IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 151'" DAY OF" NOVEMBER 2010 BEFORE THE HONBLE MRJUSTICE SUBHASH V-7-f ft _ REGULAR FIRST APPEAL No.117.a/»2.b:o4"*~::: I' BETWEEN: 1.
Smt.Yerramma,
W/0 N arayana Reddy,
Aged about 69 years,
Sri.NarayaI1a Reddy,—-.._’f _ .
S/0 Chikka I\/Iuniswam::iPi3a.,~1′ I
Aged about 78._years,~– I A
Both are ag:icL5flturi,s”ts,’:._V _
R/ 0 Hulimayfu V{fiIl’age’,'{:– A ‘\
Begur hoblif’ ” ”
Bangaldrea..S4Qath7’fV{a] . . APPELLANTS
{By Sr1.BV”‘;KI’Man]arIaj.~hI;
3|
.1;.._
S15i:”:I’I;;1r:n1nappaO “”” ” I
y . ‘E3/Q latefi/Iuthappa.
‘Aged Vabyput =7years,
ASee.;3.aj::IpAa
S /(*2 Thimmappa,
-. Aged’ about 43 years,
S.ri:Chandrappa
=5/o Thlmrnappa,
2 ___Aged about 41 years,
4. Prakash. @ Mani,
S / o Thimmappa,
Aged about 38 years,
A11 are residing at Huiirnavu village,
Begur hobii, ~ V ”
Bangalore South Taluk. 1
[By Sri.C.M.Nagai:)hushan, & if V
Sri.P.V.Chandrashekar, Advs.)
This R.F.A. is filed undert._S’aectionA.95 of the V
judgment and decree dated».._’t’01.091200¢% passed in
O.S.No.7098/ 1991 on the file of..th’ev._8t1{ Add1″.City Civil Judge.
Bangalore, dismissing the*s_uit_’for dedaration and permanent
irljunction. * — V
This R.F.A. coming””on.iforhearing day, the Court
delivered the I
‘.;T.’iZF’:1f3i_.’_’:§V1iVI’1″-31\ffxVV’
is against the judgment. and decree
passed 01.10.2004 on the file of the
8″? Add}-.Cixty Adudgedifiangalore.
~ p.aft,i_es will be referred as per their ranking before
the-triai court… ”
3.”.V1§iaintiffs claim that the }and bearing Sy.No.81
A rzadeasuimg 3 acres 20 guntas was purchased in the name of
son £\/{uthappa from one Muniyappa Reddy under the
“registered sale deed dated 23.07.1957, since then the plaintiffs
are in possession and enjoyment of the suit schedule property.
The minor son Muttappa Reddy is no more and the plaintiffs
being the classwl heirs. inherited the suit schedule property and
they are in possession of the same as the owners.
4. The case of the plaintiffs is that, one
sold the property to one Venkatamrna,….wl__1o isythe’ l by
of the 13′ plaintiff in the year
resold the said property to Rarriaiah, sold’
the suit property to H.Muniya_plpa_ -in the ~ .ye_ar xf?1952 and
Muniyappa Reddy sold lthefsailne the plaintiffs in the year
1957′. The name of thepvplaintiffsp entered in the
revenue records: byeenllpaying kandaya. Survey
number wasl’demarcatg§fiv…a1–;d renumbered as Sy.No.81/4A
measuring lit. acre 13 g1iri!;as,_llSy.No.81/4B measuring 1 acre 15
guntasgland Sy.”i\Io7l8ll/4C measuring 32 guntas, in all , it
20 guntas. Plaintiffs were not aware about the
re’-ysu-i_1’ey”vn’u.rr1ber*”and demarcation of subwnumbers to original
_Sy.No’:81 V._the-ieirtent of land was shows as 3 acres 20 guntas
Zboundaries mentioned in the schedule. The BDA
notification in the year 1987 to acquire the plaintiffs’
at Sl.Nos.194 to 196 i.e., the entire suit schedule property.
if ” *~’l’lI’he said acquisition was challenged by the plaintiffs in
W.P.No.217’7l/90 before this Court. This Court by its order
dated 07.] 1.1990. disposed of the said writ petition holding that
the plaintiffs possession should not be disturbed.
alleged that the defendants have no right, title o’r§l_”i’nt:e.re–st:Layer
the suit schedule property. Plaintiffs lied.»
495/1992, however the same was wi;tlidrayVfr1l’t=o .Ve51,:lit
on the same cause of action, withdraw’a;l of the»’s’2iit.V would Vriotf.
come in the way of the plaintiffs lfor_l1″iling the suit. On
30.09.1991, the d6feHdaI%:t;.S’_ stones to change
the nature and characterwof property and
hence, the plaint:ii’fsA;.yyere iiforcedl for declaration and
injunction.
5. of sumrnons appeared and filed
written statement. that, the plaintiff had filed a suit.
.~-ill 0-~’3fN9-495/999′”–alnd__Mt’vhe said suit was withdrawn with a
A”perrni«s_sion ‘tio’«iVrr1*plead the Authority and since the present suit
is Authority, is hit by provisions of Order 2 Rule
9’ of ‘also hit by Section 11 of CPC and further the
if is not maintainable, as there is no liberty given by
in terms of Order 23 Rule .1 of CPC, t.he other
–«l.4:all’e’glat.ion of the plaintiff that they are the owners of the suit
schedule property measuring 3 acres 20 guntas denied and in
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turn, the defendants claim that Sy.No.81 of Hulimavu village
was measuring 9 acres 32 guntas. During the year 1929, the
said survey number was assigned as Sy.Nos.81/1, 81/2, 81/3 8:
81/4. It was further assigned as Sy.N0s.81/4A, 81 /44BV&_s.1_/4c
measuring 3 acres 20 guntas. Preliminary noti_1icati_’or1si.a._n’d
Final r1ot;ifications were issued by the BDA to ae.dfu.ir’e~:.0t1i.e iand.
and it also served notice on the 131 d_efe:1.dafntacallirigl’elponalfiiin
to file objections. The 18* d.efendari’t._Vfi’led ob;§’eet:io.ns.j’; 7rh”s.
allegations of t.he plaintiffs is View ‘g_Vj’1i’vthe:V3stay order
passed in W.P.No.217’%’1″/.90! of the schedule
property earlier to the saidV_ordVer’V_1o3rb is false. It is
also stated thatlllplaintiffsip rriothe:r’:.V’Lakshmamma possessed
Sy.No.83″”islV claim that they are in
possessioliwp and the extent of land measuring 20
guntas in Sy.’No.’8lp/}4:A,’:_Slffdguntas in Sy.No.81/413 since from
“‘the …_purchas–e”by the 151 defendant on 05.11.1964
Ramaiah. Since there was a mistake in the
sales number was described as 81/2 and the said
’17nistake~.ha{1 crept in as the 15* defendant vendor who had sold
Vllarid to the mother of the 151 defendant, Smt..Lakshrnamma
___”‘l*.’L1nVder the sale deed dated 10.05.1946 had mentioned this
u7St’.No.as 81/2 and the said mistake continued even
é%
M6-
subsequently under the sale deed dated 26.09.1948. Same was
sold by LElkSl’lf}'”1aII’l1T1E1 and 1-“*’ defendant in favour of Thogur
Rarnaiah and Thogur Ranialah in turn sold the samdto the
defendants. The boundaries in all t.he sale deeds
the schedule property and accordingly,
boundaries to these properties as -: if
land of Smt.Venkatamma, North by land
South by Gomal land. 9 V ll
6. Defendants clain’l’that fepncedvtheir land with
barbed wires by erecting that according
to the revenue. 9:13′ defendant has
entered and ‘the.-boundaries described in
the sale:’:deed~.li false allegations and had
filed a The temporary injunction
V applicajtionfiled in said suit was also dismissed. Against the
:plain_tiffs had filed an appeal, same also came to be
dii’s_1rIi’ss.e d’ V .. 1 982.
. Base-dl”lon the above pleadings, the trial court framed the
H ” ‘ = following issues: —
it {-ill Whether the plaintiffs prove that they are the
owners of the property described in the
plaint? Q r
{ii} Whether the plaintiffs have proved that the
defendants are trying to lay hands on the
plaint schedule property?
[iii] Whether the plaintiffs are €}1litlQ~(3l.
declaration of title in regard to the
schedule property? . ll ‘
(iv) What decree or order’?
8. Before the trial one lhlshagyafnma and
Lakshminarayana were and 2 and in their
evidence, Exs.P1 to._P38 wererriarlred. : of defendants,
two witnesses v€.f:ere;1il’e§gaxnineidhas biiifls-ill1″‘éind 2 and Exs.D1 to
D29 were marlgedi. _ir;i_pthei r e\fi’c:l_’ence.
9. Trial the title of the predecessors of
the plaint.iffs’r«ar1d, with the boundary shown in the
sale found that_t_’_h_e. plaintiffs have failed to prove their title
spuit,:_sche:d’ul’e property and accordingly, dismissed the suit
with lhcosts.’ liyfifagainst the said judgment and decree, the
plaintiffs are infappeal before this Court.
Sri.B.I{.Manjunath, learned Counsel appearing for
W*a’pp’ellants –~ plaintiffs submitted that, as per Ex.P5 -»» sale deed
1.5.1943, Venkatamma purchased the property from
(‘n
Ramaiah wherein about 21/2 acres of the land bearing Sy.No.8l
was sold showing the boundaries East by Sreekantaiah” land,
West by Chowdappa and Muniyarnn1a’s land, North by
.Muniyan1ma’s land and South by Kattali Beli. Very
became the subject matter of the sale deed dated
per Ex.P6 wherein land bearing Sy.No,8l ‘pi?!/gt’
acres bounded East by Lakshma:rr1ma7sA.
Abbaiah’s land, North by Muniyamnia’s”
Kattali Bell. This property was Reddy
under sale deed :. wherein
boundries of the sohedtileppoiéithe as under:
East by Lakshrfi§’1fii’§;?la’s land
West by Abbaia}*1’slan’_d. ” ._ ” ‘W
North by Mui3.iyarnn1a’s’ T
South Go1t1a.la’lVIa’Ie.as1iring”abotit 2 acres.
The said landéwas by Muthappa, who was minor then
underiiallregisteredsale’deed dated 18.7.1957 as per Ex.P8 on
Aflthgu_basebs:..of:’which plaintiffs are claiming their title. The
b’¢ui1.:1ne’s o’_f»t_he3′ schedule is shown as under:
_ Eastiby LaltShn1an1ma’s land
. «a ‘West by’Ab1.’.:)aiah’s land
North__ by l’VI’uniyanima’s land and gwi
” «_ “South”‘by Gomala land. 7/ _/-~’
-9,
ll. Relying on these documents, learned Counsel for the
plaintiffs submitted that, the measurement of the land has not
been correctly described either in the sale deed of Muthappa or
his predecessor–i.n–titEe. However, the boundaries are ..gi’v_ei1_and
within the said boundary, land measures 3 acres
submitted that, initialiy it was shown as abo11t’?,v-¥Xé:i~acres,. in
sale deeds ~ EXSP7 and P8, it is
actuai measurement is 3acres’2(_) guntas”. sublimittede.
that, in case of discrepancy as to rneasuijement, the
boundaries will prevail the are considered, the
plaint schedule property boundaries and
the plaintiffs are i:i’j,:p§ss¢sgi¢s:némd enioym.ent of the said land.
On ‘theifotherihand;Sri.Nagabhushana submitted that,
the land was4_originally.irneasurring 9 acres 32 guntas and it was
the subject matterflof various sale deeds. Lakshmamma had
pu’rc_hase’d:.the~._property on the eastern side of the plaintiffs’
tlie-staid Lakshmamma in turn sold it to Ramaiah,
if _ the p’rede_cessfor–in~title and thereafter under EX.Dl1, Ramaiah
it todefendant No.1 wherein the boundaries are shown as
l . u’n_der–{
~10-
East by Cart track
West by Ver1katanm1a’s land
North by ven dor’s property and
South by Gomala land.
He submitted that, on the western side of theW’deife=iidan_t’sf
property, Venkatammas land is shown. It is~th.e_’minor«.sonl’ofp
Venkatamma i.e., Muthappa had purchased He l
submitted that, the plaint. schedule as i11.vt’iieVlVplain;t
not give correct description of thegbouiidariels”.*V’lHe2§points out
that, the eastern riot the lan.d
of Lakshmamma, but it éiavibande.
There is no desc.riptio:i the eastern side of
the plaintiffs’=.’ deed of the plaintiffs or
predecesisorllloflfthe first time, plaintiffs are
claiming gavibande. It is in. this
context, trial c”our”‘t relying on the boundaries given in all the sale
“V”d,eeds1fiag,_found thlat,”–p*lair1tiffs’ land falls on the western side of
defenvdaittsiland, however, plaintiffs instead of showing
La1{shlrnam.ii1a”sfcproperty on the East has wrongly shown the
lprope1’ty~.asg_Gfovernment gavibande in order to claim more land
thanfwhat is described in the schedule to the sale deed under
He also relied on the findings of the trial court and
llsubmitted that, plaintiffs can succeed or fail on the basis o.f their
title deeds and the title deeds do not give the description of the
boundaries on the eastern side as Government gavibande. If
that is so, trial court has rightly on appreciation of the entire
material had dismissed the suit.
13. In the light of the rival contentions, that
arises for consideration in this appeal is:
“Whether the plaintiffs have provedrt}tetr».tit”le”‘t0l
suit schedule property?” _ 7 ‘
14. It is not in dispute plaintiffseltfavegipurchased
the very same property. in l§§A<s.VI35, P6 and
P7. In Ex.P5. the eastern as "Sarkari
banj aru'f'. ' the » .§§'aste;¥19l' "boundary as Lakshmamrnas
land. Defendants: l*i'afve»l"p1_:5o'd.tJ.eed the document to Show that
Ramaiah, W1'l't§J"1'1V«lrL:lt"lVI1.T't'LltZ3,1.€V'CYl'.Vt1'1('3 land, has sold the eastern side
"of flplaintilffs' land"to'Lakshn1amma. It is after the purchase
'byl'Laks.hV1narn1na.'her name was shown as Lakshmarnmas land
in also not in dispute that: the eastern boundary in
"EX.P7 is also shown as Lakshmammas land. Even the sale deed
the plaintiffs are claiming their title, undisputedly
the eastern boundary as Lakshmarnntas land. Plaintiffs
uV.h.ave failed to prove the eastern boundary as Government
G-avibande. Defendants do not dispute the sale deed Ex.P8 or
the sale deed of the predecessorwinwtitle of the plaintiffs.
However, they seriously disputed the eastern boundary,' ':'L*',i;.D1 1.
under which the defendant No.1 has purchased
the western side of his land is described as Venkatarnj'rna"sxdlahdt'
If these documents are not disputed."and"the7,plainti'f£.s 'halve 'not' 7
produced any document to show how:4't.heir_zeaste1_nboundaiyfgot
changed from Lakshmamrnas la.4nfidjto .(V,.'xoxreriu'jIffi.('31it:Ldavihande.
trial court was justified suit"on"the ground
that the plaintiffs have title to the suit
schedule property if
15. At? appearing for the
plaintiffs’subrnitte~:l.._:tliat.<i_since there is no dispute insofar as
Ex.P8 is concerned", court should have decreed the suit
V at least ton the eX'te_ntVof the schedule property shown in Ex.P8.
., VA.$ri4.N.?,1gabhushana, learned Counsel appearing for
that, if the plaintiffs claim their title as
V _ per lhehas no objection. However, the eastern boundary
cannot be 'beyond Lakshrnamina's land and submitted that, he
hagno' objection to declare the plaintiffs as the owner in terms of
" Ex:P8 and not beyond that.
V 13 –
17. Considering the submissions made by both the
Counsel, no doubt, plaintiffs have not claimed declaration by
describing the boundary particulariy on the eastern side, as
government gavi bande however, in the light of EXS.P57′,..”?76, P7
and P8, the undisputed registered sale deeds “‘tbe
boundary on the eastern side is shown as lLal(shemamn1a’sV’
property. In Vl€W of the submission”lWfi’1’1d. th.at,.; e’-an bi’
mould the relief and grant decree extevntof:
concerned. Accordingly, I paSSV1.l1.é.ufQl1O”7.lf1g. ‘ V ‘-
Appeal is partly allowed.’ “declared as owners
of the suit sched.n’le_prc§p’erty::: Ex.P8 i.e. within
boundaries as; V V
East by Lakshn1arn”r::1a”sA’land.r;léé V.
West by Abbai”ab’s land, ‘
North’ 4byVlv’l.uniyainn’1a’s la.nd and
“V “Soutl1__:by Qolnal land’; **** ” ‘V
Thév…:defe.1:idar1ts’ title as shown in Ex.Dl1 stands
undistludrb€_«d{.V’l’t: f__
.. Parties to bear their own costs.
Sdh
Endqék
it ” ~’Sr1/KNM/w