Dismissed

Sri C Venkata Swamy v. Sri H N Shivanna

Karnataka HC19 Sept 2024RFA/158/2005

Case brief

AI extract

What is this about?

Appeal by the plaintiff whose suit for declaration of title over site No.18 and challenge to a rectification deed was dismissed. The High Court affirmed the trial Court, holding boundaries and site number are the leading description, an unrectified survey number error is immaterial, the suit was barred under Section 34 Specific Relief Act for want of possession relief, and was time-barred.

What the court decided

AI extract

Sri C Venkata Swamy Vs Sri H N Shivanna — Specific Performance | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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REGULAR FIRST APPEAL NO.158 OF 2005 (DEC)

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BETWEEN:

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SRI. C. VENKATA SWAMY SINCE DEAD BY HIS LRs

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1(A) SMT. S. NALINAKSHI W/O LATE C. VENKATA SWAMY AGED ABOUT 58 YEARS

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1(B) SRI. NIKHIL V. SWAMY S/O LATE C. VENKATA SWAMY AGED ABOUT 33 YEARS

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1(C) SRI. NAVEETH V. SWAMY S/O LATE C. VENKATA SWAMY AGED ABOUT 28 YEARS

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1(A) TO 1(C) ARE R/AT NO.2652, 8^TH B MAIN BANASHANKARI 2^ND STAGE BIDARAHALLI

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BANGALORE-560 070.

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[CASUE TITLE AMENDED V/O DATED 29.08.2024]

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...APPELLANTS

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(BY SRI. PREMANATH .T.N, ADVOCATE FOR A1(A TO C))

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AND:

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SRI. H.N. SHIVANNA SINCE DEAD BY HIS LR SMT. MAHADEVAMMA W/O LATE SHIVANNA NO.294, 2^ND MAIN, 14^TH CROSS CHENGAIAH LAYOUT TYAGARAJANAGAR BANGALORE-560 028.

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SRI. C. NARAYANA SWAMY HINDU AGED MAJOR S/O K. CHINNAPPA R/AT KATRIGUPPE VILLAGE BANGALORE SOUTH TALUK BANGALORE-86.

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SMT. LAKSHMAMMA W/O T. ANNAIAPPA AGED MORE THAN 59 YEARS R/AT DATTURI RAMANNA GALLI GOLLARPET, BANGALORE-02.

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…RESPONDENTS

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(BY SRI. H.V. NAGARAJA RAO, ADVOCATE FOR R1; R2 - SERVED;

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V/O DATED 20.09.2006 R3 IS DEAD SERVICE OF NOTICE IS DISPENSED WITH)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 04.12.2004 PASSED IN O.S.NO.6640/96 ON THE FILE OF THE VIII ADDL. CITY CIVIL JUDGE, BANGALORE, (CCH-15), DISMISSING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION.

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THIS RFA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 29.08.2024, THIS DAY JUDGMENT WAS PRONOUNCED THEREIN, AS UNDER:

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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C.A.V. JUDGMENT

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The captioned appeal is filed by the plaintiff in O.S.No.6640/1996 assailing the common judgment and

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decree rendered in O.S.Nos.2150/1992 and 6640/1996.

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For the sake of brevity, the parties are referred to as per their rank before the trial Court.

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The plaintiff has filed the present suit seeking a declaration that he is the absolute owner of the suit schedule property and a further declaration is sought to declare that the rectification deed dated 18.12.1990 thereby rectifying the sale deed dated 03.03.1982 executed between defendant No.2 and defendant No.3 as null and void.

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The subject matter of the suit is site No.18. The present plaintiff contends that he has purchased the suit site No.18 formed in Sy.No.65/2 from the original owner Narayanaswamy under registered sale deed dated 29.08.1986 vide Ex.D-1. The plaintiff in O.S.No.6640/1996 assert that the original owner Narayanaswamy i.e., defendant No.2 having sold the suit site in his favour under registered sale deed dated 29.08.1986 had lost his rights and therefore, he had no saleable title to execute the rectification deed in favour of Lakshmamma and therefore, contended that rectification deed is improper, illegal and therefore, declaration is sought to declare the documents as null and void.

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The defendant No.1/Shivanna who is the plaintiff in O.S.No.2150/1992, however, asserts that the original owner Narayanaswamy sold suit site in favour of one Lakshmamma under registered sale deed dated 03.03.1982 vide Ex.P-1. Defendant No.1/Shivanna further contended

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that Narayanaswamy having sold the suit site in 1982 had no saleable title and therefore, he could not have conveyed the very site to the present plaintiff under registered sale deed dated 29.08.1986. Defendant No.1/Shivanna further contended that before purchasing the property from Lakshmamma, he noticed that there is an error in mentioning the survey number and therefore, his vendor Lakshmamma rightly approached the original owner Narayanaswamy who rightly acknowledged the error in mentioning the survey number in the sale deed executed in favour of Lakshmamma. Therefore, by executing rectification deed, the survey number which was originally indicated as 65 was corrected under the rectification deed as 65/2. Defendant No.1 therefore, contended that since he traces his title through Lakshmamma whose sale deed is much prior to the plaintiff's sale deed, the suit filed by the plaintiff in O.S.No.6640/1996 is liable to be dismissed.

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Both parties let in oral and documentary

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evidence. The trial Court clubbed both the suits and common evidence was recorded. Trial Court on proper appreciation of oral and documentary evidence, decreed the suit filed by the defendant No.1/Shivanna in O.S.No.2150/1992 and dismissed the suit filed by the present plaintiff in O.S.No.6640/1996. While dismissing the plaintiff's suit in O.S.No.6640/1996, the trial Court held that plaintiff has failed to prove his title over the property in question. Similarly, issue No.2 was also answered in the negative and trial Court held that plaintiff has failed to prove that rectification deed is null and void. Issue No.4 was answered against the plaintiff and the trial Court held that plaintiff's title was disputed in 1992 and having filed a caveat against defendant No.1/Shivanna in 1992 was aware of the transaction between Lakshmamma and defendant No.1/Shivanna. Therefore, trial Court held that though plaintiff had the knowledge of defendant No.1's title over

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the suit property in 1992, suit is filed in 1996 and therefore, issue was answered against the plaintiff and suit was held to be barred by limitation.

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On these set of reasonings, defendant No.1's suit for bare injunction in O.S.No.2150/1992 is decreed. Consequently, plaintiff's suit in O.S.No.6640/1996 is dismissed.

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Learned counsel appearing for the plaintiff reiterating the grounds would vehemently argue and contend that defendant No.1 has purchased the site in Sy.No.65 and therefore, the rectification deed executed by the original owner Narayanaswamy on 18.12.1990 which is obviously subsequent to registered sale deed obtained by the plaintiff on 29.08.1986 does not convey any title in favour of defendant No.1/Shivanna. Placing reference to the schedule, he would point out that defendant No.1 has

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purchased site in Sy.No.65 and therefore, he cannot lay a claim over site No.18 situated in Sy.No.65/2.

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To buttress his arguments, reliance is placed on the judgment rendered by the Mysuru High Court in the case of Azeezulla Sheriff and Others vs. Bhabhutimu¹ .

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Per contra, learned counsel appearing for the defendant No.1 has addressed his arguments extensively. Referring to para 4 of the plaint in O.S.No.6640/1996, he has tried to impress upon this Court that plaintiff was quite aware of sale made in favour of defendant No.1/Shivanna in 1992 itself. Referring to cross-examination of the plaintiff who is examined as DW.1, he would point out that present plaintiff filed a caveat anticipating the suit by Shivanna in 1992. Plaintiff has identified his signature on the caveat petition and Vakalath and these documents are marked as Exs.D-10 and D-11.

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1 AIR 1973 Mysore 276

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Taking this Court through the relief sought in the suit filed in O.S.No.6640/1996, he would contend that defendant No.1 has succeeded in proving his possession and therefore, it is submitted that present suit filed by plaintiff in O.S.No.6640/1996 is squarely hit by Section 34 as plaintiff is not in possession. Reliance is placed on the judgment rendered in the case of Vasantha vs. Rajalakshmi² and Ram Saran vs. Smt. Ganga Devi³ .

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The next limb of arguments advanced by learned counsel appearing for the defendant No.1 is on identity of property. Placing reliance on the judgment rendered in Harishchandra vs. Narayan & Others⁴ and Siddamma vs. Chikkamma⁵ , he has contended that survey number is of no consequence as the property is identified by site number. He would also bring to the notice of this Court that sites formed are part and parcel of converted lands.

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2 2024 (5) SCC 282

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3 1973 (2) SCC 60 FB

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4 2017 SCC Online Kar 2635

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5 2012 SCC Online Kar 492

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Merely because there is some mis-description, that will not take away the rights granted in favour of plaintiff's vendor Lakshmamma and consequently, the rights created in favour of defendant No.1/Shivanna pursuant to sale deed executed by Lakshmamma. He has stressed upon the fact that description of the property in Ex.P-1 which is sale deed obtained by defendant No.1 and the schedule indicated in the plaint filed in the suit in O.S.No.6640/1996 clearly demonstrates that there is no dispute in regard to identity of the property. Reliance is placed on three judgments rendered in T.Narayan vs. Kanyakumari Builders (P) Ltd.⁶ and Rajanna vs. Sri Shivakumaraswamiji & Others⁷ .

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He would further point out that defendant No.1 has succeeded in substantiating his possession. He has placed reliance on Ex.P-9 which is the building plan and sanctioned plan marked at Ex.P-10 and the photographs

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6 2015 SCC Online Kar 6958

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7 2016 SCC Online Kar 5624

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marked at Ex.P-17 series. Referring to these voluminous oral and documentary evidence, he would contend that defendant No.1 has succeeded in substantiating his title and his possession and therefore, the trial Court was justified in dismissing the suit.

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Heard learned counsel appearing for the plaintiff and learned counsel appearing for the defendants. Perused the records. The following points would arise for consideration:

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1) Whether the finding of the trial Court that plaintiff has failed to prove his title over the suit schedule property and possession as on the date of the suit is perverse and erroneous?

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2) Whether the finding of the trial Court that plaintiff has failed to prove the rectification deed dated 18.12.1990 rectifying the sale deed dated 03.03.1982 between defendant No.2 and defendant No.3 is null and void is perverse?

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3) Whether the suit in the present form is hit under Section 34 and therefore, is not maintainable as plaintiff is not found in possession of the suit schedule property as on the date of filing of the suit?

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4) Whether the trial Court was justified in dismissing the suit as barred by limitation?

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My findings on Point Nos.1 and 2:

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The suit schedule property is admittedly owned by one Narayanaswamy. The subject matter of the suit is site bearing No.18 measuring East-West 30 feet and North South 50 feet situated at Kathriguppe Village, Uttarahalli Hobli, Bengaluru South Taluk. It is also not in dispute that site No.18 is part and parcel of approved layout and the property is also assigned katha No.212/3-18. Narayanaswamy sold the suit property in favour of one Lakshmamma under registered sale deed dated 03.03.1982 vide Ex.P-1. The present plaintiff C.Venkataswamy is

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asserting title over the very suit property on the basis of registered sale deed dated 29.08.1986 vide Ex.D-1. Defendant No.1 has purchased the suit property from Lakshmamma under registered sale deed dated 02.12.1991. Defendant No.1 having noticed that there is error in mentioning survey number called upon his vendor Lakshmamma to get the survey number rectified. It is probably in this context, Lakshmamma obtained the rectification deed on 18.12.1990 from the erstwhile owner Narayanaswamy and the Sy.No.65 is rectified as Sy.No.65/2.

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Before I proceed further, this Court deems it fit to draw a comparative chart of schedule mentioned in Ex.P-1, Ex.D-1 and schedule referred to in the present suit filed in O.S.No.6640/1996 and also in O.S.No.2150/1992.

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Schedule in	Schedule in	Schedule in	Schedule in
Ex.P-1	Ex.D-1	O.S.No.2150/1992	O.S.No.6640/1996
All that piece and parcel of the	All that piece and parcel of vacant site No.18,	The Property bearing No.18, Kaneshmari	All that piece and parcel of the site
property bearing	formed in Sy.No.65/2,	No.212:3, Khatha	NO.18, formed out of
House Katha	(converted order	No.3:162:4,	Sy.No.65/2 of
No.212/3-18, in	No.B.Dis.ALN.SR.32/81-	Kattaraguppa Village,	Kathraguppe Village,

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Converted	82, dt: 18-1-1982, by	Uttarahalli Hobli,	Uttarahalli Hobli,
Sy.No.65, situated at Kathraguppe Village, Uttarahalli Hobli, Bangalore South Taluk, measuring East to West 30' or 9.14 meters, North to South 50' or 15.25 meters in all 139.39 square meters and bounded on:	the Deputy Commissioner (Special), Bangalore Dist) situated at Katharaguppa Village, Uttarahalli Hobli, Bangalore South Taluk, bounded on the: East by : Site No.17 West by : 30' Road North by : 25' Road South by : site No.26	Bangalore South Taluk, measuring East to West 30 feet North to South 50 feet and bounded on East by : Site No.17 Khata No.212:4-17 West by : 30 feet Road North by : 25 feet Road South by : Site No.26 Khatha No.212:6-26	Bangalore South Taluk, measuring East to West 30 feet and North to South 50 feet and bounded on: East by : site No.17 West by : 30 feet Road North by : 25 feet Road South by : site No.26 Wherein, the shed and
East by : Kaneshmari No.212/4-17 West by : Road North by : Road South by : Kaneshmari/Katha No.212/6-26	Measuring East to West 30' feet North to South 50' feet The present market value of the said property is Rs.15,000/-		compound wall is constructed
Along with house measuring 10'x6' roofed by A.C.C. Sheets, constructed with mud and bricks. This house was constructed during the month of January 1982. The present Market Value of the schedule property is Rs.10,000/- (Rupees Ten Thousand Only)

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On comparing the schedule of the suit schedule

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property, this Court is of the view that there is in fact no dispute in regard to identity of the suit schedule property.

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Though survey number is not correctly reflected in the sale deed secured by Lakshmamma vide Ex.P-1, the same is of no consequence having regard to the fact that the said site No.18 is part and parcel of the converted land and therefore, wrong mentioning of survey number is of no consequence. The property is assigned Katha No.212/3-18. On meticulous comparison of all the three schedules culled out supra, the property description, measurement and the boundaries tally and clearly gives an indication that the property claimed by plaintiff and the present defendant No.1/Shivanna are one and the same. Since property is clearly assigned a katha number and the subject matter of the suit being site bearing No.18, the wrong mentioning of survey number is of no consequence. The boundaries mentioned in the sale deed are same and the measurements are also same. Therefore, this Court is of the view that there is no conflict in description indicated in Ex.P-1 and Ex.D-1. The survey number in the sale deed

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obtained by Lakshmamma through oversight is wrongly reflected as Sy.No.65 instead of Sy.No.65/2. Defendant No.1 before purchasing the property from Lakshmamma has noticed the error probably while assigning survey number in the sale deed dated 03.03.1982. Lakshmamma has rightly secured a rectification deed.

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This Court in a reported judgment in the case of Dr. Jayasheela Venu vs. A.F.D'souza⁸ has held that when there is a conflict between boundaries, measurements or between boundaries and property details namely survey number, the Court while appreciating the entire evidence in entirety has to examine as to what is the leading description. In the present case on hand, the boundaries, extent and site No.18 are the leading description. Therefore, wrong mentioning of survey number is not at all fatal to the sale deed. Strictly speaking securing of rectification deed was unwarranted. Probably defendant

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8 RFA.No.1225/2011

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No.1 has exercised caution and has insisted his vendor Lakshmamma to secure rectification deed. Even in absence of rectification deed, defendant No.1 has succeeded in substantiating that the erstwhile owner Narayanaswamy conveyed the suit schedule property under registered sale deed dated 03.03.1982. Therefore, as on 29.08.1986, he had no saleable title subsisting in the suit schedule property. Therefore, he was incompetent to convey right and title in the present suit schedule property under registered sale deed dated 29.08.1986.

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The plaintiff's claim to the suit schedule property is based on a registered sale deed dated 29.08.1986 (Ex.D-1). However, the evidence presented before this Court indicates that the original owner of the property, Narayanaswamy, sold it to Lakshmamma under a registered sale deed dated 03.03.1982 (Ex.P-1). Subsequently, the plaintiff purchased the property from Lakshmamma on 02.12.1991. The plaintiff later noticed an error in the

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survey number mentioned in the sale deed, leading Lakshmamma to obtain a rectification deed on 18.12.1990 from Narayanaswamy, which corrected the survey number from Sy.No.65 to Sy.No.65/2.

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Upon a meticulous comparison of the

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descriptions in Ex.P-1, Ex.D-1, and the schedules in O.S.No.2150/1992 and O.S.No.6640/1996, this Court finds that there is no dispute concerning the identity of the suit property. The property is clearly identifiable as site No.18, measuring 30 feet by 50 feet, situated at Kathriguppe Village, Uttarahalli Hobli, Bengaluru South Taluk, assigned Katha No.212/3-18. The boundaries, measurements, and property details are consistent across all documents. The Supreme Court, in Jayasheela Venu v. A.F. D'souza (supra) , has held that when there is a conflict between boundaries, measurements, or other property details, the Court must determine the "leading description" to ascertain the property's identity. In this case, the site number,

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boundaries, and dimensions provide a clear leading description, rendering the incorrect mention of the survey number inconsequential.

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Further, the rectification deed executed by Narayanaswamy merely clarified this minor discrepancy. In Ramesh Verma (Dead) through L.R.s v. Lajesh Saxena (Dead) through L.R.s and Another⁹ , the Supreme Court held that a rectification deed, which is meant to correct a mistake in the earlier document, does not create new rights but merely corrects an error. Therefore, the plaintiff's challenge to the rectification deed lacks merit, as the property description is otherwise clear and consistent. Consequently, the findings of the trial court on points Nos.1 and 2 are correct and are affirmed. Accordingly, point Nos.1 and 2 formulated by this Court are answered in the Negative.

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9 (2017) 1 SCC 257

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My findings on Point No.3:

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Defendant No.1 has provided substantial evidence of his possession of the suit schedule property, including building plans (Ex.P-9), a sanctioned plan (Ex.P-10), and photographs (Ex.P-17 series), which demonstrate his occupation and construction activities. Additionally, the plaintiff's application in RFA No.158/2005 acknowledges Defendant No.1's possession. The plaintiff’s suit, O.S.No.6640/1996, seeks declaratory relief but does not include a claim for possession, which is a consequential relief necessary under Section 34 of the Specific Relief Act. Given the evidence of Defendant No.1's possession, the plaintiff’s failure to seek possession renders the suit not maintainable. As rightly pointed out by the learned counsel appearing for the defendant No.1, plaintiff has sought relief of declaration

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seeking declaration of title and the rectification deed is challenged by seeking a declaration in that regard and consequential relief of injunction is sought. The records clearly substantiate and strengthens defendant No.1's possession and therefore, in absence of seeking consequential relief of possession, the plaintiff's suit filed in O.S.No.6640/1996 is not maintainable. Accordingly, point No.3 formulated above is answered in the affirmative.

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My findings on point No.4:

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The defendant No.1 filed a bare suit for injunction in 1992. On reading para 4 of the plaint in O.S.No.6640/1996, it is clearly evident that plaintiff had knowledge that defendant No.1 was asserting title over the suit site. Para 4 is relevant and the same is extracted as under:

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"4. That in the year 1992, the second defendant attempted to disturb the possession of the plaintiff, who had put up a compound wall, in as much as one

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room accommodation, for watch and ward in the schedule property, constrained to prevent the injunct the second defendant herein, the plaintiff filed a suit against C.Narayanaswamy, the second defendant herein in O.S.No.1692/92 on the file of the City Civil Court, Bangalore and obtained as order of injunction. The plaintiff engaged the services of one Miss. Usha A.Patil, Advocate, Mayura Building, K.V.Temple Street, Balepet, Bangalore-53 to prosecute the suit."

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Plaintiff is examined as DW.1. It is relevant to note that the present suit filed by the plaintiff is clubbed with defendant No.1's suit filed in O.S.No.2150/1992 and evidence is lead in defendant No.1's bare suit for injunction. Therefore, plaintiff is examined as DW.1. The present plaintiff anticipating that defendant No.1 would approach the civil Court filed a caveat in 1992. Defendant No.1 has produced the caveat filed by plaintiff in caveat application No.1153/1992 and also Vakalath filed by plaintiff along with caveat. The application and vakalath are marked at Exs. D-10 and D-11. The present plaintiff has identified his

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signature on confrontation and the signatures of plaintiff are marked at Exs.D-10(a) and D-11(a).

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Before I proceed further, it would be relevant to cull out the cross-examination of plaintiff. The relevant portion is extracted and the same reads as under:

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"………I have not written any police complaint stating that H.N.Shivanna came and tried to interfere my peaceful possession of site. Prior to filing of O.S.No.6640/1996 I did not file any suit against H.N.Shivanna from 1992 to 1996. Now I see the Caveat application bearing No.1153/1992 and also the Vakalathnama wherein my signatures are found appearing. The caveat application and Vakalath are marked as Ex.D.10 and Ex.D.11. My signature on the caveat and Vakalath are Ex.D.10(a) and Ex.D.11(a). It is true to say that the original suit filed by me against Narayanaswamy and others came to be dismissed. I have seen the production of documents in the police station by H.N.Shivanna when I went to police station in the year 1992. It is true to say that now the schedule site comes within the limits of corporation. Corporation had issued one letter stating till civil suit is disposed off they will not receive the

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betterment charges so I have not paid the betterment charges and that letter was issued to me by corporation in the year 1997-98. I have not produced that letter issued by corporation in this case. It is not true to say that as Corporation did not issue such letter so I have not produced. It is not true to say that as H.N.Shivanna is in possession of suit schedule property so the betterment charges have been taken from H.N.Shivanna. The H.N.Shivanna might have got Plan sanctioned in respect of Survey No.65. It is false to say that the vendor of H.N.Shivanna had purchased the site from Narayanaswamy. Afterwards I have seen the Rectification deed. Witness volunteered that Rectification deed is not relating to his site. About 15 days back I went to my site. The photos produced Ex.P.17 series are not pertaining to my site."

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On examining the above said cross-examination, this Court would find that defendant No.1 has successfully elicited in extracting unequivocal admissions made by the plaintiff that he has seen this document in the police station tendered by defendant No.1/Shivanna when he had visited the Police station in 1992. Plaintiff appears and contest bare suit for injunction in 1992, while present suit seeking

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relief of declaration is filed in 1996. Article 58 of Limitation Act contemplates three years time from the date under which an aggrieved party is seeking declaration within three years. The plaintiff has been aware of Defendant No.1's assertion of title over the suit property since at least 1992, as indicated by his filing of a caveat (Caveat Application No.1153/1992) and his own statements in O.S.No.6640/1996. The plaintiff had three years from the date of this knowledge to file a suit for declaratory relief, as per Article 58 of the Limitation Act. However, the suit was not filed until 1996, which is beyond the statutory period. Therefore, the suit is barred by limitation.

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In the background of factual matrix narrated supra, the present suit filed by the plaintiff in O.S.No.6640/1996 is squarely hit by limitation. Accordingly, point No.4 is answered in the affirmative.

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In view of findings and conclusions recorded supra on the points raised, this Court is of the view that trial Court has properly appreciated the evidence let in by defendant No.1. It is also relevant to note that suit filed by defendant No.1 against the present plaintiff seeking injunction simplicitor in O.S.No.2150/1992 is decreed. Though appeal was filed in RFA.No.159/2005, same is dismissed and no steps are taken by the plaintiff. Trial Court has properly appreciated the cogent and clinching evidence let in by the defendant No.1 in his suit. The finding of the trial Court that the present plaintiff has failed to substantiate his title and possession as on the date of filing of the suit is based on clinching evidence let in by defendant No.1. The present plaintiff has failed to substantiate his locus to question the rectification deed having failed to establish his title over the suit schedule property. Therefore, the judgment and decree rendered by the trial Court does not warrant any interference.

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