Shivakumar vs Thimmappa and Others

Ravi V. Malimath, J.—The case of the plaintiff is that originally the land bearing Sy. No. 48/1B of Tumkur, Kasaba Village belonged to one Chowdamma wife of Kavalaiah. The said Chowdamma sold 5 guntas of land in favour of one Hanumaiah under the registered sale deed dated 02.12.1971 for a consideration of Rs. 2,500/- and he was put in possession of the same. Subsequently, it is separately phoded as Sy. No. 48/1B3. Accordingly, the katha has been changed into his name. Further, the said Hanumaiah sold the entire property to the plaintiff on 04.06.1973 for a consideration of Rs. 3,000/- which is described in letters as ''ABCD'' in the rough sketch. Since, the date of purchase, he is in physical possession and enjoyment of the said property and in respect of the same, khatha and RTC has been changed to his name and he has also paid the land revenue to the Government.

It is the further case of the plaintiff that he has got measured the said land through a Surveyor to fix the hudbust and boundaries. At the time of survey, all the four corners of the property were earmarked by putting up stone slabs in all the four corners. Thereafter, it was noticed that out of ABCD'' portion, the first defendant has encroached 1/4th areas of land towards the northern side by removing hudbust stone on the property, by pitching the stone slabs at point E to F as shown in the sketch which is also described as ABEF'' in the rough sketch. The second defendant who was the owner of the neighboring house on the southern eastern corner of Sy. No. 48/1B3 has also encroached about 1/4th areas at point ''GHIC by removing the hudbust stone and constructed a compound wall and it is the 2nd item of the suit schedule property. Since, the defendants have no manner of right, tide and interest over the suit schedule property, the instant suit was filed seeking for the relief of declaration to declare that the plaintiff is the absolute owner of the suit schedule property and for the relief of mandatory injunction to direct the defendants to demolish the construction put up therein and to handover the vacant possession of the suit schedule property.

On service of summons, the defendants entered appearance and denied the plaint averments. The first defendant contended that he is not aware of the fact that originally the land belongs to Kavalaiah and was subsequently purchased by the plaintiff The second defendant contends that the suit is not maintainable and also denied the plaint averments. He also contended that he has purchased the site from its lawful owners and after obtaining a license has constructed a house long back and some persons being inimical against him have filed this false suit.

The third defendant contends that he has purchased the land bearing Sy. No. 48/1B2 measuring 0.5 guntas under a registered sale deed dated 11.10.1985. Since then, he is in lawful possession and enjoyment of the same. He further contended that, his land was alienated by Special Deputy Commissioner on 05.09.1986 for residential purpose and he has put up stone slabs around his property of 0.5 guntas. Therefore, the survey sketch is not binding on him.

During the pendency of the suit, the plaintiff amended the prayer by inserting the prayer of mandatory injunction. Additional written statement was also filed and it was contended that the plaintiff is not entitled for the relief sought for in the amended plaint.

Based on the pleadings, the trial Court has framed following issues and additional issues:

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

Whether the plaintiff proves that the defendants have encroached the suit schedule property?

Whether the plaintiff is entitled to recover possession of the suit schedule property?

Whether the plaintiff is entitled to recover mesne profits?

To what decree or orders the parties entitled?

ADDITIONAL ISSUE:

Whether the plaintiff is entitled for the mandatory injunction as sought in prayer V of the plaint?"

The plaintiff, in order to prove his case examined himself as PW-1 and got marked Ex-P1 to Ex-P6. On the other hand, the defendants were examined as DW.1 to DW.3 and got marked Ex. D1 to Ex. D3. The Court Commissioner was examined as CW.1 and got marked Ex. C1 to Ex. C7. Issue Nos. 1 to 4 and additional issue was held in ''Affirmative''. The suit was decreed and the plaintiff was declared as the absolute owner of the suit schedule property and the suit was also decreed for the relief of mandatory injunction and recovery of possession and defendants were directed to demolish and remove the marked portion and to deliver the vacant possession within three months while granting other consequential reliefs. Aggrieved by the same, the second defendant filed R.A. No. 145/2007 and the first defendant filed R.A. No. 146/2007. Both the appeals were heard together and by a common judgment, the appeals were dismissed. Hence, the present second appeal is filed by the first defendant.

The learned counsel for the appellant/the first defendant submits that the impugned orders of both the Courts below are erroneous and liable to be set aside. He also contends that the trial Court has not considered the material on record. That there is no material to show the extent to which the encroachment has taken place by the defendant.

Heard learned counsel.

Ex. P2 is the certified copy of the sale deed executed by one Hanumaiah in favour of Thimmappa for a sale consideration of Rs. 3,000/- after rephoding of the land which is shown as 48/1B3 and it was bounded on east by land sold to S.M. Veeranna, west by remaining land of Chowdamma, north by lands of Chowdamma and south by Badaji Narasimhaiah''s land. Ex. P3 is the RTC for the years 1988-1989 and 1989-1990 pertaining to the said land and the Khathedar column discloses the name of plaintiff as Thimmaiah and Khatha has been changed into his name as per MR No. 21/86-87. Ex. P4 is the tax paid receipt to show that the plaintiff has paid the tax for the suit schedule property on 06.10.1999. Based on these materials, the trial Court held that the plaintiff is the absolute owner in possession of the suit schedule property by virtue of the registered sale deed.

In terms of the documents furnished by the defendants Ex. D1-sale deed, the boundary would only show that it is the land of Hanumaiah. Hanumaiah has sold his land to the plaintiff in the year 1973 itself. Though the plaintiff has purchased the land in the year 1973, the mutation was made only in the year 1987 and the Khata and pahani were changed to his name only in the year 1987. Hence, it has been shown in the northern boundary of the sale deed dated 11.10.1985 i.e., in Ex. D1 as the lands of Hanumaiah. Further, the plaintiff has nothing to do with the land bearing Sy. No. 48/1B2 and he is concerned only to with bearing Sy. No. 48/1B3.

All these materials would clearly show that the property is in the name of the plaintiff. Ex. P5 is the sketch prepared by the Surveyor after the land was purchased by the plaintiff and the same was done in the year 1987. It discloses that the Surveyor has measured the suit schedule land and it discloses that there was no encroachment at that point of time and hudbust stones were placed to identify the entire suit schedule property at all the four corners. This was executed by ADLR, Tumkur. Ex. P6 is another survey sketch prepared by the ADLR in the year 1991, wherein the land was measured in connection with the alienation of plaintiffs land. The same would disclose that it was done at the request of one Thimmappa to re-survey the suit schedule property. It would indicate that the hudbust stones 1, 2 and 3 were destroyed. Further, it discloses that there was an encroachment of 1/4th areas of the said land by the neighbouring land owners namely defendant No. 1 on the northern side. The encroachment was marked in red colour. The ownership of the house which is built in Sy. No. 42 by the second defendant would also indicate that there is encroachment.

PW.2 is the retired Surveyor. He has stated in the evidence that when he was in service in ADLR''s office, he had measured the lands of the plaintiff On measurement, it was noticed that the defendant has encroached the northern side of the land to the extent of 1/4th areas. Nothing has been extracted from his evidence to disbelieve him. In terms of the survey sketch there is encroachment of the suit schedule property.

During the pendency of the suit, one more Surveyor was appointed since there was a serious objection by the defendants that before conducting the survey by PW-2, no notice was served on them. Accordingly, one Sri N.A. Doni was appointed as the Court Commissioner to conduct the survey and to measure the lands of the plaintiff On conducting the same, the Court Commissioner has marked documents as Ex-C1 to Ex-C7.

Ex-C1 and Ex-C2 are the notices issued by the Taluk Surveyor from the Office of the ADLR, Tumkur Sub-Division, Tumkur to both the parties. Ex-C3 is the mahazar drawn up by the Court Commissioner, wherein he has stated about conducting of the mahazar. A perusal of the same would disclose that the said Ex-C3 was written at the instance of defendant Nos. 1 and 2. It is also reported by him that, he was unable to issue the notice with regard to conduct of measurement as he was unable to issue the notice to all the members who are residing in the vicinity. Ex-C4 and Ex-C4(a) is the sketch with reference to the suit schedule property bearing Survey No. 48/1B3 of Tumkur, Kasaba Hobli, Tumkur Taluk. A perusal of the same would show that on the northern side, the defendant No. 1, Shivakumar has put up stone slab wall at a width of 2 meters and its extent is 0.37 guntas. In the Southern side of the same, there is 0.6 meters width and about 8 meters in length of wall of the house of defendant No. 2 and it measures 3 sq. meters. Ex-C5 to Ex-C7 are the reports given by the Court Commissioner. Ex-C5 discloses that, survey has been conducted after collecting tippani and documents filed by the plaintiff and preparation of the sketch and survey has been done as per the measurement of the document. Ex-C6 discloses that, the measurement of the land has been done as shown by the defendants. Ex-C7 discloses land of the plaintiff is a vacant site and CW-1 in his evidence has stated that he has measured the land bearing Survey No. 48/1B3 after issuance of notice to all the defendants.

All these materials would clearly go to indicate the substantial evidence has been led and the plaintiff has produced all the materials in order to establish his ownership and possession of the suit schedule property. Subsequently, the plaintiff also narrates the manner in which the suit schedule property has been encroached by defendant Nos. 1 and 2 as per marked portion of the suit schedule property. It is for this reason, the trial Court was of the view that the suit requires to be decreed. By considering the contentions and the material, both the Courts were satisfied that substantial material is placed by the plaintiff and he has proved his case.

The ownership over the suit schedule property was not seriously in dispute. Notwithstanding the same, Ex-P2-sale deed was relied on and other documents to decree the suit in title so also for the relief of recovery of possession. Evidence of PW-2 as well as the Court Commissioner would show that the defendants have encroached upon the marked portion of the suit schedule property. Therefore, the trial Court was justified in directing the defendants to demolish and remove the encroach portion of the plaintiffs land and to deliver the vacant possession within three months.

I do not find any error committed by both the Courts to interfere with the impugned orders. The suit has been rejected based on the substantial evidence and materials on record. The entire case revolves on facts. No substantial question of law arises for consideration. Accordingly, the appeal being devoid of merit is dismissed.