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2022 DIGILAW 27 (KAR)

Gundappa v. Kariyanna

2022-01-04

M.G.S.KAMAL

body2022
JUDGMENT : 1. Present regular second appeal is filed by the appellant-plaintiff aggrieved by the judgment and decree dtd. 2/7/2014 passed in R.A.No.60/2007 on the file of the Additional Senior Civil Judge and JMFC at Madhugiri (hereinafter referred to as the 'First Appellate Court') dismissing the appeal of the plaintiff and confirming the judgment and decree dtd. 9/1/2007 passed in O.S.No.163/1999 on the file of the Principal Civil Judge (Jn. Dn.) at Madhugiri (herein after referred to as the 'Trial Court') which had declared the plaintiff to be a absolute owner in possession and enjoyment of 'A' schedule property and had dismissed the suit of the plaintiff to the extent of relief of permanent injunction in respect of 'B' schedule property. 2. Case of the plaintiff is: (a) That he is the absolute owner of the possession and enjoyment of the suit schedule property bearing assessment No.147/673/166 of Marithimmanahalli described as 'A' schedule property. That the said site was allotted to the plaintiff by virtue of Hakkupatra bearing No.193/88-89 dtd. 28/5/1988 by the defendant No.2-Mandala Panchayath. The plaintiff had constructed a residential house in an area of 24 feet east to west and 17 feet north to south of the 'A' schedule property in the year 1989 after obtaining licence from defendant No.2-Mandal Panchayath. The house of the plaintiff is facing towards east and he had left 13 feet space towards east as front yard in as much as on the eastern boundary of the plaintiff's property there is a road running north to south having width of about 30 feet. That the said road was being used by the public for the purpose of walking and taking carts and no one had any right to put up any permanent structure on the said portion of the property on the eastern side which is described as 'B' schedule property in the plaint. (b) It is a further case of the plaintiff that though defendant had no manner of right over the said portion of the schedule 'B' property, had been making hectic efforts to dig and put up of construction over the same and thereby curtailing the right of the access to the plaintiff's house from the eastern side. That the plaintiff had filed complaint about this illegality to the concerned defendant No.2-Mandal Panchayath and to the police in vain. That the plaintiff had filed complaint about this illegality to the concerned defendant No.2-Mandal Panchayath and to the police in vain. That despite there being a temporary injunction granted by the Court not to put up the construction on the schedule 'B' property, defendant had forcibly in an highhanded manner put up the construction over the schedule 'B' property which was liable to be demolished. Hence, plaintiff sought for a relief of declaration declaring him to be a absolute owner in possession and enjoyment of the schedule 'A' property, for a permanent injunction and mandatory injunction directing the defendant No.1 to demolish the construction of building over the 'B' schedule property. 3. Defendant No.1 filed written statement; (a) Denying the case of the plaintiff. It is further contended that under the Government Scheme number of sites were formed in the land bearing Sy.No.24 of Marithimmana village and out of those sites, site bearing No.21 measuring north to south 40 feet, east to west 30 feet was allotted to the defendant as per the Hakkupatra dtd. 31/3/1997. That ever since the date of allotment to defendant No.1, he has been in actual physical possession of the same. Khatha for the said site has also been made out in the name of the defendant and that he is paying the property tax to the Panchayath. That the defendant had applied for a loan under Indira Aawaz scheme and constructed building thereon, after the spot inspection, verification of documents and upon the recommendation of Panchayath authorities loan was sanctioned to the defendant No.1 and accordingly defendant No.1 laid foundation and constructed portion of walls thereon. That he had left 4 feet space on the western side of his property. That the site number of plaintiff is 20 and not 21 and if there was a mistake in mentioning the numbers in the Hakkupatra the same could be rectified. (b). It is a further case of the defendant that on the eastern side of boundary of the 'A' schedule property is the site bearing No.21 and there is no road towards eastern boundary of the schedule 'A' property as claimed by the plaintiff. (b). It is a further case of the defendant that on the eastern side of boundary of the 'A' schedule property is the site bearing No.21 and there is no road towards eastern boundary of the schedule 'A' property as claimed by the plaintiff. That as per the documents produced by the defendant, he is the owner of the site No.21 which is bounded on the east by road, west by site No.20 and north by site No.16 and both the plaintiff and defendant have access to their properties from southern side and none of the villagers or the Panchayath authorities have obstructed the defendant No.1 in constructing the building on his site. Suit of the plaintiff is filed with malafide intention taking undue advantage of wrong description mentioned in his Hakkupatra. That on western boundary of the plaintiff's site is site No.19 which is granted to Thippanna now in occupation of Smt. Sannanagamma on the northern boundary there is a house of Gangamma in site No.16. The relief sought for by the plaintiff in respect of 'B' schedule property is without any cause of action. As such, sought for dismissal of the suit. 4. The plaintiff had initially filed suit for declaration and permanent injunction and subsequently sought for relief of mandatory injunction seeking demolition of construction put up by the defendant on the eastern boundary of the plaintiff's property which is on the 'B' schedule property. 5. The Trial Court based on the pleadings framed the following issues: "(1) Whether the plaintiff proves that he is the absolute owner in possession and enjoyment of 'A' schedule property? (2) Whether plaintiff proves that 'B' schedule property is a road? (3) Whether defendant proves that he has been granted site No.21 in Sy.No.24 of Marithimmanahalli and the site granted to plaintiff is site No.20? (4) Whether plaintiff proves that defendant has put up construction over 'B' schedule property during the pendancy of the suit? (5) Whether suit is valued properly and Court fee paid is sufficient? (6) Whether plaintiff is entitled to the relief sought? (7) What decree or order? Additional Issue No.1: (1) Whether 2nd defendant proves that site numbers of both plaintiff and defendant are site No.21 and site of defendant is situated to the east of suit 'A' schedule site and the road is situated to the east of defendants site?" 6. (6) Whether plaintiff is entitled to the relief sought? (7) What decree or order? Additional Issue No.1: (1) Whether 2nd defendant proves that site numbers of both plaintiff and defendant are site No.21 and site of defendant is situated to the east of suit 'A' schedule site and the road is situated to the east of defendants site?" 6. The plaintiff examined himself as P.W.1 and marked 27 documents as Ex.P.1 to Ex.P.27(a) and defendant examined himself as D.W.1 and has got examined defendant No.2 as D.W.2 and exhibited eight documents as Ex.D.1 to Ex.D.8. On appreciation of evidence, the Trial Court decreed the suit of plaintiff to the extent declaring him to be the absolute owner in possession and enjoyment of schedule 'A' property. The suit of the plaintiff to the extent of relief of permanent injunction restraining defendant from interfering with 'A' schedule property and for mandatory injunction to demolish the house constructed by defendant No.1 over 'B' schedule property is dismissed by the trial Court by its judgment and decree dtd. 9/1/2007. 7. Aggrieved by the same, plaintiff preferred appeal in R.A.No.60/2007 before the First Appellate Court. Considering the grounds urged by the plaintiff, the First Appellate Court framed the following points for consideration. "(1). Whether the refusal of the grant of the injunction by the Trial Court was correct? (2) Whether the impugned judgment and decree requires interference by this Court? (3) What order or decree?" And consequently dismissed the appeal and confirmed in the judgment and decree passed by the Trial Court. Aggrieved by the same, the plaintiff is before this Court in this regular second appeal. 8. The learned counsel appearing for appellant reiterating the grounds urged in the appeal memorandum submitted that First Appellate Court and Trial Court having conclusively held that the plaintiff is owner of the property bearing site No.21 and that there was a road on the eastern side of his property as an the date of allotment of the site to the plaintiff, erroneously dismissed the suit of the plaintiff for permanent and mandatory injunction with respect to 'B' schedule property. That the burden of proof was placed on defendant No.1 to prove existence of site No.20 and defendant not having discharged the burden by producing acceptable documentary evidence, the Courts below have accepted the contention of the plaintiff though there is discrepancy in his evidence. That the burden of proof was placed on defendant No.1 to prove existence of site No.20 and defendant not having discharged the burden by producing acceptable documentary evidence, the Courts below have accepted the contention of the plaintiff though there is discrepancy in his evidence. That though Secretary of Grama Panchayath has been examined as the D.W.2 and who deposed that both the sites have been numbered as site No.21, has not produced any documentary evidence such as village map or any other document and in the absence of documentary evidence, the Courts below erred in relying upon the oral deposition of D.W.2, thus resulted in injustice to the plaintiff. That the plaintiff 's schedule property bearing No.21 was allotted to the plaintiff in the year 1989 and site No.21 again was allotted to the defendant in the year 1997. That the Courts below despite availability of Hakkupatra as Ex.D.2 having identical numbers and boundaries have erred in appreciating the same with regard to non-existence of the property being claimed by the defendant. That though Trial Court had held that on the eastern side of the plaintiff's property was a road, however, erred in observing that Grama Panchayath had later created a site and that there was no longer road on the eastern boundaries of the plaintiff's site, which finding is devoid of any factual basis. He further submits that in view of the aforesaid erroneous finding of facts by the Courts below with regard to the existence of road on the northern side, the right of the plaintiff has been adversely affected giving rise to substantial question of law in the appeal. Hence, seeks for allowing the appeal. 9. On the other hand, learned counsel appearing for the respondent-defendant justifying the judgment and decree passed by the Trial Court submits that there is no confusion with regard to the allotment of site No.21 measuring 30 X 40 feet in the year 1988-89 in favour of the plaintiff so also allotment of site No.21 measuring 30 X 40 feet, in the year 1997 in favour of the defendants No.1. He submits both the sites bearing the same number and the road which is shown on the eastern side of the plaintiff's property is infact is situated on the eastern side of the property of the defendant which is described as 'B' schedule property. He submits both the sites bearing the same number and the road which is shown on the eastern side of the plaintiff's property is infact is situated on the eastern side of the property of the defendant which is described as 'B' schedule property. (a) He further submits that on the southern side of the sites belonging to the plaintiff and defendant No.1 there is a road on the northern side of the site of the plaintiff is site No. 17 and northern side of site of defendant is site No.16. Thus, he submits there was no road on the eastern side of the property as rightly concluded by the Courts below. (b) He further submits that the plaintiff not having any right over the schedule 'B' property is not entitled for any relief as has been rightly declined by the First Appellate Court and Trial Court, as such there is no substantial question of law involved in the matter for adjudication. 10. On thoughtful consideration of the submissions made by the learned counsel appearing for the appellant and respondents and on perusal of the pleadings and the grounds urged in the appeal memorandum, it is seen that admittedly the plaintiff was allotted a site-'A' schedule property in terms of Hakkupatra as per Ex.P.1 in the year 1988-89 which measured east to west 40 feet, north to south 30 feet bounded on the east by road, west by site No.20, north by site No.17 and south by road. It appears, plaintiff constructed the house on the portion of the 'A' schedule property at that relevant point of time. According to the plaintiff on the eastern side there was a road. Therefore, he had kept the entrance of his house facing at the east. Subsequently, in the year 1997 defendants claiming to have been allotted a site on the eastern side of 'A' schedule property, started putting up construction obstructing the access of the plaintiff to his property from the eastern side resulting in plaintiff filing the present suit for declaration and injunction. 11. Subsequently, in the year 1997 defendants claiming to have been allotted a site on the eastern side of 'A' schedule property, started putting up construction obstructing the access of the plaintiff to his property from the eastern side resulting in plaintiff filing the present suit for declaration and injunction. 11. The case of the defendant is that he was also allotted a site measuring 30X 40 feet by the second respondent-Panchayath in terms of Hakku patra as per Ex.D.2 measuring east to west 30 feet, North to South 40 feet bounded on east by a road, west by site No.20, north by site No.16 and south by road. That on obtaining a financial assistance he constructed a building on the said property. The Trial Court and First Appellate Court taking into consideration of the aforesaid factual aspects of the matter and also the oral evidence made available concluded that the plaintiff was indeed the owner of the property bearing site No.21 as described in plaint 'A' schedule property. However, declined to grant injunction and relief of mandatory injunction in respect of plaint 'B' schedule property which is the property allotted by the defendant No.2 in favour of the defendant No.1. 12. The plaintiff in the plaint has sought for the following relief; "(a) For declaration that the plaintiff is the absolute owner in possession and enjoyment of the 'A' schedule property and for consequential relief of permanent injunction restraining the defendant, his agents, servants etc., as anybody who claiming under him from putting up any construction on the road portion i.e., in front of the plaintiff's 'A' schedule property (on its eastern side) detailed in the 'B' schedule property and thereby causing any interference with the plaintiff's peaceful possession and enjoyment of the 'A' schedule property by the plaintiff. (b) For mandatory injunction directing the defendant to demolish he constructed building over the 'B' schedule property. (c) For award of costs and such other reliefs." 13. There is no relief sought with respect to validity or otherwise of the allotment made by the defendant No.2 in favour of the defendant No.1 in respect of schedule 'B' property. Relief of declaration by the plaintiff of his ownership of possession in respect of the plaintiff 'A' schedule has been justifiably granted by the Courts below. There is no relief sought with respect to validity or otherwise of the allotment made by the defendant No.2 in favour of the defendant No.1 in respect of schedule 'B' property. Relief of declaration by the plaintiff of his ownership of possession in respect of the plaintiff 'A' schedule has been justifiably granted by the Courts below. Since the plaintiff has not established any semblance of right over the 'B' schedule property, Courts below have rightly declined to grant injunction. It is not the case of the plaintiff that the defendant has interfered or causing any obstruction into the plaint schedule 'A' property. That being the admitted position there is no cause of action for the plaintiff to claim any relief in respect of 'B' schedule property for which he has no right whatsoever. This factual position has been taken note of by the First Appellate Court and the Trial Court and same requires no interference. Consequently, no substantial question of law involves in the matter for consideration, resulting the following order. The appeal is dismissed.