Karnataka High Court
Parameshwar Hanu,Amtj Maol vs Madev Hariyappa Naik, S/O ... on 27 June, 2023
Bench: Anil B Katti
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RSA No. 5595 of 2010
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 27TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
REGULAR SECOND APPEAL NO. 5595 OF 2010
BETWEEN:
PARAMESHWAR HANUMANTH NAIK,
S/O HANUMANTH NAIK,
AGED ABOUT 77 YEARS,
OCC: AGRICULTURIST,
R/O HUBBANAGERI-581343
KUMTA TALUK,
U.K. DISTRICT.
...APPELLANT
(BY SHRI GANAPATHI S. SHASTRI,
SHRI S.G.KADADAKATTI,
SHRI M.B. GUNDE &
SHRI LINGESH V. KATTIMANI, ADVOCATES)
AND:
Digitally
1. MADEV HARIYAPPA NAIK,
signed by
SAMREEN SAMREEN S/O HARIYAPPA NAIK,
AYUB
AYUB DESHNUR AGED ABOUT 65 YEARS,
DESHNUR Date:
2023.06.28
16:17:00 -0700 R/O HUBBANAGERI-581343
KUMTA TALUK, U.K. DISTRICT.
2. KRISHNAPPA PANDU NAIK,
S/O PANDU NAIK,
AGED ABOUT 61 YEARS,
R/O HUBBANAGERI-581343
KUMTA TALUK, U.K. DISTRICT.
...RESPONDENTS
(BY SHRI N.S. BHAT, ADVOCATE FOR R1
NOTICE TO R2 IS SERVED)
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RSA No. 5595 of 2010
***
THIS REGULAR SECOND APPEAL FILED U/SEC.100 OF
CPC., AGAINST THE JUDGEMENT & DECREE DATED:20-03-2010
PASSED IN R.A.NO.153/2006 ON THE FILE OF THE CIVIL JUDGE
(Sr.Dn.) KUMTA, REVERSING THE JUDGMENT AND DECREE
DATED 30-7-2002 PASSED IN O.S. NO. 123/1992 ON THE
FILE OF THE CIVIL JUDGE (Jr.Dn.) KUMTA, BY ALLOWING THE
APPEAL WITH COST.
THIS REGULAR SECOND APPEAL COMING ON FOR
FURTHER ARGUMENTS AND THE SAME HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT ON 17.03.2023, THIS DAY,
THE COURT, DELIVERED THE FOLLOWING:
JUDGMENT
Appellant/defendant No.2 feeling aggrieved by judgment
of first Appellate Court on the file of Civil Judge (Sr.Dn.).,
Kumta, in R.A.No.153/2006 dated 20.03.2010 preferred this
appeal.
2. Parties to the appeal are referred with their ranks as
assigned in the trial Court for the sake of convenience.
3. The factual matrix leading to the case of plaintiff can
be stated in nutshell to the effect that plaintiff has purchased
land bearing Sy.No.50 measuring 38 guntas and Sy.No.50A
measuring 5 guntas, totally measuring 1 acre 3 guntas from its
erstwhile owner Devappa Timmappa Naik under registered sale
deed dated 04.03.1983. The plaintiff is in actual possession and
enjoyment of suit properties since from the date of its purchase
RSA No. 5595 of 2010
and constructed a house in the said property. The portion
shown as 'ABCD' in the hand-sketch map appended to plaint is
the property belonging to plaintiff. The portion shown as 'CD'
covering 8 coconut trees is the encroached area by defendants.
When the same was questioned by plaintiff, defendants asserted
their right over the said area and 8 coconut trees. There was
boundary stone in between the land of plaintiff and defendants
and also fencing was done. The defendants have removed the
said boundary stone and fencing, they put up new fencing by
covering 8 coconut trees and started asserting their right over
the said properties. Therefore, plaintiff was constrained to file
suit on hand for the reliefs claimed in suit.
4. In response to suit summons, defendants appeared
through their counsel and defendant No.2 filed written
statement contending that they are unaware of plaintiff
purchasing land bearing Sy.No.50 measuring 38 guntas and
Sy.No.50A measuring 5 guntas totally measuring 1 acre and 3
guntas under registered sale deed dated 04.03.1983 from
Devappa Timmappa Naik. It is specifically denied that plaintiff
is in possession of 'ABCD' portion shown in hand-sketch
appended to plaint. It is the case of defendants that there is
fence in between the land of plaintiff and defendants which is in
RSA No. 5595 of 2010
existence for the past 30 to 40 years and no any new fencing
was done by defendants. The land of defendants is situated to
northern side. The defendants are in possession and enjoyment
of portion of the property claimed by plaintiff. In the event of
plaintiff proving that the said portion forms part of Sy.No.50,
then defendants have perfected their title over the suit property
by way of adverse possession. The suit of plaintiff for the relief
claimed in plaint is not maintainable. Therefore, prayed for
dismissal of suit.
5. Learned counsel for plaintiff filed memo dated
23.06.1999 stating that defendants 1, 3 and 4 are dead and
sought for dismissal of the suit against them. The trial Court by
order dated 09.08.1999 dismissed the suit against defendants
1, 3 and 4.
6. The suit initially was only for the relief of permanent
injunction. Thereafter, plaintiff got amended the plaint and
sought for relief of mandatory injunction.
7. The trial Court framed the issues. Plaintiff to prove
his case relied on the evidence of PW-1 and the documents
Ex.P.1 to Ex.P.10. The defendants have relied on the evidence
of DWs-1 and 2 and the documents Ex.D.1 to Ex.D.3. The trial
RSA No. 5595 of 2010
Court after appreciation of evidence on record has dismissed the
suit.
8. Appellant/plaintiff being aggrieved by the said
judgment and decree of trial Court preferred appeal on the file
of Civil Judge, (Sr.Dn.)., Kumta, in R.A.No.153/2006. The first
Appellate Court after re-appreciation of evidence on record
allowed the appeal and decreed the suit of plaintiff as prayed in
the suit.
9. Appellant/defendant No.2 feeling aggrieved by
divergent finding recorded by first Appellate Court preferred this
appeal contending that first Appellate Court was not justified in
disturbing the finding of trial Court which was based on sound
reasonings. The plaintiff has failed to establish his title over the
property said to have been purchased by him. The alleged
encroachment asserted by the plaintiff has not been proved by
him out of the evidence on record. The vendor of plaintiff was
not having valid title over the property sold to plaintiff under
registered sale deed dated 04.03.1983. The plaintiff has
categorically admitted in his evidence that there existed wire
fencing in between the lands of plaintiff and defendants and
contrary finding recorded by first Appellate Court based on the
RSA No. 5595 of 2010
report of Court Commissioner with boundary shown in the sale
deed as per Ex.D.2 cannot be legally sustained. The approach
and appreciation of oral and documentary evidence by first
Appellate Court is contrary to law and evidence on record.
Therefore, prayed for allowing the appeal and to set aside the
judgment and decree of first Appellate Court. Consequently, to
restore the judgment and decree of trial Court.
10. In response to notice of appeal, respondents 1 and 2
appeared through their learned counsel.
11. This Court by order dated 03.04.2014 has framed
the following substantial questions of law:
1. Whether the First Appellate Court has committed
a serious error in upturning the well considered
judgment of the trial Court by ignoring the material
evidence placed on record and thereby the judgment
and decree of the First Appellate Court is perverse and
illegal?
2. Whether the First Appellate Court is justified in
decreeing the suit for the relief of declaration of title,
mandatory injunction and permanent injunction,
inspite of the plaintiff having not produced any
acceptable material in regard to the title and
possession?
RSA No. 5595 of 2010
12. Heard the arguments of both sides.
13. On going through the pleadings of both parties and
evidence on record, it would go to show that plaintiff is claiming
his right over land bearing Sy.No.50 measuring 38 guntas and
Sy.No.50A measuring 5 guntas totally measuring 1 acre 3
guntas situated at Hubbanageri in Kumta taluk under the
registered sale deed dated 04.03.1983 from its erstwhile owner
Devappa Timmappa Naik. The plaintiff constructed house in the
said extent of land purchased by him and is in actual physical
possession and enjoyment of the properties purchased under
sale deed dated 04.03.1983. The plaintiff appended hand-
sketch map along with the plaint and claimed that he is in
possession to the extent of area shown as 'ABCD'. The land of
defendants is situated to the northern side. The encroached
portion of defendants is shown as 'CD' in the hand-sketch map
appended to plaint. Plaintiff contends that 4 months' prior to
filing of the suit, defendants have removed the fencing and laid
new fencing covering 8 coconut trees in the area shown 'CD' in
the hand-sketch map. The defendants have denied the said
allegations and contended that wire fencing was in existence
since 30 to 40 years and the same has never been changed at
RSA No. 5595 of 2010
all and plaintiff did never question the same from the year 1983
till the date of filing of suit.
14. The trial Court after recording finding that plaintiff
has failed to establish title to the extent of 5 guntas of land,
since the said land was sold by vendor of plaintiff - Devappa
Timmappa Naik in favour of Hubbanageri Baad Kalkatta Joint
Farming Society Limited (for short 'the Society') by registered
sale deed in the year 1964 itself. Therefore, vendor of plaintiff
had no any valid title to convey the same in favour of plaintiff
under the registered sale deed dated 04.03.1983. The plaintiff
has failed to prove possession over the disputed area shown in
hand-sketch map and accordingly, dismissed the suit of plaintiff.
15. The first Appellate Court though in paragraphs 30
and 31 of its judgment held that no any valid title was conveyed
in favour of plaintiff under the registered sale deed Ex.D.2 has
proceeded to hold in subsequent paragraphs that on the basis of
admission of DW-1, further the boundary shown in Ex.D.2 tallies
with the sketch map produced by defendants as per Ex.D.1,
recorded finding that title of plaintiff is established and
defendants are in possession of the disputed land without there
being any title which forms part of Sy.No.50 and allowed the
RSA No. 5595 of 2010
appeal, further directed defendants to deliver possession of the
encroached portion shown in orange colour in the sketch report
of the Court Commissioner.
16. The plaintiff in his entire pleading never pleaded that
the land bearing Sy.No.50A measuring 5 guntas was sold by his
vendor to the Society under the registered sale deed dated
22.01.1964. The examination-in-chief of plaintiff is also silent
on this aspect. However, PW-1 admits in the cross-examination
that his vendor had sold Sy.No.50A measuring 5 guntas to the
Society. The plaintiff has not produced title deed of his vendor
nor there is any evidence from the side of plaintiff to show that
he has made reasonable enquiry before purchasing both the
lands under registered sale deed dated 04.03.1983. The
plaintiff has also not made out any case that he is a bonafide
purchaser of both the properties under registered sale deed
dated 04.03.1983. The defendants have produced registered
sale deed dated 22.01.1964 Ex.D.2. On going through the said
sale deed, it is evident that Devappa Timmappa Naik vendor of
plaintiff has sold land bearing Sy.No.50A measuring 5 guntas to
the Society. The defendants have also produced certified copy
of registered sale deed 04.03.1983 as per Ex.D.3 which would
go to show that vendor of plaintiff - Devappa Timmappa Naik
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RSA No. 5595 of 2010
and his two sons have sold land bearing Sy.No.50 measuring 38
guntas and Sy.No.50A measuring 5 guntas in favour of plaintiff.
The plaintiff has not produced any evidence to show as to how
the title of land bearing Sy.No.50A covered under Ex.D.2 sold
by vendor of plaintiff to Society was re-conveyed in favour of
plaintiff in between the period from 22.01.1964 to 04.03.1983.
There is no any clear evidence from the plaintiff to show that
land bearing Sy.No.50 measuring 38 guntas was also sold in
favour of the Society by his vendor. However, learned counsel
for plaintiff himself suggests to DW-1 that in the year 1964
itself Society has purchased land bearing Sy.Nos.50 and 50A
which is admitted by DW-1. It is the duty of plaintiff who
approaches Court seeking the relief of declaration, mandatory
injunction and possession to prove title over the property
covered under registered sale deed dated 04.03.1983. The
plaintiff is further required to prove the alleged encroachment of
defendants prior to 4 months' of the suit by removing the earlier
fence and putting up new fence covering 'CD' portion shown in
the sketch appended to plaint covering 8 coconut trees.
17. The first Appellate Court though admits in
paragraphs 30 and 31 of its judgment that in view of certified
copy of the sale deed Ex.D.2, the plaintiff has failed to establish
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RSA No. 5595 of 2010
his title over property bearing Sy.No.50A measuring 5 guntas,
but in subsequent paragraphs based on admission of DW-1
coupled with sketch map boundaries Ex.D.1 and the boundary
shown in registered sale deed Ex.D.2, has proceeded to hold
that plaintiff has established title over the land bearing
Sy.No.50A measuring 5 guntas.
18. The finding of first Appellate Court recorded in
paragraphs 32 to 34 of its judgment that plaintiff has proved
the title based on admission of DW-1 and the boundary shown
in survey sketch Ex.D.1 with the one shown in registered sale
deed Ex.D.2, cannot be legally sustained. It is well settled law
that no any conveyance of title over immovable property of
value exceeding Rs.100/- can be conveyed, since the same is
required to be compulsorily registered under the Registration
Act without which no any valid title can be conveyed over
immovable property to the purchaser.
19. The plaintiff other than producing sketch map
appended to the plaint has not produced any evidence on record
to prove alleged encroachment of defendants in the portion of
land purchased by plaintiff bearing Sy.No.50A measuring 5
guntas. It is only the oral evidence of PW-1 in examination-in-
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RSA No. 5595 of 2010
chief that defendants have removed the earlier existing wire
fencing and put up new wire fencing by covering 8 coconut
trees. The brief pleading and the examination-in-chief of PW-1
without there being any documents to prove the alleged
encroachment of defendants over the portion of land bearing
Sy.No.50A measuring 5 guntas on northern side cannot be said
as sufficient evidence.
20. Defendant No.2 during the course of his evidence
produced certified sketch Ex.D.1 and claimed that encroached
portion shown therein as 'ABCD' is in his possession. The
defendants in written statement never pleaded about this
survey sketch Ex.D.1 and on the basis of which defendants are
claiming possession over the encroached area by adverse
possession. However, for the first time, during the evidence of
DW-1, Ex.D.1 came to be produced. On going through the
sketch prepared by Surveyor, it would go to show that same
was prepared on the application of Rama Jatti Naik and the
same was prepared on 20.01.1990 which is prior to filing of
suit. The survey sketch map Ex.D.1 as per the pleading of both
the parties was not the basis for claiming the right over the said
portion of encroachment and to claim title of defendants by
virtue of adverse possession. The Surveyor who has prepared
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RSA No. 5595 of 2010
the survey sketch Ex.D.1 has not been examined by any of the
parties to the suit. Therefore, said sketch map Ex.D.1 cannot
be relied either to prove the title or possession over the alleged
encroached area.
21. The first Appellate Court has also relied on the
report of Court Commissioner to hold that sketch prepared by
the Commissioner in the case can be relied without examining
the Commissioner. Further, Ex.D.1 and evidence of DW-1 itself
shows that portion of Sy.No.50 is in possession of defendants
and proceeded to hold in paragraph 36 of its judgment that
when a person proves his title over the particular property
which is in possession of another person, the person who proves
the title is entitled for possession. The first Appellate Court
committed serious error in relying on the report of Court
Commissioner and the admission of DW-1 to hold the title of
plaintiff over land bearing Sy.No.50A measuring 5 guntas.
22. In this case, the Court Commissioner was appointed
immediately after filing of suit by order on IA No.1 dated
28.10.1992 and subsequently, Court Commissioner with sketch
has produced the Commissioner report. It appears that the
parties to the suit during trial might have forgotten the report of
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RSA No. 5595 of 2010
Court Commissioner and without referring to the report of Court
Commissioner by either of the parties proceeded to trial only on
the basis of oral evidence. However, the first Appellate Court in
paragraph 34 of its judgment has held that the report of Court
Commissioner forms part of the record and nobody has filed any
objections. Therefore, the Court can look into and appreciate
the same with other evidence on record. The report of Court
Commissioner or even assuming the encroachment shown by
Court Commissioner in the portion of land bearing Sy.No.50A
that itself cannot be said as sufficient evidence to establish the
title of plaintiff over said land under the registered sale deed
dated 04.03.1983. The vendor of plaintiff had no any title to
convey the same in favour of plaintiff, since he had already sold
said land to the Society by registered sale deed dated
22.01.1964. Therefore, the grant of relief of declaration,
mandatory injunction and possession by the first Appellate
Court on the report of Court Commissioner and the sketch map
produced by DW-1 as per Ex.D.1 without there being any
pleading to that effect cannot be legally sustained. The trial
Court has rightly appreciated the oral and documentary
evidence on record and was justified in holding that plaintiff has
failed to prove title over 5 guntas of land in Sy.No.50A under
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RSA No. 5595 of 2010
registered sale deed dated 04.03.1983. Further, plaintiff has
failed to prove the alleged encroachment of defendants. The
findings recorded by first Appellate Court in reversing the
judgment of trial Court are contrary to evidence on record and
the same cannot be legally sustained. Accordingly, the
substantial question of law at Sl.No.1 is answered in the
affirmative and at Sl.No.2 is answered in the negative.
Consequently, proceed to pass the following:
ORDER
Appeal filed by the appellant/defendant No.2 is hereby
allowed.
The judgment of the first Appellate Court on the file of
Civil Judge (Sr.Dn.), Kumta, in R.A.No.153/2006 dated
20.03.2010 is set aside. Consequently, the judgment and
decree passed by trial Court in O.S.No.123/1992 dated
30.07.2002 on the file of Civil Judge (Jr.Dn.)., is ordered to be
restored.
The registry is directed to transmit the records with the
copy of this judgment to trial Court.
(Sd/-)
JUDGE
Jm/-
