Karegowda vs C. Devaraj

Anand Byrareddy, J.—These appeals are between the same parties. Though each appeal arises out of a separate judgment, in independent suits, since the counsel for the parties contended that it would be necessary to address the appeals together to address the controversy, the appeals are heard and decided together.

The appeal in RFA 391/2009 arises out of a suit in OS 4372/1999, on the file of the City Civil Court, Bangalore. The appeal is on behalf of the plaintiff, Karegowda, who died during the pendency of the suit, now represented by his legal representatives.

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

It was the case of the plaintiff that he was the absolute owner of the property bearing No. 4 in Survey No. 1, Block No. 58, Jaraka bande kavalu, Yelahanka hobli, Bangalore North Taluk, later identified as No. 32, 15th A Cross, Muneswara Block, Mahalakshmi Layout, Bangalore, measuring East to West 40 feet and North to South 30 feet. The said property was said to have been purchased under a sale deed dated 29.12.1980, from one Venkataswamy, son of Guruswamy. He is said to have constructed a residential house with a compound wall in the year 1982. To establish that he had been living there with his family over the years was sought to be evidenced by producing a ration card issued by the Food and Civil Supplies Department and the electricity bills issued by the authorities, apart from certain other documents.

It was stated that the plaintiff''s house was one out of several that were constructed in the area on formation of the private layout. It was claimed that the area was brought under the limits of the Bruhath Bengaluru Mahanagara Palike (BBMP), just prior to the suit and since the Department of Municipal Administration had not fixed the rate of development charges and taxes etc., it was claimed that the BBMP was not collecting the taxes from properties around the area including the plaintiff''s.

It was alleged that the defendant, who had no manner of right over the suit property, had started to interfere with the same. It was claimed that the defendant had threatened to demolish the property and dispossess the plaintiff and his family members and hence the suit was filed.

The defendant had, on entering appearance, denied the plaint averments to the extent that the plaintiff was in possession of the property measuring 20 feet by 40 feet and not 30 feet by 40 feet. The defendant claimed that he was the owner of the property to the south of the plaintiff''s property and that his property measured 40 feet North to South and 60 feet East to West. He had claimed to have purchased the same under a sale deed dated 30.6.1980. The boundaries to his property were claimed as:

East: Road

West: Remaining property

North: No. 22 of Ramakka

South: BDA Property

It was claimed that after the purchase, a portion measuring 28 feet by 40 feet was said to have been sold in November 1998 to one Munikrishnappa and had thus retained 60 feet by 12 feet and after such sale the boundaries were said to be as follows:

East by: Road

West by: Private property

North by: Plaintiff''s property

South by: property sold by defendant to Munikrishnappa.

It was alleged that the plaintiff had filed a false suit to lay claim to the defendant''s property.

On the basis of the above pleadings, the trial court had framed the following issues:

"1. Whether the plaintiff proves his lawful possession over the suit schedule property as on the date of the suit?

Whether the plaintiff further proves the alleged interference by the defendant?"

The trial court, after considering the rival pleadings and the evidence in support of the same, had found that the plaintiff had failed to establish that he was in possession of the suit property as described in the plaint, and as described in the sale deed in support of title and had dismissed the suit. It is that which is under appeal.

Re. RFA 840/2012

The defendant in the above suit is the appellant herein, arising out of a prior suit filed by him in OS 5183/1995, on the file of the City Civil Court, Bangalore. The suit was directed against the plaintiff-appellant in RFA 391/2009 above.

The plaint averments are on the lines of the defence set up in the above case. In addition, it is stated that one Rangamadaiah and another had encroached a portion of the site bearing No. 23 to the extent of 20 by 40 feet and that the plaintiff was yet to take steps against Rangamadaiah. It was admitted that by virtue of such encroachment, he was in possession of only an extent of 40 x 12 feet.

It is stated that the suit was initially decreed ex-parte against Karegowda, by judgment dated 18.6.1996. It is further stated that Karegowda had suddenly encroached and constructed a portion of his house over the suit property. He had approached the police in vain. And having filed a writ petition before this court in its writ jurisdiction seeking appropriate directions to the police, this court is said to have directed him to approach the executing court for relief.

In the meanwhile, Kare gowda had filed the above suit in OS 4372/1999 and had also filed a petition to have the ex parte decree against him in OS 5183/1995 set aside. Though that petition was dismissed, this court in MFA 4631/2007 had set aside the judgment and decree and the suit was restored and contested.

The plaintiff had thereafter sought the additional relief of mandatory injunction to demolish and remove the construction put up over the suit property and for damages at the rate of Rs. 2,000/- per month from May 1999 to the date of vacating the property.

Since the defendant Karegowda was dead by the time the suit was restored his legal representatives, filed written statement to deny the plaint averments and assert the claim in line with the case set up in OS 4372/1999.

The trial court had framed the following issues:

"1. Whether the plaintiff proves his lawful possession over schedule property?

Whether the plaintiff proves the interference by the defendants?

Whether plaintiff is entitled for relief claimed in the suit?"

Additional Issues:

"1. Whether the plaintiff to prove that the defendant have in the month of May 1999 all of a sudden appeared in suit property and illegally constructed a residential house by trespassing over "B" schedule property?

Whether the plaintiff to prove without seeking a decree of declaration their suit, is mandatory injunction is sustainable in law?

Whether the defendants to prove the suit of the plaintiff is barred by law of limitation?

Whether the defendants to prove that they have perfected their title by law of adverse possession as pleaded in the written statement?

The trial court has held issues Nos. 1 to 3 and additional issues No. 1, 2 and 4 in the negative and additional issue No. 3 is the affirmative and dismissed the suit. It is that which is under challenge in the present appeal.

After having heard the learned counsel for the parties at length and having perused the record, it is seen that the findings in the respective judgments can hardly be faulted.

In OS 4372/1999, it is found by the trial court that the plaintiff''s claim therein that he was in possession of the suit property measuring 40 feet east - west and 30 feet north - south, was self serving. The basis was with reference to the sale deed, which indicated he had purchased 1.1 gunta of land, which was approximately 40 x 30 feet. This however did not establish that 40 feet was the north- south or the east - west direction. There was no independent evidence in this regard. The only other evidence which was the Commissioner''s report, which again was negated by the trial court, for more than one reason, also indicated that the plaintiff was actually in possession of an area measuring east - west 28 feet and north-south 40 feet - 3". This being diametrically opposite to the suit claim - it was rightly held that the plaintiff had failed to prove his possession over the suit property as described in the plaint.

In OS 5183/1995, it is found that the plaintiff was shown to have purchased land measuring 2.2 guntas and the sale deed did not indicate the measurement of the boundaries in feet. The court has hence opined that the dimensions indicated towards north-south and east-west, could be interchanged and still the claim could be in respect of 2.2 guntas, which the plaintiff was claiming in terms of feet, namely 40 x 60 feet. It was hence rightly held that the location and dimension of the property and the boundaries of the property had not been established with any degree of certainty.

It was also found that the admitted encroachment by the defendant and construction having been put up by the defendant in the year 1998 in the suit schedule "B" property and therefore the plaintiff having lost possession over the said extent was required to seek a declaration as to his title and for possession of the same. And that this lapse was fatal to the suit.

It is further found that the plaintiff had lost possession of the suit in the year 1991 itself and the suit for bare injunction filed in the year 1995 was not maintainable. Added to this, it was the plaintiff''s admitted case that there was one Rangamadaiah who is said to have encroached and occupied a major portion of the property, and against whom no action had been initiated. It was even admitted by the plaintiff that the defendant had occupied the disputed property 25 years ago and had raised coconut trees on the property apart from building on it.

The trial court has meticulously studied the record and has highlighted many other discrepancies apart from the above to demonstrate that the plaintiff had miserably failed to establish his case and has rightly dismissed the suit.

Therefore both the above appeals lack merit and are dismissed.