Karnataka High Court

Gundappa vs Kariyanna on 4 January, 2022

Bench: M.G.S. Kamal

                           1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 04TH DAY OF JANUARY, 2022

                        BEFORE

        THE HON'BLE MR.JUSTICE M.G.S.KAMAL

         REGULAR SECOND APPEAL NO.1794/2014


BETWEEN:

GUNDAPPA
S/O GUNDAPPA
AGED ABOUT 57 YEARS
R/O MARITHIMMANAHALLI VILLAGE
KASABA HOBLI
MADHUGIRI TALUK
                                     ...   APPELLANT

(BY SRI KASHYAP N. NAIK, ADVOCATE)

AND:

1.     KARIYANNA
       S/O GOPANNA
       SINCE DEAD
       REPRESENTED HEREIN BY HIS LRS

       1A.   PUTTAHANUMAKKA
             AGED ABOUT 57 YEARS

       1B.   SHANTHAMMA
             AGED ABOUT 32 YEARS

       1C.   SUJATHA
             AGED ABOUT 29 YEARS
                               2


     1D.   BHASKARA
           AGED ABOUT 26 YEARS

           ALL ARE R/O
           MARITHIMMANAHALLI VILLAGE,
           KASABA HOBLI,
           MADHUGIRI TALUK.

2.   THE SECRETARY
     SIDDAPURA GRAM PANCHAYAT
     SIDDAPURA, KASABA HOBLI
     MADHUGIRI TALUK.
                                         ... RESPONDENTS

(BY SRI G.S.BALAGANGADHAR, ADVOCATE FOR R1(A - D);
    R2 SERVED)


     THIS APPEAL IS FILED UNDER SEC.100 READ WITH
ORDER XLII RULE 1 OF THE CODE OF CIVIL PROCEDURE
AGAINST THE JUDGEMENT & DECREE DTD 2.7.2014
PASSED IN R.A.NO.60/2007 ON THE FILE OF ADDITIONAL
SENIOR     CIVIL    JUDGE     AND       JMFC,   MADHUGIRI,
DISMISSING    THE    APPEAL       AND    CONFIRMING   THE
JUDGEMENT AND DECREE DTD 9.1.2007 PASSED IN
OS.NO.163/99 ON THE FILE OF PRINCIPAL CIVIL JUDGE
(JR.DN.), MADHUGIRI.



     THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
                             3


                      JUDGMENT

Present regular second appeal is filed by the

appellant-plaintiff aggrieved by the judgment and

decree dated 02.07.2014 passed in R.A.No.60/2007

on the file of the Additional Senior Civil Judge and

JMFC at Madhugiri (hereinafter referred to as the

'First Appellate Court') dismissing the appeal of the

plaintiff and confirming the judgment and decree

dated 09.01.2007 passed in O.S.No.163/1999 on the

file of the Principal Civil Judge (Jn. Dn.) at Madhugiri

(herein after referred to as the 'Trial Court') which had

declared the plaintiff to be a absolute owner in

possession and enjoyment of 'A' schedule property

and had dismissed the suit of the plaintiff to the

extent of relief of permanent injunction in respect of

'B' schedule property.

2. Case of the plaintiff is:

(a). That he is the absolute owner of the

possession and enjoyment of the suit schedule

property bearing assessment No.147/673/166 of

Marithimmanahalli described as 'A' schedule property.

That the said site was allotted to the plaintiff by virtue

of Hakkupatra bearing No.193/88-89 dated

28.05.1988 by the defendant No.2-Mandala

Panchayath. The plaintiff had constructed a

residential house in an area of 24 feet east to west

and 17 feet north to south of the 'A' schedule property

in the year 1989 after obtaining licence from

defendant No.2-Mandal Panchayath. The house of the

plaintiff is facing towards east and he had left 13 feet

space towards east as front yard in as much as on the

eastern boundary of the plaintiff's property there is a

road running north to south having width of about 30

feet. That the said road was being used by the public

for the purpose of walking and taking carts and no

one had any right to put up any permanent structure

on the said portion of the property on the eastern side

which is described as 'B' schedule property in the

plaint.

(b). It is a further case of the plaintiff that

though defendant had no manner of right over the

said portion of the schedule 'B' property, had been

making hectic efforts to dig and put up of construction

over the same and thereby curtailing the right of the

access to the plaintiff's house from the eastern side.

That the plaintiff had filed complaint about this

illegality to the concerned defendant No.2-Mandal

Panchayath and to the police in vain. That despite

there being a temporary injunction granted by the

Court not to put up the construction on the schedule

'B' property, defendant had forcibly in an highhanded

manner put up the construction over the schedule 'B'

property which was liable to be demolished. Hence,

plaintiff sought for a relief of declaration declaring him

to be a absolute owner in possession and enjoyment

of the schedule 'A' property, for a permanent

injunction and mandatory injunction directing the

defendant No.1 to demolish the construction of

building over the 'B' schedule property.

3. Defendant No.1 filed written statement;

(a) Denying the case of the plaintiff. It is further

contended that under the Government Scheme

number of sites were formed in the land bearing

Sy.No.24 of Marithimmana village and out of those

sites, site bearing No.21 measuring north to south 40

feet, east to west 30 feet was allotted to the

defendant as per the Hakkupatra dated 31.03.1997.

That ever since the date of allotment to defendant

No.1, he has been in actual physical possession of the

same. Khatha for the said site has also been made out

in the name of the defendant and that he is paying

the property tax to the Panchayath. That the

defendant had applied for a loan under Indira Aawaz

scheme and constructed building thereon, after the

spot inspection, verification of documents and upon

the recommendation of Panchayath authorities loan

was sanctioned to the defendant No.1 and accordingly

defendant No.1 laid foundation and constructed

portion of walls thereon. That he had left 4 feet space

on the western side of his property. That the site

number of plaintiff is 20 and not 21 and if there was a

mistake in mentioning the numbers in the Hakkupatra

the same could be rectified.

(b). It is a further case of the defendant that on

the eastern side of boundary of the 'A' schedule

property is the site bearing No.21 and there is no road

towards eastern boundary of the schedule 'A' property

as claimed by the plaintiff. That as per the documents

produced by the defendant, he is the owner of the site

No.21 which is bounded on the east by road, west by

site No.20 and north by site No.16 and both the

plaintiff and defendant have access to their properties

from southern side and none of the villagers or the

Panchayath authorities have obstructed the defendant

No.1 in constructing the building on his site. Suit of

the plaintiff is filed with malafide intention taking

undue advantage of wrong description mentioned in

his Hakkupatra. That on western boundary of the

plaintiff's site is site No.19 which is granted to

Thippanna now in occupation of Smt. Sannanagamma

on the northern boundary there is a house of

Gangamma in site No.16. The relief sought for by the

plaintiff in respect of 'B' schedule property is without

any cause of action. As such, sought for dismissal of

the suit.

4. The plaintiff had initially filed suit for

declaration and permanent injunction and

subsequently sought for relief of mandatory injunction

seeking demolition of construction put up by the

defendant on the eastern boundary of the plaintiff's

property which is on the 'B' schedule property.

5. The Trial Court based on the pleadings

framed the following issues:

"(1). Whether the plaintiff proves that he is the absolute owner in possession and enjoyment of 'A' schedule property?

(2) Whether plaintiff proves that 'B' schedule property is a road?

(3) Whether defendant proves that he has been granted site No.21 in Sy.No.24 of Marithimmanahalli and the site granted to plaintiff is site No.20?

(4) Whether plaintiff proves that defendant has put up construction over 'B' schedule property during the pendancy of the suit?

(5) Whether suit is valued properly and Court fee paid is sufficient?

(6) Whether plaintiff is entitled to the relief sought?

(7) What decree or order?

Additional Issue No.1:


(1)    Whether 2nd defendant proves that
site   numbers      of      both       plaintiff     and
defendant     are   site    No.21       and   site    of

defendant is situated to the east of suit 'A' schedule site and the road is situated to the east of defendants site?"

6. The plaintiff examined himself as P.W.1

and marked 27 documents as Ex.P.1 to Ex.P.27(a)

and defendant examined himself as D.W.1 and has

got examined defendant No.2 as D.W.2 and exhibited

eight documents as Ex.D.1 to Ex.D.8. On appreciation

of evidence, the Trial Court decreed the suit of plaintiff

to the extent declaring him to be the absolute owner

in possession and enjoyment of schedule 'A' property.

The suit of the plaintiff to the extent of relief of

permanent injunction restraining defendant from

interfering with 'A' schedule property and for

mandatory injunction to demolish the house

constructed by defendant No.1 over 'B' schedule

property is dismissed by the trial Court by its

judgment and decree dated 09.01.2007.

7. Aggrieved by the same, plaintiff preferred

appeal in R.A.No.60/2007 before the First Appellate

Court. Considering the grounds urged by the plaintiff,

the First Appellate Court framed the following points

for consideration.

"(1). Whether the refusal of the grant of the injunction by the Trial Court was correct?

(2) Whether the impugned judgment and decree requires interference by this Court?

(3) What order or decree?"

And consequently dismissed the appeal and confirmed

in the judgment and decree passed by the Trial Court.

Aggrieved by the same, the plaintiff is before this

Court in this regular second appeal.

8. The learned counsel appearing for appellant

reiterating the grounds urged in the appeal

memorandum submitted that First Appellate Court and

Trial Court having conclusively held that the plaintiff is

owner of the property bearing site No.21 and that

there was a road on the eastern side of his property

as an the date of allotment of the site to the plaintiff,

erroneously dismissed the suit of the plaintiff for

permanent and mandatory injunction with respect to

'B' schedule property. That the burden of proof was

placed on defendant No.1 to prove existence of site

No.20 and defendant not having discharged the

burden by producing acceptable documentary

evidence, the Courts below have accepted the

contention of the plaintiff though there is discrepancy

in his evidence. That though Secretary of Grama

Panchayath has been examined as the D.W.2 and who

deposed that both the sites have been numbered as

site No.21, has not produced any documentary

evidence such as village map or any other document

and in the absence of documentary evidence, the

Courts below erred in relying upon the oral deposition

of D.W.2, thus resulted in injustice to the plaintiff.

That the plaintiff 's schedule property bearing No.21

was allotted to the plaintiff in the year 1989 and site

No.21 again was allotted to the defendant in the year

1997. That the Courts below despite availability of

Hakkupatra as Ex.D.2 having identical numbers and

boundaries have erred in appreciating the same with

regard to non-existence of the property being claimed

by the defendant. That though Trial Court had held

that on the eastern side of the plaintiff's property was

a road, however, erred in observing that Grama

Panchayath had later created a site and that there

was no longer road on the eastern boundaries of the

plaintiff's site, which finding is devoid of any factual

basis. He further submits that in view of the aforesaid

erroneous finding of facts by the Courts below with

regard to the existence of road on the northern side,

the right of the plaintiff has been adversely affected

giving rise to substantial question of law in the appeal.

Hence, seeks for allowing the appeal.

9. On the other hand, learned counsel

appearing for the respondent-defendant justifying the

judgment and decree passed by the Trial Court

submits that there is no confusion with regard to the

allotment of site No.21 measuring 30 X 40 feet in the

year 1988-89 in favour of the plaintiff so also

allotment of site No.21 measuring 30 X 40 feet, in the

year 1997 in favour of the defendants No.1. He

submits both the sites bearing the same number and

the road which is shown on the eastern side of the

plaintiff's property is infact is situated on the eastern

side of the property of the defendant which is

described as 'B' schedule property.

(a). He further submits that on the southern

side of the sites belonging to the plaintiff and

defendant No.1 there is a road on the northern side of

the site of the plaintiff is site No. 17 and northern side

of site of defendant is site No.16. Thus, he submits

there was no road on the eastern side of the property

as rightly concluded by the Courts below.

(b). He further submits that the plaintiff not

having any right over the schedule 'B' property is not

entitled for any relief as has been rightly declined by

the First Appellate Court and Trial Court, as such there

is no substantial question of law involved in the

matter for adjudication.

10. On thoughtful consideration of the

submissions made by the learned counsel appearing

for the appellant and respondents and on perusal of

the pleadings and the grounds urged in the appeal

memorandum, it is seen that admittedly the plaintiff

was allotted a site-'A' schedule property in terms of

Hakkupatra as per Ex.P.1 in the year 1988-89 which

measured east to west 40 feet, north to south 30 feet

bounded on the east by road, west by site No.20,

north by site No.17 and south by road. It appears,

plaintiff constructed the house on the portion of the 'A'

schedule property at that relevant point of time.

According to the plaintiff on the eastern side there

was a road. Therefore, he had kept the entrance of his

house facing at the east. Subsequently, in the year

1997 defendants claiming to have been allotted a site

on the eastern side of 'A' schedule property, started

putting up construction obstructing the access of the

plaintiff to his property from the eastern side resulting

in plaintiff filing the present suit for declaration and

injunction.

11. The case of the defendant is that he was

also allotted a site measuring 30X 40 feet by the

second respondent- Panchayath in terms of Hakku

patra as per Ex.D.2 measuring east to west 30 feet,

North to South 40 feet bounded on east by a road,

west by site No.20, north by site No.16 and south by

road. That on obtaining a financial assistance he

constructed a building on the said property. The Trial

Court and First Appellate Court taking into

consideration of the aforesaid factual aspects of the

matter and also the oral evidence made available

concluded that the plaintiff was indeed the owner of

the property bearing site No.21 as described in plaint

'A' schedule property. However, declined to grant

injunction and relief of mandatory injunction in

respect of plaint 'B' schedule property which is the

property allotted by the defendant No.2 in favour of

the defendant No.1.

12. The plaintiff in the plaint has sought for the

following relief;

"(a). For declaration that the plaintiff is the absolute owner in possession and enjoyment of the 'A' schedule property and for consequential relief of permanent injunction restraining the defendant, his agents, servants etc., as anybody who claiming under him from putting up any construction on the road portion i.e., in front of the plaintiff's 'A' schedule property (on its eastern side) detailed in the 'B' schedule property and thereby causing any interference with the plaintiff's peaceful possession and enjoyment of the 'A' schedule property by the plaintiff.