Karnataka High Court
Nagaraju vs Sumaya Bhanu on 13 February, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
-1-
NC: 2024:KHC:6147
RSA No. 1215 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 1215 OF 2023 (DEC/INJ)
BETWEEN:
NAGARAJU,
S/O H S BYRAPPA
AGED ABOUT 52 YEARS
R/O SRINIVASA NAGAR
ARSIKERE TOWN 573 103
...APPELLANT
(BY SRI. H S SANTHOSH, ADVOCATE)
AND:
SUMAYA BHANU,
W/O MUZAMIL EJAZ
AGED ABOUT 48 YEARS
R/O BANAVARA PETE
BANAVARA HOBLI
ARSIKERE TALUK 573 112
Digitally
signed by
SUMA B N
Location: ...RESPONDENT
High Court
of Karnataka (BY SRI. VIJAYA KUMAR K., ADVOCATE)
RSA FILED UNDER SECTION 100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 05.04.2023 PASSED IN
R.A.NO.15/2019 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC., ARASIKERE.,DISMISSING THE APPEAL AND
-2-
NC: 2024:KHC:6147
RSA No. 1215 of 2023
CONFIRMING THE JUDGMENT AND DECREE DATED
05.01.2019 PASSED IN O.S.NO.341/2009 ON THE FILE OF THE
I ADDITIONAL CIVIL JUDGE AND JMFC, ARASIKERE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the defendant aggrieved by the
Judgment and decree dated 05.01.2019 passed in
O.S.No.341/2009 on the file of the I Additional Civil Judge
and JMFC, Arasikere which is confirmed by Judgment and
order dated 05.04.2023 passed in R.A.No.15/2019 on the
file of Senior Civil Judge and JMFC, Arasikere.
2. The above suit is filed by the plaintiff/respondent
herein for the relief of declaration, permanent injunction,
mandatory injunction and also for possession against the
appellant/defendant contending that originally Sy.No.446
was granted in favour of Rangaiah, S/o Talavar Subbaiah
on 13.08.1981 in terms of the Karnataka Village Offices
Abolition Act and said land has been regranted in favour of
NC: 2024:KHC:6147
Rangaiah. That prior to regrant said Rangaiah sold the
suit schedule property in favour of father of the plaintiff in
terms of deed of sale dated 09.12.1968 and even
delivered vacant possession of the same. Though the
property conveyed under the said document was
measuring 60 feetx80 feet the measurement mentioned in
the said deed was 30 feetx80 feet. As such Rangaiah
executed another deed of sale dated 17.08.1970 clearly
mentioning the measurement of the property as 60
feetx80 feet. That ever since then father of the plaintiff
has been in possession and enjoyment of the suit schedule
property and records have been mutated in his name.
That upon demise of the father of plaintiff, plaintiff has
been in continuous possession of the suit property as his
only legal heir. The property after change of land usage
has been included in the municipal records and defendant
having no right, title and interest over the suit property
has encroached upon the property of the plaintiff by
putting up basement structure and when questioned by
plaintiff defendant given evasive reply constraining the
NC: 2024:KHC:6147
plaintiff to file a police complaint and thereafter the
present suit for the relief as sought for.
3. Defendant filed his written statement denying the
plaint averments and specifically contended that the suit
of the plaintiff is in respect of land in Sy.No.446 and that
he is the owner in possession of land in Sy.No.445. That
he has been in possession of his property in Sy.No.445
over 15 years as owner thereof. It is his case that the
plaintiff has filed the above suit to knock off the property
belonging to the defendant. It is contended that the
defendant purchased property in Sy.No.445 in terms of
deed of sale dated 11.04.2000 from its previous owner
V.Ramesh Babu who in turn has purchased the same from
one Siddalingappa. Said Siddalingappa had obtained a
decree from the Court in O.S.No.79/1985. It is contended
that plaintiff has no right over the property in Sy.No.445
belonging to the defendant. Defendant has constructed
his house on the property bearing Sy.No.445/1 and has
been in possession of the same. That the description of
NC: 2024:KHC:6147
the property given by the plaintiff is incorrect and not in
existence. Hence, sought for dismissal of the suit.
4. Trial Court based on the pleadings, framed
following issues:
1. Whether the plaintiff proves that she is the
lawful owner of suit schedule property?
2. Whether the plaintiff proves that she is in
lawful possession and enjoyment over suit
schedule property as on the date of filing the
suit?
3. Whether the plaintiff proves the defendants
interference over the suit schedule property?
4. Whether the defendant proves that suit is
not properly valued?
5. What order or decree?".
Addl. Issues:
1. Whether the plaintiff proves that the
defendant had laid a foundation in plaint
schedule property by encroaching the same?
2. Whether the plaintiff is entitled for the relief
of permanent and mandatory injunction as
claimed in plaint?
3. Whether the plaintiff is entitled for
declaration?".
NC: 2024:KHC:6147
5. GPA holder of plaintiff is examined as PW-1 and 7
documents marked as Ex.P-1 to P-7. Defendant examined
himself as DW-1 and also another witness as DW-2 and 20
documents marked as Ex.D-1 to D-20. On appreciation of
pleadings and evidence, the trial Court answered issue
No.1 and additional issue Nos.1 to 3 in the affirmative,
issue No.4 in the negative and issue Nos.2 and 3 partly in
the affirmative. Consequently decreed the suit as sought
for. Aggrieved by the same defendant preferred regular
appeal in R.A.No.15/2019. Appellant also filed an
application under Order 41 Rule 27AA read with Section
151 of CPC seeking to produce additional documents.
Considering the grounds urged in the memorandum of
appeal and also considering application filed under Order
41 Rule 27AA CPC filed by the appellant, first appellate
Court framed following points for its consideration:
"1. Whether the Trial Court has properly
appreciated the law, oral and documentary
evidence on record?
2. Whether the judgment and decree under
challenge is perverse, capricious and arbitrary
NC: 2024:KHC:6147
and such calls for interference at the hands of
this court?
3. Whether the appellant has made out
sufficient grounds to allow the application filed
under Order 41 Rule 27AA r/w 151 of CPC?
4. What order?"
6. The first appellate Court answered point No.1 in
the affirmative and point Nos.2 and 3 in the negative and
consequently dismissed the appeal confirming the
Judgment and decree passed by the trial Court. Aggrieved
by the same defendant is before this Court.
7. Sri.H.S.Santhosh, learned counsel for the
appellant reiterating the grounds in the appeal
memorandum submitted that trial Court and first appellate
Court erred in decreeing the suit solely relying on the
report of the Commissioner without adverting to the
evidence led by the parties. It is his submission that the
plaintiff not having proved her title in respect of suit
schedule properties ought not to have been granted the
relief of declaration. He submits even according to the
NC: 2024:KHC:6147
plaint averments plaintiff's father purchased the property
in the year 1968 and the vendor of the plaintiff's father
was granted the land on 13.08.1981. He also submits that
since the said aspect of the matter not having been
adverted to by the Courts there is a cloud in the title of
the plaintiff which ought to have been adverted to and
considered by the trial Court and first appellate Court. It
is his further submission that finding of the Commissioner
that the defendant has put up structure measuring 40
feetx40 feet in the property belonging to the plaintiff is
erroneous as plaintiff is claiming in Sy.No.446 and
defendant is claiming his property in Sy.No.445. Thus, he
submits that the matter gives raise to question of law
requiring consideration at the hands of this Court.
8. Per contra, Sri.Vijaya Kumar, learned counsel for
respondent justifying the Judgment and decree passed by
the trial Court confirmed by the first appellate Court
submits that defendant in his written statement specifically
contended that property claimed by the defendant is
NC: 2024:KHC:6147
different property from that of the property claimed by
plaintiff. Learned counsel for respondent also takes this
Court through the deposition of DW-1 and also deposition
of PW-1 in which suggestion has been made to the said
witness that defendant is putting up construction in the
property belonging to the plaintiff. Thus, he also submits
that since the defendant admittedly not making any claim
in the property belonging to the plaintiff he has no
grounds to be urged opposing claim of the plaintiff. He
submits that no error can be found with the reasoning
arrived at by the first appellate Court and seeks for
dismissal of the appeal.
9. Heard and perused the records.
10. There is no dispute of the fact that the plaintiff is
claiming her right in respect of the property which forms
part of land bearing Sy.No.446 said to have been
purchased by her father in terms of deed of sale dated
09.12.1968 from its earlier vendor. On the other hand
- 10 -
NC: 2024:KHC:6147
defendant is claiming his right over property forming part
of land bearing Sy.No.445 which he claims to have
purchased from one V.Ramesh Babu in terms of deed of
sale dated 11.04.2000. Thus, there is a mark difference of
pleading and counter pleading by the parties in that
plaintiff is claiming property in Sy.No.446 while defendant
claims right in property in Sy.No.445. It is not the case of
the defendant that he is claiming his right over the
property belonging to the plaintiff. The deposition of PW-1
and line of suggestion put forth to PW-1 as extracted by
the trial Court in its Judgment while answering issue Nos.1
and 2 indicate that there was no confusion in the mind of
the parties that they are litigating in respect of two
different properties. A suggestion is made to PW-1 on
behalf of the defendant that PW-1 had given
representation to Arasikere Pura Sabhe alleging that
defendant was putting up construction in her property.
Further suggestion is also made that there was a response
to the said representation stating that defendant was
putting up construction in his property. That apart from
- 11 -
NC: 2024:KHC:6147
the pleading it is clear that even during the trial the
parties were clear that they are litigating and claiming two
different properties.
11. Commissioner who was appointed by the trial
Court in his report has submitted that property being
claimed by the plaintiff is in Sy.No.446 and property
claimed by defendant is in Sy.No.445. That the said
properties are separated by 40 feet wide municipal road.
The Commissioner has also found that there is a structure
measuring 40x40 feet in the property claimed by the
plaintiff. The finding of the Commissioner has not been
seriously disputed. The case of the appellant is that trial
Court and first appellate Court have passed Judgment
solely based on the report of the Commissioner cannot be
countenanced for the reason that it is not the case of the
defendant he has any right, title and share in the property
claimed by the plaintiff. Pleadings, evidence and also the
report of the Commissioner has indicated that the
defendant has put up structure measuring 40x40 feet
- 12 -
NC: 2024:KHC:6147
which is found to be existing in the property being claimed
by the plaintiff. Though defendant claimed his right in
Sy.No.445 he does not dispute structure existing in
Sy.No.446 suggesting requirement of granting injunction
as sought for, by the trial Court confirmed by the first
appellate Court. In that view of the matter the facts
having been found by trial Court and first appellate Court
in favour of the plaintiff cannot be found fault with. No
substantial question of law would arise for consideration,
appeal is accordingly dismissed.
Sd/-
JUDGE
SBN
