Buden Khan and Others vs M. Lokeshappa

Ravi V. Malimath, J.—The case of the plaintiff is that he is the absolute owner of the suit schedule property, having purchased the same through the registered sale deed dated 09.07.1998 from one Kamalamma. Ever since then, he is in actual possession and enjoyment of the same even though the Khata stands in the name of his vendor. The property originally belonged to one Mallaiah @ Sambaiah, who had purchased the same through a court auction in the year 1929-30 as per the decree passed in O.S. No. 245/1929-30. He sold the property in favour of one Seshadri through a registered sale deed dated 01.07.1948. As on that date, the property had khanesumari No. 104 and bounded by its schedule. The said property was sold to the vendor of the plaintiff on 25.02.1987. Due to passage of time, there were changes in the boundaries. Accordingly, the properties purchased by Kamalamma is as narrated in the plaint. That the said Kamalamma has executed GPA on 22.12.1995 in favour of the plaintiff to manage the suit property. Later on, she has sold the same to him.

The first defendant alongwith one Habib Khan, attempted to interfere with his possession in the year 1995, which was resisted. The first defendant and Habib Khan, filed a suit in O.S. No. 36/1995, contending that they are the trespassers over a portion of the property. During the pendency of the suit, since Habib Khan died, defendant Nos. 2 to 6 in the suit were impleaded as his Legal Heirs. The seventh defendant at the instigation of the first defendant filed O.S. No. 41/2002, by narrating false boundaries, which included the suit schedule property. On contest, the suit was decreed.

The seventh defendant possessed property measuring 16 feet x 173 feet, which ends upto the vacant site bearing asst. No. 132 belonging to Abdul Razak Sab. The suit in O.S. No. 36/1995, was decreed on 02.08.2003, in respect of TV schedule property and in the said suit ''B'' schedule property was described as house property bearing asst. No. 127, measuring 9 feet x 228 feet. It is the further case of the plaintiff that the defendants have misrepresented various facts in the earlier suit. They have also misrepresented that the backyard of Hayath Baig was used by the owners of site Nos. 125, 132 and other persons who reach Usmaniya road through the conservancy existing towards northern side. They have not stated about the date from which they were in unauthorized possession of the said property. That after obtaining the decree in O.S. No. 36/1995 they have managed to enter ''B'' schedule property on 05.08.2003. The vendor-Kamalamma having obtained license for constructing a building but due to interference caused by the defendants she could not do so. Hence, the instant suit was filed seeking for a declaration that the plaintiff is the owner of TV schedule property consisting, ''B'' and ''C'' schedule, as well as permanent injunction restraining against the defendants from interfering or damaging or trespassing in the plaint schedule property.

On service of summons, defendants entered appearance and denied the suit averments except the proceedings held in O.S. No. 36/1995 and O.S. No. 41/2002. They contended that there is no cause of action to file the suit nor does the court have pecuniary jurisdiction That defendant Nos. 1 to 6 are the owners in possession of the property bearing asst. No. 126, 127 each measuring 228 feet with boundaries as T.M. Road towards south and conservancy towards northern direction. The same has been bifurcated through a partition deed dated 10.02.1956 and from the said date of partition, they are in possession of the properties allotted to their respective shares. The seventh defendant is in possession of the property bearing asst. No. 128 measuring 16 feet x 230 feet having boundaries as main road towards north and conservancy towards south. There are about 25 to 30 houses from Mandagadde Circle to Usmaniya road having conservancy towards northern side The plaintiff having misused his official capacity has created documents. Hence, they pleaded that the suit be dismissed.

Based on the pleadings, the trial court framed the following issues and additional issues for consideration:

i. Whether the plaintiff proves the boundaries of suit schedule property?

ii. Whether the plaintiff proves that he is the absolute owner of suit ''A'' schedule property and ''B'' and ''C'' schedule properties are the part and parcel of the ''A'' schedule property?

iii. Whether the plaintiff proves that the defendant Nos. 1 to 6 had illegally managed to enter the ''B'' schedule property on 05.08.2003 after passing the decree in O.S. No. 36/1995?

iv. Whether the plaintiff proves that the defendants are trying to enter and damage the plaint schedule properties?

v. Whether the plaintiff proves that the defendant No. 7 is trying to interfere with the peaceful possession and enjoyment of the suit schedule property and meddling with the suit ''C'' schedule property?

vi. Whether the plaintiff is entitled for the relief claimed in the above suit?

vii. What order or decree?

Additional Issues:

i. Whether the court has got no pecuniary jurisdiction to try the suit?

ii Whether the suit valuation is incorrect and court fee paid is insufficient?

In support of the case, the plaintiff was examined as PW-1 and two other witnesses were examined as PW-2 and PW-3 and marked 57 documents. The defendant got examined as DW-1 and got marked 24 documents.

It held issue Nos. 1 and 2 in the affirmative and issue No. 6 partly in affirmative. It held issue No. 3, 4 and 5 in the negative and the additional issue No. 1 was held in the negative and additional issue No. 2 was held in the negative. The suit of the plaintiff was partly decreed. The plaintiff was held to be the owner of the ''A'' schedule property, which was to an extent of 40 feet x 55 feet consisting of suit ''B'' and ''C'' schedule properties. Defendant Nos. 1 to 6 were directed to vacate and deliver vacant possession of ''B'' schedule property to the plaintiff within two months from the date of the order. The injunction sought for against the defendants was rejected. Aggrieved by the same, the defendants filed an appeal. The appeal was dismissed. Hence, the present second appeal by the defendants.

The learned counsel for the appellants-defendants contends that the courts below committed an error in misreading the material and evidence on record. That the courts below failed to consider the evidence let-in by the parties. That there is a misrepresentation with regard to the properties. That the trial court has ignored the cross-examination of PW-1 with regard to the ownership of the plaintiff as well as the possession of the defendants. Hence, he pleads that both the courts below committed an error and hence the appeal requires to be allowed by dismissing the suit.

On hearing the learned counsel, I am of the considered view that there is no merit in this appeal.

The undisputed facts are that the plaintiff purchased the suit schedule property in terms of the registered sale deed dated 09.07.2007. Prior to the purchase, the defendants had filed O.S. No. 36/1995, seeking for a decree of permanent injunction against the vendor of the plaintiff, namely, Kamalamma. The said suit was decreed. The plaintiff and the vendor were restrained from interfering with the possession of defendant Nos. 1 to 6 unless they are evicted under the due process of law. Therefore, the title of the defendants therein namely, the plaintiff and the vendor herein was confirmed. The possession of the plaintiffs therein namely, the defendants herein was confirmed except that they could be evicted only under due process of law.

It was held that the defendants did not have any title over the suit schedule property. The defendants did not challenge the findings recorded therein. Therefore, the same is binding on them. Therefore, what is binding on the defendants is that they did not have title over the suit schedule property, that there has been a encroachment by them over the suit schedule property and they could be evicted from the suit schedule property only in a manner known to law. The manner known to law has been exercised by filing a suit for declaration and possession based on the title to the property in terms of the registered sale deed dated 09.07.1998. In terms of Exhibit-P2, the plaintiff was declared as the owner of the suit schedule property. Since terms of the decree in O.S. No. 36/1995, the court held that the defendants had encroached upon the suit schedule property necessarily, the trial court has decreed the present suit by directing the defendants to hand over the possession over the suit schedule property. The evidence recorded in the earlier suit having formed the basis for the decreetal of the suit, I do not find any error committed by both the courts below in decreeing the suit. The question of illegal possession of the defendants over the suit schedule property has since been confirmed by the findings recorded in O.S. No. 36/2005, namely, the suit filed by the defendants themselves. Therefore, I find no reason to interfere with the impugned orders passed by both the courts below.

So far as the illegal possession of the defendants over the suit schedule property is concerned, the further contention is that the evidence of PW-1, the plaintiff, has not been properly considered by the trial court. The contention of the appellants is well answered by the findings recorded by the trial court in terms of para-16, 17 and 18 with regard to the evidence and cross-examination of PW-1. Therein the plaintiff has stated that in terms of Exhibits-P2 to P4, the certified copy of the sale deeds dated 09.07.1998, 25.02.1987 and 01.07.1948, would show that one Mallaiah @ Sambaiah has sold his 9 properties in favour of Seshadri S/o. Nadig. On perusal of Exhibit-P4, the property in item No. 5 was bounded by the schedule mentioned therein. Therefore, on execution of Exhibit-P4 the sale deed in favour of Seshadri was since approved by the plaintiff.

The plaintiff had also produced the certified copy of sketch pertaining to the properties bearing asst. No. 126 to asst. No. 134, is marked as Exhibit-P6. The property of the plaintiff''s vendor Kamalamma is shown as bearing asst. No. 133, measuring 40 feet x 55 feet. In terms of the said sketch the property bearing asst. No. 133 is bounded by the schedule mentioned therein.

The defendants while cross-examining PW 1 have not disputed the correctness of Exhibit-P6 the sketch and have not even suggested that Exhibit-P6 is a created document. Therefore, Exhibit-P6 discloses existence of properties bearing asst. Nos. 126, 127, 138 each measuring 163 feet from south to north. The defendants in their written statement have claimed that asst. Nos. 126, 127 properties measures 228 feet and asst. No. 128 property measures 230 feet towards south-north. Whereas Exhibit-P6 discloses that the properties of the defendants measuring only 163 feet from south to north. Inspite of the same the genuineness of Exhibit-P6, the sketch has not been denied by the defendants. Therefore, the contention that the evidence of plaintiff has not been properly considered would not hold water. Even otherwise, the trial court on considering the extent of the property-was of the view that even though the plaintiff has claimed ownership over ''A'' schedule property measuring 46 x 66 feet, Exhibit-P6 sketch discloses that ''A'' schedule property measures east-west: 55 feet and north-south 40 feet Therefore, the full claim set up by the plaintiff in terms of ''A'' schedule was not granted. The suit was decreed to a lesser extent and he was declared as an absolute owner of TV schedule property only to the extent of 40 feet x 55 feet bearing asst. No. 133.

Under these circumstances, the evidence of the plaintiff having been rightly considered so far as the extent of the property is concerned by granting the decree in terms of Exhibit-P6, I find no error committed by the trial court that calls for interference and the judgment and decree passed by both the courts below are just and appropriate and in accordance with law. The findings recorded are on questions of fact and no substantial question of law arises for consideration. Consequently, the appeal being devoid of merit is dismissed.

The appellants are granted four months time to vacate and deliver vacant possession of the suit schedule property.