IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE S.N.SATYANARAYANA REGULAR SECOND APPEAL NO.1424 OF 2018 BETWEEN:
NELLAMAKKADA U AIYAPPA S/O LATE DR.N.B. UTHAPPA AGED 69 YEARS R/AT SIDDAPUR ROAD VIRAJPET TOWN S. KODAGU – 571 253 ... APPELLANT (BY SRI. C.M. POONACHA, ADV ) AND:
1. K.M.MUDDAPPA S/O LATE MADAIAH AGED 82 YEARS R/O KEERTHY LAYOUT APPAYYASWAMY ROAD VIRAJPET TALUK S. KODAGU - 571 218 2. LT. COL. K.M. MUTHANNA S/O LATE MADAIAH AGED ABOUT 79 YEARS R/O HILL VIEW, JAIN STREET VIRJAPET TOWN, S. KODAGU – 571 218 ... RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 22.03.2018 PASSED IN R.A.NO.5004/2017 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, KODAGU- MADIKERI, SITTING AT VIRAJPET, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 11.04.2017 PASSED IN O.S.NO.56/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE, VIRAJPET.
THIS RSA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The Defendant in O.S. No.56/2008 on the file of the Senior Civil Judge, Virajpet, has come up in this second appeal, impugning the concurrent findings of both the Courts below in decreeing the suit of the plaintiffs for the relief of declaration and possession with reference to suit ‘B’ schedule property.
2. The brief facts leading to this second appeal are as under:
The plaintiffs 1 and 2 claim that they are owners of suit ‘A’ schedule property in Sy. No.106/3 of Balugodu Village, Virajpet Taluk, Madikeri District, measuring 1 acre 85 cents. According to them, an extent of 15 cents in the said land is encroached by the defendant who is owner of land bearing Sy. No.110 situated on the western side of suit schedule ‘A’ and ‘B’ properties. Hence, they seek declaration of their title to suit ‘B’ schedule property as well as recovery of possession of said property along with damages for wrongful use of the same by the defendant from the year 2005 till the date of filing of the suit. In the said suit, the defendant filed his written statement, contending that he is the absolute owner, in possession and enjoyment of extent of 14 acres 32 cents in Sy. No.110 situated at the western portion of suit schedule ‘A’ & ‘B’ properties. According to the defendant, his father had purchased the land in Sy. No.110 from one of the brothers of the plaintiffs who acquired title to the said property in a partition in the family of the plaintiffs which has taken place on 20.02.1947 vide Exhibit.P11 which is also referred to as Exhibit.D1 in the said proceedings.
3. In the said suit, on the basis of evidence raised by the parties, the trial Court framed in all five issues. Out of that, the first issue which is with reference to title of the plaintiffs to suit schedule properties is answered in the affirmative. So far as second issue is concerned, it is with reference to whether the plaintiffs prove that in the year 2005, the defendant forcibly encroached into ‘B’ schedule property and he is in possession of ‘B’ schedule property illegally is answered partly in the affirmative for the reason that though the Courts below accepted the survey report which was initially conducted in the year 2005 for the first time and 2007 for the second time and subsequently, during the pendency of the proceedings where the report filed by the Court Commissioner is at Exhibit.C1. Though the court below disbelieved encroachment is of the year 2005, accepted the finding of the Commissioner who is examined as CW.1 with reference to the plaintiffs being in possession of ‘B’ schedule property. So far as issue No.3 is concerned, it is with reference to entitlement of the plaintiffs for the relief of declaration and possession in respect of ‘A’ & ‘B’ schedule properties and so far as plaintiffs’ claim for damages is concerned, it is rejected by answering the said issue in the negative.
4. The finding of the trial court in the said suit has forced the defendant in the said suit who is appellant herein to approach the lower appellate court by filing an appeal in R.A. No.5004/2017. It is seen that the plaintiffs who failed to secure damages which was sought by them in the original suit, accepted the rejection of issue No.4 and kept quiet, which claim of the plaintiffs for the relief of damages, has reached finality. In the lower appellate court, based on the grounds urged in the appeal memo, points for consideration were raised. Out of the said points, first point is with reference to the Judgment of the trial Court could be justified in holding that the plaintiffs are absolute owners of ‘A’ schedule property, which is answered in the affirmative. The second point is with reference to justification regarding finding of the trial court so far as encroachment of 15 cents in Sy. No.106/3 which is also suit ‘B’ schedule property which is also answered in the affirmative. The third point is whether the lower court was justified in directing the delivery of possession of suit B schedule property measuring 15 cents to the plaintiffs is also answered in the affirmative. So far as contention of the appellant before the lower appellate court that the said Judgment and decree requires interference is concerned, is answered in the negative and accordingly dismissed the regular appeal.
5. Being aggrieved by the same, the defendant has come up in this second appeal, contending that serious error is committed by both the courts below in not properly appreciating the Court Commissioner’s report which is at Exhibit.C1 and also evidence of the plaintiffs and defendant, so also the evidence of the Court Commissioner who is CW.1 in the court below.
6. Learned counsel for the appellant would try to bring to the notice of this court that the error which is committed by the Court Commissioner while preparing Exhibit.C1 is not measuring the suit schedule properties, namely, Sy. No.106/3 which is referred to as 1 acre 85 cents in schedule-A and out of that schedule- B is identified as 15 cents with clear demarcation where it is shown that the property of the defendant is lying to the western side of plaint ‘A’ & ‘B’ schedule properties, which is admittedly purchased by father of the defendant from one of the brothers of the plaintiffs under a registered sale deed dated 22.05.1961, where the extent of property purchased by him is 14 acres 32 cents in Sy. No.110. When the said property is not subject matter of dispute, the question of measuring the same does not arise and in the absence of measuring Sy. No.106/3 holding that there is excess land in possession of the defendant to the extent of 15 cents which is suit schedule ‘B’ property is erroneous and that both the courts below have not looked into the pleadings and evidence with reference to the boundaries of Sy. No.110 as it stood before the survey. So far as ‘A’ & ‘B’ schedule is concerned, the boundaries and extent is decided based on the report of the Court Commissioner appointed by the trial court, to ascertain the plaint averments regarding encroachment. He also tried to substantiate his contention that the error in appreciating the evidence by both the courts below is apparent, in as much as, when there is admission by the Court Commissioner in adopting the method to ascertain encroachment, the same is not properly appreciated by both the courts below. In that view of the matter, the Judgments of both the courts below are required to be set aside and the matter requires further consideration in this appeal by setting aside both the Judgments or in the alternative, remanding the matter to the trial Court for fresh consideration by directing the court below to measure Sy. Nos.106/1, 106/2 and 106/3 and find out what is the area of land which is in excess and therefore the same is required to be set aside.
7. Heard the learned counsel for the appellant.
In fact, when this matter had come up earlier on 30.11.2018 the learned counsel for the appellant made submission that the possibility of the court below executing the decree is imminent and also the handing over of possession is likely to take place in the near future. In this background, this court had directed the registry to secure the trial court records not only in the original suit but also of the lower appellate court and at the same time permitting the appellant to file a memo in the executing court, that both the Judgments are under reconsideration by this court. Accordingly, this day, the matter was heard further for admission with lower court records i.e., the records in O.S. No.56/2008 as well as R.A. No.5004/2017. When the entire pleadings, evidence available on record is looked into, what is seen is that the land bearing Sy. Nos.106, 110 are all properties of plaintiffs family prior to the year 1947. It is seen that in the year 1947, there was partition in the family of the plaintiffs which has taken place on 20.02.1947. As could be seen from Exhibit.P11 which is also marked as Exhibit.D1 for and on behalf of the defendant, it clearly shows that Sy. No.110 was allotted to the share of the plaintiffs’ brother in the said partition of the year 1947 which had come to the share of the person from whom father of the defendant purchased the said property under registered sale deed dated 22.05.1961, copy of which is at Exhibit.D2.
Therefore, what is clearly seen is that the defendant’s father purchased an extent of 14 acres 32 cents in Sy. No.110 of Balugodu Village, Virajpet Taluk, Madikeri District in the year 1961 and they have been in possession, cultivation and enjoyment of the said property.
8. It is seen that there was dispute between the parties with reference to boundaries and possession of the property held by the plaintiffs as well as defendant. In that behalf, a survey was conducted in the year 2005 at the instance of plaintiffs which is not accepted by the defendant and again another survey was conducted in the year 2007 which is said to be with the knowledge of the defendant which is also not accepted by the defendant. It is in this background, suit in O.S. No.56/2008 is filed by the plaintiffs contending that portion of suit schedule ‘A’ property is in possession and cultivation of the defendant. It is necessary to mention at this juncture that both suit schedule ‘A’ & ‘B’ properties as well as land bearing Sy. No.110 belongs to the defendant which is situated on the western side of suit schedule ‘A’ & ‘B’ properties are coffee plantation lands where robusta coffee is said to have been planted by the plaintiffs and defendant. The suit ‘B’ schedule is claimed as property belonging to the plaintiffs in the said suit.
9. When the said suit was filed, the defendant who was duly served in the said suit, filed written statement, contending that he is the owner of property bearing Sy. No.110 which is situated on the western side of suit schedule ‘A’ & ‘B’ properties and that he is in possession, cultivation and enjoyment of only Sy. No.110 measuring an extent of 14 acres 32 cents which was purchased by his father in the year 1961. While doing so, he did not set up any claim that he is in possession of land in excess of 14 acres 32 cents and the same is adverse to the title of the plaintiff and therefore he has perfected his title to the said portion. That was not the defence raised by him. He contended that he was in possession of the land which was purchased by his father in the year 1961. It is in this background, the survey is conducted at the instance of plaintiff in the trial court only to find out whether the defendant is in possession of Sy. No.110 only to the extent of 14 acres 32 cents or he is in possession of land in excess of 14 acres 32 cents. It is in this background that sketch was prepared by CW.1 and he has filed his report in the trial court where he would confirm possession of the defendant to an extent of 14 acres 32 cents in Sy. No.110. While doing so, he would identify that land in Sy. No.106/3 measuring 15 cents is in possession of the defendant which finding by the trial court was subject matter of challenge before the lower appellate court. The lower appellate court, while re-appreciating the evidence, has confirmed the same, in the light of the fact that so far as defendant’s entitlement of 14 acres 32 cents not being disturbed by anybody as observed in both survey which is conducted. It is only land in excess of 14 acres 32 cents in Sy. No.110 is accepted as suit schedule ‘B’ property.
10. The learned counsel for the appellant in this proceeding who is defendant in the court below would try to impress this court that, in the Commissioner’s report, whether the said extent of 15 cents would come in Sy. No.106/3 or otherwise is not indicated by the Surveyor who was appointed in the original suit. Therefore, the finding of the surveyor with reference to that, in the absence of conducting survey of entire extent of Sy. No.106 is not acceptable. According to him, conducting survey of Sy. No.110 which is not suit schedule land and not measuring the suit land before considering the excess land in possession of defendant as suit schedule ‘B’ is erroneous and the defence which was raised by the appellant in the court below as well as by way of grounds of appeal in the lower appellate court, not being appreciated requires reconsideration. However, this Court is not in agreement with the said line of argument, when admittedly the surveyor having measured 14 acres 32 cents of land available to the defendant in Sy. No.110 and thereafter identified excess land which was available as land bearing Sy. No.106/3 measuring an extent of 15 cents appears to be just and proper. Even otherwise, even prior to the year 1961, the entire extent of land in the said area belongs to the family of the plaintiff and the same was divided between the plaintiffs and their brothers, one of whom is the person who has sold the property, presently held by the appellant herein bearing Sy. No.110 of Balugodu Village, Virajpet Taluk, Madikeri District, measuring 14 acres 32 cents. When the survey conducted through the court identified the said extent with defendant, the excess land available obviously with him is not the property of the defendant.
11. Therefore, the finding of both the Courts below in holding that the said excess land is suit schedule ‘B’ and the same is the property of the plaintiffs in the court below who are the respondents 1 and 2 appears to be just and proper. Therefore, as against the concurrent findings of both the courts below, this court finds no grounds are made out to interfere with this second appeal, in as much as, no substantial question of law arise in this appeal and the appeal is accordingly dismissed.
12. While dismissing this second appeal, this court would further reiterate that the executing court which is being approached by the respondents 1 and 2 for taking possession of the land should make sure that while delivering the excess land, the plaintiffs in the court below should not take possession of any portion of Sy. No.110 measuring 14 acres 32 cents which is identified as land belonging to the defendant by the surveyor in Exhibit.C1.
In view of disposal of the main appeal, I.A. No.1/2018 does not survive for consideration, which is accordingly dismissed.
Sd/- JUDGE AN/-