Sri Raju vs Sri C P Somu
2023 Latest Caselaw 549 Kant

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 9TH DAY OF JANUARY, 2023

                        BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

REGULAR SECOND APPEAL NO.1658 OF 2010 (DEC & INJ)

BETWEEN:

1.     SRI.RAJU
       S/O LATE MARIYAPPA
       AGED ABOUT 47 YEARS

2.     SRI.DORESWAMY
       S/O LATE MARIYAPPA
       AGED ABOUT 42 YEARS

3.     SRI.PUTTASWAMY
       S/O LATE MARIYAPPA
       AGED ABOUT 45 YEARS

4.     SMT.JAYAMMA
       D/O LATE MARIYAPPA
       AGED ABOUT 37 YEARS

5.     SMT.SHIVALINGAMMA
       W/O LATE MARIYAPPA
       AGED ABOUT 72 YEARS

       ALL ARE RESIDENTS OF
       VANDARAGUPPE VILLAGE
       KASABA HOBLI
       CHANNAPATNA TALUK
       RAMANAGARA DISTRICT - 562108

                                       ... APPELLANTS

(BY SRI.R.VIJAYAKUMAR, ADVOCATE)
                          2



AND

SRI.C.P.SOMU
S/O PUTTALINGEGOWDA
DEAD BY HIS LRS

A)    MR.ABHISHEK
      S/O LATE C.P.SOMU
      AGED ABOUT 28 YEARS

B)    MR.ABHIJITH
      S/O LATE C.P.SOMU
      AGED ABOUT 28 YEARS

      BOTH RESIDING AT
      CHAMMANAHALLI VILLAGE
      KOOTAGAL HOBLI
      RAMANAGARA TALUK
      RAMANAGARA DISTRICT

                                    .....RESPONDENTS

(BY SRI.V.SRINIVASA, ADVOCATE FOR R.1(A & B))

     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 09.03.2010 PASSED IN R.A.NO.153/2008
ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (SR. DN.),
RAMANAGARA,      DISMISSING    THE    APPEAL   AND
CONFIRMING THE JUDGMENT AND DECREE DATED
30.08.2008 PASSED IN O.S.NO.385/1998 ON THE FILE OF
THE PRL. CIVIL JUDGE (JR. DN.) & JMFC, CHANNAPATNA
AND ETC.

     THIS REGULAR SECOND APPEAL COMING ON FOR
PART HEARD IN ADMISSION THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
                              3



                        JUDGMENT

The captioned second appeal is filed by the

unsuccessful plaintiffs, who have questioned the concurrent

findings of the Courts below, wherein the plaintiffs suit

seeking relief of declaration and injunction is dismissed by

both Courts.

2. For the sake of brevity, the parties are referred as

they are ranked before the Trial Court.

3. The plaintiffs have instituted a suit asserting right

and title over the suit schedule 'B' property measuring

7½ guntas. The plaintiffs claim that schedule 'B' property is

a part and parcel of the schedule 'A' property of the land

bearing Sy. No.3/2C measuring 29 guntas. The plaintiffs

contend that schedule 'A' property bearing Sy. No.3/2C,

which was originally part of Sy. No.3/2, belongs to the

plaintiffs. It is the specific case of the plaintiffs that

Sy. No.3/2 measures 2 acres 3 guntas. The plaintiffs have

specifically contended that 34 guntas in Survey No.3/2 was

converted. The plaintiffs also admit that 34 guntas of land,

which is converted, is sold to defendant and other two

persons. However, plaintiffs claim that the road margin

abutting to Bengaluru - Mysuru Road is retained by the

plaintiffs.

4. It is further pleaded that plaintiffs have

approached PWD Department and sought compensation.

To the said communication, PWD Department claimed that

they have not acquired the road margin portion and

accordingly, endorsement was issued on 15.04.1996 and

18.04.1996. It is the specific case of the plaintiffs that

though their father has sold 34 guntas in three parts under

three separate sale deeds, however, they have claimed that

they have retained 7½ guntas in the southern portion and

the remaining portion was sold to the defendant and other

purchasers. The plaintiffs claimed that the remaining 7½

guntas, which is retained by their father, is a part and parcel

of Sy. No.3/2C and therefore, the present suit is filed

seeking relief of declaration of title and perpetual injunction.

5. The defendant on receipt of summons tendered

appearance and filed written statement. The defendant,

while stoutly denying the entire claim made by the plaintiffs,

however, contended that the property purchased by him

extends till southern Bengaluru - Mysuru road and

therefore, he contends that plaintiffs father having sold

34 guntas of converted land has not retained any portions

and therefore, contended that the portions i.e., suit

schedule 'B' property, which is now claimed to be 7½ guntas

of agricultural land, is not at all in existence. The defendant

at para No.2 of the written statement has taken a specific

contention that he is not claiming any portion in the land

bearing Sy. No.3/2C. The specific defence was also raised

by the defendant that the present suit is not maintainable

and all necessary parties are not arrayed in the present suit.

6. Plaintiffs and defendant to substantiate their

respective claims have lead in oral and documentary

evidence. Pending suit, Court Commissioner was appointed,

who has submitted his report, which is marked as Exs.C.1

to C.7. The Commissioner was examined as C.W.1.

The Trial Court having referred to the evidence on record

and after giving its anxious consideration to the

Commissioner's Report, was not inclined to accept the

Commissioner's Report.

7. The Trial Court referring to the cross-examination

of the Court Commissioner found that the Commissioner has

strangely not followed the memo of instructions. The Trial

Court found that in spite of there being a specific instruction

at Sl. No.3 to collect the sale deeds of adjoining land owners

in Sy. No.3/2A, the Commissioner, in his report, has

indicated that adjoining land owners have not produced their

sale deeds and has observed that the sale deeds of

adjoining land owners are not registered. It is in this

background, the Trial Court was of the view that the

Commissioner's Report cannot be relied on as adjoining

owners have also purchased a portion in Sy. No.3/2A under

registered sale deeds and the same is forthcoming from the

title documents placed on record, which are marked as

Exs.P.1 to 3 and Exs.D.8 to 10.

8. While examining the title documents of the

plaintiffs, the Trial Court held that the plaintiffs father

Mariyappa got converted 34 guntas of land in Sy. No.3/2 for

non-agricultural purpose. Ex.P.4 is the conversion order

and the condition No.4 of the Ex.P.4 clearly indicates that

land owners require to leave road margin as per rules.

Referring to Exs.P.1 to 15, the Trial Court also found that

the plaintiffs claim that Sy. No.3/2C is still an agricultural

land was also not accepted by the Trial Court. Referring to

Exs.P.1 to 15, the Trial Court was of the view that several

sites are formed in Sy. No.3/2C measuring 29 guntas. The

Trial Court was not inclined to accept the claim of the

plaintiffs that Sy. No.3/2 has undergone phodi proceedings.

The Trial Court held that the claim of the plaintiffs that the

land bearing Sy. No.3/2 has undergone hissa proceedings

was negatived by the Trial Court. Referring to the title

documents vide Exs.D.8 to 10, the Trial Court was of the

view that plaintiffs father having sold Sy. No.3/2A

measuring 34 guntas in favour of defendant and other

adjoining owners has not retained any portion of the

southern side of Sy. No.3/2A. Therefore, referring to the

title documents, the Trial Court held that the plaintiffs have

failed to substantiate their right and title over the suit

schedule properties. Consequently, the suit is dismissed.

9. The Appellate Court having independently assessed

the oral and documentary evidence was also not inclined to

entertain the claim made by the plaintiffs. Re-appreciating

the entire evidence on record, the Appellate Court was also

of the view that the defendant has purchased a property and

the southern boundary extends up to Bengaluru to Mysuru

Road and therefore, the plaintiffs cannot claim over a

portion between the defendants' property and Bengaluru to

Mysuru Road. On re-appreciation of the evidence on record,

the Appellate Court was of the view that the alleged

existence of 7½ guntas as claimed by the plaintiffs is not

substantiated by producing cogent and clinching evidence.

Consequently, the appeal is dismissed.

10. Feeling aggrieved by the concurrent findings, the

plaintiffs are before this Court.

11. Heard learned counsel appearing for the plaintiffs

and learned counsel appearing for the defendant. Perused

the concurrent findings of the Courts below.

12. Since valuable rights are involved, this Court has

given its anxious consideration to the documents placed on

record. Though the captioned second appeal under Section

100 of CPC would not invest this Court from assessing the

evidence on record, this Court has examined Ex.P.8, which

is a sketch prepared by the Assistant Director of Land

Records and post conversion and alienation done by the

plaintiffs father. What is interesting to note is that pursuant

to the conversion secured by the plaintiffs father in respect

of 34 guntas, the Competent Authority has acted upon the

conversion and alienations and the converted land is

bifurcated from the remaining extent in Sy. No.3/2. On

perusal of hissa proceedings vide Ex.P.8, this Court would

find that Sy. No.3/2, which totally measuring 2 acres 3

guntas was divided into three parts i.e., Sy. No.3/2A

measuring 34 guntas, which was alienated by the plaintiffs

father to three persons, is found to be on the northern side

and to the south of Sy. No.3/2A, Sy. No.3/2B is located

measuring 20 guntas and similarly, Sy. No.3/2C measuring

29 guntas is situated on the extreme southern side. Now,

the said sketch also indicates that on the eastern side, there

is a margin road totally measuring 20 guntas. The said 20

guntas of land is abutting to all the three portions.

13. The said hissa proceeding is also given effect to

the revenue records. Sy. No.3/2A measures 34 guntas,

while Sy. No.3/2B measures 20 guntas and Sy. No.3/2C

measures 29 guntas. If these three portions are aggregated,

then the same works out to 2 acres 3 guntas.

14. On perusal of Ex.P.4, which is the conversion

order and at condition No.4 indicates that no construction

should be put up within the road margin and it is relevant to

extract condition No.4 of the said conversion order, which

reads as under;

"4. A road margin of as per rules feet from the centre of the Bengaluru - Mysore Road to extreme edge of the construction should be maintained and no construction should be put up within this road margin as per G.O.No.PWD/7556-665 and 06-08-54-5 and 12.02.1955 and letter No.PL.7/(11)/57 dated 01.01.1966 of the Ministry of Transport, Government of India."

Therefore, condition No.4 in the conversion order vide

Ex.P.4, it conjointly read along with Ex.P.8, which is hissa

proceedings, this Court would find that Sy. No.3/2C is

located on the extreme southern portion while the present

suit is filed against one of the purchaser i.e., defendant, who

has purchased one site in Sy. No.3/2A, while other two

purchasers are not parties to the present suit.

15. This Court is unable to understand as to how the

present suit is maintainable against the defendant, who has

purchased a portion in Sy. No.3/2A. Sy. No.3/2A and

Sy. No.3/2C is bifurcated by Sy. No.3/2B. It would be

useful for this Court to cull out the properties, which are

referred to in the present suit. Schedule 'A' and Schedule

'B' properties read as under;

SCHEDULE - A

Survey Number 3/2C, measuring 29 guntas, assessed at Rs.1.00, situated at Vandaraguppe Village, Kasaba Hobli, Channapatna Taluk and bounded on the:

      East by     : Land in Sy. No.3/2B to some extent
                    and then land of Chikkathimmaiah
                    to some extent
      West by     : Sy. No.3/1 of Ramaswamy
      North by    : Railway Track to some extent and
                    Sy. No.3/2A and 3/2B to some extent
      South by    : Bangalore-Mysore Road

                         SCHEDULE - B

      7 ½ guntas in 'A' schedule, bounded on the;

      East by     : Land of Chikkathimmaiah




       West by     : Land of Ramswamy in Sy. No.3/2C
        North by : Land in Sy. No.3/2A
        South by : Bangalore - Mysore Road

16. If plaintiffs are asserting that they have a right in

the schedule property bearing Sy. No.3/2C, this Court is

unable to understand as to how the plaintiffs could have

maintained a suit seeking relief of declaration and perpetual

injunction against the owners in Sy. No.3/2A. Ex.P.8, which

are hissa proceedings, coupled with Exs.P.12 to 17, which

are revenue records clearly indicate that plaintiffs have

failed to prove that their father having sold 34 guntas in

Sy. No.3/2 had retained 7½ guntas. Admittedly, the

conversion and alienation is of the year 1984. The present

suit is filed by the plaintiffs after the death of their father in

the year 1988. The present suit is filed only after securing

endorsement from the PWD Department that they have not

acquired any portion, which is reserved as margin road.

If plaintiffs father had retained 7½ guntas of agricultural

land after having converted 34 guntas, then it was

incumbent on the part of the plaintiffs to substantiate their

title over 7½ guntas. This Court would find that the plaintiffs

have failed to prove the very existence of the suit schedule

'B' property. In fact, this Court would find that Ex.P.8, which

are hissa proceedings, would clinch the entire controversy

between the parties. Though Trial Court erroneously

misread the evidence on record, however, this Court is of

the view that the conclusions arrived at by the Trial Court

would not warrant any interference at the hands of this

Court.

17. If plaintiffs father had alienated 34 guntas of

land, which is found on the extreme northern side, then the

relief of declaration sought by the plaintiffs asserting that

they are the owners of extent of 7½ guntas, which is part

and parcel of Sy. No.3/2C is not substantiated by any title

documents. It appears that on account of escalation of

prices of the immovable property and on account of there

being Bengaluru to Mysuru Road abutting to the property,

the plaintiffs have unfortunately ventured into claiming a

fictitious property, which is not in existence. Plaintiffs claim

that they have retained 7½ guntas of agricultural land is not

supported by any documentary evidence.

18. The learned counsel appearing for the plaintiffs

contends that if the Trial Court found that the commission

work executed by the Commissioner was not in terms of the

memo of instructions, the Trial Court ought to have

relegated the parties for fresh commission or the Trial Court

at least to advance the justice ought to have sought for

further report after issuing a fresh direction to the

Commissioner. This contention cannot be entertained at this

juncture since the plaintiffs have failed to place on record

the documents indicating that the plaintiffs father had

retained 7½ guntas of land. Therefore, local inspection in

the present case on hand was found to be futile exercise

and unwarranted.

Therefore, no substantial question of law arises for

consideration.

Accordingly, the appeal is dismissed.

In view of dismissal of the appeal, all pending

interlocutory applications, if any, do not survive for

consideration and accordingly, they are dismissed.

Sd/-

JUDGE

NBM