IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.1746/2006 BETWEEN:
SRI M C PUTTAMASTHI SINCE DEAD BY HIS LRs.
1. NOOTHANA M R D/O LATE M C PUTTAMASTHI AGED ABOUT 28 YEARS.
2. CHETHANA M P D/O LATE M C PUTTAMASTHI W/O NAVEEN KUMAR AGED ABOUT 30 YEARS.
3. M C SWAMY S/O LATE CHIKKAMASTI AGED ABOUT 36 YEARS.
4. M C SAMPATH KUMAR S/O LATE CHIKKAMASTI AGED ABOUT 40 YEARS.
5. M C KRISHNAPPA S/O LATE CHIKKAMASTI AGED ABOUT 45 YEARS.
6. M C CHANDRASHEKARAIAH S/O LATE CHIKKAMASTI AGED ABOUT 47 YEARS ALL ARE R/O No.1955 A DIVISION MANGALAVARPET CHANNAPATANA TALUK RAMANGARAM DISTRICT.
(CAUSE TITLE AMENDED VIDE COURT ORDER DATED 17.10.2012) …APPELLANTS (BY SRI S R HEGDE HUDLAMANE, ADVOCATE) AND:
1. SMT. LINGAMMA W/O LATE BORAYYA AGED ABOUT 57 YEARS 2. B LINGESHWAR S/O LATE BORAYYA AGED ABOUT 29 YEARS BOTH ARE R/O No.1954, A DIVISION MANGALAVARPET CHANNAPATANA TALUK BANGALORE RURAL DISTRICT – 571 501.
...RESPONDENTS (BY SRI P M SIDDAMALLAPPA, ADVOCATE) THIS RSA IS FILED U/S 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 18.04.2006 PASSED IN R.A.No.95/2005 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (SR.DN.) RAMANAGARAM, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 31.08.2005 PASSED IN O.S.No.202/1994 ON THE FILE OF THE CIVIL JUDGE (JR.DN) AND JMFC, CHANNAPATNA.
THIS RSA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is directed against the judgment and decree passed by the Principal Civil Judge (Sr.Dn), Ramanagaram in R.A.No.95/2005 on 18.04.2006, wherein the appeal came to be allowed and the judgment and decree passed in O.S.No.202/1994 dated 31.8.2005 passed by the learned Civil Judge (Jr.Dn) and JMFC, Channapatna, was set aside and consequently, the suit of the plaintiff was dismissed.
2. Earlier, the original suit filed by the plaintiff in O.S.No.202/1994 was partly decreed and defendants were restrained by an order of permanent injunction their agents or anybody claiming under them from interfering with the plaintiff peaceful possession and enjoyment of the suit schedule ‘A’ property and also declared that plaintiff is the absolute owner of ‘B’ schedule property and for possession of ‘B’ schedule property.
3. In order to avoid confusion and overlapping, the parties are referred in accordance with their rankings held by them before the trial court.
4. The substance of the suit filed by the plaintiffs are:
Plaintiffs Chikkamasthaiah and Puttamasthi filed a suit in O.S.NO.202/1994 claiming absolute ownership over the suit schedule properties. They claim that schedule property was purchased by the father of the 1st plaintiff- Venkata under a registered sale deed dated 25.4.1929 and are in possession of the same. First plaintiff is the father of the 2nd plaintiff. It is further contended that 1st defendant is the father of the 2nd defendant. There is no relationship of any kind between the plaintiffs and defendants.
5. Plaintiffs are the permanent residents of Mangalawarpet, Channapatna. The portion denoted by letters ABJHIMK was the site property and portion denoted as BCDEFGH was the backyard to the property bearing Door No.1955 though it was part and parcel of survey No.525 of Mangalwarpet.
6. The said backyard was phoded and renumbered as 525/2A2, 525/3 and 525/4. There is litigation between the plaintiffs and one Bojaiah in respect of survey No.525/2A2. Survey No. 525/2A is situated on the western side of the property of the plaintiffs i.e. 525/2A2. The properties are said to have been included to the Municipal jurisdiction.
7. To sum up the claim of the plaintiffs, they are the owners of the property in survey No.525 to the extent of 09 guntas and in Door No.1955 measuring 57’ x 38’. It is also stated that on the eastern side of Door No.1955 there is a country tiles roofed house which is in existence even on the date of purchase by the father of the 1st plaintiff.
8. It is claimed by the plaintiffs that the defendants being powerful persons are demanding the plaintiffs to sell the portion of the schedule property to them for which they did not agree. It is further stated that because of the instigation by the defendants, Bojaiah started litigation against them. But being frustrated in not getting the property.
9. Bojaiah instigated the defendants to create trouble to the plaintiffs. It is further stated that three months prior to the date of filing of the suit, defendants have encroached the property of the plaintiffs bearing survey No.1955 and constructed a house to the extent of 10‘ x 10’ over the property of the plaintiffs.
10. The reliefs claimed by the plaintiffs are permanent injunction in respect of ‘A’ schedule property to restrain the defendants from interfering in respect of the ‘A’ schedule property and for declaration of title in respect of ‘B’ schedule property which is stated to be a house as stated above and also for mandatory injunction in respect of ‘B’ schedule property to demolish the unauthorized newly constructed portion. During the pendency of the suit, 1st plaintiff is reported dead and his name is deleted as per court order dated 17.7.1989.
11. Defendants resisted the claim of the plaintiffs and filed written statement. They denied the claim of the plaintiffs regarding ownership and possession, besides, they claim that ‘B’ schedule property is not encroached by them and on the other hand, it belonged to their ancestors and it is to the extent of about 2 guntas in survey No.525/3.
12. The learned trial Judge was accommodated with the oral evidence of PWs 1 to 3 and documentary evidence of Exs.P1 to P37 on behalf of plaintiff and oral evidence of DWs1 to 3 and documentary evidence of Exs.D1 to 3 on behalf of defendants.
13. On the basis of the pleadings of the parties and on perusal of the materials on file, suit of the plaintiff came to be partly decreed by the learned trial Judge on 31.08.2005. Aggrieved of the said judgment and decree by the learned trial Judge, defendants preferred an appeal before the Principal Civil Judge (Sr.Dn), Ramanagaram, in R.A.No.95/2005.
14. The learned first Appellate Judge, upon conclusion of the hearing, by his judgment dated 18-04-2006 passed in R.A.No.95/2005 allowed the appeal and thereby set aside the judgment and decree passed in O.S.No.202/1994 on 31.08.2005 and consequently dismissed the suit of the plaintiff. Aggrieved by the same, plaintiff/appellant is before this Court in this second appeal.
15. While admitting the appeal on 24.07.2008, this Court has framed the following substantial question of law:
“Whether in the facts and circumstances of the case the appellate court was justified in reversing the judgment and decree passed by the trial court and dismissing the suit having held that the appellant is the owner of the suit A schedule property?
16. Today, this Court has also framed the following additional substantial questions of law:
“1. In a suit for declaration of title and recovery of possession of schedule property, does the admission of the plaintiff regarding possession of defendants turns out fatal to the case?
2. Whether in the present suit the admission of the possession of defendants over ‘B’ schedule measuring 10 x 10 has to be considered as destructive pleading?
3. Whether defendants have to establish the source of entry into possession of suit schedule property or part of it?”
17. Sri.S.R.Hegde Hudlamane, learned counsel for plaintiff would submit that the defendants admittedly are titleless over the schedule property. The claim of the plaintiff over the title or possession dates back to the time of his grandfather.
18. He would submit that plaintiff is in possession of the schedule property and that with the active instigation of one Bojaiah defendants are harassing the plaintiff and they have sneaked to the schedule property and have raised unauthorized construction and residing therein. Learned counsel would further submit that their possession over the schedule property is worst than that of a rank of tress- passer as the plaintiff neither consented before entering possession nor permitted after entering the same to the defendants.
19. Sri. P.M.Siddamallappa, Learned counsel for defendants/respondents would submit that plaintiff has misread the title deed and has no documents either regarding ownership or possession over the ‘B’ schedule property which is stated to be at the foot of ‘A’ schedule property.
20. The facts are simple. ‘A’ schedule is a property bearing Door No.1955 measuring 57’ x 38’ and 80’ x 60’ plus 41’ x 21’ situated at ‘A’ Division Mangalwarpet, Channapatna Town and its boundaries are as under:
East : Property of Kundana Chikkamasthi and remaining portion of survey No.525/4 of plaintiffs.
West : Sy.No.525/2A of Bojaiah and Ravikumar’s house;
North: Road;
South: Road and house of defendants and Bojaiah which is denoted by letters ABCDEFGHI in the rough sketch, (measurement) 80’x 60’ plus 41’ x 21’ originally was survey No.525/2A2, 525/3 and a portion of 525/4.
21. ‘B’ schedule is out of ‘A’ schedule property a portion out of ‘A’ schedule property on North-West corner measuring 10’ x 10’ which is denoted by letters IPQR bounded as follows:
East and North : Remaining portion of ‘A’ schedule property;
West : Bojaiah’s property;
South : Property of Bojaiah and defendants.
22. The bone of contention between the parties are exactly in accordance with the reliance on their respective documents. Ex.P3 is the sale deed. The total area purchased by the grand father of the plaintiff under Ex.P3 is, Survey No.525/4 measuring 09 guntas, bounded by:
East: Road/Oni:
West: Backyard of Kundanabornaputtana: North: Road;
South: His house with backyard.
23. The contention of the plaintiff is that, the portion wherein the encroachment made is, at the south western portion of the property of the plaintiff which is also to the northwestern property of the defendants. Plaintiff does not have any dispute regarding the house of the defendants marked as LMNO. Portion of encroachment is marked as “IPQR” in respect of which plaintiff is seeking mandatory injunction and recovery of possession.
24. Insofar as suit in O.S.No.202/1994 is concerned, it was decreed by the trial Court in favour of the plaintiff. However, it came to be reversed by the first Appellate Court in Regular Appeal No.95/2005. Thus, as per the judgment and decree of the first Appelalte Court, suit stands dismissed.
25. Insofar as submission of learned counsel for the appellant/plaintiff is concerned, he submits that plaintiff enjoys the absolute title and possession over the schedule property.
26. However, in respect of the house of the defendants as stated above, he has no grievance. However, the unauthorized construction and encroached area is measuring 10’ x 10’. In the sketch which is not seriously disputed, the encroached portion is shown as IPQR and it appears to be the shoe portion of the house of the plaintiff. It is at the extreme west on the northern side. The contention of the defendants is that, the place where the defendants’ house is situated is their ancestral property and claims portion marked as IPQR is a part and parcel of the defendants’ house. Further, it is seriously contended by the plaintiff that defendants have failed to produce relevant material documents regarding either their possession or ownership over the schedule property.
27. The other point that was raised is that plaintiff has admitted that the defendants are in possession and he cannot maintain the suit. Yes. The plaintiff has admitted the possession. But the suit is for declaration of title and for possession. In order to satisfy the two principle element of corpus possessious and animus possedendi i.e. the very objection of the thing possessed and the mental element of entitlement to possession are to be present with the person who claims possession.
28. In this connection, it is necessary to mention that, no doubt, it is not the defendants who have come up with the case and it is the suit of the plaintiff. In the circumstances of the case, defendants claim that they are in possession of the property which is their ancestral property. Regard being had to the fact that defendants have produced Exs.D1 to D3. Ex.D1 is the Genealogical tree, Ex.D2 and D3 are the extract of Assessment List of Buildings and Lands liable to taxation for the years 1987-88 and from 1996-97 to 2000-2001, wherein the number of the defendants property is shown as 1954, 1954/1 measuring 31’ x 31’. It is at this stage, point which is necessary to observe is, the property of the defendants is a perfect square. In the sense, all the sides are equal with the measurement of 31’ x 31’. However, if the alleged encroachment is annexed to the property of the defendants it cannot be a perfect square. Though internal accommodation are stated in the sketch, the main measurement is 31’ x 30’. Under such circumstances, for all the practical purposes, the alleged encroachment is nothing but an addition made and documents are not available. Under such circumstances of the case, the said encroachment of the property cannot be regarded as part and parcel of defendants’ property which they inherited from their ancestors. More particularly, without reading the description of the property the sketch enclosed requires some knowledge of geometry. It is not possible to expect every body or either owner of the property to produce title deeds or registered sale deed. Here, the plaintiff’s grand father purchased the schedule property. But it cannot be possible for the defendants also to go in search of documents and to produce the title deed. On the otherhand, Exs.D2 and D3 are the extract of Assessment List of Buildings and Lands liable to taxation for the years 1987-88 and from 1996-97 to 2000-2001.
29. Fine insofar as measurement is concerned, straightaway or within that relaxation that cannot fit into measurement of the property as per the sketch. It is in this connection, the sketch besides being undisputed, throws light on the facts of the case.
30. Apparently and also on dissection it cannot be said that the alleged encroachment is the property of the defendants nor can it be said that it does not belong to plaintiff. There are no much contentions regarding the other aspects of possessory right.
31. Another point that has come up in this case is, Sri. P.M.Siddamallappa, learned counsel would submit that property is divided into two parts by the plaintiff. ‘A’ schedule is stated to be the total property and ‘B’ schedule is the encroached portion. But the plaintiff has sought for declaratory relief with the mandatory injunction in respect of ‘B’ schedule and no declaration is sought in respect of ‘A’ schedule. In the circumstances, the encroached area is at the foot of the plaintiff’s property and the reparability is obvious. When the encroached portion is easily separable and identifiable portion from the total property of the plaintiff it is not necessary that the declaration of title has to be sought for the entire property.
32. On the other hand, the principles of suits for declaration of title emanates when the plaintiff claims that his title was denied. Thus, in the circumstances, when a suit for declaration of title is made, it has to be presupposes the denial of title by the defendants. Insofar as the encroached portion is concerned, the defendants claim the same as their property which is inherited from their ancestors. It is nothing but denial of title. Thus, insofar as the encroached portion, declaration of title and mandatory injunction are sought. Thus, I find the trial Court though was right in coming to a right finding, but the first Appellate Court erred in allowing the appeal and dismissing the suit of the plaintiff. Hence, the judgment and decree passed by the learned First Appellate Judge is erroneous and liable to be set aside. Accordingly, the substantial questions of law are answered.
33. In the result, the appeal is allowed.
The judgment and decree dated 18.04.2006 passed by the learned Principal Civil Judge (Sr.Dn), Ramanagaram in R.A.No.95/2005 is hereby set aside. Consequently, the judgment and decree dated 31.08.2005 passed by the learned Civil Judge (Jr.Dn) and JMFC, Channapatna, in O.S.No. 202/1994 is hereby confirmed.
The defendants are directed to quit and vacate the encroached area, clear the space and deliver the same to the plaintiff within a period of three months from the date of receipt of the certified copy of this judgment, failing which the same be caused to be done with the machinery of the Court.
Sd/- JUDGE tsn*