Uma Devi and Others vs Shantharam

Anand Byrareddy, J.—This is an appeal filed by the plaintiffs. It was the first plaintiffs case that she was the absolute owner of property bearing No. 157, formed in land bearing survey No. 65 of Chikkalasandra, now known as Sarvabowmanagar, Uttarahalli Hobli, Bangalore South Taluk. It was said to have been purchased by the plaintiff from one Bhoomi Reddy, under a registered sale deed dated 10.9.1980. The said property was said to be measuring 60 feet by 40 feet. The first plaintiff is said to have constructed a small structure on the property. The property was more fully described in the Schedule to the suit.

It was alleged that on 15.12.1995, during the absence of the plaintiff, a stranger who was later identified as Shantaram, is said to have trespassed into the suit property and broken open the lock and is said to have put a new lock of his own and occupied the structure on the property. The plaintiff was said to have been threatened with physical harm when she later came there and questioned his actions. She had hence lodged a police complaint. But no action had been taken. Hence the suit.

On the defendant having entered appearance and having set up a rival title, the plaintiff was constrained to seek amendment to seek declaration of title and recovery of possession. It was noticed by the plaintiff that the defendant was seeking to claim that the suit property was property No. 156 and not 157. In order to verify this aspect, the plaintiff had requested the neighbouring owners of the suit property for their property details and was shocked to learn that there was no property bearing No. 156, in the vicinity. But since the sale deed of the plaintiff did indicate that the plaintiffs property was flanked by property No. 156 on one side, she had immediately approached her vendor Bhoomi Reddy seeking correction of the sale deed. Since he did not oblige, it is stated that the plaintiff has filed a suit against Bhoomi Reddy seeking a rectification deed.

The plaintiff had hence filed the suit.

The defendant had entered appearance and had filed a written statement denying the allegations and claims of the plaintiff it was asserted that the defendant had no intention of occupying site No. 157. And that the defendant was only interested in protecting his own property bearing site No. 156, which was purchased under a registered sale deed from one Bhoomi Reddy, as per a layout plan prepared by him, and that he was the common vendor of the plaintiff and the defendant. It was also claimed that the plaintiff had raised objection during December 1995, that the defendant was occupying her property and had brought Bhoomi Reddy to the premises and that Bhoomi Reddy had also explained that the plaintiffs site was on the southern side of the defendant''s property and that it was still vacant and available. But the plaintiff had insisted that the property occupied by the defendant was site No. 157. The defendant had thus sought for a permanent injunction restraining the plaintiff from interfering with his property described in the Schedule to the Written statement.

The trial court had framed the following issues on the basis of the above pleadings:

"1. Whether the plaintiff is entitled for possession of the suit property?

Whether the plaintiff proves the cause of action as alleged in the plaint?

What order or decree?"

The issues were answered in the negative and the suit was dismissed. It is that judgment which is under challenge in this appeal.

The learned counsel for the appellants contends that the trial court has failed to acknowledge that the copies of sale deeds of the property owners around the suit schedule property clearly disclosed the non-existence of a site bearing No. 156, and hence the refusal of the relief in favour of the plaintiff inspite of the plaintiff claiming under valid documents of title, has resulted in a miscarriage of justice.

It is also contended that the sale deed of the plaintiff was prior in point of time to that of the defendant, and hence even if there was a rival claim by the defendant on the basis of his sale deed, the title of the plaintiff obtained from a common vendor prevailed, which the trial court has completely overlooked. It is also a significant circumstance that the common vendor was actually an agent and a power of attorney holder of the original owner and the said power of attorney had been cancelled and was not in force as on the date of execution of the said sale deed in favour of the defendant.

It is urged that the court below was not justified in assuming that the sale deed of the plaintiff itself mentions the northern boundary of the suit property as site No. 156 and therefore if at all, the plaintiff ought to have taken action against any person who may be occupying site No. 157. This assumption is in the face of the fact that after the plaintiff had found that the said boundary mentioned in her sale deed was erroneous and that site No. 156 did not exist even according to the layout plan filed along with the plaint, which was not disputed by the defendant.

It is further pointed out that Exhibits P-9, P-10 and P-11, which were certified copies of sale deeds of the property around site No. 157 did not show the existence of Site No. 156, which has been totally ignored by the trial court.

That the northern boundary of the suit property having been incorrectly depicted as site No. 156, was questioned by the plaintiff as it was not consistent with the actual fact and also was not consistent with the title deeds of neighbouring owners and hence though had been sought to be corrected by way of a separate suit, was also ignored by the court below.

It is also pointed out that this court having appointed a court commissioner, has affirmed the actual state of affairs and the fact that site No. 156 does not exist has been affirmed. The learned counsel for the appellant thus seeks that the appeal be allowed and the suit be decreed.

The learned counsel for the defendant - respondent would however, seek to justify the reasoning of the trial court in having dismissed the suit. He would further point out that the appellant No. 1 who had originally filed the suit had sold the suit property during the pendency of the suit in favour of appellant No. 2 and such a subsequent purchaser during the pendency of the suit is not a proper or necessary party to the suit and hence the appeal itself is rendered infructuous. It is also canvassed that the only further advantage that the appellant claims in her favour subsequent to the judgment under challenge is the Court Commissioner''s report filed in this appeal. The learned counsel has filed objections to the same and would contend that the said Court Commissioner was wrong and that this could be demonstrated if he is offered for cross-examination on the accuracy of his report. It is however, pointed out that the court commissioner, even after noticing that the plaintiffs sale deed shows the northern boundary as being Site No. 156, has found in favour of the plaintiff on the basis of the sale deeds of other site owners, which is the very erroneous basis on which the plaintiff was claiming possession of the suit property.

On the above contentions and on an examination of the record, the short point for consideration is whether the court below was justified in dismissing the suit for the reasons assigned.

It is not in dispute that the plaintiffs sale deed indicates the northern boundary of the suit property as being site No. 156, which is the property claimed by the defendant. The plaintiffs suit in O.S. No. 4626/1996 against her vendor seeking a rectification of the sale deed, was resisted by the vendor, who had also tendered evidence before the court in that suit. However, the vendor is said to have died during the pendency of the suit and the suit abated as no legal representatives of the deceased defendant could be identified. The same attained finality. The defect in the sale deed remained. The plaintiff had, however, said to have unilaterally rectified the error while executing a sale deed in favour of the second appellant.

However, the first plaintiffs sale deed remains without any rectification. The plaintiff would stand or fall with reference to her sale deed. And even though the Court Commissioner appointed by this court has ascertained that there is a site missing between site numbers 155 and 158, his further reasoning and finding is on the very analysis as canvassed by the appellant that the copies of the sale deeds of the neighbouring properties describe the property flanking theirs on the relevant direction as being site No. 157. It is however, inconsistent with the sale deed of the plaintiff - which does indicate the northern boundary as site No. 156. The plaintiffs sale deed is the primary document on the basis of which the court could decree the suit. In view of the inaccurate description, the suit schedule describing the property would not be in consonance with Order VII Rule 3 of the Code of Civil Procedure, 1908.

The court commissioner has also pointed out that the boundaries of the suit property as well the neighbouring properties as not being accurate. The relevant portion of his report is reproduced for ready reference:

It is hence for the plaintiff to demonstrate with reference to her sale deed the non-existence of the property of the defendant on the northern side and in the absence of rectification of the sale deed, she would be bound by it.

Hence the trial court having rejected the suit, inter alia, on other grounds as well does not warrant interference and the appeal is accordingly dismissed.