Smt G Lakshmidevamma Vs G N Krishnamurthy

THIS RSA IS FILED U/S. 100 OF CPC 1908 AGAINST THE JUDGEMENT DECREE DATED 08.02.2017 PASSED IN R.A.NO. 52/2014 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, AND JMFC., SAGAR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 01.04.2014 PASSED IN OS.NO.214/2010 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC., SAGAR AND ETC.

¶25

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

¶26

CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

¶27

ORAL JUDGMENT

¶28

Heard learned Counsel Sri M.S.Rajendra, for second

¶29

appellant.

¶30

Appeal stood dismissed as abated in respect of

¶31

first appellant. Plaintiff No.2 is the appellant in this Second

¶32

3 -

¶33

NC: 2026:KHC:29950 RSA No. 1206 of 2018

¶34

HC-KAR

¶35

Appeal as appellant No.2. Parties are referred to as per

¶36

their original ranking before the Trial Court.

¶37

Facts of the case are as under:

¶38

3.1 A suit for relief of declaration of the title and

¶39

permanent injunction came to be filed by both the plaintiffs in O.S. No.214/2010 in respect of three properties which are described as Schedule 'A', Schedule

¶40

'B' and Schedule 'C'.

¶41

3.2 Details of those properties are extracted

¶42

hereunder for ready reference:

¶43

"±ÉqÀÆå¯ï 'J'

¶44

vÁ: 06-05-1967 gÀAzÀÄ ªÁ¢AiÀÄÄ ¸ÉÃ¯ï ¸Ànð¦üPÉÃmï ªÀÄÆ®PÀ ¥ÀqÉzÀ

¶45

¥ÀÇtð ¸ÀéwÛ£À «ªÀgÀ:-

¶46

¸ÁUÀgÀ £ÀUÀgÀ¸À¨sÉ ªÁå¦ÛAiÀÄ ªÁqïð £ÀA§gï 12, «£ÉÆÃ§£ÀUÀgÀzÀ ¸ÀtÚªÀÄ£É ¸ÉÃvÀÄªÉ gÀ¸ÉÛAiÀÄ°ègÀÄªÀ ZÁ°Û ¸Á°£À C¸É¸ÉäAmï £ÀA§gï 114:114:105 PÉÌ M¦àzÀ 26 X 102+97/2 C¼ÀvÉAiÀÄ ¤ªÉÃ±À£À ºÁUÀÆ EzÀgÀ°ègÀÄªÀ ªÀÄAUÀ¼ÀÆgÀÄ ºÀAa£À ªÀÄ£É, F ¸ÀévÀÛ£ÀÄß £ÀPÉëAiÀÄ°è J.©.J¥sï.f.PÉ.J¯ï.JA.J£ï.ªÉÊ.¹. JAvÀ UÀÄwð¸À¯ÁVzÉ. EzÀPÉÌ UÀrUÀ¼ÀÄ:-

¶47

¥ÀÇªÀðPÉÌ : UËj±ÀAPÀgÀ eÉÆÃAiÀÄìgÀ ¸ÉÆwÛ£À UÀr (2£ÉÃ ¥ÀæwªÁ¢)

¶48

¥À²ÑªÀÄPÉÌ : f.J£ï.PÀÈµÀÚªÀÄÆwð EªÀgÀ ¸ÉÆwÛ£À UÀr (1£ÉÃ ¥ÀæwªÁ¢)

¶49

GvÀÛgÀPÉÌ : ¥ÀÅgÀ¸À¨sÉ gÀ¸ÉÛ

¶50

4 - NC: 2026:KHC:29950 RSA No. 1206 of 2018

¶51

HC-KAR

¶52

zÀQëtPÉÌ : ¤ÃgÀÄ PÁ®ÄªÉ ºÀ¼Àî

¶53

±ÉqÀÆå¯ï '©' zÁªÁ ¸ÀéwÛ£À°è 1 £ÉÃ ¥ÀæwªÁ¢ CwPÀæ«Ä¹zÀ ¸ÀéwÛ£À «ªÀgÀB

¶54

¸ÁUÀgÀ £ÀUÀgÀ¸À¨sÉ ªÁå¦ÛAiÀÄ 12£ÉÃ ªÁqïð, «£ÉÆÃ§£ÀUÀgÀzÀ ¸ÀtÚªÀÄ£É ¸ÉÃvÀÄªÉ gÀ¸ÉÛAiÀÄ°ègÀÄªÀ ¸Á°£À C¸É¸ÉäAmï £ÀA§gï 114:114:105 £ÉÃ 26 X 102+97/2 C¼ÀvÉ eÁUÀzÀ ¥ÉÊQ ¥À²ÑªÀÄ ¢QÌ£À zÁªÁ £ÀPÁ±ÉAiÀÄ°è J.¹.ªÉÊ.J£ï.JA.n.r JAvÀ «ªÀj¹zÀ

¶55

1'+4'-3"+5'-3" / 3 x 97'.6" Cr eÁUÀ. EzÀPÉÌ UÀrUÀ¼ÀÄ:-

¶56

¥ÀÇªÀðPÉÌ : zÁªÁ ¸ÉÆwÛ£À G½zÀ eÁUÀ ¥À²ÑªÀÄPÉÌ : 1£ÉÃ ¥ÀæwªÁ¢ ¸ÉÆvÀÄÛ GvÀÛgÀPÉÌ : gÀ¸ÉÛ zÀQëtPÉÌ : ¤ÃgÀÄ PÁ®ÄªÉ ºÀ¼Àî

¶57

±ÉqÀÆå¯ï '¹'

¶58

zÁªÁ J ±ÉqÀÆå¯ï ¸ÀéwÛ£À°è 2 £ÉÃ ¥ÀæwªÁ¢ CwPÀæ«Ä¹zÀ ¸ÀéwÛ£À «ªÀgÀ:-

¶59

¸ÁUÀgÀ £ÀUÀgÀ¸À¨sÉ ªÁå¦ÛAiÀÄ 12£ÉÃ ªÁqïð, «£ÉÆÃ§£ÀUÀgÀzÀ ¸ÀtÚªÀÄ£É

¶60

¸ÉÃvÀÄªÉ gÀ¸ÉÛAiÀÄ°ègÀÄªÀ ¸Á°£À C¸É¸ÉäAmï £ÀA§gï 114 :114: 105 £ÉÃ 26 X 102+97/2 C¼ÀvÉ eÁUÀzÀ ¥ÉÊQ ¥ÀÇªÀð ¢QÌ£À zÁªÁ £ÀPÁ±ÉAiÀÄ°è 1' + 3 / 2 x 50 ªÀÄvÀÄÛ 1 + 3 / 2 x 52 Cr

¶61

«¹ÛÃtðzÀ eÁUÀ, F ¸ÀévÀÛ£ÀÄß zÁªÁ £ÀPÁ±ÉAiÀÄ°è ©.J¥sï.f.PÉ.J¯ï.ºÉZï.«.E. JAvÀ UÀÄwð¹zÉ. EzÀPÉÌ UÀrUÀ¼ÀÄ:-

¶62

¥ÀÇªÀðPÉÌ : 2£ÉÃ ¥ÀæwªÁ¢ ¸ÀévÀÄÛ ¥À²ÑªÀÄPÉÌ : zÁªÁ ¸ÀéwÛ£À CAzÀgÉ ªÁ¢ ¸Áé¢üÃ£ÀzÀ G½zÀ eÁUÀ GvÀÛgÀPÉÌ : PÁA¥ËAqï UÀr zÀQëtPÉÌ : ¨ÉÃ° UÀr."

¶63

5 -

¶64

NC: 2026:KHC:29950 RSA No. 1206 of 2018

¶65

HC-KAR

¶66

3.3 Suit on contest came to be decreed as prayed

¶67

for, holding that plaintiffs are the owners of the properties having purchased the same from the auction sale held by the Municipality. Document of title is the sale certificate dated 06.05.1967 marked at Exhibit P1. Case of the plaintiffs further reveals that they have paid the taxes to the Municipality vide Exs.P2 to P6 and got mutated their names in the revenue records.

¶68

3.4 It is further case of the plaintiffs that defendants without there being any right, title or interest encroached upon the suit property whereby the suit property in 'B' schedule got reduced to 21 ft. instead of 26 ft. and therefore, sought for declaration and injunction. A Court Commissioner was appointed in the suit to inspect the spot and file a report. Court Commissioner visited the spot and noted that there is an encroachment on eastern and western portion whereby, East to West measurement has been reduced by 5 ft. and based on such report, learned

¶69

Trial Judge decreed the suit of the plaintiffs as prayed for.

¶70

6 -

¶71

NC: 2026:KHC:29950 RSA No. 1206 of 2018

¶72

HC-KAR

¶73

3.5 Being aggrieved by the same, the first defendant

¶74

filed an appeal before the First Appellate Court, challenging the decree passed by the Trial Court, who was the neighbour on the northern side.

¶75

3.6 Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties and modified the decree passed by the learned Trial Judge and allowed the appeal filed by the first defendant and dismissed the suit of the plaintiffs.

¶76

3.7 Being aggrieved by the same, plaintiffs have preferred the present appeal.

¶77

3.8 During the pendency of the present appeal, first appellant died and no steps are taken to bring the legal representatives of deceased on record and no applications were filed and therefore appeal was dismissed as abated. However, since a memo is filed reporting that second appellant is the only legal representative of the first appellant, same was accepted by this Court.

¶78

7 - NC: 2026:KHC:29950 RSA No. 1206 of 2018

¶79

HC-KAR

¶80

Learned counsel for the second appellant Sri M. S.

¶81

Rajendra, would contend that First Appellate Court grossly erred in reversing the judgment of the Trial Court and dismissing the suit of the plaintiffs in the teeth of the Sale

¶82

Certificate issued by the Town Municipal Commissioner, Sagar.

¶83

He further emphasized that in the Sale Certificate, there is a specific mention as to the measurement of the suit property as 26 ft. East to West and 102 + 97 / 2 on the North to South. It is the 'A' schedule property. In the 'A' schedule property, it is shown that on the eastern side, house of Sheshagiriyappa and Narayanappa is situated and on the western side, house of Krishnappa S/o Nagappa is situated. On the northern side, there is a main

¶84

road and southern side there is a backyard and it is also shown as water course.

¶85

It is further emphasized by learned Counsel Sri M.S.Rajendra, that there is an encroachment by the defendants, whereby East to West measurement has been

¶86

8 - NC: 2026:KHC:29950 RSA No. 1206 of 2018

¶87

HC-KAR

¶88

reduced by 5 ft. and therefore learned Trial Judge was justified in decreeing the suit and without noticing the said aspect of the matter and ignoring the probative value of the report filed by the Court Commissioner, First Appellate

¶89

Court reversing the judgment of the Trial Court has resulted in grave miscarriage of justice and sought for admitting the appeal on following substantial questions of law:

¶90

"a. Whether the Lower Appellate Court is justified in allowing the appeal in the absence of any material or in the absence of any believable evidence by the Appellant to allow his appeal and to set aside the Judgment of the Trial Court?

¶91

b. Whether the Lower Appellate Court is justified in holding that the Plaintiffs have failed to prove that they are the absolute owners of Suit Schedule 'A' property inspite of producing the title documents and other concerned documents to Court?

¶92

c. Whether the court below is justified in dismissing the suit of the plaintiffs even after the plaintiff proves the fact that the Defendants are in

¶93

9 -

¶94

NC: 2026:KHC:29950 RSA No. 1206 of 2018

¶95

HC-KAR

¶96

possession of more extent of property than what was granted to them by the Town Municipal Council, by way of Court Commissioner's Report?

¶97

d. Whether the lower Appellate court has erred in dismissing the suit of the plaintiff having regard to the fact that the plaintiff was successful in proving the fact that the extent of the property of the plaintiff was diminished, and none else other than the Defendants could encroach the same?"

¶98

None appears for the respondents though served

¶99

with the notice of the appeal.

¶100

Having heard the arguments of learned Counsel Sri M. S. Rajendra, this Court perused the material on the record meticulously. On such perusal of the material on the record, there is no dispute that the Town Municipal Commissioner has issued the Sale Certificate marked at Ex.P1 in favour of the plaintiffs in respect of the suit properties.

¶101

10 -

¶102

NC: 2026:KHC:29950 RSA No. 1206 of 2018

¶103

HC-KAR

¶104

Admittedly, the measurement shown in the said

¶105

Sale Certificate is East to West 26 ft. and North to South 102+97 / 2 ft. In the Sale Certificate itself, there is a specific mention in respect of the boundaries. On the eastern side, there existed the house of Sheshagiriyappa and Naranayappa and on the western side, there existed a house of Krishnappa S/o Nagappa. If it is so, there cannot be any encroachment East to West.

¶106

In other words, when two houses are already in existence at the time of issuance of Sale Certificate, merely mentioning the East to West measurement as 26 ft. in the Sale Certificate would not by ipso facto result in an encroachment.

¶107

In the plaint, there is lack of pleadings as to when exactly the said encroachment has taken place. In fact, to establish that plaintiffs were put in possession of 26 ft. at the time of issuance of Sale Certificate, no material is placed on record. Sale Certificate is based on

¶108

11 - NC: 2026:KHC:29950 RSA No. 1206 of 2018

¶109

HC-KAR

¶110

the revenue records maintained by the Town Municipal Commissioner and what was actually available on the spot was not proved by the plaintiffs especially having sought for a judgment for declaration of the title. If two houses were already in existence in the East to West, there cannot be any further encroachment inasmuch as even before the sale certificate came to be issued, those houses were in existence.

¶111

It is not the case of the plaintiffs either that there was a vacant space that was existing in the eastern and western boundaries occupied by the houses of Sheshagiriyappa and Narayanappa and Krishnappa S/o Nagappa, which got encroached subsequent to issue of sale Certificate. Further more, the first defendant G.N. Krishnamurthy, is not the neighbour of plaintiffs on East or West.

¶112

Second defendant is Sri Gowrishankara Jois and third defendant is Sri K.R.Shreedhdara Bhatta, who

¶113

12 -

¶114

NC: 2026:KHC:29950 RSA No. 1206 of 2018

¶115

HC-KAR

¶116

purchased the property from Sri Gowrishankara Jois, who are also on the eastern side, perhaps having purchased

¶117

the property from Sheshagiriyappa. Anyway particulars in this regard is missing in the plaint averments.

¶118

Nevertheless, on northern and southern

¶119

boundary, there is no encroachment as there is a road on

¶120

the northern side and on the southern side water course.

¶121

Therefore, the encroachment if any, is only to the extent of 5 ft., as could be seen from the Court Commissioner's report East to West. Since already houses were in existence and plaintiffs are unable to show that as

¶122

on the date of sale certificate, they were put into the possession of the property to the extent of 26 ft. East to West and no efforts are made by the plaintiffs to summon the officials of Town Municipal Council or to show what was

¶123

the actual vacant site that was available on the East to West at the time of issuance of sale certificate, the learned Judge in the First Appellate Court rightly re-appreciated

¶124

13 - NC: 2026:KHC:29950 RSA No. 1206 of 2018

¶125

HC-KAR

¶126

the material evidence on record and reversed the

¶127

judgment of the Trial Court and dismissed the suit.

¶128

Having regard to these factual aspects being

¶129

concluded by the First Appellate Court on re-appreciation of the material evidence by exercising the power under Section 96 CPC, the substantial questions of law raised in

¶130

the appeal referred to supra do not merit for further consideration.

¶131