SRI. N T VENKATESH v. SMT.THAYI MUDHAMMA

SMT.THAYI MUDHAMMA D/O GARANI MYLANNA, AGED ABOUT 57 YEARS, R/AT KARKALGATTA, HOLVANAHALLI HOBLI, KORATAGERE TALUK, TUMAKURU DISTRICT

2. THE MANAGING DIRECTOR VISHVESHWARAIAH JALA NIGAMA NIYAMITHA, NO.4, YATHINAHOLE YOJANA DIVISION, ANANDARAO CIRCLE, BENGALURU 560009. KANNAN Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:15478-DB RFA No. 123 of 2020

3. THE SPECIAL LAND ACQUISITION OFFICER, YATHINAHOLE SCHEME, GANDHINAGAR TUMAKURU 572110 (BY SRI. V B SIDDARAMAIAH, ADVOCATE) …RESPONDENTS THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 30.08.2018 PASSED IN OS.NO. 46/2012 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., MADHUGIRI, DECREEING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION AND ETC. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR HON'BLE MR JUSTICE VENKATESH NAIK T ORAL JUDGMENT (PER: HON'BLE MR JUSTICE K.SOMASHEKAR) Heard learned Senior counsel Sri D.L.Jagadeesh for appellant/defendant learned counsel Sri V.B.Siddaramaiah for respondents/plaintiffs.

2. The brief facts of the case is as under: The case of the plaintiff is that she had purchased 0-10 ½ guntas in Sy.No.51/5, which measures 1 Acre 23 Guntas, out of which 0-33 guntas under the registered sale deed dated

29.11.2001 and the said land measuring 0-10 ½ guntas has - 3 - NC: 2025:KHC:15478-DB RFA No. 123 of 2020 been described as converted land measuring 11435 sq.ft, as per the schedule mentioned in the said sale deed. The plaintiff had also purchased 10 ½ guntas in Sy.No.51/5, which measures 1 acre 23 Guntas out of which 0-33 guntas under the registered sale deed dated 30.11.2001 and the said land measuring 0-10 ½ guntas has been described as converted land measuring 11435 sq.ft as per the schedule mentioned in the said sale deed. The aforesaid two sale deeds under which the plaintiff purchased measuring 0-21 guntas in Sy.No.51/6. The sale deed recital specifically refers to there was no formation of the layout, roads are not been framed, drainages have not been formed, no civic amenity. Therefore, the claim of the plaintiff under the aforesaid two sale deeds is in respect of 0-21 guntas of land in Sy.No.51/6, which is a converted land together measuring by way of square feet 22870.

3. Further, the plaintiff has filed a suit before the trial Court. The conversion order dated 17.06.1996 was granted in favour of the defendant subject to conditions. In the said suit the defendant contended that description of the boundary in schedule to the plaint and schedule to the sale deeds i.e., Ex.P1 and Ex.P2 dated 29.11.2001 and 30.11.2001 does not tallied - 4 - NC: 2025:KHC:15478-DB RFA No. 123 of 2020 each other, the plaintiff has given wrong boundaries. The measurement of the property sold under the aforesaid two sale deeds is only 0-21 guntas, measuring 22870 sq.ft does not refers to any sites, formation of layout.

4. The respondent herein who is the plaintiff therein has filed the suit in O.S.No.46/2012 for declaration of title that she is absolute owner and she is in peaceful possession and enjoyment of the suit schedule property and for permanent injunction restraining the defendant. The schedule property described in the plaint bearing Sy.No.51/6 measuring 0-33 guntas out of which 22870 sq.ft (19) sites excluding the road margin and public reserved land as per the conversion order and layout plan in the said Survey number situated in the limit of Mudalapanne Village, Kasaba Hobli, Koratagere Taluk, Tumakuru District. However, the description of the boundary in the schedule to the plaint is contrary to measurement and the boundaries as per Ex.P1 and P2. In spite of the denial of the claim of the plaintiff, the Court has decreed the suit. Hence, the appellant/defendant has preferred this appeal. - 5 - NC: 2025:KHC:15478-DB RFA No. 123 of 2020

5. Learned Senior counsel for the appellant referred the judgment and decree rendered by the Additional Senior Civil Judge and JMFC, Madhugiri in O.S.No.46/2012 dated

30.08.2018 and also referred the evidence of PW.1 to PW.3 and Ex.P1 to Ex.P53. Ex.P1 is sale deed dated 29.11.2001 and Ex.P2 is sale deed dated 30.11.2001. He also advanced his arguments emphatically and placed reliance of DINA MALA PUBLICATIONS VS. TIRUCHIRAPALLI MUNICIPALITY. He referred para No.9 of the aforesaid judgment. He also referred provision of Sections 91 and 94 of the Indian Evidence Act,

6. On contrary, learned counsel Sri V.B.Siddaramaiah has taken us through documents at Ex.P1, P2, 21, 46A and 47. He submits that 12 guntas of land area was taken for formation of road.

7. Learned Senior counsel Submits that there is no dispute between appellant and respondents relating to 21 guntas in Sy.No.51/6. He further submits that the dispute is only regarding 12 guntas of land in Sy.No.51/6. He further submits that appointment of Court Commissioner is very much - 6 - NC: 2025:KHC:15478-DB RFA No. 123 of 2020 necessary to resolve the dispute between appellant and respondents.

8. Keeping in view the submissions made by the learned Senior counsel for the appellant and learned counsel Sri V.B.Siddaramaiah for respondents and judgment and decree rendered by the Court below, it is deemed appropriate that there is a dispute between the appellant and defendants relating to 12 guntas of land in Sy.No.51/6. Accordingly, we proceed to pass the following : ORDER

1. Appeal filed by the appellant under Order 41 r/w Section 96 of the CPC is hereby allowed. The judgment and decree in O.S.No.46/2012 dated

30.08.2018 passed by the Additional Senior Civil Judge & JMFC, Madhugiri is set aside.

2. The matter is remanded back to the Court of the Additional Senior Civil Judge & JMFC, Madhugiri in O.S.No.46/2012. The Court below dispose of the matter within a period of 6 months - 7 - NC: 2025:KHC:15478-DB RFA No. 123 of 2020 from the date of receipt of copy of this order by giving opportunity to both parties.

3. Both parties are directed to keep present before the Court below on 06.06.2025.

4. Either party shall make necessary application for appointment of the Court Commissioner or ADLR relating to the existence of road in 12 guntas of land in Sy.No.51/6.

5. Any observation made in this matter shall not come in the way of disposal of the aforesaid case. All contentions made by the parties are kept open. Registry is directed to send back the trial Court records forthwith. RJ SD/- (K.SOMASHEKAR) JUDGE SD/- (VENKATESH NAIK T) JUDGE