Dismissed

Smt. Andal v. Sri.B.D. Mahadevappa

Karnataka HC5 Apr 2024RSA/499/2024

Case brief

AI extract

What is this about?

Plaintiff sued to recover possession of encroached portions of his land based on title; defendants claimed limitation and maintainability without declaration. Courts below decreed recovery of possession; the High Court dismissed the second appeal holding no substantial question of law arose.

What the court decided

AI extract

Smt. Andal Vs Sri.B.D. Mahadevappa — Property and Title | Karnataka HC (2024)

¶1

¶2

NC: 2024:KHC:14220 RSA No. 499 of 2024

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 5^TH DAY OF APRIL, 2024

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 499 OF 2024 (POS)

¶7

BETWEEN:

¶8

SMT. ANDAL W/O LATE G RAJENDRAN AGED ABOUT 60 YEARS

¶9

SMT RATHNAMMA W/O HANUMANTHANAIKA AGED ABOUT 60 YEARS

¶10

BOTH ARE RESIDING AT METIKUPPE ROAD HANUMANTHANAGARA KASABA HOBLI, H D KOTE TOWN H D KOTE TALUK MYSURU DISTRICT 571 114

¶11

…APPELLANTS

¶12

(BY SRI V.F.KUMBAR, ADVOCATE)

¶13

Digitally signed by SUMA B N Location: High Court of Karnataka

¶14

AND:

¶15

SRI B.D.MAHADEVAPPA S/O LATE DEVAPPA AGED ABOUT 49 YEARS R/AT METIKUPPE ROAD H D KOTE TALUK MYSURU DISTRICT - 571 114

¶16

…RESPONDENT

¶17

THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 22.11.2023 PASSED IN RA NO.180/2022 ON THE FILE OF V ADDITIONAL DISTRICT JUDGE, MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE

¶18

¶19

NC: 2024:KHC:14220 RSA No. 499 of 2024

¶20

DATED 22.06.2022 PASSED IN OS NO.123/2015 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, H.D. KOTE.

¶21

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

¶22

JUDGMENT

¶23

This appeal is by defendant nos.1 and 2 against the judgment and decree dated 22.11.2023 passed in R.A.No.180/2022 on the file of V Additional District Judge, Mysuru, dismissing the said appeal filed by them by confirming the judgment and decree dated 22.06.2022 passed in O.S.No.123/2015 on the file of the Senior Civil Judge & JMFC, H.D.Kote.

¶24

The above suit is filed by the plaintiff seeking relief of recovery of vacant possession of item nos.2 and 3 of the suit schedule properties along with mesne profits. The case of the plaintiff is that,

¶25

(a) The land bearing Survey No.301 (old Survey No.165/1) originally measured 4 acre 20 guntas, which is described as item no.1 in the plaint, situated at H.D.Kote, Kasaba Hobli, H.D.Kote Taluk, belonged to one Kempegowda, he having acquired the same in

¶26

¶27

NC: 2024:KHC:14220 RSA No. 499 of 2024

¶28

terms of a grant dated 24.12.1976. That the said Kempegowda sold the same to the plaintiff in terms of a deed of sale dated 25.03.1996, ever since then, the plaintiff has been in possession of the property as absolute owner and the revenue records were mutated in his name.

¶29

(b) That the defendants being the owners of neighboring land situated on the western side of the property belonging to the plaintiff without having any right and interest over item no.1 of the suit property tried to encroach or dispossess the plaintiff from the same.

¶30

(c) It is further contended that the plaintiff made a complaint to the local police and also to the Tahsildar, but no action was taken. Therefore, a civil suit in O.S.No.82/2003 was filed by the plaintiff for the relief of permanent injunction against the defendants from interfering with his possession and dispossessing him from item no.1 of the suit property. That the suit was contested by the defendants. That a Court Commissioner was

¶31

¶32

NC: 2024:KHC:14220 RSA No. 499 of 2024

¶33

appointed in the said suit for the purpose of measurement of the land being claimed by the plaintiff and the defendants. The Court Commissioner visited the spot, measured the lands and filed a report on 29.01.2007 and it was confirmed during the process that an extent of 1.14 acres of land forming part of item no.1 of the suit property was encroached upon by defendant no.1. The said portion is described as item no.2 of the suit property. That another extent of 12 guntas of land in item no.1 of the suit property was encroached upon by defendant no.2, which is described as item no.3 of the suit property. The said suit in O.S.No.82/2003 was dismissed by holding that the plaintiff failed to prove that he is in possession of the entire extent of item no.1 of the suit property. As such, he was not entitled for the discretionary relief of permanent injunction.

¶34

(d) It is further contended that defendant nos.1 and 2 had also filed two separate suits in O.S.Nos.50/2008 and 51/2008 against the plaintiff

¶35

5 - NC: 2024:KHC:14220 RSA No. 499 of 2024

¶36

for the relief of permanent injunction alleging that the plaintiff was attempting to encroach upon their lands in Survey Nos.165/2 and Survey No.165/4 (new Sy.No.166/1) of H.D.Kote village, Kasaba Hobli, H.D.Kote Taluk. The said suits were dismissed as the property claimed by the defendants were not identified. The appeals filed challenging the said judgment were also dismissed. The judgment and decree passed in the said suit had thus become final.

¶37

Thus, in the aforesaid background, the present suit is filed by the plaintiff seeking relief of recovery of possession.

¶38

The defendants filed written statement contending that the suit is barred by limitation and the same was also not maintainable as the plaintiff had not sought the relief of declaration. It is further contended that the defendants were not aware of the ownership of the plaintiff over item no.1 of the suit property and he having purchased the same under the deed of sale as claimed in the plaint. It is further contended that defendant nos.1 and 2 are absolute owners of the lands in Sy.Nos.165/2 and 165/4 measuring 4 acres and 2 acres respectively having purchased the same under deeds of sale

¶39

¶40

NC: 2024:KHC:14220 RSA No. 499 of 2024

¶41

dated 28.03.1983 and 18.12.1982 and have been in possession of the same ever since the date of purchase. That they have not encroached upon item nos.2 and 3 of the suit properties as alleged by the plaintiff and as such, delivering of possession would not arise. As such, they sought for dismissal of the suit.

¶42

The trial court framed the following issues for

¶43

consideration:

¶44

Issues

¶45

Whether the plaintiff proves that he was in possession of the item 2 and 3 of the suit schedule properties prior to the alleged encroachment?

¶46

Whether the plaintiff proves the alleged encroachment by the defendants?

¶47

Whether the suit is maintainable without seeking the relief of declaration of title of the plaintiff over the suit properties?

¶48

Whether the suit is barred by law of limitation?

¶49

Whether the court fee paid is insufficient?

¶50

Whether this court has pecuniary jurisdiction to try the suit?

¶51

Whether the plaintiff is entitle for the relief of mesne profits and possession as sought in the plaint?

¶52

What order or decree?

¶53

¶54

NC: 2024:KHC:14220 RSA No. 499 of 2024

¶55

The plaintiff, in order to prove his case, examined himself as PW.1 and exhibited 22 documents. Defendant no.1 examined herself as DW.1 and marked 19 documents. On appreciation of the evidence on record, the trial court answered issue nos.1, 2, 3 and 7 in the affirmative and issue nos.4 to 6 in the negative. Consequently, it decreed the suit as prayed for. Aggrieved by the same, the defendants preferred the appeal in R.A.No.180/2022. Considering the grounds urged therein, the First Appellate Court framed the following points for consideration:

¶56

Points

¶57

Whether the plaintiff is able to substantiate that there is a encroachment by the defendant No.1 to an extent of 1 acre 14 guntas and encroachment by defendant No.2 to an extent of 0-12 guntas in Sy.No.301 i.e., schedule item No.2 and 3?

¶58

Whether the defendant is able to substantiate that Durast order dated 12.4.2001 by ADLR is not binding on the defendants?

¶59

Whether the present suit is not maintainable without seeking declaration?

¶60

What order?

¶61

The First Appellate Court answered point no.1 in the affirmative and point nos.2 and 3 in the negative.

¶62

¶63

NC: 2024:KHC:14220 RSA No. 499 of 2024

¶64

Consequently, it dismissed the appeal. Being aggrieved by the same, the present appeal is filed.

¶65

Learned counsel for the appellants reiterating the grounds urged in the memorandum of appeal submitted that the trial court and the First Appellate Court grossly erred in not appreciating the fact that the appellants have been in possession of their lands in Survey Nos.165/2 and 165/4 ever since they have purchased the same in the years 1980 and 1983 respectively. He submits that merely because the Commissioner's report was filed on 29.01.2007 in the earlier suit, the same could not have been treated as the date of the defendants being in possession of the portion of the property described as item nos.2 and 3 respectively in the plaint. He submits that the trial court and the First Appellate Court ought to have appreciated this aspect of the matter for the purpose of determination of the issue under Article 65 of the Limitation Act. Since this aspect of the matter has not been adverted to by the trial court and the First Appellate Court, the same has resulted in perversity in passing the judgments giving rise to substantial question of law.

¶66

¶67

NC: 2024:KHC:14220 RSA No. 499 of 2024

¶68

Heard. Perused the records.

¶69

The case of the plaintiff is that he is the absolute owner of item no.1 of the suit property being land bearing Survey No.301 measuring 4 acres 20 guntas as described in item no.1 of the schedule to the plaint, he having been acquired the same in terms of the sale deed dated 25.03.1996. The case of the defendants is that they are the absolute owners of the lands in Survey Nos.165/2 and 165/4 each measuring 4 acres and 2 acres respectively. Necessary to note that the defendants do not dispute the title of the plaintiff and the plaintiff is not claiming any right over the property of the defendants either.

¶70

The case of the plaintiff is that the defendants had encroached upon a portion of the schedule properties as described in item nos.2 and 3 respectively and the said encroachment came to the light of the plaintiff when the Commissioner was appointed in the earlier suit in O.S.No.82/2003 which itself had been filed seeking relief of permanent injunction restraining the defendants from interfering with the possession of the plaintiff or encroaching upon portion of item no.1 of the suit property.

¶71

The said suit was dismissed as the Commissioner's report revealed that the defendants having encroached upon the

¶72

10 -

¶73

NC: 2024:KHC:14220 RSA No. 499 of 2024

¶74

portion of the area now mentioned as item nos.2 and 3 of the suit properties. Based on the said discovery of the said fact, the present suit is filed.

¶75

Since the defendants had raised a specific ground of limitation, it was incumbent upon the defendants to have produced the material evidence to show the date from which they have been in occupation and possession of the property belonging to the plaintiff. As already noted, it was not the case of the defendants that they are in possession of the property belonging to the plaintiff. It is equally pertinent to note that even the suits filed by the defendants in O.S.Nos.50/2008 and 51/2008 were dismissed for want of identity of the property being claimed by them. In other words, the defendants were not aware as to whose property they were in possession of. In this admitted factual aspect of the matter, the trial court and the First Appellate Court have applied the provisions of Article 65 of the Limitation Act and have taken the date of encroachment as the one on which the Commissioner had inspected and filed a report. The suit having been filed within 12 years, the trial Court and First Appellate Court have therefore held that the same was not barred by limitation.

¶76

11 -

¶77

NC: 2024:KHC:14220 RSA No. 499 of 2024

¶78

Since the defendants have not disputed the title of the plaintiff, there is no need for the plaintiff to have sought for the relief of declaration. Since material evidence placed on record

¶79

would indicate, as well as now being admitted by the defendants, that they are in possession of item nos.2 and 3 of the suit properties, the relief of recovery of possession based on title granted by the trial court and the First Appellate Court cannot be found fault with. No question of law would arise therefore for consideration. Accordingly, the appeal is

¶80

dismissed .

¶81

Sd/JUDGE

¶82

hkh.

Smt. Andal v. Sri.B.D. Mahadevappa

Case brief

What is this about?

What the court decided

Smt. Andal v. Sri.B.D. Mahadevappa

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri P Muniraju Vs Sri K N Srinivasaiah

Sriramappa Vs Sri Abdul Khudus

Smt Shantamma Vs Smt Mallamma

Mrs. Swetha Thimmaiah Vs Nil

R B Rasheed Vs Smt Rasheeda Begum

Ms. Keerthi S Arabatti Vs Nil