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Shivappa vs B Thippanna on 26 September, 2008

Karnataka High Court
Shivappa vs B Thippanna on 26 September, 2008
Author: V.Jagannathan
IN THE HIGH COURT OF' KARNATAKA AT BANGALORE
Dated the 26*' day of September 2008
: B E F' O R E :
THE HONBLE MRJUSTICE : V.JAGANNATHAN_ '
REGULAR SECOND APPEAL No. 531 1 2007:

BETWEEN :

1. Shivappa,   
Aged 50 years. 1 '

2. Siddappa,
Aged 47 ycaxs.

Both s/0 late Easappa,
Shivaganahaily    -- 
Davanagere 'Ta11i1§F'-5777 Gm;  .

 =   Sr. Advocate. )
A N D:  "

 =  V

 V'  . Aged 63 yams, S/tffiéerappala
'SiddaP13a,--.Baiiur village.

  "'pava:;::ge:e' fgiiuk -- 577 001.

... Respondent

.. Second Appeai filed under Section 100 of the

nC;’..”P.CV.”agai11st the judment and decree dated 16.12.2066
” in R.A.No. 77/ 2001 on the file of the Add}. Sessions
‘Judge, Fast Track Court~E, Davanagerc, dismissing the

‘”appeal and confirming the judgment and decree dated

20.4.2001 passed in C}.S.No. 56/1992 on the file of the Prl.
Civil Judge (Jr. 1331.), Davanagtzrc.

3

defendants tried to cause damage to the band, he,
apprehending irreparable damage that would be caused
to his land, approached the trial eouxt for the felgief of

declaration to the effect that he is ‘tip

possession of suit ‘A’ schedule h t’

injuncfion against the :4

them from destroying ti1eVb.Lu’1d,’Vu*1_1:ichis >’

schedule as ‘ABCD’. The on the
sale deeti under
by him in theeyear one ‘ @

:61″ on 27.10.1975.

It is {render had raised a loan of

R.-:~:.;1;.’5_O() Cmoperative Agriculturai

” Bank Ltd., Davanagere, by

I land measuring 9 acres and 16 guntas

arm folzagving the loan being discharged, the suit

A.ptjepe11::y was subsequentiy sold by the aforesaid vendor

‘ Haxfiumanthappa in faveur of the plaintifl’.

‘ V The defendants contested the said suit by taking

up the contention that while it is not in dispute that the

plaintiff is the owner of the land in S.No. 24/2, but the

«$3

4
said land measiares only 8 acres and not 9 acres and 13

guntas as claimed by the plaintiff and, therefoxifi. the

plaintiff is making an unlawful claim to «.1

acre and 13 guntas of land which

defendants’ property. It was alsofj. t1,1e’: X ‘

defendants that the f1rst,riefen(lélnl:”s L,

purchased 5 acres of 2 on
17.11.1972 and i3t’oi1i«.o:1e 6 acres and
32 guntas on 5.6. one Doddappa

2 acres of these purchases

under registered sale
deeds} Thercfo1;e,’«il”1e_:”iotaI extent of land belonging to

the xiefenulests 13 acres and 32 guntas of land.

– admitted the existence of band

side of the plaintiffs land and also

piit 11;)’ contention that the bund was put up by the

udefentiafints for the purpose of pumpset water channel

“‘.3?¢E;ieh Water channel or canal is situated in the

” ” ” iclefendants’ land.

4. The aformaid pleadings led the trial court to frame

necessary issues and, after oonsidering the evidence

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piaceé by the parties, the trial court eaame to the

eonciusion that the defendants’ total extent of land

could not be more than 12 acres and 16 of

the orignal extent of 24 acres and 32

half of the said extent was sold in

respect of the mortgage ébyfouevoof ‘

the defezldants Ma11.*1tie§{apf.ia,,_ The;e:’o;~e., ma; ,

court accepted the case of decreed the
suit as mentioned appefiate court

concurred with the thc appeal

prefejfiea the 3 V V

5. have t “}eaI’ned senior counsel Shri

C.’§’eganaiasifi1ha .’i?*-arm the appellants and the soie

«:espoii(ie_£1’i:,_ though served, has remained absent and is

.V_ti’-ms I have aise perused the records of

tfiis ca.se’.v ”

“it: E The substantial question of law that is raised by

this court for consideration is as under:

“Whether the courts below were justified in
declaring the titie ef the plaintifl’ over the

$64′

6

suit schedule property in excess of 10 acres

55/; guntas acting on the basis of the
measurement gven in the sale certifieate
though in the registered partition A’
the brothers the property which has
his share is 10 acres 5% guntas ?_’.’~.«. ‘tie .

7. The learned senior co1_insel’_’ T fer

submitted that both the e1’i’ed__ the L’

fact that the actua1;..extente.–et’i_wl1leh~wa:§ available
for the ceurt aectieh “L. it.) acres and 5%

guntas, whj1ch;W.i_s .__of fllalmdevappa, and

folloxveing ” _ etltered into between the
membe:_s’a:’ 1952, Mahacievappa was

giveiz _1() uuaetjes guntas of land towards the

f’pQrtiorl’mei; S.No. 24 and Basappa was given 7

K of land to the SGL1th6I’I} side of the

said sway Imntxber and Hanumanthappa was given 7

as a<:__I'esV"'1..2-"/4 guntas of land and thus the total extent of

l measuring 24 acres and 32 guntae was divided as

l V' the above portions being allotted te each one of

them. Therefore, the property which had fallen to the

share of Mahadevappa was not 10 acres and 5% guntas

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of land and it was this extent of land that was the
subject matter of the court sale in O.S.No. 14/195152

filed by the mortgagee for recovery of the amewoiiie. due

from the mortgagor. Therefore, the actual e:CLei1[t

that was actually brought to sale was oI1}.§,r,_'4_:f§{)V

5% guntae of land and not more:.thé:1i' 4' '

trial cour'i as well as the.»iofi5._7er aappeflatee.'ee}q:Ei;_V.Ver'§§'edd u

not noticing this fact but gene end': record their
findings based on' which the

plaintiff purchased the ivjfianumantilappa,

son xi theeefore, contended that when
the " in his pleadings that his

langiand large at" {fie defendants are separated by a

jg: gamed; that the band beiongs to both the

I such, the extent of land upto the band to

the eastegigside of the p1ai1'1tifi"'s1a:r1d alone could be the

eearea iiifiregard to which the plaintifi can claim absolute

'"'..vo'WI:1erst1ip but not in respect of the area which fails

' V "ou1:s'1de the bund area and falling within the area of the

defendants' land. Therefore, the courts beiow have not

appreciated the evidence of the parties fiom proper

V

3
angle and have merely gone on by the documents
produced by the plainfifi’. The documents produced by
the defendants particularly, the sketch maps E1;’s.D«-43

and 1344 ixidicate that the land that is tzlaimgi-;d:

plaintiff falls autside the bund area 4′

defandants’ property, which i.swr1pt ” *{;_’rj1<'éu ' 1.

piaintifi' himself as could be seenkrrkanqj me figs

such, the fmdings of L»

perverse and cont1'a1<}{ to éiifirfiittsd fé,C'i;;=;. as: emerging

fmm the pleadings 'ci' '£116., as such, the
judgméfits tmelgfiérequire to be modified by

h0ldifigV__t§1£1t at the most, be deciared

as j:;"–:e_ owiiefii of land extending upto the bund

" tIt€ic:.g§aste:i;1;side and not bayond that.

" of the submissions mada and having

c.ۤ;1**3fL1i13r-gone through the entire material on record, I

*§.I__1§I§ étrfiaugh fares in the contentions put forward by the

'..VVléai'r1ed senior counsel far the appellants and this

V' " " canciusion of mine is based on the following reasaning.

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9. The plaintiff himself has admitted in the course of
his pleadhzgs that at paragaph-5 thus:

“5. . . . . .. The plaintiff sizbmits that the st1i?t;*.t
property and the iands which are
eastern side are separated by a A
runs from north to south, _ _ V
about one feet in height I:

width. Towaxwis the eae’tez1*11_. side,.”_t’nf ” V’
band, there is a’ ‘of:

defendants prqvided flow» of ivate; flow
there is jaeragfe ‘in the land of

the plaintiff. the

fully aware of the
the eastern side of
the Thus the bum is

h’ the material of the property
Ehelexeging plaintifl’ and the defendant”

of the plaint, referring to the cause of

aetierit the plaintiff has stated thus in iegard to the

.. ” exigsteiice of the band:

“7. Cause of action for the suit has arisen
from 31.12.1991 when the defendant tried to
destroy the band which is in between the
suit property and property’ ef the defendants

%.

£9

and thereby tried to interfere with the
peaceful possession and enjeymefit ef the
suit pmperty by the plaintiff. ….”

10. alt is, therefore, very clear from the aboge

of the plaintjfi’ in his own plcmdmgs that V’

the hand between his else »7 AV

defendants is admitted a31d_ fmfl3ef,._the

that his iand exists ts the””eTa:§s$em si€3_.e’ b1mdV
and beyond that is :.~-glefefifiiaiits. Now,
the question is as te_W_vFw1t land that the

p1ajx;zjfie;*;.§g;«;.se the plaintiff is that the

exterft 9 ‘e1§d« of land. The faetum of

pa1ftiti012L’I;ajri;1g’V–ta&};.;§f1.– 331333 among the members of the

fs’jiiii3J”‘iVs not disputed and in the partition

on 24.3.1952, the shares aiiotted to each

one of .th_e§,-{fires family members were as under:

A Mahsqlevappa – 18 acres — 5% games {northern portion)

Bssappa -» 7 acres -14 guntas {southern portion)

_ ._ Hanumappa

7 acres —– 123/: guntas

Total ~ 24 acres —-~ 32 guntas

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11

Thus, the total extent; of land avaiiable in S.N0. 24
comes tr: 124 acres and 32 guntas in 22:11. It is an

admitted fact that following the moxtgage deed’

by Mahade:va.ppa, the interest of Mahadeveigfipaée

224 was brought to sale and aisjjer 1 i

the extent of land that was the mdt§:e:’».0f

proceeding was mentionedd’-dhalfyhof _thed :.%:o1i”a1’V’e5:tVent of
land in S.No. 24. Ifl~9the1*’iiz€efdSV,””it_’was; deexieuued that
Mahadevappa’s interesizd £0 _.t.§ieA.’.:e§§Lent of 12 acres

and 16 gu:i:t;z§_e:fr3f the sale teak

place Changed hands and
u1tiII1z:{t.e_1jr’,11 ims that he purchased from

one “1-Ianuarrxaxjtfiapdvpaundel” a regstered sale deed, 9

“L3 cf iand on 27.10. 1975.

._ ” d.§3fe11dan£s have also relied on Various sale

deeds._fo’eentend that the total extent of land purchased

A. by the defendants was 13 acres and 32 guntas and this

is -arm ed at on the basis of the foliowing

1′ “dpurehases. The defendants’ brether Siddappa

gaurchased 5 acres from one Thippaiah under a

registered sale deed dated 17.11.1972. The very same

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defenéants’ brother purchased 6 acres and 32 guntas
from {me B.G.Tl1ippesWa:my wider a registered sale deed

dated 5.6.1985. The same person also 2

acres from one Doddappa under a registered’

dated 5.9. £980. Thus, the totzfai”e>tte1’1t-‘_4’0f»i;oVV ‘ j x

13 acres and 32 guntas cf all

12. in the face of the evlr1er1ee~. the
trial court; was in error tllllevextejllt of land
available to the vllt;:.ere than 12 acres

and 15 gum.as;a~«r%.To:’ lar1d.:: ems of the trial com

is en’ “that, during the sale, 50% of
the totele’-efiitexlt was brought to sale and thus,

acre’S’eLn.d*32 gurutae in S.N€).24, 12 acres and

L’ eecame the subject matter of the sale. This

‘i33fereneef’i._of’ the trial court: is totally erreneous ané

contrery to the very documents produced by the

A “if rlefendants. When the extent of land that fell to the

V. Vléshare of Mahadevappa was erfly 10 agree and 5%

gunizas of land, there seas no quesfion of the said extent
of land going beyond that figure and it could not have

been taken as 12 acres and 16 guntae cf larid. Merely

fig:

because the documents subsequent to the auction sale

by the court reflected that what was sold w.es:V:1″§fl’eeres

and 16 guntas of land, yet, the fact

more than 10 acres and 5% g7Lifitas« of’.-.’1antttV:co_1t}Vd~ithzsvfe ti’

been the subject matter of the

extent that is shown in thesaile. cteedt

13. In the light of it therefore
becomes ciea;f”t.1:1at extent of land
comes to. the claim of the
9 acres and 18 guntas,
therefore,” in the face of the evidence
placed S the Courts below committed

s.e_f’io§ “ih11ot«’proper1y appreciating the case of the

of the stand taken by them and the

5px*oduced by the respective sides. When

the has stated categorically in his plaint that

A “it land extends enly upto the build and beyond the

h Hbund is the land of the defendants, and when both the

parties have also produced necessaxy sketch aleng with
their pleadings, the question of the trial court declaring

the plaintiff as the absolute owner in respect of an area

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measuxing 9 acres and 13 gtmtas of land does not arise

becauee, if that were to be accepted, then,

land will extend beyond the bund

I between the land of the of

defendants as indicated

Moreover, it is not the pleading of» tlle L’

land extends beyond the {he bund.
when such are the the evidence on

record, both’ jt;h__e below xveyfe’ not justified in

declaring. the extent of laad

thatifelllvto jvoialyialgadevappa was only 10 acres
and 5A%éi;..V_g’11;1tas_. not more than that.

143 ~ has al$o’eofI.1e ‘on record from the evidence of the

outvdflllfi acres and 5% guntas of land ihat

I of Mahadevappa, 3 acres was sold and

What was only 7 aeree and 5% guntas of land

do e.¥; tl1e”1l1ost. ‘Yherefore, even leaked from this angle, the

llgioseibility of the plairltifi’-S total extent: of land covemg

‘ V area of 9 acres and 13 guntas cannot be accepted as

a possibility from the over all pleadings and the evidence

placed on record.

f

%”~ckb!9 T *.

1.5. For the aforesaid reasons, the substantial cffiesfion

of law is answered in the negative f fiiiac

foilowing order:

The appea} is ailowed. fiie ‘

courts below declaring Vtixfu «.al§:£g.r§1ut::§5 L.

owner of an extent cf 9 acfés “‘:cas ;of land in
S.No. 24/2 is set as§§{::, tiV11t;_itl.iailiédified by ebsezving
that the plaintiif is 0}’ the land in the

aforesaid __.I}11i33En2_:i’ e_2s:Vt,c::_I:1’t:iiV.i*1g”‘ upto the bund on

the iand.

Sd/-&
Judge

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