M.D. Venkatesh vs The Managing Director, Karnataka State Industrial Development Corporation Ltd.

A.S. Pachhapure, J.—The Judgment and Decree dismissing the suit of the appellant by the Trial Court and confirmed by the Appellate Court is challenged in this second appeal.

The facts reveal that the appellant who was plaintiff in the Trial Court claims to have purchased the property bearing Sy. No. 493/2A measuring 0.13 guntas and Municipal Khatha No. 8010/1314 described in the schedule of the plaint under a registered sale deed dated 16.03.1965 from its erstwhile owner. Since there was an obstruction to his possession by the respondents a suit came to be instituted.

The 1st defendant appeared before the Trial Court and filed written statement denying the averments made and it was the contention that the land bearing Sy. No. 493/2 was initially sold to Mysore Sugar Company by sons of Patel Boraiah the erstwhile owner in the year 1950 and subsequently in the year 1978 the said land measuring 0.13 guntas was purchased by Karnataka Industrial Area Development Board and in turn the said land was sold to the defendant Karnataka State Small Industries Development Corporation. The remaining portion of the land in Sy. No. 493/2 is said to have been given to civic amenities for the formation of road. The Trial Court after going through the pleadings framed the issues and recorded the evidence. The suit came to be dismissed.

Aggrieved by the judgment and decree an appeal was filed by the appellant. The said appeal was dismissed and the matter came before this Court. This Court remitted the matter to the first Appellate Court with a direction to appoint a Commissioner to locate the suit property and on consideration of the report to grant a decree. The First Appellate Court appointed a Commissioner in view of the directions issued by this Court. The Commissioner submitted his report and he was examined as PW-3. The First Appellate Court again heard the Counsel and on appreciation of evidence on record, dismissed the appeal affirming the judgment and decree of the Trial Court. Aggrieved by the judgments and decrees of the Court below, the present appeal is filed.

At the time of Admission, the following substantial question of law has been raised:

"Whether the First Appellate Court has addressed itself to all the issues of fact and law and has discharged obligations placed on it in law"?

The learned Counsel for the appellant submits that the Commissioner has bifurcated the land and identified the properties bearing Sy. No. 493/2A under the Sketch - Ex. P8 and he contends that it is the property purchased by the appellant. He submits that as this Court directed to grant a decree in pursuance of the report of the Commissioner, he submits that the dismissal of the appeal is improper.

Learned Counsel for the respondents has supported the judgment and decree of the Court below.

Perusal of Ex. P8 - Report submitted by the Commissioner, clearly indicate that the land was surveyed and the sketch was prepared and it reveals that the area mentioned in green colour measures 13 guntas and the area shown by blue colour i.e. D, E, J, K it pertains to the Road on the western side and the area shown by the pink colour i.e. ABMN measures 05 guntas which is on the eastern side of the property shown in green colour. If it is so and if the area measured by the Commissioner is taken into consideration it would be more than 13 guntas. That apart, in the plaint, it is mentioned by the plaintiff that he is the owner of, land bearing Sy. No. 493/2. The boundaries mentioned also in respect of Sy. No. 493/2 i.e. before bifurcation of Sy. No. 493/2A and 493/B. Therefore, the description as given by the plaintiff in the suit is inconsistent with the sketch which has been submitted by the Commissioner who was appointed during the pendency of the Appeal.

In pursuance of the directions issued by this Court, the First Appellate Court appointed the Commissioner and perused the report submitted by him and has not accepted the report assigning reasons elaborately referred to in the judgment. The perusal of the sketch and the evidence and the pleadings of the appellant in the plaint, it clearly indicates that there is no proper identification of the property which was purchased by the appellant under the sale deed - Ex. P1.

In the circumstances, I am of the opinion that the appellant has failed to establish his possession over the area, said to have been purchased by him as there is no specification of boundaries and the evidence placed on record is inconsistent. Therefore, the finding rendered to dismiss the suit by the Trial Court and affirmed by the Appellate Court cannot be interfered with by this Court as it has adversed all the issues on proper appreciation of the evidence. Therefore, I answer the substantial question of law in the affirmative.

The learned Counsel prays that the present suit is only for injunction and he seeks liberty to file a suit for declaration and for consequential relief. If the law permits, the appellant is at liberty to seek necessary reliefs.

For the aforesaid reasons, the appeal does no survive for consideration and hence, it is dismissed.