Channamma and Others vs Shivalingappa

Anand Byrareddy, J.—Heard the learned Counsel for the appellant. The appellant was the defendant before the trial court.

The parties are referred to by their rank before the trial court for the sake of convenience.

It was the plaintiffs case that he was the absolute owner in possession and enjoyment of the property bearing New No. 259(01d No. 256) and assessment No. 312, situated at Halagevaderahalli, Kengeri Hobli, Bangalore South Taluk, measuring east to west 99 feet and north to south 15 feet, which was more fully described in the schedule to the plaint.

It was claimed that originally, the property belonged to one Venkatapathaiah who sold the same on 14.12.1928 to one Nanjundappa. The said Najundappa is said to have sold the property to Ganganna and Kempanna. Kempanna is said to have sold the property to one Chennamma, wife of Puttachari. After the death of Chennamma, khata was said to have been changed in the name of Puttachari, her husband. The said Puttachari is said to have sold the property to the defendant on 5.10.1967. The defendant is said to have resold the property to Puttachari on 9.10.1968. Puttachari is said to have sold the property to one Shivanna on 13.11.1968. Shivanna, in turn, had sold the property to Basavaraj on 22.5.1972 and Basavaraj sold the property to the plaintiff on 1.4.1991 under a registered sale deed. Khata was changed in the name of the plaintiff The plaintiff was thereafter paying taxes in respect of the property.

It was claimed that there was said to be an old house on the property, which was demolished by the plaintiff in order to build a new house and the plaintiff had also laid foundation and he had obtained a license of the construction from the Village Panchayat. And when he started construction on the property, the defendant is said to have interfered with his possession on 2.11.1991, claiming that he was the owner of the suit schedule property and he had also got issued a legal notice to that effect. The plaintiff had denied the same by issuing a reply through his advocate on 14.11.1991. It is claimed that the defendant had then filed a civil suit in O.S. No. 6887/1991, before the Court of the City Civil and Sessions Judge, Bengaluru, seeking permanent injunction against the plaintiff This plaintiff, who was the defendant therein, had filed his written statement and contested the suit. The suit was ultimately dismissed on 2.1.1992, holding that the plaintiff therein had not established his possession in respect of the suit property. The court had further held that the defendant in that suit, namely, the plaintiff herein had also laid foundation, but however, had refrained from pronouncing any judgment on the title to the property. That suit having been dismissed, the defendant, who was the plaintiff therein, did not choose to challenge the judgment. However, the present plaintiff, who was the defendant therein, had questioned certain observations made in the judgment by way of an appeal before this court in RFA 187/1992. The appeal was dismissed by this court, at the admission stage, on the footing that such observations against the defendant could not be subject matter of challenge in an appeal, following the judgment of the Supreme Court in Smt. Ganga Bai Vs. Vijay Kumar and Others, .

The plaintiff however, is said to have started construction on 24.9.1993 and the defendant again tried to obstruct his construction and thereafter the plaintiff had filed the suit.

The defendant, who had entered appearance had died during the pendency of the suit and his legal representatives were brought on record, who had filed written statement denying the plaint averments and denying that the plaintiff was the absolute owner of the suit property. It was further claimed that on 14.12.1928 the elder brother of the defendant''s father one Gurusiddaiah, Siddabasappa, Yanjappa, Nanjundappa and another had purchased the kanada patte hola from Venkatapathaiah. Gurusiddaiah purchased the suit schedule property from Venkatapathaiah. It is claimed that the vendor of the plaintiff one Nanjundappa had purchased the land on 14.12.1928 and that the defendant''s sale deed was much earlier to the plaintiffs sale deed as alleged in the plaint.

It was also claimed that originally, the property mentioned in the plaint belonged to one Venkatapathaiah and that it was not correct to state that the said Venkatapathaiah sold the property on 14.12.1928 to one Nanjundaiah. The suit property was actually sold to Gurusiddaiah, who was the uncle of the defendant. The property purchased by Nanjundappa is entirely different. It was also contended that the several sale deeds, on which the plaintiff has placed reliance would indicate that the boundaries are not consistent. Further, that his claim as to there being an old house on the suit property which was demolished was also incorrect and false. The plaint averment to the effect that he had put up construction was also denied. It was admitted however that a suit in O.S. No. 6887/1991 was filed and the court had dismissed that suit, but it had also held that the defendant had not proved his possession over the suit property. And there was no pleading on the part of the plaintiff, who was the defendant in that suit, to the effect that he had put up any foundation. The defendant however, on the other hand, claimed that he was the owner of a site formerly called kanada patte hola measuring east to west 50 feet and north to south 15 feet and he had indicated the boundaries as follows:

"East by : Land formerly belonging to one Ramaraya and presently belonging to one Shivanna;

West by: Land formerly belonging to one Yanjappa and presently belonging to Yanjappa''s legal representatives;

North by: Land formerly belonging to Shivanna;

South by: Land belonging to Nanjundappa."

It was further claimed that the uncle of the defendant, Gurusiddappa had purchased the suit property from Thimmappaiah and his brother Venkatapathaiah, as already stated above. It was acquired by the joint family of Gurusiddappa and his brothers and it was therefore the claim that the defendant and his family members had retained the same and never sold the said property to any person and it had ultimately fallen to the share of the defendant herein under an oral partition and that he has continued in possession of the same till date by tethering cattle on the said site. Khata also stood in the name of the defendant and he has been paying taxes to the Village Panchayat and defendant''s name has been entered in the owner''s column in the demand register and the RTC extract and therefore, the defendant claimed that the suit be dismissed.

On the above pleadings, the court below had framed the following issues:

"1. Does plaintiff proves that he is the owner of the suit property?

Does plaintiff prove his lawful possession of the suit property on the date of suit?

Does Plaintiff proves the obstruction by the defendant as alleged?

Is plaintiff entitled to the declaration as prayed for?

Is he entitled to the injunction as sought for?"

The court below has answered issue No. 1 and 4 in the affirmative and the other issues in the negative and had decreed the suit in favour of the plaintiff

It is that which is under challenge in the present appeal.

The primary contention of the learned counsel for the appellant was that the burden was entirely on the plaintiff to prove that the property, which is the subject matter of the several sale deeds, under Exhibits P.1 to P.8 is consistent with the boundaries described in the plaint schedule. It is pointed out that though in the earlier sale deeds Exhibits P.1 to P4, there is no indication of a road, it is subsequently mentioned as the southern boundary to the suit schedule property. However, it is also found that exhibits P-4 and P-5 indicated the southern boundary as the road, which was actually formed in the year 1965. However, Exhibits P.6 and P.7, which are subsequent sale deeds, do not show the southern boundary as the road. This is the grave inconsistency, which has been completely overlooked by the court below.

It is also pointed out that the court below had appointed a court commissioner to conduct a spot inspection and furnish the sketch of the suit property. The same is available on record. It is seen that the southern boundary of the suit property is shown as Nanjundappa''s land. Co-incidentally, the father of the plaintiff was Nanjundappa. It is seen that to the south of the property, now claimed as the suit schedule property, Nanjundappa''s land is shown, which measures 15'' x 99'', which matches with the measurement of the suit schedule property.

It is contended by the learned counsel for the appellant that apart from the land, which he may have inherited from his father, there is an independent purchase, of the exact extent of 15'' x 99'' with the southern boundary as the road and therefore, it is coincidence that in the sale deeds Exhibits P.6 and P.7, the southern boundary of the suit property is not shown as road, which is not consistent with the earlier sale deeds, Exhibits P.1 and P.5. This aspect of the matter unfortunately has not been canvassed before the trial court at the time of the arguments and it has been completely glossed over by the trial court as well. This is the main argument on which the appeal rests.

It is further contended that insofar as the defendant''s title deed is concerned, the court below has negated the claim of the defendant only on the ground that the defendant had sold the property to one Puttachari, under Exhibit P.5 in the year 1968 and thereafter, there is no indication that he had repurchased the same. This, the learned Counsel would point out, is again an incorrect finding as the property sold to Puttachan is not the same as claimed by the defendant. The defendant claims the property described in Exhibit D.1 which consists of a larger area purchased by the joint family of the appellant. It is a potion of which has fallen to his share, which is ultimately described as the defendant''s property.

Therefore, the court was in error in having arrived at a finding that the defendant has failed to show that he has repurchased the property from Puttachan, which was not a question that arose for consideration.

It is pointed out that the trial court has not addressed these issues and would candidly concede that the primary argument as to the southern boundary not being addressed by the court was not on account of any ground raised or contention urged, but there was a lapse on the part of the counsel appearing for the defendant, in not having brought it to the attention of the court for its consideration.

The learned Counsel for the respondent - plaintiff would counter this contention in support of the judgment to point out that the court below has closely examined the title deeds tracing back the purchase of the property from Exhibit P.1 and it is found that there is not much discrepancy or inconsistency in the sale deeds. In so far as the contention that the southern boundary is shown as land belonging to Nanjundappa and therefore, it is that property which the plaintiff may have inherited, but not any other property, is again incorrect argument. It is evident from Exhibit P.8 that it is the plaintiff who has independently purchased the suit schedule property and it is not by way of inheritance that the plaintiff is claiming the property.

Insofar as the southern boundary being described as road instead of Nanjundappa''s property is concerned, exhibits P.6 and P.7 indicating the boundaries is not a serious discrepancy, as the property on the southern side also belongs to the family of the plaintiffs and therefore is not an inconsistency which is fatal to the case of the plaintiff in any event, it is not evident from the documents relied upon by the defendants that the property claimed by the defendants is consistent with the property described under Exhibit D.1 and it is for the defendant to establish that the property defined in Exhibit D.1 is indeed the property that is available and it forms part of the suit schedule property, as sought to be contended by the defendant.

The defendant having had full opportunity to establish his case, has miserably failed to do so and the blame now cannot be cast on the court of not having addressed his contention which was never raised before the trial court. Therefore, it would result in a miscarriage of justice if this court should intervene on the specious pleas now raised, which are never canvassed before the trial court nor even argued on merits. Hence, the learned Counsel would seek that the appeal be dismissed as the defendant has miserably failed in the first instance while he had filed the suit for injunction on the very ground and thereafter not having challenged the same, the said judgment had attained finality and hence, the defendant seeking to lay claim by default as it were in the present suit, is not at all tenable and the appeal should be dismissed with costs.

On a close examination of the record, it is indeed a circumstance which requires to be noticed namely, that the plaintiff seeking to trace his title through Exhibits P.1 to P.8, does contain an inconsistency. In that, Exhibits P.4 and P.5 indicate the southern boundary as being the road, however, Exhibits P.6 and P.7 do not indicate the southern boundary as the road. This is an infirmity which has gone unnoticed by the court below. The Commissioner''s Report and sketch would also indicate that there is a private property intervening between what is described as the suit schedule property and the road on the southern side. There is no explanation forthcoming as to how this discrepancy has arisen. This is an aspect, on which, there is a doubt as to whether the defendant is claiming an area measuring 15feet x 50 feet. Hence, in order to ensure that complete justice is rendered, it may be necessary to verify once again as to the existence or otherwise of the defendant''s property and whether the inconsistency insofar as the southern boundary of the plaintiffs property would result in the plaintiff laying claim to property other than what is described in the sale deed Exhibits P.4 and P.5. This discrepancy will have to be established with reference to additional evidence that the parties may tender before the trial court. Hence, in order to arrive at the truth of the matter, as to whether there is any substance in the defendant''s claim to the property that is covered in Exhibit D.1, or rather the extent that has fallen to the share of the defendant, which is of a larger extent, which has been described in Exhibit D.1, requires to be enquired into, as also the inconsistency in respect of the southern boundary of the plaintiff, would also have to be looked into. This may entail a further spot inspection and further evidence which is left to the discretion of the court to decide as to the quantum of additional evidence to address the issues. Therefore, the parties are at liberty to tender additional evidence in support of their respective cases.

With that observation, the appeal is allowed. The judgment of the court below is set aside. The matter is remanded to the trial court in order to enable the parties to adduce additional evidence, which the court below shall consider and then decide and render judgment in accordance with law. The registry is directed to remit the record to the trial court forthwith. The parties shall appear before the court below without further notice on 15.4.2015. Since the suit was of the year 1993, the court below is requested to expedite the disposal of the suit.