Pilla Anjanappa S. vs K.S. Munianjanamma

B.S. Patil, J.—This appeal is filed by the defendants challenging the judgment and decree dated 29.03.2003 passed by the XV Additional City Civil Judge, Bengaluru City, decreeing the suit for permanent injunction filed by the plaintiffs - respondents herein.

The relationship between the parties is not in dispute. 1st plaintiff is the daughter of the 2nd plaintiff. Late Siddappa was the father of the 1st plaintiff and husband of the 2nd plaintiff. 1st defendant - Pilla Anjanappa (since deceased) was the elder brother of Siddappa. Defendants 2 & 3 are the son and wife, respectively, of Pilla Anjanappa.

The dispute in the suit pertained to property bearing H.L. No. 179, V.P. Khatha No. 223, described in the plaint schedule with measurement and boundaries. According to the plaintiffs, the property originally belonged to the joint family consisting of Siddappa and Pilla Anjanappa - 1st defendant, both being sons of late Munihanumaiah. The said property along with other properties were divided as per registered petition deed dated 06.01.1971. In the said partition, the suit property fell to the share of Siddappa. He got his name entered in the khatha pertaining to the land. Plaintiffs 1 & 2 being the daughter and wife of Siddappa, Siddappa executed a registered gift deed in favour of the plaintiffs on 11.12.1989 and since then, plaintiffs were in possession and enjoyment of the suit schedule property in their own right getting their name entered in the khatha and paying the tax assessed. It was contended by them that defendants without having any right, title or interest over the suit schedule property attempted to trespass over the property on 04.03.1990 so as to put up construction and the same was resisted by the plaintiffs. As the defendants persisted with their act, plaintiffs were constrained to file the suit seeking a decree of permanent injunction.

The measurement of the property'' sis shown in the plaint is, east to west on the northern side 40 feet and on the southern side 20 feet and from north to south 50 feet, bounded on the East by Road, West by vacant site of Anjanappa S/o. Lakkegowda, north by Pilla Anjanappa''s house with vacant site (property of defendants), and south by house of Papa D/o. Aneppa, situated at Kalkere, K.R. Puram Hobli, Bangalore South Taluk.

Defendants entered appearance and filed joint written statement. The relationship between the parties was admitted. It was urged that 1st defendant was the absolute owner of the entire schedule property as per the order of the Special Deputy Commissioner for Inams. Though 1st defendant was the absolute owner of the property, in order to help his brother Siddappa, he had given a portion of the property under the registered partition deed to the said Siddappa. Subsequent to the partition, Siddappa tried to sell away the property in favour of third parties. At that stage, in order to prevent the same, 1st defendant intervened and purchased the property by paying sale consideration of Rs. 2,000/- vide registered sale deed dated 30.04.1971. Thus, it was contended that defendants were in peaceful possession and enjoyment of the suit schedule property. It was urged by them that gift deed was executed with ulterior motive to deny and defeat the rights of the defendants. They also contended that khatha and entries in the demand register were concocted. The defendants further urged that plaintiffs had failed to furnish correct schedule of the suit property and measurements furnished were incorrect.

Based on the pleadings, the Trial Court framed the following issues:

(i) Whether the plaintiffs prove that they are in lawful possession of the suit property?

(ii) Whether the plaintiffs prove unlawful interference?

(iii) Whether the defendants prove that they are in possession of the suit property?

(iv) Whether the suit is maintainable in law?

(v) What decree or order?

In support of the case of the plaintiffs, 1st plaintiff examined herself as PW-1 and two other witnesses were examined as PWs-2 & 3. For the defendants, K.P. Muddapa - son of Pilla Anjanappa was examined as DW-1. Exs. P-1 to P-8 were marked for the plaintiffs. Defendants produced and marked certified copy of the sale deed as Ex. D-1.

The Trial Court on appreciation of the evidence, both oral and documentary, has answered the issues raised in favour of the plaintiffs and against the defendants and has decreed the suit. Aggrieved by the same, present appeal is filed.

I have heard the learned Counsel for the parties who have taken me through the pleadings, evidence and the judgment under challenge.

Mr. Shankarlingappa, learned Counsel for the appellant contends that the Trial Court has committed a serious illegality in making reference to a wrong item in Ex. D-1 - sale deed executed in favour of the 1st defendant while juxtaposing the property mentioned in the partition deed with the plaint schedule property, in coming to the conclusion that claim of the 1st defendant that he had purchased the suit schedule property was erroneous. He further points out that description of the suit schedule property in the plaint and the measurement of the property shown by the plaintiffs are not supported by any material, in as much as, partition deed contained no measurement of the property that had fallen to the share of Siddappa and therefore, measurement shown in the gift deed and the plaint schedule are created and concocted. According to him, the Trial Court could not have decreed the suit based on such feeble materials placed by the plaintiffs on record.

Learned Counsel appearing for the respondents-plaintiffs while fairly conceding the fact that Trial Court was in error in juxtaposing and referring to the boundaries of Item No. 2 in Ex. D-1 with the plaint schedule property instead of referring to Item No. 1, supports the conclusion reached by the Trial Court by taking me through the boundaries mentioned in Ex. P-1 - partition deed dated 08.01.1971, Ex. D-1 - sale deed dated 30.04.1971 and Ex. P-8 - gift deed dated 11.12.1989. He, particularly, points out that defence of the defendants that entire suit schedule property that had fallen to the share of Siddappa had been sold under Ex. D-1 was false as per then-own sale deed - Ex. D-1. In this regard, he draws the attention of the Court to the southern boundary mentioned at Item No. 2 in Ex. D-1 sold in favour of the 1st defendant, wherein reference has been made to the remaining property of Siddappa which had been retained to himself.

As regards the measurement of the property, he takes me through Ex. P-2 - extract of the demand register of the year 1982, wherein measurement of the suit schedule property has been mentioned as East to West 40 x 20/2'' and North to South 50''. He also places reliance on Exs. P3, P4 & P5, to contend that in the records maintained including the tax paid receipts, the said property has been described and Siddappa has been shown as the owner of the same and later on based on the gift deed, name of the plaintiffs was entered. Reference is also made to Ex. P7 - endorsement issued by the urban land ceiling authorities, wherein measurement of the property is shown.

Having carefully considered the contentions urged by the learned Counsel for both the parties and in the light of the materials on record, the only point that arises for consideration is,

"whether plaintiffs have successfully proved their actual possession and enjoyment of the suit schedule property and whether the court below has commuted any illegality in decreeing the suit?".

Ex. P1 - partition deed discloses that Item No. 9 of the ''A'' schedule of the partition deed fell to the share of the 1st defendant - Pilla Anjanappa. Description of this property in the partition deed shows that towards the South - Siddappa''s land including vacant portion was situated. In the very partition deed, Item No. 16 of ''B'' schedule has fallen to the share of Siddappa, which is described as property situated at Kalkere village Grama Thana having the following boundaries, East by Road, West by Patel Hanumanthaiah''s land, North by Pilla Anjanappa''s house and South by Aneppa''s land.

It is the case of the plaintiffs that the suit schedule property is the portion of Item No. 16 of ''B'' schedule of the partition deed, fallen to the share of Siddappa that had been sold in favour of the 1st defendant under Ex. D1 - sale deed dated 30.04.1971. Now it is necessary to go to Ex. D1 and find out whether the entire property which had fallen to the share of Siddappa was sold to the 1st defendant as asserted by him. In fact, as per Ex. D1 two items were sold in favour of defendant No. 1. We are not concerned with the first item mentioned in the sale deed - Ex. D1. The second item described in Ex. D1 pertains to house situated in Grama Thana of Kalkere village having the following boundaries, East by Road, West by Patel Hanumanthaiah''s land and Pilla Anjanappa''s land and North by 1st defendant''s house and South by vacant land belonging to Siddappa. It is thus clear that as per Ex. D1, the entire land which had fallen to the share of Siddappa under the partition deed - Ex. P1 was not sold to the 1st defendant. Siddappa retained a portion of the land lying to the south of his property.

Learned Counsel for the plaintiffs-respondents is right and justified in contending that if the entire property had been sold, then the southern boundary would have been mentioned as land of Aneppa described in the partition deed while narrating the boundaries of Item No. 16 of ''B'' schedule. Therefore, it emerges that defendants did not come up with the true facts and wanted to lay claim in respect of the entire land in the guise of Ex. D1 - sale deed, wherein he had purchased only northern portion of Item No. 16 mentioned in the partition deed.

In so far as actual measurement of the property, it is true neither in the partition deed - Ex. P1 nor in the sale deed - Ex. D1, boundaries of the land that had fallen to the share of the parties and that has been sold in favour of the 1st defendant, are mentioned. But, the plaintiffs have produced materials to show that at an undisputed point of time during the year 1982, khatha was entered in their name in respect of a portion of the property which remained with him after the sale deed - Ex. D1 Ex. P2 is the extract of demand register. Measurement of property shown there is East to West 40 x 20/2'' and North to South 50''. Though in Ex. P3 which is of the year 1988-89, the measurements are shown as 40'' x 50'', the fact that during the year 1982 the property was correctly shown in the demand register and that the discrepancy that is found in Ex. P3 - demand register of the year 1988-89 has been explained by the Counsel appearing for the plaintiffs stating that there appears to be an error in omitting to mention the angular portion of the property deserves to be accepted in the facts and circumstances of the case. The tax paid receipts and the declaration made before the urban land ceiling authorities also corroborates the version of the plaintiffs that there was in existence a portion of the property to the southern side of the 1st defendant which Siddappa continued to own and which was recorded in his name and after the execution of the registered gift deed, the names of the plaintiffs came to be entered.

Thus, case of plaintiffs as pleaded in the plaint and as per the evidence adduced is highly probable and stands established. Whereas, defendants have come up with a totally untenable plea contrary to their own admission in Ex. D1. No doubt, it is the plaintiffs who have to establish their case and the burden is on them. In the instant case, as already adverted to above, the pleadings and the evidence both oral and documentary probablizes the case put forward by the plaintiffs. The Trial Court has come to a right conclusion in holding that plaintiffs proved their actual possession over the suit schedule property as per the measurements mentioned in the plaint schedule. The Trial Court was also right and justified in recording finding that there was an attempted interference by the defendants with the plaintiffs possession and enjoyment of the suit property.

The conclusion reached and the reasons assigned barring the mistake committed in juxtaposing item No. 1 of the sale deed - Ex. D1 with the plaint schedule by the Trial Court do not suffer any perversity or illegality warranting interference by this Court in exercise of the appellate jurisdiction. Hence, this appeal fails and the same is dismissed. Both parties shall bear their respective costs.