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SUPREME COURT OF INDIA
V. GOPALA GOWDA, R. BANUMATHI, JJ.
LAXMIDEVAMMA & ORS. – APPELLANTS
Versus
RANGANATH & ORS. – RESPONDENTS
CIVIL APPEAL NO. 176 of 2015
Decided On : 20-01-2015
(b) Code of Civil Procedure, 1908 – Section 100 – Second appeal – Trial court and first appellate court returning concurrent finding of fact – No substantial question of fact arising for High Court to decide in second appeal – No substantial ground for re-appreciation of evidence – High Court in second appeal reversing concurrent finding of fact – Not permissible. (Para 15)
Facts of the case:
Appellants-plaintiffs are the owners of the revenue land bearing Survey No.1/1 of Chikmagalur village which was converted for non-agricultural purpose. Layout was formed from the above said land and the site Nos.12 and 13 and portions of site Nos.11 and 14 were sold to the first defendant by the appellants-plaintiffs by executing two sale deeds.
To the south of the property sold to the respondents-defendants, 'A' schedule property as shown in the suit was earmarked for the purpose of road. However, the City Development Authority did not approve the same and hence no road was formed. Case of the appellants-plaintiffs is that since no road was formed, they continued to be the owners of the 'A' schedule property and they are the absolute owners of the same.
In the year 1992, first respondent-defendant sold the property purchased from the appellants-plaintiffs to second and third defendants who constructed a house on the same alongwith a compound wall. Grievance of the appellants-plaintiffs is that towards the northern side of 'A' schedule property, the respondents encroached upon 80' x 21/2 which is described as 'B' schedule property in the suit, despite protest from the appellants-plaintiffs.
Therefore, appellants-plaintiffs filed a suit for declaration that they are the absolute owners of 'A' schedule property and for possession of the 'B' schedule property.
The trial court decreed the suit holding that the plaintiffs are the absolute owners of 'A' schedule property and entitled to possession of 'B' schedule property to an extent of 2' x 781/4' i.e. 2 feet north-south 781/4 feet east-west and defendants 2 and 3 were directed to deliver vacant possession of the said land to the plaintiffs.
The first appellate court confirmed the judgment and decree of the trial court and dismissed the appeal.
High Court allowed the second appeal in part and modified the judgment and decree passed by the courts below holding that the plaintiffs are entitled for compensation for the space which was earmarked for road if the same was acquired by the competent authority. High Court held that the plaintiffs are not entitled for a declaration that they are the absolute owners of the suit 'A' schedule property and consequently their claim for injunction was also not granted.
Finding of the Court:
Impugned judgment cannot be sustained.
Result: Appeal allowed.
JUDGMENT
R. BANUMATHI, J.
This appeal arises out of the judgment dated 27.9.2012 passed by the High Court of Karnataka in R.S.A. No.297/2007, wherein the High Court allowed the appeal in part, modifying the concurrent judgment and decree passed by the courts below and holding that the appellants-plaintiffs are entitled to compensation for the space earmarked for road as and when the competent authority acquires the same.
2. Appellants-plaintiffs are the owners of the revenue land bearing Survey No.1/1 of Chikmagalur village which was converted for non-agricultural purpose under the order dated 2.4.1987 of the Deputy Commissioner, Chikmagalur. Layout was formed from the above said land and the site Nos.12 and 13 and portions of site Nos.11 and 14 were sold to the first defendant by the appellants-plaintiffs by executing two sale deeds dated 11.7.1988 and 3.1.1992. To the south of the property sold to the respondents-defendants, 'A' schedule property as shown in the suit was earmarked for the purpose of road. However, the City Development Authority did not approve the same and hence no road was formed. Case of the appellants-plaintiffs is that since no road was formed, they continued to be the owners of the 'A' schedule property and they are the absolute owners of the same.
3. In the year 1992, first respondent-defendant sold the property purchased from the appellants-plaintiffs to second and third defendants who constructed a house on the same alongwith a compound wall. Grievance of the appellants-plaintiffs is that towards the northern side of 'A' schedule property, the respondents encroached upon 80' x 21/2 which is described as 'B' schedule property in the suit, despite protest from the appellants-plaintiffs. Inspite of repeated demands, the respondents have not handed over vacant possession of the encroached property. Therefore, appellants-plaintiffs filed a suit for declaration that they are the absolute owners of 'A' schedule property and for possession of the 'B' schedule property in the court of Addl. Civil Judge (Jr. Divn.), Chikmagalur.
4. Respondents-defendants filed written statement admitting that layout was formed out of the above Survey No. 1/1 of Chikmagalur village and that first appellant has sold site Nos. 12 and 13 and portions of site Nos.14 and 11 by two sale deeds dated 11.7.1988 and 3.1.1992 (Ex. D 16 Ex. D17). While selling the above sites, the first plaintiff has reserved 'A' schedule property for the purpose of road on the southern side of respondents' property. Pursuant to the request of the municipality, the adjacent property of 'A' schedule property was acquired by the authorities for the purpose of road. The defendant No.1 has constructed houses facing towards southern side of the road and the municipality has constructed a footover bridge in between the channel and 'A' schedule property. According to the respondents-defendants, 'A' schedule property is very much necessary for the purpose of road. The respondents contend that having sold the sites to the general public and also to the defendants earmarking the space as road, the plaintiffs are not justified in seeking a declaration of their title over 'A' schedule property. According to the respondents-defendants they have encroached 21/2' measuring in width on the northern side of his house property and not on the southern side, and the appellants have filed a suit with intention to shift the encroached area towards south. According to the respondents-defendants if the plaintiffs' title over 'A' schedule property is declared, the defendants and the general public who have purchased the house/sites from the plaintiffs will be put to inconvenience and hence they prayed for dismissal of the suit.
5. Upon consideration of oral and documentary evidence, the trial court decreed the suit holding that the plaintiffs are the absolute owners of 'A' schedule property and entitled to possession of 'B' schedule property to an extent of 2' x 781/4' i.e. 2 feet north
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