Gangaiah and Others vs H. Shivanna

Ravi V. Malimath, J.—The case of the plaintiff is that, one Siddappa had two sons by name Hanumantharayappa and Jayaramaiah. Hanumantharayappa died leaving behind him his sons namely K.H. Gundaiah, K.H. Thimmaiah and K.H. Basavakumar. The land bearing survey No. 34/3 of Chikkanahalli village, Kora Hobli, Tumkur Taluk, totally measuring 3 acres 7 guntas as shown in the rough sketch to the plaint originally belonged to Siddappa. In 1993, the sons of Siddappa partitioned the above said property under a palupatti dated 08.02.1993. In the above said partition, the eastern half portion of the said land which is marked as ABCF fell to the share of Jayaramaiah and the Western half portion marked as DCFE fell to the share of the sons of Hanumantharayappa. It is the specific contention of the plaintiff that the original palupatti in respect of property shown as FCDE portion in the rough sketch is in the custody of plaintiff vide registered sale deed dated 25.05.1996. Since then the plaintiff is in possession of the suit schedule property. In pursuance of the sale deed, the revenue records are made out in the name of the plaintiff. The defendants have no manner of right, title, interest or possession over the suit schedule property and they are making hectic efforts to interfere with the plaintiffs peaceful possession over the suit schedule property. Hence the plaintiff filed the suit seeking for a decree of permanent injunction from restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property.

On service of summons, the defendants filed their written statement admitting the relationship between them. However, they denied that the suit schedule property belonged to one Siddappa. They contended that the land bearing Survey No. 34/3 measuring 3 acres and 7 guntas of the Chikkanahalli village was the property of Siddamma W/o. Siddappa. It is false to say that the sons of Siddappa namely Hanumantharayappa and Jayaramaiah partitioned Survey No. 34/3 under palupatti dated 08.02.1993. It is also denied that the eastern half portion had fallen to the share of Jayaramaiah and western half portion had fallen to the share of Hanumantharayappa. The rough sketch filed by the plaintiff was also denied by the defendants and they also denied that the plaintiff has purchased the suit property FCDE portion. It is contended by the defendants that the property bearing Survey No. 34/3 was purchased by Siddamma W/o. Siddappa under registered sale deed dated 20.12.1947 and after her death, the sons of Siddappa namely Hanumantharayappa and Jayaramaiah partitioned the said property during 1968. In the said partition, northern half measuring 1 acre 23 1/2 guntas had fallen to the share of Jayaramaiah. Since the date of partition, there is a bund in the East-West direction which bifurcates, the share of Hanumantharayappa and Jayaramaiah. Towards the north of the bund is the land of Hanumantharayappa and towards the south of the bund is the land of Jayaramaiah and they were in possession and enjoyment of their respective shares. In the year 1971, both of them left the village. The original palupatti of the year 1968 was handed over to Jayaramaiah as he was the elder son of Siddappa. At the time of leaving the village, Jayaramaiah handed over the possession of his share of landed property to the first defendant and the first defendant was in possession and enjoyment of the same and thereafter, Jayaramaiah sold the same property in favour of the first defendant under registered sale deed dated 15.05.1996 for valuable consideration. It is also contended that the suit of the plaintiff is not maintainable because the revenue authorities and survey authorities had already fixed the boundaries to the defendants property and have conducted a survey and phodi. Even the Hissa survey book is made in the name of the defendant, after due enquiry and inspection by the Tahsildar. Hence, he submits that the plaintiff has no right to title over the suit schedule property and the suit is liable to be dismissed.

Based on the pleadings, the trial Court framed the following issues and re-casted issues.

"i) Does the plaintiff proves that he is in lawful possession and enjoyment of the suit property i.e., FCDE shown in plaint rough sketch as on the date of suit through sale deed dated 25.05.1996?

ii) Does the plaintiff proves that the defendants are interfering with the possession and enjoyment of the plaintiff in respect of the suit property?

iii) Whether the defendants prove that the property of Siddamma got divided between her sons Jayaramaiah and Hanumantharayappa as northern side and southern side and southern side fallen to share of Jayaramaiah which is purchased by defendant No. 1 and is in possession and enjoyment of same?

iv) Does the property in question properly described in the boundaries?

v) Whether the plaintiff entitled for the relief sought?

vi) What order or decree?"

Recasted issues:--

"1. Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property as on the date of the suit?

Whether plaintiff proves alleged interference by the defendants?

What order or decree?"

Both the re-casted issues were held in the affirmative and the suit came to be decreed. The defendants were restrained by an order of permanent injunction from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff. Aggrieved by the same, defendants preferred an appeal which was dismissed by confirming the order passed by the trial Court in OS No. 24/1997 dated 22.03.2006. Hence, this present second appeal by the defendants.

By the order dated 14.11.2013, the appeal was admitted to consider the following substantial question of law:

"Whether the trial Court and the Appellate Court have committed any legal error in appreciating the oral and documentary evidence, particularly the admission of DW-1 in accordance with law with regard to the identification of the suit schedule property.?"

Heard learned Counsels.

Learned Counsel for the appellants/defendants contend that the impugned order of both the Courts below are erroneous and they have committed a grave error in accepting the rough sketch of the Commissioner vide Ex. C-8 wherein, he has specifically stated that the bund in between the land of the plaintiff and defendants runs in the direction of North-south. However, the survey of the property belonging to the plaintiff and the defendants was conducted as far back as in the year 1997. The mahazar is at Ex. D9, Ex. D10 is the survey sketch, Hissa survey copy is at Ex. D11, D12 is the atlas copy, D13 is the Akaraband, RTC for Survey No. 34/3 is marked as Ex. D14, Boundary Confirmation certificate issued by the Tahsildar is marked as Ex. D15, patta book is marked as Ex. D17 and the mahazar is at Ex. D16. All these documents are the documents prepared by the survey department. It is they who have come for survey of the land and to demark the boundaries. However, both the Courts below accepted the report submitted by the Commissioner. Even though, the Courts below have held that the findings of the Commissioner run contrary to the sketch and the report prepared by the Surveyor, the Commissioner''s report was accepted. Hence, he prays that the suit be dismissed.

On the other hand, learned Counsel for the plaintiff supports the order of the Courts below and submits that, both the Courts below have appreciated the documentary and oral evidence of the parties in the right perspective and have come to a right conclusion. Hence, he prays to dismiss the appeal.

On considering the contentions, I am of the considered view that the findings of the Courts below are perverse. When there is identification of the boundaries by the Survey department, the same requires to be accepted. There is no challenge to the survey that has been conducted. It is an admitted fact by the plaintiff that such a survey was conducted. Therefore, firstly there was no necessity for the trial Court to rely upon the report of the Commissioner. The Commissioner is not a person by profession who can mark and demark the lands. It is the survey department, which alone conduct the survey by the authenticated officials. They have done so and Exs. D1 to D5 are the RTC extracts, which would clearly reveal about the marking and demarcation of the property. Therefore, the Courts below should have rightly accepted the same. They have committed a grave error in accepting the report of the Commissioner. Hence, both the Courts below have failed to appreciate the said fact and therefore, the findings of both the Courts below require to be set side.

The second question is with regard to title and possession of the suit schedule property as claimed by the plaintiff. As per Ex. P1, the plaintiff is in possession and peaceful enjoyment of the property and in view of Ex. D6, there was dispute with regard to identification of the property and hence the survey was conducted. Consequently, the survey report was submitted and based on Ex. P1 and Ex. D6, the respective sale deeds of the plaintiff and the defendants, boundaries of the survey properties have been marked. Therefore, undisputedly, the plaintiff can only claim the title or right over the property as per the sale deed Ex. P1 and the defendants can claim only their title or right over the property in terms of Ex. D6.

What has been placed for consideration before the trial Court is the rough sketch prepared by the plaintiff. It is a hand drawn sketch. I have examined in detail the said sketch. The plaintiff survey sketch is at loggerhead with the revenue records. Therefore, decreetal of the suit based on the hand drawn rough sketch prepared by the plaintiff in opposition to the identification sketch prepared by the Revenue Authorities is unacceptable. The sketch has been prepared by the officials and it is necessary to give appropriate weight in law. Therefore, the decree of the suit in terms of the plaintiff sketch is erroneous. Consequently, the substantial question of law is answered by holding that the trial Court and the First Appellate Court have committed a legal error in misreading the documentary and oral evidence placed on record in particular the evidence of D.W.. 1 with regard to identification of the property, while decreeing the suit.

On answering the substantial question of law, it is needless to state that the suit of the plaintiff being decreed on the basis of the plaintiffs sketch is erroneous. Therefore, the suit even if it would be dismissed, however, the right of the plaintiff has to be determined in terms of Ex. P1. Therefore, the judgment and decree has to be modified. Therefore, the suit of the plaintiff is decreed only in terms of the sketch prepared by the Surveyor of Chokkanahalli Village, Kora Hobli, Tumkur Taluk and District, Tumkur vide Ex. D10.

Under the circumstances, the appeal is allowed. The Judgment and decree dated 30.03.2011 passed by the Court of Fast Track-I, Tumkur in RA No. 273/2008 confirming the Judgment and decree dated 22.03.2006 passed by the II Additional Civil Judge (Jr. Dn) & JMFC, Tumkur in OS No. 24/1997 are modified. The suit of the plaintiff is decreed in terms of Ex. D10 the sketch prepared by the Surveyor of Chokkanahalli Village, Kora Hobli, Tumkur Taluk and District, Tumkur dated 19.02.1997.

Parties to bear their costs.