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2011 DIGILAW 629 (KAR)

Channabasappa v. Safoorabi

2011-06-21

H.N.NAGAMOHAN DAS

body2011
JUDGMENT H.N. Nagamohan Das, J. This second appeal is directed against the judgment and decree dated 07.03.2005 in R.A. No.19/2005 passed by the Fast Track Court at Chitradurga reversing the judgment and decree dated 10.12.1999 in as. No. 1443/1992 passed by the Principal Civil Judge (Junior Division) Chitradurga. 2. Appellant is the plaintiff and respondents are the defendants before the trial Court. In this judgment for convenience the parties are referred to their status before the trial Court. 3. It is the case of plaintiff that under a registered sale deed dated 22.10.1982 as per Ex.P.1 he purchased the plaint schedule property from the defendants. Since there was a mistake in mentioning the measurements in the sale deed-Ex.P.1, the defendants executed a rectification agreement on the very same day as per Ex.P.2. After purchase the plaintiff continued in possession and enjoyment of the schedule property, all the municipal records stand in his name and he has paid the up-to- date taxes. Taking advantage of the absence of plaintiff from the plaint schedule property, the defendants constructed a building on the western side of plaint schedule property without leaving any set back and abutting to the plaintiffs house. Therefore the plaintiff filed O.S. No. 1443/1992 against the defendants for mandatory injunction to demolish 11/2 feet of the house of defendants from the western wall of plaintiffs house and for other reliefs. 4. Defendants entered appearance before the trial Court and filed written statement inter alia contending that they have not executed the rectification agreement Ex.P.2, the construction made by the defendants was prior to 1932, the same was in existence at the time of sale deed Ex.P.1 and they have not encroached upon the property of plaintiff. On these grounds the defendants opposed the claim of plaintiff. On the basis of pleadings the trial Court framed the following issues for its consideration. i. Whether the plaintiff proves his lawful possession and legal right over suit property in its given measurement in plaint schedule'? ii. Whether the plaintiff proves that the defendants taking his absence in city have put up illegal and unauthorised construction by making use of the western wall of suit property without his consent and without leaving 1 ft. space in their property? iii. Whether the suit is barred by time'? iv. Whether suit is improperly valued and Court-fee paid is insufficient'? Whether the plaintiff proves that the defendants taking his absence in city have put up illegal and unauthorised construction by making use of the western wall of suit property without his consent and without leaving 1 ft. space in their property? iii. Whether the suit is barred by time'? iv. Whether suit is improperly valued and Court-fee paid is insufficient'? v. Whether the plaintiff is entitled for the relief of mandatory injunction as prayed'? vi. To what order or decree'? 5. Before the trial Court the plaintiff examined 3 witnesses as P.W.1 to P.W.3 and got marked Ex.P.1 to Ex.P.13. The defendants examined 3 witnesses as D.W.1 and D.W.3 and got marked Ex.D.1 to Ex.D.3. The Trial Court on appreciation of the pleadings, oral and documentary evidence held that the defendants have constructed a house on their property by making use of the western wall of the plaintiffs. Consequently under the impugned judgment the trial Court decreed the suit of the plaintiff. Aggrieved by judgment and decree of the trial Court the defendants filed an appeal in R.A. No. 19/2005. On re-appreciation of the entire material on record the first Appellate Court held that the rectification agreement Ex.P.2 is an unregistered document and therefore no reliance can be placed on the same. It is held that the defendants had put up the construction on their property and the same was in existence at the time of sale of property under Ex.P.1. Therefore the first Appellate Court held that the plaintiff has failed to prove and establish the correct measurement of plaint schedule property. Consequently under the impugned judgment the first Appellate Court allowed the appeal, set aside the judgment and decree of the Trial Court and dismissed the suit of plaintiff. Hence, this second appeal. 6. This Court by order dated 15.06.2005 admitted the appeal on the following substantial question of law. "Whether the finding of the first Appellate Court dismissing the suit by reversing the judgment and decree passed by the trial Court is perverse and arbitrary for non-consideration of the material on record and the reasons assigned by the trial Court in decreeing the suit of the plaintiff?" 7. I heard arguments on both the sides and perused the entire appeal papers. 8. It is not in dispute that under Ex.P.1 the defendants have sold the property measuring 12-112 feet and 25 feet to the plaintiff. I heard arguments on both the sides and perused the entire appeal papers. 8. It is not in dispute that under Ex.P.1 the defendants have sold the property measuring 12-112 feet and 25 feet to the plaintiff. On the date of sale the actual measurements were taken after executing the sale deed and found that there was mistake in the sale deed ExP.1 with regard to the measurements. According to the plaintiff on the date of sale the defendants executed a rectification agreement as per Ex.P.2 specifying that what is sold to the plaintiff is property measuring 14 feet x 30 ft. On the other hand the defendants denied the execution of rectification agreement Ex.P.2. When such being the case it is necessary for the plaintiff to seek declaration with regard to the correct measurements of plaint schedule property. Without seeking declaration with regard to the measurement of the property purchased by him the suit for mandatory injunction is not maintainable. 9. During the pendency of the proceedings before the trial Court a Court Commissioner was appointed and he submitted a report specifying that the property of defendants and plaintiff measures 27 feet x 28 feet. Ex.P.1 the sale certificate specifies that it is 25 feet x 25 feet. Ex.D.2 the building license issued by the municipality specifies that they have authorised to construct a building of 22 feet x 22 feet. Further the Commissioner's report specifies that the building constructed on the property in question exceeds 22 feet x 22 feet, in the circumstances there is ambiguity in the evidence of both the parties with regard to the construction and also the actual measurements of the site. In the circumstances it is not possible for a Court to grant mandatory injunction in the absence of correct measurements in respect of the property of both the parties. Therefore the finding of the first Appellate Court is supported by evidence on record and same is in accordance with law. Accordingly the question of law framed is answered in negative. 10. As already, stated the plaintiff has not sought for declaration of title in respect of the property actually purchased by him under Ex.P.1. The rectification agreement Ex.P.2 is not registered and the same is disputed by the defendants. In the circumstances it is open for the plaintiff to seek appropriate declaration and consequential reliefs if he is so entitled under law. The rectification agreement Ex.P.2 is not registered and the same is disputed by the defendants. In the circumstances it is open for the plaintiff to seek appropriate declaration and consequential reliefs if he is so entitled under law. 11. With the above observation, the appeal is hereby dismissed.