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Friday, January 23, 2015

CIVIL APPEAL NO. 176 OF 2015 LAXMIDEVAMMA & ORS. .. Appellants Versus RANGANATH & ORS. .. Respondents


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 176 OF 2015

LAXMIDEVAMMA & ORS.                              .. Appellants


RANGANATH & ORS.                                   .. Respondents

                               J U D G M E N T


            This appeal arises out of the judgment  dated  27.9.2012  passed
by the High Court of Karnataka  in  R.S.A.  No.297/2007,  wherein  the  High
Court allowed the appeal in part,  modifying  the  concurrent  judgment  and
decree  passed  by  the  courts  below  and  holding  that  the  appellants-
plaintiffs are entitled to compensation for the space earmarked for road  as
and when the competent authority acquires the same.
2.          Appellants-plaintiffs  are  the  owners  of   the  revenue  land
bearing Survey No.1/1 of Chikmagalur village  which was converted  for  non-
agricultural purpose   under  the  order  dated  2.4.1987  of   the   Deputy
Commissioner, Chikmagalur.   Layout was formed from the above said land  and
the site Nos.12 and 13 and portions of site     Nos.11 and 14 were  sold  to
the first defendant by  the  appellants-plaintiffs  by  executing  two  sale
deeds dated 11.7.1988 and 3.1.1992.  To the south of the  property  sold  to
the respondents-defendants, 'A' schedule property as shown in the  suit  was
earmarked  for  the  purpose  of   road.   However,  the  City   Development
Authority did not approve the same and hence no road was  formed.   Case  of
the appellants-plaintiffs is that since no road was formed,  they  continued
to be the owners of the 'A' schedule property  and  they  are  the  absolute
owners of the same.
3.          In the year 1992, first respondent-defendant sold  the  property
purchased from the appellants-plaintiffs to second and third defendants  who
constructed a house on the same alongwith a  compound  wall.   Grievance  of
the appellants-plaintiffs is that towards the northern side of 'A'  schedule
property, the respondents encroached upon 80' x 21/2 which is  described  as
'B' schedule property in the suit,  despite  protest  from  the  appellants-
plaintiffs.  Inspite of repeated demands, the respondents  have  not  handed
over vacant possession of the encroached  property.  Therefore,  appellants-
plaintiffs filed a suit for declaration that they are  the  absolute  owners
of  'A' schedule property and for  possession  of the 'B' schedule  property
in the court of Addl. Civil Judge (Jr. Divn.), Chikmagalur.
4.            Respondents-defendants filed written statement admitting  that
layout was formed out of the above Survey No. 1/1   of  Chikmagalur  village
and that first appellant has sold site Nos. 12 and 13 and portions of   site
Nos.14  and 11 by two sale deeds dated 11.7.1988 and 3.1.1992 (Ex. D 16  Ex.
D17).  While selling the above sites, the first plaintiff has  reserved  'A'
schedule  property  for  the  purpose  of  road  on  the  southern  side  of
respondents' property.    Pursuant to the request of the  municipality,  the
adjacent property of 'A' schedule property was acquired by  the  authorities
for the purpose of road.   The defendant No.1 has constructed houses  facing
towards southern side of the road and the  municipality  has  constructed  a
footover  bridge  in  between  the  channel  and  'A'   schedule   property.
According to the respondents-defendants, 'A' schedule property is very  much
necessary for the purpose of road.   The  respondents  contend  that  having
sold the sites to the general public and also to the  defendants  earmarking
the  space  as  road,  the  plaintiffs  are  not  justified  in  seeking   a
declaration of their title over   'A' schedule property.  According  to  the
respondents-defendants they have encroached 21/2' measuring in width on  the
northern side of his house property and not on the southern  side,  and  the
appellants have filed a suit with intention to  shift  the  encroached  area
towards south.  According to the respondents-defendants if  the  plaintiffs'
title over 'A'  schedule  property  is  declared,  the  defendants  and  the
general public who have purchased the house/sites from the  plaintiffs  will
be put to inconvenience and hence they prayed for  dismissal  of  the  suit.

5.          Upon consideration of oral and documentary evidence,  the  trial
court decreed the suit holding that the plaintiffs are the  absolute  owners
of 'A'  schedule  property  and  entitled  to  possession  of  'B'  schedule
property to an extent of 2' x 781/4' i.e.  2  feet  north-south  781/4  feet
east-west and defendants 2 and 3 were directed to deliver vacant  possession
of the said land to the plaintiffs.  Being aggrieved, the  defendants  filed
appeal before the first appellate court-Fast Track Court, Chikmagalur.   The
first appellate court confirmed the judgment and decree of the  trial  court
and dismissed the appeal vide judgment dated 13.10.2006.   The  unsuccessful
defendants preferred second appeal before  the  High  Court,  which  by  the
impugned judgment dated 27.9.2012 allowed the  second  appeal  in  part  and
modified the judgment and decree passed by the  courts  below  holding  that
the plaintiffs are  entitled  for  compensation  for  the  space  which  was
earmarked for road if the same was  acquired  by  the  competent  authority.
High Court held that the plaintiffs are not entitled for a declaration  that
they are  the  absolute  owners  of  the  suit  'A'  schedule  property  and
consequently their claim for injunction was also not granted.
6.          Learned counsel for the appellants contended   that  the  courts
below have recorded  concurrent findings that  'A' schedule   property   was
earmarked for road and that no road was  formed  and  the   plaintiffs  have
proved  their ownership to 'A'  schedule property and  that  the  defendants
have failed to prove that it is a road  having the  nearest  approach.    It
was submitted that when the courts below have recorded concurrent  findings,
in exercise of its jurisdiction under Section 100  C.P.C.,  the  High  Court
erred in re-appreciating the evidence and in interfering with the  findings.
 It was further contended that the High Court erred in  holding  that  there
is a delay in instituting the suit for relief for  mandatory  injunction  as
both the courts below have rightly held that the suit is  within  limitation
and that the defendants have encroached upon the plaintiffs' property.
7.          Per contra, learned  counsel  appearing  for  the   respondents-
defendants contended that the plaintiffs failed to produce any documents  of
title for declaration  of their  title   over  'A'  schedule  property   and
that  the defendants  have encroached upon  the 'B' schedule  property.   It
was further contended that as the plaintiffs  themselves  have  stated  that
the space was left for proposed road which  indicates  that  the  plaintiffs
did not have full fledged valid right over 'A' schedule property,  the  High
Court rightly set aside the judgments of the courts below.
8.          We have carefully considered the rival contentions  and  perused
the judgments of the courts  below  as  well  as  the  High  Court  and  the
materials on record.
9.          Facts are not in dispute.  Plaintiffs owned 1.00  acre  of  land
in Survey No.1/1  at  Chikmagalur  village  which  was  converted  for  non-
agricultural purpose and layout was  formed  with  fourteen  sites  thereon.
Ex P.7 is the copy of the order issued by the Deputy  Commissioner  granting
permission to the plaintiff No.1 for converting the agricultural  land  into
non-agricultural purpose.  As per condition No.9 therein, except two  guntas
of land taken over by the municipal authorities for the purpose of  road  at
the rate of two guntas per  acre,  permission  was  granted  in  respect  of
remaining 38 guntas.  Plaintiffs sold site Nos. 12 and 13  and  portions  of
site Nos. 11 and 14 to defendant no.1 under two sale deeds.   In  the  first
sale deed dated 11.7.1988 an extent of 80' x 50' was sold and in the  second
sale deed dated  3.1.1992,  22'  x  76'  was  sold.     Subsequently,  first
defendant sold the property purchased by him  from  the  plaintiffs  to  the
second and third defendants under      Exs. D16 and D17 dated 11.7.1988  and
3.1.1992 respectively.  In its judgment in paragraphs 11 to  13,  the  first
appellate court elaborately discussed the above sale deeds and  pointed  out
discrepancies in the boundaries of the property  between  the  earlier  sale
deeds and Ex. D16 sale deed in favour of defendant No. 2.
10.         Plaintiffs have sought for declaration of 'A' schedule  property
earmarked for road.   'B' schedule property is the portion of  'A'  schedule
property measuring 21/2'  x  80'  which  according  to  the  plaintiffs  was
encroached by the defendants.  Upon consideration of  oral  and  documentary
evidence, trial court as well as the first  appellate  court  have  recorded
concurrent findings  of  fact  to  the  effect  that   the  plaintiffs  have
earmarked the land on the southern side intended for road and  no  road  was
formed and land of one Advocate V.B.K.  Dias  was  acquired   and  road  was
formed therein.  From the evidence of DW-1-President and  Councilor  of  the
Municipality  and  DW-4,  Assistant  Commissioner,  courts  below   recorded
findings  that the 'A' schedule property  is   still  in  the  name  of  the
plaintiffs and that there was no acquisition  and  payment  of  compensation
made to the first plaintiff in respect of  the disputed property.
11.         Ex. P4 - endorsement issued by the  City  Municipality   to  the
plaintiff No.1,  which clearly shows about the mutation  of  khata  of   the
schedule 'A' property in favour of plaintiff No. 1.  Ex. P2 and Ex. P 6  are
the tax  assessment  register  extracts  which  amply  prove  that  the  'A'
schedule property stands in the name of plaintiffs and  that  they  are  the
owners of the disputed property.  As against the resolution  passed  by  the
city Municipality by cancelling  the  khata  of  schedule  'A'  property  in
favour of the plaintiff No.1, he has preferred revision.   In  the  revision
petition filed by the plaintiff No.1 against the resolution  passed  by  the
City Municipality for cancelling the khata of  schedule  'A'  property,  the
said resolution was set aside and Ex. P8 is the said order.  Based upon  the
above documentary evidence and other evidence,  first  appellate  court  has
recorded concurrent findings that the plaintiffs are successful  in  showing
that they are the owners of 'A' schedule  property  and  that  the  same  is
coupled with oral evidence which substantiates the documentary evidence.
12.         Based upon oral and  documentary  evidences,  the  courts  below
have recorded concurrent findings that the plaintiffs are the owners of  'A'
schedule  property.   While  so,  the  High  Court  ignoring  the   material
evidence, erred in interfering with the concurrent findings of fact.   While
holding that 'A' schedule property has been  left  for  the  road  and  that
plaintiffs cannot seek declaration of title, in  our  considered  view,  the
High Court brushed aside the oral and documentary evidence  based  on  which
the courts below recorded concurrent findings  of  fact  that  'A'  schedule
property though earmarked for  road,  the  same  was  not  formed  and  that
plaintiffs established their right in the 'A' schedule property.
13.         Insofar as  the  encroachment  of  'B'  schedule  property,  the
sketch prepared by the  Assistant  Director  of  Land  Records  (ADLR),  was
produced and the same was marked in the trial court  as        Ex.  P5.   In
the first appellate  court,  the  interlocutory  application  filed  by  the
plaintiffs, one Sri Basavaraj, Assistant Engineer, Public  Works  Department
was appointed as the Court Commissioner, who  had  inspected  the  spot  and
filed the report and also the sketch.  Based on  the  report  of  the  Court
Commissioner and Ex. P5 and other evidence, the first  appellate  court  has
recorded the findings of fact that defendants have encroached upon suit  'A'
schedule property and the same read as under:-

"...No doubt shall arise to hold that, it is proved that, defendant  Nos.  2
and 3 have encroached upon 781/4'  x  2'  in schedule  'A'  property,  which
is also corroborated by Ex-P5.  It is also the first rough sketch  submitted
by the Court Commissioner.  But though the extent of the  encroachment  area
reported therein does not absolutely tally with the extent of  'B'  schedule
property, encroachment of 781/4' x 2' by defendant Nos. 2 and 3  out  of  it
is proved...."

Based on the report of the Court Commissioner and Ex. P5 and  on  the  above
findings the first appellate court ordered delivery  of  possession  of  'B'
schedule property.   In our view, the said findings of fact  do  not  suffer
from any perversity and the same ought not to have been  interfered  by  the
High Court.
14.         Before the courts below, defendants    have taken  a  plea  that
they had encroached a width of 21/2 feet in the road only  on  the  northern
side as a result of which width of road towards  northern  side  is  reduced
from 30 feet to 271/2 feet.  Both the courts below negatived the  said  plea
holding that there are no  traces  of  encroachment  of  80'  x  3'  by  the
defendants on the northern side.
15.          Based on oral and documentary evidence, both the  courts  below
have recorded concurrent findings of fact that plaintiffs  have  established
their right in 'A' schedule property.  In the light of  concurrent  findings
of fact, no substantial questions of law arose in the High Court  and  there
was no substantial ground for re-appreciation of evidence.   While  so,  the
High Court proceeded to observe that the first plaintiff has  earmarked  the
'A' schedule property for road and that she  could  not  have  full  fledged
right and on that premise proceeded to hold that declaration to  plaintiffs'
right cannot be granted.  In exercise  of  jurisdiction  under  Section  100
C.P.C., concurrent findings of fact  cannot  be  upset  by  the  High  Court
unless  the  findings  so  recorded  are  shown  to  be  perverse.   In  our
considered view,  the High Court did not keep in view  that  the  concurrent
findings recorded by the courts below,  are based on  oral  and  documentary
evidence and the judgment of the High Court cannot be sustained.
16.         In the result, the  appeal  is  allowed,  impugned  judgment  in
R.S.A. No. 297/2007 dated  27.9.2012 passed by the High Court  of  Karnataka
is set aside and the judgment passed by the Addl. Civil Judge  (Jr.  Divn.),
Chikmagalur as confirmed by the lower appellate court is restored.   Parties
are left to bear their own costs.

                                                           (V. Gopala Gowda)

                                                              (R. Banumathi)

New Delhi;
January 20, 2015

ITEM NO.1A-For Judgment     COURT NO.12               SECTION IVA

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Civil Appeal  No(s).  176/2015

LAXMIDEVAMMA & ORS.                                Appellant(s)


RANGANATH & ORS.                                   Respondent(s)

Date : 20/01/2015 This appeal was called on for pronouncement of JUDGMENT

For Appellant(s)
                     Ms. Anjana Chandrashekar,Adv.

For Respondent(s)
                     Mr. S. N. Bhat,Adv.

            Hon'ble Mrs. Justice R. Banumathi  pronounced  the  judgment  of
the Bench comprising Hon'ble Mr. Justice V. Gopala Gowda  and  Hon'ble  Mrs.
Justice R. Banumathi.
            The  appeal  is  allowed  in  terms  of  the  Signed  Reportable

    (VINOD KR. JHA)                             (MALA KUMARI SHARMA)
      COURT MASTER                                COURT MASTER
            (Signed Reportable judgment is placed on the file)

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