LAXMIDEVAMMA & ORS.versusRANGANATH & ORS.

                    [2015] 1 S.C.R. 921

                 LAXMIDEVAMMA & ORS.                              A
                              v.
                    RANGANATH & ORS.
               (Civil Appeal No. 176 of 2015)
                     JANUARY 20, 2015
                                                                  B
    [V. GOPALA GOWDA AND R. BANUMATHI, JJ.]

      Code of Civil Procedure, 1908 - s.100- Second appeal
- Concurrent findings of fact - Plaintiffs seeking declaration
of title over 'A' schedule property and that the defendants C
encroached upon 'B' schedule property - Concurrent findings
by courts below that 'A' schedule property was earmarked for
road and no road was formed and the plaintiffs proved their
ownership to 'A' schedule property - In second appeal, High
Court held that declaration to plaintiffs' right cannot be granted D
since first plaintiff earmarked 'A' schedule property for road
and that she could not have full fledged right - Sustainability
of- Held: Not sustainable - In the light of concurrent findings
of fact by courts below, based on oral and documentary
evidence, no substantial questions of Jaw arose in the High E
Court and there was no substantial ground for re-appreciation
of evidence.

     Allowing the appeal, the Court

    HELD: Based upon oral and documentary F
evidences, the courts below recorded concurrent
findings that plaintiffs established their right in 'A'
schedule property and that the plaintiffs are the owners
of 'A' schedule property. The first appellate court
recorded the findings of fact that defendants encroached G
upon suit 'A' schedule property and ordered delivery of
possession of 'B' schedule property. The said finding
does not suffer from any perversity. In the light of
concurrent findings of fact, no substantial questions of
                           921                           H
    922       SUPREME COURT REPORTS             [2015] 1 S.C.R.


A   law arose in the High Court and there was no substantial
    ground for re-appreciation of evidence. While so, the High
    Court proceeded to observe that the first plaintiff has
    earmarked the 'A' schedule property for road and that she
    could not have full fledged right and on that premise
B   proceeded to hold that declaration to plaintiffs' right
    cannot be granted. In exercise of jurisdiction under
    Section 100 C.P.C., concurrent findings of fact could not
    be upset by the High eourt unless the findings so
    recorded are shown to be perverse. The High Court did
c   not keep in view that the concurrent findings recorded
    by the courts below, are based on oral and documentary
    evidence and the judgment of the High Court cannot be
    sustained. The judgment passed by the High Court is set
    aside and that by the courts below is restored. [Para 13,
D   15] [928-G, B, E, H; 829-A-B]
         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 176
    of 2015.

        From the Judgment and Order dated 27.09.2012 of the
E   High Court of Karnataka at Bangalore in RSA No. 297 of 2007.

        G. V. Chandrashekar, Anjana Chandrashekar for the
    Appellants.

          S. N. Bhat, for the Respondents.
F
          The Judgment of the Court was delivered by

       R. BANUMATHI, J. 1. 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
G 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.
H
 LAXMIDEVAMMA & ORS. v. RANGANATH & ORS.                  923
            [R. BANUMATHI, J.]

     2. Appellants-plaintiffs are the owners of the revenue land A
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 B
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         c
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 D
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 E
is described as 'B' schedule property in the suit, despite protest
from the appellants-plaintiffs. lnspite 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 F
property and for possession of the 'B' schedule property in the
court of Addi. Civil Judge (Jr. Divn.), Chikmagalur.

     4. Respondents-defendants filed written statement
admitting that layout was formed out of the above Survey No. G
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. 017).
While selling the above sites, the first plaintiff has reserved 'A'
schedule property for the purpose of road on the southern side H
    924       SUPREME COURT REPORTS                 [2015] 1 S.C.R.


A   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
B   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
c   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.
0
    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.
E
        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'
F 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. Being aggrieved, the defendants filed
  appeal before the first appellate court-Fast Track Court,
  Chikmagalur. The first appellate court confirmed the judgment
G and decree of the trial court and dismissed the appeal vide
  judgment dated 13.10.2006. The unsuccessful defendants
  preferred second appeal before the High Court, which by the
  impugned judgment dated 27.9.2012 allowed the second
  appeal in part and modified the judgment and decree passed
H
 LAXMIDEVAMMA & ORS. v. RANGANATH & ORS.                      925
            [R. BANUMATHI, J.]

by the courts below holding that the plaintiffs are entitled for A
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.         B

     6. Learned counsel for the appellants contended that the
courts below have recorded concurrent findings that 'A'
schedule property was earmarked for road and that no road
was formed and the plaintiffs have proved their ownership to          c
'A' schedule property and that the defendants have failed to
prove that it is a road having the nearest approach. It was
submitted that when the courts below have recorded concurrent
findings, in exercise of its jurisdiction under Section 100 C.P.C.,
the High Court erred in re-appreciating the evidence and in
                                                                      0
interfering with the findings. It was further contended that the
High Court erred in holding that there is a delay in instituting
the suit for relief for mandatory injunction as both the courts
below have rightly held that the suit is within limitation and that
the defendants have encroached upon the plaintiffs' property.
                                                                      E
       7. Per contra, learned counsel appearing for the
respondents-defendants contended that the plaintiffs failed to
produce any documents of title for declaration of their title over
'A' schedule property and that the defendants have encroached
upon the 'B' schedule property. It was further contended that         F
as the plaintiffs themselves have stated that the space was left
for proposed road which indicates that the plaintiffs did not have
full fledged valid right over 'A' schedule property, the High Court
rightly set aside the judgments of the courts below.
                                                                      G
    8. We have carefully considered the rival contentions and
perused the judgments of the courts below as well as the High
Court and the materials on record.        ·

    9. Facts are not in dispute. Plaintiffs owned 1.00 acre of
land in Survey No.1/1 at Chikmagalur viUage which was                 H
    926       SUPREME COURT REPORTS                  (2015) 1 S.C.R.


A   converted for non-agricultural purpose and layout was formed
    with fourteen sites thereon. Ex P.7 is the copy of the order
    issued by the Deputy Commissioner granting permission to the
    plaintiff No.1 for converting the agricultural land into non-
    agricultural purpose. As per condition No.9 therein, except two
B   guntas of land taken over by the municipal authorities for the
    purpose of road at the rate of two guntas per acre, permission
    was granted in respect of remaining 38 guntas. Plaintiffs sold
    site Nos. 12 and 13 and portions of site Nos. 11 and 14 to
    defendant no.1 under two sale deeds. In the first sale deed
c   dated 11 .7.1988 an extent of 80' x 50' was sold and in the
    second sale deed dated 3.1.1992, 22' x 76' was sold.
    Subsequently, first defendant sold the property purchased by
    him from the plaintiffs to the second and third defendants under
    Exs. 016 and 017 dated 11.7.1988 and 3.1.1992 respectively.
    In its judgment in paragraphs 11 to 13, the first appellate court
0
    elaborately discussed the above sale deeds and pointed out
    discrepancies in the boundaries of the property between the
    earlier sale deeds and Ex. 016 sale deed in favour of
    defendant No. 2.

E        10. Plaintiffs have sought for declaration of 'A' schedule
    property earmarked for road. 'B' schedule property is the
    portion of 'A' schedule property measuring 21/2' x 80' which
    according to the plaintiffs was encroached by the defendants.
    Upon consideration of oral and documentary evidence, trial
F   court as well as the first appellate court have recorded
    concurrent findings of fact to the effect that the plaintiffs have
    earmarked the land on the southern side intended for road and
    no road was formed and land of one Advocate V.B.K. Dias was
    acquired and road was formed therein. From the evidence of
G   DW-1-President and Councilor of the Municipality and DW-4,
    Assistant Commissioner, courts below recorded findings that
    the 'A' schedule property is still in the name of the plaintiffs and
    that there was no acquisition and payment of compensation
    made to the first plaintiff in respect of the disputed property. 1
H
  LAXMIDEVAMMA & ORS. v. "RANGANATH & ORS. 927
                     [R. BANUMATHI, J.] "..
                                                   .,,_
     11. Ex. P4 - endorsement issued by the City-Municipality A
to the plaintiff No.1, which clearly shows about the mutation of
khata of the schedule 'A' property in favour of plaintiff No. 1.
Ex. P2 and Ex. P 6 are the tax assessment register extracts
which amply prove that the 'A' schedule property stands in the
name of plaintiffs and that they are the owners of the disputed B
property. As against the resolution passed by the city
Municipality by cancelling the khata of schedule 'A' property in
favour of the plaintiff No.1, he has preferred revision. In the
revision petition filed by the plaintiff No.1 against the resolution
passed by the City Municipality for cancelling the khata of c
schedule 'A' property, the said resolution was set aside and
Ex. PB is the said order. Based upon the above documentary
evidence and other evidence, first appellate court has recorded
concurrent findings that the plaintiffs are successful in showing
that they are the owners of 'A' schedule property and that the
                                                                     0
same is coupled with oral evidence which substantiates the
documentary evidence.

      12. Based upon oral and documentary evidences, the
courts below have recorded concurrent findings that the
plaintiffs are the owners of 'A' schedule property. While so, the    E
High Court ignoring the material evidence, erred in interfering
with the concurrent findings of fact. Whne holding that 'A'
schedule property has been left for the road and that plaintiffs
cannot seek declaration of title, in our considered view, the High
Court brushed aside the oral and documentary evidence based          F
on which the courts below recorded concurrent findings of fact
that 'A' schedule property though earmarked for road. the same
was not formed and that plaintiffs established their right in the
'A' schedule property.
                                                                     G
     13. Insofar as the encroachment of 'B' schedule property,
the sketch prepared by the Assistant Director of Land Records
{ADLR), was produced and the same was marked in the trial
court as Ex. P5. In the first appellate court, the interlocutory
application filed by the plaintiffs, one Sri Basavaraj, Assistant
                                                                     H
                                                                         ·-


    928       SUPREME COURT REPORTS                 [2015) 1 S.C.R.


A   Engineer, Public Works Department was appointed as the
    Court Commissioner, who had inspected the spot and filed the
    report and also the sketch. Based on the report of the Court
    Commissioner and Ex. PS and other evidence, the first
    appellate court has recorded the findings of fact that defendants
B   have encroached upon suit 'A' schedule property and the same
    read as under:-

          " ... No doubt shall arise to hold that, it is proved that,
          defendant Nos. 2 and 3 have encroached upon 781/4' x
          2' in schedule 'A' property, which is also corroborated by
c         Ex-PS. It is also the first rough sketch submitted by the
          Court Commissioner. But though the extent of the
          encroachment area reported therein does not absolutely
          tally with the extent of 'B' schedule property, encroachment
          of 781/4' x 2' by defendant Nos. 2 and 3 out of it is
D         proved .... "

         Based on the report of the Court Commissioner and Ex:
    PS and on the above findings the first appellate court ordered
    delivery of possession of 'B' schedule property. In our view, the
E   said findings of fact do not suffer from any perversity and the
    same ought not to have been interfered by the High Court.

         14. Before the courts below, defendants have taken a plea
    that they had encroached a width of 21/2 feet in the road only
    on the northern side as a result of which width of road towards
F   northern side is reduced from 30 feet to 271/2 feet. Both the
    courts below negatived the said plea holding that there are no
    traces of encroachment of 80' x 3' by the defendants on the
    northern side.

G        15. Based on oral and documentary evidence, both the
    courts below have recorded concurrent findings of fact that
    plaintiffs have established their right in 'A' schedule property.
    In the light of concurrent findings of fact, no substantial
    questions of law arose in the High Court and there was no
H   substantial ground for re-appreciation of evidence. While so,
 LAXMIDEVAMMA & ORS. v. RANGANATH & ORS.                   929
            [R. BANUMATHI, J.]

the High Court proceeded to observe that the first plaintiff has    A
earmarked the 'A' schedule property for road and that she could
not have full fledged right and on that premise proceeded to
hold that declaration to plaintiffs' right cannot be granted. In
exercise of jurisdiction under Section 100 C.P.C., concurrent
findings of fact cannot- be upset by the High Court unless the      B
findings so recorded are shown to be perverse. In our
considered view, the High Court did not keep in view that the
concurrent findings recorded by the courts below, are based
on oral and documentary evidence and the judgment of the
High Court cannot be sustained.                                     c
     16. In the result, the appeal is allowed, impugned judgment
in R.S.A. No. 297/2007 dated 27.9.2012 passed by the High
Court of Karnataka is set aside and the judgment passed by
the Addi. Civil Judge (Jr. Divn.), Chikmagalur as confirmed by
the lower appellate court is restored. Parties are left to bear     D
their own costs.

Nidhi Jain                                        Appeal allowed,