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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 176 OF 2015

LAXMIDEVAMMA & ORS.     .. Appellants

Versus

RANGANATH & ORS.  .. Respondents

J U D G M E N T

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

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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

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‘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

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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-

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 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 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

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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.  

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 ‘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  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.  

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  as  the  

plaintiffs  themselves  have  stated  that  the  space  was  left  for

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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.

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  village which was 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 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 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.  

D16  and  D17 dated  11.7.1988  and  3.1.1992  respectively.   In  its

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judgment  in  paragraphs  11  to  13,  the  first  appellate  court  

elaborately  discussed  the  above  sale  deeds  and  pointed  out  

discrepancies in the boundaries of the property between the earlier  

sale deeds and Ex. D16 sale deed in favour of defendant No. 2.

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  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  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.  

11. Ex. P4 – endorsement issued by the  City Municipality  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

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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 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 schedule ‘A’ property, the said resolution was set aside and  

Ex.  P8  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 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 High Court ignoring  

the  material  evidence,  erred  in  interfering  with  the  concurrent  

findings of fact.  While 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 on which the courts below recorded

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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.

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  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.  P5  and  other  

evidence, the first appellate court has recorded the findings of fact  

that defendants 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 Ex-P5.  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 proved.…”   

Based on the report of the Court Commissioner and Ex. P5 and on  

the  above  findings  the  first  appellate  court  ordered  delivery  of  

possession of ‘B’ schedule property.   In our view, the said findings of

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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 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.

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  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 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 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

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and  documentary  evidence  and  the  judgment  of  the  High  Court  

cannot be sustained.     

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 Addl. Civil  

Judge (Jr. Divn.), Chikmagalur as confirmed by the lower appellate  

court is restored.  Parties are left to bear their own costs.

…………………………J. (V. Gopala Gowda)  

…………………………J. (R. Banumathi)   

New Delhi;  January 20, 2015

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ITEM NO.1A-For Judgment     COURT NO.12               SECTION IVA                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Civil Appeal  No(s).  176/2015 LAXMIDEVAMMA & ORS.                                Appellant(s)                                 VERSUS RANGANATH & ORS.                                   Respondent(s) Date : 20/01/2015 This appeal was called on for pronouncement of  JUDGMENT today. For Appellant(s)                      Ms. Anjana Chandrashekar,Adv.                       For Respondent(s)                      Mr. S. N. Bhat,Adv.           

Hon'ble  Mrs.  Justice  R.  Banumathi  pronounced  the  judgment  of  the  Bench  comprising  Hon'ble  Mr.  Justice  V.  Gopala Gowda and Hon'ble Mrs. Justice R. Banumathi.

The appeal is allowed in terms of the Signed Reportable  Judgment.

     (VINOD KR. JHA)    (MALA KUMARI SHARMA)

COURT MASTER COURT MASTER (Signed Reportable judgment is placed on the file)