Karnataka High Court
Vijinath vs Bojreddy S/O Narsareddy Since Lrs And ... on 21 November, 2023
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RFA No. 200031 of 2018
C/W RFA.CROB No. 200003 of 2018
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR FIRST APPEAL NO.200031 OF 2018 (DEC/INJ)
C/W
RFA CROB. NO.200003 OF 2018 (DEC/INJ)
IN RFA NO.200031/2018
BETWEEN:
1. BOJREDDY (DIED BY LR'S.
1a. LACHAMAMMA W/O LATE BHOJREDDY,
AGE: 95 YEARS, OCC: HOUSEHOLD,
R/O: VILLAGE BUDHERA,
TQ: AND DIST: BIDAR-585401.
1b. NARAYANREDDY S/O LATE BHOJREDDY
AGE: 75 YEARS, OCC: AGRICULTURE,
Digitally signed R/O: VILLAGE BUDHERA,
by SHILPA R TQ: AND DIST: BIDAR-585401.
TENIHALLI
Location: HIGH
COURT OF 1c. MOHANREDDY S/O LATE BHOJREDDY
KARNATAKA AGE: 57 YEARS, OCC: AGRICULTURE,
R/O: VILLAGE BUDHERA,
TQ: AND DIST: BIDAR-585401.
1d. BALREDDY S/O LATE BHOJREDDY
AGE: 70 YEARS, OCC: AGRICULTURE,
R/O: VILLAGE BUDHERA,
TQ: AND DIST: BIDAR-585401.
1e. ANUSAMMA D/O LATE BHOJREDDY
AGE: 73 YEARS, OCC: HOUSEHOLD,
R/O: VILLAGE BUDHERA,
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RFA No. 200031 of 2018
C/W RFA.CROB No. 200003 of 2018
TQ: AND DIST: BIDAR-585401.
1f. ESHWARAMMA D/O LATE BHOJREDDY
AGE: 65 YEARS, OCC: HOUSEHOLD,
R/O: VILLAGE BUDHERA,
TQ: AND DIST: BIDAR-585401.
1g. REKHA W/O GUNDREDDY
AGE: 60 YEARS, OCC: HOUSEHOLD,
R/O: VILLAGE BUDHERA,
TQ: AND DIST: BIDAR-585401.
1h. SAGAR S/O GUNDREDDY
AGE: 37 YEARS, OCC: STUDENT,
R/O: VILLAGE BUDHERA,
TQ: AND DIST: BIDAR-585401.
1i. SACHIN S/O GUNDREDDY
AGE: 35 YEARS, OCC: STUDENT,
R/O: VILLAGE BUDHERA,
TQ: AND DIST: BIDAR-585401.
2. MOHANREDDY S/O LATE BHOJREDDY
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O: VILLAGE BUDHERA,
TQ: AND DIST: BIDAR-585401.
...APPELLANTS
(BY SRI K. M. GHATE, ADVOCATE)
AND:
1. VAIJINATH SIDRAMAPPA,
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O: VILLAGE BUDHERA,
TQ: AND DIST: BIDAR-585401.
2. SIDDAMMA W/O SHIVASHARANAPPA
AGE ABOUT 65 YEARS, OCC: HOUSEHOLD
R/O: VILLAGE REKULGI
TQ: AND DIST: BIDAR-585401.
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RFA No. 200031 of 2018
C/W RFA.CROB No. 200003 of 2018
3. INDUMATI W/O SUBHASH KOTE
AGE 50 YEARS, OCC: HOUSEHOLD
R/O RAJOLA NYALKAL MANDAL,
TALUKA ZAHIRABAD
DISTRICT MEDAK(T.S)-502220.
...RESPONDENTS
(BY SRI. RAVI B. PATIL, ADVOCATE FOR R1;
R2 AND R3 SERVED)
THIS RFA IS FILED U/S 96 OF CPC, PRAYING TO CALL
FOR THE LOWER COURT RECORDS OF O.S. NO. 134/2003 ON
THE FILE OF PRL. SENOR CIVIL JUDGE AND CJM BIDAR AND
THEREBY PLEASE TO SET ASIDE THE JUDGMENT AND DECREE
DATED 12.12.2017 AND PLEASE TO DISMISS THE SUIT OF THE
RESPONDENT PLAINTIFFS NO.1 AND 2 IN ENTIRETY
THROUGHOUT COSTS TO MEET THE ENDS OF JUSTICE AD
EQUITY.
IN RFA CROB NO.200003/2018
BETWEEN:
VAIJINATH SIDRAMAPPA,
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O: VILLAGE BUDHERA,
TQ: AND DIST: BIDAR-585101.
...CROSS OBJECTOR
(BY SRI RAVI B. PATIL, ADVOCATE)
AND:
1. BOJREDDY S/O NARSAREDDY
SINCE DECEASED BY HIS LR'S.
1a. LACHAMAMMA W/O LATE BHOJREDDY,
AGE: 95 YEARS, OCC: HOUSEHOLD,
R/O: VILLAGE BUDHERA,
TQ: AND DIST: BIDAR-585401.
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RFA No. 200031 of 2018
C/W RFA.CROB No. 200003 of 2018
1b. NARAYANREDDY S/O LATE BHOJREDDY
AGE: 75 YEARS, OCC: AGRICULTURE,
R/O: VILLAGE BUDHERA,
TQ: AND DIST: BIDAR-585401.
1c. BALREDDY S/O LATE BHOJREDDY
AGE: 70 YEARS, OCC: AGRICULTURE,
R/O: VILLAGE BUDHERA,
TQ: AND DIST: BIDAR-585401.
1d. ANUSAMMA D/O LATE BHOJREDDY
AGE: 73 YEARS, OCC: HOUSEHOLD,
R/O: VILLAGE BUDHERA,
TQ: AND DIST: BIDAR-585401.
1e. ESHWARAMMA D/O LATE BHOJREDDY
AGE: 65 YEARS, OCC: HOUSEHOLD,
R/O: VILLAGE BUDHERA,
TQ: AND DIST: BIDAR-585401.
1f. REKHA W/O GUNDREDDY
AGE: 60 YEARS, OCC: HOUSEHOLD,
R/O: VILLAGE BUDHERA,
TQ: AND DIST: BIDAR-585401.
1g. SAGAR S/O GUNDREDDY
AGE: 37 YEARS, OCC: STUDENT,
R/O: VILLAGE BUDHERA,
TQ: AND DIST: BIDAR-585401.
1h. SACHIN S/O GUNDREDDY
AGE: 35 YEARS, OCC: STUDENT,
R/O: VILLAGE BUDHERA,
TQ: AND DIST: BIDAR-585401.
2. MOHANREDDY S/O LATE BHOJREDDY
AGE: 47 YEARS, OCC: HOUSEHOLD,
R/O: VILLAGE BUDHERA,
TQ: AND DIST: BIDAR-585401.
3. SIDDAMMA W/O SHIVASHARANAPPA
AGE ABOUT 65 YEARS, OCC: HOUSEHOLD
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RFA No. 200031 of 2018
C/W RFA.CROB No. 200003 of 2018
R/O: VILLAGE REKULGI
TQ: AND DIST: BIDAR-585401.
4. INDUMATI W/O SUBHASH KOTE
AGE 50 YEARS, OCC: HOUSEHOLD
R/O RAJOLA NYALKAL MANDAL,
TALUKA ZAHIRABAD
DISTRICT MEDAK(T.S)-502220.
...RESPONDENTS
(SRI K.M.GHATE, ADVOCATE FOR R1 & R2;
R3 SERVED; NOTICE TO R4 IS HELD SUFFICIENT)
THIS RFA CROB. IS FILED UNDER ORDER 41 RULE 22 OF
CPC, PRAYING TO SETTING ASIDE THE JUDGMENT AND
DECREE DATED 12.12.2017 PASSED IN O.S. NO. 134/2003 ON
THE FILE OF PRL. SENIOR CIVIL JUDGE AND CJM BIDAR.
THE APPEAL AND CROSS OBJECTION COMING ON FOR
HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The legal representatives of defendant No.1 and
defendant No.2 in O.S.No.134/2003 on the file of Principal
Senior Civil Judge and CJM at Bidar (hereinafter referred to as
'Trial Court' for brevity) have preferred RFA No.200831/2018,
impugning the judgment and decree dated 12.12.2017
decreeing the suit in part and granting permanent injunction
restraining defendant Nos.1 and 2 from causing interference
with the peaceful possession and enjoyment of Bandhara by the
plaintiffs without due process of law.
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2. The plaintiffs in the said suit preferred RFA
Crob.No.20013/2018 being aggrieved by the very same
impugned judgment and decree, where the claim of the
plaintiffs for a declaration that they are the owners in
possession of the suit land was rejected.
3. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
4. Brief facts of the case are that, the plaintiffs filed
the suit O.S.No.134/2003 before the Trial Court against
defendant Nos.1 and 2 seeking declaration that they are the
joint owners in possession of Survey No.81, measuring 12.22
acres, situated at Budhera village, Bidar taluka, with the
boundaries mentioned therein (hereinafter referred to as 'suit
land' for brevity) and for permanent injunction, restraining the
defendants from obstructing the peaceful possession and
enjoyment of the suit land by the plaintiffs. During the
pendency of the suit, defendant Nos.3 and 4 were impleaded in
the suit.
5. It is contended by the plaintiffs that plaintiff No.2 is
the mother of plaintiff No.1 and defendant Nos.3 and 4.
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Defendant No.1 and 2 are the father and son, who are owning
adjacent lands. The suit land is the family property of the
plaintiffs and defendant Nos.3 and 4. Deceased Sidramappa
was the owner in possession of the suit land and after his
death, plaintiff Nos.1 and 2 have succeeded to the same and
they are the joint owners in possession of the suit land and it
consists of a well. The record of rights stands in the name of
plaintiff No.1.
6. It is contended that defendant Nos.1 and 2 are the
owners of Survey No.73, situated on the western side of the
suit land. There is a Bandhara, measuring 400'x25'. The said
Bandhara is part and parcel of the suit land situated on the
western portion as shown in the map. During the lifetime of
Sidramappa - the father of plaintiff No.1, got measured the
property and fixed the boundaries. Defendant Nos.1 and 2
taking undue advantage of the fact that they have owned the
adjacent lands, are intending to demolish the Bandhara and to
disturb the boundary stones. Therefore, the plaintiffs filed the
suit for declaration that they are the joint owners in possession
of the suit land and for permanent injunction against the
defendants not to disturb their peaceful possession.
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7. Defendant Nos.1 and 2 filed their written statement
denying the contentions taken by the plaintiffs. It is admitted
that the plaintiffs and defendants are adjacent land owners. It
is also admitted that the suit land is the ancestral property of
the plaintiffs and they acquired it through their father
Sidramappa after the death of his father Basappa. It is
contended the plaintiff No.2 is having two daughters. They are
also entitled for share in the suit land.
8. The defendants admitted that there is a Bandhara
in between the suit land and the land belonging to the
defendants. It is contended that said Bandhara is measuring
20 feet in width, but, denied the fact that the same is part and
parcel of the suit land. The rough sketch produced along with
the plaint is denied as it does not depict the correct situation at
the spot. The interference of the defendants as alleged by the
plaintiffs is all denied.
9. It is contended that defendant No.1 is cultivating
the land bearing Survey No.73, measuring 10.28 acres of
Budhera village, Bidar district, which is adjacent to the suit
land, towards eastern side. Survey No.73 was purchased by
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defendant No.1 in the year 1975 and after the purchase, he got
demarcated the same by fixing the boundary stone, wherein
more than 3/4th of the Bandhara is found to be part and parcel
of the land bearing Survey No.73 and 1/4th of the same is part
and parcel of the suit land. It is stated that there is a Well
situated in Survey No.73 and its water used to overflow during
heavy rain and to give way to the water of the Well, the owner
of the land in Survey No.73 dug a water canal, which is
situated on the eastern side of the suit land.
10. It is stated that the Assistant Director of Land
Records (for short 'ADLR') has measured Survey No.73 and
fixed its boundaries. The survey map was also drawn. It is
contended that the plaintiffs have made an attempt to encroach
20 ft. of Bandhara and as they have failed in their attempt,
they filed the suit seeking declaration and injunction with false
allegations. Therefore, prayed for dismissal of the suit.
11. On the basis of the above pleadings, the Trial Court
framed the following issues and additional issues:
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ISSUES
1) Whether the plaintiff proves that they are joint
owners and possessor of suit land?
2) Whether the suit is not maintainable with legal
heirs of the deceased Basappa and Sidramappa?
3) Whether the plaintiffs prove that they are in lawful
possession over the suit land as on the date of the
suit and alleged interference caused by the defendant
No.1 and 2.
4) Whether the plaintiffs are entitled for relief claimed
in the suit?
5) What order or decree?
ADDITIONAL ISSUE
1. Whether t he plaintiffs prove that the 'Bandhara'
measuring 400'x25' is part and parcel of suit land?
12. The plaintiffs got examined PWs.1 to 3 and got
marked Exs.P1 to P23 in support of their contentions. The
defendants got examined DWs.1 and 2 and got marked Exs.D1
to D13 in support of their defence. The Trial Court after taking
into consideration all these materials, decreed the suit of the
plaintiffs in part. The prayer for grant of declaratory relief is
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rejected. However, the Trial Court granted permanent
injunction restraining defendant No.1 from causing interference
with the peaceful possession and enjoyment of Bandhara by the
plaintiffs without due process of law.
13. Being aggrieved by the same, the legal
representatives of defendant No.1 and defendant No.2 have
preferred RFA No.200031/2018 and plaintiffs have preferred
RFA Crob.No.200003/2018.
14. Heard learned counsel Sri K.M.Ghate for the
appellants and learned counsel Sri Ravi B. Patil for the cross
objectors.
15. Learned counsel for the appellants/defendants
contended that it is the specific contention of the plaintiffs that
their father got measured the suit land, fixed boundaries and
since then, they are in possession of the suit land. But, no
documents are produced before the Court either to prove the
survey of the land or fixing of the boundaries. Except the hand
sketch produced as per Ex.P6, there are no other convincing
documents to prove the said contention of the plaintiffs. Even
though the defendants admit that the plaintiffs are the owners
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of Survey No.83 and the defendants are the owners of Survey
No.73, the contention of the plaintiffs that the suit land includes
Bandhara, measuring 400'x25' as shown in the sketch map is
denied. Therefore, additional issue No.1 was framed by the
Trial Court. Except the oral evidence led by the plaintiffs, there
is no convincing evidence to prove the existence of Bandhara
as contended by the plaintiffs. Even though the Trial Court
answered additional issue No.1 in the negative, it proceeded to
pass the decree for permanent injunction in respect of the very
same Bandhara, which is erroneous. When the plaintiffs have
failed to prove their ownership over the suit land including
Bandhara and when the Trial Court specifically holds that the
plaintiffs have not proved that the Bandhara measuring
400'x25' is part and parcel of the suit land, it committed an
error in granting permanent injunction. Therefore, he prays for
allowing the appeal and dismissal of the suit of the plaintiffs in
its entirety.
16. Per contra, learned counsel for the cross
objectors/plaintiffs opposing the appeal and in support of their
cross objection, contended that even though the plaintiffs have
not produced survey map to prove the survey and fixing of the
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C/W RFA.CROB No. 200003 of 2018
boundaries, they have placed sufficient materials before the
Court to prove their ownership. The defendants have
categorically admitted that the plaintiffs are the owners in
possession of the suit land. Moreover, during cross-
examination of the defence witnesses, they admitted about
existence of Bandhara and it is specifically stated that 3/4th
portion of the Bandhara is situated in the land of the
defendants and 1/4th of the same is situated in the land of the
plaintiffs. When such categorical admissions are made by
DWs.1 and 2, the Trial Court was right in decreeing the suit for
permanent injunction. But, even after a categorical admissions
in the written statement regarding ownership of the suit land
by the plaintiffs, it has rejected the claim for declaration, which
is bad under law. Hence, he prays for allowing the cross
objection by dismissing the appeal preferred by the defendants
and to decree the suit of the plaintiffs as prayed for.
17. Perused the materials on record including the Trial
Court records. In view of the rival contentions urged by
learned counsel for the parties, the point that would arise for
my consideration is:
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C/W RFA.CROB No. 200003 of 2018
"Whether the impugned judgment and decree
passed by the Trial Court suffers from any perversity
or illegality and calls for interference by this Court?"
My answer to the above point is in 'Partly in the
Affirmative' for the following:
REASONS
18. It is the specific contention of the plaintiffs that
they are the owners of the suit land described as Survey No.81,
measuring 12.22 acres, situated at Budhera village, Bidar
taluka with the boundaries mentioned therein. The western
boundary refers to the land of the defendants i.e., land bearing
Survey No.73. The land of the defendants is shown in the hand
sketch map marked as Ex.P6 as Survey No.73. It is not in
dispute that the defendants are owning land bearing Survey
No.73 while the plaintiffs are in possession and enjoyment of
Survey No.81. It is the specific contention of the plaintiffs that
Survey No.81 includes Bandhara measuring 400'x25' as shown
in the sketch map - Ex.P6 and they are the absolute owners in
possession of the same. This fact is denied by the defendants
and according to them, only a portion of Bandhara is situated in
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the suit land and therefore, they are not entitled for any
declaration or injunction against the same.
19. Even though it is contended by the plaintiffs that
the father of plaintiff No.1 got measured the suit land, fixed
boundaries during his lifetime and was enjoying the same, no
piece of document is produced in support of such contention.
Strangely, the defendants have also taken similar contention
that they have got measured their property through ADLR,
Bidar and got the survey map, but, no such documents were
produced before the Court. Even though the defendants have
produced survey notice issued in favour of the plaintiffs, but,
survey sketch and report is not produced.
20. It is pertinent to note that the plaintiffs have not
sought for appointment of the Court Commissioner before the
Trial Court for measuring and to report regarding existence and
identification of the suit land along with Bandhara as described
in the plaint. The Trial Court records disclose that the
defendants have filed an application i.e. I.A. 14, seeking
appointment of the surveyor and as per order dated
05.09.2017, I.A.14 was allowed. The ADLR was appointed as
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Court Commissioner for measuring and fixing the boundaries of
Survey Nos.81 and 73 of Budhera village and to submit report
to the Court within 15 days i.e., on or before 20.09.2017. The
Court has further directed that if the parties failed to get the
survey done within the time fixed, the order stands cancelled.
It was made clear that no further time will be granted or
extended for submitting the Court Commissioner's report,
under any circumstances. The Trial Court records disclose that
no survey was conducted by the Court Commissioner and there
was no prayer either from the plaintiffs or by the defendants to
extend the time after getting the land surveyed through the
Court Commissioner.
21. In view of the above, it has to be concluded that no
authenticated survey documents are placed before the Court to
prove the existence of the suit land as described in the plaint,
especially, to prove the existence of Bandhara as part and
parcel of the suit land i.e., Survey No.81, measuring 400'x25'.
When the plaintiffs have approached the Trial Court with a
specific contention that the suit land includes Bandhara
measuring 400'x25' on the western side demarking the land
belonging to the defendants, the burden is on them to produce
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the relevant documents in support of their contentions. When
the plaintiffs and defendants both contend that the lands in
question were measured by the surveyor and the report was
received, there was absolutely no explanation as to why such
documents are withheld from the Court. When the plaintiffs
failed to produce best evidence before the Court, they cannot
seek the relief for grant of declaration and for permanent
injunction.
22. Learned counsel for the plaintiffs contended that
since the defendants have admitted the ownership of the
plaintiffs regarding the suit land, the Trial Court should have
decreed the suit for declaration and also for permanent
injunction. On going through the written statement filed by the
defendants, it is the specific defence that the plaintiffs are the
owners of Survey No.81, but, the contention of the plaintiffs
with regard to existence of Bandhara, measuring 400'x25' as
shown in Ex.P6 as part of the suit land, is categorically denied.
However, it is stated that 3/4th of such Bandhara is situated in
Survey No.73 and 1/3rd of the same in Survey No.81. On that
basis, the decree for declaration and for permanent injunction
cannot be granted. There is absolutely no reason as to why the
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plaintiffs have not produced survey map to prove their
contentions. If at all any reason, they have not having survey
documents to prove their contentions, they could have applied
for appointment of Court Commissioner to survey the land and
got the report. Even when the defendants have filed such
application, survey could not be conducted and no documents
are placed before the Court to support their specific contention.
The plaintiffs, who have failed in proving their contention as
raised in the plaint, they are not entitled either for declaration
or for injunction as sought for.
23. I have gone through the impugned judgment and
decree passed by the Trial Court. The Trial Court at paragraph
No.14 stated that the plaintiffs have claimed that there is a
Well in the Bandhara belonging to them and the said contention
was fortified by the record of rights pertaining to Survey No.81.
But, this fact cannot be accepted for the simple reason that the
Well shown in the sketch map - Ex.P6 was not near the
Bandhara as referred to in the plaint, but, it states on the
eastern side of Survey No.81. Further, the observation of the
Trial Court that the defendants have admitted existence of
Bandhara on the eastern side of Survey No.73 and also on the
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western side, it has proceeded on a presumption that Bandhara
is situated on the western side of Survey No.81 and eastern
side of Survey No.73 was being used by the plaintiffs as
claimed by them. When the plaintiffs have approached the
Court with a specific contention seeking declaration and
permanent injunction, they have to prove such specific
contention. When existence of Bandhara, measuring 400'x25'
as part of Survey No.81 is not proved, the plaintiffs are not
entitled for any of the relief of either declaration or permanent
injunction.
24. It is pertinent to note that the Trial Court has
answered additional issue No.1 in the negative thereby held
that the plaintiffs have not proved existence of Bandhara
measuring 400'x25' as part and parcel of the suit land. In spite
of that, it proceeded to decree the suit of the plaintiffs for
permanent injunction, which is erroneous. Therefore, I am of
the opinion that the plaintiffs are not entitled for any relief.
Accordingly, the suit of the plaintiffs is to be dismissed and the
impugned judgment and decree granting relief of permanent
injunction is liable to be set aside. Hence, I answer the above
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point partly in the affirmative and proceed to pass the
following:
ORDER
a) The appeal is allowed with costs.
b) The cross objections is dismissed.
c) The impugned judgment and decree passed in
O.S.No.134/2003 dated 12.12.2017, on the file of
learned Principal Senior Civil Judge and CJM at Bidar,
is set aside. Consequently, the suit in
O.S.No.134/2003 on the file of the learned Principal
Senior Civil Judge and CJM at Bidar stands
dismissed.
Registry is directed to draw the decree accordingly and
send back the Trial Court records along with copy of the
judgment and decree.
Sd/-
JUDGE
SRT
CT-VD
