Allowed

Sri. Venkataramappa v. Sri. Venkataramappa

Karnataka HC21 Mar 2023RSA/335/2011

Case brief

AI extract

What is this about?

A second appeal involving a suit for declaration of title and possession of properties. The High Court quashed the first appellate court's decree setting aside the trial court's judgment due to lack of encroachment proof. The matter is remanded for appointment of a court commissioner to survey the property.

What did the court decide?

The first appeal by the respondents was dismissed. The judgment of the first appellate court setting aside the trial court decree is set aside. The matter is remanded for appointment of a court commis

Sri. Venkataramappa Vs Sri. Venkataramappa — Partition | Karnataka HC (2023)

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1 - RSA No. 335 of 2011

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF MARCH, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR REGULAR SECOND APPEAL NO. 335 OF 2011 (DEC/INJ)

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BETWEEN:

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SRI. VENKATARAMAPPA S/O. MUNIVENKATAPPA AGED ABOUT 38 YARS RESIDENT OF DODDAVANASETTIHALI VILLAGE AVANI HOBLI, MULBAGAL TALUK KOLAR DISTRICT-563101.

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…APPELLANT

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(BY SRI. K.S RAMESH AND SRI. R.VIJAYKUMAR, ADVOCATES)

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AND:

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Digitally signed by YASHODA KRISHNAPPA Location: HIGH COURT OF KARNATAKA

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SRI. VENKATARAMAPPA S/O. MOTAPPA AGED ABOUT 43 YEARS.

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SRI. MUNIVENKATAPPA S/O. THIMMANABHOVI AGED ABOUT 38 YEARS.

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BOTH ARE RESIDENT OF DODDAVANASETTIHALLI VILLAGE AVANI HOBLI, MULBAGAL TALUK KOLAR DISTRICT-563101.

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…RESPONDENTS

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(R1 AND R2 SERVED, BUT UNREPRESENTED)

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RSA No. 335 of 2011

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 10.11.2010 PASSED IN R.A.NO.96/2010 ON THE FILE OF THE III ADDL.SENIOR CIVIL JUDGE, KOLAR (ITINERATING AT MULBAGAL),ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED04.06.2010 PASSED IN O.S.NO.140/2007 ON THE FILE OF THE PRL.CIVIL JUDGE (JR.DN) & JMFC., MULABAGAL.

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

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JUDGMENT

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The plaintiff has filed this appeal against defendant Nos.1 and 2, seeking to set aside the judgment and decree dated 10.11.2010 passed in RA.No.96/2010 by III Additional Senior Civil Judge, Kolar and confirm the judgment and decree dated 04.06.2010 passed in OS.No.140/2007 by the Principal Civil Judge (JR.DN) and JMFC, Mulbagal.

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The appellant is the plaintiff and respondent Nos.1

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and 2 are the defendants in OS.No.140/2007, on the file of Principal Civil Judge (JR.DN) and JMFC, Mulbagal. The said suit is filed by the appellant/plaintiff seeking for the following relief's:

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RSA No. 335 of 2011

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i. "For Declaration of title, declaring that the plaintiff is the absolute owner of the 'A' schedule property.

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ii. Directing the defendant no.1 to hand over the vacant possession of 'B' schedule property and directing 2nd defendant to hand over 'C' schedule property.

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iii. To grant permanent restraining the defendants their agents, any person or persons collies representatives P.A.Holders acting on behalf of them from interfering with the peaceful possession and enjoyment of the 'B' & 'C' schedule properties.

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iv. To grant costs of the suit and pass such other reliefs as deems fit to be grant in the circumstances of the case, in the ends of justice and equity."

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The properties described in the plaint as schedule 'A', 'B'

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and 'C' properties, which reads as here under :

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'A' SCHEDULE

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"The landed property bearing its sy.no.45/2, of an extent 1.28 situated at Dodda Honnasettyhalli Avani hobli, Mulbagal taluk is bounded on:

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East by: Kere Katte

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West by: Karab land Y.M.Chandrashekar Rao and

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Thoti Inamthi lands.

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North by: Karab, Kere katte

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South by: sy.no.35 belongs to plaintiff.

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RSA No. 335 of 2011

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'B' SCHEDULE

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The landed property bearing its sy.no.45/2 of an extent 1.28 acres out of which 03 guntas situated at Dodd honnasetty halli, Avani hobli, Mulbagal taluk is bounded on:

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East by: Kere katte

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West by: Venkatanabovi

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North by: Canal

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South by: sy.no.35 belongs to the plaintiff.

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'C' SCHEDULE

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The landed property bearing its sy.no.45/2, of an extent 1.28 acres out of which southern side east west: 31 feet North south: 10 feet, situated at Doddahonnasettyhalli village, Avani hobli, Mulbagal taluk, is bounded on:

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East by: Kere katte

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West by: Aswathakatte

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North by: Venkatanabovi

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South by: Road."

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It is the case of the plaintiff that he is the absolute owner in possession and enjoyment of land bearing Sy.No.45/2 measuring to an extent of 1 acre 28 guntas situated at Doddahonashettyhalli, Avani hobli, Mulbagal Taluk. The said property is prescribed under 'A' schedule. It is the case of plaintiff that he had purchased schedule 'A' property under the

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RSA No. 335 of 2011

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sale deed dated 29.08.1985 from one Sri.P.L.Suryanarayana Rao and his name came to be entered in the RTC and he is in the possession of the said property, since the date of sale deed. It is the further case of the plaintiff that the defendants are totally strangers in the suit schedule property. The defendant No.1 has illegally occupied 3 guntas towards southern side of the suit schedule property and defendant No.2 has illegally occupied 31 feet towards East and West side and 10 feet, North to South towards southern side of the suit schedule property, when the plaintiff was not in village. The suit in occupation of defendant No.1 is described in 'B' schedule and the property in possession of defendant No.2 is described in 'C' schedule. It is the further case of the plaintiff that he had demanded both the defendants in handing over the property in their possession to the plaintiff, but they did not head the request of the plaintiff. Therefore, the plaintiff has filed the suit for above reliefs against defendant Nos.1 and 2. The defendants filed written statement denying the title of the plaintiff over schedule 'A' property. They also denied that the plaintiff has purchased suit schedule 'A' property from one Sri.P.L.Suryanarayana Rao. They denied the plaintiffs possession over 'A' schedule

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RSA No. 335 of 2011

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property. They denied the revenue documents produced by the plaintiff. They also denied that defendant No.1 in possession of schedule 'B' property and defendant No.2 in possession of 'C' property. The defendants contended that they constructed a house in part and parcel of Gramatana (Karab) of Doddahonnsettyhalli Village, Avani Hobli, Mulbagal taluk (Devarayasamudra Gramapanchath) about 15 years back. The defendant No.1 constructed a residential house to an extent of 21 x 17 feet and having a power connection of Bagyajyothi, about 4 years back, in the remaining land and defendant No.1 has put up hay stack, manure pits in the said property, totally measuring East to West 70 feet, North to South 125 feet bounded on East by Kere katte, West by house property of Munilakshmma, North by Raja Kaluve and South by Seenappa and Muthappa and others, the grama panchayath authorities were collecting betterment charges made out katha of said property from the defendant No.1, since 15 years. They contended that defendant No.2 has also constructed the house within the boundaries prescribed in the schedule property about 20 years back, measuring East to West 30 feet, North to South 21 feet bounded on East by property of Seenappa and West by

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RSA No. 335 of 2011

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property of Govindappa, North by property of Chandrappa and South by Road. They contended that they are exercising their right and interest to the knowledge of the plaintiff and also to

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the knowledge of general public. They continued to be in possession and enjoyment as absolute owner and suit filed by the plaintiff is bared by law of limitation.

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4. Based on above pleadings, the Trial Court has

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framed issues which are as follows:

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1. "Whether the plaintiff proves that he has acquired right of ownership over 'A' schedule property?

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1. Whether the plaintiff further proves that defendant No.1 illegally trespassed into 0.3 guntas of land towards southern side and defendant No.2 trespassed into 31 feet eastwest-10 ft of north-south of suit properties and therefore they are required to be evicted from the said land?

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1. Whether the plaintiff is entitled for possession of 'B & C' schedule properties from defendants?

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1. Whether the plaintiff further proves that he is in actual possession & enjoyment of suit schedule 'A' property as on the date of suit?

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1. Whether the plaintiff further proves the alleged interference of the defendants over 'A' schedule properties?

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8 - RSA No. 335 of 2011

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1. Whether the defendant No.1 further proves that he has constructed a house in the site provided to him by the Gramapanchayath measuring 21 x 17 feet and tethering his cattle in the said site and also enjoying the same by putting haystack and manure pit?

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1. Whether defendant No.2 proves that he has constructed a residential house in the suit property about 20 years back in the site allotted to him by the Gramapanchayath?

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8) Whether the plaintiff is entitled for the relief prayed for?

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9) Whether the defendants prove that this suit is barred by limitation?

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10)What order or decree?"

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The plaintiff examined himself as PW-1 and got

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examined a witness as PW-2 and got marked documents as Ex.P1 to Ex.P11. Defendant No.1 examined as DW-1 and got examined the witnesses as DW-1 and DW-2 and got marked Ex.D1 to Ex.D5. The Trial Court after hearing the arguments and setting the reasons before and answered issues 1 to 5, 8 in affirmative and issues 6, 7 and 9 in the negative and decreed the suit of the plaintiff. The defendants challenged the said judgment and decree in R.A.No.96/2010. The First Appellate Court after hearing the arguments on both the sides has formulated the following points for consideration:

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RSA No. 335 of 2011

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"Out of above said facts and circumstances of the case and material evidence on record, the points that arise for determination are as follows:

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i. "Whether the impugned judgment and decree passed by trial court in O.S.No.140/2007 is illegal, perverse, arbitrary and erroneous and not based on principles of law and requires interference?

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ii. What order?"

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The First Appellate Court answered the point No.1 in affirmative and allowed the appeal and set-aside the judgment and decree passed in OS.No.140/2007 dated 04.06.2010. Challenging the judgment and decree passed by the First Appellate Court, the plaintiff has filed second appeal. That the second appeal came to be admitted, which considers the following substantial questions of law:

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a) "Whether the First Appellate Court is justified in reversing the judgment and decree of the Trial Court passed in O.S.No.140/2007 on the ground that no consequential relief has been sought for as per the mandate given in Proviso to Section 34 of the Specific Relief Act?

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b) Whether the First Appellate Court, being the Final Court of facts, has misread the evidence and has come to a wrong conclusion and thereby causing grave injustice?"

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10 -

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RSA No. 335 of 2011

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Heard the learned counsel for the appellant, in spite

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of service of notice to respondent Nos.1 and 2 and defendant Nos.1 and 2 have not been appeared.

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It is the specific case of appellant/plaintiff, that he is the owner of the schedule 'A' property and he has purchased the same under the sale deed at Ex.P1 and his name came to be mutated in RTC at Ex.P2, he is paying the taxes to the said property and tax paid receipts are at Ex.P4 to Ex.P11. It is the case of the plaintiff that schedule 'B' and 'C' properties are part of the schedule 'A' property. It is specific case of the plaintiff that defendant No.1 is in possession of schedule 'B' property and defendant No.2 is in possession of schedule 'C' property. It is the specific case of the plaintiff that defendant No.1 encroached the suit schedule 'A' property to the extent shown in schedule 'B' property and defendant No.2 encroached suit schedule 'A' property to the extent shown in schedule 'C' property. The defendant Nos.1 and 2 claimed the property based on Ex.D1 Hakku patra and Assessment & Demand Register extracts in Ex.D2 and Ex.D3 and tax paid receipts are at Ex.D4 and Ex.D5. Based on exhibit Ex.P1 sale deed of

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RSA No. 335 of 2011

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plaintiff has established the title over schedule 'A' property. The Trial Court has rightly held that the appellant/plaintiff has proved a title over the suit schedule 'A' property. The plaintiff is in possession of schedule 'A' property, excluding the portions mentioned in schedule 'B' property and schedule 'C' property. It is for the plaintiff to establish that the property in possession of the defendant Nos.1 and 2 is a part of schedule 'A' property. It is for the plaintiffs to establish that defendant Nos.1 and 2 have encroached schedule 'A' property to the extent shown in schedule 'B' and schedule 'C'. The plaintiff ought to had applied for survey of schedule 'A' property under Order 26 Rule 9 of CPC, seeking appointment of Court Commissioner to measure the schedule 'A' property to ascertain whether the defendant Nos.1 and 2 have encroached any portion of it. The plaintiffs has not done so. The Trial Court without considering this aspect has held that defendant No.1 is in possession of schedule 'B' property and defendant No.2 is in possession of schedule 'C' property and both are in possession of 'B' and 'C' properties, which are part of 'A' schedule property. The evidence adduced by the parties before the Trial Court was insufficient to grant relief of possession of schedule 'B' and 'C' properties to the plaintiff.

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RSA No. 335 of 2011

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The First Appellate Court without considering all these aspects have erroneously observed that the plaintiff has not sought further relief as per proviso to Section 34 of Specific Relief Act, even though the plaintiff had sought for further relief of injunction and possession of schedule 'B' and 'C' properties. Therefore, the said findings of the First Appellate Court is erroneous. Even the First Appellate Court ought to have appointed a surveyor to measure suit schedule 'A' property to ascertain whether the property in possession of defendant Nos.1 and 2 is by encroaching a portion of schedule 'A' property. The First Appellate Court has also not done the same. Neither the appellant nor the respondents have applied for appointment of Court Commissioner under Order XXVI Rule 9 of CPC. Therefore, this Court is of the opinion that, a surveyor is to be appointed as Court Commissioner to measure the suit schedule 'A' property to ascertain whether the property is in possession of defendant Nos.1 and 2 is encroachment in the schedule 'A' property. Therefore, in this regard, the matter requires to be remanded back to the First Appellate Court. Hence, the substantial question of laws are answered accordingly.

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RSA No. 335 of 2011

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Accordingly, I pass the following:

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ORDER

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The appeal is allowed.

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The Judgment and Decree passed by the First Appellate Court in R.A.No.96/2010 is set-aside.

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The matter is remanded back to the First Appellate Court with a direction and to appoint surveyor as a Court Commissioner to measure schedule 'A' property to ascertain whether property in possession of defendant Nos.1 and 2 is a encroachment in schedule 'A' property.

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After receipt of surveyor report, the First Appellate Court shall decide the appeal in accordance with law.

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The parties are at liberty to lead further evidence on the Commissioners report.

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The commission fee is tentatively fixed at Rs.3,000/-. The appellant/plaintiff is directed to deposit the commission fee of Rs.3,000/-.

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RSA No. 335 of 2011

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The appellant/plaintiff is directed to appear before the First Appellate Court on 19.04.2023.

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The First Appellate Court shall issue Court notice to the respondents herein, who are appellants in the appeal before the First Appellate Court.

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The First Appellate Court shall dispose off the appeal as expeditiously as possible.

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Sd/JUDGE

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List No.: 1 Sl No.: 13

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Sri. Venkataramappa v. Sri. Venkataramappa

Case brief

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Sri. Venkataramappa v. Sri. Venkataramappa

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