IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 23*") DAY OF NOVEMBER 2010
BEFORE
THE HONBLE MRJUSTICE SUBHASH B.ADI_'...f
REGULAR FIRST APPEAL No.188/20o5""' ' V-V-..: ;_.
EL'
REGULAR FIRST APPEAL NOS. :89'/2QQ5j'.AN):i12:9/2965 I I
IN R.F.A. 188 2005
BETWEEN:
Papaiah
Since dead by his LRS.
Lakshmamma -- V "
W/0 Late Papaiah
Since dead by h.e1--'.. =
Ashwathafippag I
Since deceased. by his<L_"Rs':v«..__
I. Smt.Ga.191agVammVa:-. _
Wj/<5 late Asixwathappa
.,aIZJQ'L1'[ 50 y'e.--a--rs
A ASriA,A._Laksfir13.ikan1I1
. /I0 Ashwathappa
' . Aged ab'm_,1i.P"i8 years
y 3: Mamuatlxa, minor
n T /O 'v1ai.e Ashwathappa
VRep. by her mother.
Appellants 1 to 3 are
7 R/at Old No.46. New No.4
10*" Cross, 'I3' Street,
Agraharadasarahalli
Magadi Road, Bangalore W 79.
I
Ex)
n
4. Honappa
S / 0 late Papaiah
Aged about 55 years
5. P.Shankar
S / 0 late Papaiah
Aged about 50 years.
Appellants 4 81. 5 are residing at
No.48, 'B' Street. 4"' Cross.
Magadi Road. Agrahara Dasarahallj _
Bangalore m 7 9. A A
(By Sri.R.S.Ravi, Sri. J ayarama &_
Sri. Mayanna Gowda, Advs.,) '
AND:
Chikkaboraiah @ Baiasettapfi-a_
Since dead by LRs.: A '
Mastigowda @
S/o lateChikkaborai.al1_V _ 4_ "
Since dead by «. '
1. S1*11iL, Ga_ngarri1*.fia A A A A * "
W/ o Ia,te'*Mas!jgCwda' "Chikkanna
Aged about 54 years." _
2. 1.VE.\/AVisurariat.ld" A
_ 'S. /A o i:atewMastigoW'd'a @ Chikkarma
. a.bQl;I~.33 years
3. ._ "-i+1¢friaii'iivh}:-agxgéglr
' / o late'i'x§as1igow*da @ Chikkanna
Agedv--..Vab'eI§1i 31 years.
= A. Respondents l. to 3 are residing at No.97
" _ 733. 'A' Main Road. 3*" Block
"~;1'i' Stage. Basaveswaranagar
g Bangalore W79.
A " on Si.' B.Ramakrishna
S/0 late Chikkaboraiah. Aged major.
10.
L»;
z
Miinikrishnappa
S/o Late Chikkaboraiah
Aged major
Rangamma
W/ o late Chikkaboraiah
Aged major.
Eramma
W/0 late Chikkaboraiah
Aged ma} or
{Resp.l\lo. ES 81 7 are Wives of late:=Chi3§.}<aboiraial1)'- 4' A
Jayamma
W/o Doddanna
Aged major.
Resp. Nos. 4 to 8 are residiijg at ll\¥«o.59';«_
Acquisition Agrahara l3'asara_1frallvi '
4"] Cross, lndusirialToW'11_ A '
Bangalore. ' V A
P.Krishnflpp§1 ._ ._
S/o late 3Papa"i'ah . ' .
Aged _a_bou'L_58'years.,_4" _ V' "
DeVara}u'-- _
S/ o latePapaia'h = V
Aged about {l6ye--ars.
Eiespgoridents No.""§r& 10 are residing at
,, .,No.46,,'B4' Aflivreei, 4"' Cross,
lvlagarlillRoad;:.Agra1"1ara Dasarahalli
A' ._ -V-.27';-3.
Erappa -. «--
S / o. Narayanaswamy
_ Aged" major
Employee in Minerva Mills
" «Residing in House Situated in
Survey No.81/3, Agrahai-a
Dasarahalli
Bangalore W 79.
The Respondent' "
are already on_-i'eo-oifd ga's,R4V
12.
13.
14.
15.
Dasegowda
S/o Ramegowda
Aged major
Employee in Plastic. Factory
Residing in House situated in
Survey No.81/3, Agraliara
Dasarahalli
Bangalore ~ 79.
1\/Iuniyappa
S / o Kempaiah
Aged major
OCC: Coolie Work
Residing in House Consti-ueted
Survey No.81/3, Ag1"ahara.7
Dasarahalli V
Bangalore - 79.
Kemparangaiah
S/o Ganganna
Aged major
Occ: Employee' in Bi:fa'1.y'l\»'lfVillsS'
Residing i11'Hc::u.s'e ConStr'ticted.Vi1"1--S "
Survey No.8.1_/3.,5;1_\gral_1a"ra_
Dasarahalli«::__}_ »
Bangalore .-- V'79:I'-, "
Subrafnalii V _ .
S/.o_ Sxvaminaihan
,S§ir:ce~dead 'by_yLRs. V
"v ,Smi. Nyavaneethamma
" ,/ o"Lai.e " Sulljramani
"'Ageti n';aj_o'r: "
_l5[b}
S"Sml'.;.f 'G
W /'~ 0 Rulikesi
n , Aged" major
iba
" 4 "VV15(d}
Tiizmuda
D/o late Subramemi
Aged major.
Saiya
16.
17.
18.
13/0 late Subramani
aged major.
Res. No.15{a} to 15{d} are residing
At No. 1, 8"' 'A' Cross, 11 Séage
Sampige Road. KHB Colony
Papaiah Garden
Bangalore.
Venkataramannappa
S / o Sannappa
Aged major . « ._
Employee in Bangalroe City Co1'p.o1'a:_£i(:n'
R/at House No.2, Constructed in 1'
Sy.No.8l / 3, Agrahara Dasarahalli '
Bangalore -- 79.
V deleted as per
S/o Chikkarangaiah '_ _ _ order dated
Aged major 11/11/2010
Employee in Banga1ore..C_11:y Co1:poratioI'1i.V(- on memo filed
R/at House No. 1.0, C§5_o11str';.1c1:ed~.in_
Sy.No.81 / Agrahara Daéa1'ahal1i 1' "
Bangalore 73.91» A ' '
Rangappa
Tippaiah' . .
S/0 Mu11--isiddappa._
Aged rriajol' --V
Employee '' in A 13-i.Iii..:'1y M1'_11'é
at P1'emiéeAs_VNo.1 1 ('SI 12 in
_ -S_y".N_o.8 1.3, Agraimra Dasarahalli
' ; _Bar1_ga1.ere'~--v"?9;
Hbfiappa »H ,
..... ..'
.., , . years
lsfi
o5$?ިe
v V
A S/0 1at.e'}f'_a.paiah
PageCl.__'about 50 years.
T Bhagyamma
'W/ 0 B.N.Na1'asimhaiah
" Aged about 48 years
No.925, 4"' Cross, 'B' Block.
Vi}-ayanagar, Near Nandini Layout
Bangalore -- 96.
AND:
1.
":3a'11gav101*eA.-79. """ "
[Appellant N0. 1[a]._ since deceased has
Not been made as party)
Appellants Md) 8: Me) are residing at
No.46, 'B' Street, 4"' Cross,
Magadi Road, Agrahara Dasarahalli
Bangalore w~-- 79.
_[By Sri.R.S.Ravi, Adi/,)
Sri.Yerrappa
S / 0 Narayanaswamy
Aged major
R/a S.N0.81/4,
Agrahara Dasarahaiii
Bangaiore -- 79.
P.Krishnqppa «
S/0 late Papaiah _ V
Aged about _5.8a_years§:
Devarajui
S/oglate P"apg1iah'3, '
Ag"ed,abo'ut 46'
Responidents No,2 '& Segre residing at
N048, 'B"'Sireet;-<Jc"5'.Crt)ss,
Mfigigadi. Road; ~Ag'rah;~,ra Dasarahalli
[ Crowds 81
s 1'; J;M.iRé;w'1e:umai4, Advs. for C / Rm 1.
' Rw2 & __R;3 scare-:§1}i'
V' J . _ _1'ri_ VR.F.A.~3.g_9(2005
_11_"15;ipéu:ah
.._Sinc.e dead by his LRS.
ii '" Egakshmamnla
.. APp.i;i..i;AN'--i§s
.. RESPONDENTS
W/0 Late Papaiah
Since dead by her LRs.
Ashwathappa
Since deceased by his LRs:
1.
Srnt.Gangamma
W/0 late Ashwathappa
Aged about 50 years
Sri.A. Lakshmikanth
S/0 late Ashwathappa
Aged about 18 years
Mamatha, minor
D / 0 late Ashwathappa
Rep. by her mother;
Appellants 1[b)(i) to {iii} are '
R/at Old No.-é~G,v New Am-.«1.f'
10" Cr0ss,:~v'E'«tSfreet:, __ :
Agraharada.sarah._alli 7
Magadi fR0a_d"V V V". A"
Bangalore 5'"? n
Htfilappa .
S/0 late'--PapaiVa'r1._;'._ "
Aged august V55"yfea1's»* _
Shankar 'A
. 0:,.late»Ifapalah' """ " 'V
. abQt1t.5O years.
._
' VW/0 B.N'/lfiarasimhaiah
"Agecll ab{)'{,1.t 48 years
N0~.92j5, 4'-*1 Cross, 'B' Block
A. ,3/'ijavyanagar, Near Nandini Layout
" _ Bangalore «-- 560 096.
[Appellant No.1(a]. since deceased
has not been made as party)
Appellants 4 <3: 6 are 1'esiding at
-9-
No.48, 'B' Street. 4111 Cross.
Magadi Road, Agrahara Dasarahalli
Bangalore --~ 79.
[By S1*i.R.S.RaVi, Adv.._}
AND:
A§gedo'Major' ''
Subramanyam
Since dead by LRS.
P.KrishI1appa
S / 0 late Papaiah V.
Aged about 58 years
R/at No.22, Papaiah Garden
Housing Board Colony A
Bangalore -- 560 079, '.
Devaraju * V V
S/o Late Papai-ah
Aged about~4'{-";«.y%;ars*_ __
R/at No.46; 'B5jst_reet',« _V
4th Crosé, 4' , '
Magadi. 31.: ;;:_ ,
Agrzvahara' I):-;sara'.h'a1.1:i' ' ~
Bangalore .- --- d '
Smt. Vao1j_1idth_a _ A
W,/ Q. Late s_'ubra'm3;'r1yeim
W,GeetAha , V
" TD'/o "Late S_L1b;ramanyan1
' .4yge(:i' m~_a_ ]_ 011: ' ' '
'¥':L11"I?.L1G3":
D /*0 late Subramanyam
V n , o1__\ged*'maj or.
V' "Sdthi
D / o late Subramanyam
aged major.
Resp. No.3[a) to (d) are resicling
.. APPELL.-ANTS
A lflv
At No.1. 6"? Main Road
8"' Cross. Papanna Garden
2"" Cross, Basaveswaranagar
Bangalore 79.
7. Sri.H.C.Ashok Kumar
S/0 I~f.V.Chandrashekaraiah
Aged about 32 years
R/at. No.229, West of Chord Road
5" Phase Extrr. Rajajinagar
Bangalore w 560 044.
8. Sri.Kishore C.Sasihithal
S/o Chandrashekar
Aged about 40 years _ _
R/at.l\lo.384, 'Sangam Nivasf
161 'A' Cross, 3rd Block
3"' Stage, Basaveshwaranagar '
Bangalore -79. . ' . V .. RESPONDENTS
{By Sri.Krishna Murthy G. Hasyiagiarj
R-2 8: R»? served; Notice tosR'--"l,:R--3 .to_R~6'_ he'l'd sufficient}
Regular_Fir_st'i1:ppea_1_No}l88/2005 is filed under Section
96 of CPC against the j1.idgment. and decree dated 8.9.2004
passed in 'OS.:No..1 '10:};-,/_I:i383..Q'n..tirie file of the l Addl. City Civil &
Sessions Judge, Bangalore'»City«'(CCH.No.2), decreeing the suit
for declaration; V jfiernianent injunction and mandatory
iI"UunctiQI1- '' V 7
vv..Firstx"Aj:ip'eal No.189/2005 is filed under Section
"CFC .ag.ain_st the judgment and decree dated 8.9.2004
passed in o.s'.Ne.s'491/1982 on the file of the 1 Addl. City Civil &
Sessions. Judge. Bangalore City (CCH.No.2}, decreeing the suit
C for decla.rat;ion~and mandatory injunction.
Regular vFirst Appeal No.l29/2005 is filed under Section
of_CPC~against the judgment and decree dated 8.9.2004
_ pa'ssed"'i.n os.No.3489/1982 on the file of the I Addl. City Civil &
_ Sessions' Judge. Bangalore City (CCH.No.2], dismissing the suit
__ 'for declaration and mandatory injunction.
S V These Appeals coming on for hearing this day, the Court.
" delivered following:
JUDGMENT
R.P’.A.No.l88/2005 is by the first defendant in
O.S.No.1lO5/1983. iR.F’.A.No.189/2005 is by the plain~t_i_i’f in
O.S.No.349i/1982. R.F.A.No.129/2005 is by the p.la:inti’.fff’ir1
O.S.No.3489/1982. First defendant in O.S.No.
1:, V’
plaintiff in two other suits. All these.;thVr.ee&
same person, questioning the eoninaori ju€igriient.~.arid cipecaifeexiivn
o.s.No.11o5/1983, 3491/1982 a1id~..3489yf 1,932 ::.aAté«;1″‘s.9.–i2oo4’V.l’
passed by the 1 Additional (__2ity CiVyil___d:udge_.,V Bangaloreif
2. For the purpose lot’ parties will be
referred to as per t.he:i’rW 3 trial court in
o.s.No.3489/;.ss*2,__ * l
3. f’lI’aintifi”so:u§Vl1iili°orll’d._elelai*ation that he is the absolute
owner of ‘A’ slehedule -prc;plerfy of which an area encroached by
eonstijuetioii. as dCb€tilfZ.§1″‘i31 ‘B’ schedule, which forms part and
l’pa1’ee.l”ol’ ‘Ai lsel1edt1_le and for possession and also to declare that.
the ‘sal’e.7deed–iexeeuted by legal representative of first defendant
in favohiirpofiseeorid defendant dated 28.8.1998 and the sale deed
the second defendant in favour of third defendant
2l4.5.200.1 as not binding on the plaintiff and for
‘4..ii’3’andat:ory irijunetion directing the defendants to remove the
construction unauthorisedly put up by them on the portion of ‘A’
schedule property as shown with figure ‘I’ in the survey sketch,
which is described as ‘B’ schedule property.
4. Plaintcill’ claims t.hat he purchased the
propert.y bearing Sy.No.8l /4 under a registered deed
18.1.1969. The suit schedule proper:tyAA9iA?a’s
enjoyment of his vendor prior to thel’.sa’ie_. Devfendant;’=.yvho’«.V
claims to be the purchaser of the ‘A’
schedule property has illegally overV”‘A””V§schedule
property and has put inspite of
resistance put by the defendant
undertook to inmorcier to locate the
property that “defendant failed to get the survey
conducted an’c’.4_inspit”e_olf.resistance by the plaintiff, they started
_VconstrnL_§tio1i. wo1*l{‘–about 9 months ago over a portion of ‘A’
vhschyediille Plaintiff got the land survey sketch prepared
f1°ori1,_co._1I}petent_ svAi_.l:i’1″Vx”‘r’eyo1′ on 4. 10. 1982.
5; Iélaintift in O.S.No.1.105/1983 is one Chikkaboraiah.
U’Aflay,clairnedwldeclaration and mandatory injunction in respect of
S_y.No.l8I:/3 measuring 14 guntas from whom the other
~l.d’efendai1ts in O.S.Nos.3489/}982 and 3491/1982 claim to have
purchased the property. Sy.i\los.8l /4 and 8} /3 both are
situated at Agrahara Dasarahalli, a jodi village under the control
and management of the then Inamdar D.R.Nagaraj. Sy.No..f3l /3
was adjacent to Sy.No.62. After the Inams AbolitioirAet’;._the
land vested in the Government. in 1959.
registered as an occupant of Sy.No.8_l,/~3.__’ an id
agreement to sell a portion of the land m.,eas’nrilng
shown in blue colour annexed toihe sketchwith =€3the–..wrtitten’V.i’
statement. Defendant p1irchase_d__ ‘the v. propertyv V _ for valuable
consideration. Defendant.”‘s :”prope1%{t’y ‘i’s.VjsLii’1’rounded East by
house constructed by ‘Board; West. by
private road; No_1fth and’dV.So1.:ithv’byVacant land. Plaintiff
is neithergthe’Aovttner of the suit property.
Sy.No.81/4x€’is not northern side of Sy.No.8l/3,
as shown in the” sketch. A’The”:sket.ch is a got up document with
connixgancepp of the”‘”RVevei1ue Inspector. According to the
situated adjacent to Sy.No.62. The house
defendant is situated in Sy.No.8l /3. which is
away ~.f’rornVSy.No.8l./4. Defendant has got right. title and
the property. it is denied that the Sy.No.81/4 or
ever suiveyed by anybody. ‘B’ schedule property does
u”13yot form part of ‘A’ schedule property and it forms part of
Sy.No.81/3. On these pleadings, defendant alleged that, there is
no cause of action for filing a suit for declaration and mandatory
injunction. Similarly other defendants also filed written
stiat,en’1ent insofar as the extent of land they had
denied the claim of the plaintiff.
6. Plaintiff in O.S.No.llO5/1983-is’conce_rned{“h’e claifrned.’ V
declaration of his title and for mandatory also.
permanent injunction to demolish._tjii.e shed .sn0_ym_ as:V’PCwiin the”
schedule sketch. He clairned :”Sy.I’\l.o.81l\5vas_Aadjacent to
Sy.No.62. He was enjoying’ more than 50
years and on abolition of th’e”in:anV1′,’ ‘rights had been
granted in his li-.<_372.:.«73,, thellslaid plaintiff did not
cultivate the growth of city and formation of
sites. Plaintiffentered_ tutor' agreement with defendant Nos.2
'__to 9 anidllaccordingly. he: executed a sale agreement; in their
1i1_Ellt.he.my-ear 1976. They denied the possession of
delfendant [nl'atntift' in other cases) and the encroachment
H .V and in"'t–t1rr_;"claini1.ed that. the defendant No.1 has eneroaehed on
-. , .. Dlfiopertylshown as ‘A’ schedule measuring 10 ft X 9 ft.
l7.h”7.”:Trial Court on the basis of the pleadings framed 8
times in o.s.No.iio5/i983, 12 issues in O.S.No.3489/1982
and 7 issues in O.S.No.3-49}./1982. The issue was as to
whether the plaintiff proves that he is the absolute owner of the
suit: schedule property, whether he is entitled for rnandatory
injunction and possession against the defendants~«.V'””in
O.S.No.3489/1982. Similar issues are
O.S.No.3-4191 /1982 against the__…».._del’endaii’i:l..’:v» in
O.S.l\lo.1lO5/1983, the issues were wl3.eth’err~’thellplaintiff
that he is the owner of the suili”’59hedu~Wl firstpl’
defendant therein has trespassed _i_nltoj_his_ land whether he
is entitled for Possession “i-and’ £11ai}Alat0lrl3′.:llirlllinction and for
permanent injunction. lnsjoii’a»r_ Vissuesllinv&lC§§_Sl.Nos.3489/1982
and 349}/1982i._are:;1ia’eonoernedl; Vtfislti””eourt held that the
plaintiff has titlellmthe encroachment and has
failed to prove’-thatVjhellistltentitled for possession and also held
that the suit the p.1ainti.fflli’s” liable to be dismissed. However,
trial court held that the plaintiff
‘therein’has.j_:p;:oiield–..that he is the absolute owner of the suit
schedule’ bearing No.81/3 and proved that the
lli’–«._.ude_fendant vh:gslenc1’oached upon the said land and proved that
llentitled for mandatory injunction for demolition of shed
l’*-jeonstructed over it and for possession and for permanent
V ‘* “injunction.
-16-
8. To support the case. plaintiff had examined two
witnesses as PWs–l and 2 and produced EXs.Pl to P12 through
PW–l and EXs.P1 to P19 through PW~2. O11 behalf7oli”e.the
defendants, DWs–1 to 5 were examined and Exs.D1
produced.
9. Trial Court on appreciation offthe edzideiipeelpheld’ that
plaintiff has failed to prove that he ownerloii the’:
schedule property bearing Sy.No.lE§’i1.:/Til and lfaile’d-lto .lp:1’ol\l/he that
the defendants had failed to
prove that he is entitled for held that the
plaintiff has failed”toL’p1’o{:e for permanent
i.I1junctior,;l ‘iii-ial.iVje_ourft.ideereed thelsluit in O.S.No.1105/1983.
It is against’ the clorr1_Ii1oj§i.jlu’el,cgjfi*:eea1t in three suits, the plaintiff in
O.S.Nos.V3489/l4l9S2e.andA”v.3?i§Q1/1982 and first defendant in
“o~_.s.Ne[{/ L983 hasfifiield all these three appeals.
learned Counsel appearing for the
appeliants that, defendants have not disputed the
entitle of t,he_pI1aintifi’ in Sy.No.81/4. Though remotely it is alleged
.A._thla_t,AA.theplaintiff is not the owner, however, to support that the
is the owner of the property bearing Sy.No.8l /4.
rp1aintit’i’ has produced registered sale deed EiT.x.P2 dated
,»- E
18.1.1969, executed by one Hotteppa in favour of father of the
plaintiff. Accordingly, the name of the father of the plaintiff was
mut.at’ed in the index and also R.T.C. Insofar as encroachmerlt
is Concerned, it is the specific Case of the plaintiff:.:”‘t.liat.
defendants eneroached upon the plaintiffs land ‘
shed in 1982. To support the same,»AA»Vpl_aintjtftlhas’;ll
EXP4 — survey sketch and the Surveyor lias *-‘.55V11ollvu’nA”thl’e
eneroached by the defendants. ‘1f1e~~.Valso relied 7; andf’
18 -~ Tippani and survey settleme1f1t”to_ show ltliatllanel bearing
No.81/4 was measuring “1.i7aCrep Though these
documents Coupled .with ‘one of the legal
representatives pla.ir1:l’;_ii;i; etlearllyil”establishes that the
plaintiff the.l_property bearing Sy.No.81/4 and
also proves’«ene1″oae.hraenlt”blv'”defendants at various places as
indicated in vliowelverfllthe trial court observing that the
land is-.a:’1’1iinamlalid arid’ the plaintiff has not sought for regrant
of trial court has held that. the plaintiff has no
gitlelltontlie He submitted that, Ex.Pl0 is ad copy of the
Vlie~.i___p1l1o_,tiee 13y Surveyor to the defendant and it is after the
jlofnotiee, Ex.P4 has been prepared. EXP4 Clearly proves
of the plaintiff. lie also submitted that, during the
ul”p.endency of the suit, plaintiff had filed an application in
I.A_No.l5 producing the gazette notification to show that
Sy.No.8}/3 in its entirety i.e., 14 guntas has been acquired by
the B.D.A. and the award has been passed and as such, there is
no existing land as 81/3. However, the said applicatton’p”.vvaiys
rejected by the trial court. Had that app!-icatioln
considered, the plaintiffs case WOLllC_l~’l’}3_\{‘€ been”dee1’ee.d;; as V
there is no land available in Sy.No.8l an_d’*subi11iAtted
trial court committed an error in app’1’-eciatingv ti}_e”ve\,rid:ence’V. ‘
and not considering the ap_plicatioyn__land ‘furt.hei”‘ s.ubn1itted that,
there was no justification to ‘decree 1983 as there
was no material to Show that; {was the owner of
the property had. lithe property to the
defendants. lll*lo\r;?leVve_t’:’3.’the.:trial coiirtlalieging that the plaintiff
has not disputed Survey No.81/3, has decreed
the suit_cont1’al1ly to elvidenee on record. He also submitted
vvli’ei2,t*-a.Atlr1veAi’e lr1’o”‘i11ate1’ial to show that there is any
enc1’oa_cl’irnerit-‘by the plaintiff, there was no just:.ii’ication to
‘ ” dec1*ee_the Slllt’:ll)1;;1nafidaiOYy injunction in O.S.No.1 105/I983.
11.” the other hand, learned Counsel appearing for the
submitted that, plaintiff is not claiming any right,
‘ and interest in respect of Sy.No.8l /3. Plaintiff has relied on
Ex.P4. HOW(;’.V€I”. EXP4 is not ajoint survey or survey conducted
l””E’urther, they relied on the evidence of PW~2 to show that PWw2
_]g_
with due notice to the defendants. The said documents neither
prove the ease of the plaintii’f of encroachment nor disclose that
these defendants have encroached upon the land of the plai_nt.iff.
Except showing some portions marked in blue eolou.r’;:l’tl’1e’rg”‘.iys
nothing to indicate that the said property has beeri:”eIv1eroalehueda ”
by the defeI1dants. There is 11othir1g»AA»to.4indieatéfnat it
defendants have eneroached upon tilt. .
the defendants that, Chikkaboitala.h was ir1«and’~l
enjoyment of Sy.No.81/3__ and it,___vJa.,s”Vj_odi hland along with
Sy.No.62. He applied for it regranted in his
favour and thereafter he entered of sale in
favour of defenlC1a1’2fts.._V . ‘There _w.’-is l nVo””‘notiee before the
preparaticyn ‘is notice issued to the
defendants} VTn’al ‘Cpouifjt.’thasiA”eategoriCally held that, EX.PlO is
not legible, there rloiihitngltio indicate that it is a notice issued
Apdefendants. As far as EXP}? and P18 are
iafrpe only Tippani and survey settlement in
l respeetllof But these survey settlement or Tippani
also liotprepared after notice to the defendants nor it prove
AV of the plaintiff over Sy.No.8l/ 3 or against
___”(lfhil{l{ahoraiah. No relief is also sought against Chikkaboraiah.
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at more than one place has admitted that he does not know the
correct extent of Sy.No.8l/4, he does not know what is the
encroached area, he does not know the correct I11€&1S111’€I’Vl.’:’€_f1l, of
encroachrneni and in turn he admits that, his father”:h’a-sp:’sold
the property and constructions have Come up. In fact, *e’c;~..u’-“c V’
Commissioner was also appointed, however’, he retiur-i1edV’with “a
report that since the entire area is ic»ové:}ed’
developed. it is not possible to rnakep any””;:urtreyi._V P’:1._2:1i’ntifi; hasw f
not disputed the title of ChikkabQl%iifih”.,QV€1′.’Sy».NAO.Vf§§1/ 3. Its
extent is also not in dispute, 7.p£iefendants.,, have purchased
‘_different piots of different :dri’11icn:sion.s’;i,_ admitted that
the construction.s’..Vhave_.conie_u:p. iflejhas also admitted that, he
does not hasencroached to what extent.
When the plaintiff has the encroachment, when the
plaintiff is not fdispvvuting thetrttle to Sy.No.81 / 3 and the evidence
does rio_t°di_scIose theHar”e”a’encroached, the trial court apart from
ap_prce_iating_ithattthere is no regrant in favour of the plaintiff has
also.’ that plaintiff has failed to prove title and
_4en_croac’hmie’nt.io the suit schedule property and application filed
was dismissed long back on 9.9.2003. Even if the
___”e’.1’1tireevidence is reconsidered by this Court. as first court of
if 9 if there is nothing 10 show that the plaintiff is the owner of
the suit schedule property nor the plaintiff has made out any
case for mandatory injunction. in turn, even the schedule
mentioned to the plaint does not disclose the correct boundaries
and identity. in these circtimstances, even looking at “fro:{i”–ai1y
angle. it does not call for any interference.
12. In the light of the above subrniseions,
arises for consideration in these appealsist’. A’
Whether the plaintiff in ‘o.”a_Nos.3.2s9,/Vias:2r.j’¢ma”
3491 / 1982 has made out a ctiselfor dectaration Qgfl his
title and has made out a case-of”mandatory irgrinvzftion
in respect of ‘B’ schedule (7Lnd_ h”t}~S Vn1’c:-ode out a case
that the judgment aria’ decifee; in ‘O.lS.No,_i 105/1983
cattsfor interference? H ” .
13. FE1C’LS,_V’3.?.lvfl’1i’%;ll’_’.I:l.iTé:”I1(lt _displute”‘are, that: Plaintiff is
claiming “C:’>y’.No.8i/4 measuring 1 acre 13
guntas in ptirsuancle_of.:E:rli?2l dated 18.1.1969, a sale deed
_Vexecutectl§y2l”Iotte§i)p.a:in favour of plaintiflg father. It is not the
“‘cas’e’iofl iplainigiff that. he has any interest in Sy.No.81/3.
Det’ei_1″danits’:lals_o’l.:’do not claim any interest in Sy.No.81/4.
it Defeiidlétntsfi ‘specific case is that. Chikkaboraiah was the
sold the land to Subrainanya, Erappa and other
and they have constructed the buildings over the
ljlpiroperty purchased by them. it is also not in dispute that the
“”(‘3ourt Commissioner appointed to make a local inspection has
_ “7’? A4
returned with a report that it is not possible to survey or make a
local inspection and give a report about the enc1’oachment._
14. To support the case, plain.tii’f relies on l<3x.P-'§~…lj
a survey sketch produced by the plaintiff. No
that there are some markings. but it doesnot7shoxv:that._these
rnarkings are the encroachment by the'.defendants¢,Al' th'ey'=–4o'rllyl'-
identify some construction. Wlietlier shad
encroached upon the Sy.NQ;.8R1/4 been 'ascertained. if
the plaintiff had sought and
81/4. It is not thecase there was a joint
survey. Howe*ve'rl" 'i..relieciilV_:on_ 'filil.PIO to show that
there was fa.n.otilc«?:lblutdooléilrigat 0, it does not even show
whether ithwas' any one, no particulars are
forthcoming in "'lf:tl2.é'_E:}'{.P4 is prepared without notice,
defendanitsl againstnlwhiom encroachrnent allegation is made and
V. in theiabsence evidence of the Surveyor, it cannot be held that
t',heil"plairitiff' 'Alp1*oved the alleged encroachment. Further,
lVExs.Pl'7"'—-anci'\Plv8ll are the Tippani and survey settlement. They
_. , ., do not prove the plaintiffs case of any encroachment.
'J5. It is in this background, it is necessary to consider the
lll"—-._glplaili1tiil's evidence particularly PW«2 only, as PW–l did not
i
su.bject himself for crossexamination. PW–2. the only oral
evidence which is available on record, and has categorically
admitted at more than one place that he is totally ignorantabout
the encroachment, extent and sale transaction and in..'t'urr;,"he
categorically admits that it is his brother was loolging *
case. If this evidence is considered, it _is..li1ardly.lot"'any and
does not even support the case of the ;:3'lai.ntiff.._ he:
admits admission that; the buildings'-..ha'-Je in-. L'
Sy.No.8l/4 about 25 years earlier.llhe:_d-oes not«.:l_;r1owl}the area
encroached by the defendants'; Elle ~-:1'ot,"giye the particulars
of the area alleged__to i1a{m..,i§eenV..¢;:;c14;5a.¢hV¢i;1."' What is the
encroachment area is£al_so_r;otltorthconii'ng;*""Apart from the fact
that the evidence' no the plaint schedule also
does not disclose theylcor"rect.:en.r:roachn1ent. Neither there is a
pleadingnor the're_b1s..a1–nevidence to show that the defendants
,f'lh'ad Apintoflthelvland bearing Sy.No-8l/4 and have
"in.tl1i'l'ding. Plaintiff having made such allegation
__and the burden was on the plaintiff to prove
the evidence produced by the plaintiff oral as well as
do not establish his case nor the encroachment of
'schedule property. Even the necessary party like
Chilikaboraiah is not been impleaded in the suit as. through
%
Cliikkaboraiah, these defendants have purchased the property.
The sale deed of Chikkaboraiah is not in question. The title to
Sy.No.8l/3 is not the subject matter of any dispute. There is
elaborate cross~eXaInination of PW–2 and the evidencetofi
only shows that he is ignorant of the transaction ~
case. On the other hand, defendants haveled the' and
have produced sale deeds Exs.D2, 3, 4.7._i4;an.d
establish that they have purchased the'-..plroperiyl'iQf…¢different–.lli'
dimensions from their vendor and –._thei.r' «case lfiis that,
Chikkaboraiah was the orig-i_ri:al_ favour land was
granted' and all these docurhents. A epstah.lilsh}_*~ that they have
purchased the property' it Sy;No.81/ 3. It .is not
the Case of have encroaehed on the
land of thel'«plaini;iiT._.l'lt;is*~al'so~"noi: their case that they have
constructed on""Sy.No}81i}'.4ll"': Their specific case is that, the
are standing"o'1'i'the property bearing Sy.No.8i/3 and
registered sale deeds, there is nothing to
disbelielve t.h.isl'lefvide1iCe. as it is not the case of the plaintiff that
,'..9;i§ also his land. The trial court on appreciation has
the plaintiff having failed to prove his case and
_'11'a5e1a~;di;1fits having shown their title to the property by virtue oi'
llmgilstered sale deed and there being no dispute as regard to the
-25-
title of Chikkaboraiah, there remains nothing to prove the
defendants’ title and there is also nothing on record to prove the
alleged encroachment. It is in these circumstances, the trial
court on proper appreciation of the entire evide«nc.e”‘–._has
categorically given a finding that the plaintiff has fafiedly i-
his case of deciaration, mandatory injunction a_n’dl’p’o,s’ses’siVon. –I it
do not find there is any error in the said,jud’grnenf’t.andl’decree,ll7T_A
16. insofar as O.S.No.i10l5/lli~993 is VcoI1cl(‘élI7ni’3:di”rrlearned” if
Counsel for the plaintiff, who is 1\lo1’1.,,iAn_this case,
submitted that, the evidencekwhtch by the plaintiff
therein also do not;i’establish”»alnylencroachrnent, however, the
trial court has it thelcase of the plaintiff
that, the e.nci’oachrne’n_tliisl”c],a’irnled in Sy.No.8i/4. Assuming
that the evidence doeslln.o’t_ls_how the clear encroachment, the
__,encroac.1§tme1at claimed is: in respect of Sy.No.81/3. if the
A’p_la.in’tiff has his title to Sy.No.81/3, and encroachment is
alleg;Ted.._inA 81/3, as the plaintiff has not claimed any
ll3’lt€l’€Sl””l,I’1 t.he’s’aid property, this suit is decreed on the basis of
“*.4th,e’ evidence of encroachment, it is in the these circumstances,
l_lth_e’-tri’al*lcourt has decreed. What is decreed is in respect of
and not in respect of Sy.No.81/4. In these
I.
_KN1’~/I/–
eircumstances, I find that there is no error in the said judgment.
Accordingly, I pass the following;
ORDER
All the appeals fail and same are dismissegfi ~
bear their own costs.