Kempaiah Vs Kempadevamma

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGEMENT AND DECREE DATED 13.11.2012 PASSED IN R.A.NO.17/2011 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, MALAVALLI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED

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HC-KAR

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12.04.2011 PASSED IN O.S.NO.33/2003 ON THE FILE OF CIVIL JUDGE AND JMFC, MALAVALLI.

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

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CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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ORAL JUDGMENT

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This second appeal is arising from divergent finding in a suit for injunction.

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The plaintiff filed a suit in respect of the property, which is described as under:

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SCHEDULE

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The property being a residential house bearing Janjer No.944/861, measuring East-West: 30 feet and North-South: 39 feet, consisting 5 feet galli towards the southern side of the house property, situated at Belakavadi Village, B.G.Pura Hobli, Malavalli Taluk, the same is bounded on:

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East : Mallegowda’s Hittalu West : Road North : House of Nadagowda South : 5 feet galli and house of Muddamma

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As can be noticed from the said description referred to above, the plaintiff is claiming possession over 5 feet passage on the southern side on the premise that the

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passage is part of the property which she has purchased. The claim is based on the registered sale deed dated 07.10.1985 executed in favour of the plaintiff. The further averment in the plaint would reveal that the defendants are in occupation of the property to the south of the passage mentioned in the plaint.

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The defendants resisted the suit contending that the plaintiff is not the owner of the passage, which is in existence between the house of the plaintiff and the defendants. The defendants claim that the passage is meant for the use of the plaintiff as well as the defendants.

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After considering the materials on record, the Trial Court has dismissed the suit on the premise that the plaintiff has not purchased the passage and she has purchased the property only upto the northern edge of the passage.

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The plaintiff filed first appeal and first appeal is allowed and the suit is consequently decreed. First Appellate Court holds that the passage is also part of the sale deed marked at Ex.P.1.

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HC-KAR

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The defendants are in second appeal. On

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21.01.2020, this Court has admitted the appeal and framed

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the following substantial questions of law:

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“1. Whether the lower appellate Court failed to consider that in a suit for injunction based on registered sale deed, could the plaintiff usurp the southern boundary and claim that Galli on the southern boundary was part and parcel of the property purchased by him?

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2. Whether there is any infirmity in appreciation of evidence by the lower appellate Court to overturn the judgment and decree of Trial Court?”

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The learned counsel appearing for the

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defendants/appellants would urge that the registered sale deed marked at Ex.P.1 would disclose the southern boundary of the property purchased by the plaintiff as passage as well as the property of Muddamma, the mother of defendant No.1. Thus, it is his contention that 5 feet passage to the south of the property purchased by the plaintiff was not part of the sale deed and the plaintiff cannot claim exclusive right over

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the said passage.

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HC-KAR

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It is submitted that the passage is used by the plaintiff and the defendants jointly and First Appellate Court erred in reading the sale deed in favour of the plaintiff and also erred in appreciating the oral evidence led by the parties.

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It is his further contention that the suit being one for simple injunction, it was the burden of the plaintiff to establish that the passage is also part of the property which she has purchased under the registered sale deed dated 07.10.1985. When the plaintiff has come out with a specific contention that she has purchased the property under the registered sale deed dated 07.10.1985, it was the burden of the plaintiff to establish that the property measured 30 feet North-South and 39 feet East-West. He would submit that the recital in the sale deed does not indicate that 5 feet passage is also sold.

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There is no appearance on behalf of the respondent.

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This Court has considered the contentions raised at the Bar and perused the records.

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HC-KAR

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In the boundary mentioned in the sale deed dated 07.10.1985, it is noticed that southern boundary is shown as passage measuring 5 feet and the house of Muddamma. It is also admitted fact that house of Muddamma is located to the south of 5 feet passage.

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If at all the passage was sold, probably the recital in the sale deed would have read as "to the south, the property of Muddamma". However, the recital in the sale deed would reveal that, to the south, the property is bounded by 5 feet passage as well as the property of Muddamma.

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What is relevant to notice is North-South length of the property purchased is shown as 30 feet commencing from the property of Nadagowda.

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As can be noticed from the records, no document is produced to establish the north south distance between the property of Nadagowda and 5 feet passage.

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The plaintiff was under obligation to prove this aspect by producing necessary materials or atleast file securing the survey report in respect of the property. Unfortunately, that is not done.

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HC-KAR

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This being the position, this Court is of the view that First Appellate Court could not have concluded that the property sold under the sale deed dated 07.10.1985 also covers 5 feet passage shown in the plaint.

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As already noticed, the recital in the sale deed is a bit ambiguous. This Court is of the view that the controversy can be resolved in case the property covered by the sale deed is measured and the distance between the property of Nadagowda and 5 feet passage is ascertained, from the report of the Court Commissioner, the Court will be in a better position to ascertain as to whether the property sold to the plaintiff is up to the northern edge of the 5 feet passage or upto the house of the defendant.

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Since the suit is filed in the year 2003, this Court

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is of the view that the matter can be remitted to the First Appellate Court instead of remitting the matter to the Trial Court to carry out this exercise.

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Hence, the following:

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ORDER

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(i) The appeal is allowed in part.

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(ii) The judgment and decree dated 13.11.2012 passed in R.A.No.17/2011 passed by the Senior Civil Judge, Malavalli, are set aside.

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(iii) The matter is remitted to First Appellate Court with a direction to appoint a Survey Commissioner to measure the suit property with reference to the boundaries shown in the sale deed at Ex.P.1.

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(iv) The Court Commissioner shall ascertain the distance between the property of Nadagowda and the suit passage. The Court thereafter shall arrive at a finding as to whether the passage is part of the property sold to the plaintiff.

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(v) If the passage is within 30 feet from the property of Nadagowda, then the passage is the property purchased by the plaintiff. If the passage is beyond 30 feet from the property of Nadagowda, then the plaintiff cannot claim ownership over the said passage.

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(vi) Registry to remit the records to the First Appellate Court.

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Sd/(ANANT RAMANATH HEGDE) JUDGE

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MD/List No.: 1 Sl No.: 16

Kempaiah v. Kempadevamma

Case brief

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Kempaiah v. Kempadevamma

Case brief

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