Karnataka High Court
G R Shivkumar vs Smt Shoba on 16 January, 2024
-1-
RSA No.5396 OF 2010
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
REGULAR SECOND APPEAL NO.5396 OF 2010
BETWEEN:
MANJANNA
E
G. R. SHIVAKUMAR
Digitally signed
by MANJANNA E
S/O LATE G. RANGAIAH,
Date: 2024.01.24
15:44:40 +0530
AGED ABOUT 44 YEARS, YOGA TEACHER,
YOGI COLONY, CHAPPARADALLAI
WARD NO:28, HOSPET
DIST:BELLARY-574310.
...APPELLANT
(BY SRI. RAVI HEGDE, ADVOCATE)
AND:
SMT. SHOBA W/O K. VEERANNA
AGED ABOUT:58 YEARS,R/O YOGI COLONY,
CHAPPARADALLAI WARD NO:28,HOSPET.
DIST:BELLARY-574310.
...RESPONDENT
(BY SMT. VIDYA IYER, ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED U/S 100 CPC.,
PRAYING TO SET ASIDE THE JUDGMENT & DECREE
DATED:21.12.2009 PASSED IN R.A.NO.89/2007 ON THE FILE OF THE
ADDITIONAL CIVIL JUDGE (SR.DN.) AT HOSPET, DISMISSING THE
APPEAL, FILED AGAINST THE JUDGMENT DATED: 04.08.2007 AND
THE DECREE PASSED IN O.S.NO. 37/2005 ON THE FILE OF THE
ADDITIONAL CIVIL JUDGE (JR.DN) AND JMFC., HOSPET,
DISMISSING THE SUIT FILED FOR DECLARATION, POSSESSION,
MANDATORY AND PERMANENT INJUNCTIONS.
THIS REGULAR SECOND APPEAL COMING ON FOR FINAL
HEARING AND THE SAME HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 06.07.2023 THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
-2-
RSA No.5396 OF 2010
JUDGMENT
Appellant/plaintiff feeling aggrieved by judgment of
the First Appellate Court on the file of Addl.Civil(Sr.Dn.)
Hospet, in R.A.No.89/2007, dated 21.12.2009 in
confirming the judgment of Trial Court on the file of
Addl.Civil Judge (Jr.Dn) and JMFC, Hospet in
O.S.No.37/2005, dated 04.08.2007 preferred this appeal.
2. Parties to the appeal are referred with their ranks
as assigned in the Trial Court for the sake of convenience.
3. The factual matrix leading to the case of plaintiff
can be stated in nutshell to the effect that plaintiff is
owner in possession and enjoyment of property bearing
No.1747/1 having purchased the same under registered
sale deed 19.12.1998 from Smt.Harutekar w/o
A.G.Kudalkar as described in schedule 'A' to the plaint.
The plaintiff since from the date of purchase is in actual
possession and enjoyment of the suit property. The name
of plaintiff is accordingly recorded in the records of suit
property. The plaintiff did not get measured the property
RSA No.5396 OF 2010
prior to the purchase out of mutual trust and confidence of
the owner. The plaintiff entertained some doubt about
measurement of the suit property and got it measured
from HUDA. After survey, it was revealed that defendant
has encroached to an extent of 8 3/4 ft. East-West
throughout the length of 40 ft. North-South. The
defendant recently on 04.02.2005 illegally and
unauthorisedly started demolishing her existing building
with an intention to put up construction without obtaining
sanction plan from the concerned authorities. The
defendant has refused to give possession of encroached
area. Therefore, the plaintiff was constrained to institute
the suit on hand for the relief claimed in the suit.
4. In response to the suit summons, the
defendant has appeared through counsel and filed written
statement contending that suit of plaintiff is false,
frivolous and not maintenable in law. The land bearing
survey No.179/B/2/1 of Hospet is originally belongs to K
Gurumurthy Rao of Hospet. The husband of defendant K
Veeranna purchased 30 ft. X 40 ft. under registered sale
RSA No.5396 OF 2010
deed dated 28.08.1979 for valuable consideration. After
purchase of the said property, he purchased another 4 ft.
to the Eastern side of his property as per the advice of
Engineer for Vastu purpose through unregistered sale
deed dated 31.06.1979. Thus, the husband of defendant
K.Veeranna was in possession of 34 ft. East-West and 40
ft. North-South. Subsequently, K.Veeranna has gifted the
said property to his wife Smt.Shoba who is defendant in
the case. There is a compound wall in between the house
of plaintiff and defendant and the expenses was equally
shared by plaintiff and defendant as per the understanding
between them under agreement dated 26.12.2000.
Therefore, there is no question of encroachment in any of
the portion belongs to plaintiff. The defendant has
undertaken re construction with necessary approved plan
from the concerned authority. The compound wall
continues to remain in between the property of plaintiff
and defendant. The plaintiff is claiming alleged portion
belongs to this defendant on the basis of sketch prepared
by HUDA, Hospet without due notice to the defendant.
RSA No.5396 OF 2010
Therefore, on these grounds prayed for dismissal of the
suit.
5. The Trial Court on the basis of pleadings of
both the parties framed necessary issues. Plaintiff to prove
his case relied on the evidence of PW.1 and the document
at Exs.P.1 to P.13. the defendant has relied on the
evidence of DWs.1 to 3 and documents at Exs.D.1 to
D.23. The Trial Court after hearing the arguments of both
sides and on appreciation of oral and documentary
evidence placed on record has dismissed the suit of
plaintiff.
6. The plaintiff challenged the said judgment and
decree of Trial Court on the file of Addl.Civil Judge
(Sr.Dn.), Hospet in R.A.No.89/2007. The First Appellate
Court after re appreciating the evidence on record
dismissed the appeal and confirmed the judgment and
decree of Trial Court.
7. The unsuccessful plaintiff is before this Court
and challenged judgment and decree of both the Courts
below contending that both the Courts below have not
RSA No.5396 OF 2010
properly appreciated the evidence on record. The vendor
of defendant had no any title over 4 ft.X 40 ft. sold to the
defendant under unregistered sale deed Ex.D.23 and as
such no any title has been conveyed in favour of
defendant over the said property. The Courts below have
committed serious error in ignoring Khata extract Ex.D12
and Ex.D.13. The Courts below have also committed
serious error in considering unregistered agreement
Ex.D.7 for sharing the expenses of construction of
compound wall between the property of plaintiff and
defendant, since the existence of common wall itself is
disputed. The encroachment of defendant in the area
belongs to plaintiff is apparent on the basis of evidence on
record irrespective of differences in measurement. The
First Appellate Court has not recorded any finding and
only stated about the contentions of both the parties. The
approach and appreciation of oral and documentary
evidence by both the Courts below are contrary to law and
evidence on record, further the findings recorded are also
contrary to evidence on record. Therefore, on these
RSA No.5396 OF 2010
grounds prayed for allowing the appeal and to set aside
the judgment of both the Courts below, consequently to
dismiss the suit of plaintiff.
8. In response to the notice of appeal, the
respondent has appeared through counsel. The Trial Court
records have been secured.
9. This Court by order dated 27.03.2014 admitted
the appeal to consider the following questions of law:
1) Whether both the Courts have committed a
serious error in dismissing the suit more
particularly in the light of negative finding
onissue No.3 regarding common wall
agreement?
2) Whether the judgment of both the Courts are
perverse and illegal for ignoring the material
evidence placed on record?
10. Heard the arguments of both sides.
11. On careful perusal of oral and documentary
evidence placed on record, it would go to show that
plaintiff is the owner in possession and enjoyment of the
property bearing No.1747/1 having purchased the same
RSA No.5396 OF 2010
under registered sale deed 19.12.1998 from
Smt.Harutekar w/o A.G.Kudalkar as described in schedule
'A' to the plaint. The plaintiff since from the date of
purchase is in actual possession and enjoyment of the suit
property. The claim of defendant is that land bearing
survey No.179/B/2/1 of Hospet is originally belongs to
K Gurumurthy Rao of Hospet. The husband of defendant
K Veeranna purchased 30 ft. X 40 ft. under registered sale
deed dated 28.08.1979 for valuable consideration. After
purchase of the said property, he purchased another 4 ft.
to the Eastern side of his property as per the advice of
Engineer for Vastu purpose through unregistered sale
deed dated 31.06.1979. Thus, the husband of defendant
K.Veeranna was in possession of 34 ft. East-West and 40
ft. North-South. Subsequently, K.Veeranna has gifted the
said property to his wife Smt.Shoba who is defendant in
the case. The dispute between the plaintiff and the
defendant is about the alleged encroachment of defendant
to an extent of 8 ¾ ft. East-West throughout the length of
40 ft. North-South. The defendant has denied the alleged
RSA No.5396 OF 2010
encroachment of the area belongs to the plaintiff and
contended that the said area is within the property
purchased by the husband of defendant which he has
gifted to her under registered gift deed dated 06.02.2003
Ex.D.19.
12. The registered sale deed of plaintiff dated
19.12.1998 which he has purchased from it's erstwhile
owner Smt.C.M.Harutekar w/o A.G.Kudalkar is produced
at Ex.P.1 with the site measuring 30 ft. East-West and 40
ft. from North-South totally 1,200 square feet with the
following boundaries:
East House of Vendor
West House of conductor
Veeranna
North House of
Mohammed Ali
South 20 ft. road
The husband of the defendant under registered sale deed
dated 28.08.1979 Ex.D.18 purchased from it's erstwhile
owner K.Gurumurthy Rao measuring an extent of East-
West 30 ft. and North-South 40 ft. with the following
boundaries:
- 10 -
RSA No.5396 OF 2010
East Open space belongs
to the vendor
West Open space belongs
to the vendor
North Open space belongs
to teacher
South 20 ft. road
The defendant has contended that as per the advice of
Engineer for Vastu purpose, the husband of defendant
Veeranna purchased 4 ft. area towards the Western of his
property from his vendor K.Gurumurthy Rao through
unregistered sale deed dated 31.08.1979 Ex.D.23,
measuring East-West 4 ft., North-South 40 ft. with the
following boundaries:
East Property of the
vendor
West Property of purchase
North Property of vendor
South 20 ft. road
13. If the property purchased by plaintiff and
defendant covered under the sale deed of plaintiff Ex.P.1
and property purchased by defendant covered under
Ex.D.18 and Ex.D.23 are perused, it would go to show
that the vendor of plaintiff and defendant are different.
- 11 -
RSA No.5396 OF 2010
The property of plaintiff and defendant are adjoining to
each other. According to the defendant there is existence
of compound wall in between the property of plaintiff and
defendant. The plaintiff has denied the existence of
compound wall in between the property of plaintiff and
defendant. The plaintiff is not challenging the
measurement shown in the registered sale deed dated
28.08.1979 under Ex.D.18. The defendant is also not
challenging the measurement of plaintiff shown in the
registered sale deed dated 19.12.1998 Ex.P.1. The
evidence placed on record would demonstrate that the
property of plaintiff and defendant are adjoining to each
other. The property purchased by the husband of
defendant under registered sale deed dated 28.08.1979
Ex.D.18 is much prior to the purchase of property by
plaintiff under registered sale deed dated 19.12.1998. The
plaintiff is claiming that the defendant has encroached to
an extent of 8 ¾ ft. East-West and throughout the length
of 40 ft. North-South. The defendant has denied the said
fact. Therefore, it is the duty of plaintiff to prove that the
- 12 -
RSA No.5396 OF 2010
defendant has encroached the above referred extent of
area in the property belongs to plaintiff.
14. The oral evidence of PW.1 and the documents
Exs.P.1 to P.4 are related to the property purchased by
the plaintiff under registered sale deed Ex.P.1 to an
extent of East-West 30 ft. and North-South 40 ft. totally
measuring 1,200 sq.ft. with the hut therein measuring
10 X 10 ft. The said fact is not in serious dispute by the
defendant. The plaintiff is claiming of encroachment of
defendant to the extent of 8 ¾ ft. East-West and
throughout the length 40 ft. North-South in the
aforementioned area belongs to the plaintiff. The certified
copy of the sale deed Exs.P.5 , 7 and 8 are related to the
other properties purchased by plaintiff which has nothing
to do with the subject matter in issue between plaintiff
and defendant.
15. The claim of plaintiff regarding the alleged
encroachment of defendant to the extent of 8 ¾ ft. East-
West and throughout the length of 40 ft. North-South is
- 13 -
RSA No.5396 OF 2010
based on the sketch map Ex.P.13 prepared by HUDA on
the application of plaintiff. There was no any notice to the
defendant whose property is admittedly situated to the
Western side of the property purchased by the plaintiff
under registered sale deed dated 19.12.1998 Ex.P.1. The
defendant has denied the correctness of the sketch map
prepared by HUDA. In view of the fact that Ex.P.13 sketch
map was prepared by HUDA on the application of plaintiff
without notice to the defendant whose property situated
to the Western side of the property purchased by plaintiff
Ex.P.1, the same cannot be relied to prove the alleged
encroachment of defendant in the area belongs to the
plaintiff as claimed by him.
16. It is on basis of Ex.P.13 sketch map prepared
by HUDA, plaintiff issued notice to the defendant Ex.D.1
dated 16.07.2004. The said notice is duly replied by
defendant dated 02.08.2004 Ex.D.2. On the basis of the
application of plaintiff with sketch map Ex.P.13 the
Commissioner, HUDA issued Ex.P.12 for removal of
encroachment. The defendant has challenged the
- 14 -
RSA No.5396 OF 2010
interference of HUDA in issuing notice Ex.P.12 based on
the sketch map Ex.P.13 by filing suit in O.S.No.68/2003.
The suit came to be decreed by judgment dated
08.04.2004 evidenced under judgment and decree
Exs.D.8 and 9. It is true that plaintiff is not party to the
said suit, but the notice was issued by Commissioner,
HUDA on the basis of application of plaintiff on the alleged
encroachment of defendant.
17. The said fact was well within the knowledge of
plaintiff before filing the present suit which he has
admitted in the cross-examination about the suit filed by
defendant against City Municipal Counsel, Hospet which
was directed to remove the alleged encroachment of
defendant vide Ex.P.12. There is also reference to that
effect in Exs.D.1 and 2.
18. The defendant has specifically contended that
there is a compound wall in between the property of
plaintiff and defendant. The plaintiff has denied the
existence of compound wall in between the property of
plaintiff and defendant. The defendant has relied on
- 15 -
RSA No.5396 OF 2010
Ex.D.7, the agreement between plaintiff and defendant
dated 26.12.2000. The defendant has also examined the
author of Ex.D.7 as DW.3 who has deposed about writing
of contents of Ex.D.7 on the instruction of both the parties
who have agreed to share the expenses for construction of
compound wall in between the house of plaintiff and
defendant, further the plaintiff has paid Rs.10,000/- as his
share under the said document Ex.D.7. It has been
elicited in the cross-examination of PW.1 that in the
photographs Ex.P.9 X.Y. portion is compound wall is
denied by plaintiff, but volunteers that it is the wall
constructed by him. It means that the plaintiff admits
that in between the property of plaintiff and defendant
there is a wall which the plaintiff refers and the same is
referred as compound wall by defendant in between the
house of plaintiff and defendant. PW.1 has further
admitted in his cross-examination that in the report of
Court Commissioner there is a reference of Western side
wall and the same is shown as common wall and the
Commissioner has prepared the sketch map in his
- 16 -
RSA No.5396 OF 2010
presence. The report of the Court Commissioner and his
evidence would speak about the existence of common wall
in between the property of plaintiff and defendant. The
Court Commissioner, since did not partially supported the
case of the plaintiff, he was declared as hostile and
counsel for plaintiff has subjected him to cross-
examination. However, nothing worth material has been
brought on record that plaintiff did not agree for
measurement of the site from the house of Shakeera
Banu. The report of the Court commissioner would also
go to show that he has measured the property of the
plaintiff and the defendant in their presence and there is a
common wall in between the property of the plaintiff and
the defendant measuring 1½ ft. width. The same is also
shown in the sketch map of Court Commissioner Ex.C.2.
If the sketch map of Court Commissioner and his report is
appreciated with reference to the boundaries of the
property belongs to the plaintiff under Ex.P.1 and the
property belongs to defendant under Ex.D.18 and
Ex.D.23, then it would go to show that the identification
- 17 -
RSA No.5396 OF 2010
and location of the property of plaintiff and defendants is
shown and in between their property there is a 1½ ft.
width common wall between the property of the plaintiff
and the defendant. The evidence of the Court
Commissioner and the report and sketch map Exs. C1 and
C2 does not speak about any encroachment of the
defendant beyond the common wall in between the
property of the plaintiff and defendant.
19. When the existence of common wall between
the property of plaintiff and the defendant is
demonstrated by the evidence on record, then the
defendant without demolishing the wall cannot encroach in
the property of the plaintiff to the western side.
Therefore, the mere denial of plaintiff about existence of
compound wall between the property of the plaintiff and
the defendant cannot be said as sufficient evidence to
prove the alleged encroachment of the defendant. The
existence of common wall between the property of the
plaintiff and the defendant is supported by the evidence of
Court Commissioner and also the agreement between the
- 18 -
RSA No.5396 OF 2010
plaintiff and the defendant for sharing the expenses for
construction of the compound wall between the property
of the plaintiff and the defendant Ex.D.7.
20. The plaintiff has contended that the alleged
agreement between the plaintiff and the defendant Ex.D.7
is a concocted document. The defendants have examined
the author of Ex.D.7 as DW.3 and he has spoken about
the writings of Ex.D.7 on the instruction of both the
parties and the plaintiff has paid the expenses of
Rs.10,000/- being his share amount for the construction
of the compound wall. It is true that the Photostat copy
of the agreement between the plaintiff and the defendant
is marked as Ex.D.7. The Trial Court has elaborately
discussed about the admissibility of Ex.D.7 and in view of
notice being given to produce the original and the same
was not produced by the plaintiff though referred the
same in Exs.D.1 and D.3, as such the Trial Court has
accepted Ex.D.7 as secondary evidence. The Trial Court
has recorded a finding in paragraph (t) of the judgment
that in the absence of any explanation, the recitals of
- 19 -
RSA No.5396 OF 2010
common wall agreement dated 26.12.2000 found in
Exs.D.1 and D.3 can be considered as an admission on the
part of the plaintiff regarding the execution of original of
Ex.D.7 which is substantive piece of evidence, so as to
dispel the further proof of execution of Ex.D.7 by the
defendant and held that Ex.D.7 is not a forged document.
On recording such finding the contention of plaintiff
regarding the genuineness of Ex.D.7 came to be rejected.
21. The Trial Court has recorded negative finding
on issue No.3 holding that the defendant has failed to
prove that plaintiff is estopped from raising any objections
to the constructions by defendants upto the Eastern
common wall in view of agreement dated 26.12.2000
(Ex.D.7). On such finding the substantial question of law
is framed that whether both the courts below committed
serious error in dismissing the suit more particularly in the
light of negative finding on issue No.3 regarding the
common wall agreement. The Trial Court in paragraph
(12) of its judgment while analyzing the required proof to
prove the claim of estopell in terms of Section 115 of the
- 20 -
RSA No.5396 OF 2010
Indian Evidence Act has held that defendant failed to
satisfy one of the condition that such action of plaintiff
have been detrimental to the interest of person to whom
representation has been made. Therefore, the Trial Court
has recorded negative finding on issue No.3. However,
the Trial Court has never said that there is no existence of
the compound wall in between the property of the plaintiff
and the defendant. The simpliciter claim of defendant is
that there is existence of common wall in between the
property of the plaintiff and the defendant and the plaintiff
cannot resile from the contents of common wall
agreement Ex.D.7. The Trial Court has recorded specific
finding on appreciation of evidence on record that there
exists common wall between the property of the plaintiff
and the defendant and the defendant has failed to prove
the alleged encroachment of the defendant beyond the
compound wall. Therefore, no fault can be found with
both the courts in dismissing the suit of the plaintiff on his
failure to prove the alleged encroachment of defendant
claim to an extent of 8¾ ft. East West and throughout the
- 21 -
RSA No.5396 OF 2010
length of 40 ft. North South as shown in "B" schedule
property which is a portion of "A" schedule property.
22. The court below have rightly appreciated the
oral and documentary evidence placed on record and
justified in holding that there exists common wall between
the property of plaintiff and the defendant, further plaintiff
has failed to prove the alleged encroachment shown in "B'
schedule property in the "A" schedule property belongs to
the plaintiff. The findings recorded by both the courts
below are based on material evidence placed on record
and as such the substantial questions of law are answered
in negative. Consequently, proceed to pass the following :
ORDER
Appeal filed by the plaintiff is dismissed as devoid of
merits.
Registry to send back the records to Trial Court with
a copy of this order.
Sd/-
JUDGE
gsr/rs
