Karnataka High Court
Sri Thopegowda vs A N Niranjana Raja Urs on 16 February, 2022
Bench: N S Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
R.S.A.No.1994/2006(DEC)
BETWEEN:
1. SRI.THOPEGOWDA,
AGED ABOUT 77 YEARS,
S/O CHENNEGOWDA,
R/AT YAMANUMBA VILLAGE,
HUNSUR TALUK,
MYSORE DISTRICT.
2. SMT. GOWRAMMA,
AGED ABOUT 57 YEARS,
D/O LATE MAYAMMA,
R/AT HABBANA KUPPE VILLAGE,
HANAGODU HOBLI,
HUNSUR TALUK,
MYSORE DISTRICT.
3. SMT. SAROJAMMA,
AGED ABOUT 52 YEARS,
R/AT KOTTEGALA VILLAGE,
HANAGODU HOBLI,
HUNSUR TALUK,
MYSORE DISTRICT.
4. SRI. H.L.JAVARAPPA,
S/O LATE LEKKEGOWDA,
SINCE DEAD BY LRs.,
4(a) SRI.JAYARAM.H.J,
AGED ABOUT 68 YEARS,
2
S/O LATE H.L.JAVARAPPA,
R/AT No.38, HOUSING BOARD COLONY,
WARD No.22, HUNSUR TOWN,
HUNSUR TALUK,MYSORE DISTRICT.
4(b) SRI.H.J.VENKATESHA,
AGED ABOUT 64 YEARS,
S/O LATE H.L.JAVARAPPA,
R/AT No.18/87, 13 TH MAIN ROAD,
VIJAYANAGAR 2ND STAGE,
MYSORE.
4(c) SMT.NALINI,
AGED ABOUT 61 YEARS,
W/O B.RAJU,
D/O LATE H.L.JAVARAPPA,
R/AT HUNSUR NEW LAYOUT,
HUNSUR, MYSORE DISTRICT.
4(d) SRI.H.J.BALACHANDRA,
AGED ABOUT 60 YEARS,
S/O LATE H.L.JAVARAPPA,
R/AT No.3908, GOKUL LAYOUT,
HUNSUR, MYOSRE DISTRICT.
4(e) SMT.SHARADA,
AGED ABOUT 58 YEARS,
D/O LATE H.L.JAVARAPPA,
R/AT No.156. BASAVESHWARA NILAYA,
MANJUNATHA LAYOUT,
HUNSUR, MYSORE DISTRICT.
5. SMT. LAKSHMAMMA,
AGED ABOUT 67 YEARS,
W/O LATE M.JAVAREGOWDA,
R/AT NAYIDAHALLY,
HEBSUR OST,
PERIYAPATANA TALUK,
MYSORE DISTRICT.
3
6. SRI.MUTHURAJU,
AGED ABOUT 63 YEARS,
S/O LATE JAVAREGOWDA,
R/AT NAYIDAHALLY,
HEBSUR POST,
PERIYAPATANA TALUK,
MYSORE DISTRICT. ... APPELLANTS
(BY SRI. B.S.NAGARAJ, ADV.)
AND:
1. A.N.NIRANJANA RAJA URS.,
SINCE DEAD BY LRs.,
1(a) SMT.A.N.MAYADEVI,
AGED ABOUT 55 YEARS,
D/O LATE NIRANJANARAJA URS.,
R/A No.1, 10TH MAIN,
SARASWATHIPURAM,
MYSORE - 570 009.
1(b) SMT.A.N.CHAYADEVI,
AGED ABOUT 53 YEARS,
D/O LATE NIRANJANARAJA URS.,
R/AT No.304, 4TH MAIN, 3RD STAGE,
SOUTH OF KUMBARKOPALU GOKULAM,
MYSORE-570 009.
2 SRI.JAVAREGOWDA,
S/O LATE CHENNEGOWDA,
SINCE DEAD BY LRs.,
2(a) SMT GOWRAMMA,
AGED ABOUT 71 YEARS,
W/O LATE JAVAREGOWDA,
2(b) SRI.RAMAKRISHNA,
AGED ABOUT 72 YEARS,
S/O LATE JAVAREGOWDA,
4
R-2(a) AND R-2(b) BOTH ARE R/AT
YAMANUMBA VILLAGE,
HUNSUR TALUK, MYSORE DISTRICT.
3. SMT. KAMALAMMA,
AGED ABOUT 49 YEARS,
D/O LATE MAYAMMA & THIMMAPPA,
R/AT HABBANA KUPPE VILLAGE,
HANAGUDU HOBLI,
HUNSUR TALUK,
MYSORE DISTRICT. ... RESPONDENTS
(BY SRI.C.R.SUBRAMANYA, ADV., FOR R-1(a);
SRI.SHAMBU J.NAVEEN, ADV., FOR R-2(a & b);
NOTICE TO R-3 IS DISPENSEND WITH VIDE ORDER DATED
15.01.2013;
SERVICE OF NOTICE TO R-1(b) HIS HELD SUFFICIENT)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED:28.03.2006
PASSED IN R.A.No.63/1995 ON THE FILE OF THE CIVIL
JUDGE(SR.DN.), HUNSUR, ALLOWING THE APPEAL AND
PARTLY SETTING ASIDE AND PARTLY CONFIRMING THE
JUDGMENT AND DECREE DATED:28.10.1995 PASSED IN
O.S.No.447/1989 ON THE FILE OF THE MUNSIFF AND JMFC,
HUNSUR.
THIS APPEAL COMING ON FORHEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This is a second appeal by defendant No.1, legal
representatives of defendant No.3, legal representatives of
defendant No.4 and legal representatives of defendant No.5.
2. The plaintiff/Niranjanaraje Urs filed a suit seeking for a
declaration that he was the owner of the suit schedule
properties and for a direction to defendants 1 and 2 to hand
over possession of A schedule property, defendant No.3 to
hand over possession of B schedule property, defendant No.4
to hand over possession of C schedule property and
defendant No.5 to hand over possession of D schedule
property.
3. It was the case of the plaintiff that the above
mentioned A, B, C and D schedule properties were lands
which had been encroached upon by the defendant in his land
bearing Sy.No.2, old Sy.No.105/31. He stated that land
bearing Sy.No.105/31 was granted to him by the Deputy
Commissioner for Abolition of Inams on 06.10.1964 and an
endorsement to that effect was also issued to him. He stated
that the land granted to him i.e., Sy.No.105/31 was
measured and after pakka phodi work, boundaries were fixed
during October, 1966 and new Sy.No.2 was assigned to it.
4. He stated that this land, which had been granted to
him, had been encroached upon by the defendants and
despite several requests, defendants had failed to hand over
possession forcing him to approach the Special Deputy
Commissioner to initiate eviction proceedings. He stated that
the Special Deputy Commissioner had passed an order dated
18.08.1986 directing the Tahsildar to evict the defendants,
against which, an appeal was preferred to the Karnataka
Appellate Tribunal and the Tribunal had allowed the appeal
and directed the plaintiff to approach the Civil Court and as a
consequence, had filed the suit.
5. Defendants 1 and 2 filed a common written statement.
They stated that the land bearing Sy.No.105/16 had been
granted to their late father Channegowda under the Inams
Abolition Act by an order of the Deputy Commissioner dated
18.07.1964 and ever since the said order, their father was in
possession till his death and thereafter, defendants had
continued in possession. They stated that after pakka phodi
work, the said land was renumbered as Sy.No.106.
6. Defendants 3 and 4 were placed ex parte and therefore,
did not contest the suit.
7. Defendant No.5 stated that he had purchased 5 acres of
land in Sy.No.105/18 from its original owner and
Sy.No.105/15 measuring 5 acres was granted to him. He
stated that after pakka phodi work, the said lands were
renumbered as Sy.Nos.109 and 108, respectively and he was
in possession of the said lands ever since.
8. The defendants, thus, set up a plea that they were
granted the land bearing Sy.Nos.105/16, 105/18 and 105/15.
9. The Trial Court, on consideration of the evidence
adduced before it, came to the conclusion that the plaintiff
had proved his title to the suit properties, but the suit was
barred by time and therefore, the plaintiff was not entitled for
any decree. It accordingly dismissed the suit.
10. In appeal, the Appellate Court, on re-appreciation of
evidence, came to the conclusion that the suit was not barred
by limitation and the plaintiff had succeeded in establishing
both title and identity of the suit properties. The Appellate
Court came to the conclusion that there had been an
encroachment by the defendants and therefore, the judgment
of the Trial Court could not be sustained and accordingly
reversed the judgment and proceeded to decree the suit.
11. It may be relevant to state here that while disposing off
the appeal, the Appellate Court also allowed the application to
amend the plaint by which the survey numbers were
permitted to be changed at the request of the plaintiff on the
ground that incorrect survey numbers were mentioned earlier
due to a typographical error.
12. It is against these divergent judgments, the present
second appeal has been preferred.
13. The following two substantial questions of law have
been formulated by this Court, while admitting the appeal:
1. Whether the Lower Appellate Court has erred in
considering the question relating to limitation as
against the view taken by the Trial Court on this
aspect of the matter?
2. Whether the manner in which the Lower Appellate
Court has allowed the application under Order 6
Rule 17 CPC permitting amendment has affected
the right of the appellants herein?"
14. Sri B.S.Nagaraj, learned counsel for the appellants
contended that having regard to the fact that the grant was
of the year 1964 and the suit was filed in the year 1989, it
was obvious that the prayer for declaration was time barred.
He also contended that the Appellate Court had allowed the
amendment application without affording a reasonable
opportunity to the defendants to counter the amendment and
the same had seriously affected their rights.
15. Learned counsel for the appellants submitted that
neither the plaintiff's grant, nor the defendants' grant
indicated any boundaries and the survey authorities, after
noticing the actual physical possession of parties, had
demarcated the same and therefore, the Appellate Court was
not justified in coming to the conclusion that there had been
encroachment by the defendants.
16. In this case, the plaintiff does not dispute that certain
lands were granted to the defendants. Similarly, defendants
also do not dispute that certain lands were granted to the
plaintiff. The plaintiff admits that land bearing Sy.No.105/31
was granted to him, while defendants 1 and 2 admit that land
bearing Sy.No.105/16 was granted to them and defendant
No.5 admits that he had purchased 5 acres of land in
Sy.No.105/18 and 5 acres of land bearing Sy.No.105/15 was
granted to him. Therefore, all the parties own the lands which
carry a distinct survey numbers and from this, it follows that
all of them are separate bits of land.
17. The Appellate Court, on re-appreciation of evidence and
placing reliance on Ex.P.29 - a sketch prepared after notice
to all the affected persons, came to the conclusion that there
had been an encroachment by the defendants. The Appellate
Court noticed that the said sketch indicates that land which
had been granted to the plaintiff had been encroached upon
by the defendants and therefore, the plaintiff's suit was
entitled to succeed.
18. The plaintiff has been able to produce revenue sketch
which indicated that the land granted to him had initially been
subjected to podhi work in the year 1966 and thereafter, a
survey sketch was prepared indicating the portions of the
very land that had been granted to the defendants. The
Appellate Court, on comparison of the revenue sketches
prepared at different points in time, has concluded that there
had been an encroachment by the defendants. This finding of
the Appellate Court that there had been an encroachment by
the defendants is fundamentally a question of fact which
cannot be gone into in a second appeal.
19. As far as the first question of law framed, the Appellate
Court has noticed that the suit could not be said to be barred
by limitation. It is to be stated here that defendants had, at
no point of time, denied the title of the plaintiff. In fact, the
title of the plaintiff over the land was never in question. The
plea set up was that the defendants had also been granted
lands by the Deputy Commissioner and they had not
encroached upon the plaintiff's land. In such an event, the
question of the suit being barred by limitation under Article
58 of the Limitation Act would not arise. This question would,
therefore, has to be answered against the appellants.
20. The second question of law as to whether the Appellate
Court was justified in allowing the amendment application
and thereby affecting the right of the appellants is concerned,
it is to be stated here that by way of amendment the plaintiff
only sought to change the survey number from 105/32 to
105/31. It has been stated in the affidavit accompanying the
application that there was a typographical error while
mentioning the survey numbers. By virtue of the said
amendment, the plaintiff did not seek to substitute a new bit
of land since the boundaries provided earlier were not sought
to be changed or altered. The mere change of a wrong survey
number in the schedule, by way of an amendment would not,
in any way, affect the right of the defendants. I am,
therefore, of the view that the second question of law also
have to be held against the appellants.
21. In the light of the discussions made above, there is no
merit in the second appeal and the same is accordingly
dismissed.
Sd/-
JUDGE
PKS
