D. Ramamurthy and Others vs S. Vishwanath Rao and Others

S.N. Satyanarayana, J.

Plaintiff D. Rama Murthy in O.S. No. 43/2004 on the file of Civil Judge (Jr. Dn.), Bellary, has come up in R.S.A. No. 5307/2010. The very same person who is defendant in O.S. No. 315/2004 on the file of very same Court, has come up in R.S.A. No. 5308/2010. In both the appeals he has challenged concurrent finding of both the Courts below in dismissing the suit filed by him in O.S. No. 43/2004 and partially decreeing the suit of the respondent herein, viz., Vishwanath Rao who is plaintiff in O.S. No. 3 15/2004.

Brief facts leading to these two regular second appeals are that D. Rama Murthy-plaintiff in O.S. No. 43/04 is the owner of a portion of T.S. No. 58, Tank Bund Road of Bellary town. He acquired portion of T.S. No. 58 under a registered sale deed dated 11.01.1971 from the 8th respondent in this appeal, namely, the City Corporation, Bellary. The said property is bounded on Western side of his property bearing T.S. No. 55, on eastern side by Tank Bund Road, Northern side of Jadeswamy property on Southern side by suit schedule land, as could be seen from Ex. D.7-sale deed dated 11.01.1971 executed in his favour. The genesis of two litigation in O.S. No. 43/04 and O.S. No. 315/04 is with reference to an open space situated on Southern side of D. Rama Murthy''s property, which is more fully described in his suit schedule.

The suit in O.S. No. 43/04 is filed for the relief of permanent and mandatory injunction against Vishwanath Rao who is plaintiff in O.S. No. 315/04. In the suit filed by D. Ramamurthy, permanent injunction which was sought is restraining Vishwanath Rao from utilizing any portion of the remaining land in T.S. No. 58 situated on southern side of his property as Municipal lane to reach Tank Bund Road and also for mandatory injunction in directing him to close the door provided to his property on its eastern side, which is situated on the Western side of suit schedule property in O.S. No. 43/2004. Whereas in the suit filed by Vishwanath Rao in O.S. No. 315/04 is for removal of staircase and toilet constructed by D. Rama Murthy in the open space in T.S. No. 58 situated on southern side of his property which is on the eastern side of Vishwanath Rao''s property. Since both the suits were filed simultaneously in the same Court with reference to similar relief by and between each of them, in respect of same piece of land which is portion of T.S. No. 58, based on the pleadings, following issues were framed in both the suits separately.

"Issues in O.S. No. 315/2004

Whether the plaintiffs prove that, there is a public lane in between his property and Tank Bund Road in ''L'' shape?

Whether the plaintiffs prove that, he has right of way over the said lane?

Whether the plaintiffs prove that, on 21.12.2003 the defendants unauthorisedly constructed a steel staircase, a pial and lavatory in his door No. 58 by creating obstruction to the plaintiff''s right to passage?

Whether the plaintiffs are entitled to the relief of mandatory injunction?

Whether the plaintiffs are entitled to the relief of permanent injunction?

What order or decree?

Issues in O.S. NO. 43/2004

Whether the plaintiff proves that, he is absolute owner of the suit schedule property?

Whether the plaintiff proves that, the defendant in order to create some right over the plaint schedule property opened a door on the western side wall of his building?

Whether the plaintiff proves that, the defendants are forcibly trying to dispossess him as pleaded in the plaint para No. 4?

Whether the plaintiff is entitled to mandatory injunction?

Whether the plaintiff is entitled for the relief of permanent injunction?

What order or decree?"

After framing of issues common evidence was recorded in both the suits. The evidence of plaintiff in O.S. No. 315/2004 is considered as plaintiff''s evidence and the evidence which is adduced on behalf of plaintiff in O.S. No. 43/2004, who is also defendant in O.S. No. 315/2004 is treated as evidence of the defendant. The documents which are marked in support of plaintiff in O.S. No. 315/2004 are marked as exhibits in ''P'' series and that of plaintiff in O.S. No. 43/2004 are marked as exhibits in ''D'' series. Thereafter, the issues in O.S. No. 315/2004, namely, issues 1 to 4 were answered in the affirmative and issue No. 5 in the negative. Consequently, suit of the plaintiff in O.S. No. 315/2004, viz., Vishwanath Rao was decreed in part in directing plaintiff in O.S. No. 43/2004, viz., D. Rama Murthy, to remove the staircase and toilet constructed in the open space in vacant space in T.S. No. 58.

The issues in O.S. No. 43/2004 are answered in the following manner, i.e., issue No. 1 partly in the affirmative and issues 2 to 5 in the negative and consequently suit of the plaintiff in O.S. No. 43/2004, viz., D. Rama Murthy came to be dismissed. While doing so the trial Court accepted the vacant portion of land in T.S. No. 58 which is suit schedule property in both O.S. No. 43/2004 and O.S. No. 315/2004 as public lane.

Being aggrieved by that Ramamurthy plaintiff in O.S. No. 43/2004 preferred two regular appeals before the Court of Prl. Civil Judge (Sr. Dn.) and CJM, Bellary, in R.A. Nos. 113 and 114 of 2007. R.A. No. 113/2007 is filed challenging the judgment and decree passed in O.S. No. 315/2004 in partially decreeing the suit filed by Vishwanathrao and appeal in R.A. No. 114/2007 is filed against the dismissing the suit of Ramamurthy which was filed for the relief of permanent and mandatory injunction against Vishwanathrao.

The lower appellate Court clubbed both appeals, on re-appreciation of the pleading, oral and documentary evidence available on record proceeded to frame the following common points for consideration in both the appeals.

POINTS

"(i) Whether the trial Court is erred in dismissing the O.S. No. 43/2004 and granting mandatory injunction in O.S. No. 315/2004?

(ii) Whether the impugned judgment and decree needs to be interfered with?

(iii) What order or decree?"

After hearing the learned counsel for the appellant Ramamurthy and respondent Vishwanathrao, the lower appellate Court proceeded to answer the 1st and 2nd points for consideration in the negative. Consequently dismissed both the regular appeals, thereby the common judgment and decree passed in O.S. Nos. 43/2004 and 315/2004 on the file of Civil Judge (Jr. Dn.), Bellary, was confirmed. Being aggrieved by the same, the plaintiff in O.S. No. 43/2004 who is appellant in both R.A. Nos. 113 and 114 of 2007 has come up in these two second appeals.

The appeal in RSA No. 5307/2010 is concerned, is impugning the concurrent finding in dismissing the suit of Ramamurthy in O.S. No. 43/2004 which is confirmed in R.A. No. 114/2007. Whereas RSA No. 5308/2010 is filed challenging the concurrent finding in decreeing the suit of Vishwanath Rao in O.S. No. 315/2004, which was confirmed by the lower appellate Court in R.A. No. 113/2007.

Heard the learned counsel for the appellant in both the appeals for admission. While hearing this matter for admission, this Court noticed certain discrepancies with reference to the pleadings and evidence as to the status of vacant plot bearing T.S. No. 58 of Tank Bund Road, Bellary, which is disputed property in both O.S. Nos. 43 and 315 of 2004. To ascertain the title of the said property this Court suo-moto impleaded the Commissioner of Bellary City Corporation as 8th respondent in these two appeals and directed the standing counsel for Bellary City Corporation viz., Sri C.V. Angadi, to take notice for 8th respondent and called upon him to secure particulars regarding ownership of suit schedule plot bearing T.S. No. 58 of Tank Bund Road, Bellary and also to file a report regarding status of the said property. In response to that a report of taluka surveyor of Bellary City Corporation is filed by the learned counsel appearing for 8th respondent Bellary City Corporation. The said report is filed along with a memo which was taken on record.

On going through the same, it is clearly seen that the status of the disputed portion of the land which is suit schedule property in O.S. No. 43/2004 and O.S. No. 3 15/2004 is no man''s land. The location of the disputed property with reference to the sketch prepared by the taluka surveyor clearly demonstrates the nature of dispute between the parties to the proceedings. Admittedly the disputed property T.S. No. 58 of Tank Bund Road, Bellary, is the remaining portion of entire extent of T.S. No. 58, the Northern portion of which is already sold by 8th respondent in favour of Rama Murthy, appellant herein.

The relevant document which throw light on this is Ex. D.7 which is the sale deed executed by the 8th respondent Commissioner of Bellary City Corporation in favour of plaintiff in O.S. No. 43/2004 Ramamurthy in the year 1971. The suit schedule property is the property bounded on the north by property of D. Rama Murthy, south by lane, east by property belonging to Vishwanath Rao, the plaintiff in O.S. No. 315/2004 and west by Tank Bund Road. The sale deed in Ex. D.7 is executed by the Commissioner of Bellary City Corporation in favour of the plaintiff Ramamurthy and the property which is conveyed in Ex. D.7 is also portion of T.S. No. 58.

With this what could be seen is that the suit schedule property in O.S. No. 43/2004 and O.S. No. 315/2004 is remaining extent of T.S. No. 58 after a portion of which was conveyed to the plaintiff Ramamurthy. As stated by learned counsel Sri C.V. Angadi, there are no records with Bellary City Corporation to show that T.S. No. 58 of Tank Bund Road is the property belonging to the corporation and in fact there is no document to show to whom the said property belongs.

Hence on request made to the taluka surveyor by the 8th respondent, from out of the records maintained in the survey office, certain documents are produced. One of that being property card bearing AD No. 8704 which would show that the suit property bearing portion of CTS No. 58 situated in Block No. 4 of Terubeedi in Ward No. 5 which measures 1429 sq.meters is described as ''Oni''. That means lane. In fact a copy of this document and sale deed at Ex. D.7 were deciding factors in decreeing the suit of Vishwanathrao for permanent injunction and mandatory injunction against Ramamurthy and that is the document which decided the fate of Ramamurthy''s suit in O.S. No. 43/2004 which is accordingly dismissed holding that he cannot erect staircase and toilet in the suit land which is a lane. Consequently the door installed to the eastern wall of Vishwanath Rao, the plaintiff in O.S. No. 315/2004 and his claim to use the same as and to reach Tank Bund Road is accepted.

If the aforesaid two documents produced by taluka surveyor are taken into consideration, the judgment passed in O.S. No. 43/2004 in dismissing the prayer of the plaintiff seeking to restrain Vishwanatharao from having a opening in his property to the suit schedule plot appears to be correct, similarly the finding of the trial Court in holding that Ramamurthy cannot have a staircase and toilet in that place and the same should be removed also appears to be correct. However, while deciding the same the Court below has not seen the toilet in existence which is constructed by the plaintiff in O.S. No. 315/2004 in the suit schedule plot which is constructed by encroaching into the suit schedule open space by Vishwanathrao. In fact in both the Courts below while deciding both the original suits and the appeals arising there from unauthorized construction made by Vishwanathrao in a portion of the disputed plot is not looked into and no finding is given by the trial Court. However after hearing both the learned counsel and on going through the entire records what is seen is that the property covered in the schedule of Ex. D.7 sale deed and the dispute property are one contiguous piece of property bearing T.S. No. 58 as per the property card produced by the taluka surveyor.

The undisputed facts are that the northern portion of property bearing T.S. No. 58 is conveyed by the Commissioner, Bellary City Corporation in favour of Ramamurthy, the plaintiff in O.S. No. 43/2004 in the year 1971. Thereafter the remaining vacant portion of T.S. No. 58 is considered as ''Oni''. Though the sketch of taluka surveyor show the said portion as ''Oni'', it cannot be considered as ''Oni'', it is a vacant plot, which is available to the south eastern corner of the block where the property of the plaintiff in O.S. No. 43/2004 and the plaintiff in O.S. No. 315/2004 are situated. To be precise to the north of the disputed property, the property of plaintiff in O.S. No. 43/2004 is situated, on its western side the property of Vishwanath Rao is situated. The said vacant plot cannot be accepted as ''Oni'' by any stretch of imagination.

In the original suit filed by Ramamurthy, he tried to assert that western portion of his property is utilized by the corporation for widening of Tank Bund Road and in lieu of the said land which is utilized, no compensation is awarded to him and no proceedings were also initiated to acquire the same. Since the portion of his land is acquired on Western side of his property, in the open space available on southern side of his property, he has put up a toilet and staircase covering an area of north south 4'' and east west 15 1/2'' which according to him is in lieu of the space that was taken by the corporation on the Western side of his property. Therefore he contend that the extent, which corporation has acquired on the Western portion of his property should be compensated from out of the open space that is available to the southern side of his property which is also bearing T.S. No. 58 presently belonging to the corporation.

The stand taken by the plaintiff in O.S. No. 315/2004 is that the disputed suit plot is ''Oni'' as shown in the sale deed of plaintiff in O.S. No. 43/2004, which is Ex. D.7. Therefore the said ''Oni'' should be kept always open through which he should have access to Tank Bund Road, according to him, the same is accepted by both the Courts below. On going through the Commissioner''s report it is felt that a litigation of this nature if allowed to continue, the property of the corporation will be allowed to be wasted showing as if it is a lane which would not enure to the benefit of general public and it will remain to the exclusive benefit of both plaintiffs in O.S. No. 315/2004 and O.S. No. 43/2004.

Therefore while taking up this matter for admission, this Court after securing the report of the Commissioner of City Corporation, Bellary, feel that if law permits and if there is provision to consider sale of this portion to the plaintiffs in O.S. Nos. 43 and 315 of 2004, the Commissioner of Bellary City Corporation shall initiate appropriate proceedings, if necessary, by taking approval of the Government, to consider sale of a portion of that property in favour of plaintiff in O.S. No. 43/2004 whose property to a certain extent is said to be acquired by Bellary City Corporation for widening Tank Bund Road which is situated on the Western portion of Ramamurthy''s property who is the plaintiff in O.S. No. 43/2004. Similarly to consider the prayer of Vishwanathrao also to sell southern most portion of the disputed property to the plaintiff in O.S. No. 315/2004.

However it is made clear that while considering the request of those two persons to whom liberty is provided to make necessary application to the Commissioner of Bellary City Corporation, the Commissioner of City Corporation, Bellary shall not receive application either by any society, any public or private trust or individual for allotment of suit disputed plot, other than the plaintiffs in these two suits. The allotment/sale shall be made on the notified valuation which is decided by the revenue department.

It is further made clear that barring the plaintiffs in O.S. Nos. 43 and 315 of 2004 nobody else shall have right to seek sale of the said property, since these are the only two persons who have been continuously in possession and occupation of the said portion for more than past 30 years as could be seen from the records. However though they are in possession of the same for more than 30 years, they cannot as a matter of right appropriate the same as if it is in their adverse possession. They can seek allotment or sale of a portion of the same in their favour in the aforesaid manner.

With such observation both the appeals are disposed of. The learned counsel appearing for 8th respondent Sri C.V. Angadi to convey this judgment to the Commissioner of Bellary City Corporation and shall ensure that the same is implemented within six months from this day and to file a report of compliance to this court within six months from this day.