Allowed

Sri Ramakrishna v. Sri B R Peddareddy

Karnataka HC17 Dec 2020RSA/2213/2007

Case brief

AI extract

What is this about?

In a Regular Second Appeal, the High Court of Karnataka held that the trial and appellate courts erred by granting a permanent injunction without verifying the precise boundaries and identification of the disputed land. The court set aside the decrree dismissing the suit against the appellant.

What did the court decide?

The judgment and decree of the trial court and the first appellate court were set aside, the suit was dismissed, and no order as to costs was passed.

Sri Ramakrishna Vs Sri B R Peddareddy — Partition | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 17^TH 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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REGULAR SECOND APPEAL NO.2213/2007 (P-INJ)

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BETWEEN

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Sri.Ramakrishna, S/o Sriramareddy, Aged about 41 years, Residing at Balthamari Village, Royalpad Hobli, Srinivaspur Taluk – 563 030. …Appellant

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(By Sri Y.R.Sadasiva Reddy, Senior Advocate for Sri.K.V.Mohan Kumar, Advocate)

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AND

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Sri.B.R.Peddareddy S/o late Ramaswamy, Aged about 46 years, Residing at Balthamari Village, Royalpad Hobli, Srinivaspur Taluk – 563 030. …Respondent

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(By Sri V. Vijayashekara Gowda, Advocate)

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This Regular Second Appeal is filed under Section 100 of CPC against the Judgment and Decree dated: 13.06.2007 passed in R.A.No.266/05 on the file of the

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Presiding Officer, Fast Track Court - III, Kolar, dismissed the appeal and filed against the Judgment and Decree dated 04.10.2004 passed in OS No.115/2000 on the file of the Additional Civil Judge (Jr.Dn.), Srinivasapura.

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This Regular Second Appeal coming on for Final Hearing this day, through video conference, the Court delivered the following:

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JUDGMENT

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Learned Counsel for the appellant is present. Learned Counsel for the respondent is absent.

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This appeal is of the year 2007, and regular

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appeal is of the year 2005 and the original suit is of the year 2000. Therefore, I have heard the learned Counsel for the appellant.

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This appeal is directed against the judgment and decree dated 13.06.2007 passed in R.A No.266/2005 by the Presiding Officer Fast Track Court-III, Kolar, wherein

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the said appeal came to be dismissed. Earlier, by judgment dated 4.1.2004, the suit of the plaintiff in O.S. No.115/2000 came to be decreed in part by the Additional Civil Judge (Jr. Dn.), Srinivasapur.

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In order to avoid confusion and overlapping, the parties are referred in accordance with the ranking held by them before the trial Court.

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The suit in the beginning was filed by the plaintiff Sri B.R. Pedda Reddy, son of late Ramaswamy against one Ramakrishna in respect of suit schedule property for the relief of permanent injunction. The claim of the plaintiff has been that the land in old Sy. No.141 new Sy. No.180 measuring 4 acres situate at Balthmuri village, Royalpad Hobli, Srinivasapur Taluk, Kolar District, was granted to plaintiff by the Tahsildar, Srinivasapur Taluk. The plaintiff has been in possession and enjoyment of the property and defendant has no right, title and interest over the property.

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Ramakrishna, who is the defendant, claims that

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he is son Byamma and he is the only legal heir of Byamma. The defendant contended that the suit schedule property was not granted to the plaintiff and he is not in possession. But, it was granted in favour of Byamma, wife of Ankareddigari Venkataswamy under grant No.LND-RUO RYP-CR-76/1995-96 dated 19.6.1996. Khata in respect of the suit schedule property and other revenue records stand in the name of Byamma. The defendant is in possession and enjoyment of the suit schedule property.

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Basing on the pleadings and contention of the parties, the following issues were framed by the leaned trial judge.

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“1. Whether the plaintiff proves that he is in lawful possession and enjoyment over the suit schedule property as on the date of institution of this suit ?

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2. Whether the plaintiff further proves the interference of defendant with his peaceful possession over the suit schedule property?

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3. Whether the plaintiff is entitled for the relief sought for ?

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4. To what order or decree ?

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In order to prove the case, the plaintiff has examined three witnesses i.e., P.W.1 Pedda Reddy, P.W.2 B.S. Srirama Reddy and P.W.3 Ramachandra Reddy and on behalf of defendant three witnesses were examined as D.Ws.1 to 3, they are D.W.1 Ramakrishna, D.W.2 B.R. Shankar Reddy and D.W.3 B.S. Reddappa.

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The documentary evidence as per Exs.P.1 to P.7 were marked on behalf of the plaintiff. They are Ex.P.1grant certificate, Ex.P.2-mutation register extract, Ex.P.3RTC extract, Ex.P.4-patta receipt book, Ex.P.5-tax receipt in respect of Sy. No.141, Ex.P.6-tax receipt in respect of Khata No.144 and Ex.P.7-office coy of the notice.

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On behalf of the defendant, Exs.D.1 to D.20

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were marked. They are as follows: Ex.D.1-Will, Ex.D.2Tax receipt paid by Byamma, Ex.D.3- receipt issued by taluk office to Byamma, Exs.D.4 to 6-tax receipts, Ex.D.7grant certificate, Ex.D.8-enumeration record, Ex.D.9endorsment issued by the tahsildar’s office, Ex.D.10-RTC Extract in respect of Sy. NO.141 standing in the name of Ramakrishnareddy for the period 2001-02, Ex.D.11-RTC Extract in respect of Sy. NO.141 standing in the name of Byamma for the period 1999-2000, Ex.D.12-RTC Extract in respect of Sy. NO.141 standing in the name of Byamma for the period 2001-02, Ex.D.13-mutation extract in respect of Sy. NO.141 standing in the name of Ramakrishnareddy, Ex.D.14-mutation extract in respect of Sy. NO.141 standing in the name of Byamma, Ex.D.15patta receipt book in respect of Sy. NO.141 standing in the name of Byamma, Ex.D.16-patta receipt book in respect of Sy. NO.141 standing in the name of Ramakrishnareddy, Ex.D.17-death certificate of Byamma, Ex.D.18-settlement akarbandh extract, Ex.D.19-sketch of Sy. NO.141 and new

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No.184, Ex.D.20-inteirm order dated 11.11.2003 in RUO.36/2001-04.

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The trial Judge on conclusion, partly decreed the suit of the plaintiff and granted permanent injunction. Being aggrieved by the said judgment and decree, defendant preferred regular appeal before the first appellate Court in R.A. No.266/2005, which came to be dismissed on 13.6.2007. The same is challenged by the defendant in this second appeal.

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The claim of the plaintiff is with regard to the grant of land and also that the defendant is not in possession of any land in respect of the suit schedule property.

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Learned Senior Counsel Sri Y.R. Sadashiva Reddy for Sri K.V. Mohan Kumar, appearing for the appellant-defendant would submit that the basic principles for grant to injunction would be that the plaintiff should

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establish lawful possession and identifiable boundaries and there should be certainty and precision in the location of the property, more particularly, when survey numbers having the vast extent of land belonging to the Government. The learned Senior Counsel would further submit that the persons claiming the property must establish definite boundaries. Though it is for the plaintiff to establish lawful possession and precision of the suit schedule property, all those features in respect of the land that was granted to defendant are established by the defendant. But both the Courts fell in error to apply the legal principles and on the matter regarding possession and precision reliefs.

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This Court while admitting the appeal on 26.10.2010, framed the following substantial question of law:

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“Whether the trial Court was justified in reading Ex.P.1 in isolation when Exs.D1 and D9

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are produced and marked before it and that they were not disputed ?”

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However, I frame the additional substantial question of law as under:

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“ In case of grant of the vast land, whether specifying the boundaries for ascertainability is necessary ?”

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Learned Counsel for the respondent-plaintiff is

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absent. I have perused the records by noting his absence.

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The document at Ex.P.1 is form No.1, in other words this is called the saguvali chit. It has come out from Kannada language, which would literally mean the letter of cultivation. It is granted to one Peddy reddy. Insofar as description of the land is concerned, 4 acres of land in Sy.

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No.141, being assessed at Rs.8.00, is at Srinivasapur

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Taluk, Kolar District. But there is a specific column regarding the boundaries that is not filled and that column

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is blank. No doubt, this blind exercise continued even when the land was mutated.

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Ex.P.2 is mutation register extract, wherein 4

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acres of land granted to Peddy Reddy and as per No.LND.RVO (R) 78/82-83, mutation was regranted to be accepted and it was accepted under MT No.331-4/198586.

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Insofar as Ex.P.3 is concerned, it is RTC in respect of old Sy. No.141, new Sy. No.180. Here, the name of Peddy Reddy is appearing in column No.9, that is

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meant for ownership which is also called as Kabzedaar. Ex.P.4 is patta receipt book. Exs.P.5 and 6 are tax receipts.

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Ex.P.7 is the letter addressed to B.R. Papi Reddy

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on behalf of the Manager, Canara Bank, Royalpad Branch, regarding ownership of the property.

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Insofar as defendant-Ramakrishna is concerned,

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he is examined as D.W.1 and in support of his case, B.R. Shankar Reddy and B.S. Reddappa are examined as D.W.2 and D.W.3 respectively. It is stated by the defendant that the land was originally granted to Byamma and she executed the Will. The document filed on behalf of defendant is Will which is marked as Ex.D.1 wherein the defendant claims that the land was bequeathed to him as a legatee by Byamma under the registered Will dated 6.1.2000. Ex.D.7 is the grant certificate, wherein it is stated that certain land is granted to one Byamma, who is stated to be the grantee of the land to the extent of 2 acres 30 guntas, being bounded on East by property of Shankarareddy and others, West by Land of Peddanna, North by land of Venkataswamy Reddy and South by land of late B.M. Ramalingareddy. The particulars are not clearly visible. Apart from this, the endorsement at Ex.D.9 is issued to Venkatappa stating that he had requested for

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copy of saguvali chit of the land measuring 4 acres in Sy. No.141 granted to Peddy Reddy bin Rama Swamy. However, the land granted under LND.RVO (R) 78/82-83 is darkast land and it is stated that file is not forthcoming in the office. Thus, based on the representation, the said endorsement is given to the effect that file is not available. Ex.D.10 is RTC extract of the year 2001-02 in respect of Sy.No.141, under hissa P-14 to the extent of 2 acres 30 guntas to T.S. Ramakrishna Reddy bin Srirama Reddy. Though Ex.D.11 is RTC extract of the year 1999-2000 and Ex.D.12 is RTC extract of the year 2001-02, they have been issued as comprehensive documents. The earlier procedure was very much complex. The RTCs issued now a days contain several columns i.e., survey numbers, sub number, extent, assessment, owners column etc. The reason for observing the same is Ex.D.10-RTC extract of the year 2001-02, which shows the Survey number and also the sub number as P.14. So far as the RTC of plaintiff is concerned, there is no Hissa. Hence, even in the tax

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paid receipts, Hissa is not stated. That goes to show that land is not bifurcated.

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As per the civil jurisprudence, ownership is a

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bundle of rights. Ownership consists of very object and control over it and must be clearly identifiable. This Court is not giving a finding that either Peddy Reddy was not granted land or documents were concocted and that is not before the Court. But the question is when a person comes before the Court for the relief of permanent injunction, he has to establish possession with precision. That

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possession invariably must be lawful possession which should be capable of identification. Therefore, the defendant cannot be expected to fulfill the lapses or gaps of the plaintiff. It is for the plaintiff to sink or sail on his own case. He has document showing the grant of land,

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but there are no identifiable factors such as survey sketch, bifurcation of land or boundaries. In the circumstances, I find that both the Courts fail to apply the legal principles

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and the material regarding possession and precision reliefs. The impugned judgment and orders suffer from infirmity and perversity, liable to be set aside. The trial Court was not justified in considering the evidence before it. The substantial questions of law are answered accordingly.

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In the result, the appeal is allowed. The judgment dated 13.06.2007 passed in R.A No.266/2005 by the Presiding Officer Fast Track Court-III, Kolar, and the judgment and decree dated 04.10.2004 passed in O.S. No.115/2000 by the Additional Civil Judge (Jr.Dn.), Srinivasapura, are set aside. The suit is dismissed. No order as to costs.

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In view of disposal of the above, I.A. No.1/2007 does not survive for consideration. It is accordingly disposed of.

Sd/JUDGE

Cs/-

NKSJ:

28.01.2021 RSA No.2213/2007

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ORDER ON I.A.1/2021

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I.A.1/2021 is filed under Section 151 of CPC

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praying to recall the order dated 17.12.2020 and seeks opportunity to address arguments on behalf of respondent.

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The Judgment was dictated on 17.12.2020 wherein

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the appeal was allowed and Judgment and decree passed by the trial court confirmed by the appellate court was set aside. As the Judgment is typed and not signed I deem it just and proper in the ends of principles of natural justice to grant an opportunity to learned counsel for respondent to submit his

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arguments.

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Sri.Vijay Shekara Gowda, learned counsel for

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respondent submits that trial court and appellate court had granted injunction to the plaintiff after evaluating the evidence before it morefully the land existing within the boundaries. It is in the light of the application being filed it is necessary to mention the schedule property claimed by the plaintiff that is decreed is as under:

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SCHEDULE

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“Property bearing old S.No.141, new Sy.No.180 measuring 4 acres dry land, land revenue assessed at Rs.8/- bounded on:

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East by: Karabu Kaluve

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West by: Sarkari bearing S.No.141

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North by: Property of Madhava Reddy

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South by: Property of Venugopalareddy, Ramalinga Reddy and Veerappa Reddy

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Situated at Balthamari village Royalpad Hobli, Srinivasapur Taluk.

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It is to be noted that the land in Sy.No.180

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measuring 4 acres was stated to have been granted to plaintiff and the land is dry in nature. It is seen that according to plaintiff the land is bounded on East by: Karabu Kaluve. Here it is necessary to mention that Karabu’ is urdu word which means bad’. In terms of agriculture i.e., which cannot be cultivable it can include a canal, road, rocky area and those activities which cannot come under the realm of agriculture. However Karab land would be spread over a corner that is why in the relevant column wherein extent of land is prescribed particularly in Col.No.3 of RTC extract and if there exists Karab land it is separately shown which means uncultivable land and karab land in terms of ownership is concerned if karab land mentioned in extent column it belongs to owner of the main land. In this connection as I told 4 acres of land is bounded by Karab. The main document relied upon

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by the plaintiff is the grant certificate or saguvali chit which is marked as Ex.P-1. This saguvali chit is not disputed and boundaries are not mentioned. Infact this aspect was discussed by me earlier when I dictated the Judgment. Saguvali chit has all the strength of title deed. It is through saguvali chit a person claims ownership, but only difference is it is granted by Government whereas private sellers sell it to purchasers. In page 2 there are relevant column mentioned for boundaries and extent mentioned is 4 acres of land grant. When there is relevant grant it is not the question of not accepting grant of 4 acres but identification of land is equally important on the procedural aspect like title. Here 4 acres at particular time is granted to the plaintiff and revenue records is in his name but the question is boundaries are not mentioned apart from that in the plaint schedule stated above schedule is described as under:

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SCHEDULE

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“Property bearing old S.No.141, new Sy.No.180 measuring 4 acres dry land, land revenue assessed at Rs.8/- bounded on:

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East by: Karabu Kaluve

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West by: Sarkari bearing S.No.141

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North by: Property of Madhava Reddy

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South by: Property of Venugopalareddy, Ramalinga Reddy and Veerappa Reddy

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Situated at Balthamari village Royalpad Hobli, Srinivasapur Taluk.

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Sy.No.141, new Sy.No.180 measuring 4 acres

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dry land boundaries are stated above. But incidentally the plaintiff does not say that on the eastern side land of Byamma is also there. Here in response to the pleadings of the plaintiff the written statement is filed wherein the defendant denies the claim of the plaintiff and contends that he is the grandson of one Byamma

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who was granted 2 acres 30 guntas of land. The defendant has not mentioned extent of land granted to him in the written statement. Ex.D-7 is the saguvali chit on which he relies. On reading of order 14 Rule 1 in relevant case documents forms the part of pleading and in the document filed here the grantee of the land is Byamma extent is 2 acres 30 guntas of land assessed at Rs.7/- karab nil, nature of land-dry bounded on the East by: B.N.Venugopalareddy, West by karab and Pedda Reddy, North by: Madhava Reddy South by:Ramalingareddy and Era Reddy which indicate land or schedule property helps for identification of the land of the defendant.

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On the other hand the plaintiff does not tell existence and more over calls it as karab land which goes to show that it is at his disposal along with the main land regard being had to the fact that karab land

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and land of Byamma is not shown. This does not appear to be proper approach claiming injunction order against the neighbour who holds the land along with Karab. Her name is not shown on the particular side and injunction order is claimed.

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The trial court and appellate court utterly failed to understand the basic principles regarding location and identification and legal principles relating to it. It is a question of grant of 4 acres of land as claimed by the plaintiff and 2 acres 30 guntas as claimed by the defendant.

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Thus, for the discussion made above I do not find they require change in the form of alteration, modification or cancellation of the Judgment dictated on 17.12.2020.

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Accordingly I.A.1/2021 is disposed of.

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Sd/JUDGE

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SBN

Sri Ramakrishna v. Sri B R Peddareddy

Case brief

What is this about?

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Sri Ramakrishna v. Sri B R Peddareddy

Case brief

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