IN THE HIGH COURT OF KARNATAKA
AT BANGALORE
DATED THIS THE 5*" DAY OF FEBR':=}UP§Y',
BEFORE
THE HON'BLE MRJUSTICE Ls'|\}'A'R.AYANA§\T'T'A§?|Y'«7
REGULAR FIRST APPEAL |§}Q.E":3.5z8 OE_2.Q'G3~. " A
BETWEEN:
SR1 B.XAVIER A
SON OF RBENJAMIN ~ *
AGED A_BOU~T':'6<'i$'.;:YEA.R'S;VVE'A 'A
No.15/6, AcEiuTH{AR,A'v..A MUDALIAR ROAD,
FRAZER TOW|\;,xj--._* ' -
BANGALORE A 5V6'0AjV~005,"'
" fl 2 :APPELLANT
L (BY'ERZIIA.V.(fiA'NG..A.DHARAPPA, ADV.)
1%.? 'EA"ASMTEKHEAMARUNNISA,
W=iFEvOF LATE NARASHEED,
AGED ABOUT 55 YEARS
"f:{,v.___.A'"'A.RAFIQ AHMED,
'A SON OF LATE N.A.RASHEED,
AGE MAJOR,
SALIM AHMED,
SON OF LATE N.A.RASE-IEED,
AGE MAJOR,
FAROOQ AHMED,
SON OF LATE N.A.RASHEED,
AGE MAIIOR,
IRSHAD AHMED, _
SON OF LATE N.A.RASHEED.,_
AGE MAJOR,
SMT.SE-IABEENA,
D/O LATE N.A.RfASHE«ED_,'A _
AGE MAEOR, ' I
RIYAL AHIVIED, _ I
SON OE' LATE N';A.iRASHEED;«I»
' I
MS.'EARIZA,-".,--«»._ra .
D/O LATE N ,A;«RjASH.EED,.I
AGE MAJOR, %
A,LiCI_'VA*R.E RESIDING AT
N----O.5fG, M.,OORE"'ROOAD, CIVIL STATION,
IRIAZERIITCIWN,
.£_3AI'\*.GAE'OFgE_i.~ 560 005.
: RESPONDENTS
(Ev. SRITCHALAPATHY AND SR1 SRINIVAS, ADVS.
.. ,F_.OR”R’1 A 8)
_ “‘._T’Rr’~’A FILED WS 96 RM ORDER 41 RULE 1 OF
AGAINST THE JUDGMENT AND DECREE
-«D:”I”;10~1~O3 PASSED IN O.S. NO.2535/86 ON THE FILE
I
it ‘The facts in E)
OF THE IX ADDL. CITY CIVEL 8: SESSIONS JUDGE,
BANGALORE CITY, CCH l\lO.2, DISMISSING THE SUIT
FOR DECLARATION AND MANDATORY INJUNCTION
ETC., ,
THIS APPEAL HAVING BEEN HEA.R4DVV’:”44rA~lu\l”D
RESERVE FOR JUDGMENT AND COEViI|\l_€i.
PRONOUNCEMEN-T BEFORE THE CQVURT. Cfrjo4oAY–,
coum oEL1\/ERED T5l5[§8H_E)rl£\».»VN_G’: fl
This appeal is filed, by the’-Cappel.l;ant~»galiaiuntvltf’-.,L
being aggrieved of the ju’cic’g:r*r3entfia’n,ci”‘*clecreeVWdatecl
10.1.2003 passed ix Additional
City C~ivi’l’$z?S;es.s:z:iGi’1s”J’.o’dge,S “8a~ngalore City (CCH No.2)
dismiss-in’g’_ t’t:eTVTst’i’ir4t_O4:S—Algu.2535/1986 which was filed
for d_evclara”téoVn,. mandatory injunction etc.,
parties to the proceedings would be
reTe;«rédTST”‘.t»o ‘ahsivnper their ranking in the trial court for
theéiiisake of conveniera .
iii’ are as follows:
the defendant. On failure of such an attempt to
compromise the matter, the piaéntiff fiied the suit.
4. The defendant appeared and contesvtech|'”‘~rt.he
suit by fiiing written statement. The
denied purchase of the property b_y””*thfe.:”pla’%nt§ff’~
through sale deed executed byV’»Cha’drni*aAi3_a’i.’@
He has deniedthe measure_rT’.~ents’ofiportEo’nA~».i;§vl«leged
have been purchasedby thie..VVpia_int£_ff i.nd’ic.aAte.d in plan
as BCDEGH. He has’dte’n’i’ed}Vthe’;encro_achment. He
has pu’ti”‘u’p.t:?;;’onAs:f:e”uc’t–i.Q’n ‘E’n”th’:e entire portion 12′ x
30′. He: he has acknowledged and
admi_t_ted thef al.|egédV”éncroachment and he has not
.. ag”re{ed.”tto”lpay conipensation to the plaintiff. He is also
theitheory of compromise also. The plaintiff
ha’s..no._.”n1a§$3ner of right, title or interest or possession
i..nVuc_resp~ect of the suit property. The defendant has
‘”pVu’rc’hased the entire premises bearing No.50 from the
“legal heirs of late V G<Ranganathan Mudaliyar under
registered sale deed dated 25.11.1976 measuring
90'.6" X 60'. The vendor's sale deed showed the
measurement of 60' X 90'.9". The husband of
Bhagirathi Bari and Gangadhar bequeathed
property in favour of their chrfdren
measurements of the property_.a.s__60'_–'$<"9t3'f';,9"';
said property No.50 was o:r*4i«grn_'_ai~TVy
Mohammed Abdui Azeez who__ Vfai/our""
of Smt.Bhagirathi I3.a.E. undte'r:..a'– regrsterec'… sale deed
dated 29.11.1929 and t_h'e"m.easu:rne.m.e'nts were shown
as 6O7?_ x tg9o?;n§'f{.r1..tegt"the«.§at:e deed of Mohd. Abdui Azeez
Saheb dated aiso showed the simikar
destjrivption V"a'n.d__ measurements. Therefore, the
rd'efehdA_ant1erajmed that the property No.50 measures
9O'".=9".Vxu7T6:0Vfa:u' The scheduie of the saie deed dated
9 also states that the property measures to
36'-4..«atV"the garage and iumbar rooms. The tapered
portion measures East tour/Vest 12' and North to South
36' which the piaintiff is rnistakeniy claiming as his
own property as described it as MNOP in the sketch.
The defendant thus claims that the property
purchased by him and in his possessionV.'i'..s'inVce
25.11.1972 includes the suit property also._.I_:'Th~e_'V:-C:|a::;n"'«_
of the plaintiff has been lost by doctrine'o'f=pireys'crivptio.tn '*~ if
and adverse possession since ithe;'_"defenda~n:t
predecessors in title have in hostiie lpos§sfess.ion off'
the suit property ever sirice—é3–.6".—192p;iIheii plaintiff
has not made out th'e'%=;as'e..aifid prayed for
dismissai of '
'On of the above pieadings of the
ipa'r"ti,es-,i._ythe..Ti*ial Court framed the foiiowing issues:
(1,._}" -Whether the plaintiff is the owner of the
plaint schedule property?
l
(2) Whether the title of the suit property was
perfected by adverse possession by the
defendant and his predecessor in titie?
(3) Whether the defendant is entitl.e_d.:’_:”~for
Compensatory Costs? 9 in A4
(4) What order and dec:r_ee,.__
6. The plaintiff in support’-v.«ofi,’_’_hi~*_:-4,
PW–1 and got marked “;The’-if
defendants in suppo,.rt of th–oVi.r_i-ease e>{a’min.e§d DW–1
and gvo’t”maij:l<ed:§i~:E~xs';l§'1'to""'"L}1'él. The Trial Court on
considxering was pleased to dismiss
the suit lh'elding':–th'atV't'he plaintiff has failed to prove
.'*.,.,.,hl§:,.,l;ltliB1arid defevndavnt has proved adverse possession
Aggrieved by the same, the
pita-intiff filed the present regular first appeai.
it 7'".".I have heard the learned counsel for the
'plaintiff, learned counsei for the respondents and
perused the entire records. The learned counsel for
the appellant submits that the sale deed of the
plaintiff along with plan clearly establish that the
property purchased by the plaintiff is not in any"–way
protruding on its eastern side and it
property l\lo.49H/IS. The court below…_hV:a~~s.'v
see that the property No.49:"H
plaintiff is a larger portion..___ It
measurement shown in is It is
submitted that the 'r.éil'.'sA or ;Sm"ti;.l3ih:'ag'girathi bai could
have sold what Bhagirathi Bai had
to hersleligl 'purchased by the vnedor of
thejgde.fendantflas: a rectangle shaped property
» measuvfrinpg..:6~{_lf x 90' 9 inches and there is no metnion
H"an\;tlii'.h-gVf=.lVil<e tapering to 36' at the garage and
lumlberlrovoms. Therefore, the claim of the defendant
A thla't~«_.the suit property belongs to him does not stand
' to reasons. Therefore, the learned counsel submits
l
that the impugned judgmetn and decree are liabie to
be SeE3§SCJ)dne'the contrary, the learned cotmsei for the
respondents supports the judgment and c:i'é2cree
passed by the triai court and prays for
suit.
9. On the basis of the
the sides, the point thatV,arjsesé’for’~-my :con’.sidA’erat.E’onV”g
is;
and decree passed by
the triaidddcotsrt Vst.-=__fi’Ae,:rs’«.:t-a”*orn any iiiegaiity so as to call
‘~ _ foi:’nte.crfe..rencé” b~,t…t«h is Cou rt?”
answer to the above point is in the
negatiyé for the fo||owing{easons.
11
11. The piaintiff ciaims titie on the disputed
portion i.e., suit property contending that it formspart
and parcei of property No.15 purchased by
the saie deed dated 13.4.1982 from
per E><.P1. On the other hancifthe'de.fer"idAa_"riat_uc;lai'n'is«
that his property No.15 is.ipurch'ase.d frond.§3'hagi'ra'th'i"»w.V
Bar' under the saie deed 2VO.1'1-V.1:9f76V.3'atHEx.D4
measuring 90.3/4' tapers on
the Western side 33' in North
to South ciaims that the
suit parcei of property No.50.
Thereforeyuthye is; whether the suit property .
rnealsur’i~ng 1V2″‘«Eya_s__tA.to West and 33’ North to South
‘fo’i’*ms–.p’a.rt..:o’F property No.15 (Northern portion of oid
Co.n’soii.dat’jedf’property No.49H) purchased by plaintiff
‘v._y»und’ervv”t’heV Saie deed E:x.P1 or whether is it the part
parcei of property No.50 purchased by the
5 defendant under the Saie deed dated 20.11.1975 at
i
lei
E><.D13 and also in
drawn by the Court Commissioner.
the suit property is aiso show_n…..w_ith in
approved plan got prepared
Ex.P12. The documentary -e:VidenAc.’e “both ” V L’
the parties in the form of _e’rig.ii_n–al”‘-»a.nd r:ertifie§d copies
of the saie deeds and”c_V%;ir_r'”t E><s.P1, P3,
P4, P5, P6, paired E:rxs.p;r:: page it crystai clear
that okd No.49H and
prope'~:jty._ by one Rayappa and he
sold bo't'i-.i4_'_the"prope»~r'ti'es4'adjoining each other under
thefgiaie deeVd"v-dat_e_d: 23.6.1920 in favour of one Mohd
The copy of the Sale deed Ex.P7 is
pro'd'uced.V–"ijbyi1'the piaintiff. The measurement shown
there..in"«;_oF the property No.49H is 53 '/2' in East to
A and 60' in North to South and that property No.9
' 90 3/4' in East to {Vest and 60' in North to South.
'4
accepted, the schedule property forms part of
property bearing No.49|~i. But the piaintifi-j':'c:ia'L:n:r'i'oyt
Claim property larger in extent in East
than 53 1/2' at any point on the"Eastern':srdei:v"–:Tht'e-A
DCEF portion marked in ExTV.P12':'d__urir)A.g
PW–1, gives a clear impression that_V_ pitaitnttiff is
ctaiming 12' x 33' portion.
When the totaiy measu_reniaVet.n_t fof~”t~h.e’»~:’.pVroperty bearing
old E\io.49i~i_v W–est and 60′ North
to south, 11,hVe’T.fjtiiesttforatwttovf portion beyond the area
53 1/2′–._Ea._st ‘portion of property No.49i-i
does noét’*a__rise.V” _fitt»~h§*v.e’yent if the disputed property
exteinding North to South on the Eastern
to be part and parcel of Southern
Dortion.’ V’ A
A. 1’2.” PW–1 has admitted that his father was
‘ea’rii’er tenant of the Northern portion of the property
for about 50 years and at that time, the suit
“i
‘ié
deed E><.P13 support. 'the
measurement and descvriptf'o.n;_ found
by the Court shown in
the si<etch~_
been conducted in
respectiof ,.and the measurements and
situati_on a'sth~e""spot position is described in
the ye'a"r"1f973–74. The same measurement
in favour of the defendant. It is
aiso. ad__mitted in the evidence of PW–1 that before he
pu,r_chaVs'ed the property he had copy of the saie deed
y~_.'3o.f"property No.50 dated 25.11.1976. Therefore, it
"Was within his knowiedge that the suit property was
1
I9
than statutory period is undisputediy to the knowledge
of piaintiff and his father and vendor of the
Both the properties are adjoining to each.?_o’t’h”e_il..,:an;j_’_
undisputediy the defendant a_n.c:l__his_-“‘v’e*n::cio’r”‘:vvereu
having possession over the displtsted’ipropertfas” f:o’i.;.n’dj
during CTS survey in 1973f+?;4zV_yitse’l’fr__ filed * if
in 1986 though the p,.!aintiffi-pd.r_e.ha-sed ‘the-pr.o’§perty in
1982. Therefore, it ;_is “*:iVr;.:ferred that the
defendant by adverse
possession~by:–riieinaEni«n’V§vVi.’irvpossiession adverse and to
the kinowzefijgei«air»ytiigipiaayiitiff, his father and his
vendonl*
_;’17.. Fo’r.,the above reasons, it is clear that the
(:oli;;<tVl"i–has properly assessed the evidence on
'ureVlc'.o.rdv"V"a'nd'A'.;;.Vreached to right conclusions. The
implognvedhtiudgmeht and decree passed by the Trial
if dismissirig the suit of the plaintiff does not call
' for any interferenceflby this Court. Hence the appeal
:9
is hereby d$nnssed. iioweverthe parfies shan bear
th@n'omnacosts.
akd*