Dismissed

Sri K Prasad v. Sri Prakash

Karnataka HC21 Dec 2020RFA/1410/2014

Case brief

AI extract

What is this about?

Appeal against a decree dismissing a suit for permanent injunction and upholding a counter claim regarding encroachment. The High Court upheld the trial court's reliance on the Court Commissioner's report and sketch, finding the appellant had encroached on the respondent's property based on overlapping measurements.

What did the court decide?

Appeal dismissed; judgment and decree dated 25.07.2014 and Counter Claim lower Court upheld.

Sri K Prasad Vs Sri Prakash — Partition | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF DECEMBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO

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R.F.A.No.1410/2014

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BETWEEN:

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SRI K PRASAD S/O LATE K M KRISHNAPPA AGED ABOUT 53 YEARS R/O No.182, “KRUSAN” 9^TH MAIN ROAD, SECTOR VII HSR LAYOUT, BANGALORE – 560 034.

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…APPELLANT

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(BY SRI SHANMUKHAPPA, ADVOCATE FOR KESVY AND CO.)

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AND:

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SRI PRAKASH

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S/O MUNIKRISHNAPPA @ K MUNIKRISHNAPPA AGED ABOUT 47 YEARS R/O No.588, 8^TH BLOCK 20^TH MAIN ROAD KORAMANGALA, BANGLAORE – 560 025.

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K.M.KRISHNAPPA S/O K N MUNISSWAMY REDDY SINCE DEAD BY HIS LRs.

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SMT.INDIRA W/O LATE K.M.KRISHNAPPA AGED ABOUT 54 YEARS.

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SRI K K RAGHURAM S/O LATE K.M.KRISHNAPPA AGED ABOUT 44 YEARS.

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SRI K K SANTHOSH W/O LATE K.M.KRISHNAPPA AGED ABOUT 25 YEARS. ALL ARE R/O No.588 8^TH BLOCK, 20^TH MAIN ROAD KORAMANGALA, BANGALORE – 560 070.

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SMT.K K MANJULA AGED ABOUT 50 YEARS W/O SRINIVAS REDDY R/O No.396, 18^TH MAIN 6^TH BLOCK, KORAMANGALA BANGLORE – 560 095.

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SMT.K K GAYATHRI W/O Y A PRAKASH AGED ABOUT 48 YEARS R/O REDDY COLONY No.236, YAMALURU POST BANGALORE – 560 047.

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BANGALORE DEVELOPMENT AUTHORITY No.2, SANKEY ROAD BANGALORE – 560 020 REPRESENTED BY ITS COMMISSIONER. …RESPONDENTS

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(BY SRI SHIVASHANKAR S K, ADVOCATE FOR C/R1, R2 TO R5 SRI SANATH KUMAR, ADVOCATE FOR R6

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SRI M V VEDAMURTHY, ADVOCATE FOR R7)

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THIS RFA FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED:25.07.2014 PASSED IN O.S.7730/2008 ON THE FILE OF THE XXXIXADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, DISMISSING THE SUIT FOR PERMANENT INJUNCTION.

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

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JUDGMENT

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This appeal under Section 96 of CPC is directed against the Judgment and decree dated 25.07.2014 passed in O.S.No.7730/2008 by learned XXXIX Additional City Civil and Sessions Judge, Bengaluru, wherein suit of the plaintiff came to be dismissed and counter claim filed by defendant No.1 and legal representatives of defendant No.2 came to be allowed.

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Being aggrieved by the said Judgment and decree, plaintiff is in appeal.

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The relief sought in the appeal is to set aside the

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Judgment and decree dated 25.07.2014 passed by the learned XXXIX Additional City Civil and Sessions Judge, Bangalore.

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In order to avoid confusion and overlapping the parties are addressed in accordance with the rankings and status held by them before the trial court.

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The case of the plaintiff is that his father purchased site bearing No.182, 9^th Main of Sector VII, HSR Layout, Bangalore, measuring East to West 18.28 meters and North –South 12.19 meters under a registered sale deed dated 28.06.1994 and the same is reflected in schedule A’ to the plaint. After the death of his father, plaintiff succeeded to the same regarding ownership. Subsequently plaintiff made a request for allotment of marginal land towards eastern side of the schedule A’ property which was lying

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vacant. Third defendant, the Commissioner, Bangalore Development Authority considering the same allotted marginal land to an extent of 74.05 sq. meters (East to West 6.10 +6.5/2 meters and North to South 12.19

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meters) i.e., `B’ schedule property.

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Subsequent to the said allotment, registered sale

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deed was also executed in favour of the plaintiff on 09.07.2002. Possession of the same was also delivered. Thus, plaintiff has been in physical possession and enjoyment of both A’ and B’ Schedule property. The boundaries for A’ schedule property as per the sale deed are East by site No.1917, West by 60 ft road; North by site No.181 and on the South by site No.183. Similarly the description of B’ schedule property is East by private property; West by site No.182 and appellant (plaintiff) property; North by Site No.192 and South by site No.190. Thus, the property that was subsequently

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allotted to the plaintiff is to the east of the property

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held by plaintiff.

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It is further stated that as on the date of

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execution of the sale deed of B’ schedule property in favour of plaintiff there was no remaining land capable of allotment to the east of B’ schedule property rather it was bounded by a private property. To the north of B’ schedule property site No.192 is existing. Plaintiff claims to have put up construction over the A’ schedule property after obtaining necessary permission and sanction from competent authority. By the time the registered sale deed of B’ schedule property was executed in favour of the plaintiff he had completed construction over A’ schedule property. It is also stated plaintiff has fenced both A’ and B’ schedule properties and has installed sanitary pipe through `B’ schedule property in the year 2002 and when the plaintiff was about to install a compound

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the defendant started obstruction and interference

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and plaintiff was compelled to present the suit.

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During the pendency of the suit defendant No.2 died and his legal representatives were brought on record. The defendants denied the claim of the plaintiff over the schedule property and extent of the property as claimed by plaintiff. According to first defendant there is a vacant land situated towards east side of B’ schedule and said land was converted into three sites bearing Nos.324, 325 and 326. In the year 2002 B’ schedule property was allotted to defendant that was followed by a sale deed. There was no site bearing No.326 towards northern side of `B’ schedule property.

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As per the sale deed executed by Bangalore Development Authority site No.182 was in existence. However there was no explanation as to when the site

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No.192 situated on northern side of B’ schedule was converted as site No.326 though the subsequent allotment to the plaintiff is not disputed by defendant there is a serious dispute in respect of existence of the location of the property. As a matter of conflict according to the plaintiff there is no property allotted on the northern side of B’ schedule property which is strongly denied by the defendant.

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The case of the defendants is that Bangalore Development Authority acquired land in Sy.No.1/2 to the extent of 37 ½ guntas of Venkoji Rao Khane that belonged to defendant No.2 for the purpose of formation of HSR 7^th Sector layout. The Bangalore Development Authority also granted a site in favour of defendant No.2 measuring 30x40 ft with site No.326 of HSR 7^th sector layout in the year 1991. Bangalore Development Authority also has executed a rectification deed on 30.11.2006 with the boundaries

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east by Road, West by Site No.181 and 182, North by site No.325 and South by site No.327.

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Defendant No.2 also contends that the marginal

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land was also sold to this defendant on 29.11.2007 measuring East to West 4.43+4.57 mtrs./2 and North to South 9.14 mtrs. (4.43+4.57 =9/2=4.5x9.14 =41.13 sq. mtrs.). The boundaries are East by original site No.326, West by site Nos.181 and 182 and North by site No.325 and south by marginal land of site No.182.

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Defendants claim that plaintiff claiming to be owner of site No.182 and the owner of marginal land to an extent of 161.26 sq. mtrs., he is interfering with the possession of the property of this defendant over his property stated above. Thus defendant claims plaintiff started digging foundation on 14.11.2008. Thus, in substance the plaintiff and defendant are

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stated to be owners of adjoining sites in the directions as stated above but are at logger heads regarding extent. Each blame the other of encroachment. In this connection suit filed by the plaintiff is for permanent injunction and defendant seeks for a mandatory injunction to direct the plaintiff to remove encroachment of 18.15 sq. mtrs.(200 sq.ft) situated to the south –west of defendants site by demolishing the compound wall built up on the encroached area.

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Defendant No.3 –BDA filed written statement denying the plaint averments and contended that suit is not maintainable and plaintiff has not approached this court with clean hands. It is admitted by third defendant that marginal land measuring 6.10 +6.05/2 towards eastern side of Site No.182 was allotted to the plaintiff. It is further contended that third defendant formed four sites and they have been

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numbered as 324, 325, 326 and 327. Site No.327 is lying on the eastern side of plaintiff site No.182. It is further contended that plaintiff got allotted twice marginal land measuring 74.05+96.16 sq. mtrs. In total 170.66 sq. mtrs. But the records of defendant reveal that marginal land towards eastern side of plaintiff site No.182 available only to the extent of 161.26 sq. mtrs.

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It is in this background the learned trial Judge framed the issues on possession of the plaintiff over `B’ schedule property, interference and relief entitled. Similarly in respect of the counter claim of the defendants and encroachment and the relief which the defendants contend to be entitled.

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Learned Judge was accommodated with the oral evidence of PW-1-K.Prasad and documentary evidence

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Exhibits P-1 to P-13 on behalf of the plaintiff which

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are as under:

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Ex.P.1 Sale deed dated 28.06.1994 Ex.P.2 Khata issued by BDA Ex.P.3 Tax paid receipt Ex.P.4 Nil encumbrance certificate Ex.P.5 Possession certificate Ex.P.6 Sale deed dated 09.07.2002 Ex.P.7 Positive photograph Ex.P.8 Police complaint with endorsement Ex.P.9 Acknowledgement. Ex.P.10 Certificate issued by BBMP Ex.P.11 RTC Ex.P.12 Property Tax receipt Ex.P.13 Sketch.”

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On behalf of defendants DW-1 and DW-2 were examined and they got marked the following

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documents as Exhibits D-1 to D-21.

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“DW1 K.M.Krishnappa DW2 Shabber Ahmed

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Exhibits D-1 TO D-21 Ex.D.1 Sale deed Ex.D.2 Rectification deed Ex.D.2(a) Marginal portion of sale deed Ex.D.3 Endorsement Ex.D.4 Copy of the sale deed Ex.D.5 Possession certificate Ex.D.6 to 8 Tax paid receipts Ex.D.9 to 21 Photos.”

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Again the evidence of CW-1-Hanumanthegowda

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and documentary evidence Exhibits C-1 to C-1(e).

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Ex.C.1 Commissioner report Ex.C-1(a) Signature of CW-1 Ex.C-1(b) Rough sketch Ex.C-1(c) Another sketch Ex.C-1(d) Another sketch Ex.C-1(e) Disputed property.”

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Upon conclusion of the trial the suit came to be

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dismissed. The operative portion is as under:

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“The suit filed by the plaintiff is hereby dismissed. The counter claim filed by the defendant No.1 and LRs of defendant No.2 along with written statement is hereby allowed.

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The defendant No.1 and LRs of defendant No.2 are hereby declared that they are the owners of the suit schedule property and they are entitled for vacant possession of the property which is shown by the commissioner in the sketch marked at Ex.C-1(e) which measures East to West 6.05 sq. meters and another side measures 4.57 sq. meters and in width from upper level is 3.14 meters and below level is 3.11 sq. meters.

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The plaintiff is hereby directed to vacate the said area and hand over the possession of the same to the defendant No.1 and LRs of

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defendant No.2 within 90 days from the date of this order.

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In case of failure, the defendant No.1 and LRs of defendant No.2 have got right to get the vacant possession of the above property according to law.

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Parties are directed to bear their own costs.

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Draw a decree accordingly.”

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Being aggrieved by the said Judgment plaintiff

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has preferred this appeal.

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The learned counsel for appellant-plaintiff would

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submit that the learned trial Judge erred in dismissing the suit of the plaintiff and allowing the counter claim of defendants. He would further submit state of affairs of the case clearly mention the existence of the suit property in schedule wise and that of the property of the defendants. Such being the case, the learned trial

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judge failed to appreciate the evidence on record

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regarding the measurement available of the schedule properties at the spot.

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It was further submitted that the learned trial judge misread the Commissioner’s report with reference to sketch and demarcation of the properties, by schedule wise. It was also submitted that nodoubt, the Commissioner has also misread the location of the properties on the spot and while preparing sketch too many ambiguities have crept in both the sketch and the report as well and same has added confusion.

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Learned counsel for defendants 1 and 2 submits that they have also filed counter claim for decree of mandatory injunction against the plaintiff and directing the plaintiff to vacate and deliver the possession of the encroached area measuring 18.15 sq.mtrs. totally 200 sq.ft. situate to the south west of

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defendant’s property. Thus, the defendant contends the plaintiff has not come to the court with clean hands and he has not narrated the state of affairs as available on the spot. The independent authority, Court Commissioner has gone to the spot and executed the commission warrant and reported and also marked a sketch which is the part of report and thereafter, by means of sketch and diagram has shown the property of the defendant and the plaintiff with reference to overlapping area and stated therein that it is the plaintiff who is in possession of the said portion and it is in excess of the property what was owned by the plaintiff. So far as perusal of the documents, plaintiff and the defendants are fair atleast to the extent of properties of each other. Insofar as the schedule property inherited by the plaintiff from his father and the additional marginal land allotted and sold to him by defendant No.3-BDA.

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Insofar as plaintiff is concerned, he has examined himself as PW1 and filed the affidavit in lieu of chief examination and reiterated the plaint averments. So also is the case of defendants. There is no much additional or technicalities to be read into their evidence and each claim the source of ownership both are stated to be the owners of adjoining property. The source of title for the plaintiff as claimed by him as A and B schedule properties is site bearing No.182. A schedule property which is stated to have been part of the acquired land of 37 ½ guntas and the portion conveyed to the father of the plaintiff. Insofar as B schedule property is concerned, it is stated to be adjoining to A schedule property, bearing No.182, 9^th Main, VII Sector, HSR Layout, Bangalore, measuring East to West by 6.10 + 6.05/2 Meters and North to South is 12.19 in all 74.05 Square meters.

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As against this, defendants contend that it is not

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clear of any land or portion of it being encroached in respect of the schedule property. Per contra, it is the plaintiff who has over stepped into the property of the defendants and apart from denying the claim made by the plaintiff, they made counter claim also.

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The measurement claimed by the plaintiff and the defendants are available in the respective title deeds claimed by them. It is only the blame of over stepping by each on the other. It is in this connection a Court Commissioner was appointed and he has executed the warrant and submitted his report along with the sketch also.

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The report of the Court Commissioner appointed by the trial court submitted on 31-05-2013 is as under:

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“That the undersigned was appointed as Court Commissioner by the Order of this

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Hon’ble Court dated 06/08-02-2013. As per the directions of this Hon’ble Court, the Plaintiff and the defendants have furnished their names of instructions. In compliance with the Orders of this Hon’ble Court, the undersigned Commissioner as per the procedure has issued the notice to the parties and Advocates on record and as notified in the said notice the undersigned Commissioner was present in the spot for inspection of the properties on 23.02.2013 at 10.30 a.m. and taking measurements. At that time the Plaintiff, defendants and their Counsels were present. The defendant No.3 though the notice was served the defendant No.3 was absent but the Advocate on record for the defendant No.3 was present. In presence of parties the measurements of the properties were taken and obtained signatures of the parties present at the time of taking measurements a rough sketch was drawn with physical measurements. The copies of the said rough sketch as made available to all of the parties. Upon completion of the work and left the spot at 1.30 p.m on the same day.

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I, the undersigned Commissioner has super imposed the rough sketch into a computerized sketch. The said sketch along with the rough sketch and the warrant issued by this Hon’ble Court, Memo of Instructions filed by the parties and the documents furnished by the parties, copies of the notice issued by the Commissioner and the acknowledgement for having served the same to the parties are all herewith enclosed. The gist of the sketch is as follows:

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The undersigned Commissioner has drawn 2 drawings, i.e., one is as per the Sale Deeds and another is in accordance with actual physical existence.”

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Insofar as sketch is concerned, A schedule of the plaintiff is shown as sketch No.1 (marked as ABCD for convenience).

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The measurement as per the deed is stated as East to West 18.28 mts and North to South on the eastern side is 12.19 mts.

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Another sketch in respect of ‘B’ schedule (marked as CDEF) which measures East to West 6.10 mtrs. on the southern side and 6.05 mtrs. on the northern side. North to South is 12.19 Mts.

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Another sketch in respect of `C’ schedule marked as EFGH which measures 9.04 mtrs. East to West and 9.04 mtrs. on the eastern side.

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The report of the Commissioner and the sketch

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are perused carefully. Insofar as sketch is concerned A schedule property of the plaintiff is shown as sketch No.1 and marked as ABCD. The measurement as per the deed is stated as 18.28 mtrs. East to West and North to South 12.19 mtrs.

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Coming to the crux of the contentions, it is not the original property purchased by the plaintiff or the defendants that forms the bone of contention. On the other hand, it is the subsequent grant of marginal land to both the plaintiff and the defendants which has created kiosk between them. In this connection, the marginal land was granted to the plaintiff twice. First time 74.05 sq. mtrs is granted which is shown as B schedule property. [In the eastern side a rectangular box is marked]. The measurement towards NorthSouth totally if taken at 12.19 + 3.14 = 15.33, 9.40 +

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3.07 = 12.47 = 15.33 x 12.47 = 197.1651. If inner

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measurement is considered, it is 12.19 North to South and 6.07 East to West. 12.19 x 6.07 = 73.99 that is the grant. The measurement of the box is as under: East west 3.14 on the southern side + 3.07/2=3.11 which means 5.13 x 3.11 = 15.9543 north-south on the eastern side 6.05 and on the western side by 4.57. (6.05 +4.57= 10.62 /2 = 5.31, 3.11 x 3.14 = 9.76/2 = 4.88, 5.31 x 3.15= 16.7265)

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As per the Commissioner sketch regarding state of affairs, there is no dispute regarding ownership of the land that was originally owned by both the parties i.e., excluding the additional allotment. The claim of the plaintiff is additional land was granted on 09.07.2002. The allotment of additional/marginal grant to the plaintiff was made twice.

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First grant is on 09.07.2002 i.e.,

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12.19x6.07=74.05. Second grant is 87.21.

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The actual calculation as per the Commissioner sketch and possession tallying is as under:

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‘B’ schedule property according to plaintiff it was granted at 74.05 and property granted in the second segment is shown as 87.21. Thus, from both the grants land granted to plaintiff is 161.26.

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Learned counsel for defendant has filed a copy of the commissioner’s sketch which is already marked as C1 and highlights the intersection and encroachment.

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In the said sketch, it is stated that measurement of the defendant’s property in one segment is 4.43X6.03 and 6.00x6.05. Measurement of defendant property east west by 4.43 and North South 9.10(9.14X9.10=41.13X9.10=41.13).

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9.14X9.10=4.55/2=9/2=4.5X9.14, 3.07+6.03=9.10

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3.14+6.00=9.14

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9.14X9.10/83.17=18.24/2=9.12+4.57+4.43/2=82.08.

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The sketch contains the location of ‘B’ schedule property and the property of the defendant. There is an intersection which is marked as ABCD i.e., claimed to be the encroachment by the plaintiff. The measurement of the total property according to the said sketch of the defendant is East West by 3.14+6.00=9.14, North South 3.07+6.03=9.10/2=4.50 whereas B Schedule=74.05 square meter.

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The location of the property mentioned as B schedule in the plaint and the property of the defendant if added is marked as MNOP. The plaintiff’s property granted is measuring 74.05 Square meter and defendant property is 41.13 square meter. Thus if MPCO is considered as the total property in occupation of the plaintiff the measurement would be

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12.19+3.14/2=15.6/12.19+3.07+15.26+15.46

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15.30X6.7=92.871=74.05.

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Thus the property in occupation of the plaintiff which could be seen is MPCO =92.871. But the granted land to the plaintiff is 74.05. (exact land granted is 18.921). Similarly the granted land to the defendant is 9.14X4.5=41.13. On finding the intersection or overlapping of the land of plaintiff over the land of defendant becomes ABCD that would be 18.82 (6.05X3.11). Thus in the circumstance, it is necessary to get the plan marked as AC-II. Moreover plaintiff has come in appeal only against allowing of counter claim, but has not chosen to prefer appeal against dismissal of suit.

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By considering the over all conclusion, I do not find any infirmity, illegality or overlapping or confusion in the Judgment and decree passed by learned trial

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Judge in dismissing the suit of the plaintiff and allowing the counter claim. On perusal of the sketch and admitted documents it makes clear that interference with the Judgment of trial court is uncalled for. Appeal is dismissed.

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Sd/JUDGE

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SBN/tsn*

Sri K Prasad v. Sri Prakash

Case brief

What is this about?

What did the court decide?

Sri K Prasad v. Sri Prakash

Case brief

What is this about?

What did the court decide?

What the court decided

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