Karnataka High Court
Chandrashekhar S/O Veerbhadrappa vs Basawaraj S/O.Mallappa Goudanoor on 24 November, 2023
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RSA No. 7007 of 2010
C/W RSA No. 7006 of 2010
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR SECOND APPEAL NO.7007 OF 2010 (DEC.)
C/W
REGULAR SECOND APPEAL NO.7006 OF 2010 (DEC./INJ)
IN RSA No.7007/2010:
BETWEEN:
1. CHANDRASHEKHAR S/O VEERABHADRAPPA
AGE: 69 YEARS, OCC: AGRICULTURE
2. SURYASHEKHAR S/O CHANDRASHEKHAR
AGE: 43 YEARS, OCC: AGRICULTURE
3. SUDHAKAR S/O CHANDRASHEKHAR
AGE: 41 YEARS, OCC: AGRICULTURE
4. PRABHAKAR S/O CHANDRASHEKHAR
Digitally signed AGE: 31 YEARS, OCC: AGRICULTURE
by SWETA
KULKARNI
Location: HIGH ALL R/O: VILLAGE DEGALMADI,
COURT OF
KARNATAKA TQ: CHINCHOLI, DIST: GULBARGA-585 307.
...APPELLANTS
(BY SMT. HEMA KULKARNI, ADVOCATE)
AND:
1. BASWARAJ S/O MALLAPPA GOUDANOOR
AGE: 50 YEARS, OCC: AGRICULTURE
2. SHAMRAO S/O MALLAPPA GOUDANOOR
AGE: 45 YEARS, OCC: AGRICULTURE
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RSA No. 7007 of 2010
C/W RSA No. 7006 of 2010
3. CHANVEERAPPA S/O MALLAPPA GOUDANOOR
AGE: 43 YEARS, OCC: AGRICULTURE
4. RAJENDRA S/O MALLAPPA GOUDANOOR
AGE: 41 YEARS, OCC: AGRICULTURE
5. MANIKRAO S/O MALLAPPA GOUDANOOR
AGE: 41 YEARS, OCC: AGRICULTURE
ALL R/O: VILLAGE DEGALMADI
TQ: CHINCHOLI, DIST: GULBARGA.
6. SHANTABAI W/O VISHWANATH
AGE: 39 YEARS, OCC: HOUSEHOLD,
R/O: PROPER BIDAR,
TQ & DIST: BIDAR-585 401.
...RESPONDENTS
(BY SRI VINAYAK APTE, ADV. FOR R1 TO R6
VIDE ORDER DATED 23.06.2021 APPEAL AGAINST R5 IS
DISMISSED)
THIS REGULAR SECOND APPEAL IS FILED U/S 100 OF
CPC, PRAYING TO ALLOW THIS APPEAL BY SETTING ASIDE THE
JUDGMENT AND DECREE DATED: 16.11.2009 PASSED IN R.A.
NO.20/2008 BY THE LEARNED CIVIL JUDGE (SR.DN.),
CHINCHOLI, MODIFYING THE JUDGMENT AND DECREE
DATED:25.02.2008 PASSED IN O.S.NO.40/1991 BY THE
LEARNED ADDL. CIVIL JUDGE (JR.DN.), CHINCHOLI, AND TO
DISMISS THE SUIT OF THE PLAINTIFF.
IN RSA No.7006/2010:
BETWEEN:
1. CHANDRASHEKHAR S/O VEERABHADRAPPA
AGE: 69 YEARS, OCC: AGRICULTURE
2. SURYVSHEKHAR S/O CHANDRASHEKHAR
AGE: 43 YEARS, OCC: AGRICULTURE
3. SUDHAKAR S/O CHANDRASHEKHAR
AGE: 41 YEARS, OCC: AGRICULTURE
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RSA No. 7007 of 2010
C/W RSA No. 7006 of 2010
4. PRABHAKAR S/O CHANDRASHEKHAR
AGE: 31 YEARS, OCC: AGRICULTURE
ALL R/O: VILLAGE DEGALMADI,
TQ: CHINCHOLI, DIST: GULBARGA-585 307.
...APPELLANTS
(BY SMT. HEMA L. KULKARNI, ADV. FOR
SRI K. DHIRAJ KUMAR, ADVOCATE)
AND:
1. BASWARAJ S/O MALLAPPA GOUDANOOR
AGE: 51 YEARS, OCC: AGRICULTURE
2. SHAMRAO S/O MALLAPPA GOUDANOOR
AGE: 46 YEARS, OCC: AGRICULTURE
3. CHANVEERAPPA S/O MALLAPPA GOUDANOOR
AGE: 44 YEARS, OCC: AGRICULTURE
4. RAJENDRA S/O MALLAPPA GOUDANOOR
AGE: 42 YEARS, OCC: AGRICULTURE
5. MANIKRAO S/O MALLAPPA GOUDANOOR
AGE: 42 YEARS, OCC: AGRICULTURE
ALL R/O: VILLAGE DEGALMADI
TQ: CHINCHOLI, DIST: GULBARGA.
6. SHANTABAI W/O VISHWANATH
AGE: 39 YEARS, OCC: HOUSEHOLD,
R/O: PROPER BIDAR,
TQ & DIST: BIDAR-585 401.
...RESPONDENTS
(BY SRI VINAYAK APTE, ADV. FOR R1 TO R6
VIDE ORDER DATED 23.06.2021 APPEAL AGAINST R5 IS
DISMISSED)
THIS REGULAR SECOND APPEAL IS FILED U/S 100 OF
CPC, PRAYING TO ALLOW THIS APPEAL BY SETTING ASIDE THE
JUDGMENT AND DECREE DATED:16.11.2009 PASSED IN R.A.
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RSA No. 7007 of 2010
C/W RSA No. 7006 of 2010
NO.11/2008 BY THE LEARNED CIVIL JUDGE (SR.DN.),
CHINCHOLI, CONFIRMING THE JUDGMENT AND DECREE
DATED:25.02.2008 PASSED IN O.S.NO.40/1991 BY THE
LEARNED ADDL. CIVIL JUDGE (JR.DN.), CHINCHOLI, AND TO
DISMISS THE SUIT OF THE PLAINTIFF.
THESE APPEALS COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The defendants in O.S.No.40/1991 on the file of the
learned Additional Civil Judge (Jr.Dn.) and JMFC, Chincholi
(hereinafter referred to as the 'Trial Court' for brevity) are
impugning the judgment and decree dated 25.02.2008
decreeing the suit of the plaintiffs for declaration and
possession in part and declaring that the plaintiffs are the
owners in possession of 5 acres of land in Sy.No.93/2 and
restraining the defendants from interfering with the peaceful
possession and enjoyment of the same and also the common
judgment and decree dated 16.11.2009 on the file of the Civil
Judge (Sr.Dn.) at Chincholi (hereinafter referred to as the 'First
Appellate Court' for brevity) passed in R.A.No.11/2008 and
R.A.No.20/2008, whereunder R.A.No.20/2008 was allowed
decreeing the suit of the plaintiffs as prayed for while
dismissing the appeal preferred by the defendants in
R.A.No.11/2008.
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2. For the sake of convenience, parties are referred to
as per their status and rank before the Trial Court.
3. Brief facts of the case are that the original plaintiff
Mallappa Goudanoor filed the suit O.S.No.40/1991 against
defendant Nos.1 to 4 seeking declaration that he is the owner in
possession of 6 acres of land in Sy.No.93/2 situated at
Degalmadi village, taluk Chincholi, district Kalaburagi
(hereinafter referred to as 'the suit property' for brevity) with
the boundaries mentioned therein and for possession of
northern 300 feet of land approximately measuring 1 acre
(hereinafter referred to as the 'encroached portion' for brevity)
and also for permanent injunction in respect of the entire suit
property.
During the pendency of the suit, the original plaintiff died
and his legal representatives were brought on record.
4. It is the contention of the plaintiffs before the Trial
Court that they are in possession of the suit property as the
original plaintiff purchased the same about 28 years back from
the previous owner Smt. Iramma. Since then, the original
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plaintiff and thereafter, his legal representatives are in its
peaceful possession and enjoyment. The land belonging to the
defendants is bounded on the East and North by the plaintiffs'
land and it is separated by old bunds both on Northern and
Eastern side. It is contended that even though the plaintiffs are
in possession of 6 acres of land, the pahani entries are reflected
only in respect of 5 acres and therefore, the same is to be
corrected. It is also contended that recently the plaintiffs got
measured the suit property with the help of a private surveyor
and came to know that the total extent of the land belonging to
the plaintiffs is 6 acres. But, about 1 acre of land i.e., upto 300
feet on the Northern side was encroached by the defendants
taking undue advantage of the entries made in the records of
right. Therefore, the plaintiffs prayed for declaration of title in
respect of the suit property and possession of 1 acre of land
encroached by the defendants and for permanent injunction in
respect of the entire suit property and also for correction of the
revenue entries.
5. The suit was resisted by the defendants by filing the
written statement denying the contentions taken by the
plaintiffs. It is contended that Iramma was and is the owner in
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possession of 5 acres of land on south west portion of Sy.No.93
of Degalmadi Village. Out of the larger extent of 32.06 acres,
defendant Nos.2 and 3 are the owners in possession of 9 acres
of land each in Sy.No.93/1 and defendant No.4 is the owner in
possession of 9.06 acres in the said land. Accordingly, the
pahani entries stood in their names. It is contended that the
plaintiffs are not having any right, title or interest over
Sy.No.93 of Degalmadi Village. But, the plaintiffs in collusion
with the Village Accountant, appears to have concocted the
pahani entries.
6. It is contended that the original plaintiff had filed
the suit O.S.No.1/1/1963 against Iramma and defendant No.1
before the Trial Court, seeking declaration of his title in respect
of Sy.Nos.193, 96 and 99 of Degalmadi Village and the said suit
came to be decreed. Later, defendant No.1 filed the suit
O.S.No.34/1969 which came to be dismissed. The appeal and
the second appeal were also came to be dismissed. But taking
undue advantage of dismissal of the suits and the appeals, the
plaintiff concocted the revenue records and entered his name in
respect of Sy.No.93 without any right, title or interest. The
plaintiffs are not having any manner of right in respect of
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Sy.No.93. Therefore, prayed for dismissal of the suit. The
defendants have appended the sketch to the written statement
showing Sy.No.93 with its boundaries.
7. On the basis of these pleadings, the following issues
came to be framed;
1) "Whether the plaintiff proves that he has purchased
the suit land from its previous owner Iramma W/o
Irappa?
2) Whether the plaintiff further proves that the extent
of the suit land S.No. 93/2 actually is 8 acres and it
is wrongly mentioned in ROR as 5 acres?
3) Whether the plaintiff proves that when the
defendants got the suit land, it was found by ADLR
that the suit land actually measured 8 acres?
4) Whether the plaintiff proves that he has perfected
his titled to the suit land by adverse possession?
5) Whether plaintiffs proves that the defendants are
causing interference into the peaceful possession of
the plaintiff over the suit land?
6) Whether plaintiff proves that the ROR pertaining to
the suit land are liable to be corrected?
7) Whether the plaintiff proves that he is entitled for
possession 2 acres of sit land as alleged by him?
8) Whether the defendants prove that this Court no
jurisdiction to try the suit?
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9) Whether the defendants prove that they are entitled
for compensatory costs of Rs. 1,000/- each?
10) What reliefs the parties are entitled to ?
11) What order or decree?"
8. The plaintiffs examined PWs.1 to 4 and got marked
Exs.P1 to 22 in support of their contention. Defendant No.1
examined DW-1 and got marked Exs.D1 to 9 in support of his
defence. The Trial Court after taking into consideration all
these materials on record, answered issue No.1 partly in the
affirmative, issue No.5 in the affirmative and issue Nos.2 to 4,
6 to 9 in the Negative and accordingly, decreed the suit of the
plaintiffs in part declaring that the plaintiffs are the owners in
possession of 5 acres of land in Sy.No.93/2 and restraining the
defendants from interfering with the said 5 acres of land by
granting permanent injunction. The other reliefs claimed by
the plaintiffs for possession and for mutation of the revenue
records came to be dismissed.
9. Being aggrieved by the same, the plaintiff has
preferred R.A.No.20/2008, while the defendants have preferred
R.A.No.11/2008 before the First Appellate Court. The First
Appellate Court on re-appreciation of the materials on record,
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allowed R.A.No.20/2008 filed by the plaintiffs and decreed the
suit of the plaintiffs as prayed for, while dismissing
R.A.No.11/2008 preferred by the defendants.
10. Being aggrieved by the same, the defendants have
preferred RSA No.7007/2010 against allowing of
R.A.No.20/2008 and RSA No.7006/2010 against dismissal of
R.A.No.11/2008.
11. Heard Smt. Hema Kulkarni, learned counsel for the
appellants/defendants and Sri Vinayak Apte, learned counsel
for the respondents/plaintiffs. Perused the materials including
the trial Court records and the First Appellate Court records.
12. Learned counsel for the appellants/defendants
contended that the plaintiffs have filed the suit in respect of
Sy.93/2, measuring 6 acres on the specific contention that the
original plaintiff purchased the same under the sale deed from
Iramma about 28 years back. But, the said sale deed is not
produced before the Court to prove the ownership. Moreover,
the plaintiffs have filed the suit O.S.No.1/1/1963 seeking
similar relief of declaration against the said Iramma and the
present defendant No.1 showing the description of the property
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as Sy.No.193, measuring 6 acres, but not as Sy.No.93 which
they are claiming now. Therefore, the decree in
O.S.No.1/1/1963 is in respect of Sy.No.193 and not in respect
of Sy.No.93 which is the subject matter of the suit. The Trial
Court and the First Appellate Courts have committed an error in
relying on the materials produced by the plaintiffs and
decreeing the suit of the plaintiffs as prayed for.
13. Learned counsel also submitted that even though
the Court Commissioner was appointed and he had filed his
report along with the sketch, he was not examined before the
Trial Court. Inspite of that, the First Appellate Court committed
an error in placing reliance on the said report of the
Commissioner. Therefore, she prays for allowing the appeals
and to dismiss the suit of the plaintiffs with costs.
14. Per contra, learned counsel for the
respondents/plaintiffs opposing the appeals submitted that
initially the original plaintiff had filed the suit O.S.No.1/1/1963
in respect of 6 acres of land situated at Degalmadi Village. But
by mistake, survey number was shown as 193. The averments
made therein in the said suit was in respect of the suit
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property. Iramma- the vendor of the plaintiff and the present
defendant No.1 Chandrashekar were the defendants in the said
suit. They contested the suit and ultimately, the suit came to
be decreed as per Ex.D6 produced by the defendants
themselves.
15. Learned counsel also submitted that the said
Iramma and the present defendant No.1 have filed the suit
O.S.No.47/1963, seeking cancellation of the decree i.e., Ex.D6
on the ground that the same was hit by fraud and
misrepresentation. The plaintiffs in the said suit have described
the suit property as Sy.No.93 of Degalmadi village, measuring
6 acres. Therefore, it is clear that they were knowing that the
suit O.S.No.1/1/1963 was in fact in respect of Sy.No.93 and not
in respect of Sy.No.193. The said suit O.S.No.47/1963 in
respect of the suit property came to be dismissed as per Ex.P3.
The appeal and the second appeal preferred by defendant No.1
came to be dismissed. Therefore, the decree as per Ex.P3
reached finality and the claim of Iramma and defendant No.1
was rejected long back.
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16. Learned counsel further submitted that defendant
No.1 had filed the suit O.S.No.34/1969 against the plaintiffs
seeking the relief of specific performance of contract. The said
suit was also in respect of Sy.No.93, measuring 6 acres. The
said suit came to be dismissed as per Ex.P6. The appeal and
the second appeal preferred against the same also came to be
dismissed. Thus, filing of the suits and the appeals disclose that
the defendants attempted to dispossess the plaintiffs from the
entire suit land by denying their title, but were not successful.
On the other hand, the plaintiffs were declared as the owners in
possession of 6 acres of land in respect of the suit property.
17. Learned counsel further submitted that in the
meantime, one Chandramma- sister of Iramma i.e., vendor of
the original plaintiff had filed the suit O.S.No.303/1986 before
the Trial Court for partition and separate possession in respect
of the very same Sy.No.93, measuring 6 acres along with other
properties. The said suit also came to be dismissed as per
Ex.P9.
18. In view of the repeated attempts on the part of the
defendants or their family members to seek the relief in respect
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of the suit property, the plaintiffs filed the suit seeking
declaration and permanent injunction. In the meantime, it was
came to the knowledge of the plaintiffs that about 1 acre of
land was encroached wrongfully by the defendants and
therefore, possession of said land was also sought for. The
Trial Court even though declared title of the plaintiff in respect
of 5 acres of land, failed to decree the suit for possession of
remaining 1 acre of land. The Trial Court has ignored the
commissioner's report. Therefore, the plaintiffs have preferred
R.A.No.20/2008 which came to be allowed while dismissing
R.A.No.11/2008 filed by the defendants. Therefore, it is
submitted that there is no merit in the contention taken by the
appellants and prays for dismissal of the appeals.
19. This Court, vide order dated 13.04.2010 framed the
following common substantial questions of law while admitting
the appeal;
I. Whether the Courts below were justified in
assuming that there was consensus ad idem as
between the parties insofar as the suit survey
number is concerned in proceeding on the basis
that the compromise decree, in O.S.1/1/1963
which was is respect of Sy.No.193, as covering
the suit property, which is 93/2?
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II. Whether the Courts below were justified in
proceeding to accept the contention of the
plaintiff that the decree in respect of Sy. No.193
applied in respect of the suit property in the
absence of any correction to the decree in
respect of the Sy. No. which apparently was an
error?
My answer to the above substantial questions of law is in
the 'affirmative' for the following:
REASONS
20. It is the specific contention of the plaintiffs that the
original plaintiff purchased 6 acres of land in Sy.No.93/2 from
Iramma about several years back and thereafter, he was put in
possession and enjoyment of the same. The plaintiffs also
placed reliance on Ex.D6 which is the judgment and decree
passed in O.S.No.1/1/1963 which was in respect of Sy.No.193,
measuring 6 acres in Degalmadi village. Now the dispute
between the appellants and the respondents is in respect of
the decree in O.S.No.1/1/1963 as the plaintiffs are contending
that the survey number mentioned therein as 193 was in fact
Sy.No.93. This fact was disputed by the defendants. Therefore,
if the plaintiffs are successful in proving their contention that
the survey number mentioned in Ex.D6 should have been
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Sy.No.93 and not 193, as contested by the parties to the lis,
the plaintiffs would succeed. If on the other hand, if the
defendants are successful in their contention that there was no
consensus ad idem between the parties to understand the suit
property, the plaintiff should fail.
21. It is pertinent to note that Iramma referred to by
the plaintiffs and defendant No.1 herein had admittedly filed
the suit O.S.No.47/1963 before the Trial Court seeking
cancellation of the decree in O.S.No.1/1/1963 on the ground
that the said decree was hit by fraud and misrepresentation
and the same is liable to be set aside.
22. It is also pertinent to note that the subject matter
of the said suit was not Sy.No.193 of Degalmadi village but it
was Sy.No.93 of Degalmadi village, measuring 6 acres. If in
fact, Iramma and defendant No.1 herein sought for
cancellation of the decree - Ex.D6 as it was obtained by fraud
and misrepresentation, they should have shown the property as
Sy.No.193 of Degalmadi village and not Sy.No.93 of the said
village. There is absolutely no explanation as to why Iramma
and defendant No.1 herein sought for cancellation of decree in
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respect of Sy.No.93 of Degalmadi village. This is the strong
circumstance which is in favour of the plaintiffs which supports
their contention that by mistake, survey number was shown as
Sy.No.193 instead of Sy.No.93 of Degalmadi village while filing
the suit O.S.No.1/1/1963.
23. The very fact of filing the suit O.S.No.47/1963 by
Iramma and defendant No.1 herein describing that the decree
in O.S.No.1/1/1963 was in respect of Sy.No.93 would support
the contention of the plaintiffs that there was consensus ad
idem between the parties regarding the subject matter of the
suit O.S.No.1/1/1963. When both the parties admit that the
subject matter of the suit O.S.No.1/1/1963 was not in respect
of Sy.No.193, but it was in respect of Sy.No.93 of Degalmadi
village, the defence taken by the defendants denying the
contention of the plaintiffs falls to the ground.
24. Admittedly, the Court Commissioner was appointed
to measure the suit property and to submit the report.
Accordingly, the Court Commissioner got inspected the suit
property and filed his report along with the sketch. The Court
Commissioner has specifically reported that there was no signs
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of destruction of bunds which is on the northern side of the suit
property. The Court Commissioner also noticed existence of
newly created bund in the disputed land shown in green line.
The distance between the original bund and the newly
constructed bund shown in black colour and green colour
respectively is stated to be 300 feet, which again supports the
contention of the plaintiffs regarding encroachment of 300 feet
by the defendants. It is also admitted that the defendants
have not filed any objection to the Commissioner's report.
Under such circumstances, there is nothing on record to reject
or disbelieve the same.
25. The documents relied on by the plaintiffs and the
defendants disclose that there is long history in respect of the
suit property as several litigations were fought between the
parties as narrated above. It is an admitted fact that in none
of these civil litigations, the defendants succeeded in their
contentions. The judgment and decree of the Civil Courts have
reached finality on multiple times. Under such circumstances, I
do not find any reason to form a different opinion by accepting
the contentions taken by the defendants which was never
probabilised. The defendants have failed to probabilise their
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defence that the subject matter of the suit O.S.No.1/1/1963
before the Trial Court was not in respect of Sy.No.93, but it
was in respect of Sy.No.193 and therefore, the plaintiffs cannot
claim right, title and interest over the same.
26. When admittedly Iramma and defendant No.1 filed
the suit O.S.No.47/1963 narrating the suit property as
Sy.No.93 which is the subject matter in O.S.No.1/1/1963,
seeking cancellation of the said decree as hit by fraud and
misrepresentation, the defendants cannot take advantage of
the mistake in mentioning the survey number in
O.S.No.1/1/1963 by the plaintiffs. Therefore, I do not find any
merit in the contentions taken by the defendants. On the other
hand, the materials on record are sufficient to substantiate the
contentions of the plaintiffs that there was consensus ad idem
between the parties in respect of the survey number mentioned
in the suit O.S.No.1/1/1963 averring that the suit property is
Sy.No.93 and not Sy.No.193. When there is consensus ad
idem between the parties in understanding the subject
property, the contention of the defendants that the plaintiffs
should have sought for amendment of the decree cannot be
accepted.
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27. After dismissal of the suit O.S.No.47/1963 filed by
Iramma and defendant No.1, even in all other subsequent
litigations, the defendants have failed to prove their contention
and therefore, they are not entitled for any relief in the present
appeals.
28. I have gone through the impugned judgment and
decree passed by the First Appellate Court. The Court has
taken into consideration all the materials on record and arrived
at a right conclusion. I do not find any reason to interfere with
the same.
29. In view of the above, I answer both the substantial
questions of law in the affirmative and proceed to pass the
following;
ORDER
1) The appeals are dismissed with cost.
2) The impugned common judgment and decree dated
16.11.2009 passed in R.A.No.11/2008 and
R.A.No.20/2008 by the learned Civil Judge, (Sr.Dn.)
at Chincholi, is confirmed.
3) Office is directed to draw decree accordingly.
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Registry is directed to send back the Trial Court and First
Appellate Court records along with copies of the judgment and
decree.
Sd/-
JUDGE
SWK,PN
CT-VD
