Sri H S Manjappa vs Sri Jagannatha
2022 Latest Caselaw 1425 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 1st DAY OF FEBRUARY, 2022

                       BEFORE

    THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

              R.S.A.No.1615/2017(INJ)

BETWEEN:

SRI. H.S.MANJAPPA,
SON OF SRI SHESHAGIRIYAPPA,
AGED ABOUT 78 YEARS,
RESIDING AT MAIN ROAD,
SORAB TOWN - 577 429,
SHIVAMOGGA DISTRICT.                   ... APPELLANT

(BY SRI. SHIVANANDA.S., ADV.)

AND:

SRI. JAGANNATHA,
SON OF SRI SHRIPATIYAPPA,
AGED ABOUT 78 YEARS,
SORAB TOWN, SORAB TALUK.
PRESENTLY RESIDENT OF
HOSAPETE EXTENSION, HALESORAB,
SORAB TALUK - 577 429
SHIVAMOGGA DISTRICT.                 ... RESPONDENT

(BY SRI. SIMBADHAR.M.GOWDAR, ADV.)


      THIS APPEAL IS FILED UNDER SECTION 100 OF CPC
1908,    AGAINST    THE    JUDGMENT    AND    DECREE
DATED:01.06.2017 PASSED IN R.A.No.50/2015 ON THE FILE
OF THE SENIOR CIVIL JUDGE AND JMFC, SORABA,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND      DECREE     DATED:29.07.2015    PASSED     IN
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O.S.No.169/2010 ON THE FILE OF THE CIVIL JUDGE AND
JMFC., SORABA.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                         JUDGMENT

1. This appeal is by the defendant.

2. The respondent herein filed a suit seeking for a decree

of permanent injunction. It was his case that the suit

schedule property, which was described as land bearing

Sy.No.203/3 measuring 5 acres 21 guntas, was purchased by

his father on 14.06.1964 and ever since, their family was in

possession of the same. He stated that in the partition dated

12.12.1994, the suit property, which was the subject matter

of the said partition, was allotted to him. He stated that on

the basis of the said partition, the revenue record was

mutated and his name was entered in the revenue record.

He stated that the suit schedule property was originally a part

of Sy.No.203 and after a survey, it had been renumbered as

Sy.No.203/3. He stated that he had raised arecanut and

saguvani trees and had also constructed a house in the said

property. It was alleged that there was interference with his

possession and hence, he was constrained to file a suit.

3. The defendant contested the said suit. He stated that

the schedule was not properly described by giving boundaries

and only the survey number was stated and the boundary

stones had been showed as its boundaries. It was stated that

the suit was filed only to encroach upon his property.

4. He stated that he had also purchased a part of

Sy.No.203 measuring 20 guntas (70 feet X 312 feet) from

Nadiga Gopal Rao under a registered Sale Deed dated

13.12.1962. He stated that he had purchased the said

property in order to construct a house and the 20 guntas of

land that he had purchased was adjacent to Soraba -

Siddapura road. However, he stated that by oversight the

boundaries were wrongly mentioned in the Sale Deed and

instead of mentioning that the road was situated on the

southern side, it was stated that the road was situated on the

northern side. He stated that after realising the mistake, the

vendor had executed a registered Rectification Deed on

12.04.2007.

5. It was also stated that the plaintiff had approached the

Survey Department and got Sy.No.203 sub-divided without

notice to him and the plaintiff had also secured a sketch

indicating the land that he had purchased and this sketch was

not legal and a dispute regarding the survey was pending

before the Tahsildar.

6. The defendant also went on to state that in the Sale

Deed of the plaintiff's father, it had been stated that to the

eastern side, property of H.S.Manjappa i.e., the appellant

herein was situated, instead of stating that it was the

property of Nadiga Ranganatha Rao and H.S.Manjappa. It

was also stated that boundary of the southern side was also

wrongly mentioned as Soraba-Chandragutti Road, instead of

mentioning it as H.S.Manjappa's property and Government

road. He also stated that without rectifying the said mistakes,

the plaintiff had filed the suit.

7. The Trial Court, on consideration of the evidence

adduced before it, came to the conclusion that the description

of the suit property by the plaintiff was proper and correct

and the plaintiff had also proved that he was in possession of

the same and there was interference by the defendant.

8. In order to come to the said conclusion, the Trial Court

relied upon the deposition of the defendant, in which, it was

stated that the plaintiff was residing in the suit schedule

property and had raised arecanut and saguvani trees and had

also constructed a house. The Trial Court also noticed that

the defendant had not taken any steps for rectification of the

Sale Deed by filing a proper suit and the plaintiff was not a

party to the Rectification Deed, so as to bind him to the said

Rectification Deed. The Trial Court accordingly decreed the

suit.

9. Being aggrieved by the said judgment and decree, the

defendant preferred an appeal.

10. In appeal, the Appellate Court, on re-appreciation of

evidence, concurred with the finding of the Trial Court and

proceeded to dismiss the appeal.

11. It is against these concurring judgments and decrees,

the present second appeal has been preferred.

12. Learned counsel for the appellant contended that the

suit for injunction could not have been entertained when the

property was not properly described as mandated under

Order VII Rule 3 of CPC. He submitted that in the light of the

Rectification Deed executed in favour of the defendant and

also in the light of the fact that the survey sketch has been

set aside, both the Courts had committed a serious error in

decreeing the suit.

13. The case of the plaintiff was that his father had

purchased 5 acres 21 guntas of land in Sy.No.203. It was his

further case that this survey number was renumbered as

Sy.No.203/3 and he was in possession of the same pursuant

to a partition in his family on 12.12.1994. It was also stated

that he had raised arecanut and saguvani trees apart from

constructing a house in the suit property and he was residing

therein.

14. As against this plea, the case put forth by the

defendant was that he had purchased 20 guntas of land and

though in the Sale Deed certain boundaries were mentioned,

the same were incorrect. In other words, the defendant

admitted that his Sale Deed which was of the year 1962

contained incorrect boundaries and on the southern side, the

road was situated, whereas in the Sale Deed, it had been

shown as situated on the northern side. That apart, the

defendant also set up a plea that the description of the

plaintiff's property in his father's Sale Deed, which was of the

year 1964, was also incorrect. Thus, essentially, the

defendant put forth the case that the boundaries mentioned

in both the Sale Deeds i.e., of the plaintiff's father and the

defendant were incorrect.

15. He, however, set up a plea that he had got his Sale

Deed rectified in the year 2007 indicating the original

boundaries and therefore, both the Courts were required to

come to the conclusion that the defendant was in possession

of the suit property.

16. In a suit for injunction, the principal obligation of the

Court is to examine whether the plaintiff was in lawful

possession as on the date of filing of the suit. In a suit for

injunction, normally, it is not open for the Civil Court to

embark upon the exercise of identifying the property on the

basis of the registered Sale Deeds. In the instant case, the

plea set up was that though there were two Sale Deeds of the

year 1962 and 1964, both of them contained incorrect

boundaries. In other words, the defendant wanted the Trial

Court to identify the suit property and then, determine the

question of possession. As stated above, in a suit for

injunction, this kind of exercise of identifying the property

cannot be undertaken.

17. The Trial Court has taken into consideration the

admission of the plaintiff that the plaintiff was residing in the

suit schedule property and had not only raised arecanut and

saguvani trees, but had also constructed a house. It has also

relied upon the revenue documents which indicated the

possession of the plaintiff. Admittedly, even according to the

defendant, the land that he had purchased had remained

vacant right from the year 1962.

18. In the light of the fact that the plaintiff had admittedly

raised arecanut and saguvani trees and had constructed a

house in the suit schedule property and was residing therein,

the decree of both the Courts upholding that the plaintiff was

in possession of 5 acres 21 guntas in Sy.No.203/3 cannot be

found fault with.

19. The argument of the learned counsel for the appellant

that the suit could not be entertained because the schedule

did not describe the boundaries cannot be accepted. No

doubt, the boundaries of the suit property were not

mentioned in the schedule. However, when the defendant

contended that the boundaries, as indicated in his Sale Deed

and so also the boundaries stated in the Sale Deed of

plaintiff's father, were both incorrect, this question really

pales into insignificance. The defendant went into trial

knowing fully well the case put forth by the plaintiff. He, in

fact, during trial, admitted that in the suit property, arecanut

and saguvani trees had been raised and a house had been

constructed. It was, therefore, clear that the possession of

the plaintiff over the property purchased by him was not

disputed by the defendant.

20. It may be pertinent to state here that the appellant

herein had affixed his signature to the Sale Deed dated

14.06.1964 which had been executed in favour of the

plaintiff's father as a witness. The defendant had admittedly

purchased 20 guntas in the very same number from the very

same vendor who had conveyed the property to the father of

the plaintiff on 13.02.1962, which was two years prior of the

Sale Deed in favour of the plaintiff's father. It is obvious that

it was only because the defendant was a purchaser of a

portion of the very same number, he was asked to be a

witness. By virtue of being a witness to the Sale Deed

executed in favour of the plaintiff's father, the defendant was

definitely aware of the property that was being sold to the

plaintiff's father. Thus, when the defendant was aware of this

sale, it would not be not open him to contend that the suit

property is not identifiable or that it contained incorrect

boundaries.

21. Learned counsel for the appellant/defendant also

contended that the fact that the defendant was in possession

of 20 guntas was also not in serious dispute and until the suit

property could be identified, the Courts could not have

granted an injunction.

22. As stated above, in a suit for injunction, the limited

exercise undertaken by the Court is to determine the lawful

possession of the plaintiff as on the date of the suit. In the

instant case, admittedly, the title of both the plaintiff and the

defendant over the lands purchased by them were not in

dispute. The Courts would therefore be justified in

determining only the possession of the plaintiff based on his

undisputed title. It is to be stated here that a Civil Court

cannot not be asked to embark upon holding a trial regarding

questions relating to incorrect mentioning of boundaries in

the Sale Deeds of the parties.

23. In a case, where the defendant alleges that the

boundaries of both the plaintiff and the defendant were

incorrect, the Court dealing with the suit for injunction cannot

and should not embark upon an exercise to determine the

identity of the property at the instance of the defendant when

admittedly no counter claim was made by the defendant.

24. In the facts and circumstances of the case, since both

the Courts have concurrently recorded a finding that the

plaintiff was in possession of land bearing Sy.No.203/3

measuring 5 acres 21 guntas, I find no substantial question of

law arising for consideration in this second appeal. The

second appeal is accordingly dismissed.

25. However, liberty is reserved to the defendant to initiate

a suit containing a comprehensive relief regarding the identity

of the property. If such a suit is filed, the decree granted by

this Court shall not come in the way of the Court to

determine the controversy raised by the defendant regarding

incorrect boundaries found in the Sale Deeds.

Sd/-

JUDGE

PKS