Karnataka High Court

Sri D R Sridhar vs Smt Saroja on 15 March, 2023

Bench: Shivashankar Amarannavar

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                                                              RSA No. 945 of 2014




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 15TH DAY OF MARCH, 2023

                                               BEFORE
                      THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                            REGULAR SECOND APPEAL NO. 945 OF 2014 (INJ)
                      BETWEEN:

                      1.    SRI D R SRIDHAR
                            S/O RAMACHANDRA SETTY
                            AGED ABOUT 64 YEARS
                            BUSINESS & PARTNER OF
                            JYOTHI CHITRA MANDIRA
                            R/O VIJAYANAGARA EXTENSION
                            HOSADURGA TOWN & TALUK
                            CHITRADURGA DISTRICT-577 527.

                      2.    SRI E V AJJAPPA
                            S/O VAJRAPPA
Digitally signed by         AGED ABOUT 58 YEARS
YASHODA                     BUSINESS & PARTNER OF
KRISHNAPPA                  JYOTHI CHITRA MANDIRA
Location: HIGH
COURT OF                    R/O VIJAYANAGARA EXTENSION
KARNATAKA                   HOSADURGA TOWN & TALUK
                            CHITRADURGA DISTRICT-577 527.
                                                                  ...APPELLANTS

                      (BY SRI MANJUNATH HEGDE, FOR
                       SRI T SESHAGIRI RAO, ADVOCATE)

                      AND:

                      1.    SMT. SAROJA
                            W/O DR C R MALLESHAPPA
                            AGED ABOUT 50 YEARS
                            R/O VIJAYANAGARA EXTENSION
                            HOSADURGA TOWN & TALUK
                            CHITRADURGA DISTRICT - 577 527.
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                                         RSA No. 945 of 2014




2.   THE CHIEF OFFICER
     TOWN MUNICIPALITY
     HOSADURGA TOWN - 577 527.
                                                ...RESPONDENTS

(BY SRI MAHESH R UPPIN, FOR
  SRI N PRAVEEN KUMAR, ADVOCATE FOR R1
 SRI S MAHESH, ADVOCATE FOR R2)

     THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 26.04..2014 PASSED IN
R.A.No.36/2010 ON THE FILE OF THE ITINERARY SENIOR CIVIL
JUDGE AND ADDL. MACT, HOSADURGA, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 01.10.2010 PASSED IN O.S.No.92/2007 ON THE FILE
ADDL. CIVIL JUDGE AND JMFC, HOSADURGA.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

1. Heard the learned counsel for the appellants and the

learned counsel for respondent Nos.1 and 2, on admission.

2. This appeal is filed by defendant Nos.1 and 2, seeking

setting aside the judgment dated 26.04.2014 passed in

R.A.No.36/2010 by the Itinerary Senior Civil Judge and

Additional M.A.C.T, Hosadurga and to confirm the

judgment and decree dated 01.10.2020 passed by the

Additional Civil Judge and J.M.F.C., Hosadurga in

O.S.No.92/2007.

RSA No. 945 of 2014

3. Respondent No.1 was the plaintiff, appellant

Nos.1 and 2 were defendant Nos.1 and 2 and respondent

No.2 was defendant No.3 in O.S.No.92/2007. Respondent

No.1 - plaintiff has filed a suit in O.S.No.92/2007 against

defendant Nos.1 to 3 for the relief of perpetual injunction

in respect of the suit schedule property. The description of

the suit schedule property is as under:

"A vacant site along with RCC building situated at Vijayanagara Extension, Main Road, Hosadurga Town, bearing Hosadurga Town Municipality Khata No.50/43/2550/7, Assessment No.43/A/2550/7, measuring East-West:25 feet x North-South:100 feet and bounded as follows:-

East:- Building belongs to E.T.Bharath Raj

West:- Building & Vacant site belongs to

Late H.N.Rajappa

North:- Jyothi chitramandira

South:- PWD Road"

4. It is the case of the plaintiff that the plaintiff

purchased the suit schedule property measuring 25 ft.,

East to West and 100 ft., North to South, by a sale deed

RSA No. 945 of 2014

dated 16.11.1963 (Ex.P1). Thereafter, the plaintiff, after

obtaining the licence, constructed R.C.C., building on the

Southern portion of the said site and by leaving Northern

portion measuring East to West - 25 ft., and North to

South - 80 ft., vacant, around which the plaintiff has put

up barbed wire fence.

5. It is also stated that the property of defendant

Nos.1 and 2 ie., Jyothi Chitra Mandira is situated on the

Northern side of the suit schedule property. Defendant

Nos.1 and 2 are the partners of the said Jyothi Chitra

Mandira.

6. Defendant Nos.1 and 2 filed their written statement

and admitted the possession of the plaintiff over the suit

schedule property. They have also admitted the

measurement of the suit schedule property. They have

denied that the plaintiff has left vacant portion measuring

East to West - 25 ft., and North to South - 80 ft., on the

Northern side. They contended that the plaintiff has

constructed the building measuring East to West 25 ft.,

RSA No. 945 of 2014

and North to South 40 ft., and now she is falsely claiming

the vacant portion measuring East to West - 25 ft., and

North to South - 80 ft.,

7. Defendant Nos.1 and 2 further contended that the

plaintiff has put up barbed wire fencing over the site by

encroaching 16 ft., North to South and towards the

Eastern side of the suit schedule property. Out of this

encroached portion, 8 ft., belongs to defendant No.1 and

rest of 8 ft., belongs to the Town Municipality. They

contended that the total measurement of the property of

defendant Nos.1 and 2 and others is East to West - 50 ft.,

and North to South - 100 ft., and the Court Commissioner

has noticed this fact in his sketch. They contend that the

encroached portion is being used by the general public to

reach the main road. They contended that the public

submitted an application to defendant No.3, namely the

Town Municipality, Hosadurga Town, complaining the

encroachment and defendant No.3 has issued notice to the

RSA No. 945 of 2014

plaintiff, calling upon her to stop the illegal encroachment

and also lodged a police complaint against the plaintiff.

8. Defendant No.3 also filed the written statement

denying the plaint averments, but, admitted the purchase

of the property by the plaintiff under the sale deed dated

16.11.1983. Defendant No.3 had admitted that the

plaintiff has constructed the building measuring

25 ft., x 40 ft., Defendant No.3 denied interference by

defendant Nos.1 and 2. Defendant No.3 contended that

the Court Commissioner's report shows that the plaintiff

has encroached 25 ft., x 18 ft., which belongs to

defendant No.3.

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

framed the following issues:-

1) "Whether the plaintiff proves that towards north of the suit schedule property, Jyothi Chitra Mandira is situated as alleged?

2) Whether the plaintiff proves that she is in exclusive possession and enjoyment of the

RSA No. 945 of 2014

suit schedule property as on the date of suit?

3) Whether the plaintiff proves the alleged interference of the defendants?

4) Whether the plaintiff is entitled for the reliefs as sought?

5) What order or decree?"

10. The plaintiff has been examined as PW1 and one

witness has been examined on behalf of plaintiff as PW.2

and got marked Exs.P1 to P12. Defendant No.1 has been

examined as DW1 and one witness as DW.2 and got

marked Exs.D1 to D13. The Court Commissioner has been

examined as CW1 and his report is marked as Ex.C1 and a

sketch at Ex.C2.

11. The Trial Court appreciating the evidence on record

has answered issue Nos.1 to 4 in the negative and

dismissed the suit of the plaintiff. Aggrieved by the said

judgment and decree, the plaintiff filed R.A.No.36/2010.

RSA No. 945 of 2014

12. The First Appellate Court, after hearing the arguments

on both sides, formulated the following points for

consideration.

"1. Whether the plaintiff proves her lawful possession over the suit schedule property as of the date of suit?

2. Whether the interference of this Court is absolutely necessary?

3. What order / decree?"

and answered point Nos.1 and 2 in the affirmative and

allowed the appeal and decreed the suit in

O.S.No.92/2007, by setting aside the judgment and

decree dated 01.10.2010.

13. The First Appellate Court has taken into consideration

the Commissioner's report and the cross examination of

DWs.1 and 2, to consider the plaintiff's possession over

the suit schedule property.

14. The plaintiff's claim over the suit schedule property is

based on her sale deed Ex.P1 dated 16.11.1983 under

RSA No. 945 of 2014

which she has purchased 25 ft., East to West and 100 ft.,

North to South. As per the boundaries in the said sale

deed - Ex.P1, road is on the Southern side and the

property of one Sri.Bukkasagarada G.Channappa on the

Northern side. Defendant Nos.1 and 2 have purchased the

said Northern property measuring 50 ft., East to West and

34 ft., North to South under Ex.D2 - sale deed dated

02.05.2007 from Sri.M.G.Kenchappa. In the said sale

deed Ex.D2, the property of the plaintiff is shown to be

situated on the Southern side.

15. The Court Commissioner has been appointed by the

Trial Court and he has been examined as CW1 and his

report is at Ex.C1 and the sketch at Ex.C2. In the said

sketch Ex.C2, the property in possession of the plaintiff is

shown North to South - 116 ft., in which it is mentioned

that there is an encroachment of 20 ft., property of

P.W.D., situated on the Southern side. If the said

encroached portion is excluded, the property in possession

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RSA No. 945 of 2014

of the plaintiff is (116 ft., - 20 ft.,)= 96 ft., North to

South. It is also mentioned that there is a fencing over

the property in possession of the plaintiff measuring 78 ft.,

within which, a borewell is shown.

16. DWs.1 and 2 in their written statement have stated

that the plaintiff has put up barbed wire fencing over the

site by encroaching 16 ft., North to South towards Eastern

side of the property and out of this encroached portion

8 ft., belongs to defendant Nos.1 and 2 and the rest of

8 ft., belongs to the Town Municipality.

17. A witness who has been examined on behalf of the

defendant as DW2, in his cross examination has admitted

that he was present at the time of Court Commissioner's

work. He has admitted that the plaintiff has put up barbed

wire fencing around his property and the property of Jyothi

Chitra Mandira represented by its partners is situated

towards the Northern side of the said barbed wire fencing.

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RSA No. 945 of 2014

18. The observation made by the First Appellate Court is

as under:

"18. It is not specifically stated by the plaintiff that she has put up a construction of RCC building over certain extent. But she has not failed to assert that she has left the vacant space towards the Northern side of RCC building measuring East-West 25 feet and North-South 80 feet. Ex.P-4 self assessment of property tax reveals that the plaintiff has constructed RCC over 16x25 feet area. The defendants have not disputed this document. If this document is taken into consideration the open space left to plaintiff after construction of RCC building will be 25 x 84 feet. The court commissioner has not measured the RCC building of plaintiff. During the cross-examination of court commissioner the defendants have not elicited any thing contrary to the case of the plaintiff. Since it is admitted by the defendants that the plaintiff has purchased 25 x 100 feet and have unequivocally admitted the construction of RCC over 16 x 25 feet. I have no hesitation in my mind to hold that as on the date of suit the plaintiff was in possession and enjoyment of suit property as pleaded."

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RSA No. 945 of 2014

19. Considering the above aspects, the First Appellate

Court has held that the plaintiff has proved her possession

over the suit schedule property.

20. On considering all these aspects, no substantial

question of law arises for consideration in this appeal.

21. Hence, the appeal is dismissed.

22. If the plaintiff has encroached any of the portion of

the property belonging to defendant Nos.1 to 3, they are

at liberty to initiate an appropriate proceedings against the

plaintiff to recover the possession of encroached portion.