IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA R.S.A. No.1535/2006 (INJ) BETWEEN:
1. RAMASWAMYGOWDA (WRONGLY SHOWN AS RANGASWAMY) S/O MARIYANNAGOWDA AGED 40 YEARS 2. DEVARAJU S/O MARIYANNAGOWDA AGED 43 YEARS 3. SRI S.M.GOVINDARAJU (WRONGLY SHOWN AS ONLY GOVINDARAJU) S/O MARIYANNAGOWDA AGED 40 YEARS 4. SRI S.M.PANDURANG (WRONGLY SHOWN AS PANDY) S/O MARIYANNAGOWDA AGED 38 YEARS 5. SRI LINGARAJU S/O MARIYANNAGOWDA AGED 36 YEARS 6. SMT.DEVEERAMMA W/O MARIYANNAGOWDA AGED 65 YEARS ALL ARE RESIDENTS OF SHETTYHALLY VILLAGE NUGGEHALLY HOBLI CHANNARAYAPATNA TALUK – 573 141 7. SMT.NAGARATHNA (WRONGLY SHOWN AS NAGAMMA) W/O NAGARAJU AGED 40 YEARS R/O BILIKERE VILLAGE HIRISAVE HOBLI CHANNARAYAPATNA TALUK 8. SMT. PREMA W/O PUTTEGOWDA AGED 39 YEARS R/O HATHIHALLI VILLAGE NUGGEHALLI HOBLI CHANNARAYAPATNA TALUK – 573 141 …APPELLANTS (BY SRI G.BALAKRISHNA SHASTRY, ADVOCATE) AND :
SRI RAMALINGEGOWDA S/O NANJEGOWDA MAJOR, SHETTYHALLI VILLAGE, NUGGEHALLI HOBLI, CHANNARAYAPATNA TALUK – 573 141 …RESPONDENT (BY SRI S.R.NITHYANANDA, ADVOCATE – ABSENT) THIS RSA IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE JUDGMENT AND DECREE DATED 25.01.2006 PASSED IN R.A.No.175/2002 ON THE FILE OF THE CIVIL JUDGE (SR.DN), CHANNARAYAPATNA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 16.02.2000 PASSED IN O.S.No.514/1987 ON THE FILE OF THE CIVIL JUDGE(JR.DN) AND JMFC, CHANNARAYAPATNA.
THIS RSA., COMING ON FOR REPLY ARGUMENTS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The legal representatives of the original defendant, Mariyannagowda, in O.S. No.514/1987 on the file of learned Civil Judge (Jr. Dn.) and JMFC., Channarayapatna, have come up in this second appeal impugning the divergent finding rendered by the Court of Civil Judge (Sr. Dn.), Channarayapatna, in R.A. No.175/2002 by its judgment and decree dated 25.01.2006.
2. The brief facts leading to this second appeal are as under:
2.1 The suit in O.S. No.514/1987 was filed by the respondent herein - Ramalingegowda for the relief of permanent injunction restraining the defendant viz., Mariyannagowda from interfering with his alleged peaceful possession and enjoyment of the suit schedule property, which is portion of the larger extent of land in Sy. No.43/1, indicated by letters ‘BHID’ in the rough sketch annexed to the plaint measuring East to West 8 feet on the northern side and 5 feet on the southern side and North to South 46 feet in Sy. No.43/1 situate in Shetty Hally / Shettyhalli village, Nuggehally hobli, Channarayapatna Taluk.
2.2 It is the case of the plaintiff that his elder brother viz., Halagegowda on behalf of the joint family comprising of himself, his mother and his brothers including the plaintiff, purchased the said land in Sy. No.43/1 measuring 03 guntas under registered sale deed dated 25.11.1977 from one Smt. Lakshmamma and her sons viz., Kapanigowda and Shivegowda and out of the said 03 guntas of land, 02 guntas was got converted from agricultural to non-agricultural purpose i.e., residential purpose by virtue of the order of Tahasildar, Channarayapatna, dated 21.09.1983. According to the plaintiff, he applied for licence to construct a dwelling house on the said land, to the village panchayat of Sosalagere. Since he did not receive any reply in that regard, he proceeded to put up construction of his house on the said converted land, which is indicated by letters ‘ABCDE’ in the plaint sketch. The plaintiff claims to be the owner in possession of the suit schedule property marked by letters ‘BHID’ in the plaint sketch.
2.3 It is alleged in the plaint that the defendant, who had put up construction of his house towards the west of the property of the plaintiff about one year next before the plaintiff got constructed his house, had encroached to an extent of 10 feet East to West into the property of the plaintiff. Plaintiff’s further case is that he constructed a room in portion of the property marked by letters ‘GBCF’ in the sketch annexed to the plaint and has been making use of the same as bathroom for the inmates of his house. It is alleged that about 15 days next before filing of the suit, there was resistance by the defendant for the enjoyment of the suit schedule property and he is said to have caused damage to the said bathroom and in that connection, the plaintiff had incurred loss to the tune of Rs.5,000/-. Accordingly, he sought for the aforesaid relief of permanent injunction against the defendant.
2.4 On service of suit summons, the defendant entered appearance through his counsel and filed the written statement inter alia stating that he had no knowledge of the plaintiff’s family purchasing 03 guntas of land in Sy. No.43/1 under the sale deed dated 25.11.1977 from Smt. Lakshmamma and her sons as also the order of Tahasildar converting 02 guntas of land from agricultural purpose to non- agricultural purpose i.e., residential purpose. He admitted the fact that the plaintiff had constructed his house in the portion of the property indicated by letters ‘ABCDE’ in the plaint sketch. However, he denied that the suit schedule property marked by letters ‘BHID’ in the plaint sketch belonged to the plaintiff and that he had encroached on any portion of the property of the plaintiff and caused any damage to the bath room indicated by letters ‘GBCF’ in the rough sketch, as alleged in the plaint.
2.5 The original defendant had put forth the defence that: site Nos.156, 158 and 150 situate in Shetty halli village, which are located adjacent to each other, were his ancestral properties; he had put up construction of his house as also cattle shed in the property measuring to an extent of 44½ feet East to West and 48 feet North to South comprised in site Nos.156 and 158 after obtaining licence from Sosalagere Grama panchayat in the year 1984 and the suit property indicated by letters ‘BHID’ in the plaint sketch formed part and parcel of site Nos.156 and 158 belonging to him and the plaintiff had no manner of right, title or interest in the same. It is stated that the defendant at the time of construction of his house attached to which there is cattle shed, had placed the door of the said shed facing east towards the suit property, which was used as passage for movement of cattle from the cattle shed to the main road and vice versa. It is alleged in the written statement that the plaintiff, who got constructed his house about two years next before the defendant got constructed his house, had put up construction in the entire area belonging to him and had not left any vacant space towards west of his property and about 15 days next before filing of the suit, the plaintiff with an intention to harass the defendant, tried to put up construction of a room in the property belonging to the defendant and when the same was resisted by the defendant, the plaintiff filed the suit making false allegations against him. The defendant disputed the plaint sketch as not reflecting the factual aspects. Accordingly, he contended that the plaintiff is not entitled for any relief and sought for dismissal of the suit with costs.
2.6 In the said suit, based on the aforesaid pleadings, the trial Court framed the following issues:
“1. Whether the plaintiff proves that he is in possession and enjoyment of the suit schedule property as on the date of suit?
2. Whether the plaintiff proves interference as averred in the plaint ?
3. Whether the plaintiff is entitled for the reliefs claimed in this suit?
4. To what order or decree ?”
2.7 Parties were called upon to adduce evidence. On behalf of the plaintiff, the plaintiff examined himself as PW.1 and he relied upon three documents: the order of conversion in respect of 02 guntas of land in Sy. No.43/1 passed by the Tahasildar dated 21.09.1983 vide Ex.P1; original registered sale deed dated 25.11.1977 under which the elder brother of the plaintiff, namely Halagegowda purchased the land measuring 03 guntas in Sy. No.43/1 on behalf of the joint family from his vendors i.e., Smt. Lakshmamma and her sons, namely Kapanigowda and Shivegowda as per Ex.P2 and extract of RTC for the period from 1984-85 to 1986-87 to show the total extent of land in Sy. No.43/1 vide Ex.P3.
2.8 During the pendency of the said suit, the original defendant viz., Mariyannagowda died and his legal representatives were brought on record.
2.9 In the said proceedings, one of the legal representatives of the original defendant, namely Devaraju examined himself as DW.1 and he also examined another witness, namely Puttaswamy Shetty as DW.2. DW.1 in his evidence would reiterate the defence raised in the written statement filed by the original defendant. He has deposed that there is passage (suit schedule property) between his house and the plaintiff’s property; cattle shed is attached to his house on the southern side and the door placed to the said shed is facing east towards the said passage. According to DW.1, the said passage is the only path for movement of cattle from the cattle shed to the main road and vice versa. He has asserted that the said passage does not belong to the plaintiff and he has no right of ownership over the same and that at no point of time, there was any bathroom constructed by the plaintiff in the said passage. He denied the encroachment as also damage caused to the bathroom as alleged by the plaintiff. DW.2 – Puttaswamy Shetty, who is said to be residing nearby to the house of the plaintiff as well as the original defendant, has supported the case of DW.1 - Devaraju. On behalf of the defendants, no documents are produced.
2.10 In the said proceedings, the plaintiff filed an application under Order 26 Rule 9 of the Civil Procedure Code, 1908, seeking appointment of Court Commissioner to fix up the boundaries of the suit Survey No.43/1 and to locate portion of the said survey number, which is covered under the sale deed dated 25.11.1977. It is seen from the records that the trial Court by its order dated 10.03.1989, has appointed Assistant Director of Land Records (‘ADLR’ for short), Hassan, as Court Commissioner and he was directed to conduct survey of land in Sy.No.43/1 as sought in the application filed by the plaintiff and give his report.
2.11 It has come on record that the Assistant Director of Land Records (ADLR), Hassan, has not conducted the spot inspection and he in turn had directed one P. Chikkamallaiah, retired Supervisor of Survey Department, who is examined as CW.1, to conduct spot inspection and submit his report. CW.1 – P. Chikkamallaiah has got marked: sketch prepared by him vide Ex.C2; report / reply to the memo of instructions submitted by the original defendant as per Ex.C1; spot mahazar as per Ex.C3 and copy of notice sent by him to the plaintiff and original defendant vide Ex.C4.
2.12 The trial Court on appreciation of the pleadings and evidence adduced by the parties, proceeded to answer issue Nos.1 to 3 in the negative against the plaintiff and issue No.4 as per the final order. Having regard to the fact that the survey was not conducted by the Assistant Director of Land Records, Hassan, in compliance with its order dated 10.03.1989, the trial Court declined to accept the report, sketch and spot mahazar submitted by CW.1 – P. Chikkamallaiah, retired Supervisor, who is said to have prepared the same on the basis of instructions issued by ADLR, Hassan. Accordingly, the trial Court by judgment and decree dated 16.02.2000, dismissed the said suit.
2.13 The judgment passed by the trial Court was subject matter of challenge in R.A. No.175/2002 on the file of Civil Judge (Sr. Dn.), Channarayapatna. The legal representatives of the original defendant viz., Mariyannagowda contested the appeal before the lower appellate Court.
2.14 The lower appellate Court after considering the grounds urged in the appeal memo as well as the contentions of the learned counsel for the parties, framed the following points for consideration:
“1. Whether the learned Civil Judge (J.D) of Channarayapatna has erred in holding that plaintiff has failed to prove his possession and enjoyment over the suit schedule property?
2. Whether the Judgment and Decree of the trial Court calls for interference?
3. What order?”
The lower appellate Court on re-appreciation of the pleadings and evidence available on record, answered point Nos.1 and 2 in the affirmative and point No.3 as per the final order and consequently, allowed the appeal filed by the plaintiff by setting aside the judgment and decree passed by the trial Court. While doing so, the lower appellate Court has accepted the Court Commissioner’s report, which was held to be erroneous by the trial Court. Being aggrieved by the divergent finding rendered by the lower appellate Court, the legal representatives of the original defendant have come up in this second appeal.
3. When this matter had come up for admission on 01.02.2007, this appeal was admitted to consider the following substantial question of law:
“Whether the lower Appellate Court was justified in overturning the well considered judgment of the trial Court solely on the basis of the Commissioner’s report which was not accepted by the trial Court for good reasons ?”
4. Heard the learned counsel for the appellant, Sri G. Balakrishna Shastry. So far as the learned counsel for the respondent (plaintiff in the suit) is concerned, he is not present before the Court. Perused the lower Court records as well as the judgments of both the Courts below. On going through the same, this Court would answer the substantial question of law in the negative while holding that the matter requires to be remanded to the lower Appellate Court for further consideration for the following:
REASONS 5. The records reveal that the plaintiff’s elder brother viz., Halagegowda acting on behalf of the joint family purchased 03 guntas of land bearing Sy. No.43/1 situate in Shettihally village of Nuggehalli hobli from one Smt. Lakshmamma and her sons viz., Kapanigowda and Shivegowda under registered sale deed dated 25.11.1977 vide Ex.P2. Though the original defendant contended that he had no knowledge of execution of the said sale deed by the erstwhile owners of 03 guntas of land in favour of plaintiff’s brother, he admitted that the house, which is indicated by letters ‘ABCDE’ in the plaint sketch, as belonging to the plaintiff. The dispute between the parties is with regard to portion of the land in Sy. No.43/1, which is described as the suit schedule property and marked by letters ‘BHID’ in the plaint sketch. According to the plaintiff, the suit schedule property forms part and parcel of 03 guntas of land in Sy. No.43/1 purchased by his elder brother viz., Halagegowda under registered sale deed dated 25.11.1977 vide Ex.P2, whereas according to the defendants, the suit schedule property belongs to them forming part of site Nos.156 and 158, which are said to be the ancestral properties of the original defendant, namely Mariyannagowda.
6. The extract of RTC., produced by the plaintiff vide Ex.P3 clearly discloses that the total extent of land in Sy. No.43/1 is 03 guntas and out of that, 02 guntas is cultivable land (hainu land) and 01 gunta is kharab land. However, the said extract of RTC does not disclose as to whether the said 01 gunta is ‘A’ kharab or ‘B’ kharab. Be that as it may, the aspect that needs to be looked into is the entitlement of the plaintiff to put up construction of his house on the property, which was purchased by his elder brother viz., Halagegowda on behalf of the joint family from his vendors under registered sale deed dated 25.11.1977 vide Ex.P2. Though under the said sale deed, the entire 03 guntas of land in Sy. No.43/1 is conveyed in favour of the family of the plaintiff, in strict sense, they would get title only to an extent of 02 guntas of cultivable land and so far as the remaining 01 gunta of kharab land is concerned, if it is ‘A’ kharab, its title would go along with 02 guntas of cultivable land and if it is ‘B’ kharab, it would remain vested with the State to be utilized for public purpose. In the instant litigation, the nature of kharab land measuring 01 gunta mentioned in the RTC extract vide Ex.P3 is not properly explained by both the parties. The fact that the extent of cultivable land in Sy. No.43/1 is only 02 guntas is further confirmed upon perusal of the contents of the conversion order passed by the Tahasildar dated 21.09.1983 vide Ex.P1, which discloses that the plaintiff’s brother viz., Halagegowda had applied for conversion of only 02 guntas of land in Sy. No.43/1 from agricultural purpose to non-
agricultural purpose i.e., residential purpose. If the remaining extent of 01 gunta of land were to be ‘A’ kharab, the plaintiff’s brother viz., Halagegowda would have applied for conversion of the same in which event, the concerned Authority would have received the value prescribed under law for conversion of the same into residential property at the time of conversion of the larger extent of 02 guntas of cultivable land in accordance with the provisions of the Karnataka Land Revenue Act, 1964 and the Karnataka Land Revenue Rules, 1966. Hence, in the facts and circumstances of the case, the determination of nature of kharab land measuring to an extent of 01 gunta comprised in Sy. No.43/1 would play an important role in deciding the rights of the parties to this litigation.
7. Admittedly, the property of the defendants is situated on the western side of the plaintiff’s property. The entrance of the house of the defendants leading to the main road is on its northern side. Further, it is not in dispute that there is a cattle shed attached to the defendants’ house on its southern side and the door placed to the said cattle shed is facing east towards the suit schedule property, thereby indicating that the suit property, which is a passage lying between the house of the plaintiff and the house of defendants, is the only path for movement of cattle from out of the cattle shed to the main road and vice versa.
8. In that view of the matter, the question as to whether the suit schedule property marked by letters ‘BHID’ in the plaint sketch is portion of 01 gunta of kharab land in Sy. No.43/1 or whether it forms part of 02 guntas of cultivable land in the said survey number, which is in possession and enjoyment of the plaintiff (respondent herein), will have to be dealt with by the trial Court by affording opportunity to the parties to lead evidence in that regard.
9. The trial Court has rejected the prayer of the plaintiff for the relief of permanent injunction and while doing so, it has not accepted the Commissioner’s report, which is prepared and produced by CW.1 – P. Chikkamallaiah, retired Supervisor of Survey department, contrary to the direction issued by the trial Court to the ADLR., Hassan, to conduct survey of the land in Sy. No.43/1 and submit his report. It is elicited in the cross-examination of CW.1 that the sketch, mahazar and report produced by him vide EXs.C1 to C3 were not prepared by ADLR., Hassan.
10. In that view of the matter, the finding arrived at by the lower appellate Court that the plaintiff has proved his possession over the suit schedule property by relying upon the Court Commissioner’s report is erroneous. The lower appellate Court has not considered the fact as to whether the land comprised in the suit schedule property marked by letters ‘BHID’ in the plaint sketch is either ‘A’ kharab or ‘B’ kharab or in the alternative, is part of 02 guntas of cultivable land purchased by the plaintiff’s brother under sale deed dated 25.11.1977 vide Ex.P2 and in the absence of finding on the said aspect of the matter, any decision either granting relief in favour of the plaintiff (respondent herein) or denying the alleged right of the defendants (appellants herein) to use the said passage will be inappropriate. Therefore, this Court has rightly observed while framing the substantial question of law that the Court Commissioner’s report is erroneous. Therefore, on that count itself, the judgment rendered by the lower appellate Court in decreeing the suit of the plaintiff is required to be set aside and the matter is required to be remanded to the lower appellate Court with certain directions.
Accordingly, the appeal is allowed in part. The judgment and decree dated 25.01.2006 passed by the Court of Civil Judge (Sr. Dn.), Channarayapatna, in R.A. No.175/2002 is hereby set aside. While doing so, it is observed that the lis between the parties cannot be decided in the absence of evidence to be adduced in respect of the suit schedule property as discussed supra. For that purpose, the matter is remanded back to the lower appellate Court with a direction to the said Court to call upon the trial Court to conduct an enquiry to identify whether the suit schedule property, which is portion of the property indicated by letters ‘BHID’ in the plaint sketch, is situate in kharab land measuring to an extent of 01 gunta in Sy. No.43/1 and if so, whether it is ‘A’ kharab or ‘B’ kharab by affording opportunity to the parties to produce appropriate documents to prove their respective case and thereafter, the lower appellate Court shall decide about the rights of the parties for the relief of permanent injunction.
With such observations, this appeal is disposed of.
Sd/- JUDGE sma