IN THE HIGH COURT OF KARNATAKA AT .
DATED THIS THE 23"' DAY; K V'
THE HON'BLVFEi' TTALIMATH
REGULAR F1;:e...s..T AP;>:=,A.1_. OF 2005
BETWEE;-fffi .- '
Sri _ A -.
Aged1about"7.1 y_e'a.rs; . _'
S/0 late "\/aidya n.a~tha _I_}'/er' "
R/o Door 'No.14-., * '
"Vrishabh'a_Vdri", _
4"';C--ro_ss, BD./{Main Road,
Nafajareddy Co"i0ny.__._. v
A .Ba'ngaf§;r§§A~:_.560 017. ...APPELLANT
for M/s. Vagdevi Associates,
".Ad\Jocate{sj}
A Esri M.Gopala Reddy
Aged about 47 years,
S/0 fate R.M.Reddy,
Singanayakanahafli,
Yefahanka Hobfi,
Bangalore North Tafuk,
Bangalore - 560 063.
2. Sri N.Munireddy W
S/o Narasimha Reddy -_ is .
Aged about 36 years, :.An'1enided'a_s'per A
No.192, Opposite 'eorder d--a_te.d A ~
ssssveerbhadreshwara Te.ri1pie, 23.6.20'U8V' ' 0'
Kodlhalli, " i
Bangalore --- 560 oos.
. _ 'g':--...."R~ESPONDEN.T'S
(By M/s. Kumar and Kunfiar,' 0' _ ~ _
Sri S.V.Giridhar 8; Smt.Pr.athima i:|ol"1nap~.j;ra--;
Advocates for:.C,/R_V--'§._, M:/s.Gi_ri.:dh4a'r.,8;.,_Co."Advocate for R-2)
"**aV7
This"--RF';¢\ fined Lmder Section 96 CPC against the
Judgment am Decree, dated 1.2.2005 passed In
O.S.N0';A8212i2OO2"-on_tiae"file of the XIV Addl.City Civil
Eudge, Bangpalore'---(CCH.__ No".28), decreeing the suit for
possessions'-and ma_nciatorfy injunction.
Tih*is"RéFA cofrfilnfg on for hearing this day, the Court
' de-iiyered.pthefoliowing:-
JUDGMENT
as Aggrieved by the Judgment St decree dated 1-2-2005
“passed by the XIV Additional City Civil 3udge, Bangalore
ii 2′ ‘*’:(CCl-I No.28) in O.S.No.8212/2002 decreeing the suit of
the plaintiff, the defendant has filed the present appeal.
7%
South as described in the ‘E5’ schedule property…_”4’An’__’_e’Xtent
of 30 feet, East to West and 40 feet, North-._:to
made out in ‘C’ schedule property” Was’
continued under the ownership grand.’afath’erf
plaintiff. That the suit sched’ei:.l:’e-.prope’rty towards’
the East was conveyeCl~.__in defenfdainlt. Inspite
of this, the defendantfffatterriiptfed a construction
over the suit scjheduiiefwf by the
action of suit is flied seeking for
a devcree.fAdfi’r’ec.tih.g defendant to deliver vacant
possession’ ofthe”~si,:i_t”schfedule property, for mandatory
injunction clii~.,¢,C_ti’n”g thedefendant to demolish the pillars
up”f:’o\re~ry_._the schedule property, for a permanent
revstiraining the defendant from altering the
na’t.ure__of schedule property and consequential reliefs.
3. The defendant entered appearance and denied
suit of the plaintiff and contended that the suit is
barred by time. He contends that the suit schedule
>4/W
4. The trial Court on framing six
suit of the plaintiff by holding__th_at h–e””is’i:’entitledV for”
possession of the suit ‘C’ schedule pjroperty._’s’u:bje:c’t:”it~0.the
right of his co-owners, directed the..d’efend’ant_’ta…reh’1ove~.l’
the constructions put up in the-..:piai__nt rrscihiedtlle and to
hand over possession?’ of”._jtl21_e.”s–ah1:e’»_to the pfaintiff.
Aggrieved by the sanfle-,~the p’res,ent’_ap:p’.eaI is filed by the
defendant
y .’ counsel appearing for the
defendant4contend’s..’Ath’a’t–.the Judgment & decree is bad in
lawégandhyliabie» tobe set aside. He contends that by virtue
of”‘l”theE”RfretjisteredWsale deed dated 16~8~1969 he had
‘A’ schedule property vide Ex.P-8. Ex.P~8
would _d’isc,lose that the extent of the property measures
115 fleetilx 40 feet; is up–to the land of Erappa. Therefore,
A’ –..he»cuontends that if the land is to be reckoned up–to the
..,.land of Erappa, the suit of the plaintiff would have to be
rejected. During the pendency of the trial, a
ta/(M-~
/
Commissioner was appointed to measure the.sché.dj’u–l:Aei”v:’\.,’i3.»
and C properties. The report of the yco’rr.lr§5;;:.sionyer
been marked as Ex.P–13. The:’».rep:=;>rt..:’wou_ld~
so far as the ‘A’ schedzilesproperty Visi”V:co~nc«erneid the
measurements were Th’e«–.f_:meAa5surements
matched one anothe’r;:–..at’ ayréforget. So far as the
land retained by the namely the ‘B’
schedule the an extent of 81
feet X Commissioner indicates
that {property was to an extent of
only feet’. report of the Commissioner
indicates that»..tAhe “C’.’sch’edule property measures 34.7 feet
x feet whpereaswthe claim of the plaintiff is to an extent
55,30 feet. The Commissioner was examined
with regard)’ to his report. Nothing worthwhile has been
eIicite.d,_.ih the cross–examination of the Commissioner to
“‘:V’_’d~:s_be.Iieve the report. However, the trial Court having
Partly accepted the report of the Commissioner came to
the conclusion that the plaintiff would be entitled to an
yr
/’ .
continued to remain with the plaintiff was to__a’n’«’extent;_.Vowf
30 feet 40 feet as disclosed in ‘C’ schedu!se.,.p’i’=ope[rty.
finding recorded by the trial Court:i.sy’zij:1faccordanceuAwitlli
the facts and does not call-.__.for interfere’n_ce.’T; “Thea?
reliance placed by the trial ‘VuCZou’rt_VVonV”ti1eVV:respective sale
deeds to establish ¢1sp’reta’»i}ma bythej plaintiff in
terms of ‘C” schedule… the material
and eviden_ca for interference.
:1 _c_ounsel for the defendant
conten’ds4’that the ‘A’ schedule property by
virtue of a’Vregi’s’tere.d sale deed vide Ex.P–8. Ex.P–8 would
that thefsalid property purchased by him was to an
I x 40 feet. However, an extent of 155 feet
the has been shown in the schedule by stating
nthat exists up-to Erappa’s land. Therefore, it is
“‘A.V_”c.o.ntended that the extent of land purchased by the
defendant should be read as an extent up-to the land of
Erappa.
-11-
seeking for a decree of permanent injunction agai’nst.._lthve
present plaintiff. Even though the written
filed by the plaintiff herein, he did not c:oVntVestj,»tVhe.i’_suit,_
Accordingly, the suit came to he :d_’ec’reed.
plaintiff herein restraining llilirn-…from”‘interfélri_ng_;”wi.th; the’-I’
enjoyment of the suit scheduVle…p:ro.perty (.S’cheduVl,c3 I and II
of the suit property)”The.de.ci”eé–V.,,’?’€Ia;.nst the plaintiff
herein was r4e_iatab|e””‘to’titheA._fsc’he.duiglle”Iitem No.2 in
O.S.No.11;G8’,f,I§:9,.3._ Xi.’hejvvsuitWyvas decreed to an
extent of_1_Ai0lvlf~ee,tVx40,:feet.. A reading of the Judgment &
decree tiie4re,in’vir.o’u~ld that the decree was only to an
extent of iiv0_’feet feet. The entitlement of the
dejfendaaintTherein virtue of Ex.P-8 the registered sale
I ‘deed, extent of 3.55 feet x 40 feet. This is the
‘A'”~sched’ullAé’ property. It is not in dispute. Therefore, the
said Iudgment & decree would not come to the aid of the
éW_de–feindant herein. Even otherwise, the said Judgment &
V» ….decree is to an extent of granting injunction against the
defendant so far as an extent of 110 feet x 40 feet is
W
….12….
concerned. In the present suit the plaintiff seek$….fC.t’..t__fi’é
possession of the suit schedule ‘C’ propertydfiaffhfe l.4’_C’fWf
schedule property herein was not the su.bjeji:t”maytte:r”in._the__fir
earlier suit. This is the prope.rty_. thathas remained: aft.er’~ V
selling part of the ‘A’ scheduuilevfyv’propefrtygi’V’ Therefore
notwithstanding the thelxplaintiff
herein, the present suit,h.e’i_ngsuiti,,:foA:§I’._’possession, the
said not come to
the aid of th:e…défe-‘ndafrit iiitniianyainanser.
10.’W,_Theftvri«aij.’A’Cou.rt”‘came to the conclusion that
theregis no ma-teriai and evidence on record to show that
bvarrted bymlimitation. Hence it held that the suit
w_ith:n’i*i.rnitati,’on. In the absence of any material to the
contar.ary_’,’ ‘me*rely setting up a plea that the suit is barred
L.”b:yVulimi.ta’t;i0n would not be sufficient. The defendant would
._”h_ave’«to establish on facts or on law by material to be
-»-piroduced that the suit is barred by limitation. Hence, in
the absence of any material and in view of the facts and
rte
-13-
circumstances of the case involved, the suit fi’l$’d.VViVS’.:’\F.¥l!thln
the period of limitation.
13.. The plea of adverse1’possession_grai»sed’V
defendant was negatived by C–o._i;_irt. _”‘_:Ita’CVan’ie’V’to the
conclusion that in order tol”pIesa’d’uadyers’e”poss§ession the
title of the plaintiff ii\’zor.;’l’Vd”iié.a’v;e .b.eV”a_dmitted and the
period in would have to
be shown: of it has been shown.
Hence, _ *of”‘*«..adverse possession has merely
remained’ a p’lea’virAith_ou_t”‘a’ny material. Therefore, Ifind no
error cocomhlmittedl’ the trial Court in holding the issue
” i_a’§.ain~sft t:he_.defen’d’aént.
” th’e:’–1aforesaid reasons, the appeal being devoid of
ra<2_erit_s is dismissed.
Sd/E:
Judge
Rsk/–