Karnataka High Court
Mr Anantrao S/O Gumanna Halgekar vs Mrs Begumbi W/O Kasimsab Nadaf Deceased ... on 19 December, 2023
-1-
RFA No. 100536 OF 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF DECEMBER, 2023
R
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 100536 OF 2022
BETWEEN:
1. MR. ANANTRAO S/O. GUMANNA @ GURUNNA
HALGEKAR, AGE: 71 YEARS, OCC: BUSINESS,
R/O: RUKAMINI PALACE, HINDWADI,
BELAGAVI-590011.
2. MR. BALASAHEB S/O. GURUANNA HALGEKAR,
AGE: 61 YEARS, OCC: BUSINESS,
R/O: RUKAMINI PALACE, HINDWADI,
BELAGAVI-590011.
Digitally signed
by 3. MR. SUDHIR S/O.GUMANNA @ GURUANNA HALGEKAR,
SHIVAKUMAR
HIREMATH AGE: 65 YEARS, OCC: BUSINESS,
Date: 2024.01.12
15:30:41 +0530 R/O: RUKAMINI PALACE, HINDWADI,
BELAGAVI-590011.
4. MRS. SANYOGEETHA W/O. SUDHIR HALGEKAR,
AGE: 57 YEARS, OCC: HOUSEHOLD,
R/O: RUKAMINI PALACE, HINDWADI,
BELAGAVI-590011.
...APPELLANTS
(BY SRI. ANANT R. MANDAGI, SENIOR COUNSEL FOR
SRI. SANGRAM S. KULKARNI, ADVOCATES)
-2-
RFA No. 100536 OF 2022
AND:
. MRS BEGUMBI W/O. KASIMSAB NADAF
SINCE DECEASED LRS ALREADY ON RECORD
1. MRS. ARFIA W/O. ABUBAKR NADAF,
AGE: 58 YEARS, OCC: HOUSEWIFE,
R/O: SANKESHWAR-591317, TAL: HUKKERI,
DIST: BELAGAVI.
2. MR. MUSHTAQ AHMMAD S/O. KASIMSAB NADAF,
AGE: 55 YEARS, OCC: BUSINESS,
R/O: SANKESHWAR-591317, TAL: HUKKERI,
DIST: BELAGAVI.
. MR. MEHBOOB AHAMAD S/O. KASIMAB NADAF
SINCE DECEASED BY HIS LRS
3. SMT. SHIREEN WD/O. MEHBOOB NADAF,
AGE: 62 YEARS, OCC: HOUSEWIFE,
R/O: #2741, SG ROAD, OPP BUS STAND,
SANKESHWAR, TALUKA HUKKERI,
DIST: BELAGAVI 591317.
4. SHRI MUSEEF S/O. MEHBOOB NADAF,
AGE: 37 YEARS, OCC: BUSINESS,
R/O: #2741, SG ROAD, OPP BUS STAND,
SANKESHWAR, TALUKA HUKKERI,
DIST: BELAGAVI 591317.
5. MR. MUKHTAR S/O. KASIMSAB NADAF,
AGE: 47 YEARS, OCC: BUSINESS,
R/O: SANKESHWAR-591317, TAL: HUKKERI,
DIST: BELAGAVI.
6. MR. MOHEEN ALI S/O. KASIMSAB NADAF,
AGE: 37 YEARS, OCC: BUSINESS,
R/O: SANKESHWAR-591317, TAL: HUKKERI,
DIST: BELAGAVI.
-3-
RFA No. 100536 OF 2022
7. MR. JAVED ALI S/O. KASIMSAB NADAF,
AGE: 49 YEARS, OCC: BUSINESS,
R/O: SANKESHWAR-591317, TAL: HUKKERI,
DIST: BELAGAVI.
8. ARVIND S/O. BALKRISHNA JADHAV,
AGE: 57 YEARS, OCC: BUSINESS,
R/O: PLOT NO. 289, BEHIND COMMERCE COLLEGE,
HOSTEL, HINDWADI, BELAGAVI-590006.
...RESPONDENTS
(BY SRI. V.M. SHEELAVANT ADVOCATE FOR R1 TO R7;
SRI. G.S. KANNUR, SENIOR COUNSEL FOR SRI ARVIND D.
KULKARNI, ADVOCATES FOR R8)
THIS REGULAR FIRST APPEAL FILED UNDER ORDER XLI
RULE 1 AND 2 R/W SECTION 96 OF C.P.C., PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED 20/08/2022
PASSED IN O.S.NO.08/2014 PASSED BY THE COURT OF II
ADDITIONAL SENIOR CIVIL JUDGE AND CJM BELAGAVI, BY
ALLOWING THE PRESENT APPEAL IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL HAVING BEEN HEARD, RESERVED ON
27.09.2023 AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY RAMACHANDRA D. HUDDAR J.,
DELIVERED THE FOLLOWING:
JUDGMENT
Appellants - defendant nos. 1 to 4 in OS No.8/14 on
the file of II Addl.Sr.Civil Judge and CJM, Belagavi, have
preferred this appeal being aggrieved by the judgment
RFA No. 100536 OF 2022
and decree dated 20.8.2022 passed by the Court
decreeing the suit of the plaintiffs.
2. Parties to this appeal are referred to as per
their rank before the trial Court for the purpose of
convenience.
3. The plaintiffs filed suit against defendants
seeking the relief of declaration, that they are the
exclusive owners of the suit property bearing CTS No.
3927/1 to the extent of 1600 sq. yds as referred to in the
sketch appended to the plaint with consequential relief of
permanent injunction retraining the defendants from
interfering with their possession and enjoyment of the
suit property, from making any changes to the nature of
suit property and also making any entries in the CTS
extract in respect of the suit property.
4. It is the specific case of the plaintiffs that
subject matter of the suit property is CTS No.3927/1
measuring 1600 sq.yds out of 3280 sq.yds. situate at
RFA No. 100536 OF 2022
Chavat Galli, near RTO Circle, Belgaum bounded by the
boundaries as under:
to the East: Remaining portion of CTS
No.3927/1 belonging to Defendant no.3
measuring 420 sq. yds.
to the West: Remaining portion of CTS
No.3927/1 belonging to Defendant no.3
measuring 420 sq. yds.
to the North: Main Road (Court Road)
to the South: Remaining portion of
CTS No.3927/1 belonging to Defendant
nos. 1 and 2 (Anant and Balasaheb)
each measuring 420 sq. yds.
5. It is the case of the plaintiffs that the suit
property was originally owned by Sri Kasimsab
S/o.Peersab Nadaf, the predecessor of the plaintiffs. He
purchased the suit property from one Mr.Arjun S/o.
Jayappa Bhujange and Mr. Bansilal S/o. Jayappa
Bhujange through their natural father Jayappa Narsing
Bhujange under Registered Sale Deed dated 15.03.1956.
Plaintiff No.1 is the wife, plaintiff nos. 2 to 7 are the
children of said Kasimsab Peersab Nadaf.
RFA No. 100536 OF 2022
6. It is the specific case of plaintiffs that their
predecessor sold some portion of the suit property i.e.,
CTS no. 3927/1 under four different separate sale deeds.
He sold the property to the extent of only 1680 sq.yds
out of 3280 sq.yds at different points of time to the
defendants. It is their case that, out of 1680 sq.yds.,
1/4th portion measuring 420 sq.yds was sold in favour of
Mr. Ganesh Shankara Rao Halagekar under Registered
sale deed dated 22.10.1975, 1/4th portion measuring 420
sq. yds. Out of 1680 sq.yds was sold to defendant no.2
under registered sale deed dated 02.12.1976, 1/4th
measuring 420 sq. yds was again sold to defendant no.3
under registered sale deed dated 27.1.1976 and under
registered sale dated 16.02.1976 remaining 1/4th portion
measuring 420 sq.yds sold to defendant no.1. Thus, their
predecessor retained remaining 1600 sq.yds. which is the
suit property.
RFA No. 100536 OF 2022
7. It is the further case of the plaintiffs that, the
said Ganesh Shankara Rao Halagekar is stated to have
executed registered sale deed in favour of defendant
no.3 on 09.03.2006 by transferring his share and in turn,
defendant no.3 is said to have executed registered gift
deed in favour of his (wife) defendant no.4 on
09.03.2006. Thus, late Kasimsab sold only 1680 sq. yds.
out of 3280 sq. yds under the aforesaid sale deeds.
8. It is stated by the plaintiffs that said Kasimsab
died on 9.11.2008 leaving behind the plaintiffs as his
surviving legal heirs. It is contended that, though
deceased Kasimsab executed the sale deed in respect of
1680 sq. yards in all to defendant nos. 1 to 3 out of 3280
sq. yards, these defendant nos. 1 to 3 got effected
mutation entries in their names in respect of the entire
3280 sq. yards in CTS No. 3927/1. Thus, they played
mischief on the deceased. On getting knowledge of the
said fact of mischief, deceased Kasimsab submitted an
application during the year 2007-08. He requested the
RFA No. 100536 OF 2022
CTS Authorities, Belagavi to make the rectification of the
CTS records. But, his application was rejected on
18.10.2008. Thereafter, Kasimsab preferred an appeal
before the DDLR, Belagavi. In the meantime, he died on
9.11.2008. Plaintiffs prosecuted the said appeal and the
said appeal came to be allowed. Accordingly, names of
the plaintiffs came to be entered in the CTS records in
respect of the remaining portion of the said CTS number.
Again, an application was preferred by defendant nos. 1
to 4 before the JDLR and the same was rejected. Being
aggrieved by the same, defendant nos. 1 to 4 preferred
Writ Petition Nos.61870-872/2010 before this Court. In
the said writ petition, this Court held that the Revenue
Authorities had no jurisdiction to decide the civil rights of
the parties and accordingly Writ Petition was allowed on
16.9.2011. This Court also directed the authorities to
effect entries in the revenue records based on the
directions to be issued by the civil court.
RFA No. 100536 OF 2022
9. Being aggrieved by the same, appeals were
preferred by the plaintiffs in WA No.6466/2011 and WA
Nos. 30484-30485/2012 before this Court. The said writ
appeals came to be dismissed.
10. It is further case of the plaintiffs that,
defendant nos. 1 to 4 approached the ADLR and sought
for deletion of the names of plaintiffs in respect of the
suit properties. The said application came to be allowed.
Being aggrieved by the same, plaintiff no.6 preferred the
appeal before JDLR and the said appeal came to be
allowed on 25.2.2013.
11. It is further case of the plaintiffs that, JDLR
directed the ADLR to verify the sale deeds of the year
1975-76, conduct spot inspection and rectify the entries
in the CTS records pertaining to CTS No.3927/1. He also
ordered for the deletion of the plaintiffs' name in the city
survey records. Plaintiff no.6 preferred an appeal being
aggrieved by that portion of the order before the JDLR.
- 10 -
RFA No. 100536 OF 2022
Said appeal came to be dismissed by JDLR on
29.10.2013.
12. It is alleged by the plaintiffs that taking undue
without waiting for conduct of the spot survey and
verification of the records by ADLR, tried to get their
names affected in the CTS records. Therefore, the
plaintiffs were constrained to file the suit seeking the
aforesaid reliefs. Hence for all these reasons, it is prayed
by the plaintiffs to decree the suit as prayed for.
13. Pursuant to the suit summons before the trial
Court, all the defendants appeared. Defendant nos.2 to
4 filed their common written statement and the same
was adopted by defendant No.1. Subsequent to the filing
of the suit, defendant no.5 got impleaded in the suit
voluntarily.
- 11 -
RFA No. 100536 OF 2022
14. It is the specific contention of defendant nos.
1 to 4 that, the suit in the present form is not at all
maintainable. They admit Kasimsab was the owner of
entire CTS number, but they denied that only a portion
of the CTS number was sold to them. They contend that
the entire property in CTS No.3927/1 to the extent of the
respective ownership was acquired under the sale deeds
dated 22.10.1975, 02.12.1976, 27.01.1976 and
16.02.1976 and also there was a gift dated 09.03.2006.
Thus, defendant nos. 1 to 4 are in exclusive possession
of 3280 sq.yards and not the portion as alleged by the
plaintiffs. The boundaries have also been mentioned in
their respective sale deeds. It is denied that, based upon
the said sale deeds, these defendants are asserting their
rights over the entire property. When they have
purchased the entire property, the question of denying
their rights by the plaintiffs do not arise at all. It is
contended that the very fact that 1/4th portion was sold
under each registered sale deed mentioning 420 sq. yds
- 12 -
RFA No. 100536 OF 2022
out of total extent 1680 sq.yds. indicates the intention of
the deceased vendor. He sold the entire extent of the
property.
15. The deceased Kasimsab Peersab Nadaf during
his lifetime had not objected for the said sale deeds. He
has not put-forth any claim. Now the plaintiffs are
fighting that the entire property to the extent of 3280 sq.
yds is not sold by the said Kasimsab.
16. It is further contended that, each sale deed
executed in favour of defendant nos. 1 to 3 and Ganesh
Shankara Rao Halagekar shows that the area to the
extent of 840 sq. yards out of the total extent of 3280
sq. yds.each was sold to them and not 420 Sq.yds. It is
further contended that these sale deeds have not been
challenged before any Court of law. So far as proceedings
before ADLR, DDLR, JDLR and before the High Court in
the Writ Petition is concerned, it is admitted. It is further
- 13 -
RFA No. 100536 OF 2022
contended that there is no case made out by the
plaintiffs.
17. It is contended that, plaintiffs instituted suit in
OS No.116/08 before the III Addl.Civil Judge Belagavi
claiming declaratory relief stating they had prescriptive
easementary rights and permanent injunction in repeat
of CTS No. 4767/2002 purchased by their Late father
Kasimsab Peersab Nadaf under registered sale deed
dated 02.04.1976. In the said suit, nephew of defendant
nos. 1 to.3 obtained temporary injunction against these
defendants and the Miscellaneous Appeal No.60 and
61/2009 were preferred before II Addl.Civil Judge,
Belagavi. Said Rajesh Nathaji Rao Halagekar also filed
Writ Petition before this Court in WP Nos.60826/2011
and 63593/2011. The said writ petitions came to be
dismissed by confirming the judgment in Misc.Appeal.
The plaintiffs and the said Rajesh Halagekar did not
challenge the said judgment. Defendant no.3 executed
the gift deed in favour of defendant no.4. Thus, these
- 14 -
RFA No. 100536 OF 2022
defendants are claiming right over the property in
question.
18. By voluntarily appearing, defendant no.5 filed
written statement contending inter alia that he entered
into an agreement of sale with the plaintiffs to purchase
the suit properties for a sale consideration of
Rs.1,32,23,148/-. It is contended by him that, he is also
one of the interested parties with regard to the suit
property. It is his contention that, there was an
agreement of sale dated 14.09.2008. He waited for GPA
holder of the plaintiffs Mr. Irfan Abdul Rehman Sheikh to
appraise the progress and development in the CTS
survey work. But to his utter shock, the GPA holder kept
mum and did not whisper anything regarding City Survey
work. When he started processing the names of
Kasimsab Peersab Nadaf for the remaining portion is
1680 sq.yds by filing the wardi before ADLR, he came to
know that, there was a refusal to accept the application.
Thus, it is contended that he made several attempts to
- 15 -
RFA No. 100536 OF 2022
communicate with the GPA holder as his interest is
involved in the suit property; therefore, he got himself
impleaded in the suit. The said Mr. Irfan Abdul Rehman
Sheikh the power of attorney holder had no authority to
cancel the agreement of sale.
19. Defendant nos.3 and 4 leased out the suit
property to M/s. Confidence Petroleum Ltd., for
installation of LPG dispensation unit and filed an
I.A.No.10 by the plaintiffs seeking temporary injunction.
It is further contended that the suit of the plaintiffs has
to fail and prayed to dismiss the suit.
20. During the pendency of the suit, plaintiff no.4
was reported dead, his legal heirs were brought on
record in the shape of plaintiff no.4 (a) and (b).
21. Based upon the rival pleadings of both the
parties, the learned trial Court framed in all four issues
and 6 additional issues. They read as under:
- 16 -
RFA No. 100536 OF 2022
Issues
1. Whether the plaintiffs prove that they are
exclusive owners of property bearing CTS
No.3927/1 to the extent 1600 sq. yards?
2. Whether the plaintiffs prove that they are
in possession of the said property?
3. Whether the plaintiffs are entitled for
permanent injunction as prayed for?
4. What order or decree?
ADDL. ISSUES
1. Whether the plaintiffs prove that the
description of the suit property as
described in para No.1 of the plaint?
2. Whether the suit of the plaintiffs without
seeking the relief of possession is
maintainable in the present from?
3. Whether the suit of the plaintiffs is barred
by limitation?
4. Whether the suit of the plaintiff is proper
valued?
5. Whether the defendant No.5 proves that,
Sri. Khasimsab Peersab Nadaf has sold
1/4th portion measuring each 420 sq.
different sale deeds to Halagekar family
by retaining 1600 sq. yards?
- 17 -
RFA No. 100536 OF 2022
6. Whether the defendant No.5 further
proves that, Sri. Khasimsab Peersab
Nadaf through his P.A. holder Irfan has
entered into agreement of sale dated:
14.09.2008 to the extent of 1600 sq.
yards and therefore he being prospective
purchaser is protected under the said
agreement?
22. To substantiate the case of the plaintiffs
before the trial Court, plaintiff No.7- Mr.Javed Ali
Kasimsab Nadaf entered the witness box as PW.1. He is
the power of attorney for other plaintiffs. On behalf of
the plaintiffs, Exs.P1 to 17 are marked. Thereafter, the
plaintiffs closed their evidence. On behalf of defendant
nos. 1 to 4, defendant no.3- Mr.Prakash @ Sudhir
Guruanna Halagekar entered the witness box as DW.1
and another witness was examined as DW.2 by name Sri.
Arvind S/o. Guranna Halagekar and got marked Exs.D1
to D93 and closed defendants' evidence.
23. The learned trial court on hearing the
arguments and on perusal of the documents both oral
- 18 -
RFA No. 100536 OF 2022
and documentary evidence answered issue nos. 1 to 3,
additional issue no.1 and 2 and 5 in the affirmative and
answered issue nos.3, 4 and 6 in the negative and
ultimately decreed the suit of the plaintiff as prayed for.
It is this judgment and decree that has been challenged
by the appellant-defendants nos. 1 to 4 by preferring this
appeal.
24. Sri. Ananth Mandagi, learned Senior Counsel
representing the appellants-defendants nos.1 to 4 with
all vehemence, in addition to narrating the facts of the
case made out by the plaintiffs and defendants submits,
that the judgment and decree passed by the trial court is
illegal, perverse and capricious. As per his submission,
the findings on issue nos. 1 to 3 and additional issue nos.
1 to 5 are quite erroneous. The trial Court has failed to
consider that Late Kasimsab Peersab Nadaf was estopped
from claiming his ownership over the suit property in
respect of entire CTS No. 3927/1 from the year 1976
itself till filing of the suit because, his name was not
- 19 -
RFA No. 100536 OF 2022
appearing in the revenue records. It is his submission
that, when the deceased Kasimsab Peersab Nadaf, the
ancestor of the plaintiffs executed the four registered
sale deeds in favour of four different purchasers and sold
1/4th portion each in entire CTS No. 3927/1, he cannot
claim any right in the suit properties. Now the plaintiffs
are taking advantage of the wrong extent recited in the
sale deeds as 1680 sq.yds. instead of 3280 sq. yds., they
cannot claim right over the property. The learned trial
Court has failed to consider the boundaries of the each
sale deed executed by the said Kasimsab Peersab Nadaf
as per Ex.P2 to P6. It is not the case of the plaintiffs that
defendants did not purchase the properties under four
sale deeds. There is no proper appreciation of the
evidence placed on record by the plaintiffs vide Ex.P1 to
P4, There was a wrong interpretation of these documents
by the learned trial Court. He further submits that, the
evidence of PW. 1 especially admission given in the
cross-examination with regard to the boundaries recited
- 20 -
RFA No. 100536 OF 2022
in the four sale deeds in respect of the said CTS No.
3927/1, the trial Court ought to have dismissed the suit
of the plaintiffs.
25. It is his further submission that, right from the
year 1976 onwards i.e from the date of purchase of this
property by defendant nos. 1 to 4, they have been in
exclusive possession and enjoyment of the suit
properties. They are exercising their lawful ownership
over the suit properties and also are paying requisite
property tax. Merely because there is a wrong
mentioning of the extent of the suit property in the four
sale deeds, the plaintiffs cannot take advantage of the
same and now after lapse of more than 35 years, they
cannot put-forth their plea that they are the owners of
the suit property mentioned in the schedule appended
therein.
26. It is his submission that, the description of the
suit properties in the plaint is erroneous. The trial Court
has committed a grave error by observing that while
- 21 -
RFA No. 100536 OF 2022
executing the sale deed by Ganesh Halagekar in favour of
Sudhir Halagekar-defendant no.3, the defendants have
mentioned larger area than what was actually purchased
by Ganesh Halagekar which was in possession from the
year 1975. When 1/4th portion of CTS No. 3927/1 was
purchased by each of these defendants, the plaintiffs
cannot contend that 1/4th portion consists of just only
1680 sq. yds. As the boundaries so mentioned in the
sale deeds tally with the entire extent of the properties
purchased by the erstwhile owner Kasimsab Peersab
Nadaf, now the plaintiffs cannot contend only 1680
sq.yds was purchased by these defendant nos. 1 to 3
under different sale deeds. It is these defendants No. 1
to 4 who are in possession of entire 3280 sq.yds. and the
revenue records are standing in their name. It is
submitted that they have unnecessarily dragged these
defendants to the Revenue Courts i.e. before the ADLR,
DDLR and JDLR and ultimately, upto this Court by filing
the writ petitions and writ appeals. He further submits,
- 22 -
RFA No. 100536 OF 2022
taking advantage of the orders of this Court to approach
the Civil Court, they have filed this false suit on flimsy
grounds. It is his submission that, the learned trial Court
has committed a grave error in appreciating the evidence
of defendant nos. 1 to 4. Even the trial court has failed to
consider that the buildings were in dilapidated condition
and there was demolition by the Corporation Authorities
with due publication of demolition in the local news
papers.
27. Sri Anant Mandagi, learned Sr. Counsel further
submits that, the Hon'ble apex Court, Privy Council and
this Court in many judgments, have held that, the
boundaries would prevail over the extent. Thus,
reiterating the grounds stated in the appeal memo, with
all vehemence he submits that, the very description of
the suit property in the suit is wrong and plaintiffs have
wrongly construed the boundaries of the suit property
and the boundary prevails over the extent. Further, the
- 23 -
RFA No. 100536 OF 2022
trial Court has wrongly decreed the suit due to which,
ultimate hardship is caused to defendant nos. 1 to 4.
28. He further submits that defendant No.5 was
unnecessarily impleaded in the suit as he was an
intending purchaser of the suit property based upon the
agreement of sale which was entered behind the back of
defendant nos.1 to 4. Even his suit for specific
performance of contract was dismissed by the Civil Court.
In fact, defendant no.5 is sailing with the plaintiffs. This
suit is designed by the plaintiffs to deprive the rights of
defendant nos. 1 to 4 and they prompted defendant no.5
to get impleaded in the suit in order to protract the
proceedings and to take undue advantage of the
situation. They want to extract more money from
defendant nos.1 to 4 without any lawful right in the suit
property as Kasimsab Peersab Nadaf has already lost his
right over the suit property.
- 24 -
RFA No. 100536 OF 2022
29. As against this submission, the learned
counsel for the plaintiff-respondents Sri V. M. Sheelavant
submits that, Kasimsab Peersab Nadaf had no occasion to
sell the entire CTS No. 3927/1. Therefore, as per the say
of the plaintiffs, just 1680 sq. yds was sold in favour of
these defendant nos. 1 to 4 under different sale deeds. It
is written very clearly in the sale deeds that 1/4th of 1680
sq. yds has been sold under each sale deed. Therefore,
recitals in the said sale deeds do demonstrate the
purchase of 1680 sq. yds only under 4 sale deeds by
defendant nos. 1 to 4. According to the plaintiffs'
submission, now defendant nos.1 to 4 cannot claim their
right, title and possession over the entire 3280 sq. yds.
His submission is that, as the learned trial Court has
considered the entire evidence placed on record both oral
and documentary and considering the pleadings of the
plaintiffs has come to the conclusion that, it is just 1680
sq.yds that has been sold by Kasimsab Peersab Nadaf,
remaning 1600 is still with the plaintiffs after the demise
- 25 -
RFA No. 100536 OF 2022
of Kasimsab. His submission is that Kasimsab enjoyed
1680 sq.yds till his life time. But, now the defendant nos.
1 to 4 in the guise of their name appearing in the
revenue records, contesting against plaintiffs that they
are owners of entire CTS no. 3927/1. His submission is
that because of illegal acts of defendant nos. 1 to 4, they
were constrained to approach revenue authorities i.e.
ADLR and DDLR. Initially there was an order passed by
the ADLR in favour of the plaintiffs, thereafter, the
proceedings were challenged by the defendants 1 to 4
before this Court which directed the parties to approach
Civil Courts. Even there were writ petitions and writ
appeals before this Court. They admit about the revenue
proceedings as well as writ proceedings before this Court
by both the parties. After a direction by this Court to get
the rights decided by the Civil Court, the plaintiffs were
constrained to file the civil suit. It is their submission
that, the trial Court has not committed any illegality or
perversity in arriving at conclusion that, it is the plaintiffs
- 26 -
RFA No. 100536 OF 2022
who are in possession of the suit properties. Therefore, it
is prayed by counsel for respondents to dismiss the
appeal.
30. Being aggrieved by the findings given by the
trial Court, defendant no.5 has not preferred any appeal
that means whatever findings given by the trial Court
against him have attained finality. Learned senior counsel
for the appellants and also the counsel for respondents
relied upon both oral and documentary evidence and also
have taken us through the various findings of the trial
Court during the course of their argument.
31. In view of the rival submissions of both side,
and on perusal of the records of this appeal, the following
points would arise for our consideration:
1. Whether the finding of the trial
Court that plaintiffs have proved
their title to the suit suit property
which is more specifically described
in the schedule is perverse and
capricious?
- 27 -
RFA No. 100536 OF 2022
2. Whether the finding of the trial
Court that plaintiffs have proved
their lawful possession and
enjoyment over the plaint schedule
property suffers from perversity
and palpably erroneous?
3. Whether the finding of the trial
Court that defendants have failed
to prove their respective title over
the suit properties under various
sale deeds is perverse and suffers
from serious infirmities?
4. Whether the trial Court has erred in
holding that deceased Kasimsab
Peersab Nadaf has just sold 1680
Sq.Yds. and has retained remaining
1600 sq.yds suffers from illegality?
5. Whether the findings of the trial
Court on various issues require
interference by this Court?
The above points are discussed together:
32. In view of the rival submissions of both sides
and on perusal of the records it can be stated that more
than the oral evidence, documentary evidence plays an
important role to decide the lis between the parties.
33. PW.1 Plaintiff no.7 has spoken in line with the
contents of the plaint averments. There is an intensive
cross-examination directed to PW.1 by the counsel for
- 28 -
RFA No. 100536 OF 2022
defendant nos.1 to 4 as well as defendant no.5. It is
suggested to PW.1 by the counsel for defendant nos.1 to
4 that, by sale deed 15.3.1956, his father purchased CTS
No. 3927/1. He admits that Ex.P2 is the sale deed to that
effect. He says that in all, his father purchased 3280 sq.
yds. Even he admits that there is revenue entry in the
CTS records. He admits the boundaries mentioned in the
said agreement Ex.P2. A strange answer has been given
by this PW.1 that, at the time of execution of the sale
deeds in favour of defendants/purchasers, his father has
not given any instructions. He came to know about the
said fact from his father. If really his father had not given
instructions when he executed sale deeds in 1975-76,
why his father kept mum till his life time. Thereafter,
after demise of his father, these plaintiffs initiated the
revenue proceedings challenging the entries in the
revenue records. It is stated that when he came to know
that his father had not given any instructions, he did not
enquire his father as to who else had given instructions.
- 29 -
RFA No. 100536 OF 2022
For the first time before the Court, he stated that the
said sale deeds were got executed by defendant nos.1 to
4 forcing his father. To prove the defendants had got
executed the sale deeds forcibly, PW.1's father would
have been the best person to speak about it. He did not
challenge the said alleged act of defendant's right from
the date of execution of the sale deeds till his demise. So
the questions that arise in plaintiffs authority to claim
right over property.
34. Further, this PW. 1 in unequivocal terms
admits that based upon the said sale deeds and even
after execution of sale deeds, there were no phod/hissas
or bifurcation of the said CTS No.3927/1 by the Revenue
Authorities. He admits that, after execution of these four
sale deeds, by his father, the names of defendant nos. 1
to 3 came to be entered in the revenue records.
Defendant No.4 is the beneficiary of the property by way
of a gift. When he was asked regarding why there is no
challenge with regard to change of names of defendant
- 30 -
RFA No. 100536 OF 2022
nos.1 to 4 in the revenue records, if they were aggrieved
by wrong entries in the revenue records, he deposed
ignorance. So many photographs have been confronted
to him to show that in the suit property, the LPG Auto
Station has been established in the area of 90 x 90 sq. ft.
LPG Auto station is still existing as per the photographs
which is admitted by both the side. He admits in the
cross examination that the present value of the property
is more than one crore. It is submitted by the senior
counsel that, as there is escalation of the value of the
property in Belagavi, that must have prompted the
plaintiffs to file the suit to extract more money from
defendant nos. 1 to 4.
35. So far as the documentary evidence is
concerned, Ex.P2 is sale deed of the year 1956. It is an
admitted document entered into by the father of plaintiffs
with his erstwhile vendor. As it is in Marathi Language,
the plaintiffs made available the true translation of the
said document in English as per Ex.P2(a). It is admitted
- 31 -
RFA No. 100536 OF 2022
fact between both side that the father of the plaintiffs
Kasimsab purchased the entire 3280 sq. yds situated in
Belagavi City which is also known as RTO office with the
boundaries mentioned in the said sale deed. The said
sale deed was registered on 15.3.1956. Likewise, the
plaintiffs also relied upon Ex.P3 to P6 the sale deeds in
favour of these contesting defendants and as they were
scribed in Marathi language the translations of the same
are produced by the plaintiffs both in Kannada and in
English. These sale deeds show the total extent of the
property which was sold under these four different sale
deeds i.e. 420 sq. yds each. Contents of the sale deeds
are not disputed by the defendants. Certain photographs
are produced by the defendants to show that LPG gas
station is installed in the suit property in area measuring
90x90sq.ft. The other documents are the revenue
proceedings produced by the plaintiffs.
36. Now we are very much concerned about the
boundaries of the suit property mentioned in the plaint as
- 32 -
RFA No. 100536 OF 2022
well as in the sale deeds of plaintiffs at Ex.P2 and sale
deeds produced by defendant nos. 1 to 4 as per Exs.P3
to P6. DW.1 being the defendant no.5 has reiterated the
contentions taken up in the written statement and he is
specific that the entire CTS No.3927/1 was purchased
but, a false claim has been made by the plaintiffs
contending that just 1680 sq.yds. was sold by their
father. This DW.1 has been directed with severe cross-
examination but, he is consistent throughout his cross-
examination that it is defendant nos. 1 to 4 who are the
owners of the entire CTS number and not just 1680
sq.yds, whereas, DW2 has reiterated his contentions
taken up in the written statement.
37. Defendant nos. 1 to 4 have relied upon the
various documents. Amongst them, Ex.D1 is issued by
the City Surveyor, Belagavi showing the topographical
features of the suit property with other properties
situated abutting the suit property. The defendants have
also produced certified copies of the documents and the
- 33 -
RFA No. 100536 OF 2022
true copies with regard to the proceedings before the
Revenue Authorities as well as before the various other
Courts. These documents clearly shows that, these
plaintiffs agitated their title over the suit properties even
before the Revenue Courts. Even defendant no.5 has
filed civil suit seeking specific performance of the
contract but his claim was dismissed. The permissions
were granted by the City Corporation. It was challenged
before the City Corporation. It was ordered by the City
Corporation that the permissions granted to be kept in
abeyance till the disposal of OS No.8/14. Various
proceedings were initiated. MFA No.1002600/2018 was
filed by these defendants against the plaintiffs before this
Court. It was decided on 11.4.2019. Some arrangement
was made while passing the said order by this Court. The
plaintiffs filed OS No.8/2014 before the Civil Judge and
CJM, Belagavi. As stated supra, rather than the oral
evidence, documentary evidence plays an important role
in this appeal. To decide the lis between plaintiffs and
- 34 -
RFA No. 100536 OF 2022
defendants, it is just and appropriate to read the
boundaries.
38. Ex.P2 (a) is produced by the plaintiffs to show
that to what extent the property was purchased by the
father of the plaintiffs Kasimsab. The plaintiffs rely upon
the description of the CTS No.3297/1 as under:
East: Poona- Bangalore
Road
West: CTS No.
4767/2+4767/4
South: Municipal Scavenge
alley
North: Road joining the
Belgaum-vengurala road
39. For better appreciation with regard to the
boundaries mentioned and also the specific properties
purchased by Kasimsab to avoid confusion, it is just and
- 35 -
RFA No. 100536 OF 2022
proper to draw a rough sketch in this judgment. It reads
thus:
NORTH
Vengurala road
WEST KHASIMSAB PEERSAB NADAF EAST
CTSNo. Poona
4767/4 Bangalore
and Road
4767/2
with open
municipality
space
Municipal Road
SOUTH
40. As stated, it is an admitted fact between both
sides that under the said sale deeds, Kasimsab executed
in all four sale deeds in favour of these appellants. They
are marked in this case as per Exs.P3 to P6. The
translations of the same are also produced as per
Ex.P3(a) to (c). To avoid the confusion, it is also just and
proper to mention the boundaries mentioned in these
sale deeds in this judgment. It reads as under:
- 36 -
RFA No. 100536 OF 2022
Ex. P3 and Ex. P3(a)
East: CTS No. 3927
vacant land and P.B.
Road.
West: 3927/1- 1/4th
portion of property of
Ganesh Shankar
Halagekar
South: 3927/1- 1/4th
portion of property of
Balasaheb Halagekar
North: vengurala road
Ex. P4 and Ex. P4(a)
East: Building, drainage
and open space and CTS
No. 3927 property
West: Property CTS NO.
3927/1 out of that, 1/4th
belongs to Anantrao
Halgekar
South: Municipal Road
North: Property CTS No.3927/1 in that
- 37 -
RFA No. 100536 OF 2022
1/4th belongs to Sudheer Halagekar
Ex. P5 and Ex. P5(a)
East: 1/4th portion
purchase by Defendant
No. 3-Sudheer
West: Property CTS No.
4767/4 and Open space
of Municipality
South: Properties of
CTS No.4767/4 and CTS
North: Vengarula Road
Ex. P6 and Ex. P6(a)
East: 1/4th of CTS
No.3927/1 purchase by
Balasaheb Halagekar
West: Property
No.4767/4, 4767/1
South: Municipal Road
purchase by Ganesh Halagekar
- 38 -
RFA No. 100536 OF 2022
41. To have better appreciation with regard to the
extent of the land purchased under these sale deeds, it is
just and proper to draw a rough sketch as per the
boundaries mentioned in the sale deeds in this judgment
which depicts as under:
NORTH
Vengurala road
Ganesh Shankar Sudheer Halagekar
Halagekar
CTS NO. 3927/1 EAST
CTS NO. Poona
4767/4 Bangalore
and Road
4767/2
with open
municipality
space Anantrao Balasaheb Halagekar
Halagekar
Muncipal Road
SOUTH
42. On perusal of these sale deeds and the
boundaries depicted in the sale deed Ex.P2 and P3(a) to
6(a), we have to compare the boundaries mentioned in
- 39 -
RFA No. 100536 OF 2022
these sale deeds with that of the boundaries mentioned
in Ex.P2, the original sale deeds produced by the
plaintiffs and its admitted boundaries.
43. On scrupulous reading of these sale deeds
produced by the plaintiffs as stated supra, the boundary
mentioned in all the sale deeds are quite important to
decide the lis. Ex.P5 is the sale deed in favour of Ganesh
Shankarao Halagekar and its translation is at Ex.P5(a).
On scrupulous reading of the boundaries, on all the four
sides i.e. East, West, South and North and under Ex.P6
and translation at Ex.P6(a), the property is owned by
Ananthrao Guranna Halagekar and the boundaries also
have been mentioned in this sale deed to East, West,
South and North. Likewise, under Ex.P4, Balasaheb
Gurappa has become the owner with the boundaries
mentioned towards East, West, South and North and
under Ex.P3, Prakash alias Sudhir Gurappa Halagekar has
become the owner of properties mentioned in the sale
deed towards East, West, South and North.
- 40 -
RFA No. 100536 OF 2022
44. These boundaries mentioned in these Exs.P3
to P6 stated supra are not challenged by the plaintiffs
before any authorities. On comparison of the boundaries
mentioned in all these four sale deeds with that of Ex.P2
dated 15.3.1956, towards East of all these properties
purchased under these four sale deeds there exist Poona-
Bangalore Road, towards West CTS No.4762/2+ 4767/4
and towards South Municipal Scavenge alley as
mentioned in the sale deed described in the aforesaid
sale deeds also not as Municipal Scavenge but some
other property. Towards North evidently, road joining the
Belagavi-Vengurla Road. Even under the sale deeds Ex.P3
towards north, Vengurla road is situated. That means,
these two properties have been purchased by these
defendants under Ex.P3 and P5 and abutting with each
other towards northern side, Vengurla Road is situated.
Towards South to the property purchased under Ex.P3,
CTS NO.3927/1 and 1/4th portion of the property of
Balasaheb Halagekar is situated. Also Ex.P4 towards
- 41 -
RFA No. 100536 OF 2022
south, Municipal road is situated and under Ex.P5, the
property purchased shows that towards southern side
property of CTS No.476/4 and CTS No.3927/1 is situated.
Under Ex.P6, towards South, Municipal Road is situated.
Likewise, each property described in the Ex.P3 to P6 is
compared with Ex.P2 the admitted sale deed, These four
properties show that within the boundaries mentioned
under Ex.P2 this entire property purchased under these
Ex.P3 to P6 is situated. That means, these boundaries
mentioned under these Ex.P3 to P6 entirely cover 3280
sq.yds. and not 1680 sq.yds.
45. Thus, on scrupulous reading of the boundaries
and also rough sketch drawn in the judgment, establish
that the boundaries mentioned in Ex.P2 covers this entire
extent of 3280 sq.yds purchased under these Ex.P3 to
P6. That means, clear picture is brought on record by the
defendants by producing the documents that entire 3280
sq.yds was purchased under these four sale deeds and
not just 1680 sq.yds.
- 42 -
RFA No. 100536 OF 2022
46. When the plaintiffs are not disputing the
boundaries mentioned in these four sale deeds and now
merely because the portion mentioned in these sale
deeds as 1/4th sq.yds each shown to different sale deeds
cannot be accepted for the simple reason that on going
through each sale deed, it appears that the plaintiffs'
father Kasimsab sold entire CTS No.3927/1 measuring
3280 sq.yds which is purchased by him on 15.3.1956.
47. It is an admitted fact between both the sides
that, under the sale deed Ex.P2 dated 15.3.1956, entire
3280 sq.yds was purchased. In each of Ex.P3 to P6, the
same facts have been mentioned in the sale deeds. So
when entire 3280 sq.yds was the subject matter of the
purchase dated 15.03.1956 and how this 1680 sq.yds
has been mentioned in the four sale deeds is not properly
explained by the plaintiffs. At one breath, PW.1 says
that, his father had told him that, he has not given
instructions to scribe the sale deeds Ex.P3 to P6. At
- 43 -
RFA No. 100536 OF 2022
another breath, he says that, by force these sale deeds
got executed by these defendants. With regard to the
force being put by these defendants, except the self-
serving testimony of PW.1, no evidence is placed on
record. During the lifetime of his father Kasimsab, right
from the execution of these sale deeds till his demise, no
steps were taken to challenge these sale deeds. If really
there was a mistake as alleged by the plaintiffs, nothing
prevented these plaintiffs or their father from seeking
rectification of the sale deeds. They admit the boundaries
but, deny the extent. So, when the plaintiffs' father
purchased entire 3280 sq.yds under the sale deed dated
15.3.1956, the entire extent of the same was sold under
four sale deeds with same boundaries. It becomes clear
by comparing the boundaries mentioned in sale deed
dated 15.03.1956 with the boundaries mentioned in the
four sale deeds. This itself establishes that the plaintiffs
have filed this suit to have an unlawful gain. This
possibility cannot be ruled out.
- 44 -
RFA No. 100536 OF 2022
48. What is forthcoming is one block property
measuring 3280 sq.yds are sold. If really the version of
the plaintiffs is to be accepted, at least towards anyone
of property sold under four sale deeds, the property
retained by the plaintiffs' father would have been
mentioned. But, plaintiffs never say that towards any of
the boundaries, the property retained by their father is
situated. This itself goes to establish that the plaintiffs'
assertion cannot be accepted.
49. Sri Ananth Mandagi, learned Sr.Counsel for
the appellant-defendants submits that, these appellants
purchased the entire property lying in between the
properties in their respective sale deeds. The identity of
the property had never been in doubt. It is submitted
that, taking advantage of pursued ambiguity in the
appellants' sale deeds, these plaintiffs who ceased to be
in possession of the property, initially tried to initiate
proceedings before the Revenue Authorities. There were
filing appeals/ revisions before the ADLR, DDLR JDLR
- 45 -
RFA No. 100536 OF 2022
etc., there was a direction issued to approach the Civil
Court, then they approached this Court by filing the writ
petition. When there was a direction to approach the
Civil Court, the plaintiffs filed writ appeal, thereafter, the
plaintiffs ventured to file the suit.
50. He also pointed out the boundaries shown in
the appellants sale deeds and those in the first sale deed
of the father of the plaintiffs Kasimsab, are identical. No
where, the plaintiffs whispered in the sale deeds
executed by Kasimsab that the said Kasimsab had
retained property after selling the extent of the
properties mentioned in the respective sale deeds of
these defendants. To conclude, Sri Ananth Mandagi,
Senior Advocate, has submitted that, these appellants
have got mutated their names in the revenue records.
Plaintiffs never mutated their name in the revenue
records because of the ignorance but, they attempted to
create their names entered in the revenue records but,
- 46 -
RFA No. 100536 OF 2022
that factum would not defeat the substantive rights of
defendants-appellants over the suit properties.
51. As against this submission, the learned
counsel for the plaintiffs Sri. V. M. Sheelavant submitted
that, as the extent of the properties have been shown
correctly in the sale deeds to the extent of 420 sq.yds of
selling the properties in each sale deed thereby, there is
retention of 1600 sq.yds by the deceased Kasimsab.
Plaintiffs stress more on the contents of the four sale
deeds. It is argued by the counsel for the appellants-
defendants that always the boundaries would prevail
over the extent and survey numbers.
52. As we have already noticed that, the sale deed
of 1956 contains Sy.Number and extent describing the
property purchased by the Kasimsab. The same
Kasimsab sold the same property in favour of these
appellants-defendant nos. 1 to 4. That means extent of
the properties sold to defendants can be identified by the
- 47 -
RFA No. 100536 OF 2022
aforesaid diagram incorporated in this Judgment. So far
as the identity of the property sold to the defendants-
appellants are concerned, there is no dispute as such.
Even PW.1 admits the boundaries mentioned in those
sale deeds. On this score, the common law principles
compel us to conclude that the boundaries prevail over
the extent and even survey numbers.
53. There are judgments of the various High
Courts including the Privy Council judgments i.e. in
Sheodhyan Singh and others vs. Musammat
Sanichara Kuer and others1 the Hon'ble Supreme
Court has held that the boundaries prevail over the
extent. Para 6 of the said judgment reads as under:
6. In the present appeal, the learned counsel
for the respondents does not ask us to go
beyond the sale certificate and the final
decree for sale; his contention is that there is
a mere misdescription of the plot number in
the two documents and that the identity of the
plot sold is clear from the circumstances which
we have already set out above. He relies on
AIR 1963 SC 1879.
- 48 -
RFA No. 100536 OF 2022
Thakur Barmha v. Jiban Ram Marwari. In that
case what had happened was that the
judgment-debtor owned a mahal in which ten
annas share was mortgaged while the
remainder was free from encumbrances. A
creditor of his attached and put up for sale six
annas share out of the mortgaged share. The
property attached was sold. When the auction
purchasers applied for the sale certificate they
alleged that a mistake had been made in the
schedule of the property to be sold in that the
word "not" had been omitted from the
description of the six annas share and that the
property should have been described as being
six annas not mortgaged. This prayer of theirs
was allowed by the executing court and the
appeal to the High Court failed. On appeal to
the Privy Council, it was held that in a judicial
sale only the property attached can be sold
and that property is conclusively described in
and by the schedule to which the attachment
refers, namely, the six annas share subject to
an existing mortgage. The Privy Council
therefore allowed the appeal and observed
that a case of misdescription could be treated
as a mere irregularity; but the case before
them was a case of identity and not of
misdescription. It was pointed out that a
property fully identified in the schedule may
be in some respects misdescribed, which
would be a different case. Thus the effect of
this decision is that where there is no doubt as
to the identity and there is only misdescription
- 49 -
RFA No. 100536 OF 2022
that could be treated as a mere irregularity.
Another case on which reliance has been
placed on behalf of the respondents is Gossain
Das Kundu v. Mrittunjoy Agnan Sardar. In that
case the land sold was described by
boundaries and area; but the area seems to
have been incorrect. It was held to be a case
of misdescription of the area and the
boundaries were held to prevail.
54. Further, it is relevant to refer to the decision
of Hon'ble Supreme Court in Subhaga and others vs.
Shobha and others2, the relevant portion of para 6 of
the said judgment reads as under:
6. xxxxxxx That a property can be identified
either by boundary or by any other specific
description is well established. Here the
attempt had been to identified the suit
property with reference to the boundaries and
the commissioner has identified that property
with reference to such boundaries. Even if
there was any discrepancy, normally, the
boundaries should prevail.
55. In Subbayya Chakkiliyan vs. Maniam
Muthiah Goundan and anothers3, a Division Bench of
(2006)5 SCC 466
AIR 1924 Mad 493
- 50 -
RFA No. 100536 OF 2022
Madras High Court has held that "Ordinarily when a piece
of land is sold with definite boundaries, unless it is very
clear from the circumstances surrounding the sale that a
smaller extent than what is covered by the boundaries
was intended to be sold, the rule of interpretation is that
boundaries must prevail as against measurements."
56. A similar view was expressed in The
Palestine Kupat Am Bank Co- operative Society Ltd
vs. Government of Palestine and others4, "In
construing a grant of land, a description by fixed
boundaries is to be preferred to a conflicting description
by area."
57. We may also refer to Temple of Maruthi vs.
Balakrishna Suryaji S. Kakodkar and anothers5
"where in the issue was, if the boundaries and area
conflict with each other, which one should prevail. The
AIR (35) 1948 PC 207
1998 (3) Bombay CR.540
- 51 -
RFA No. 100536 OF 2022
Bombay High Court has held that boundaries would
prevail".
58. Thus, it is well settled law that the boundaries
will prevail over the extent and it is also true that if the
vendors have any complication between description of
boundaries and the extent, the boundaries will prevail
over the extent. In another judgment of this Court
between DR. JAYASHEELA VENU AND ANOTHER V/s.
A.J.F.D'SOUZA AND OTHERS6 the paras 53, 38,39
reads as under:
53. For the reasons assigned by us
while adverting to the points formulated
by this Court, we would hold that the
plaintiffs have established their right and
title over suit Schedule "A" as well as "B"
properties. The title of plaintiffs stands
established in the light of the approved
layout plan as per Ext. P-2, coupled with
the survey sketch issued by the city
survey authorities who have surveyed
the suit schedule Site No. 22/9 in 1974.
The title of plaintiffs over the suit
schedule Site No. 22/9 stands
2021 (1) HCC (Kar)1
- 52 -
RFA No. 100536 OF 2022
established in terms of the sale deed
executed by Mrs Rose Mary D'Souza in
favour of her son Anthony Alexis
D'Souza and daughter-in-law Dorothy
Sabina D'Souza as per Ext. P-3 and in
turn the sale deed executed by the
aforesaid Anthony Alexis D'Souza and his
wife in favour of plaintiffs as per Ext. P-
4. The approved layout plan as per Ext.
P-2 coupled with survey sketch as per
Ext. P-7 and also the sketch in respect of
Site No. 22/9 as per Ext. P-8 would
clearly establish that the northern
boundary of Site No. 22/9 would extend
till the northern 20 ft road which is
assigned CTS No. 328. The plaintiffs
have succeeded in establishing that
there is inconsistency between the
description by boundaries and by area.
The plaintiffs have also established that
Site No. 22/9 is conveyed with definite
boundaries and the description by
boundaries is a leading description and
the same would prevail over all other
descriptions more particularly the
measurements shown in the approved
layout plan as per Ext. P-2 and the sale
deeds as per Exts. P-3 and P-4. The
plaintiffs have also established the
ambiguity in regard to measurements in
approved layout plan as per Ext. P-2 and
subsequent PT sheet drawn by the city
survey authorities as per Ext. P-6.
- 53 -
RFA No. 100536 OF 2022
Applying the principle of boundaries
prevail over measurements, we are not
inclined to accept the recitals in regard
to north-south measurement which is
shown as 77 ft. On the other hand, we
are of the view that the suit site bearing
No. 22/9 must be taken to have been
conveyed according to the dimensions
based on boundaries and not by
measurement. The above said clinching
evidence adduced by plaintiffs
establishes their title and also their
lawful possession over the suit Schedule
"A" property as well as Schedule "B"
property, which is in dispute.
38. If this relevant ocular evidence
of DW 2 is taken into consideration, the
same would clinch the controversy in
regard to the width of the road. Neither
the first defendant nor Defendants 2 and
3 have adduced any rebuttal evidence to
prove that the width of the road is 30 ft.
All these significant details which would
have a bearing on the conclusion are
totally discarded and ignored by the
court below. The conclusion arrived at by
the court below while examining
additional Issue 5 suffers from serious
infirmities. The learned Judge has
virtually misread the entire evidence on
record. In the absence of rebuttal
evidence and by ignoring the approved
sanctioned plan as per Ext. P-2 coupled
- 54 -
RFA No. 100536 OF 2022
with Exts. P-6, 7 and 8, which are public
documents issued by survey authorities
which have got presumptive values and
of 2008, the learned Judge has
proceeded to hold that defendants have
proved that the width of the road is 30
ft. this finding arrived at while answering
additional issue 5 suffers from serious
perversities.
39. We would find that a feeble
attempt is made by Defendants 2 and 3
who assert right and title over the
northern road in excess of what is
notified under the approved layout plan.
Defendants 2 and 3 are also bound by
Ext. P-2 which is an approved layout
plan and same indicates that the width
of the road is 20 ft. However,
Defendants 2 and 3 are claiming title
over the northern road by contending
that its width measures 30 ft and not 20
ft. However, to substantiate their case,
Defendants 2 and 3 have not let in any
rebuttal evidence. Except bald
allegations in the written statement
coupled with self-serving oral testimony
of the official who is examined as DW 2,
there is absolutely no clinching evidence
indicating that to the northern side of
Site No. 22/9, the road situated
measures 30 ft. In view of the
categorical admissions given by the first
- 55 -
RFA No. 100536 OF 2022
defendant and also having regard to the
admitted set of facts narrated in the
written statement filed by the first
defendant in the earlier suit bearing No.
6696 of 1992, we are of the view that
the finding recorded by the court below
on additional Issue 5 suffers from
perversity and the same is in absence of
rebuttal evidence let in by first
defendant as well Defendants 2 and 3. In
that view of the matter we would answer
Point 3 in the affirmative.
59. In the said judgment, the question that arose
before this Court was whether the description by
measurement is relied upon to deny a title to the
property when there is conflict between the boundaries
and measurement pertaining to the immovable property.
The answer given by the Division Bench of this Court in
supra is, boundaries prevail over the extent of the land.
The para 35 of said judgment reads as under:
35. The court below while dealing
with Issue 5 has come to the conclusion
that defendants have established the
width of the road situated on the
northern side of Site No. 22/9 as 30 ft
and not 20 ft as averred in the plaint. As
per PT Sheet No. 850 vide Ext. P-6, the
- 56 -
RFA No. 100536 OF 2022
road is assigned CTS No. 328 and its
width is shown as 6, 10 m i.e. 20 feet.
The same is also reflected in survey
sketch as per Ext. P-7. Ext. P-6 (PT
Sheet) and Ext. P-7 (survey sketch)
corroborates and tallies with the width of
the road shown in layout sanctioned plan
vide Ext. P-2. Insofar as this controversy
is concerned, we have perused the
written statements filed by first
defendant as well as Defendants 2 and
3. The first defendant has at Para 4 of
the written statement specifically
contended that the width of the northern
road is 30 ft and that it is wrongly
mentioned as 20 ft in the approved
layout plan as per Ext. P-2. We have
meticulously examined the oral evidence
let in by the defendants on this issue.
There is absolutely no rebuttal evidence
to indicate that northern road measures
30 ft The city survey authorities as per
Ext. P-7 have assigned CTS No. 328 to
northern road and its measurement is
show as 6.10 m and that would work out
to 20 feet. Even otherwise, the approved
layout plan as per Ext. P-2 is not
challenged by either of the parties. On
the contrary, first defendant has
admitted the approval of layout plan
secured by his mother as per Ext. P-2.
To rebut the contention of the first
defendant, the plaintiffs have also relied
- 57 -
RFA No. 100536 OF 2022
on Para 3 of the written statement filed
by the first defendant in the earlier suit
which was one for bare injunction filed
by the plaintiffs against the first
defendant, which is called out as under:
"3. The property actually
purchased, owned and possessed
by the plaintiffs and their
predecessors in title right from the
formation of the layout is and has
been as follows 'Site No. 22/9,
Oorguam Road, measuring north to
south 77 feet, east to west 98 feet'
and bounded on the north 20 ft
road South by Site No. 22/8, East
by Oorguam Road, west by Site No.
22/10."
60. Thus, the principle laid down by the aforesaid
Division Bench, the Judgment of this Court can very well
be applied to the present facts of the case. Further, in
para.25 and 26 of the said judgment, it is observed as
under:
"25. It is also trite that
description by boundaries prevail
over all other descriptions. The
reliance placed by the learned
Senior Counsel on decision
rendered by this Court in
- 58 -
RFA No. 100536 OF 2022
Narasimha Shastry V.Mangesha
Devaru. and the judgment
rendered by the High Court of
Kerala in Savithri Ammal Vilasini
Ammal V. Jayaram Pillai
Padmavathi Ammaa are squarely
applicable to the present case on
hand. The dispute is in respect of
site with is part and parcel of an
approved layout. The approved
layout comprises of 12 plots and
the same are identified by their
respective boundaries on all four
sides of the plots. The properties
are clearly identified by their
boundaries and the actual
measurement would not be that
significant and cannot be a leading
description What is agreed to be
sold under Exts. P-3 and P-4 is the
property which is in compact and
bounded by specific boundaries on
all four sides. Admittedly the layout
is formed in 1962 and there is
every possibility of there being
error in measuring the plots. The
same gets strengthened by the fact
that city survey authorities
measured the suit site property in
1974 and as per Ext, P-7 which is
survey sketch, the boundaries and
measurements of CTS 326,
327,329 and 330 are mentioned.
- 59 -
RFA No. 100536 OF 2022
As per Ext. P-7 (survey sketch)
there is inconsistency in the
measurement shown at the time of
approval of the layout and
subsequent survey conducted by
the city survey authorities in 1974.
26. The ratio laid down by the
Privy Council in Palestine Kupat Am
Bank Coop. Society Ltd. V. Govt. of
Palestine is squarely applicable to
the present case on hand and the
precedent laid down therein would
also bind this Court. The ratio laid
down by the Privy Council in the
said case has become locus classics
and even after lapse of seven
decades of its pronouncement, the
principles laid down in the said
judgment still holds the field and
the ratio laid down has been
followed by several High Courts in
the cases relating to conflict
between boundaries and
measurements.
27. When there is ambiguity
in regard to measurement and the
fact that the controversy is in
respect of a plot, we are of the
view that the principle that
description by boundaries would
prevail over all other descriptions
- 60 -
RFA No. 100536 OF 2022
has to be made applicable to the
present case on hand."
61. In view of the principles laid down in the
aforesaid judgments, it can very well be stated that
description by boundaries prevail over all other
descriptions. A comparative reading of the sale deeds of
Kasimsab which was the first sale deed being admitted
by the plaintiffs and the sale deeds of defendants-
appellants do establish that the boundaries will prevail
over the extent that has been considered. But, the
learned trial Court simply believed the evidence of the
plaintiffs and has come to the conclusion that the
plaintiffs were able to prove their case with legal
evidence. When the plaintiffs fail to prove that deceased
Kasimsab had retained 1600 sq.yds., then in view of the
boundaries mentioned in the four sale deeds, it can be
said that entire 3280 sq.yds. had been sold.
62. Considering the judgment cited supra, it is well
settled principle of law at the cost of repetition that if
- 61 -
RFA No. 100536 OF 2022
there is any dispute in respect of extent sold, the
boundaries only prevail over the extent. The learned trial
Court has lost sight and misread the evidence placed on
record by the plaintiffs and there is no proper
appreciation of the evidence placed on record by the
plaintiffs and defendants.
63. Thus, in the case of present nature, a duty is
cast upon the Court to follow the rule of interpretation of
documents/agreements. It is the duty of the Court to
interpret a document of the Contract as was understood
between the parties. The terms of the contract have to
be construed strictly. That means a document has to be
read as a whole, and the spirit of the subject should be
taken note of, and not to be faded away by mere letters
found therein. Anyone who tries to rely on mere
wordings, without keeping in mind the object and spirit
of the document would be considered as a person who
throws the baby along with the bath water.
- 62 -
RFA No. 100536 OF 2022
64. It is also a settled principle that, when the
intention of the maker or makers of the deed cannot be
given effect to in its full extent, effect is to be given to
weight as far as possible, where the intention is
sufficiently clear from the deed itself. Mis-rectial in some
part of the deed cannot vitiate. Anything expressly
mentioned in the deed excludes another view impliedly
possible.
65. Thus it is very much clear that the learned trial
Court has not properly appreciated the evidence placed
on record by the defendants. In a judgment of the
Supreme Court in Sant Ram vs. Rajinder Lal7
enunciated certain principles regarding the interpretation
of a lease deed. His Lordship V.R.Krishna Iyer, Ajay,
speaking for three-Judge Bench quoting with approval
from "Lux Genetium Lux- Then and Now held as
follows" and the para 6 of the said judgement reads as
under:
AIR 1978 SC 1601
- 63 -
RFA No. 100536 OF 2022
6. Two rules must be remembered
while interpreting deeds and statutes.
The first one is: "In drafting it is not
enough to gain a degree of precision
which a person reading in good faith can
understand, but it is necessary to attain if
possible to a degree of precision which a
person reading in bad faith cannot
misunderstand."
The second one is more important for
the Third World countries. Statutory
construction, so long as law is at the
service of life, cannot be divorced from
the social setting. That is why, welfare
legislation like the one with which we are
now concerned, must be interpreted in a
Third World perspective. We are not on
the Fifth Avenue or Westend of London.
We are in a hilly region of an Indian town
with indigents struggling to live and
huddling for want of accommodation. The
law itself is intended to protect tenants
from unreasonable eviction and is,
therefore, loaded a little in favour of that
class of beneficiaries. When interpreting
the text of such provisions and this holds
good in reading the meaning of
documents regulating the relations
between the weaker and the stronger
contracting parties - we must remember
what in an earlier decision of this Court,
has been observed.
- 64 -
RFA No. 100536 OF 2022
66. On reading all the four sale deeds and the
boundaries mentioned therein, it can be stated that, now
for the purpose of depriving rights of appellants-
defendants, the plaintiffs must have designed the suit
after lapse of more than 35 years.
67. The learned trial Court has not taken into
consideration all these aspects, but simply believed by
wrongly interpreting the sale deeds and has come to the
conclusion that these plaintiffs are able to prove the case
which in our opinion is erroneous. The plaintiffs have
failed to prove their title to the suit property.
68. Therefore, the findings of the trial Court requires
interference. The plaintiffs are also not able to prove
their lawful possession and enjoyment of the property.
69. In view of the aforesaid discussion, the trial
Court has wrongly held that defendants have failed to
prove their respective title over the suit property even the
trial Court has erred in holding that deceased Kasimsab
- 65 -
RFA No. 100536 OF 2022
just sold 1680 sq.yds. Such finding of the Trial Court
suffers from infirmities.
70. So in view of the findings on various points for
consideration stated supra, definitely the findings of the
trial Court require interference by this Court.
71. The appeal succeeds and the suit of the plaintiffs
is liable to be dismissed.
72. Accordingly the aforesaid points are answered in
favour of appellant-defendants. Resultantly we pass the
following:
ORDER
i) Appeal filed by appellant-
defendant nos. 1 to 4 is
allowed.
ii) Judgment and decree
passed in OS No. 8/14 dated
20.8.2022 passed by the II
Addl. Sr.Civil Judge and CJM,
Belagavi, is hereby set aside.
- 66 -
RFA No. 100536 OF 2022
iii) Consequentially, the suit
of the plaintiffs in OS
No.8/2014 on the file of II
Addl.Sr.Civil Judge and CJM,
Belagavi is dismissed with
costs.
iv) Send back the trial Court
records along with a copy of
this judgment forth with.
Sd/-
JUDGE
Sd/-
JUDGE
SK/-
