Maruthi S/O. Dhaklu Shinde vs Abdulsalam S/O. Ismailsaheb ...
2023 Latest Caselaw 230 Kant

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                                   RSA No. 100240 of 2014

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

       DATED THIS THE 4TH DAY OF JANUARY, 2023

                         BEFORE
         THE HON'BLE MR JUSTICE M.G.S. KAMAL
 REGULAR SECOND APPEAL NO. 100240 OF 2014 (POS-)
BETWEEN:

1.   SRI.MARUTHI S/O. DHAKLU SHINDE
     AGE: 71 YEARS, OCC: NIL,
     R/O. CTS NO. 4412/1,
     CHAVAT GALLI, BELGAUM.

2.   SMT.LATA W/O. SHIVAJI SHINDE
     AGE: 62 YEARS, OCC:HOUSEHOLD WORK,
     R/O. CHAVAT GALLI,
     BELGAUM -590 001.

3.   SRI.ASHOK S/O. SHIVAJI SHINDE
     AGE: 48 YEARS, OCC: PRIVATE SERVICE,
     R/O. CHAVAT GALLI,
     BELGAUM -590 001.

4.   SMT.SUNITA D/O. SHIVAJI SHINDE
     AGE: 46 YEARS, OCC: HOUSEHOLD WORK,
     R/O. CHAVAT GALLI,
     BELGAUM -590 001.

                                              ...APPELLANTS

(BY SRI.S.R. SHINDE & SRI.B M PATIL, ADVS.)

AND:

1.   SRI.ABDULSALAM S/O. ISMAILSAHEB MANIYAR
     AGE: 48 YEARS, OCC: BUSINESS,
     R/O. CTS NO. 14, 6TH CROSS,
     AZAM NAGAR, BELGAUM -590 001.
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                                          RSA No. 100240 of 2014

2.   SRI.KALAM S/O. ISMAILSAHEB MANIYAR
     AGE: 44 YEARS, OCC: BUSINESS,
     R/O. CTS NO. 14, 6TH CROSS,
     AZAM NAGAR, BELGAUM -590 001.

3.   SRI.SATISH S/O.NIGOJI PATIL
     AGE: 52 YEARS, OCC: BUSINESS,
     R/O. NO. 4234, KHADAK GALLI, BELGAUM -590 001.

                                                 ...RESPONDENTS

(BY SMT.GIRIJA S HIREMATH, ADV. FOR R1-R3)

      THIS RSA IS FILED UNDER SECTION 100 OF CPC,

AGAINST THE JUDGMENT AND DECREE DATED 26.02.2014

PASSED   IN   R.A.NO.162/2012        ON   THE   FILE   OF   THE   II

ADDL.SENIOR    CIVIL   JUDGE     AND      ADDL.MACT,    BELGAUM,

DISMISSING THE APPEAL, FILED AGAINT THE JUDGMENT AND

DECREE DATED 12.10.2012 AND THE DECREE PASSED IN

O.S.NO.688/1998 ON THE FILE OF THE IV ADDL.CIVIL JUDGE

AND JMFC, BELGAUM, DISMISSING THE SUIT FILED FOR

POSSESSION AND MANDATORY INJUNCTION.



      THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,

THE COURT DELIVERED THE FOLLOWING:
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                                           RSA No. 100240 of 2014

                          JUDGMENT

1. Present appeal is by the plaintiffs, aggrieved by

the judgment and decree dated 12.10.2012 passed in

O.S.No.688/1998, on the file of the IV Addl.Civil Judge and

JMFC, Belgaum (hereinafter referred to as 'the Trial

Court'), and in by which, the Trial Court dismissed the suit

of the plaintiffs which was confirmed by the judgment and

order dated 26.02.2014 passed in R.A.No.162/2012 on the

file of the II Addl.Senior Civil Judge and Addl.MACT,

Belgaum (hereinafter referred to as 'the First Appellate

Court').

2. Brief facts of the case are that; the plaintiffs

filed a suit originally for the relief of permanent injunction

restraining the defendants from carrying out any type of

construction of building in the suit property and also from

disturbing peaceful possession of the plaintiffs over the

suit property, which was subsequently amended and

converted into a suit for relief of possession and

mandatory injunction, contending inter alia that the father

of the plaintiffs namely Dhaklu Shinde had purchased suit

RSA No. 100240 of 2014

property being a vacant non-agricultural plot bearing CTS

No.10969/A/1A/1A measuring 2 guntas forming part of

the property bearing R.S.No.1366/1/1A situated within the

limits of Belgaum from its previous owner Gangubai

Kakatkar in terms of deed of sale dated 15.10.1962. That

upon the demise of the father of the plaintiffs, their names

were entered in the revenue records on 05.08.1988 vide

M.E.No.1723. The suit property was declared to be

fragmented land and later the plaintiffs applied and

obtained change of usage of land into non-agricultural land

in terms of the order passed by the Deputy Commissioner,

Belgaum dated 21.06.1994.

3. It is the case of the plaintiffs that their father

earlier had filed a suit in O.S.No.671/1994 against one

Wamanrao H Jadhav and his brother Ananth Jadhav for

relief of permanent injunction, which was decreed and an

appeal filed against said judgment and decree was also

dismissed, confirming the decree passed in favour of the

father of the plaintiffs. That on 19.10.1998 defendants

RSA No. 100240 of 2014

allegedly entered into the suit property with building

materials with an intention to putting up construction.

Efforts of the plaintiffs to prevent the defendants did not

yield any result. As the defendants claimed right over the

property on the basis of certain bogus documents, the

plaintiffs were constrained to file a suit for permanent

injunction.

4. During the pendency of the suit, the plaintiffs

amended the plaint alleging encroachment by the

defendants 1 and 2 to the extent of 1 gunta of suit

property and defendant 3 to the extent of remaining 1

gunta of land. Hence sought for relief of mandatory

injunction seeking removal of illegal construction made by

the defendants.

5. The defendants in their written statement

specifically denied the case of the plaintiffs, description of

the property. It is the case of the defendants, that

defendants 1 and 2 had purchased the portion of land

bearing CTS No.10969/1A/1B and defendant 3 had also

RSA No. 100240 of 2014

purchased another portion said CTS number, out of the

land in Sy.No.1366/1/1A in terms of the two separate

deeds of sale dated 27.01.1997 from its owner Ananth

Jadhav. After purchasing the same, they obtained

necessary permission from the competent authorities and

sub-divided the land into two parts. Portion purchased by

defendants 1 and 2 was allotted CTS No.10969/A/1A/1B/2

and the portion purchased by defendant 3 was allotted

CTS No.10969/A/1A/1B/1.

6. That after obtaining necessary permissions from

the City Corporation, Belgaum, the defendants constructed

buildings over their respective properties. That defendant

3 after completion of residential building had sold the

same to another person. Thus, allegation of encroachment

as made by the plaintiffs is denied.

7. Based on the pleadings, the Trial Court framed

issues and recorded evidence. Two witnesses were

examined on behalf of the plaintiffs as PWs.1 and 2 and

exhibited 12 documents marked as Exs.P1 to P12. On

RSA No. 100240 of 2014

behalf of defendants, defendants No.1 and 2 examined

themselves as DW1 and 2 and exhibited 38 documents

marked as Exs.D1 to D38.

8. The Trial Court on appreciation of material

evidence, dismissed the suit by its judgment and decree

dated 12.10.2012. Being aggrieved by the same, the

plaintiffs filed regular appeal in R.A.No.162/2012 on the

file of the First Appellate Court. Considering the grounds

urged, the First Appellate Court framed points for its

consideration and by its judgment and order dated

26.02.2014, dismissed the appeal confirming the

judgment and decree passed by the Trial Court in

dismissing the suit of the plaintiffs. Being aggrieved by the

same, the appellants are before this Court.

9. Sri.B.M.Patil, learned counsel for the appellants

reiterating the grounds urged in the memorandum of

appeal submits that the Trial Court and the First Appellate

Court grossly erred in appreciating the material evidence

placed by the plaintiffs. That both the Courts failed to see

RSA No. 100240 of 2014

that the boundaries given in the deeds of sale by the

appellants and the respondents are one and the same. As

such, the identity and extent of encroachment of the land

by the defendants was proved by the plaintiffs. That the

Trial Court and the First Appellate Court did not appreciate

the fact that the defendants had purchased the property

during the pendency of the suit in O.S.No.671/1994, which

was filed by the father of the plaintiffs against the vendors

of the defendants. That the Trial Court and the First

Appellate Court also failed to appreciate the error

committed by the Court Commissioner in preparing a

report that the plaintiffs had established their title and

possession of their property by producing material

evidence and the same has not been appreciated by the

Trial Court and the First Appellate Court. Thus, he submits

that the impugned judgment and decree suffers from

perversity giving rise to substantial questions of law.

10. Smt.Girija Hiremath, learned counsel for the

respondent on the other hand justifying the order passed

RSA No. 100240 of 2014

by the Trial Court and the First appellate Court submitted

that the present proceedings were the second round of

litigation as the earlier suit filed by the plaintiffs was

dismissed by the Trial Court on 15.11.2002. That being

aggrieved by the same, they had filed regular appeal in

R.A.No.109/2007 which was allowed by the judgment and

decree dated 15.01.2009 and the matter was remanded

back to the Trial Court with a direction to give sufficient

opportunity to both the parties to lead oral and

documentary evidence, if any, and to dispose of the

matter. That after the remand, the plaintiffs amended the

plaint incorporating the extent of property i.e., 20'x111'.

The Trial Court and the First Appellate Court on

consideration of the material evidence, have come to just

conclusion of the plaintiffs not having established their

right, title and possession over the suit property and

consequently dismissing the suit by concurrent finding. As

such, the same does not give rise to any substantial

question of law warranting consideration. Hence, sought

dismissal of the appeal.

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RSA No. 100240 of 2014

11. Heard the learned counsel for the parties.

Perused the records.

12. It is not in dispute that the plaintiffs had initially

filed suit for bare injunction claiming to be in possession of

the suit property alleging interference by the defendants

and the same has been amended into a suit for mandatory

injunction and sought direction against the defendants to

demolition of the construction allegedly put up by them on

the suit property and consequently sought for relief of

possession.

13. The Trial Court and the First appellate Court on

examination of the pleadings and material evidence have

found that according to the plaintiffs, their father even

during the year 1994 had obtained change to land usage

from agricultural to non-agricultural purpose in terms of

the order dated 21.06.1994 produced at Exhibit P4. It is

observed that in the said order at Ex.P4, a condition was

imposed upon the father of the plaintiffs to get the

property measured and surveyed and to pay survey fee to

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RSA No. 100240 of 2014

the Tahasildar within two months. The said order at Ex-P4

further imposed condition for payment of conversion fee to

the revenue authority after obtaining actual measurement

and ascertaining the area demarcated. Both the Trial Court

and the First Appellate Court on appreciation of material

evidence came to the conclusion that the plaintiffs have

not produced any material evidence to prove that their

father had indeed complied with the said condition

imposed in the said document in the nature of getting the

property measured/surveyed and fixing of the boundaries.

Even PW1 during evidence has apparently admitted that

the conditions imposed in Ex.P4 were neither complied by

the father nor the plaintiffs after demise of their father.

Thus, the Trial Court and the First Appellate Court have

concluded that after change of land usage, neither their

father of the plaintiffs nor the plaintiffs have got the

property measured and fixed boundaries.

14. The Trial Court and the First appellate Court

have also taken note of the fact that initially these

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RSA No. 100240 of 2014

properties were referred to as plot bearing CTS

No.10969/A/1A/1a measuring 2 guntas, which after

change of land usage ought to have been measured and

referred in terms of feet and not guntas. Therefore, both

the Courts have concluded that plaintiffs failed to establish

the specific measurement or dimensions of the suit

property and its boundaries. They have also found that the

plaintiffs have not produced any material evidence to show

CTS numbers assigned to the property and also not

produced any city survey map to indicate the exact

measurement of the suit property.

15. As regards the dispute between the father of

the plaintiffs and the vendors of the defendants, the Trial

Court and the First Appellate Court have taken note of the

fact that the said suit was filed by the father of the

plaintiffs only to the extent of his claim of 2 guntas while

defendants in the said suit were jointly holding 18 guntas

of land and they had every right to alienate the said 18

guntas of land which the defendants claimed to have

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RSA No. 100240 of 2014

purchased from them. Thus, the Trial Court and the First

Appellate Court on appreciation of documentary evidence

produced by the defendants have come to the conclusion

that they had purchased the properties from their vendors

after obtaining necessary permissions and had put up

construction in accordance with law over their property.

16. The Commissioner was appointed by the Court

to demarcate the encroachment allegedly made by the

defendants and also to ascertain illegal construction who

submitted his report and was also examined as CW1. The

Courts have found that the report of the Commissioner

was against the case of the plaintiffs and the plaintiffs

could not dispute or elicit anything contrary to the report

submitted by the Commissioner. Thus, the Trial Court and

the First Appellate Court have meticulously appreciated

the material evidence produced by the parties and have

rightly come to the conclusion that the plaintiffs have not

established their right, title, interest and possession and

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RSA No. 100240 of 2014

also the identity of the suit property and have thus

dismissed the suit.

17. In that view of the matter, no substantial

questions of law would arise for consideration. The appeal

is dismissed.

sd JUDGE

KGK