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2014 DIGILAW 948 (KAR)

G. N. Hanumanthaiah v. Patel Narasegowda

2014-10-30

R.B.BUDIHAL

body2014
Judgment : 1. This appeal is preferred by the appellant-plaintiff being aggrieved by the judgment and decree dated 4.1.2006 passed by the Fast Track Court-V at Tumkur in R.A. No.235/2005, whereby the first appellate court has partly allowed the appeal and modified the impugned judgment and decree dated 29.6.1993 passed in O.S. No.67/1986 by the learned Principal Judge (Jr. Dn.), Madhugiri. 2. The facts leading to the filing of this case are that appellant-plaintiff filed the aforesaid suit before the trial Court for the relief of declaration that he is the owner of the suit schedule property and also for permanent injunction restraining the defendant, his agents and servants and all others claiming under him from interfering with peaceful possession and enjoyment of the suit schedule property by the plaintiff. In the plaint, the plaintiff has pleaded that he is the owner in possession of the suit schedule land bearing Sy. No.51/1 as shown in the schedule to the plaint. He inherited the said property through his father, who purchased it from his previous owner by a registered sale deed dated 26.9.1966. The defendant has no right whatsoever and even if he had any right over the suit schedule property, it has been lost. Plaintiff has further pleaded that he has perfected his title to the property after enjoying it for more than 12 years openly and uninterruptedly and hostile to the interest of others. Hence, he has perfected his title to the suit schedule property by adverse possession. It is further pleaded that the defendant is now claiming that he has purchased a portion of the suit survey number marked as ABCD in the rough sketch annexed to the plaint and also attempting to interfere with the peaceful possession and enjoyment of the suit schedule property by the plaintiff. Even if the defendant had any right over the suit schedule property, he had lost it by allowing the plaintiff to enjoy for more than 12 years. It is further pleaded that when he questioned the illegal act of the defendant, the defendant denied the plaintiff's title to the suit schedule land. Hence, the plaintiff filed the aforesaid suit. 3. The defendant filed written statement denying the averment that plaintiff is the owner in possession of the suit schedule property. Plaintiff's father and his alleged vendor had no right, title or possession over the suit schedule property. Hence, the plaintiff filed the aforesaid suit. 3. The defendant filed written statement denying the averment that plaintiff is the owner in possession of the suit schedule property. Plaintiff's father and his alleged vendor had no right, title or possession over the suit schedule property. The alleged sale deed dated 26.9.1966 does not convey title or possession over the suit property and it is a got up document. The defendant has denied plaintiff's title to the suit property by adverse possession and he has also denied that he is claiming only the land marked as ABCD in the sketch. The sketch is not correct and it is misleading. The boundaries given in the sketch are also incorrect. The defendant has stated that the land on the west by the side of Rayagaluve previously belonged to one Narayana Shetty. Narasimhachar has constructed a house situated on the north of the land of the defendant. The plaintiff cannot make any claim to the land measuring 20 yards towards south from the house of Narasimhachar and between Gowribidanur and Madhugiri Road on the east and Rayagaluve on the west. It is false that the plaintiff has any interest or possession over the same. The entire Sy. No.51 originally belonged to one Abdul Nabisab of Madhugiri town. He sold 40 yards East-West and 20 yards North-South between Madhugiri-Gowribidanur road, to the defendant under the registered sale deed dated 4.11.1946. On the East the land of Narayana Shetty, on the eastern border of which, there is Rayagaluve now, and the house of Narasimhachar on the North. Since the date of registration, the defendant is in possession and enjoyment of the same. There is no cause of action for the suit and hence, sought to dismiss the suit. 4. On the basis of the above pleadings, the trial Court framed as many as ten issues, which are as under: 1. Whether T.E. Renukanandaiah was the owner of the suit land? 2. Whether plaintiff's father purchased the suit land from Renukanandaiah under sale deed dated 26-9-66? 3. Whether plaintiff has inherited the suit land from his father? 4. Whether plaintiff has perfected his title to the suit land by adverse possession? 5. Whether plaintiff is in lawful possession of the suit land? 6. Whether entire survey No.51 belonged to Abdul Nabisab? 7. Whether plaintiff's father purchased the suit land from Renukanandaiah under sale deed dated 26-9-66? 3. Whether plaintiff has inherited the suit land from his father? 4. Whether plaintiff has perfected his title to the suit land by adverse possession? 5. Whether plaintiff is in lawful possession of the suit land? 6. Whether entire survey No.51 belonged to Abdul Nabisab? 7. Whether defendant is the owner of the land described in para 7 of the written statement having purchased the same under sale deed dated 4.11.1946 ? 8. Is the alleged interference true? 9. To what reliefs is the plaintiff entitled? 10. What order? 5. After considering the merits of the case, the trial court decreed the suit of the plaintiff and declared that plaintiff is the owner of the suit schedule property. The trial court has also granted permanent injunction as prayed for in the suit. Aggrieved by the judgment and decree of the trial court, the defendant preferred an appeal in R.A. No.235/2005 before the Fast Track Court-V, Tumkur. The first appellate court, after considering the merits of the appeal, allowed the appeal in part and the judgment and decree of the trial court is modified. The plaintiff is declared as owner of the suit property excluding the property of the defendant which is bounded East by Madhugiri-Gowribidanur Road, West by Rayagaluve, North by house of Narasimhachar and South by remaining land in Sy. No.51/1 to a width of 20 yards North South. The defendant is restrained by an order of permanent injunction from interfering with the plaintiff's possession of the suit property excluding portion of the property belonged to the defendant as described above. 6. Challenging the legality and correctness of the judgment and decree of the first appellate court, the appellant-plaintiff has preferred the present regular second appeal. 7. While admitting the present appeal, this Court has framed the following substantial questions of law for consideration: 1. Whether the Lower Appellate Court was justified in reversing the judgment and decree of the trial court and in that regard, whether the Lower Appellate Court was justified in coming to the conclusion that the defendant is entitled to the property beyond the boundaries which is indicated in the sale deed? ii. Whether the purchase could be considered as approximate when the boundaries are furnished in the sale deed? 8. ii. Whether the purchase could be considered as approximate when the boundaries are furnished in the sale deed? 8. Heard the arguments of the learned Counsel appearing for appellant and also the learned counsel appearing for respondent. 9. Learned counsel appearing for the appellant-plaintiff, during the course of the arguments, has submitted that the trial court has properly appreciated the materials on record, both oral and documentary, and has rightly decreed the suit of the plaintiff. However, the first appellate court, without considering the materials on record, has committed an error in modifying the judgment and decree of the trial court by partly allowing the appeal. The learned counsel submitted that the appellant has made out a case about the illegality in the judgment and decree of the first appellate court and hence, submitted to allow the appeal and to confirm the judgment and decree of the trial court. 10. As against this, learned counsel appearing for respondent-defendant during the course of the arguments made submission that the first appellate court has correctly appreciated the oral and documentary evidence on record and has rightly allowed the appeal and modified the judgment and decree of the trial court. There is no illegality nor there is any perverse or capricious view taken by the first appellate court in allowing the appeal. Hence, he submitted to dismiss the appeal. In support of his contention, the learned counsel has relied upon the following decisions: 1. ILR 1990 KAR Short No.4 (M/s Hind Plastic Industries Vs. Labour Court) 2. ILR 1988 KAR 554 Narasimha Shastry Vs. Mangesha Devaru. 11. I have perused the pleadings of the parties presented before the trial Court, oral and documentary evidence, judgment and decrees passed by both the courts below and also the grounds urged in the appeal memorandum before this Court. 12. The plaintiff filed the aforesaid suit seeking declaration that he is the owner of the schedule property bearing Sy. No.51/1 measuring 10 acres 23 guntas and for permanent injunction. In the plaint, the plaintiff has pleaded that defendant is not the owner of any portion of the property out of Sy. No.51/1 and even if he has any right, he has lost that right. No.51/1 measuring 10 acres 23 guntas and for permanent injunction. In the plaint, the plaintiff has pleaded that defendant is not the owner of any portion of the property out of Sy. No.51/1 and even if he has any right, he has lost that right. Looking to the pleadings presented by the plaintiff, he has claimed that he has become owner of the suit schedule property by adverse possession as he is continuously in possession and enjoyment of the said property for more than 12 years. But, it is the stand of the defendant in the written statement that he had purchased the said property as mentioned in Ex.D.1-sale deed from one Abdul Nabisab and the plaintiff has no right, title or interest over the said property. 13. Regarding plea of adverse possession as claimed by the plaintiff, the trial court framed issues. One of the issues is as to whether the plaintiff has perfected his title to the suit land by adverse possession. The judgment of the trial court goes to show that during the course of arguments, the counsel appearing for the plaintiff submitted that the plaintiff is not going to press the claim and accordingly, it was answered in the negative by the trial court. The trial court, decreeing the suit of the plaintiff as claimed by him, has held that plaintiff is the owner of the suit schedule property except the area shown in Ex.P.10-sketch prepared by the Court Commissioner. The trial court, during the course of the trial of the suit, appointed the Court Commissioner to inspect the property and to submit a report. Accordingly, the Court Commissioner submitted a report stating that defendant is the person who purchased the property as shown in Ex.P.10- sketch. The Court Commissioner, while preparing the Ex.P.10-sketch, gave the measurement that the defendant is the owner to an area of 40 yards and 20 yards. Aggrieved by the judgment and decree passed by the trial court, the defendant preferred an appeal in R.A. No.235/2005 and the first appellate court has allowed the appeal modifying the judgment and decree passed by the trial court to some extent. 14. It is the claim of the plaintiff that on western side of the land of the defendant in between the land of the defendant and the land of one Narayana Shetty, there is some portion of land pertaining to Sy. 14. It is the claim of the plaintiff that on western side of the land of the defendant in between the land of the defendant and the land of one Narayana Shetty, there is some portion of land pertaining to Sy. No.51/1 and the plaintiff is also the owner of the said portion. But the first appellate court, while appreciating the materials placed before it, has considered the point whether the land of the defendant extends upto Rayagaluve on the west or there is remaining portion of the land of the said survey number belong to the plaintiff in between the defendant's property and the Rayagaluve. The first appellate court has observed in its judgment that according to the Commissioner's sketch-Ex.P.10, there is some portion of the land bearing suit survey number between Rayagaluve and the properties said to have been purchased by the defendant measuring East-West 40 yards and North-South 20 yards. It is the contention of the defendant that the property purchased by him approximately measures East- West 40 yards and North-South 20 yards. But the said property purchased by him is defined with definite boundaries. The property of the defendant is bounded on the East by Madugiri-Gowribidanur road, West by land of Narayana Shetty, North by house of Narasimhachar and South by remaining portion of suit schedule property. But the trial court has observed that there is no mention in the sale deed-Ex.D.1 regarding Rayagaluve on the west and hence, it is not possible to conclude that the property purchased under Ex.D.1 extends upto Rayagaluve on the western side. But the first appellate court has rightly appreciated that the vendor of the defendant i.e., Abdul Nabisab has not retained any portion of the land in Sy. No.51 towards west of the property purchased by the defendant under Ex.D.1 as the western boundary is shown as the land of Narayana Shetty. It is further observed by the first appellate court that the plaintiff has admitted that there is Rayagaluve on the western side of Sy. No.51/1. The Commissioner's sketch-Ex.P.10 also discloses the existence of Rayagaluve towards west of land in Sy. No.51/1. It is further observed by the first appellate court that the plaintiff has admitted that there is Rayagaluve on the western side of Sy. No.51/1. The Commissioner's sketch-Ex.P.10 also discloses the existence of Rayagaluve towards west of land in Sy. No.51/1. The sketch goes to show that Rayagaluve is running on the eastern edge of the land of Narayana Shetty and it also goes to show that the land purchased by the defendant extends upto Rayagaluve, which is the eastern boundary of the land of said Narayana Shetty. Therefore, considering the aspect that the land purchased by the respondent-defendant under Ex.D.1 is of the year 1946, which is much earlier to the sale deed Ex.P.1 under which the appellant-plaintiff has purchased the property, and as the vendor of the defendant while selling the property to the defendant has not mentioned in Ex.D.1 that the boundary is on the western side of the remaining portion of Sy. No.51, I am of the opinion, the first appellate court has rightly come to the conclusion that the property of the defendant on the western side extends upto the boundary of the Rayagaluve. The first appellate court has also rightly observed with regard to the oral evidence of the Court Commissioner that the plaintiff is in possession of the area which is in between the land of Narayana Shetty and Rayagaluve. The first appellate court has held that the Commissioner is not a competent person to speak about the possession of the property either by the plaintiff or by the defendant and it is to be appreciated on the basis of the other available materials on record. Taking these aspects into consideration, ultimately, the first appellate court has partly allowed the appeal and modified the judgment and decree of the trial court stating that the appellant-plaintiff is declared as owner of the suit schedule property excluding the property of the defendant which is bounded, East by Madhugiri- Gowribidanur Road, West by Rayagaluve, North by house of Narsimahachar and South by the remaining land in Sy. No.51/1 to a width of 20 yards North-South and the defendant is restrained by an order of permanent injunction from interfering with the plaintiff's possession of the suit schedule property excluding the portion of the property belonged to the defendant as described above. 15. No.51/1 to a width of 20 yards North-South and the defendant is restrained by an order of permanent injunction from interfering with the plaintiff's possession of the suit schedule property excluding the portion of the property belonged to the defendant as described above. 15. The first appellate court is right in coming to the conclusion in partly allowing the appeal and modifying the judgment and decree of the trial court. No illegality has been committed nor there is any perverse or capricious view taken by the first appellate court in coming to such conclusion. There are no justifiable grounds to interfere into the judgment and decree of the first appellate court. Hence, appeal is dismissed. 16. In view of dismissal of the appeal, I.A. No.1/2006 seeking stay does not survive for consideration and it is accordingly dismissed as having become infructuous.