R. Muniraju vs M. Nagaraj

Anand Byrareddy, J.—Heard Shri. D.L. Jagadeesh, learned Senior Advocate, appearing for the counsel for the appellant and Sri. A.G. Shivanna, learned counsel appearing for the respondent.

The appellant was the plaintiff before the Trial Court. It is the case of the plaintiff that he, along with his mother who was initially arrayed as the first plaintiff, were the absolute owners of property measuring 4 guntas in land bearing Sy. No. 115/2 of Kathriguppe Village. This, according to the plaintiff, had been retained after selling portions of the property, totally measuring 11 guntas, over a period of time. The property in question is said to have been granted in favour of the father of plaintiff No. 2 and the husband plaintiff No. 1. The particulars of such grant, however, were never disclosed to the court. It is the case of the plaintiff that during the lifetime of his father, a portion measuring 7 guntas of land, out of the total 11 guntas, was sold in favour of Kempegowda House Building Society and thereafter an extent of 4 guntas was retained.

It is the further case of the plaintiff that the defendant who claimed to be the owner of property bearing No. 33 in Sy. No. 115/1 behind Poornapragna Layout, Banashankari III Stage, Bangalore, and that the defendant was residing in the said property, after having constructed a house. It is the case of the plaintiff that taking advantage of the fact that property bearing No. 33 was adjacent to the area of land retained by the plaintiff being 4 guntas of land in Sy. No. 115/2, the defendant had trespassed on to the land of the plaintiff to the extent of 40'' x 25'' and had constructed over the same. It is after realizing that such construction had come up, the plaintiff had approached the jurisdictional police and also filed the present suit.

The suit was contested by the defendant and it was the defendant''s case that the father of the defendant was the owner of land bearing Sy. No. 115/1 measuring 2 acres 15 guntas including 6 guntas of karab land and that at a family partition, the property was acquired by his father, of which one acre was sold in favour of one Mariyappa and another acre was sold in favour of one Narasappa, under registered sale deeds and in the remaining portion of land measuring 15 guntas, the defendant had constructed seven houses in the year 1985 and in one portion, the defendant was residing along with his family and the other portions have been let out to tenants. In this manner the defendant claimed to be in peaceful possession and enjoyment of the suit property. In addition to the said property, it was contended that the defendant had purchased the property measuring 25'' x 40'' from one Mariyappa under a registered sale deed.

It was also contended that one Ramaiah, the husband of 1st plaintiff and the father of 2nd plaintiff, was said to be the owner of land bearing Sy. No. 115/2 measuring 11 guntas. It is reiterated that he sold 7 guntas of land and of the remaining 4 guntas, he had formed four sites and sold the same to Byrappa, Janardhan, Gundappa and Kempegowda, and other portion of the land remaining was utilized for formation of a road by the competent authorities. Incidentally, the mother of the defendant is said to have filed civil suits against plaintiffs and others in O.S. Nos. 8899/99 and 8900/99 before the City Civil Court, Bangalore, and the same were pending consideration. It is the case of the defendant that the plaintiff had no piece of land remaining, of which the plaintiff was claiming possession and therefore sought dismissal of the suit.

On the basis of these pleadings, the Trial Court had framed the following issues:

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

2) Whether the plaintiff is entitled for recovery of possession of the schedule property from the defendant after causing demolition of the unauthorized construction on the suit schedule property?

3) Whether the plaintiff proves that the defendant made unauthorized construction of the suit schedule property?

4) Whether the court fee paid on the plaint is sufficient?

5) What order?"

The court had answered issue Nos. 1 to 3 in the negative and issue No. 4 in the affirmative. In considering the case of the plaintiffs, the court below had considered issue Nos. 1 to 3 together. Significantly, the court below has found that the plaintiff had not mentioned the manner in which grant in Sy. No. 115/2 was acquired by Ramaiah and even the details about the sale of the portions of land had not been mentioned. The suit land was shown as measuring 40'' x 25'' and on perusal of the evidence, it was found that the plaintiffs have acquired land bearing Sy. No. 115/2 measuring 11 guntas as being inam land and it was granted in favour of Ramaiah and further, the grant order in respect of the said land, was never produced. The plaintiffs had not produced any document in respect of the schedule property to prove the existence of the site which was shown as the suit schedule property. After discussing the other documents such as tippani copy in which the father''s name of Ramaiah has been shown as Madaiah and the endorsement issued by Special Deputy Commissioner dated 7/10/1964 where the court has found that the vendors of land bearing Sy. No. 115 has not been mentioned, though it is stated that land bearing Sy. No. 115 measuring 20 guntas has been shown as against the name of Ramaiah, which did not refer to any sub-division of the said survey number and there were no corresponding documents to show that the land was standing in the name of Ramaiah or the plaintiffs. The sale deed executed by Ramaiah as on 26/5/1972 in favour of Kempegowda House Building Cooperative Society is referred to. The contents of the said document, however, indicate that Ramaiah had purchased the land in Sy. No. 115/2 from one Narayanappa. This would run contrary to the claim that it was granted in favour of Ramaiah. This has been specifically noticed by the Trial Court. Further the plaintiffs had produced a certified copy of the order sheet in Civil Suit in O.S. No. 1178/95 in which a compromise petition filed was recorded and a certified copy of the decree in terms of the said compromise petition, was also submitted and it was pointed out to the court below that the Kempegowda House Building Co-operative Society was not a party to the said proceeding and the land bearing Sy. No. 115/2 was also not subject-matter of the suit, later on the Society had been impleaded as a party and it was the defendant''s case that the plaintiff had actually colluded with the said Society in including the land bearing Sy. No. 115/2 and by virtue of the compromise, the sale deed having been executed in favour of the Society was also negatived by the collusion between the said parties. It was also found that the plaintiff had not pleaded as to the date on which defendant is said to have trespassed into the suit property and when construction was put up over the suit property and that the court below has also held that there was variation as regards the extent of the property that was claimed. For instance, the copy of the complaint filed by the plaintiff to the police dated 12/7/1998 having been produced, the encroachment claimed therein was in respect of 600 sq.feet whereas in the plaint it was stated as 1000 sq.ft. This inconsistency was also not explained. Further the court below has noticed that the plaintiff has claimed that the suit property was bequeathed in favour of plaintiff No. 2 by his mother, plaintiff No. 1, under a registered Will and the said Will did not mention the suit property. But it was by virtue of a codicil dated 21/3/1999 that the suit property had been incorporated. The codicil was not registered. Further it is elicited from the plaintiff himself that insofar as 4 guntas of land is concerned, the same had been sold in favour of several parties and a portion of the remaining land was also acquired for formation of road and going by the very admissions, there was no land left on which the plaintiff could lay a claim.

It is in this manner and due to the glaring inconsistency in the pleadings and evidence of the plaintiff, that the court below has held that the plaintiff has miserably failed to establish his case and any alleged encroachment and the very existence of the property being seriously doubted, as by the admissions made by the plaintiff it would be evident that there was no property left behind for the plaintiff to lay a claim. It is this judgment which is sought to be challenged in the present appeal.

The learned counsel for the appellant would vehemently contend that it is evident that the defendant was fighting shy of having the spot inspected in order to ascertain the existence of the respective properties of the plaintiff and the defendant. It is evident from his cross-examination where he has refused to have the property inspected through the Court Commissioner. This would indicate that in view of the controversy as to the very existence of the land in question, it was very much necessary to conduct a spot inspection and the learned counsel for the appellant would throw a challenge that if a commissioner is appointed to inspect the property even as on date, it would be possible for the plaintiff to establish his case that there has been encroachment over the suit property and seeks to place reliance on Ex. P23, which is said to be the survey sketch indicating the portion of land remaining, after portions of land measuring 4 guntas was sold in favour of third parties and this has not been ascertained by the court below, which it was required to do, in the interest of justice. It is in this fashion that the learned counsel would seek to reconcile the several inconsistencies that are thrown up in the course of the proceedings, which the Trial Court has diligently listed in dismissing the suit of the plaintiff.

After having heard the learned counsel for the appellant and after having perused the documents on record and the inconsistencies which are reiterated by the learned counsel for the respondent, there is no merit to be found in the case of the plaintiff and accordingly the appeal is dismissed.