Dismissed

Sri Narasaraju v. Sri B Hanumaiah

Karnataka HC18 Aug 2023RSA/1536/2007

Case brief

AI extract

What is this about?

In a Regular Second Appeal under Section 100 CPC, the Karnataka High Court dismissed the appeal. The court upheld the first appellate Court's decision reversing the trial court, ruling that the Atlas map evidence clearly distinguished the plaintiff's land from the defendants', thus negating the claim of encroachment.

What did the court decide?

The second appeal preferred by the appellants/defendants is dismissed, confirming the decree of the first appellate Court in favor of the plaintiff.

Sri Narasaraju Vs Sri B Hanumaiah — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:29449 RSA No. 1536 of 2007

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR REGULAR SECOND APPEAL NO.1536 OF 2007 (DEC/INJ)

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BETWEEN:

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SRI NARASARAJU S/O. LATE NARASIMHAIAH AGED ABOUT 53 YEARS

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SRI B N NAGARAJA S/O. LATE NARASIMHAIAH AGED ABOUT 45 YEARS

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BOTH ARE R/AT BANAVATHI VILLAGE SASALU HOBLI DODDABALLAPURA TALUK BENGALURU RURAL DISTRICT - 562 106

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… APPELLANTS

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(BY SRI.V F.KUMBAR.,ADVOCATE)

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AND:

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Digitally signed SRI B HANUMAIAH by GAVRIBIDANUR SINCE DEAD BY HIS LRS., SUBRAMANYA GUPTA SREENATH 1 (a) SMT.N.CHOWDAMMA

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1 (a) SMT.N.CHOWDAMMA W/O.LATE B.HANUMAIAH AGED ABOUT 62 YEARS

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Location: HIGH COURT OF KARNATAKA

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1 (b) SRI B.H.VIJAYAKUMAR S/O LATE B.HANUMAIAH AGED ABOUT 40 YEARS

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1 (c) SRI B.H.VENUGOPAL S/O.LATE B.HANUMAIAH AGED ABOUT 30 YEARS

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NC: 2023:KHC:29449 RSA No. 1536 of 2007

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ALL ARE RESIDING AT NO.608 16^TH MAIN ROAD MANJUNATHANAGAR RAJAJINAGAR BENGALURU - 10

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… RESPONDENTS

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{BY SRI.K.P.BHUVAN.,ADVOCATE FOR R-1(a) to R-1(c)}

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THIS REGULAR SECOND APPEAL IS FILED U/S 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 29.03.2007 PASSED IN RA.NO.151/2002 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) DODDABALLAPUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 31.07.2002 PASSED IN OS.NO.152/95 ON THE FILE OF THE PRL.CIVIL JUDGE (JR.DN.) & JMFC, DODDABALLAPUR, DISMISSING THE SUIT FOR PERMANENT INJUNCTION ETC.

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

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JUDGMENT

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Heard learned counsel - Sri V.F. Kumbar for appellants and learned counsel - Sri K.P. Bhuvan for Respondent Nos.1(a) to (c).

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This Regular Second Appeal is preferred by the appellants/defendants being aggrieved by the judgment &

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decree passed by the Civil Judge (Sr.Dn.), Doddaballapur in R.A. No.151/2002 dated 29^th March 2007 which reversed the judgment & decree passed by the learned Prl. Civil Judge (Jr.Dn) and JMFC, Doddaballapur in O.S. No.152/1995 dated 31.7.2002, thereby the suit which was dismissed by the trial Court came to be allowed and decreed by the first appellate Court and consequently allowed the first appeal of the plaintiff.

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Parties to this appeal shall be referred to as per their original status before the trial Court.

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Brief facts of the case are as under:

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Plaintiff filed the Original Suit against the defendants before the trial Court in O.S. No.152/1995 seeking for the relief of declaration that he is the absolute owner of the suit schedule land and to grant Permanent Injunction restraining defendants 1 to 3 from interfering with his peaceful possession and enjoyment of the suit schedule land in any manner and for other reliefs as deems fit.

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4.1 The suit schedule property is a land bearing Sy.No.344/1 measuring 35 guntas, situated at Banavathi,

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Sasalu Hobli, Doddaballapur taluk, bounded on East by land of Smt. Lakshmamma, west by plaintiff's land, North by land belonging to one Ramakrishnaiah and South by plaintiff's land and Gutte Gowda's land. It is the case of the plaintiff that the land to an extent of 35 guntas in Sy.No.344/1 was granted to him by the Land Tribunal and since the grant of land, he has been in peaceful possession and enjoyment of the suit schedule property. The grant of land conferred occupancy rights on the plaintiff by the order dated 2.6.1979 in LRF/1712/77-78, pursuant to which the plaintiff has been cultivating the suit schedule land by raising seasonal crops like Ragi, Jawar etc. It is also case of the plaintiff that he is growing Neem and Honge Trees in the suit schedule land, which are 8 to 10 years old.

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4.2 It is further case of the plaintiff that he is in peaceful possession and enjoyment of the suit schedule property since 16 years uninterruptedly without anyone interfering with the same. The defendant Nos.1 to 3 are related to the plaintiff and to make wrongful gain over the property belonging to the plaintiff, they started interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property. It is further stated that on 28.4.1995 at about 2.00 p.m.

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defendants trespassed into the suit schedule land and tried to cut and remove the standing Neem and Honge trees, which was resisted by the plaintiff and protected the suit schedule land from the illegal act of the defendants. In view of the fact that the defendants continued to interfere with the plaintiff's right, title, interest and possession over the suit schedule property and being apprehensive of the interference and threat of dispossession, he preferred the suit for declaration and for Permanent Injunction against the defendants.

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4.3 It is further case of the plaintiff that the defendants have nothing to do with the plaintiff's suit schedule land and neither they cultivated nor they are in possession of the suit schedule land at any point of time. But the defendants are trying to create some false and frivolous revenue records in active collusion with the revenue authorities, which is inimical to the rights and interest of the plaintiff and the same is politically motivated. Left with no other alternative, the plaintiff filed the suit for declaration and Permanent Injunction.

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On service of notice to the defendants, the 1^st defendant filed the written statement, which was adopted by

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defendant Nos.2 and 3. The defendants denied the averments in the plaint in toto . The defendants also denied right, title, interest and possession of the plaintiff over the suit schedule property and also denied having caused any interference to the plaintiff. It is contended by the defendants that 1^st defendant is the owner in possession and enjoyment of the suit schedule land and that the plaintiff has given wrong boundaries in respect of the suit schedule land bearing Sy.No.344/1 and in fact the plaintiff has given boundaries of the property bearing Sy.No.344/7, which belongs to the defendants and this fact has not been disclosed by the plaintiff. It is also contended that Sy.No.344/7 measuring 20 guntas was granted by the Deputy Commissioner for Inams to the 1^st defendant and after the said grant, the khatha of the suit schedule land came to be entered in the name of the 1^st defendant and eversince the 1^st defendant and his family members are in peaceful possession and enjoyment of the suit schedule land and the 1^st defendant has raised neem and honge trees over the suit land.

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It is also defence taken by the defendants that the 1^st defendant has perfected his title and possession over the suit schedule property by way of adverse possession. The crux of

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the defence taken by the defendants in the suit is that the plaintiff has given wrong boundaries in respect of the suit schedule land bearing Sy.No.344/1 and in fact he has given boundaries of the property bearing Sy.No.344/7, which belongs to the defendants and that the defendants are in possession of Sy.No.344/7 for more than 30 years and the same is within the knowledge of the plaintiff. The defendants categorically denied the boundaries prescribed by the plaintiff in the suit. Therefore, the suit is not maintainable and no relief could be granted in favour of the plaintiff.

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Based on the pleadings of both the parties, the

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learned trial Judge framed the following issues for

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consideration:

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Whether the plaintiff proves that he is the absolute owner of the suit schedule property?

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Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property?

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Whether the plaintiff proves the interference from the defendants?

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Whether the suit is barred by law of adverse possession?

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Whether the plaintiff is entitled to the relief of declaration?

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Whether the plaintiff is entitled to the relief of Permanent injunction?

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On the basis of the pleadings and issues, the plaintiff and defendants in order to establish and substantiate their respective cases adduced evidence. Plaintiff examined PWs.1 to 3 on his behalf and got marked Ex.P1 to Ex.P9, whereas defendants examined 3^rd defendant as DW.1 and got marked Ex.D1 to Ex.D9. The trial Court after hearing the learned counsel for the plaintiff as well as learned counsel for the defendants, on the basis of the pleadings, material evidence, both oral and documentary dismissed the suit of the plaintiff.

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The plaintiff being aggrieved by the dismissal of the suit, preferred an appeal before the first appellate Court under Section 96 of the Code of Civil Procedure. The First Appellate Court after service of notice on the defendants and hearing the learned counsel for the plaintiff as well as learned counsel for the defendants formulated following points for consideration:

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i) Whether the impugned Judgment & Decree of the trial court is illegal, arbitrary perverse and contrary to the facts and circumstances of the case calling for interference?

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ii) If so, whether the appellant-plaintiff's suit could deserve to be decreed as prayed for?

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The first appellate Court on re-appreciation and

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re-analyzation of the entire oral and documentary evidence on record, has answered both the points in the affirmative and allowed the appeal preferred by the plaintiff and consequently set aside the impugned judgment and decree passed by the trial Court. In the result, the plaintiff's suit for declaration of his title over the suit schedule property and consequential relief of Permanent Injunction came to be decreed restraining the defendants not to cause illegal interference or obstruction in the peaceful possession and enjoyment of the plaintiff over the suit schedule property.

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Being aggrieved by the judgment & decree passed by the first appellate Court, the appellants/defendants approached this Court in appeal on the ground that the first appellate Court

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has committed serious error in not taking into consideration the material evidence placed on record and not considering the boundaries mentioned by the plaintiff in the plaint schedule, which is directly similar to the boundaries of Sy.No.344/7, which admittedly is a property belonging to the defendants. It is the contention of learned counsel for the appellants/defendants that the first appellate court has lost sight of the fact that the boundaries prescribed by the plaintiff in the suit schedule are similar to the boundaries of the property of the defendants in Sy.No.344/7 which was granted by the Special Deputy Commissioner for Inams, Bangalore district in the year 1963 to the defendants. Therefore, the question of plaintiff asserting or claiming right on the basis of the grant by the Land Tribunal in the year 1978-79 over the suit schedule property, of which description of boundaries is similar to that of the defendants' property in Sy.No.344/7, is misleading and the suit is filed with an intention to encroach, trespass and grab the property of the defendants.

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Learned counsel for the defendants further contend

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that the admission made by PW.1 in his evidence that the land granted in his favour is not fully described with the boundaries

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as per the grant certificate and now, he cannot take advantage of the boundaries described by him in the plaint schedule, which was originally considered by the trial Court and the suit came to be dismissed. The first appellate Court having not taken these aspects into consideration, has passed an erroneous Judgment allowing the appeal and consequently decreeing the suit of the plaintiff. It is further contended by the learned counsel for the defendants that the boundaries mentioned by the plaintiff of the property bearing Sy.No.344/1 pertains to the property belonging to the defendants in Sy.No.344/7. Hence it is his contention that the learned First Appellate Judge has not properly appreciated material on record and has given finding erroneously relying on Ex.P9/Atlas map in favour of the plaintiff. Therefore, he contends that the judgment passed by the first appellate Court reversing the judgment and decree passed by the trial court is perverse, illegal and the same deserves to be set aside as the first appellate Court has not considered the relevant facts and question of law involved in the matter to decide the case. Therefore, the appellants/defendants are before this Court to

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admit the appeal, formulate substantial question of law and consequently allow the appeal.

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Learned counsel for Respondent Nos.1(a) to (c) contends that there is no illegality or perversity committed by the first appellate Court in decreeing the suit of the plaintiff, which is a considered and reasoned order and sought to dismiss the present appeal.

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Having heard learned counsel for the appellants/defendants, this Court vide order dated 30.7.2008 formulated following substantial question of law for consideration:

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"Whether in the facts and circumstances of the case, the first appellate Court was justified in reversing the judgment and decree passed by the trial Court based on Ex.P9 ?"

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I have given my thoughtful consideration to the arguments advanced by learned counsel - Sri V.F. Kumbar for the appellants - defendants and learned counsel - Sri K.P. Bhuvan for the respondent Nos.1(a) to (c) - plaintiffs.

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The substantial question of law raised by this Court is specifically on Ex.P9, which is Atlas map pertaining to Sy.No.3441/1 to 12. In the written statement preferred by defendant No.1 which is adopted by the other two defendants by way of filing a memo, it is categorically admitted that Sy.No.344/1 belongs to the plaintiff and Sy.No.344/7 belongs to the defendants and that these two properties are different from each other and they are situated at a distance of about 800 feet, which is also admitted by the defendants in the cross-examination of DW.1. Though the defendants have made strenuous effort to prove the adverse possession over the property of the plaintiff in Sy.No.344/1, nothing much has been elicited or evidence adduced to prove the fact and so also the appellate Court has negatived the said contention.

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The plaintiff has got produced Ex.P1 to Ex.P9 in support of his case, which are grant certificate issued by the Land Tribunal, several phani extracts with a revenue tax paid receipt, Atlas sketch map, RR pakka book copy obtained from the ADLR, Doddaballapur. All these documents are not seriously questioned or denied by the defendants. The fact also remains that alongwith plaintiff and defendants, there are other owners

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and khatedars of small strips of land in the Sy.No.344 which is phoded as Sy.Nos.344/1 to 344/12. Ex.P9 is the Atlas map which is produced and relied by the plaintiff before the first appellate Court. The first appellate Court considering Ex.P9/Atlas map along with the other Exhibits and material produced by the plaintiff, has held that the property bearing Sy.No.344/1 is totally different from the property bearing Sy.No.344/7. It is admitted fact by the plaintiff and the defendants that they are in peaceful possession and enjoyment of the lands to an extent of 35 guntas in Sy.No.344/1 and 20 guntas in Sy.No.344/7 respectively. Though it is the contention of the defendants that the boundaries mentioned by the plaintiff in the schedule of the suit property is similar to that of the boundaries of the property bearing Sy.No.344/7 belonging to the defendants, strangely it is seen that neither the defendants filed any counter-claim nor they filed any suit alleging interference by the plaintiff in respect of property bearing Sy.No.344/7.

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The first appellate Court has considered the factual aspect of the matter with regard to grant, right, title and interest of the plaintiff over the suit schedule property and the

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possession of the plaintiff over the same and also the documents produced as Exhibits by the defendants with regard to Sy.No.344/7 belonging to them and opined that Ex.D5 and Ex.D6 are the boundary particulars said to be given by the Village Accountant, who is not the competent authority to issue the said certificate and negatived the claim of the defendants that the boundaries in Sy.No.344/1 is similar to that of the boundaries in Sy.No.344/7 and so also it overlaps.

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The sum and substance of the arguments of the learned counsel for the appellants/defendants is that the plaintiff in the guise of securing the judgment & decree of declaration of his title in respect of suit property bearing Sy.No.344/1 and the relief of Permanent Injunction would interfere with the peaceful possession and enjoyment of the defendants over their property i.e., Sy.No.344/7 and would grab the property of the defendants. This aspect of the matter has been dealt with by the first appellate Court and on consideration of the material evidence, both oral and documentary, has rejected the claim to be baseless. The defendants have not placed any cogent material to uphold such contention. The substantial question of law raised by this Court

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is with regard to appreciation of Ex.P9 for reversing the judgment and decree of the trial Court. On careful perusal of Ex.P9 and on consideration of the substantial question of law, this Court is of the opinion that the first appellate Court has reappreciated and re-analyzed the entire material evidence, both oral and documentary and after appreciating Ex.P9 which is the Atlas map and the location of the property of the plaintiff and the defendants, has come to the conclusion that the plaintiff's property is located in the northern side, whereas the defendants' property is located in the south-western side, which is apparently clear from Ex.P9/Atlas map, which is not disputed by the defendants in their evidence rather DW.1 has admitted the same. It is also stated that the property of the plaintiff and that of the defendants is 800 feet away from each other. Therefore, the apprehension of the defendants that in the guise of the judgment and decree of declaration of title and Permanent Injunction, the plaintiff would encroach and interfere with the property belonging to the defendants, is imaginary and baseless and the said apprehension of the defendants is rightly negatived by the first appellate Court on the factual aspects.

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The first appellate Court having considered all these relevant factual aspects decided the matter in favour of the plaintiff by decreeing the suit for declaration and granting Permanent Injunction. This Court sitting in the second appeal to consider the substantial question of law under Section 100 of the CPC, which has got limited narrow scope to decide not only mere question of law but substantial question of law, will have to be very circumspect and careful in not venturing into analyzing or re-appreciating the question of fact which has already been decided by the first appellate Court, which is the last Court for appreciation of question of facts and analysation of the evidence and unless there is a grave error committed by the first appellate Court in not appreciating any evidentiary matter which are placed by the parties before both the Courts and having not considered the same which are admitted by the parties available on record, this Court would not interfere in the judgment passed by the Court below on the question of fact.

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It is also relevant to state that Ex.P9 is not disputed by the defendants and infact the defendants admitted the said document. The defendants also admitted that the suit property

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bearing Sy.No.344/1 belonging to the plaintiff is measuring to an extent of 35 guntas and the property bearing Sy.No.344/7 belonging to them (defendants) is measuring to an extent of 20 guntas. These facts are not disputed by both the parties. The defendants have also admitted the fact that the distance between both the properties is 800 feet. Hence there does not arise any question of law for consideration of the veracity of Ex.P9, which is admitted by the defendants.

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Merely for the reason of suspicion or apprehension by the defendants that the plaintiff may interfere with the peaceful possession and enjoyment of the right, title and interest of the defendants over Sy.No.344/7, this Court cannot interfere with the judgment passed by the first appellate Court. What is granted by the first appellate Court is a declaratory relief in favour of the plaintiff to be the owner of the suit schedule property bearing Sy.No.344/1 and consequential relief of Permanent Injunction restraining the defendants from interfering with peaceful possession and enjoyment of the same. The first appellate Court has not stated anywhere that the properties in Sy.No.344/1 and 344/7 are one and the same. Even according to both the parties, they are different properties

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located in two different places and is in possession of two different persons i.e., plaintiff on one side and defendants on the other side. Therefore, when the plaintiff and the defendants have clearly and categorically admitted that they are in peaceful possession, enjoyment and ownership of their respective portions of land measuring to an extent of 35 guntas by the plaintiff and 20 guntas by the defendants, question of interfering with each other is imaginary and in the circumstances, the argument of the appellants/defendants cannot be accepted for consideration of substantial question of law. The reasons assigned and the conclusion arrived at by the first appellate Court are just and proper in the facts and circumstances of the case. The appellants have not made out any case to interfere with the well reasoned judgment passed by the first appellate Court.

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In view of the above discussion and the reasons, this Court is of the opinion that the substantial question of law framed by this Court would not favour the appellants/defendants and in the facts, admissions and circumstances of the case, the first appellate Court is justified

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in reversing the judgment and decree passed by the trial Court

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based on Ex.P9. Accordingly, I pass the following:

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O R D E R

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The appeal preferred by the appellants/defendants is

dismissed .

Sd/JUDGE

GSS

List No.: 1 Sl No.: 33

Sri Narasaraju v. Sri B Hanumaiah

Case brief

What is this about?

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Sri Narasaraju v. Sri B Hanumaiah

Case brief

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