Second appeal against first appellate court's reversal of trial court decree declaring plaintiff owner of suit property and directing possession. Court held defendant's categorical admission of plaint boundaries proved identity and title; boundaries prevail over measurement discrepancy. First appellate judgment set aside, trial decree restored.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF MAY, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.1182/2007 (DEC)
BETWEEN:
MOHANACHAR S/O SHANKARAPPACHAR AGED ABOUT 62 YEARS, R/O. KUBATOR VILLAGE, ANAVATTI HOBLI, SORAB TALUK, SHIMOGA DISTRICT-577 429.
… APPELLANT
(BY SRI H.S.SURESHAPPA GOWDA, ADVOCATE)
AND:
1 . K. SREEDHARA S/O. RUDRAPPA SHETTY AGED ABOUT 55 YEARS, R/O. KUBATOOR VILLAGE, ANAVATTI HOBLI, SORAB TALUK, SHIMOGA DISTRICT-577 429.
2 . K. NARAYANACHAR S/O. LAKSHMIKANTHCHAR, (SINCE DECEASED, LRS ARE NOT BROUGHT ON RECORD IN O.S.No.26/90 AND HENCE, NOT MADE AS PARTIES IN THIS APPEAL)
… RESPONDENTS
(BY SRI K.SRIDHAR, ADVOCATE)
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THIS R.S.A. IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 03.01.2007 PASSED IN R.A.NO 53/98 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE, (SR.DN), SAGAR AND ETC.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 28.05.2024, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
J U D G M E N T
This appeal is filed against the judgment and decree dated 03.01.2007 passed in R.A. No.53/1998 on the file the Additional
Civil Judge (Sr. Dn.), Sagar reversing the judgment and decree dated 18.09.1998 passed in O.S.No.26/1990 by the Civil Judge (Jr. Dn.), Soraba.
appellant and the learned counsel appearing for respondent No.1.
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Sannappa of Kubatur village. One Nagappa S/o Keriyappa of Sarekoppa, Kubatur village had purchased the said property on 04.10.1983 through Kariyamma and the said sale deed was registered on 07.10.1983. After purchasing the suit schedule property of vacant site, the said Nagappa got changed the khata to his name. Afterwards the said Nagappa obtained the licence from Kubatur Panchayath on 18.12.1983 to construct a house in the suit schedule property and constructed a Mangalore tiled temporary house with mud walls and let out the entire suit schedule property including the house constructed by him to defendant No.1 in the year 1984 on a monthly rent of Rs.25/-. The tenancy month was starting from first day of each month and ending on the last day of the said month. It is further contended that on 08.03.1989, the said Nagappa sold the entire suit schedule property including the house for a valuable consideration of Rs.2,500/- in favour of the plaintiff and the said sale deed was registered on 09.03.1989 and a symbolic possession was also handed over to the plaintiff by his vendor. Since then, the plaintiff become the owner of the suit schedule property. It is also contended that the plaintiff’s vendor
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Nagappa attorned the tenancy of defendant No.1 intimating that he had sold the property to the plaintiff by way of legal notice dated 04.04.1989 and also informed defendant No.1 to pay the rent for the month of March 1989 onwards to the plaintiff. Since the suit schedule property is required for the plaintiff for bonafide self occupation, he got issued quit notice on 01.05.1989 terminating the tenancy of defendant No.1 by the end of 31.05.1989 and also asked defendant No.1 to pay the arrears of rent from the month of March 1989 up to date. Despite defendant No.1 is aware of the fact that the plaintiff has become the owner of the suit schedule property and he is the tenant under him, had sent a untenable reply denying the title of Nagappa and the plaintiff over the suit schedule property and also the tenancy. It is also contended that defendant No.1 got executed sale deed through defendant No.2 and the said sale deed is not binding on the plaintiff. It is also contended that the plaintiff got issued another legal notice on 03.10.1989 but defendant No.1 did not vacate the suit schedule property. Hence, the plaintiff has filed the suit for the relief of declaration and possession.
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appeared and filed the written statement denying the averments made in the plaint. It is denied that the suit schedule property is the part and parcel of Khaneshumari No.10 of Kubatur village and contended that Keriyamma was not having any title to sell the suit schedule property in favour of Nagappa and also in turn the said Nagappa also not having any right to convey any title in favour of the plaintiff. It is admitted that there exists Mangalore tiled house in the suit schedule property but contended that he had purchased the same from defendant No.2 and defendant No.1 had constructed the said house and denied that he was a tenant from 1984 under Nagappa on monthly rent of Rs.25/- and also contended that defendant No.1 never obtained the property as a tenant and he denied all the averments made in the plaint.
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defendant No.1 got examined as DW1 and got marked the documents at Ex.D1 to D19. The Trial Court having considered both oral and documentary evidence placed on record answered all the issues as affirmative and decreed the suit of the plaintiff declaring that the plaintiff is the owner of the suit schedule property and directed defendant No.1 to hand over the vacant possession of the suit schedule property to the plaintiff within six months and defendant No.1 is also directed to pay Rs.75/towards arrears of rent due from 01.03.1989 to 31.05.1989 and he is further directed to pay Rs.200/- towards loss of rental by way of damages for the unauthorized continuance of possession of the suit schedule property.
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the factum of possession by the defendants since more than 25 years. Contesting defendant No.2 expired during the pendency of the case and the plaintiff failed to bring the legal representatives of deceased defendant No.2 and hence, the suit is abated and so the suit become nullity when it is passed against the dead person.
case without giving a finding as to the boundaries of Khaneshumari Nos.9 and 10?
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Commissioner to demarcate the properties
involved in the facts of the case?
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oral and documentary evidence placed on record rightly comes to the conclusion that the plaintiff has proved the case. The counsel would vehemently contended that with regard to the ownership is concerned, no dispute in respect of Khaneshumari No.10 and defendant No.2 claims that he is the owner in respect of Khaneshumari No.9. The Trial Court also rightly comes to the conclusion that the boundaries will prevail. The First Appellate Court failed to consider the documents at Ex.P1 and P2. The documents at Ex.D5 and D6 disclose that the name of Keriyamma was rounded off and the name of the vendor of the plaintiff i.e., Nagappa was entered. The Trial Court disbelieved the documents and held that the plaintiff is having the title in respect of the suit schedule property. Though defendant No.2 filed the written statement, he has not contested. The counsel would submits that defendant No.1 brought to Court notice that defendant No.2 died but the First Appellate Court fails to take note that the boundaries will prevail and the Trial Court has taken the said fact into consideration but the First Appellate Court erroneously reversed the finding of the Trial Court.
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DW1 was the tenant of the plaintiff. PW1 also categorically admitted in the cross-examination that he has no document to show that defendant No.1 was the tenant under his vendor as well as him and no document is placed to show that the rent has been paid by defendant No.1. Hence, the Trial Court has committed an error in decreeing the suit of the plaintiff and the First Appellate Court has properly re-appreciated the material on record and rightly reversed the judgment and decree of the Trial Court and it does not requires any interference.
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would like to rely upon the boundaries mentioned in the plaint. In the plaint, it is mentioned as east to west 56 feet and north to south 100 feet including temporary Mangalore tiled shed bounded on east by Khaneshumari No.9 i.e., defendant No.2’s property, west by Khaneshumar No.11 i.e., the property of Veerabasaiah, north by pathway and south by cart road. The Court has to take note of the document at Ex.P1 – sale deed executed by Keriyamma in favour of Nagappa wherein she has stated that the property belongs to her mother Hanumakka and khatha stands in the name of her mother and delivered the possession on the date of the sale wherein the description of the property is mentioned as east to west 28 feet (19 mola) and north to south 55 feet (37 mola) and the boundaries are mentioned in terms of the plaint schedule. The other document is Ex.P2 – sale deed of the plaintiff wherein the vendor has stated that he had purchased the property in the year 1983 and also claims that he has constructed the temporary Mangalore tiled shed and the same let out to defendant No.1 on monthly
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rent of respondent.25/- and also informed about the tenancy and attorned the tenancy and given the right to collect the rent and description is given as Khaneshumari No.10 including the Mangalore tiled house measuring east to west 56 feet and north to south 100 feet and the same boundary was given in the sale deed. Having considered these documents, there is no dispute with regard to the boundaries mentioned in the plaint as well as Ex.P1 and P2.
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03.10.1989. The plaintiff also relied upon the document at Ex.P7 which is the licence for the construction of the house and the document at Ex.P8 to show that the property belongs to Hanumakka and her name was rounded off and also her daughter Keriyamma’s name was also rounded off and the plaintiff’s vendor name is found in the document at Ex.P8 that is Village Panchayath revise book. The other document at Ex.P9 is standing in the name of the vendor of the plaintiff.
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–Form No.V – records of rights wherein the name of the vendor of defendant is found and so also in Ex.D3, the name of defendant No.2 is found and in terms of Ex.D4, the name of defendant No.1 is found in the records and in Ex.D5, the name of defendant No.2 was found and so also in Ex.D6 and D7, the name of Veerabasaish Patel was found and so also the vendor of the defendant in Ex.D8 also in Ex.D9, the name of K S Nagappa is mentioned and the tax paid receipts are produced as Ex.D10 and D11 and he claims that he has obtained licence from Mandal Panchayath in terms of Ex.D12, Ex.D13 is the receipt for having paid the licence charges and Ex.D14 for having purchased the material for construction and Ex.D15 is for having purchased the jungle wood and Ex.D16 and D17 are the tax paid receipts and Ex.D18 is the Enumeration form and Ex.D19 is the voter list.
17. Having considered the documentary evidence, this
Court has to consider the oral evidence of the witnesses. The plaintiff in his oral evidence reiterated the plaint averments and he was subjected to cross-examination. In the crossexamination, he admits that before purchasing the property, he
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had seen the documents and also admits that khatha has not been transferred to his name and he claims that the measurement is east to west 50 feet and north to south 120 feet and to all the boundaries, there may be private property and he claims that the property belongs to the husband of Keriyamma that is Eligara Sannappa and when he had purchased the same, there was no house and he claims that Keriyamma constructed a shed and she was residing in the premises that is on the side of the house of Nagappa. He claims that he found the measurement in the Panchayath documents and when he had purchased the property, at that time, Keriyamma was alive and he has not collected any document which was standing in the name of the Keriyamma and except the documents which have been produced before the Court, not having any other documents. The suggestion was made that Khaneshumari No.10 not belongs to Yeligara Kariyamma and the same was denied. It is suggested that the suit schedule property is the part of Khaneshumari No.9 and the same was denied and also admits that she is not having any claim in respect of Khaneshumari No.9 and also admits that she cannot tell the boundaries in
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respect of Khaneshumari No.9 and was also Khaneshumari No.8 and 11.
defendant No.1 is residing is bounded on east by house of Ananthashetty and the property of the defendant No.2, west by Bangaraswamy Gowda’s land, north by cart road and south by pathway. Defendant No.1’s house measurement is east to west 56 feet and north to south 120 feet but denied the suggestion that Ex.P8 is a created document and however admits that Ex.P8 is of the year 1936-37. It is suggested that his vendor was not having any title to sell the property of Khaneshumari No.10 and the same was denied. He admits that in the Panchayath lincence, measurement is not mentioned and also not prepared any sketch. But he paid the fee for obtaining the licence and the suggestion was made that in Ex.P7, the name of Mallapura was strike out and the same was denied that he is not aware of the same and not having any copy of the application given for licence. Witness also admits that not having any document to show that there is any lease agreement between defendant No.1
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and himself and also not having any document of rental receipt but he claims that his vendor has let out the premises to defendant No.1 and not having any accounts for having received the rent. He also admits that after the purchase of the property, he had not demanded the rent from defendant No.1 and he cannot tell the month and date for having rented out the premises to defendant No.1 by his vendor but he claims that after the construction, his vendor let out the premises to defendant No.1 and his vendor constructed the house in the year 1984 and he cannot tell the measurement of the house constructed by his vendor. He admits that except the house in which defendant No.1 is residing, he is not having any other house. He cannot tell the measurement of the premises. He had seen the document of Ex.P2 after reading the same. It is suggested that the suit schedule property was purchased by defendant No.1 from defendant No.2 and the same was denied and also admits that the vendor has colleted the rent from defendant No.1 but not produced any documents in this regard.
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No.9 and the defendant No.1 is residing from last 10 to 12 years in his house with permissive possession and he cannot tell the extent of Khaneshumari No.9 as well as the boundaries. He claims that the suit schedule property is measuring 56 x 100 feet and the same was purchased from Keriyamma and the said property came to Keriyamma through her mother. He admits that when he had purchased the property from Keriyamma, in panchayath record, her name was not there. It suggested that in order to mention his name in Ex.P9, there is no basis, he says that he is not aware of the same. He also admits that in terms of sale deed, khatha has not been transferred in favour of the plaintiff but he claims that the house was built in between 19 feet to 21 feet. The suggestion that the same was constructed by defendant No.1 after purchasing the same from defendant No.2 and the same has been denied. But he claims that he is not having any document to show that for having spent the money but it was constructed in the year 1984. It is also elicited that while handing over the property in favour of defendant No.1, no one was there and he is not having any document to show that having received the rent. He claims that rents are
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received till 1988 at the rate of Rs.25/- but he is not having any account for the same. But he claims that he sold the property in favour of the plaintiff and defendant No.1 was due for one month rent and the same is not mentioned in the sale deed but he claims that he gave the notice in this regard and he also admits that defendant No.1 has given the reply.
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examination that before purchasing the property in Court auction, he has verified the attachment order and receipt and defendant No.2 has informed the same about to him and also admits that Narayanachar is not having any right in respect of Khaneshumari No.10 and also he did not verify how his vendor Narayanachar got the property No.9. He also admits that he cannot tell where Khaneshumari No.10 is situated. He denies the suggestion that he was the tenant on monthly rent of Rs.25/-. He claims that he had constructed the house 12 years ago in the suit schedule property in terms of Ex.D10 and he admits that he had not paid the tax in respect of Khaneshumari No.10 and also admits that Khaneshumari No.10 never belongs to defendant No.2. He admits that he gave the reply in terms of Ex.P4. He admits that on the west of the suit schedule property Khaneshumari No.11 is in existence and the Bangaraswamy Gowda is the son of Veerabasaiah and also he admits that on the north of the suit schedule property, there is a pathway and on the south there is a cart road and on the east Khaneshumari No.9 is located and also he admits that in between the suit schedule property and the property of defendant No.2 there is a
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temporary fencing and he also admits that there is a tamarind tree on the west side fencing and he also admits that both the sons of defendant No.2 are advocates in Bengaluru. It is suggested that even though no right in respect of Khaneshumari No.10, document at Ex.D1 is created and the same is denied.
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that DW1 categorically admitted each and every description of the property i.e., east, west, north and south which has been mentioned in the plaint in the cross-examination and also categorically admits that on the east of the suit schedule property Khaneshumari No.9 is in existence. When such being the case, the First Appellate Court ought not to have comes to the conclusion that the plaintiff was not having any right in respect of the suit schedule property when the very location of the suit schedule property is admitted by DW1 and also it is the specific admission of DW1 that he is not claiming any right in respect of Khaneshumari No.10. The very contention of DW1 in the cross-examination that Khaneshumari No.10 was not in existence, an admission given by DW1 has not been considered by the First Appellate Court and hence it is clear that the property in Khaneshumari Nos.9 and 10 are different and the plaintiff claims the right in respect of Khaneshumari No.10 and the defendant claims right in respect of Khaneshumari No.9. When there is clear a admission given by DW1 in the crossexamination that defendant No.2 is not having any right in respect of Khaneshumari No.10, he cannot tell how his vendor
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got the title in respect of site No.9. No doubt, on the weakness of the defendant, the suit cannot be decreed. But there are documents for having executed the sale deed by Keriyamma in favour of the plaintiff’s vendor in terms of Ex.P1 and also in terms of Ex.P2, the vendor of the plaintiff executed the sale deed in favour of the plaintiff and in all the documents, the boundaries are mentioned as admitted by DW1 in the cross-examination. No doubt, there is a discrepancy in the document at Ex.P1 and P2 but the Court has to take note of the fact that the boundaries mentioned in Ex.P1 and P2 and the Trial Court having taken note of the admission given by DW1 and also the boundaries, came to the conclusion that the boundaries will prevail.
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also important to note that DW1 claims that he had constructed the house 12 years ago and no doubt, in the cross-examination, nothing is elicited from the mouth of DW1 that he was a tenant on monthly rent of Rs.25/- but the document at Ex.P2 clear that defendant No.1 was a tenant. It is also important to note that notice was issued by the vendor of the plaintiff in terms of Ex.P3 to defendant No.1. It is also important to note that DW1 claims that he has got right in respect of Khaneshumari No.9 and also part of Khaneshumari No.10 but no material is placed before the Court for having right in respect of Khaneshumari No.10 but he categorically admitted that Khaneshumari No.10 at no point of time belongs to Narayanachar i.e., defendant No.2 and here he cannot claim in respect of part of Khaneshumari No.10 i.e., suit schedule property. When it is elicited from the mouth of DW1 that he cannot claim any right in respect of Khaneshumari No.10 which is the subject matter of the suit and he also identified the property, the First Appellate Court committed an error in reversing the finding of the Trial Court and fails to take note of the admission given by DW1 and the plaintiff claims the title based on Ex.P1 and P2. Though no documentary proof on record
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that defendant No.1 was a tenant, I have already pointed out that in Ex.P2 which is of the year 1989, it is stated that he was a tenant. The evidence of PW1 and PW2 is clear with regard to the fact that the house was constructed and given to defendant No.1 on rent and hence, the very order passed by the First Appellate Court is not based on the oral and documentary evidence available on record when DW1 admits that he is not having right in respect of Khaneshumari No.10 and his claim is in respect of Khaneshumari No.9 and hence, the First Appellate Court committed an error in setting aside the judgment and decree of the Trial Court. It is also pertinent to note that defendant No.1 not claiming any right in respect of Khaneshumari No.10 and his claim is only in respect of Khaneshumari No.9 and also though he contend that Khaneshumari No.10 is not adjacent to his property but in the cross-examination, he categorically admitted that all the boundaries which have been shown in the plaint wherein also Khaneshumari No.9 is shown as adjacent property of the suit schedule property and he gave categorical admission about the boundary description which has been mentioned in Ex.P1 and P2 and in both the documents, the boundaries are one
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and the same. Though, defendant No.1 contend that extent is different in Ex.P2, he categorically admits the boundaries shown in the plaint in respect of Khaneshumari No.10. Hence, the Trial Court also rightly comes to the conclusion that boundaries will prevail and the same is also a settled law.
defendant No.1 is in respect of Khaneshumari No.9 and the measurement of Khaneshumari No.9 is 28 x 70 feet and not more than that and Ex.D1 is also discloses the same. The plaintiff disputes the very title of the vendor of defendant No.1 i.e., defendant No.2 and defendant No.1 claims that Khaneshumari No.9 was Court auction property but no such title
deed was also produced before the Court. In a case of declaration, it is the burden on the plaintiff to prove his title and possession, not the defendant. The possession has been categorically admitted by defendant No.1 admitting the boundary description of the plaint. It is also important to note that though defendant No.1 disputes that he is not a tenant and the counsel for respondent No.1 would vehemently contend that
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defendant No.1 is not a tenant of plaintiff, no document is produced to show that he is a tenant and this Court already observed that in the document of Ex.P2, it is mentioned that defendant No.1 was the tenant in respect of portion of the property of Khaneshumari No.10. But defendant No.1 claims that he is the owner in respect of Khaneshumari No.9. Hence, it is clear that defendant No.1 claims that he is in possession of part of Khaneshumari No.10 and hence, the Trial Court has rightly assessed both oral and documentary evidence placed on record and directed defendant No.1 to hand over the vacant possession of the suit schedule property to the plaintiff within six months from the date of the judgment and also directed defendant No.1 to pay Rs.75/- towards arrears of rent due from 01.03.1989 to 31.05.1989 and further directed to pay Rs.200/towards loss of rental by way of damages for the unauthorized continuation of possession of suit schedule property. The First Appellate Court fails to consider all these material available on record which has been discussed above. Hence, I answer first substantial question of law as affirmative in coming to the conclusion that the First Appellate Court finding is not based on
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the material available on record and admission with regard to the boundaries of plaintiff’s property has not been considered.
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and asked to attorn the tenancy. The evidence of PW2 and PW3 has not been discredited in the cross-examination regarding as tenant. The evidence of PW3 also not challenged. When the identity of the property has been proved by leading evidence by the plaintiff and also by examining PW2 and PW3 as well as DW1 has given categorical admission in respect of the boundaries i.e., east, west, north and south which has been clearly disclosed in the plaint and the same is also in consonance with the boundaries mentioned in the Ex.P1 and P2 i.e., the sale deed of the plaintiff as well as the sale deed of the vendor of the plaintiff. When this Court comes to the conclusion that the reasoning given by the Trial Court that boundaries will prevail is correct and the same is a settled principle of law, the question of appointment of Court Commissioner also does not arise. Hence, the second substantial question of law is answered as negative and the same is not warranted in view of the clear admission on the part of DW1 and since, there is no dispute with regard to the identity of the suit schedule property as the same has been proved by the plaintiff.
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following:
ORDER
The regular second appeal is allowed.
The impugned judgment and decree dated 03.01.2007 passed in R.A. No.53/1998 by the First Appellate Court is set aside and the judgment and decree dated 18.09.1998 passed in O.S.No.26/1990 by the Trial Court is restored by confirming the same.
Sd/JUDGE
SN
2 issues framed by the court
Whether the courts below were justified in deciding the case without a finding on the boundaries of Khaneshumari Nos.9 and 10?
Whether appointment of a Commissioner to demarcate the properties was necessary?
1 provisions across 1 enactments
Mohanachar S/o Shankarappachar
K. Sreedhara S/o Rudrappa Shetty
K. Narayanachar S/o Lakshmikanthchar
H.P. Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
