N. Karibasappa and Others vs P. Srinivasa Rao

B.V. Nagarathna, J.—1. This appeal is filed by defendants in O.S. No. 47/2004, assailing judgment and decree passed in R.A. No. 35/2008 by Principal Senior Civil Judge and C.J.M., Ballan, dated 31.10.2014, by which, judgment and decree of trial Court passed in O.S. No. 47/2004 dated 27.02.2008 by Civil Judge (Jr. Dn.), Siruguppa, has been confirmed.

For the sake of convenience, the parties shall be referred to, in terms of their status before the trial Court.

Respondent No. 1 - plaintiff filed a suit seeking relief of declaration, possession, mandatory and permanent injunction against defendants No. 1 to 5 in respect of suit schedule property. It is the case of plaintiff that vacant site annexed to Sangeetha Bar and Restaurant bearing door Nos. 361, 362, 363, 364 and 365 situated in 7th ward, within the limits of Town Panchayat, Siruguppa, is more fully described in plaint rough sketch and marked as ABCD (hereafter to be referred as suit schedule property). Said property belonged to State Government. The State Government had granted and assigned ''patta'' in favour of plaintiffs father, Pathange Hanumantha Rao. He had two sons by name P. Venkoba Rao and P. Sreenivasa Rao. On the death of their father, suit schedule property was jointly succeeded to by his sons. After the death of P. Venkoba Rao, his wife Smt. Banga Bai and their son P. Manohar divided the joint family properties of the family with plaintiff under a registered partition deed dated 08.09.2000. Suit schedule property has fallen to the share of plaintiff and thereafter mutation entry has been effected in his name.

As already stated, State Government by an assignment order granted suit schedule property to plaintiffs father and in respect of adjacent property, it was granted to one B.H. Shanker Singh S/o. Hire Singh, resident of Hospet. Said B.H. Shanker Singh had preferred an appeal before Divisional Commissioner, Gulbarga, stating that there was a road in between the property assigned to plaintiffs father and an extent of 36 x 24 feet property, which was assigned in his favour. That B.H. Shanker Singh''s property was towards northern side of suit schedule property, which is marked as OPQR in plaint rough sketch. The Divisional Commissioner, Gulbarga, remanded the matter to Deputy Commissioner, Ballari, for disposal. The latter passed an order on 14.03.1972. Against that order, an appeal was preferred by B.H. Shanker Singh before Divisional Commissioner, Gulbarga, which was disposed on 16.10.1973. As per the above orders, plaintiff had to leave 10ft. road towards northern side. That B.H. Shanker Singh alienated his property in favour of defendants No. 1 to 4 under a registered sale deed dated 11.07.1996 for a consideration of Rs. 45,000/-. Defendants No. 1 to 4, who have jointly purchased said property had constructed a building without obtaining any license. Boundaries mentioned in sale deed are not correct and true. Property bearing door No. 331/360 measuring east to west 24 feet and north to south 36 feet is the property, which they have purchased. Towards southern side of the property purchased by defendants No. 1 to 4 is the plaintiffs site, which is marked at ABCD in plaint rough sketch. According to plaintiff, defendants No. 1 to 4 have no right, title or interest in respect of suit schedule property, which now belongs exclusively to plaintiff He is in peaceful enjoyment and possession of the same. Plaintiff has declaratory right over suit schedule property. Plaintiff resisted the interference of defendants No. 1 to 4 and lodged a complaint-cum-objection petition before defendant No. 5 Office. Defendant No. 5 issued a notice dated 22.12.2002 to defendants No. 1 to 4 for stopping illegal construction on their property. Again on 09.07.2004 defendants No. 1 to 4 made a similar attempt to extend their earlier building on southern side in order to dig a foundation by encroaching plaintiffs open site to an extent of 24 x 19 feet. Plaintiff, once again, submitted his objection-cum-complaint before defendant No. 5 for stopping construction and not to issue any license in respect of said construction. But, defendants No. 1 to 4 laid foundation and a pillar and tried to construct on the encroached portion. Hence, plaintiff filed suit seeking declaration and mandatory injunction to remove encroached construction on the suit schedule property. It is averred by plaintiff that he has not claimed any relief against defendant No. 5, who is only a formal party, and hence, provisions of Section 284(1) of Karnataka Municipalities Act, 1964 (hereinafter referred to as ''K.M. Act'', for brevity), has been invoked on account of urgency in the matter, and therefore, statutory notice has not been issued. In that regard, a separate application seeking dispensation of statutory notice has been filed. That defendants No. 1 to 4 have not heeded to the request made by plaintiff and intentionally and illegally are digging the foundation on suit schedule property for the purpose of putting up a construction on encroached portion.

It is contended that cause of action initially arose on 22.12.2000 and thereafter on 09.07.2004 when defendants No. 1 to 4 dug the foundation and constructed pillars in suit schedule property. Hence, plaintiff sought the aforesaid reliefs.

On service of suit summons and court notices, defendant No. 1 appeared and filed his written statement, which was adopted by defendants No. 2 to 4. Defendant No. 5 filed a separate written statement. It was contended by defendant No. 1 that they had purchased their property under a registered sale deed dated 11.07.1996, for a valuable consideration of Rs. 45,000/- and mutation has been effected in the name of defendant No. 1. That the boundaries mentioned in plaint are not correct. That the plaintiff, with an ulterior motive to grab disputed property, has filed the suit. That the suit averments are false. Hence, defendants No. 1 to 4 sought for dismissal of suit.

Defendant No. 5 in his written statement, while denying the allegations made in paras 3 to 11 contended that suit is bad for non issue of mandatory notice under Section 284 of K.M. Act. That, the dispute in question is a private one, between plaintiff and defendants No. 1 to 4, but defendant No. 5 has been dragged to Court and that suit is bad for mis-joinder of defendant No. 5. He sought for dismissal of suit. Based on the rival pleadings, trial Court framed following issues for its consideration -

"1. Whether the plaintiff proves that, he is the absolute owner and had been in possession of the property to an extent of 24 x 19 feet situated towards the northern side of the suit schedule property as shown in ABMN of the plaint rough sketch?

Whether the plaintiff further proves that the defendant No. 1 to 4 have encroached 25 x 25 feet of his property as shown in ABMN of plaint rough sketch and defendants put construction therein?

Whether the defendant No. 1 to 4 proves that, they purchased ABMN property as shown in plaint rough sketch through sale deed dated 11.07.1996 and a old building is already in existence therein?

Whether the instant suit is not maintainable against the defendant No. 5 since lack of statutory notice as provided under Section 284 of the Karnataka Municipality Act?

Whether the plaintiff proves the alleged interference by the defendant No. 1 to 4 over suit schedule property?

Whether the plaintiff is entitled to the relief of declaration, permanent and mandatory injunction as sought for?

What order or decree?"

In support of his case, plaintiff examined himself as P.W. 1. He relied upon 31 documents, which were marked as Exs. P-1 to P-31. While defendant No. 1 examined himself as D.W. 1. He produced Ex. D-1. Court Commissioner was appointed. He was examined as C.W. 1. Documents produced through the Court Commissioner are marked as Exs. C-1 to C-9. On the basis of said evidence, trial Court answered issues No. 1, 2, 5 and 6 in affirmative. Issue No. 3 in partly affirmative and issue No. 4 in negative and decreed the suit, declaring that plaintiff is the absolute owner of encroached portion to an extent of 24 x 19 feet as per the boundaries mentioned in plaint schedule. Defendants No. 1 to 4 were directed to remove pillar and brick wall constructed on encroached portion ABMN to an extent of 24 x 19 feet within three months from the date of judgment. Defendants No. 1 to 4, their men, agents, servants or anybody acting on their behalf were restrained from claiming any right and from interfering, trespassing in any manner in suit schedule property, ABCD measuring 34 x 40 feet by way of grant of a decree of permanent injunction.

Being aggrieved by judgment and decree of trial Court dated 27.02.2008, defendants No. 1 to 4 preferred R.A. No. 35/2008 before First Appellate Court, which, on hearing learned counsel for parties recast issue No. 1 in the following terms:

"1. Whether the plaintiff proves that he is the absolute owner and had been in possession of the property to an extent of 24 x 19 feet situated towards the northern side of the suit schedule property as shown in ''ABMN'' of the plaint rough sketch?"

It raised the following points for its consideration-

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

Whether the plaintiff proves that, defendant has encroached the suit schedule property to an extent of 24 x 19 feet and the plaintiff is in possession and enjoyment of the remaining suit schedule property as averred?

Whether the plaintiffs prove the alleged interference caused by the defendants?

Whether the plaintiffs are entitled for the relief of declaration, permanent injunction and mandatory injunction?

Whether the judgment passed in OS. No. 47/2004 dated 27.02.2008 by the learned lower court Civil Judge (jr. Dn.), Siruguppa is erroneous, illegal and requires to be interfered by this Court?

What order?"

It answered points No. 1 to 4 in the affirmative, point No. 5 in the negative and dismissed the said appeal by confirming the judgment and decree of trial Court dated 27.02.2008.

Being aggrieved by the judgment of First Appellate Court, defendants have preferred this second appeal.

I have heard learned counsel for appellants and learned counsel for caveator respondent No. 1 and perused the material on record.

It is contended on behalf of appellants that the Courts below were not right in granting a declaratory relief to respondent plaintiff as the suit seeking declaration was barred by the law of Limitation. He contended that the cause of action arose in the year 2000, but the suit was filed in the year 2004. Plaintiff could have sought for a declaratory relief within the prescribed period of limitation, but the same not having been done, the courts below without appreciating that aspect of the matter have granted the relief of declaration, which is incorrect. He also submitted that plaintiff had no right, title or interest in respect of encroached portion, which according to plaintiff is 24 x 19 feet. That the plaintiff had agreed to surrender an extent of land for the purpose of road, and therefore, plaintiff could not have gone back on his promise, which had been made in the proceedings before revenue authorities right upto the Divisional Commissioner. He contended that substantial questions of law would arise in this appeal and that the appeal may be admitted for a detailed hearing.

Per contra, learned counsel for respondent caveator supporting the judgment and decree of courts below contended that the cause of action to file a suit seeking the relief of declaration arose in the year 2004 when the defendants constructed a wall and a pillar in the encroached portion of suit schedule property i.e., in 24 x 19 feet. Earlier in the year 2000, defendants No. 1 to 4 attempted to do the same thing, but it was resisted by the plaintiff and the defendants No. 1 to 4 did not proceed further. That, plaintiff had approached respondent No. 5, who had issued notice to defendants and subsequently there was no construction, which was carried out by defendants. But, it was only in the year 2004 when the defendants encroached upon suit schedule property, laid a foundation and also put up wall and a pillar that the plaintiff was constrained to approach Court in the year 2004. That there is no delay in approaching the Court and that there is no substance in the submission of appellants'' counsel with regard to the maintainability of suit for a declaratory relief. She, further, contended that both the courts below having regard to the evidence on record have come to a concurrent finding that there was encroachment made by defendants No. 1 to 4 to an extent of 24 x 19 feet in suit schedule property, which has been assigned to plaintiff by State Government, and therefore, this findings cannot be upset in the second appeal, as they have attained finality before First Appellate Court. She, therefore, submitted that no substantial question of law would arise in the appeal and the appeal may be dismissed in limine.

Having heard learned counsel for parties and on perusal of the material on record, it is noted that the suit seeking both declaratory relief and consequential relief of mandatory injunction as well as permanent injunction was filed on 17.07.2004. It is noted from the pleadings that on 09.07.2004 defendants No. 1 to 4 made an attempt to dig the foundation and in fact encroached upon the plaintiffs open site to an extent of 24 x 19 feet and they had put up wall and a pillar. Therefore, 09.07.2004 was the date when the cause of action arose to plaintiff to file the suit seeking declaratory-cum-consequential reliefs. What had happened in the year 2000 was that, an attempt was made by defendants No. 1 to 4 to encroach upon suit schedule property. Those attempts were resisted by plaintiff, who at that point of time did not think it necessary to approach the Court. The antecedent acts committed by defendants No. 1 to 4 in the year 2000 cannot be construed as the commencement of the cause of action for plaintiff to approach the Court seeking declaratory and consequential reliefs in the year 2004. As already noted, it is encroachment made on plaintiffs property, which according to plaintiff was to an extent of 24 x 19 feet on 09.07.2004 by defendants No. 1 to 4, which gave rise to a cause of action to plaintiff to file a suit to seek the relief of declaration and consequential reliefs on 17.07.2004. Therefore, I do not think that there is any substance in the contention of learned counsel for appellants that the suit filed by plaintiff seeking relief of declaration was barred under the law of Limitation.

That apart, such a contention was not raised in written statement. No evidence has also been let-in on that aspect. It is only an afterthought and the said contention, as already noted, is without any legal effect, and therefore, no substantial question of law would arise on that aspect of the matter.

As far as the extent of encroachment stated to have been made by defendants No. 1 to 4 are concerned, the courts below have concurrently held that suit schedule property as well as the property, which is in possession of defendants No. 1 to 4 were at one point of time assigned by State Government. What was assigned to plaintiff was an extent of 34 x 43 feet and what was assigned to the vendor of defendants No. 1 to 4 was 36 x 24 feet. Therefore, right, title and interest of defendants No. 1 to 4 is only in respect of 36 x 24 feet, which they purchased from one B.H. Shanker Singh. Their vendor was the assignee from State Government. Any extent of property beyond 36 x 24 feet was not the property of defendant. There is no dispute that 34 x 43 feet was assigned to plaintiff by legal evidence has been able to establish that defendants had encroached to an extent of 24 x 19 feet out of 34 x 43 feet, which was assigned by State Government to him. Both the courts have concurrently held that there was encroachment to an extent of 24 x 19 feet by defendants No. 1 to 14 at the time of putting up construction on defendants'' property. Consequently, while declaring title of plaintiff to the extent that he was assigned by State Government i.e., 34 x 43 feet have held that encroachment by defendants No. 1 to 4 to an extent of 24 x 19 feet was established and both the Courts have granted consequential reliefs of mandatory injunction and permanent injunction. The findings given by courts below are based on legal evidence. I do not find any substantial question of law which would arise on those findings as there is no infirmity in the judgment and decree of courts below.

As no substantial question of law would arise in this appeal, the appeal is dismissed.

Parties to bear their respective costs.

In view of dismissal of appeal, I.A. No. 1/2015 also stands dismissed.