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2024 DIGILAW 96 (KAR)

T Nagappaiah Navada v. Venkatappa

2024-02-01

C M JOSHI

body2024
JUDGMENT : C M Joshi, J. Being aggrieved by the common judgment and decree in OS No.2504/1999 and OS No.1059/1999 passed by the learned XIV Additional City Civil Judge, Bangalore, (CCH No.28) dated 21-10-2009, the plaintiff in both the suits is before this Court in appeals. 2. OS No.2504/1999 is a suit for declaration of title and possession and OS No.1059/1999 is for injunction simplicitor. Therefore, the facts as narrated in OS No.2504/1999 would be relevant and will have greater scope. 3. The brief facts as contended by the plaintiff in OS No.2504/1999 are as below: The suit schedule 'A' property is described to be property measuring 62 ft. East-West on the northern side and on southern side 64-1/2 ft; and North- South 40 ft; situated in CTS No.2645 and site No.118/35 at 2nd Main Road, Industrial Town, Rajajinagar, Bangalore-44. The suit schedule 'B' property is described as a portion of suit schedule 'A' property having Asbestos sheet roofed shed measuring 18 ft. on the northern side of 'A' schedule property. 4. The plaintiff contended that he is the absolute owner of the 'A' schedule property since he purchased the same under the registered sale deed in the year 1966 from its previous owner. Later, suit 'A' schedule property was included in Bangalore City Corporation limits and thereafter, there was assessment of municipal taxes and the plaintiff/appellant has paid the taxes and betterment charges. Earlier, the suit schedule property was part of Jedarahalli village and later it became part of the Bangalore City Corporation. Simultaneously, the City Survey Authorities have also held an enquiry and have given City Survey Number and have also prepared survey sketch. It is contended that the plaintiff is doing business in the name and style as 'Balaji Screen Printers' and the suit schedule 'B' property is the portion of the same. It is contended that the defendants are in permissive possession of 'B' schedule property and in fact, the plaintiff had allowed the defendants to lookafter the entire suit 'A' schedule property. The defendants do not have any right, title or interest over the same and the plaintiff says that he had inducted certain tenants in 'A' schedule property and they have been evicted from the same. It is contended that the registered sale deed executed in favour of the plaintiff mention the measurement of the suit schedule property to be "30 ft. It is contended that the registered sale deed executed in favour of the plaintiff mention the measurement of the suit schedule property to be "30 ft. East-West and 40 ft. North South", but it had clearly mentioned the boundaries. The plaintiff aver that the boundaries prevail over the extent of area mentioned in the sale deed and therefore, the entire suit schedule 'A' property is about 62 ft. East-West was the subject matter of the sale in favour the plaintiff. It is contended that the enquiry was held by the City Survey Authorities and after holding such enquiry, the entire suit schedule property was entered in the name of the plaintiff. It is contended that the defendants denied the title of the plaintiff over the suit schedule property and therefore, there is cause of action. 5. On issuance of summons, defendants No. 1 to 4 appeared through their counsel and filed written statement. They contended that the address of the defendants is 'No.118, 2nd Main road, West of Chord Road, Industrial Town, Rajajinagar, Bangalore'. But the contention of the plaintiff is that, he is the absolute owner of suit schedule 'A' property which is situated somewhere else. The defendants denied that the plaintiff had purchased the suit schedule property under the registered sale deed in the year 1966 from its previous owner and they denied that City Survey had conducted an enquiry and had recognized the ownership of the plaintiff. They also denied that the defendants are in permissive possession and enjoyment of the suit schedule property. 6. Per contra, they asserted that the owner of the property was one Muniyappa and he had entered into a sale agreement with defendant No.1 in January 1962 and had agreed to sell the same to the defendants for Rs. 5,000/-. The entire sale consideration was paid by defendant No.1 and the sale deed had to be executed within a year. The extent of the property was 62 ft. x 42 ft. approximately and thereafter, Muniyappa left the place and his whereabouts were not known and therefore, the registered sale deed could not be executed. However, defendants continued in possession and enjoyment of the suit schedule property and had constructed asbestos sheet roofed shed in the same. The extent of the property was 62 ft. x 42 ft. approximately and thereafter, Muniyappa left the place and his whereabouts were not known and therefore, the registered sale deed could not be executed. However, defendants continued in possession and enjoyment of the suit schedule property and had constructed asbestos sheet roofed shed in the same. It is contended that in the year 1972, BDA had acquired the lands of Jedarahali village for the purpose of formation of residential lay out as well as industrial layout. The property of the defendants is in industrial layout and after forming of layout, the property was given Number "118, situated at II Main road". It is contended that the suit property is bound by: 'site No.124 on the East, 2nd Main road on the West, Industrial site No.117 on the North and Industrial site No.116 on the South'. It is contended that the property alleged to have been purchased by the plaintiff is situated at 20th Main Road, 5th Block, Rajajinagar, Bangalore' and it is totally different and therefore, the suit of the plaintiff is liable to be dismissed. 7. In OS No.1059/1999, exactly similar contentions were taken by the plaintiff as well as by the defendants and the prayer was only for injunction simplicitor. 8. On the basis of the above pleadings, the trial Court has framed the following issues in both the suits; In OS No.2504/1999 (1) Does The plaintiff prove his title to 'A' schedule property with the boundaries and measurements specified? (2) Whether the property purchased by the plaintiff and the 'A' Schedule property are different having no nexus to each other? (3) Does the plaintiff prove that the 1st defendant has been in permissive possession of the 'B' schedule property under him? (4) Does the 1st defendant prove to be in continuous possession of the 'A' schedule property for over 30 years with the boundaries as described at para 16 of the written statement? (5) Whether the suit is barred by limitation? (6) Whether the valuation and C.F. paid are insufficient? (7) Whether the plaintiff had no cause of action? (8) What order or decree? In OS No.1059/1999 (1) Whether the plaintiff proves that he has been in lawful possession over the suit schedule property? (2) Whether the plaintiff further proves any interference by the defendant to his possession over the suit schedule property? (7) Whether the plaintiff had no cause of action? (8) What order or decree? In OS No.1059/1999 (1) Whether the plaintiff proves that he has been in lawful possession over the suit schedule property? (2) Whether the plaintiff further proves any interference by the defendant to his possession over the suit schedule property? (3) Whether the defendant proves that mere suit for permanent injunction is not maintainable? (4) Whether plaintiff is entitled to the suit remedies? (5) What order or decree?" 9. Common evidence was let-in after clubbing both the suits. The plaintiff was examined as PW1 and Exhibits P1 to P19 were marked. Defendants did not enter the witness box and no documents were marked on their behalf. However, they cross-examined PW.1. 10. After hearing the arguments by both the sides, the trial Court answered the issues in both the suits as below: In OS No.2504/1999 Issue No.1: No Issue No.2: Yes Issue No.3: No Issue No.4: No Issue No.5: No Issue No.6: Yes Issue No.7: Yes Issue No.8: As per final order In OS No.1059/1999 Issue No.1: No Issue No.2: No Issue No.3: No Issue No.4: No Issue No.5: As per final order Ultimately, by the impugned common judgment and decree, the trial Court dismissed both the suits. Being aggrieved by the said judgment and decree, the plaintiff in both the suits is before this Court in these appeals. 11. On issuance of notice, respondent No.1 appeared through his counsel and respondent Nos. 2 to 4 did not appear despite service of notice. 12. Learned counsel for respondent No.1 did not appear when the matter was taken up for final hearing. As such, the arguments by learned counsel for the appellant alone was heard. 13. After having heard the learned counsel for the appellant/plaintiff, the points that arise for consideration are: (i) Whether the trial Court is justified in holding that the suit schedule property described in the plaint is entirely different from the property described in the sale deed at Ex.P1.? (ii) Whether the trial Court is justified in disbelieving the revenue entries as well as the City Survey entries where the extent of the property is mentioned? (iii) Whether any interference is required in the impugned judgment of the trial Court? 14. (ii) Whether the trial Court is justified in disbelieving the revenue entries as well as the City Survey entries where the extent of the property is mentioned? (iii) Whether any interference is required in the impugned judgment of the trial Court? 14. Learned counsel appearing for the appellant submitted that the trial Court has wrongly construed the serial number and the registration number of the registered sale deed at Ex.P1 in a different manner and it failed to correlate Ex.P1 with the City Survey Enquiry Register Extract produced at Ex.P12. It is submitted that though the registered sale deed at Ex.P1 mention the area sold to the plaintiff as 30 ft. x 40 ft., in fact, it was larger than such measurement and in this regard, the law is settled. It is submitted that the boundaries prevail over the measurement and therefore, the trial Court should have considered the City Survey Enquiry Register Extract coupled with the sketches as it is based on enquiry by the Government authorities. It is submitted that the trial Court has not properly appreciated the evidence on record in the light of the documents available. When the suit schedule property was within the limits of Jedarahalli, it was shown as 20th Main' and when it merged with the Bangalore City Corporation, the road was shown to be 2nd Main' and therefore, when the records clearly reveal this aspect, the observations of the trial Court are not justifiable. Therefore, he contends that the conclusions reached by the trial Court are totally against the evidence available on record and the same needs to be set aside. 15. In this regard, he relied on the judgments in the case of The Palestine Kupat Am Bank Co- operative Society Limited v. Government of Palestine and others AIR (35) 1948 Privy Council 207, by privy council where it was held that 'when there is discrepancy in respect of the measurements of the boundaries, the description by boundaries is to be preferred'. 16. On the same point, he also relied on the decision in the case of Sheodhyan Singh and others v. Mst.Sanichara Kuer and others AIR 1963 SC 1879 , where, in para 7, it was held as below: "7.We are of opinion that the present case is analogous to a case of misdescription. 16. On the same point, he also relied on the decision in the case of Sheodhyan Singh and others v. Mst.Sanichara Kuer and others AIR 1963 SC 1879 , where, in para 7, it was held as below: "7.We are of opinion that the present case is analogous to a case of misdescription. As already pointed out the area, the khata number and the boundaries all refer to plot No. 1060 and what has happened is that in writing the plot number, one zero has been missed and 1060 has become 160. It is also important to remember that there is no plot bearing No. 160 In khata No 97 In these circumstances we are of opinion that the High Court was right in holding that this is a case of misdescription only and that the identity of the property sold is well established, namely, that it is plot No. 1060. The matter may have been different if no boundaries had been given in the final decree for sale as well as in the sale certificate and only the plot number was mentioned. But where we have both the boundaries and the plot number and the circumstances are as in this case, the mistake in the plot number must be treated as a mere misdescription which does not affect the identity of the property sold. The contention of the appellants therefore with respect to this plot must fail." 17. He also relied on the decision in the case of Subhaga and others v. Shobha and others (2006) 5 SCC 466 , wherein, in para 6, it was held as below: "6. The High Court has also upheld the title claimed by the plaintiff over Plot No. 1301/1 Ba. Once we accept the identification made by the Commissioner as was done by the first appellate court, it is clear that the plaintiff has the right to have the disputed construction removed and the well filled up. That a property can be identified either by boundary or by any other specific description is well established. Here the attempt had been to identify the suit property with reference to the boundaries and the Commissioner has identified that property with reference to such boundaries. Even if there was any discrepancy, normally, the boundaries should prevail. That a property can be identified either by boundary or by any other specific description is well established. Here the attempt had been to identify the suit property with reference to the boundaries and the Commissioner has identified that property with reference to such boundaries. Even if there was any discrepancy, normally, the boundaries should prevail. There was no occasion to spin a theory that it was necessary in this suit to survey all the adjacent lands to find out whether an encroachment was made in the land belonging to the plaintiff. In this situation, we are satisfied that the judgment and decree of the High Court calls for interference. We are also satisfied that the lower appellate court was justified in affirming the decree granted in favour of the plaintiff on the pleadings and the evidence in the case." 18. Lastly, he relied on the decision in the case of Narasimha Shastry v. Mangesha Devaru ILR 1988 Karnataka Page 554, where again, it was held that, 'the boundaries prevail over the measurement of the property.' 19. It is the case of the plaintiff that he purchased the suit schedule property under the sale deed at Ex.P1 and it is a registered sale deed. In Ex.P1, the boundaries of the property in transaction was mentioned to be "Site No.12 on the East; Site No.14 and road on the West; Road on the North and Site No.8 on the South". The measurement is said to be "30 ft. East West and 40 ft. North South." The said sale deed is dated 21-11-1966. 20. It is pertinent to note that the serial number of the document is mentioned to be 1087' and the registration Number is stated to be 967'. It is pertinent to note that the sale deed was tendered in evidence by PW1 on 17-7-2006. Obviously, the said document was more than 30 years old as on the date of tendering the same in evidence. Therefore, if the document is found to be reliable and original, a presumption under Section 90 of the Evidence Act, could be raised. 21. Obviously, the said document was more than 30 years old as on the date of tendering the same in evidence. Therefore, if the document is found to be reliable and original, a presumption under Section 90 of the Evidence Act, could be raised. 21. Ex.P2 happens to be the certificate issued by the Bangalore City Corporation, wherein, it is stated that the property bearing No.118/35 stands in the name of the plaintiff and it is bounded by; site No.12 on East; Site No.14 on the West, road on the North and site No.8 on the South. Again, the boundaries mentioned in this document also tallies with the boundaries mentioned in sale deed. 22. Exhibits P3 to 8 are the receipts for payment of the property tax between 1997 to 2003. It is evident that the plaintiff is paying the property tax for all those years. 23. Exhibits P9 to P12 are the City Survey records. The property Register Card issued by City Survey Authority is produced at Ex.P9 and it shows that the City Survey No.2645 measures 294.0 sq.m. and it stands in the name of the plaintiff. The origin for the entry is stated to be the enquiry officer's report. Such enquiry Officer's report may be found at Ex.P12. In Ex.P12, it is evident that in the year 1976, the enquiry was conducted and it was found that the said site was belonging to the plaintiff. The basis for the entry is stated to be the sale deed No.967/1966-67. However, the date of sale deed is mentioned to be 20-12-1966. But on the other hand, sale deed when the document came to be registered by the Sub Registrar is stated to be 20-12-1966, but it was executed by the vendor on 21-11-1966. It is also relevant to note that the Enquiry Register Extract mention the name of the purchaser as well as the vendor. In pursuance to the said enquiry, the Form No.9 was issued to the plaintiff, where the details of the enquiry are stated. Obviously, the enquiry was held at the instance of the Government, but not at the instance of any private party. The measurement of the property is mentioned in meters. The City Survey Map is produced at Ex.P11. Evidently, it shows the building which is in existence in CTS No.2645. Obviously, the enquiry was held at the instance of the Government, but not at the instance of any private party. The measurement of the property is mentioned in meters. The City Survey Map is produced at Ex.P11. Evidently, it shows the building which is in existence in CTS No.2645. Thus, it is evident that from the year 1976 when the City Survey Enquiry was held, the property came to be registered in the name of the plaintiff, the ownership of the plaintiff has been recognized by the revenue authorities. 24. Exhibits P13 to P15 are the receipts allegedly issued by the defendants who were in the suit schedule property. PW1 states that he had rented out the portion of the suit schedule property to the tenants and they were evicted and handed over the possession to the plaintiff. 25. The perusal of the cross-examination of PW1 show that much of the cross-examination is in respect of the measurement of the suit schedule property and its location. Evidently, PW1 has stood the cross-examination and has stated that the property mentioned in City Survey Records as well as the sale deed at Ex.P1 are one and the same. Therefore, it is evident that the suit schedule property is the property as described in the City Survey Extract. There cannot be any doubt on this aspect. It is pertinent to note that except the fact that it is mentioned as 20th Main' in Ex.P1 and it is mentioned as 2nd main' in Bangalore City Corporation records, there is no other discrepancy. The said discrepancy has been explained by the plaintiff by stating that when he was in Jedarahalli Limits, it was known as 20th Main' and later, it came to be renamed as 2nd Main'. This explanation can also be inferred from City Survey Enquiry Report. Under these circumstances, the observation by the trial Court that the suit schedule property is totally different than the one mentioned in Ex.P1 cannot be accepted. Obviously, the trial Court had not keenly observed the Ex.P1 with reference to its registration number and the survey number. Had it bestowed its attention on the Serial Number and Registration Number, the matter could have been cleared. Moreover, Ex.P12, City Survey Enquiry was initiated by the Government and an enquiry was held by the enquiry officer and after verifying the title deeds, entry came to be made. Had it bestowed its attention on the Serial Number and Registration Number, the matter could have been cleared. Moreover, Ex.P12, City Survey Enquiry was initiated by the Government and an enquiry was held by the enquiry officer and after verifying the title deeds, entry came to be made. It is a public record kept in due course of the business. It is not a document came into existence at the instance of any party. Therefore, evidenciary value can be attached to the enquiry report is on the higher side than any other document. Obviously, Ex.P12 has not been shown to be false or created. There is no such rebuttal evidence which would falsify Ex.P12. So also the revenue records also show that the name of the plaintiff appears for the same for a considerable long time. Ex.P1 coupled with the Bangalore City Corporation records and city Survey records, it is evident that the plaintiff shown to be the owner of the suit schedule property since the year 1966. For these reasons, the presumption that could be drawn in respect of Ex.P1 gains importance. Ex.P1 gets impetus above the subsequent revenue entries. Therefore, there is no reason to draw the presumption as required under Section 90 of the Evidence Act. 26. So far as the measurement of property is concerned, it is evident that since the year 1978 when the enquiry was held by the City Survey Authorities, the plaintiff is known to be the holder in title to the extent of about 60 ft. x 40 ft. The City Survey Sketch also shows the same. Hence, the principles that the boundaries prevail over the measurement, if it is remained unquestioned for considerably long time can aptly be applied to the case on hand. Thus, it is found that the findings of the trial court is not sustainable in law. As a consequence, the points raised above are answered in favour of the appellant/plaintiff. In the result, the following: ORDER (i) The appeals are allowed. (ii) The impugned common judgment in both the suits are hereby set aside. (iii) The suits of the plaintiff are decreed. (iv) The plaintiff is declared to be absolute owner of the suit schedule 'A' property. The defendants are directed to handover the possession of 'B' schedule property to the plaintiff within a period of three months from the date of this judgment. (iii) The suits of the plaintiff are decreed. (iv) The plaintiff is declared to be absolute owner of the suit schedule 'A' property. The defendants are directed to handover the possession of 'B' schedule property to the plaintiff within a period of three months from the date of this judgment. (v) The defendants or anybody else claming through them are also restrained from interfering with the enjoyment of the suit schedule A and B properties by the plaintiff. (vi) The defendants are also to pay the costs of the suit.