Smt Bettamma vs Sri Bettegowda Since Dead By His ...
2023 Latest Caselaw 5211 Kant

                                1          RSA NO.2094 OF 2008




       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 03RD DAY OF AUGUST, 2023

                          BEFORE

              THE HON'BLE MS.JUSTICE J.M.KHAZI

               R.S.A.NO.2094 OF 2008 (INJ)

BETWEEN:

1.     SMT. BETTAMMA
       W/O. LATE RAMEGOWDA,
       AGED ABOUT 68 YEARS,

2.     SRI. VENKATESHA
       S/O. LATE RAMEGOWDA,
       SINCE DEAD BY HIS LR'S

i.     SMT. SUJATHA (WIFE)
       AGED ABOUT 40 YEARS,

ii.    SRI. AVINASHA (SON)
       AGED ABOUT 20 YEARS,

iii.   KUMARI. ABILASH (DAUGHTER)
       AGED ABOUT 18 YEARS,

3.     SRI. SRIDHARA
       S/O. LATE. RAMEGOWDA,
       AGED ABOUT 45 YEARS,
       ALL ARE R/AT: MANCHEGOWDANAKOPPAL,
       HINKAL POST- 570017,
       MYSORE TALUK.
                                         ...APPELLANTS

(BY SRI. B.S. NAGARAJ, SMT. LEELA AND
    SRI. MALLAPPA, ADVOCATES)

       AND:

1.      SRI. BETTEGOWDA, SINCE DEAD BY HIS LRS.
                              2           RSA NO.2094 OF 2008




I     SMT. NARASAMMA, MAJOR,
      W/O. LATE BETTEGOWDA.

2.    SRI. KUMARA,
      SINCE DEAD BY HIS LRS.

I.    SMT. SAVITHRAMMA,
      AGED ABOUT 45 YEARS,
      W/O. LATE KUMARA.

II.   SRI. RAVI,
      AGED ABOUT 32 YEARS,
      S/O. LATE KUMARA.

III. ROOPA,
     AGED ABOUT 30 YEARS,
     D/O. LATE KUMARA,

3.    VIJENDRA S/O. LATE. BETTEGOWDA,

4.    KESHAVA S/O. LATE. BETTEGOWDA,

5.    JAYAMMA, D/O. LATE. BETTEGOWDA,

6.    PRAMILA D/O. LATE. BETTEGOWDA,

7.    YASHODA D/O. LATE. BETTEGOWDA,
      ALL ARE MAJORS,
      R/AT: MANCHEGOWDANAKOPPAL,
      HINKAL POST- 570017,
      MYSORE TALUK.
                                         ...RESPONDENTS
(BY SRI. K.R. AGNIHOTRI, ADVOCATE FOR R2(III)
    SRI. BHYRAPPA S., ADVOCATE ALONG WITH
    SRI. M.R. VIJAYAKUMAR, ADVOCATE FOR R2(I AND II)
    NOTICE TO R3, R4, R5, R6 AND R7 ARE SERVED;
    VIDE ORDER DATED 12.01.2010 R1 LRS ARE ALREADY
    ON RECORD)

     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CPC PRAYING TO CALL FOR THE
RECORDS IN O.S. NO.15/1993, ON THE FILE OF THE IIND
MUNSIFF MYSORE AND IN R.A.NO.206/2004, ON THE FILE OF
                                3                RSA NO.2094 OF 2008




LEARNED IIIRD ADDITIONAL DISTRICT AND SESSIONS
JUDGE AT MYSORE, AND ALLOW THIS APPEAL AND SET
ASIDE   THE   JUDGMENT    AND   DECREE  PASSED  IN
O.S.NO.15/1993 ON THE FILE OF THE IIND MUNSIFF
MYSORE, BY DISMISSING THE SUIT AND BY ALLOWING THE
R.A.NO.206/2004, DATED 08.07.2008, ON THE FILE OF
LEARNED IIIRD ADDITIONAL DISTRICT AND SESSIONS
JUDGE AT MYSORE AND PASS SUCH OTHER ORDER AS THIS
HON'BLE COURT MAY DEEM FIT IN THE CIRCUMSTANCES OF
THE CASE AND ALLOW THIS APPEAL WITH COST IN THE
INTEREST OF JUSTICE AND EQUITY.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
06.07.2023, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:


                        JUDGMENT

This appeal is by defendants against the concurrent

judgments and orders passed by the trial Court as well as

the First Appellate Court, decreeing suit filed by plaintiff for

the relief of permanent injunction in respect of suit

schedule property measuring 7 guntas in Sy.No.267 of

Hebbal Village, Mysuru Taluk.

2. For the sake of convenience, the parties are

referred to by their rank before the trial Court.

3. Plaintiff filed the suit in question contending that

he purchased land measuring 1 acre 25 guntas in

Sy.No.267 from Smt.Sannamma, W/o Karigowda and her 4 RSA NO.2094 OF 2008

son through registered sale deed dated 25.07.1966.

Defendants are the owners of land in the same Sy.No.

measuring 1 acre 28 guntas on the southern side.

3.1 It is further contended by the plaintiff that

during 1985 defendants encroached 7 guntas of plaintiff's

land and put up construction. Plaintiff approached the

Tahsildar and the dispute was registered in

RRT.No.113/1985-86. It was ended in compromise,

wherein defendant No.1 gave up her right over suit

schedule property in lieu of encroached 7 guntas of

plaintiff's land. In fact boundary stones were fixed by the

Surveyor to the suit schedule property. Subsequent to the

compromise in respect of suit schedule property, revenue

records were changed in the name of plaintiff and since

then he is in possession and enjoyment of the same.

3.2 However, on 10.01.1993, defendants tried to

remove the boundary stones and encroach upon suit

schedule property. Though concerned police warned the

defendants, they did not stop their illegal activities forcing

the plaintiff to approach the Court.

                                5              RSA NO.2094 OF 2008




      4.      Defendants    appeared     through      counsel.

Defendant No.1 filed written statement contending that in

Sy.No.267 excluding 2 guntas of Karab, only 3 acres 13

guntas was available. She is in possession and enjoyment

of 1 -31 guntas and not 1 acre 28 guntas as pleaded by the

plaintiff. There was only 1 acre 22 guntas available in the

said Sy.No. and therefore, it is not correct that plaintiff

purchased 1 acre 25 guntas.

4.1 Defendant No.1 admitted that a joint statement

was filed before the Tahsildar in RRT.No.113/1985-86,

wherein plaintiff agreed that she would not claim 7 guntas

in possession of defendants and defendant No.1 agreed to

give 7 guntas out of extreme northern portion of her

property. However, the said compromise petition is not

registered.

4.2 Plaintiff has sold almost all of his land in

Sy.No.267. He neglected to protect the suit schedule

property i.e. 7 guntas given to him under the compromise

before the Tahsildar. The MUDA Authorities have formed a

road in the said 7 guntas in 'L' shape. Plaintiff has also

allowed one Suresha and Chikkanna to encroach upon the 6 RSA NO.2094 OF 2008

said portion of land and construct building. The Karnataka

Electricity Board had also installed a transformer in a

portion of the said 7 guntas. Consequently suit schedule

property is not available.

4.3 Having lost the same, plaintiff started to make a

false claim over other portion of the land belonging to

defendant No.1, which remains to the south of 7 guntas of

land given to the plaintiff. Plaintiff tried to remove the

boundary stones put by the Surveyor and pitch the same

towards the southern side of existing southern tip of suit

schedule property. When defendant No.1 resisted the

same, plaintiff has filed the suit making false claim.

Defendant No.1 never attempted to encroach on the suit

schedule property. On the other hand it is the plaintiff who

is trying to encroach on the land of defendant No.1 situated

on the south of suit schedule property.

5. Based on the pleadings the trial Court framed

issues.

6. At the trial plaintiff examined himself as PW-1

and relied upon Ex.P1 to 9.

7 RSA NO.2094 OF 2008

7. Defendant No.1 examined herself as DW-1. No

documents were marked on her behalf.

8. Accepting the contention of the plaintiff, the trial

Court decreed the suit.

9. Aggrieved by it, defendants approached the

First Appellate Court in R.A.No.206/2004.

10. Vide the impugned judgment and order dated

08.07.2008, the First Appellate Court dismissed the appeal,

by confirming the order of the trial Court.

11. Being aggrieved by these concurrent findings,

defendants are before this Court urging the following:

GROUNDS

(i) Both trial Court as well as First Appellate Court has proceeded on irrelevant and inadmissible evidence and misread the evidence in arriving at its conclusion.

(ii) The trial Court erred in not considering Ex.P3

- RTC, which disclose that 7 guntas of land is situated in Sy.No.267/1 and not in the suit schedule property bearing Sy.No.267, thereby it is clear that suit schedule property is not in existence.

                                       8                    RSA NO.2094 OF 2008




      (iii)     The entire approach of the Courts below and
    appreciation          of   evidence    is   perverse     and      not

sustainable in law. The Courts below have failed to appreciate that after the joint memo filed before the Tahsildar, suit schedule property has lost its nature of agricultural land. In fact plaintiff has formed revenue sites and sold them to various persons. During his cross-examination, plaintiff has admitted the fact of MUDA having formed road in the suit schedule property. Having regard to the fact that the suit schedule property no longer exists, the Courts below have erred in decreeing the suit and prays to allow the appeal, by setting aside the impugned judgments and orders.

12. In support of the defence of

appellants/defendants, learned counsel representing them

has relied upon following decisions.

i. Bhoop Singh V/s Ram Singh Major and others (Bhoop Singh) 1

ii. Jharkhand State Housing Board V/s Didar Singh and another (Jharkhand State Housing Board)2

iii. Chawla Mohan Krishna Gupta V/s Neelgar Ranganath and another (Chawla)3

(1995) 5 SCC 709

2019 SAR (Civil) 37

2008(6) AIR Kar R 464 9 RSA NO.2094 OF 2008

iv. Yadarao Dajiba Shrawane (dead) by Lrs. V/s Nanilal Harakchand Shah (dead) and others (Yadarao)4

v. T.L.Nagendra Babu V/s Manohar Rao Pawar (Nagendra Babu) 5

13. Vide order dated 26.08.2010, the following

substantial questions of law have been framed by this

Court:

"(1) When it is borne out from the records that a portion of land adjoining the schedule property in Survey No.267 is used by Mysore Urban Development Authority to form a road as part of its layout, was the trial Court justified in decreeing the suit without making MUDA as a party to the suit and in the absence of proof regarding identity of the property?

(2) Is not the judgment of the appellate court bad for non-joinder of necessary parties?

(3) Merely on the assertion of the plaintiff and in the absence of evidence, were the trial Court and first appellate court justified in decreeing the suit?"

    2002 SAR (Civil) 718

    ILR 2005 KAR 884
                                   10               RSA NO.2094 OF 2008

14. Heard elaborate arguments of both sides and

perused the record.

15. Thus, it is the specific case of the plaintiff that

he and defendants, more particularly defendant No.1 are

neighbouring land holders in Sy.No.267 and defendant No.1

had illegally occupied 7 guntas belonging to him. He

approached the Tahsildar and a compromise entered into

between the plaintiff and defendant No.1, whereby plaintiff

agreed that defendant No.1 continued to be in possession

of the said 7 guntas and in lieu of the same, defendant

No.1 gave up her possession over suit schedule property,

measuring 7 guntas and since then plaintiff is in lawful

possession and enjoyment of the same. Alleging that prior

to the filing of suit defendants interfered with his

possession, he is forced to approach the Civil Court for

redressal.

16. In the written statement, defendants have

admitted that plaintiff and defendant No.1 are the adjacent

land owners in Sy.No.267. They have also admitted that a

dispute was raised before the Tahsildar and a compromise

entered into between plaintiff and defendant No.1 and 11 RSA NO.2094 OF 2008

defendant No.1 retained 7 guntas belonging to the plaintiff

and put him in possession of the suit schedule property in

lieu of the same.

17. However, defendants have taken up a specific

contention that plaintiff neglected to protect the 7 guntas

given in lieu of his property and allowed MUDA to form road

in a portion of it, one Suresh and Chikkanna have

encroached upon a portion of it and put up construction

and Karnataka Electricity Board has also installed a

transformer in a portion of the said property and thereby

entire 7 guntas was lost to the plaintiff. Having lost her

possession over the said 7 guntas, plaintiff is attempting to

illegally occupy portion of property of defendant situated on

the southern side of 7 guntas given to him and tried to shift

the boundary stones. Defendants have also taken up a

specific defence that both plaintiff and defendants have

formed sites in their respective properties and sold them

and thereby no cultivable land is left in the said survey

number.

18. Despite admitting the fact that in lieu of 7

guntas illegally occupied by her, defendant No.1 gave suit 12 RSA NO.2094 OF 2008

schedule property to the plaintiff and put him in

possession, during the course of her evidence. Defendant

No.1 has given a clear go by to the said admissions and

denied the suggestion to that effect. Her evidence is

contrary to the admissions and pleadings put forth by her

in the written statement. In the light of admissions in the

written statement that as per the compromise entered into

between the plaintiff and defendant No.1, plaintiff was put

in possession of suit schedule property and having regard

to the fact that the suit is one for bare injunction, whereby

plaintiff sought intervention of the Court to protect his

possession of suit schedule property, it is sufficient for the

plaintiff to prove that he is in lawful possession and

enjoyment of suit schedule property and there was

interference by the defendants.

19. Exhibit P8 is the compromise entered into

between the plaintiff and defendant No.1. Exhibit P9 is the

sketch prepared by the surveyor as per the directions of

the Tahsildar, in the light of compromise between plaintiff

and defendant No.1. It shows the location of 7 guntas

handed over by defendant No.1 to the plaintiff which is the 13 RSA NO.2094 OF 2008

suit schedule property. Exhibit P3 is the RTC extract in

respect of suit schedule property. During the course of his

cross-examination, plaintiff has denied that a road formed

by MUDA is passing over portion of suit schedule property.

He has specifically stated that the road in question is

passing on the western side of Suit schedule property.

20. Though plaintiff has admitted that he has

formed sites in Portion of the land in survey No.267

belonging to him, he has denied that he has allowed one

Suresha and Chikkanna to encroach upon portion of suit

schedule property and put up construction. He has

specifically stated that the building constructed by Suresha

and Chikkanna are situated on the western side of road

which is passing on the western side of survey No.267. He

has also denied KEB has installed a transformer in a portion

of suit schedule property and stated that it is by the side of

the road.

21. Though during the course of her evidence,

Defendant has reiterated the difference taken by her,

except her interested testimony, which is contrary to the

contents of the written statement and admissions contained 14 RSA NO.2094 OF 2008

therein, defendant has not chosen to produce any

documents to show that the road formed by MUDA is

passing through suit schedule property and that the

construction made by Suresha and Chikkanna is also in the

suit schedule property and that the transformer installed by

KEB is also situated in portion of suit schedule property and

thereby, the entire 7 guntas is utilized and no land is

available to the plaintiff. At least defendant could have

produced documents to show that in the entire property

belonging to him, plaintiff has formed sites. The documents

with regard to sites formed by plaintiff in other portion of

his property would have shed light to the boundaries of suit

schedule property. The boundaries of sites immediately

adjoining suit schedule property would have indicated that

suit schedule property is not a open land but consist of

Buildings, Road and also transformer installed by KEB.

22. In the light of oral and documentary evidence

lead by the plaintiff and also admission given by the

defendants in the written statement, plaintiff has

discharged the burden placed on him that he is in lawful

possession and enjoyment of suit schedule property and 15 RSA NO.2094 OF 2008

there was interference by the defendants. On the other

hand, it was for the defendants to prove their specific

defence and in the absence of the same, both trial court as

well as the first appellate court are justified in decreeing

the suit.

23. Defendants have contended that since the

compromise before the Tahsildar is not registered and as

such, the same has not enured to the benefit of plaintiff. In

this regard, learned counsel for defendants has relied upon

Bhoop Singh, wherein the Hon'ble Supreme Court held

that in the light of Section 17(2)(vi) of Registration Act,

1908, only the decree or order, including compromise

decree, creating new right, title or interest in presentee in

immovable property of value of Rs.100/- or above is

compulsorily registrable. In the present case, the plaintiff

and defendant No.1 have entered into compromise before

the Tahsildar. Based on the said compromise, the Tahsildar

has demarcated the suit schedule property. He has not

passed any order. Based on such compromise, plaintiff has

come into possession of suit schedule property. To protect

her possession, she has filed the suit in question. In the 16 RSA NO.2094 OF 2008

facts and circumstances of the case, this decision is not

applicable to the case on hand.

24. Having regard to the fact that defendant No.1

admit that in lieu of she being in possession of 7 guntas

belonging to the plaintiff, she has handed over suit

schedule property to the plaintiff and plaintiff is seeking a

bare injunction for protection of his possession over suit

schedule property, suit is perfectly maintainable and the

decision of the Hon'ble Supreme Court in Jharkhand State

Housing Board is not applicable.

25. In Chawla and Yadarao, the Hon'ble Supreme

Court discussed the circumstances in which interference is

justified by the High Court against the concurrent findings

of the trial Court and First Appellate Court. However in the

present case, no such justifiable grounds are forthcoming

to interfere with the concurrent findings in question.

Therefore, these two decisions also have no application to

the case on hand.

26. In Nagendra Babu, the co-ordinate bench of

this Court held that unless the court is satisfied with regard 17 RSA NO.2094 OF 2008

to the identification of property, no declaration and

injunction can be granted. However in the present case,

though the defendant tried to dispute the identification of

suit schedule property, the oral and documentary evidence

placed on record establish its identity. Therefore, this

decision has no application to the case on hand.

27. Since the suit is one for bare injunction and

plaintiff has proved his lawful possession and enjoyment

over suit schedule property and defendants have failed to

prove that a road formed by MUDA is passing through suit

schedule property, but on the other hand, the road referred

to by defendants is passing on the left side of suit schedule

property and plaintiff has not made any claim over the said

road passing adjoining the suit schedule property, the

presence of the said authority i.e., MUDA is not required for

deciding the suit in question and there is also no dispute

with regard to identity of suit schedule property and

therefore, substantial question number one is answered in

the affirmative.

28. Similarly, having regard to the fact that it is a

bare injunction suit, the presence of no other person except 18 RSA NO.2094 OF 2008

the defendants who have interfered with the plaintiffs

possession and enjoyment over suit schedule property is

required and accordingly, substantial question number two

is answered in the negative.

29. So far as substantial question number three is

concerned, having regard to the limited scope of the suit,

wherein a bare injunction is sought against the defendants

for their interference over the plaintiff's possession and

enjoyment of suit schedule property, there is sufficient

evidence led by the plaintiff to discharge the burden placed

on him. Consequently, both the trial court as well as first

appellate court as justified in decreeing the suit.

Accordingly, substantial question number three is answered

in the affirmative.

30. Thus from the above discussion, this Court is of

the considered opinion that no interference is called for by

this Court and accordingly, the following:

ORDER

i. The appeal filed by the defendants is dismissed.

19 RSA NO.2094 OF 2008

ii. The impugned judgment and order of the trial Court and First Appellate Court are confirmed.

iii. Registry is directed to send back the trial court records along with copy of this order forthwith.

Sd/-

JUDGE

RR/CLK