Sri. Ramappa Vs Sri. v. Srinivasa Murthy

SRI. V. SRINIVASA MURTHY S/O. LATE. VENKATARAMAIAH, AGED ABOUT 73 YEARS R/O. NO. 279, DR. VINAYAKAM ROAD, N.R. EXTENSION, CHINTAMANI CITY, CHIKKABALLAPURA DISTRICT - 563 125.

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(BY SRI. G. PAPI REDDY, SR. COUNSEL FOR SRI. VARUN PAPI REDDY, ADVOCATE)

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…RESPONDENT

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 12.03.2021 PASSED IN RA.NO.11/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., CHINTAMANI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 01.01.2019 PASSED IN OS.NO.163/2017 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC., CHINTAMANI.

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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 V SRISHANANDA

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ORAL JUDGMENT

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Heard learned counsel for both the parties.

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Present appeal is filed by the defendant

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challenging the judgment passed in RA No.11/2019 in

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reversing the judgment passed in O.S.No.163/2017.

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Facts in brief which are utmost necessary for

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disposal of the appeal are as under:

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3.1. A suit for permanent injunction came to be filed by the plaintiff by contending that he is the owner in possession of the immovable property which is described as under and hereinafter referred to as suit schedule property:

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Land bearing Sy.No.5/2 measuring 4 acres 14 guntas, assessed at Rs.8.52 paisa situated at Kongathimmanahalli village, Kasaba Hobli, Chinthamani Taluk is bounded as follows:

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East by – Land of defendant

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West by – Own land North by – Sy.No.5/3 and 5/4 South by – Land of Krishnappa and Narayanappa

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3.2. Plaintiff further contended that he purchased

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the suit property from Sri.Venkatanarayanappa through registered sale deed dated 24.08.1967 and from that date onwards, he is in possession and enjoyment of the suit property to the extent of 3 acres 17 guntas. But when he was put into possession of the land based on the boundaries, the land measured 4 acres 14 guntas and plaintiff was in possession of 4 acre 14 guntas. Suit property was part of the land bearing Sy.No.5 totally measuring 23 acres 34 guntas.

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3.3. The land was further phoded in the year 1968

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and Sy.No.5 was divided to five hissa agreeing for the joint survey and boundaries were fixed. At that juncture,

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father of the defendant was also party to the survey proceedings and he did not object for the survey being

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conducted and boundaries being fixed and by affixing his signature on the survey sketch.

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When the matter stood thus, in the year 2012, defendant filed an appeal before the Technical Assistant of Deputy Commissioner and DDLR, Chikkaballapur challenging the hissa and survey which took place in the year 1968.

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In the said appeal, defendant contended that father of the defendant had purchased 3 acres in the land bearing Sy.No.5 and on 30.01.2014, Assistant to the Deputy Commissioner and DDLR, directed the ADLR to resurvey the land bearing Sy.No.5/1 and 5/2.

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It is also contended by the plaintiff that in the meantime, defendant in active collusion with the revenue authorities, got mutated his name in respect of 34 guntas of the land bearing Sy.No.5/2 without any legal basis.

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Based on the said revenue entries, he started

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interfering with the suit and therefore, suit for permanent injunction came to be filed by the plaintiff.

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Pursuant to the suit summons, defendant entered appearance and denied all the material

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allegations.

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He also contended that he is in possession being the owner of the land in Sy.No.5 measuring 3 acres and sought for dismissal of the suit.

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Suit on contest came to be dismissed.

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Being aggrieved by the same, plaintiff filed an

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appeal before the First Appellate Court in RA No.11/2019.

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Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and on reappreciation of the material on record, allowed the appeal and decreed the suit of the plaintiff.

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Being further aggrieved by the same, defendant has filed the present appeal on following grounds and substantial questions of law are raised which reads as under:

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GROUNDS

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The judgment and decree passed by the Appellate court is illegal, unsustainable and liable to be set aside. The learned Appellate Judge has failed to apply mind to the contentions raised in the written statement of Defendant & documentary evidence available on record. Having noticed the extent mentioned in the sale deed dated 24.08.1967 has erred allowing the appeal. The learned appellate judge was not legally justified in ignoring the extent of land in sale deed relying the case in Rame Gowda (D) by Lrs Vs M. Varadappa Naidu (D) by Lrs and another. The Defendant never used any unlawful method and as admitted in cross examination of PW1, the Appellant-Defendant never interfered with possession of the Plaintiff. The reasoning of the first Appellate Court to answer the points formulated in the appeal are unsustainable legally as well as factually. The order of the Appellate Court is vitiated, illegal and liable to be set aside.

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Findings of the Appellate court on issues are perverse, illegal, erroneous and unsustainable. The Appellate Court erred in holding that the Plaintiff to show his possession in respect of 4 acres 14 guntas as produced Ex. P1 to Ex. P3 which are of the year 20132014. However, Plaintiff himself stated in the plaint that he has filed an appeal against the order of DDLR

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however, the order passed by the DDLR has not been challenged and even appeal number also not been furnished to the Court. Nevertheless, the Plaintiff participated in the proceedings before the DDLR cannot claim that the defendant has illegal made entry in respect of 34 guntas of land in respect of Sy No.5/2, without considering the documents and order passed by the DDLR and legally appreciating the oral and documentary evidence, facts and circumstances in entirety and merely on the basis of unreliable oral evidence of PW1 decreed the appeal. Hence, findings are illegal and liable to be set aside.

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In the cross-examination he has stated as under:

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............ನನ� 3 ಎಕ� 17 �ಂ� ಜ�ನ�� ಟ �� ಎಂದ� �ಜ.......... 1968 ರ�� ಆ��ವ �ೕ� ತ� ಇ"� ಎಂದ� #$�ಲ� . ಆಕರಣ'( � ಪ* $+, -ೕಲ. ನ/ 0�ದ1 � -ೕಲ. ನ/ನಂ17 -2012 - 13 ಎಂ20�ದ1 � ಎಂದ� �ಜ. ಅ-ೕಲ. ನ/ಯ�� ನನ� 5ೕ6ೕಸ8 ಂ,21 ಎಂದ� �ಜ. -ೕಲ. ನ/ಯ /9ರ+� :; <=1 � >ೕ��?�ೕ;.

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Having noticed the fact that having participated in the proceedings before the DDLR, the Plaintiff has not challenged the order of DDLR and the appellate court has erred in holding that Appellant herein has used unlawful method by placing reliance on the case of Rame Gowda (D) by Lrs Vs M. Varadappa Naidu (D) by Lrs and another.

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It is submitted that though the same vendor had sold the land to the Plaintiff and defendant, there is mention in the sale deed dated 03.03.1965 executed in favour of the Appellant herein that there was land on the western side which belonged to the Vendor and the same was sold in favour of the Plaintiff. But mere

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mention about the remaining land belonged to the he vendor; it does not disclose the extent of land available in the Sy Number. Therefore, out 23 acres 34 guntas of land in SY No.5 after phodi it was subdivided into 5 hissa and Sy No.5/1 measured 7 acre 06 guntas, Sy No.5/2 measure 4 acre 14 (including 34 guntas of Appellant's land), Sy No.5/3 measured 4 acres 10 guntas, SY No.5/4 measured 3 acres 34 guntas and Sy No.5/5 measured 4 acre 10 guntas. The Appellate Court has erred in not considering the fact the vendor cannot handover the possession of the land more than what has been sold in favour of the Plaintiff. Mere wrong entry of extent in the RTC does not create any ownership than what was sold actually.

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It is held by the Appellate court that the plaintiff is in the possession of 4 acres 14 guntas of land and Defendant is in possession of land measuring 3 acres. If that would be the case the total land in SY No.5 exceed than what actually it was. It is true that Appellant-Defendant is in possession of 3 acres of land but the Plaintiff under the impression that is in possession of 4 acre 14 guntas of land as mentioned in the RTC by wrong notion. But as per the resurvey report both the parties are in correct possession of their land. The Appellate court has erred by holding that the Plaintiff is possession of 4 acres 14 guntas and Defendant also is in possession of 3 acres of land and both are not interring with each other.

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The finding recorded in paragraph 25 of Judgment by the Appellate court that the Trial Judge has not considered that revenue records from 1968 but Plaintiff has not produced any records of the year 1968. EX.P8 is Patta book which does not say when it was issued. The Appellate Court's finding in para 25 is erroneous and without application of mind.

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SUBSTANTIAL QUESTIONS OF LAW

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1. Whether the Appellate court is justified in recording a finding that the Plaintiff has proved the possession of 4 acre 14 guntas merely on basis of entry made in the RTC without considering the evidence?

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2. Whether the Appellate court was justified in decreeing the appeal even after holding that the plaintiff's sale deed is only related 3 acres 17 guntas and mere wrong entry in RTC and patta book create any legal right and which was rectified by the DDLR/ADLR?

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During the course of arguments, learned Senior Counsel representing the respondent has filed an affidavit. Affidavit reads as under:

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I, V. Srinivasa Murthy son of Late Venkataramaiah, aged about 79 yours, residing at No. 279, Dr. Vinayakam Road, N.R. Extension, Chintamani Town, now at Bengaluru, do hereby solemnly affirm and State on oath as follows:

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1) I am the respondent herein and am fully conversant with the facts deposing hereto.

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2) I had instituted Suit O.S.No. 163/2017 is the court of principal civil Judge and JMFC, Chintamani seeking a decree for Permanent injunction restraining the appellant/defendant from interfering with my peaceful possession and enjoyment of the Land measuring 4 acres 14 guntas in Sy.No.5/2 situate at Kongathimmanahalli, Kasaba Hobli, Chintamani Taluk, Chikkaballapur District bounded on the East by land of

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Ramappa (defendant), west by land belonging to me, North by Lands bearing Sy Nos. 5/3 and 5/4, and South by Lands of krishnappa and Narayanappa. The appellant/defendant contested the Said suit. The trial court had dismissed the said Swit by its Judgement and decree dated 01-01-2019. Aggrieved by the said Judgment and Decree I preferred an appeal R.A.No.11 of 2019 to the court of Senior Civil Judge and JMFC at Chintamani. The appeal so filed was allowed by setting aside the Judgement and Decree of the trial court and decreed my suit granting Permanent injunction against the appellant/defendant Vide Judgement and Decree dated 12-03-

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2021.

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3) As against the said Judgement and Decree of the First Appellate Court, the appellant has preferred the above appeal. The appellant has disputed the correctness of the extent of land measuring 4 acres 14 guntas in Sv. No. 5/2 while contending that the extent of Land shown in the registered Sale Dead dated 2408-1967 executed in my favor is only 3 acres 17 quntas. Thus, there is nо dispute in respect of the land measuring 3 acres 17 guntas in Sy.No 5/2 of Kongathimmanahalli. In order to put quietus to the dispute I am restricting my claim to the land measuring 3 acres 17 guntas is Sy. No.5/2 instead of 4 acres 14 Guntas.

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Therefore, I pray that this Hon'ble court be pleased to partly allow the above appeal by modifying the Judgement and Decree dated 12-03-2021 passed by the Court of Senior Civil Judge and JMFC, at Chintamani is R.A No. 11/2019 granting Permanent injunction against the appellant herein respect of the land specified in the schedule hereunder:

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SCHEDULE

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Sy.No. 5/2 measuring 3 acres 17 guntas situate at Kongathimmanahalli, kasaba Hobli, Chintamani Taluk, Chikaballapur District and bounded on:

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East by :Land of Ramappa (defendant),

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West by: Land belonging to the plaintiff (V. srinivasa Murthy),

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North by: Lands bearing Sy. No.5/3 and 5/4,

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South by: Lands of Krishnappa and Narayanappa

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As per the contents of the affidavit, even

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though in the suit schedule, plaintiff has sought for 4 acres 14 guntas of the land, plaintiff has now restricted the claim only with regard to the land mentioned in his sale deed to the extent of 3 acres 17 guntas.

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Placing the affidavit on record, appeal can be disposed of inasmuch as all the apprehensions of the defendant gets nullified as the plaintiff is not interfering with three acres of the land of the appellant/defendant.

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As such, this Court does not deem it fit to

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answer the substantial questions of law and appeal can be disposed of by placing the affidavit on record.

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Hence, the following:

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ORDER

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i. Appeal stands disposed of by placing the affidavit filed by the respondent/plaintiff.

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ii. Office is directed to pass the modified decree in terms of the affidavit filed by the respondent/plaintiff appending the copy of the affidavit as part of the decree.

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iii. No order as to costs.

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Sd/(V SRISHANANDA) JUDGE

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KAV List No.: 1 Sl No.: 70 CT: BHK

Sri. Ramappa v. Sri. v Srinivasa Murthy

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Sri. Ramappa v. Sri. v Srinivasa Murthy

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