IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.493/2011 BETWEEN:
SMT SHIVA LEELAMMA W/O SHIVABASAVANNA AGED ABOUT 69 YEARS, R/A BEHIND HOSPITAL, MANJUNATHA RAJATHA NILAYA, K.R.NAGAR, MYSORE DISTRICT ..APPELLANT (BY SRI D L JAGADEESH, SENIOR COUNSEL FOR Ms.RAKSHITHA D.J., ADVOCATE) AND:
SMT LEELABAI @ NEELAMMA W/O NANJAPPA AGED ABOUT 71 YEARS, R/A D.NO.5/870, MADHUVANAHALLI ROAD, 5TH BLOCK, K.R.NAGARA, MYSORE DISTRICT-571602 ..RESPONDENT (BY SRI HARSHA, ADVOCATE FOR SRI C H JADHAV, ADVOCATE) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED: 04.01.2011 PASSED IN R.A.NO.429/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, K.R.NAGAR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED:24.06.2005 PASSED IN O.S.NO.4/96 ON THE FILE OF THE CIVIL JUDGE (JR.DN) AND JMFC, K.R.NAGAR.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The matter is set down for admission. However, with the consent of the learned counsel appearing for both sides, it is taken up for final disposal.
2. In order to avoid confusion and overlapping, parties are referred to in accordance with the rankings held by them in trial court.
3. Suit for declaration of title and permanent injunction filed by one Leelabai @ Neelamma numbered as O.S.No.4/1996 on the file of learned Civil Judge (Jr.Dn) and JMFC at K.R.Nagar wherein it is claimed that property measuring 45ft x 30ft (1¼ guntas) carved out of 71/3A situated at Kantenahally Elle Village, K.R.Nagar Taluk being bounded on the East by Road, West by Vacant space and the house belonging to defendant constructed upon 7¾ guntas of land in Sy.No.71/3A, on the South by drainage pipe and house of Mallikarjuna Naika and on the North by Kengasiddegowda’s house and Road. Source of title claimed by the plaintiff is that she purchased the same under a registered sale deed dated 14.10.1976. It is further stated in the plaint that originally land bearing Sy.No.71/3A was measuring 9 guntas of land out of the same 7¾ guntas of land was purchased by defendant and remaining 1¼ guntas of land was purchased by plaintiff. The bone of contention between the parties are adjudicated already and upon dismissal of RSA No.455/1993.
4. Learned counsel for respondent- Sri.Harsha would submit that said RSA was preferred by defendant in this case. It is stated in the earlier round of litigation the defendant had filed O.S.90/85 on the file of learned Munsiff at K.R.Nagar that came to be decreed. The respondent in this case preferred appeal before the Civil Judge in R.A.61/90 that came to be dismissed after contest. It was thereafter RSA No.455/93 was preferred challenging the said order. However, RSA No.455/93 came to be dismissed.
5. Defendant filed written statement and denied the plaint averments wherein she claimed that the suit is already effectively and completely adjudicated and the points of controversy in the present suit is already adjudicated and that the suit is not maintainable under Section 11 of CPC governing the doctrine of resjudicata.
6. Learned Munsiff in O.S.4/96 was accommodated with the oral evidence of PW-1-plaintiff –Leelabai @ Neelamma and documentary evidence Exhibits P-1 to P-4 and the oral evidence of Shivaleelamma- defendant as DW-1, documentary evidence Exhibits D-
1 to D-2. It adjudicated the matter considering the issues relating to title, interference and resjudicata. However, there are eight issues and all of them were not necessary. In the end the learned trial Judge found there was no case in favour of the plaintiff and dismissed the suit on 24.06.2005. Claiming to be aggrieved by this Judgment plaintiff preferred appeal in R.A.No.429/2007 and the said appeal came to be allowed and operative portion of the order is as under:
ORDER The Regular Appeal preferred by the Appellant/plaintiff is allowed.
The Judgment and decree passed by the learned Civil Judge(Jr.Dn) and JMFC, K.R.Nagar in O.S.4/96, dated 24.06.2005 is hereby set aside.
The suit of the plaintiff is decreed.
It is declared that the plaintiff is the absolute owner in possession of suit schedule property.
The defendant or her agents are hereby permanently restrained from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property.
The parties to bear their own costs.
7. It is the said Judgment and order that is being challenged in the present appeal filed by defendant raising the following substantial questions of law:
“(i) Whether the First Appellate Court is justified in decreeing the suit for declaration, that too when the boundaries mentioned in the sale deed Exhibit P-2, does not tally with the boundaries mentioned in the plaint schedule?
(ii) Whether the First Appellate Court is justified in decreeing the suit, thereby declaring that the respondent-plaintiff is the owner of the schedule property, that too in the absence of producing the admissible and acceptable title deeds by the plaintiff?
(iii) Whether the First Appellate Court is justified in decreeing the suit, though the suit is hit by principles of Res-judicata?
(iv) Whether the First Appellate Court is justified in holding that the appellant- defendant has not produced the plaint, written statement and issues framed in O.S.No.90/1985, so as to decide the matter on the point of Res-judicata, though the appellant rightly produced the Judgment in R.S.A.No.455/1993 vide Exhibit D-2, which Judgment clearly indicates that the property involved in the earlier suit and the property involved in the present suit in Survey No.71/3A of Kantenahalli Village, K.R.Nagar?
5. Whether the First Appellate Court is justified in decreeing the suit, though the dispute between the parties to the suit has already been adjudicated in O.S.No.90/1985, which decree has been confirmed by this Hon’ble Court in R.S.A.No.455/1993 and the same is binding on the parties?
6. Whether the First Appellate Court is justified in holding that the suit of the respondent-plaintiff is not hit by principles of Res-Judicata, though the parties to the previous suit are one and the same as well as property involved in the both the suits are out of Survey No.71/3A and the findings recorded in the previous suit are binding on both the parties?”
8. The learned Counsel for appellant Sri D.L. Jagadeesh submits that the respondent-plaintiff has already lost right connecting the subject matter both in the original side in O.S.No.90/1985, in appellate side in R.A.No.61/1990 and in RSA No.455/1993. The only difference in the previous litigation is that this defendant was the plaintiff and plaintiff was the defendant in the earlier suit and the property which they fought for claiming to be their ownership and possession is property measuring 7 ¾ guntas and 1¼ guntas of the suit schedule property.
9. Learned Counsel for respondent Sri Harsha would submit that viewed from any angle, the plaintiff in the suit has not committed breach of rights and that what is claimed by the plaintiff is vacant site measuring 45’ x 30’. The defendant even in the earlier suit has admitted the property of the plaintiff. The nucleus of bone of contentions between the parties is to the effect that both of them admit that their properties are adjacent. In so far as the extent of the property, the plaintiff in this case claims it as 1¼ guntas and the defendant as 7¾ guntas. The appellant in this case is the defendant. Regard being had to the fact that the total extent of the land in Sy.No.71/3A is said to be 9 guntas. When the claim becomes in terms of square feet by the plaintiff as 45’ x 30’, the total extent is 1350 sq.ft. Regard being had to the fact that the property that was purchased by the plaintiff under Ex.P.2 – the Sale Deed, the extent is mentioned as 1¼ guntas. In so far as tallying of the measurement in terms of guntas and square feet, in many cases they do not tally with the arithmetic accuracy. More particularly, when the properties/lands are divided and fragmented such as totally 9 guntas of property, when becoming properties of the plaintiff and defendant to an extent of 1¼ and 7¾ guntas respectively and both are said to have been used for residential purposes, in the circumstances, there will be variation in the measurement but there cannot be increase of measurement of one to the prejudice of another.
10. It is also necessary to make a cursory glance regarding the claim of the property between the plaintiff and defendant so far.
i) Total extent of land available at Kantenahally Elle Village, K.R. Nagar Taluk is 9 guntas in Sy.No.71/3A.
ii) The defendant purchased 7 ¾ guntas. The plaintiff purchased remaining 1 ¼ guntas. For the first time, the measurement is mentioned as 45’ x 30’ in the plaint schedule property before the learned Munsiff in O.S.No.4/1996. It is quoted as “Site measuring 45’x30’ (1 ¼ guntas) carved out of Survey No.71/3A situated at Kantenahally Elle Village at K.R. Nagar Taluk…”. It is necessary to mention that normally the measurement of an immoveable property do not sink with computer precision with measurement in terms of guntas and also when total property is bifurcated as in this present case, other things being equal, one gunta covers 1089 sq. ft. This split dimension need not be a common one. The product must be 1089 sq. ft.
11. However, the total measurement of 1¼ guntas is considered, it would come up to 1361.25 sq. ft. Incidentally the Sale Deed – Ex.P.2, which is filed by the plaintiff is executed in her favour alienating an extent of 1¼ guntas. However, the material documents like demand register extract and assessment extract are not forthcoming. Still the fact remains that each party do not deny the claim of the other party in terms of guntas but the difference has come up possibly because of the representation of the property in terms of the square feet by the plaintiff in this case.
12. It is in this connection, the earlier round of litigation would not tally in all respects or cannot be stated to be congruent with the present term of litigation. What the plaintiff has lost sight of in this round of litigation is when total land is bifurcated and the extent that was under the ownership and possession of one person is divided into two, further, if they have used for residential purpose, it is bound to be variation in the measurement. When the plaintiff quotes the measurement as 45 x 30 sq. ft., regard being had to the fact that “1¼ guntas” is converted into square feet, it becomes 1361.25 sq.ft., but in terms of square feet, the plaintiff presents it as 45 x 30 i.e., 1350 sq. ft. Thus there is no conciliation between the measurement claimed by the plaintiff in terms of square feet and guntas. It is also incumbent on the part of the plaintiff to have stated the circumstances to conclude the extent of property to the measurement stated in the plaint as 45 x 30 sq. ft and also that her property of 1¼ guntas remained in tact.
13. Thus the identity of the property does not appear between the measurement in square feet and also in guntas. In the circumstances, the First Appellate Court has allowed the appeal.
14. Thus the appellate Court has gone to the extent of decreeing the suit of the plaintiff declaring that “the plaintiff is the absolute owner of the suit schedule property”.
15. In the absence of materials and circumstances regarding the actual measurements as stated in the plaint in the form of 45 x 30 sq. ft., it cannot be accepted that the assumption of the area of the land as 45 x 30 sq. ft. is correct. Further no reliable record is shown as to when the property was shown in terms of measurement in square feet. As there is no apprehensive and substantive tallying of the measurement, the First Appellate Court invariably committed a fault in decreeing the suit in this present form with reference to plaint schedule. Thus in the absence of materials showing demarcation with precise measurement and identification of the properties of the plaintiff and defendant, the suit should have been dismissed. As it is not done, the judgment and decree passed by the First Appellate Court is liable to be set aside and the same is done.
16. However, the ascertainment of rights with precise measurements and placing the relevant materials are kept open, if the parties choose to do so.
Accordingly, Regular Second Appeal is allowed. Judgment and Decree dated 04.01.2011 in R.A.No.429/2007 passed by the Senior Civil Judge and JMFC, K.R.Nagar, is set aside and consequently Judgment and decree dated 24.06.2005 in O.S.No.4/1996 passed by the learned Civil Judge (Jr.Dn) and JMFC, K.R.Nagar is confirmed.
Sd/- JUDGE SBN/Nsu/-