IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN REGULAR SECOND APPEAL No.785 of 2012 (INJ) BETWEEN S. BALARAMAIAH SINCE DECEASED, BY HIS LRs:
(a) RUKMINIYAMMA W/O LATE S.BALARAMAIAH, AGED ABOUT 70 YEARS, (b) S.B.SRINIVASA GUPTHA S/O LATE S.BALARAMAIAH, AGED ABOUT 51 YEARS, BOTH ARE RESIDING AT: SREERAMA MANDIRA ROAD, N.R.EXTENSION, CHINTAMANI – 563 125.
(BY SRI V.B. SHIVAKUMAR, ADV.,) AND MIR SADAT ALI SINCE DECEASED, BY HIS LRs:
(a) NAZEEMUNNISSA W/O LATE MIR SADAT ALI, … APPELLANTS (b) NAZARATH FATHIMA D/O LATE MIR SADAT ALI, (c) MIR RAZAT ALI FIRDOSH S/O LATE MIR SADAT ALI, (d) MIR SABAIT ALI S/O LATE MIR SADAT ALI, (e) MIR SADAKATH ALI S/O LATE MIR SADAT ALI, (f) NIKATH FATHIMA D/O LATE MIR SADAT ALI, ALL ARE MAJORS AND ARE R/AT K.R. EXTENSION, CHINTAMANI – 563 125.
… RESPONDENTS (BY SRI G.B.MANJUNATH, ADV., FOR R1 (a, d, e & f); R1(b) & R1(c) ARE SERVED) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CIVIL PROCEDURE CODE, AGAINST THE JUDGMENT AND DECREE DATED 01.12.2011 PASSED IN R.A.No.108/2005 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., CHINTAMANI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 28.09.2005 PASSED IN O.S.NO.60/1996 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (JR.DN) & JMFC., CHINTAMANI.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the appellants/plaintiffs being aggrieved by the judgment and decree passed by the Additional Civil Judge (Jr.Dn.) and JMFC, Chintamani, (hereinafter referred to as the ‘trial Court’) in OS.No.60/1996 dated 28.09.2005 and confirmed by the Senior Civil Judge & JMFC, Chintamani, (hereinafter referred to as the ‘1st Appellate Court’) in RA.No.108/2005 dated 01.12.2011.
2. Heard the arguments of learned counsel for the appellants as well as learned counsel for respondent No.1 (a, d, e & f). Respondent Nos.1(b) and (c) though served have remained absent.
3. The status of the parties before the trial Court is retained for the sake of convenience.
4. The case of the plaintiffs in brief before the trial Court is that the plaintiff filed a suit for perpetual injunction as against the defendant restraining him from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property measuring East to West 15 feet and North to South 25, which is a portion of municipal khatha No.3237/3108. The suit property and other portions of the said khatha number originally was a portion of Sy.No.5/2 of Sonnasettihallli village. The further case of the plaintiff is that one K.M.Muniyappa @ Doddapillappa was the owner of the said survey number and he sold the land measuring 2 acres 36 guntas in the said survey number to one Narayanappa s/o Beerangi Govindappa through a registered sale deed dated 16.10.1940. He had sold two portions. The boundaries for the said property i.e., for portion ‘A’ is East by manure pits, West by new extension, North by portion ‘B’ described as houses belonging to persons residing in A.K.Colony and shandy gate, South by properties of Nazeer Sabi, Sab Jan Sabi and others. The boundaries for portion ‘B’ is East by manure pits and road, West by shandi gate and space, North by shandi gate and space and South by portion ‘A’ property. The said Narayanappa had sold western portion of the said survey number which was alienated at that time along with a building situated and vacant space abutting to it to the plaintiff under a registered sale deed dated 02.01.1960. The said property was bounded on East by property belonging to Puligala Srinivasaiah in the same survey number, West by sites of Adisubbaiah and Lakshminarayanaiah, North by A.K.colony and municipal road, South by sites of Yagna Narayana Sastry, Pobbathi Seetharamaiah. The further case of the plaintiff is that the plaintiff purchased the property towards West and North extended up to the end mark of Sy.No.5/2 of Sonnasettihalli village. The recitals made in the sale deed shows that the suit property is a portion of property purchased by the plaintiff under the sale deed referred above and he is in continuous possession and enjoyment of the property since 1960. He also applied for municipal license to put up structure on 25.04.1977 and also obtained blue print and also paying the taxes after the assessment made by the TMC, Chintamani. He is making use of the suit property as frontage to his shop which is situated towards south of the suit property. The defendants are very powerful persons in the town and he is the son of Ex-municipal President trying to trespass upon the suit property and put up structure upon it. The defendant has no manner of right, title, interest or possession over the suit property to enter upon it and to put up structure upon it.
5. Pursuant to the notice, defendant appeared through his counsel and filed written statement by denying the averments made in the plaint as false and contended that he has purchased the site bearing municipal khatha No.1222 measuring East-West 18 feet and North-South 45 feet from one Kadirappa @ Julappa s/o Melurappa under the registered sale deed dated 29.08.1969. The said property new municipal khatha number is 3238/3109. The said property is bounded on East by Muniobalappa’s land and vacant space, West by conservancy line, North by main road, South by conservancy. The municipality had issued building license to construct building and the plan has also been approved by the municipality. Since the date of purchase, he has continued his possession and enjoyment upon the said property by exercising an absolute ownership. The documents produced by the defendant clearly speak the right, title and interest, possession over the said property. There is conservancy in between Muniobalappa’s property and the property of the plaintiff. The plaintiff is using the said conservancy as a frontage to his shop, but not the suit schedule property. It is contended that the plaintiff has not reached this Court with clean hands. Hence, prays for dismissal of the suit.
6. Based on the rival pleadings, the trial Court framed the following issues:
1. Whether the plaintiff proves that he is in lawful possession of the suit schedule property?
2. Whether the plaintiff proves that the interference of the defendants over the suit schedule property?
3. Whether the plaintiff is entitled for the relief of permanent injunction?
4. What order or decree?
7. To substantiate the contentions, legal representative of deceased plaintiff examined as P.W.1 and got marked 11 documents as Exs.P.1 to P.11 and on behalf of the defendant, legal representative of deceased defendant examined as D.W.1 and got marked 13 documents as Exs.D1 to D13.
8. After considering the evidence on record, the trial Court answered issue Nos.1 to 3 in negative and ultimately, dismissed the suit. Assailing the judgment and dismissal of the suit, the plaintiff filed RA.No.108/2005 before the 1st Appellate Court. The 1st Appellate Court after considering the arguments and re-appreciating the evidence has dismissed the appeal and confirmed the judgment of the trial Court. Assailing the same, the plaintiff is before this Court by way of this second appeal.
9. Sri V.B.Shivakumar, learned counsel for the appellants/plaintiffs has contended that the plaintiff is using the said vacant space situated on northern side of the plaintiff’s property which was purchased under the sale deed during the year 1960 and the plaintiff is using the said space as frontage of shop in suit ‘A’ schedule property and the property has been using since 1960 and now the defendant is interfering with the schedule property. There is recital available in the sale deed of the plaintiff about the vacant space available on the northern side of the schedule property. Such being the case, the trial Court as well as 1st Appellate Court ought to have decreed the suit and has contended that the substantial questions of law are involved to admit this appeal and prayed allowing the appeal.
10. Per contra, learned counsel for respondent Nos.1 (a, d, e & f) has supported the judgment and decree passed by the courts below and has contended that the plaintiff has purchased the suit property, in which, he has put up construction after obtaining permission and as per the admission made in the cross- examination of P.W.1, the property was purchased by the father of plaintiff who has constructed shop and there is conservancy line in front of their site. The defendant has purchased the property in the year 1960 and as per Ex.D.1 the boundaries clearly mentions that on the southern side, there is conservancy line. Such being the case, the suit schedule property was purchased by the defendant in the year 1969 and contended that the plaintiff without any right, title and interest over the suit schedule property falsely claims as his property. Therefore, the trial Court as well as the 1st Appellate Court have rightly appreciated the evidence and dismissed the suit. There is no substantial question of law involved to admit this appeal. Hence, prays for dismissal of the appeal.
11. Upon hearing the learned counsel for both the parties and on perusal of the record, it is not in dispute that the defendant had purchased the property, which is situated on the northern side of the property of the plaintiff. The defendant purchased the property on 29.08.1969. It is also not in dispute that the plaintiff had purchased suit ‘A’ schedule property on 02.01.1960 and as per the boundaries in the said sale deed, the East side is shown as manure pits; West side is shown as new extension, which is not in dispute and that in the South side it is shown as property of Kazir Sabi, Sab Jan Sabi who are the predecessors are in title of the property of the defendant; North side is shown as gate and space of property purchased by the plaintiff. The said recitals does not reflect the open space available adjacent to the plaintiff ‘A’ portion of property on the northern side. Admittedly, ‘A’ portion of property was purchased by the plaintiff and not the open space, which was situated on the northern side of ‘A’ portion of property that too after the conservancy line. The conservancy line clearly demarcated the property of the plaintiff on ‘A’ portion of property. Absolutely, there is no document except the tax assessment extract to show that the plaintiff had title over the suit schedule property and on the other hand, the defendant had title over the property, which was purchased on 29.08.1969. The boundaries also clearly demarcated, the conservancy line situated between both the property of defendant and plaintiff. Such being the case, the contention of the plaintiff that open space is also purchased by his father from the vendor cannot be acceptable and no documents are produced to prove the same.
12. On the other hand, the boundaries of the plaintiff’s property on the South side the property of Kazir Sabi, Sab Jan Sabi is situated. Therefore, by considering the same, trial Court has rightly appreciated the evidence and has held that the plaintiff is not in peaceful possession and enjoyment of the suit schedule property. The 1st Appellate Court re- appreciated the evidence on record and dismissed the suit of the plaintiff and considering the concurrent findings of both the courts below, I am of the opinion that, absolutely, there is no substantial question of law involved to admit this appeal. The appeal is devoid of merit and hence, liable to be dismissed.
Accordingly, the appeal is dismissed.
In view of dismissal of the appeal, I.A.No.1/2012 does not survive for consideration and is also dismissed.
SD/- JUDGE PB