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2013 DIGILAW 970 (KAR)

K. Appaji v. V. Srinivasa

2013-08-22

ANAND BYRAREDDY

body2013
JUDGMENT Anand Byrareddy, J.—These appeals are heard and disposed of by this common judgment. The appellants are common. The parties are referred to by their rank before the trial court in narrating the facts of the case and in the course of the judgment. The appellants had filed a civil suit in O.S. No. 572/1984. The suit was for the relief of permanent injunction. It was the case of the plaintiffs that they were the sons of one Kenchappa. The suit schedule property had fallen to the share of their father at a partition between their father and his elder brother, Lenkappa, as on 4.7.1947. The property which fell to their father's share was shown delineated by the letters BCDEFHJKB, in a sketch annexed to the plaint. The house in which the plaintiffs were residing was shown by the letters 'CMNJNC'. There was said to be a cart shed appurtenant to the house, right from their father's time. The same was identified by the letters 'MOPQ'. The same measured 12' x 12'. It was the case of the plaintiffs that from the year 1947, their father and after him the plaintiffs have been in continuous possession of the suit property. It was their complaint that the defendant was trying to interfere in their possession. This was in respect of the area marked with the letters 'MODEFQM'. It was claimed that the area marked with the letters 'EFPQR' was the only passage available for the ingress and egress to their house. It was alleged that the defendant was trying to trespass over the same and construct a building thereon. It was further alleged that the defendant had even attempted to demolish the cart shed as on 24.2.1984. This was the background in which the suit came to be filed. 2. The defendant had filed written statement to deny the plaint averments. It was on the other hand asserted that the defendant was the owner of the portion of the suit property marked with the letters 'MODEFQ'. This was purchased by the father of the defendant under a sale deed dated 8.2.1953. After his death there was said to have been a partition amongst the defendant and his brothers and the above portion had fallen to the share of the defendant. It was vacant land and he had applied to the local authority for permission to construct a building. After his death there was said to have been a partition amongst the defendant and his brothers and the above portion had fallen to the share of the defendant. It was vacant land and he had applied to the local authority for permission to construct a building. The plaintiffs are said to have objected to the same. The authorities had then conducted an enquiry and having found that the defendant as the owner was entitled to construct the building had granted license and sanction of the plan for construction. The said order had been challenged by the plaintiffs in a revision petition and the same had been dismissed. It is claimed that it is thereafter that the plaintiffs had encroached on the suit property and constructed the cart shed. It was hence contended that the plaintiffs had come to court by suppressing the true facts. The court below had framed the following issues: O.S. No. 572/1984 1. Whether the plaintiffs prove that they are in possession of the schedule property, particularly the disputed portion marked by letters MODEFQM whereupon the cart shed is situated? 2. Whether the plaintiffs further prove that defendant is illegally and unlawfully trying to trespass on the disputed portion of the suit schedule property? 3. Whether the plaintiffs are entitled to the permanent injunction prayed for in the plaint? 4. What order or decree? The suit was decreed in favour of the plaintiffs. The same having been challenged in appeal before this court in RFA 481/2001, the same was allowed and the matter remanded with a direction to appoint a court commissioner to inspect and report on the actual physical position. It is after the report of the Commissioner so appointed was brought on record that the court had held as follows:-- ORDER The suit of the plaintiffs is partly decreed. The defendant is hereby restrained from interfering with the plaintiffs' possession over the cart shed measuring 12 x 12 feet only indicated with letter MOPQM in the sketch. It is that which is under challenge in this appeal. 3. In the connected appeal, RFA 292/2010, the suit bearing No. O.S. 3175/1999 was filed by respondent, who was the defendant in the above suit, O.S. 672/1984. It is that which is under challenge in this appeal. 3. In the connected appeal, RFA 292/2010, the suit bearing No. O.S. 3175/1999 was filed by respondent, who was the defendant in the above suit, O.S. 672/1984. The suit was for a declaration that the plaintiff was the owner of the property bearing No. 319, Khatha No. 224, Railway station road, Meghala Beedhi, Kengeri, Bangalore, measuring 60' x 48'. It was alleged that one Chinamma and her son Thimmanna were the owners of the suit property. It was sold in favour of K.B. Nanjappa, under a sale deed dated 23.12.1952. Nanjappa is said to have sold the suit property in favour of the father of the plaintiff, under a sale deed dated 8.12.1953. The plaintiffs father is said to have constructed a house in the said property measuring 15' x 15'. The father of the plaintiff is said to have died in the year 1971. The said property is said to have fallen to the share of the plaintiff at a partition between the plaintiff and his brothers under a registered partition deed. The plaintiff claims to have let out the house in the year 1989 in favour of one Vijay Kumar, who had later vacated the same without paying rent. The said house is said to have collapsed. It was claimed that the plaintiff had latently discovered that the plaintiff was not shown as the owner in the municipal records and that the defendant, the plaintiff in the earlier suit, was claiming as the owner, and hence the suit. The plaint averments were denied by the appellant and it was contended that one K.S. Muniyappa and K.S. Thimmappa, sons of Sonnappa, had sold two items of property bearing Nos. 279 and 322 of Kengeri village in favour of Kenchappa under a registered sale deed dated 20.7.1957. The said Kenchappa died in the year 1962, leaving behind the defendants, the khatha had been made out in the name of the first defendant, in the year 1968. He had paid taxes and had also obtained licence to put up additional construction. It was alleged that the suit was only a counter blast to the suit filed by the appellant. The court below had framed the following issues on the above pleadings: O.S. No. 3175/1999 1. Whether the plaintiff proves that he is the absolute owner of the suit schedule property? 2. It was alleged that the suit was only a counter blast to the suit filed by the appellant. The court below had framed the following issues on the above pleadings: O.S. No. 3175/1999 1. Whether the plaintiff proves that he is the absolute owner of the suit schedule property? 2. Whether the plaintiff is entitled for permanent injunction against the defendants and persons claiming under him from interfering in the peaceful possession and enjoyment of the suit schedule property? 3. Whether the plaintiff has paid the proper court fee? 4. What order or decree? The trial court answered the issues in the affirmative and decreed the suit, the present appeal is filed challenging the same. 4. It is contended by the appellant that insofar as the judgment in appeal in RFA 356/2007 is concerned, this court had remanded the matter for fresh consideration with a particular direction to appoint a commissioner to measure the vacant space that exists between the properties bearing Khaneshmari Nos. 277 and 279 and to demarcate the properties bearing khaneshmari Nos. 277 and 278, with reference to documents of both parties. Consequent to the remand the Commissioner appointed was to identify and report regarding the vacant space and passage which were part of the suit schedule property, with particular reference to Exhibit P8, the sale deed dated 8.12.1953 under which the respondent's father is said to have purchased the property in Khaneshmari No. 278, in which the measurement of the property was significantly absent. The boundaries however, were shown as East by the passage leading to the appellants' father's house. Further, Exhibit D. 4, the licence obtained by the respondent to put up construction over the property so purchased by his father, which showed that on the eastern side of the property there was a passage leading to Kenchappa's house. The commissioner had reported that the property in Khaneshmari No. 278 could not be identified, nor the passage situated to the East of it. The appellant had then produced additional evidence and marked Exhibits P-9 to P-16, of these documents, Exhibit P15, a partition deed dated 28.1.1935 entered into between the sons and daughter-in-law of one Thimmappa and Sonnappa, which showed the eastern boundary of the then khaneshmari No. 260 as the way leading to Appayanna's house, the grand father of the appellants herein. The appellant had then produced additional evidence and marked Exhibits P-9 to P-16, of these documents, Exhibit P15, a partition deed dated 28.1.1935 entered into between the sons and daughter-in-law of one Thimmappa and Sonnappa, which showed the eastern boundary of the then khaneshmari No. 260 as the way leading to Appayanna's house, the grand father of the appellants herein. So also Exhibit P. 16, a certified copy of the partition deed dated 19.11.1945 entered into between the legal heirs of Thimmappa to show that khaneshmari No. 260, as it then stood, had fallen to the share of Smt. Chinnamma, who had sold the same to Nanjappa, who in turn, had sold the same to the respondent's father. The said document also showed the eastern boundary as the path leading to Lenkappa's house, the uncle of the appellants herein. 5. It is in this background that the appointment of a second Court Commissioner was sought. However, even the second Court Commissioner had failed to identify khaneshmari No. 278. He had however, indicated a passage between Gangappa's property and the property of the appellants. The trial court had accepted the report wherein the passage was assumed to be 3 or 5 feet, but not 16' x 30' as claimed by the appellants. The passage which is intended to provide access to the cart shed could not be less than 10' wide at least. 6. It is pointed out that the existence of the passage is evident from the fact that two doors of the appellants' house open into the passage and its western side lies Khaneshmari No. 278. The cart shed is to the east of the passage. 7. The trial court has overlooked Exhibit P-14, which is the sale deed of Ganganna, which indicates the western boundary of his property as the appellants' property and in which event, the passage could not exist between the said property and the appellants' property. 8. The cart shed is to the east of the passage. 7. The trial court has overlooked Exhibit P-14, which is the sale deed of Ganganna, which indicates the western boundary of his property as the appellants' property and in which event, the passage could not exist between the said property and the appellants' property. 8. It is contended that the serious consequence of the judgment is completely over-looked by the trial court, it is pointed out that by virtue of the finding that the respondent is the owner of the disputed property, namely, the area demarcated by the letters 'MODEFQM' and reserving liberty to the respondent to take appropriate steps in law to recover possession of the cart shed and in dismissing the suit of the appellants, is not only illegal but also affords a lever to the respondent to harass the appellant. The appellants' property would be completely isolated and would be rendered an island with no access whatsoever. 9. Insofar as the judgment in O.S. 3175/1999, filed by the respondent for declaration of title and permanent injunction in respect of property bearing Khaneshmari No. 319, khata No. 224, is concerned it is reiterated that it was the second attempt on the part of the respondent to lay claim over their property. In the year 1979, the respondent had approached the Town Municipal Council (TMC), Kengeri seeking licence to construct as per a plan which showed his property far beyond its actual measurements and including the appellants' property. The TMG had refused to grant licence on such a finding. He had also made an attempt to obtain khatha in respect of property No. 322 belonging to the appellants. 10. It is contended that the trial court has overlooked the glaring circumstance that in the guise of claiming a declaration of title to property No. 319, the respondent had included part of the appellants' property in No. 322. The circumstance that none of the documents relied upon by the respondent in support of his case indicated the measurement of property No. 319. The respondent had conveniently furnished a false measurement that has now been accepted by the court and thus depriving the appellants of their property. 11. The circumstance that none of the documents relied upon by the respondent in support of his case indicated the measurement of property No. 319. The respondent had conveniently furnished a false measurement that has now been accepted by the court and thus depriving the appellants of their property. 11. It is pointed out that Exhibits P4, P5, P9, P10, P12 and P13, namely, the sale deed said to have been executed by Nanjappa in favour of the respondent's father, the sale deed said to have been executed in favour of Chinamma and her son Thimmanna in favour of Nanjappa and the partition deed said to have been entered into between the respondent and his family members. It is for the first time that measurements of the respondent's property is mentioned in a notice issued to the tenant Vijaya Kumar at Exhibit P-7. 12. It is pointed out that the trial court having applied the principle - the boundaries would prevail over measurement-has been pressed into service, inappropriately. In that, in reconciling the existence of the property of the appellant which is defined with boundaries and measurement with the property of the respondent defined only by boundaries can be accommodated only after taking into account the appellants' extent of property and not the other way, in proceeding to accept the incorrect measurement provided by the respondent. The principle -- boundaries prevailing ever measurement -- would more properly apply when there is a dispute about given measurement and to accommodate marginal correction of the extent. 13. On the other hand, the learned counsel for the respondent seeks to justify the reasoning of the trial court. 14. Insofar as the suit for injunction filed by the appellant is concerned, the trial court would categorically find that the fact of a cart shed being in existence is not disputed by the defendant though it is claimed to be unauthorized and said to have been put up on the defendant's property. 15. It is also found as an admitted fact that the defendant's property is to the north of the plaintiffs property. This is also endorsed by the two Commissioners' Reports on record. 16. 15. It is also found as an admitted fact that the defendant's property is to the north of the plaintiffs property. This is also endorsed by the two Commissioners' Reports on record. 16. The trial court has observed that the property of the plaintiffs and the property of the defendant as shown in the documents on which they principally rely on to claim title, namely Exhibits P. 1 and P. 8, respectively, do not contain the measurements of the respective properties. But has proceeded to accept certain measurements shown by the second commissioner's report as being the plaintiffs' property and the defendants' property, demarcated by measurements. 17. Insofar as the passage which the plaintiffs claim as the only access to the from their house to the road on the northern side. The following is the opinion expressed by the trial court: 22. Now the real controversy is about the passage, about which the plaintiffs say that it is the only access available to them for ingress and egress to their house. No doubt the witnesses P.W. 2 to P.W. 4 consistently speak about a passage being used by the plaintiffs as an access to the Northern side road and that DW 1 also answers in the Cross Examination that there is a road on the northern side Plaintiffs' house, that it is the only road and that the plaintiffs have no road on the eastern side. If these answers can only be considered, definitely the plaintiffs are entitled for permanent injunction. But intriguing facts appear to be some what otherwise. If at all the plaintiffs are entitled for the relief of injunction, they must not only make out a case absolutely warranting its grant and that their claim for the same is justifiable. Since the granting of a relief of injunction is within the realm of discretion of the court and based on equitable considerations, it is to be seen whether the plaintiffs have been able to establish a high degree of probability in their case. 23. The inkling as regards the existence of passage to the Plaintiffs' house is available in the sale deed dated 8.22.1953 in Ex. P. 8. This is the sale deed under which the defendant's father purchased a site bearing Khaneshmari number 278. Here, the eastern boundary is shown as a way leading to Kenchappa's house and the southern boundary is shown as Kenchappa's house. P. 8. This is the sale deed under which the defendant's father purchased a site bearing Khaneshmari number 278. Here, the eastern boundary is shown as a way leading to Kenchappa's house and the southern boundary is shown as Kenchappa's house. This Kenchappa's none other than Plaintiffs father. The boundaries given in the sale deed are not at dispute. In fact this sale deed came into being many years before the lis commenced between the parties in this suit. If the boundaries given in this sale deed are compared with the sketch prepared by the second commissioner, i.e. Ex. C-14, it can be said that the topography noticed and reported by this commissioner perfectly tallies with the boundaries mentioned Ex. P. 8. The Plaintiffs counsel, in his written arguments, makes a reference to Ex. P. 14 and P. 15 and argues that in these documents there is no mention about the road or passage existing on the eastern side of the Plaintiffs' property and therefore the only passage available to the plaintiffs is the one which they are using now. It may be a fact that in some of the documents relating to the property of one Gangappa and others, there is no mention about the passage leading to Kenchappa's house, as has been mentioned in Ex. P. 8. For this reasons, it is impossible to conclude that the said passage is not there. I have to draw this inference firstly for the reason that the plaintiffs do riot dispute the report given by the second commissioner. They accept it in toto. Secondly when DW-1 was being cross examined, the plaintiffs' counsel would suggest to him that according to the sale deed of the year 1953, the eastern boundary has been mentioned as road leading to the house of Kenchappa. DW-1 may deny this suggestion, which is also not acceptable as he is bound by this document, but by giving this suggestion the plaintiffs could impliedly admit the correctness of the boundaries mentioned in Ex. P. 8. Therefore, the passage that is established to be in existence is the one indicated by the second commissioner in Ex. DW-1 may deny this suggestion, which is also not acceptable as he is bound by this document, but by giving this suggestion the plaintiffs could impliedly admit the correctness of the boundaries mentioned in Ex. P. 8. Therefore, the passage that is established to be in existence is the one indicated by the second commissioner in Ex. C-14 to be more clear the passage available to the plaintiffs for their ingress and egress to their house is the one which is in existence in between Plaintiffs' house and Gangappa's house, not the one as shown by the plaintiffs in their sketch. (Emphasis supplied) 18. Except for the above assumption, which on the face of it is not tenable, it is evident that the trial court has negated the clear evidence that the passage claimed by the plaintiff was clearly established by oral and documentary evidence. The trial court has, apart from this unfair departure from material available in favour of the plaintiffs has primarily concluded that the defendant's property was of the dimension indicated by the commissioner's report. The basis for which was not provided. The boundaries as defined in the respective title deeds of the parties merely indicated that the properties were adjacent to each other. There is no clue as to how the trial court could conclude that the cart shed and the passage were found over the defendant's property. Therefore the finding of the trial court and the conclusion in dismissing the suit is without acceptable reasons and consequently the appeal deserves to be allowed. 19. Insofar as the suit for declaration and injunction filed by the respondent is concerned, it would be seen that the trial court has after much repetition of the pleadings and the arguments canvassed by the respective parties has arrived at a firm conclusion that the plaintiff was not claiming any right over property No. 322 and likewise the appellants, who were the defendants, were not claiming any fight over property No. 319 - which was the suit schedule property. It was also admitted that 319 was to the east of 322. It was however, the contention of the appellants, (defendants) that one Muthaiah had constructed a house in property No. 322, which was the eastern boundary of property No. 319 and shown as vacant land belonging to Nanjappa. It was also admitted that 319 was to the east of 322. It was however, the contention of the appellants, (defendants) that one Muthaiah had constructed a house in property No. 322, which was the eastern boundary of property No. 319 and shown as vacant land belonging to Nanjappa. The trial court has then observed that the defendants had not examined Muthaiah, to establish that he had constructed a house therein. The assertion of the defendant in his cross-examination to the effect that Muthaiah had encroached on property No. 319 and constructed a house was inconsistent with his statement in the affidavit by Way of examination-in-chief. This the trial court has held against the defendants and proceeded to concede the case of the plaintiff as to the extent of the property claimed. It is the manner in which the trial court has concluded that the respondent (plaintiff) was entitled to an extent of land measuring 44 feet by 48 feet that is perplexing. The trial court itself has found that neither party's title deeds mentioned the extent, therefore to concede that the respondent was entitled to the said extent was without basis. 20. The later suit, as rightly contended by the appellant was intended to be a counter blast to the earlier suit filed by the plaintiff and the controversy has been confounded in both the properties of the respective properties not being indicated by measurements and one seeking to establish a case over the other on the basis of discrepancies and inconsistencies in their pleadings or evidence. 21. In any event, in the opinion of this Court, the court below has proceeded without any basis in finding favour with the respondent in both these appeals. Consequently, the appeals are allowed. The judgment and decree in O.S. 572/1984 is set aside and the suit is decreed as prayed for. The judgment and decree in O.S. 3175/1999 is set aside and the suit is dismissed insofar as the claim of the plaintiff of interference by the defendants, in any portion of the property as described in Exhibit P. 13. The declaration of the extent of the property of the plaintiff is without basis and is set aside.