Sri C G Papanna vs Sri D R Prakash
2021 Latest Caselaw 5740 Kant

                                              RSA.1630/2015
                                          C/W RSA.1631/2015
                            1
     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 8TH DAY OF DECEMBER, 2021

                         BEFORE

     THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

        REGULAR SECOND APPEAL NO.1630/2015
      C/W REGULAR SECOND APPEAL NO.1631/2015

IN RSA.1630/2015

BETWEEN:

1.      SRI C. G. PAPANNA
        S/O LATE C.G. GURUSWAMY,
        AGED ABOUT 76 YEARS,
        R/AT T.G. TANK ROAD,
        CHICKBALLAPUR,
        CHICKBALLAPUR DISTRICT-562 101.

2.      SMT.LAKSHMARNMA
        W/O LATE C.G. RANGANATHA,
        AGED ABOUT 63 YEARS,
        R/AT S.R. VENKATASWAMY STREET,
        KANDAVARPT,
        CHICKBALLAPUR,
        CHICKBALLAPUR DISTRICT-562 101.

3.      SRI.C.G. GURUMURTHY
        S/O LATE C.G. GURUSWAMY,
        AGED ABOUT 65 YEARS,
        R/AT OPP. TO A.P.M.YARD,
        SIR M.V. LAYOUT, M.G.ROAD,
        CHICKBALLAPUR,
        CHICKBALLAPUR DISTRICT-562 101. ... APPELLANTS

(BY SRI LEELADHAR.H.P., ADV.)

IN RSA.1631/2015

BETWEEN:

1.      SRI.C.G. GURUMURTHY
        S/O LATE C.G. GURUSWAMY,
                                              RSA.1630/2015
                                         C/W RSA.1631/2015
                           2
       AGED ABOUT 65 YEARS,
       R/AT OPP. TO A.P.M.YARD,
       SIR M.V. LAYOUT, M.G.ROAD,
       CHICKBALLAPUR,
       CHICKBALLAPUR DISTRICT-562 101. ... APPELLANT

(BY SRI LEELADHAR.H.P., ADV.)

AND:

1.     SRI D. R. PRAKASH
       S/O D.N. RAMASWAMY,
       AGED ABOUT 48 YEARS,

2.     SMT. SUBHADRAMMA
       W/O D.R. PRAKASH,
       AGED ABOUT 38 YEARS,

       BOTH ARE R/AT
       DASARAKONDAPPANAVAR STREET,
       KANDAVARPET,
       CHICKBALLAPUR,
       CHICKBALLAPUR DISTRICT-562 101.

3.     THE COMMISSIONER,
       CITY MUNCIPAL COUNCIL,
       CHICKBALLAPUR-562 101.     ... RESPONDENTS
                                   (COMMON IN 1630/15
                                                    &
                                             1631/15)

(BY SRI S.N.ASWATHNARAYANA, ADV. FOR R1 AND R2;
    SRI VIJAYA KRISHNA BHAT.M., ADV. FOR R3)

      THESE REGULAR SECOND APPEALS ARE FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE
DATED 30.06.2015 PASSED IN R.A NO.75/2011 AND R.A
NO.150/14 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE
AND JMFC., CHICKBALLAPUR, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED
07.04.2011 PASSED IN O.S NO.23/2009 AND O.S NO.115/2009
ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC.,
CHIKKABALLAPUR.

      THESE APPEALS COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
                                                       RSA.1630/2015
                                                  C/W RSA.1631/2015
                                 3

                       JUDGMENT

The plaintiffs in O.S.No.23/2009 and

O.S.No.115/2009 have preferred these regular second

appeals challenging the judgment and decree dated 7th

April 2011 passed by the court of Principal Civil Judge

at Chickballapur, which has been confirmed by the

court of Additional Senior Civil Judge and JMFC.,

Chickballapur by its judgment and decree dated 30th

June 2015 passed in R.A.No.75/2011 and 150/2014.

2. For the sake of convenience, the parties to the

appeal are referred to as per their rankings given

before the trial court.

3. Brief facts of the case that would be relevant

for the purpose of disposal of these appeals are:

The plaintiffs in O.S.No.23/2009 and

O.S.No.115/2009 are all children of one

C.G.Guruswamy. Both the suits are filed seeking for

relief of declaration, mandatory injunction and

permanent injunction.

RSA.1630/2015 C/W RSA.1631/2015

It is the case of the plaintiffs in O.S.No.23/2009 that

the suit schedule property was purchased by their

grandfather under a registered sale deed dated

5.5.1938 and it totally measures 29¼ feet East to West

and 43¼ feet North to South. It is their further case

that after the death of their grandfather, the suit

schedule property has been allotted to the share of the

plaintiffs under a registered partition deed dated

22.06.1977. It is their case that though the suit

schedule property is shown as measuring 29¼ feet x

43¼ feet in the sale deed dated 05.05.1938, in the

revenue records, the same is shown wrongly as 19 feet

x 42 feet and taking advantage of the same, the

defendants have encroached the said property.

4. So far as the suit in O.S.No.115/2009 is

concerned, the same is filed by one of the sons of

C.G.Guruswamy. It is his case that the suit schedule

property was purchased by his mother Muniyamma

under a registered sale deed dated 10.08.1972 and the

said property consists of a house and Hittalu RSA.1630/2015 C/W RSA.1631/2015

(backyard) portion measuring 15 ft East to West and

10 ft. North to South. It is his case that though the

measurement of the backyard is shown as 15 ft x 10 ft

in the sale deed, the actual measurement is 29¼ ft

and 27 ft and he has been in actual possession and

enjoyment of the entire extent of land measuring 29¼

ft and 27 ft and the boundaries shown in the sale deed

would establish the same.

5. It is the case of the plaintiffs in both the cases

that the defendants, who are the owners of the

adjacent land, have created revenue documents and

have encroached an extent of land measuring 8 ft x 10

ft in the property bearing assessment No.375/338,

which is the subject matter of suit O.S.No.23/2009

and an extent of 8 ft x 27 ft in the property bearing

assessment No.374/337 which is the subject matter in

O.S.No.115/2009.

6. The defendants had entered appearance in

both the suits and filed written statements denying the RSA.1630/2015 C/W RSA.1631/2015

plaint averments. They have interalia contended that

the father of defendant no.1 had purchased the

property no.297 under the sale deed dated 23.8.1979

along with another property bearing no.299. They

have contended that the actual measurement of the

property has been reflected in the revenue records and

an attempt made by the plaintiffs to change the actual

extent of the suit schedule property was turned down

by the Deputy Commissioner, who has set aside the

order passed by the Tahsildar, changing the extent of

measurement of the land. It is further contended by

the defendants that their property is a oblong site and

after obtaining necessary licence, they have

constructed a house.

7. On the basis of the rival pleadings, the trial

court in O.S.No.23/2009 had framed the following

issues and additional issues:

"1. Whether the plaintiff prove that they are in lawful possession of the suit schedule property as on the date of suit?

RSA.1630/2015 C/W RSA.1631/2015

2. Whether the plaintiffs prove the alleged interference by the defendants?

3. Whether the plaintiffs are entitled for injunction as sought for?

4. What order or decree?

Additional Issue:

1. Whether the plaintiff proves that defendants have encroached 8 feet east to west and 10 feet north to south of the suit schedule property as identified as DLMJ in the hand sketch during the pendency of the suit?

2. Whether the plaintiff is entitled for mandatory injunction?

3. What order or decree?

4. Whether the plaintiff proves their title over the suit schedule property?"

In O.S.No.115/2009, the trial court had framed

the following issues and additional issues:

"1. Whether the plaintiff prove that he is the absolute owner in possession of the suit schedule property?

2. Whether the plaintiff prove that defendants encroached portion of the item No.2 of the suit schedule property?

3. Whether the plaintiff proves that defendants are interfered with his possession?

RSA.1630/2015 C/W RSA.1631/2015

4. Whether the plaintiff is entitled for declaration as sought for?

5. Whether the plaintiff is entitled for permanent injunction as sought for?

6. What order or decree?

Additional Issue:

1. Whether the plaintiff proves that defendant has encroached portion of the item No.3 of the property, which is identified as GDJN as shown in hand sketch?

2. Whether the plaintiff is entitled for mandatory injunction as sough for?

3. What order or decree?

8. During the course of trial, the plaintiffs had

examined three witnesses as PWs-1 to 3 and 68

documents were marked as Ex.P1 to Ex.P68. On

behalf of the defendants, three witnesses were

examined as DWs-1 to 3 and 61 documents were

marked as Ex.D1 to Ex.D61.

9. The trial court thereafterwards heard the

arguments of learned counsel appearing on both sides

and by its common judgment and decree dated 7th RSA.1630/2015 C/W RSA.1631/2015

April 2011 dismissed both the suits. Being aggrieved

by the same, the plaintiffs had filed R.A.Nos.75/2011

and 150/2014 respectively. The first appellate court

having heard the counsels appearing on both sides in

the said regular appeals after re-appreciating the oral

and documentary evidence available on record, by its

common judgment and decree dated 30th June 2015

has dismissed both the appeals and thereby confirmed

the judgment and decree passed by the trial court.

Being aggrieved by the same, the plaintiffs in both the

suits are before this court.

10. Learned counsel appearing for the plaintiffs

contended that both the courts below have failed to

properly appreciate the oral and documentary evidence

available on record. He submits that boundaries

mentioned in the sale deeds have not been rightly

appreciated by the courts below as the boundaries

prevail over the measurement. He strongly relies upon

Ex.P20, which is a hand-sketch and submits that a

perusal of the same would clearly establish that the RSA.1630/2015 C/W RSA.1631/2015

defendants have encroached a portion of the land as

alleged by the plaintiffs in both the suits. He submits

that the courts below have not considered the exact

meaning of the word "Ankana" which is a very vital

part in the case on hand and that has resulted in

passing of an erroneous judgment and decree. He

submits that since the plaintiffs have produced their

respective title deeds, the courts below ought to have

taken note of the boundaries of the suit schedule

properties as mentioned in the title deeds and failure

to do so has resulted in miscarriage of justice.

11. Learned counsel for the defendants has

argued in support of the impugned judgments and

decree and prays to dismiss the appeals.

12. I have carefully considered the rival

arguments addressed on both sides and also perused

the material evidence available on record.

13. The plaintiffs in both the suits strongly rely

upon the sale deeds as per Exs.P24 in RSA.1630/2015 C/W RSA.1631/2015

O.S.No.23/2009 and Ex.P51 in O.S.No.115/2009.

According to the plaintiffs in O.S.No.23/2009, under

the sale deed Ex.P24, their grandfather had purchased

the suit schedule property bearing assessment

no.375/338 which totally measures 29¼ ft x 43¼ ft.

The said sale deed Ex.P24 is dated 5.5.1938. The

courts below after having appreciating the sale deed

Ex.P24 have given a concurrent finding that there is

no exact measurement of the entire extent of property

sold under Ex.P24. Though the learned counsel for

the plaintiffs has contended that the property

purchased under Ex.P24 measures 29¼ x 43¼ feet,

the recital of Ex.P24 would reveal that the

measurement of the property purchased under the

sale deed is shown as 14 Ankana house, Angala,

Hittalu (backyard) and two coconut trees situated in

the said backyard. In addition to the same, the

boundaries of the properties have been mentioned.

Therefore, as rightly observed by the courts below, the

exact measurement of the property purchased under RSA.1630/2015 C/W RSA.1631/2015

Ex.P24 cannot be established under Ex.P24. PW-1,

who is the plaintiff in O.S.No.115/2009 (3rd plaintiff in

O.S.No.23/2009), in his cross-examination has

admitted that in the revenue records of the suit

schedule property, the measurement of the suit

schedule property is shown as 19 x 42 feet. The said

entry with regard to the measurement of the suit

schedule property has been admittedly continued for a

very long period of time. It is an admitted case that

after the death of Guruswamy, there was a partition in

the family under the partition deed Ex.P1 dated

22.06.1977 and even after the said partition, the

measurement of the suit schedule properties was

shown as 19 feet x 42 feet in the assessment extracts.

Subsequently there was an effort made by the

plaintiffs to change the said measurement and the

order passed by the competent authority changing the

measurement of the suit schedule property from 29¼

x 43¼ feet was set aside by the Deputy Commissioner

and the order of the Deputy Commissioner has been RSA.1630/2015 C/W RSA.1631/2015

produced by the defendants as per Ex.D2. Therefore, it

is very clear that the measurement of the suit

schedule property in O.S.No.23/2009 continued right

from the date of execution of Ex.P24 till the date of

filing the suit, as 19 ft x 42 ft.

14. Insofar as O.S.No.115/2009 is concerned, it

is the case of the plaintiff that his mother had

purchased the suit schedule property under a sale

deed dated 10.08.1972 which is marked as Ex.P51

and Ex.P52 is the gift deed of the vendor of his

mother. In Ex.P51 and Ex.P52, the measurement of

the suit schedule property has been mentioned and

the description of the suit schedule property is given

as property consisting of 6 Ankanas and two rooms

measuring 8 Ankanas and a vacant site of 8 Ankanas.

Further, both the` courts below have taken note of the

fact that there is a recital in the sale deed Ex.P1 with

regard to the backyard and the measurement is shown

as 15 feet x 10 feet. However, the plaintiff has sought

to contend that the measurement of the backyard is RSA.1630/2015 C/W RSA.1631/2015

29¼ ft x 27 ft and not 15 ft x 10 feet. This contention

of the plaintiff is difficult to accept for the reason that

the plaintiff has relied upon Ex.P51 in order to prove

his title over the suit schedule property. If that is so,

he cannot contend that the recital found in the said

document with regard to the measurement of

backyard is not correct. It is a settled principle of law

that whenever a party admits the document, it has to

be admitted in its entirety and it is not open to the

party to rely upon the document partially in order to

suits his case.

15. Though the learned counsel for the plaintiff

has strongly relied upon Ex.P20, which is a rough

sketch prepared by the plaintiff, the same could not be

of any help to establish his case for the simple reason

that the plaintiff has not examined the author of the

said document. He has not disclosed as to who is the

author of the said document and on what basis the

said document has been prepared. Further, compared

to the title deeds of the suit schedule property, there is RSA.1630/2015 C/W RSA.1631/2015

a lot of difference with regard to the measurement of

the properties as found in Ex.P20. Under the

circumstances, no relief can be granted to the plaintiff

based on Ex.P20-rough hand sketch prepared by the

plaintiff as the plaintiff has failed to prove the same.

Though the learned counsel for the plaintiff has

contended that the boundaries would prevail over the

measurement in the case on hand, for a period of more

than 50 years, the measurement of the suit schedule

property in O.S.No.23/2009 has been shown in the

revenue records as 19 ft x 42 ft and the measurement

of the backyard in the title deed of the plaintiff in

O.S.No.115/2009 is shown as 15 ft x 10 ft. Therefore,

no much importance can be given to the boundaries of

the property.

16. When the other material available on record

would prima facie establish that there is a discrepancy

with regard to the measurement of the suit schedule

properties, the initial burden to prove the case as per

Sections 101 and 102 of the Evidence Ac is on the RSA.1630/2015 C/W RSA.1631/2015

plaintiff and it is a settled principle of law that the

plaintiff is required to establish his case independently

and cannot rely upon the weakness of the defence.

Further, inspite of the discrepancy with regard to the

measurement and identity of the property, the plaintiff

has not made any attempt before the courts below to

get the property measured either by competent

surveyor or through a Court Commissioner. The trial

court as well as the first appellate court having

appreciated the oral and documentary evidence

available on record have given a finding of fact that the

plaintiff has failed to prove his case and accordingly

refused to grant any relief to him. In my considered

view, the said concurrent finding recorded by the

courts below do not suffer from any illegality or

irregularity, which calls for interference by this court

in exercise of its power under Section 100 of CPC.

17. On an overall appreciation of the arguments

addressed on both sides and the material evidence

available on record, I am of the considered view that RSA.1630/2015 C/W RSA.1631/2015

no substantial question of law arises for consideration

in these appeals and therefore, these appeals are

dismissed at the stage of admission.

Sd/-

JUDGE

KNM/-