Dismissed

Sri Maddu Krishna v. Smt Kamalamma

Karnataka HC21 Oct 2024RSA/1319/2012

Case brief

AI extract

What is this about?

Second appeal over a suit seeking declaration of title and injunctions regarding a disputed vacant space beside a house in Chitradurga. First appellate court had reversed trial court findings, treating defendants' admissions as stray admissions. High Court found concurrent findings that sale deed showed no western vacant space, held plaintiff failed to establish title or adverse possession, found

What the court decided

AI extract

Sri Maddu Krishna Vs Smt Kamalamma — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:42103 RSA No. 1319 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21^ST DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO.1319 OF 2012 (DEC)

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BETWEEN:

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SRI MADDU KRISHNA, S/O LATE VENUGOPALAIAH, AGED ABOUT 73 YEARS, R/O KOLIBURUJANAHATTY, CHITRADURGA CITY - 577 501.

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SRI Y. RAMANNA, S/O LATE VENUGOPALAIAH, AGED ABOUT 71 YEARS, R/O NO.71, 4^TH CROSS, KSRTC LAYOUT, J.P. NAGAR 2^ND PHASE, BANGALORE-560 076.

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SRI Y. GOPALKRISHNA, SINCE DECEASED BY HIS LR'S

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3(a) MRS. VINUTHA, AGED ABOUT 53 YEARS, W/O LATE Y GOPALAKRISHNA,

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Digitally signed by ANUSHA V Location: High Court Of Karnataka

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3(b) MR. VIJAY C.G., S/O LATE Y. GOPALAKRISHNA, AGED ABOUT 31 YEARS,

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3(c) MR. MURALI C.G., S/O LATE Y GOPALAKRISHNA, AGED ABOUT 29 YEARS,

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APPELLANTS NO.3(a) TO 3(c) ARE R/O BASAVESHWARA NAGAR, BANGALORE - 560 079.

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…APPELLANTS

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[BY SRI G. NATARAJ, ADVOCATE (PH)]

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2 - NC: 2024:KHC:42103 RSA No. 1319 of 2012

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AND:

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SMT. KAMALAMMA, W/O SATHYANARAYANA, AGED ABOUT 37 YEARS, R/O KASTURBA ROAD, SHIMOGA CITY - 577 201.

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SMT SHOBA, W/O JAGADEESHA, AGED ABOUT 46 YEARS R/O KOLIBURUJINAHATTY, CHITRADURGA CITY - 577 501.

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SRI GIRISH, S/O LATE C ANNAPPA, AGED ABOUT 44 YEARS, R/O KASTURBA ROAD, SHIMOGA CITY - 577 201.

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SRI REVENASIDDAPPA, S/O DARI GIDDAPPA, AGED ABOUT 61 YEARS, ASI(RETD), KOLIBURUJINAHATTY, CHITRADURGA CITY - 577 501.

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…RESPONDENTS

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(BY SRI B.M. SIDDAPPA, ADVOCATE FOR R1 TO R3 (VC); V/O DTD 3.6.2024 APPEAL AGAINST R4 IS DISMISSED AS ABATED)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT & DECREE DTD 14.12.2011 PASSED IN R.A.NO.39/2006 ON THE FILE OF 2^ND ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT, CHITRADURGA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 8.3.2006 PASSED IN O.S.NO.188/1998 ON THE FILE OF 2^ND ADDITIONAL CIVIL JUDGE (JR.DN.) & JMFC, CHITRADURGA.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI

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3 - NC: 2024:KHC:42103 RSA No. 1319 of 2012

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ORAL JUDGMENT

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Challenging judgment and decree dated 14.12.2011 passed by II Addl. Senior Civil Judge & Addl. MACT., Chitradurga, in R.A.no.39/2006 and judgment and decree dated 08.03.2006 passed by II Additional Civil Judge (Jr.Dn.) and JMFC, Chitradurga, in O.S.NO.188/1998, this appeal is filed.

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Sri G. Natraj, learned counsel for appellants submitted, this appeal was by plaintiff against divergent findings. It was submitted, O.S.no.188/1998 was filed for declaration that plaintiff was owner of suit property marked as 'ABCD' , measuring 10 ft. X 32 ft. of vacant space towards Western side (' suit property ' for short) with consequential relief of permanent injunction against interference with peaceful possession and mandatory injunction directing defendants to remove compound wall stones, already constructed latrine rooms and to handover vacant possession of suit property etc.

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In plaint, it was stated, originally vacant site and old black tiled roofed house bearing khata no.1089, 786/900 and 1089 and door no.499, situated in 1^st block, Chitradurga, measuring East to West - 44 ft. and North to South - 32 ft.

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NC: 2024:KHC:42103 RSA No. 1319 of 2012

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That, house was on Eastern side measuring East-West - 34ft.

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and North-South-32ft. and remaining vacant portion towards Western side measuring 10ft. X 32ft. was a disputed vacant space. It was stated, even defendant had vacant site towards Western side of this vacant portion, but constructed a house by encroaching on plaintiff's vacant portion. It was stated, when plaintiff intended to construct compound wall around vacant space, defendants obstructed plaintiff from stocking construction material. It was stated there was illegal construction of latrine towards Western side of old house and construction material was stocked for further construction and if same was permitted, plaintiff would loose vacant space. It was stated illegal construction was put up by abusing official position by defendant no.1, working in Police Department. As there was harassment, suit for declaration was filed.

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On service of summons, defendants entered appearance and filed written statement denying title and possession of suit property by plaintiff. Existence of vacant space belonging to plaintiff and its encroachment by defendants were denied. It was alleged, reliefs were not properly valued and adequate Court fee paid. It was stated, one Medakarappa,

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5 - NC: 2024:KHC:42103 RSA No. 1319 of 2012

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who owned houses and sites was grandfather of defendant no.1. He had seven sons, namely Masiyappa, Obalappa, Sannappa, Honnappa, Narasimhappa, Chikkanna and Bharmappa. Defendant no.1 was son of Sri Chikkanna. It was further stated, three brothers had left their houses and site in favour of Chikkanna for installation of Goddess/God Masiyamma, Anjaneya, Ganapathi, Mylaralingeshwara and Katte Chowdamma. And that Chikkanna had installed said God/Goddesses in house and vacant site.

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It was further stated that defendant no.1 had five brothers namely, Vasudeva, Nagaraja, Krishnamurthy, Narayana and Medakarappa of whom Vasudeva was adopted by his uncle Bharmappa. Vasudeva had given up his right in house and site bearing assessment no.1118/875/810 in favour of defendant no.1. Likewise, property bearing no.1117/824/808 left to Chikkanna was also mutated in his favour. Thus, he was owner in possession of above properties. Further, defendant no.2 had married younger sister of defendant no.1 and was therefore allowed to reside in house and site by worshipping God/Goddesses till regular temple was constructed. And that Smt.Pramila wife of defendant no.2 had purchased vacant site

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NC: 2024:KHC:42103 RSA No. 1319 of 2012

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to Western side of properties of defendant no.1, bearing assessment no.1127A/832/816A and khata no.1127A measuring 15³ /4 ft. X 50 ft. with vacant site of defendant no.1 on its Eastern side. It was stated, there was no vacant site on Western side of plaintiff's site and therefore, plaintiff was not entitled for any relief.

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After amendment of plaint, defendant no.2 filed additional written statement denying ownership of plaintiff over suit property. Defendant no.1 had filed memo adopting additional written statement of defendant no.2. Allegation of putting up construction in violation of orders of interim injunction were denied. It was stated, father of defendant no.1 had constructed compound wall in year 1948 and latrine in year 1971, much prior to filing of suit and grant of temporary injunction. It was stated vacant space of 11ft. X 9 ft. situated on Western side of alleged old house of plaintiff belonged to defendant no.1 and his brothers and plaintiff had no right, title or interest in same.

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Based on pleadings, trial court framed following:

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NC: 2024:KHC:42103 RSA No. 1319 of 2012

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Issues :

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1) Whether the plaintiff proves that he is the owner and in possession of the suit schedule property measuring 11 X 9 yards as shown in ABC in rough sketch?

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2) Whether plaintiff further proves the defendants obstruction and interference of the suit schedule property?

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3) Whether defendants prove that there is no vacant site to west of old black tiled house belonging to plaintiff but it belongs to defendant No.1 as contended in para 12 of the defence?

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4) Whether plaintiff proves that he is entitled for the reliefs of declaration and permanent injunction as sought for in the plaint?

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5) What order and decree?

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Addl. Issues :

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1) Whether plaintiff proves that the defendants after filing the suit have put up a compound towards the western side measuring 11 X 9 yards in the suit schedule property violating order of T.I. and also constructed a latrine as shown in the rough sketch marked as ABCD?

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2) If so, whether the said illegal construction is to be got removed by an order of mandatory injunction?

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3) Whether plaintiff is entitled for possession of the encroached area from the defendants?

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4) Whether plaintiff proves that defendants put a compound towards western side 10X32 feet in the suit schedule property by violating the injunction order, as shown in the rough sketch marked as A, B, C.D?

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8. Thereafter, plaintiff got examined himself and

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another as PWs 1 and 2 and got marked Exhibits P1 to 13. In

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rebuttal, defendant no.2 got himself and four others examined as DWs.1 to 5 and got marked Exhibits D1 to 17. Court Commissioner appointed was examined as CW.1 and Exhibits C1 to 8 were marked.

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On consideration, trial Court answered issue no.1 partly in affirmative; issue no.2, additional issues no.2 and 4 in affirmative, issue no.3 and additional issue no.3 in negative, issues no.4 and 5 as per final order and additional issue no.1 as not arising for consideration. Based on said conclusions, trial Court decreed suit in part, restraining defendants, their agents etc. from interfering with peaceful possession and enjoyment of suit property and issued mandatory injunction directing defendants to remove compound wall stones and latrine room within two months.

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Aggrieved, defendants no.1 and 2 preferred R.A.no.39/2006 before II Addl. Senior Civil Judge & Addl. MACT., Chitradurga (herein after referred to as ' FAC '). It was contended trial Court erred in holding that plaintiff was in possession and enjoyment of suit property, and considering Ex.P-9 sale deed for boundaries and possession. It erred in decreeing suit based on stray admission and failed to consider

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9 - NC: 2024:KHC:42103 RSA No. 1319 of 2012

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oral and documentary evidence of defendants. It failed to consider that property of plaintiff and defendants was totally different and there was no interference by them. Further, Exs.P.9 to 13 did not relate to suit property, but, considered as such by trial Court etc.

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Based on contentions, first appellate Court framed following points for consideration:

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1) Whether the trial court has committed any error in appreciating the oral and documentary evidence produced b y both the parties?

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2) Whether the trial court has committed any error that though there is no admission by DW-1 and 5 about plaintiff's possession but wrongly considered that DW-1 and 5 have admitted the possession of plaintiff?

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3) Whether the suit is bad for non-joinder of necessary parties?

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4) Whether the impugned judgment is perverse, illegal and arbitrary and the same is required to be set aside in its entirety?

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5) What order?

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Under impugned judgment, it answered points no.1,

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2 and 4 in affirmative, point no.3 in negative and point no.5 by allowing appeal, setting aside judgment and decree of trial Court and dismissing plaintiff's suit. It was submitted, said order suffered from various infirmities giving rise to substantial

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NC: 2024:KHC:42103 RSA No. 1319 of 2012

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question of law and sought for allowing appeal by answering same in favour of appellants.

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It was submitted, as per Ex.P.9 - sale deed, plaintiff was in possession of suit property. Further, defendant no.2 examined as DW1 admitted that suit property belonged to plaintiff and further that brother of plaintiff had kept vacant space towards Western side for people to walk. Same was corroborated by other witnesses of defendants. However, said material evidence was ignored by FAC.

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It was submitted, trial Court relied on said material to hold plaintiff was having title and possession over suit property. On other hand, defendants utterly failed to lead any specific evidence to establish title over suit property. Hence, reversal of finding of trial Court by FAC was unsustainable.

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It was submitted, Court Commissioner in his report at Ex.C.8 had noted construction of compound wall of 6 and 1/2 ft. in height 11ft. in width and 30.4 ft. in length. Thus, even Commissioner's report supported existence of vacant space towards Western side of plaintiff's house. It was submitted, in view of above grounds, following substantial question of law would arise for consideration:

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NC: 2024:KHC:42103 RSA No. 1319 of 2012

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" Whether the First Appellate Court was justified in not taking into account the admission being made by the defendants/respondents regarding the possession of the suit schedule property and still then putting burden on the plaintiff to substantiate the Issue?"

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Learned counsel sought for answering same in favour of appellant, set aside judgment and decree of FAC and restore that of trial Court.

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On other hand, Sri B.M. Siddappa, learned counsel appearing through Video conferencing sought to oppose appeal. It was submitted, plaintiff's claim was admittedly in excess of extent mentioned in registered sale deed - Ex.P.9.

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It was submitted Court Commissioner had submitted report by referring to Ex.P.9 - sale deed about nonexistence of vacant space as per registered sale deed. Referring to same, trail Court held plaintiff lacked title over suit property. It was submitted, in absence of title, there would be no question of granting relief of possession.

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Further, referring to photographs at Exs.D.14 to 17, trial Court had held there was construction of compound wall in suit property by defendants. However, there was no basis for its conclusion that said construction was after filing of suit.

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NC: 2024:KHC:42103 RSA No. 1319 of 2012

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Hence, FAC set-aside findings. It was submitted, since reversal was on question of fact, there was no scope for interference in Second Appeal and sought for its dismissal.

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From above, while giving finding on issue no.1, trial Court referred to deposition of PW.1, wherein, it found him unable to depose about particulars of suit property namely property number, it's measurements and title deed under which it was acquired and duration of possession. Even referring to Ex.P9 - Sale Deed relied upon by plaintiff to substantiate title, it observes same was in respect of house property. It observed, initially plaintiff had sought relief in respect of 11 X 9 arms length, but later amended it as 10 X 12 feet shown as 'ABCD'. Referring to above oral and documentary evidence, it held plaintiff failed to establish title and ownership of suit property. It however, proceeded to grant relief of permanent injunction against interference with suit property and mandatory injunction to remove compound wall stones and latrine room from suit property, referring to admissions by defendant no.2 examined as DW-1 that suit property was kept vacant by plaintiff corroborated by DW-5.

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NC: 2024:KHC:42103 RSA No. 1319 of 2012

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It is seen against categorical rejection of relief of declaration of title, plaintiff did not either prefer appeal or filed cross appeal in appeal filed by defendants. Learned Judge of FAC, on re-appreciation, observes neither Ex.P9, title deed based on which plaintiff was seeking relief, nor Exs.P6 to P8 contain any recital about existence of disputed vacant space on 'western side of black tiled house'. It also referred to plaintiff's deposition wherein he admitted there was no door or windows on western side of his black tiled house. It observes, front door of plaintiff's house was on eastern side and there was no mention about existence of any backyard. It observes that finding of trial Court about possession was solely on admission of DW-1 and DW-5, which it found to be stray admission.

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Insofar as admission, FAC observes that there were no suggestion made to DW-1 and DW-5 on behalf of plaintiff that plaintiff was in possession and enjoyment of suit property. It observed, DW-1 had admitted plaintiff and his brothers had left space for devotees to go to house of defendants, wherein deities were established would not amount to admission about plaintiff's possession over suit property. It concluded such admission being contrary to recitals in Ex.P9, which did not

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NC: 2024:KHC:42103 RSA No. 1319 of 2012

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indicate existence of vacant space, would be a stray admission. It further held, in absence of claim by plaintiff to have been unauthorized occupation and perfected title by way of adverse possession, no relief could be granted to plaintiff.

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Further, while considering report submitted by Court Commissioner, it observes that sketch, report and deposition of Court Commissioner was with reference to Ex.P9 and even vacant space shown was more than claimed by plaintiff. Thereafter applying principle of law that plaintiff who has approached Court seeking declaration of title has to establish his case on his own and cannot rely solely on weakness of defendants, overturned finding of trial Court and reversed decree.

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Though, as per decision of Hon'ble Supreme Court in Pakeerappa Rai v. Seethamma Hengsu and Ors. , reported in 2001 (9) SCC 521 , held that there cannot be reappreciation of evidence and even gross errors on facts cannot be corrected in an appeal under Section 100 of CPC. After careful perusal of Ex.P9 - sale deed, both trial Court as well as FAC have arrived at concurrent finding of fact that it shows existence of vacant space of 7 arms length on front side of

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NC: 2024:KHC:42103 RSA No. 1319 of 2012

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house, without any recital or reference to vacant space on 'western side' of black tiled house, which is description of suit property in plaint.

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Trial Court has categorically held plaintiff failed to establish title over suit property. Admittedly, plaintiff neither pleaded nor established satisfaction of requirements of law for declaration of title by way of adverse possession. Hence, trial Court committed grave error in granting relief based on admissions of defendants, which are found to be stray admission by FAC, which finding is after re-appreciation of entire material on record.

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In view of above, no substantial question of law as proposed arises for consideration. Consequently, following:

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ORDER

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Appeal is dismissed with costs throughout.

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Sd/(RAVI V HOSMANI) JUDGE

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Psg*

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List No.: 1 Sl No.: 34

Sri Maddu Krishna v. Smt Kamalamma

Case brief

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What the court decided

Sri Maddu Krishna v. Smt Kamalamma

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