IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO R.S.A.No.1724/2014 BETWEEN:
SRI H.L.CHUNCHAIAH S/O LINGAIAH, AGED ABOUT 57 YEARS, R/AT VERARAGHAVANAPALYA VILLAGE, KASABA HOBLI, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT-562123. ..APPELLANT (BY SRI NAGARAJA S., ADVOCATE) AND:
1.SRI. APPEGOWDA S/O MARANNA, AGED ABOUT 58 YEARS, R/AT VEERARAGHAVANAPALYA VILLAGE, KASABA HOBLI, NELAMANGALA TALUK, BANGALORE RURAL DITRICT-562123.
2.SMT. GANGAMMA W/O MUNIRAMAIAH, AGED ABOUT 67 YEARS, R/AT VEERARAGHAVANAPALYA VILLAGE, KASABA HOBLI, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT-562123. ..RESPONDENTS (BY SRI T SESHAGIRI RAO, ADVOCATE FOR C/R-2) THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT & DECREE DATED: 30.10.2014 PASSED IN R.A.NO.214/2013 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, BANGALORE RURAL DISTRICT, BANGALORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED:01.07.2013 PASSED IN O.S.NO.1064/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., NELAMANGALA.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT With the consent of the learned counsel appearing for the parties, appeal is taken up for final disposal.
2. Appeal is directed against the Judgment and decree dated 30.10.2014 passed in R.A.No.214/2013 by the Principal District Judge, Bangalore Rural District, Bengaluru, wherein appeal came to be allowed and Judgment and decree dated 01.07.2013 passed in O.S.No.1064/2009 was set aside consequently suit came to be dismissed.
3. In order to avoid overlapping and confusion, the parties are referred with reference to their ranks held by them before the trial Court.
4. The suit was filed before the learned Senior Civil Judge and JMFC, Nelamangala, in O.S.No.1064/2009 for the relief of declaration and possession of the schedule property and description of the schedule is 10 guntas of land in Sy.No.39/1 situated at Veeraraghavanapalya Village, Kasaba Hobli, Nelamangala Taluk, being bounded on:
East by : Appegowda’s property (defendant No.1) West by : Gangamma’s land (defendant No.2) North by: Properties belonging to Muniyappa, Gangappa, Ramachandraiah and Gangamma South by : Land belonging to Gangamma (defendant No.2) 5. The learned trial Judge decreed the suit of the plaintiff with costs declaring plaintiff as the owner of the schedule property and directed the defendants to hand over the vacant possession of the schedule property.
6. The substance of the claim and contentions of the plaintiff and defendants are:
Plaintiff claims that originally he purchased landed property to the extent of 1 acre in Sy.No.39 of Veeraraghavanapalya Village from Kamaiah through registered sale deed dated 18.11.1980 and said property is bounded on:
East by : Appegowda’s property West by : Gangamma’s property North by : Huralihalli Bandi dhari (Cart road) and South by : Thoppaiah’s property 7. Incidentally plaintiff also purchased another item of land to the extent of 8 guntas in Sy.No.63/2A of the said village. However said property is not concerned with the present schedule property.
8. It is stated by the learned counsel for plaintiff Sri S.Nagaraja that having purchased 1 acre of land under the said sale deed stated above and marked as Ex.P-1 in the proceedings, the plaintiff sold four portions of land out of the total land of 1 acre to the extent of 7 ½ guntas totaling to 30 guntas by virtue of conversion of the existence of land from acre to guntas what was purchased by plaintiff is 1 acre and what was sold is 7 ½ x 4 =30 guntas. Thus, plaintiff claims that he has retained 10 guntas of land.
9. Learned counsel Sri Nagaraja would submit that the suit is based on arithmetical calculations of the schedule property. It forms nothing but the remaining land in the total property purchased (less the property sold by the plaintiff).
10. Learned counsel Sri Nagaraja would submit that the reason for not arraying the purchasers under Exhibits P-4, 5, 6 and 7 as defendants is that plaintiff was totally satisfied regarding the extent of the property and demarcation and there is no dispute between the plaintiff and those purchasers.
11. In this connection it is necessary to observe that those purchasers purchased the respective portions from this plaintiff from the land in same survey number.
12. Insofar as present defendants are concerned they are the adjacent owners. The approach of the plaintiff towards measurement and extent of the property, non existence of dispute between plaintiff and procedures is personal satisfaction not based on authentic documents. In the circumstances the absence of four purchasers affects and it is fatal to the plaintiff.
13. As stated above the date of purchase of the schedule property under Ex.P-1 is 18.11.1980. Incidentally the land that was sold from that survey number is under sale deeds dated 17.02.1994 and as under:
7 ½ guntas as per Ex.P-4 to one Chandraiah 7 ½ guntas as per Ex.P-5 to Muniyappa 7 ½ guntas as per Ex.P-6 to Gangamma 7 ½ guntas as per Ex.P-7 to Gangappa.
Thus, in four bits of 7 ½ guntas each.
14. There is no dispute regarding sale of property to the total extent of 30 guntas to the said four purchasers. The plaintiff alleges encroachment of the schedule property by defendants 1 and 2. As could be seen in the sketch Ex.P-2 property of defendant No.1 is to the east of total property of 1 acre. Similarly property of defendant No.2 is to the west of total property of the defendant. Incidentally on the southern side of the total property is also the property of defendant No.2. The first rule of land is division of properties and bifurcating one portion from the other may not be possible with computer precision with reference to decimal centimeter. Further when the items are sold in four bits to the extent of 30 guntas each of the land that was purchased under Ex.P-1 it cannot be precisely stated who is under encroachment regard being had to the fact that though those four purchasers under Ex.P-4, 5, 6 and 7 are not the defendants and not examined as plaintiff’s witnesses.
15. In the circumstances though a neighbouring owner of the property may not be a necessary party in a suit for declaration, it is pertinent to note the mandate of the statute and legal circumstances demands that without the participation of said purchasers under Exhibits P-4, 5, 6 and 7, the proceedings cannot be completely and finally adjudicated. Thus, in the circumstances the plaint suffers an inherent legal defect. Thus, substantial questions are not involved.
Appeal is rejected.
Sd/- JUDGE SBN