IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO R.S.A.No.779/2008 BETWEEN:
SRI G P BASAVARAJAPPA S/O GOWDARA PUTTAPPA AGED ABOUT 47 YEARS OCC:TEACHER BY PROFESSION R/OF SANTHEBENNUR CHENNAGIRI TALUK DAVANAGERE DISTRICT-577501 ..APPELLANT (BY SRI B M SIDDAPPA, ADVOCATE) AND:
SRI PUJARI SIDDAPPA S/O CHIKKAMARYAPPA AGED ABOUT 77 YEARS R/OF SANTHEBENNUR CHENNAGIRI TALUK DAVANAGERE DISTRICT-575501 ..RESPONDENT (BY SRI G K BHAT, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED:15.11.2007 PASSED IN R.A.NO.45/2006 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE (SR.DN), DAVANGERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:12.01.2006 PASSED IN O.S.NO.366/2001 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (JR.DN), CHANNAGIRI.
THIS RSA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is directed against the Judgment and decree dated 15.11.2007 passed in R.A.No.45/2006 by the I Additional Civil Judge, Senior Division, Davangere, wherein Judgment and decree dated 12.01.2006 passed in O.S.No.366/2001 by the Additional Civil Judge, Junior Division, Channagiri, came to be confirmed by dismissing the appeal.
2. In order to avoid overlapping and confusion, the parties are referred with reference to their ranks and status as held by them before the trial Court.
3. The suit for permanent injunction filed by the plaintiff in O.S.No.366/2001 came to be dismissed on 12.01.2006 against which the plaintiff preferred appeal in R.A.No.45/2006 which also came to be dismissed on 15.11.2007.
4. It is the claim of the plaintiff that the suit schedule property stated to be land in Sy.No.6/3 of Santhebennur Village measuring 21 guntas including karab of one gunta along with 8 tamarind trees, one teak tree and one Bagi tree standing in the said land and bounded on:
East by : Bada Road West by : Land of Hanumanthappa North by : remaining portion of land bearing Sy.No.6/2b South by : land of Mariyappara Revanasiddappa 5. It is the case of the plaintiff that originally land in Sy.No.6/2P of Santhebennur Village measuring 1 acre 10 guntas including 10 guntas of karab, belonged to Bhagyamma, W/o Pakeerappa and Kotrabasappa, S/o Pakeerappa. Out of said survey number plaintiff purchased 20 guntas of land which is the suit schedule property under the registered sale deed dated 08.09.1997 and has been in possession and enjoyment of the property as regards in his name besides mutation bearing No.45/97-98. Further claim of the plaintiff is that defendant is the owner of neighbouring property to the schedule property and even though he has no right, started interfering during December, 2001 that has driven the plaintiff to file the present suit.
6. Defendant contested the matter denying the averments made by the plaintiff in addition to that took over the contention that description of the schedule property by plaintiff is wrong and further substance and denial is the transaction which has happened before speak by themselves that 30 guntas of land was not available in the schedule property under said survey number. Further it is necessary to mention that the property which the plaintiff purchased under the registered sale deed Ex.P-1 is from Sy.No.6/2P. However the new number after phodi proceedings is Sy.No.6/3. More over there is no dispute between the parties in connection with the present survey number.
7. Trial court was accommodated with oral evidence of PW-1 to PW-4 and documentary evidence of Exhibits P-1 to 11 on behalf of plaintiff and DW-1 and DW-2 and Exhibits D-1 to D-21 on behalf of defendant. After adjudication, trial court dismissed the suit with cost.
8. This court on admission framed the following substantial questions of law on 24.04.2009.
(1) Whether the Courts below have committed an error in the manner of appreciation of evidence, more particularly, in the light of the documents at Exs.P1 to P4, P10 and P11?
(2) Whether the Courts below have committed an error in the nature of consideration of the total extent of land available and the boundaries indicated thereof and as such, whether the manner of appreciation of evidence would admit of perversity?”
9. The moot question of law would be as to whether a person having acquired two items of land in different survey number can contend that he has not sold one of the item, that too when he has sold the extent more than one item of land to extend into the next item also.
10. Learned counsel Sri B.M.Siddappa, appearing for plaintiff-appellant would submit that the dispute pertains to land bearing Sy.No.6/2. The original extent of said land is 5 acres 13 guntas. Learned counsel would further submit that whole dispute erupted because the extent of Sy.No.6/2 is mixed with Sy.No.6/1 and disposal of the original suit and regular appeal on the basis of common extent of land. Learned counsel would further submit that the purchase of land with reference to the suit schedule property is governed by a different sale deed and there is no common purchase. Learned counsel also would submit that both the trial court and first appellate court wrongly appreciated the evidence before them and has resulted is dismissal of original suit and regular appeal.
11. Learned counsel for defendant-respondent Sri G.K.Bhat would submit that it is apparent on the face of record or the material available on record that the schedule as claimed in the original suit regarding total extent of 20 guntas and boundaries mentioned therein are not available.
12. On the other hand the total property purchased by the plaintiff if deducted considering the extent of property sold at different intervals by the vendor leaves the entire material for simple calculation of arithmetic which exposes the misconception of the plaintiff.
13. Basically suit is filed for the relief of permanent injunction in respect of land bearing Sy.No.6/3 (earlier stated to be Sy.No.6/2) the extent of schedule property as claimed by the plaintiff is 21 guntas including 1 gunta of karab.
14. Plaintiff purchased 20 guntas of land in Sy.No.6/2P of Santhebennur out of total land of 1 acre and 10 guntas of karab being assessed at 45 paisa and bounded on:
East by : Bada Road West by : Land of Hanumanthappa North by: remaining portion of Sy.No.6/2 South by : land of Mariyappa Revannasiddappa 15. Before dwelling on the other areas of the matter, it is necessary to place the admitted facts. Extent of agricultural land in Sy.No.6/1 to an extent of 5 acres 20 guntas and Sy.No.6/2 to an extent of 5 acres 13 guntas are totally undisputed. It is stated that after the phodi proceedings schedule property is renumbered as Sy.No.6/2P and Sy.No.6/3. Both the properties belonged to Pakeerappa. It is submitted that the land in Sy.No.6/1 was purchased on 29.11.59 by Pakeerappa (details of purchase and the seller not available). However the land in Sy.No.6/2 to the extent of 5 guntas was purchased by Pakeerappa under registered sale deed Ex.P-8. Land in Sy.No.6/1 is abutting land in Sy.No.6/2.
16. Both the properties i.e., land bearing Sy.No.6/1 and Sy.No.6/2 came under the ownership of Pakeerappa. The said Pakeerappa is dead and his legal heirs in the circumstances are his wife and son. It is necessary to mention that the ownership of the said Pakeerappa retained their identities to the extent of 5 acres 20 guntas in Sy.No.6/1 and 5 acres 13 guntas in Sy.No.6/2P. Regard being had to the fact that they are situated adjacent to each other.
17. In this connection it is necessary to mention that sale deed executed from the side of Pakeerappa in respect of Sy.No.6/1 and Sy.No.6/2 are as under:
In respect of Sy.No.6/2 an extent of 30 guntas of land was sold to defendant’s mother. Similarly an extent of land of 15 guntas in Sy.No.6/1 was being sold to one Kodibeerappa and said document is marked as Ex.P-9. Thereafter an extent of land of 4 acres 28 guntas in Sy.No.6/1 was sold from the side of Pakeerappa to one Sharadamma and same is under registered sale deed dated 04.11.1974 Ex.D-21. All the properties were sold under the registered sale deeds and total extent of land sold from the side of Pakeerappa through registered sale deed is 5 acres 33 guntas considered at the rate of 40 guntas per acre i.e., 30 guntas, 15 guntas and 4 acres 28 guntas. Regard being had to the fact that extent of total land available in Sy.No.6/1 is 5 acres 20 guntas. Items sold from the side of Pakeerappa from Sy.No.6/2 are 4 acres 11 guntas in Sy.No.6/2 to one Sharadamma and 15 guntas to one Kodibeerappa.
Thus, the land sold from the side of Pakeerappa since Pakeerappa dead represented by his wife and son, insofar as Sy.No.6/1 is concerned 5 acres 20 guntas plus 4 acres 28 guntas to Sharadamma plus 15 guntas in favour of Kodibeerappa. Further insofar as land sold in Sy.No.6/2 is concerned 15 guntas of land to Kodibeerappa, 4 acres 11 guntas to Sharadamma, totaling to 4 acres 26 guntas.
18. It is necessary to calculate from the point of arithmetic. Before that total land under the ownership of Pakeerappa since dead by LRs are 5 acres 20 guntas plus 5 acres 13 guntas, the extent of land that comes upto 10 acres 33 guntas. The total land sold from the side of legal heirs of Pakeerappa in Sy.No.6/1 is 5 acres 33 guntas and Sy.No.6/2 is 4 acres 26 guntas, totally 10 acres 19 guntas. The total extent of land available under the ownership and possession of legal heirs of Pakeerappa would be 10 acres 33 guntas less land sold from Pakeerappa side is 10 acres 19 guntas.
19. Under these circumstances, it is necessary to make cursory glance to the extent of land shown under Ex.P-1 it is 21 guntas including karab of 1 gunta and Sy.No.6/2 renumbered as Sy.No.6/3 description as stated above. When such being the case it is necessary to make out that ownership of land comprising from survey numbers belonging to a common person whether clubbed or otherwise they do not swell in extent wise by nature of clubbing. In the circumstances the contention of the plaintiff before the court is that both the courts erred in appreciating evidence and also misread the documents. In the circumstances according to the plaintiff it is not 20 guntas but on the other hand it is claimed at 21 guntas including one gunta of karab. Under these circumstances the vendor when sold the property could not have sold a millimeter of land beyond 14 guntas which is resultant figure assessed or net remaining land in the hands of vendors. It appears the vendors for their convenience and satisfaction have executed sale deeds to an extent of 4 acres 26 guntas in Sy.No.6/2 to the plaintiff. In this connection the presentation of document before the Sub- Registrar can only make the document registered and cannot fill any validity towards extent or other aspects which were present with vendors. As the established principle reads Nemo dat quod non habet means no one can convey what he don’t have.
20. In the circumstances identity of the land, title of the owner, description varies. Insofar as revenue entries are concerned they are effected on the basis of sale deeds either listing or mentioning the matter in column No.9 of RTC or getting it mutated for the extent of 20 guntas of land is revenue act which by itself cannot confer the right on the holder of the document.
21. Mere revenue entries relating to the name of the khatha holder or the extent cannot by themselves vest indefeasible title over the subject matter. By this time it is clear that what was available for sale by the vendors of plaintiff was 14 guntas of land (i.e., 10 acres 33 guntas in both Sy.No.6/1 and Sy.No.6/2 and what was sold by them to different persons under the sale deeds stated above 10 acres 19 guntas of land balance 14 guntas). Ex.P-1 sale deed mentions 20 guntas it cannot happen and insofar as suit schedule is concerned it is 21 guntas. Thus because of the variation and claiming excess of land over the legally and practically available cannot be entertained.
22. I do not find infirmity, illegality in the Judgment and decree dated 15.11.2007 passed in R.A.No.45/2006 by the I Additional Civil Judge, Senior Division, Davangere, and Judgment and decree dated 12.01.2006 passed in O.S.No.366/2001 by the Additional Civil Judge, Junior Division, Channagiri. Question of law is answered accordingly.
In the result, appeal fails and it is dismissed. Parties to bear their own costs.
SBN Sd/- JUDGE