A rectification deed cannot validly alter property identity without consent from all original parties, and in encroachment suits, parties must prove clear title and property identity.

JUDGMENT :

K.S. Hemalekha, J.

The defendant is in this regular first appeal assailing the legality and correctness of the judgment and decree dated 02.03.2023 in O.S. No.7057/2014, on the file of the XLII Additional City Civil and Sessions Judge, Bengaluru (CCH-43) (hereinafter referred to as ‘Trial Court’ for short).

1.1 The plaintiffs’ suit for declaration and consequential relief of injunction in respect of ‘A and B’ schedule properties was decreed.

1.2 The plaintiffs claim title under the registered sale deed dated 31.12.2003 and relies upon the rectification deed dated 12.12.2013, the defendant claims under a registered sale deed dated 06.05.2013

2. Pleadings in brief:

2.1 Plaint averments:

i. Site Nos.50 and 51 formed in Survey No.15/4 was purchased under the registered sale deed dated 31.12.2003, possession was taken, construction was put up and taxes were paid by plaintiff No.1.

ii. Certain description error in the 2003 deed were later rectified by a rectification deed dated 12.12.2013, pursuant to which the katha was affected in the name of plaintiff No.1 and subsequently, plaintiff No.1 executed a gift deed in favour of her daughter-plaintiff No. 2.

iii. When the plaintiffs were not in station in the year 2014, the defendant allegedly encroached upon part of ‘A’ schedule, i.e., ‘B’ schedule property and raised temporary structure and thus, the plaintiffs sought for mandatory injunction.

2.2 Written Statement Averments:

i. Defendant is the absolute owner in possession of 993.75 square feet purchased on 06.05.2013, after the purchase, the defendant put up construction.

ii. Plaintiff’s schedule is inaccurate, boundaries/measurements in the 2003 deed differ from the present claim in the schedule property. The 2013 rectification deed was only executed by Lakshmi Narayan without joining the other co-executants / their legal heirs and substantively alters the property’s identity.

iii. The defendant denied any encroachment as alleged by the plaintiffs and also contended that the suit is not maintainable.

iv. As per the rectification description, the total area of ‘A’ schedule should be 3,000 square feet, i.e., east-west northern side 40 feet, east-west southern side 60 feet, north-south 60 feet and the actual measurement found is 2418 square feet, indicating a deficit of 582 square feet. The defendant's site measured 1034.70 square feet on the ground as against 993.75 square feet in his deed and it was in excess of 40.95 square feet.

3. During the pendency of the suit, the Court Commissioner was appointed and measured both the properties. He recorded that description in Ex.P1-the sale deed dated 31.12.2003 does not tally with the ground situation, whereas the description tallies with Ex.P2-the rectification deed dated 12.12.2013.

4. Relying on the report, the trial Court held that the defendant encroached on the east-west northern side by 19.5 feet and decreed the suit. Though the defendant denied any encroachment, the Court concluded that the encroachment stood proved on the basis of the Commissioner's finding and accordingly, decreed the suit in favour of the plaintiffs.

5. Heard the learned counsel for the appellant and the learned counsel appearing for the respondents.

6. Learned counsel appearing for the appellant submits that the Commissioner’s report itself records that the plaintiffs’ property corresponds only with the rectification deed at Ex.P2 and not with the original sale deed at Ex.P1. Ex.P2 was executed solely by Lakshmi Narayan, without the participation of the legal heirs of Kariyappa and