Karnataka High Court
Sri J V Manjunath vs City Municipality on 2 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1184 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1184 OF 2018 (PAR)
BETWEEN:
1. SRI J.V.MANJUNATH
S/O J.M.P. VEERAPPA,
AGED ABOUT 64 YEARS
R/O LINGAYATH STREET,
JANNAPURA,
BHADRAVATHI-577301.
...APPELLANT
(BY SRI. MALLIKARJUN C. BASAREDDY, ADVOCATE)
AND:
1. CITY MUNICIPALITY
TARIKERE ROAD,
Digitally signed BHADRAVATHI-577301,
by DEVIKA M BY ITS COMMISSIONER.
Location: HIGH
COURT OF SRI. J.P.KUMARAPPA
KARNATAKA S/OLATE VEERAPPA GOWDA,
SINCE DEAD BY HIS LRS
2. SMT. SUSHEELAMMA
W/O LATE J.P.KUMARAPPA,
AGED ABOUT 72 YEARS,
3. SRI. J.P.GANGADHARAPPA
S/O LATE J.P.KUMARAPPA,
AGED ABOUT 49 YEARS,
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RSA No. 1184 of 2018
4. SRI. J.P.K.VEERESH
S/O LATE J.P.KUMARAPPA,
AGED ABOUT 47 YEARS,
5. SRI. J.P.PRABHU
S/O LATE J.P.KUMARAPPA,
AGED ABOUT 46 YEARS,
6. SRI. J.P.NAGARAJ
S/O LATE J.P.KUMARAPPA,
AGED ABOUT 45 YEARS,
7. DR. J.P.RAMESH
S/O LATE J.P.KUMARAPPA,
AGED ABOUT 41 YEARS,
ALL ARE R/O. HOUSE NO.22,
LINGAYATH STREET, JANNAPURA,
BHADRAVATHI-577301.
8. SMT. MANJULA
W/O HALAPPA,
AGED ABOUT 52 YEARS,
R/O HARIGE,
VIDHYANAGARA POST,
SHIVAMOGGA-577201.
9. SMT. GIRIJA
W/O MALLIKARJUNA,
AGED ABOUT 50 YEARS,
R/O. B.BEERANAHALLI VILLAGE,
HOLALUR HOBLI,
SHIVAMOGGA TALUK-577201.
10. SMT. JALAJA
W/O RAJAKUMAR,
AGED ABOUT 43 YEARS,
R/O ARABILCHI VILLAGE,
HOLEHONNUR HOBLI,
BHADRAVATHI TALUK-577301.
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RSA No. 1184 of 2018
KEMPASIDDAIAH (DEAD BY LRS)
11. SRI. SIDDARAJU
S/O LATE KEMPASIDDAIAH,
AGED ABOUT 62 YEARS
12. MANJUNATH
S/O LATE KEMPASIDDAIAH,
AGED ABOUT 54 YEARS
R11 AND R12 ARE
R/O NEAR NOTIFIED AREA
COMMISSIONER OFFICE, JANNAPURA,
BHADRAVATHI-577301.
...RESPONDENTS
(BY SRI. SANJEEV B L., ADVOCATE FOR R1;
SRI SANJEEV B.L., ADVOCATE FOR R2 TO R12)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 01.09.2017
PASSED IN R.A.NO.6/2013 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC, BHADRAVATHI, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 20.10.2012 PASSED IN O.S.NO.212/2005 ON THE FILE
OF THE CIVIL JUDGE AND ADDITIONAL JMFC, BHADRAVATHI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission and I have heard the
learned counsel for the appellant and learned counsel for
respondent No.1 and learned counsel for respondent Nos.2 to
12.
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2. The factual matrix of the case of the plaintiff before
the Trial Court while seeking the relief of permanent injunction
and mandatory injunction is that the plaintiff is the owner and
khatedar of the suit schedule property i.e., property measuring
East to West: 45 feet and North to South: 150 feet bearing
Khatha Nos.406/393 and 407/394 situated at Ward No.29,
Lingayath Street, Jannapura, Bhadravathi having acquired the
same from his grand-father Mallappa, S/o. Muthinapurada
Mallappa. Earlier, the suit property which is a gramatana site,
was under the administration of New Town Board which was
subsequently changed into Notified Area Committee and at
present, the suit site has been under the control of 1st
defendant i.e., City Municipality, Bhadravathi.
3. It is also contended that the defendant No.2 is the
owner of property measuring East to West: 43 feet, North to
South: 138 feet which is situated just abutting suit property at
its West. A Mangalore tiled house and a cattle shed are also
located in the 2nd defendant's property. The father of the
defendant No.2 by name Veerappa Gowda was the Patel of
Jannapura Village and was very influential person and as such,
he got entered more extent in the Municipal records without
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having any corresponding title deeds. After the death of said
Patel Veerappa Gowda, his son i.e., the defendant No.2, by
taking undue advantage of such wrong Municipal entries,
encroached an area measuring East to West: 1½ feet and North
to South: 90 feet (135 sq.ft.) in the western Voni portion of suit
property and the same is described as 'ABCD' portion in the
plaint rough sketch. The defendant No.2 has also constructed a
wall by encroaching an area measuring East to West: 1½ feet
at South and 1 feet 2 inches at North and North to South: 9
feet 7 inches (12.28 sq.ft.) just abutting to 'ABCD' encroached
portion at its east, and the same is described as 'EFGH' portion
in the said rough sketch. In fact, the defendant No.2 has got
no right, title and interest over the said encroached portions
and he is liable to vacate and handover the same to the
plaintiff. The defendant No.1, who is responsible for
maintaining proper municipal records, goes on increasing the
extent of 2nd defendant's property for the reasons best known
to him. On the basis of such illegal municipal entries, the
defendant No.2 even has sold out certain portion of his
property. That being so, the plaintiff has issued several
representations to the 1st defendant to rectify the said
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mistakes, but all his attempts ended in futile. Hence, the
plaintiff has preferred an appeal before the Deputy
Commissioner, Shimoga in No. Mun(2) CR No.95/96-97,
wherein the Deputy Commissioner has given a clear direction to
the 1st defendant to rectify the municipal records. But, even
thereafter, the defendant No.1 has failed to make necessary
rectifications in the municipal records which clearly goes to
show that the defendant No.1 is colluding with the defendant
No.2.
4. It is also the claim of the plaintiff that towards the
eastern side of suit property, the property of one
Smt.Lakshmakka which is measuring East to West: 31 feet and
North to South: 20½ feet is situated and after the death of said
Lakshmakka, the defendant No.3 has occupied the said
property and managed to changed the khatha of said property
in his name. Earlier, there was a thatched hut in the said
property and subsequently, the defendant No.3 has put up a
two portioned house. The 1st defendant is very liberal in
increasing the extent of the property occupied by the defendant
No.3, for every assessment year and in the year 2000-2001,
the measurement of the said property is shown as East to
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West: 45 feet and North to South: 20½. On the basis of said
illegal municipal entries, the defendant No.3 has encroached an
extent of East to West: 2 feet and North to South: 32 feet (64
sq.ft.) in the eastern portion of suit property which is described
in the plaint rough sketch as 'IJ' portion and constructed the
wall of his house. The defendant No.3 has also encroached an
extent of East to West: 1 feet and North to South: 32 feet (32
sq.ft.) in the suit property and the said encroached portion
which is described in the plaint rough sketch as 'KL' is situated
just abutting 'IJ' portion at its West. The defendant No.3 has
encroached the above said portions of suit property and
constructed a house building even without obtaining a valid
licence from the defendant No.1 and he is liable to vacate the
said encroached portion.
5. In pursuance of the suit summons, the defendant
Nos.1 to 3 have put up their appearance and denied the
averments made in the plaint. It is contended by the defendant
No.1 that even according to the plaintiff, the proceedings of the
Deputy Commissioner was of the year 1985 and therefore,
after lapse of 20 years, the plaintiff cannot seek for its
enforcement as he looses his right due to impact of law of
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Limitation. It is also contended by the defendant No.1 that
without a prayer for the relief of declaration of title of the
plaintiff over the suit property and also for the possession of
encroached portions, the present suit is not maintainable.
6. The defendant No.2 also filed the written statement
and denied the allegations made in the plaint and more
particularly the allegation regarding the measurement of his
property as 43 x 138 square feet and also the allegation
regarding encroachment of a portion of suit property. It is
further contended by defendant No.2 that he has not
encroached any portion of the suit property and he is in actual
physical possession and enjoyment of his site property from the
period of his father.
7. The defendant No.3 also filed the written statement
and denied the averments made in the plaint and he claims
that he is the owner in possession of the property measuring
East to West: 41 feet and North to South: 45 feet which is
situated towards the western side of suit property and since
last about 100 years, himself and his forefathers are/were in
peaceful possession and enjoyment of the said property.
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8. The Trial Court, having considered the material on
record, framed the issues and allowed the parties to lead
evidence and answered point No.1 as 'partly affirmative', in
coming to the conclusion that the plaintiff failed to establish his
ownership and lawful acquisition of suit property, but he has
proved that he is the khatedar in respect of the said property
and there is inconsistent pleading in the plaint and also
answered other issues with regard to the encroachment made
by the defendant Nos.2 and 3 as 'negative' and dismissed the
suit with cost and even extracted the answers elicited from the
mouth of P.W.1.
9. Being aggrieved by the said judgment and decree of
the Trial Court, an appeal is filed before the First Appellate
Court in R.A.No.6/2013. The First Appellate Court, having
considered the grounds urged in the appeal memo, formulated
the points whether the plaintiff proves that he is the owner and
khatedar of the suit schedule property and acquired the same
lawfully, whether the plaintiff proves the alleged encroachment
of suit schedule property by defendants and whether the
appellant has made out ground to lead additional evidence.
The First Appellate Court having considered the grounds urged
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and also both oral and documentary evidence placed on record
answered point No.1 whether plaintiff proves that he is the
owner and khatedar of the suit schedule property and acquired
the same lawfully as 'partly affirmative' and encroachment has
not been accepted by the First Appellate Court also and
dismissed the appeal. Being aggrieved by the said judgment of
dismissal of suit and confirmation by the First Appellate Court,
the present second appeal is filed before this Court.
10. Learned counsel appearing for the appellant would
vehemently contend that the learned Judge of the Courts below
also considered the documents at Ex.P10 and P14 which are
the Assessment Register Extract pertaining to property of one
Lakshmakka for the year 1964-65. The contents of said
documents reveal that they are two different properties bearing
Assessment Nos.295 and 296 which were standing in the name
of Lakshmakka and the measurement of one property
comprising of the attached hut and a vacant place is East to
West: 23 feet and North to South: 45 feet and that of another
property comprising of two houses and cattle shed is East to
West: 18 feet and North to South: 43½ feet. So, the total
measurements of these two properties standing in the name of
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Lakshmakka will be worked out East to West: 41 feet and North
to South: 45 feet. There is an encroachment at Ex.P10 and
Ex.P4, the total area of assessment number 295 and 296 is
East to West: 41 feet and North to South: 45 feet, as described
in the entry in 1950-51. It is contended that the Trial Court
proceeded to dismiss the suit of the plaintiff, which is contrary
to the document issued by the Municipality, hence the same is
liable to be dismissed.
11. Learned counsel would vehemently contend that
both the Courts declined to accept the case of the plaintiff
regarding mandatory injunction and given the finding that there
is a finding regarding issue No.2 that the plaintiff has failed to
prove the allegation of encroachment and it is contended that
both the Courts failed to take note of the Commissioner report.
Once the documents regarding measurement of 45 x 150 feet
which is accepted by the defendant No.1, the Trial Court cannot
go beyond the same, saying that the plaintiff never enjoyed the
entire portion, which is contrary to the records and dismissed
the suit, which is contrary to record. Hence, this Court has to
admit the appeal and frame substantial question of law whether
the Courts below rightly dismissed the suit only on the basis of
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the evidence of the defendants regarding their enjoyment in
the suit property against illegal documents, whether the Courts
below rightly dismissed the suit even though accepted the
measurement of the suit property i.e., 45 x 150 feet, but still
proceeded to dismiss on the ground that the plaintiff has not
enjoyed the said entire portion.
12. Per contra, learned counsel for the respondent No.1
and learned counsel for the respondent Nos.2 to 12 would
vehemently contend that the Trial Court having taken note of
the admission on the part of plaintiff, particularly that he is not
having any title in respect of the property, though he claims
that he is the owner of the property, not placed any material
before the Court to prove the fact that he is the owner of the
property. The Trial Court comes to the conclusion that it is an
undisputed fact that suit property is a gramatana land and also
taken note of the fact that no such hakku patra was given and
also taken note of unequivocal admission given by the P.W.1,
wherein he categorically admits that in respect of gramatana
land, no hakku patra was given to anybody else and only
entries are found in the revenue documents. Learned counsels
would vehemently contend that when the plaintiff failed to
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prove the extent of land which he is in occupation, the Trial
Court taken note of the material on record, though
Commissioner report discloses that defendant No.2 encroached
western portion of suit property and constructed building in the
encroached portion cannot be accepted. Further, as could be
seen from the Commissioner's sketch, the East to West
measurement of the building of defendant No.3 is 42½ feet as
against the actual width of 41 feet. So, the defendant No.3
was in occupation of 1½ feet excess width. But, the width of
suit property at this particular area is shown in the sketch as 44
feet 10 inches. This fact nullifies the contention of the plaintiff
that at that particular area, the defendant No.3 has encroached
an area measuring East to West: 3 feet and North to South: 32
feet. Apart from this, the excess area, if any that may be
occupied by the defendant Nos.2 and 3 may be the portion of
property situated towards the western side of 2nd defendant's
property and eastern side of 3rd defendant's property as the
case may be and the Trial Court while coming to such
conclusion also in detail discussed in Paragraph No.10 of the
judgment and dismissed the suit.
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13. Learned counsels also would submit that the First
Appellate Court also having taken note of the material on
record, reassessed both oral and documentary evidence placed
on record, particularly in Paragraph Nos.24, 25, 26 and 27 of
the judgment comes to the conclusion that even though
documents of Exs.P2, P3, P8 and P85, the defendants have
proved the measurement of the suit schedule property East to
West: 45 ft. and North to South: 155 ft., but not placed any
title deed in respect of the said property as there is no any title
deed. Even though the plaintiff has not placed any title deed,
as there is no title deed, but failed to prove his ownership over
the suit schedule property, but has succeeded in proving that
he is the khatedar of the suit schedule property as the very
documents produced by the plaintiff i.e., Ex.P8-Assessement
Register Extract, Ex.P9-Demand Register Extract, Tax Paid
Receipts which are at Exs.P65 and Ex.P67, Encumbrance
Certificates which are at Exs.P68 and Ex.P69-Khatha
Endorsement clearly prove the fact that the suit schedule
property presently stands in the name of the plaintiff. The First
Appellate Court also having considered the material on record
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with regard to the encroachment on record and the same is not
established, rightly dismissed the appeal.
14. Having heard the learned counsel for the appellant
and learned counsel for the respondent No.1 and learned
counsel for respondent Nos.2 to 12, it is an admitted fact that
property belongs to gramatana. The Trial Court as well as the
First Appellate Court also taken note of the fact that the
plaintiff claims that he is the lawful owner of the said property
and the same is acquired by his grand-father and no such
document is placed before the Court with regard to the title is
concerned, except the revenue documents and khatha was
changed in his favour, particularly the documents of Exs.P2, P3,
P8 and P85 with regard to the measurement is concerned.
When the plaintiff has filed the suit for the relief of permanent
injunction and also for mandatory injunction, there must be
positive evidence before the Court regarding encroachment is
concerned. First of all, the plaintiff has not placed any material
to prove that he is in exclusive possession of the property to
the extent which he is claiming and title deeds are placed to
prove that property is allotted in his favour. Learned counsel
for the appellant also brought to notice of this Court that the
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defendants are also not claiming in respect of the property
which they are in possession and both the Trial Court and the
First Appellate Court also taken note of admission on the part
of P.W.1 in his cross-examination and even discussed the
evidence of P.W.2 also, wherein he categorically admits that 2nd
defendant was taking his cattle in the said oni and it is his clear
admission that from last 4 to 5 years, they are not keeping any
cattle, but earlier they were using the very same oni to take
their cattle and the same is discussed in Paragraph No.10 of
the judgment of the Trial Court.
15. The Trial Court also in Paragraph No.10(i) of the
judgment, in detail discussed with regard to the extent what is
claimed with regard to the encroachment is concerned. Hence,
comes to the conclusion that there is no worth material before
the Court to hold that the plaintiff ever enjoyed the possession
of property which is in fact measuring East to West 45: feet
and North to South: 150 feet. Merely on the strength of
municipal records, it cannot be concluded that the plaintiff was
in occupation of the property measuring 45 x 150 square feet
and likewise, solely on the ground that the area of enjoyment
by the plaintiff falls shorter than the actual area as mentioned
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in the municipal records, it cannot be held that the remaining
area of the suit property will be under the unauthorized
enjoyment of the defendant Nos.2 and 3. While granting the
relief of permanent injunction, there must be clear material
before the Court that the plaintiff is in exclusive possession of
the property and the plaintiff also contend that with regard to
the ownership is concerned, that there was no hakku patra in
respect of the identity of the property and claim that property
was allotted to his grand-father and in respect of granting of
land to the extent of 45 x 150 feet concerned, no document is
placed and unless identity of the property is proved and also
the extent of property which he owns, the contention that there
is an encroachment by the defendant Nos.2 and 3 cannot be
accepted, in the absence of proof of encroachment. Hence, the
Trial Court in detail discussed the same and even while granting
the relief of mandatory injunction also, first the Court has to
come to the conclusion the extent of land which the plaintiff
owns and no such material is placed before the Court.
Therefore, when the identity of the property to the extent
which the plaintiff claims has not been proved, the question of
granting the relief of mandatory injunction does not arise and I
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do not find any error committed by the Trial Court and the First
Appellate Court in considering the material on record,
particularly, taking note of admission on the part of P.Ws.1 and
2 which goes against their own evidence. Hence, no grounds
are made out to invoke Section 100 of CPC to admit the appeal
and frame any substantial question of law.
Accordingly, the regular second appeal is dismissed.
Sd/-
JUDGE
ST
