Sri Kushal Chand S/O Uttam Chand v. Sri H R Nagendra Guptha

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 3RD DAY OF SEPTEMBER, 2026

BEFORE

THE HON'BLE MR JUSTICE M.G.S.KAMAL

REGULAR FIRST APPEAL NO.1160 OF 2007

BETWEEN:

1 . SRI KUSHAL CHAND S/O UTTAM CHAND AGED ABOUT 45 YEARS UTTAM JEWELLERS No.2390, 10TH MAIN, E BLOCK, II STAGE, RAJAJINAGAR, BANGALORE -560 010.

2 . SRI UTTAM CHAND S/O CHAMPALAL AGED ABOUT 46 YEARS, UTTAM JEWELLERS, No. 2390, 10TH MN, E BLOCK, II STAGE, RAJAJINAGAR, BANGALORE5-560 010.

3 . SRI RADHAKRISHNA NAIR S/O GOVIND KUTTY AGED ABOUT 56 YEARS, SITE NO.40, S. NO.39, 7TH CROSS, PRASHANTHA NAGAR PIPELINE, 'T' DASARAHALLI BANGALORE-560 057.

... APPELLANTS (BY SRI. R.B. SADIVAPPA A/W SMT. B.R. HARINI., ADVOCATES)

Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA

AND:

SRI. H.R. NAGENDRA GUPTHA S/O H J RAMASWAMY SHETTY AGED ABOUT 59 YEARS R/O No. 252, 13TH MAIN GOKULA EXTENSION, FIRST STAGE, FIRST PHASE, BANGALORE -560 054.

... RESPONDENT

(BY SRI.J.IMAYAN, ADVOCATE FOR C/R)

THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED

22.02.2007 PASSED IN OS.NO.2360/1997 ON THE FILE OF THE III ADDL. CITY CIVIL JUDGE, BANGALORE CITY DECREEING THE SUIT FOR DELCARATION AND INJUNCTION.

THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND RESERVED ON 29.08.2026 FOR JUDGMENT COMING ON FOR PRONOUNCEMENT THIS DAY, THIS COURT DELIVERED THE FOLLOWING:

CORAM: HON'BLE MR JUSTICE M.G.S.KAMAL

CAV JUDGMENT

(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL)

¶1This Regular First Appeal is by the defendants being aggrieved by the judgment and decree dated 22.02.2007 passed in O.S.No.2360/1997 on the file of III Additional City Civil Judge, Bangalore City (hereinafter referred to as `trial Court') in and by which the trial Court has decreed the suit

to the plaintiff, holding plaintiff being the absolute owner of the suit schedule property entitled for vacant possession of the schedule property from the defendants and has directed the defendants to hand over the vacant possession of the schedule property by removing all constructions within six months from the date of the order.

¶2Brief facts of the case are:

2.1 That the plaintiff purchased vacant site bearing No.40 forming part of land bearing Sy.No.55 measuring East to West 50 feet or 15.24 meters, North to South 30 feet or

9.14 meters situated at Yeshwanthapura Hobli, Bangalore North Taluk, Mallasandra Village, bounded on East by: Road, West by: Site No.35, North by: Site No.41 and South by: Site No.39 (hereinafter referred to as `Schedule Property') in terms of deed of sale dated

13.02.1980 from one Smt.Sunita B. Rani, Wife of B.A.Rane. That his name was entered in the revenue records and he has been paying the property tax.

2.2 That defendant No.1 is the son of defendant No.2. Defendant No.3 is a mortgagee under defendant No.1.

2.3 That the plaintiff was carrying on business and had remained in Tamil Nadu between December 1994 to December 1996 and when he returned to Bengaluru during December 1996 he visited the schedule property and found construction thereon consisting of asbestos sheet roofed residential premises and enclosed by a compound wall on all four sides with number written thereon as Site No.39. On enquiry, he learnt that it was defendant No.1 who had put up such construction. Plaintiff caused issue of legal notice through his counsel on 11.12.1996. A reply dated 16.12.1996 was issued by the defendant No.1 claiming that his father-defendant No.2 had purchased the said property. As such, plaintiff issued another legal notice to his father-defendant No.2, who avoided receiving the same. Since defendant No.3 occupied the property as a mortgagee under defendant No.1, a legal notice was issued to defendant No.3. Hence, the suit seeking declaration of his title and for mandatory injunction against the defendants, directing them to remove the illegal construction and to pay mense profit from December 1996 to February 1997.

¶3Defendant No.2 filed the written statement denying the plaint averments. It is contended that the purchase of the suit schedule property by the plaintiff is not within his knowledge. Defendant No.1 being his son and defendant No.3 being the mortgagee under defendant No.1 is admitted. Issuance of notice by the plaintiff and reply has been admitted. It is however contended that defendant No.2 has put up construction on the site bearing No.39, Khatha No.55 situated in Mallasandra Village, which measures East-West 51 feet, North-South 30 feet, which he purchased in terms of deed of sale dated 08.05.1992 from one Boraiah, son of Cheluvaiah. As such, the defendant has been the lawful owner in possession of the said site.

¶4That defendant No.2 has constructed three and a half square asbestos sheet roofed house by altering the existing asbestos sheet roofed house. The construction of the house is on his site No.39 and not on site No.40 of the plaintiff. Thus, defendant No.2 being absolute owner is in exclusive possession and enjoyment of his site. Hence sought for dismissal of the suit.

¶5Trial Court framed following issues: "1. Does plaintiff prove his title to the suit property?

¶2Does he prove that defendant No.1 and 2 have put up illegal construction on the suit property?

¶3Is he entitled to relief of declaration of title, possession and mandatory injunction as sought?

¶4Is he entitled to mense profit as prayed?

¶5What order/ decree?"

¶6Plaintiff has examined himself as PW1 and has marked 16 documents as Exhibits P1 to P16. Defendant No.1 has examined himself as DW1. Boregowda, owner of Site No.38 has been examined as DW2. One Somashekar, who facilitated in defendant No.2 purchasing Site No.39 has been examined as DW3. 28 documents have been marked on behalf of the defendants as Exhibits D1 to D28.

¶7On appreciation of evidence, the trial Court has answered Issue Nos.1 to 3 in the affirmative, Issue No.4 partly in the affirmative and has consequently passed the judgment and decree as noted above.

¶8Sri.R.B.Sadashivappa, learned counsel for the defendants/appellants herein submitted:

8.1 That the trial Court failed to appreciate the evidence and the deposition of the witnesses and has erroneously come to the conclusion of defendants/appellants having

encroached upon the schedule property and putting up the construction thereon merely on the premise of defendants not having produced documents for obtaining the permission from the concerned authorities for such construction.

8.2 That the plaintiff who is claiming right, title, interest and possession over Site No.40 is required to discharge his burden identifying the existence of the said site and its title over the same.

8.3 That the defendant No.2 having purchased the site No.39 in terms of deed of sale dated 08.05.1992 has been in possession and enjoyment of the same. Revenue records are mutated in his name. He has been paying the property tax. Thus, the right, title and possession of defendant No.2 over site No.39 is established by documentary evidence. Plaintiff has not denied the title of the defendants.

8.4 That on the northern side of the Site No.40 claimed by the plaintiff is Site No.41 belonging to his brother Satyanarayana Gupta and the plaintiff in his deposition has deliberately pleaded ignorance about the said site belonging to his brother. It is not made clear by the

plaintiff whether it is defendants who have encroached upon his site or his brother Satyanarayana Gupta who is on the northern side of his site. Plaintiff has thus suppressed the material facts and therefore not entitled for relief of declaration and possession.

8.5 The plaintiff who claimed to have purchased Site No.40 in terms of deed of sale dated 13.02.1980 has not produced any document to prove his possession. He claims to have visited Site No.40 only during 1996. As such, the plaintiff himself has admitted of he not being in possession of the site until 1996.

8.6 Discrepancies if any in the documents of the defendants cannot enure to the benefit of plaintiff who is required to prove his case on his own. Plaintiff cannot take weakness of the defendants if any. He relies upon the judgment of the Apex Court in the case of Smriti Debarama Vs Prabha Ranjan Debarama and others reported in 2023 19 SCC 782 in support of this submission.

8.7 Adverting to two separate commissioners' reports dated

08.01.2026 and 20.06.2026 he submitted that the reports of the commissioner have clearly indicated non

existence of Site No.40 being claimed by the plaintiff which shall be read in favour of the defendants. Hence seeks for allowing of the appeal and dismissal of the suit.

¶9Sri.J.Imayan, learned counsel appearing for the plaintiff/ respondent herein on the other hand submitted:

9.1 That plaintiff having purchased the Site No.40 in terms of deed of sale dated 13.02.1980 is not in dispute.

9.2 The plaintiff has produced documents in the nature of tax paid receipts for proof of his possession. That the defendant No.2 had purchased Site No.39, 12 years after purchase of Site No.40 by the plaintiff. Taking advantage of absence of the plaintiff, defendant has put up the construction encroaching upon the site No.40 of the plaintiff which is situated on the northern side of Site No.39 being claimed by the defendant.

9.3The defendant has not furnished any evidence regarding he obtaining permission for putting up the construction which aspect of the matter has been taken note of by the trial Court and has rightly come to conclusion of directing

the defendants to hand over the vacant possession of the schedule property which is in their illegal occupation.

9.4 That the two commissioners who were appointed by this Court have not taken into consideration the memo of instructions and they have only reported that site No.40 being non-existent without appreciating the fact that the defendants who claim to be owners of Site No.39 situated on the southern side of the site No.40 of the plaintiff, have indeed encroached upon the site of the plaintiff. The appreciation of evidence and the conclusion reached by the trial Court does not suffer from any infirmity. Hence seeks for dismissal of the appeal.

¶10Heard and perused the records.

¶11There is no dispute of plaintiff having purchased site bearing No.40 being the subject matter of the suit in terms of deed of sale dated 13.02.1980. There is also no dispute of defendant No.2 having purchased Site No.39 in terms of deed of sale dated 08.05.1992. Thus title of the plaintiff in respect of Site No.40 so also the title of defendant No.2 in respect of Site No.39 is not in dispute.

Therefore the points that would arise for consideration are: "(a) Whether the plaintiff has proved that the defendants have encroached upon and are in possession of his site bearing No.40 described in the schedule to the plaint?

(b) Whether the defendants prove that they are in possession of their site No.39 as claimed by them?

(c) Whether the trial Court is justified in directing the defendants to vacate and hand over the vacant possession of the suit schedule property to the plaintiff?".

¶12The trial Court in its judgment while answering issue No.2 has held that defendants 1 and 2 have put up illegal construction as they failed to produce any documents with regard to construction put up by them on Site No.39. Admission of defendants during the cross examination regarding they having put up construction without sanction plan and authorization from the Municipality has been read by the trial Court against the defendants to conclude that such construction has been done on Site No.40 being claimed by the plaintiff. It is based on the said conclusion, the trial Court has directed the defendants to deliver the vacant possession of the schedule property.

¶13Since the points raised above require identification and location of properties namely site No.40 and site No.39 being claimed by the plaintiff and defendants respectively, appropriate to refer to the description of the properties as given in the documents of title relied upon by the plaintiff and defendants as per Ex.P1, D2, D3, D4 and D28 respectively with reference to layout plan at Ex.P9.

14.Both the plaintiff and defendants have relied upon layout sketch produced at Ex.P9 in terms of which residential plots were formed in the land bearing Sy.No.55. Said layout plan indicate existence of site No.40 with site No.39 being situated on its southern side and site No.41 being situated on its northern side.

¶15Exhibit P1 is the deed of sale dated 13.02.1980 under which plaintiff purchased site No.40 description of which is as under: "PÀæAiÀÄzÀ ¸ÀéwÛ£À µÉqÀÆå®Ä: ¨ÉAUÀ¼ÀÆgÀÄ GvÀÛgÀ vÁ®ÆèPÀÄ, AiÀıÀªÀAvÀ¥ÀÄgÀzÀ ºÉÆç½, ªÀÄ®èಸಂದ ಾಮದ ಸೆ 55£Éà £ÀA§gÀÄ PÀ£ïªÀgïµÀ£ï DVgÀĪÀ d«ÄãÀ£À°è «AUÀr¹gÀĪÀ ¸ÉÊlÄUÀ¼À ¥ÉÊQ 40£Éà £ÀA§gÀÄ ¸ÉÊnUÉ ZÉPÀÄ̧A¢- ಪ ವ ೆ gÀ¸ÉÛ, ¥À²ÑªÀÄPÉÌ :35£Éà £ÀA§gÀÄ ¸ÉÊlÄ, ಉತರೆ 41ೇ ನಂಬರು ¸ÉÊಟು, ದಣೆ : 39£Éà £ÀA§gÀÄ ¸ÉÊlÄ F ªÀÄzÉå EgÀĪÀ ¥ÀƪÀð¥À²ÑªÀÄ : 50-0 (LªÀvÀÄÛ) CrUÀ¼ÀÄ

15.24 «ÄÃlgïUÀ¼ÀÄ, GvÀÛgÀzÀQët : 30-0 (ªÀÄƪÀvÀÄÛ) CrUÀ¼ÀÄ, 9-14 «ÄÃlgÀUÀ¼ÀÄ, MlÄÖ:139 44 ZÀzÀgÀ «ÄÃlgï C¼ÀvÉAiÀÄ SÁ° ¸ÉÊlÄ F PÀæAiÀÄPÉÌ ¸ÉÃjgÀÄvÉÛ. EzÀÄ ¸À«ð¸ï E£ÁAw d«ÄãÀ DVgÀĪÀÅ¢®è EzÀgÀ ªÀiÁgÀÄPÀmÉÖ ¨É¯É ªÀÄÆgÀÄ ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼ÀÄ ¸ÀjAiÀiÁVgÀÄvÀÛzÉ".

¶16Defendant No.2 claimed to have purchased site No.39 as per deed of sale dated 08.05.1992 at Ex.D4 from his vendor-Sri.Boraiah, S/o Cheluvaiah. Description of which is as under:

ೆಡೂಲು !ವರ

"ೆಂಗಳ%ರು ಉತರ vÁ®ÆèPÀÄ, ಯಶವಂತಪ(ರ )ೋಬ*, ಮಲ+ಸಂದ ಾಮೆ ,ೇ-ದ .ಾ/ಾ ನಂಬರು 55 ೈ ,ೇ-ದ 39 ಮೂವ/ೊಂಬತೇ ನಂಬರು ಮೆ ¸Àé1ೆ ಚಕುಬಂ4:

ಪ ವ ೆ

- 25 ಅ6 ಅಗಲದ ರ,ೆ ಪ78ಮೆ

- 36 ೇ ನಂಬರು ¸ÀévÀÄÛ ಉತರೆ

- 40 ೇ ನಂಬರು ¸ÀévÀÄÛ ದಣೆ

- «. "ಾಲಸುಬಹ<ಣಂರವರ 38ೇ ನಂ. ¸ÀévÀÄÛ ಈ ಮ>ೆ ಇರುವ ಪ ವ ಪ78ಮ 51 ಐವ/ೊಂದು ಅ6ಗಳA )ಾಗೂ ಉತರ ದಣ 30 ªÀÄÆವತು ಅ6ಗಳA ಅಳ/ೆಯ ,ೈಟು )ಾಗೂ ಇದರB+ರುವ ಒಂದು ಚದರ 7ೕDನ ಮೆ ಇದುE ಈ ಶುದF ಕಯೆ ,ೇ->ೆ. ಇದರ ಇಂ4ನ GಾರುಕHೆI, "ೆJೆ 36,000-00 ರೂKಾLಗ*ೆ ಸ-ಇರು/ೆ".

¶17It is necessary also to note the deed of sale dated

23.09.1981 in terms of which vendor of defendant No.2 purchased site No.39 which is produced at Ex.D3 in terms of which the description of Site No.39 is given as under: ""ೆಂಗಳ%ರು ಉತರ /ಾಲೂ+ಕು ಯಶವಂತ¥ÀÄgÀzÀ ºÉÆç½: ªÀÄ®èಸಂದ ಾಮದ ಸೆ 55 (LªÀvÉÛöÊzÀÄ)ೇ KೈN ಈ 4ನ Oಮೆ ಕಯ Gಾ6ರುವ 39 (ªÀÄƪÀvÉÆÛA¨sÀvÀÄÛ) ೇ ನಂಬರು ¸ÉÊnUÉ ಚಕುಬಂ4 :- ಪ ವ ೆ 25 ಅ6 ರ,ೆ, ¥À²ÑªÀÄPÉÌ 36ೇ ನಂಬರು ¸ÉÊಟು, ಉತರೆ 40ೇ ನಂಬರು ¸ÉÊಟು,

ದಣೆ ಈ 4ನ C¯Á¬ÄzÁ PÀæAiÀÄ¥ÀvÀæzÀ ªÀÄÆ®PÀ ²æà «. ¨Á®¸ÀħæªÀÄtåAgÀªÀjAzÀ ¤ÃªÀÅ PÀæAiÀÄPÉÌ ¥ÀqÉAiÀÄĪÀ 38£Éà £ÀA§gÀÄ ¸ÉÊlÄ. F ªÀÄzsÉå EgÀĪÀ ¥ÀƪÀð-¥À²ÑªÀÄ GvÀÛgÀPÉÌ PÀqÉ 51-0 (LªÀvÉÆÛAzÀÄ) Cr, zÀQëtPÉÌ PÀqÉ 51-0 (LªÀvÉÆÛAzÀÄ) Cr GvÀÛgÀ-zÀQët ¥ÀƪÀðzÀ PÀqÉ 20-00 (E¥ÀàvÀÄÛ) Cr, ¥À²ÑªÀÄzÀ PÀqÉ 28 (E¥ÀàvÉÛAlÄ) Cr C¼ÀvÉAiÀÄ°ègÀĪÀ CAzÀgÉ 15.54 X 7.32 «ÄÃlgÀÄ C¼ÀvÉ EgÀĪÀ ¸ÉÊlÄ F PÀæAiÀÄPÉÌ ¸ÉÃjgÀÄvÉÛ. F ¸ÉÊn£À ªÀiÁPÉðmï ¨É¯É 4,000-00 gÀÆ¥Á¬ÄUÀ¼ÀÄ ªÀiÁvÀæ.".

18.Thus there is considerable difference in the measurement of site No.39 as mentioned in Ex.D3 and in the deed of sale at Ex.D4. In Ex.D3 the vendor of the defendant No.2 had purchased site No.39 which measures East to West 51 feet and North to South on the East 20 feet and on the West 28 feet. Whereas in the deed of sale at Ex.D4 the measurement is given as East to West 51 feet North to South 30 feet.

19.Ex.D2 is the sale deed under which vendor's vendor of the defendant No.2 purchased site No.39, the description given therein tallies with the description given in Ex.D3.

20.Also appropriate to refer to the deed of sale dated

23.09.1981 at Ex.D28 in terms of which vendor of the defendant No.2 namely Sri.Boraiah S/o Cheluvaiah has purchased site No.38 which is situated on the southern side of site No.39 boundaries of which are as under:

""ೆಂಗಳ%ರು ಉತರ /ಾಲೂ+ಕು ಯಶವಂತ¥ÀÄgÀzÀ ºÉÆç½: ªÀÄ®èಸಂದ ಾಮದ ಸೆ 55 (LªÀvÉÛöÊzÀÄ)gÀ KೈN ಈ 4ನ Oಮೆ ಕಯ Gಾ6ರುವ 38 (ªÀÄƪÀvÉÛAlÄ.) ೇ ನಂಬರು ¸ÉÊnUÉ ಚಕುಬಂ4 :- ಪ ವ ೆ ರ,ೆ, ¥À²ÑªÀÄPÉÌ 37ೇ ನಂಬರು ¸ÉÊಟು, £Éà £ÀA§gÀÄ ¥ÀƪÀðPÉÌ : gÀ¸ÉÛ ¥À²ÑªÀÄPÉÌ : 37£Éà £ÀA§gÀÄ ¸ÉÊlÄ, GvÀÛgÀPÉÌ : F ¢£À ¤ÃªÀÅ C¯Á¬ÄzÁ PÀæAiÀÄ ¥ÀvÀæzÀ ªÀÄÆ®PÀ ²æà ¦ ªÉAPÀmÉñïgÀªÀjAzÀ ±ÀÄzÀÞ PÀæAiÀÄPÉÌ ¥ÀqÉ¢gÀĪÀ 39£Éà £ÀA§gÀÄ ¸ÉÊlÄ, zÀQëtPÉÌ: 30 Cr gÀ¸ÉÛ F ªÀÄzsÉå EgÀĪÀ ¥ÀƪÀð¥À²ÑªÀÄ:50 Cr GvÀÛgÀ zÀQët 30(ªÀÄƪÀvÀÄÛ) Cr CxÀªÁ 15.24 x9.14 «ÄÃlgÀÄ C¼ÀvɬÄgÀĪÀ 38£Éà £ÀA§gÀÄ ¸ÉÊlÄ PÀæAiÀÄ ¥ÀvÀæPÉÌ ¸ÉÃjgÀÄvÉÛ".

¶21From the aforesaid deeds of sale at Exs.D3 and D4 read with Ex.D28 it becomes clear Boraiah was the common owner of both site Nos.38 and 39. And in terms of Ex.D4 he has sold site No.39 in favour of defendant No.2.

¶22This Court by order dated 20.11.2025 had allowed the application filed by the appellants under Order 26 Rule 9 CPC for appointment of Court Commissioner. Accordingly, one Sri.Chandraiah, Advocate was appointed as court commissioner. Said court commissioner submitted his report on 08.01.2026 along with sketch and photographs. The sketch produced by the commissioner along with his report is as under:

¶23The aforesaid sketch gives actual measurements of each of the sites bearing Nos.38 to 47 and site No.40 is shown to be missing. Since the aforesaid report was by an advocate court commissioner, at the request of the learned counsel for the parties this Court by order dated

21.04.2026 again appointed Assistant Director of Land Records, Bangalore-North Taluk as court commissioner to conduct survey and to submit the report with reference to the document at Ex.P9-layout plan and the deeds of sale Exhibits P1, D3, D4 and D28 as well as the revenue records. In furtherance, the commissioner has submitted a report. In the report, the commissioner has given the description and dimension of the Site Nos.38, 39, 40 and 41 with reference to Ex.P9 layout plan, and deeds of sale in Exhibits P1, D3, D4, and D28. He has also given actual status and measurement of sites as found on ground. In that site No.40 is stated to be missing. The survey sketch with the description of measurements of the sites is as under:

¶24There is no dispute between the plaintiff and the defendants that sites being claimed by them were formed on the land bearing Sy.No.55 of Mallasandra Village in terms of a layout plan at Ex.P9. Thus there is consensus between the plaintiff and the defendants with regard to layout having been formed in terms of Ex.P9. Therefore Ex.P9 has to be taken as a base document to identify the existence and location of the sites.

¶25As per Ex.P9, the lane in which Site No.39 claimed by the defendant and Site No.40 being claimed by the plaintiff consists of sites commencing from South towards North with Nos.38 upto 47. In the first court Commissioner report, as extracted hereinabove, the Commissioner has given the measurements of all the sites namely site Nos.38 upto 47. Perusal of the said report do not indicate encroachment from the northern side of the site No.40. However there appears to be about 4 to 5 feet of variation in all sites put together.

¶26Sketch furnished by the second court commissioner namely Assistant Director of Land Records provides specific description of the sites as shown in layout plan

at Ex.P9 and description provided in the deeds of sale at Ex.P1, D3, D4 as well as the actual measurement and existence of sites on ground. In that Site No.38 which belongs to Boraiah, who is examined as DW2, he having purchased in terms of Ex.D28 is situated on the southern end of the lane beyond which there appears to be 30 feet road. Measurement of the said Site No.38 as given in layout plan at Ex.P9 is East to West 51+55/2 North to South 23 feet. In the deed of sale at Ex.D28 as already noted above measurement is shown as East to West 50 feet and North to South 30 Feet. On ground, the actual measurement of site No.38 is East to West 54.6+46/2 and North to South 33+52/2. In other words on the North to South instead of 23 feet DW2 seemed to be in possession of 42.5 feet, that is, 19.5 feet more than the measurement shown as per the layout plan and 12.5 feet more than the measurement shown in the deed of sale at Ex.D28.

¶27Defendant No.2 who claimed to have purchased site No.39 in terms of Ex.D4, measurement of which given thereunder is East to West 51 feet and North to South 30 feet. In the layout plan at Ex.P9 measurement of the

said site is given as East to West 50+51/2 and North to South 30 feet. In the document at Ex.D3 under which vendor of the defendant No.2 purchased the said site the measurement is given as East to West 51 feet, North to South on the east 20 feet and on the west 28 feet that is 51x20+28/2. Similar is the measurement shown in Ex.D2. However, on ground, the actual measurement of site No.39 found by the second commissioner is East to West 53+54.6/2 and North to South 30+29/2.

28.In other words, vendor of defendant No.2 (and even vendor's vendor) had right only to an extent of North to South 20+28/2 but he has conveyed the said site measurement showing as North to South 30 feet. Thus, defendant No.2 is in possession of about 30 feet North to South instead of 24 feet.

29.This leads to an inference that Boraiah-DW2 being in possession of excess area on the North to South that is about 19.5 feet (as per Ex.P9) or 12.5 feet (as per Ex.D28). The said excess area falls into the site No.39 being claimed by the defendant No.2. Resulting in defendant No.2 who is already in excess possession of

about 6 feet more than his entitlement, in turn correspondingly occupying portion of site No.40 belonging to the plaintiff.

¶30Since deeds of sale are registered documents conveying right, title and interest in immovable properties, the Court deems it appropriate to take the extent occupied by defendant No.2 to be at 18.5 feet North to South and 50 feet East to West forming southern part of site No.40 i.e., suit schedule property belonging to the plaintiff.

¶31This is the only conclusion that can be arrived at based on the second commissioner report which is in consonance with the documents of title produced by the parties. Defendants have not disputed the said report of the second commissioner.

¶32However, a submission is sought to be made by the learned counsel for the appellants that DW2 who is the owner of Site No.38 though seem to be in possession of site measuring more than what is mentioned in his sale deed, he has occupied the road which is on the southern side of his site. There is neither any pleading nor material evidence placed on record in this regard. Therefore it has to be inferred that on the southern side of Site No.38

there exists road as mentioned in the layout plan and the measurement has to be taken into consideration only from the edge of the said site No.38 which indicate that DW2 has occupied the area more than what he is entitled to under the deed of sale at Ex.D28 which invariably falls into and overlaps the site No.39 belonging to defendant No.2. Defendant No.2 therefore has occupied southern portion of site No.40 of plaintiff which is on to the northern side of his site No.39.

32.There is yet another aspect of the matter which this Court has noticed is Boraiah was the owner of both site Nos.38 and 39 having purchased the same in terms of Ex.D28 and Ex.D3 respectively on the very same day that is

23.09.1981. It is the same Boraiah who has sold site No.39 in terms of Ex.D4 in favour of defendant No.2. In the aforesaid documents name of the father of Boraiah is shown as Cheluvaiah. However in his affidavit filed in lieu of his examination-in-chief as DW2 his father's name is shown as "Boregowda" for the reason best known to him.

¶33Therefore the possibility of DW2 Boraiah being owner of site No.38 occupying portion forming part of site No.39, eventually defendant No.2 occupying portion of site

No.40 more than his entitlement becomes even more acceptable and credible.

¶34The submission made by the learned counsel for the appellants regarding probability of owner of Site No.41 namely Sathyanarana Gupta, brother of plaintiff having encroached upon also cannot be countenanced inasmuch as the report of the first court commissioner as extracted herein above, indicate that on ground, Site No.41 measures North to South 28.7 feet. The measurement of the other sites namely 42, 43, 44, 45, 46, 47, would indicate total minor variation of about 4 to 5 feet. Therefore only conclusion on the basis of the aforesaid factual aspect as to the matter could be drawn is that defendant No.2 occupying substantial portion of site No.40 belonging to the plaintiff.

¶35Further though the defendant No.2 claimed to have been purchased site No.39 with the building thereon and being in possession ever since the date of purchase that is 1992, necessary to note document at Ex.D9 dated

06.01.1994 issued by the Tahsildar, indicating no objection in favour of defendant No.2 to obtain electricity

connection to the house constructed on site bearing Khata No.55/39. The said document indicate he having put up construction in the year 1994. The electricity connection seemed to have been taken only on and after 1994. In other words the claim of the defendant No.2 of earlier existence of the building with the electricity connection cannot be countenanced. Plaintiff claimed to have been in Tamil Nadu between 1994 and 1996 and he had visited the spot in 1996 and found the construction over his site by the defendant No.2. The document at Ex.D9 noted above indicate defendant No.2 constructing the building in the year 1994 and obtaining the electricity connection thereof.

¶36For the aforesaid reasons and analysis this Court is of considered view that the defendants have encroached upon an extent of about 18.5 feet on the North to South and 50 fee East to West forming southern part of Site No.40 subject matter of the suit which belonged to the plaintiff and judgment and decree passed by the trial Court requires to be modified to that extent.

¶37Points are answered accordingly.

¶38Accordingly, following: ORDER

(i) Appeal partly allowed.

(ii) Judgment and decree dated 22.02.2007 passed in O.S.No.2360/1997 on the file of III Additional City Civil Judge, Bangalore, is modified.

(iii) Defendants shall deliver portion measuring an extent of

18.5 feet North to South, 50 feet East to West in their possession forming part of site No.40 subject matter of suit, to the plaintiff.

(iv) Rest of the Judgment and decree of trial Court remains unaltered.

Sd/- (M.G.S. KAMAL) JUDGE

SBN