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2022 DIGILAW 119 (KAR)

H. S. Manjappa v. Jagannatha

2022-02-01

N.S.SANJAY GOWDA

body2022
JUDGMENT 1. This appeal is by the defendant. 2. The respondent herein filed a suit seeking for a decree of permanent injunction. It was his case that the suit schedule property, which was described as land bearing Sy.No.203/3 measuring 5 acres 21 guntas, was purchased by his father on 14/6/1964 and ever since, their family was in possession of the same. He stated that in the partition dtd. 12/12/1994, the suit property, which was the subject matter of the said partition, was allotted to him. He stated that on the basis of the said partition, the revenue record was mutated and his name was entered in the revenue record. He stated that the suit schedule property was originally a part of Sy.No.203 and after a survey, it had been renumbered as Sy.No.203/3. He stated that he had raised arecanut and saguvani trees and had also constructed a house in the said property. It was alleged that there was interference with his possession and hence, he was constrained to file a suit. 3. The defendant contested the said suit. He stated that the schedule was not properly described by giving boundaries and only the survey number was stated and the boundary stones had been showed as its boundaries. It was stated that the suit was filed only to encroach upon his property. 4. He stated that he had also purchased a part of Sy.No.203 measuring 20 guntas (70 feet X 312 feet) from Nadiga Gopal Rao under a registered Sale Deed dtd. 13/12/1962. He stated that he had purchased the said property in order to construct a house and the 20 guntas of land that he had purchased was adjacent to Soraba - Siddapura road. However, he stated that by oversight the boundaries were wrongly mentioned in the Sale Deed and instead of mentioning that the road was situated on the southern side, it was stated that the road was situated on the northern side. He stated that after realising the mistake, the vendor had executed a registered Rectification Deed on 12/4/2007. 5. It was also stated that the plaintiff had approached the Survey Department and got Sy.No.203 sub-divided without notice to him and the plaintiff had also secured a sketch indicating the land that he had purchased and this sketch was not legal and a dispute regarding the survey was pending before the Tahsildar. 6. 5. It was also stated that the plaintiff had approached the Survey Department and got Sy.No.203 sub-divided without notice to him and the plaintiff had also secured a sketch indicating the land that he had purchased and this sketch was not legal and a dispute regarding the survey was pending before the Tahsildar. 6. The defendant also went on to state that in the Sale Deed of the plaintiff's father, it had been stated that to the eastern side, property of H.S.Manjappa i.e., the appellant herein was situated, instead of stating that it was the property of Nadiga Ranganatha Rao and H.S.Manjappa. It was also stated that boundary of the southern side was also wrongly mentioned as Soraba-Chandragutti Road, instead of mentioning it as H.S.Manjappa's property and Government road. He also stated that without rectifying the said mistakes, the plaintiff had filed the suit. 7. The Trial Court, on consideration of the evidence adduced before it, came to the conclusion that the description of the suit property by the plaintiff was proper and correct and the plaintiff had also proved that he was in possession of the same and there was interference by the defendant. 8. In order to come to the said conclusion, the Trial Court relied upon the deposition of the defendant, in which, it was stated that the plaintiff was residing in the suit schedule property and had raised arecanut and saguvani trees and had also constructed a house. The Trial Court also noticed that the defendant had not taken any steps for rectification of the Sale Deed by filing a proper suit and the plaintiff was not a party to the Rectification Deed, so as to bind him to the said Rectification Deed. The Trial Court accordingly decreed the suit. 9. Being aggrieved by the said judgment and decree, the defendant preferred an appeal. 10. In appeal, the Appellate Court, on re-appreciation of evidence, concurred with the finding of the Trial Court and proceeded to dismiss the appeal. 11. It is against these concurring judgments and decrees, the present second appeal has been preferred. 12. Learned counsel for the appellant contended that the suit for injunction could not have been entertained when the property was not properly described as mandated under Order VII Rule 3 of CPC. 11. It is against these concurring judgments and decrees, the present second appeal has been preferred. 12. Learned counsel for the appellant contended that the suit for injunction could not have been entertained when the property was not properly described as mandated under Order VII Rule 3 of CPC. He submitted that in the light of the Rectification Deed executed in favour of the defendant and also in the light of the fact that the survey sketch has been set aside, both the Courts had committed a serious error in decreeing the suit. 13. The case of the plaintiff was that his father had purchased 5 acres 21 guntas of land in Sy.No.203. It was his further case that this survey number was renumbered as Sy.No.203/3 and he was in possession of the same pursuant to a partition in his family on 12/12/1994. It was also stated that he had raised arecanut and saguvani trees apart from constructing a house in the suit property and he was residing therein. 14. As against this plea, the case put forth by the defendant was that he had purchased 20 guntas of land and though in the Sale Deed certain boundaries were mentioned, the same were incorrect. In other words, the defendant admitted that his Sale Deed which was of the year 1962 contained incorrect boundaries and on the southern side, the road was situated, whereas in the Sale Deed, it had been shown as situated on the northern side. That apart, the defendant also set up a plea that the description of the plaintiff's property in his father's Sale Deed, which was of the year 1964, was also incorrect. Thus, essentially, the defendant put forth the case that the boundaries mentioned in both the Sale Deeds i.e., of the plaintiff's father and the defendant were incorrect. 15. He, however, set up a plea that he had got his Sale Deed rectified in the year 2007 indicating the original boundaries and therefore, both the Courts were required to come to the conclusion that the defendant was in possession of the suit property. 16. In a suit for injunction, the principal obligation of the Court is to examine whether the plaintiff was in lawful possession as on the date of filing of the suit. 16. In a suit for injunction, the principal obligation of the Court is to examine whether the plaintiff was in lawful possession as on the date of filing of the suit. In a suit for injunction, normally, it is not open for the Civil Court to embark upon the exercise of identifying the property on the basis of the registered Sale Deeds. In the instant case, the plea set up was that though there were two Sale Deeds of the year 1962 and 1964, both of them contained incorrect boundaries. In other words, the defendant wanted the Trial Court to identify the suit property and then, determine the question of possession. As stated above, in a suit for injunction, this kind of exercise of identifying the property cannot be undertaken. 17. The Trial Court has taken into consideration the admission of the plaintiff that the plaintiff was residing in the suit schedule property and had not only raised arecanut and saguvani trees, but had also constructed a house. It has also relied upon the revenue documents which indicated the possession of the plaintiff. Admittedly, even according to the defendant, the land that he had purchased had remained vacant right from the year 1962. 18. In the light of the fact that the plaintiff had admittedly raised arecanut and saguvani trees and had constructed a house in the suit schedule property and was residing therein, the decree of both the Courts upholding that the plaintiff was in possession of 5 acres 21 guntas in Sy.No.203/3 cannot be found fault with. 19. The argument of the learned counsel for the appellant that the suit could not be entertained because the schedule did not describe the boundaries cannot be accepted. No doubt, the boundaries of the suit property were not mentioned in the schedule. However, when the defendant contended that the boundaries, as indicated in his Sale Deed and so also the boundaries stated in the Sale Deed of plaintiff's father, were both incorrect, this question really pales into insignificance. The defendant went into trial knowing fully well the case put forth by the plaintiff. He, in fact, during trial, admitted that in the suit property, arecanut and saguvani trees had been raised and a house had been constructed. It was, therefore, clear that the possession of the plaintiff over the property purchased by him was not disputed by the defendant. 20. He, in fact, during trial, admitted that in the suit property, arecanut and saguvani trees had been raised and a house had been constructed. It was, therefore, clear that the possession of the plaintiff over the property purchased by him was not disputed by the defendant. 20. It may be pertinent to state here that the appellant herein had affixed his signature to the Sale Deed dtd. 14/6/1964 which had been executed in favour of the plaintiff's father as a witness. The defendant had admittedly purchased 20 guntas in the very same number from the very same vendor who had conveyed the property to the father of the plaintiff on 13/2/1962, which was two years prior of the Sale Deed in favour of the plaintiff's father. It is obvious that it was only because the defendant was a purchaser of a portion of the very same number, he was asked to be a witness. By virtue of being a witness to the Sale Deed executed in favour of the plaintiff's father, the defendant was definitely aware of the property that was being sold to the plaintiff's father. Thus, when the defendant was aware of this sale, it would not be not open him to contend that the suit property is not identifiable or that it contained incorrect boundaries. 21. Learned counsel for the appellant/defendant also contended that the fact that the defendant was in possession of 20 guntas was also not in serious dispute and until the suit property could be identified, the Courts could not have granted an injunction. 22. As stated above, in a suit for injunction, the limited exercise undertaken by the Court is to determine the lawful possession of the plaintiff as on the date of the suit. In the instant case, admittedly, the title of both the plaintiff and the defendant over the lands purchased by them were not in dispute. The Courts would therefore be justified in determining only the possession of the plaintiff based on his undisputed title. It is to be stated here that a Civil Court cannot not be asked to embark upon holding a trial regarding questions relating to incorrect mentioning of boundaries in the Sale Deeds of the parties. 23. The Courts would therefore be justified in determining only the possession of the plaintiff based on his undisputed title. It is to be stated here that a Civil Court cannot not be asked to embark upon holding a trial regarding questions relating to incorrect mentioning of boundaries in the Sale Deeds of the parties. 23. In a case, where the defendant alleges that the boundaries of both the plaintiff and the defendant were incorrect, the Court dealing with the suit for injunction cannot and should not embark upon an exercise to determine the identity of the property at the instance of the defendant when admittedly no counter claim was made by the defendant. 24. In the facts and circumstances of the case, since both the Courts have concurrently recorded a finding that the plaintiff was in possession of land bearing Sy.No.203/3 measuring 5 acres 21 guntas, I find no substantial question of law arising for consideration in this second appeal. The second appeal is accordingly dismissed. 25. However, liberty is reserved to the defendant to initiate a suit containing a comprehensive relief regarding the identity of the property. If such a suit is filed, the decree granted by this Court shall not come in the way of the Court to determine the controversy raised by the defendant regarding incorrect boundaries found in the Sale Deeds.