R. Krishna Reddy Vs. Smt. Komala and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/934879
CourtKarnataka High Court
Decided OnMar-21-2012
Case NumberRegular First Appeal No.1133 of 2002
JudgeANAND BYRAREDDY
AppellantR. Krishna Reddy
RespondentSmt. Komala and Another
Advocates:For the Appellant: Reuben Jacob, Smt. Suman Hegde, Advocates. For the Respondents: M.S. Varadarajan, I.G. Gachchinamath, Advocates.
Excerpt:
1. heard the learned counsel for the appellant and the learned counsel for the respondents. the parties are referred to by their rank before the trial court, for the sake of convenience. 2. the appellant was the plaintiff before the trial court and it was the case of the plaintiff that he was the absolute owner of vacant land appurtenant to the constructed portion of his property in domlur, bangalore, bounded on the east by road, west by the plaintiffs remaining property, north by property belonging to the bangalore development authority and south by the plaintiffs property. the vacant land is shown as measuring 53’ east to west and 45’ north to south which is described in the suit schedule and is treated as the suit schedule property. it was the plaintiffs cast that his paternal grandfather one sarakki nanjappa had two sons. muniswamappa was born to his first wife, venkataswamappa, gurappa, nagappa and ramaiah were born to his second wife. the plaintiff was the grandson of muniswamappa. his father was ramaiah. the first defendant was the granddaughter of ramaiah, born to the second wife of sarakki nanjappa. the plaintiff claims the sarakki nanjappa owned several immovable properties, one of them being the suit schedule property, in respect of which he had executed a release dated 20-4-1906 which was duly registered, whereunder, he had released half portion of the hithalu on the southern side in favour of his son muniswamappa, which is the suit schedule property, and retained the other side of the hithalu on the northern side. the suit property was succeeded to by the son of muniswamappa namely ramaiah, and from ramaiah the plaintiff had inherited the same and claims that he has been in possession and enjoyment of the suit schedule property. the plaintiff further claims that under the aforesaid release deed, sarakki nanjappa further released in favour of his son by his first wife muniswamappa, a residential premises situated to the west of the suit property, comprising of an area of 10 ankanas of domlur village bounded on the east by the suit property which had fallen to his share and hithalu retained by the releaser and on the west by house of lingappa, north by well and south by land belonging to dodda mastri pillaiah. the plaintiff claims that, as per the release deed his paternal grandfather muniswamappa and after him his father ramaiah were in possession and enjoyment of the residential premises till the death of ramaiah in the year 1954. thereafter, the plaintiff claims, that he has been in enjoyment of the residential premises. it is further claimed that three years prior to the suit, the plaintiff had renovated the premises by replacing the old tiled roof with an rcc roof and that the plaintiff uses the well-situated on the north eastern side of the residential premises. the residential premises, according to the plaintiff, measures 41’ east to west and 56’ north to south inclusive of the well. the actual measurement of the suit schedule property forming half portion of the hithalu belonging to sarakki nanjappa was east to west 53’ and north to south 56’ and the other half portion which was retained by sarakki nanjappa was released in favour of the first defendant under a release deed dated 24-1-1976. the plaintiff remained unaware of that document till 7-9-1987 when he learnt of the details of the release deed in the office of the assistant executive engineer, bangalore city corporation when he went there to verify the action taken by the bangalore city corporation in regard to objections filed by him against the grant of sanctioned plan in favour of the first defendant, who had proposed to put up construction in the other half portion which was the subject-matter of the said release deed. the plaintiff had thereafter obtained a certified copy of the release deed and found the measurements which the defendant was claiming under the said release deed. to the plaintiffs shock, he found that the hithalu enjoyed by him, was also included in the said release deed but since he had been in possession of the same having acquired it by inheritance from his grandfather in whose favour it was released by sarakki nanjappa and the plaintiff having constructed a row of buildings consisting of two rooms, two shops and four residential tenements along the southern boundary measuring east to west 53’ and north to south 21’ and the plaintiff also having let out the tenements to different tenants and the remaining portion of the hithalu measuring 35’*53’ having remained vacant, it was being used by the plaintiff and his tenants for the purpose of ingress and egress and for other beneficial purposes. the plaintiff claims that the execution of the release deed in favour of the first defendant was without his knowledge and the defendant was seeking to assert possession over the hithalu that was inherited by the plaintiff, which has been under his possession and enjoyment, throughout. the first defendant had filed a suit for permanent injunction restraining the second defendant from interfering with the hithalu and putting up any construction thereon, in civil suit o.s.no.3850 of 1987 on the file of the additional city civil judge, bangalore and had obtained an order of temporary injunction and the said suit was pending as on the date of filing the present suit by the plaintiff. the defendant had not impleaded the plaintiff in her suit and therefore, the plaintiff had filed an application to impleaded himself and that the suit was pending as on the date of the suit filed by the plaintiff. the plaintiff further claimed that the defendant 1 had no right over the suit property and the defendant 1 claiming a large portion of the suit property to an extent of 25’*53’ on the basis of a release deed is not tenable and therefore, the present suit. 3. the suit was resisted by the defendants who had filed their written statements. defendant 1 had denied the plaint allegations and claimed to be the actual owner of the suit property. it was also contended that the measurements indicated by the plaintiff were misleading and confusing. the defendant was in fact the absolute owner of a substantial portion of the suit property and denied that the plaintiff had any cause of action in respect of the suit property. the second defendant also had denied the plaint allegations and claimed that the suit property had been acquired by the bangalore development authority after following the procedure prescribed in law. in that, the plaintiff had no right to claim possession of the suit property which was vacant land since the same had been duly acquired by the bangalore development authority. 4. on the basis of those pleadings, the court below had framed the following issues:- “1. whether the plaintiff proves title to the suit property? 2. whether plaintiff proves possession of the suit property? 3. whether plaintiff is entitled to permanent injunction sought for? 4. to what reliefs and order the parties are entitled to?” and has answered issue nos.1 and 2 partly in the affirmative and issue no.3 in the negative. it is that which is under challenge in the appeal. 5. the learned counsel for the appellant would contend that while the court has found favour with the plaintiff insofar as the constructed portion is concerned, the court below has rejected the claim over the suit property which is appurtenant to the constructed portion, on the footing that the measurements indicated by the plaintiff are not reflected in the release deed, which describes the property as measuring reflected in the release deed, which describes the property as measuring 10 ankanas with hithalu, without actually indicating the measurement of the hithalu. it is therefore, the appellant’s case that his has resulted in a miscarriage of justice as the property described as the suit schedule property, is actually appurtenant to the constructed portion and the existence of a well and a coconut tree in the said vacant land would clearly indicate that the sue and the benefit of the hithalu, was entirely with the plaintiff. the defendant seeking to claim a major portion of the same by reference to the release deed of which the plaintiff was totally unaware, is entirely extraneous and therefore, the appellant would submit that the suit sketch having been annexed to the plaint indicating the exact measurement claimed by the plaintiff, the court below having termed such description as being vague, is therefore unfair and deprives the plaintiff of valuable property of which has had been in undeniable possession and enjoyment over the decades and before him, his father and grandfather having enjoyed the same, not being in dispute. 6. the first defendant who is also the great granddaughter of sarakki nanjappa who was the original owner of the suit property and the release deed in favour of the grandfather of the plaintiff indicating that half the portion of the hithalu held by sarakki nanjappa had been released in favour of his grandfather and other half portion which was retained by him along, would have been released in four of the predecessors of the first defendant and hence, claims that the entire portion of the hithalu including the plaintiffs property was released under the release deed of the year 1976, is not consisted and cannot be reconciled with the release deed in favour of the plaintiff. this aspect of the matter has been glossed over by the trial court in merely asserting that the constructed portion of 10 ankanas does not include the hithalu and it cannot be said that the plaintiff has proved his case as regards the claim towards the hithalu of a certain dimension according to the plaintiff, is not tenable. 7. while the learned counsel for the first respondent namely the first defendant would contend that insofar as the suit that was filed by the first defendant as against the bangalore development authority, when interference was sought to be made in respect of the property that the first defendant had acquired under the release deed, the measurements give were with reference to the said release deed and even the plaintiff who admits the filing of that suit in the course of his pleadings, is also aware that the same has been decreed in favour of the first defendant and since that has attained finality, as the bangalore development authority has not thought if fit to challenge the said decree, that would bind the plaintiff as well. it is not possible for the plaintiff to claim the property of the first defendant as being the plaintiffs property in the absence of accurate measurements and identity of the hithalu that was allegedly conferred on the plaintiff under the release deed under which the plaintiff claims and hence would also seek to produce the copy of the judgment in that suit in o.s.no.4494 of 1989. 8. while the learned counsel for the bangalore development authority would contend that the suit schedule property is vacant land admittedly, which has been acquired by the bangalore development authority after following due procedure prescribed in law, the so-called suit filed by the first defendant was in respect of property no.33, whereas the acquisition by the bangalore development authority is in respect of the suit property which bears property no.28. therefore, the judgment and decree sought to be produced by the first defendant, would not pertain to this property at all and it has been acquired by the bangalore development authority. 9. in the light of these pleadings, the question for consideration by this court is, whether the court was justified in rejecting the claim of the plaintiff in respect of the suit property while affirming the claim of the plaintiff over the portion appurtenant to the suit schedule property. 10. as rightly pointed out by the court below, the release deed which is the source of title under which the plaintiff claims, merely describes the property which is the subject-matter of the release deed as being residential premises measuring 10 ankanas with the appurtenant vacant land or hithalu. there is no measurement of the hithalu portion that is released in favour of the beneficiary, as early as in 1906. therefore, it cannot be said with any certainty as to the extent of vacant land that was released in favour of the beneficiary along with the built area. the plaintiff also having claimed that he had put up additional construction, apart from 10 arkanas that was granted under the release deed, the plaintiff has the benefit of that additional area even though there is no mention of the measurements of the hithalu. hence, the claim of the plaintiff to the hithalu is vague. even the measurement shown in the release deed as 10 ankanas is not capable of being ascertained in terms of feet or meters as there is no acceptable definition of the expression ‘ankana’. the learned counsel for the appellant would seek to assert that an ankana would be 10feet, while the learned counsel for the first defendant would assert that an ankana would be approximately about 10 square feet. however, from a reference to the kannada dictionary namely “kannada-english dictionary by rev.f.kittel”. “ankana” is defined as follows._ “the (small or large) space either between any two posts or pillars in a wall that support the roof, or between any two beams”. 11. therefore, this court is not in a position to accept the contention that an ankana would measure either 9 feet or 10 square feet. the dictionary meaning would only indicate that an ankana is a distance between two pillars supporting a roof. since the dictionary meaning does not indicate any measurement at all, this court is not in a position to accept the statements of either counsel as to the actual measurement, translated in terms of feet or meters. therefore, the appeallant has certainly gained the benefit of having put up construction in addition to the 10 ankanas that were originally released under the release deed and the area that has been built up by the plaintiff subsequently. the decree therefore is a bonus which the plaintiff has acquired in respect of the property that was the subject-matter of the release deed and the rejection of the claim of the plaintiff in respect of the vacant portion is hence, justified. this court is not entering upon the other questions as to whether the bangalore development authority has acquired the suit property, in view of the fact that there is no material placed on record by the bangalore development authority in the present suit. insofar as the property claimed by the first defendant under a release deed in relation to the neighbouring property having been decreed, and whether it would have to be held that it includes a large portion of the suit property as well, is also not an issue that is addressed in the present appeal. the limited reasoning that the measurement of the suit property not forthcoming under the release deed, it cannot be countenanced that the plaintiff could claim a particular area without a definite measurement at all. accordingly, the appeal lacks merit and is dismissed.
Judgment:

1. Heard the learned Counsel for the appellant and the learned Counsel for the respondents. The parties are referred to by their rank before the Trial Court, for the sake of convenience.

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

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

The second defendant also had denied the plaint allegations and claimed that the suit property had been acquired by the Bangalore Development Authority after following the procedure prescribed in law. In that, the plaintiff had no right to claim possession of the suit property which was vacant land since the same had been duly acquired by the Bangalore Development Authority.

4. On the basis of those pleadings, the Court below had framed the following issues:-

“1. Whether the plaintiff proves title to the suit property?

2. Whether plaintiff proves possession of the suit property?

3. Whether plaintiff is entitled to permanent injunction sought for?

4. To what reliefs and order the parties are entitled to?”

And has answered Issue Nos.1 and 2 partly in the affirmative and Issue No.3 in the negative. It is that which is under challenge in the appeal.

5. The learned counsel for the appellant would contend that while the Court has found favour with the plaintiff insofar as the constructed portion is concerned, the Court below has rejected the claim over the suit property which is appurtenant to the constructed portion, on the footing that the measurements indicated by the plaintiff are not reflected in the release deed, which describes the property as measuring reflected in the release deed, which describes the property as measuring 10 Ankanas with Hithalu, without actually indicating the measurement of the Hithalu. It is therefore, the appellant’s case that his has resulted in a miscarriage of justice as the property described as the suit schedule property, is actually appurtenant to the constructed portion and the existence of a well and a coconut tree in the said vacant land would clearly indicate that the sue and the benefit of the Hithalu, was entirely with the plaintiff. The defendant seeking to claim a major portion of the same by reference to the release deed of which the plaintiff was totally unaware, is entirely extraneous and therefore, the appellant would submit that the suit sketch having been annexed to the plaint indicating the exact measurement claimed by the plaintiff, the Court below having termed such description as being vague, is therefore unfair and deprives the plaintiff of valuable property of which has had been in undeniable possession and enjoyment over the decades and before him, his father and grandfather having enjoyed the same, not being in dispute.

6. The first defendant who is also the great granddaughter of Sarakki Nanjappa who was the original owner of the suit property and the Release Deed in favour of the grandfather of the plaintiff indicating that half the portion of the Hithalu held by Sarakki Nanjappa had been released in favour of his grandfather and other half portion which was retained by him along, would have been released in four of the predecessors of the first defendant and hence, claims that the entire portion of the Hithalu including the plaintiffs property was released under the Release Deed of the year 1976, is not consisted and cannot be reconciled with the Release Deed in favour of the plaintiff. This aspect of the matter has been glossed over by the Trial Court in merely asserting that the constructed portion of 10 ankanas does not include the Hithalu and it cannot be said that the plaintiff has proved his case as regards the claim towards the Hithalu of a certain dimension according to the plaintiff, is not tenable.

7. While the learned Counsel for the first respondent namely the first defendant would contend that insofar as the suit that was filed by the first defendant as against the Bangalore Development Authority, when interference was sought to be made in respect of the property that the first defendant had acquired under the Release Deed, the measurements give were with reference to the said Release deed and even the plaintiff who admits the filing of that suit in the course of his pleadings, is also aware that the same has been decreed in favour of the first defendant and since that has attained finality, as the Bangalore Development Authority has not thought if fit to challenge the said decree, that would bind the plaintiff as well. It is not possible for the plaintiff to claim the property of the first defendant as being the plaintiffs property in the absence of accurate measurements and identity of the Hithalu that was allegedly conferred on the plaintiff under the Release Deed under which the plaintiff claims and hence would also seek to produce the copy of the judgment in that suit in O.S.No.4494 of 1989.

8. While the learned Counsel for the Bangalore Development Authority would contend that the suit schedule property is vacant land admittedly, which has been acquired by the Bangalore Development Authority after following due procedure prescribed in law, the so-called suit filed by the first defendant was in respect of Property No.33, whereas the acquisition by the Bangalore Development Authority is in respect of the suit property which bears property No.28. Therefore, the judgment and decree sought to be produced by the first defendant, would not pertain to this property at all and it has been acquired by the Bangalore Development Authority.

9. In the light of these pleadings, the question for consideration by this Court is, whether the Court was justified in rejecting the claim of the plaintiff in respect of the suit property while affirming the claim of the plaintiff over the portion appurtenant to the suit schedule property.

10. As rightly pointed out by the Court below, the Release Deed which is the source of title under which the plaintiff claims, merely describes the property which is the subject-matter of the Release Deed as being residential premises measuring 10 ankanas with the appurtenant vacant land or Hithalu. There is no measurement of the Hithalu portion that is released in favour of the beneficiary, as early as in 1906. Therefore, it cannot be said with any certainty as to the extent of vacant land that was released in favour of the beneficiary along with the built area. The plaintiff also having claimed that he had put up additional construction, apart from 10 arkanas that was granted under the Release Deed, the plaintiff has the benefit of that additional area even though there is no mention of the measurements of the Hithalu. Hence, the claim of the plaintiff to the Hithalu is vague. Even the measurement shown in the Release Deed as 10 Ankanas is not capable of being ascertained in terms of feet or meters as there is no acceptable definition of the expression ‘Ankana’. The learned Counsel for the appellant would seek to assert that an Ankana would be 10feet, while the learned Counsel for the first defendant would assert that an Ankana would be approximately about 10 square feet. However, from a reference to the Kannada Dictionary namely “Kannada-English Dictionary by Rev.F.Kittel”. “Ankana” is defined as follows._

“The (small or large) space either between any two posts or pillars in a wall that support the roof, or between any two beams”.

11. Therefore, this Court is not in a position to accept the contention that an Ankana would measure either 9 feet or 10 square feet. The dictionary meaning would only indicate that an ankana is a distance between two pillars supporting a roof. Since the dictionary meaning does not indicate any measurement at all, this Court is not in a position to accept the statements of either Counsel as to the actual measurement, translated in terms of feet or meters. Therefore, the appeallant has certainly gained the benefit of having put up construction in addition to the 10 ankanas that were originally released under the Release Deed and the area that has been built up by the plaintiff subsequently. The decree therefore is a bonus which the plaintiff has acquired in respect of the property that was the subject-matter of the Release Deed and the rejection of the claim of the plaintiff in respect of the vacant portion is hence, justified. This Court is not entering upon the other questions as to whether the Bangalore Development Authority has acquired the suit property, in view of the fact that there is no material placed on record by the Bangalore Development Authority in the present suit. Insofar as the property claimed by the first defendant under a Release Deed in relation to the neighbouring property having been decreed, and whether it would have to be held that it includes a large portion of the suit property as well, is also not an issue that is addressed in the present appeal.

The limited reasoning that the measurement of the suit property not forthcoming under the Release deed, it cannot be countenanced that the plaintiff could claim a particular area without a definite measurement at all. Accordingly, the appeal lacks merit and is dismissed.