Karnataka High Court

Sri T Nagappaiah Navada vs Sri Venkatappa on 1 February, 2024

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                                                        RFA No. 1375 of 2008
                                                    C/W RFA No. 1376 of 2008



                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 1ST DAY OF FEBRUARY, 2024

                                         BEFORE
                            THE HON'BLE MR JUSTICE C M JOSHI
                       REGULAR FIRST APPEAL NO. 1375 OF 2008 (DEC)
                                              C/W
                       REGULAR FIRST APPEAL NO. 1376 OF 2008 (INJ)


                IN R.F.A NO. 1375/2008
                BETWEEN:

                SRI T NAGAPPAIAH NAVADA,
                S/O LATE GANAPPAIAH NAVAD,
                AGED ABOUT 75 YEARS,
                R/AT BYATARAYANAPURA,
                YELAHANKA HOBLI,
                BANGALORE NORTH TALUK.
                                                                 ...APPELLANT
                (BY SRI K.S NAGARAJA RAO, ADVOCATE)

                AND:
Digitally signed
by ANNAPURNA
G
                 1.    SRI VENKATAPPA,
Location: High
Court of               S/O LATE CHINNAIAH,
Karnataka              AGED ABOUT 70 YEARS.

                2.     SMT. GANGALAKSHMAMMA,
                       W/O VENKATAPPA,
                       AGED MAJOR.

                3.     SRI JAYARAM,
                       S/O VENKATAPPA,
                       AGED MAJOR.
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                                     RFA No. 1375 of 2008
                                 C/W RFA No. 1376 of 2008



4.   SRI RAMAKRISHNA,
     S/O SRI VENKATAPPA,
     AGED MAJOR.

     ALL ARE R/AT NORTHERN PORTION
     OF THE PROPERTY BEARING NO.
     118/35, 2ND MAIN ROAD,
     INDUSTRIAL TOWN, RAJAJINAGAR,
     BANGALORE-560 044.
                                           ...RESPONDENTS
(BY SRI T J MARIYAPPA FOR R1, ADVOCATE)

     THIS RFA IS FILED U/S 96 R/W ORDER 41 RULE 1 OF
CPC AGAINST THE JUDGMENT AND DECREE DATED 21.10.2008
PASSED IN OS.NO.2504/1999 ON THE FILE OF THE XIV
ADDL.CITY   CIVIL    JUDGE,   BANGALORE,   CCH.NO.28,
DISMISSING THE SUIT FOR DECLRATION & POSSESSION.


IN R.F.A NO 1376 OF 2008

BETWEEN:

SRI T NAGAPPAIAH NAVADA,
S/O LATE GANAPPAIAH NAVADA,
AGED ABOUT 75 YEARS,
R/AT BYATARAYANAPURA,
YELAHANKA HOBLIBANGALORE NORTH TALUK.
                                              ...APPELLANT
(BY SRI K.S NAGARAJA RAO, ADVOCATE)

AND:

1 . SRI VENKATAPPA,
    S/O LATE CHINNAIAH,
    AGED ABOUT 70 YEARS.

2 . SMT. GANGALAKSHMAMMA,
    W/O VENKATAPPA,
    AGED MAJOR.

3 . SRI JAYARAM
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                                          NC: 2024:KHC:4507
                                       RFA No. 1375 of 2008
                                   C/W RFA No. 1376 of 2008




    S/O VENKATAPPA,
    AGED MAJOR.

4 . SRI RAMAKRISHNA,
    S/O SRI VENKATAPPA,
    AGED MAJOR.
    ALL ARE R/AT NORTHERN PORTION
    OF THE PROPERTY BEARING NO.
    118/35, 2ND MAIN RAOD,
    INDUSTRIAL TOWN, RAJAJINAGAR,
    BANGALORE- 560 044.
                                            ...RESPONDENTS
(BY SRI T J MARIYAPPA, ADVOCATE FOR R1;
    R2 SERVED AND UNREPRESENTED)

     THIS RFA IS FILED U/S 96 R/W ORDER 41 RULE 1 OF
CPC AGAINST THE JUDGEMENT AND DECREE DATED
21.10.2008 PASSED IN OS.NO.1059/1999 ON THE FILE OF THE
XIV ADDL.CITY CIVIL JUDGE, BANGALORE, CCH.NO.28,
DISMISSING THE SUIT FOR PERPETUAL INJUNCTION.

     THESE APPEALS COMING ON FOR DICTATING JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

Being aggrieved by the common judgment and

decree in OS No.2504/1999 and OS No.1059/1999 passed

by the learned XIV Additional City Civil Judge, Bangalore,

(CCH No.28) dated 21-10-2009, the plaintiff in both the

suits is before this Court in appeals.

2. OS No.2504/1999 is a suit for declaration of

title and possession and OS No.1059/1999 is for injunction

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simplicitor. Therefore, the facts as narrated in OS

No.2504/1999 would be relevant and will have greater

scope.

3. The brief facts as contended by the plaintiff in

OS No.2504/1999 are as below:

The suit schedule 'A' property is described to be

property measuring 62 ft. East-West on the northern side

and on southern side 64 1/2 ft; and North- South 40 ft;

situated in CTS No.2645 and site No.118/35 at 2nd Main

Road, Industrial Town, Rajajinagar, Bangalore-44. The suit

schedule 'B' property is described as a portion of suit

schedule 'A' property having Asbestos sheet roofed shed

measuring 18 ft. on the northern side of 'A' schedule

property.

4. The plaintiff contended that he is the absolute

owner of the 'A' schedule property since he purchased the

same under the registered sale deed in the year 1966

from its previous owner. Later, suit 'A' schedule property

was included in Bangalore City Corporation limits and

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thereafter, there was assessment of municipal taxes and

the plaintiff/appellant has paid the taxes and betterment

charges. Earlier, the suit schedule property was part of

Jedarahalli village and later it became part of the

Bangalore City Corporation. Simultaneously, the City

Survey Authorities have also held an enquiry and have

given City Survey Number and have also prepared survey

sketch. It is contended that the plaintiff is doing business

in the name and style as 'Balaji Screen Printers' and the

suit schedule 'B' property is the portion of the same. It is

contended that the defendants are in permissive

possession of 'B' schedule property and in fact, the plaintiff

had allowed the defendants to lookafter the entire suit 'A'

schedule property. The defendants do not have any right,

title or interest over the same and the plaintiff says that

he had inducted certain tenants in 'A' schedule property

and they have been evicted from the same. It is

contended that the registered sale deed executed in favour

of the plaintiff mention the measurement of the suit

schedule property to be "30 ft. East-West and 40 ft. North-

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South", but it had clearly mentioned the boundaries. The

plaintiff aver that the boundaries prevail over the extent of

area mentioned in the sale deed and therefore, the entire

suit schedule 'A' property is about 62 ft. East-West was

the subject matter of the sale in favour the plaintiff. It is

contended that the enquiry was held by the City Survey

Authorities and after holding such enquiry, the entire suit

schedule property was entered in the name of the plaintiff.

It is contended that the defendants denied the title of the

plaintiff over the suit schedule property and therefore,

there is cause of action.

appeared through their counsel and filed written

statement. They contended that the address of the

defendants is 'No.118, 2nd Main road, West of Chord

Road, Industrial Town, Rajajinagar, Bangalore'. But the

contention of the plaintiff is that, he is the absolute owner

of suit schedule 'A' property which is situated somewhere

else. The defendants denied that the plaintiff had

purchased the suit schedule property under the registered

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sale deed in the year 1966 from its previous owner and

they denied that City Survey had conducted an enquiry

and had recognized the ownership of the plaintiff. They

also denied that the defendants are in permissive

possession and enjoyment of the suit schedule property.

6. Per contra, they asserted that the owner of the

property was one Muniyappa and he had entered into a

sale agreement with defendant No.1 in January 1962 and

had agreed to sell the same to the defendants for

Rs.5,000/-. The entire sale consideration was paid by

defendant No.1 and the sale deed had to be executed

within a year. The extent of the property was 62 ft. x 42

ft. approximately and thereafter, Muniyappa left the place

and his whereabouts were not known and therefore, the

registered sale deed could not be executed. However,

defendants continued in possession and enjoyment of the

suit schedule property and had constructed asbestos sheet

roofed shed in the same. It is contended that in the year

1972, BDA had acquired the lands of Jedarahali village for

the purpose of formation of residential lay out as well as

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industrial layout. The property of the defendants is in

industrial layout and after forming of layout, the property

was given Number "118, situated at II Main road". It is

contended that the suit property is bound by: 'site No.124

on the East, 2nd Main road on the West, Industrial site

No.117 on the North and Industrial site No.116 on the

South'. It is contended that the property alleged to have

been purchased by the plaintiff is situated at '20th Main

Road, 5th Block, Rajajinagar, Bangalore' and it is totally

different and therefore, the suit of the plaintiff is liable to

be dismissed.

7. In OS No.1059/1999, exactly similar

contentions were taken by the plaintiff as well as by the

defendants and the prayer was only for injunction

simplicitor.

8. On the basis of the above pleadings, the trial

Court has framed the following issues in both the suits;

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(1) Does The plaintiff prove his title to 'A' schedule property with the boundaries and measurements specified?

(2) Whether the property purchased by the plaintiff and the 'A' Schedule property are different having no nexus to each other?

(3) Does the plaintiff prove that the 1st defendant has been in permissive possession of the 'B' schedule property under him?

(4) Does the 1st defendant prove to be in continuous possession of the 'A' schedule property for over 30 years with the boundaries as described at para 16 of the written statement?

(5) Whether the suit is barred by limitation?

(6) Whether the valuation and C.F. paid are insufficient?

(7) Whether the plaintiff had no cause of action?

(8) What order or decree?

(1) Whether the plaintiff proves that he has been in lawful possession over the suit schedule property?

(2) Whether the plaintiff further proves any interference by the defendant to his possession over the suit schedule property?

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(3) Whether the defendant proves that mere suit for permanent injunction is not maintainable?

(4) Whether plaintiff is entitled to the suit remedies?

(5) What order or decree?"

9. Common evidence was let-in after clubbing both

the suits. The plaintiff was examined as PW1 and Exhibits

P1 to P19 were marked. Defendants did not enter the

witness box and no documents were marked on their

behalf. However, they cross- examined PW.1.

10. After hearing the arguments by both the sides,

the trial Court answered the issues in both the suits as

below:

Issue No.1: No Issue No.2: Yes Issue No.3: No Issue No.4: No Issue No.5: No Issue No.6: Yes Issue No.7: Yes Issue No.8: As per final order

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Issue No.1: No Issue No.2: No Issue No.3: No Issue No.4: No Issue No.5: As per final order

Ultimately, by the impugned common judgment and

decree, the trial Court dismissed both the suits. Being

aggrieved by the said judgment and decree, the plaintiff in

both the suits is before this Court in these appeals.

11. On issuance of notice, respondent No.1

appeared through his counsel and respondent Nos. 2 to 4

did not appear despite service of notice.

12. Learned counsel for respondent No.1 did not

appear when the matter was taken up for final hearing.

As such, the arguments by learned counsel for the

appellant alone was heard.

13. After having heard the learned counsel for the

appellant/plaintiff, the points that arise for consideration

are:

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(i) Whether the trial Court is justified in holding

that the suit schedule property described in the

plaint is entirely different from the property

described in the sale deed at Ex.P1.?

(ii) Whether the trial Court is justified in disbelieving

the revenue entries as well as the City Survey entries

where the extent of the property is mentioned?

(iii) Whether any interference is required in the

impugned judgment of the trial Court?

14. Learned counsel appearing for the appellant

submitted that the trial Court has wrongly construed the

serial number and the registration number of the

registered sale deed at Ex.P1 in a different manner and it

failed to correlate Ex.P1 with the City Survey Enquiry

though the registered sale deed at Ex.P1 mention the area

sold to the plaintiff as 30 ft. x 40 ft., in fact, it was larger

than such measurement and in this regard, the law is

settled. It is submitted that the boundaries prevail over

the measurement and therefore, the trial Court should

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have considered the City Survey Enquiry Register Extract

coupled with the sketches as it is based on enquiry by the

Government authorities. It is submitted that the trial

Court has not properly appreciated the evidence on record

in the light of the documents available. When the suit

schedule property was within the limits of Jedarahalli, it

was shown as '20th Main' and when it merged with the

Bangalore City Corporation, the road was shown to be

'2nd Main' and therefore, when the records clearly reveal

this aspect, the observations of the trial Court are not

justifiable. Therefore, he contends that the conclusions

reached by the trial Court are totally against the evidence

available on record and the same needs to be set aside.

15. In this regard, he relied on the judgments in

the case of The Palestine Kupat Am Bank Co-

operative Society Limited vs. Government of

Palestine and others1, by privy council where it was held

that 'when there is discrepancy in respect of the

AIR (35) 1948 Privy Council 207

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measurements of the boundaries, the description by

boundaries is to be preferred'.

16. On the same point, he also relied on the

decision in the case of Sheodhyan Singh and others Vs.

Mst.Sanichara Kuer and others2, where, in para 7, it

was held as below:

"7.We are of opinion that the present case is analogous to a case of misdescription. As already pointed out the area, the khata number and the boundaries all refer to plot No. 1060 and what has happened is that in writing the plot number, one zero has been missed and 1060 has become 160. It is also important to remember that there is no plot bearing No. 160 In khata No 97 In these circumstances we are of opinion that the High Court was right in holding that this is a case of misdescription only and that the identity of the property sold is well established, namely, that it is plot No. 1060. The matter may have been different if no boundaries had been given in the final decree for sale as well as in the sale certificate and only the plot number was mentioned. But where we have both the boundaries and the plot number and the circumstances are as in this case, the mistake in the plot number must be treated as a mere misdescription which does not affect the identity of the

AIR 1963 SC 1879

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property sold. The contention of the appellants therefore with respect to this plot must fail."

17. He also relied on the decision in the case of

Subhaga and others Vs. Shobha and others3, wherein,

in para 6, it was held as below:

"6. The High Court has also upheld the title claimed by the plaintiff over Plot No. 1301/1 Ba. Once we accept the identification made by the Commissioner as was done by the first appellate court, it is clear that the plaintiff has the right to have the disputed construction removed and the well filled up. That a property can be identified either by boundary or by any other specific description is well established. Here the attempt had been to identify the suit property with reference to the boundaries and the Commissioner has identified that property with reference to such boundaries. Even if there was any discrepancy, normally, the boundaries should prevail. There was no occasion to spin a theory that it was necessary in this suit to survey all the adjacent lands to find out whether an encroachment was made in the land belonging to the plaintiff. In this situation, we are satisfied that the judgment and decree of the High Court calls for interference. We are also satisfied that the lower appellate court was justified in affirming the decree granted in favour

(2006) 5 SCC 466

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of the plaintiff on the pleadings and the evidence in the case."

18. Lastly, he relied on the decision in the case of

Narasimha Shastry vs. Mangesha Devaru4, where

again, it was held that, 'the boundaries prevail over the

measurement of the property.'

19. It is the case of the plaintiff that he purchased

the suit schedule property under the sale deed at Ex.P1

and it is a registered sale deed. In Ex.P1, the boundaries

of the property in transaction was mentioned to be

"Site No.12 on the East; Site No.14 and road on the West;

Road on the North and Site No.8 on the South". The

measurement is said to be "30 ft. East West and 40 ft.

North South." The said sale deed is dated 21-11-1966.

20. It is pertinent to note that the serial number of

the document is mentioned to be '1087' and the

registration Number is stated to be '967'. It is pertinent to

note that the sale deed was tendered in evidence by PW1

ILR 1988 Karnataka Page 554

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on 17-7-2006. Obviously, the said document was more

than 30 years old as on the date of tendering the same in

evidence. Therefore, if the document is found to be

reliable and original, a presumption under Section 90 of

the Evidence Act, could be raised.

21. Ex.P2 happens to be the certificate issued by

the Bangalore City Corporation, wherein, it is stated that

the property bearing No.118/35 stands in the name of the

plaintiff and it is bounded by; site No.12 on East; Site

No.14 on the West, road on the North and site No.8 on the

South. Again, the boundaries mentioned in this document

also tallies with the boundaries mentioned in sale deed.

22. Exhibits P3 to 8 are the receipts for payment of

the property tax between 1997 to 2003. It is evident that

the plaintiff is paying the property tax for all those years.

23. Exhibits P9 to P12 are the City Survey records.

The property Register Card issued by City Survey

Authority is produced at Ex.P9 and it shows that the City

Survey No.2645 measures 294.0 sq.m. and it stands in

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the name of the plaintiff. The origin for the entry is stated

to be the enquiry officer's report. Such enquiry Officer's

report may be found at Ex.P12. In Ex.P12, it is evident

that in the year 1976, the enquiry was conducted and it

was found that the said site was belonging to the plaintiff.

The basis for the entry is stated to be the sale deed

No.967/1966-67. However, the date of sale deed is

mentioned to be 20-12-1966. But on the other hand, sale

deed when the document came to be registered by the

Sub Registrar is stated to be 20-12-1966, but it was

executed by the vendor on 21-11-1966. It is also relevant

to note that the Enquiry Register Extract mention the

name of the purchaser as well as the vendor. In

pursuance to the said enquiry, the Form No.9 was issued

to the plaintiff, where the details of the enquiry are stated.

Obviously, the enquiry was held at the instance of the

Government, but not at the instance of any private party.

The measurement of the property is mentioned in meters.

The City Survey Map is produced at Ex.P11. Evidently, it

shows the building which is in existence in CTS No.2645.

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Thus, it is evident that from the year 1976 when the City

Survey Enquiry was held, the property came to be

registered in the name of the plaintiff, the ownership of

the plaintiff has been recognized by the revenue

authorities.

24. Exhibits P13 to P15 are the receipts allegedly

issued by the defendants who were in the suit schedule

property. PW1 states that he had rented out the portion

of the suit schedule property to the tenants and they were

evicted and handed over the possession to the plaintiff.

25. The perusal of the cross-examination of PW1

show that much of the cross- examination is in respect of

the measurement of the suit schedule property and its

location. Evidently, PW1 has stood the cross-examination

and has stated that the property mentioned in City Survey

Records as well as the sale deed at Ex.P1 are one and the

same. Therefore, it is evident that the suit schedule

property is the property as described in the City Survey

Extract. There cannot be any doubt on this aspect. It is

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pertinent to note that except the fact that it is mentioned

as '20th Main' in Ex.P1 and it is mentioned as '2nd main' in

Bangalore City Corporation records, there is no other

discrepancy. The said discrepancy has been explained by

the plaintiff by stating that when he was in Jedarahalli

Limits, it was known as '20th Main' and later, it came to be

renamed as '2nd Main'. This explanation can also be

inferred from City Survey Enquiry Report. Under these

circumstances, the observation by the trial Court that the

suit schedule property is totally different than the one

mentioned in Ex.P1 cannot be accepted. Obviously, the

trial Court had not keenly observed the Ex.P1 with

reference to its registration number and the survey

number. Had it bestowed its attention on the Serial

Number and Registration Number, the matter could have

been cleared. Moreover, Ex.P12, City Survey Enquiry was

initiated by the Government and an enquiry was held by

the enquiry officer and after verifying the title deeds, entry

came to be made. It is a public record kept in due course

of the business. It is not a document came into existence

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at the instance of any party. Therefore, evidenciary value

can be attached to the enquiry report is on the higher side

than any other document. Obviously, Ex.P12 has not been

shown to be false or created. There is no such rebuttal

evidence which would falsify Ex.P12. So also the revenue

records also show that the name of the plaintiff appears

for the same for a considerable long time. Ex.P1 coupled

with the Bangalore City Corporation records and city

Survey records, it is evident that the plaintiff shown to be

the owner of the suit schedule property since the year

1966. For these reasons, the presumption that could be

drawn in respect of Ex.P1 gains importance. Ex.P1 gets

impetus above the subsequent revenue entries.

Therefore, there is no reason to draw the presumption as

required under Section 90 of the Evidence Act.

26. So far as the measurement of property is

concerned, it is evident that since the year 1978 when the

enquiry was held by the City Survey Authorities, the

plaintiff is known to be the holder in title to the extent of

about 60 ft. x 40 ft. The City Survey Sketch also shows

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the same. Hence, the principles that the boundaries

prevail over the measurement, if it is remained

unquestioned for considerably long time can aptly be

applied to the case on hand. Thus, it is found that the

findings of the trial court is not sustainable in law. As a

consequence, the points raised above are answered in

favour of the appellant/plaintiff. In the result, the

following:

ORDER

(i) The appeals are allowed.

(ii) The impugned common judgment in both

the suits are hereby set aside.

(iii) The suits of the plaintiff are decreed.

(iv) The plaintiff is declared to be absolute

owner of the suit schedule 'A' property. The

defendants are directed to handover the

possession of 'B' schedule property to the