R. KRISHNA REDDY Vs. KOMALA

JUDGEMENT

(1.) Heard the learned Counsel for the appellant and the learned Counsel for the respondents. The parties are referred to by their rank before the Trial Court, for the sake of convenience. The appellant was the plaintiff before the Trial Court and it was the case of the plaintiff that he was the absolute owner of vacant land appurtenant to the constructed portion of his property in Domlur, Bangalore, bounded on the East by road, West by the plaintiffs remaining property, North by property belonging to the Bangalore Development Authority and South by the plaintiffs property. The vacant land is shown as measuring 53 East to West and 45' North to South which is described in the suit schedule and is treated as the suit schedule property. It was the plaintiffs case that his paternal grandfather one Sarakki Nanjappa had two sons. Muniswamappa was born to his first wife, Venkataswamappa, Gurappa, Nagappa and Ramaiah were born to his second wife. The plaintiff was the grandson of Muniswamappa. His father was Ramaiah. The first defendant was the granddaughter of Ramaiah, born to the second wife of Sarakki Nanjappa. The plaintiff claims that Sarakki Nanjappa owned several immovable properties, one of them being the suit schedule property, in respect of which he had executed a release dated 20-4-1906 which was duly registered, whereunder, he had released half portion of the Hithalu on the Southern side in favour of his son Muniswamappa, which is the suit schedule property, and retained the other side of the Hithalu on the Northern side. The suit property was succeeded to by the son of Muniswamappa namely Ramaiah, and from Ramaiah the plaintiff had inherited the same and claims that he has been in possession and enjoyment of the suit schedule property. The plaintiff further claims that under the aforesaid release deed, Sarakki Nanjappa further released in favour of his son by his first wife Muniswamappa, a residential premises situated to the West of the suit property, comprising of an area of 10 Ankanas of Domlur Village bounded on the East by the suit property which had fallen to his share and Hithalu retained by the releasor and on the West by house of Lingappa, North by well and South by Land belonging to Dodda Mastri Pillaiah. The plaintiff claims that, as per the release deed his paternal grandfather Muniswamappa and after him his father Ramaiah were in possession and enjoyment of the residential premises till the death of Ramaiah in the year 1954. Thereafter, the plaintiff claims, that he has been in enjoyment of the residential premises. It is further claimed that three years prior to the suit, the plaintiff had renovated the premises by replacing the old tiled roof with an RCC roof and that the plaintiff uses the well-situated on the North Eastern side of the residential premises. The residential premises, according to the plaintiff, measures 41' East to West and 56' North to South inclusive of the well. The actual measurement of the suit schedule property forming half portion of the Hithalu belonging to Sarakki Nanjappa was East to West 53' and North to South 56' and the other half portion which was retained by Sarakki Nanjappa was released in favour of the first defendant under a Release Deed dated 24-1-1976. The plaintiff remained unaware of that document till 7-9-1987 when he learnt of the details of the release deed in the Office of the Assistant Executive Engineer, Bangalore City Corporation when he went there to verify the action taken by the Bangalore City Corporation in regard to objections filed by him against the grant of sanctioned plan in favour of the first defendant, who had proposed to put up construction in the other half portion which was the subject-matter of the said release deed. The plaintiff had thereafter obtained a certified copy of the release deed and found the measurements which the defendant was claiming under the said release deed. To the plaintiffs shock, he found that the Hithalu enjoyed by him, was also included in the said release deed but since he had been in possession of the same having acquired it by inheritance from his grandfather in whose favour it was released by Sarakki Nanjappa and the plaintiff having constructed a row of buildings consisting of two rooms, two shops and four residential tenements along the Southern boundary measuring East to West 53' and North to South 21' and the plaintiff also having let out the tenements to different tenants and the remaining portion of the Hithalu measuring 35' x 53' having remained vacant, it was being used by the plaintiff and his tenants for the purpose of ingress and egress and for other beneficial purposes. The plaintiff claims that the execution of the Release deed in favour of the first defendant was without his knowledge and the defendant was seeking to assert possession over the Hithalu that was inherited by the plaintiff, which has been under his possession and enjoyment, throughout. The first defendant had filed a suit for permanent injunction restraining the second defendant from interfering with the Hithalu and putting up any construction thereon, in Civil Suit O.S. No. 3850 of 1987 on the file of the Additional City Civil Judge, Bangalore and had obtained an order of temporary injunction and the said suit was pending as on the date of filing the present suit by the plaintiff. The defendant had not impleaded the plaintiff in her suit and therefore, the plaintiff had filed an application to implead himself and that the suit was pending as on the date of the suit filed by the plaintiff. The plaintiff further claimed that the defendant 1 had no right over the suit property and the defendant 1 claiming a large portion of the suit property to an extent of 25' x 53' on the basis of a Release Deed is not tenable and therefore, the present suit.

(2.) The suit was resisted by the defendants who had filed their written statements. Defendant 1 had denied the plaint allegations and claimed to be the actual owner of the suit property. It was also contended that the measurements indicated by the plaintiff were misleading and confusing. The defendant was in fact the absolute owner of a substantial portion of the suit property and denied that the plaintiff had any cause of action in respect of the suit property.

(3.) On the basis of those pleadings, the Court below had framed the following issues.--