Dismissed

Manjunatha v. Kotehal Shivappa

Karnataka HC9 Oct 2013RSA/1926/2008

Case brief

AI extract

What is this about?

The High Court dismissed an appeal against a lower appellate order that modified a declaration suit. The Court upheld the finding that the defendant owned land on the southern side of the plaintiffs' property based on survey sketches and deed evidence, applying Section 35 of the Specific Relief Act.

What did the court decide?

The appeal was dismissed; the order of the first appellate court modifying the decree and restricting the plaintiffs' claim was affirmed.

Manjunatha Vs Kotehal Shivappa — Specific Performance | Karnataka HC (2013)

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RSA 1926/2008

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 9^th DAY OF OCTOBER, 2013

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BEFORE

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THE HON’BLE MR.JUSTICE A.S.PACHHAPURE

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REGULAR SECOND APPEAL No.1926/2008

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BETWEEN

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MANJUNATHA S/O SHANKARAPPA AGE 55 YEARS AGRICULTURIST R/OF BANUVALLI VILLAGE, HARIHARA TALUK DAVANAGERE DISTRICT-577 006.

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KALLAPPA S/O SHANKARAPPA AGE 45 YEARS AGRICULTURIST R/OF BANUVALLI VILLAGE, HARIHARA TALUK DAVANAGERE DISTRICT-577 006.

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MOUNESHACHARI @ VATANACHARI S/O SHANKARAPPA AGE 37 YEARS AGRICULTURIST R/OF BANUVALLI VILLAGE, HARIHARA TALUK DAVANAGERE DISTRICT-577 006.

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... APPELLANTS

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(By Sri. S S GUTTAL, ADV.)

RSA 1926/2008

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AND

KOTEHAL SHIVAPPA DEAD BY LRs.

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a. SMT NAGAMMA

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W/O LATE SHIVAPPA, AGEDA BOUT 73 YEARS AGRICULTURIST R/O BHANUVALLI VILLAGE HARIHAR TALUK DAVANAGERE DISTRICT-577 006.

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b. K L BASAVARAJAPPA

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S/O LATE SHIVAPPA AGED ABOUT 55 YEARS AGRICULTURIST R/O BHANUVALLI VILLAGE HARIHAR TALUK DAVANAGERE DISTRICT-577 006

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c. SHIVAPUTHRAPPA

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S/O LATE K SHIVAPPA AGED ABOUT 52 YEARS AGRICULTURIST R/O BHANUVALLI VILLAGE HARIHAR TALUK DAVANAGERE DISTRICT

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d. NAGARAJAPPA

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S/O LATE K SHIVAPPA AGED ABOUT 50 YEARS AGRICULTURIST R/O BHANUVALLI VILLAGE HARIHAR TALUK DAVANAGERE DISTRICT

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e. GURURAJAPPA

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S/O LATE K SHIVAPPA AGED ABOUT 48 YEARS AGRICULTURIST R/O BHANUVALLI VILLAGE HARIHAR TALUK DAVANAGERE DISTRICT

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RSA 1926/2008

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f. SHIVAKUMAR S/O LATE K SHIVAPPA AGED ABOUT 45 YEARS AGRICULTURIST R/O BHANUVALLI VILLAGE HARIHAR TALUK DAVANAGERE DISTRICT

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g. RAVI S/O LATE K SHIVAPPA AGED ABOUT 45 YEARS AGRICULTURIST R/O BHANUVALLI VILLAGE HARIHAR TALUK DAVANAGERE DISTRICT

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h. SMT.SHARADAMMA D/O LATE K.SHIVAPPA AGED ABOUT 37 YEARS AGRICULTURIST R/O BHANUVALLI VILLAGE HARIHAR TALUK DAVANAGERE DISTRICT

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i. SMT.JAYAMMA

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D/O LATE K SHIVAPPA AGED ABOUT 34 YEARS AGRICULTURIST R/O BHANUVALLI VILLAGE HARIHAR TALUK DAVANAGERE DISTRICT

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j. SMT KUSHALAMMA D/O LATE K SHIVAPPA AGED ABOUT 32 YEARS AGRICULTURIST R/O BHANUVALLI VILLAGE HARIHAR TALUK DAVANAGERE DISTRICT

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RSA 1926/2008

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k. SMT.SAVITHA D/O LATE K SHIVAPPA AGED ABOUT 30 YEARS AGRICULTURIST R/O BHANUVALLI VILLAGE HARIHAR TALUK DAVANAGERE DISTRICT.

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... RESPONDENTS

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(By Sri.: B M HALASWAMY, ADV. FOR C/R1(a to k)

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RSA FILED U/S.100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD. 16.7.08 PASSED IN R.A.NO.19/06 ON THE FILE OF THE CIVIL JUDGE, (SR.DN), HARIHAR, ALLOWING THE APPEAL AND MODIFYING THE JUDGEMENT AND DECREE DTD. 16.3.06 PASSED IN OS 82/03 ON THE FILE OF THE CIVIL JUDGE, (JR.DN), & JMFC., HARIHAR.

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THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The appellants have challenged the judgment

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and decree in RA No.19/2006 modifying the decree of the trial Court and restricting the claim of the appellants over the suit property to an extent of 2 acres and 17 guntas showing the boundary on the southern side as the land of the respondents.

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The facts relevant for the purpose of this appeal are as under:

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RSA 1926/2008

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The parties will be referred as per their rank before the trial Court for the sake of convenience. The appellants herein are the plaintiffs, whereas, the respondents are the legal representatives of the deceased defendant. The suit was instituted seeking a relief of declaration and injunction to restrain the defendant from causing obstruction to the peaceful possession and enjoyment of the suit property bearing Sy.No.41/1P2 measuring 2 acres 17 guntas of Bhanuvalli Village with the boundaries mentioned in the schedule to the plaint. The plaintiffs contend that the suit property is ancestral property and they are in possession of the same. According to the plaintiffs the suit survey No.41 is measuring 10 acres and 23 gunts, out of which the deceased defendant had purchased 5 acres and D.Veerappa owned 1 acre 30 guntas and Nagendrappa owned 1 acre 16 guntas, wherein the plaintiffs are in possession of 2 acres and 17 guntas, thereby according to the plaintiffs the

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RSA 1926/2008

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suit survey number is occupied by the aforesaid persons and the defendant had filed OS No.413/1963 against Gowdara Veerappa seeking declaration in respect of 1 acre 30 guntas of land in the said survey number and this suit came to be dismissed. The appeal was preferred by the deceased defendant in RA No.84/1964 and the said appeal was also dismissed. In the circumstances as there was an obstruction to the peaceful possession and enjoyment of the property at the hands of the deceased defendant, the present suit came to be instituted and according to the plaintiffs, on the southern side of the suit property is the land of one Murigeppa.

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The deceased defendant appeared in the

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trial Court and filed written statement and it was his specific contention that under the registered sale deed dated 15.5.1954, he had purchased 1 acre and 30 guntas of land from one Bhadrawwa and this property is situated on the southern side of the

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RSA 1926/2008

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property of the plaintiffs. Therefore, he disputed the boundaries mentioned in the plaint and contended that in between the property of the plaintiffs and the land of Murigeppa, the land measuring 1 acre 30 guntas out of suit survey number is situated. So also it is their contention that under the sale deed dated 26.7.1954 they have purchased 5 acres of land from Gurubasappa which is half portion of the suit survey number. In the circumstances, it was their contention that plaintiffs are not entitled to declaration and also the injunction sought for, as the description of the boundary is not proper.

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On the basis of these pleadings the trial Court framed the issues. The first plaintiff was examined as PW1 and two witnesses PWs.2 and 3. In their evidence the documents Exs.P1 to P9 were marked. On the side of defendants DWs.1 and 2 were examined and Exs.D1 to D13 were marked. The trial

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Court after hearing the counsel for the parties and

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RSA 1926/2008

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on appreciation of the evidence on record decreed the suit of the plaintiffs as prayed for. Aggrieved by the judgment and decree of the trial Court, the legal representatives of the deceased defendant filed an appeal in RA NO.19/2006 and the first appellate Court has allowed the appeal partly confirming the decree of injunction restraining the claim of the plaintiffs by showing boundary of the

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land of the defendant on the southern side. Aggrieved by the judgment and decree of the first appellate Court, the plaintiffs are in appeal.

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At the time of admission the following

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substantial question of law has been raised:

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i) Whether the first appellate Court was justified in overlooking the evidence to the effect that defendant could not claim more than five acres of land, which had attained finality in an earlier suit in O.S.No.413/1963 before the Court of Civil Judge (Junior Division) and JMFC, Harihar.

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RSA 1926/2008

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ii) Whether the Courts below were justified in finding a case for the defendant even though there was no material evidence placed on record to establish his possession of the suit property?”

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I have heard the learned counsel for both

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the parties.

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It is the contention of the learned counsel

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for the appellants that the deceased defendant had purchased 1 acre 30 guntas of land under the registered sale deed dated 15.5.1954 at Ex.D10 from the erstwhile owner Bhadrawwa and in respect of this property the suit bearing OS No.413/1963 was instituted by the deceased defendant against D.Veerappa seeking a relief of declaration and injunction of his ownership and this suit came to

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be dismissed and the decree of dismissal was confirmed in the appeal. Hence it is their contention that the deceased defendant cannot claim

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a right over 1 acre 30 guntas of land and even

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RSA 1926/2008

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otherwise the said land is not on the southern side of their property. He would contend that the judgment and decree in OS 413/1963 is binding upon the deceased defendant and also his legal representatives and the defendants cannot take up a contention about their title to the said property in the present suit as well. So also it is his contention that one Veerachari is in possession of 1 acre 16 guntas and D.Veerappa is in possession of 1 acre 16 guntas and if this land is added with the land of the plaintiffs i.e. 2 acres 17 guntas, and the defendant had purchased 5 acres of land subsequently, the total would exceeds the land in suit survey number 41. Hence it is the contention that the deceased defendant has no property on the southern side of the plaintiffs property. On these grounds he has sought for setting aside the judgment and decree of the first appellate Court.

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Perusal of the material placed on record particularly Ex.P7 which is the certified copy of

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RSA 1926/2008

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the judgment and decree in OS No.413/1963 would indicate that the deceased defendant had filed the suit claiming title over the land measuring 1 acre 30 guntas out of Sy.No.41 under the registered sale deed dated 15.5.1954. This suit came to be instituted against Veerappa bin Basappa. Admittedly this suit came to be dismissed on merits. There was an appeal against this judgment and decree and the said appeal also came to be dismissed. As regard the decree in this suit is concerned it is relevant to refer to the provisions of Section 35 of the Specific Relief Act. The said provision is extracted hereunder for the sake of convenience:

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“Section 35: Effect of declaration: A declaration made under this Chapter is binding only on the parties to the suit, persons claiming through them respectively, and where any of the parties are trustees, on the persons for whom, if in existence at the date of the declaration, such parties would be trustees.”

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RSA 1926/2008

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Any decree relating to a declaration in a suit instituted between the parties is binding only on the parties to the suit or the persons claiming through them and where any of the parties are trustees, it binds the persons who were trustees at the time of existence of the date of declaration. So, anyhow the perusal of the provision would clearly indicate that this decree which was against the deceased defendant would be binding upon him to the extent of his claim against his adversary in the said suit. It does not bind him as against the plaintiffs. Therefore, merely because that there was a decree in OS 413/1963 as per Ex.P7, that itself does not take away the right of the deceased defendant in the property which was purchased by him under the registered sale deed dated 15.5.1954 at Ex.P10.

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So far as the boundaries in respect of 2 acres 17 guntas of land belonging to the plaintiffs is concerned, it is for them to establish that on

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RSA 1926/2008

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the southern side of the suit property it is the land of Murigeppa. On this aspect of the matter except the oral version of the plaintiffs, there is no material placed on record. Further more, the suit survey number was surveyed by the competent authorities and the plaintiffs had produced the survey sketch at Ex.P5 wherein the defendant has also produced the sketch at Ex.D7. Perusal of the sketch which has been produced by both the parties would clearly indicate that on the southern side of the property of the plaintiffs, is the property measuring 1 acre 30 guntas in between the land of the plaintiffs and the other survey number on the southern side. The plaintiffs themselves have produced the survey sketch Ex.P5 and the defendants have produced the same sketch at Ex.D7 along with the order of the Assistant Director of Land Records at Ex.D5. Perusal of this order would clearly indicates as to the persons who are in possession of the property in pursuance of the mutation

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RSA 1926/2008

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entries in the Record of Rights of the suit survey number. So, the material placed on record by the parties to the suit would clearly indicate that on the southern side of the property of the plaintiffs there is property of the defendants measuring 1 acre and 30 guntas. Apart from the aforesaid material placed on record, the defendant also rely upon Ex.D10 the sale deed on the basis of which they have acquired the title and perusal of Ex.D10 would clearly indicate that on the northern side of their property it was the property of Parvathavva and on the southern side is the land of Bevinahalli Basappa, to mean a different survey number and this would clearly support the version of the defendants. So, this material was looked into by the first appellate Court while restricting the claim of the plaintiffs to the extent of 2 acres 17 guntas by showing the boundaries of the land of the defendants on the southern side. That apart, who else are the owners of the portion of the suit

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RSA 1926/2008

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survey number is clear from the copy of order passed by the Assistant Director of Land Records produced by the defendants and hence the second question also do not survive for consideration. When the first appellate Court on the basis of the material placed on record and on its appreciation has come to the conclusion that the relief sought for by the plaintiffs is to be modified.

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In view of the provisions of Section 35 of the Specific Relief Act and the material placed on record, I have to answer substantial questions of law in affirmative.

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Consequently, the appeal fails and it is accordingly dismissed.

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Sd/JUDGE

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*AP/-

Manjunatha v. Kotehal Shivappa

Case brief

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Manjunatha v. Kotehal Shivappa

Case brief

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