Karnataka High Court
K.R.Kumara Reddy vs M.V.Ramesh on 5 January, 2024
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RSA No.5142 Of 2010
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 5TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
REGULAR SECOND APPEAL No.5142 OF 2010
BETWEEN:
K.R. KUMARA REDDY
S/O K.RAGHAVA REDDY
AGED ABOUT 45 YEARS
R/A. ROYAL RESIDENCY
G-1, BLOCK-I, NO.8
BRUNTON ROAD, OFF M. G. ROAD,
BANGALORE-560 025.
.....APPELLANT
(BY SRI.S.C.BHUTI, ADVOCATE)
AND
VIJAYALAKSHMI M.V.RAMESH
M KANKUPPI
S/O VENKATASWAMY
Digitally signed by MAJOR IN AGE
VIJAYALAKSHMI M
KANKUPPI R/A PLOT NO. 29-A/1
Date: 2024.01.12
13:49:49 +0530 R.S. NO. 160/2-B/3.
WARD NO.25,
SOUTH CANTONMENT
BELLARY.
...RESPONDENT
(BY SMT.V.VIDYA, ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE, AGAINST
THE JUDGMENT & DECREE DATED: 10.11.2009 PASSED IN
R.A.NO.37/2004 ON THE FILE OF THE FAST TRACK-II,
BELLARY, ALLOWING THE APPEAL, FILED AGAINST THE
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JUDGMENT DATED 6.4.1999 AND THE DECREE PASSED IN
O.S.NO.806/1989 ON THE FILE OF THE PRL. CIVIL JUDGE JR.
DN) BELLARY, DISMISSING THE SUIT FILED FOR
DECLARATION, POSSESSION AND MESNE PROFITS.
THIS REGULAR SECOND APPEAL COMING ON FOR
FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Appellant/plaintiff feeling aggrieved by the judgment
and decree of First Appellate Court on the file of Fast
Track-II at Bellary in R.A.No.37/2004 dated 10.11.2009
confirming the judgment and decree of the Trial Court, in
dismissing the suit of the plaintiff on the file of Prl. Civil
Judge (Jr. Dn) Bellary in O.S.No.806/1989 dated
06.04.1999 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 the
plaintiff can be stated in the nut-shell to the effect that
plaintiff is the absolute owner of suit plot which he has
RSA No.5142 Of 2010
purchased from it's erstwhile owner M.R. Venkatasulu and
M. Srinivasulu sons of Sri. Narishmappa Millerpet Bellary,
for total consideration of Rs.2,600/- under registered sale
deed dated 22.07.1981. The plaintiff was put in possession
of the suit property and in pursuance to the registered sale
deed, the name of the plaintiff was recorded in the records
of the suit plot. The defendant taking undue advantage of
the absence of plaintiff encroached upon portion of the suit
plot and put up a hut measuring 25 x 12 feet on the
western side, further he has also started to construct
bathroom and toilet in the month of February 1986. On
request of the plaintiff to stop the construction and to
vacate the said under construction portion not only
refused for the same, but filed the complaint before the
Police. The plaintiff appeared before the police and showed
the documents and no action was taken against the
plaintiff. The defendant filed O.S.No.105/1986 and by
suppressing the material facts obtained temporary
injunction against the plaintiff. The construction work of
defendant in the area of suit plot belong to plaintiff is
RSA No.5142 Of 2010
illegal and high handed without there being any of right or
title. The plaintiff has caused notice to the defendant
dated 19.02.1986 and the defendant has given evasive
reply. 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
and contended that plaintiff as a counter blast to the suit
filed in O.S.No.105/1986 and knowing about defendant
has got temporary injunction against the plaintiff, has filed
the present suit. The defendant is in possession of the
area shown in the sketch map appended to the plaint in
O.S.No.105/1986 and the defendant has perfected the title
over said portion of the suit plot by adverse possession.
The plaintiff though relies on a layout, but has not
produced the same, as against the claim of the defendant.
The plaintiff is laying the claim over the plot in occupation
of this defendant, as against the fact that the plaintiff
claims his right and title seems to be two different and
independent plots. The defendant is in possession and
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enjoyment of his plot measuring 30 x 90 feet claimed in
O.S.No.105/1986. The location and existence of the plot
said to have been purchased by the plaintiff from its
erstwhile owner under the registered sale deed dated
22.07.1981, has to be established by the plaintiff.
Therefore, prayed for dismissal of the suit.
5. On the basis of pleadings of both the parties,
the Trial Court has framed necessary issues. The plaintiff
in order to prove his case relied on the oral testimony of
PW.1 to 3 and documents Ex.P.1 to 30. The defendant to
prove his case relied on the oral testimony of DW.1 to 4
and documents Ex.D.1 to 44. The Trial Court after hearing
the arguments of both sides and on appreciation of oral
and documentary evidence placed before it, has dismissed
the suit of the plaintiff. The Trial Court has answered issue
No.3 in the affirmative and held that the defendant has
perfected his title over the suit property by virtue of
adverse possession.
6. Plaintiff challenged the said judgment and
decree before the First Appellate Court in R.A.No.37/2004.
RSA No.5142 Of 2010
The First Appellate Court vide judgment dated 10.11.2009
after re-appreciating the evidence on record, dismissed
the appeal and confirmed the judgment and decree of the
Trial Court, in dismissing the suit of the plaintiff. However,
the First Appellate Court has set-aside the finding of Trial
Court on Issue No.3 holding that the defendant has
perfected his title over the suit property by adverse
possession.
7. The unsuccessful plaintiff challenged judgment
and decree of both the courts below contending that both
Courts below have not properly appreciated the evidence
on record and the findings recorded are contrary to the
legal evidence on record. When the First Appellate Court
has set-aside the finding of the Trial Court on issue No.3
holding that the defendant has failed to prove that he has
perfected title over the suit property by adverse
possession, then the First Appellate Court ought to have
decreed the suit of the plaintiff, based on title. The Courts
below have committed serious error in holding that the
location and identity of the suit property followed with
RSA No.5142 Of 2010
possession covered under the registered sale deed dated
22.07.1981, has not been proved by the plaintiff. The said
finding recorded by both the Courts below is against the
material evidence placed by the plaintiff. The observations
and findings recorded by both the Courts below cannot be
legally sustained, since the said findings are on account of
improper reading of evidence and failure to appreciate the
documents relied by the plaintiff. Therefore, prayed for
allowing the appeal and to set-aside the judgment and
decree of both the Courts below. Consequently, to decree
the suit of the plaintiff, as prayed in the suit.
8. In response to the notice of appeal, the
respondent/defendant has appeared through counsel. The
Trial Court records have been secured.
9. This Court by order dated 25.04.2014 has
framed the following substantial questions of law for
consideration.:-
1. Whether the First Appellate Court has
committed a serious error in allowing the
appeal and dismissing the suit by ignoring
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the sale deed dated 23.07.1981 (it should
have been 22.07.1981), more particularly
when the decree of adverse possession
has been negatived?
2. Whether the judgment of the First
Appellate Court has become perverse and
illegal for the reasons stated above ?
10. Heard the arguments of both sides.
11. On careful perusal of pleadings of both the
parties and the evidence placed on record, it would go to
show that plaintiff is claiming his right and title over the
suit property by virtue of registered sale deed dated
22.07.1981, which he has purchased from its erstwhile
owner M.R. Venkatesulu and M. Srinivasulu, for total
consideration of Rs.2,600/-. In pursuance of the said sale
deed, the name of plaintiff is recorded in the records of
the suit property and he is paying taxes. Thus, since from
the date of purchase, plaintiff is in actual physical
possession of the suit property. The plaintiff is claiming
that the defendant has encroached upon the portion of the
suit plot measuring 25 x 12 feet on the western side,
RSA No.5142 Of 2010
wherein he has constructed bathroom and latrine in
February 1986. Whereas, the defendant is claiming that he
is the owner and in possession of the scheduled property
shown in the written statement bearing Sy.No.160/2 Block
No.14, Ward No.25, Cantonment Bellary measuring East -
West 30 feet, North - South 90 feet, more fully described
in the sketch and marked in the red ink shown as "A B C
D". The defendant has also denied the location and
identity of the suit plot said to have been purchased by the
plaintiff under the registered sale deed dated 22.07.1981,
further having encroached any portion of the suit property
claimed by the plaintiff. Therefore, heavy burden is on the
plaintiff to prove the location and identity of the suit plot
said to have been purchased by him under the registered
sale deed dated 22.07.1981.
12. The plaintiff to prove his title and possession
over the suit plot relied on the oral testimony of PW.1 to 3
and the documents at Ex.P.1 to Ex.P.30. On the contrary,
the defendant claims that he is possession of site
measuring 30 feet East - West, North - South 90 feet in
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Sy.No.160/2, Block No.14, Ward No.25, Cantonment
Bellary, which is shown in red ink in the sketch map
appended to the plaint shown as "ABCD".
13. On perusal of the pleadings of the plaintiff, the
evidence placed on record and the registered sale deed
dated 22.07.1981 Ex.P.4, the suit schedule property is
described as plot bearing No.29-A/1, in T.S.No.160/2-B/3,
in Block No.14 Ward No.XV, Old Ward No.XX, south
cantonment Bellary, with the following boundaries:-
East : Plot No.27
West : Road
North : Plot No.30 belonging to Arunakumari,
South : Plot No.29/A belonging to M.A.Haq
Whereas, the defendant is claiming his right and
possession with respect to Sy.No.160/2, Block No.14,
Ward No.XV, Cantonment Bellary, measuring 30 feet East
- West and 90 feet North - South, described in sketch
enclosed with the written statement in the red ink by
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showing as A, B, C and D within the limits of Bellary with
the following boundaries:-
East : Plot No.34
West : Plot No.33
North : Plot No.32
South : Market road
The said description of the plot claimed by plaintiff
and the defendant with reference to the boundaries shown
as above will have to be appreciated on the basis of oral
and documentary evidence placed on record, by the
parties to the suit.
14. On careful perusal of oral and documentary
evidence placed on record by the plaintiff, it would go to
show that P.W.1 father of the plaintiff has purchased
number of plots in the very same layout and had dealt
with those sites which is evidenced from the sale deeds at
Exs.D.7 to D.14. P.W.1 being contractor was also aware
about the formation of layout and subsequent modification
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RSA No.5142 Of 2010
of layout. P.W.1 has admitted in the cross-examination
that as per sale deed at Ex.P.4, measurement of the site
purchased is shown as 74' x 30'. Admittedly, P.W.1 has
not got measured the actual measurement shown in the
sale deed at Ex.P.4 before purchasing under the registered
sale deed dated 22.07.1981. P.W.1 has also categorically
admitted in his cross-examination that he has not seen the
modified plan in respect of the layout. However, P.W.1
admittedly has dealt with the sites involved in the layout
and sold the same to the third parties which is evidenced
from the documents at Exs.D.7 to D.14. The defendant
has purchased the schedule property shown in the written
statement even prior to the modified layout. The
defendant has also constructed the house even prior to the
sale deed claimed by the plaintiff in the plaint averments.
Therefore, it is the burden of plaintiff to prove the
identification and location of the site purchased under
registered sale deed dated 22.07.1981 at Ex.P.4.
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RSA No.5142 Of 2010
15. If the sale deeds at Ex.D.7 with respect to plot
No.20 (new layout plot No.22), Ex.D.8 with respect to plot
No.27, 28 and 19, Ex.D.9 with respect to plot No.27,
Ex.D.10 with respect to plot No.29, Ex.D.11 with respect
to plot No.30, Ex.D.12 with respect to plot No.33, Ex.D.13
with respect to plot No.34 would goes to show that they
are much prior to the purchase of the site by the plaintiff
under registered sale deed dated 22.07.1981 at Ex.P.4
with different measurements and as per the modification
of layout plan, the plots numbers have been changed. The
modified layout plan at Ex.D.5, Ex.D.12(a) and Ex.D.13(a)
with respect to the properties under Ex.D7 to Ex.D.12 and
Ex.D.13 are compared with reference to the description
given in the sale deeds, then it would go to show that the
property purchased by the plaint under Ex.P.4 is the road
portion out of TS No.160/2. The defendant by the time
plaintiff could purchase the site under Ex.P.4, the
defendant had already constructed the house as per the
provisional layout plan at Ex.P.13(a), wherein it is shown
that 30' colony road measures 30' x 74'.
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RSA No.5142 Of 2010
16. P.W.1 in the cross-examination has admitted
that he has no idea of measurement of the plot bearing
No.29. In the said entire plot No.29, Smt. Ambamma first
purchased and remaining plot is said to have been
purchased by the plaintiff in the year 1982. The defendant
admittedly had already constructed the house in the site
purchased by him described in the schedule of the written
statement. The plaintiff has not produced any document
to show that when plot No.29 was sub-divided and its
entire extent earlier, so also the extent of land purchased
by Smt.Ambamma, further the remaining area assigned
with plot No.29-A/1.
17. Plaintiff has examined PW.2 M A Haq who has
deposed to the effect that the plot purchased by his wife is
adjacent to the suit plot in the year 1970. The vendors of
property purchased by his wife was also the property
purchased by the plaintiff and they are one and the same.
When his wife purchased the adjoining plot of the suit
property, the suit plot was vacant. Looking to the
boundaries in the sale deed of the plaintiff Ex.P.4, it would
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go show that towards the southern side of the suit plot,
plot No.29/A is situated. Looking to the modified layout
Ex.D.5, it would go to show that only plot No.29 is shown.
The division in the said plot has not been shown nor the
plaintiff has produced any documents as to when in the
entire extent of Plot No.29 the division was effected.
18. Plaintiff has also examined one of his vendor
PW.3 M.R.Venkateshulu and he has deposed to the effect
that himself and his brother Sreenivasulu have executed
registered sale deed dated 22.7.1981 Ex.P.4 and has
delivered vacant possession of the plot sold to plaintiff.
PW.3 M R Venkateshulu in his cross-examination stated
that originally T.S.No.160/2 was measuring 4 acres and
odd cents and it was located in the municipal limits. About
20 to 30 years back, he has formed plot in T.S.No.160/2
and no approval was obtained from the local authority in
respect of plot formed in T.S.No.160/2. There was no
provisional layout or approved layout in respect of plot
formed in T.S.No.160/2. However, he volunteers that
purchasers themselves have got approved the plot by
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RSA No.5142 Of 2010
paying necessary charges. He further deposed to the
effect that plots in T.S.No.160/2 were unofficially made by
him for selling purpose. There was no unofficial plan
prepared by him and the same is not available with him.
PW.3 M R Venkateshulu has further categorically
admitted in his cross-examination that in the plot formed
in T.S.No.160/2 no space was left for parking purpose, but
only space were left for forming roads. It means that
before the vendors of plaintiff executing the registered
sale deed dated 22.7.1981 Ex.P.4, there was no approved
layout plan and the plots were sold only by assigning the
plot numbers. Plaintiff has not produced any acceptable
evidence as to when plot No.29 was sub divided and sold
to how many persons. It is also pertinent to note that to
the northern side of the suit plot, plot No.30 belonged to
Aruna Kumari is shown. Whereas, the registered sale deed
with respect to plot No.34 measuring East - West 74 ft.
and North - South 50 ft. is sold by the vendors of plaintiff's
to Aruna Kumari with respect to plot No.34. If that is
taken into consideration then the Northern and Southern
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RSA No.5142 Of 2010
boundary of the suit plot as shown in Ex.P.4 does not
match. If the modified layout Ex.D.5 with Ex.D.12(a) and
Ex.D.13(a) and from the description of the properties
shown in Ex.D.7 to Ex.D.13 are perused then it would go
to show that the properties said to have been purchased
by plaintiff Ex.P.4 would be in the road portion out of
T.S.No.160/2. The plaintiff other than the said location by
evidence placed on record has failed to prove the identity
and existence of suit plot.
19. In view of the modified layout at Ex.D.5 and also
the evidence on record would go to show that the plots are
laid in TS No.160/2. If the documents at Ex.D5,
Ex.D.12(a) and Ex.D.13(a) are perused and appreciated
with reference to the evidence on record, the plaintiff has
failed to prove the existence of plot No.29-A/1 in the
layout formed in TS No.160/2. The plaintiff with the
description of the site purchased by him under the
registered sale deed dated 22.07.1981 at Ex.P.4 and the
one shown in the modified layout plan at Ex.D.5, so also
the sale deeds at Exs.D7 to Ex.D.13 has failed to establish
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RSA No.5142 Of 2010
the existence and location of site purchased by the
plaintiff, further also failed to prove the alleged
encroachment of the defendant.
20. Indisputably the defendant has filed
O.S.No.105/1986 against the plaintiff for the relief of
permanent injunction. The said suit came to be dismissed
for non-prosecution vide Ex.P.25. In the said case, city
surveyor, Ballary was appointed as Court Commissioner
and the Court Commissioner has submitted the
Commissioner report at Ex.P.23 and the sketch map at
Ex.P.24. The said report of Court Commissioner was based
on the sale deed of plaintiff at Ex.P.4 and not on the basis
of the provisional layout plaint at Ex.D.12(a) or
subsequent modified layout plan at Ex.D.5. Apart from
producing the Commissioner report at Ex.P.23 and the
sketch map at Ex.P.24, the plaintiff has not chosen to
examine the Court Commissioner to prove the correctness
of the Commissioner report at Ex.P.23 and sketch map at
Ex.P.24. Therefore, when the report of the Court
Commissioner and the sketch map referred above are not
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RSA No.5142 Of 2010
brought on record in the manner known to law, then the
same cannot be accepted as substantive evidence to prove
the claim of the plaintiff.
21. The Trial Court has recorded affirmative finding
on issue No.3 holding that the defendant has perfected
title over the property claimed by the plaintiff by virtue of
adverse possession. The first Appellate Court has set
aside the finding of the Trial Court on issue No.3. The first
Appellate Court for the reasons recorded in paragraph
No.19 of its judgment has held that the defendant is not
admitting the ownership of the site claimed by the plaintiff
and therefore, the possession of the defendant, if any,
without knowledge to the true owner cannot confirm any
title in favour of the defendant. On recording such finding
set aside finding of Trial Court on issue No.3. Learned
counsel for the appellant has argued that when suit is
based on title deed under Ex.P.4 dated 22.07.1981 and
defendant has failed to prove the possession over the
encroached area, then the Courts below would have
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directed the defendant to deliver the possession of the suit
property to the plaintiff.
22. Per contra, learned counsel for the defendant
has argued that the plaintiff cannot take advantage of the
weakness of defendant in establishing his claim over the
suit property. The plaintiff has to independently prove his
title and possession, further the alleged encroachment of
defendant to get the relief claimed in the suit. Learned
counsel for the defendant in support at such contention
relied on the judgment of Hon'ble Apex Court in Iswar
Bhai C. Patel @ Bachu Bhai Patel vs. Harihar Behara
and another reported in (1999) SCR 1097, wherein it
has been held that an adverse presumption had to be
drawn against the appellant on the basis of principles
contained in illustration (g) of Section 114 of the Evidence
Act-doctrine of adverse presumption. The drawing of any
such presumption in view of appellant not entering the
witness box is not the one involved in the present case.
When the parties have already led their evidence, it is for
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the Court to appreciate the evidence on record and to
decide the lis between the parties.
23. Learned counsel for the defendant has also
relied the judgment of Hon'ble Apex Court in
Ramchandra Sakharam Mahajan vs. Damodar
Triambak Tanksale (D) and others reported in (2007)
8 SCR 179, wherein it has been observed and held in
paragraph No.10 as under:
"The suit is for recovery of possession on
the strength of title. Obviously, the burden is
on the plaintiff to establish that title. No doubt
in appreciating the case of title set up by the
plaintiff, the Court is also entitled to consider
the rival title set up by the defendants. But
the weakness of the defence or the failure of
defendants to establish the title set up by
them, would not enable the plaintiff to a
decree. There cannot be any demur to these
propositions."
On the same principle, learned counsel for the
defendant has also relied another judgment of Hon'ble
Apex Court in State of Madhya Pradesh vs. Nomi
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Singh and another reported in (2015) 3 SCR 798,
wherein it has been held that:
"Plaintiff has to stand on his own legs to prove
his case. The plaintiffs have failed to prove
their case either on the claim as Bhumiswamis
or on the ground of adverse possession. High
Court wrongly decreed the suit by placing onus
of proof of title and possession of plaintiffs on
defendant. Suit liable to be dismissed."
In the present case also, notwithstanding the failure
of defendant to prove his claim of adverse possession, it
was the duty of the plaintiff to lead his independent
evidence to prove the title and possession over the suit
property claimed by the plaintiff.
24. In view of the reasons recorded as above, it is
held that the plaintiff has failed to prove title and
possession over the suit property, so also the alleged
encroachment of defendant. The First Appellate Court has
partly allowed the appeal and set aside the finding of Trial
Court on issue No.3, wherein the claim of defendant that
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he has perfected title over the suit property came to be
set aside. The findings recorded by the First Appellate
Court in affirming the finding of Trial Court that plaintiff
has failed to prove the existence and location of the suit
property covered under the registered sale deed dated
22.7.1981 vide Ex.P.4 has dismissed the suit of plaintiff
and the said findings recorded by First Appellate Court are
based an material evidence placed on record. The failure
of defendant to prove his claim of perfecting title over the
suit property cannot confer any title over the suit property
in favour of plaintiff. In view of the principles enunciated
in the aforementioned judgments of Hon'ble Apex Court, it
is evident that plaintiff cannot rely on the weaknesses of
defendant or failure to prove his claim, but has to
independently prove the case made out by the plaintiff for
grant of relief prayed in the suit. In the present case, the
plaintiff has failed to prove the existence and location of
the site purchased by him under the registered sale deed
dated 22.7.1981 vide Ex.P.4. Therefore, the plaintiff
is not entitled for the relief claimed in the suit. The Courts
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below have rightly appreciated the oral and documentary
evidence placed on record and arrived to a just and proper
conclusion in recording finding against the plaintiff that
the plaintiff has failed to prove his title and possession
over the suit property. The said finding recorded by both
the Courts below are based on legal evidence on record
and the same does not warrant any interference by this
Court and accordingly, substantial questions of law are
answered in the Negative. Consequently, proceed to pass
the following:
ORDER
Appeal filed by appellant/plaintiff is hereby dismissed
as devoid of merits.
The judgment of the first Appellate Court on the file
of Fast Track-II, Ballary in RA No.37/2004 dated
10.11.2009 in confirming the judgment of the Trial Court
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on the file of Principal Civil Judge (Jr.Dn), Ballary in
O.S.No.806/1989 dated 06.04.1999 stands confirmed.
Registry is directed to send the Trial Courts records
along with copy of this judgment.
Sd/-
JUDGE
KJJ/RSP
