Karnataka High Court
Sri K H Muniyappa vs Sri Byregowda on 7 February, 2022
Bench: N S Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
R.S.A. No.379/2016(DEC/INJ)
BETWEEN:
SRI. K.H.MUNIYAPPA,
S/O LATE HANUMANTHARAYAPPA,
AGED ABOUT 82 YEARS,
AGRICULTURIST,
R/AT KUPPAHALLI VILLAGE,
NANDI HOBLI,
CHICKBALLAPUR TALUK - 562 101.
DEAD BY HIS LR's
1. SRI. K.M.ANJINAPPA,
S/O LATE K.H.MUNIYAPPA,
AGED ABOUT 66 YEARS,
2. SRI. K.M.SRINIVAS,
S/O LATE K.H.MUNIYAPPA,
AGED ABOUT 64 YEARS,
3. SRI. K.M.LAKSHMINARAYANA,
S/O LATE K.H.MUNIYAPPA,
AGED ABOUT 60 YEARS,
ALL ARE R/AT KUPPAHALLI VILLAGE,
NANDI HOBLI, CHICKBALLAPUR TALUK,
CHICKBALLAPUR DISTRICT - 562 101.
4. SMT. K.M.RATHNAMMA,
W/O SONNEGOWDA,
D/O LATE K.H.MUNIYAPPA,
AGED ABOUT 56 YEARS,
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5. SMT. K.M.SHANTHAMMA,
W/O N.RAMANNA,
D/O LATE K.H.MUNIYAPPA,
AGED ABOUT 54 YEARS,
BOTH ARE R/AT NARAYANAPURA VILLAGE,
VIJAYAPURA HOBLI,
DEVANAHALLI TALUK,
BENGALURU RURAL DISTRICT - 562 135.
6. SMT. K.M.PARVATHAMMA,
W/O MUNIKIRISHNAPPA,
D/O LATE K.H.MUNIYAPPA,
AGED ABOUT 52 YEARS,
R/AT KANDAVARA BAGLLU,
CHICKBALLAPURA TALUK,
CHICKBALLAPURA DISTRICT - 562 101.
... APPELLANTS
(BY SRI. SHIVASHANKAR.K., ADVOCATE)
AND:
1. SRI. BYREGOWDA,
S/O NANJUNDA GOWDA,
AGED ABOUT 50 YEARS,
2. SRI. MURTHY,
S/O NANJUNDA GOWDA,
AGED ABOUT 48 YEARS,
3. SRI. MANJUNATHA,
S/O NANJUNDA GOWDA,
AGED ABOUT 46 YEARS,
ALL ARE R/AT KUPPAHALLI VILLAGE,
NANDI HOBLI,
CHICKBALLAPURA TALUK - 562 101.
... RESPONDENTS
(BY SRI.SANTHOSH, ADVOCATE)
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THIS APPEAL IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 01.04.2015
PASSED IN R.A.No.67/2011 ON THE FILE OF THE
ADDITIONAL SENIOR CIVIL JUDGE AND J.M.F.C.,
CHICKBALLAPUR, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED
26.02.2011 PASSED IN O.S. No.331/2008 ON THE FILE OF
THE PRINCIPAL CIVIL JUDGE AND J.M.F.C., CHICKBALLAPUR.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This is a second appeal by the plaintiff who has failed to
establish his case before both the Courts.
2. It is the case of the plaintiff that he was the owner in
possession of 16 guntas of land bearing Survey No.15/4. It
was his case that out of 16 guntas of land, an extent of 5½
guntas of land in the schedule property was encroached and a
water tank had been constructed by the defendants.
3. He stated that this 5½ guntas of encroached land was
bounded on the East by the land of Byre Gowda; West by the
land of Narayana Rao; North by the land of Byre Gowda (1 st
defendant's land) and South by the remaining land in survey
No.15/4.
4. As could be seen from the boundaries, there was no
mention of any road to the south of this encroached portion
of 5½ guntas and the southern portion was described as the
remaining land in the same survey number.
5. The Trial Court on consideration of the evidence came
to the conclusion that as per the sale deed, through which the
plaintiff claimed title (Ex.P-1), the plaintiff had purchased an
extent of 16 guntas of land in Sy.No.15/4 and the northern
boundary mentioned in the sale deed was 'zÁj' [Road] and
K.P.Nanjundegowda's property.
6. Sri.K.P.Nanjundegowda was admittedly the father of
defendants. The Trial Court on noticing the boundaries in the
sale deed came to the conclusion that the extent of 16 guntas
of land was obviously situate to the south of the road and
since the water tank was obviously situate beyond the road,
the plaintiff could not obviously make any claim over the said
land in which the water tank was situated.
7. The Trial Court also noticed the deposition of the
plaintiff rendered during the cross-examination, in which he
stated that he became aware that his extent of 5½ guntas of
land had been encroached only after a survey had been
conducted. The Trial Court, therefore, took the view that the
plaintiff was not entitled for the relief sought for.
8. As far as the survey sketch, upon which reliance was
placed by the plaintiff to prove that the water tack was a part
of the 16 guntas that he had purchased, the Trial Court took
the view that the survey had been conducted after the suit
had been filed and the Surveyor was not examined to
substantiate the sketch. The Trial Court accordingly dismissed
the suit.
9. In appeal, the Appellate Court, on re-appreciation of
the evidence, concurred with the findings of the Trial Court
and held that the sale deed of the plaintiff indicated that his
property was situate to the south of the road and therefore,
he could not claim any portion beyond the road. The
Appellate Court accordingly confirmed the decree of the Trial
Court and dismissed the appeal.
10. While dismissing the appeal, the Appellate Court also
rejected the application that had been filed for appointment
of the Commissioner on the ground that a similar application
had been filed before the Trial Court and the same had been
rejected and this had also been confirmed by this Court in
Writ Petition No.25838 of 2010.
11. The learned counsel for the appellants contended that
the northern boundary in Ex.P-1 stated 'zÁj' [Road] and
K.P.Nanjundegowda's property and therefore, the plaintiff's
property was situate even beyond the road and upto
Sri.K.P.Nanjundegowda's property. He submitted that both
the Courts had erred in not considering the survey sketch
which clearly indicated the encroachment of 5½ guntas of
land. He, therefore, submitted that the impugned judgments
and decrees be set aside and the suit be decreed.
12. Admittedly, the entire claim of the plaintiff is based on
the sale deed dated 02.07.1969 by which the plaintiff
purchased an extent of 16 guntas in Survey No.15/4.
Admittedly, in the said sale deed, the northern boundary is
mentioned as 'zÁj' [Road] and Sri.K.P.Nanjundegowda's land.
This indicates that the northern boundary of the appellants'
land was only till the road.
13. If the plaintiff had purchased two bits of land, one
which was situate beyond the road on the Northern side and
another bit which was situate to the south of the road, the
Schedule would have obviously indicated that he had
purchased two bits of land. It is also not recited in the sale
deed that a Road was running in the middle of the land
purchased by the plaintiff. On the other hand, the schedule
clearly indicated that he had purchased one compact block of
land which was situate towards the southern side of the road.
The arguments of the learned counsel for the appellants,
therefore, cannot be accepted.
14. It is also pertinent to state here that in the plaint
schedule while describing the encroached portion of 5½
guntas, the plaintiff himself had stated that on the south of
the property was the remaining land of Sy.No.15/4. The
plaintiff in his plaint had not even whispered that there was a
road running in between his land, or to the north of his land.
The Schedule, as furnished in the plaint, indicates complete
absence of a road either on the northern side or the southern
side. It is, therefore, clear that the plaintiff was trying to
assert title over the land which was not in tune with the
boundaries prevailing in his sale deed.
15. Both the Courts have recorded a clear finding of fact
that the land of the appellant was situate to the south of the
road and he was not entitled to claim any portion beyond the
road. This finding is, essentially, a finding of fact, which
would not be liable to be interfered in a second appeal.
16. In my view, there is no substantial question of law
arising for consideration in this appeal and the same is
accordingly dismissed.
Sd/-
JUDGE
RK
CT:SN
