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2012 DIGILAW 836 (KAR)

M. G. Jagadish v. Venkataramanappa

2012-10-01

A.S.BOPANNA

body2012
JUDGMENT A.S. BOPANNA, J.—The appellants herein are the plaintiffs in O.S. No. 4967/2006. The suit was filed seeking for declaration and permanent injunction. The Court below after considering the rival contentions has dismissed the suit. The plaintiffs are therefore before this Court in this appeal. 2. The parties would be referred to in the same rank as assigned to them before the Court below for the purpose of convenience and clarity. 3. The case of the plaintiffs is that the defendants were the joint owners of the land bearing Sy. No. 83/2B of Doddakanneli village, Varthur Hobli, Bangalore East Taluk. The said property is described in Schedule ‘A’ to the plaint. The total extent of the land is 19 guntas. The defendants entered into an agreement with the first plaintiff to sell a portion of the unconverted agricultural land situate on the back portion of the Schedule ‘A’ property. The plaintiff contends that at that point it was assured that the plaintiff would be provided with an approach road measuring 24 ft in width from Sarjapur main Road up to the property to be sold to the first plaintiff. Based on such assurance, the first plaintiff agreed to purchase the portion now sold to him under a registered sale deed dated 07.04.2006. Under the said sale deed, the property measuring 0.03 guntas (3267sq. ft.) was conveyed. The said extent is indicated in schedule B. It is their further case that the defendants also agreed to sell site No. 5, another portion of the ‘A’ schedule property, to the second plaintiff and in that regard also, it was assured that a 24 ft wide road from Sarjapur Main Road up to the property sold to the second plaintiff would be provided. Based on such assurance, the second plaintiff purchased the property described in ‘C’ schedule under registered sale deed dated 04.05.2005. 4. The plaintiffs further state that the defendants had represented to them that they had entered into an agreement with the owner of the adjoining property to provide for a road as promised to the defendants. The defendants thereafter kept assuring that the road would be provided. 4. The plaintiffs further state that the defendants had represented to them that they had entered into an agreement with the owner of the adjoining property to provide for a road as promised to the defendants. The defendants thereafter kept assuring that the road would be provided. At the time of purchase, the defendants assured that if they are unable to secure the road from the owner of the adjacent property, they would provide the same within Schedule ‘A’ property itself by demolishing a portion of the building owned by the defendant. In that regard, an endorsement dated 08.04.2006 was also signed by the defendants is their case. The plaintiffs contend that the access road is absolutely necessary for putting the property purchased by them to meaningful use and for better enjoyment of the same. The defendants continue to be the owners of the remaining portion of schedule ‘A’ property and as such they had assured the plaintiffs that the said access road would be provided within a period of three months from 08.04.2006. Despite such assurance, no steps have been taken by the defendants on the pretext that the adjacent land owner has refused to cooperate. The owner of the adjacent property has in fact erected a compound wall at present on the eastern side of the Schedule ‘A’ property. The only access to the plaintiff’s property is through the 24 ft road from the main road which would have to be provided by the defendants by making way in the Schedule ‘A’ property even if the owner of the adjoining property does not cooperate. The plaintiffs are presently using a strip of land on the eastern side of Schedule ‘A’ property which measures only 9 ft in width as the pre-existing building abuts into the ‘D’ schedule property. Even the said building which was kept vacant is now being let out and if any third party enters the building, it would effect the process of securing the access road to the property of the plaintiffs. It is in that context, the plaintiffs have approached the Court below praying for the relief as noticed. 5. The defendants who have entered appearance have filed their separate written statement. The first defendant admits that the defendants were the joint owners, had agreed to sell the property in the rear portion to the plaintiffs. It is in that context, the plaintiffs have approached the Court below praying for the relief as noticed. 5. The defendants who have entered appearance have filed their separate written statement. The first defendant admits that the defendants were the joint owners, had agreed to sell the property in the rear portion to the plaintiffs. It is contended that the plaintiffs were well aware that the defendant as well as the plaintiff had an approach road to their respective property which measured only an extent of 11 ft × 170 ft. The plaintiffs were satisfied with the existing approach road and accordingly, proceeded to purchase the property. It is denied that the defendants at any point had entered into an agreement with the owner of the adjoining property to provide the road. The endorsement said to have been executed is also denied. The first defendant contends that at the time of execution of the sale deed it was made clear to the plaintiff that the existing road is 11 ft in width. Though there was a common road which was being used by the defendants and the owner of the adjoining property, he has put the compound wall. The defendants in fact have objected to such illegal act by the neighbour. However, insofar as the plaintiffs and the defendants are concerned, the right available to pass through the property of the defendants as an approach road was only to the extent of 11ft width. The building admittedly was existing prior to the purchase of the property by the plaintiffs and as such the plaintiffs in any event cannot seek for demolishing the same and providing a wider road. 6. The second defendant has filed the written statement denying the case put forth by the plaintiffs. The said defendant contends that except for executing the registered sale deed on 04.05.2005 in favour of the second plaintiff, there is no other document. The contention that the plaintiffs agreed to purchase the property on the condition that a 24 ft wide road would be provided is denied. The only document executed is the sale deed and the width of the road is not mentioned under the sale deed. The assurance said to have been made by the defendant of providing the road by demolishing a portion of the building is also denied. The only document executed is the sale deed and the width of the road is not mentioned under the sale deed. The assurance said to have been made by the defendant of providing the road by demolishing a portion of the building is also denied. It is his case that the defendants have noticed the endorsement for the first time after it was filed in the suit but, it has not been signed by the defendants. It is specifically denied that the defendants had purchased any stamp paper on 08.04.2006. It is contended that the defendants neither are able to read and write English nor understand the same and as such the entire document is forged, fabricated, concocted and created for the purpose of filing the present suit. The defendant also contends that the first plaintiff has purchased the land contrary to the provisions of Karnataka Land Reforms Act. 7. The Court below after taking note of the rival contentions, has initially framed 5 issues and thereafter 2 additional issues were framed. They are as hereunder: Issues 1. Whether Plaintiff prove that the Defendants are liable to provide the road measuring 24 × 170 shown in D schedule as private road, in terms of the agreement between the parties? 2. Whether Plaintiff prove that the Defendants have agreed to provide the private road measuring 24 × 170 for the use of Plaintiffs and other occupants of B and C schedule properties? 3. Whether the Plaintiff proves that the Defendants are illegally trying to alienate D schedule property in favour of third parties? 4. Whether Plaintiffs are entitled for the reliefs sought for? 5. What order or decree? Additional Issues 1. Whether the Defendants prove that the suit is bad for mis-joinder of cause of action? 2. Whether Defendants prove that the suit is hit by provisions of Karnataka Land Reforms Act? 8. The first plaintiff examined himself as PW.1 while the second plaintiff examined herself as PW.2 and in the application filed alleging violation of the interim order, she examined herself as PW.3. The documents at Exhs.P1 to P21 were relied upon for the main suit and the documents at Exhs.C1 to C18(a) were relied upon for consideration of the application. The first defendant examined himself as DW.1 and the second defendant examined himself as DW.2 while the first defendant examined himself also as DW.1 in defence of the application. The documents at Exhs.P1 to P21 were relied upon for the main suit and the documents at Exhs.C1 to C18(a) were relied upon for consideration of the application. The first defendant examined himself as DW.1 and the second defendant examined himself as DW.2 while the first defendant examined himself also as DW.1 in defence of the application. The documents at Exhs.D1 to D7 were relied upon in defence of the suit, while the documents at Exhs.E1 to E5 were relied upon in defence of the application. 9. Heard Sri B.S. Sachin, learned counsel for the plaintiffs and Sri V.B. Shivakumar, learned counsel for the defendants and perused the appeal papers. 10. Though several contentions had been advanced before the Court below and the Court below had also adverted to considering the right of the parties keeping in view the provisions contained in the Karnataka Land Reforms Act and Easements Act, the learned counsel for the parties more particularly the learned counsel for the plaintiff would contend that the plaintiffs in fact are seeking right to the 24 ft wide road based on the endorsement dated 08.04.2006 which would be the basis for the right claimed by the plaintiffs seeking for the relief in the suit. 11. In that view, the only question that would arise for consideration is as to, Whether the plaintiffs have established their right as claimed under the endorsement dated 08.04.2006 (Ex.P2) ? 12. The rival contentions as urged in the suit had been noticed and the burden of establishing that such right for enjoyment of a 24 ft × 170 ft road should be available to the plaintiff as a matter of right was on the plaintiffs since they have relied on an endorsement dated 08.04.2006. The first plaintiff examined himself as PW.1 and reiterated the contentions which were put forth in the plaint. He is the purchaser of the property measuring 0.03 guntas from the second defendant under sale deed dated 07.04.2006 at Ex.P1. The other extent of the property is purchased by the second plaintiff from both the defendants under the document at Ex.P7. The document under which the second plaintiff purchased is dated 04.05.2005. Though PW.1 has been subjected to detailed cross-examination, the other aspects as already noticed would not be relevant. The other extent of the property is purchased by the second plaintiff from both the defendants under the document at Ex.P7. The document under which the second plaintiff purchased is dated 04.05.2005. Though PW.1 has been subjected to detailed cross-examination, the other aspects as already noticed would not be relevant. However, insofar as the road in question, the fact that a lorry could proceed in the said road has been voluntarily stated by him. Insofar as the document, he states that he has not read over the sale deed to see whether there is a provision to provide road to his property. He admits with regard to the partition between the first and second defendants and would state that he does not know whether Venkataramanappa had agreed to provide road to the property of Nagaraj. The endorsement at Ex.P2 has been seen by him and he would contend that it has been executed by the defendants and the suggestion that it has not been signed by them has been denied. Similarly the second plaintiff-PW.2 has reiterated the contentions raised in the plaint and the cross examination is on similar lines. She would admit that the document Ex.P2 was not given along with her sale deed but, she would state that it was given to plaintiff No. 1 and was signed in her presence. On the other hand, the first defendant has examined himself as DW.1 and has reiterated the contentions put forth in the written statement denying that he had agreed with regard to providing a 24 ft wide road. Insofar as the road, he has stated in the cross examination that on the eastern side of their property, there is a property belonging to Sri Nagappa Shetty and the road has been left from the date of purchase. They had purchased the site together and left a portion of the site each as common road, the width of which was 22 ft for which each of them had left 11 ft. He would state that even at the time of construction of the building, the common road was in existence and would admit that in view of the construction of the wall by Nagappa Reddy, the width of the road had reduced. He would also state about the steps that he had taken when such construction was put up. He would state that even at the time of construction of the building, the common road was in existence and would admit that in view of the construction of the wall by Nagappa Reddy, the width of the road had reduced. He would also state about the steps that he had taken when such construction was put up. The second defendant examined himself as DW.2 and he has reiterated the averments in the objection. He has also been cross-examined in the similar lines. 13. From the evidence, there can be no doubt that at the point when the plaintiffs purchased two different items of property from the defendants, there was a 22 ft wide road from Sarjapur Road to the property purchased by the plaintiff which was on the hind side of the defendants’ property. The fact that the said road was abutting the already existing building belonging to the first defendant is also not in dispute. The plaintiff has relied on the sketch at Ex.P6 while the defendants have produced the sketch as Ex.D4. The document at Ex.D4 makes a proper representation of the different items of the property including the property belonging to Sri Nagappa Reddy. If the said sketch is perused, it would indicate that the 22 ft wide road which was in existence at the point when the plaintiffs purchased the property was constituted of the land belonging to the defendants as also the said Sri Nagappa Reddy. In that context, a perusal of the sale deed at Ex.P7 where under the second plaintiff purchased the property would show the eastern boundary as 24 ft wide road. As compared to the same, the southern boundary of the land purchased by the first plaintiff under Ex.P1 is shown as land belonging to G. Chitra Poornima and 24 ft road. What is also to be noticed is that even prior to the sale made in favour of the plaintiffs herein, the defendants had sold portions of the property under two sale deeds dated 24.11.2003 to Smt. Bandana Kumari and Sri R. Nagaraj which are at Exhs.P12 and P13. The said properties being on the front portion would show the southern boundary as road and to the other sale deed, the eastern boundary as road. The said properties being on the front portion would show the southern boundary as road and to the other sale deed, the eastern boundary as road. From the remaining property, a portion has been sold to the second plaintiff as per Ex.P7 and the left over property has been partitioned between the first defendant and the second defendant. The portion which has fallen to the share of second defendant does not indicate the road to any of its boundaries and it is the said extent which has been sold by the second defendant to the first plaintiff. The said transactions would disclose that the property purchased by the first plaintiff is the inner most portion beyond the property purchased by the second plaintiff. 14. Keeping in view all the above transactions, what is also to be noticed is that though in the sale deed of second plaintiff the road is shown as 24 ft, the said plaintiff has joined the first plaintiff to claim right under Ex.P2. The sale deed of the first plaintiff as already noticed is dated 07.04.2006. The endorsement Ex.P2 has been seriously disputed by the defendants. The learned counsel for the plaintiffs would contend that DW.1 in his cross examination has stated that the signature appears like his signature and as such the same should be construed as an admission of the document and nothing more was to be proved and burden had shifted. Since the admitted signatures of the defendants are available in all the other documents at Exhs.P1, P7, P11 and P12 and if they are compared with the signatures appearing on Ex.P2 in view of the above said contention, it cannot be said with certainty that it is exactly their signatures. The said statement made by the defendants’ witness that it appears similar and though even to this Court it seems similar, that in itself cannot be a reason to conclude that it is their signature when they have seriously disputed the same. The position of law is also that while comparing the signatures, one should not look for the similarities since even a person who seeks to fabricate will put in his efforts to make it look similar. Hence, the dissimilarities are to be seen which could have been done by an expert and such steps should have been taken when it was denied. Hence, the dissimilarities are to be seen which could have been done by an expert and such steps should have been taken when it was denied. In the instant case, there is no witness to the document at Ex.P2 who could have spoken about the understanding entered into therein and the endorsement being executed by the defendants themselves. In the absence of the witnesses the burden was more onerous on the plaintiff to establish the said document. Insofar as the second plaintiff, though she has purchased under the sale deed dated 04.05.2005, the present document at Ex.P2 is claimed to be executed in her favour also on 08.04.2006. Further the sale deed under which the first plaintiff has purchased the property is dated 07.04.2006 and it does not stand explained as to why the contents as stated in the endorsement could not have formed a part of the covenant in the sale deed itself, if in fact a document was executed on the next day, so that it could have been enforced. In such a situation, the plaintiffs not only could have relied on the same but, the same should have been proved with appropriate witnesses. There is absolutely no material to show that in what circumstances the parties had met and had secured the document when there is no indication in the earlier document.15. In such circumstance where the only document on which reliance was placed to contend that there was assurance that a 24 ft wide road would be provided in the manner stated therein not being proved in accordance with law, the other aspects also do not lend credence to the same. From the very averment in the plaint it would disclose that the building belonging to the second defendant was already in existence and abutting the same, the road measuring 22 ft was in existence when they bought the property. It would also disclose that the plaintiffs were aware that one portion of that road belonged to Sri Nagappa Reddy. Having known the said position, the plaintiff s have not placed any materials to show as to whether they had made their own enquiries with regard to the right to use the road which had been left by common understanding between the defendants and Sri Nagappa Reddy. Having known the said position, the plaintiff s have not placed any materials to show as to whether they had made their own enquiries with regard to the right to use the road which had been left by common understanding between the defendants and Sri Nagappa Reddy. Without these aspects being clarified and when the second plaintiff has purchased the property in the year 2005 and the first plaintiff has purchased on 07.04.2006, it becomes difficult to accept that an endorsement could have been given by the defendant at that stage undertaking to demolish their building which was already in existence only to provide a wider road. In that regard the date of filing of the instant suit on 14.06.2006 also becomes relevant. The nature of the undertaking from the endorsement would disclose as if the defendants had undertaken to provide the 24 ft wide road from the remaining portion of their property if they were unable to get the same from the owners of the adjacent land. If such undertaking by way of endorsement was to be pressed into service, in a suit which was filed within a period of two months from the date of the alleged endorsement, there ought to have been particulars as to when the size of the existing road had been reduced by the neighbouring site owners. Further the suit is filed even before the period mentioned was over. Therefore, in the facts and circumstance where the endorsement has not been proved in accordance with law and more particularly in a circumstance where a right to an extent of the remaining 15 ft × 170 ft of valuable land is being sought, the plaintiffs ought to have been diligent in obtaining necessary assurances with appropriate documents which would have been valid in law for the purpose of enforcement. Hence, it would have to be held that the right claimed under the endorsement was not proved. Therefore, the Court below in any event was justified in its ultimate conclusion to dismiss the suit. 15. In the result, the appeal is devoid of merit and the same is accordingly dismissed. 16. In the facts and circumstances of the case, the parties to bear their own costs.