Sri M D Chandrashekhar Vs Sri Ramesha

SRI. M.D. CHANDRASHEKHAR S/O LATE DASAPPA AGED ABOUT 61 YEARS RESIDING AT NO.289, 5^TH CROSS 1^ST MAIN, GAYECHIPURAM NAZARABAD MOHALLA MYSURU-570 010.

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…APPELLANT

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(BY SRI. T.N. VISWANATHA, ADVOCATE)

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AND:

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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SRI. RAMESHA S/O SRI. BASAVEGOWDA AGED ABOUT 56 YEARS RESIDING AT NO.2924 A RAMANNA STREET SRIRANGAPATNA MANDYA DISTRICT-571 43.

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…RESPONDENT

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 07.08.2024 PASSED IN R.A.NO.211/2023 ON THE FILE OF III ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 21.08.2023 PASSED IN O.S.NO.1425/2012 ON THE FILE OF I ADDITIONAL CIVIL JUDGE AND JMFC, MYSURU.

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NC: 2025:KHC:48258 RSA No. 1617 of 2024

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HC-KAR

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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 H.P.SANDESH

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ORAL JUDGMENT

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This matter is listed for admission. Heard the counsel appearing for the appellant.

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This second appeal is filed against the concurrent finding. The factual matrix of case of plaintiff before the Trial Court while seeking the relief of declaration and permanent injunction shown A, B, C and D properties in the plaint schedule. It is their claim that the plaintiff is the lawful owner of ‘A’ and ‘B’ schedule properties and ‘D’ schedule property which is morefully described in the schedule, defendant illegally and unauthorizedly put up the structure on the ‘D’ schedule property and the same needs to be removed and also it is the contention that defendant is illegally trying to put up further construction over the ‘D’ schedule property and hence, plaintiff is entitled for the relief of declaration as

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HC-KAR

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well as mandatory injunction in respect of the ‘D’ schedule property. The defendant also appeared and contested the matter by filing written statement denying the averments made in the plaint and also contend that no existence of any such ‘D’ schedule property. The Trial Court considering the pleadings of the parties, framed the issues and allowed the parties to lead evidence.

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The plaintiff mainly relies upon the document of Ex.P.13 to show that sale of ‘B’ schedule property in favour of the plaintiff and its existence and hence the Trial Court in paragraph No.17 made an observation that burden is on the plaintiff to prove the physical existence of bit of land in between ‘A’ schedule property and road and except Ex.P.13, the plaintiff has not produced any other document to show the existence of bit of land. Further, in paragraph N o.18 also discussed in detail that the Society before selling the property that is ‘B’ schedule property ought to have confirmed where the bit of land is situated whether it is abutting to the site No.168 or 164 and

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HC-KAR

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Society should have got modified the layout plan and got it approved if the bit of land is existed abutting Site No.174. Before following the procedures, the Society should have informed all the site owners in the said locality and got surveyed the property and then sold the property, but that is not done. Apart from that the Trial Court comes to the conclusion in paragraph No.26 that with regard to the existence of the very property is concerned when the Commissioner was appointed and Commissioner has given the report that there is no bit of land in between the suit schedule property and on the eastern side, there is a road. Therefore, it has to be held that Ex.P.13 was wrongly registered by the Society and hence, comes to the conclusion that in view of no existence of ‘B’ scheduled property and question of granting relief in respect of ‘B’ scheduled property that defendant has approached does not arise and hence, dismissed the suit.

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Being the aggrieved by the judgment and decree of the Trial Court, an appeal is filed before the First

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HC-KAR

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Appellate Court. The First Appellate Court having considered the grounds urged in the appeal memo, formulated the point whether the Trial Court committed an error in dismissing the suit and whether it requires interference. The First Appellate Court also considering both oral and documentary evidence available on record, in paragraph No.33, 34 and 35 taken note of documents of the plaintiff and also in paragraph No.36 taken note of general body meeting, it was declared that the alleged construction by the defendant is in accordance with law and site allotted to the plaintiff is against the law and resolution was also passed to take the action against the Ex-President Ramalingegowda, President Puttegowda, Secretary Suseela and against this plaintiff to lodge a criminal case and also cancelled the earlier sale deed and so also taken note of the case of the defendant in paragraph No.37 and also the answers elicited from the mouth of D.W.1 in paragraph Nos.38, 39 and 40 and also in paragraph Nos.41, 44 and 45 and comes to the

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conclusion that on perusal of the entire documents placed on record, the Society has passed a resolution in order to cancel the bit of land allegedly allotted in favour of the plaintiff and in paragraph No.47 comes to the conclusion that there is no any existence of the ‘B’ schedule property and also comes to the conclusion that Trial Court has not committed any error.

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Being aggrieved by the said concurrent finding, the present second appeal is filed before this Court. The main contention of the counsel appearing for the appellant before this Court is that this Court has to frame substantive question of law that both the Courts have committed an error without assigning independent reasoning and also the claim of the appellant was not appreciated properly and fails to take note of the recitals of the registered document and non application of recitals itself is a question of law that requires to be answered by this Court. On overlooking the oral and documentary evidence passed the judgment and decree and miserably

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HC-KAR

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failed to prove the existence of ‘B’ schedule is erroneous approach of both the Courts and hence, this Court has to admit and frame substantive question of law.

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The counsel in support of his argument relies

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upon judgment passed in Civil Appeal No.3657/2018

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in case of Uma Pandey and Ors V/s Munna Pandey

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and Ors . The counsel brought to notice of this Court paragraph No.15 wherein it is held that it is a settled principle of law that interpretation of any document including its contents or its admissibility in evidence or its effect on the rights of the parties to the list constitute a substantial question of law with the meaning under Section 100 of CPC.

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Having heard the appellant’s counsel and also the substantive question of law indicated in the second appeal and also considering the material on record, Court has to take note of the very pleading of the plaintiff while seeking the relief of declaration and mandatory injunction. The specific case of the plaintiff that ‘A’ schedule property

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was purchased and subsequently ‘B’ schedule property

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was also purchased and the same is a bit of land measuring 10 x 30 feet and the same is also sold by the Society in favour of the plaintiff and the same is also adjacent to the eastern portion of the ‘A’ schedule property. The main contention of the defendant that no such ‘B’ schedule property is in existence and ought not to have sold the same by the Society and also Commissioner was appointed before the Trial Court and Commissioner also inspected the land and given the report that no such existence of ‘B’ schedule property and question of defendant encroaching the ‘D’ schedule property does not arise.

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It is also important to note that at the first instance, ‘B’ schedule property was not sold, but, subsequently it was sold, but it was the case of the plaintiff that there was a bit of land and with regard to the bit of land is concerned, the Trial Court also made an observation having considered the material on record in

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paragraph No.18 after discussing the case of the plaintiff in paragraph No.17 since the plaintiff relies upon the document Ex.P.13 to show that sale of ‘B’ schedule property in favour of the plaintiff and its existence and in paragraph No.18 comes to the conclusion that if Society

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have any bit of land, ought to have got it modified in the layout plan and the same is not done and before following the procedure also, Society ought to have surveyed the property by giving notice to all the owners who are already in the said layout. But, executed Ex.P.13 without following all these procedures and the same has also taken note of and existence of bit of land was not confirmed by the Society from the MUDA or the Mysore City Corporation which is the appropriate authority, but, document of Ex.P.13 was created in respect of the ‘D’ schedule property and even Commissioner report was also taken note of with regard to the existence of the property and Commissioner after inspecting the property, submits the report that no such bit of land is in existence. Apart from that it is also

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the case of the Society that they have cancelled the allotment made in favour of the plaintiff and when such being the case, the Trial Court has not committed any error in coming to the conclusion that ‘B’ schedule property was not in existence and question of defendant encroaching the property which is more fully described in the ‘D’ schedule doesn't arise. Even Appellate Court also having re-assessed both oral and documentary evidence in considering the grounds which have been urged in the appeal memo, taken note of the case of the plaintiff and also the case of the defendant in paragraph Nos.33 to 36 with regard to the claim made by the plaintiff in respect of bit of land as per Ex.P.13 and also general body meeting was held by the Society on 25.08.2013 regarding cancellation of allotment of property to the plaintiff and decision was taken to initiate the criminal prosecution against the Ex-President, Secretary and also the plaintiff. Apart from that defendant also examined witness as D.W.1 and documents were also got marked and taken note of

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admission on the part of evidence of P.W.1 as well as evidence of D.W.1 and particularly taken note of the property was not in existence and also the Society has cancelled the allotment of site in favour of the plaintiff by passing a resolution in the general body meeting that it does not belongs to anyone and eastern portion of the property is only a road and all these materials were considered by the Trial Court as well as the Appellate Court, both question of fact and question of law while considering the material.

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The very contention of the counsel appearing for the appellant that non consideration of recital of the document is also a substantive question of law and no dispute with regard to the principles laid down in the judgment which has been relied upon by the counsel for the appellant and when the very site is not in existence, if any document is executed in favour of the plaintiff in respect of the property which was not in existence and the recital of the document will not quit the issue involved

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HC-KAR

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between the parties and there must be an existence of property and the same is not in existence and the same is also considered by the Trial Court as well as the Appellate Court. Apart from that it is important to note that adjacent property was purchased by the plaintiff that is ‘A’ schedule property measuring 25 x 30 feet. But, document of Ex.P.13 came into existence subsequently that there is a bit of land and no material with regard to the bit of land in existence is concerned and without any documentary proof also sale deed was executed and plan is also not modified from the MUDA or by any competent authority, but, document was sold without any survey or without any modification of the plan or any approved plan and nothing is placed on record while executing the document of Ex.P.13 and these factors were taken note of and hence, the judgment which is relied upon by the counsel for appellant will not comes to the aid of the appellant to admit and frame substantive question of law.

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