T N Chandrashekar S/O Late T ... vs Kariyappa S/O Late Amasegowda ...
2023 Latest Caselaw 6945 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 4TH DAY OF OCTOBER, 2023

                         BEFORE
      THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
     REGULAR SECOND APPEAL NO.63 OF 2009(DEC/INJ)

BETWEEN:

T.N. CHANDRASHEKAR,
S/O LATE T. NANJUNDAPPA,
AGED ABOUT 51 YEARS,
R/O HUNUSEMARADAHALLI,
DABBAGHATTA HOBLI,
TURUVEKERE TALUK-572 227,
TUMKUR DISTRICT.
                                          ...APPELLANT
(BY SRI. SHANMUKHA .G.C, ADVOCATE)
AND:

1.     KARIYAPPA
       S/O LATE AMASEGOWDA
       SINCE DEAD BY HIS LRS

       A) GANGAMMA
       W/O LATE KARIYAPPA,
       AGED ABOUT 69 YEARS,

       R1(A) DEAD HEARING BEHIND
       R1(B), (C) & (D) ARE LRS

       CAUSE TITLE AMENDED
       AS PER THE ORDER OF THIS
       HONB'LE COURT ON 17.04.2013

       B) T.K. SREENIVASA,
       S/O LATE KARIYAPPA,
       AGED ABOUT 48 YEARS,

       C) T.K. THIMMEGOWDA,
       S/O LATE KARIYAPPA,
       AGED ABOUT 45 YEARS
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     D) T.K. SUJATHA
     D/O LATE KARIYAPPA,
     AGED ABOUT 42 YEARS

     1(A) TO (D) ARE R/O
     SUBRAMANYA EXTENSION,
     TURUVEKERE-572 227,
     TUMKUR DISTRICT.

2.   PARVATHAMMA,
     W/O K.K. SHIVAPPA,
     D/O LATE AMASEGOWDA,
     AGED ABOUT 71 YEARS,
     KANATHUR, DABBAGHATTA HOBLI,
     TURUVEKERE TALUK,
     TUMKUR DISTRICT-572 227.
                                           ...RESPONDENTS
(BY SRI. S.N. BHAT, ADVOCATE FOR R1(B-C),
    R1(D) IS SERVED, R2 IS SERVED,
    R1(B,C&D) ARE TREATED AS LR'S OF R1(A))

     THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD: 11.9.2008 PASSED IN
R.A.NO.253/2006 ON THE FILE FO THE CIVIL JUDGE (SR.DN.) &
JMFC, TURUVEKERE, DISMISSING THE APPEAL AND FILED
AGAINST THE JUDGMENT AND DECREE DTD: 17.02.2004
PASSED IN OS.98/1992 ON THE FILE OF THE CIVIL JUDGE
(JR.DN.) & JMFC, TURUVEKERE.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 14.09.2023, COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                       JUDGMENT

This regular second appeal is filed under Section 100

of C.P.C. by the plaintiff challenging the judgment and

decree passed in OS.No.98/1992 on the file of Civil Judge

(Junior Division) and JMFC Turuvekere and confirmed in

RA.No.253/2006 by the Civil Judge (Senior Division)

Turuvekere .

2. For the sake of convenience the parties are here in

are referred with the original ranks occupied by them

before the trial Court.

3. The brief factual matrix leading to the case are as

under:

The plaintiff has filed a suit for declaration that the

area marked in letter MNOP belongs to him and mandatory

injunction is sought for the removal of the construction in

the area marked by letter MNOP and for delivery of the said

area. Further, the plaintiff has also sought a declaration

against the defendant that defendant may be consequently

restrained from permanent injunction from encroaching the

suit property. The suit schedule property is shown to be a

portion of MNOP marked in rough sketch in assessment

No.1061(SY No.1132) situated at 3rd division Turuvekere,

measuring East-West 30 ft and North-South 14 ft with

boundaries mentioned in the schedule. It is the contention

of the plaintiff that the land bearing Sy No.212/3 measuring

1 acre 7 guntas, situated in Turuvekere, originally belongs

to one Thimmegowda the propositus of the family consisting

of Kariyannagowda, second son Thimmanayakappa alias

Papanna, third son Huchappa, fourth son Amasegowda i.e.,

the defendant and last son Nanjundaiah. It is asserted that

all the sons of the propositus except the defendant are dead

and later the land has been partitioned amongst the sons

and land bearing Sy.No.212/3A measuring 09 guntas has

been allotted to the second son Thimmanayakappa and

remaining land continued with the defendant and the father

of the plaintiff Nanjundaiah, who continued the joint family

status till 1967. It is asserted that there was a partition

between the defendant and the father of the plaintiff under

the registered partition deed dated 20.11.1967 and the

remaining land in Sy.No.212/3A, which is renumbered as

648 to the Northern portion of the Thimmanayakappa East-

West 147 ft, North-South 42 ft marked by ABCD was

allotted to plaintiff's father and towards North of the

land, this land East-West 147 ft and South-North 42 ft was

allotted to the defendant, which is marked by CDEF in the

sketch. It is asserted that remaining portion of 10 guntas in

the Northern Tip which is sub-numbered as Sy.No.212/3A.

It is asserted that in the Western portion of this property,

there exists 3 built houses along with front portion vacant

site allotted to Thimmanayakappa. It is asserted that

towards Eastern side there exists a 12 ft Road and the

remaining land to the Eastern side of this road has two bits

of land measuring East-West 68 ft & North-South 31 ft

respectively was partitioned amongst plaintiff's father and

defendant and EFGH portion was fallen to the share of

Nanjundaiah and GHIJ portion was fallen to the share of the

defendant. It is asserted that since then, the defendant and

father of the plaintiff has enjoyed the properties separately.

It is asserted that the defendant being an influential

person, got converted the land of plaintiff's father to

1061(A) to (F) and to that of the defendant to 1061 to

1061/5. Later, the defendant obtained a license to construct

a dwelling house in his site, bearing assessment 1061/1

measuring East-West 30 ft and North-South 42 ft. However,

he encroached the portion shown by letters MNOP,

measuring feet 30 ft East-West & 14 ft South-North and

constructed the building in spite of the protest by the

plaintiff. It is asserted that the said construction is against

the license & bye-laws and hence, the plaintiff asserts that

he is constrained to file the suit. The plaintiff has valued

under Sections 24(d) and 26(c) of Karnataka Court fees and

suits Valuation Act and paid Court fee thereon.

4. The defendant has appeared in pursuance of the

suit summons and disputed the claim made by the plaintiff.

The defendant has admitted the relationship between the

parties and further admitted that Sy.No.212/3 belongs to

Thimmegowda and he further admitted partition dated

20.11.1967, but he denied that the properties were

allotted as per the sketch prepared by the plaintiff and he

encroached on MNOP area. He disputed the other aspects

and sought for dismissal of the suit.

5. On the basis of these pleadings, following nine

issues have been framed by the trial Court:

1. Whether the plaintiff proves that he is the absolute owner of the suit property shown by letters MNOP in the hand-sketch as alleged?

2. Whether the plaintiff proves that the defendant has encroached upon the suit property and illegally constructed a building over it in violation of license issued as alleged?

3. Whether the suit is barred by limitation?

4. Whether plaintiff is entitle to the relief of declaration as sought for?

5. Whether plaintiff is entitle to the relief of mandatory injunction as prayed against defendant?

6. Whether plaintiff is entitle to the possession of suit property?

7. Whether plaintiff is entitle for the relief of Permanent Injunction?

8. Whether plaintiff is entitle for damages as prayed?

9. To what relief if any, the parties are entitle?

6. The plaintiff was got examined himself as PW1

and he placed reliance on five documents marked at Ex.P1

to Ex.P5. The power of attorney holder of the defendant

was examined as DW1 and Ex.D1 to Ex.D13 were also

marked. The Court Commissioner was examined as

CW1 and Ex.C1 to Ex.C4 were marked

7. The learned Civil Judge after hearing the

arguments, answered all the issues in the negative and

dismissed the suit.

8. Against this judgment and decree of dismissal,

the plaintiff has approached the learned senior civil judge,

Turuvekere in RA.No.253/2006. The learned Senior Civil

Judge after re-appreciating the oral and documentary

evidence, dismissed the appeal by confirming the judgment

and decree of the trial Court.

9. Being aggrieved by these concurrent findings

plaintiff is before this court.

10. Heard the arguments advanced by learned

counsel for the appellant and learned counsel for the

respondents. Perused the records.

11. The learned counsel for the appellant would

contend that the plaintiff and defendants are cousins and

the defendant has encroached the property of the plaintiff

and though there is no dispute regarding the title of

respective properties, the license discloses that permission

was granted in the extent of 30x42 ft as per Ex.P4, but it

was manipulated as 30x52 ft and there are material

alterations in Ex.D4. He would contend that the evidence

clearly establish the encroachment and sought for

decreeing the suit and he would assert that both the courts

have failed to appreciate the oral and documentary

evidence in this regard.

12. Per contra, the learned Counsel for the

respondent would contend that both the Courts below have

appreciated the oral and documentary evidence in detail

and especially in para No.9 the trial court has elaborately

discussed the issue and para Nos. 18 & 20 of the appellate

Court clearly establish that the appellate Court has also

elaborately discussed the issue and no illegality or infirmity

is found in the judgment and decree. He would contend that

though the Commissioner has submitted the report, the

cross- examination of CW1 discloses that he did not answer

to the memo of instructions issued and did not give any

answers to the questions of memo of instructions, which

discloses that he has not followed any procedure and it

cannot be accepted. Hence, he contends that both the

courts below have properly appreciated the oral and

documentary evidence and it does not call for any

interference and sought for dismissal of the appeal

13. This Court while admitting the appeal has framed

following substantial questions of law:

1) Whether the courts below are justified in dismissing the suit ignoring the recital and wrongly interpreting Ex.P1-registered deed of partition dated 20.11.1967 and other co-related records regarding construction of the property in question?

2) Are the judgments of the trial Court and appellate court sustainable as it appears the courts below have not taken into consideration the commissioner's report which has been given statutory credence by the provision of Order XXVI Rule 10(2), C.P.C.?

14. As per the contention of the plaintiff, 30 ft East-

West and 14 ft North-South in property assessment No.

1061/A was encroached. It is also evident that the

assessment No.1061/1 belongs to the defendant, wherein

he has obtained permission for construction and plaintiff

asserts that while construction he has encroached. If this

version is taken into consideration, it is evident that 1061/A

& 1061/1 are adjoining each other. But the evidence lead

by the plaintiff clearly discloses that he has not produced

any material evidence to show that 1061/A and 1061/1 are

adjoining to each other. Unless the plaintiff is able to

establish that they are adjoining to each other, the question

of encroachment does not arise at all.

15. Admittedly, 1061/1 belongs to the defendant and

defendant has taken permission for construction. Tax was

also assessed as per Ex.D9 and in Ex.D9 assessment, the

measurement is shown as 30x52 ft. Even Ex.D2 the layout

plan disclose that it is measuring 30x52 ft. Further, on the

Northern side of the said land 10 ft road is shown. As pert

Ex.D2 between the property of the plaintiff and defendant,

there is a 10ft road. If in between these properties there is

a 10 ft Road, then the question of defendant encroaching

the property of plaintiff does not arise at all. Though the

learned counsel for the appellant has invited the attention

to Ex.D4 regarding the alleged correction, but the same is

also found place in Ex.D2 & Ex.D9 and the assessment is in

respect of Ex.D9 and hence, said arguments holds no

water.

16. Apart from that, the plaintiff has not filed any

suit for possession and he seeking relief of mandatory

injunction. Indirectly, the plaintiff is seeking possession of

encroached property and when the construction was made,

why the plaintiff kept mum all along is not at all

forthcoming. Though the plaintiff tried to rely on the

evidence of CW1, but the cross-examination reveals that

the Court Commissioner did not answer to the questions

submitted by learned Counsel for the defendant in his

memo of instructions. Why he is unable to explain as why

he did not follow memo of instructions and he did not

disclose the properties by property number, but he refers

the property with a survey number. Admittedly, properties

are now given assessment number and the survey sketch

clearly discloses that it is a replica of the sketch produced

by the plaintiff. Hence, it is evident that the surveyor has

not carried out the survey in proper way and it appears that

he has conceded to the pressure. Admittedly, the surveyor

is relative of both plaintiff and defendant and under such

circumstances, he should have avoided the survey. It is

submitted on behalf of the appellant/plaintiff that a fresh

surveyor may be appointed, but a lot of water has flown

and plaintiff is seeking a mandatory injunction and he ought

to have sought suit for possession as admittedly,

construction was completed before filing the suit itself. He

did not raise any objection while construction was going on

and he did not file any suit immediately. All these facts and

circumstances clearly disclose that the plaintiff has not

approached the court with clean hands.

17. The partition deed-Ex.P1 does not establish the

assertions made by the plaintiff and it will not assist in

proving the encroachment and possession as alleged with

specific reference in a sketch. Hence, the question of

interpreting Ex.P1 wrongly by both the courts does not

arise at all. Both the courts below have rightly ignored the

Commission Report in view of these irregularities. Hence,

both substantial questions are answered in affirmative in

favour of the respondent and as such, appeal being devoid

of any merits does not survive for consideration and needs

to be dismissed. Hence, I proceed to pass the following:

ORDER

1. The appeal stands dismissed.

No order as to costs.

Sd/-

JUDGE

DS