[Cites 4, Cited by 0]
Karnataka High Court
Chandrakant vs Gyanoba S/O. Mahadba Mankare on 18 December, 2025
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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RSA No. 887 of 2008
C/W RSA No. 200429 of 2014
HC-KAR
IN THE HIGH COURT OF KARNATAKA
®
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF DECEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
REGULAR SECOND APPEAL NO.887 OF 2008 (DEC)
C/W
REGULAR SECOND APPEAL NO.200429 OF 2014
IN RSA No.887/2008
BETWEEN:
1. CHANDERAKANT S/O RAJARAM PATIL,
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O. VILLAGE CHANDANHALLI,
TQ. HUMNABAD, DIST. BIDAR-585401.
2. SURYAKANT S/O RAJARAM PATIL,
AGE: 43 YEARS, OCC: AGRICULTURE,
Digitally signed
by KHAJAAMEEN R/O. VILLAGTE CHANDANHALLI,
MALAGHAN TQ. HUMNABAD, DIST. BIDAR-585401.
Location: HIGH
COURT OF ...APPELLANTS
KARNATAKA
(BY SRI. DEEPAK V. BARAD, ADVOCATE)
AND:
1. GYANOBA S/O MAHADBA MANKARE,
SINCE DECD BY HIS LRS,
1A) SMT. GANGUBAI W/O. GYANOBA MANKARE,
AGED: 56 YEARS, OCC: HOUSEHOLD,
R/O. CHANDANHALLI,
TQ.HUMNABAD, DIST. BIDAR-585401.
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1B) BALIRAM S/O GYANOBA,
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O. CHANDANHALLI,
TQ.HUMNABAD, DIST. BIDAR-585401.
1C) VALMIK S/O GYANOBA,
AGE: 31 YEARS, OCC: AGRICULTURE,
R/O. CHANDANHALLI,
TQ.HUMNABAD, DIST. BIDAR-585401.
1D) SHANTABAI W/O NAGANNA,
AGE: 28 YEARS, OCC: HOUSEHOLD WORK,
R/O. KALWADI, TQ. BHALKI,
DIST. BIDAR-585401.
1E) CHITRABAI W/O SHARNAPPA,
AGE: 25 YEARS, OCC: HOUSEHOLD WORK,
R/O. VILLAGE MUSTARI,
TQ. HUMNABAD, DIST. BIDAR-585401.
1F) SRAWAN S/O MAHADBA MANKARE,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O. CHANDANHALLI, TQ. HUMNABAD,
DIST. BIDAR-585401.
...RESPONDENTS
(BY SRI. SACHIN M. MAHAJAN, ADVOCATE FOR R1(B), R1(C),
R1(F) AND R1(E)
V/O DTD. 7.1.2016 R1(B AND C) ARE TREATED AS
LRS OF R1(A);
V/O DTD. 29.02.2024 NOTICE TO R1(D) IS HELD SUFFICIENT)
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RSA No. 887 of 2008
C/W RSA No. 200429 of 2014
HC-KAR
IN RSA NO.200429/2014
BETWEEN:
1. CHANDRAKANTH S/O. RAJARAM PATIL,
AGE ABOUT 55 YEARS, OCC: AGRI,
R/O. VILLAGE CHANDANHALLI,
TQ. HUMNABAD, DIST. BIDAR.
2. SURYAKANTH S/O. RAJARAM PATIL,
AGE ABOUT 51 YEARS, OCC : AGRI,
R/O. VILLAGE CHANDANHALLI,
TQ: HUMNABAD, DIST. BIDAR.
...APPELLANTS
(BY SRI. DEEPAK V. BARAD, ADVOCATE)
AND:
1. GANGABAI W/O. GYANBA MANKARI,
AGE: 81 YEARS, OCC: AGRI,
R/O. VILLAGE CHANDANHALLI,
TQ. HUMNABAD, DIST. BIDAR-585401.
2. BALI RAM S/O. GYANBA MANKARI,
AGE: 58 YEARS, OCC : AGRI,
R/O. VILLAGE CHANDANHALLI,
TQ. HUMNABAD, DIST. BIDAR-585401.
2A) RUKMINIBAI W/O BALIRAM,
AGE: ABOUT 60 YEARS, OCC: HOUSEHOLD,
R/O. CHANDANHALLI, TQ. HUMNABAD,
DIST. BIDAR.
2B) HARIDAS S/O BALIRAM,
AGE: ABOUT 35 YEARS, OCC: AGRICULTURE,
R/O VILLAGE CHANDHANHALLI,
TQ.HUMNABAD, DIST. BIDAR.
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2C) SHEELA W/O PANDARI,
AGE: 30 YEARS, OCC: HOUSEHOLD,
2D) SHIVABAI W/O TANAJI,
AGE: 40 YEARS, OCC: HOUSEHOLD,
R/O LECTURE COLONY, GUNJ COLONY,
OPP: BAKKA HOUSE, BHALKI.
2E) URMILA W/O NARASAPPA,
AGE: 36 YEARS, OCC: HOUSEHOLD,
R/O AT SANGOLGI, TQ AND DIST. BIDAR.
3. VALMIK S/O. GYANBA MANKARI,
AGE: 51 YEARS, OCC : AGRI,
R/O. VILLAGE CHANDANHALLI,
TQ.: HUMNABAD, DIST. BIDAR-585401.
4. SHANTABAI W/O NAGANNA,
AGE: 48 YEARS OCC: AGRI,
R/O. VILLAGE KALYANRAO WADI,
NEAR CHINCHOLI- K,
TQ. HUMNABAD, DIST. BIDAR-585401.
5. CHITRA BAI W/O MALLAPPA CHINCHOLI,
AGE: 45 YEARS, OCC: AGRI,
R/O. VILLAGE MUSTARI,
TQ. HUMNAVAD, DIST. BIDAR-585401.
6. SRAWAN S/O. MAHADA MANKARI,
SINCE DECEASED BY HIS LRS,
I. SHARNAMMA W/O. SRAWAN MANKARI,
AGE: 86 YEARS, OCC: HOUSEHOLD,
R/O. VILLAGE CHANDANHALLI,
TQ. HUMNABAD, DIST. BIDAR-585401.
II. MAHADEV S/O SRAWAN MANKARI,
AGE ABOUT 64 YEARS, OCC : AGRI.,
R/O. VILLAGE CHANDANHALLI,
TQ. HUMNABAD, DIST. BIDAR-585401.
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III. JANKABAI W/O VEERAPPAP JAMADAR,
AGE: 61 YEARS, OCC: HOUSEHOLD,
R/O. HALLIKHED (B), TQ. HUMNABAD,
DIST. BIDAR-585401.
IV. DASHRATH S/O SRAWAN MANKARI,
AGE: 51 YEARS, OCC: AGRI,
R/O VILLAGE CHANDANHALLI,
TQ. HUMNABAD, DIST. BIDAR-585401.
V. ZHARNAMMA W/O SURESH MAJKURI,
AGE:48 YEARS, OCC: HOUSEHOLD,
R/O. HULSOOR, TQ. BASAVAKALYAN,
DIST. BIDAR-585401.
VI. SANJEEV S/O SRAWAN MANKARI,
AGE: 46 YEARS, OCC: AGRI,
R/O. VILLAGE CHANDANHALLI
TQ. HUMNABAD,
DIST. BIDAR-585401.
VII VITHAL BAI W/O RAJAPPA,
AGE: 44 YEARS, OCC: HOUSEHOLD,
R/O. CHALKAPUR, TQ. BHALKI,
DIST. BIDAR-585401.
VIII) RAJU S/O. SRAWAN MANKARI,
AGE: 42 YEARS, OCC : AGRI.,
R/O. VILLAGE CHANDANHALLI,
TQ. HUMNABAD, DIST. BIDAR-585401.
7. ISHWAR S/O. GUNDAPPA KALE,
AGE: 91 YEARS, OCC : NIL,
R/O. CHANDANHALLI, TQ. HUMNABAD,
NOW AT KHAYAD HULSOOR,
TQ. AURAD (B),
DIST. BIDAR-585401.
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8. BHAV RAO S/O. VITHOBA KALE,
AGE: 48 YEARS, OCC : AGRI,
R/O. CHANDANHALLI,
TQ. HUMNABAD,
NOW RESIDING AT JOLDABKA,
TQ. BHALKI,
DIST. BIDAR-585401.
9. RAO SAHEB S/O.VITHOBA KALE,
AGE: 46 YEARS, OCC : AGRI,
R/O. CHANDANHALLI,
TQ. HUMNABAD,
NOW RESIDING AT JOLDABKA,
TQ. BHALKI DIST. BIDAR-585401.
10. BABU RAO S/O. VITHOBA KALE,
AGE: 44 YEARS, OCC : AGRI,
R/O. CHANDANHALLI,
TQ. HUMNABAD,
NOW RESIDING AT JOLDABKA
TQ. BHALKI DIST. BIDAR-585401.
11. PRAKASH S/O. GOVIND KALE,
AGE: 51 YEARS, OCC: AGRI,
R/O. CHANDANHALLI,
TQ. HUMNABAD,
NOW RESIDING AT KUSHNOOR,
TQ. AURAD (B),
DIST. BIDAR-585401.
12. RAGHU S/O GOVIND KALE,
AGE: 45 YEARS, OCC : AGRI,
R/O. CHANDANHALLI,
TQ. HUMNABAD,
NOW RESIDING AT KUSHNOOR,
TQ. AURAD (B). DIST. BIDAR-585401.
13. SURESH S/O. GOVIND KALE,
AGE 43 YEARS, OCC: AGRI,
R/O. CHANDANHALLI,
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TQ. HUMNABAD,
NOW RESIDING AT KUSHNOOR,
TQ. AURAD (B), DIST. BIDAR-585401.
14. RAJA S/O. GOVIND KALE,
AGE: 41 YEARS, OCC : AGRI,
R/O. CHANDANHALLI,
TQ. HUMNABAD,
NOW RESIDING AT KUSHNOOR,
TQ. AURAD (B),
DIST. BIDAR-585401.
15. BAI D/O. GOVIND KALE,
AGE: 34 YEARS, OCC: HOUSEHOLD,
R/O. CHANDANHALLI,
TQ. HUMNABAD,
NOW RESIDING AT KUSHNOOR,
TQ. AURAD (B), DIST. BIDAR-585401.
16. AMBU BAI W/O GOVIND KALE,
AGE: 86 YEARS, OCC :HOUSEHOLD,
R/O. CHANDANHALLI,
TQ.HUMNABAD,
NOW RESIDING AT KUSHNOOR,
TQ, AURAD(B), DIST. BIDAR-585401
...RESPONDENTS
(BY SRI SACHIN M. MAHAJAN, ADVOCATE FOR R2 TO R5
AND R6(I) TO R6(VIII)
V/O DTD. 8.1.16 R2 AND R3 ARE TREATED AS LRS OF
DECEASED R1;
V/O DTD. 25.3.21 PASSED IN RSA887/08 NOTICE TO
R11 TO R16 IS HELD SUFFICIENT)
THIS RSA IS FILED UNDER SECTION 100 OF THE CPC,
PRAYING TO ALLOW THE ABOVE REGULAR SECOND APPEAL
AND SET ASIDE THE THE JUDGMENT AND DECREE DATED
21.08.2014 PASSED BY THE SENIOR CIVIL JUDGE AT
HUMNABAD IN R.A. NO. 15/2012 & THE JUDGMENT AND
DECREE DATED 18.04.2012 PASSED BY THE PRL. CIVIL
JUDGE AT HUMNABAD IN O.S. NO. 175/1998 AND
CONSEQUENTLY BE PLEASED TO DISMISS THE SUIT OF THE
PLAINTIFF.
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RSA No. 887 of 2008
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HC-KAR
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 23.10.2025, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENTS' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE M.G.S.KAMAL
CAV JUDGMENT
RSA.No.887/2008 is filed by the plaintiff in
O.S.No.51/1989, on the file of Principal Civil Judge (Jr. Dn)
Humnabad (hereinafter referred to as the 'Trial Court'),
aggrieved by the judgment and decree dated 11.02.2002
passed therein by which the Trial Court dismissed the
above suit of the plaintiff seeking relief of declaration and
recovery of possession which is confirmed by the
judgment and decree dated 14.02.2008 passed in
R.A.No.13/2002 on the file of Civil Judge (Sr. Dn),
Basavakalyan.
02. RSA.No.200429/2014 is filed by defendants
No.11 and 12 in O.S.No.175/1998 on the file of Principal
Civil Judge, Humnabad (hereinafter referred to as the
'Trial Court'), aggrieved by the judgment and decree dated
21.08.2014 passed therein decreeing the suit of the
plaintiffs therein, which is confirmed in R.A.No.15/2012.
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03. Plaintiffs in O.S.No.51/1989 are the defendants
No.11 and 12 in O.S.No.175/1998. The defendants in
O.S.No.51/1989 are the plaintiffs in O.S.No.175/1998.
Since, the judgment and decree subject matter of these
two proceedings are between the same parties, arising out
of the common issues, these two appeals are taken up for
common disposal.
04. The term 'plaintiffs' in this judgment shall be
referred the plaintiffs in O.S.No.51/1989 who are also
defendants No.11 and 12 in O.S.No.175/1998. The term
'defendants' in this judgment shall be referred to the
plaintiffs in O.S.No.175/1998 who are the defendants in
O.S.No.51/1989.
05. The subject matter of aforesaid two suits is the
land measuring 06 acres 16 guntas in Sy.No.125 situated
at Chandanahalli village Humnabad Taluka Bidar District
[hereinafter referred to as the 'subject land'].
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O.S.No.51/1989:
06. Suit in O.S.No.51/1989 is filed by the plaintiffs
seeking following reliefs:
"A) That the declaration be made that the plaintiffs is
the owner of the suit land Sy.No.125 measuring 06
acres 16 guntas R.A. of Rs.6-70 paise, as shown in red
colour in the plaint sketch situate at village
Chandanahalli Taluka Humnabad Dist: Bidar.
B) That a decree be passed directing to put the
plaintiffs in possession of the suit land Sy.No.125,
measuring 06 acres 16 guntas R.A. of Rs.6-70 paise, as
shown in red colour in the plaint sketch map situated at
village Chandanhalli Tq. Humnabad Dist: Bidar by
dispossessing the defendants or any person found in
possession.
C) Decree for mesne profit, for the past one year and
future, mesne profit, at the rate of Rs.2000/- per
annum be passed against the person and property of
the defendants.
D) Declaration be made that the collusive compromise,
decree in 0.S.No.242, of 1988, Gyanoba and another
/vs/ Ishwar dated 14-02-1989, is null and void, is not
bind on the plaintiffs.
E) Cost of the suit be awarded against the defendants.
F) Any other equitable relief for which the plaintiffs are
entitled to be granted."
Contending inter alia that:
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6.1. Vithoba, Ishwar and Govind, the three sons of
one Gundappa Kale were the owners of land in Sy.No.105
measuring 06 acres 16 guntas, without Well and another
land in Sy.No.125 measuring 18 acres and 39 guntas with
a Well, both situated at village Chandanahalli village,
Humnabad Taluk and Bidar District.
6.2. The aforesaid three persons sold land in
Sy.No.105 measuring 06 acres 16 guntas to the
defendants under registered deed of sale dated
27.04.1970, with wrong descriptions and boundaries. The
plaintiff No.1 subsequently purchased land in Sy.No.125
measuring 18 acres 39 guntas along with a dilapidated
well in terms of registered deed of sale dated 06.04.1983
for a valuable sale consideration of Rs.15,000/-. Though,
entire land in Sy.No.125 was purchased by them, they
could not ascertain the limits and extent of the area so
purchased, till recently when they obtained measurement
of the said land with reference to Tippani Map through a
private surveyor, wherein it was revealed that the
defendants are in illegal possession of the subject land,
which is shown in the red colour of the sketch enclosed to
the plaint. Thereupon, the plaintiffs requested the
defendants to vacate and restore the possession of the
subject land to the plaintiffs with mesne profits at
Rs.2,000/- per annum from 1987-88 which was not
considered by the defendants.
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6.3. Then subsequent to filing of suit, plaintiffs learnt
that defendants have obtained a collusive compromise
decree in O.S.No.242/1988 against Ishwar and another
and had got decree for seeking relief of rectification of
their deed of sale by altering Sy.No.105 into Sy.No.125.
That the plaintiff No.1 after purchasing the property in
Sy.No.125 obtained revenue records in his name. That
since the plaintiffs are not party to the decree in
O.S.No.242/1988, the same is null and void and not
binding on them. Hence, the suit for declaration and
possession.
7. Defendants in their written statement denying
the plaint averments and allegations contented that:
7.1 They have purchased land in terms of deed of
sale dated 27.04.1970, which is bounded on the East by :
unsold land of the vendors, West by : land belonging to
defendant No.1, North by : land of one Shankar Ingle and
South by : land of one Laxman Parith. That their vendors
instead of mentioning Sy.No.125, have wrongly mentioned
the Sy.No.105 in the said registered deed of sale and the
same has been rectified in terms of decree passed in
O.S.No.242/1988. They have been in possession and
enjoyment of the said portion of the land.
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7.2. That they have dug up a Well in the portion of
the property purchased by them. That the plaintiffs could
not have purchased the entire extent of land measuring 18
acres 39 guntas in Sy.No.125. As such, they have no locus
standi to file the suit.
7.3. Alternatively, it is contented that the
defendants have perfected their title by way of adverse
possession. Since, from the date of their purchase they
have been openly and continuously enjoying their right,
title and interest over the subject land to the knowledge
of the plaintiffs. That the suit is not maintainable for non-
joinder of original vendors, who have executed respective
deeds of sale in favour of the plaintiffs as well as the
defendants in respect of the suit land. Hence, sought for
dismissal of the suit.
8. The Trial Court on consideration of the
pleadings framed following issues:
(i) Whether plaintiffs prove that plaintiff No.1
purchased the land Sy.No.125 of Chandanhalli
village, measuring 18 acres 39 guntas under
registered sale deed executed by Ishwar and
others.?
(ii) Whether they further prove their ownership over
the said land.?
(iii) Whether they further prove that the defendants are
in illegal possession over the suit land Sy.No.125
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measuring 06 acres 16 guntas as shown in red
colour in the plaint sketch situated at Chandanhalli,
Tq. Humnabad.?
(iv) Whether they further prove that the plaintiffs are
entitled for mesne profits at the rate of Rs.2,000/-
per annum.?
(v) Whether the decree in O.S.No.242/83 Gyanoba and
others Vs. Ishwar dated .14.2.1989 is null and void
and not binding on the plaintiffs.?
(vi) Whether the defendants prove that they are in
adverse possession of the suit land and perfected
the title by adverse possession.?
(vii) Whether they further prove that the suit is barred
by limitation and suit is not maintainable.?
(viii) Whether they further prove that there is a mis-
joinder of cause of action.?
(ix) Whether they are entitled for compensatory costs.?
(x) Whether the plaintiffs are entitled for the reliefs as
sought for.?
(xi) What decree or order.?
09. The plaintiff No.1 examined himself as PW.1
and two witnesses as PW.2 and PW.3 and exhibited 62
documents as Ex.P.1 to Ex.P.62. Seven witnesses have
been examined on behalf of the defendants as DW.1 to
DW.7 and have exhibited 17 documents as Ex.D.1 to
Ex.D.17. On appreciation of evidence, the Trial Court
answered issues No.1 and 2 partly in the affirmative,
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issues No.6, 7 and 8 in the affirmative and issues No.3, 4,
5, 9 and 10 in the negative and consequently, dismissed
the suit.
10. Being aggrieved by the same, the plaintiffs
preferred regular appeal in R.A.No.13/2012. Considering
the grounds urged, the First Appellate Court framed the
following points for its consideration:-
(i) Whether the judgment and decree under appeal
are contrary to law and evidence on record?
(ii) Whether there are any grounds for this Court to
interfere in the judgment and decree under
appeal?
(iii) Whether the plaintiffs were entitled for declaration
of right of ownership and recovery of possession
as sought for in the suit ?
(iv) What decree or order?
11. On re-appreciation of evidence, the First
Appellate Court answered points No.1, 2 and 3 in the
negative and consequently, dismissed the appeal and
confirmed the judgment and decree passed by the Trial
Court. Being aggrieved the plaintiffs are before this Court
in RSA.No.887/2014.
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O.S.No.175/1998:
12. The O.S.No.175/1998 is filed by the defendants
seeking following reliefs:-
A) It be declared that the plaintiffs No.1 to 5 are the
co-owners and co-possessors of land Sy.No.125/2
measuring 03 acres 08 guntas R.A. of Rs.3-36 paise,
situated at village Chandanhalli Tq. Humnabad Dist
Bidar. The said land corresponds Sy.No.125/A in R.O.R.
along with well and trees situated therein and so also
the plaintiff No.6 be declared as the exclusive owner
and possessor of land Sy.No.125/1 measuring 01 acre
06 guntas R.A. of Rs.1-21 paise and Sy.No.125/3
measuring 02 acres 02 guntas R.A. of Rs.2-15 paise,
both situated at village Chandanhalli Tq. Humnabad,
both lands corresponds Sy.No.125/8 in R.O.R. along
with well and trees situated therein, as shown in the
enclosed sketch map, (as per the present R.O.Rs).
B) That the defendants No.1 to 12 be perpetually
restrained from causing illegal interference and
obstruction into the lawful possession and enjoyment of
the plaintiffs No.1 to 6, over the suit lands mentioned
above.
C) A decree be passed directing the Sub Registrar
Humnabad, to rectify and correct the sale deed bearing
document No.303/70-71 dated: 27-4-1970 by deleting
the Sy.No.105 and inserting and adding substituting
the land Sy.No.125 in respect of suit land, wherever it
occurs in the sale deed.
D) Any other relief for which the plaintiffs are
entitled, be also granted.
E) The costs of the suit be awarded to the plaintiffs.
Contending inter alia:
13. That defendant No.1 - Ishwar s/o Gundappa,
Vithoba father of defendants No.2 to 4, and Govindrao
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Kale the father of defendant Nos.5 to 10, were the
original owners of the land in R.S.No.125 was 18 acres
39 guntas out of which 06 acres 16 guntas the
defendants No.11 and 12 (plaintiffs in O.S.No.51/1989)
are the purchasers of portion of said land in Sy.No.125.
Subject land was sold by the original owners in favour of
Gyanoba (plaintiff No.1) and Shrawan (plaintiff No.6)
under registered deed of sale dated 27.04.1970 with
specific boundaries. Ever since the date of purchase,
they have been in possession and enjoyment of the
same. That there was an oral partition between Gyanoba
(plaintiff No.1) and Shrawan (plaintiff No.6) in which an
area measuring 03 acres 08 guntas in land bearing
Sy.No.125/2 corresponding to Sy.No.125/A is fallen to
the share of Gyanoba and remaining 03 acres 08 guntas
bearing Sy.Nos.125/1 and 125/3 corresponding to
R.S.No.125/B has fallen to the share of plaintiff No.6 -
Shrawan. Whereas in the deed of sale, survey number
has been wrongly mentioned as Sy.No.105 instead of
Sy.No.125. That plaintiff No.6 had filed a suit in
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O.S.No.242/1988 seeking relief of declaration of
ownership with respect to R.S.No.125 which ended in a
compromise dated 14.02.1989. Based on which plaintiff
No.6 and his brother Gyanoba have obtained revenue
entries mutated in their name in the RTC records of land
in R.S.No.125 and their names have continued to reflect
in RTC records accordingly. That the original owner
Ishwar, Vithoba and Gyanoba have sold remaining land
in R.S.No.125 measuring 12 acres 23 guntas in favour
of defendants No.11 and 12 (plaintiffs in
O.S.No.51/1989) under registered deed of sale dated
06.04.1983. As such, they are in possession of said
extent of land. However, defendants No.11 and 12 have
filed suit in O.S.No.51/1989 against them for possession
which is pending consideration. As the defendants No.11
and 12 threatened the plaintiffs who dispossess from the
subject land, taking undue advantage of the description
of the land in Sy.No.105, they filed the present suit,
seeking the relief as noted above.
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14. The defendants No.11 and 12 (plaintiff in
O.S.No.51/1989) in their written statement admitted that
the land originally belonged to Ishwar, Vithoba and
Govind and also admit they executed the sale deed in
their favour. They also admitted filing of the suit in
O.S.No.51/1989 and defendants obtaining compromise
decree in O.S.No.242/1988. It is contented that Gyanoba
and Shrawan are the purchasers of land in R.S.No.105
and not in R.S.No.125 and since they purchased land in
R.S.No.105, their names have been mutated in the
revenue records accordingly. That the defendants No.11
and 12 have purchased the entire land beyond
R.S.No.125 by virtue of registered deed of sale dated
06.04.1983 and they have been in possession of entire
extent of 18 acres 39 guntas of land. That their sale deed
has not been challenged by the plaintiffs as well as the
original owners. There was no mis-description of the sale
deed as alleged. Hence, sought for dismissal of the suit.
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15. Based on the pleadings, the Trial Court framed
the following issues:
A. Whether the plaintiffs prove that they are
owners and possessors of land sy.no.125/2 and
Sy.No.125/B, both situated at village
Chandanhalli and proves their title on the date of
suit?
B. Whether defendants prove that suit of the
plaintiff hit by the principles of res-judicata?
DELETED AS PER ORDER DATED 06.03.2003
C. Whether the defendants are entitle for costs of
Rs.3000/- as claimed in their W.S.?
D. Whether the plaintiffs are entitled for a
declaration as prayed for?
E. Whether the plaintiffs are entitled for injunction
as sought for?
F. What decree or order?
Addl. Issue No.1:
Whether defendants prove that suit of the
plaintiff hit by the principles of res-judicata?
deleted as per order dated 09.03.2005.
16. On appreciation of the evidence led by the
parties, the Trial Court decreed the suit as under:-
Suit of the plaintiffs is decreed with costs.
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The plaintiff no.1 to 5 are declared as owners of
R.S.No.125/2 corresponds to R.S.No.125-A to the extent
of 03-Acres 08-Guntas, and L.Rs. no.(1) to (8) of
deceased plaintiff no.6 Srawan are declared as owners of
R.S.No.125/1 and 125/3 corresponds to 125-B to the
extent of 03-Acares 08-Guntas.
The defendants or anybody on their behalf are restrained
from causing interference to the peaceful possession and
enjoyment of the plaintiffs over the suit property by
granting decree of perpetual injunction.
The plaintiffs are entitle for correction of Sale Deed i.e.,
Rectification of Sale Deed and the Sub Registrar
Humnabad is directed to rectify the mistake of
mentioning R.S.No.105 in Ex.P14 registered Sale Deed
bearing document no.303/70-71, dated 27.04.1970, and
delete said sy.no.105 wherever it appears and insert the
sy.no.125 in its place.
Draw a decree accordingly.
17. Being aggrieved, plaintiffs preferred a regular
appeal in R.A.No.15/2012. Considering the grounds urged
therein, the First Appellate Court framed the following
points for consideration :-
A. Whether the appellants / defendants No.11 and 12
prove that the judgment and decree passed by the
Trial Court is perverse, arbitrary and this Court
interference is necessary ?
B. To what order or relief ?
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18. On re-appreciation of the evidence on record,
the First Appellate Court answered the same in the
negative and consequently, dismissed the appeal and
confirmed the judgment and decree passed by the Trial
Court. Being aggrieved, the plaintiffs are before this Court
in R.S.A.No.200429/2014.
19. This Court by an order dated 08.01.2016,
admitted the appeal in RSA.No.887/2008 to consider the
following substantial questions of law:-
Whether the Trial Court was justified in ignoring the
fact that judgment and decree passed in
O.S.No.242/1988 dated 14.02.1989 was based on a
compromise entered into between defendants and Sri.
Ishwar (one of the vendor of plaintiffs and defendants)
which was subsequent to the sale of suit land bearing
Sy.No.125 in favour of plaintiffs and as such said
Sri.Ishwar having lost right, title and interest over the
property in question could not have entered into such
compromise?
OR
Whether judgment and decree passed in
O.S.No.242/1988 dated 14.02.1989 would be binding
on plaintiffs though they were not parties to said
judgment and decree?
2. Whether trial Court was justified in arriving at a
conclusion that defendants have become owners of suit
property by adverse possession?
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3. Whether the Court below was correct in arriving
at a conclusion that the suit is bad for non-joinder of
necessary parties?
20. Learned counsel for the parties jointly
submitted that the substantial question No.1 framed in
RSA.No.887/2008 shall be treated and considered as
substantial question of law in RSA.No.200429/2014 as
well. The said submission is taken on record. Accordingly,
the same is treated as substantial question of law in
RSA.No.200429/2014.
21. Sri. Deepak V. Barad, learned counsel
appearing for the plaintiffs / appellants submitted;
21.1. That once the original owners executed deed of
sale in favour of the plaintiffs, conveying entire extent of
18 acres 39 guntas of land in Sy.No.125, they could not
have conveyed any portion of the said land in favour of the
defendants.
21.2. The compromise decree entered into in
O.S.No.242/1988, apart from not binding on the plaintiffs',
is also unenforceable inasmuch as the said compromise
decree has been entered into between the defendants and
Ishwar who is only one of the three owners. The other two
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original owners namely Vithoba and Govind have not been
parties to the said proceedings.
21.3. The Trial Court and the First Appellate Court have
grossly erred in dismissing the suit of the plaintiffs and
decreeing the suit of the defendants, without appreciating
the fact that the previous owners did not have any right,
title and interest in the subject land, as the same stood
extinguished in view of they executing the deed of sale
dated 06.04.1983 in favour of the plaintiffs.
21.4. The Trial Court and the First Appellate Court have
grossly erred in not appreciating the facts that the
defendants have not sought any relief seeking to set-aside
the deed of sale dated 06.04.1983 executed by the
original owners in favour of the plaintiffs.
21.5. The Trial Court and the First Appellate Court grossly
erred in applying the principles namely "boundaries prevail
over the survey numbers". The said principles are not
applicable to the facts and circumstances of the case on
hand inasmuch as there is neither any ambiguity with
regard to survey number nor to the extent of the property
nor even the boundaries mentioned in the deed of sale.
The Trial Court and the First Appellate Court thus erred in
decreeing the suit by applying the aforesaid principles
without adverting to the factual aspect of the matter.
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22. Per contra, Sri. Sachin M. Mahajan, learned
counsel appearing for the respondents, justifying the
judgment and decree passed by the Trial Court and
confirmed by the First Appellate Court submitted that;
22.1. The boundaries and the descriptions of property as
given in the deed of sale dated 27.04.1970 tallies with the
description of the suit property given by the plaintiff
himself in the sketch enclosed to the plaint.
22.2. That the perusal of the recitals of the deed of sale
dated 06.04.1983 under which the plaintiffs claim to have
purchased the property makes it clear that the sale
consideration was not on acreage basis, but it was in
respect of the entire extent of land which was available
within the boundaries mentioned therein.
22.3. That even according to the plaint averment,
plaintiffs has neither measured nor surveyed the land
before the purchase and it is only years later plaintiffs got
the land surveyed and measured through a private
surveyor. Only then they learnt that 06 acres 16 guntas of
land out of 18 acres 39 guntas of land being in possession
of the defendants.
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22.4. The boundaries and the description given in the
deed of sale dated 27.04.1970 as well as in the deed of
sale dated 06.04.1983, explicitly makes it clear that the
land was sold to the plaintiffs was indeed forming part of
18 acres 36 guntas of land in Sy.No.125 and not land in
Sy.No.105 as sought to be contended.
22.5. Merely there was a wrong description of survey
number in the deed of sale, wherein instead of mentioning
Sy.No.105, there is mention of Sy.No.125, the same
cannot be construed to defeat the substantive rights of the
defendants. Hence, he submits that substantial questions
of law needs to be answered in favour of the respondents.
Hence, seeks for dismissal of the appeal.
23. Heard. Perused the records.
24. Case of the plaintiffs is that Vithoba, Ishwar and
Govind, all being sons of Gundappa Kale, were the owners
of land bearing Sy.No.105 measuring 6 acres 16 guntas
without well and another land in Sy.No.125 measuring 18
acres and 39 guntas with a well, all situated at
Chandanahalli. The said persons had sold 6 acres 16
guntas of land in Sy.No.105 to the defendants in terms of
Ex.D15 and had subsequently sold 18 acres 39 guntas of
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land in Sy.No.125 in favour of plaintiff No.1 under a deed
of sale dated 06.04.1983 as per Ex.P1.
25. It is the further specific case of the plaintiffs
that though the entire extent of land in Sy.No.125 was
purchased by them, they could not ascertain the extent
and limits of the area purchased by them till it was
surveyed and measured with reference to Tippani map
through the private surveyor. After such survey, they
found defendants being in illegal possession over the suit
land to an extent of 6 acres 16 guntas as shown in red
colour in the enclosed sketch map. Hence, suit for
declaration and possession.
26. From the records, following undisputed facts
emerge:
26.1. That plaintiff No.1 - Chandrakant in O.S.No.
51/1989, had purchased land bearing Sy.No.125 of
Chandanahalli Village, measuring 18 acres 39 guntas in
terms of registered deed of sale dated 06.04.1983
produced at Ex.P-1. The boundaries given in the said deed
of sale are as under:
On the East : Way leading to Ghodwadi
On the West : lands of Shrawan Mahdba and
Gyanba Mhadba.
On the North : land of Prakash Kishan Rao and
Manikrao Kishanrao, and
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On the South : land of Laxman Gundappa and
locality of Shivajinagar, in
Gairan.
26.2. Plaintiffs have produced a sketch along with the
plaint, which is marked as Ex.P.38, demarcating the area
measuring 6 acres 16 guntas of land, which according to
the plaintiffs has been encroached upon by the
defendants. The said sketch is scanned hereunder for
immediate perusal:
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26.2. Defendants namely Gyanoba and Shravan purchased
an extent of 6 acres 16 guntas of land which is shown to
be forming part of Sy.No.105 in terms of deed of sale
dated 27.04.1970 produced as Ex.D15. The boundaries
mentioned in the said deed of sale is as under:
East by : remaining land of the executants
(unsold)
West by : land of Gyanoba
North by : the land of Shankar Imde
South by : the land of Laxuman Parit
26.3. Sketch enclosed by the defendants, plaint in
O.S.No.175/1998 is scanned hereunder for perusal
:
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27. The Trial Court and the First Appellate Court
have declined to accept the case of the plaintiffs on the
premise that the vendors of the plaintiffs had indeed sold
the subject land being an extent of 6 acres 16 guntas
forming part 18 acres 39 guntas of Sy.No.125 in favour of
the defendants in terms of the deed of sale on 27.04.1970
at Ex.D15. That there was an error in mentioning the
survey number in which instead of mentioning the
Sy.No.125, the said deed had mentioned only Sy.No.105
and consequently held that the common vendors had
indeed conveyed subject land in favour of the defendants
and only the remaining extent of land was purchased by
plaintiff No.1.
28. Learned counsel for the plaintiffs/appellants
herein, vehemently submitted that there was no
ambiguity of any nature whatsoever in the deed of sale
dated 27.04.1970 at Ex.D15 which specifically referred to
Sy.No.105 measuring 6 acres 16 guntas having been
conveyed in favour of the defendants. Similarly, there
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was no ambiguity with regard to the survey number and
extent of boundaries of the land conveyed in favour of the
plaintiffs by the very same vendors. Thus, the issue of
controversy is with regard to whether or not the land sold
in favour of the defendants in terms of deed of sale dated
27.04.1970 formed part of Sy.No.125 or the same is
different and distinct from land bearing Sy.No.105.
29. The Trial Court and the First Appellate Court
have, apart from juxtaposing the deed of sale dated
06.04.1983 at Ex.P1 and deed of sale dated 27.04.1970
at Ex.D15 and comparing the boundaries and descriptions
given therein, have also referred to Ex.D5 which is a Hissa
Map of land in Sy.No.125 with Hissa Nos.125/1, 125/2,
125/3 and 125/4. On such comparison the Trial Court and
the First Appellate Court have found following boundaries
to the land Sy.No.125:-
On the east : land in Sy.No.124
On the west : land in Sy.No.107 which is referred to as
the ancestral property of the defendant.
On the north : land in Sy.No.109 and
On the south : land in Sy.No.126.
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30. In O.S.No.175/1998 a tonch map is produced
at Ex.D.20 which pertains to land in Sy.No.105, 106, 107
and 125. Perusal of the said tonch map, as taken note by
he First Appellate Court in R.A.No.15/2012 at Para No.18,
towards the west of land in Sy.No.125 there is land in
R.S.No.107. Towards the west of said land in Sy.No.107,
there is land in Sy.No.106. Towards the west of said land
in Sy.No.106 there is land in Sy.No.105.
31. The Trial Court has also appreciated the fact
that the description of the property in Ex.P14 also marked
as Ex.D.15 which is a deed of sale dated 27.04.1970
under which the defendants have purchased the land, to
be more probable and proper in which towards the west
there is a specific mention of land to be belonging to
Gyanoba who is the purchaser under the said deed of
sale. That the said land on west is the land bearing
Sy.No.107 which admittedly belonged to the ancestors of
Gyanoba and Shravan. The Trial Court and the First
Appellate Court have found that if really the said land in
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R.S.No.105 was sold to Gyanoba and Shravan, the
boundaries of the said land would have been different.
That as per Ex.D20 tonch map, the boundaries of land in
R.S.No.105 would be as under:
Towards east : Land in R.S.Nos.104 and 106
Towards west : Land in R.S.Nos.93 and 94
Towards north : Land in R.S.No.108 and
Towards south : land in R.S.No.104.
32. Thus, comparing the boundaries given in deed
of sale dated 06.04.1983 produced at Ex.P.1 and the deed
of sale dated 27.04.1970 produced at Ex.D.15 and Hissa
Tippani at Ex.D.5 and the tonch map at Ex.D20, the Trial
Court and the First Appellate have come to the conclusion
that the land which was subject matter of the deed of sale
dated 27.04.1970, Ex.D15, is indeed the land forming part
of Sy.No.125 which is the subject land wrongly
mentioning the survey number as 105.
33. Section 95 of the Indian Evidence Act,1872,
reads as under:-
"Section 95 :- Evidence as to document
unmeaning in reference to existing facts- when
language used in a document is plain in itself, but
is unmeaning in reference to existing facts,
evidence may be given to show that it was used in
a (peculiar) sense."
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34. The above provision of Indian Evidence Act,
provides for admissibility of extrinsic evidence when the
language of document applies in part correctly and in part
incorrectly to an existing fact to show whether it was
intended to apply to it. Maxim "falsa demonstratio non
nocet cum de corpore consteant" - A false description
does not vitiate. That an instrument does not necessarily
fail or become inoperative because it contain an
inaccurate or false description. If after rejection of
inaccurate description, there is sufficient evidence to
identify person or property, affect will be given to it.
(Refer Sarakar's Law of Evidence 19th Edition, Page
1969-1973).
35. Thus, from the aforesaid facts and provision of
law it is clear that mere wrong mentioning of the survey
No.105 instead of mentioning survey No.125 would not
takeaway the right, title and interest created in favour of
the defendants in respect of subject land in terms of deed
of sale dated 27.04.1970 produced at Ex.D.15 and
Ex.P.14.
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36. Reliance placed on by the learned counsel for
the defendants to the judgment of the Division Bench of
this Court in the case of Dr. Jayashila Venu and
another vs. AJF D'souza and others, reported in 2021
SCC OnLine KAR 165, is of assistance to the case of the
defendants, wherein at Para No.25 and 27, the Division
Bench of this Court has held as under:-
"25. It is also trite that description by boundaries
prevail over all other descriptions. The reliance placed
by the learned Senior Counsel on decision rendered by
this Court in Narasimha Shastry v. Mangesha
Devaru [Narasimha Shastry v. Mangesha Devaru, 1987
SCC OnLine Kar 278 : ILR 1988 Kar 554] . and the
judgment rendered by the High Court of Kerala
in Savithri Ammal Vilasini Ammal v. Jayaram Pillai
Padmavathi Ammaa [Savithri Ammal Vilasini
Ammal v. Jayaram Pillai Padmavathi Ammaa, 1989 SCC
OnLine Ker 278 : (1989) 2 KLJ 709] are squarely
applicable to the present case on hand. The dispute is
in respect of site which is part and parcel of an
approved layout. The approved layout comprises of 12
plots and the same are identified by their respective
boundaries on all four sides of the plots. The properties
are clearly identified by their boundaries and the actual
measurement would not be that significant and cannot
be a leading description. What is agreed to be sold
under Exts. P-3 and P-4 is the property which is in
compact and bounded by specific boundaries on all four
sides. Admittedly the layout is formed in 1962 and
there is every possibility of there being error in
measuring the plots. The same gets strengthened by
the fact that city survey authorities measured the suit
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site property in 1974 and as per Ext. P-7 which is
survey sketch, the boundaries and measurements of
CTS 326, 327, 329 and 330 are mentioned. As per Ext.
P-7 (survey sketch) there is inconsistency in the
measurement shown at the time of approval of the
layout and subsequent survey conducted by the city
survey authorities in 1974.
27. When there is ambiguity in regard to measurement
and the fact that the controversy is in respect of a plot,
we are of the view that the principle that description by
boundaries would prevail over all other descriptions has
to be made applicable to the present case on hand. The
survey sketch of Site No. 22/9 which has corresponding
CTS No. 327 also indicates that northern boundary of
suit schedule Site No. 22/9 extends till 20 ft road.
When sanctioned layout as per Ext. P-2 is compared
with Ext. P-7-survey sketch of five CTS properties and
also individual sketch of Site No. 22/9 as per Ext. P-8,
there is no ambiguity insofar as boundaries are
concerned."
37. It is appropriate to refer judgment and decree
dated 14.02.1989 passed in O.S.No.242/1988 based on a
compromise which the plaintiffs are disputing as not
enforceable on the premise of same having been entered
into by Sri. Ishwar, he having sold the property in favour
of the plaintiffs and he not having right to enter into
compromise.
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38. Perusal of the compromise decree produced at
Ex.P.17 indicate that a confirmation is made by Ishwar
one of the owners of the subject land in favour of
defendants confirming that plaintiffs indeed purchase and
are the owners of land in Sy.No.125 wrongly mentioning
Sy.No.105.
39. As already noted above, wrong description of
the property would not vitiate a transaction. Thus, even in
the absence of such a compromise decree defendants
would still be the owners of the subject land. Therefore,
the Trial Court and the First Appellate Court were justified
in passing the judgment and decree impugned in this
appeal.
40. The substantial question of law No.1 having
answered as above, this Court do not find any need or
necessity to delve into other substantial question of law
regarding adverse possession and suit being bad for non-
joinder of necessary party. Accordingly, the following:
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ORDER
(i) Both the appeals are dismissed.
(ii) The judgment and decree dated 11.02.2002
passed in O.S.No.51/1989 by the Prl. Civil
Judge (Jr.Dn.) Humnabad, and judgment
and decree dated 14.02.2008 passed in
R.A.No.13/2002 by the Civil Judge (Sr.Dn.),
Basavakalyan are confirmed.
(iii) The judgment and decree dated 21.08.2014
passed in O.S.No.175/1998 by the Prl. Civil
Judge (Jr.Dn.) Humnabad, and judgment
and decree dated 21.08.2014 passed in
R.A.No.15/2012 by the Senior Civil Judge,
Humnabad are confirmed.
Sd/-
(M.G.S.KAMAL)
JUDGE
KJJ,SWK
List No.: 1 Sl No.: 17
CT:PK
