Allowed

Sri Lakshmana v. Sri H Chandrappa

Karnataka HC4 Jul 2023RSA/855/2011

Case brief

AI extract

What is this about?

In this second appeal, the High Court of Karnataka disposed of a suit for permanent injunction. The appellant-challenged the first appellate court's reliance on a civil commissioner report to partly decree the suit. The High Court held that the commissioner report was contrary to Panchayat tax records, which showed discrepancies in boundaries and measurements, and was not justified in partly decre

What did the court decide?

The judgment and decree of the First Appellate Court setting aside the trial court's judgment is set aside; the plaintiff's suit is dismissed.

Sri Lakshmana Vs Sri H Chandrappa — Landlord and Tenant | Karnataka HC (2023)

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NC: 2023:KHC:23005 RSA No. 855 of 2011

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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REGULAR SECOND APPEAL NO. 855 OF 2011(INJ)

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BETWEEN:

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SRI LAKSHMANA AGED ABOUT 37 YEARS S/O LATE VEERABHADRAPPA

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SRI PILLA HEMI AGED ABOUT 35 YEARS S/OLATE VEERABHADRAPPA

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SRI SURESH AGED ABOUT 32 YEARS S/O.LATE VEERABHADRAPPA.

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

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ALL ARE RESIDENTS OF KANNUUR VILLAGE & POST BIDARAHALLI HOBLIBANGALORE EAST TALUK PIN CODE NO.562 149.

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…APPELLANTS

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(BY SRI B.V. GANGIREDDY, ADV.)

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AND:

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SRI H. CHANDRAPPA AGED ABOUT 56 YEARS S/O LATE HANUMANTHAPPA R/O KANNUR VILLAGE KANNUR POST, BIDARAHALLI HOBLI BANGALORE EAST TALUK PIN CODE 562 149.

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…RESPONDENT

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(BY SRI M.A. POOVAIAH, ADV., FOR C/R)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., PRAYING AGAINST THE JUDGMENT AND DECREE DATED 11.01.2011 PASSED IN R.A.NO.37/2009 ON THE FILE OF THE PRESIDING OFFICER,FAST TRACK COURT-V,BANGALORE RURAL DISTRICT,BANGALORE,PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED21.03.2009 PASSED IN O.S.NO.544/1999 ON THE FILE OF THE ADDL. II CIVIL JUDGE (JR.DN.),BANGALORE RURAL DISTRICT,BANGALORE.

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NC: 2023:KHC:23005 RSA No. 855 of 2011

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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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This appeal is filed praying to set-aside the judgment

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and decree dated 11.01.2011 passed in R.A.No.37/2009 by Addl. District and Session Judge, Fast Track Court-V, Bangalore Rural District, Bangalore by reversing the judgment and decree dated 21.03.2009 passed in O.S.No.544/1999 passed by the II Addl. Civil Judge (Jr.Dn), Bangalore Rural District, Bangalore.

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The appellants are defendant Nos.1 to 3 and respondent is the plaintiff in OS No.544/1999. The parties are referred to as per their rankings in the trial Court.

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The plaintiff has filed a suit in O.S.No.544/1999 for the relief of permanent injunction restraining the defendants from interfering with peaceful possession and enjoyment of the plaintiff's over the suit schedule property. The suit schedule property is property bearing khaneshumari No.182 situated at Kannur Village, Bidarahalli Hobli, Bengaluru South Taluk measuring East to

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3 - NC: 2023:KHC:23005 RSA No. 855 of 2011

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West - 69 and North to South - 72 bounded on East by Khaneshumari bearing No.108 vacant space belonging to the plaintiff, West by Sarkari Oni, North by Sarkari Oni and South by Khaneshumari bearing No.166 belonging to Doddaramaiah and Chikkaramaiah.

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It is the case of the plaintiff before the Trial Court that he is the absolute owner and in possession of the suit schedule property and all revenue records were standing in his name and he is paying tax. It is further stated that the plaintiff is using the suit schedule property for storing manure and also storing stone slabs. It is stated that the defendants have no manner of right, title or interest over the suit schedule property. It is stated that the defendants tried to interfere with the plaintiff's possession over the suit schedule property by damaging stone slabs and therefore, the plaintiff has filed suit seeking relief of injunction.

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The defendants in their written statement denied all the averments made in the plaint with regard to

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4 - NC: 2023:KHC:23005 RSA No. 855 of 2011

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possession, ownership and also interference over the suit schedule property. The defendants contended that they are in possession of the property in question. The defendants contended that they are the owners and in possession of Khaneshumari No.110, 111 and 112, which was acquired by their father late Veerabhadrappa. It is stated that the defendants' father Veerbadrappa, was in possession and enjoyment of the said property during his life time and after his demise, the defendants are in possession and enjoyment of the said property. The property of the defendants bounded on East by defendants' remaining property, West by Government road, North by Government land and Kempaiah's property and South by Government land in Khaneshumari bearing No.167 and a small extent of Khaneshumari bearing No.108 belonged to the plaintiff. It is stated that Khaneshumari bearing No.111 is measuring East to west - 23 yards and North to South - 14 yards with two tamarind trees. The defendants further stated that the plaintiff has given wrong boundary and wrong measurement of suit

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schedule property, which is the property belonging to the defendants. With this, they prayed for dismissal of the

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suit.

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Based on the aforesaid pleadings, the Trial Court has

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framed the following issues and additional issue:-

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

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

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3. What order or decree?

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Additional Issue No.2(a)

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Whether the plaintiff is entitled for the relief of permanent injunction as prayed?"

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The plaintiff has been examined as PW.1 and got marked ten documents as Exs.P1 to P10 and defendant No.1 has been examined as DW.1 and got examined three more witnesses as DWs.2 to 4 and got marked 32 documents as Exs.D1 to D32. The Trial Court after hearing the arguments and also based on the evidence placed on record has answered all the issues in Negative and

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NC: 2023:KHC:23005 RSA No. 855 of 2011

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dismissed the suit of the plaintiff. Aggrieved by the said judgment and decree passed by the Trial Court, the plaintiff preferred an appeal in R.A.No.37/2009 on the file of Addl. District & Sessions Judge, FTC-V, Bengaluru Rural District, Bengaluru.

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The First Appellate Court appointed the Tahasildar as Court Commissioner for local inspection of the suit schedule property and property of the defendants. The Tahasildar, filed commissioner report along with sketch. The Commissioner has been examined as C.W.1 and he has been cross-examined by the counsel for the appellants-defendants and counsel for respondent-plaintiff. The Commissioner report has been marked as Ex.C1 and a mahazar and sketch have been marked as Ex.C2 and Ex.C3 respectively.

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The First Appellate Court taking into consideration the Commissioner report and sketch prepared by him has held that the plaintiff is in possession of portion of the suit schedule property as per the Commissioner report and

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NC: 2023:KHC:23005 RSA No. 855 of 2011

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therefore, he is not entitled for relief of injunction to the extent shown in the Commissioner report and allowed the appeal in part by setting aside the judgment and decree passed by the Trial Court restraining the defendants from interfering with peaceful possession and enjoyment of the suit schedule property to extent of mahazar (Ex.C2) shown in the Commissioner report.

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Aggrieved by the judgment and decree passed by the First Appellate Court, the defendants have filed this second appeal. The second appeal came to be admitted to consider the following substantial questions of law:-

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"i.Whether the lower appellate Court was justified in setting aside the judgment and decree of the Trial Court and partly decreeing the suit?

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ii. Whether the lower appellate court was justified in decreeing the suit partly by relying upon the Commissioner's report though the said report is contrary to the measurements and boundaries mentioned in the panchayat records?

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iii. Whether the lower appellate court was justified in partly decreeing the suit for permanent injunction for non-existing property of alleged Khaneshumari No.182?

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NC: 2023:KHC:23005 RSA No. 855 of 2011

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Heard the arguments of learned counsel for the appellants and learned counsel for the respondent.

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Learned counsel for the appellants argued that the measurement and boundaries shown by the Court Commissioner in his report and sketch as per Ex.C1 and C3 is contrary to the records and the Commissioner with an intention to help the respondent - plaintiff has prepared the Commissioner Report and Sketch wrongly. He further argued that the suit schedule property bearing Khaneshumari No.182 does not exist and the plaintiff is claiming property of defendants as his property. He argued that on considering the boundaries bearing Khaneshumari No.182, location of the said property comes in property bearing Khaneshumari No.167, which is Government property. The plaintiff's mother-in-law has filed a suit in O.S.No.399/1981 through her power of attorney holder by name Chandrappa and the said Chandrappa is plaintiff herein. The plaint, Ex.D2 has been signed by this plaintiff as a GPA holder and his mother-in-law Smt. Chikkathayamma. The said suit is filed in respect of

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property bearing Khaneshumari No.108. In the description of the said property bearing Khaneshumari No.108 in the plaint, it is shown that the Government property is situated on the Western side. Now, in the plaint of the present suit, the plaintiff has shown that the property bearing Khaneshumari No.182 is situated on the Western side of the property bearing Khaneshumari No.108.

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Learned counsel for the appellants further contends that if the plaintiff was aware that the property is situated on the Western side of Khaneshumari No.108, he ought to have mentioned the same in the plaint in O.S.No.399/1981, as he is the signatory to the said plaint as a General Power of Attorney Holder of his mother-in-law / the plaintiff. He further argued that on considering the tax assessment register at Exs.D3, D4, D6, D7 and D12, the sketch prepared by the Court Commissioner (Ex.C3) is not correct. He further argued that the description of the Government property bearing Khaneshumari No.167 has been stated in Ex.P12, which is the proceedings of the meeting of the Panchayath with

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regard to protection of the tamarind tree, wherein the property bearing Khaneshumari No.108 is stated to be situated on the Eastern side and the property of the defendants bearing Khaneshumari No.111 is situated on the Northern side and the property of Sri.Doddaramaiah and Sri.Chikkaramaiah is stated to be situated on the

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Southern side of the Government property bearing Khaneshumari No.167. The extract of the said resolution is also produced at Ex.D13.

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He further argued that PW1 in his cross examination has stated that ‘ I do not know the boundaries of the suit schedule property ’. He argued that the First Appellate Court has erred in placing reliance on the Commissioner’s report which is not in accordance with the records of the property maintained by the Panchayath ie., tax assessment register, boundaries and the extent mentioned therein. Therefore, the First Appellate Court is not justified in placing reliance on the Commissioner’s report and partly decreeing the suit of the plaintiff.

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11 - NC: 2023:KHC:23005 RSA No. 855 of 2011

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Learned counsel for the respondents argued that Ex.P3 - assessment register extract of the suit schedule property ie., Khaneshumari No.182 shows that it is measuring East to West - 25 gaja and North to South - 24 gaja and it is issued on 06.04.1975 having the boundaries on the Eastern side of Khaneshumari No.108, Western side Oni, Northern side Khaneshumari No.167 and Southern side Khaneshumari No.166. He argued that the boundaries mentioned in Paragraph No.8 of the written statement and Exs.D3 and D4 does not tally. He argued that the Court Commissioner based on the records of the properties has rightly prepared the report and the sketch and the First Appellate Court is justified in partly decreeing the suit of the plaintiff.

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In reply, learned counsel for the appellant submitted that the plaintiff has subsequently filed a suit in O.S.No.630/2011 seeking declaration of title in respect of Khaneshumari No.182 and the relief of mandatory injunction to demolish the construction made by the defendants encroaching the portion of the property and it

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12 - NC: 2023:KHC:23005 RSA No. 855 of 2011

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is pending in the Court of II Additional Civil Judge, Bengaluru (Rural) District, Bengaluru.

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The suit of the plaintiff is for the relief of injunction in respect of the property bearing Khaneshumari No.182 situated at Kannur Village, Bidarahalli Hobli, Bengaluru South Taluk, measuring East to West - 69 feet and North to South - 72 feet. The plaintiff claims possession on the basis of Ex.P1 - extract of tax assessment register of the property bearing Khaneshumari No.182, wherein the name of the plaintiff has been mentioned in Column No.4. Ex.P2 is the extract of the tax demand register, wherein there are entries regarding the property tax in respect of the suit schedule property. Ex.P3 is also the extract of tax assessment register of Khaneshumari No.182 and it is for the year 1975-76. Exs.P5 to P9 are the tax paid receipts of the suit schedule property.

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As per the description of the suit schedule property bearing Khaneshumari No.182, the property belonging to the plaintiff bearing Khaneshumari No.108 is situated on

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13 - NC: 2023:KHC:23005 RSA No. 855 of 2011

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the Eastern side. The description of the property bearing Khaneshumari No.108 in the plaint of O.S.No.399/1981, a Government land is situated on the Western side. The said Ex.D2 – certified copy of the plaint of O.S.No.399/1981 is signed by the plaintiff as a Power of Attorney Holder of the plaintiff - Smt.Chikkatayamma, who is his mother-in-law. The plaintiff who is the son-in-law is stated to be residing along with his mother–in-law and his wife in the property bearing Khaneshumari No.108, as per the averments made in Paragraph No.7 of the said Ex.D2. If the plaintiff is residing in the property bearing Khaneshumari No.108 and if he has filed a suit as a General Power of Attorney Holder in respect of the property bearing Khaneshumari No.108 and if he is claiming the property bearing Khaneshumari No.182 from the year 1975, he ought to have mentioned that the property bearing Khaneshumari No.182 is situated on the Western side of the property bearing Khaneshumari No.108 in Ex.D2 – the plaint of O.S.No.399/1981.

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Ex.D11 is extract of the house tax assessment register for the year 1993-94 in respect of the properties bearing Khaneshumari Nos.167, 168 and 182. As per the boundaries of the property bearing Khaneshumari No.167 mentioned in Ex.D11, the property of one Sri.Sonnappa is situated on the Eastern side and the property of Sri.Doddaramaiah and Sri.Chikkaramaiah is situated on the Southern side and the property of the defendants is situated on the Northern side and the Oni is situated on the Western side and it is measuring East to West 69 feet and North to South 30 feet.

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In the Commissioner’s report, the Commissioner has mentioned that the measurement of Khaneshumari No.167 East to West and North to South have been changed, but there is no basis for the said statement of the Commissioner. As per the house tax assessment extract of Khaneshumari No.167, it measures East to West 69 feet, North to South 30 feet, but the Commissioner has shown the measurements of the said property as East to West 30 feet and North to South 69 feet. As per Ex.D11, the

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property of Sri.Doddaramaiah and Sri.Chikkanramaiah is situated on the Southern side of Khaneshumari No.167, but, the Commissioner has shown that the property bearing Khaneshumari No.182 (suit schedule property) is situated on the Southern side of Khaneshumari No.167. The Court Commissioner in Ex.C3 has shown that the property of Sri.Doddaramaiah and Sri.Chikkaramaiah is on the Southern side of Khaneshumari No.182. The same is contrary to the boundaries stated in Ex.D11 of the property bearing Khaneshumari No.167.

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In Ex.D11, the property of Sri.Veerabhadrappa (father of the defendant) is shown to be situated on the Northern side of Khaneshumari No.167. The Court Commissioner has shown the property of said Sri.Veerabhadrappa on the Eastern side of Khaneshumari No.167. The Court Commissioner in his report has stated that the property bearing Khaneshumari No.111 belonging to Sri.Veerabhadrappa is not situated on the Northern side of Khaneshumari No.167. There is no basis for the said report of the Court Commissioner and it is contrary to the

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description of the property bearing Khaneshumari No.167

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in Ex.D11.

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The Court Commissioner in his report has mentioned that Khaneshumari No.111 overlaps on the property bearing Khaneshumari No.110. Since, the Court Commissioner has shown East to West and North to South measurements of Khaneshumari No.167 differently than that of the records in Ex.D11, the said overlap is occurring in the sketch of the Court Commissioner. If East to West measurement and North to South measurement of Khaneshumari No.167 were to be shown correctly as per the records, then there is no question of overlapping the property bearing Khaneshumari No.111 over Khaneshumari No.110. The plaintiff claims that on the Southern side of his property, the property of Sri.Doddaramaiah and Sri.Chikkaramaiah is situated. But, as per Ex.D11, Sri.Doddaramaiah’s and

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Sri.Chikkaramaiah’s property situated on the Southern side of Khaneshumari No.167.

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Considering the said aspect, it appears that the plaintiff is claiming the property bearing Khaneshumari No.167. The boundaries mentioned in Ex.D11 of Khaneshumari No.167 are inconsonance with the boundaries mentioned in Ex.D6, D7, D8, D10 and D12. In Ex.D20 – the house tax register extract for the year 1993-94, the property of Sri.Veerabhadrappa is said to be situated on the Southern side of the property bearing Khaneshumari Nos.113 and 114. Therefore, the Commissioner’s report - Ex.C1 and the sketch - Ex.C3 are contrary to the measurements and the boundaries mentioned in the Panchayath records.

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The First Appellate Court has swayed away by the Commissioner’s report and the sketch. The First Appellate Court has not ascertained the correct measurement and boundaries of the property of the defendants bearing Khaneshumari Nos.110, 111 and 112 and Khaneshumari No.167 – the Government property as per the Panchayath records Exs.D6, D7, D8, D10 and D12. Therefore, the First Appellate Court is not justified in placing reliance on

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18 - NC: 2023:KHC:23005 RSA No. 855 of 2011

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the Commissioner’s report and the sketch, which are

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contrary to the measurements and the boundaries mentioned in the Panchayath records and partly decreeing the suit.

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I answer substantial questions of law Nos. (i) to (iii) accordingly and proceed to pass the following;

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ORDER

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(i) The appeal is allowed .

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(ii) The judgment and decree passed in R.A.No.37/2009 dated 11.01.2011 by the Additional District and Sessions Judge, Fast Track Court-V, Bengaluru (Rural) District, Bengaluru is set-aside.

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(iii) The dismissal of the plaintiff’s suit as per the judgment and decree of the Trial Court in O.S.No.544/1999 dated 21.03.2009 is affirmed.

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NMS,GH

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Sd/JUDGE

Sri Lakshmana v. Sri H Chandrappa

Case brief

What is this about?

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Sri Lakshmana v. Sri H Chandrappa

Case brief

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