K. VISHWANATHAN AND OTHERS Vs. ANUSUYAMMA

JUDGEMENT

(1.) The parties are referred to by their rank before the trial court for the sake of convenience. It was the plaintiff's case that she was the absolute owner of a residential site bearing No. 20 at Mathikere, Bangalore, measuring about 30 feet -East to west and 45 feet -north to south, with the following boundaries: East by: Property No. 19 West by: Property of Munihanumaiah North by: Road South by: Property No. 16 The plaintiff claimed to have purchased the property from Smt. Leela Bai, under a registered sale deed dated 31.1.1973. The plaintiff further claimed that her sister had purchased the adjoining site to the east of her property under a sale deed dated 20 -11 -1972 also from the plaintiff's vendor, Leela Bai. It is the plaintiff's further case that Leela Bai, her vendor, had purchased the two sites in the year 1959, from Shivappa yane Narayan Rao and K. Adappa. She had produced the encumbrance certificates in respect of the suit property from the year 1958 to 1987. It was stated that towards the south of the suit property there is site No. 16, attention is drawn to this sale deed pertaining to the said property indicating the plaintiff's property as the northern boundary of that property. She has similarly drawn attention to the boundaries of site No. 17 and 18, purchased by one Mukundraj in the year 1959 from Shivappa yane narayan Rao and Adappa, indicating Leela bai, the plaintiff's vendor, as the owner of the property on the western boundary, site No. 9. The complaint of the plaintiff was that the suit property was a vacant site as on the date of suit. The defendant, it is said, had suddenly brought men and material on the property on 8 -1 -1988 and had commenced earth work, apparently to lay foundation for construction. The plaintiff was therefore constrained to file a civil suit for injunction in case No. OS 493/1988, on the file of the City Civil Court, Bangalore. Though there was an order of temporary injunction granted in favour of the plaintiff, it is the plaintiffs grievance that the defendant had relentlessly carried on the construction even during the pendency of the suit, with the active connivance of the local police and had completed the construction. Her application for disobedience of the injunction order was not considered. As that suit for the relief of bare injunction was no longer efficacious, the had filed the suit out of which this appeal arises, seeking declaration of title, possession and mandatory injunction.

(2.) THE defendant had contested the suit. The defendant had, in turn, claimed that he was the owner of site No. 20 which he had purchased under a sale deed dated 8.2.1977. He had no claim over the plaintiffs site bearing No. 17. The defendant claimed to have constructed a small dwelling unit on the back portion of the site, in the year 1979 and had been living there since then. He had thereafter obtained sanction of plan for a building on the front portion of the site, in the year 1987 and had put up further construction. The erstwhile Bangalore City Corporation had issued Khata and has been collecting taxes in respect of the said property. According to the defendant the claim of the plaintiff is in respect of a site, two sites away from his property to the east. It is only in the year 1988 that the defendant has sought to make a claim in respect of the defendant's property. That the suit was barred by limitation.

(3.) SHRI Jayakumar Patil, Senior Advocate, appearing for the counsel for the appellant, contends that the trial court has been misled by the sale deeds produced by the plaintiff, namely, Exhibits P -2 to P -5, P -9, P -22, P -23 and P -26. It is pointed out these are all documents indicating particular boundaries, inconsistent with boundaries of the site purchased by the defendant, the same were all subsequent to Ex. P -29, which is of the year 1958, pertaining to site No. 17. It is pointed out that the documents produced by the defendant consistently showed the flow of title, correctness of boundaries and the formation of sites. On the other hand, it is pointed out that after sites were formed in original land bearing survey No. 41/2 measuring 33 guntas by one Kurubara Kempaiah, he had sold the following sites No. 2 and 13 to 20, to one Rajappa under a Sale deed dated 13.2.1958 (Ex. D -13) and sites bearing nos. 1 and 5 to 12, to one Munishyamappa, son of Muninarasimaiah, under a sale deed dated 13 -2 -1958 (Ex. D -10), those two purchasers had sold all the sites, except site No. 17, to Shivappa yane Narayana Rao and Adappa under two sale deeds, dated 6.4.1959 (Ex. D -11) and 11.5.1959 (Ex. P -26), respectively. On the other hand, site No. 17 had been sold by Rajappa to Munishyamappa, son of Narayanappa, under a sale deed dated 5.9.1958 (Ex. P -29) and the same was in turn sold to Ramakrishna under a sale deed dated 21.5.1973 (Ex. D -1), from whom the defendant had purchased the same under a sale deed dated 8.2.1979 (Ex -D.2). The above transactions, as well as the subsequent transactions, including the transactions under which the plaintiff claims the property, are depicted in a flow chart as under: It is highlighted by Shri Patil, that the mischief is clearly seen in Shivappa yane Narayan Rao and Adappa, who had a free hand in giving a description to the sites conveyed under the sale deeds executed by them in respect of the seven sites namely, 13 to 16 and 18 to 20, in the manner they chose. In that, they have described the site numbers inconsistent with the original layout formation. It is also evident that there is alienation of an additional site No. 17 in favour of one Mukundraj, dated 10 -8 -1959 (Ex. P -9), this is inexplicable. As seen from Ex. D -11, site No. 17 was clearly excluded from the sale of sites in favour of Shivappa yane Narayana Rao and Adappa. It is pointed out that the error in the judgment of the trial court is on account of a mechanical application of the boundaries depicted in the sale deeds produced by the plaintiff. And the above serious deviation was completely overlooked. Incidentally, the local authority having renumbered the same as 15/4, does not cure the defect of want of title of the vendor's of Mukundraj in respect of site No. 17. It is further pointed out by Shri Patil, that the graphic depiction of the block of sites as shown by the defendant is consistent with the boundaries shown in all the sale deeds pertaining to site No. 17 purchased by the defendant. In that, Munihanumaiah's property has consistently remained the western boundary. There by indicating that the site nos. 17 to 20 ran from west to east and not the other way.