Sri D M Ramaiah vs Sri Muniyappa
2023 Latest Caselaw 3774 Kant

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                                                        NC: 2023:KHC:22491
                                                           RSA No. 623 of 2007




                         IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 28TH DAY OF JUNE, 2023

                                               BEFORE
                      THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                       REGULAR SECOND APPEAL NO. 623 OF 2007 (DEC/INJ)
                      BETWEEN:

                      SRI D M RAMAIAH
                      S/O. LATE MUNISHAMAPPA
                      DEAD BY HIS LRs.

                      1.a) SMT. RATHNAMMA
                      W/O H P RAMAIAH
                      D/O LATE D M RAMAIAH
                      AGED ABOUT 62 YEARS
                      R/AT No.424, VARTHUR VILLAGE
                      VARTHUR POST
                      NEAR CHOWDESHWARAMMA CIRCLE
                      NEAR WHITE FILED
                      BENGALURU - 560 087.

                      1.b)SMT.GOWRAMMA
                      W/O CHANDRAPPA
Digitally signed by
                      D/O LATE RAMAIAH
LAKSHMINARAYANA       AGED ABOUT 58 YEARS
MURTHY RAJASHRI
Location: HIGH        R/AT KORALURU VILLAGE
COURT OF              NADUVATHI POST
KARNATAKA
                      HOSKOTE TALUK
                      BENGALURU - 560 067.

                      1.c) SMT. SARVAMANGALA
                      W/O MUNIRAJU
                      D/O LATE D M RAMAIAH
                      AGED ABOUT 57 YEARS
                      R/AT JOTHIPURA
                      MANDUR POST
                      BENGALURU EAST TALUK
                      BENGALURU - 560 049.
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                                    RSA No. 623 of 2007




1.d) SRI D R PACHAPPA
S/O LATE D M RAMAIAH
AGED ABOUT 51 YEARS
R/AT DODDADUNASANDRA
ANUGONDANAHALLI HOBLI
DEVANAGUDI POST
HOSKOTE TALUK
BENGALURU - 560 067.

1.e) SMT. MEENAKSHI @ MINAKSHAMMA
W/O LATE D R RAVICHANDRA
AGED ABOUT 44 YEARS
R/AT No.424, VARTHUR VILLAGE
VARTHUR POST
NEAR CHOWDESHWARAMMA CIRCLE
NEAR WHITE FIELD
BENGALURU - 560 087.

1.f) KUMARI HEMALATHA
D/O LATE D R RAVICHANDRA
AGED ABOUT 25 YEARAS
R/AT No.424, VARTHUR VILLAGE
VARTHUR POST
NEAR CHOWDESHWARAMMA CIRCLE
NEAR WHITE FIELD
BENGALURU - 560 087.

1.g) KUMARI BINDU
D/O LATE D R RAVICHANDRA
AGED ABOUT 25 YEARS
R/AT No.424, VARTHUR VILLAGE
VARTHUR POST
NEAR CHOWDESHWARAMMA CIRCLE
NEAR WHITE FIELD
BENGALURU - 560 087.

1.h) SRI R SRINIVASAIAH
S/O LATE D M RAMAIAH
AGED ABOUT 47 YEARS
R/AT DODDADUNASANDRA
ANUGONDANAHALLI HOBLI
DEVANAGUDI POST
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                                      RSA No. 623 of 2007




HOSKOTE TALUK
BENGALURU - 560 067.
                                           ...APPELLANTS

(BY SRI L M RAMAIAH GOWDA, ADVOCATE)

AND:

       SRI MUNIYAPPA
       DEAD BY HIS LR's

1.     SRI MARIYAPPA
       S/O LATE MUNIYAPPA
       AGED ABOUT 50 YEARS

2.     SRI NANDEESHA
       S/O. LATE MUNIYAPPA
       AGED ABOUT 45 YEARS

3.     SRI CHANDRAPPA
       S/O. LATE MUNIYAPPA
       AGED ABOUT 38 YEARS

4.     SRI KRISHNAPPA
       S/O. LATE MUNIYAPPA
       AGED ABOUT 37 YEARS

       No.1 TO 4 ARE RESIDING AT
       DODDADUNNASANDRA VILLAGE
       ANUGONDANAHALLI HOBLI
       HOSKOTE TALUK
       BENGALURU RURAL DISTRICT.

5.     SMT. NARAYANAMMA
       DEAD BY HIS LR's

5.a) SMT. JAYAMMA
     W/O LATE SRINIVAS GOWDA
     D/O LATE MUNIYAPPA
     AGED ABOUT 71 YEARS
     R/AT KALVAMANJALI VILLAGE
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                                     RSA No. 623 of 2007




       DODDAVALLABI POST,VEMGAL HOBLI
       KOLAR TALUK
       KOLAR DISTRICT - 563 133.

5.b) SMT. LAKSHMAMMA
     W/O LATE NANJAPPA
     D/O LATE MUNIYAPPA
     AGED ABOUT 69 YEARS
     R/AT SIDDANAHALLI VILLAGE
     NANDGUDI HOBLI, NELAVAGILU POST
     HOSKOTE TALUK
     BENGALURU RURAL DISTRICT - 562 122.

5.c)   SMT. NANJAMMA
       W/O KRISHNAPPA
       D/O LATE MUNIYAPPA
       AGED ABOUT 66 YEARS
       R/AT BODANAHOSAHALLI VILLAGE
       KUVEMPU ROAD
       ANUGONDANAHALLI HOBLI
       HOSKOTE TALUK
       BENGALURU RURAL DISTRICT - 560 067.

5.d) SMT. SARASWATHAMMA
     W/O THIMMARAYAPPA
     D/O LATE MUNIYAPPA
     AGED ABOUT 57 YEARS
     R/AT AMMANAYAKANHALLI VILLAGE
     KASABA HOBLI, MALUR TALUK
     KOLAR DISTRICT - 563 130.

5.e) SMT. RATHANAMMA
     W/O VENUGOPALA
     D/O LATE MUNIYAPPA
     AGED ABOUT 50 YEARS
     R/AT RATHNA STEEL SHOP
     A V LAYOUT, KANNURAHALLI ROAD
     NEAR SUJATHA RAVINDRA
     KALYANA MANTAPA
     HOSKOTE TOWN
     BENGALURU RURAL DISTRICT - 562 114.
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                                      RSA No. 623 of 2007




5.f)   SMT. SAROJAMMA
       W/O ANJINAPPA
       D/O LATE MUNIYAPPA
       AGED ABOUT 48 YEARS
       R/AT BIDARAHALLI VILLAGE
       BIDARAHALLI HOBLI
       HOSKOTE TALUK
       BENGALURU RURAL DISTRICT - 560 049.

5.g) SMT. AMARAVATHI
     W/O LATE KRISHNAMURTHY
     D/O LATE MUNIYAPPA
     AGED ABOUT 46 YEARS
     R/AT JODI CHIKKANAHALLI VILLAGE
     VAKALERE POST, MALUR TALUK
     KOLAR DISTRICT - 560 101.

                                            ...RESPONDENTS
(R1 TO R4 ARE SERVED AND UNREPRESENTED
V/O DATED. 5.12.2016 APPEAL AGAINST R5 DISMISSED
R1(5.a) TO R1(5.c), R1(5.e) TO R1(5.g) ARE SERVED AND
UNREPRESENTED, V/O DATED. 10.12.2018 NOTICE TO
R1(5.d) IS HELD SUFFICIENT)



       THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT     &   DECREE   DATED:18.11.2006     PASSED      IN
R.A.No.172/2001 ON THE FILE OF THE ADDITIONAL DISTRICT &
SESSIONS JUDGE/PRESIDING OFFICER, FAST TRACK COURT -IV,
BANGALORE RURAL DISTRICT, BANGALORE, PARTLY ALLOWING
THE APPEAL FILED AGAINST THE JUDGEMENT AND DECREE
DATED:18.8.2001 PASSED IN OS.NO. 298/1992 ON THE FILE OF
THE CIVIL JUDGE (JR.DN.) & JMFC, HOSKOTE.


       THIS APPEAL COMING ON FOR FURTHER HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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                                    NC: 2023:KHC:22491
                                         RSA No. 623 of 2007




                         JUDGMENT

1. This appeal is by the plaintiff seeking setting aside the

judgment and decree dated 18.08.2001 passed in

O.S.No.298/1992, by the Civil Judge (Jr.Dn.) and J.M.F.C.,

Hoskote and the judgment and decree dated 18.11.2006

passed in R.A.No.172/2001, by the Additional District and

Sessions Judge, Fast Track Court-IV, Bengaluru (Rural)

District, Bengaluru, insofar as dismissal of the suit for the

relief of mandatory injunction in respect of the suit schedule

item No.2 - property and decreeing the suit.

2. The appellant is the plaintiff and the respondents are

the legal representatives of the defendant. The appellant

died during the pendency of the appeal and his legal

representatives are brought on record.

3. The parties will be referred to by their rankings as in

the Trial Court.

4. The plaintiff initially filed a suit seeking relief of

injunction in respect of item Nos.1 and 2 of the suit schedule

NC: 2023:KHC:22491 RSA No. 623 of 2007

properties. During the pendency of the suit, the plaint came

to be amended and the plaintiff sought relief of declaration

that he is the absolute owner of the suit schedule properties

and for possession of item No.1 of the suit schedule

properties and relief of mandatory injunction directing the

defendant to demolish the structure put up in item No.2 of

the suit schedule properties to the extent of East to West -

24 feet and North to south - 18 feet towards Eastern side of

the house and to put the plaintiff in possession of the

property. After amendment of the plaint, the schedule is as

under:

"Item No.1:-Land bearing Sy.No.52/3 measuring 18 guntas situated at Obalapura, Anugondanahalli Hobli, Hoskote Taluk, bounded on:

East by: defendants property in Sy.No.

West by: Abbayappa's and Ramaiah's and Siddaiah's land.

North by: Neeraganti Muniyappa's land, and

South by: Chowdappa's land.

Item No.2:-K.No.68, 3 Ankanas house and vacant place situated at Doddadunnasandra, Anugondanahalli Hobli, Hosakote Taluk, Bangalore District, bounded on the:

NC: 2023:KHC:22491 RSA No. 623 of 2007

East by:- Ramaiah's house

West by:- Road

North by:- Plaintiff's share in the vacant place

South by:- Defendant's house property.

Out of which the portion encroached by the defendants is measuring east to west: 24' and North to South: 18' bounded on the :

East by:-Ramaiah house

West by: House portion belongs to the plaintiff

North by: Vacant site fell to the share of defendant

South by: House property of the defendant.

5. It is the case of the plaintiff before the Trial Court that,

the defendant is his brother and after the death of their

father Sri.Munishamappa during April, 1973, they effected

partition and on 14.04.1973, the partition was effected in a

Panchayath and the partition deed was drawn. It is stated

that after the partition, the revenue records were changed in

the name of the plaintiff and the defendant in respect of the

shares allotted to them and they are in peaceful possession

and enjoyment of the properties fallen to their respective

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shares as per the partition deed dated 14.04.1973. Item

Nos.1 and 2 of the suit schedule properties were allotted to

the share of the plaintiff, as the defendant proclaimed in the

village that he is going to take away the paddy crop grown

in item No.1 and he is going to put up a structure in the

vacant space of the suit schedule property, the plaintiff filed

a suit seeking relief of injunction.

6. It is stated that during the pendency of the suit, the

defendant put up a structure by encroaching open space in

item No.2 of the suit schedule properties, to an extent of

East to West - 24 feet and North to South - 18 feet even

though there was an order of status-quo. The plaintiff filed

an application under Order XXXIX Rule 2A of C.P.C., for

violating the order of status quo by the defendant. As the

defendant had constructed a building in the vacant space of

item No.2 of the suit schedule properties, the plaintiff sought

the relief of mandatory injunction to demolish the said

structure put up by the defendant.

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7. The defendant in the written statement has disputed

the correctness of Paragraph No.2 of the plaint. He

admitted the allotment of shares to the plaintiff and the

defendant, as stated in Paragraph No.3 of the plaint under

the partition deed. He contended that item Nos.1 and 2 of

the suit schedule properties are not in existence. He

contended that the question of interference does not arise,

as the properties are not in existence.

8. After amendment of the pleadings, the defendant filed

additional written statement denying the averments that he

has constructed a building in the open space in item No.2.

He contended that he has constructed a building in the year

1974 and he is in possession of the same since the year

1974.

9. Based on the said pleadings, the Trial Court has framed

the following issues and additional issues:

Issues:

"1. Whether the plaintiff proves his lawful possession over the suit property?

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2. Whether the plaintiff proves that he is the absolute owner of the suit schedule property?

3. Whether the plaintiff proves the interference of the defendant?

4. Whether the plaintiff proves that the defendant has unlawfully made construction by encroaching item No.II of the suit property?

5. Whether the plaintiff is entitled for mandatory injunction?

6. To what order and to what decree?"

Addl. Issues:

"1. Whether the defendant proves that he has not violated the injunction order passed by this court?

2. Whether the defendants further prove that their residential house and the buildings are in adverse possession since from 1974?

3. Whether the defendant further proves that since from 1975 they are in possession and enjoyment of 18 guntas of land in item No.1 of the suit schedule property?

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4. Whether the defendant further proves that the plaintiff is liable to pay a court fee of Rs. 900/- on the second item of the suit schedule properties?"

10. The plaintiff has been examined as PW1 and got

examined two witnesses as PWs.2 and 3 and got marked the

documents Exs.P1 to P24. One of the legal representatives

of the defendant has been examined as DW1 and got

examined two witnesses as DWs.2 and 3 and got marked

the documents Exs.D1 to D31.

11. The Trial Court after hearing the arguments and

appreciating the evidence on record, has answered issue

No.1 in the affirmative, issue No.2 partly in the affirmative

and issue Nos.3 to 5 and Additional issue Nos.2 to 4 in the

negative and held that additional issue No.1 does not

survive for consideration in view of the findings given on

issue Nos.4 and 5 and partly decreed the suit, declaring the

plaintiff as the absolute owner of item No.1 of the suit

schedule properties and as it found that the plaintiff is not in

possession of item No.1 of the suit schedule properties,

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directed the defendant to vacate and deliver the vacant

possession of item No.1 of the suit schedule properties in

favour of the plaintiff. The suit of the plaintiff in respect of

item No.2 of the suit schedule properties came to be

dismissed.

12. Aggrieved by the said judgment and decree of the Trial

Court, the plaintiff filed an appeal in R.A.No.172/2001 on the

file of the Additional District and Sessions Judge, Fast Tract

Court-IV, Bengaluru (Rural) District, Bengaluru.

13. The legal representatives of the defendant have not

challenged the judgment and decree passed by the Trial

Court. The First Appellate Court, after hearing the

arguments on both sides, has formulated the following

points for consideration:

"1. "Whether the plaintiff proves his title to the suit schedule properties?"

2. "Whether the plaintiff proves his lawful possession over the suit schedule property as on the date of suit?"

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3. "Whether the plaintiff proves the alleged interference in his possession over the suit schedule properties by defendant?"

4. "Whether the plaintiff proves that the defendant has put up new construction in the 2nd item of the plaint schedule property after filing of this suit?"

5. "Whether the judgment and decree of the trial court needs to set aside or modified?"

14. The First Appellate Court answered point Nos.1 to 3 in

the affirmative and point No.4 in the negative and allowed

the appeal in part and declared that the plaintiff is the owner

of item No.1 of the suit schedule properties and also

3 ankanas house in Khaneshumari No.68 of Dodda

Dunnasandra Village and granted permanent injunction

restraining the defendant from interfering with the plaintiff's

possession and enjoyment of those two properties and

rejected the prayer of the plaintiff for the relief of mandatory

injunction to demolish the building constructed by the

defendant in Khaneshumari No.68 of Dodda Dunnasandra

Village.

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15. Aggrieved by the findings of the First Appellate Court in

refusing in granting declaration of the remaining portion of

item No.2 that is vacant space and refusal to grant

mandatory injunction to demolish the building constructed in

the said open space by the defendant, the plaintiff preferred

this second appeal.

16. This second appeal came to be admitted to consider

the following substantial question of law:

"Whether the judgment of the lower Appellate court refusing to grant the mandatory injunction sought for is contrary to Ex.P.1?"

17. Heard the learned counsel for the appellant - plaintiff.

The respondents remained unrepresented even though

notice has been served on them.

18. It is the case of the plaintiff that item No.2 of the suit

schedule properties was allotted to the plaintiff in the

partition deed dated 14.04.1973 (Ex.P1). The said Ex.P1 -

partition deed dated 14.04.1973 has not been disputed by

the defendant. DW1 who is one of the sons of the defendant

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admitted that the boundaries mentioned in the partition

deed are correct. The property allotted to the share of the

plaintiff is enumerated in 'B' schedule of Ex.P1. The entire

boundaries of Khaneshumari No.68 has been stated in Ex.P1

which are as under:

To East - Doddanagappa's Ramaiah's house;

To West - Government road;

To North - Pillappanavara Channappa's land;

To South - Road.

19. In the said properties, 4 ankanas house and open

space situated towards Eastern side to the said house is

allotted to the share of the defendant. Apart from that, out

of open space measuring East to West - 42 feet and North

to South - 70 feet situated on the Northern side, an extent

of East to West - 21 feet and North to South - 70 feet on

the Eastern side has been allotted to the share of the

defendant and the same is having the boundaries, to the

East - Ramaiah's open space, to the West - a portion

allotted to the share of the plaintiff, to the North -

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Pillappanavara Chennappas's land, to the South - 3 ankanas

house and open space allotted to the share of the plaintiff

described in 'B' schedule.

20. The above description clearly goes to show that the

property allotted to the share of the plaintiff is situated on

the Southern side of the property allotted to the share of the

defendant and it is having 3 ankanas house and open space.

The property allotted to the share of the plaintiff is described

at Sl.No.5 of 'B' schedule ie., item No.2 of the suit schedule

properties. The property allotted to the share of the plaintiff

is the house and open space situated towards the Eastern

side abutting the house having the following boundaries:

To East - Ramaiah's house

To West - Road

To North - plaintiff's share of open space

To South - house allotted to the share of the

defendant described in 'A' schedule.

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21. It is also stated that the said property allotted to the

share of the plaintiff consists of 3 ankanas house and open

space situated on its Eastern side. Therefore, the very said

recitals of the said partition deed shows that not only

the 3 ankanas house, but also the open space situated on

the Eastern side of the 3 ankanas house is allotted to the

share of the plaintiff.

22. The First Appellate Court and the Trial Court did not

properly go into the recitals of Ex.P1 - partition deed to

ascertain what is the share allotted to the plaintiff and the

defendant in Khaneshumari No.68. Even though the

measurements are not stated in Ex.P1 - partition deed, but

on considering the boundaries, one can ascertain what is the

property allotted to the share of the plaintiff and the

defendant. The property allotted to the share of the plaintiff

in Khaneshumari No.68 is the 3 ankanas house and open

space situated towards Eastern side of the said 3 ankanas

house and it is situated on the Northern side of 4 ankanas

house and open space allotted to the share of the defendant.

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The said 3 ankanas house and the open space situated

towards Southern side of the open space which is allotted to

the share of the plaintiff and the defendant, measuring

70 ft x 21 ft each.

23. From the said recitals of Ex.P1 and the boundaries, one

can easily identify the property allotted to the shares of the

plaintiff and the defendant. The First Appellate Court without

referring to the properties allotted to the share of the

plaintiff in Khaneshumari No.68 property, has considered

that only 3 ankanas house has been allotted to the share of

the plaintiff. Not only 3 ankanas house, but the open space

situated on the Eastern side adjacent to the said 3 ankanas

house has been allotted to the share of the plaintiff. The

said open space situated towards Eastern side of the

plaintiff's 3 ankanas house was vacant as on the date of

filing the suit. The plaintiff got amended his plaint and

sought relief of mandatory injunction and possession of that

open space as the defendant encroached during the

pendency of the said suit and constructed a house.

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24. The plaintiff has filed an application under Order XXXIX

Rule 2A of C.P.C., against the defendant to take action

against him as he has violated the order of status quo. The

defendant filed his statement of objections dated

05.03.1990, wherein he has admitted construction of a

building as alleged by the plaintiff in his application. Even

though the defendant has contended that he has constructed

the said house in 1974, but in view of his admission of

construction of the building in his statement of objections

disproves his contention. The plaintiff in his plaint has

stated that the defendant is trying to put up foundation in

the open space of item No.2 of the suit schedule properties.

The said aspect has not been denied by the defendant in his

written statement. The defendant has also not stated in his

written statement that he has already constructed a house in

the year 1974.

25. The First Appellate Court without considering all these

aspects has erred in refusing to grant the relief of

mandatory injunction to demolish the house constructed by

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the defendant in item No.2 of the suit schedule properties.

The plaintiff has established that he is having title over item

No.2 of the suit schedule properties and the defendant by

encroaching the same, has constructed a house in the open

space of item No.2 of the suit schedule properties during the

pendency of the suit. Therefore, the plaintiff is entitled for

the relief of mandatory injunction as prayed in the suit.

26. In view of the above, in addition to the relief granted

by the First Appellate Court and the Trial Court, the plaintiff

is entitled for the relief of mandatory injunction for

demolition of the building constructed by the defendant in

the open space of item No.2 of the suit schedule properties

and the plaintiff is entitled for the possession of the same.

The substantial question of law is answered accordingly.

27. The appeal is allowed. In addition to the reliefs

granted by the Trial Court and the First Appellate Court, the

plaintiff is entitled to the relief of mandatory injunction. The

legal representatives of the defendant are directed to

demolish the structure put up by the defendant in item No.2

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of the suit schedule properties situated on the Eastern side

of the 3 ankanas house of the plaintiff and hand over the

vacant possession of the said property to the plaintiff, within

three months. If the legal representatives of the defendant

fails to do so, the plaintiff is at liberty to execute the said

decree and demolish the structure put up by the defendant

in item No.2 of the suit schedule properties at the cost of the

defendant through the process of Court.

Sd/-

JUDGE

GH