Partly allowed

C Jayadevaiah v. Smt Gowramma

Karnataka HC31 May 2023RSA/487/2014

Case brief

AI extract

What is this about?

This High Court allowed the second appeals partly. It affirmed the trial court's decree barring defendants from the suit land but set aside the first appellate court's modification of boundaries. The court held the boundary modification was arbitrary and allowed defendants to initiate separate proceedings for the disputed 7 guntas and rectification.

What did the court decide?

Boundaries modified by first appellate court set aside; judgment and decree affirmed; appellants at liberty to initiate proceedings for 7 guntas and boundary rectification.

C Jayadevaiah Vs Smt Gowramma — Partition | Karnataka HC (2023)

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RSA No. 487 of 2014 C/W RSA No. 486 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 31^ST DAY OF MAY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR REGULAR SECOND APPEAL NO. 487 OF 2014 (INJ)

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C/W

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REGULAR SECOND APPEAL NO. 486 OF 2014 (INJ)

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BETWEEN:

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C JAYADEVAIAH

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S/O LATE CHANDRASHEKARAIAH

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AGED ABOUT 57 YEARS OCC:AGRICULTURIST R/O SONDEKOLA VILLAGE CHITRADURGA TALUK & DISTRICT

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PIN – 577 555.

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SINCE DECEASED BY HIS LRs

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1(a) GANGAMMA

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Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA

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W/O LATE C. JAYADEVAIAH

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AGED ABOUT 58 YEARS

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R/O SONDEKOLA VILLAGE

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CHITRADURGA TALUK AND DISTRICT

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PIN – 577 555.

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1(b) J DHARANENDRAIAH S/O LATE C. JAYADEVAIAH AGED ABOUT 30 YEARS

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R/O SONDEKOLA VILLAGE CHITRADURGA TALUK AND DISTRICT PIN – 577 555.

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(AMENDED VIDE ORDER DATED 08.11.2022.)

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…APPELLANTS (COMMON) (BY SRI. JAYAPRAKASH R V.,ADVOCATE)

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RSA No. 487 of 2014 C/W RSA No. 486 of 2014

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AND:

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SMT GOWRAMMA W/O RUDRAPPA AGED ABOUT 47 YEARS OCCU:AGRICULTUIRST R/O SONDEKOLA VILLAGE CHITRADURGA TALUK & DISTRICT PIN -577 555.

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C NAGABHUSHANAIAH S/O LATE CHANDRASHEKARAIAH AGED ABOUT 49 YEARS OCCU: AGRICULTURIST & AUTO DRIVER R/O SONDEKOLA VILLAGE CHITRADURGA TALUK & DISTRICT PIN -577 555.

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…RESPONDENTS

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(COMMON) (BY SRI. SHIVANANDA D S.,ADVOCATE FOR R-1) (IN RSA No.487/2014: R-2 SERVED IN RSA No.486/2014: NOTICE TO R-2 DISPENSED WITH)

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RSA NO. 487/2014 IS FILED U/S. 100 OF CPC PRAYING TO SET ASIDE THE JUDGEMENT AND DECREE DTD 19.12.2013 PASSED IN R.A.NO.10/2011 ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE & MACT-V, CHITRADURGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 03.02.2011 PASSED IN OS NO. 138/2006 ON THE FILE OF THE II ADDL. CIVIL JUDGE, CHITRADURGA.

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RSA NO. 486/2014 IS FILED U/S. 100 OF CPC PRAYING TO SET ASIDE THE JUDGEMENT AND DECREE DTD 19.12.2013 PASSED IN R.A.NO.11/2011 ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE & MACT-IV, CHITRADURGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 03.02.2011 PASSED IN OS NO. 138/2006 ON THE FILE OF THE II ADDL. CIVIL JUDGE, JMFC, CHITRADURGA.

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THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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RSA No. 487 of 2014 C/W RSA No. 486 of 2014

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JUDGMENT

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Defendant No. 1 has filed RSA No. 487/2014 praying to set aside the judgment and decree dated 19.12.2013 passed in R.A. No. 10/2011 by the I Additional Senior Civil Judge, Chitradurga, confirming the judgment and decree dated 03.12.2011 passed in O.S. No. 138/2006 passed by II Additional Civil Judge, Chitradurga and praying to allow his counter claim.

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RSA No. 486/2014 is also filed by defendant No.1 praying to set aside the judgment and decree dated 19.12.2013 passed in R.A. No. 11/2011 by the I Additional

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Senior Civil Judge, Chitradurga, confirming the judgment and decree dated 03.12.2011 passed in O.S. No. 138/2006 passed by II Additional Civil Judge, Chitradurga.

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Parties will be referred to as per their rankings before the trial Court.

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The appellant was defendant No. 1, respondent No. 2 was defendant No. 2 and respondent No. 1 was the

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RSA No. 487 of 2014 C/W RSA No. 486 of 2014

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plaintiff before trial Court in O.S. No. 138/2006. Facts of the said suit, in brief, are as under:

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Plaintiff had filed a suit seeking grant of permanent injunction in respect of suit schedule land bearing resurvey No. 16/1b measuring 2 acres 06 guntas against defendant Nos.1 and 2. She claimed that she is the absolute owner and is in possession and enjoyment of the suit schedule property having purchased the same under registered sale deed dated 30.03.1995 from defendant No. 2. It is stated that in pursuance of the said sale deed khatha was mutated to her name and she is paying the kandaya. It is stated that at that time it was a barren land

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and she got dug up a bore well in the year 1999 by investing huge amount and converted the land into Arecanut garden. The said bore well existed on the western side of the suit schedule property and she had taken electric connection from the BESCOM. It is stated

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that as per the recent revenue entries the total measurement of RS No. 16/1b is shown as 2 acres 13

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5 - RSA No. 487 of 2014 C/W RSA No. 486 of 2014

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guntas but she is in possession and enjoyment of 2 acres 6 guntas with the suit schedule boundaries. It is stated that the defendants, taking advantage of the excess measurement shown recently in the revenue documents, tried to disturb her possession and enjoyment of the suit schedule property and therefore she filed a suit for perpetual injunction.

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Defendant No. 1 in his written statement has denied and disputed the entire claim of the plaintiff and contended that the land bearing survey No. 16/1 was measuring 4 acres 23 guntas and belonged to one Sri. Channabasappa. Smt. Deveeramma wife of Thimmappa

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had purchased land measuring 2 acres 10 guntas under registered sale deed dated 26.07.1955 and remaining land of 2 acres 13 guntas was purchased by his father Sri. Chandrashekaraiah under registered sale deed dated 15.06.1959 and his father was enjoying 2 acres 13 guntas and after the his death, he and his brother – defendant No. 2 got partitioned the family properties through

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registered partition deed dated 30.03.1995 and in that partition 2 acres 6 guntas in RS No. 16/1b had fallen to the share of defendant No. 2. It is stated that remaining 7 guntas was retained by defendant No.1 and accordingly he is the absolute owner in possession and enjoyment of the said property with the boundaries as follows:

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East by - plaintiff’s land

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West by - Deviramma’s land

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North by - lands of Channaveerappa and

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Ningappa

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South by - land of Gowdrachandrashekarappa

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It is stated by him that he got dug up a bore well.

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The Thahsildar, Chitradurga ordered to phode the lands and accordingly the Surveyor visited the spot and drew mahazar. He had challenged the same before the Assistant

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Commissioner, Chitradurga. He stated that as per the order of the Assistant Commissioner he is the absolute

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owner in possession and enjoyment and written statement

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RSA No. 487 of 2014 C/W RSA No. 486 of 2014

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schedule property. He contends that the plaintiff had given wrong boundary on the western side by including his property and therefore claim made by the plaintiff is untenable. He contends that the plaintiff is trying to dispossess him from the written statement schedule property and therefore, he made counter claim seeking declaration and injunction over the written statement schedule property.

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Defendant No. 2 has filed written statement taking similar contentions. According to him, he is the absolute owner in possession and enjoyment of the written statement schedule property. Defendant No.1 and plaintiff

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are falsely claiming their alleged rights in respect of the said property. Accordingly he has sought for declaration by way of counter claim to declare that he is the absolute owner and in possession and enjoyment of the written statement schedule property.

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Based on the above pleadings the trial Court has framed the following issues and additional issues:

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RSA No. 487 of 2014 C/W RSA No. 486 of 2014

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i. Whether plaintiff proves that she is in peaceful possession and enjoyment of the suit schedule property as on the date of suit?

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ii. Whether the plaintiff proves the alleged interference caused by the defendants?

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iii. Whether the defendant No. 1 proves that he is the owner in possession and enjoyment of 0-07 guntas of land in sy.no. 16/1b?

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iv. Whether the defendants prove the alleged interference caused by the plaintiff in his peaceful possession and enjoyment of the counter claim schedule property?

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v. Who is entitled for which relief?

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vi. What order/decree?

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Additional issues

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i. Whether the 1^st defendant proves that he is the owner in possession of the land described in the schedule of the counter claim?

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ii. Whether the 1^st defendant proves alleged interference by the plaintiff?

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iii. Whether the 2^nd defendant proves that he is the owner in possession of the land described in the schedule of the counter claim?

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iv. Whether the 1^st defendant is entitled for the relief claimed in the counter claim?

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RSA No. 487 of 2014 C/W RSA No. 486 of 2014

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In support of her case plaintiff and two others have filed affidavits as P.W.1 to P.W.3 and got marked Ex.P.1 to Ex.P.10. Defendant No.1 and two witnesses have filed affidavits as D.W.1 to D.W.3 and got marked Ex.D.1 to Ex.D.5. Defendant No. 2 did not take part in the trial. The trial Court, after hearing arguments of the parties and appreciating the evidence on record has answered issue Nos. 1 and 2 in the affirmative and issue Nos. 3 and 4 and additional issues 1 to 4 in the negative and decreed the suit of the plaintiff and dismissed the counter claims of the defendants.

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Defendant No. 1 challenged the grant of decree in favour of the plaintiff and rejection of his counter claim in two separate appeals in R.A. Nos. 10/2011 and 11/2011. The first appellate Court, after hearing arguments, formulated the following points for its consideration:

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RSA No. 487 of 2014 C/W RSA No. 486 of 2014

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i. Whether the appellant proves that he acquired the title and possession in respect of written statement schedule property?

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ii. Whether the appellant proves that appreciation of evidence by the learned trial judge with regard to the suit schedule property and written statement schedule property is not proper and not based upon the evidence available?

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iii. Whether IA.no.I, filed U/o XLI Rule 27 of CPC, 1908 is maintainable?

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iv. Whether interference of this Court is absolutely necessary?

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v. What order/decree?

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The first appellate Court answered points Nos. 1 to 4 in the negative and dismissed both the appeals with

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cost confirming the judgment and decree passed in O.S. No. 138/2006 and also dismissed the application filed by the appellant under Order XLI Rule 27 of CPC seeking additional evidence. Even though the first appellate Court dismissed the appeals, it has made observations in the judgment that the land of the plaintiff measuring 2 acres 6 guntas should be bounded by :

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RSA No. 487 of 2014 C/W RSA No. 486 of 2014

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East by - remaining 07 guntas in same survey

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number

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West by - Parameshwarappa’s land

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North by - lands of Channaveerappa and Shankarappa

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South by - land of Veerappa

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Defendant No. 1, aggrieved by the said judgment

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passed by the first appellate Court in R.A. Nos. 10/2011 and 11/2011 has preferred these two second appeals.

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When the matter was listed for admission, this

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Court by order dated 21.11.2022 has appointed a survey Commissioner to measure the property bearing Sy.No. 16/1b within the boundaries specified in the partition deed

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and sale deed dated 30.03.1995. By virtue of the said order the Assistant Director of Land Records (ADLR), Chitradurga has submitted his report. Said report also contains a sketch. Learned counsel for appellant submitted

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that he has no objection to the report of the ADLR and the

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RSA No. 487 of 2014 C/W RSA No. 486 of 2014

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same is recorded in the order dated 28.02.2023. Learned counsel for respondent No. 1 has filed his objections to the report of ADLR, Chitradurga/Court Commissioner.

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Heard learned counsel for appellant in both the appeals and learned counsel for respondent No. 1. The following substantive questions of law arise for consideration in these appeals:

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i. Whether the trial Court and first appellate Court are not justified in granting decree of perpetual injunction in respect of suit schedule property measuring 2 acres 6 guntas and rejecting the counter claim of defendant No. 1?

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ii. Whether moulding of boundaries of the suit schedule property by the first appellate Court is not based on the evidence on record?

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Defendant Nos. 1 and 2 are brothers and they are the children of one Chandrashekaraiah. Said Chandrashekaraiah had purchased RS No. 16/1b measuring 2 acres 13 guntas under sale deed Ex.D.2 – dated 15.06.1959 from one Channabasappa son of

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RSA No. 487 of 2014 C/W RSA No. 486 of 2014

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Shivalingappa. After the death of said Chandrashekaraiah there was a partition between defendant Nos. 1 and 2 in respect of their properties including property bearing RS No. 16/1b. Said partition deed dated 30.03.1995 is at Ex.D.3. In the said partition deed, property bearing RS No. 16/1b measuring 2 acres 6 guntas has been allotted to the share of defendant No. 2. Said partition deed is a registered document. Defendant Nos. 1 and 2 have not disputed the said partition deed and allotment of property bearing RS No. 16/1b to an extent of 2 acres 6 guntas to

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the share of defendant No. 2. Defendant No.2 executed sale deed – Ex.P.1 dated 30.03.1995 in favour of plaintiff in respect of property bearing RS No. 16/1b measuring 2 acres 6 guntas. Boundaries of the property allotted to the share of defendant No. 2, i.e. RS No. 16/1b measuring 2 acres 6 guntas and property sold by defendant No. 2 to plaintiff under sale deed Ex.P.1 are :

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West by - land of Parameshwarappa

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RSA No. 487 of 2014 C/W RSA No. 486 of 2014

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North by - lands of Channaveerappa,

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Shekarappa and Devendrappa

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South by - land of Byrappa

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Ex.D.8 is the RTC of RS No. 16/1b and the extent

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shown is 2 acres 6 guntas and name of the plaintiff has been mutated in column No. 9 as per MR No. 7/1995-96. Said extract of MR No. 7/1995-96 is at Ex.D.6. RTC – Ex.D.8 is for the years 1995-96 to 1999-2000 wherein the plaintiff is shown as the cultivator in column No. 12(2) to an extent of 2 acres 6 guntas. Ex.D.9 is the order dated 23.12.2003 whereunder order has been passed to mutate

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the name of the plaintiff to an extent of 2 acres 13 guntas in RS No. 16/1b and name of Deviramma is ordered to be mutated to an extent of 2 acres 10 guntas. By virtue of the said order, MR No. 33/2003-04 has been passed mutating the name of plaintiff to an extent of 2 acres 13 guntas and name of Deviramma to an extent of 2 acres 10 guntas. Said mutation is at Ex.D.10. Ex.D.12 is the order of Assistant Commissioner passed in an appeal challenging

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the order of the Tahsildar (Ex.D.9). In the said order the Assistant Commissioner has set aside the order of the Tahsildar – Ex.D.9 and ordered to mutate the name of Deviramma to an extent of 2 acres 10 guntas instead of 2 acres 17 guntas in survey No. 16/1a and name of plaintiff to an extent of 2 acres 6 guntas instead of 2 acres 13 guntas in RS No. 16/1b. In the said order an extent of 7 guntas has been ordered to be mutated in the joint name of defendant Nos.1 and 2. It appears, that based on the said order – Ex.D.12 the defendants made a claim for an

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extent of 7 guntas of land. In the said order where exactly said 7 guntas of land in survey No. 16/1 is situated is not stated. Defendant Nos. 1 and 2 have individually made rival claim for that 7 guntas of land in their counter claims.

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The plaintiff, based on sale deed Ex.P.1 executed by defendant No.2 in her favour to an extent of 2 acres 6 guntas and based on mutation of her name in the RTC to an extent of 2 acres 6 guntas (Ex.D.8), states that she is in possession of 2 acres 6 guntas of land with the

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16 - RSA No. 487 of 2014 C/W RSA No. 486 of 2014

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boundaries mentioned in the sale deed – Ex.P.1 and partition deed – Ex.D.3.

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Learned counsel for appellant submitted that the boundaries mentioned in the partition deed and sale deed on western side is not correct. But, defendant Nos. 1 and 2 have not made any effort to initiate any legal proceedings against plaintiff to rectify the alleged mistake in the boundary on the western side as mentioned in partition deed – Ex.D.3 and sale deed – Ex.P.1. Unless boundary on the eastern side in partition deed and sale deed is rectified, defendant Nos.1 and 2 cannot contend that the boundary mentioned in western side of the partition deed – Ex.D.3 and sale deed – Ex.P.1 is not correct. Plaintiff has established that she is in possession of 2 acres 6 guntas in RS No. 16/1b with the boundaries mentioned in the partition deed – Ex.D.3 and sale deed – Ex.P.1. The boundaries mentioned in the suit schedule is in consonance with the boundaries mentioned in partition deed – Ex.D.3 and sale deed – Ex.P.1. Therefore, no error

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RSA No. 487 of 2014 C/W RSA No. 486 of 2014

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can be found with the finding of the trial Court and first appellate Court that the plaintiff is in possession of 2 acres

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6 guntas with the boundaries mentioned in partition deed – Ex.D.3 and sale deed – Ex.P.1. Therefore, substantive question of law No.1 is answered accordingly.

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The first appellate Court, based on the oral submission made by counsel for plaintiff that plaintiff will not claim 7 guntas of land which is situated on the eastern side, has modified the boundaries of the suit schedule property. There is no material on record to hold on which side of RS No. 16/1b said 7 guntas of land is situated. There is no material on record to show that said 7 guntas of land is situated on western side as contended by the defendants and said 7 guntas is situated on the eastern side as contended by the plaintiff. Said aspect can be decided in appropriate proceedings to be initiated by the parties.

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The Court Commissioner appointed by this Court has submitted his report with the sketch and as per the

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RSA No. 487 of 2014 C/W RSA No. 486 of 2014

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said sketch said 7 guntas of land is situated towards the western side of the suit schedule property. What is the basis for the said finding of the Court Commissioner is not forthcoming in his report. Therefore, the first appellate Court has committed an error in moulding the boundaries based on the oral submission made by the counsel for the plaintiff. Hence, substantive question of law No.2 is answered accordingly.

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In view of the above, the following;

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O R D E R

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i. Appeals are allowed in part.

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ii. The boundaries modified by the first appellate Court as stated in paragraph No. 31 of the impugned judgment passed in RA Nos. 10/2011 and 11/2011 dated 19.12.2013 to the following

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extent is set aside.

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“However, it is made clear that 2-06 guntas of land of the plaintiff should be bounded on East : remaining 07 guntas in

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RSA No. 487 of 2014 C/W RSA No. 486 of 2014

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same survey number, West: Parameshwarappa’s land, North: Lands of Channaveerappa and Shankarappa, and South: land of Veerappa”.

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iii. Judgment and decree passed by the trial Court in O.S. No. 138/2006 dated 03.02.2011 as affirmed by the first appellate Court in RA Nos. 10/2011 and 11/2011 dated 19.12.2013 are affirmed.

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iv. Defendant Nos.1 and 2 are at liberty to initiate appropriate legal proceedings to claim their right over 7 guntas of land in survey No. 16/1 and legal proceedings to rectify boundary mentioned on the western side in partition deed – Ex.D.3 and sale deed – Ex.P.1 notwithstanding the dismissal of their counter claims.

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Sd/JUDGE

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LRS

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List No.: 1 Sl No.: 14

C Jayadevaiah v. Smt Gowramma

Case brief

What is this about?

What did the court decide?

C Jayadevaiah v. Smt Gowramma

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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