Dismissed

Munichinnappa v. a K Thamy @ Taminatha

Karnataka HC1 Feb 2023RFA/795/2007

Case brief

AI extract

What is this about?

The First Appellate Court dismissed an appeal filed against the dismissal of a suit for permanent injunction regarding alleged encroachment. The court held the appeal lacked merit as the appellant failed to prove the exact extent of his property and the respondent's possession was actually less than what he purchased.

What did the court decide?

The appeal was dismissed and the decree of the Trial Court was affirmed.

Munichinnappa Vs a K Thamy @ Taminatha — Property and Title | Karnataka HC (2023)

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RFA No. 795 of 2007

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1^ST DAY OF FEBRUARY, 2023 BEFORE

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THE HON’BLE MR JUSTICE N S SANJAY GOWDA

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REGULAR FIRST APPEAL NO.795 OF 2007 (INJ)

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BETWEEN:

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MUNICHINNAPPA S/O LATE LAKSHMAIAH @ CHINNAPPA AGED ABOUT 50 YEARS R/AT KAVAL BYRASANDRA R.T.NAGAR POST BANGALORE – 560 032

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…APPELLANT (BY SRI. K. SHIVAJI RAO., ADVOCATE)

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AND:

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Digitally signed by PANKAJA S Location: HIGH COURT OF KARNATAKA

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A.K.THAMY @ TAMINATHA S/O AYYAPPANA AGED ABOUT 58 YEARS R/AT NO.16/2, I CROSS KAVAL BYRASANDRA R.T.NAGAR POST BANGALORE- 560 002.

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(BY SRI. B.N.SHETTY., ADVOCATE)

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…RESPONDENT

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THIS RFA IS FILED U/S 96 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 06.01.2007 PASSED IN OS.NO.1915/2002 ON THE FILE OF THE XVIII ADDL.CITY CIVIL JUDGE, BANGALORE CITY, CCH.NO.32, DISMISSING THE SUIT FOR DECLARATION AND PERMANENT INJUNCITON.

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

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RFA No. 795 of 2007

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JUDGMENT

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Sri.Munichinnappa instituted the suit seeking

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mandatory injunction against Sri.A.K.Thamy @ Taminatha for demolition of the encroached area measuring East to West 30 ft., and North to South 4 ft., on the southern side of their property bearing erstwhile Sy.No.71/5A, which totally measured 160 ft., East to West and 40 ft., North to South.

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Sri.Munichinnappa contended that he was the owner

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of the suit property by virtue of a registered partition deed dated 26.04.1971, in which, he was allotted 33 guntas.

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He stated that after the formation of a 18 ft., width road, in the rest of the area, several sites were formed and he had sold some of the sites. He ultimately stated that he had retained a portion measuring 160 ft., East to West and 40 ft., North to South and claimed that he was exercising his rights of ownership over the said property.

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Sri.Munichinnappa also contended that

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Sri.A.K.Thamy had purchased a site from his elder brother

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RFA No. 795 of 2007

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Sri.Ramaiah and the said property was situated towards the southern side of the suit property. He stated that he had noticed that Sri.A.K.Thamy had encroached a portion of the land measuring 30 ft., x 4 ft., and had erected a compound wall as well as a sejjah and despite his protest Sri.A.K.Thamy has continued his construction work. He submitted that despite he lodging of a complaint, he could not secure any relief and therefore, he was constrained to file a suit.

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Sri.A.K.Thamy entered appearance and contested the

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suit by filing the written statement.

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Sri.A.K.Thamy contended that he had purchased a site bearing No.4, measuring 31 ft., x 39 ft., from his vendor Smt.K.Vanajakshi and had put up a compound wall in respect of this property and he had not encroached upon any portion of Sri.Munichinnappa's land. He thus, basically stated that he had erected a compound in respect of his property measuring 31 ft., x 39 ft., and had not

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RFA No. 795 of 2007

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encroached upon any portion of Sri.Munichinnappa's property.

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On consideration of these issues, the Trial Court framed four issues.

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Sri.Munichinnappa in support of his case examined himself as PW1 and another witness called Sri.Devaraj as PW2 and got seven documents admitted in the evidence which had marked as Exhibits. Sri.A.K.Thamy examined himself as DW1, but did not produce any document.

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In the suit, a Commissioner was also appointed and the mahazar, rough sketch which was prepared by the Commissioner along with the Commissioner's report were admitted in the evidence and marked as Exs.C1 to C4.

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The Trial Court on consideration of the said evidence proceeded to dismiss the suit. It held that Sri.Munichinnappa did not give a clear picture of the exact area sold by him and the area that he had actually retained. It also noticed that he has not even stated the

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RFA No. 795 of 2007

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dimension of his residential house. The Trial Court also noticed that though it was stated that he had formed 18 ft., width road, but as per the Commissioner's report, the width was only 12 ft., 2" and on the basis of this evidence, a finding could not be given that there was an encroachment.

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The Trial Court also noticed that the Commissioner's report indicated that there was no encroachment by Sri.A.K.Thamy, since it was noticed that the width of the property in the possession of Sri.A.K.Thamy was 30 ft., x 10 1/2" East to West and 39 ft., North to South. The Trial Court therefore came to the conclusion that Sri.A.K.Thamy had not increased the extent of the property that he had acquired by encroaching upon Sri.Munichinnappa's property and it accordingly dismissed the suit.

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Learned counsel for the appellant Sri.K.Shivaji Rao strenuously contended that the decree of the Trial Court cannot be sustained. According to him, the Trial Court had

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RFA No. 795 of 2007

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accepted the report of the Commissioner which indicated that there was an encroachment of 2 ft., x 7" of Sri.Munichinnappa's property and therefore, there ought to have been a property atleast to this extent.

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Learned counsel for the respondent on the other hand supported the judgment of the Trial Court and contended that when the Commissioner's report clearly stated that Sri.A.K.Thamy was in possession 30 ft.,-10½" x 39 ft., as against the property that he had purchased ie., 31 ft., x 39 ft., it was clear that there was no encroachment at all and on the other hand he was in possession of a lesser extent than what he had purchased.

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In the light of the arguments advanced, the point that arises for consideration in this appeal is that;

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"Whether Sri.Munichinnappa had established that Sri.A.K.Thamy had encroached upon any extent of his property?"

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As stated above, Sri.Munichinnappa claimed that he

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was allotted 33 guntas of land and he also admitted that

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RFA No. 795 of 2007

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he had formed sites and sold some of the sites apart from

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forming a road of 18 ft., width.

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Admittedly, Sri.Munichinnappa did not produce any lay-out plan to indicate the amount of sites that he had been formed and the amount of land that had been retained by him. In other words, there was absolutely no evidence indicating the exact extent of the land which was in possession of Sri.Munichinnappa. Unless this foundational fact had been established, the question of deciding whether any portion of his land has been encroached upon would not arise.

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Admittedly, the Court Commissioner was appointed and the Court Commissioner had noticed that Sri.A.K.Thamy was in possession of the property measuring 30 ft., 10½ " x 39 ft., Admittedly, the site purchased by Sri.A.K.Thamy was a site measuring 31 ft., x 39 ft.,. Thus, as a matter of fact, the East to West width was actually lesser by 1½" as compared to the sale deed. It is therefore, clear from this report that

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RFA No. 795 of 2007

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Sri.A.K.Thamy had not enlarged his property and on the other hand, it was lesser than the property that he had purchased. Thus, the assertion that there had been encroachment by him cannot be acceptable.

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The argument of the learned counsel for the appellant that as per the Commissioner's report, there was an encroachment of 2 ft., x 7" and this report having been accepted by the Trial Court, there should have been a decree over this extent, though at first blush is attractive, but, on a closer scrutiny cannot be sustained.

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As stated above, the extent of property retained by Sri.Munichinnappa had not been established at all. The Commissioner, merely went by the description of the property in the schedule and assumed that he had a property with a width of 40 ft., which, on physical inspection was found to be lesser than the one claimed by him and on this basis, he had concluded that there is an encroachment.

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RFA No. 795 of 2007

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It is to be stated here that the Trial Court did not actually accept the Commissioner's report. The Trial Court hypothetically stated that assuming that the Commissioner's report was correct and was accepted, it only indicated an encroachment of 2 ft., 7".

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However, in the very succeeding paragraph, the Trial Court had noticed that the property in the possession of Sri.A.K.Thamy was lesser than the extent that he had purchased and therefore, there was no question of encroachment by Sri.A.K.Thamy.

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In my view, the reasoning of the Trial Court on the basis of the evidence adduced, cannot be found fault at all.

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There is no merit in this appeal and the appeal is accordingly dismissed .

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List No.: 1 Sl No.: 30

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Sd/JUDGE

Munichinnappa v. a K Thamy @ Taminatha

Case brief

What is this about?

What did the court decide?

Munichinnappa v. a K Thamy @ Taminatha

Case brief

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