendant No. 2 in O.S.No.543/1996) proves that the 1st defendant (the Mysuru City Corporation) has no right to demolish the construction.
3) Whether the suit is bad for non-joinder of necessary party.
4) Whether the plaintiff (the defendant No. 2 in O.S.No.543/1996) is entitled for the relief claimed.
5) What order or Decree.
12. The trial Court decreed the plaintiffs’ suit in O.S.No.543/1996 holding that the sale deeds [Ex. D 5 and D 6] relied upon by the defendants establish that they had only purchased eastern portion of the property measuring East-West 20 ft. and North-South 75 ft. The trial Court found Issue No.1 in O.S.No.543/1996 in favour of the plaintiffs opining that the terms of such sale deeds, and the katha for the western portion of the property bearing No.4553 [Ex.P.5], established that the plaintiffs are the owners of land bearing No.4553, measuring East- West 30 ft. and north-south 75 ft. Insofar as the Issue whether the plaintiffs were able to establish that the defendants had encroached upon a portion of their property in 4553 (and the corresponding Issue in the suit in O.S.No.693/1996 whether the Mysuru City Corporation had any right to seek demolition of the construction), the trial Court concluded that the recitals of the sale deed dated 16.7.1990 established that the defendants were entitled only to an extent of East- West 20 ft. and north-south 75 ft, and the defendant No. 2 had admittedly put up construction beyond this property.
13. Further, the trial Court concluded that though the defendants contended that there was an error in the description of the property in the sale deed executed in their favour by Smt. Gnanamaniyamma and Sri. Devaprasad in favour of the defendant No. 1 and the same is continued in the sale deed executed by the defendant No.
1 in favour of defendant No.2, neither of the defendants had sought for any rectification of the sale deeds. Therefore, the defendant No. 2 cannot contend that he is entitled for an extent measuring East - West 20 ft on the Northern side and East – West 30 feet on the Southern side which would include the property alleged as encroachment.
14. Further, the trial Court did not consider the Commissioner’s Report on the ground that the Commissioner had filed his Report contrary to the Memo of Instructions and directions of the court. The trial Court opined that the Commissioner, who was appointed to report on the age of the construction in the alleged encroached portion, could not have undertaken the task of measuring the disputed property, and he should have only submitted a report about the age of the construction of the southern edge of the property as claimed by the defendant No. 2. As regards the oral testimony, the trial Court has opined that the witnesses examined on behalf of the defendant No. 2, being his friends and acquaintances, have chosen to speak about defendant’s case and therefore not credible. However, the testimony of the witnesses examined by the plaintiffs is in consonance with the documentary evidence and therefore, their evidence deserves to be accepted. The trial Court for these reasons opined that the defendant No. 2 had encroached upon a portion of the plaintiffs’ property in No.4553 and therefore, construction put up by him was liable to be demolished.
15. The appellate Court has confirmed the trial Court’s judgment on re-appreciation of the defendants on record. The appellate Court has relied upon the provisions of Sections 91 and 92 of the Indian Evidence Act, 1872, to conclude that the defendant No.2, who relies upon sale deeds executed by Smt. Gnanamaniyamma and Sri Deviprasad on 12.01.1973, and the subsequent sale deed in his favour on 16.07.1990, cannot be permitted to either plead or contend contrary to the sale deeds. The sale deeds are categorical that the eastern portion measures East to West 20 feet and North to South 75 feet.
16. The appellate Court has opined that the case of defendant No.2 that he has acquired title to the eastern portion measuring East to West 20 feet on the Northern side and 30 feet on the Southern side with North to South measuring 75 feet cannot be accepted because of the pleadings in O.S.No.116/1996, the proceedings inter se the defendant No.2 and his family members. The appellate Court has observed that in this proceeding in O.S.No.116/1996 neither the sister of defendant No.2 (the plaintiff in such suit) nor the defendants asserted that the property owned by them measures East to West 20 feet on the Northern side and 30 feet on the Southern side and there was an error in their sale deeds. If indeed, the defendant No.2 had acquired title to an extent measuring east to west 20 feet on the northern side and 30 feet on the southern side, the same would have been part of the pleadings in the suit in O.S.No.116/1996.
17. The appellate Court has further opined that the defense of the defendant No.2 cannot be accepted because neither he nor his predecessor in title, the defendant No.1, ever sought for declaration of title to an extent measuring East to West 20 feet on the Northern side and 30 feet on Southern side with North to South measuring 75 feet. Furthermore, the appellate Court concurred with the trial Court’s opinion that the Commissioner’s Report could not be accepted for the reasons stated by the trial Court while observing that the Commissioner had not mentioned the age of the construction in the disputed area.
18. The learned counsel for the defendant No.2, at the very outset, submitted that the appeal in RSA No.538/2011 would not survive for consideration in view of the certain events. The learned counsel submitted that during the pendency of these proceedings, the Mysuru City Corporation has compounded the construction put up by the defendant No.2 in the disputed extent (and the undisputed extent) collecting appropriate compounding fee accepting that the deviation in the construction is within compoundable limits. The defendant No. 2 is issued with the 'Construction Completion Certificate'. The order of the Mysuru City Corporation in this regard has become final. As such, the suit in O.S.No.693/1996 filed by the defendant No.2 inter alia for declaration that the issuance of the preliminary order and confirmation order under the provisions of 323 of the Karnataka Municipal Corporation Act would not survive for consideration. Accordingly, the appeal in RSA No.538/2011 could be disposed of.
19. Insofar as the appeal in RSA No.537/2011, the learned counsel’s submissions are as follows:
Firstly, the Courts below have erred in failing to consider the contents of the Will dated 25.11.1959 (Ex.P3) and sale deed dated 12.01.1973 (Ex.D6). The Courts below ought to have seen that Sri E.Chinnappa executed the Will dated 25.11.1959 bequeathing the combined property in No.4553 in two portions without giving either the measurements or the boundaries for these two portions. Sri E.Chinnappa had only described the two portions as Eastern and Western portions comprising of residential buildings. It is undisputed that Sri E.Chinnappa created life interest in both the Eastern and Western portions in favour of his wife, Smt. Gnanamaniyamma while bequeathing the eastern and the western portions in favour of his sons, Sri Devaprasad and Sri Bhagwandas. Smt. Gnanamaniyamma and Sri Devaprasad have executed the sale deed dated 12.01.1973 transferring the Eastern portion in favour of the defendant No.1. In this sale deed the aforesaid vendors have categorically stated that the Western boundary of the property conveyed extended upto the common wall and that the both the transferee (the defendant No.1) and Smt. Gnanamaniyamma (who had life interest in the western portion as well in terms of the will dated 25.11.1959) would be entitled equally to this common wall along with the western boundary.
Secondly, the contents of the sale deed dated 12.01.1973, when read in conjunction with the contents of the Will dated 25.11.1959, establish indubitably that the defendant No.1, and therefore, the subsequent transferee, the defendant No.2, are entitled to the property on the southern side extending upto the common wall with common rights to such wall. The plaintiffs, who claim title to the western portion under the Will dated 25.11.1959, and who held title to such western portion subject to life interest in Smt. Gnanamaniyamma, cannot contend that they were entitled to any portion along the southern boundary beyond the common wall. Therefore, the plaintiffs are not entitled for declaration of title to the alleged encroachment which actually is part of the property extending up to the common wall.
Thirdly, the plaintiffs will have to succeed in the suit on the strength of their own case, and they cannot rely upon a possible weakness in the defendant’s case. Therefore, it was incumbent upon the plaintiffs to establish, in the light of the contents of sale deed dated 12.01.1973, that they were owners of portion beyond the common wall referred to in the sale deed. The plaintiffs have not placed any material in this regard. The Plaintiffs should have produced appropriate Khata extract which established their case that their property viz., 4553 (the western portion) measured East to West 30 feet both on the Northern side and the southern side. None of the exhibits relied upon by the plaintiffs, in the light of the contents of the sale deed dated 12.01.1973, establish that their property in No. 4553 measures East to West 30 feet both on the Northern and the Southern sides.
Fourthly, the plaintiff No.2, who is examined as PW 1, has admitted the photographs of the subject properties when confronted in the cross-examination. The photographs of the subject properties, on such admission, are marked as Ex. D1, D2 and D3. These photographs establish, amongst others, that the southern side of both the Eastern and Western portions comprise of contiguous construction with a common bifurcating wall, and the defendant No.2 has put up new construction in line with the common wall. Therefore, the plaintiffs’ case that their property measured East to West 30 feet both on the Northern and Southern sides and that the defendant No.2 has encroached a portion of their property as per the plaint sketch is not established.
Fifthly, the Courts below could not have discarded the Commissioner’s Report in its entirety even if it could be argued that the Court Commissioner had acted beyond the Memo of Instructions in giving the measurement of the properties in a hand sketch appended to the Report, when the Commissioner’s Report also contained observations as regards the nature of the construction in the disputed area and the age of the construction.
20. The learned counsel summed up his submissions canvassing that the Courts below had not considered the relevant evidence on record in coming to the conclusion that the plaintiffs were the owners of an area measuring 10 feet x 20 feet identified by letters ‘A’, ‘B’, ‘C’ and ‘D’ in the plaint sketch. It is settled law that a substantial question in law would arise for consideration when the Courts below premise their conclusions overlooking material evidence on record which when considered would lead to another view. The learned counsel also contended that the Courts below have erred in not considering the nature of the dispute between the parties in the light of the settled law that in cases were there is discrepancy between measurement and boundaries, the boundaries would prevail.
21. The learned counsel for the plaintiffs, who is arguing in support of the impugned judgment, submitted that the Courts below have examined the plaintiffs’ claim for declaration of title to the disputed extent in the light of the evidence on record, and the undisputed fact that the sale deeds 12.01.1973 and 16.07.1990 refer to the property conveyed in favour of the defendants as measuring 20 feet East to West both on the Northern and the Southern side and 75 feet North to South. The defendants’ case that the defendant No.1 acquired title to an extent measuring 20 feet East – West on the Northern side and 30 feet East – West on the Southern side under the sale deed dated 12.01.1973, and she transferred this extent in favour of the defendant No.2 under the sale deed dated 16.7.1990 is totally extraneous to their own title deeds. The defendants’ contention that the description of the measurements in the aforesaid two sale deeds is an error, cannot be accepted at this belated stage when they have not, as rightly concluded by the Courts below, asked for any rectification of those sale deeds. The oral testimony of the witnesses examined on behalf of the plaintiffs has been rightly appreciated by the Courts below, and the testimony of these witnesses establish that the defendant No.1 has put up construction encroaching upon a portion of the plaintiffs’ property as demarcated in the plaint sketch. Further, the conclusion by the appellate Court that the defendants cannot be permitted to put up a case contrary to their own documents is unexceptionable, given the provisions of Sections 91and 92 of the Indian Evidence Act,1872.
22. In the light of the rival submissions, the following substantial questions of law arise for consideration, and given that the appeal is pending consideration from the year 2011, the appeal is admitted and simultaneously taken up for final disposal with the consent of the learned counsel for the parties:
1) Whether, in the facts and circumstances of the case, the Courts below have erred in not examining the controversy between the plaintiffs and the defendants in the light of the settled law that when there is a dispute about the measurements, the boundaries should prevail.
2) Whether the Courts below have failed to consider material evidence on the record which, if considered, would establish that boundaries as pleaded by the defendants.
3) Whether the Court below are justified in law, and in the facts and circumstances of the case, in declaring that the plaintiffs are the owners of disputed area measuring 10 x 20 feet (delineated in letters ‘A’, ‘B’, ‘C’ and ‘D’ in the plaint sketch).
23. It is obvious from the pleadings, the evidence on record, the impugned judgments and the rival submissions that certain facts are admitted and beyond the pale of dispute, and the controversy between the plaintiffs and the defendants as regards the title to the disputed extent is despite these admitted facts. The plaintiffs admit that the defendants are the purchasers of the adjacent property on the eastern side. But, they contend that the boundary line between their respective properties is a straight line, and the defendants has put up construction beyond this straight line and encroached upon a portion of their property. On the other hand, the defendants (with the defendant No. 2 being the present owner) contend that the boundary line between their properties is not a straight line because their property measures 20 Feet on the Northern side and 30 feet on the Southern Side with an old mangalore tiled construction on the Southern side with a common wall. The dispute between the plaintiffs and the defendants, is therefore essentially a boundary dispute between the plaintiffs and the defendants. This is emphasized by the plaintiffs themselves with a plaint sketch. A pictorial representation of the dispute would be as follows:
N Road 50 Feet 75 Feet 10’ x 20’ Disputed area Encroachment Old construction 24. The dispute, which essentially revolves around whether the boundary line is a straight line or otherwise, will have to be examined in the light of the admitted facts. The admitted facts could be stated thus. The properties bearing Nos.4553 (the plaintiffs’ property) and 4553/1 (the defendants’ property) were one combined property measuring East to West 50 feet and North to South 75 feet purchased by Sri E. Chinnappa, who constructed different residential tenements in this combined property including contiguous residential tenements along the southern boundary. Sri E.Chinnappa bequeathed this combined property, including the construction along the southern boundary in two portions to his two sons with life interest in both the portions to his wife Smt. Gnanamaniyamma. Sri. E.Chinnappa made this bequeath under the Will dated 25.11.1959. Though Sri E. Chinnappa bequeathed the combined property in two portions, he did not mention either the measurements or the boundaries of these two portions, but has referred to residential tenements in both the portions. The Will dated 25.11.1959 is marked as Ex.P.3.
25. Smt. Gnanamaniyamma and Sri Devaprasad, who were entitled to the eastern portion in terms of the Will dated 25.11.1959, have transferred the same in favour of the defendant No.1 under the Sale Deed dated 12.01.1973, which is marked as Exhibit D-6. In the sale deed it is categorically stated that because there is a common wall between the eastern portion (conveyed under this sale deed) and the western portion (retained by Smt. Gnanamaniyamma with her other son), the common wall shall belong to both, and when the construction is demolished for putting up new construction by either of the parties, the party putting up the new construction, should construct a separate support wall at his/her own cost.
26. The recital in the sale deed [Exhibit D-6] executed by Smt. Gnanamaniyamma, who held life - interest along with her son under who the plaintiffs claim title, assumes significance in the context of the dispute, and sspecially when the contents of the sale deed [Exhibit D-6] are read conjointly with the indisputable fact that Sri E. Chennappa while bequeathing the common property in two portions under the Will dated 25.11.1959 did not specify the measurements or the boundaries of these two portions. Further, there is no dispute that all along the southern boundary of these two portions there is a contiguous Mangalore tile roofed construction. One of the plaintiffs, who is examined as PW 1, when confronted with certain photographs in the cross-examination, has categorically and unequivocally admitted that such photographs relate to the construction along the southern boundary of these two portions.
27. These photographs (the courts below have failed to consider the import of these photographs in the light of the dispute between the parties) undeniably establish the existence of not only a contiguous construction running along the southern boundary of these two portions but also the existence of a common wall. It is also undisputed that this common wall does not bifurcate the two portions on the southern side into two parts with the western portion (plaintiffs' property) measuring East to West 30 feet and the eastern portion (defendants' property) measuring East to West 20 feet.
28. This evidence on record cumulatively establish the boundary between the two portions of the property as it existed at the time of the sale deed as per Ex. D6 and as of the date of the institution of suit. The boundary line between these properties was not, and is not a straight line as contended by the plaintiffs. The plaintiffs have not furnished any document to establish that the katha for these two properties were mutated in terms of the measurements asserted by them. The plaintiffs have relied upon the Katha Certificate viz., Exhibit P5 and the Tax Paid Receipts viz., Exhibit P6-P10, and these documents do not help the plaintiffs in establishing the measurements of the properties has claimed by them. The ocular evidence, in the light of the undisputed facts, the indisputable contents of Exhibit D6 and the absence of any document to establish that the plaintiffs had the benefit of revenue records for the measurements asserted by them, would be of no avail to the plaintiffs.
29. The other circumstance which would be very material is the defendants' evidence that they replaced the Mangalore tiled roof of the kitchen area in their portion of the contiguous property along the southern boundary with a concrete roof, and this is integrated with the new construction put out by them. A Court Commissioner is appointed at the instance of the defendants, and this Commissioner has filed his report which is as per Exhibit C-4. This Commissioner's Report as per Exhibit C-4 is ignored on the ground that he has exceeded in his brief in measuring the properties as his appointment was only for the purposes of inspecting the defendants' property, "to see the construction marked as ABCD in the rough sketch produced by the plaintiff is made/put up, and that means the age of the said portion whether it is new construction or old" (sic). The Commissioner has categorically opined that the portion marked ABCD has mud plastered walls, red oxide flooring and is aged about 45 years. While filing this Report, the Court commissioner has also given the measurements of the properties. The Courts below have currently opined that the Commissioner could not have measured the properties, and because he has measured the construction, the Report is liable to be rejected.
30. The details of measurements in the Commissioner's Report is with regards to the different constructions along the southern boundary in the eastern portion, and it is part of the observation made by him. The Commissioner, who is examined as CW1, as CW 1, in his cross-examination has reiterated his observation as regards the age of the construction while admitting that in terms of the orders of the trial Court he need not have prepared a sketch. The Courts below could not have discarded the Commissioner's report solely on the ground that he had mentioned the measurement of the larger property and appended a sketch to his Report.
31. The Commissioner's Report would be an independent person's observation secured to aid the Courts in deciding the controversy in issue between the parties to the proceedings. The Commissioner's Report, unless shown to be for extraneous reasons or not material or otherwise faulty, will have to be considered to assess whether his/ her Report corroborates a particular version. The plaintiffs have not made out any circumstance to justify the exclusion of the material part of the Report from consideration, and the reason for which it is not considered by the Courts below cannot be accepted. The Commissioner's Report corroborates the defendant's case that they had removed the Mangalore tile roof of a part of the existing construction along the southern boundary and replaced it with RCC slab roof, and was being integrated into the new construction.
32. The courts below have relied upon the pleadings in O.S.No.116/1996 to conclude against the defendants. But, in the considered opinion of this Court the pleadings in O.S.No.116/1996 (a suit for partition inter se family members of the defendants) cannot be fatal to the defendants' case. In this suit O.S.No.116/1996, the parties were at issue on whether the property was a joint family property, and as such, justifiably the focus would be on the measurements of the property.
33. The Courts below have not only failed to consider the true nature of the controversy between the parties to the proceedings viz., the controversy being about the boundary line between the two properties, but have also overlooked the admitted facts, the indisputable recitals in the sale deed executed by Smt. Gnanamaniyamma and the material evidence on record. The Courts below have concluded that because the defendants have not got rectification of their sale deeds, it will have to be concluded that the defendants have encroached upon the plaintiff's property. In fact, the defendants have established, for the reasons already discussed, the boundary as asserted by them and the replacement of the Mangalore tiled roof.
34. It is settled law that in the case of a discrepancy between the dimensions and boundaries, the area specified within the boundaries will prevail whether it be less or more than the quantity specified. A useful reference could be made to the decision of this court in Narasimha Shastri vs. Mangesha Devaru reported in ILR 1988 Karnataka 554. In this case, the defendants are able to establish the boundary line between the two properties as asserted by them inasmuch as they are able to establish that the western boundary of their portion on the southern side extends up to the common wall which is part of the contiguous construction existing from the time prior to the Will dated 25.11.1959. The plaintiffs have not been able to establish the measurements as contended by them. In view of the law that when there is discrepancy between the boundaries and measurement, the boundaries should prevail, it will have to be concluded that the defendants are able to establish their case that their property measures 30 feet East to West along the southern boundary. Therefore, the substantial questions framed are answered in favour of the appellants, and as such, the following:
ORDER a. The appeal in RSA No. 538 of 2011 is disposed as not surviving for consideration.
b. The appeal in RSA No. 537/2011 is allowed, and the judgement and decree dated 2nd August 2002 by the Principal -I Civil Judge (Junior Division) at Mysore insofar as the suit in OS No. 543/1996, and the Judgement and decree dated 26th November 2010 by the Judge Small Causes and Senior Civil Judge Mysore insofar as the **appeal in **R.A.No.182/2002 are set aside. The suit in OS No.543/1996 is dismissed.
c. No Costs.
d. The office to draw decree accordingly.
Nvj/SA/nv ** Corrected vide Court order dated 13.01.2020 Sd/- Judge