Allowed

Hanumantharayappa v. Y.M. Krishnamurthy

Karnataka HC30 Nov 2021RFA/139/2016

Case brief

AI extract

What is this about?

In this appeal against a dismissal, the High Court of Karnataka held that evidence established an open space as a common passage between properties. While a mandatory injunction against revenue authorities was barred, the trial court's dismissal was set aside, and a permanent injunction was granted to prevent encroachment restricting ingress and egress.

What did the court decide?

Permanent injunction granted restraining defendant No.1 and his agents from interfering with the use of the suit schedule `B' property as a common passage.

Hanumantharayappa Vs Y.M. Krishnamurthy — Contract and Commercial Disputes | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 30^TH DAY OF NOVEMBER 2021

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BEFORE

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THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

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REGULAR FIRST APPEAL No.139 OF 2016

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BETWEEN:

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Hanumantharayappa, Aged about 53 years, S/o Late Siddappa, R/a, 1^st Main Road, 11^th Cross, Ragavendranagar, Andarahalli, Vishwaneedam Post, Bangalore-560 091. .. Appellant

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( By Sri Vijaya Kumar K., Advocate )

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AND:

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Y.M.Krishnamurthy, S/o. Late Munishamappa, Aged about 65 years, Residing at No.513, Behind Govt.Hospital, Muneshwaranagara, Hegganahalli Village, Vishwaneedam Post, Bangalore-560 091.

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The Joint Commissioner, BBMP, Bagalagunte, Dasarahalli Division, Bangalore-560 050. .. Respondents

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RFA.No.139/2016

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( By Sri S.Venkateshwara Babu, Advocate For Sri Shivarama A, Advocate For Shivarama A. Associates for R-1 And Sri Ashwin S. Halady, Advocate For R-2 )

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This Appeal is filed under Section 96 of Code of Civil Procedure, praying to call for the records in O.s.No.1536/2013, on the file of LII Addl.City Civil and Sessions Judge, CCH No.53, Bangalore City and set aside the judgment and decree dated 11.02.2015, passed in O.S.No.1536/2013, by the LII Addl.City Civil and Sessions Judge, CCH No.53,, by allowing this appeal and grant such other relief or reliefs as this Hon'ble Court deems it fit to grant in the facts and circumstances of this case in the interest of justice.

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This Appeal having been heard through Physical Hearing/Video Conferencing Hearing and reserved on 10.11.2021, coming on for pronouncement of Judgment this day, the Court delivered the following:

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JUDGMENT

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This is a plaintiff's appeal. The present appellant as a plaintiff had instituted a suit against the present respondents arraying them as defendants in O.S.No.1536/2013, in the Court of learned LII Addl.City Civil & Sessions Judge, Bengaluru City, (hereinafter for brevity referred to as trial Court’), seeking the relief of mandatory injunction, directing the defendant No.2 not to transfer katha and other revenue records in favour of defendant No.1 regarding Rajakaluve i.e., B' schedule property

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and for permanent injunction against the defendant No.1 restraining him, his agents, servants or anybody from stopping

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the plaintiff and his family members to use the Rajakaluve i.e.,

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`B' schedule property.

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The summary of the case of the plaintiff in the trial Court was that he is the absolute owner and in lawful possession and enjoyment of property bearing its Katha No.86, Property No.338/328/85, measuring 40' x 40', with the building thereupon and situated at Hegganahalli Village, Vishwaneedam Post, Bengaluru, described in schedule A' of the plaint. He has been in peaceful possession and enjoyment of the said property. The defendant No.1 is the owner of the adjacent property. However, in-between the properties of plaintiff and defendant No.1, there is a Rajakaluve, more fully described in B' schedule property, which has been closed by the stone slabs, as such, Rajakaluve is not to be seen. The defendant No.1 is trying to encroach upon the Rajakaluve i.e., `B' schedule property and trying to include it in his property and to get the katha to that extent. The plaintiff has further stated that he has filed an application before the 2^nd defendant, but, there is no action towards the same. The defendant No.1 has a local political support and also manpower behind him, as such, at any moment, he may encroach the suit schedule

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B' property. If the same thing is done by the defendant No.1 and get the katha of Rajakaluve made in his favour, the plaintiff would be put to greater hardship, inconvenience and loss since the said Rajakaluve, which is the B' schedule property, is being used as a passage to both the properties.

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The plaintiff has further stated that he has invested huge amount of money for the purchase of suit schedule A' property and to put up a construction thereupon and in case if the defendant No.1 encroaches B' schedule property, then the plaintiff would have no other alternative to enter his house. With this he has prayed for the relief of mandatory injunction and permanent injunction.

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In response to the summons served upon them, the defendants appeared through their counsel, but, it was only the defendant No.1 who has filed his written statement. In his written statement, the defendant No.1 denied the averments made by the plaintiff in his plaint. He contended that the present suit of the plaintiff amounts to interference in the dischargal of the work by defendant No.2. He denied the alleged existence of Rajakaluve between the property of the plaintiff

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and his property. He also denied that in the absence of any documentary proof, he would not admit that the plaintiff is the owner of suit schedule `A' property. However, he contended that he is the owner and in peaceful possession and enjoyment of property bearing old H.L.No.330, Katha No.87/330/325 and the property measures 50' x 50'. He stated that he inherited the said property from his ancestors. He has the municipal records, wherein his name has been entered and he is paying the taxes regularly. He further stated that he has put up a construction on his property to an extent of 50' x 33' and left out a portion measuring 50' x 17' as an open space, however, the City Municipal Council, Dasarahalli, within whose jurisdiction, the property was then coming, has issued a katha by mentioning the measurement of the site only as 40' x 47'. Therefore, he has made an application before the concerned authorities to rectify the said aspect. He has also stated that, subsequently the area where the property is situated since has fallen within the limits of Bruhat Bengaluru Mahanagara Palike (BBMP), he has requested the 2^nd defendant-authorities also to measure his property and assess the tax for an area measuring 50' x 50'. He also contended that the plaintiff has left

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10' open space on the Western side of his property, as such, he

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is claiming his right over the 10' on the Eastern side of his property, when in fact, the said property belongs to defendant No.1. Reiterating that there exists no Rajakaluve, though contended by the plaintiff, the defendant No.1 prays to dismiss the suit.

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Based on the pleadings of the parties, the trial Court

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framed the following issues :

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1. Whether the plaintiff proves his lawful possession over the suit schedule property?

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2. Does he prove the alleged obstruction of defendant No.1?

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3. Whether defendants prove that plaint is liable to be rejected under Order 7, Rule 11(d) of CPC for want of cause of action?

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

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5. What order and decree?

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In order to prove his case, the plaintiff got himself examined as PW-1 and also got examined two more witnesses i.e., one Sri R.Rangaswamy as PW-2 and Sri Ramaiah as PW-3 and got marked documents from Exs.P-1 to P-10 . The defendant No.1 got himself examined as DW-1 and got marked

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documents from Exs.D-1 to D-11. As already observe above, the defendant No.2 has neither filed written statement nor examined any witnesses from its side.

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After recording the evidence and hearing both side, the trial Court while answering issues Nos.1 to 4 in the negative, proceeded to pass the impugned judgment and decree dated 11.02.2015 and dismissed the suit of the plaintiff. Aggrieved by the same, the plaintiff has preferred the present appeal.

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In response to the notice served upon them, the respondents are being appearing through their counsel.

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Records from the trial Court are called for and the same are placed before the Court.

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For the sake of convenience, the parties would be referred to as per their rank before the trial Court.

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Heard the arguments of learned counsel from both side and perused the materials placed before this Court, including the impugned judgment and the trial Court record.

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The points that arise for my consideration are,

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1. Whether the plaintiff has proved that suit schedule `B' property is for the

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common usage, including the plaintiff and his family members?

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2. Whether the plaintiff proves the interference by defendant No.1 in the alleged use of suit schedule `B' property by the plaintiff and his family members?

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

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4. Whether the judgment and decree under appeal deserves any interference at the hands of this Court?

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The plaintiff who got himself examined as PW-1 has reiterated the summary of the plaint even in his examinationin-chief filed in the form of affidavit evidence. To show that his

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father Sri Siddappa was the purchaser of suit schedule `A' property, he got marked the Sale Deed dated 03.06.1976 at Ex.P-1. Stating that he had addressed a complaint to the 2^nd defendant about the alleged encroachment of the alleged Rajakaluve by the defendant No.1, he had produced a copy of his letter to the Joint commissioner of the 2^nd defendant dated 03.12.2012 and got it marked at Ex.P-2. In order to show that after the demise of his father, he is the katha holder of suit

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schedule A' property, he has produced a Tax Assessment Extract at Ex.P-3. Contending that he has been paying the tax for suit schedule A' property, he has produced the tax receipts from Exs.P-6 to P-10.

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Even though the defendant No.1 in his written statement has taken a contention that the plaintiff is not the owner of suit schedule A' property, however, in the crossexamination of PW-1, the said contention was not pressed into service by the defendant No.1. Thus, the said evidence of PW-1 when read with the documents mentioned above, would go to show that the plaintiff has proved that he is in occupation and use of suit schedule A' property claiming his ownership thereupon. However, none of those documents i.e., Exs.P1,P-2, P-3, P-6 to P-10 would mention about the alleged existence of a Rajakaluve covered with stone slabs on the Eastern side of the plaintiff's suit schedule `A' property. On the other hand, the Eastern boundary in Ex.P-1 mentions that the same is bounded with the property of Muniswamappa, who undisputedly is the father of defendant No.1. However, to show that there exists an open space between the properties of

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plaintiff and defendant No.1, the plaintiff has produced two photographs at Exs.P-4 and P-5 with their negatives.

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The plaintiff got examined one Sri R. Rangaswami and one Sri Ramaiah as PW-2 and PW-3 respectively. Both of whom in their examination-in-chief filed in the form of affidavit evidence have uniformly stated that the plaintiff and defendant No.1 have adjoining properties and in-between their properties, there flows a Rajakaluve, which has now been closed with stone slabs and that the defendant No.1 is attempting to interfere in the peaceful use of said Rajakaluve even by the plaintiff and his family members. Thus, both of them specifically and categorically stated that there exists a Rajakaluve, which according to them, is the suit schedule `B' property.

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Even in their cross-examination from the defendants' side, apart from denying the suggestions made to them by the defence side suggesting that there exists no Rajakaluve, both the witnesses have given few more details about the Rajakaluve. PW-2 has categorically stated that he has seen the Map of the village showing Rajakaluve. Both PW-2 and PW-3 have stated that adjacent to the property of defendant No.1,

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there was a Lake earlier (a long running Lake carrying rain water drain). To the said Lake, the Rajakaluve was connected which was feeding the rain water to the said Lake. PW-2 has also stated that the water was flowing in Rajakaluve for a distance of about one and half kilometer. Similarly, PW-3 also has stated that the said Rajakaluve was of a width of 20' and was running up to the lake.

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Thus, both PW-2 and PW-3, who claims to be the residents of same village Hegganahalli, have categorically and specifically stated about the existence of Rajakaluve between the properties of the plaintiff and defendant No.1 and said Rajakaluve being running up to the Lake. All the plaintiff witnesses have also stated that the said Lake has now been dried up and after filling the soil, a Government School building has come up in the said area. The defendant No.1 though has expressed his ignorance about the existence of Lake in that area earlier, but, admitted that, behind his property, there is a Government School.

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The defendant No.1, who got himself examined as

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DW-1 also has reiterated the summary of his pleadings in the written statement in his examination-in-chief filed in the form of

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affidavit evidence. Apart from denying that there exists a Rajakaluve between the properties of the plaintiff and himself, he specifically stated that the measurement of his property is 50' x 50', however, he has left an open space in front of his property on the Western side measuring about 50' x 17'. He has also stated that the City Municipal Council, Dasarahalli, within whose jurisdiction earlier the said property was coming under, has wrongly mentioned the total measurement of his property as 40' x 47'. As such, he has made an application to the BBMP, under whose jurisdiction the property falls, for reassessment of tax after showing the measurement of the property.

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In his support, he produced a copy of Katha at Ex.D-1, a certified copy of a document said to be a Compromise Petition in O.S.No.290/1992, to show that in the compromise, the property where he is residing has fallen to his share, at Ex.D-2 and also a copy of his explanation shown to have been given to the Assistant Revenue Officer, Hegganahalli Sub-Division, BBMP, Bengaluru, with respect to the complaint filed by the plaintiff, at Ex.D-3. He has also produced the Tax paid receipts from Exs.D-4 to D-10. However, none of these documents from

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Exs.D-1 to D-10 would show the exact measurement of the property of defendant No.1 with its boundaries along with its property number.

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It is in the light of the above evidence of the parties, it is the argument of learned counsel for the appellant/plaintiff that the evidence led from the plaintiff's side clearly demonstrate the existence of some open space between the properties of plaintiff and defendant No.1, which was for the common use of both parties. The evidence of PW-2 and PW-3 also go to show about the existence of open space for the common use between the properties of plaintiff and defendant No.1. However, the trial Court itself assuming that the plaintiff has not produced any documents to prove the existence of Rajakaluve, has erroneously dismissed the suit of the plaintiff.

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Per contra, learned counsel for respondent No.1/defendant No.1 in his brief argument submitted that the case of defendant No.1 in the trial Court is not that suit schedule `B' property is the property of defendant No.1, but, it is the case of defendant No.1 that there is no structure as a Rajakaluve between the properties of the plaintiff and

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defendant No.1. However, he would not deny the existence of

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some open space between those two properties.

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In order to show that there exists suit schedule B' property as a Rajakaluve, the plaintiff has not produced any documents. Primarily, it was for the 2<sup>nd</sup> respondent to file its written statement and to take a stand regarding the existence of suit schedule B' property, but, for the reasons best known to it, it neither filed its written statement nor contested the matter. As such, the learned counsel for respondent No.2 herein also could not address his detailed arguments, except saying that appeal does not deserve to be allowed.

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PW-1 in his evidence has specifically stated that he is not claiming the ownership over the suit schedule `B' property, but, his only intention is that the Rajakaluve has to be maintained as it is and it should not be encroached by anyone. It is his contention that defendant No.1 by making an application to defendant No.2, is trying to encroach Rajakaluve portion as his property and thus attempting to get entered the larger measurement in the Corporation documents as a measurement of his property. However, admittedly the plaintiff has not produced any documents to show the existence of suit

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schedule `B' property. But, mere non-production of the documents itself would not be a criteria to hold that there exists no space between the properties of plaintiff and defendant No.1 though that property is described as 'Rajakaluve' by the plaintiff in his plaint The photographs produced by the plaintiff at Exs.P-4 and P-5 shows the presence of some open space between the properties of plaintiff and defendant No.1, which has not been denied by the defendants.

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Secondly, the defendant No.1 though has admitted that there is an open space between the property of the plaintiff and his property i.e., on the Eastern side of the plaintiff's property, which is also the Western side of the defendant No.1 property, but has not admitted the same as Rajakaluve. On the other hand, defendant No.1 himself has suggested to PW-1 in his cross-examination that BBMP has surveyed and submitted a report stating that there exists a Rajakaluve. Surprisingly, PW-1 expressed his ignorance about the same.

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Thirdly, PW-1 in his cross-examination has stated that he has got two entrances to his property, one from the East and another from the North. He has also stated that Rajakaluve lies on the Eastern part of his house. The said statement of PW-1

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has not been further denied by the defendant No.1. The statement of PW-1 that he has got two entrances, including the one on the Eastern side, would clearly go to show that there is some open space, to which, the plaintiff has put a door and using it as an entrance, which means, the plaintiff and his family members are using the open space as one of the ingress and egress to their property which is the suit schedule `A' property. This conclusion which can be drawn also gains support from the evidence of PW-2 and PW-3, since both of them have uniformly stated in their evidence that, after the closure of Rajakaluve, the Panchayath members had given permission to the family of plaintiff and defendant No.1 to use that Rajakaluve equally as passage to their residential premises. Therefore, even though there is an open space, irrespective of having a dry Rajakaluve beneath it, but, their evidence clearly shows that, upon that open space, both the plaintiff and defendant No.1 had equal rights to use it as a passage to approach their respective properties. This aspect, the trial Court did not appreciate properly.

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Fourthly, the defendant No.1 contents that the total measurement of his property is not 40' x 47', but, it is 50' x 50'

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and that City Municipal Council, Dasarahalli, had wrongly

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mentioned the measurement of his property as 40' x 47', which made him to give an application to BBMP to take measurement afresh and to issue a fresh Katha Certificate. Admittedly, the said attempt has been opposed by the plaintiff by filing an objection complaint with defendant No.2 as per Ex.P-2. Had really the measurement of property of the defendant No.1 was 50' x 50' and extending up to the property of the plaintiff, then, nothing had prevented the defendant No.1 from producing the documents under which his ancestors are said to have acquired the property. Had he produced the said document, it would have clearly given the measurement and boundaries showing the total extent of his property. As such, the defendant No.1 being the custodian of the said document, which could have acted as a material evidence in the adjudication of the suit, has withheld the said document from its production.

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Fifthly, though he claims to have constructed a building in his property to an extent of 50' x 33', but, he has not produced the construction plan, license or other related documents,

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showing the boundaries of the constructed portion of the property.

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Sixthly, nowhere the defendant No.1 has stated as to why he left-out some space, which according to him, a space measuring 50' x 17' on the Western side of his property without any construction or without any actual use.

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Seventhly, the alleged Compromise Petition filed in O.S.No.290/1992, which is at Ex.D-2, shows that the compromise has been entered into between defendant No.1 and other parties to the said suit, to which, admittedly the plaintiff was not a party. Therefore, the terms of the compromise or the alleged description of the property mentioned in the said compromise petition at Ex.D-2 would not bind the plaintiff.

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An attempt was made by the defendant No.1 to demonstrate the absence of Rajakaluve by producing a copy of the Village Map at Ex.D-11. However, a perusal of the said Village Map would go to show that it is not a map of Heggenahalli village alone, but it is a map of several Taluks, including Bengaluru South Taluk, Bengaluru North Taluk, Anekal Taluk, etc., Thus, it covers hundreds of villages within it and no where it mentions the existence of Rajakaluve, though the

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areas covered under the said document might have several Rajakaluves within it. Further, when the defendant No.1 could not even identify Hegganahalli village in Ex.D-11 and mark it, the mere production of Ex.D-11 stating that it does not show the existence of suit schedule "B' property, is not acceptable, since such an inference cannot be drawn for the reason given above.

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All these aspects would only lead to an inference that there exists an open space between the property of the plaintiff and defendant No.1 i.e., on the Eastern side of the suit schedule 'A' property, which is on the Western side of the property of defendant No.1, though it is called by name 'Rajakaluve'.

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However, the trial Court for the reason that the plaintiff could not able to produce any written documents evidencing the existence of a structure with a specific name `Rajakaluve' and without giving any consideration to the evidence of PW-2, PW-3, as well to Exs.P-4 and P-5, but giving more importance to Ex.D-11, which was not called for, has held that there exists no Rajakaluve. It is also to be noticed that the issue before the trial Court was not as to decide whether Rajakaluve is in existence? But, the issue was whether the plaintiff proves his

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lawful possession over the suit schedule property. If at all the trial Court was required to deal with the Rajakaluve, at the maximum, it should have stated whether the plaintiff has proved the existence of Rajakaluve or not, but, it was not required to give a finding just like a declaration about the existence of Rajakaluve.

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As such, the said finding of the trial Court deserves to be set aside, at the same time, it also has to be held that the plaintiff has proved that the suit schedule "B" property is in existence though not called with the specific name `Rajakaluve' or in the form of Rajakaluve, but, in the form of an open space which is being used as a common passage both by the plaintiff and the defendant No.1.

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The plaintiff has specifically stated in his complaint, as well in his evidence that the defendant No.1 is trying to encroach the suit schedule "B" property and trying to get the katha to that extent. He has also produced a copy of his complaint to defendant No.2, which is at Ex.P-2. Even, in the said complaint also he has stated that the said open space which he has called as Rajakaluve is not the property of

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defendant No.1 and that, to his notice and knowledge, the defendant No.1 is trying to grab that property and to enlarge the measurement of his property in the Municipal records. The defendants also have not denied that such an application for re-measurement of the property and for re-fixation of the tax has been submitted by the defendant No.1 to defendant No.2. Therefore, it is established that, if the defendant No.2 records the enlarged measurement than for which the defendant No.1 is actually entitled to, in the katha of defendant No1., then, it would obviously deprive and obstruct the plaintiff of his right to have ingress and egress to his property from its Eastern side. As such, the plaintiff has proved the interference from the defendant No. 1 and balance of convenience in his favour. Therefore, even though the plaintiff is not entitled for the relief of mandatory injunction since transfer of katha and alteration of revenue records is within the domain of the concerned authorities, including the BBMP, which authorities are required to deal with the request in that regard in accordance with law and the Court cannot anticipate their action and pass any mandatory injunction against them, but, the plaintiff is entitled for the relief of permanent injunction. Since the trial Court has

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dismissed the suit of the plaintiff and which finding is now proves to be incorrect, the same warrants interference at the hands of this Court.

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Accordingly, I proceed to pass the following order:

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ORDER

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The Regular First Appeal is allowed. The judgment and decree passed by the learned LII Addl.City Civil & Sessions Judge (CCH-53), Bengaluru City, in O.S.No.1536/2013, dated 11.02.2015, is set aside. The suit of the plaintiff in O.S.No.1536/2013 is decreed in part. The defendant No.1, his agents, servants or anybody claiming under defendant No.1 are permanently restrained from interfering in the use of suit schedule `B' property as a common passage for the common usage, including, the plaintiff and his family members and anybody claiming under him.

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Draw the decree accordingly.

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Registry to transmit a copy of this judgment along with records to the concerned trial Court without delay.

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Sd/-

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JUDGE

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bk/

Hanumantharayappa v. Y.M. Krishnamurthy

Case brief

What is this about?

What did the court decide?

Hanumantharayappa v. Y.M. Krishnamurthy

Case brief

What is this about?

What did the court decide?

What the court decided

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