Dismissed

Sri P K Shantharaju v. Sri P R Shivananda

Karnataka HC12 Dec 2024RSA/726/2015

Case brief

AI extract

What is this about?

Plaintiff's second appeal against concurrent dismissal of his suit for permanent injunction over a site and car shed, alleging defendant's encroachment while constructing a commercial complex. Courts found plaintiff failed to establish suit property boundaries; appeal dismissed with liberty to file a comprehensive declaration suit.

What did the court decide?

Appeal dismissed; liberty reserved to plaintiff to file comprehensive suit for declaration regarding suit property.

Sri P K Shantharaju Vs Sri P R Shivananda — Specific Performance | Karnataka HC (2024)

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1 - NC: 2024:KHC:51231 RSA No. 726 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO.726 OF 2015 (INJ)

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BETWEEN:

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SRI P.K. SHANTHARAJU, S/O LATE KARIYAPPA, AGED ABOUT 57 YEARS, R/AT B.M. ROAD, PERIYAPATNA TALUK - 571 107.

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…APPELLANT

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[BY SRI DESHRAJ, ADVOCATE (PH)]

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AND:

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SRI P.R. SHIVANANDA, S/O LATE P.N. RUDRAPPA, AGED ABOUT 60 YEARS, R/AT AANECHOWKURU ROAD, PERIYAPATNA TALUK - 571 107.

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…RESPONDENT

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[BY SRI ABUBACKER SHAFI, ADVOCATE (VC)]

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Digitally signed by ANUSHA V Location: High Court Of Karnataka

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 4.3.2015 PASSED IN R.A.NO.55/2013 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE & JMFC., HUNSUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 15.6.2013 PASSED IN O.S.NO.60/2006 ON THE FILE OF THE CIVIL JUDGE & JMFC., PERIYAPATNA.

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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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NC: 2024:KHC:51231 RSA No. 726 of 2015

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ORAL JUDGMENT

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Challenging judgment and decree dated 04.03.2015 passed by Addl. Senior Civil Judge and JMFC, Hunsur, sitting at Periyapatna in R.A.no.55/2013 and judgment and decree dated 15.06.2013 passed by learned Civil Judge and JMFC, Periyapatna, in O.S.no.60/2006, this appeal is filed.

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Brief facts as stated are that this appeal is by plaintiff in suit for permanent injunction restraining defendant from interfering with or encroaching upon plaintiff's suit property, from removing car shed and from constructing Sajja over suit property or from putting up compound wall over suit property. It was stated property bearing Assessment no.1394/26, situated at Periyapatna town measuring 50ft. North to South and 25ft. East to West in site no.26, wherein a car shed was constructed (‘ suit property ’ for short).

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In plaint, it was stated that plaintiff was owner of

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02 Acres 08 guntas of agricultural land in Sy.no.104/1A of Periyapatna. Upon conversion, a layout was formed. Site no.26 was one of site carved out in layout measuring 25ft. X 50ft. with Assessment no.3094/26, which belonged to plaintiff.

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NC: 2024:KHC:51231 RSA No. 726 of 2015

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Plaintiff put up a car shed measuring 25ft. X 45ft. by obtaining

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license from Periyapatna Town Panchayat on 17.12.2005.

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It was further stated, towards southern side of suit property, defendant had created documents to show he was owning property measuring 45ft.X 60ft. After obtaining license on 13.09.2004, commercial complex was constructed. However, construction was not as per license and defendant had attempted to encroach upon suit property by putting up Sajja and there was also an attempt to demolish car shed in suit property on 08.03.2006. On said cause of action, suit was filed.

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Upon appearance, defendant filed written statement

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denying plaint averments. Defendant also denied existence of any land of plaintiff and boundary description of suit property was disputed. It was stated, defendant had purchased land bearing Sy.no.104/1, measuring 45ft. X 110ft. from plaintiff and his mother under registered sale deed dated 08.05.1972 and was in peaceful possession of same. Subsequently, a portion of it was got converted for non-agricultural purpose, wherein he had constructed commercial complex. An extent of 45ft. X 60ft. thereof was Assessment no.1397. It was alleged

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NC: 2024:KHC:51231 RSA No. 726 of 2015

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that with intention to grab remaining extent plaintiff had filed false suit. It was also stated, defendant had put up temporary shed to store cement and building material and plaintiff had sought to grab said shed. It was further stated, plaintiff had obtained permission from authority to showing 20ft. wide road on eastern side. When officials of Periyapatna Town Panchayat visited spot and measured road, it was found that plaintiff had left only 10.3ft. for road. Therefore, it was evident plaintiff had grabbed public property.

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Based on pleadings, trial Court framed following

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issues.

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1) Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property?

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2) Whether the plaintiff proves the alleged interference of the defendant over the suit schedule property?

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3) What order or decree?

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Thereafter, plaintiff examined himself as PW.1 and got marked Exs.P1 to P21. On other hand, defendant examined himself as DW.1 and got marked Exs.D1 to D23. Court Commissioner was appointed for local inspection. He was examined as CW.1 and his report got marked as Ex.C1.

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NC: 2024:KHC:51231 RSA No. 726 of 2015

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On consideration, trial Court answered issues no.1

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and 2 in negative and issue no.3 by dismissing suit. Aggrieved, plaintiff filed R.A.no.55/2013 on various grounds.

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Based on same, first appellate Court framed

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following points for its consideration.

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1) Whether it is proved the plaintiff is in possession of suit schedule property, as on the date of filing of the suit?

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2) Whether it is proved the defendant has interfered with the plaintiff peaceful possession and enjoyment of the suit property?

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3) Whether the judgment and decree of the trial Court requires to be interfered with?

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4) What order or decree?

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On consideration, it answered points no.1 to 3 in negative and point no.4 by dismissing appeal. Aggrieved against concurrent findings, plaintiff was in second appeal.

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Sri Deshraj, learned counsel for appellant/plaintiff sought to contend that both Courts had concurrently erred in holding that description of suit property of plaintiff was incorrect and dismissed suit on that count. It was submitted, between plaintiff's property and Bengaluru-Mercara road, property of defendant was situated. Said road was lined with

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NC: 2024:KHC:51231 RSA No. 726 of 2015

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Sal trees earlier. Subsequently for bi-laning same, trees were cut and road was widened. Consequently, defendant had lost area for road widening. Though, defendant had obtained building license for construction of commercial complex, he had put up construction in excess area. At that time, defendant had sought to demolish car shed constructed by plaintiff and encroach upon plaintiff's property by claiming measurements of his suit property from edge of widened road.

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Though, plaintiff had elicited admissions about widening of road. It was further submitted, CW.1 – Court Commissioner had clearly depicted location of plaintiff’s car shed and his possession. Therefore, both Courts has grossly erred in disbelieving plaintiff’s claim. On said submission, he submitted following proposed substantial questions of law would arise for consideration and sought for allowing appeal by answering same in favour of plaintiff.

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1. When the plaintiff/appellant's title with reference to the exact measurement and the boundaries had been established, whether the courts below erred in refusing to grant a decree for injunction?

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2. When the BM road was widened, to make it a Highway, the area of the property adjacent to the road got diminished, whether the owner of the suit property is

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7 - NC: 2024:KHC:51231 RSA No. 726 of 2015

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entitled to get proportionate extension of his land towards the other side of the road?

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3. Whether the courts below erred in not examining and giving a finding on the Commissioner's report in its proper perspective?

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4. When the defendant did not seriously dispute the title of the plaintiff, whether the courts below seriously erred in disputing the suit of the appellant?

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On other hand, Sri Abubacker Shafi, learned

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counsel for respondent/defendant sought to oppose appeal. It was submitted, both Courts had concurrently held plaintiff had failed to establish boundaries and location of suit property and same were concurrent findings of fact. Therefore, there was no scope for interference in second appeal. It was further submitted, defendant had already completed construction of commercial complex and admittedly plaintiff did not have any grievance insofar as commercial complex was concerned. It was submitted, there was no allegation of encroachment nor any established. Therefore, he sought dismissal of appeal.

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Heard learned counsel and perused impugned judgment and decree.

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NC: 2024:KHC:51231 RSA No. 726 of 2015

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This is plaintiff’s appeal against concurrent findings

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in suit for permanent injunction. Admittedly, suit was filed for permanent injunction in respect of suit property description of which was as follows:

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"¦jAiÀiÁ¥ÀlÖt vÁ®ÆèPÀÄ, ¦jAiÀiÁ¥ÀlÖt mË£ï ¥ÀAZÁ¬ÄÛ ªÁå¦ÛUÉ ¸ÉÃjzÀ ºÁUÀÆ ¦jAiÀiÁ¥ÀlÖt mË¤£À°ègÀÄªÀ C¸É¸ïªÉÄAmï jf¸ÀÖçgï£À ¥ÀæPÁgÀ 1394/26 gÀ°ègÀÄªÀ - GvÀÛgÀ zÀQëtªÁV 50 CrUÀ¼ÀÄ ºÁUÀÆ ¥ÀÆªÀð - ¥À²ÑªÀÄªÁV 25 CrUÀ¼À C¼ÀvÉ¦AiÀÄ 26£ÉÃ £ÀA§j£À ¤ªÉÃ±À£À ¸ÀzÀj ¤ªÉÃ±À£ÀzÀ M¼ÀUÉ ¤«Äð¹PÉÆArgÀÆ 1 PÁgï ±Éqï, ¤ªÉÃ±À£ÀzÀ ZÀPÀÄÌ§A¢: ¥ÀÆªÀðPÉÌ : gÀ¸ÉÛ, ¥À²ÑªÀÄPÉÌ : ªÁ¢UÉ ¸ÉÃjzÀ 10 £ÉÃ £ÀA§j£À ¨ÉÃgÉ ¤ªÉÃ±À£À GvÀÛgÀPÉÌ : gÀ¸ÉÛ, zÀQëtPÉÌ : ¥ÀæwªÁ¢AiÀÄÄ ¤«Äð¸ÀÄwÛgÀÄªÀ ªÁtÂdÄÀ ªÀÄ½UÉ."

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Cause of action mentioned in plaint was as follows:

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"4. ªÁ¢UÉ ¸ÉÃjzÀ zÁªÁ µÉqÀÆåMï ¸ÀéwÛ£À ªÉÄÃMÉ ¥ÀæwªÁ¢UÉ AiÀiÁªÀÅzÉÃ jÃwAiÀÄ ºÀPÀÄÌ EgÀ¢zÀÝgÀÆ ¸ÀºÀ ¢£ÁAPÀ 08-03-2006 gÀAzÀÄ ¥ÀæwªÁ¢AiÀÄÄ zÁªÁ µÉqÀÆåMï ¸ÀéwÛUÉ CPÀæªÀÄ¥ÀæªÉÃ±À ªÀiÁqÀ®Ä ºÁUÀÆ zÁªÁ µÉqÀÆåMï ¸ÀéwÛ£À°è ªÁ¢AiÀÄÄ ¤«Äð¹PÉÆArgÀÄªÀ PÁgï±Éqï C£ÀÄß QvÀÄÛºÁPÀ®Ä, µÉqÀÆåMï ¸ÀéwÛ£À ªÉÄÃMÉ ¥ÀæwªÁ¢AiÀÄÄ CPÀæªÀÄªÁV PÁA¥ËAqï ¤«Äð¸À®Ä ºÁUÀÆ µÉqÀÆåMï ¸ÀéwÛ£À ªÉÄÃMÁâUÀzÀ°è ¥ÀæwªÁ¢AiÀÄÄ CPÀæªÀÄªÁV ¸ÀeÁÓ ¤«Äð¸À®Ä ¥ÀæAiÀÄwß¸ÀÄwÛgÀÄªÀ ¢£À¢AzÀ®Æ, ªÁ¢AiÀÄÄ ¥ÀæwªÁ¢AiÀÄ£ÀÄß ¨ÉÃn ªÀiÁr ¥ÀæwªÁ¢AiÀÄ CPÀæªÀÄ PÀÈvÀåªÀ£ÀÄß «gÉÆÃ¢¹zÀ ¢£À¢AzÀ®Æ ªÀÄvÀÄÛ EwÛaUÀÆ ªÁ¢UÉ ºÁ° ªÁådå PÁgÀtªÀÅ GAmÁVgÀÄvÀÛzÉ."

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17. While passing impugned judgment and decree, trial

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Court took note of pleadings and referred to oral and documentary evidence. While arriving at conclusion on issues no.1 and 2, it observed that defendant was trying to extend its

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NC: 2024:KHC:51231 RSA No. 726 of 2015

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construction beyond his property by misusing license issued by municipality for construction of commercial complex. It observed that no complaint was filed by plaintiff against defendant before Town Panchayat. It also referred to admission by PW.1 in cross-examination that defendant had put up construction by leaving 20ft. space towards northern side, but, had not left any space between plaintiff and defendant's property, which it found to contrary to plaintiff’s deposition. It also referred to further admission that plaintiff was not claiming any right insofar as property sold to defendant. It observed plaintiff had not produced any current records insofar as suit property. Though, there was allegation about attempt by defendant to demolish car shed, exact location of car shed in plaintiff’s property was not indicated.

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It further observed though Court Commissioner had inspected spot and given report, he had not stated about shed belonging to plaintiff or defendant. It also observed both plaintiff and defendant filed objections against Court Commissioner’s report. Thereafter, taking note of material placed on record by defendant namely sale deed, conversion of land use, blue print, building permission for construction of

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10 -

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NC: 2024:KHC:51231 RSA No. 726 of 2015

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commercial complex, building plan produced by defendant, it held defendant had established construction of commercial complex in accordance with law and without any encroachment. On said findings, it answered plaintiff had failed to establish any interference or encroachment by defendant and dismissed suit.

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In appeal, first appellate Court on reassessment concurred with findings. It observed that Ex.P8 – building plan for construction car shed and Ex.P20 – sketch pertaining to alienated land were vital documents. It observed measurement of land upto road had not been mentioned. And contrary to deposition that defendant had not constructed commercial complex as per license, he admitted in cross-examination that defendant had constructed entire building in extent of property sold to him. It also observed plaintiff had stated, defendant was trying to encroach on his property by constructing Sajja. On going through deposition of DW.1 and exhibits produced, it observed defendant was in peaceful possession of property purchased by him and had constructed commercial complex in extent of 45ft. X 60ft. of area belonging to him, sold by plaintiff and his mother.

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NC: 2024:KHC:51231 RSA No. 726 of 2015

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It also referred to report of Court Commissioner. It observed that in memo of instructions, Court Commissioner was required to take note of width of B.M. Road as existing in year 1972, to find out in which year it was converted into bylane while submitting report. But, CW.1 admitted in crossexamination that at time of site inspection, he was not aware of exact width of road in year 1972. Based on same, it held report of Court Commissioner as unreliable. Consequently, it concurred with findings of trial Court and dismissed appeal.

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From above, it is seen, suit was filed by plaintiff on apprehension about attempt by defendant to encroach on plaintiff’s property for construction of commercial complex. Though, allegations of attempts for encroachment were made as found by both Courts, same were not substantiated. Admittedly, defendant has already completed commercial complex and no grievance about construction being in violation of building license issued has been established. Therefore, it would be appropriate to reserve liberty to plaintiff to file comprehensive suit for declaration in respect of suit property, if, he so desires, since apprehension of plaintiff as espoused in

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NC: 2024:KHC:51231 RSA No. 726 of 2015

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suit is no longer in subsistence and instant suit is only for bare

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injunction.

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None of substantial questions of law as proposed

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arise for consideration. Hence, appeal is dismissed , with

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liberty to file comprehensive suit for declaration.

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Sd/(RAVI V HOSMANI) JUDGE

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GRD List No.: 1 Sl No.: 19

Sri P K Shantharaju v. Sri P R Shivananda

Case brief

What is this about?

What did the court decide?

Sri P K Shantharaju v. Sri P R Shivananda

Case brief

What is this about?

What did the court decide?

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