1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.56 OF 2015 Between:
Sri.N.Rama Swamy, S/o. Late Nageshwara Rao, Aged about 69 years, Residing at B.H.Road, By the side of A.P.M.C.Yard, Tarikere-577 228. ...Appellant (By Sri.Omkaresha, Adv.,) And:
1. Sri.Tarachand, S/o Sha Maniklal, Aged about 73 years, 2. Sri.S.M.Javeerilal, S/o Sha Maniklal, Aged about 67 years, The respondents 1 & 2 are r/at M.G.Road, Tarikere-28.
2 Kevalchand Jain, S/o Sha Maniklal, Since deceased by his LRs.3rd Plf., 3. Preethi Balodota, W/o Naveen Balodota, Aged about 35 years, House Hold Work, R/o 14th Fashion Street, 1st ‘C’ Sudhamnagar, Lalbagh Road, Bengaluru-27.
4. Prafulla, W/o Kamlesh, Aged about 32 years, House Wife, Residing at Aksha Creation, 666, Opencara Street, Shivashakthi Building, Coimbatore, Tamilnadu.
5. Pradeep Kumar, S/o Late Kevalchand Jain, Aged about 29 years, R/at Shanthi Jewelers, M.G.Road, Tarikere-577 228.
6. Madanlal, S/o Late Sha Maniklal, Aged about 65 years, Residing at No.4, 5th Block, Jayanagar, Bengaluru.
3 7. Rameshchand Jain, S/o Late Sha Maniklal, M.G.Road, Tarikere-577 228. …Respondents (By Sri. A. Madhusudhana Rao, Adv., for R1-R7) This Regular Second Appeal is filed under Section 100 of CPC., praying to set aside the judgment and decree passed by the learned Principal District Judge at Chikkamagalur, in RA No.184 of 2011 dated 27.09.2014; set aside the judgment and decree in part passed by the learned Senior Civil Judge and Principal JMFC at Tarikere in O.S.No.127 of 2005 dated 30.07.2011.
This Regular Second Appeal coming on for Admission this day, the Court delivered the following:
JUDGMENT This Regular Second Appeal arises out of the judgment and decree dated 27.09.2014 in R.A.No.184/2011 passed by the Principal District Judge, Chikkamagalur. By the impugned judgment, the first appellate Court dismissed the appeal of the appellant and confirmed the judgment and decree dated 30.07.2011 in O.S.No.127/2005 passed by the Senior Civil Judge and 4 Principal JMFC, Tarikere, whereunder, the suit of the plaintiffs against the present appellant for declaration and possession of suit schedule `B’ property and for mesne profits was decreed.
2. Respondents 1, 2, 6 and 7 and one Kevalchand Jain had filed O.S.No.127/2005 against the present appellant for the reliefs as aforesaid. Third plaintiff – Kevalchand Jain died when the matter was pending in R.A.184/2011 before the first appellate Court. Respondents 3 to 5 were brought on record as his L.Rs.
3. For the purpose of convenience, parties will be referred to, hereafter, with their ranks before the trial Court.
4. The subject matter in the suit was a construction put up on 20 feet East – West x 60 feet North – South area in Sy.No. 20, shown as `B’ schedule property. Schedule `A’ property was vacant site measuring 90 feet x 5 105 feet carved out of Sy.No.20 of Galihalli village, Kasaba Hobli, Tarikere Taluk. `B’ schedule property was a portion of `A’ schedule property.
5. The plaintiffs claim that their father purchased plaint `A’ schedule property under Exs.P.2 to P.5 in different bits in 1963, 1966 and 1967. They further contended that, in December, 1995, defendant encroached upon the `B’ schedule property and put up unauthorized structure and he declined to vacate and hand over vacant possession of the same.
6. The defendant contested the suit, contending that his structure is in Sy.No.21 and not Sy.No.20 as shown in ‘B’ schedule. He contended that Sy.No.21 belongs to Town Municipal Council, Tarikere, and he has put up that construction there about 40 years back and residing in that without any obstruction.
6 7. On the basis of such pleadings, the trial Court framed the following issues :
1) Whether the plaintiffs prove that Sha Manik Lal became the owner of `A’ schedule property in Sy.No.20 of Galihalli Village as stated in the plaint ?
2) Whether the plaintiffs further prove that when Sha Manik Lal was embroiled in litigation with the APMC, Tarikere, in the Hon’ble High Court, the defendant in the month of December, 1995 has clandestinely occupied an area of 20.0” x 60.0” in the eastern portion of `A’ schedule property and this encroached area in which he has built a katcha house which has been described in plaint `B’ schedule as stated ?
3) Whether the plaintiffs further prove that the area so encroached by the defendant is a part and parcel of Sy.No.20 of Galihalli village, belongs to the plaintiffs and Sy.No.21 of Galihalli is situated towards East of Chikkere Kodi Kaluve which is the eastern boundary of `A’ schedule property ?
4) Whether the plaintiffs further prove that `B’ schedule property is a part and parcel of the plaint `A’ schedule property and plaintiffs are the full and 7 absolute owners of the plaint `B’ schedule property ?
5) Whether the plaintiffs further prove that they are entitled for possession of the plaint `B’ schedule property after dispossessing the defendant by permitting him to remove the building materials in case he chooses to do so ?
6) Whether plaintiffs further prove that they are entitled for past mesne profits of Rs.10,800/- at the rate of Rs.300/- per month from the last 3 years ?
7) Whether the plaintiffs further prove that they are entitled for future mesne profits from the date of suit till the date of delivery of possession of the `B’ schedule property under order 20 rule 12 CPC ?
8) Whether the defendant proves that the survey sketch pertains to Sy.No. 21/1, 2 and 20/1 reveals that plaint `A’ and `B’ schedule properties are different ?
9) Whether the defendant further proves that the schedule mentioned with regard to extent and boundaries in A and B of the plaint are not correct ?
10) Whether the defendant further proves that he is in possession and enjoyment of the property measuring 60’ x 20’ in Sy/No.21/1 of Galihalli village since more than 30 years continuously and 8 uninterruptedly to the knowledge of the true owner and thereby he has perfected his title by way of adverse possession ?
11) Whether the defendant further proves that suit is not properly valued and court fee paid is not sufficient ?
12) Whether the defendant further proves that the suit is bad for non-joinder of necessary parties ?
13) What decree or order ?
8. The parties adduced evidence. During the trial, on the application of the parties, Taluk Surveyor (C.W.1) was appointed as Commissioner to survey the property and fix up the identity of the property with reference to survey number. On behalf of plaintiffs, P.Ws. 1 and 2 were examined and Exs. P.1 to P.21 were got marked. On behalf of defendant, he got himself examined as D.W.1 and got marked Exs. D.1 to D.21. Commissioner was examined as C.W.1 and the proceedings of the 9 Commissioner including his report were marked as Exs. C.1 to C.8.
9. The trial Court after hearing both the parties, decreed the suit holding that;
i) title of plaintiff and his father was proved by the title deeds Exs.P.1 to P.5, Revenue records – Exs. P.6 to P.10 and the judgment and decree in O.S.No.127/1978, wherein plaintiffs’ father was declared to be the owner of Sy.No.20 of Galihalli village;
ii) the defendant though contended that the structure was put up by defendant in Sy.No.21 failed to prove the same;
iii) the Commissioner’s report and the evidence of the Commissiner proved that the house constructed by the defendant situates in Sy.No.20 i.e. `B’ schedule property.
10. Aggrieved by the said judgment and decree, the defendant filed R.A.184/11 before the Principal District Court, Chikkamagaluru. The first 10 appellate Court by impugned judgment and decree, dismissed the appeal concurring with the reasonings and findings of the trial Court.
11. This being the second appeal under Section 100 of CPC, cannot be admitted for hearing unless the appellant makes out a substantial question of law for hearing. It is settled position that, on question of facts, the first appellate Court is the last Court.
12. Defendant did not dispute that plaintiffs father and on his death, the plaintiffs were the owners of plaint schedule `A’ property i.e. an area measuring 90 feet x 105 feet, carved out of Sy.No.20. But he denied that `B’ schedule property where his structure situates is part of `A’ schedule property. It was his specific contention that, his structure forms part of Sy.No.21 which belongs to Town Municipal Council.
11 13. Though defendant produced Exs. D.1 to D.21, none of them show that the building constructed by him is situated in Sy.No.21. As against that, Ex.P.9 – the consolidated revenue sketch of Sy.Nos. 20 and 21 showed that the structure was in Sy.No.20. Ex.D.18 – village map, defendant’s own document did not show any structure in Sy.No.21.
14. Defendant himself applied to the Deputy Commissioner and the Tahsildar for regularization of his construction, contending that he has put up unauthorized construction. Therefore, it is clear that the construction of the building was unauthorized one. Further, defendant failed to prove his defence that structure lies in Sy.No.21. Under these circumstances, this Court does not find any substantial question of law in the case to admit. Therefore, appeal is dismissed.
12 15. The judgments and decrees of the Courts below are hereby confirmed.
16. The appellant shall hand over the vacant possession of the suit schedule property to the respondents within six months from the date of this order.
17. In view of disposal of the appeal, I.A.1/19 does not survive for consideration and disposed of accordingly.
Sd/- JUDGE MGN*