IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF FEBRUARY, 2017 BEFORE THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA R.S.A.NO.2706 OF 2005 (DEC/INJ) C/W R.S.A.NO.2705 OF 2005 (DEC/INJ) BETWEEN:
Sri.Channaiah S/o Yalakkaiah Dead by his LR’s:
Sri.Yalakkaiah, 50 years, S/o Late Channaiah R/O Nethenahalli Village, Kasaba Hobli, Magadi Taluk, common Bangalore Rural District – 562 120. …Appellant (By Sri.K.V.Narasimhan, Advocate) AND:
1. Sri.Giriyappa S/o Late Thagachakuppe Thimmaiah, R/o Nethenahalli Village, Kasaba Hobli, Magadi Taluk, Bangalore Rural District – 562120.
2. Sakamma dead by LR’s a) Sri.Venkatesh, 45 years, S/o Late Giriyappa R/o Nethenahalli Village, Kasaba Hobli, Magadi Taluk, Bangalore Rural District – 562 120.
b) Sri.Gangathimmaiah, 41 years, S/o Late Giriyappa R/o Nethenahalli Village, Kasaba Hobli, Magadi Taluk, Bangalore Rural District – 562 120.
c) Smt.Jayamma, 48 years W/o Kalaiah R/o Bennappanapalya, Thippasandra Hobli, Magadi Taluk, Ramanagara District – 560 032.
d) Smt.Gangamma, 46 years W/o Venkateshappa R/at Seethappa Layout, R.T.Nagar, Bangalore – 560 032.
3. Smt.Jayamma, 56 years W/o Anjanappa D/o Late Channaiah R/o Narasimha Circle, Magadi Town, Magadi, Bangalore Rural District – 562 120.
4. Sri.N.V.Govindaraju, 40 years, S/o Late N.C.Venkatesh R/o No.78, Chowdeshwari Nilaya, 5th Main Road, Buvaneshwarinagar, T.Dasarahalli, Bangalore – 562 157.
5. N.C.Venkatesh dead by LR’s a) Smt.Hanumakka, 55 years W/o Late N.C. Venkatesh R/o No.174, 5th Main, 3rd Cross, Buvaneshwarinagar, T.Dasarahalli, Bangalore – 562 157.
b) Sri.Venkataramana, 30 years S/o Late N.C.Venkatesh R/o No.174, 5th Main, 3rd Cross, Buvaneshwarinagar, T.Dasarahalli, Bangalore – 562 157.
c) Thimmalakshmi, 26 years D/o Late N.C.Venkatesh R/o No.174, 5th Main, 3rd Cross, Buvaneshwarinagar, T.Dasarahalli, Bangalore – 562 157 d) Sri.Srinivasa, 24 years S/o Late N.C.Venkatesh R/o No.174, 5th Main, 3rd Cross, Buvaneshwarinagar, T.Dasarahalli, common Bangalore – 562 157. …Respondents (Sri.B.Papegowda and Sri.M.Gunashekar, Advocate for proposed R-2 (A, B & D) & R-3; Sri.Sridhar K.L, Advocate for R-4; Sri.T.Seshagiri Rao, Advocate for R-5;
R – 1 served and unrepresented) RSA 2706/2005 is filed under Section 100, CPC against the judgment and decree dated 30.08.2005 passed in R.A.No.46/2002 before the Principal Civil Judge (Senior Division), Ramanagaram, dismissing the appeal and confirming the judgment and decree dated 30.07.2002 passed in O.S.19/1979 on the file of the Civil Judge (Junior Division) & J.M.F.C, Magadi.
RSA 2705/2005 is filed under section 100 CPC against the judgment and decree dated 30.08.2005 passed in R.A.No.49/2002 before the Principal Civil Judge (Senior Division), Ramanagaram, partly allowing the appeal and partly modifying their judgment and decree dated 30.07.2002 passed in O.S.19/1979 on the file of the Civil Judge (Junior Division) & J.M.F.C, Magadi.
These appeals coming on for final hearing this day, the Court delivered the following:
J U D G M E N T Since these two appeals arise out of the common judgment and decree passed by the Court of the Principal Civil Judge (Senior Division) (first appellate Court), at Ramanagaram in R.A.No.46/2002 and R.A.No.49/2002 dated 30.08.2005, they have been clubbed together and heard together and disposed of by this common judgment.
2. R.S.A.No.2706/2005 is filed by one of the legal representatives of the original plaintiff, Chennaiah, assailing the dismissal of R.A.No.46/2002 by the first appellate Court, while RSA No.2705/2005 arises out of R.A.No.49/2002 which appeal was filed by respondent Nos.1 and defendant No.2 in the suit and which has been allowed in part.
3. For the sake of convenience, the parties herein shall be referred to, in terms of their status before the trial Court.
4. The original plaintiff Chennaiah, since deceased and represented by his legal representatives, filed O.S.No.19/1979 on the file of the Civil Judge (Jr.Dvn) and JMFC, Magadi, seeking the relief of declaration of title, for permanent injunction and recovery of possession of ‘B’ schedule property along with the value of crops amounting to Rs.1,200/- and for costs.
5. In the suit, it is the case of the plaintiff that he purchased the suit schedule property under a registered sale deed dated 06.03.1960 from one G.Seetharamaiah and his sons. Ever since then, he is the owner and in possession and enjoyment of the suit schedule property. The major portion of the schedule property is wet land and on the west of the wet land there is a small portion of dry land and a ‘ halla’. The said dry land and ‘halla’ are included in the suit survey number belonging to the plaintiff. In the said dry portion, there are eight pongemia trees, six ala trees (banyan trees) and a soapnut bush and a small portion of dry land is used for raising dry crops such as ragi, avare, jola etc. The 1st defendant Giriyappa, was a co-defendant in O.S.No.227/1963 which was a suit filed against plaintiff and him and that suit ended in a compromise but the plaintiff was not a party to the compromise or settlement. The sketch was also attached to the compromise decree in which plaintiff’s dry portion of land is clearly mentioned as slopy land. According to the petitioner from the date of compromise, defendant has ill-will against the plaintiff. The 2nd defendant is the wife of 1st defendant, both defendants attempted to cut and remove ragi crop, but the plaintiff restrained and resisted them. On 22.11.1978, both the defendants attempted to harvest the soapnut bush, the plaintiff resisted them with great difficulty with the help of the local police; that the defendants are powerful people and they are bent upon to destroy the crops and the soapnut bush. During the pendency of the suit, the plaintiff got amended para No.3(a) wherein he contended that after the dismissal of the above suit for default on 07.06.1980, taking advantage of the plaintiff’s infirmity, the defendants forcibly occupied the dry land in suit survey number in the middle of July 1980 which is described as ‘B’ schedule to the plaint; that the defendant is illegally harvesting the pongamia crops and soapnut yield, that the plaintiff is entitled for Rs.1,200/- as damages on this account and also the declaration of the ‘B’ schedule property. Contending that the original cause of action arose on 22.11.1978 when the defendant tried to destroy the crops and soapnut bush, the plaintiff sought the aforesaid reliefs.
6. In response to the suit summons, both defendants have filed their joint written statement, contending that they are not aware that the plaintiff has purchased the suit schedule property from one G.Seetharamaiah and his sons. The plaintiff is not the owner and in possession of the suit land which comprises of wet land and a portion of dry land and halla, and there are no crops standing in the said survey number.
7. The 1st defendant was the co-defendant in O.S.No.227/1963 and that suit was compromised. The suit survey number was not the subject matter of the compromise in that suit. The suit was in respect of Sy.No.8/1 and 8/2; that the defendants do not have any ill-will against the plaintiff and that they have not tried to cut and remove the crops in the suit schedule property; that the plaintiffs have no cause of action against him, that the plaintiff was never in possession of the suit schedule property, that the defendants have not encroached any portion in the suit schedule property, that the suit has been filed only to harass the defendants, it is false and vexatious and defendants prayed that the suit be dismissed.
8. In the additional written statement, the defendants denied the contents of para No.3(a) of the plaint and contended that the plaintiff is not entitled to declaration and possession of alleged ‘B’ schedule properties, they reiterate their prayer for dismissal of the suit.
9. On the basis of the aforesaid pleadings, the trial Court framed the following issues and additional issues:
ISSUES i) Whether the plaintiff proves that he is in lawful possession of the suit schedule land?
ii) Whether the plaintiff proves that the defendants interfere with his peaceful possession and enjoyment with respect to suit schedule land?
iii) What decree or order?
Additional issues dated 31.5.1989 i) Whether the plaintiff proved that he is the absolute owner of ‘A’ and ‘B’ schedule property?
1) Whether the plaintiff is entitled for possession of ‘B’ schedule property?
2) Whether the plaintiff is entitled for Rs.1,200/- towards the value of the crop?
3) Whether the defendants prove that suit schedule property is a service Inam Land?
10. In order to establish his case, the plaintiff examined himself as PW-1 and two other witnesses as PW-2 and PW-3 respectively, and got marked Ex.P1 to Ex.P7. The defendant No.1 examined himself as DW-1 and another witness was examined as DW-2. Defendant produced three documents which were marked as D-1 to D-3. On the basis of the said evidence, the trial Court answered issue Nos.1 and 2 partly in the negative, additional issues No.1 in the affirmative and additional issue Nos.2 to 4 in the negative. Consequently, the trial Court decreed the suit in part by declaring the plaintiff to be the owner of ‘A’ and ‘B’ schedule properties and granted consequential relief of permanent injunction except to an extent of 0.28 guntas. Consequently, plaintiff’s right to a decree for Rs.1,200/- for damages was also rejected.
11. Being aggrieved by the decree of the trial Court dated 30.07.2002, both the plaintiffs as well as defendants preferred appeals namely, R.A.No.46/2002 and R.A.No.49/2002 respectively before the first appellate Court which, on hearing the learned counsel for the parties, formulated the following points for its consideration:
i) Whether the plaintiff is the owner in possession of the suit ‘A’ schedule property as on the date of the suit as alleged?
ii) Whether the defendants took possession of the suit ‘B’ schedule property forcibly after filing of the suit as alleged?
iii) Whether there is interference by the defendants as alleged?
iv) Whether the appeals are fit to be allowed?
v) What Order or Decree?
It answered point No.1 partly in the affirmative, point Nos.2 and 3 in the negative and dismissed the appeal filed by the plaintiff namely, R.A.No.46/2002 and allowed in part R.A.No.49/2002. The judgment and decree passed by the trial Court was modified and it is held that the plaintiff is the owner in possession of 2 acres 28 guntas of land consisting of wet and kharab portion with its western boundary as defendant’s land. Rest of the judgment was confirmed. Being aggrieved by the judgment and decree of the first appellate Court passed in R.A.No.46/2002 and R.A.No.49/2002, the plaintiff has preferred these second appeals. These second appeals have been admitted on 17.04.2012 by raising common substantial question of law which read as under:
i) Whether the Courts below are justified in rejecting the prayer for possession of ‘B’ schedule property despite the affirmative finding recorded on Additional issue No.1?
ii) Whether the appreciation of evidence by the Courts below is perverse and illegal?
12. I have heard the learned counsel for the appellant and learned counsel for respondent No.2. The other respondents are served and unrepresented. I have perused the material on record and also the lower Court records.
13. It is contended on behalf of the appellant that both the Courts below have granted a declaration in favour of the appellant to the effect that he is the owner of ‘A’ and ‘B’ schedule properties in survey No.25 of Uduvegere Village, Kasaba Hobli, Magadi Taluk, but the trial Court granted the relief of permanent injunction also, except to an extent of 0.28 guntas by holding that the defendant in the suit were in possession of that extent by ignoring the fact that the appellant/plaintiff has sought alternative relief of possession in respect of that extent of land also. Therefore, the plaintiff was constrained to file R.A.No.46/2002 before the first appellate Court and R.A.No.49/2002 was filed by the defendants by being aggrieved by the judgment and decree of the trial Court. The first appellate Court, while considering both the appeals, has dismissed the appeal filed by the plaintiff thereby confirming that the extent of land which is in the illegal possession of the defendants would not be handed over to the plaintiff, while at the same time, it is held that the plaintiff is the owner in possession of 2 acres 28 guntas of land in survey No.25. He further contended that the first appellate Court was not right in holding that on the western boundary of the plaintiffs land was the defendants’ land. There is confusion in the findings by the first appellate Court. Therefore, this Court admitted the appeal by raising the aforesaid substantial question of law.
14. Learned counsel further contended that the substantial question of law would have to be answered in favour of the appellant by holding that the appellant is entitled to the possession of ‘B’ schedule property which is on the eastern portion of the suit schedule property and this finding would also be in consonance with what has been stated by the appellant herein in O.S.No.227/1963. He contended that the said suit was filed by one Yalakki Puttaiah against the plaintiff and defendant’s father as well as others. That suit ended in a compromise. As against the plaintiff who was the 5th defendant in the said suit, evidence was let in and plaint was dismissed. The findings and evidence recorded in that suit would support the case of the appellants herein and having regard to the judgment passed in O.S.No.227/1963 which was disposed of on 21.03.1967(Ex.D-3), the substantial question of law would have to be answered in favour of the appellant. Moreover, the learned counsel for the appellant relied upon Ex.P7 to contend that the location of the defendants land is clearly mentioned in the sketch and in between the plaintiff and defendants land, there is an open area or oni. Therefore, the defendants land is not immediately after plaintiff’s land. Hence, the defendants could not have attempted to encroach upon the suit schedule land which belongs to the appellant.
15. Per contra, learned counsel for the defendant No.2 very fairly submitted that the defendants are not concerned with survey No.25 at all, when both the Courts have declared that the plaintiff/appellant is the owner of the said extent of land. He further drew my attention to the clear admission made by the appellant in O.S.No.227/1963 (Ex.D3) to contend that the appellant can have no right, title or interest in respect of the oni or the land which lies to the western side of the oni belonging to the defendants. At the same time, he also contended that the defendants have no right, title or interest in respect of the oni and to any land which is on the eastern portion of the oni. He contended that when such being the position, the plaintiff could not have sought the relief of possession as such; that the defendants have not been in possession to the said extent of land. He therefore, submitted that the judgment and decree passed by the Courts below would not have called for interference as the parties are clear about their right, title or interest in respect of their respective lands and further, the same becomes very clear from the sketch which has been marked as Ex.P7 and also the agreement entered into pursuant to the compromise in O.S.No.227/1963. Though the appellant is not a party to the compromise, nevertheless the compromise would clearly declare the entitlement of the defendants in respect of the land which is to the western portion of the oni is concerned and hence, the appellant here in filed a vexatious and frivolous suit against the defendant.
16. Having heard the learned counsel for the parties, it is noted that the controversy in these appeals are in a very narrow compass. Both the Courts have declared that the plaintiff/appellant is the owner of the land in respect of 2.28 guntas in survey No.25. There has been no appeal filed by the defendants with regard to that aspect of the matter. The only question is as to whether the defendants could have made a claim in respect of survey No.25 when the case of the plaintiff is that he is the owner in possession of that survey No.25 pursuant to the registered sale deed being executed in his favour by one G.Seetharamaiah and his sons on 06.03.1960. Obviously the defendants did not claim any right, title or interest in respect of survey No.25. Their case is that they are the owners in possession of the land on the western side of the plaintiff’s land but it is their further case that in between the plaintiffs and defendants land, there is a oni or open space which petitioner has also admitted. A perusal of the judgment passed in O.S.No.227/1963 would make the position clear. That judgment was marked as Ex.D-3 by the defendants before the trial Court. That case was filed by one Yalakki Puttaiah as against 1st defendant’s father and also against the plaintiff herein who was defendant No.5 in that suit. That suit was in respect of land bearing survey No.8/1, measuring 5 acres 14 guntas and bounded on the east by the 5th defendant’s land i.e., the land belonging to the appellant herein and on the north, by land bearing survey No.8/2 belonging to defendant Nos.1 to 4 and others i.e., defendants herein. On the eastern side of the oni is stated to be the private land of G.Seetharamaiah. The oni was demarcating G.Seetharamaiah’s land from others land. It was held that neither the plaintiff (in that suit), nor his sons have any right on the land which is lying to the eastern side of the oni. That the defendant No.5 (appellant herein) purchased the suit schedule land from G.Seetharamaiah under a registered sale deed on 06.03.1960 which clearly indicated that the 5th defendant’s land was bound by the oni on the west and from the date of sale, he has been in possession and enjoyment.
17. In support of his case the 5th defendant (in that suit) i.e., (the appellant herein) examined one Giriyappa who had deposed as DW-1 who had stated that he is the attesting witness to the sale deed by G.Seetharamaiah in favour of the 5th defendant (appellant herein) as per Ex.D-3. According to him, to the west of the land there is a oni and also Kere Hanumaiah’s land, who is none other than the 1st defendant in that suit; that to the east of the oni, there is wet land which is in possession of the 5th defendant (i.e. appellant herein); to the east of the plaintiff’s land (in that suit) there is a land of 1st defendant (1st defendant and others) in that suit and further, there is a oni and 5th defendant’s land (appellant’s land); he, in fact, has categorically denied there was no oni to the west of the 5th defendants land (appellant’s land).
18. The fifth defendant in O.S.No.227/1963 i.e., the appellant herein deposed as DW-2 (in that suit). He has admitted that there is a oni to the west of his land and to the west of the oni, there is the land of 1st defendant i.e., the father of the defendant No.1 herein and to the west of the 1st defendant’s land there is the land of the plaintiff (in that suit). As per Ex.D-3 he was in possession of his land and before him his vendor was in possession of that land. He produced the Gram Nakash Ex.D-4 and also pahani copies as Ex.D-5 series. He has also admitted that he has purchased the land in survey No.25 of Uduvegere village and that he has not purchased any land in survey No.8/1. He admitted that there is no oni to the east of his land.
19. O.S.No.227/1963 was compromised between plaintiff and defendant Nos.1 to 4. But as far as the 5th defendant (appellant herein) is concerned, the trial Court passed the judgment on merits. Further, in the said judgment, the trial Court has referred to the sketch produced by the parties at the time of compromise wherein it is noted that to the east of the plaintiff’s land (in that suit), there is the land of the 5th defendant (appellant herein) and that land is demarcated by two lines which the 5th defendant (appellant herein) contends to be the oni; that the kharab land of 1 acres 36 guntas in survey No.8/1 is to the eastern side of the oni and it is not included in the plaintiff’s land. While stating so, the trial Court in O.S.No.227/1963 held that the plaintiff in that suit could not succeed against 5th defendant (appellant herein) and had not claimed any right in survey No.8/1. He was claiming his right under Ex.D-3 in survey No.25 which he contends, includes the iluveri portion in the land. Accordingly, the trial Court dismissed O.S.No.227/1963.
20. A detailed reference to the judgment passed in the aforesaid suit and keeping in mind the Ex.P7-sketch which has been marked in the instant case, would clearly indicate that the plaintiff/appellant is the owner of 2 acres 28 guntas of land which is situated on the eastern portion of the oni. Consequently, the defendants herein have no right, title or interest in respect of the land which is on the eastern portion of the oni. At the same time, it is also noted from Ex.P7 that the defendants land are on the western portion of the oni. In other words, the oni or the open space does not belong either to the plaintiff or the defendants herein and it is used as a open space for ingress and egress and therefore should remain as such. In other words, neither the plaintiff can encroach upon the oni or on the western portion of the oni into the defendants’ land nor can they encroach on the eastern portion which is the plaintiff’s land which is in survey No.25.
21. The trial Court and the first appellate Court therefore erred in not appreciating the fact that plaintiff/appellant had contended that there was an encroachment by the defendants on survey No.25 which belongs to him, which is on the eastern portion of the oni. In view of the clear admission made by the appellant herein in O.S.No.227/1963, it is held that the appellant herein has no right, title or interest in respect of the western portion of the oni and the western portion of the oni in other words, the land to the west of the oni belongs to the defendants. It is in that context that the plaintiff/appellant initially sought for relief of injunction; that he lost possession of portion of survey No.25 when the suit was dismissed for default and subsequently after amendment of prayer appellant sought for possession and therefore he prays that the judgment and decree of the Court below requires modification by holding that the plaintiff/appellant is the owner in possession of 2.28 guntas is survey No.25 which is on the eastern portion of the oni and entitled to have possession of the entire extent of land. Hence, the substantial question of law raised by this Court would have to be answered in favour of the appellant by holding that the defendants have no right, title or interest in respect of survey No.25 of the suit schedule property and therefore if they are in illegal possession of any portion of survey No.25, the same be handed over to the possession of the appellant/plaintiff.
22. In view of the answer given to the substantial question of law No.1, it is held that the appreciation of the evidence and also findings given by the trial Court as well as the first appellate Court, with regard to the consequential relief of possession sought by the plaintiff/appellant, is not in accordance with law, as it is perverse and illegal. Hence, substantial question of law No.2 is answered in favour of the appellant herein. In so far as the findings and conclusions arrived at by the Courts below with regard to the non-grant of consequential relief to the plaintiff/appellant is concerned.
23. In the result the *appeals are allowed in the aforesaid terms. Parties are directed to bear their respective costs.
Sd/- JUDGE AG/DN *Corrected V.C.O. dated 31/08/2017