Sri Eregowda vs Sri Eregowda
2022 Latest Caselaw 1852 Kant

                          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. 42/2015
BETWEEN:


SRI EREGOWDA
S/O CHIKKEGOWDA
AGED ABOUT 43 YEARS
R/O MATADAKOPPALU VILLAGE
PERIYAPATNA TALUK-571 107
                                    ... APPELLANT
(BY SRI VISHWANATH R.HEGDE, ADV.)

AND:


SRI EREGOWDA
S/O SANNEGOWDA
SINCE DECEASED BY L.Rs.

1. KALAMMA
W/O EREGOWDA
AGED ABOUT 53 YEARS.

2. KARIGOWDA
S/O EREGOWDA
AGED ABOUT 33 YEARS.

3. LOKI @ LOKESHA
S/O EREGOWDA
AGED ABOUT 31 YEARS.

ALL RESIDENTS OF
M.MATADAKOPPALU VILLAGE
PERIYAPATNA TALUK 571 107
                           2


4. SRI CHIKKANNAIAH
S/O SANNEGOWDA
AGED ABOUT 44 YEARS
R/O M.MATADAKOPPALU VILLAGE
PERIYAPATNA TALUK 571-107.
                                       ... RESPONDENTS
(BY SRI SUNEEL S.NARAYAN, ADV.)

     THIS REGULAR SECOND APPEAL IS FILED
UNDER SEC.100 OF CPC          PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE DATED 09.07.2014
PASSED IN R.A. NO. 41/2011 PASSED BY THE ADDL.
SENIOR CIVIL JUDGE & JMFC, HUNSUR, SITTING AT
PERIYAPATNA AND THE JUDGMENT AND DECREE
DATED 02.04.2011 PASSED IN R.A. NO.139/2005 BY
THE CIVIL JUDGE & JMFC, PERIYAPATNA, AND
DECREE    THE   SUIT   AS     PRAYED     FOR   IN   THE
INTEREST OF JUSTICE AND EQUITY.


     THIS APPEAL COMING ON FOR ADMISSION
THIS DAY THROUGH VIDEO CONFERENCE, THE
COURT DELIVERED THE FOLLOWING

                    JUDGMENT

This is a second appeal filed by the plaintiff

who has failed before both the Courts.

2. The plaintiff instituted a suit in respect of 4

agricultural lands bearing Survey No. 80 measuring

0.09 guntas, Survey No.86 measuring 0.16 guntas,

Survey No.89/1 measuring 0.18 guntas and Survey

No.100/3 measuring 0.18 guntas, all of which are

situated at Naganahalli Dhakale, Matadakoppalu

village, Periyapatna Taluk. It was his case that his

father purchased the suit properties under a

registered sale deed dated 04.12.1991 and pursuant

to the sale, revenue entries were mutated in the

name of his father. It was stated that in an oral

partition between him and his father, he was allotted

the suit property and the revenue entries had also

been changed in his name and he was in possession

of the said properties. It was stated that the

defendants had interfered with his possession and

therefore, he was constrained to file the suit.

3. Defendants 1 and 2 resisted the suit by filing

a written statement, contending that neither the

plaintiff nor his father were in possession of the suit

properties at any point of time within the boundaries

mentioned in the suit properties. It was urged that

the plaintiff had furnished fictitious documents and

therefore, he was not entitled for a decree of

injunction. It was alleged that the defendants were

owning and possessing 32 guntas in Survey No.86

and the plaintiff was trying to occupy this property.

4. It was also urged by the defendants that the

suit schedule survey numbers do not tally with the

extent mentioned in the RTC extracts and they were

basically fictitious entries obtained in order to knock

away the properties.

5. The Trial Court, on consideration of the

evidence, came to the conclusion that the sale deed

relied upon by the plaintiff at Ex.P1 mentioned the

total extent of each survey number in which a

portion of the land was purchased by the plaintiff,

but, the sale deeds did not indicate as to which

portion or which side of the survey number those

lands had been purchased by the plaintiff. The Trial

Court, therefore, concluded that in the absence of

any specific portion being conveyed under the sale

deed, a decree of injunction cannot be granted on

the basis of the boundaries mentioned in Ex.P1 and

it proceeded to dismiss the suit.

6. In appeal, the Appellate Court concurred

with the finding recorded by the Trial Court. The

Appellate Court also reiterated that the plaintiff had

failed to prove as to which portion of the land had

fallen to his share in order to ascertain the property

that was actually conveyed under Ex.P1. The

Appellate Court accordingly confirmed the decree of

the Trial Court and dismissed the appeal.

7. It is as against these concurring judgments,

the present second appeal has been preferred.

8. It is not in dispute that the plaintiff's father

purchased 4 agricultural lands under the sale deed

dated 04.12.1991 which is at Ex.P1. In the plaint

schedule, the plaintiff has reiterated the boundaries

mentioned in the sale deed, but omitted to mention

one crucial detail which was stated in the sale deed.

The boundaries stated in the sale deed were as

under:

"¦jAiÀiÁ¥ÀlÖt vÁ®ÆèQ£À ¨Élz Ö ¥ À ÀÄgÀ ºÉÆç½AiÀÄ £ÁUÀº£ À ½ À î UÁæªÀÄzÀ°è £ÀªÀÄUÉ ¦vÁæfðvÀªÁV §AzÀÄ, ºÁ° £À£Àß ¸Áé¢Ãü £Á£ÀĪÀz° À g è ÀĪÀ ¨ÉlÖz¥ À ÄÀ gÀ ªÀÄAqÀ® ¥ÀAZÁAiÀÄwUÉ

¸ÉÃjgÀĪÀ d«ÄãÀÄUÀ¼ÀÄ -

1. ¥ÀƪÀðPÉÌ : ¸ÀPÁðj Nt ¥À²ª Ñ ÀÄPÉÌ : ¹zÀÝ£ÁAiÀÄPÀgÀ d«Ä£ÀÄ GvÀg Û PÀ ÉÌ : ªÀiÁPÉÃUËqÀgÀ d«Ä£ÀÄ zÀQt ë PÉÌ : ¸ÀtÚ»ÃgÉÃUËqÀgÀ d«Ä£ÀÄ F ªÀÄzsÉå EgÀĪÀ RÄ¶Ì d«ÄãÀÄ ¸À.£ÀA.80gÀ°è 38 UÀÄAmÉ ¥ÉÊQ 9 UÀÄAmÉ ¸ÀévÀÄÛ MAzÀÄ.

2. ¥ÀƪÀðPÉÌ : »ÃgÁeÉÃUËqÀgÀ d«ÄãÀÄ ¥À²ª Ñ ÀÄPÉÌ : ªÀiÁPÉÃUËqÀgÀ ªÀÄvÀÄÛ ªÀUÉÊgÉAiÀĪÀgÀ d«ÄãÀÄ GvÀg Û PÀ ÉÌ : ªÀiÁPÉÃUËqÀgÀ d«ÄãÀÄ zÀQt ë PÉÌ : vÉÆÃmÁ¨sÉÆëAiÀĪÀgÀ d«ÄãÀÄÄ F ªÀÄzsÉå EgÀĪÀ RÄ¶Ì d«ÄãÀÄ ¸À.£ÀA.86gÀ°è 1 JPÀgÉ 37 UÀÄAmÉ ¥ÉÊQ 16 UÀÄAmÉ ¸ÀévÀÄÛ MAzÀÄ.

3. ¥ÀƪÀðPÉÌ : ¸ÀPÁðj Nt ¥À²ª Ñ ÀÄPÉÌ : »ÃgÁeÉÃUËqÀgÀ d«ÄãÀÄ GvÀg Û PÀ ÉÌ : ¤ªÀÄä ¨Á§ÄÛ CAzÀgÉ aPÉÌÃUËqÀgÀ d«ÄãÀÄ zÀQt ë PÉÌ : »ÃgÁeÉÃUËqÀgÀ d«ÄãÀÄ F ªÀÄzsÉå EgÀĪÀ RÄ¶Ì d«ÄãÀÄ ¸À.£ÀA.89gÀ°è 89/1 gÀ 1 JPÀgÉ 28 UÀÄAmÉ ¥ÉÊQ 18 UÀÄAmÉ ¸ÀévÀÄÛ MAzÀÄ.

4. ¥ÀƪÀðPÉÌ : ªÀiÁPÉÃUËqÀgÀ d«ÄãÀÄ ¥À²ª Ñ ÀÄPÉÌ : wªÀiÁä¨sÉÆý ªÀUÉÊgÉAiÀĪÀgÀ d«ÄãÀÄ

GvÀg Û PÀ ÉÌ : PÁ¼ÀªÀÄä ªÀUÉÊgÉAiÀĪÀgÀ d«ÄãÀÄ zÀQt ë PÉÌ : ªÀiÁPÉÃUËqÀgÀ d«ÄãÀÄ F ZÀPÀÄ̧A¢AiÀÄ°ègÀĪÀ ¸À.£ÀA.100/3 gÀ°è 2JPÀgÉ ¸Àéw£ Û À ¥ÉÊQ 18 UÀÄAmÉAiÀÄļÀî ¸ÀévÀÄÛ MAzÀÄ."

9. As could be seen from the above description

of the lands in the sale deed, out of the total extent

of lands in each Sy No, only a portion had been

purchased by the plaintiff's father. However, on

which side of the Sy No, the land that had been

purchased was conspicuously absent. If, under the

sale deed, the actual location of the plaintiff's

property cannot be identified, plaintiff would not be

entitled to the relief of injunction since the exact

location of the property would not be discernible.

10. In my view, both the Courts have rightly

come to the conclusion that in the absence of recitals

in the sale deed specifying as to on which side of the

survey number the plaintiff's father had purchased

lands, it would not be proper to grant a decree of

injunction. It is to be stated here that a decree of

injunction can be granted only in respect of a

definite and ascertainable land which could be

relatable to a title deed. Therefore, in my view,

there is no substantial question of law arising for

consideration in this appeal.

11. The appeal is, therefore, dismissed.

Sd/-

JUDGE

VGH