MALKAJEPPA MADIVALAPPA BULLA Vs. SECRETARY OF STATE

JUDGEMENT

(1.) The plaintiff herein sued to be declared owner of a piece of ground in Mouje Gadag measuring eight feet long from North to South and thirty-three feet broad from East to West, immediately to the south of the present building of the plaintiff and also for an injunction to restrain the defendant, the Secretary of State, from interfering with the plaintiff s enjoyment of the ground or extending his building thereover. AL though the plaint does not, in so many words, pray to set aside the Deputy Collector s order hereinafter set out still para. 2 which says inter alia that " this order is erroneous and illegal Government had no title whatever to the plot " obviously involves such a consequence. It appears that the plaintiff purchased first a plot of land from the Basel Mission which is marked on the plan (Exhibit 18) measuring as stated in the deed (Exhibit 10) fifty-six feet East and West to the North, twenty-nine feet East and West to the South, and fifty-seven feet on the east side and fifty-four feet on the west side, the Southern boundary being given as Government Betta land. Subsequently! the plaintiff bought another piece of land to the North of the former thirty-five feet East to West and eight feet North to South, and the plaintiff has built upon the said pieces of ground.

(2.) The learned Judge in the Court below has found, and we have had no argument addressed to us to the contrary, that the plaintiff purchased and is entitled to sixty-two feet from North to South, but that, as a matter of fact, he has up to the present M time built over only sixty feet; in other words that he is entitled to build over a space of two feet further to the South than what he has already built over.

(3.) On the 27th December 1906, the District Deputy Collector passed the order (Exhibit 24), the effect of which was to restrain the plaintiff from building over the said two feet. It was in the following terms:- I personally inspected the ground in dispute and also took measurements. It is not now in the condition in which it was when it was purchased. The building of that time is removed and the present one is newly built. In the deed of sale under which this ground was purchased, the boundaries of the ground purchased have been mentioned. It is mentioned therein that on the North there is the backyard of Gowda, Recently out of that backyard a portion adjoining this ground in dispute was got by Malkajappa by way of purchase. To the East thereof ho now holds what has now come to the share of Dyamangowda. The old wall built on the boundary of the buck-yard of his share exists now. That wall alone is the index to determine the ground purchased. In the deed of sale, the measurements of four sides have been mentioned. From the corner between the North and the East, (that is), from the North-East corner of the above wall, the measurement North to South from the corner to the East along the whole length of the building is fifty-seven feet. Malkajappa says that the measurement of the building should be taken in a straight line and that thus the ground up to the point at which it measures fifty-seven feet to the South belongs to him. What he says is not correct. In the deed of sale, it is mentioned that towards the East the measurement of the building including an open ground and trees is fifty-seven feet. It is also mentioned that the measurement East to West is fifty-six feet towards the North. These two measurements are found to be correct if they are taken from the abovementioned North East corner. What Malkajappa says is wrong. The building now existing and the measurement in the sale-deed tally (a difference of one foot or half afoot is not of any importance. Now, after the dispute arose, the Circle- Inspector took measurements according to scale. They might not have been taken in that manner when they were entered in the deed of sale formerly); From the existing condition it does not appear that the Government land is included in the building now built by Malkajappa. Therefore it does not appear necessary to take further steps in this matter. But now the building should not be allowed to be extended on the South over a larger space than it occupies at present. It should be allowed to remain in its present dimensions. Besides informing Malkajappa in writing of the above decision, steps should be taken to supply a Dakhla (a copy of it) to the village also.