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2023 DIGILAW 160 (KAR)

Susheelamma v. B. M. Kariappa

2023-01-31

M.G.UMA

body2023
JUDGMENT M G Uma, J. - The defendants have preferred this appeal being aggrieved by the impugned judgment and decree dated 13.11.2015 passed in O.S.No.103/2008 on the file of the learned Principal Civil Judge and JMFC, Somwarpet (hereinafter referred to as 'the trial Court' for brevity), decreeing the suit of the plaintiff declaring that the plaintiff is the absolute owner of the suit schedule property and directing the defendants to handover vacant possession of the encroached portion of suit schedule property to the plaintiff within three months from the date of order, which was confirmed vide judgment and decree dated 03.07.2017 in R.A.No.43/2015 on the file of the learned Senior Civil Judge, Somawarapete (hereinafter referred to as 'First Appellate Court' for brevity). 2. For the sake of convenience, parties are referred to as per their status and rank before the Trial Court. 3. Brief facts of the case are that the plaintiff filed suit O.S.No.103/2008 against defendant Nos.1 and 2, seeking declaration that he is the absolute owner of the schedule property i.e., land bearing Sy.No.33/23 measuring 2.93 acres situated at Kanaralli Village, Kodlipet Revenue Hobli, Somwarpet Taluk, Kodagu, with the boundaries mentioned in the schedule appended to the plaint and to direct the defendants to vacate and handover 2.20 acres out of the schedule property in favour of the plaintiff, which they had encroached and for mesne profits. 4. It is contended by the plaintiff that he is the absolute owner of the schedule property, which was referred to as Sy.No.33/1A in the saguvali chit and referred in the earlier RTCs as Sy.No.33/1AP1. After akarabandh, new Sy.No.33/23 has been assigned to the schedule property. It is stated that the plaintiff was granted with the saguvali chit by the Tahsildar, Somwarpet in respect of the schedule property and he had improved the said land by obtaining loan. The said saguvali chit is with the PLD Bank, Somwarpet. 5. It is further contended that defendant Nos.1 and 2 are the land holders having their lands near the schedule property. They attempted to take possession of the suit schedule property forcibly, during October-2005. Hence, the plaintiff immediately filed O.S.No.69/2005 before the trial Court. However, the said suit was came to be withdrawn on 26.09.2007 on technical grounds, since defendant No.2 was minor when the suit was instituted. They attempted to take possession of the suit schedule property forcibly, during October-2005. Hence, the plaintiff immediately filed O.S.No.69/2005 before the trial Court. However, the said suit was came to be withdrawn on 26.09.2007 on technical grounds, since defendant No.2 was minor when the suit was instituted. Taking advantage of the withdrawal of the suit, defendant Nos.1 and 2 trespassed over the schedule property taking forcible possession of a portion of suit land, during 1st week of October-2007 i.e., within a week after withdrawal of the suit O.S.No.69/2005. The plaintiff approached the revenue and survey Authorities for 'hadbhasth survey' and got served notice of the same to the defendants. Defendant No.1 refused to receive the notice. However, survey was conducted in the presence of adjoining land owners. The report and the survey sketch was prepared on 28.12.2007. On the basis of the report and sketch, plaintiff came to know that the defendants have encroached an extent of 2.20 acres in Sy.No.33/23 and the owner of Sy.No.33/1 by name Nageshgowda alias Chinnappa of Hanase Village has encroached 40 cents of land. Thereafter, the plaintiff requested the defendants to vacate and handover the possession of encroached portion. But they were not willing to do so. Even a police complaint was lodged in that regard. Therefore, the plaintiff filed the present suit for declaration of his title over the schedule property and direct the defendants to handover the vacant possession of the encroached portion of the land. 6. Defendant No.1 appeared before the Court and filed his written statement denying the contentions taken by the plaintiff. It is contended that defendant No.1 is the mother and defendant No.2 is her son. Husband of defendant No.1 died on 10.06.2000. Even during the life time of her husband, they were cultivating the land bearing Sy.Nos.18, 19, 20, 21, 22 and 23 of Kanaralli Village, which measured 04 acres. Sy.No.33/1 of Kanaralli Village comprising 66 acres is paisary land. The husband of defendant No.1 by name Sheshachari was in unauthorized possession of more than 02 acres of land in Sy.No.33/1. In between the wet land of the defendant and paisary land in Sy.No.33/1, there is a stream (thodu) flowing from north-east of the wet land and south-west of paisary land. To the further north-east of the stream, Sheshachari was in occupation of more than 02 acres of land since 1984-85. In between the wet land of the defendant and paisary land in Sy.No.33/1, there is a stream (thodu) flowing from north-east of the wet land and south-west of paisary land. To the further north-east of the stream, Sheshachari was in occupation of more than 02 acres of land since 1984-85. To regularize the said land, the husband of defendant No.1 filed Form No.50 before the Regularization Committee on 28.08.1991. After the death of Sheshachari, the defendants came in possession and planted silver oak trees, lemon and other plants. Sy.No.33/1 of Kanaralli Village was assigned new survey number i.e., Sy.No.33/1A2. 7. Defendant admitted that plaintiff filed O.S.No.69/2005 but later withdrew the same. But denied the contention that the withdrawal was on technical grounds. There was no liberty granted to file fresh suit on the same cause of action. Hence, it is contended that the suit is hit by principles of res judicata. The allegations regarding encroachment of the land by the defendants are denied. It is contended that the plaintiff withdrew the earlier suit to create and concoct documents to oust the defendants from the possession and enjoyment of the paisary land. The defendants never trespassed over the land, which was said to be in possession of the plaintiff. It is contended that no survey was conducted at the instance of the plaintiff but several documents were concocted in collusion with the Revenue Authorities. It is also contended that the plaintiff has no manner of right, title or interest over the schedule property. There is no cause of action to file the suit. Therefore, she prays for dismissal of the suit with cost. 8. Defendant No.2 filed the memo adopting the written statement filed by defendant No.1. 9. On the basis of these pleadings, the Trial Court framed the following issues as under: 1. Whether the plaintiff proves that suit property was granted in his favour as averred and defendants have encroached the same? 2. Whether the suit is improperly valued and Court fee paid is insufficient? 3. Whether the plaintiff is entitled for suit relief as prayed? 4. What order or decree? 10. The plaintiff examined himself as PW.1 and two more witnesses as PWs.2 and 3. He got marked Exs.P1 to P17 in support of his contention. Defendant No.1 examined herself as DW.1 and two more witnesses as DWs.2 and 3. 3. Whether the plaintiff is entitled for suit relief as prayed? 4. What order or decree? 10. The plaintiff examined himself as PW.1 and two more witnesses as PWs.2 and 3. He got marked Exs.P1 to P17 in support of his contention. Defendant No.1 examined herself as DW.1 and two more witnesses as DWs.2 and 3. Got marked Exs.D1 to D38 in support of their defence. After taking into consideration all these materials on record, the trial Court answered issue Nos.1 and 3 in the affirmative and held that issue No.2 does not arise for consideration and decreed the suit of the plaintiff as prayed for. 11. Being aggrieved by the same, the defendants have preferred regular appeal in R.A.No.43/2015. The First Appellate Court on re-appreciation of the materials on record, dismissed the appeal with cost and confirmed the impugned judgment and decree passed by the trial Court. Being aggrieved by the same, the defendants are before this Court. 12. Heard Sri. G.Balakrishna Shastry, learned counsel for the appellants and Sri. Sreenidhi Lingappa, learned counsel for the caveator/respondent. Perused the materials on record. 13. Learned counsel for the appellants contended that the husband of defendant No.1 was in unauthorized possession and cultivation of Sy.No.33/1 which is paisary land, since 1984-85. He applied for regularization of his occupancy on 28.08.1991 as per Ex.D6. The said application is still not considered and it is pending for consideration. Learned counsel contended that there are 5 sketches i.e., Exs.P3, P4, D20, D21 and Ex.D1. The plaintiff is placing reliance on Ex.P13-the saguvalli chit granted in his favour. The boundaries mentioned in Ex.P13 does not tally either with Ex.P3 or with Ex.P4. The plaintiff had filed O.S.No.69/2005 against the defendants, where he had described his land with specific boundaries. The boundaries mentioned in the said suit is entirely different from the boundaries mentioned in the present suit. Admittedly the plaintiff withdrew the suit on 26.09.2007 and thereafter started contending that the defendants have encroached a portion of his property on 01.10.2007. According to him, the survey was conducted on 28.12.2007 and then he came to know about the encroachment. The boundaries mentioned in Ex.D8 i.e., the plaint in O.S.No.69/2005, Ex.P13 and Ex.D6 are one and the same. Admittedly the plaintiff withdrew the suit on 26.09.2007 and thereafter started contending that the defendants have encroached a portion of his property on 01.10.2007. According to him, the survey was conducted on 28.12.2007 and then he came to know about the encroachment. The boundaries mentioned in Ex.D8 i.e., the plaint in O.S.No.69/2005, Ex.P13 and Ex.D6 are one and the same. A specific stand was taken by the defendants in O.S.No.69/2005 by filing the written statement as per Ex.D9, contending that the husband of defendant No.1 was in possession of the property and sought for regularization of his possession. That is why the suit was withdrawn to have fresh cause of action by concocting the documents. The description of the suit schedule property in the present suit is entirely different. The eastern boundary of the schedule property which is in dispute, is not explained by the plaintiff. 14. The plaintiff examined PW.3, who is the Surveyor. In the cross-examination, the witness categorically admitted the boundaries as mentioned in Ex.D1 and also admitted that the boundaries mentioned in Exs.P3 and P4 are entirely different. No survey as contended by the plaintiff was held at any time, to find out the so-called encroachment by the defendants. The neighboring owners were never notified about the same. The evidence of PW.3 in that regard is very much material. Learned counsel further submitted that PW.1 admitted that the boundaries of his land was never changed since 2005. Under such circumstances, there is no explanation as to how the boundaries mentioned in Ex.D1 and Ex.P4 are inconsistent with one another. Even according to the plaintiff, a sketch was appended to saguvalli chit granted in his favour but the said sketch is not produced before the Court for the reasons best known to the plaintiff. 15. PW.2 who signed Ex.P4 categorically admits that the land belonging to the defendants is adjoining land belonging to the plaintiff but PW.1 denies this fact. The trial Court has not appreciated any of these facts but proceeded to decree the suit without any basis. Even the First Appellate Court ignored all these glaring discrepancies and proceeded to confirm the judgment and decree without assigning proper reasons. Therefore, the impugned judgment and decree are to be set aside by allowing the appeal. Accordingly, he prays for allowing the appeal. 16. Even the First Appellate Court ignored all these glaring discrepancies and proceeded to confirm the judgment and decree without assigning proper reasons. Therefore, the impugned judgment and decree are to be set aside by allowing the appeal. Accordingly, he prays for allowing the appeal. 16. Per contra, learned counsel for the respondent opposing the appeal submitted that the plaintiff was granted the land during 1984-85 under the saguvalli chit-Ex.P13. Ex.P4 is the survey sketch which supports the contention of the plaintiff. The surveyor is examined as PW.3 PW.4 is the Tahsildhar concerned. The evidence of these witnesses supported by the documents prove the contention of the plaintiff. There are concurrent findings of fact by both the Courts. The appeal under Section 100 of CPC has limited jurisdiction to interfere with the concurrent findings of fact. There is no perversity or illegality in the judgment and decree passed by the trial Court and the First Appellate Court. Under such circumstances, the appeal deserves to be dismissed. Accordingly, he prays for dismissal of the appeal. 17. The appeal was admitted vide order dated 11.02.2019 to consider the following substantial questions of law: 1. Whether the Courts below have erred in law in declaring the title of the plaintiff and granting relief of permanent injunction in favour of the plaintiff in the absence of title deed namely - (a) Grant Order (b) Saguvali Chit, establishing the identity and the survey number and the area of the grant in favour of the plaintiff? 2. Whether the Judgments and Decrees of the Courts below could be sustained in view of the order passed by the Assistant Commissioner, Madikeri Sub-Division, Madikeri in Appeal No.NCR(V) 59/2013-14 dated 25/05/2017 allowing the appeal filed by the Appellants and remanding the matter back to the Tahasildar for considering the rival claims of appellants and that of the Respondent - plaintiff for the purpose of grant? 3. Whether the Courts have erred in law in granting a Decree for delivery of possession of the alleged encroached area in Sy.No.33/23 in the absence of description of the encroached area with reference to survey number, area encroached and the boundaries of the area encroached?' 18. I have considered the materials including the trial Court records in the light of the submission made by learned counsel for both the parties. 19. I have considered the materials including the trial Court records in the light of the submission made by learned counsel for both the parties. 19. It is the specific contention of the plaintiff that he is the absolute owner of the schedule property bearing Sy.No.33/1A, which was granted in his favour. The RTCs were bearing Sy.No.33/1AP1 and after akarbandh, new Sy.No.33/23 has been assigned in respect of 2.93 acres of land i.e., the schedule property. Exs.P1 and P2 are the record of rights in respect of Sy.No.33/23 measuring 2.93 acres standing in the name of the plaintiff. Ex.P3 is the survey sketch in respect of Sy.No.33/23 showing the boundaries with various sub-division in Sy.No.33 and Sy.No.32. An endorsement is affixed to the survey map that the survey sketch is not applicable for registration. Why such an endorsement is made on the sketch is not explained. 20. Ex.P4 is the survey sketch and the report prepared on 28.12.2007 signed by the Tahsildhar on 09.01.2008. As per this report, the boundary stones at point Nos.3, 4, 5, 6 were not at the spot but fixed on the basis of the survey. The report further states that the shaded area in Sy.No.33/23 measuring 2.20 acres is encroached by the neighboring land holder, who is cultivating Sy.No.20 and the other shaded area measuring 40 cents is encroached by the land owner of Sy.No.33/1. As per Ex.P4(b), defendant No.1 refused to take notice for survey of the land. Ex.P5 is the akarbandh-revision settlement, Ex.P6 is the mutation register extract MR.No.4/2006-07, according to which, Sy.No.33/1AP1 is renumbered as Sy.No.33/23 with effect from 03.02.2007. 21. Ex.P9 is the order sheet pertaining to O.S.No.69/2005 on the file of the learned Civil Judge (Jr.Dn.) at Somwarpet. The suit was filed by the present plaintiff-B.M.Kariyappa, against the defendants therein for permanent injunction and the ex-parte temporary injunction was obtained on 25.10.2005. On 26.09.2007, the application I.A.No.IV under Order 23 Rule 1 of CPC seeking permission to withdraw the suit, reserving liberty to file fresh suit on the same cause of action was filed. The reason assigned for withdrawing the suit is that defendant No.2 was minor as on the date of the suit and therefore, it was understood that the suit may fail on technical grounds. The reason assigned for withdrawing the suit is that defendant No.2 was minor as on the date of the suit and therefore, it was understood that the suit may fail on technical grounds. The application was opposed by the defendants contending that minority of defendant No.2 cannot be the question for withdrawal of the suit and opposed grant of liberty for filing fresh suit. On considering those submissions, the application was allowed. However, observing that even if defendant No.2 was a minor as on the date of suit that was curable defect in a suit for injunction. But however, the liberty to file fresh suit on the same cause of action was refused while allowing the IA and permitting the plaintiff to withdraw the suit. 22. Ex.P13 is the application submitted by B.P.Sheshachari for regularizing his occupation in respect of two acres of land in Sy.No.33/1 of Karnalli village. Ex.P15 is the village map showing location of various survey numbers in karnalli village. The boundaries in Sy.No.33/23 mentioned in the village map do not tally with the description in the schedule. Ex.P16 is one more survey sketch in respect of Sy.No.33/1. According to which, defendant No.1 encroached 90 cents of land in Sy.No.33/1P1. Similarly 1.37 acres of land in Sy.No.33/23P1 was also encroached by defendant No.1. Similar is the survey sketch Ex.P17. 23. Ex.D1 is the survey sketch prepared during September-1994 in respect of Sy.No.33/1A while granting 2.93 acres of land in favour of the plaintiff. The eastern boundaries of the land granted in favour of plaintiff is shown as Sy.Nos.33/8 and 9. 24. Ex.D8 is the certified copy of the plaint in O.S.No.69/2005 filed on 22.10.2005 by the plaintiff against the defendants and another. The schedule appended to the plaint for seeking permanent injunction against the defendants describes 2.93 acres of land in Sy.No.33/1AP1 with boundaries: East : Land of sy.No: 33/8 and 33/9; West : Land bearing sy.No: 33/1; North : Land bearing sy.No: 33/1; South : Land of Sy.No: 33/1, 25. In the present suit, the property bearing Sy.No.33/23 measuring 2.93 acres is described to be bounded; on east and south land bearing Sy.No.32 and 33/1, on west and north Sy.No.33/1 and 33/22. 26. In the present suit, the property bearing Sy.No.33/23 measuring 2.93 acres is described to be bounded; on east and south land bearing Sy.No.32 and 33/1, on west and north Sy.No.33/1 and 33/22. 26. It is contended by the plaintiff in OS 69/05 that he is the absolute owner of 2.93 acres of land and is in peaceful possession and enjoyment of the same and the defendants are trying to interfere with his possession and enjoyment of the land, as they tried to remove the fence surrounding the land on 13.10.2005. The defendants have filed the written statement in the said suit denying the contentions taken by the plaintiff as per Ex.D9, specifically stating that Sy.No.33/1A2 is in possession of defendant No.1, which measures 2.27 acres. Therefore, it is contended that the plaintiff is not in possession of the schedule property described therein and taken up similar contentions as taken in the present suit to pray for dismissal of the suit. 27. Exs.D11 and D14 are the police complaints dated 11.08.2008 and 30.09.2008 lodged by defendant No.1 against the plaintiff, alleging that he is pressuring the defendants through police to vacate the property which is in their possession. 28. These documents were taken into consideration to appreciate the contention of the appellant that the boundaries mentioned in the plaint is not tallying with the admitted documents including the survey sketch and the boundaries mentioned by the plaintiff while filing O.S.No.69/2005. The boundaries extracted above is apparently different and not consistent with one another. 29. The saguvalli chit said to have been issued in favour of the plaintiff granting 2.93 acres of land in Sy.No.33/1A is not produced before the Court for the reasons best known to the plaintiff. What was the boundaries mentioned in the said saguvalli chit is also not known. When the defendants categorically denied that the plaintiff is the owner who was in possession of the property at any point of time and when the eastern boundary to the schedule property is categorically denied, the burden is on the plaintiff to prove his contention as taken in the plaint. There is absolutely no explanation as to why there is glaring discrepancies in mentioning the boundaries while filing O.S.No.69/2005 and in the present suit. There is absolutely no explanation as to why there is glaring discrepancies in mentioning the boundaries while filing O.S.No.69/2005 and in the present suit. The explanation given by the plaintiff that since defendant No.2 in O.S.No.69/2005 was a minor at the time of filing the suit, the same came to be withdrawn, do not sound a reasonable explanation for withdrawal of the suit. It is pertinent to note that the defendants have taken the very same defence in O.S.No.69/2005 contending that they are in possession and enjoyment of the property in question. Under such circumstances, the burden to prove the identity of the schedule property rests heavy on the plaintiff. The oral evidence lead by the plaintiff is not helpful in identifying the schedule property with the specific boundaries. The documents which are referred to above are not consistent with one another and do not provide any reasonable explanation for discrepancy in the boundaries. 30. Exs.P3 and P4 are the disputed documents which came into existence just prior to filing of the suit. There are no supporting documents to accept those sketches. Even if Ex.P4 is to be accepted, the report states that 2.20 acres of land in Sy.No.33/23 is encroached by the neighboring land holder in Sy.No.20. But the plaintiff categorically states that the defendants are not owning any land near by the schedule property and Sy.No.20 is not the boundary to the schedule on any side. Under such circumstances, the contention taken by the plaintiff that defendant Nos.1 and 2 have encroached any portion of the property just before filing of the suit, cannot be accepted. In fact, the plaintiff is not successful in proving the identity of the property with its boundaries. Under such circumstances, he is not entitled for declaration of his title to the schedule property. Moreover, the plaintiff is seeking possession of the portion of the land measuring 2.20 acres from the defendants. There is no separate schedule describing the said portion of the property to identify the same. Therefore, it is not a fit case for granting any relief in favour of the plaintiff. 31. Learned Counsel for the appellant and the learned counsel for respondent have not addressed any arguments on substantial question of law No.2. Hence, the same is to be held as, does not arise for consideration. 32. Therefore, it is not a fit case for granting any relief in favour of the plaintiff. 31. Learned Counsel for the appellant and the learned counsel for respondent have not addressed any arguments on substantial question of law No.2. Hence, the same is to be held as, does not arise for consideration. 32. I have gone through the impugned judgment and decree passed by the trial Court which was confirmed by the First Appellate Court. Both the Courts have not taken into consideration any of the points which were discussed above but they have based the judgments on the defence taken by the defendants to hold that they are in illegal possession of 02 acres of land in Sy.No.33/23 of Karnalli Village. The defence or the weakness on the part of the defendants cannot be a ground to grant of the relief of declaration and possession of the property in favour of the plaintiff. When the plaintiff is seeking declaration of his title and for possession of a portion of the survey number, he is required to establish his contention with specific identification of the property. When the plaintiff failed to establish his contention including identifying the schedule property, I am of the opinion that he is not entitled for the reliefs claimed. Since the concurrent finding of fact recorded by both the Courts are against the materials that are available on record, I am of the opinion that the impugned judgment and decree of the trial Court and the First Appellate Court are liable to be set aside. Hence, I answer the substantial questions of law No. 1 and 3 in favour of the defendants and against the plaintiff. Accordingly I proceed to pass the following: ORDER (i) The appeal is allowed with cost. (ii) The judgment and decree dated 13.11.2015 in O.S.No.103/2008 on the file of the learned Principal Civil Judge and JMFC, Somwarpet, confirmed vide judgment and decree dated 03.07.2017 in R.A.No.43/2015 on the file of the learned Senior Civil Judge, Somawarapete, is hereby set aside. (iii) The suit of the plaintiff is dismissed with costs, throughout. Registry is directed to send back the trial Court records along with copy of this judgment.