Karnataka High Court

Sri Lakshmana vs Sri. L. Narayana on 4 April, 2024

Author: K.Natarajan

Bench: K.Natarajan

                          1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 4TH DAY OF APRIL, 2024

                     BEFORE

     THE HON'BLE MR JUSTICE K.NATARAJAN

     REGULAR FIRST APPEAL NO.518 OF 2017

BETWEEN:
   SRI. LAKSHMANA
   S/O SRI. MUNIVEERAPPA,
   AGED ABOUT 63 YEARS,
   R/AT NO.3/2A,
   JARAGANAHALLI, NOW 6TH PHASE,
   J.P. NAGAR, 6TH CROSS,
   BENGLAURU SOUTH - 560 078.
                                      ...APPELLANT
(BY SRI. N.R.NAIK, ADVOCATE)
AND:
1 . SRI. L. NARAYANA
    S/O LATE LOLAPPA,
    AGED ABOIUT 57 YEARS,

2.   SRI. MANJUNATHA
     S/O SRI. MUTHAPPA
     AGED ABOUT 29 YEARS,

     BOTH ARE R/AT
     JARAGANAHALLI, NOW 6TH PHASE, J.P. NAGAR,
     6TH CROSS, BENGALURU SOUTH.
                                      ...RESPONDENTS
(BY SRI. CHANDRASHEKAR C. CHANASPUR, ADVOCATE FOR
    R3, R2 IS SERVED & UNREPRESENTED;
    VIDE ORDER DATED 25/11/2021, R2 & R3 ARE
    TREATED AS LRS OF DECEASED R1)
                                             2




         THIS REGULAR FIRST APPEAL IS       FILED UNDER
    SECTION 96 OF CPC., AGAINST THE JUDGMENT AND
    DECREE DATED 29.01.2016 PASSED IN OS.NO.4747/2007
    ON THE FILE OF THE II ADDL. CITY CIVIL AND SESSIONS
    JUDGE, BENGALURU., PARTLY DECREEING THE SUIT FOR
    DECLARATION AND POSSESSION.


         THIS REGULAR FIRST APPEAL HAVING BEEN HEARD
    AND RESERVED FOR ORDERS ON 29.02.2024 THIS DAY,
    THE COURT PRONOUNCED THE FOLLOWING:


RESERVED FOR ORDERS ON: 29.02.2024
PRONOUNCED ON         : 04.04.2024



                                     JUDGMENT

This appeal is filed by the appellant under Section 96

of C.P.C, for setting aside the judgment and decree dated

29.1.2016 passed in O.S.No.4747/2007 passed by the III

Additional City Civil and Sessions Judge, (CCH No.25)

Bangalore, and to grant relief sought by the appellant in his

counter claim against the respondents in respect of

schedule 'A' property.

2. The appellant was the defendant and the

respondents are the plaintiffs before the Trial Court. The

ranks of the parties are retained for the sake of

convenience.

3. Heard the arguments of learned counsel for the

appellant and respondents.

4. The case of the plaintiff before the Trial Court is

that they are the propositors, one Lolappa, the husband of

the deceased plaintiff No.1 and father of the plaintiff Nos.2

and 3 and grand father of the plaintiff No.4, had purchased

19 guntas of land in Sy.No.2/1 of Jaraganahalli village, vide

sale deed dated 20.02.1968 from one Annaiah Uruf

Perumaiah and got changed the RTCs and revenue records

in his name and enjoyed the property during his lifetime.

The said Lolappa had constructed some houses and was

residing with his family and died in the year 1999, by

leaving behind the plaintiffs. It is further alleged that he

had decided to give some portion of his property in his

favour to his grand son (plaintiff No.4), and hence plaintiff

No.4 was made as party. The plaintiffs have left a private

passage measuring 18½ feet in length towards northern

side of the said Sy.No.2/1. After that passage, they possess

another 5 feet width of land and they have grown coconut

trees, all along the edge of the private passage. It is

further alleged, in the north-west corner of the said land in

Sy.No.2/1, the land in Sy.No.3/2 measuring 4 guntas,

belonging to one Muniveerappa, the father of the defendant.

The said Muniveerappa got the land under partition dated

12.9.1966. In the total extent of 4 guntas available in

Sy.No.3/2, the defendant is in possession of house property

measuring east-west 49 feet and north-south 23 feet and

towards east of the house, he is possessing the vacant land

measuring east-west 41 feet and north-south 17 feet.

Except the said property, the defendant has no other

property towards north in Sy.No.2/1. Such being the case,

the defendant has illegally encroached an area of measuring

2 feet north-south 49 feet, east-west towards northern

portion of the said private passage and he has put up

construction raising the pillars and the same was mentioned

as Schedule 'A' property in the plaint. The plaintiffs have

constructed a shed to the south of the vacant land of the

defendant, measuring 7 feet north-south and 16 feet east-

west and they are using it for storing the materials. It is

morefully referred as 'B' schedule property in the plaint. It

is further alleged, that defendant has no manner of right,

title or interest over 'A' or 'B' schedule property. Even then,

he is questioning the title of the property. Therefore,

plaintiffs seek relief to declare that they are absolute owners

of 'A' schedule property and mandatory injunction to

demolish the illegal and unauthorized construction put up in

the 'A' schedule property, for mandatory injunction to

demolish illegal and unauthorised construction put up in 'A'

schedule property and for delivery of possession of it, as

well as issue permanent injunction against the defendant

from interfering from the peaceful possession and

enjoyment of the 'B' schedule property.

5. The defendant appeared and filed written

statement in counter claim contending that he is absolute

owner of 4 guntas of land in Sy.No.3/2 measuring east-west

170 feet and north-south 25 feet, out of which he has sold

20 feet x 55 feet to the plaintiff no.2 and another piece of

land 20 feet x 30 feet to the plaintiff No.3, under separate

sale deeds on 16.4.2001. Towards southern side of the said

two pieces of land alienated to plaintiff Nos.2 and 3, there is

a road which is known as 6th cross road, formed by CMC,

Bommanahalli now it is part of BBMP. The defendant is

possessing remaining extent of land measuring east-west 85

feet, north-south 25 feet and also in possession of 5 feet

north-south and 85 feet east-west, towards southern side of

the sites sold to the plaintiff Nos.2 and 3 and it is written

statement 'A' schedule property. That plaintiff have

constructed a shed by encroaching north-south 2 feet and

east-west 16 feet towards south of the property retained by

the defendant. Even on the northern side of the said road,

6th cross road, the plaintiffs have encroached nearly 3 feet

north-south and 16 feet east-west so as to obstruct smooth

use of the said passage. It is written statement 'B' schedule

property. As per the registered Will dated 18.1.1989

executed by Lolappa some portion were given to plaintiff

Nos.2 and 3 in Sy.No.2/1 which is situated after 6th cross,

CMC road. These plaintiffs have encroached property of the

defendant beyond cross road. The plaintiff Nos.1 and 4 are

not necessary parties and unnecessarily they have been

added. Therefore, while resisting the suit, the defendant

also seeks relief by way of counter claim for removal of

encroachments in written statement of 'A' and 'B' schedule

properties.

6. The plaintiffs in reply to the counter claim filed

rejoinder denying the allegations contending that in order to

sidetrack the attention of the court, this false claim is made

by the defendant, it is hopelessly barred by time. They

have constructed the shed and their buildings several

decades back. If at all the defendant was possessing any

land to the north of the passage and to the south of the site

sold to the plaintiff Nos.2 and 3 and also property to the

south of his retained portion, he should not have kept quite

all these days. Infact, there is no public road as such,

referred in the written statement cum counter claim and the

said road is left by the plaintiffs for their private use. The

plaintiffs have not made any encroachment on any portion

of the defendant's land. It is further denied that the

defendant was in possession and enjoyment of remaining

extent of property measuring 85 feet x 25 feet to the west

of the sites sold by him. The very existence of written

statement 'A' and 'B' schedule properties, are denied. The

defendant is illegally claiming the property measuring 1594

sq.ft in excess of the actual possession and ownership.

Therefore, it is contended that there is no cause of action for

the counter claim and hence prayed for dismissing the

counter claim.

7. Based upon the above pleadings, the trial court

framed the issues as under;

"ISSUES

1. Whether plaintiffs prove that they are the absolute owners of the plaint schedule property, as alleged?

2. Whether plaintiffs prove that defendant has illegally encroached an area measuring 2 feet x 49 feet. towards northern side of Sy.No.2/1 adjacent to

the private passage of them, as contended?

3. Whether defendant proves that he is an absolute owner of 4 guntas of land in sy.no.2/3, which measures east to west 170 ft. North to South: 35 feet and out of which 20 x 50 feet sold to the 2nd plaintiff and 20 x 30 ft. sold to 3rd plaintiff?

4. Whether defendant proves that both plaintiffs have encroached on the 5 ft. on southern side of the vacant property and constructed building without authority of law?

5. Whether defendant proves that he is the owner of the schedule A and B shown in the written statement in para-4, as contended?

6. Whether schedule mentioned by the plaintiff is proper and correct?

7. Whether plaintiffs are entitled to the relief's sought for?

8. Whether defendant is entitled to the relief of mandatory injunction by way of counterclaim?

9. What Order or Decree?"

8. After framing of issues, enough time was granted

to the plaintiff, but plaintiff not lead any evidence. Hence,

suit of the plaintiff was dismissed for non-prosecution.

However, subsequently the case was reopened to consider

the counter claim of the defendant. Later, to prove the

case, defendant was examined as DW1 and got marked 29

documents, there is no rebuttal evidence by the defendant.

After hearing the defendant, the trial court answered the

issue No.3 in the negative, issue No.4 in the affirmative,

issue Nos.5 and 8 in the partly affirmative and finally

allowed the counter claim, in part, by granting decree,

directing the plaintiff to remove the encroachment in 'B'

schedule written statement property and rejecting the

counter claim in respect of 'A' schedule written statement

property which is under challenge.

9. Learned counsel appearing for the

appellant/defendant has contended inspite of dismissing the

suit of the plaintiff for non-prosecution and no evidence was

lead by the plaintiff, the trial court dismissed the counter

claim and disbelieved the documents. In the 'B' schedule

property there was a shed which was already removed. The

plaintiff had put up the construction by taking advantage of

the vacant space by encroaching 5 feet x 85 feet. The

sketch produced by the defendant is not properly

considered. The trial court not properly appreciated the

evidence on record. Therefore, prayed for setting aside the

same and decreed the counter claim.

10. Per contra learned counsel for the respondent

supported the judgment of the trial court and prayed for

dismissing the appeal.

11. Having heard the arguments perused the records,

the point that arises for consideration is,

(1) Whether the defendant proves plaintiff encroached 5 feet x 85 feet on the southern side of the vacant property and constructed building?;

(2) Whether the defendant is the owner of the schedule 'A' and B of the schedule written statement property?; and

(3) Whether judgment of the trial court dismissing the counter claim calls for interference?

12. Having heard the arguments and perused the

records. On perusal of the records, especially evidence of

the DW1, that his contention in the written statement as

well as counter claim that a portion of the properties were

sold by the defendant in favour of the plaintiff Nos.2 and 3

vide sale deed dated 16.4.2001 measuring 55 feet x 20 feet

and 30 feet x 20 feet respectively and retained 5 feet x 25

feet., on the southern side. But it is alleged that the

plaintiffs have put up construction by encroaching that 5

feet x 85 feet, which belongs to the defendant's 'A' schedule

property and the plaintiff also put up a shed by encroaching

the road is about 2 feet x 16 feet i.e., 'B' schedule property

in written statement. In the cross examination, it was

admitted by the defendant that the property was sold to the

plaintiff Nos.2 and 3, under sale deed, is also case of the

both sides. The properties were sold by the defendant in

favour of the plaintiffs measuring 55 feet x 20 feet

and 30 feet x 20 feet, but the contention of the defendant is

that, on the southern side, there is a road and in between

the road and property sold to the plaintiff there was 5 feet x

85 feet retained by the defendant. In the cross

examination, the plaintiff's counsel suggested to the

defendant that, in between both the property of the

plaintiffs and defendant there is public road. The defendant

property is in Sy.No.3/2 and presently numbered as

Sy.No.3/2 and the plaintiff's property is Sy.No.2/1 and in

between there is a road. The admission of the defendant

corroborates with the sale deed executed by the defendant,

in favour of the plaintiff Nos.2 and 3. The Ex.D28 is the sale

deed executed in Sy.No.3/2 measuring 55 feet x 20 feet to

the plaintiff No.2 and the boundary mentioned therein is as

under:-

East by : L.Narayan's property Site No.3,

West by : Laxman's property Site No.1

North by : Hemanna's property

South by : Road

13. On perusal of this boundary, which clearly reveals

that that there is no property of 5 feet x 55 feet retained by

the defendant on the southern side of the land, sold to the

plaintiff No.2 and if it is retained, there must be 5 feet x 55

feet, should appear in between the road and the property of

the plaintiff, which was sold by the defendant, but there is

no such reference available in the boundary that the

defendant retained any property measuring 5 feet x 55 feet.

14. Likewise, another sale deed executed by the

defendant in favour of plaintiff No.3, as per Ex.D29, which is

measuring east to west 30 feet and north to south 20 feet,

measuring 600 feet and bounded by

East by : Siddegowda's property

West by : Muthaiah's property

North by : Hemanna's property

South by : Road

Even on perusal of this boundary there is no property

measuring 5 feet x 30 feet retained by the defendant, on

the southern side of the property sold to the plaintiff No.3,

which comes to the northern side of the road. Even if the

contention of the defendant is acceptable, if the property

sold to the defendant Nos.2 and 3 on the northern side total

measures upto 85 feet and if retained 5 feet on the southern

side, both plaintiffs will have no access to the road, which is

situated on the southern side. The lands will be locked and

there is no access for the plaintiff for coming out of the site

towards the road. Therefore, when any property is retained

5 feet, on the southern side of both plaintiffs property

purchased from the defendant, the question of purchasing

the property by the plaintiff Nos.2 and 3 does not arises,

since there is no approach road on the southern side and no

prudent man will purchase the property, which has no

ingress and egress to their property. The boundary and the

boundary prevails over the measurement and there is no

dispute in respect of the boundaries. Such being the case,

the contention of the defendant/appellant that he has

retained 5 feet x 85 feet on the southern side of the

property sold the plaintiff Nos.2 and 3 more fully described

in schedule 'A' property in the written statement cannot be

acceptable.

15. That apart, the properties were purchased in the

year 2001 and the plaintiffs have put up construction long

back. If at all the defendant retained any property on the

southern side, he could have objected while putting up the

construction or he could have approached the court for

injunction, but no such attempt was made, which clearly

reveals the defendant have full knowledge, that he has not

retained any property on the southern side. Even

otherwise, the question of retaining 5 feet on the southern

side will not arises. If it is retained, the plaintiff will have no

ingress and egress to the road on the southern side.

Therefore, the own documents of the defendant himself

makes clear that, no such property retained by him, which

was encroached by the plaintiff. Thereby, the contention of

the defendant cannot be acceptable. The trial court by

considering the evidence on record, rightly answered the

issue No.3, against the defendant in the negative.

16. As regards to the 'B' schedule property, in the

written statement, there was encroachment of 2 feet x 49

feet by the plaintiff, which obstructed the road and

prevented passage to them and the same was allowed by

the trial court and directed the plaintiff to remove the 'B'

schedule written statement property, within 2 months and it