G. Billiyappa Gowda and Others vs Jayamma and Others

A.S. Bopanna, J.

The appellant herein is the plaintiff in O.S. No. 132/1996 who is presently represented by his legal representatives. The plaintiff was before the trial Court seeking for a declaration that the extent measuring East to West 7 feet and North to South 221 feet in Sy. No. 18/2 A 2 and 18/3 B described as schedule-B property in the suit is the part of schedule-A property described in the suit i.e., the larger extent measuring 11 guntas of property in the said survey number. Consequentially the plaintiff also sought for possession of schedule-B property and for mesne profits.

The case of the plaintiff is that he is the owner of the properties bearing Sy. No. 18/2 A 2 measuring 6 guntas and Sy. No. 18/3 B measuring 5 guntas of Benkikere village which is the property described in schedule-A, having purchased the same under sale deed dated 02.01.1953 from Ningappa, the husband of the defendant. The property is stated to have been phoded and the revenue entries were also effected and the plaintiff was in possession. Among the number of tamarind trees subsisting in the schedule-A property, five trees are on the western boundary to which the defendant has no right. That portion is described as schedule- B property. When there was interference, the plaintiff is stated to have filed a suit for injunction in O.S. No. 478/1982 (renumbered as O.S. No. 69/1986). The same was dismissed on 08.08.1989 since there was no interference.

Thereafter, another suit in O.S. No. 281/1989 was filed since it was alleged that an attempt was made by the defendant to put barbed wire fence. The plaintiff however got it dismissed on 16.10.1995 for filing a fresh suit. It is the case of the plaintiff that during the pendency of the latter suit, the defendant taking advantage of the Commissioner''s report in the earlier suit dispossessed the plaintiff from the schedule-A property to the extent of the schedule-B property. Accordingly, the present suit is filed.

The defendant on being served with the suit summons appeared and filed the written statement disputing the claim made by the plaintiff. It is contended that the defendant owns the lands bearing Sy. Nos. 18/2 AD and 18/2 B measuring 2 acres 04 guntas and 2 acres 17 guntas respectively in Benkikere village which are adjacent to each other. To the western side of the lands belonging to the defendant, the plaintiffs lands are situate. There is clear demarcation and the fence dividing the properties is in existence for more than 40 years, which was initially '' kalli'' fence which was replaced with barbed wire. The tamarind trees are in the land of the defendant and after five feet the fence is located. It is denied that the plaintiffs land on its eastern boundary has tamarind trees. The contention that the earlier suit was dismissed to file the present suit is disputed. The Commissioner''s report is referred to contend that as per the same the tamarind trees are situate in the land of the defendant. It is pointed out that as on the date of alleged cause of action pleaded, the earlier suit was pending and nothing has been brought on record therein about the alleged dispossession and as such the entire case is false. Hence, it is contended that the suit is not maintainable.

Based on the rival contentions the trial Court has framed five issues for its consideration, which read as hereunder.

The plaintiff examined himself as PW-1, examined two witnesses as PWs-2 and 3 and relied upon the documents at Exhs-P1 to P17. The defendant No. 1(b) examined herself as D.W. -1, a witness was examined as D.W. -2 and relied upon documents at Exhs-D1 to D6. The Court Commissioner was examined as C.W.-1 and the sketch was marked as Ex-C1. On considering the evidence, the trial Court has answered the issues in the negative, against the plaintiff and dismissed the suit by its judgment dated 23.11.2005. The plaintiff claiming to be aggrieved, assailed the same in R.A. No. 04/2006. The Lower Appellate Court on re-appreciating the evidence has concurred with the findings and judgment rendered by the trial Court. The appeal was therefore dismissed by the judgment dated 15.07.2010. The instant second appeal is accordingly filed by the plaintiff under Section 100 of CPC against the concurrent judgments.

This Court while admitting the appeal on 04.04.2013 has framed the substantial question of law which reads as hereunder,

"Whether the judgments of the two Courts below are vitiated for non-consideration of the legal effect of the documents at Exhs. P1 to P17 in their proper perspective?"

In the light of the above, I have heard Sri M. Ajay Kumar, learned counsel for the appellants, Sri P.M. Siddamallappa, learned counsel for the respondents and perused appeal papers including the records received from the Courts below.

The question of law as framed will disclose that what is necessary to be considered herein is as to whether the Courts below have committed perversity in the manner of consideration of the documents relied on and marked as Exhs- P1 to P17 by the plaintiff and whether the same has been wrongly construed while determining the right as claimed by the plaintiff that schedule-B property is part of the schedule-A property. The claim to the schedule-A property by the plaintiff is based on the title acquired under the sale deed dated 02.01.1953 from the husband of the defendant. Hence, it is clear that to the western side of the property remaining with the defendant, lies the plaintiffs property. The schedule-A property is indicated as measuring 11 guntas and the schedule-B property is also sought to be considered as a part of the same. The said 11 guntas stated is by indicating 06 guntas in Sy. 18/2A2 and the extent in Sy. No. 18/3B is shown as 05 guntas. Regarding the extent of 06 guntas shown in Sy. No. 18/2A2, there appears to be no dispute. However, with regard to the 05 guntas shown in Sy. No. 18/3B, the defendant contends that a larger extent is shown while only 04 guntas was purchased as indicated in the sale deed. If that one gunta is taken into account, it would constitute the extent in schedule-B and if it is not considered as part of schedule-A, then it would be the extent of 10 guntas which actually is indicated in the sale deed. Since the plaintiff is claiming right to the tamarind trees situate on their western boundary, the same will be subject to one gunta also being considered as a part of the schedule- A property.

In that background, based on the evidence of PW- 1 the pivotal document would be Ex-P1, since the plaintiff has purchased the property under the sale deed dated 02.01.1953. The Courts below have therefore made detailed reference to the same. In that light, a perusal of the document at Ex-P1 would disclose that there is no ambiguity to the fact that what has been conveyed is the total extent of 10 guntas, separately indicated as 06 guntas and 04 guntas in the said two survey numbers with full description including the boundaries. Immediately thereafter the mutation proceedings has been done in MR No. 06/53-54 and the entry has been made in the record of rights which is marked as Ex- P 2. The extent indicated therein is also 06 guntas and 04 guntas respectively in the said two survey numbers. However, in the index of lands which is marked as Ex- P3, the extent in Sy. No. 18/3B is shown as 05 guntas instead of 04 guntas. Except for certain entries regarding certain AASLR proceedings in the ''shara'' column, there is no basis on which this entry has been made altering the extent as against the extent contained in the document of purchase and the mutation made based on the same. Similarly, the extent is shown as 05 guntas in Sy. No. 18/3 B in the record of rights for the periods 1978 - 79 onwards as at Exhs-P8 to P11. Except for mentioning the reference as ''sale deed'' in column 10, there is no reference either to the earlier mutation register number or to any other proceedings whereby an extent which was not indicated in the sale deed has been indicated thereafter and the basis for the same. Hence, the burden was heavy on the plaintiff to establish as to how right is being claimed to a larger extent than what has been purchased as it would also be relevant to claim right over the tamarind trees which is claimed to be in the periphery of the property.

As against the documents noticed above, apart from the evidence of the plaintiff as PW-1 which has been referred to in detail, the evidence of PW-2 who had been examined as a witness by the plaintiff has also been adverted to. In that regard, the sketch stated to have been prepared by PW- 2, which was marked as Ex-P12 has been discussed. The said witness though a retired Survey Supervisor is admittedly a relative of the plaintiff. Further, in the sketch though a portion has been marked as an extent of 07 feet width as having been encroached by the defendant, the authenticity of the same does not stand established. The consideration of that aspect relating to the said document is appropriate.

In the above background, the trial Court has referred to the evidence of the Court Commissioner who was examined as C.W.- 1 and the report at Ex- C 1 which discloses that the tamarind trees are existing in the land belonging to the defendant. The learned Counsel for the appellant no doubt referred to the judgment of the Lower Appellate Court to contend that the portions extracted therein is from the Commissioner''s report which had not been marked. Notwithstanding the same, what cannot be ignored is that the trial Court has made a correct reference and in that light, the Lower Appellate Court apart from referring to the Commissioner''s report has also referred to the other evidence available on record for arriving at its conclusion.

What is also necessary to be noticed in the instant case is the manner in which the plaintiff has filed the earlier suits to which reference has been made and in that light the cause of action that has been pleaded. Further while taking note of the same, the admission of PW-1 with regard to the observation of the Commissioner relating to the tamarind trees being located in the land of the defendant in the earlier suit has been taken note. That apart the admission of PW-1 that there was a ''Kalli'' fence in 1953 itself when the property was purchased which bifurcated the property which was purchased was also kept in view.

Therefore, the background in which the dispute had arisen and in that regard, the actual extent purchased under a document of the year 1953 was relevant and on that basis the oral evidence was tendered, the consideration of the documents at Exhs-P1 to P17 to resolve the issue has been made in its correct perspective by both the Courts below and no perversity has crept in. In that view, the substantial question of law framed will have to be answered against the appellants, which is accordingly done.

In the result, the appeal fails and the same is accordingly dismissed. Parties to bear their own costs.