Karnataka High Court
Sri Maddu Krishna vs Smt Kamalamma on 21 October, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2024:KHC:42103
RSA No. 1319 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO.1319 OF 2012 (DEC)
BETWEEN:
1. SRI MADDU KRISHNA,
S/O LATE VENUGOPALAIAH,
AGED ABOUT 73 YEARS,
R/O KOLIBURUJANAHATTY,
CHITRADURGA CITY - 577 501.
2. SRI Y. RAMANNA,
S/O LATE VENUGOPALAIAH,
AGED ABOUT 71 YEARS,
R/O NO.71, 4TH CROSS,
KSRTC LAYOUT,
J.P. NAGAR 2ND PHASE,
BANGALORE-560 076.
3. SRI Y. GOPALKRISHNA,
SINCE DECEASED BY HIS LR'S
3(a) MRS. VINUTHA,
AGED ABOUT 53 YEARS,
W/O LATE Y GOPALAKRISHNA,
Digitally signed 3(b) MR. VIJAY C.G.,
by ANUSHA V S/O LATE Y. GOPALAKRISHNA,
Location: High AGED ABOUT 31 YEARS,
Court Of
Karnataka 3(c) MR. MURALI C.G.,
S/O LATE Y GOPALAKRISHNA,
AGED ABOUT 29 YEARS,
APPELLANTS NO.3(a) TO 3(c) ARE
R/O BASAVESHWARA NAGAR,
BANGALORE - 560 079.
...APPELLANTS
[BY SRI G. NATARAJ, ADVOCATE (PH)]
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RSA No. 1319 of 2012
AND:
1. SMT. KAMALAMMA,
W/O SATHYANARAYANA,
AGED ABOUT 37 YEARS,
R/O KASTURBA ROAD,
SHIMOGA CITY - 577 201.
2. SMT SHOBA,
W/O JAGADEESHA,
AGED ABOUT 46 YEARS
R/O KOLIBURUJINAHATTY,
CHITRADURGA CITY - 577 501.
3. SRI GIRISH,
S/O LATE C ANNAPPA,
AGED ABOUT 44 YEARS,
R/O KASTURBA ROAD,
SHIMOGA CITY - 577 201.
4. SRI REVENASIDDAPPA,
S/O DARI GIDDAPPA,
AGED ABOUT 61 YEARS,
ASI(RETD), KOLIBURUJINAHATTY,
CHITRADURGA CITY - 577 501.
...RESPONDENTS
(BY SRI B.M. SIDDAPPA, ADVOCATE FOR R1 TO R3 (VC);
V/O DTD 3.6.2024 APPEAL AGAINST R4 IS DISMISSED AS ABATED)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGMENT & DECREE DTD 14.12.2011 PASSED IN R.A.NO.39/2006
ON THE FILE OF 2ND ADDITIONAL SENIOR CIVIL JUDGE AND
ADDITIONAL MACT, CHITRADURGA, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED 8.3.2006
PASSED IN O.S.NO.188/1998 ON THE FILE OF 2ND ADDITIONAL
CIVIL JUDGE (JR.DN.) & JMFC, CHITRADURGA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI
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RSA No. 1319 of 2012
ORAL JUDGMENT
Challenging judgment and decree dated 14.12.2011
passed by II Addl. Senior Civil Judge & Addl. MACT.,
Chitradurga, in R.A.no.39/2006 and judgment and decree dated
08.03.2006 passed by II Additional Civil Judge (Jr.Dn.) and JMFC,
Chitradurga, in O.S.NO.188/1998, this appeal is filed.
2. Sri G. Natraj, learned counsel for appellants
submitted, this appeal was by plaintiff against divergent
findings. It was submitted, O.S.no.188/1998 was filed for
declaration that plaintiff was owner of suit property marked as
'ABCD', measuring 10 ft. X 32 ft. of vacant space towards
Western side ('suit property' for short) with consequential
relief of permanent injunction against interference with
peaceful possession and mandatory injunction directing
defendants to remove compound wall stones, already
constructed latrine rooms and to handover vacant possession of
suit property etc.
3. In plaint, it was stated, originally vacant site and
old black tiled roofed house bearing khata no.1089, 786/900
and 1089 and door no.499, situated in 1st block, Chitradurga,
measuring East to West - 44 ft. and North to South - 32 ft.
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That, house was on Eastern side measuring East-West - 34ft.
and North-South-32ft. and remaining vacant portion towards
Western side measuring 10ft. X 32ft. was a disputed vacant
space. It was stated, even defendant had vacant site towards
Western side of this vacant portion, but constructed a house by
encroaching on plaintiff's vacant portion. It was stated, when
plaintiff intended to construct compound wall around vacant
space, defendants obstructed plaintiff from stocking
construction material. It was stated there was illegal
construction of latrine towards Western side of old house and
construction material was stocked for further construction and
if same was permitted, plaintiff would loose vacant space. It
was stated illegal construction was put up by abusing official
position by defendant no.1, working in Police Department. As
there was harassment, suit for declaration was filed.
4. On service of summons, defendants entered
appearance and filed written statement denying title and
possession of suit property by plaintiff. Existence of vacant
space belonging to plaintiff and its encroachment by defendants
were denied. It was alleged, reliefs were not properly valued
and adequate Court fee paid. It was stated, one Medakarappa,
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who owned houses and sites was grandfather of defendant
no.1. He had seven sons, namely Masiyappa, Obalappa,
Sannappa, Honnappa, Narasimhappa, Chikkanna and
Bharmappa. Defendant no.1 was son of Sri Chikkanna. It was
further stated, three brothers had left their houses and site in
favour of Chikkanna for installation of Goddess/God
Masiyamma, Anjaneya, Ganapathi, Mylaralingeshwara and
Katte Chowdamma. And that Chikkanna had installed said
God/Goddesses in house and vacant site.
5. It was further stated that defendant no.1 had five
brothers namely, Vasudeva, Nagaraja, Krishnamurthy,
Narayana and Medakarappa of whom Vasudeva was adopted by
his uncle Bharmappa. Vasudeva had given up his right in house
and site bearing assessment no.1118/875/810 in favour of
defendant no.1. Likewise, property bearing no.1117/824/808
left to Chikkanna was also mutated in his favour. Thus, he was
owner in possession of above properties. Further, defendant
no.2 had married younger sister of defendant no.1 and was
therefore allowed to reside in house and site by worshipping
God/Goddesses till regular temple was constructed. And that
Smt.Pramila wife of defendant no.2 had purchased vacant site
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to Western side of properties of defendant no.1, bearing
assessment no.1127A/832/816A and khata no.1127A
measuring 153/4 ft. X 50 ft. with vacant site of defendant no.1
on its Eastern side. It was stated, there was no vacant site on
Western side of plaintiff's site and therefore, plaintiff was not
entitled for any relief.
6. After amendment of plaint, defendant no.2 filed
additional written statement denying ownership of plaintiff over
suit property. Defendant no.1 had filed memo adopting
additional written statement of defendant no.2. Allegation of
putting up construction in violation of orders of interim
injunction were denied. It was stated, father of defendant no.1
had constructed compound wall in year 1948 and latrine in year
1971, much prior to filing of suit and grant of temporary
injunction. It was stated vacant space of 11ft. X 9 ft. situated
on Western side of alleged old house of plaintiff belonged to
defendant no.1 and his brothers and plaintiff had no right, title
or interest in same.
7. Based on pleadings, trial court framed following:
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Issues:
1) Whether the plaintiff proves that he is the owner and
in possession of the suit schedule property measuring 11
X 9 yards as shown in ABC in rough sketch?
2) Whether plaintiff further proves the defendants
obstruction and interference of the suit schedule
property?
3) Whether defendants prove that there is no vacant
site to west of old black tiled house belonging to plaintiff
but it belongs to defendant No.1 as contended in para 12
of the defence?
4) Whether plaintiff proves that he is entitled for the
reliefs of declaration and permanent injunction as sought
for in the plaint?
5) What order and decree?
Addl. Issues:
1) Whether plaintiff proves that the defendants after
filing the suit have put up a compound towards the
western side measuring 11 X 9 yards in the suit schedule
property violating order of T.I. and also constructed a
latrine as shown in the rough sketch marked as ABCD?
2) If so, whether the said illegal construction is to be got
removed by an order of mandatory injunction?
3) Whether plaintiff is entitled for possession of the
encroached area from the defendants?
4) Whether plaintiff proves that defendants put a
compound towards western side 10X32 feet in the suit
schedule property by violating the injunction order, as
shown in the rough sketch marked as A, B, C.D?
8. Thereafter, plaintiff got examined himself and
another as PWs 1 and 2 and got marked Exhibits P1 to 13. In
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rebuttal, defendant no.2 got himself and four others examined
as DWs.1 to 5 and got marked Exhibits D1 to 17. Court
Commissioner appointed was examined as CW.1 and Exhibits
C1 to 8 were marked.
9. On consideration, trial Court answered issue no.1
partly in affirmative; issue no.2, additional issues no.2 and 4 in
affirmative, issue no.3 and additional issue no.3 in negative,
issues no.4 and 5 as per final order and additional issue no.1 as
not arising for consideration. Based on said conclusions, trial
Court decreed suit in part, restraining defendants, their agents
etc. from interfering with peaceful possession and enjoyment of
suit property and issued mandatory injunction directing
defendants to remove compound wall stones and latrine room
within two months.
10. Aggrieved, defendants no.1 and 2 preferred
R.A.no.39/2006 before II Addl. Senior Civil Judge & Addl.
MACT., Chitradurga (herein after referred to as 'FAC'). It was
contended trial Court erred in holding that plaintiff was in
possession and enjoyment of suit property, and considering
Ex.P-9 sale deed for boundaries and possession. It erred in
decreeing suit based on stray admission and failed to consider
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oral and documentary evidence of defendants. It failed to
consider that property of plaintiff and defendants was totally
different and there was no interference by them. Further,
Exs.P.9 to 13 did not relate to suit property, but, considered as
such by trial Court etc.
11. Based on contentions, first appellate Court framed
following points for consideration:
1) Whether the trial court has committed any error in
appreciating the oral and documentary evidence produced
b y both the parties?
2) Whether the trial court has committed any error that
though there is no admission by DW-1 and 5 about
plaintiff's possession but wrongly considered that DW-1
and 5 have admitted the possession of plaintiff?
3) Whether the suit is bad for non-joinder of necessary
parties?
4) Whether the impugned judgment is perverse, illegal
and arbitrary and the same is required to be set aside in
its entirety?
5) What order?
12. Under impugned judgment, it answered points no.1,
2 and 4 in affirmative, point no.3 in negative and point no.5 by
allowing appeal, setting aside judgment and decree of trial
Court and dismissing plaintiff's suit. It was submitted, said
order suffered from various infirmities giving rise to substantial
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question of law and sought for allowing appeal by answering
same in favour of appellants.
13. It was submitted, as per Ex.P.9 - sale deed, plaintiff
was in possession of suit property. Further, defendant no.2
examined as DW1 admitted that suit property belonged to
plaintiff and further that brother of plaintiff had kept vacant
space towards Western side for people to walk. Same was
corroborated by other witnesses of defendants. However, said
material evidence was ignored by FAC.
14. It was submitted, trial Court relied on said material
to hold plaintiff was having title and possession over suit
property. On other hand, defendants utterly failed to lead any
specific evidence to establish title over suit property. Hence,
reversal of finding of trial Court by FAC was unsustainable.
15. It was submitted, Court Commissioner in his report
at Ex.C.8 had noted construction of compound wall of 6 and
1/2 ft. in height 11ft. in width and 30.4 ft. in length. Thus, even
Commissioner's report supported existence of vacant space
towards Western side of plaintiff's house. It was submitted, in
view of above grounds, following substantial question of law
would arise for consideration:
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"Whether the First Appellate Court was justified in
not taking into account the admission being made by
the defendants/respondents regarding the
possession of the suit schedule property and still
then putting burden on the plaintiff to substantiate
the Issue?"
16. Learned counsel sought for answering same in
favour of appellant, set aside judgment and decree of FAC and
restore that of trial Court.
17. On other hand, Sri B.M. Siddappa, learned counsel
appearing through Video conferencing sought to oppose appeal.
It was submitted, plaintiff's claim was admittedly in excess of
extent mentioned in registered sale deed - Ex.P.9.
18. It was submitted Court Commissioner had
submitted report by referring to Ex.P.9 - sale deed about non-
existence of vacant space as per registered sale deed. Referring
to same, trail Court held plaintiff lacked title over suit property.
It was submitted, in absence of title, there would be no
question of granting relief of possession.
19. Further, referring to photographs at Exs.D.14 to 17,
trial Court had held there was construction of compound wall in
suit property by defendants. However, there was no basis for
its conclusion that said construction was after filing of suit.
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Hence, FAC set-aside findings. It was submitted, since reversal
was on question of fact, there was no scope for interference in
Second Appeal and sought for its dismissal.
20. From above, while giving finding on issue no.1, trial
Court referred to deposition of PW.1, wherein, it found him
unable to depose about particulars of suit property namely
property number, it's measurements and title deed under which
it was acquired and duration of possession. Even referring to
Ex.P9 - Sale Deed relied upon by plaintiff to substantiate title, it
observes same was in respect of house property. It observed,
initially plaintiff had sought relief in respect of 11 X 9 arms
length, but later amended it as 10 X 12 feet shown as 'ABCD'.
Referring to above oral and documentary evidence, it held
plaintiff failed to establish title and ownership of suit property.
It however, proceeded to grant relief of permanent injunction
against interference with suit property and mandatory
injunction to remove compound wall stones and latrine room
from suit property, referring to admissions by defendant no.2
examined as DW-1 that suit property was kept vacant by
plaintiff corroborated by DW-5.
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21. It is seen against categorical rejection of relief of
declaration of title, plaintiff did not either prefer appeal or filed
cross appeal in appeal filed by defendants. Learned Judge of
FAC, on re-appreciation, observes neither Ex.P9, title deed
based on which plaintiff was seeking relief, nor Exs.P6 to P8
contain any recital about existence of disputed vacant space on
'western side of black tiled house'. It also referred to plaintiff's
deposition wherein he admitted there was no door or windows
on western side of his black tiled house. It observes, front door
of plaintiff's house was on eastern side and there was no
mention about existence of any backyard. It observes that
finding of trial Court about possession was solely on admission
of DW-1 and DW-5, which it found to be stray admission.
22. Insofar as admission, FAC observes that there were
no suggestion made to DW-1 and DW-5 on behalf of plaintiff
that plaintiff was in possession and enjoyment of suit property.
It observed, DW-1 had admitted plaintiff and his brothers had
left space for devotees to go to house of defendants, wherein
deities were established would not amount to admission about
plaintiff's possession over suit property. It concluded such
admission being contrary to recitals in Ex.P9, which did not
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indicate existence of vacant space, would be a stray admission.
It further held, in absence of claim by plaintiff to have been
unauthorized occupation and perfected title by way of adverse
possession, no relief could be granted to plaintiff.
23. Further, while considering report submitted by
Court Commissioner, it observes that sketch, report and
deposition of Court Commissioner was with reference to Ex.P9
and even vacant space shown was more than claimed by
plaintiff. Thereafter applying principle of law that plaintiff who
has approached Court seeking declaration of title has to
establish his case on his own and cannot rely solely on
weakness of defendants, overturned finding of trial Court and
reversed decree.
24. Though, as per decision of Hon'ble Supreme Court
in Pakeerappa Rai v. Seethamma Hengsu and Ors.,
reported in 2001 (9) SCC 521, held that there cannot be re-
appreciation of evidence and even gross errors on facts cannot
be corrected in an appeal under Section 100 of CPC. After
careful perusal of Ex.P9 - sale deed, both trial Court as well as
FAC have arrived at concurrent finding of fact that it shows
existence of vacant space of 7 arms length on front side of
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house, without any recital or reference to vacant space on
'western side' of black tiled house, which is description of suit
property in plaint.
25. Trial Court has categorically held plaintiff failed to
establish title over suit property. Admittedly, plaintiff neither
pleaded nor established satisfaction of requirements of law for
declaration of title by way of adverse possession. Hence, trial
Court committed grave error in granting relief based on
admissions of defendants, which are found to be stray
admission by FAC, which finding is after re-appreciation of
entire material on record.
26. In view of above, no substantial question of law as
proposed arises for consideration. Consequently, following:
ORDER
Appeal is dismissed with costs throughout.
Sd/-
(RAVI V HOSMANI)
JUDGE
Psg*
