Karnataka High Court

Basawaraj vs Girimallappa on 8 March, 2022

Bench: Ashok S. Kinagi

                            1




          IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 8TH DAY OF MARCH, 2022

                         BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI


                   RSA No.2417/2007
BETWEEN:

1.     BASAWARAJ
       S/O BANDEPPA AURAD
       AGE:58 YEARS, OCC:AGRICULTURE

2.     SMT. KAMALA
       W/O BASAWARAJ AURAD
       AGE:48 YEARS, OCC: HOUSEHOLD

       BOTH ARE R/O VIDYANAGAR COLONY
       H.NO.11-1814/4, NEARBY S.B.COLLEGE
       GULBARGA-1
                                            ...PETITIONERS

(BY SRI A. M. NAGARAL, ADVOCATE)

AND:

1.     GIRIMALLAPPA
       S/O GURUSIDDAPPA KAMLAPURKAR
       AGE: 80 YEARS, OCC: RETIRED EMPLOYEE

2.     AMBARAYA
       S/O GIRIMALLAPPA KAMALAPURKAR
       AGE: 50 YEARS, OCC: EMPLOYEE IN POLICE DEPT.

3.     SHIVAKANTH
       S/O GIRIMALLAPPA KAMLAPURKAR
       AGE: 43 YEARS, OCC: EMPLOYEE IN POLICE DEPT.
                            2




4.   SHARNAPPA
     S/O GIRIMALLAPPA KAMALAPURKAR
     AGE: 28 YEARS, OCC: NIL

ALL R/O OF VIDYANAGAR COLONY
NEARBY S.B.COLLEGE, H.NO.1814/1A
GULBARGA-1

                                         ....RESPONDENTS

(BY SRI SHIVAKUMAR R. TENGLI, ADV. FOR R1 TO R4)

       THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 30.07.2007
PASSED IN R.A.NO 15/07 ON THE FILE OF THE II ADDL. CIVIL
JUDGE (SR.DN.) GULBARGA, CONFIRMING THE JUDGMENT AND
DECREE DATED 13.12.2006 PASSED IN O.S.NO.454/2003 ON
THE FILE OF THE II ADDL. CIVIL JUDGE, (JR.DN), GULBARGA
AND ALLOW THE SUIT OF THE APPELLANT.

      THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-


                     JUDGMENT

This appeal is filed challenging the judgment and

decree dated 30.07.2007, passed in R.A.No.15/2007

by the II Additional Civil Judge (Sr.Dn.), Gulbarga

confirming the judgment and decree dated

13.12.2006 passed in O.S.No.454/2003 by the II

Additional Civil Judge (Jr.Dn.), Gulbarga.

2. For the sake of convenience, parties are

referred to as per their ranking before the Trial Court.

Appellants are the plaintiffs and respondents are the

defendants before the Trial Court.

3. Facts giving rise to the filing of the appeal

briefly stated are as under:

3.1 Plaintiffs have filed a suit for perpetual

injunction in respect of suit properties towards

western half portion of plot bearing CTS No.2301

Block-7 measuring 50ft. x 50ft. and eastern half

portion of plot bearing CTS No.2301 Block-7

measuring 50ft.x50ft. It is the case of the plaintiffs

that plaintiff No.1 is the husband of plaintiff No.2.

Defendant No.1 is the father of defendant Nos.2 to 4

and late Smt. Eramma was the wife of defendant

No.1. One Sidramappa was the owner in possession of

plot measuring 100ft.x50ft. at ILH Colony, MSK Mill

Road, Gulbarga. The said Sidramappa sold the said

plot in favour of Virupaksha S/o Rachayya Swamy

under a registered sale deed. The plaintiff No.1

purchased the plot measuring 50ft. x 50ft. from the

said Virupaksha under a registered sale deed dated

31.10.1988 for consideration of `15,000/-. Plaintiff

No.2 purchased the remaining half portion of the plot

from the said Virupaksha on the same day under

registered sale deed. Both the plaintiffs were put in

possession of the entire plot of their vendor on the

execution of registered sale deeds. The said plot is

being used as single plot by the husband and wife and

is given single city survey number as CTS No.2301

Block-7. It is contended that plaintiffs have

constructed compound wall around the whole single

plot on the eastern, western and southern sides at the

height which varied from 4ft. to 6ft. To the south of

the suit plots, there is property of late Smt. Eramma,

wife of defendant No.1 measuring 100ft. x 27ft. which

was purchased by her from Sidramappa under a

registered sale deed on 13.08.1976. It is contended

that in between the properties of the plaintiffs and late

Smt. Eramma, there is common passage of 6ft. but in

the sale deed of Eramma, width of common passage

was shown as 4ft., but not shown the existence of

common passage. Late Smt. Eramma constructed a

house in the portion of her plot on the western side.

Late Smt. Eramma died some years back leaving

behind the defendants who are in possession and

enjoyment of her plot with the constructed house. But

taking undue advantage of wrong entries in the City

Survey Records regarding the extent of suit property

and that of the lane, the defendants started pulling

down southern compound wall of the plaintiffs and

started encroaching upon the common passage. The

plaintiffs requested the defendants not to demolish

the compound wall. But the defendants refused.

Hence, cause of action arose for the plaintiffs to file a

suit.

3.2 Defendant Nos.1 and 2 filed the written

statement and same came to be rejected, as the same

was not filed within the stipulated time. Defendant

No.4 filed written statement denying the averments

made in the plaint. It is contended that the description

of the suit property as shown in the plaint is not

correct and also measurement of the property shown

in the plaint is incorrect. The property of the plaintiffs

in total is measuring east-west towards north 90 ft.;

east-west towards south 86ft.; north-south towards

east-46ft; north-south towards west-50ft. It is

contended that the vendors of the plaintiffs were not

the owners of plot measuring 100ft. x 50ft. at any

time. Further, he had no right to execute the sale

deed in favour of plaintiffs to an extent of 100ft. x

50ft. i.e., 50ft. x 50ft. each. It is contended that

plaintiffs have not acquired any right, title, interest to

more than the area which was owned by Virupaksha.

The defendant No.4 denied about the existence of 6ft.

common passage between the properties of the

plaintiffs and that of Late Smt. Eramma. It is

contended that 4ft. lane shown in the registered sale

deed of Late Smt. Eramma was left for the use of the

purchaser i.e., Late Smt. Eramma, but it is not the

common passage. It is denied that defendants are

encroaching upon the properties of the plaintiffs. It is

contended that suit of the plaintiffs without seeking

relief of declaration and possession is not maintainable

and same deserves to be dismissed. Hence, prayed to

dismiss the suit.

3.3 The Trial Court, on the basis of pleadings of

parties, framed the following issues:

1. Whether the plaintiffs prove the existence of 6feet common passage between the properties of plaintiffs and defendants?

      2.    Whether    the       plaintiffs    prove      that   the
            defendants     pulled        down       the   southern
            compound      wall     and    are    making       illegal

construction on the 6 feet common passage as alleged?

3. Whether the plaintiffs further prove the interference by the defendants as alleged?

4. Whether the plaintiffs are entitled for injunction as claimed?

5. What order or decree?

3.4 In order to prove their case, the plaintiffs

examined plaintiff No.1 as P.W.1 and examined two

witnesses as P.Ws.2 and 3 and got marked Ex.P1 to

P13. On the other hand, defendant No.4 was

examined as D.W.1 and examined 2 witnesses as

D.Ws.2 and 3 and got marked documents as Ex.D1 to

D8. The Trial Court, after recording evidence of the

parties and considering the material on record, held

that the plaintiffs have failed to prove the existence of

6ft. common passage between the properties of the

plaintiffs and defendants; further recorded a finding

that the plaintiffs have failed to prove that the

defendants pull down the southern compound wall and

making illegal construction in the 6ft. common

passage as alleged; further recorded a finding that the

plaintiffs have failed to prove the interference by the

defendants and held that the plaintiffs are not entitled

for injunction and consequently dismissed the suit of

the plaintiffs.

3.5 The plaintiffs aggrieved by the judgment

and decree passed by the trial Court preferred an

appeal in R.A.No.15/2007. The appellate Court had

framed the following point for its consideration:

"1. Whether the judgment and decree in O.S.No.454/2006 unsustainable for not justifying the Court below appreciating the oral and documentary evidence in a proper and

legal manner it being perverse, illegal, erroneous, warrants interference?"

3.6 The First Appellate Court, after re-

appreciation of the evidence on record, dismissed the

appeal filed by the plaintiffs. Hence, the plaintiffs

aggrieved by the judgment and decree passed by the

courts below have preferred this second appeal.

3.7 This Court on 05.03.2009 admitted the

appeal on the following substantial question of law:

"Whether in the facts and circumstances of the case more appropriately the admission of DW4 that there exists a common passage between the suit schedule property and that of defendant, the Courts below were justified in dismissing the suit?

(Note: The defendants have examined only three witnesses namely D.W.1, D.W.2 and D.W.3. While framing the substantial question of law, instead of typing as D.W.1, it has been wrongly typed as D.W.4. The same has to be read as D.W.1 instead of D.W.4)

4. Heard Sri A.M.Nagaral, learned counsel for

the plaintiffs and Sri Shivakumar R. Tengli, learned

counsel for the defendants.

5. Learned counsel for the appellants submits

that plaintiffs have purchased the property and there

exists a lane in between the properties of the plaintiffs

and property of late Smt. Eramma i.e., mother of

defendants. He further submits that in the registered

sale deed of late Smt. Eramma, there is recital in

respect of common passage of 4ft. in between the

properties of plaintiffs and late Smt. Eramma. The trial

Court without considering the recital in respect of

common passage in the sale deed of Late Smt.

Eramma has recorded a finding that the plaintiffs have

failed to prove the existence of 6ft. common passage

between the properties of the plaintiffs and

defendants. He further submits that as per Section 58

of the Indian Evidence Act, 1872 the facts admitted

need not be proved. He further submits that the

Courts below have not properly appreciated the

material available on record. Hence, he submits that

the impugned judgments and decrees passed by the

Courts below are arbitrary, capricious and erroneous.

Hence, on these grounds, he prays to allow the

appeal.

6. Per contra, learned counsel for the

defendants submits that plaintiffs have filed a suit for

bare injunction wherein the defendant No.4 has

specifically denied the measurement of the property

owned by the plaintiffs. He further submits that in

survey records, there is no existence of alleged

common passage in between the properties of the

plaintiffs and Late Smt.Eramma. He further submits

that tonch map produced by the defendants is marked

as Ex.D.4 and the same is the public document. There

is presumption under law. He further submits that the

plaintiffs except leading oral evidence has not placed

any other document to establish the existence of

common passage as alleged in the plaint. He further

submits that the Courts below were justified in

passing the impugned judgments and decrees. Hence,

on these grounds, he prays to dismiss the appeal.

7. Perused the records and considered the

submissions made by learned counsel for the parties.

8. It is not in dispute that the plaintiffs have

purchased the property under registered sale deed as

per Ex.P.9 and 10. The plaintiffs have not produced

any record to establish that their vendor was the

owner and in possession to the extent of 100ft. x 50ft.

The plaintiffs have purchased the said property in the

year 1988 wherein in 1974 the City Survey

Department conducted the mass survey in Gulbarga

city and surveyed all the properties and assigned CTS

numbers to the properties which are in possession of

their respective owners. The Survey Records has

assigned the CTS numbers to the properties of the

plaintiffs bearing CTS No.2301 and that of property of

defendants CTS No.2302. P.W.1 in the course of

cross-examination has admitted that mass survey was

conducted in Gulbarga in the year 1974 and CTS

numbers were assigned to the properties of which the

owners were in actual possession. The plaintiffs have

produced the registered sale deed which are marked

as Ex.P.9 and P.10, which discloses that the properties

purchased by the plaintiffs bear CTS No.2301. In

order to establish the existence of 6ft. common

passage in between the properties of plaintiffs and

Late Smt. Eramma , the plaintiffs are relying upon the

registered sale deed as per Ex.P.11, executed in

favour of late Smt.Eramma. Ex.P.11 discloses that

towards northern side of the property purchased by

Late Smt. Eramma, it is shown as 4 ft. lane but the

sale deed does not indicate that the 4ft. lane is

common lane in between the properties of vendor of

the plaintiffs and Late Smt. Eramma. The defendants

have produced the tonch map marked as Exs.D6 and

7 which are prepared by the Survey Department,

while discharging their duties. The said documents are

public document and there is a presumption under

Section 83 of the Indian Evidence Act, 1872 which

reads as under:

"83. Presumption as to maps or plans made by authority of Government. The Court shall presume that maps or plans purporting to be made by the authority of (the Central Government or any State Government) were so made and are accurate; but maps or plans made for the purposes of any cause must be proved to be accurate."

9. Section 83 provides the Courts shall

presume that maps and plans made by the authority

of the Central Government and State Government are

proved to be accurate. The Courts below relying upon

Exs.D.6 and D7, have presumed to be accurate and

held that the plaintiffs have failed to establish the

existence of common passage in between the

properties of plaintiffs and late Smt. Eramma as

alleged in the plaint. It is the case of the plaintiffs that

defendant No.4 has admitted in the course of cross-

examination that there exists a common passage

between the suit schedule property and that of the