Dismissed

Sri J v. Manjunath v City Municipality

Karnataka HC2 Jul 2024RSA/1184/2018

Case brief

AI extract

What is this about?

In this regular second appeal challenging the dismissal of a suit for permanent and mandatory injunction regarding a gramatana property, the High Court of Karnataka held that no substantial question of law under Section 100 of the CPC was made out. The court found the courts below correctly dismissed the suit as the appellant failed to prove ownership, exclusive possession, or the extent of encroa

What did the court decide?

The regular second appeal was dismissed; the impugned judgment and decree of the trial court were affirmed.

Sri J v Manjunath Vs City Municipality — Execution and Attachment | Karnataka HC (2024)

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1 - NC: 2024:KHC:24769 RSA No. 1184 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF JULY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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REGULAR SECOND APPEAL NO. 1184 OF 2018 (PAR)

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BETWEEN:

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SRI J.V.MANJUNATH S/O J.M.P. VEERAPPA, AGED ABOUT 64 YEARS R/O LINGAYATH STREET, JANNAPURA, BHADRAVATHI-577301.

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…APPELLANT

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(BY SRI. MALLIKARJUN C. BASAREDDY, ADVOCATE)

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AND:

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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CITY MUNICIPALITY TARIKERE ROAD, BHADRAVATHI-577301, BY ITS COMMISSIONER.

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SRI. J.P.KUMARAPPA S/OLATE VEERAPPA GOWDA, SINCE DEAD BY HIS LRS

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SMT. SUSHEELAMMA W/O LATE J.P.KUMARAPPA, AGED ABOUT 72 YEARS,

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SRI. J.P.GANGADHARAPPA S/O LATE J.P.KUMARAPPA, AGED ABOUT 49 YEARS,

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SRI. J.P.K.VEERESH S/O LATE J.P.KUMARAPPA, AGED ABOUT 47 YEARS,

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SRI. J.P.PRABHU S/O LATE J.P.KUMARAPPA, AGED ABOUT 46 YEARS,

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SRI. J.P.NAGARAJ S/O LATE J.P.KUMARAPPA, AGED ABOUT 45 YEARS,

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DR. J.P.RAMESH S/O LATE J.P.KUMARAPPA, AGED ABOUT 41 YEARS,

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ALL ARE R/O. HOUSE NO.22, LINGAYATH STREET, JANNAPURA, BHADRAVATHI-577301.

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SMT. MANJULA W/O HALAPPA, AGED ABOUT 52 YEARS, R/O HARIGE, VIDHYANAGARA POST, SHIVAMOGGA-577201.

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SMT. GIRIJA W/O MALLIKARJUNA, AGED ABOUT 50 YEARS, R/O. B.BEERANAHALLI VILLAGE, HOLALUR HOBLI, SHIVAMOGGA TALUK-577201.

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SMT. JALAJA W/O RAJAKUMAR, AGED ABOUT 43 YEARS, R/O ARABILCHI VILLAGE, HOLEHONNUR HOBLI, BHADRAVATHI TALUK-577301.

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KEMPASIDDAIAH (DEAD BY LRS)

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SRI. SIDDARAJU S/O LATE KEMPASIDDAIAH, AGED ABOUT 62 YEARS

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MANJUNATH S/O LATE KEMPASIDDAIAH, AGED ABOUT 54 YEARS

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R11 AND R12 ARE R/O NEAR NOTIFIED AREA COMMISSIONER OFFICE, JANNAPURA, BHADRAVATHI-577301.

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…RESPONDENTS

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(BY SRI. SANJEEV B L., ADVOCATE FOR R1; SRI SANJEEV B.L., ADVOCATE FOR R2 TO R12)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 01.09.2017 PASSED IN R.A.NO.6/2013 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, BHADRAVATHI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 20.10.2012 PASSED IN O.S.NO.212/2005 ON THE FILE OF THE CIVIL JUDGE AND ADDITIONAL JMFC, BHADRAVATHI.

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

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JUDGMENT

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This matter is listed for admission and I have heard the learned counsel for the appellant and learned counsel for respondent No.1 and learned counsel for respondent Nos.2 to 12.

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The factual matrix of the case of the plaintiff before the Trial Court while seeking the relief of permanent injunction and mandatory injunction is that the plaintiff is the owner and khatedar of the suit schedule property i.e., property measuring East to West: 45 feet and North to South: 150 feet bearing Khatha Nos.406/393 and 407/394 situated at Ward No.29, Lingayath Street, Jannapura, Bhadravathi having acquired the same from his grand-father Mallappa, S/o. Muthinapurada Mallappa. Earlier, the suit property which is a gramatana site, was under the administration of New Town Board which was subsequently changed into Notified Area Committee and at present, the suit site has been under the control of 1^st defendant i.e., City Municipality, Bhadravathi.

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It is also contended that the defendant No.2 is the owner of property measuring East to West: 43 feet, North to South: 138 feet which is situated just abutting suit property at its West. A Mangalore tiled house and a cattle shed are also located in the 2^nd defendant’s property. The father of the defendant No.2 by name Veerappa Gowda was the Patel of Jannapura Village and was very influential person and as such, he got entered more extent in the Municipal records without

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having any corresponding title deeds. After the death of said Patel Veerappa Gowda, his son i.e., the defendant No.2, by taking undue advantage of such wrong Municipal entries, encroached an area measuring East to West: 1½ feet and North to South: 90 feet (135 sq.ft.) in the western Voni portion of suit

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property and the same is described as ‘ABCD’ portion in the plaint rough sketch. The defendant No.2 has also constructed a wall by encroaching an area measuring East to West: 1½ feet at South and 1 feet 2 inches at North and North to South: 9 feet 7 inches (12.28 sq.ft.) just abutting to ‘ABCD’ encroached portion at its east, and the same is described as ‘EFGH’ portion in the said rough sketch. In fact, the defendant No.2 has got no right, title and interest over the said encroached portions and he is liable to vacate and handover the same to the plaintiff. The defendant No.1, who is responsible for maintaining proper municipal records, goes on increasing the extent of 2^nd defendant’s property for the reasons best known to him. On the basis of such illegal municipal entries, the defendant No.2 even has sold out certain portion of his property. That being so, the plaintiff has issued several representations to the 1^st defendant to rectify the said

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mistakes, but all his attempts ended in futile. Hence, the plaintiff has preferred an appeal before the Deputy Commissioner, Shimoga in No. Mun(2) CR No.95/96-97, wherein the Deputy Commissioner has given a clear direction to the 1^st defendant to rectify the municipal records. But, even thereafter, the defendant No.1 has failed to make necessary rectifications in the municipal records which clearly goes to show that the defendant No.1 is colluding with the defendant No.2.

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It is also the claim of the plaintiff that towards the eastern side of suit property, the property of one Smt.Lakshmakka which is measuring East to West: 31 feet and North to South: 20½ feet is situated and after the death of said Lakshmakka, the defendant No.3 has occupied the said property and managed to changed the khatha of said property in his name. Earlier, there was a thatched hut in the said property and subsequently, the defendant No.3 has put up a two portioned house. The 1^st defendant is very liberal in increasing the extent of the property occupied by the defendant No.3, for every assessment year and in the year 2000-2001, the measurement of the said property is shown as East to

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West: 45 feet and North to South: 20½. On the basis of said illegal municipal entries, the defendant No.3 has encroached an extent of East to West: 2 feet and North to South: 32 feet (64 sq.ft.) in the eastern portion of suit property which is described in the plaint rough sketch as ‘IJ’ portion and constructed the wall of his house. The defendant No.3 has also encroached an extent of East to West: 1 feet and North to South: 32 feet (32 sq.ft.) in the suit property and the said encroached portion which is described in the plaint rough sketch as ‘KL’ is situated just abutting ‘IJ’ portion at its West. The defendant No.3 has encroached the above said portions of suit property and constructed a house building even without obtaining a valid licence from the defendant No.1 and he is liable to vacate the said encroached portion.

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In pursuance of the suit summons, the defendant

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Nos.1 to 3 have put up their appearance and denied the averments made in the plaint. It is contended by the defendant No.1 that even according to the plaintiff, the proceedings of the Deputy Commissioner was of the year 1985 and therefore, after lapse of 20 years, the plaintiff cannot seek for its enforcement as he looses his right due to impact of law of

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Limitation. It is also contended by the defendant No.1 that without a prayer for the relief of declaration of title of the plaintiff over the suit property and also for the possession of encroached portions, the present suit is not maintainable.

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The defendant No.2 also filed the written statement

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and denied the allegations made in the plaint and more particularly the allegation regarding the measurement of his property as 43 x 138 square feet and also the allegation regarding encroachment of a portion of suit property. It is further contended by defendant No.2 that he has not encroached any portion of the suit property and he is in actual physical possession and enjoyment of his site property from the period of his father.

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The defendant No.3 also filed the written statement and denied the averments made in the plaint and he claims that he is the owner in possession of the property measuring East to West: 41 feet and North to South: 45 feet which is situated towards the western side of suit property and since last about 100 years, himself and his forefathers are/were in peaceful possession and enjoyment of the said property.

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The Trial Court, having considered the material on record, framed the issues and allowed the parties to lead evidence and answered point No.1 as ‘partly affirmative’, in coming to the conclusion that the plaintiff failed to establish his ownership and lawful acquisition of suit property, but he has proved that he is the khatedar in respect of the said property and there is inconsistent pleading in the plaint and also answered other issues with regard to the encroachment made by the defendant Nos.2 and 3 as ‘negative’ and dismissed the suit with cost and even extracted the answers elicited from the mouth of P.W.1.

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Being aggrieved by the said judgment and decree of the Trial Court, an appeal is filed before the First Appellate Court in R.A.No.6/2013. The First Appellate Court, having considered the grounds urged in the appeal memo, formulated the points whether the plaintiff proves that he is the owner and khatedar of the suit schedule property and acquired the same lawfully, whether the plaintiff proves the alleged encroachment of suit schedule property by defendants and whether the appellant has made out ground to lead additional evidence. The First Appellate Court having considered the grounds urged

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and also both oral and documentary evidence placed on record answered point No.1 whether plaintiff proves that he is the owner and khatedar of the suit schedule property and acquired the same lawfully as ‘partly affirmative’ and encroachment has not been accepted by the First Appellate Court also and dismissed the appeal. Being aggrieved by the said judgment of dismissal of suit and confirmation by the First Appellate Court, the present second appeal is filed before this Court.

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Learned counsel appearing for the appellant would vehemently contend that the learned Judge of the Courts below also considered the documents at Ex.P10 and P14 which are the Assessment Register Extract pertaining to property of one Lakshmakka for the year 1964-65. The contents of said documents reveal that they are two different properties bearing Assessment Nos.295 and 296 which were standing in the name of Lakshmakka and the measurement of one property comprising of the attached hut and a vacant place is East to West: 23 feet and North to South: 45 feet and that of another property comprising of two houses and cattle shed is East to West: 18 feet and North to South: 43½ feet. So, the total measurements of these two properties standing in the name of

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Lakshmakka will be worked out East to West: 41 feet and North to South: 45 feet. There is an encroachment at Ex.P10 and Ex.P4, the total area of assessment number 295 and 296 is East to West: 41 feet and North to South: 45 feet, as described in the entry in 1950-51. It is contended that the Trial Court proceeded to dismiss the suit of the plaintiff, which is contrary to the document issued by the Municipality, hence the same is liable to be dismissed.

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Learned counsel would vehemently contend that

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both the Courts declined to accept the case of the plaintiff regarding mandatory injunction and given the finding that there is a finding regarding issue No.2 that the plaintiff has failed to prove the allegation of encroachment and it is contended that both the Courts failed to take note of the Commissioner report. Once the documents regarding measurement of 45 x 150 feet which is accepted by the defendant No.1, the Trial Court cannot go beyond the same, saying that the plaintiff never enjoyed the entire portion, which is contrary to the records and dismissed the suit, which is contrary to record. Hence, this Court has to admit the appeal and frame substantial question of law whether the Courts below rightly dismissed the suit only on the basis of

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the evidence of the defendants regarding their enjoyment in the suit property against illegal documents, whether the Courts below rightly dismissed the suit even though accepted the measurement of the suit property i.e., 45 x 150 feet, but still proceeded to dismiss on the ground that the plaintiff has not enjoyed the said entire portion.

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Per contra, learned counsel for the respondent No.1 and learned counsel for the respondent Nos.2 to 12 would vehemently contend that the Trial Court having taken note of the admission on the part of plaintiff, particularly that he is not having any title in respect of the property, though he claims that he is the owner of the property, not placed any material before the Court to prove the fact that he is the owner of the property. The Trial Court comes to the conclusion that it is an undisputed fact that suit property is a gramatana land and also taken note of the fact that no such hakku patra was given and also taken note of unequivocal admission given by the P.W.1, wherein he categorically admits that in respect of gramatana land, no hakku patra was given to anybody else and only entries are found in the revenue documents. Learned counsels would vehemently contend that when the plaintiff failed to

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prove the extent of land which he is in occupation, the Trial Court taken note of the material on record, though Commissioner report discloses that defendant No.2 encroached western portion of suit property and constructed building in the encroached portion cannot be accepted. Further, as could be seen from the Commissioner’s sketch, the East to West measurement of the building of defendant No.3 is 42½ feet as against the actual width of 41 feet. So, the defendant No.3 was in occupation of 1½ feet excess width. But, the width of suit property at this particular area is shown in the sketch as 44 feet 10 inches. This fact nullifies the contention of the plaintiff that at that particular area, the defendant No.3 has encroached an area measuring East to West: 3 feet and North to South: 32 feet. Apart from this, the excess area, if any that may be occupied by the defendant Nos.2 and 3 may be the portion of property situated towards the western side of 2^nd defendant’s property and eastern side of 3^rd defendant’s property as the case may be and the Trial Court while coming to such conclusion also in detail discussed in Paragraph No.10 of the judgment and dismissed the suit.

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Learned counsels also would submit that the First

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Appellate Court also having taken note of the material on record, reassessed both oral and documentary evidence placed on record, particularly in Paragraph Nos.24, 25, 26 and 27 of the judgment comes to the conclusion that even though documents of Exs.P2, P3, P8 and P85, the defendants have proved the measurement of the suit schedule property East to West: 45 ft. and North to South: 155 ft., but not placed any title deed in respect of the said property as there is no any title deed. Even though the plaintiff has not placed any title deed, as there is no title deed, but failed to prove his ownership over the suit schedule property, but has succeeded in proving that he is the khatedar of the suit schedule property as the very documents produced by the plaintiff i.e., Ex.P8-Assessement Register Extract, Ex.P9-Demand Register Extract, Tax Paid Receipts which are at Exs.P65 and Ex.P67, Encumbrance Certificates which are at Exs.P68 and Ex.P69-Khatha Endorsement clearly prove the fact that the suit schedule property presently stands in the name of the plaintiff. The First Appellate Court also having considered the material on record

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with regard to the encroachment on record and the same is not established, rightly dismissed the appeal.

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Having heard the learned counsel for the appellant and learned counsel for the respondent No.1 and learned counsel for respondent Nos.2 to 12, it is an admitted fact that property belongs to gramatana. The Trial Court as well as the First Appellate Court also taken note of the fact that the plaintiff claims that he is the lawful owner of the said property and the same is acquired by his grand-father and no such document is placed before the Court with regard to the title is concerned, except the revenue documents and khatha was changed in his favour, particularly the documents of Exs.P2, P3, P8 and P85 with regard to the measurement is concerned. When the plaintiff has filed the suit for the relief of permanent injunction and also for mandatory injunction, there must be positive evidence before the Court regarding encroachment is concerned. First of all, the plaintiff has not placed any material to prove that he is in exclusive possession of the property to the extent which he is claiming and title deeds are placed to prove that property is allotted in his favour. Learned counsel for the appellant also brought to notice of this Court that the

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defendants are also not claiming in respect of the property which they are in possession and both the Trial Court and the First Appellate Court also taken note of admission on the part of P.W.1 in his cross-examination and even discussed the evidence of P.W.2 also, wherein he categorically admits that 2^nd defendant was taking his cattle in the said oni and it is his clear admission that from last 4 to 5 years, they are not keeping any cattle, but earlier they were using the very same oni to take their cattle and the same is discussed in Paragraph No.10 of the judgment of the Trial Court.

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The Trial Court also in Paragraph No.10(i) of the judgment, in detail discussed with regard to the extent what is claimed with regard to the encroachment is concerned. Hence, comes to the conclusion that there is no worth material before the Court to hold that the plaintiff ever enjoyed the possession of property which is in fact measuring East to West 45: feet and North to South: 150 feet. Merely on the strength of municipal records, it cannot be concluded that the plaintiff was in occupation of the property measuring 45 x 150 square feet and likewise, solely on the ground that the area of enjoyment by the plaintiff falls shorter than the actual area as mentioned

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in the municipal records, it cannot be held that the remaining area of the suit property will be under the unauthorized enjoyment of the defendant Nos.2 and 3. While granting the relief of permanent injunction, there must be clear material before the Court that the plaintiff is in exclusive possession of the property and the plaintiff also contend that with regard to the ownership is concerned, that there was no hakku patra in respect of the identity of the property and claim that property was allotted to his grand-father and in respect of granting of land to the extent of 45 x 150 feet concerned, no document is placed and unless identity of the property is proved and also the extent of property which he owns, the contention that there is an encroachment by the defendant Nos.2 and 3 cannot be accepted, in the absence of proof of encroachment. Hence, the Trial Court in detail discussed the same and even while granting the relief of mandatory injunction also, first the Court has to come to the conclusion the extent of land which the plaintiff owns and no such material is placed before the Court. Therefore, when the identity of the property to the extent which the plaintiff claims has not been proved, the question of granting the relief of mandatory injunction does not arise and I

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do not find any error committed by the Trial Court and the First Appellate Court in considering the material on record, particularly, taking note of admission on the part of P.Ws.1 and 2 which goes against their own evidence. Hence, no grounds are made out to invoke Section 100 of CPC to admit the appeal

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and frame any substantial question of law.

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Accordingly, the regular second appeal is dismissed.

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Sd/JUDGE

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List No.: 1 Sl No.: 68

Sri J v. Manjunath v City Municipality

Case brief

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Sri J v. Manjunath v City Municipality

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