R1IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE15H DAY OF JANUARY, 2021 PRESENT THE HON'BLE MRS. JUSTICE S.SUJATHA AND THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM RFA.NO.1225 OF2011DEC/INJ) BETWEEN:
1. . DR.JAYASHEELA VENU AGED ABOUT39YEARS D/O SRI. K. P. PILLAI RESIDING AT NO.32 VITTAL MALLYA ROAD BANGALORE-560 001 2 . DR. JAYAMALA PILLAI AGED ABOUT35YEARS W/O DR. PREM SHEKAR RESIDING AT NO.32 VITTAL MALLYA ROAD BANGALORE-560 001 REP. BY GPA HOLDER DR. JAYASHEELA VENU APPELLANT NO.1 ....APPELLANTS (BY SRI. D.L.N RAO, SENIOR ADVOCATE FOR SRI. R.V.S NAIK, ADVOCATE) 2 AND:
1. . A.J.F.D'SOUZA AGED ABOUT76YEARS S/O LATE P.G.D'SOUZA R/AT NO.22/10 VITTAL MALLYA ROAD BANGALORE - 560 001 (DIED ON63.2010) REPPRESENTED BY LRS1(A) MR. KENNETH D'SOUZA S/O LATE MR. A.J.F.D'SOUZA AGED ABOUT53YEARS NO.22/10 VITTAL MALLYA ROAD BANGALORE - 560 001 1.(B) MR. SUNIL DOMINIC JOSEPH D'SOUZA S/O LATE MR. A.J.F.D'SOUZA AGED ABOUT46YEARS NO.22/10 VITTAL MALLYA ROAD BANGALORE - 560 001 1.(C) MR. DEEPAK D'SOUZA S/O LATE MR. A.J.F.D'SOUZA AGED ABOUT42YEARS NO.22/10 VITTAL MALLYA ROAD BANGALORE - 560 001 1.(D) MRS. AMITA BRAGANZA D/O LATE MR. A.J.F.D'SOUZA AGED ABOUT50YEARS3NO.22/10 VITTAL MALLYA ROAD BANGALORE - 560 001 1.(E) MRS. BINA ARANHA D/O LATE MR. A.J.F.D'SOUZA AGED ABOUT49YEARS NO.22/10 VITTAL MALLYA ROAD BANGALORE - 560 001 1.(F) MRS. PRIYA MATHIAS D/O LATE MR. A.J.F.D'SOUZA AGED ABOUT45YEARS NO.22/10 VITTAL MALLYA ROAD BANGALORE - 560 001 1.(G) MRS. ASHA GONSALVES D/O LATE MR. A.J.F.D'SOUZA AGED ABOUT43YEARS NO.22/10 VITTAL MALLYA ROAD BANGALORE - 560 001 2 . THE COMMISSIONER BANGALORE MAHANAGARA PALIKE N.R.SQUARE BANGALORE - 560 001 3. ASSISTANT EXECUTIVE ENGINEER & DELEGATED AUTHORITY OF THE COMISSIONER BANGALORE MAHANAGARA PALIKE SHANTINAGAR DIVISION4MAYO HALL BANGALORE - 560 001 ….RESPONDENTS (BY SRI. Y.K. NARAYANA SHARMA, ADVOCATE FOR R1(A-E), R1(F) AND (G)-SERVED, SRI. BATHE GOWDA .K.V, ADVOCATE FOR SRI. V. SREENIDHI FOR R2 & R3) THIS RFA IS FILED UNDER
ORDERXLI, RULE-1, READ WITH SECTION96OF CPC, AGAINST THE
JUDGMENTAND DECREE DATED:25.02.2011 PASSED IN O.S.448/2001 ON THE FILE OF THE XXVII-ADDITIONAL CITY CIVIL JUDGE, BANGALORE, DISMISSING THE SUIT FOR THE DECLARATION AND PERMANENT INJUNCTION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENTON0611.2020, COMING ON FOR PRONOUNCEMENT OF
JUDGMENTTHIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:
5.
JUDGMENTThe captioned appeal is filed by the appellants-plaintiffs challenging the judgment and decree dated 25.02.2011 passed in O.S.No.448/2001 by the XXVII Additional City Civil Judge, Bengaluru.
2. For the sake of convenience, the parties are referred to as per their ranks before the Court below.
3. The facts leading to the case are as under: The subject-matter of the suit is property bearing No.22/9 situated at Oorgaum road. In the said site, the dispute is in respect of portion measuring 10 ft. North-South, 98 ft. East-West, which is described under the Schedule 'B' and is shown as BCDE portion in the plaint sketch. One Mrs.Rose Mary D'Souza was the absolute owner of the property bearing Old No.31 corresponding New No.22 which is situated at Grant Road, Bengaluru. After purchase, the original owner Mrs. Rose Mary D'souza, who is none other 6 than the mother of the original defendant No.1 secured a layout plan from the competent authority which was approved by the Bengaluru City Corporation by order dated 31.01.1962 for formation of building sites which included the residential site No.22/9, which is the subject matter of the suit. Later, she conveyed the above said residential site to her son and her daughter-in-law namely Anthony Alexis D'souza and Dorothy Sabina D'Souza, under a registered sale deed dated 15.10.1964. Subsequently, the above said vendees sold the site bearing No.22/9 to the plaintiffs who were minors at that time under registered sale deed dated 27.05.1975 and possession was also delivered. The plaintiffs' contention is that the vendors had sold site No.22/9 measuring 87 ft. North to South and 98 ft. East to West and Survey No.22/9 is bounded on the North by 20 ft road, on the South by site No.22/8 on the East by Road and on the West by Site No.22/10. It is contended that both the roads mentioned above as boundaries for the site No.22/9 are 7 private roads provided for benefit and convenience of all occupants of the sites. At Para 10 of the plaint, it is specifically stated that 20 ft. width road is an internal approach road leading into site No.22/10 and at the same time, it also forms the Northern boundary for the suit schedule site bearing No.22/9. The plaintiffs have specifically contended that while purchasing the property from Anthony Alexis and his wife, however a mistake had crept in, wherein the Northern boundary for site No.22/9 purchased by the plaintiffs is described as "neighbouring plot" instead of describing it as 20 ft road. However, in their vendor's sale deed executed by the erstwhile owner namely Mrs. Rose Mary D'souza, the northern boundary is correctly described as a 20 feet road. The plaintiffs' contention is that the North-South measurement of the site is 87 ft. but however in the sale deed it is wrongly shown as 77 ft. towards Northern side. It is also contended that the City Survey Authorities who are competent 8 authorities have carried out a survey and survey sketch is prepared by the Department of the Government. Pursuant to survey, site No.22/9 is mentioned as property No.327 in the City Survey records and the so 20 ft. road on the Northern side abutting site No.22/9 is mentioned as property No.328. As per the survey records, the North-South measurement of the said site is shown as 89.05 ft.(27.15 mtrs). In the survey sketch, it is also found that the width of the road abutting site No.22/9 measures 6.10 meters and if converted in terms of feet the same would measure 20 ft. Basing their claim on the survey records, the plaintiffs are asserting right and title over site bearing No.22/9 measuring North-South 87 ft and East- west 98 feet. The plaintiffs contention is that since the date of purchase, the plaintiffs have been enjoying site No.22/9 as its absolute owners. It is also contended that plaintiffs are in uninterrupted possession and enjoyment over the disputed portion. Immediately after the purchase, the plaintiffs 9 enclosed the Northern extremity of their site No.22/9 abutting the road on the North with barbed wire fence. At para 15 of the plaint, the plaintiffs have specifically contended that the defendant No.1 who has been hostile to the plaintiffs' family tried to remove the barbed wire fence and this compelled the plaintiffs' to file a suit in O.S.6686/1992. On receipt of summons, the first defendant tendered appearance and contested the proceedings by filing written statement. Plaintiffs have contended that in the written statement, the first defendant has in unequivocal terms admitted the road as the northern boundary of site bearing No.22/9. But however, falsely contended that the plaintiffs are entitled to the site as per the measurement shown in the plaintiffs' sale deed. Insofar as disputed portion measuring 10 ft North-South and 98 ft East-West, the first defendant has contended that the said site was preserved for the purpose of 10 laying sewerage, underground electrical cables and for formation of rain water drain. The plaintiffs have further contended that the Court having examined the rival contentions granted temporary injunction on 31.5.1993 in O.S.No.6686/1992 restraining the first defendant from interfering with peaceful possession and enjoyment of plaintiffs over the suit schedule property. At paragraph 18, the plaintiffs have further contended that there was an apprehension that the first defendant may encroach over the schedule property and as such to safeguard their rights have removed the barbed wire fence and have constructed a compound wall. It is also pleaded in para 19 of the plaint that first defendant preferred an appeal questioning the grant of temporary injunction in MFA.No.1755/1993 and this Court directed both the parties to maintain status- quo. It is contended at para 20 of the plaint that pursuant to the status-quo order passed by this Court in 11 MFA.1755/1993, the first defendant did not raise any dispute and plaintiffs continued to be in peaceful possession. The plaintiffs have further pleaded at Para 21 of the plaint that defendant No.3 issued a show cause notice on 4.4.1998 calling upon the plaintiffs to remove the compound wall. The plaintiffs have pleaded that this notice was issued on account of dismissal of the suit in O.S.NO.6686/1992 for non-prosecution. The plaintiffs questioned the show-cause notice dated 4.4.1998 in W.P.No.13587/1998. At para 24, the plaintiffs have specifically pleaded that this Court has allowed the aforesaid writ petition by order dated 09.6.1998 and the show-cause notice issued by the third defendant was quashed. The plaintiffs have also pleaded at Para 25 of the plaint that the Miscellaneous Application filed in No.10077/1998 seeking restoration of the suit in O.S.No.6686/1992 came to be allowed by the Court below. This order was challenged by defendant No.1 in CRP No.1600/1999. It is also stated at para 27 of the plaint that this Court allowed the said 12 revision petition, however, an observation was made by this Court that the order passed in revision petition would not come in the way of the plaintiffs to maintain independent suit to protect their rights in respect of 'B' schedule property. The plaintiffs have specifically contended at para 28 of the plaint that third defendant again issued notice on 1.6.2000 stating that the plaintiffs had encroached the road unauthorisedly deviating from the sanctioned plan and therefore, a provisional order under the provisions of Section 321(1) of the Karnataka Municipal Corporations Act (for short 'KMC Act') was passed calling upon the plaintiffs to show cause within seven days as to why the provisional order should not be confirmed. It is also specifically pleaded that inspite of detailed objections filed by the plaintiffs, the third defendant by order dated 14.06.2000 confirmed the provisional order and ordered for demolition of the compound wall. The plaintiffs questioned the said order in W.P.21560/2000. At para 32 of the plaint, the plaintiffs have specifically contended 13 that after hearing both sides, this Court disposed of the writ petition on 24.6.2000 keeping in abeyance the operation of the order dated 14.06.2000 passed by the third defendant. At para 33, the plaintiffs have specifically contended that they challenged the order dated 14.6.2000 confirming the provisional order before the Standing Committee (Appeals), B.C.C. It is stated that during the pendency of the appeal before the Standing Committee, the defendants 2 and 3 illegally and high handedly and in gross violation and contempt of the orders passed by this Court demolished the compound wall on 16.11.2000. At Para 38, the plaintiffs have contended that the Standing Committee for appeals at its meeting held on 23.11.2000 after securing local inspection and after securing relevant records held that the suit schedule property, which includes ‘B’ schedule property, is in possession of the plaintiffs and there was a compound wall enclosing the said property. It also held that the road on the northern side measuring 20ft. 14 has been in existence and that the demolition of the compound wall carried out on 16.11.2000 is in violation of the High Court orders. Being aggrieved by the high handedness of defendant No.2 and apprehending threat of dispossession, the present plaintiffs filed suit for declaration to declare that plaintiffs are owners of schedule 'B' property and accordingly grant consequential injunction restraining the defendants from interfering with plaintiffs' peaceful possession and enjoyment of 'B' schedule property. They also sought for mandatory injunction to direct the defendants to build and restore the compound wall at their expenses. The plaintiffs also sought for costs of the suit. The first defendant, on receipt of summons, contested the proceedings by filing the written statement. The first defendant stoutly denied the averments made in the plaint. The sum and substance of the written statement submitted by the first defendant is that though he has not disputed the fact 15 of purchase of the site bearing No.22/9 by the plaintiffs, however, the North-South measurement is seriously disputed. The first defendant has specifically contended that the site bearing No.22/9 measures 77 ft. towards north-south and not 87 feet as claimed by the plaintiffs. The width of the road on northern side of Site No.22/9 is 20 ft and not as alleged in the plaint. He has also specifically contended that the North- South measurement of common boundary of site Nos.22/9 and 22/10 is 77 ft. and the said measurement is reflected in all concerned documents. At Para 6, the first defendant has specifically contended that the survey sketch relied on by the plaintiffs do not reflect the correct position in respect of the sites and the roads in the layout. At para 7 he has contended that there was no enquiry by the authorities of survey department while carrying out the survey and the survey sketch prepared by the authorities is not in accordance with law. At Para 9, it is specifically disputed that the plaintiffs have enclosed the northern extremity of their site No.22/9 16 with barbed wire fence and continued to be in uninterrupted possession of site No.22/9 as described in ‘A’ schedule. At para 11 of the written statement, the fist defendant has admitted the filing of the bare suit for injunction in O.S.6686/1992 and also passing of the interim order by the Court below. However, the first defendant has specifically pleaded that taking advantage of the interim order and despite of his objections, the plaintiffs have illegally put up a barbed wire initially and subsequently they have constructed a compound wall. At Para 19, it is contended that the plaintiffs cannot take benefit of the order passed by the Standing Committee as the same has not attained finality in view of challenge to the same in W.P.36011/2011. At Para 20, it is contended that the suit is barred by limitation and that plaintiffs are not in lawful possession of 'B' Schedule property. The first defendant has also alleged at para 20 that the plaintiffs have misused the Court orders and are virtually in illegal possession. A specific contention is also taken that the 17 suit is not properly valued and the Court fee paid is insufficient. The first defendant has also seriously disputed the market value of the suit schedule property as stated in the plaint and that as on the date of the filing of suit, it is Rs.30,22,000/- as per the Government notified price. The first defendant has further disputed the sketch produced along with the plaint and has seriously disputed the sketch relied on by the plaintiffs which is prepared by the authorities of the city survey. Further, at para 24, it is contended that the sketch prepared by the city survey officials is incorrect and the measurements made therein, the position of the properties and descriptions are all incorrect and has accordingly, sought for dismissal of the suit. The second and third defendants have filed the written statement and denied the entire averments made in the plaint. They have specifically contended that the plaintiffs cannot assert right and title in excess of what is stated in the sale deed. They have contended that since the compound wall is 18 constructed beyond the property owned by the plaintiffs, they have powers to take appropriate action. It is also contended that all roads in the locality or layout stands transferred to the administrative jurisdiction and maintenance of defendants 2 and 3 along with the layout. As such, the defendants have jurisdiction and authority to initiate action under the provisions of the Karnataka Municipal Corporations Act. Based on these set of contentions, defendants 2 and 3 have contended that the provisional order passed by them is in accordance with law. At para 28 of the written statement the defendants 2 and 3 have specifically contended that the present suit is not maintainable since the plaintiffs are claiming right and title in respect of part of the property not belonging to them and the claim made is in excess of the extent recited in their title deed as per Ex.P4 relating to property bearing No.22/9 and the disputed extent of 10 ft is being a part of the road on the 19 northern side. On these grounds, they sought for dismissal of the suit. The trial Court has formulated the following issues:
"1. Whether the plaintiffs prove their title to plaint B schedule Property as shown by the letter BCDE, in the plaint sketch?.
2. Whether the plaintiffs prove their right, title and interest to the compound wall shown between points C and D in the plaint sketch?.
3. Whether the plaintiffs prove their lawful possession and enjoyment of plaint B schedule property along with compound wall shown between points C and D in the plaint sketch?.
4. Whether the plaintiffs prove that the defendants illegally demolished C and D compound wall?.
5. Whether the first defendant proves that the width of the road on the north of suit schedule site No.22/9 is thirty feet and not twenty feet, as averred?.
6. Whether the first defendant proves that the disputed area measuring ten feet X ninety eight feet in the suit schedule site No.22/9 is a common area, meant for sewerage and for laying underground electrical cables and for the formation of rain water drain, etc. as averred?.
7. Whether the second and the third defendants prove that the disputed area measuring ten feet X ninety five feet is part of the road on the north of the suit schedule site No.22/9?. 20 8. Whether the defendants prove that the road on the north of the suit schedule site No.22/9 is a public road?.
9. Whether the plaintiffs are entitled to declaratory decree as sought for?.
10. Whether the plaintiffs are entitled to injunctive reliefs as sought for ?.
11. What decree/order?. Additional issues framed on 1.10.2002 1. Whether the first defendant proves that the survey records and the survey sketch showing the width of the road on the north of the suit site No.22/9 as twenty feet and the north-south measurement of the suit site No.22/9 as eighty seven feet and showing the area of the suit site No.22/9 on the basis of the said measurements are not correct?.
2. Whether the first defendant proves that the plaintiffs are not in lawful possession of the disputed area measuring ten feet X ninety eight feet?.
3. Whether the construction of the compound wall by the plaintiffs enclosing the suit site No.22/9 is unauthorized as contended by the second and the third defendants and whether they are estopped by conduct and record from raising such a contention?.
4. Whether the defendants prove that the suit is barred by limitation?.
5. Whether the suit is properly valued and the court fee paid is sufficient?. 21 Additional issue No.5 recasted, on 23.5.2005, as under: Whether the first defendant proves that the plaintiffs have not properly valued the suit and that the court fee paid is insufficient?.
6. Whether the plaintiffs prove that they have perfected their title by adverse possession in respect of the disputed area measuring ten feet X ninety eight feet on the north of the suit schedule property bearing property No.22/9?." The plaintiffs in support of their contentions got examined the first plaintiff as P.W.1 and one independent witness as P.W.2. To corroborate ocular evidence, they have relied on the documentary evidence vide Exs.P1 to P37. The first defendant in support of his case examined himself as D.W.1 and defendants 2 and 3 have examined its official as D.W.2 and in support of ocular evidence, they have produced documentary evidence as per Exs.D1 to D8. The Court below having examined the oral and documentary evidence has dismissed the suit filed by the plaintiffs holding that the plaintiffs have failed to prove their title and they have also failed to establish their 22 right, title and interest over the compound wall which was in existence prior to the demolition carried out by defendants 2 and 3. The plaintiffs have failed to establish their lawfull possession and enjoyment over plaint schedule property along with compound wall. The Court below taking note of the statement made by P.W.1 in her ocular evidence in regard to the measurement shown in the approved layout plan as per Ex.P2 and also the measurement shown in the title documents has come to the conclusion that the site bearing No.22/9 measures North-South 77 ft. and not 87 ft. as contended by the plaintiffs. While examining issue Nos.1 and 2, the Court below has also recorded a finding that the disputed road situated on the Northern side of site No.22/9 is a public road and not private road as claimed by the plaintiffs. The Court below has also drawn adverse inference against the plaintiffs in regard to measurement of site No.22/9 towards North-South in the absence of title documents and specific 23 cross examination that North-South measurement is 77 ft and not 87 ft. The Court below has also recorded a finding that the first defendant has proved that the plaint schedule 'B" property is common area meant for laying sewerage line, underground electric connection, rain water drain etc. and while answering Issue No.3 the Court has held that the construction of compound wall by the plaintiffs enclosing in suit site No.22/9 is unauthorised and the same is established by defendants 2 and 3. These two findings are in conflict because the learned Judge either would have held that the plaint "B" schedule property was retained by the mother of deceased first defendant to lay sewerage line etc or else the Court would have proceeded to hold that the width of the road is 30ft as contended by defendants 2 and 3. The Court below while answering Issue Nos.5 to 7 has come to the conclusion that the suit schedule 'B' property measuring 10 ft north south and east and west 98 ft. forming part of schedule 'A' property 24 bearing site No.22/9 is a common area meant for laying sewerage line, electrical cables and also for formation of rain water drain. While answering issue Nos.7 and 8 the Court below has held that defendants 2 and 3 have proved that the disputed area measuring 10 ft. i.e. suit schedule "B" property is part and parcel of the road on the north of suit A schedule site No.22/9 and it is a public road. While answering additional Issue No.1, the Court below has recorded a finding that the survey records and survey sketch showing the width of the road on the northern side of suit site No.22/9 as 20ft. and also the measurement of the suit schedule site towards north- south as 87 ft is incorrect. While answering Issue Nos.2 and 3, the Court below has come to the conclusion that the defendants have proved that the plaintiffs are not in possession of disputed area measuring 10 ft. and the construction of the compound wall by the plaintiffs enclosing the suit schedule site No.22/9 is unauthorised. 25 The Court below while dealing with additional Issue No.4 has however come to the conclusion that the suit filed is well within time and not barred by limitation. On additional Issue No.5, the Court below has held that the defendants have proved that the plaintiffs have not valued the suit property properly and the court fee paid is insufficient. While answering additional Issue No.6 it has held that the plaintiffs have failed to prove that they have perfected their title in respect of the disputed area measuring 10 ft. on the northern side of site No.22/9 measuring North-South 20 ft and East- West 98 ft. by way of adverse possession.
4. Learned Senior counsel Sri. D.L.N.Rao, would vehemently contend before us that the original owner Mrs.Rose Mary D’souza purchased the premises known as Oragaum House bearing No.22(Old No.31)and in 1962, she obtained a sanction from the BCC for formation of layout comprising of 12 residential sites and having secured a layout plan,she sold the sites to various purchasers including her own 26 family members. The subject matter of the present suit which is site No.22/9 was sold by Rose Mary D'souza in favour of her son and daughter in law vide registered sale deed 15.10.1964 and in the said sale deed the site is shown to be bounded by a private road on the northern side. Learned counsel relying on Ex.P2 which is a sanctioned plan would contend before us that the layout clearly establishes the existence of 20 ft road on the northern side. He would also submit that there is a reference to sanctioned plan in all the sale deeds and there is absolutely no dispute in regard to the sanctioned plan as per Ex.P2. Learned Senior counsel would further submit to this Court that there is a difference in extent and boundary in the sale deed executed by the original owner Rose Mary D’souza in favour of her son and daughter in law as per Ex.P3. In this background, the vendors of the plaintiffs while executing the sale deed in favour of plaintiffs as per Ex.P4 have stated that these measurements are “little more or less”. Relying on this recital, the learned senior counsel would submit that the 27 actual extent of site bearing No.22/9 being not clear, the recitals as to boundaries should prevail. To buttress his arguments, he would also rely on Ex.P6 which is P.T. sheet prepared by the city survey authorities in July 1974 and submits that the authorities on surveying the abutting sites have assigned city Survey No.327 to site No.22/9 and the total area is shown as 790 sq meters. and the said measurement is in consonance with the boundaries on the northern side of Site No.22/9. He would also submit that the road existing on the northern side of site No.22/9 is assigned No.328 and the measurement is shown as 6.10 meters and if converted into feet, the same comes to 20 feet. What was sold by the plaintiffs' vendor was the entire site bearing No.22/9, and since there is a recital that the measurements may be either little more or less, the entire property was agreed to be sold and the plaintiffs have acquired valid right and title and their title would stretch till 87 feet on the northern side and not 77 ft. as stated in the sale deed. He 28 would also submit that the site was fenced by a barbed wire and when there was a threat, the plaintiffs have rightly constructed a compound wall.
5. Learned senior counsel would further submit that the survey done by the competent authorities in 1974 was challenged by first defendant before the Joint Director of Land Records(for short 'JDLR') by filing a revision, which came to be set aside by order dated 14.10.2008. Learned Senior counsel would submit that the learned Judge by relying on the order of the JDLR as per Ex.D8 has discarded Exs.P6 to P8 and the same suffers from serious infirmities. At this juncture, the learned Senior counsel would submit that the survey done by the Survey authorities in 1974 which was set aside by the JDLR is restored by the Karnataka Appellate Tribunal in Revision No.136/2008. The order dated 27.3.2019 passed by KAT in Rev.No.136/2008 has attained finality and the said order is placed on record by way of additional evidence. 29
6. Learned Senior counsel would further submit that though the first defendant is falsely contending that additional 10 ft towards northern side of site No.22/9 is reserved for laying a sewerage line, underground electrical connection, rain water drain, however, neither the first defendant nor his legal representatives have produced clinching rebuttal evidence to substantiate their contentions. To counter this plea raised by first defendant, the learned Senior counsel would submit that the written statement filed by the first defendant in earlier suit bearing O.S.No.6686/1992, would clinch the issue. Relying on para 3 of written statement filed by the first defendant in O.S.No.6686/1992 the learned senior counsel would submit that the first defendant has admitted in unequivocal terms that the road situated on the northern side of plaint schedule property measures 20 ft. To further corroborate this factual aspect, he would take this Court to cross-examination of D.W.1 and relying on the relevant portion wherein the first defendant has admitted the mis-description in unequivocal 30 terms, the learned Senior Counsel would submit that in the cross-examination, the learned counsel has succeeded in eliciting that the road on the northern side measures 20 ft and there is absolutely no evidence lead in by the defendants to prove that the said road measures 30 ft. At this juncture, the learned senior counsel would submit that the first defendant while securing sanctioned plan has also admitted the existence of the road on the northern side which measures 20 ft.
7. The learned Senior Counsel by taking us to various documents and the relevant portions of the cross- examinations of the parties would vehemently argue that the trial Court has lost sight of pleadings and evidence. He would submit that there is total misreading of facts and also the actual controversy between the parties. The learned Senior Counsel would submit that the dispute is not as to whether the road situated on the northern side of site No.22/9 is a corporation road. The trial Court has spent its entire energy and time on examining the measurements and in the process 31 has totally misread the clinching evidence adduced by the plaintiffs. The grievance of the plaintiffs before this Court is that the learned Judge ought to have focused on the intention of the parties while selling the site bearing No.22/9. The Court was required to examine the ambiguity in measurements and boundaries and thereafter ought to have proceeded to determine which is more specific. The Court was required to find in the present case on hand as to whether the extent mentioned in the sanctioned plan in respect of site No.22/9 towards north-south would be relevant or as to whether the boundary would have a relevance having regard to the peculiar facts of the case. Learned Senior Counsel would submit that this is a fit case where the learned Judge was called upon to determine as to whether the boundaries would prevail over the measurements. In support of the contentions, the learned Senior Counsel has placed reliance on the following judgments:
32. 1. Devikarani Vs Venkatesha Sastry [I.L.R. 1994 KAR1444 2. Sheodhyan Singh and Others Vs. Mst. Sanichara Kuer and Others [AIR1963Supreme Court 1879].
3. K.S. Nanji and Co. Vs. Jatashankar Dossa and Others[AIR1961Supreme Court 1474].
4. Subhaga and Others Vs. Shobha and Others[(2006) 5 Supreme Court Cases 466].
5. Yusuf Dehlavi and Others Vs. Dr. Syed Laik Ahmad Hashmi [1956 Patna 256].
6. The Palestine Kupat Am Bank Co-operative Society Ltd. Vs. Government of Palestine and Others [AIR (35) 1948 Privy Council 207].
7. Narasimha Shastry Vs. Mangesha Devaru [I.L.R. 1988 KAR554 8. Savithri Ammal Vilasim Ammal Vs. Jayaram Pillai Padmwathi Amma [1989 (2) KLJ709 9. Subbayya Chakkiliyan Vs. Manjam Muthia Goundan and Ors.[ AIR1924Mad 493]. The learned Senior Counsel would submit that the judgment rendered by the Privy Council in AIR(35) 1948 Privy Council 207 is binding on all High Courts. 33
8. The learned Senior Counsel would further submit that the Standing Committee Order clearly demonstrates that the 20 ft road situated on the northern side of Site No.22/9 is a private road. Relying on Ex.P29a, he would submit that defendants 2 and 3 are estopped from arguing contrary to the Standing Committee order. Relying on the cross-examination of D.W.2, the learned Senior Counsel would submit that the official of Defendants 2 and 3 has admitted in unequivocal terms by stating that when private layout is formed, the road existing on the said layout are all private roads. The learned Senior Counsel would also vehemently argue and contend before us that the Corporation though is laying a claim over the suit schedule property but however, to substantiate its claim over the suit schedule property not a single scrap of paper is placed on record. On the contrary defendants 2 and 3 have admitted that it is a private property. The City survey authorities have carried out survey way back in 1974 and the north- south measurement of site No.22/9 is shown as 87 ft. 34 and the same was notified in the PT sheet as per Ex.P6. The plaintiffs’ vendor was present when the PT sheet was drawn and the measurements recorded in the city survey is accepted and confirmed by the plaintiffs' vendors. When the correctness of the survey is not challenged by the plaintiffs' vendors and when there is no infringement of right of first defendant and when there is no claim by first defendant over the plaint schedule B property, the learned Judge has totally misread the evidence on record and the order of dismissal passed by the Court below has resulted in miscarriage of justice. On these set of grounds, the learned Senior Counsel would submit that the judgment and decree passed by the Court below suffers from perversity, and is palpably erroneous and hence, warrants interference by this Court.
9. Per contra, learned counsel Sri.Y.K. Narayana Sharma appearing for defendants 1(a-e) repelling the contentions raised by the plaintiffs would vehemently argue and contend that the plaintiffs cannot rely on a standing 35 committee order in view of the observations made by this Court in W.P.36011/2010. The learned counsel to counter additional document No.1 which is the order passed by the Karnataka Appellate Tribunal would submit that the plaintiffs cannot rely on this order. He would also submit that the defendants were never heard in the matter and they were never served with notice and on this ground, he would submit that the additional documents relied on by the plaintiffs cannot be looked into. The learned counsel would further contend that the suit in the present form is not at all maintainable. The plaintiffs had a efficacious remedy to seek rectification of deed and having failed to seek rectification of deed, the plaintiffs cannot assert right and title beyond what is agreed to be sold under Ex.P4. To buttress his arguments, he would take us to sanctioned plan as per Ex.P2 and the recitals in the measurements in Exs.P3 and P4 and relying on these measurements, he would submit that the plaintiffs have acquired right and title only to an extent of 77 ft. towards 36 northern side of site No.22/9. He would submit that plaintiffs cannot lay a claim beyond 77 ft. Relying on these grounds, the learned counsel would further submit that the width of the road situated on the northern side has no relevancy. He would submit to this Court that the road would commence at 77 ft. and thereby plaintiffs cannot assert their right and cannot claim title beyond 77 ft. which is reflected in the sale deed. The learned counsel would further submit to this Court that the width of the road is not at all in dispute when the vendors of plaintiffs have sold the site by fixing the sale consideration as per Sq. Ft., and that what was agreed to be sold under Ex.P4 is only 77 ft. Since there is no ambiguity in the measurement and the sanctioned plan and the sale deeds as per Exs.P3 and P4 clearly indicates that the site on the north-south side measures 77 ft., the plaintiffs' claim over the portion in excess of 77 ft. cannot be considered and entertained. He would submit that the learned Judge has dealt 37 with this issue and has rightly answered Issue Nos. 1 to 4 in the negative.
10. The learned counsel would also vehemently argue and contend that the plaintiffs had filed a bare suit for injunction in O.S.No.6686/1992. The learned counsel would submit that wall was constructed in 1992 and till 1992, the site No.22/9 was a vacant site and dispute started only in 1992 and the filing of bare suit for injunction would be taken as a starting point of limitation and if the dispute has started in 1992, the present suit filed by the plaintiffs on 15.1.2001 is hopelessly barred by limitation. Relying on the above said material aspects, the learned counsel appearing for defendants 1(a-e) would submit that the finding recorded by the learned Judge on Additional issue No.4 holding that the suit is not barred by limitation suffers from serious perversity and the said finding needs to be reversed by this Court and the suit is liable to be dismissed even on the point of limitation. 38
11. In support of their case, the learned counsel for defendants 1(a) to (e) has relied on the following decisions of the Apex Court and this Court:
1. Union of India and others .vs. Vasavi Co-Op. Housing Society Limited and others [2014 AIR SCW580 2. L.C. Hanumanthappa(Since dead) represented by his L.Rs. .vs. H.B. Shivakumar[2015 AIR SCW5085 3. Khatri Hotels Private Limited and another .vs. Union of India and another[2011 AIR SCW5052 4. Banarsi and others .vs. Ram Phal[AIR2003SC1989 5. Hardevinder Singh .vs. Paramjit Singh and others[2013 AIR SCW447 6. Mandal Revenue Officer .vs. Goundla Venkaiah and another[2010 AIR SCW977 7. Narasimha Shastry .vs. Mangesh Devaru[ILR1988KAR554 The learned counsel for defendants 1(a-e) relying on the judgment of the Apex Court in Union of India and others .vs. Vasavi Co-Op. Housing Society Limited and others[2014 AIR SCW580 would vehemently argue and 39 contend that the burden always rests on the plaintiffs to establish their title and they cannot rely on defendants' case. Further, placing reliance on the judgment reported in L.C. Hanumanthappa(since dead)represented by his L.Rs. .vs. H.B. Shivakumar[2015 AIR SCW5085 would vehemently argue that the finding recorded by the Court below on the plea of limitation is palpably erroneous. Further, reliance is placed on the decision reported in Banarsi and others .vs. Ram Phal [AIR2003SC1989 and Hardevinder Singh .vs. Parmijith Singh and others [2013 AIR SCW447 to buttress his arguments that in the absence of cross appeal, he can question the finding recorded by the learned Judge on Issue No.8. The learned counsel has also placed reliance on the judgment rendered by this Court in Narasimha Shastry .vs. Mangesha Devaru [ILR1988KAR554 and would vehemently argue that where the measurements shown in the sale deed is definite and certain, 40 the principle of boundaries prevail over the measurement is not at all applicable.
12. The learned counsel appearing for defendants 2 and 3 to substantiate their defence would submit that the sale consideration was only for 77 ft. as reflected in the sale deed executed in favour of plaintiffs by the earlier owner. The learned counsel would place his reliance on Section 54 of Transfer of Property Act and would contend that the plaintiffs have acquired right and title only to an extent of 77 ft. and the owners could have transferred only 77 ft. in exchange for the price paid. Placing reliance on Section 54 of Transfer of property Act, the learned counsel would submit that the plaintiffs and original owner have entered into a transaction and the transaction is confined only to an extent of 77 ft. towards north-south in site No.22/9. The learned counsel further relying on cross-examination of PW.1 by defendants 2 and 3 would submit that the plaintiffs have not requested their vendor to get a rectification deed in respect of sale deed dated 41 15.10.1964 as per Ex.P3. He would also submit that the relevant cross-examination also indicates that the plaintiffs have not issued any legal notice to their vendors. The learned counsel appearing for defendants 2 and 3 would further submit that this Court while disposing of W.P.13587/1998 as per Ex.P14 was pleased to reserve liberty to defendants 2 and 3 to proceed against any unauthorised construction under the provisions of 'KMC' Act. The learned counsel would further reply on Ex.P18 and would vehemently contend that the plaintiffs have indulged in constructing compound wall by encroaching on the northern side road. Further relying on Section 321(1)of the KMC Act, he would contend that public street is defined under Section 321 of the Act. Relying on this provision, he would submit that the act of plaintiffs in constructing the compound wall amounts to violation of the Rules under the KMC Act. He would further submit that defendants 2 and 3 have proceeded in accordance with law and the demolition of the compound wall is strictly in 42 consonance with the procedures contemplated under Section 321 of KMC Act. He would further submit that the plaintiffs do not have any semblance of right beyond 77 ft. and the plaint B schedule property is not at all owned by the plaintiffs and the same was not at all the subject matter of sale deed executed by the earlier owner in favour of the plaintiffs as per sale deed-Ex.P4.
13. Heard the learned counsel for the parties and we have perused the pleadings of the parties and reassessed the entire oral and documentary evidence available on record.
14. Having gone through the records, the following points would arise for consideration in the present appeal:
"1. Whether the finding of the Court below that plaintiffs have failed to prove their title to plaint B schedule property, which is more specifically described by letters "BCDE" in the plaint sketch is perverse?. 2.Whether the finding of the Court below that the plaintiffs have failed to prove their 43 lawful possession and enjoyment over the plaint-B schedule property suffers from perversity and palpably erroneous?. 3.Whether the finding of the Court below that the defendants have proved the width of the road towards northern side of site No.22/9 measuring 30 ft is perverse and suffers from serious infirmities?. 4.Whether the Court below erred in holding that the plaintiffs have failed to establish that the defendants have illegally demolished the compound wall?. 5.Whether the finding of the Court below that the measurements shown in Survey records and survey sketch pertaining to Site No.22/9 as 87 ft towards north-south and the width of the road as 20 ft. is not correct suffers from perversity and the said finding is contrary to Section 61(1) of Karnataka Land Revenue Act?. 6.Whether the Court below was justified in answering Additional Issue No.5 in the affirmative holding that the plaintiffs have not 44 valued the suit property properly and the Court fee paid is insufficient?. 7.Whether the plaintiffs and defendants 1(a-e) have made out a case to take the additional evidence on record?.
8. Whether the Court below erred in holding that defendants have failed to prove that suit is barred by limitation?.
15. REGARDING POINT Nos.1 AND2 Before we proceed with the case on hand, we need to allude some admitted facts. It is not in dispute that one Mrs.Rose Mary D’Souza, purchased the premises known as Oragum house bearing Old No.31 and new no.22 under registered sale deed dated 28.8.1952. Having acquired right and title over the property, the said Rose Mary D’Souza obtained sanction from the then Bengaluru City Corporation for formation of a private layout comprising of 12 residential sites. It is not in dispute that sanction was obtained on 31.1.1962 The copy of the said sanctioned layout is produced by the plaintiffs as per Ex.P2. It also emerges from the 45 records that in all 12 residential sites were formed in the layout and the same were numbered as Site Nos.22/1 to 22/12. The controversy is in respect of site No.22/9. It is also not in dispute that Mrs. Rose Mary D’Souza sold all the sites. However out of 12 sites, two sites were sold by Mrs. Rose Mary D’Souza in favour of her sons and daughter-in-law, The original owner Mrs. Rose Mary D’Souza sold site No.22/9 under the registered sale deed dated 15.10.1964 vide Ex.P3 in favour of her son Anthony Alexis D’Souza and his wife Dorothy Sabina D’Souza. It is also relevant to take judicial note of the fact that site No.22/9 is bounded by a private road on the Northern side. Similarly, Mrs.Rose Mary D’Souza sold site No.22/10 in favour of her second son i.e. first defendant under the registered sale deed dated 29.3.1966.
16. It is also borne out from the records that City Survey was carried out in the said private layout and the survey authorities having notified the owner of site No.22/9 have issued a sketch as per Ex.P7 and new corresponding city 46 survey number is assigned to site No.22/9 as city survey No.327. The total land area is shown as 790 sq. mtrs. and the same is recorded in PT sheet, which is also produced by the plaintiffs as per Ex.P6.
17. The said Anthony Alexis D’Souza and his wife sold and conveyed plaint “A” schedule property i.e. site No.22/9 in favour of the present plaintiffs under registered sale deed dated 27.5.1975 as per Ex.P4. The plaintiffs’ vendors have stated in the sale deed as per Ex.P4 (be this land measures more or less). This recital has significance having regard to the controversy between the parties, which we would discuss later. On perusal of Ex.P2, the actual controversy between the parties can be looked into.
18. On perusal of Ex.P2, the site bearing No.22/9, which is the subject matter of the suit is bound by 20 ft. road on the northern side. To the west of Site No.22/9, the site bearing No.22/10 owned by first defendant is situated and the 47 same is abutting site No.22/9. Further, it is forthcoming that the original owner Mrs. Rose Mary D’Souza has sold adjoining plots to her two sons and daughter-in-law. The first defendant is disputing the claim of the plaintiffs on the premises that site No.22/9 measures only 77 ft. north-south and not 87 ft. as claimed by the plaintiffs. The first defendant has taken a contention that his mother having sold site No.22/9 in favour of his brother had however retained 10 ft towards northern side of site No.22/9 for the purpose of laying sewerage line, underground electric connection, rain water drain etc. Though this litigation is fought since 1992, however, on meticulous examination of the records, we would find that the controversy lies within the narrow compass. The first defendant has disputed the title of plaintiffs in excess of 77 ft. north-south. The first defendant during his life-time contended that as per the sanctioned plan-Ex.P2, which is not in dispute, coupled with the registered sale deeds in favour of plaintiffs’ vendor as per Ex.P3 and in favour of plaintiffs as per Exs.P4, the north- 48 south measurement of site No.22/9 is shown as 77 ft. The contention of the defendants is that the measurements are definite and the plaintiffs cannot lay claim over the plaint schedule ‘B’ property which is in excess of 77 ft.
19. The disputed portion is referred as schedule ‘B’ property. This measures 10 ft. north-south, 98 ft. East-west. The trial Court while dealing with the controversy between the parties probably was under an assumption that there are two separate properties. We would find from the records that Northern boundary to site No.22/9 in the approved layout plan as per Ex.P2 is shown as 20 ft. road. The existence of 20 ft. road is not at all disputed by the first defendant. He has, in para 3 of the written statement filed in the earlier suit filed by the plaintiffs for bare injunction, admitted that the road situated on the northern side of site No.22/9 measures 20 ft. In the approved plan as per Ex.P2, it is seen that the site No.22/9 extends till the northern road. The approved plan also indicates that site extends upto 20 ft towards northern 49 road. It is also borne out from the records that the survey authorities have carried out the survey and the plaintiffs’ vendors who were owners at the relevant point of time were notified and in their presence the site No.22/9 was measured and the width of the road was also measured. The survey authorities in 1974 having measured the site have found that the north-south measurement of Survey No.22/9 is 87 ft. Even the width of the road is shown as 20 ft. The original owner has sold all 12 sites, which is not in dispute. Though defendant No.1 had taken a contention in the written statement that 10 ft. was retained by his mother, however absolutely no rebuttal evidence is let in to substantiate his case. Admittedly, the property in dispute is a site which is part of the approved layout. The original owner Mrs. Rose Mary D’Souza has sold the site No.22/9 in favour of her son. When a site which is a part of an approved layout is sold, it has to be presumed that entire site is subject matter of transfer and any conflict between the measurements and 50 boundaries pertaining to a site, we are of the view that the boundaries should prevail. After perusing the approved layout plan as per Ex.P2, we would find it to be improbable for the vendor to retain 10 ft. in a site. It is trite law that if there is a discrepancy between two descriptions given in respect of the immovable property, the leading description should be accepted. The northern boundary of site No.22/9 is shown as 20 ft. road. In that view of the matter, the boundary shown to site No.22/9 has to be treated as a leading description. The description by measurement is not complete and cannot be relied to deny title in respect of plaint ‘B’ schedule property on the premises that north south measurement is shown as 77 ft.
20. If the vendor intends to sell a site which is part of a approved layout and further vendee intends to purchase site with specific boundaries, the fact that the area proves to be larger than what was stated originally by estimate would not disentitle the vendee the extent in excess of measurement reflected in the sale deed more particularly when the excess 51 area forms part and parcel of that site. The approved sanctioned layout plan as per Ex.P2 and the registered sale deeds vide Exs.P3 and P4 must be read together for the purpose of discovering the real intention of the parties. As per the recitals in Ex.P3, which is the registered sale deed executed by Mrs.Rose Mary D’Souza in favour of her son and daughter-in-law(i.e. the plaintiffs’ vendors), it is evident that she has conveyed the entire site and on the northern side, site No.22/9 is bounded by 20 ft. road. The recitals in regard to the boundaries are clear and if that is so, the boundaries specified has to be treated as the guide to the intention of the parties.
21. Further on perusal of Exs.P3 and P4 which are the registered sale deeds executed by the original owner Mrs.Rose Mary D’Souza in favour of her son and daughter-in-law and thereafter by the said Anthony Alexis D’Souza and his wife in favour of the plaintiffs respectively, we would find that there is inconsistency between the description by boundaries and by 52 area. When such a situation arises, what the Courts are required to find out is as to which is more certain and stable and less likely to have been mistaken and which is sufficiently identified as a property should prevail. The true construction of the document is that it will, as far as possible, bring several factors with one other and express more clearly the intention of the parties. When a plot is the subject matter of sale transaction, no prudent man would agree to permit the vendor to retain marginal portion of the plot which cannot be utilized for any purpose. Though the theory set up by the first defendant is that his mother had retained 10 ft. portion towards northern side of site No.22/9, which undisputedly forms part and parcel of site No.22/9, the same cannot be accepted. If the property is conveyed with definite boundaries and the measurements indicate a small area than what was covered by boundaries, the rule of interpretation is that the area covered by boundary should prevail. This dispute stands clarified by plaintiffs' vendor as per the recitals in Ex.P4. The 53 plaintiffs' vendor who were party to the survey conducted by City Survey Authorities have in unequivocal terms stated that "be these measurements a little more or less". The learned Judge has not at all examined these recitals in Ex.P4 which has direct bearing on the controversy between parties.
22. It is also trite that description by boundaries prevail over all other descriptions. The reliance placed by the learned Senior Counsel on decision rendered by this Court in the case of Narasimha Shastry .vs. Mangesha Devaru reported in ILR1988KAR554 and the judgment rendered by the High Court of Kerala in Savithri Ammal Vilasim Ammal .vs. Jayaram Pillai Padmwathi Amma reported in 1989(2) KLJ709are squarely applicable to the present case on hand. The dispute is in respect of site which is part and parcel of an approved layout. The approved layout comprises of 12 plots and the same are identified by their respective boundaries on all four sides of the plots. The properties are clearly identified by their boundaries and the actual measurement would not be 54 that significant and cannot be a leading description. What is agreed to be sold under Exs.P3 and P4 is the property which is in compact and bounded by specific boundaries on all four sides. Admittedly the layout is formed in 1962 and there is every possibility of there being error in measuring the plots. The same gets strengthened by the fact that city survey authorities measured the suit site property in 1974 and as per Ex.P7 which is survey sketch, the boundaries and measurements of CTS326 327, 329 and 330 are mentioned. As per Ex.P7(Survey sketch) there is inconsistency in the measurement shown at the time of approval of the layout and subsequent survey conducted by the City Survey Authorities in 1974.
23. The ratio laid down by the Privy Council in the case of The Palestine Kupat Am Bank Co-Operative Society Limited .vs. Government of Palestine and others [AIR (35) 1948 Privy Council 207]. is squarely applicable to the present case on hand and the precedent laid down therein 55 would also bind this Court. The ratio laid down by the Privy Council in the said case has become locus classics and even after lapse of seven decades of its pronouncement, the principles laid down in the said judgment still holds the field and the ratio laid down has been followed by several High Courts in the cases relating to conflict between boundaries and measurements.
24. When there is ambiguity in regard to measurement and the fact that the controversy is in respect of a plot, we are of the view that the principle that description by boundaries would prevail over all other descriptions has to be made applicable to the present case on hand. The Survey sketch of Site No.22/9 which has corresponding CTS No.327 also indicates that northern boundary of suit schedule site No.22/9 extends till 20 ft. road. When sanctioned layout as per Ex.P2 is compared with Ex.P7-survey sketch of five CTS properties and also individual sketch of site No.22/9 as per Ex.P8, there is no ambiguity insofar as boundaries are concerned. 56
25. The learned Judge has totally fallen in error while examining the sale deed executed in favour of plaintiffs. The learned Judge has proceeded to hold that the sale consideration of Rs.1,13,100/- was only towards the extent measuring 77 ft x 98 ft. The learned Judge was of the view that the plaintiffs have purchased only an extent measuring 77 ft. towards north-south and they cannot claim right and title over the remaining extent of 10 ft. which is the suit schedule 'B' property and the same is undisputed. The learned Judge has further drawn adverse inference against the plaintiffs for having not sought for rectification of the sale deed in their favour as per Ex.P4. The learned Judge has also erred in recording a finding that plaintiffs admits the measurements shown in the approved layout plan as per Ex.P2 and also the measurements shown in the sale deed. Probably, it is on this line of adjudication, we find that the learned Judge has totally misdirected himself by applying wrong standards of probabilities. 57
26. The finding of the trial Court that plaintiffs cannot claim right title over plaint 'B' Schedule property is manifestly erroneous. While examining the judgment, we would also find that the learned Judge has virtually treated the schedule 'A" and "B" properties as two different and distinct properties and this conclusion arrived at by the learned Judge is palpably erroneous. The learned Judge was required to lay more emphasis on Ex.P2 which is a sanctioned layout plan coupled with Exs.P7 and P8, which would have enabled the Court below to understand the actual controversy between the parties. The sanctioned layout plan as per Ex.P2 is not at all in dispute. If the sanction/approval of layout as per Ex.P2 is not in dispute then the parties cannot deny the boundaries of site No.22/9. The learned Judge has lost sight of the fact that the defendants are taking advantage of purported admission in regard to description of area in plaintiffs' title documents. The plaintiffs by producing cogent and clinching evidence as per EXs.P2, P7 and P8 have established and 58 proved the boundaries of site No.22/9. If the clinching evidence on record adduced by plaintiffs establishes the boundaries and further also proves that the description by boundaries is a leading description, then the area of dimensions can be rendered insignificant, rather needs to be ignored. In construing the sale deed purporting to assure a pro-party, if the description in regard to boundaries of a property is sufficient to render certain what is intended, the mis-description in regard to measurement would have no effect and the inaccuracy in regard to measurement would in no way vitiate the description by boundaries. If the boundaries are established, then the plaintiffs would succeed in establishing their title over the entire site No.22/9 which is one compact property.
27. The plaint "B" schedule property is a portion of site No.22/9 which is in dispute, but that does not mean that plaint 'B' schedule property is not part and parcel of schedule site bearing No.22/9. The defendants have not placed on record 59 any material evidence to indicate that plaint 'B' schedule property is not part and parcel of site No.22/9. If boundaries are established then the question of seeking rectification would not arise and the plaintiffs can maintain a suit for declaration of title by relying on the principles that description by boundaries prevail over measurements. We would also find that the learned Judge has recorded a categorical finding that there is no ambiguity in measurement. Probably this conclusion arrived at by the learned Judge is by relying on the measurements shown in the approved layout plan as per Ex.P2 as well as the measurements shown in the sale deeds. This finding is palpably erroneous and contrary to Exs.P6, 7 and 8. Ex.P8 is the certified copy of the survey sketch in respect of property bearing No.327 which relates to site No.22/9. On perusal of PT sheet and survey sketches as per Exs.P6 to 8, it would clearly show that there is ambiguity in regard to the measurement. The survey which is carried out by the city survey authorities has to be relied on. The City 60 Survey Authorities having carried out survey have reflected the measurement of site No.22/9 as 790 square meters and the north-south measurement approximately as 87 ft.
28. The KAT has allowed the revision and set aside the order of the JDLR and has restored the survey records prepared in 1974. On perusal of the above said documents, the ambiguity in regard to measurement stands established. These documents are totally discarded by the learned Judge who has recorded a finding that the plaintiffs have not produced any document to establish that north-south measurement of suit schedule site No.22/9 measures 87 ft. The learned Judge has also recorded a finding that unless the plaintiffs proves that plaint 'B' schedule property is part and parcel of suit schedule 'A' property, they cannot claim right and title over the suit schedule property. The learned Judge has virtually proceeded with an impression that plaint "A" and "B" schedule properties are separate properties and this finding is perverse. On perusal of Ex.P2 we do not find that 61 site No.22/9 exists in two parts. The entire plot is one compact unit. The plaintiffs have only in the context of litigation have assigned the disputed portion as plaint 'B' schedule property. That in itself would not indicate that Schedule 'B" property is not part and parcel of site bearing No.22/9. In this background, we find that the learned Judge has virtually misdirected himself by applying wrong standards of probability. The finding arrived at by the learned Judge is also opposed to experience of life and course of business.
29. The learned Judge has not at all considered this material aspect while dealing with Issue Nos.1 to 3. The learned Judge has got carried away by the measurements stated in the approved sanctioned plan as per Ex.P2 and also from the measurements show in the sale deeds as per Exs.P3 and P4. The finding recorded by the Court below that the plaintiffs have failed to establish their title over the plaint schedule ‘B’ property suffers from serious perversity. The learned Judge has totally misread the entire evidence on 62 record and thereby the conclusion arrived at by the Court below on Issue Nos.1 to 3 is palpably erroneous. On re- appreciation of entire oral and documentary evidence, we do not find any intention on the part of the original owner in retaining the negligible area in a site. The learned Judge has not taken note of the fact that legal proof is not necessarily a perfect proof. Often it is nothing more than a prudent man’s estimate as to the probability of the case.
30. The evidence on record clearly indicates that plaintiffs were put in possession of the site way back in 1975. The City Survey authorities have surveyed the site in 1974, which is prior to sale by plaintiffs’ vendor in favour of the plaintiffs. The evidence on record clearly establishes that the plaintiffs were in lawful possession and the suit schedule property had a barbed wire fence which was later removed and compound wall was constructed at ‘C and D’ point as shown in the plaint sketch. The title documents relied on by the plaintiffs would further establish plaintiffs' 63 lawful possession. Further plaintiffs have succeed in eliciting their possession in the cross-examination of D.W.1 as well as D.W.2, which is culled out as under: D.W.1 "In the Sale Deed of site No.22/12 boundary is proposed as 20 feet wide road. There is no document to show the measurement of 30 feet wide road. Witness volunteers to say that as there is violation of sanctioned plan, the space of 10 feet created towards the North of the 20 feet road has been encroached by the Plaintiff. Question: Whether Plaintiffs are in possession of 10 feet width space towards the North of 20 feet wide road?. Answer: They are in illegal possession of 10 feet wide space of the sanctioned road."
D.W.2 "I have seen the Suit site. About one month back I had been to the Suit site. It is true to suggest that when I went to the Suit site, it was measuring 87*98 ft. and enclosed by compound wall. When I visited the Suit site I noticed putting of barricade at the entrance of layout operated by security staff. According to me it is illegal."
"It is true to say that width of the kacha road is only 20 ft. It is true that the standing committee by passing final order is marked as Ex.P.29. It is ordered that it is a private dispute."
64 For the reasons stated supra, the points No.1 and 2 formulated are answered in affirmative and the findings recorded by the Court below on Issue Nos.1 to 3 is reversed.
31. REGARDING POINT NO.3: The Court below while dealing with issue No.5 has come to the conclusion that defendants have established the width of the road situated on the northern side of site No.22/9 as 30 ft. and not 20 ft. as averred in the plaint. As per P.T. Sheet No.850 vide Ex.P6, the road is assigned CTS No.328 and its width is shown as 6.10 mts. i.e. 20 feet. The same is also reflected in survey sketch as per Ex.P7. Ex.P6(P.T. Sheet) and Ex.P7(Survey Sketch)corroborates and tallies with the width of the road shown in layout sanctioned plan vide Ex.P2. Insofar as this controversy is concerned, we have perused the written statements filed by first defendant as well as defendants 2 and 3. The first defendant has at Para 4 of the written statement specifically contended that the width of the northern road is 30 ft. and that it is wrongly mentioned as 20 ft. in the approved 65 layout plan as per Ex.P2. We have meticulously examined the oral evidence let in by the defendants on this issue. There is absolutely no rebuttal evidence to indicate that northern road measures 30 ft. The City Survey Authorities as per Ex.P7 have assigned CTS No.328 to Northern road and its measurement is show as 6.10 mts. and that would work out to 20 feet. Even otherwise, the approved layout plan as per Ex.P2 is not challenged by either of the parties. On the contrary, first defendant has admitted the approval of layout plan secured by his mother as per Ex.P2. To rebut the contention of the first defendant, the plaintiffs have also relied on para 3 of the written statement filed by the first defendant in the earlier suit which was one for bare injunction filed by the plaintiffs against the first defendant, which is culled out as under:
"3. The Property actually purchased, owned and possessed by the Plaintiffs and their predecessors in title right from the formation of the layout is and has been as follows "site No.22/9, Oorguam Road, measuring North to South 77 feet, East to West 98 feet" and bounded on the North 20ft. road. South by 66 site No.22/8, East by OOrguam Road, West by site No.22/10.
32. On a plain reading of aforesaid para, it is forthcoming that the first defendant has admitted in unequivocal terms that road situated towards northern side of site No.22/9 is measuring 20 ft. The plaintiffs have succeeded in eliciting this material aspect even in the cross- examination. At Para 15 of the cross-examination dated 9.6.2008, the first defendant has admitted in unequivocal terms the pleadings averred in the written statement in the earlier suit. He has also admitted in unequivocal terms that if the width of the northern road is accepted as 20 ft., then the north-south measurement of site bearing No.22/9 will be 87 ft. First defendant also admitted in the cross-examination that he took up construction in his abutting site bearing No.22/10 and he has secured sanctioned plan to put up construction. He has admitted in unequivocal terms that on the east of site bearing No.22/10, the width of the road is shown as 20 ft. The first defendant has at one breadth contended that 10ft 67 was retained by his mother to lay sewerage line, underground electrical cables and for formation of rain water drain. This contention is not at all substantiated. He has admitted that he has no document to show that 10 ft. area is reserved for the above said purpose. Further, in the cross-examination he has contended that there is violation of sanctioned plan, but, however the same is not at all substantiated. The first defendant further in unequivocal terms has admitted that plaintiffs are in possession of plaint ‘B’ schedule property. However, he has contended that they are in illegal possession. The said allegation is not substantiated by any clinching rebuttal evidence. If these material aspects are taken into consideration, then the plaintiffs have satisfactorily proved the admissions made by the first defendant in the earlier suit. The aforesaid admission in para 3 of the written statement is conclusive and is relevant and the same would create an estoppel. The admission in pleading is a judicial admission and the same has to be treated as substantive evidence. The 68 learned Judge was required to consider the evidentiary value of admissions tendered by the first defendant in the written statement in the previous suit and also categorical admissions elicited by plaintiffs in ocular evidence of first defendant who is examined as D.W.1. The learned Judge erred in not giving credence to Exs.P2, P6, P7 and P8 which clearly establishes that width of Northern road is 20 ft. It would also show that first defendant has failed to prove that his mother had retained 10 feet. Further the above said documents would negate the contention of Defendants 2 and 3 that width of road is 30 feet. All these material aspects are not at all taken into consideration, which would have changed the course of conclusion.
33. Insofar as defendants 2 and 3 are concerned, on receipt of summons, they have contested the proceedings by filing written statement. The sum and substance of their claim in the written statement is that plaintiffs have purchased the site bearing No.22/9 from Anthony Alexis D’Souza and his wife 69 Mrs.Dorothy Sabina D’Souza under registered sale deed dated 27.05.1975 as per Ex.P4. The north-south measurement in the sale deed is shown as 77 ft. Relying on these measurements, defendants 2 and 3 have claimed that plaintiffs cannot assert title in excess of 77 ft. towards north-south. At para 19 of the written statement, defendants 2 and 3 have contended that they have jurisdiction and authority to initiate action under the provisions of the Karnataka Municipal Corporations Act. It is also contended by defendants 2 and 3 that all the roads in any locality or layout stands transferred to the administrative jurisdiction and maintenance by defendants 2 and 3. But however the contention that northern road measures 30 ft. is not substantiated by defendants 2 and 3. Absolutely there is no documentary evidence placed on record by defendants 2 and 3 to substantiate their case. On the contrary, in the cross-examination, the official of defendants 2 and 3 who is examined as D.W.2 has given several categorical admissions in the cross-examination which are culled out as under:
70. "I have seen the Suit site. About one month back I had been to the Suit site. It is true to suggest that when I went to the Suit site, it was measuring 87*98 ft. and enclosed by compound wall. When I visited the Suit site I noticed putting of barricade at the entrance of layout operated by security staff."
"It is true to say that width of the kacha road is only 20 ft. It is true that the standing committee by passing final order is marked as Ex.P.29. It is ordered that it is a private dispute."
If this relevant ocular evidence of D.W. 2 is taken into consideration, the same would clinch the controversy in regard to the width of the road. Neither the first defendant nor defendants 2 and 3 have adduced any rebuttal evidence to prove that the width of the road is 30 ft. All these significant details which would have a bearing on the conclusion are totally discarded and ignored by the Court below. The conclusion arrived at by the Court below while examining additional issue No.5 suffers from serious infirmities. The learned Judge has virtually misread the entire evidence on record. In the absence of rebuttal evidence and by ignoring the approved sanctioned plan as per Ex.P2 coupled with Exs.P6, 7 and 8, which are public documents issued by survey 71 authorities which have got presumptive values and the order passed by KAT in Rev.136/2008, the learned Judge has proceeded to hold that defendants have proved that the width of the road is 30 ft. This finding arrived at while answering additional issue No.5 suffers from serious perversities.
34. We would find that a feeble attempt is made by defendants 2 and 3 who assert right and title over the northern road in excess of what is notified under the approved layout plan. Defendants 2 and 3 are also bound by Ex.P2 which is an approved layout plan and same indicates that the width of the road is 20 ft. However, Defendants 2 and 3 are claiming title over the northern road by contending that its width measures 30 ft and not 20 ft. However, to substantiate their case, defendants 2 and 3 have not let in any rebuttal evidence. Except bald allegations in the written statement coupled with self-serving oral testimony of the official who is 72 examined as D.W.2, there is absolutely no clinching evidence indicating that to the northern side of site No.22/9, the road situated measures 30 ft. In view of the categorical admissions given by the first defendant and also having regard to the admitted set of facts narrated in the written statement filed by the first defendant in the earlier suit bearing No.6696/1992, we are of the view that the finding recorded by the Court below on additional Issue No.5 suffers from perversity and the same is in absence of rebuttal evidence let in by first defendant as well defendants 2 and 3. In that view of the matter we would answer point No.3 in the affirmative.
35. REGARDING POINT No.4: While discussing Point No.3, we have referred to several admissions given by D.W.2. We have already held while discussing point Nos.1 and 2 that plaintiffs have established their title over the entire extent which forms part and parcel of site No.22/9. Plaint ‘B’ schedule property is in dispute which measures 98 feet east-west and 10 ft. north-south. The plaint 73 'B' schedule property is part and parcel of site No.22/9. Defendants have miserably failed to establish that the width of the road is 30 ft. On the contrary, D.W.2 who is examined on behalf of defendants 2 and 3 has admitted in unequivocal terms that the width of the road on the northern side of site No.22/9 measures 20 ft. If the sketch as per Ex.P2 is perused, the road situated on the northern side of site No.22/9 is an internal approach road. The road starts from eastern side and ends on the western side where the property of the first defendant bearing No.22/10 is located. On perusal of the same, it can be gathered that this internal approach road meant only for the owners of the property bearing No.22/9 i.e. the plaintiffs and owners of the property bearing No.22/10 i.e. first defendant and his legal representatives and the owner of the property bearing No.22/12 and the width of the road is 20 ft. In that view of the matter there is absolutely no infringement of right of enjoyment over this 74 northern road either by the plaintiffs and defendants or by the owners of the property bearing No.22/12.
36. On perusal of Ex.P18, defendant No.3 who is the Assistant Executive Engineer of the 2nd defendant-Bengaluru Mahanagar Palike issued a notice under Section 321(2) of the Karnataka Municipal Corporation Act, 1976. The preamble of the notice under Ex.P18 indicates that notice is issued on account of construction of compound wall by encroaching the road. The clinching material on record adduced by plaintiffs clearly establishes that the compound wall constructed by the plaintiffs is well within their property. Defendants 2 and 3 unfortunately have made a false claim in respect of the private property. If the sanctioned plan as per Ex.P2 indicates existence of 20 ft. road, then defendants 2 and 3 are estopped from asserting right over private property i.e. the plaint schedule ‘B’ property and they are further estopped from contending that plaint ‘B’ schedule property is part and parcel of 20 ft road situated towards north of site bearing No.22/9. 75 The second defendant being the statutory body has plunged itself into this litigation. The holder of every public office holds a trust for public good and therefore, its actions should always be above board. The statutory authorities should maintain irreproachable behaviour. A certain minimum standard of code of conduct is expected from statutory bodies. The statutory bodies are required to show exemplary vigilance while protecting properties owned by the State or by local bodies. The authorities are equally cast with duty not to make a false claim in respect of a private property. The conduct of defendants 2 and 3 can be gathered from the material on record. When the bare suit for injunction filed by plaintiffs in O.S.No.6686/1992 was dismissed for non-prosecution, the defendants 2 and 3 issued a show-cause notice which was challenged by the plaintiffs by filing the writ petition in W.P.No.13587/1998 which came to be allowed by this Court quashing the same. Defendants 2 and 3 thereafter played a waiting game since plaintiffs filed Misc. Application 76 No.10077/1998 seeking to set aside the order of dismissal of the suit in O.S.No.6686/1992. The said miscellaneous application was allowed but however, the first defendant preferred a civil revision petition in CRP No.1600/1999. This Court allowed civil revision petition and set aside the restoration application. However, this Court was of the view that the plaintiffs are at liberty to file independent suit. After disposal of the civil revision petition by this Court, defendant No.3 comes up with one more notice by invoking the provisions of Section 321. Though objections were filed by the plaintiffs, the third defendant passed a final order dated 14.6.2000 confirming the provisional order which was challenged by plaintiffs in W.P.No.21560/2000. This Court allowed the said writ petition reserving liberty to the plaintiffs to approach the appellate authority. This Court however stayed the impugned final order dated 14.06.2000 passed by the third defendant confirming the provisional order. From the records, it is forthcoming that the plaintiffs 77 immediately preferred an appeal under Section 444 of the Karnataka Municipal Corporation Act. before the Standing Committee(Appeals). Inspite of filing of the appeal, the third respondent and its officials accompanied by the police demolished the compound wall. It is also forthcoming from the records that the appeal filed by the plaintiffs before the Standing Committee was allowed on 28.3.2001 and the committee opined that the dispute between the plaintiffs and first defendant is purely a private dispute. The committee also observed that there is no need for second defendant- Corporation to interfere with the matter. All these events would clearly reflect the conduct of defendants 2 and 3 in handling the present case on hand. If defendants 2 and 3 have contested the present suit by laying a claim over the private property by contending that the road on the northern side measures 30 ft. then it was incumbent on defendant No.2 which is a statutory authority to establish the same by producing cogent and clinching documentary evidence. 78 Defendants 2 and 3 have miserably failed to establish that northern road measures 30 ft. If they have failed to establish this material fact, then it would only lead to one inference that the compound wall put up by the plaintiffs at points ‘C and D” as shown in the sketch annexed to the plaint is perfectly legal and in accordance with law. On the contrary it is proved that defendants 2 and 3 have high handedly by abusing their powers have demolished the compound wall. In that view of the matter, the finding recorded by the Court below on Issue Nos.3 and 4 is contrary to the clinching evidence on record. Accordingly, point formulated by this Court is answered in the affirmative holding that the plaintiffs have established that defendants 2 and 3 have illegally demolished the compound wall.
37. Regarding Point No.5: The learned Judge while answering Additional Issue No.1 has come to the conclusion that survey records and survey sketch indicating the width of the road on the northern side as 79 20 ft. and north-south measurement of suit site No.22/9 as 87 ft. on the basis of the survey carried out is incorrect. The learned Judge has also answered Additional Issue No.1 in the affirmative. We have to take judicial note of the fact that survey records and the PT sheet drawn by the competent authorities i.e. City Survey Authorities as per Ex.P6 was challenged by the first defendant before the Joint Director of Land Records. This revision was filed challenging 1974 survey and consequent PT sheet. The Joint Director of Land Records set aside the PT sheet prepared by the City Survey Authorities as per Exs.P6. The additional document, which is placed on record by the plaintiffs indicates that the Karnataka Appellate Tribunal has allowed the revision petition in No.136/2008 and the order passed by the Joint Director of Land Records as per Ex.D8 relied on by the defendants is set aside by order dated 27.3.2019. The Karnataka Appellate Tribunal was of the view that the Joint Director of Land Records had no jurisdiction to entertain the revision filed by first defendant questioning the 80 measurement and subsequent PT sheet drawn in the year 1974. The additional document is an order passed by the Karnataka Appellate Tribunal which is subsequent to the disposal of the suit. It is a trite law that subsequent events which are relevant and necessary for effective adjudication has to be taken judicial note of. The order of the KAT in Revision No.136/2008 is taken on record. The finding in regard to correctness or validity of survey done by City Survey Authorities as per Ex.P7 and consequent PT sheet drawn by them as per Ex.P6 are the orders passed by the revenue officials by exercising the powers conferred on them under the provisions of the Karnataka Land Revenue Act, 1964. The learned Judge erred in adjudicating the correctness of the survey and PT sheet prepared by the City Survey Authorities in the year 1974. This finding recorded by the learned Judge while examining Additional Issue No.1 is one without jurisdiction and the same is contrary to provisions of Section 61(1) of the Karnataka Land Revenue Act, 1961. Section 81 61(2)(e)(ii) bars jurisdiction of the civil Courts in adjudicating the correctness of the order passed under the provisions of the Karnataka Land Revenue Act. It is the exclusive jurisdiction of the revenue Courts to fix boundaries, to fix revenue and also reassess the revenue. The finding recorded by the learned Judge on survey of site No.22/9 which was conducted in 1974 as per Ex.P7 does not fall under any of the narrations under Clauses a, b and c of Section 62. Additional document, which is placed on record by plaintiffs also indicates that the order passed by the Joint Director of Land Records as per Ex.D8 on which the learned Judge has placed reliance is also set aside. The KAT has allowed the revision filed by plaintiffs and the survey conducted in 1974 is restored and the same has attained finality. Though the learned counsel appearing for defendants 1(a-e) kept on submitting to this Court that his clients are intending to challenge the order passed by the KAT, however, no materials are placed indicating that the order passed by the KAT is challenged. For 82 the foregoing reasons, since there is a specific bar under Section 61(1) of the Karnataka Land Revenue Act, the learned Judge erred in virtually assessing the correctness of the survey carried out in 1974 and also PT sheet drawn consequent to survey. The finding recorded by the learned Judge on additional Issue No.1 is one without jurisdiction and the same suffers from perversity. Accordingly, we answer point No.5 in the affirmative.
38. Regarding Point No.6: Before we proceed to examine the finding on additional issue No.5, we find that both the parties have not addressed their arguments on additional Issue No.5. The first defendant at para 21 of the written statement has specifically contended that the suit is not properly valued for the purpose of Court fee. The first defendant has specifically contended that the market value of the property valued at Rs.4,90,000/- is incorrect. The first defendant has specifically contended that the value of suit property is Rs.30,22,000/- as per the 83 Government notified price. The first defendant has taken a specific plea that to avoid Court fee the suit property is deliberately undervalued and on this count, the first defendant has sought for dismissal of the suit. In view of specific plea in regard to undervaluation of the plaint property for the purpose of Court fee, the trial Court treated additional Issue No.5 as preliminary issue, heard the rival parties on additional Issue No.5, though the same was objected by plaintiffs on the ground that additional Issue No.5 cannot be treated as a preliminary issue. The learned Judge by invoking the provisions of section 11(2) of the Karnataka Court Fees and Suit Valuation Act proceeded to determine the controversy in regard to payment of Court fee. The first defendant has produced the notification issued by the Government of Karnataka determining the market value of the immovable property situated at Grant Road. Relying on the said notification, the first defendant has specifically contended that the immovable property situated at Grant Road are valued at 84 Rs.3,080/- per sq. ft. and that plaintiffs have not adduced any evidence to show that the market value of the paint schedule property is less than Rs.3,080/- per sq.ft. The learned Judge however by placing reliance on the judgments of the Apex Court reported in (1994) SCC595and (1996) 3 SCC124has held that the circulars issued by Government for determination of market value for the purpose of registration of documents is not a statutory foundation and cannot be the basis to determine the market value of the immovable property. By relying on the above said judgments, the learned Judge has come to the conclusion that the notification produced by the first defendant cannot be a sole basis to determine the market value of the ‘B’ schedule property. The learned Judge was of the view that in the absence of evidence, it is not possible to decide additional Issue No.5 and thereby kept the issue in abeyance by not passing any orders on the same.
39. The learned Judge after closure of evidence and after having heard the rival parties has taken up additional 85 Issue No.5 for consideration. It has to be noted that the first defendant having set up the plea that the plaint is not properly valued for the purpose of Court fee and though additional Issue No.5 was treated as a preliminary issue and was deferred, the first defendant has not chosen to contest the plea in regard to insufficiency of Court fee paid on the plaint. In the absence of clinching evidence to substantiate the plea of the first defendant, the learned Judge has placed reliance on the Government Notification which was rightly rejected on the earlier occasion on the basis of the speculation and has come to the conclusion that the valuation submitted by the plaintiffs is improper and consequently the Court fee paid by plaintiffs is insufficient. On meticulous examination of the materials and also the efforts made by the first defendant during trial in prosecuting the said plea in regard to the payment of Court fee, we are of the view that the reasons assigned by the learned Judge on additional issue No.5 is palpably erroneous. The finding arrived at on additional Issue 86 No.5 is invalid on two counts. The first error committed by the learned Judge is that there is absolutely no adjudication as contemplated under Section 11 of the Karnataka Court Fees Act. The learned Judge has come to the conclusion that the Court fee paid is not proper and having come to the said conclusion, it has not proceeded further to determine the proper Court fee payable. The second error committed is if the plaint was not properly valued for the purpose of Court fee, then the procedure contemplated under Section 11 is that the Court is required to determine the proper Court fee payable and thereafter fix the date to enable the plaintiffs to make good the deficit Court fee. In the present case on hand, the first defendant having specifically taken up the plea that the Court fee paid by the plaintiffs is not proper and the same is under valued was required to lead evidence to demonstrate that the market value of the property is Rs.3,080/- per sq.ft. The notification relied on was rightly rejected by passing the order dated 19.7.2004. If the said notification is rejected, 87 there is absolutely no clinching evidence to show that the plaintiffs have deliberately undervalued the plaint. It is a trite law that the valuation submitted by the plaintiffs has to be accepted as true unless contrary is proved by the defendants who have raised the plea in regard to insufficiency of Court fee paid. In regard to undervaluation of the suit by the plaintiffs the defendant was examined by the Court while hearing Additional Issue No.5 as a preliminary issue. When the learned advocates canvassed their arguments, however, the learned Judge was not in a position to decide the said preliminary issue regarding Court fee and as such deferred the adjudication of Additional Issue No.5 in regard to payment of Court fee. This would clearly imply that the valuation of the suit though objected by the first defendant does not raise a pure question of law. On the contrary, in the written statement at Paragraph 21, the plea raised by the first defendant gives rise to a mixed question of law and facts in regard to valuation of the suit for the purpose of court fee. 88 However, during trial, the first defendant has not made any efforts to substantiate his plea in regard to payment of Court fee, when it was well within his knowledge that the learned Judge while examining the said issue as a preliminary issue had discarded the notification issued by the State Government in regard to market value of the property. It is trite law that in order to determine whether the suit is properly valued or not, the Court must confine itself to the plaint and should not look into other circumstances which may subsequently influence the judgment of the Court as to true value of the relief sought. The Court has jurisdiction to reject the valuation submitted by the plaintiffs when the valuation on the face of it is palpably absurd, mathematically illogical or arithmetically wrong. In the present case on hand, the first defendant has taken a contention that the actual market value of the property is Rs.3,080/- per sq.ft. The same is not substantiated. The Court cannot itself fix the valuation in place of plaintiffs' valuation by relying on the bald allegations made by the 89 defendants in the written statement. When the correct valuation of the suit cannot be assessed as contended by the defendants, the plaintiffs' suit cannot be non-suited on the ground of payment of Court fee.
40. If during trial the first defendant has virtually given up the said plea, then we are of the view that the learned Judge erred in holding that the valuation of the suit is improper. In the absence of material to substantiate the plea taken up at Para 21 of the written statement in regard to sufficiency of Court fee, the learned Judge erred in answering additional Issue No.5 in affirmative holding that the valuation of the suit done by the plaintiffs is improper and consequently, Court fee paid by the plaintiffs is insufficient. This finding arrived at is perverse and is in absence of material on record. Accordingly point No.6 is answered in the affirmative.
41. Regarding Point No.7: The plaintiffs have produced the copy of the order passed by the Karnataka Appellate Tribunal(for short "KAT") in 90 Revision No.136/2008 by way of additional evidence. At para 5 of the application, the plaintiffs have specifically averred that the KAT allowed revision filed by plaintiffs during the pendency of the present appeal before this Court. It necessarily implies that the plaintiffs intend to make out a case before this Court that the order passed by the KAT is after disposal of the suit. Relying on additional document, learned counsel for the plaintiffs has vehemently argued that the order passed by the Joint Director of Land Records annulling the measurement in respect of City Survey Nos.327, 328, 329 and 331 which was carried out in the year 1974 is one without jurisdiction. He would also submit that the KAT having examined the records has rightly held that the Joint Director of Land Records had no jurisdiction to invoke the provisions of Section 140 (2) of the Karnataka Land Revenue Act and consequently, entertain the revision after lapse of more than 27 years.
42. Per contra, the learned counsel appearing for defendants 1(a-e) who has filed the objections to the 91 application would vehemently argue that the learned Judge has not relied on the order of the Joint Director of Land Records as per Ex.D8. In this background, he would submit that the additional evidence sought to be produced by the plaintiffs has no relevancy to the list between the parties. He would submit that the learned Judge has meticulously assessed and examined the oral and documentary evidence and thereafter has come to the conclusion and the said conclusion arrived at is based on legal evidence and as such he would request this Court to reject the application. He also submits that if additional evidence is permitted to be taken on record, it would lead to further enquiry and protract the proceedings. On these set of defences, the defendants 1(a-e) have seriously contested the application filed by the plaintiffs.
43. On perusal of the order of the KAT, it is forthcoming that the survey carried by the city survery authorities in 1974 as per Ex.P7 and consequent PT sheet 92 drawn as per Exs.P6 is restored by setting aside the order of the Joint Director of Land Records, which is relied on by defendants 1(a-e) as per Ex.D8. The entire controversy revolves around the ambiguity in regard to measurements. The plaintiffs’ contention is that though the north-south measurement of site No.22/9 is shown as 77 ft. in the approved layout plan as per Ex.P2 and also the sale deeds as per Exs.P3 and 4, but however, the City survey authorities have carried out survey of site Nos.22/9 in 1974 after notifying the plaintiffs’ vendors and the said city survey authorities on measuring the site have drawn PT sheet indicating that north-south measurement of Site No.22/9 as 87 feet. In this background, the order of the KAT which is produced by way of additional evidence would be relevant for effective adjudication of the controversy between the parties. We are of the view that the additional evidence would have direct and important bearing on the main issue. On evaluation of the additional evidence relied on by plaintiffs, it can be 93 gathered that the survey done in 1974 and consequent PT sheet drawn as per Ex.P6 has been restored by the KAT by setting aside the order of the Joint Director of Land Records who had allowed the revision thereby setting aside the survey measurement conducted in respect of suit schedule property. This material aspect clearly establishes the ambiguity between the measurements reflected in approved layout plan as per Ex.P2 and survey done in 1974. When there is ambiguity in regard to measurement, the description with regard to boundary should prevail and we have already come to the conclusion that the boundary is a leading description and would be a relevant consideration and the measurements would be of no significance. The additional evidence relied on by plaintiffs is a subsequent event which has come into existence after disposal of the suit and the said fact in all probability is likely to vitally affect the decision and its adduction would enable the Court to justly pronounce the judgment. We would not hesitate to hold that the additional 94 evidence, if admitted, would squarely fall within the definition of substantial cause. The additional evidence relied on by plaintiffs would turn the scale in favour of plaintiffs and would also materially affect the decision. Taking note that subsequent events would come under the words ‘substantial cause’ and would facilitate to arrive at a just conclusion, we are of the view that the additional evidence relied on by the plaintiffs needs to be allowed. Accordingly, the application filed in I.A.No.1/2020 by the plaintiffs is allowed.
44. By way of additional evidence defendants 1 (a-e) have also filed an application under Order XLI Rule 27 seeking permission to produce the copy of the order passed by this Court in W.P.No.36011/2001 and also photographs. The respondent 1(a-e) by relying on the photographs have made an attempt to show that the plaint 'B' Schedule property is not owned by the plaintiffs. By relying on the position of gates fixed to the defendants property, the defendants have made an attempt to indicate that the compound wall 95 constructed by the plaintiffs is beyond their gate. The defendants have tried to make out a case before this Court that though there is 20 ft. road which would provide access to them, however, their grievance is that they cannot take a immediate right turn to have access to the main road. Placing reliance on these photographs, the defendants have contended that the compound wall constructed by the plaintiffs is by way of encroachment and defendants 2 and 3 have rightly demolished the compound wall by exercising power contemplated under Section 321 of KMC Act.
45. The said application is strongly resisted by the plaintiffs' counsel. The learned Senior counsel appearing for the plaintiffs would vehemently contend before this Court that the documents relied on by the plaintiffs do not satisify the ingredients of Order XLI Rule 27 of CPC. The learned senior counsel submits that the order passed by this Court in W.P.No.36011/2011 was during the pendency of the suit and the said order was very much available with defendants 1(a- 96 e). They have not made any efforts to rely on the said order. It is also contended that there are absolutely no pleadings in the written statement by the first defendant regard to the orders passed by this Court in WP.No.36011/2001.
46. Having examined the rival contentions in the affidavit filed in support of the application as well as the objections raised by the plaintiffs, we would find that the document relied on by the defendants are no at all necessary for effective adjudication of the controversy between the parties. The learned Judge while disposing of the writ petition was of the view that the order passed by the Standing Committee would not bind the civil Court. On perusal of Para 3 of the order, it is forthcoming that this Court while disposing of W.P.No.36011/2001 has observed that the civil Court is not bound by the observations, if any, made by the Standing Committee. The proceedings of the Standing Committee dated 28.3.2001 is relied on by the plaintiffs and the same is produced as Ex.P29(a). Though the civil Court is not bound by 97 the observations made by the Standing Committee, however, there is no bar for the Civil Court to take judicial note of the findings recorded by the Standing Committee which is the Committee for appeals. In that view of the matter, the additional evidence sought to be produced by defendants 1(a- e) has no relevancy to the controversy between the parties and further the same would not satisfy the ingredients of Order XLI Rule 27 of CPC and such documents are also not necessary for any substantial cause. Since there is no satisfactory explanation in the affidavit filed in support of the application, we are of the view that the additional evidence relied on by defendants 1(a-e) cannot be admitted on record. Accordingly, the application in I.A.No.2/2020 is rejected.
47. REGARDING POINT NO.8: Learned counsel appearing for defendants 1(a-e) would vehemently argue and contend that the learned Judge erred in answering additional iissue No.4 in the negative. He would submit that the plaintiffs have filed the bare suit for injunction 98 in O.S.No.6686/1992 on 19.10.1992. Relying on these material aspects, the learned counsel would submit that the starting point for limitation would commence on the day on which the bare suit for injunction was filed against the first defendant. We have perused the records. More particularly, the pleadings in O.S.No.6686/1992. What can be gathered from the written statement filed by first defendant in a bare suit for injunction is that there was no claim in regard to title by the first defendant over the plaint 'B' schedule property. It is forthcoming from the records that defendants 2 and 3 during the pendency of the appeal against the final order passed under Section 321 of the KMC Act, demolished the compound wall on 11.1.2000. This incident would virtually amount to denial of title to plaintiffs. The bare suit for injunction filed in O.S.No.6686/1992 was dismissed for non- prosecution, which was again restored on the application filed by allowing the miscellaneous application. Questioning the order of restoration of the suit, the first defendant filed a 99 revision before this Court in CRP. 1600/1999 as per Ex.P17. This Court allowed the revision by reserving liberty to the plaintiffs to file an independent suit in accordance with law. Defendants 2 and 3 have demolished the compound wall by claiming title over the plaint schedule 'B" property and hence, the plaintiffs have filed a comprehensive suit on 15.1.2001. The CRP was disposed on 19.1.2000. If these material aspects are taken into consideration, we are of the view that the suit filed by the plaintiffs is well within time and the learned Judge has rightly examined all these material aspects and additional Issue No.4, which relates to limitation has been answered in the negative and the same would not warrant interference by this Court. Accordingly, point No.8 is answered in negative.
48. For the reasons assigned by us while adverting to the points formulated by this Court, we would hold that the plaintiffs have established their right and title over suit schedule 'A' as well as 'B' properties. The title of plaintiffs 100 stands established in the light of the approved layout plan as per Ex.P2, coupled with the survey sketch issued by the City Survey authorities who have surveyed the suit schedule site No.22/9 in 1974. The title of plaintiffs over the suit schedule site No.22/9 stands established in terms of the sale deed executed by Mrs.Rose Mary D'Souza in favour of her son Anthony Alexis D'Souza and daughter-in-law Dorothy Sabina D'Souza as per Ex.P3 and in turn the sale deed executed by the aforesaid Anthony Alexis D'Souza and his wife in favour of plaintiffs as per Ex.P4. The approved layout plan as per Ex.P2 coupled with survey sketch as per Ex.P7 and also the sketch in respect of site No.22/9 as per Ex.P8 would clearly establish that the northern boundary of Site No.22/9 would extend till the northern 20 ft. road which is assigned CTS No.328. The plaintiffs have succeeded in establishing that there is inconsistency between the description by boundaries and by area. The plaintiffs have also established that site No.22/9 is conveyed with definite boundaries and the description by 101 boundaries is a leading description and the same would prevail over all other descriptions more particularly the measurements shown in the approved layout plan as per Ex.P2 and the sale deeds as per Exs.P3 and P4. The plaintiffs have also established the ambiguity in regard to measurements in approved layout plan as per Ex.P2 and subsequent P.T. Sheet drawn by the City Survey Authorities as per Ex.P6. Applying the principle of boundaries prevail over measurements, we are not inclined to accept the recitals in regard to north-south measurement which is shown as 77 ft. On the other hand, we are of the view that the suit site bearing No.22/9 must be taken to have been conveyed according to the dimensions based on boundaries and not by measurement. The above said clinching evidence adduced by plaintiffs establishes their title and also their lawful possession over the suit schedule 'A' property as well as schedule 'B' property, which is in dispute. The plaintiffs have also established that defendants 2 and 3 have illegally invoked the provisions of Section 321 of the KMC102Act when admittedly the compound wall constructed by the plaintiffs was well within their property. In that view of the matter, the plaintiffs have also established that they are entitled for relief of mandatory injunction against defendants 2 and 3 who have illegally demolished the compound wall.
49. For the foregoing reasons, we pass the following:
ORDERi)The captioned appeal filed by the plaintiffs is allowed and the judgment and decree dated 25.02.2011 passed in O.S.No.448/2001 by the XXVII Additional City Civil Judge, Bengaluru, is set aside; ii)The suit is decreed declaring the plaintiffs as absolute owners of plaint schedule 'B' property shown as 'BCDE' portion in the plaint sketch and are also declared as owners of the compound wall constructed on the northern side along with points 'CD' shown in the plaint sketch; 103 iii)The defendants are restrained by way of perpetual injunction from interfering with plaintiffs' peaceful possession and enjoyment over suit schedule 'B' property; iv)Defendants 2 and 3 are hereby directed to build and restore the compound wall along with points 'C and D' shown in the plaint sketch at their own expenses within a period of three months' from the date of receipt of copy of this judgment; and v)The plaintiffs are also entitled for cost throughout the litigation. Sd/- JUDGE Sd/- JUDGE *alb/-.