1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 5 TH DAY OF SEPTEMBER 2012 BEFORE THE HON BLE MR. JUSTICE MOHAN SHANTANAGOUDAR REGULAR SECOND APPEAL No.1751/2006 BETWEEN: Sri H. Isoob Sab S/o Ibrahim Sab Aged about 54 years R/o Ankaravalli Soraba Taluk Shimoga District Pin : 577 429...Appellant (By Sri R. Gopal, Adv.,) AND : 1. Sri Kereswamy Gowda S/o Channabasappa Gowda Aged about 74 years 2. Basappa Gowda S/o Channabasappa Gowda Age Major Both are R/o Ankaravalli Village, Soraba Taluk Shimoga District Pin : 577429...Respondents
2 (By Sri M. Ravindranath for Dayanand S. Patil, Advs.,) This RSA is filed under Section 100 of CPC., against the judgment and decree dated 27.2.2006 passed in R.A.No.241/2004 on the file of the District & Session Court, FTC-II at Shimoga, dismissing the Appeal and confirming the judgment and decree dated 31.10.1992 passed in O.S.No.344/1989 on the file of the Munisff and JMFC., Sorab. This RSA coming on for hearing this day, the Court delivered the following J U D G M E N T This is the plaintiff s Second Appeal against the concurrent findings of fact arrived at both the Courts below. 2. Suit came to be filed by the appellant herein for declaration that he is the owner of the property bearing Sy.No.11 measuring 3 acres 6 guntas situated at Ankaravalli village, Soraba taluk. He has also sought for a direction to the defendants to execute the rectification deed in respect of the sale deed dated 29.8.1979 by rectifying the mistake found in the eastern and western boundaries. The consequential relief of possession is also sought for.
3 The case of the plaintiff is that he has purchased the suit property on 29.8.1979 through registered sale deed Ex.P1 and since then, he is in possession of the property; somewhere in the year 1987, he was dispossessed; thereafter he came to know that the properties sold in his favour have different boundaries and hence filed a suit for declaration and for possession as aforementioned. The case of the defendants is that erstwhile Sy.No.11 (present Sy.No.10) was the ancestral property of the defendants; that in the year 1937 since the land revenue was not paid, the said land vested in the State Government; inspite of vesting in the Government, the defendants continued with the possession of the property and started enjoying the property as owners thereof; all the villagers including the plaintiff were of the impression that the defendants are the owners of the said property; since the revenue officials did not dispossess the defendants from the then Sy.No.11, the defendants continued in possession
4 of the property till the sale deed came to be executed in favour of the plaintiff on 29.8.1979; the plaintiff came forward to purchase the said property voluntarily; the property was sold in favour of the plaintiff for a meager sum of Rs.1,000/- though the property sold in favour of the plaintiff measures more than 4 acres; at the time of the sale, the defendants explained to the plaintiff that the property is vested in the State Government and that the plaintiff has purchased the property at his risk knowing full well about vesting of the property in the Government; only after rectifying the mistake found in the village map relating to interchange of Sy.Nos.10 and 11 in the year 1986-87, the suit came to be filed taking advantage of the subsequent correction made in the village map. With these and other grounds, the defendants prayed for dismissal of the suit.
5 3. As aforementioned, the trial Court after giving opportunity to both the parties to lead evidence and after hearing both the parties, dismissed the suit holding that the plaintiff is not the owner of the suit property, but he has purchased the property bearing the then Sy.No.11 which actually measured 4 acres 20 guntas and which had vested in the State Government. The Judgment and Decree of dismissal of suit passed by the trial Court is confirmed by the first appellate Court. 4. While admitting the appeal, this Court has framed the following questions of law: 1. Whether the Courts below have committed perversity in analysing the evidence and coming to the conclusion that the properties sold under Ex.P1 is Sy.No.10 and not Sy.No.11 and as to whether such finding is contrary to the recitals in the document itself?
6 2. Whether the Lower Appellate Court committed an error in law in coming to the conclusion that the relief prayed for by the plaintiff is barred by time? 5. Sri R.Gopal, learned advocate for the appellant submits that the defendants were admittedly not the owners of the property bearing the then Sy.No.11 when sale deed Ex.P1 dated 29.8.1979 was executed; the said survey number was forfeited to the State Government; since the said survey number was not standing in the name of the defendants, it was not open for the defendants to sell the property in favour of the plaintiff; admittedly, the defendants were the owners of the erstwhile Sy.No.10 (subsequently altered as Sy.No.11) and the names of the defendants were standing in the revenue records in respect of the then Sy.No.10 and the said property is actually sold in favour of the plaintiff vide Ex.P1; since the intention of the parties was to sell and purchase the new Sy.No.11 and
7 as the recitals in the sale deed are unambiguous, the Courts below are not justified in dismissing the suit. The measurement of the property sold is mentioned as 3 acres 6 guntas whereas the property having the then Sy.No.11 is measuring 4 acres 20 guntas; since an area of 3 acres 6 guntas was sold under Ex.P1, it is clear that the defendants have actually sold Sy.No.10; Kandayam paid mentioned in the sale deed tallies with the kandayam attached to the present Sy.No.11. Since the possession was handed over under the sale deed Ex.P1, it is clear that the possession of the property of the then Sy.No.10 (present Sy.No.11) is handed over in favour of the plaintiff by the defendants as the defendants are owners of the said property; except the eastern and western boundaries, all other boundaries tally with the boundaries of Sy.No.11 which is sold and does not tally with the boundaries of Sy.No.10. He further submits that both the Courts below are not justified in dismissing
8 the suit by drawing wrong presumptions from the proved facts. Sri Ravindranath, learned advocate appearing on behalf of the respondents argues in support of the judgment of the Courts below. 6. The topography and situation of Sy.Nos.10 and 11 of Ankaravalli village are found in the village map Ex.D2. It is not in dispute that both the survey numbers are bifurcated by a road which runs from north to south. The land lying to the east of the road was bearing Sy.No.11 till 1986-87 and the western portion was bearing Sy.No.10 till 1986-87. It is not in dispute that the then Sy.No.11 was measuring about 4 acres 20 guntas, whereas the then Sy.No.10 was measuring 3 acres 6 guntas. It is also not in dispute that the survey numbers were ordered to be interchanged in the year 1986 as is clear from Ex.D2 itself, which means after 1986, the erstwhile Sy.No.11 was
9 assigned Sy.No.10, whereas erstwhile Sy.No.10 was assigned new number i.e. Sy.No.11. This interchange of survey numbers seems to have created confusion and such confusion is taken advantage of by the plaintiff for filing this suit. 7. It is also not in dispute that both these lands were originally belonging to the family of the defendants. The sale deed Ex.P1 dated 29.8.1979 by which the defendants have sold the property bearing the then Sy.No.11 in favour of the plaintiff is not disputed. The then Sy.No.11 was shown to situate at the east of Chandraguthi-Soraba road, whereas the then Sy.No.10 was shown to situate at the west of Chandraguthi-Soraba road in the village map as on the date of execution of the sale deed Ex.P1.
10 8. The property sold in the sale deed Ex.P1 is shown to situate within the following boundaries: East : Gunjanurugadi West : PWD road North: Road leading to Gunjanuru South: Sy.No.18. Whereas in the suit schedule, the boundaries are described as under: East : Road West: Sy.No.18 North: Sy.No.9 South: Sy.No.18 9. From the above, it is clear that East, West and North boundaries i.e. boundaries on three sides differ from each other.
11 10. As aforementioned in the sale deed, the then Sy.No.11 is shown to have sold. As a matter of fact, as on that date, the village map also revealed the said property as Sy.No.11. The boundaries of the then Sy.No.11 fully tally with the boundaries found in the sale deed. Hence there cannot be any discrepancy or there cannot be any confusion in that regard. What was sold under Ex.P1 was the then Sy.No.11 having the aforementioned boundaries. The contention of the appellant is that the intention of the parties was to have sale transaction in respect of new Sy.No.11 (Old No.10) and not old Sy.No11. Such a contention cannot be accepted. As aforementioned, as on the date of the sale deed, the then Sy.No.11 had vested in the State Government. It is not open for the plaintiff to contend taking advantage of the subsequent rectification of the survey number in the year 1986-87 that what is actually sold is a new Sy.No.11 and not an old Sy.No.11. Since the document in question Ex.P1 is clear and
12 unambiguous, that needs no further interpretation. As aforementioned, survey number (i.e. old No.11) as well as boundaries of the said property tally. The only discrepancy appears with regard to the area sold. In Ex.P1, the area sold is mentioned as 3 acres 6 guntas whereas actually the then Sy.No.11 was measuring 4 acres 20 guntas. In this context, Sri Gopal, learned advocate for the appellant submits that the property which is lying on the western portion i.e. the then Sy.No.10 is actually sold in favour of the plaintiff. Such a contention cannot be accepted in view of the clear admission of the plaintiff before the trial Court. The plaintiff has admitted during his evidence that after getting the sale deed executed in his favour, he got the land purchased by him measured and it was found that the said land was measuring 4 acres 22 guntas. Thus it is clear that what was sold in favour of the plaintiff was the then Sy.No.11 having the aforementioned boundaries and the area
13 actually sold in favour of the plaintiff was measuring 4 acres 20 guntas though a lesser extent is shown in the sale deed. 11. In this context, the first appellate Court is justified in concluding that in the case of any discrepancy with regard to the area contained in the sale deed, the boundaries mentioned in the sale deed prevails. The discrepancy, if any with regard to the area sold is fully answered by the correct boundaries mentioned in the sale deed. Since the boundaries prevail over the disputed area, the Courts below are justified in holding that what was sold is the then Sy.No.11 and not the then Sy.No.10. 12. It is no doubt true that the defendants were not the owners of the then Sy.No.11 as on the date of the sale deed. It is also not in dispute that the property has vested with the State Government for non-payment of land revenue. According to the defendants, they continued in possession of the property as if they are the owners thereof
14 and they were not dispossessed by revenue officials and disclosing the very fact, the property was sold in favour of the plaintiff for a meager sum of Rs.1,000/-. The sale deed was executed on 29.8.1979. Nobody would have sold an area of 4 acres 20 guntas for a meager sum of Rs.1,000/- if really the said property was owned by the seller. In this context, the first appellate Court is justified in observing that the defendants in order to earn illegally must have sold the property which is already vested with the State Government for a meager sum of Rs.1,000/-. Therefore the sale deed executed in favour of the plaintiff in respect of the then Sy.No.11 which is already vested with the State Government will not convey any title in favour of the plaintiff and consequently, both the Courts below are justified in directing the defendants to repay Rs.1,000/- received by them with interest to the plaintiff. 13. In view of the above, this Court is of the firm conclusion that both the Courts below are justified in
15 dismissing the suit by concluding that the property sold under Ex.P1 was the then Sy.No.11 and not the then Sy.No.10. 14. The trial Court was not justified in observing that the suit is barred by time. Since the plaintiff has sought for declaration and as it was open for him to file suit for declaration within 12 years, the trial Court was not justified in concluding that the suit is barred by time. The prayer relating to rectification of the boundaries in the sale deed is a smaller relief and the same merges with the larger relief of declaration. 15. In the matter on hand, this Court, as aforementioned has concluded that the plaintiff is not the owner of the suit schedule property which was the then Sy No.10 and now it is assigned a new number Sy.No.11. The questions of law raised by this Court at the time of admission are answered accordingly. Since the Judgment
16 and Decree passed by the trial Court as well as the first Appellate Court are just and proper under the facts and circumstances of the case, no interference is called for. Appeal fails and the same stands dismissed. However, the defendants were directed to pay a sum of Rs.1,000/- (Rupees one thousand only) with interest at 18% per annum to the plaintiff as directed by the Lower Appellate Court. Sd/- JUDGE Gss/nk-