IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 02nd DAY OF APRIL 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO REGULAR SECOND APPEAL No.3410/2006 C/W REGULAR SECOND APPEAL No.3408/2006 In RSA No.3410/2006 BETWEEN:
Sri H.S.Mahadeva Shetty S/o Siddashetty Age 50 years Residing at D.No.1374 Varadaraja Swamy Temple Road, Hullahalli Village Nanjanagud Taluk Pin Code-571 301. …Appellant (By Sri. P. Mahesha, Advocate) AND:
Smt. Mahadevamma, W/o K.R. Subbanna, 61 years, R/o.D.No.66, 2nd Block, Hura Road, Hullahalli Village, Nanjangud Taluk.
Pin Code - 571 301. … Respondent (By Sri P.N. Manmohan, Advocate) This Regular Second Appeal is filed under Section 100 of the Code of Civil Procedure against the Judgment and decree dated 14.09.2006 passed in R.A. No.5/2001 on the file of the Civil Judge (Senior Division) and JMFC., Nanjangud, dismissing the appeal and confirming the Judgment and decree dated 29.11.2000 passed in O.S.No.131/1995 on the file of the Additional Civil Judge (Junior Division) and JMFC., Nanjangud.
In RSA No.3408/2006 BETWEEN:
Sri. H.S. Mahadeva Shetty, S/o Siddashetty, Age 50 years, Residing at D.No.1374, Varadarajuswamy Temple Road, Hullahalli Village, Nanjanagud Taluk, Pin Code-571 301. …Appellant (By Sri P. Mahesha, Advocate) AND:
Smt. Mahadevamma, W/o K.R. Subbanna, 61 years, R/o D.No.66, 2nd Block, Hura Road, Hullahalli Village, Nanjangud Taluk.
Pin Code - 571 301. …Respondent (By Sri. P.N. Manmohan, Advocate This Regular Second Appeal is filed under Section 100 of the Code of Civil Procedure against the Judgment and decree dated 14.09.2006 passed in R.A. No.6/2001 on the file of the Civil Judge (Senior Division) and JMFC., Nanjangud, dismissing the appeal and confirming the Judgment and decree dated 29.11.2000 passed in O.S.No.169/1995 on the file of the Additional Civil Judge (Junior Division) and JMFC., Nanjangud.
These Regular Second Appeals coming on for dictation, this day the Court delivered the following:
J U D G M E N T In these two appeals, the parties are common, the lis between the parties is in respect of the same property and both the appeals are arising out of the common judgment and decree passed by the trial Court and first appellate Court respectively. Hence, they are clubbed, heard together and disposed of by this common judgment.
2. For the purpose of convenience, the parties are referred to as per their respective ranks before the trial Court in O.S.No.169/1995.
3. These regular second appeals are filed by the unsuccessful plaintiff in O.S.No.169/1995 and defendant in O.S.No.131/1995, challenging the concurrent findings rendered by the Courts below, in O.S.No.131/1995, 169/1995, R.A.No.05/2001 and 06/2001 respectively.
3. The facts of the case, as narrated in O.S.No.169/1995 are as under:
The suit schedule item No.2 & 3 are part and parcel of item No.1 of the suit schedule property. The 2nd item of the suit property consists of a dilapidated house and 3rd item is a vacant site. Originally, the entire item No.1 of the suit property belonged to one H.M. Riyaz Ahamad Sab, having purchased the same from Venkatashetty and his family members through registered sale deed dated 20.09.1974. Said Riyaz Ahamad Sab sold the suit property to the plaintiff, vide registered sale deed dated 08.02.1995 for valuable consideration. Thus the plaintiff claims that he became owner of the entire property described in item No.1. The plaintiff was residing both in Hullahalli village as well as in Mysuru. In the absence of the plaintiff, during May 1995, the defendant illegally trespassed into the suit schedule item No.2 i.e., house and began to squat in the said house. As, the defendant tried to interfere with the possession of the plaintiff over item No.3 of the suit property and has denied the title of the plaintiff to the suit schedule item No.2 and refused to deliver the vacant possession of the same, the plaintiff (Mahadevasetty) has preferred O.S.No.169/1995 seeking declaration and for permanent injunction and also for delivery of possession of item No.2.
4. It is the specific case of the defendant (Mahadevamma) that H.M. Riyz Ahmed was not the original owner of the entire suit item No.1. Venkata Shetty, the vendor of the said Riyaz Ahmed was in no way concerned with the property. She is in lawful possession of the suit schedule property from 40 years, which belonged to her husband K.R.Subbanna. Alleging that there was interference from the plaintiff (MahadevasHetty), she filed a separate suit against the plaintiff in O.S.No.131/1995 for permanent injunction.
5. Since, the parties in both the suits are common and the property involved is one and the same, the trial Court clubbed both the suits, framed necessary issues and by the common Judgment dated 29.11.2000, dismissed the suit O.S.No.169/1995 filed by the Plaintiff (H.S. MahadevasHetty), the appellant herein and decreed the suit (O.S.No.131/1995) filed by the defendant (Mahadevamma), the respondent herein, holding that she is in lawful possession of the suit schedule property.
6. Challenging the said common judgment dated 29.11.2000, passed by the trial Court in O.S.No.169/1995 and 131/1995, the Plaintiff in O.S.No.169/1995 and defendant in O.S.No.131/1995, namely, H.S. Mahadevashetty preferred appeals before the First Appellate Court in RA. No.5/2001 and 6/2001 respectively. By the common judgment dated 14.09.2006, the learned judge of the First Appellate Court dismissed both the appeals and thereby confirmed the common judgment and decree passed by the trial Court in O.S.No.169/1995 and 131/1995. Being aggrieved by the said concurrent findings, the plaintiff in O.S.No.169/1995 and defendant in O.S.No.131/1995 is before this Court in these appeals.
7. At the time of admission of the appeals, this Court framed the following substantial question of law on 26.06.2008 in both the appeals.
“Whether the Courts below were justified in declining to grant the prayer of the plaintiff despite the Plaintiff producing the documentary evidence by producing the sale deeds Ex.P.1 & P.2 in proof of his ownership and possession?”
8. Sri. P. Mahesha, learned counsel appearing for the Plaintiff-appellant submits that the plaintiff-appellant herein had purchased the suit property through registered sale deed marked as Ex.P.1 for valuable consideration. While drawing the attention of the Court to the recitals in the sale deed dated20.09.1974 (Ex.P.2), executed by Venkatashetty and his family in favour of the vendor of the plaintiff namely, H.M. Riyaz Ahamed Sab, he contended that under the said sale deed out of the total extent of land measuring 85’ x 50’, said Venkatashetty sold the land measuring 40’ x 50’ in favour of H.M. Riyaz Ahamed who in turn sold land measuring 40’ x 17’ to the plaintiff- appellant, along with country tiled house constructed over 10’ x 10’ of land. Further, referring to the recitals in the additional documents produced before this Court along with IA-1/2019, he contended that those two registered sale deeds clearly prove that before selling the suit property to the plaintiff, the vendor of the Plaintiff, namely, Riyaz Ahamed had in fact sold portion of the land purchased by him to one Ameenabi. As such, the defendant-respondent herein has no right, title or interest whatsoever over the property in question. Hence, he prays for setting aside the judgments passed by the Courts below.
9. On the other hand, Sri. P.N. Manmohan, learned counsel appearing for the defendant/respondent- Mahadevamma herein submits that the documents produced on behalf of the plaintiff-appellant do not disclose his ownership over the suit property. Further, he contended that the documents produced by the defendants as at Ex.D.1 to D.14 clearly establish that the defendant is in lawful possession over the suit schedule property, sufficiently for a long period. Hence, the Courts below were justified in dismissing the suit filed by the plaintiff appellant and decreed the suit filed by Mahadevamma pray for dismissal of the appeals filed by the appellant.
10. It is the specific case of the plaintiff-appellant that the total extent of land owned by his vendor Riyaz Ahamed was 50’ x 40’ and out of the same, as per the registered sale deed dated 08.02.1995 (Ex.P.1), said Riyaz Ahamed sold the land measuring 40’ x 17’ in favour of the plaintiff. The recitals in the sale deed dated 20.09.1974 (Ex.P.2), executed by Venkatashetty and his family members in favour of H.M. Riyaz Ahamad, the vendor of the plaintiff clearly indicates that the total extent of land owned by said Venkatashetty and family was measuring 85’ x 50’ bounded on the East by Hura Road, West by Panchayat road, North by house property of Byrashetty and South by Panchayath road. Out of the said total extent of 85’ x 50’, said Venkatashetty and his family members sold the eastern portion of the land measuring 40’ x 50’ along with country tiled house in favour of the Vendor of the plaintiff-appellant namely, H.M. Riyaz Ahamad. Out of the said property 40’ x 50’ land, the vendor of the plaintiff, namely, Riyaz Ahamed had sold land to an extent of 40’ x 17’ under registered sale deed dated 08.02.1995 (Ex.P.1) in favour of the plaintiff. The Courts disbelieved the recitals in the above two registered sale deeds solely on the ground that the plaintiff-appellant has failed to produce another sale deed, under which, Riyaz Ahamed sold some portion of the property to one Ameenabi (PW.2), through registered sale deed dated 22.03.1990 and retained 40’ x 17’ and that the boundaries mentioned in Ex.P.1 does not tally with the land purchased by Riyaz Ahamed.
11. Learned counsel for the Plaintiff-appellant has filed an application under Order 41 Rule 27 of CPC., seeking permission to produce two registered sale deeds dated 22.03.1990 and 20.11.1990, executed by the Vendor of the plaintiff, in favour of Smt. Ammeenabi, as additional documents. By a separate order dated 02.04.2019, said application was allowed by this Court and the documents produced therein have been taken on record. On careful scrutiny of the said additional documents, they reveal that the vendor of the plaintiff- appellant namely, H.M. Riyaz had sold the remaining portion of the land from out of total extent of the land, in favour of Smt. Ameenabi. It is the specific case of the plaintiff-appellant that the defendant-respondent is not in possession of the entire property purchased by him. On the other hand, it is his specific case that the defendant is in unlawful possession of the country tiled house measuring 10’ x 10’, described as suit item No.2, is located in the middle portion of suit item No.1 & 3.
12. Under such circumstances, it is just and relevant to see as to whether said house measuring 10’ x 10’ is part and parcel of the property (40’x17’) purchased by the plaintiff and located within the boundaries made in the registered sale deeds (Ex.P.1 & P.2). Before elaborating further, it is just and necessary to extract the suit schedule and its boundaries as described in O.S.No.169/1995 and 131/1995, filed by both the parties, which are as under:
Schedule in O.S.No.169/1995:
1. Dilapidated country tiled house and vacant site situated towards western side of the house, measuring 17’ north-south and 40’ east-west, bearing property No.1169 and MR No.84/1-89-90, situated at Hullahalli village, Nanjangud Taluk and bounded by East- Hura Road, West- house of Kamalamma, North- by house of Byra Setty, South- house of Muneer Saheb.
2. Dilapidated country tiled house in property No.1169 measuring North-South 10’, East-West 10’ and situated at Hullahalli village, Nanjangud taluk and bounded by East-Hura road, West- vacant site in property No.1169 (suit schedule 3rd item) and then house of Kamalamma, North- house Byrasetty, South- Muneersaheb’s house.
3. Vacant site measuring North-South 17’, East-West-30’ in property No. 1169 and situated at Hulla Village, Nanjangud Taluk and bounded by to the East-Suit schedule 2nd item house and Hura Road and West- house of Kamalama, North-House of Byrasetty, south- house Muneersaheb.
Schedule in O.S.No. 131/1995:
Premises bearing door No.66, 2nd Block, also recognized as door No.729, including the structure and vacant area lying at the rear side of the property, measuring 20’ by North to South and 50’ by East to West, situated at Hura Road, Hullahalli, Nanjangud taluk and bounded on the East by Road, West by house Kamalamma, South by house of Muneer Saheb and North by house of Byrashetty.
13. Basically, the litigation is not between neighbors claiming encroachment or asserting their rights over the property of another.
14. On careful observation of the averments made in the plaint in both the suits i.e., O.S. No.169/1995 and 131/1995, schedule and boundaries mentioned in the respective suit, it is clear that the plaintiff (H.S.Mahadeva Shetty) the appellant herein had purchased the property measuring 40’x17’ from H.M.Riyaz Ahamed vide registered sale deed dated 08.02.1995 (Ex.P.1) which is described as item No.1 of the suit schedule property. Out of the said 40’x17’, the country tiled house constructed therein, which measures 10’x10’ is described as item No.2 and the remaining vacant site measuring 30’x17’ is described as item No.3 to the schedule of the suit filed by the appellant.
15. Further, as could be seen from recitals in the said sale deed Ex.P.1, the vendor of the plaintiff has categorically narrated about the existence of 10’x10’ country tiled house in the schedule of the sale deed. As could be seen from the recital in the sale deed dated 20.09.1974, executed by Venkata shetty and family in favour of H.M. Riyaz Ahamed Sab, the total extent of the land purchased by the vendor of the plaintiff was 45’x50’, out of total extent of 85’x50’ owned by said Venkata Shetty. Now, the plaintiff-appellant has made available to the Court the additional documents viz., two sale deeds dated 22.03.1990 and 26.11.1990 by filing application under Order 41 Rule 27 of CPC. The recitals in the said two sale deeds reveal that, out of total extent of land measuring 40’x50’ purchased by him, said Riyaz Ahamed had sold the remaining land to an extent 30’x20’ and 10’x20’ (totally 20’x40’) respectively to one Smt. Ameenabi, excluding 40’x17’ land sold to the Plaintiff- appellant herein.
16. It is not at all the case of the defendant- respondent herein that the house property (10’x10’) country tiled house claimed by her was her husband Subbanna’s ancestral property or that the same was purchased by her husband Subbanna. On the other hand, the averments made in the written statement and evidence adduced before the Court, there was no whisper as to how and under what circumstances her husband Subbanna came into possession over the suit schedule property, as described in the schedule to O.S.No.131/1995 filed by her against Mahadeva Shetty. On the contrary, the recitals in the two sale deeds produced by the Plaintiff- appellant herein and marked as Ex.P.1 clearly indicate that 40’x17’ site sold to the Plaintiff-appellant also consists country tiled house constructed over 10’x10’ land.
17. From the sale deed dated 20.09.1974 (Ex.P.2), executed by Venkatashetty and his family in favour of H.M. Riyaz Ahamed, it was clear that out of total extent of land measuring 85’ x 52’, said Venkatashetty and family sold land to an extent of 45’x50’ to Riyaz Ahamed. In the last page of the said sale deed (Ex.P.1), after description of the measurements, it is categorically mentioned that there exists the country tiled house, when said Venkata Shetty sold the property to Riyaz Ahamed.
18. For the purpose of convenience and for ready reference, the verbatim of the same is “LªÀvÀÄÛ Cr F eÁUÀzÀ°ègÀvÀPÀÌ JAlÄ CAPÀt £ÁqÀÄ ºÉAa£À ªÀÄ£É ¬ÄzÀgÀ »A¨sÁUÀzÀ »vÀÛ®Ä ¸ÀºÀG¼Àî ªÀÄ£É ªÀAzÀÄ ªÀiÁvÀæªÉ” (including country tiled house measuring 8 ankana constructed over the land measuring 50 feet). From the recitals mentioned in Ex.P.1 & P.2, the registered sale deeds, it is manifest that in the land purchased by Riyaz Ahamed, the vendor of the Plaintiff-appellant herein, indeed, there exists country tiled house. Apart from that, on careful evaluation of the boundaries mentioned in Ex.P.1, P.2, and in the additional documents produced before this Court it is clear that possession over the country tiled house over the land to an extent of 10’x10’, claimed by the defendant- respondents, the same is located well within the land purchased by the plaintiff-appellant. When the defendant has failed to produce cogent evidence to establish her title over the property claimed by her, there was no reason for the Courts below to disbelieve the registered sale deeds Ex.P.1 & P.2. Both the Courts below were not justified in disbelieving those two title documents and the recitals found therein. Under such circumstances, the learned judge of the Courts below ought to have drawn natural inference that in the absence of title over the said house, the possession of the defendant-respondent over the said house is unlawful and ought to have ordered for delivery of possession of the land and house described in the schedule to O.S.No.131/1995 filed by the defendant-respondent herein.
19. It is settled law that a person, even if he is in unlawful possession over the property of others, she is required to be evicted only under due process of law. In the case on hand, the plaintiff in OS No.131/1995 – Mahadevamma has failed to produce any documentary or oral evidence to establish her title over the property claimed by her. The suit filed by the plaintiff-appellant herein is one for declaration of ownership and also for delivery of possession.
20. The respondent Mahadevamma in the capacity of plaintiff in O.S.No.131/1995 and as defendant has denied the rights of any kind of Mahadevashetty, plaintiff in O.S.No.169/1995 or Riaz Ahamed vendor of Mahadevashetty or the vendor of the vendor of Mahadevashetty but has not produced a single documents evidencing or supporting her title over the suit schedule property or any portion there of.
21. This Court is of the considered view that both the Courts below were not justified in holding that the defendant in O.S.No.131/1995, the respondent herein is in lawful possession of the suit schedule property and further, erred in declining to grant the prayers of the plaintiff, despite the plaintiff producing documentary evidence by producing the registered sale deeds Exhibits P.1 and P.2 in proof of his ownership and possession. The findings recorded by the Courts below are erroneous on the face of the record. The substantial question of law is answered accordingly. Viewed from any angle, the courts below have committed error in dismissing the suit filed by the plaintiff-appellant herein and decreeing the suit filed by the defendant-respondent herein. In this view of the matter, both the appeals deserve to be allowed. Hence, I pass the following:
O R D E R Both the appeals are allowed. The impugned common judgment and decree dated 29.11.2000, passed by the Additional Civil Judge (Junior Division) and Additional JMFC., Nanjangud in O.S.No.131/1995 and 169/1995, as confirmed by the common Judgment dated 14.09.2006 passed by the Civil Judge (Senior Division) and J.M.F.C., Nanjangud in R.A.No.5/2001 & R.A. No.6/2001 are hereby set aside.
The suit in O.S. No.131/1995 filed by the respondent herein is dismissed. The suit in O.S.No.169/1995 filed by the appellant herein is hereby decreed as prayed for.
No orders as to the costs.
Sd/- JUDGE VR