Karnataka High Court
Smt Girijamma vs Sri V Kondappa on 5 July, 2018
Author: R Devdas
Bench: R Devdas
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05th DAY OF JULY, 2018
BEFORE
THE HON' BLE MR.JUSTICE R DEVDAS
R.S.A. NO.3150 OF 2006 (INJ)
BETWEEN
1. SMT GIRIJAMMA
AGED ABOUT 81 YEARS
W/O LATE SRI P MALLESHAIAH
2. SRI P M SHIVANNA
AGED ABOUT 55 YEARS
S/O LATE SRI P MALLESHAIAH
BOTH ARE RESIDING AT
ARALIPETE, KOLAR
KOLAR DISTRICT - 563101. ... APPELLANTS
(BY SRI. G PAPI REDDY, ADV.)
AND
1. SRI V KONDAPPA
AGED ABOUT 88 YEARS
S/O LATE SRI VENKATASWAMAPPA
R/AT KATARIPALYA,
KOLAR, KOLAR DISTRICT - 563 101.
SINCE DECEASED BY LRS.
1(a). SMT VENKATAMMA
W/O LATE SRI V KONDAPPA
AGED ABOUT 80 YEARS
1(b) SMT K MOHAN MURTHY
S/O LATE SRI V KONDAPPA
2
AGED ABOUT 60 YEARS
1(c) SMT K VISHALAKASHI
D/O LATE SRI V KONDAPPA &
W/O C S SRINIVASA MURTHY
AGED ABOUT 56 YEARS
1(d) SMT K THILOTHAMA
D/O LATE SRI V KONDAPPA &
W/O LATE P V RAMAKRISHNAIAH
AGED ABOUT 52 YEARS
1(e) SMT K NIRMALA
D/O LATE SRI V KONDAPPA &
W/O N THYAGARAJ
AGED ABOUT 49 YEARS
1(f) SRI K RAMESH
S/O LATE SRI V KONDAPPA
AGED ABOUT 46 YEARS
1(g) SMT K LAKSHMI
D/O LATE SRI V KONDAPPA &
W/O K K SATHYANARAYANA
AGED ABOUT 44 YEARS
1(h) SRI K SHIVAKUMAR
S/O LATE SRI V KONDAPPA
AGED ABOUT 42 YEARS
1(i) SRI V K PRASHANTH
S/O LATE SRI V KONDAPPA
AGED ABOUT 55 YEARS
ALL ARE RESIDING AT
W-11/369, KATARIPALYA,
KOLAR TOWN,
KOLAR DISTRICT.
2. SMT UMA DEVI
AGED ABOUT 50 YEARS
W/O SRI P.M SHIVANNA
R/O ARALIPETE
3
KOLAR
KOLAR DISTRICT - 563 101.
3. SMT PUSHPALATHA
AGED ABOUT 48 YEARS
W/O SRI P.M PRABHUDEVA
D/O SRI T SADASHIVAIAH
R/AT NO.300, 15TH A CROSS
1ST A MAIN, YELAHANKA NEW TOWN
BANGALORE - 560 064.
4. SRI P M MANJUNATH
AGED ABOUT 50 YEARS
S/O LATE SRI P MALLESHAIAH
ARALIPETE, KOLAR
KOLAR DISTRICT - 563 101.
5. SMT MEENA MANJUNATHA
AGED ABOUT 45 YEARS
W/O SRI P.M MANJUNATH
R/AT ARALIPETE
KOLAR, KOLAR DISTRICT - 563 101.
6. SMT SHIVAKUMARI
AGED ABOUT 59 YEARS
W/O SRI M.C. SIDDALINGASWAMY
R/AT ARALIPETE
KOLAR, KOLAR DISTRICT - 563 101.
7. SRI M C SIDDALINGASWAMY
AGED ABOUT 62 YEARS
PROPRIETOR
PRASANTH PHOTO STUDIO
ARALIPETE KOLAR
KOLAR DISTRICT - 563 101.
7(a) SRI M S PRAKASH
AGED ABOUT 40 YEARS
S/O LATE SRI M C SIDDALINGASWAMY
R/O ARALIPETE, KOLAR CITY
KOLAR DISTRICT
7(b) SRI M S PRASHANTH
AGED ABOUT 36 YEARS
4
S/O LATE SRI M C SIDDALINGASWAMY
R/O ARALIPETE, KOLAR CITY
KOLAR DISTRICT.
8. SMT GURUMALLAMMA
AGED ABOUT 68 YEARS
W/O SRI G MADEVAIAH
ARALIPETE, KOLAR
KOLAR DISTRICT - 563 101. ... RESPONDENTS
(BY SRI. N MURALI, ADV. FOR R1(A TO I)
R2 TO R6, R7(A) & R7(B), R8 ARE SERVED)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED: 12.7.2006 PASSED IN
R.A.NO.138/2000 ON THE FILE OF THE PRL.CIVIL JUDGE (SR.DN.) &
CJM, KOLAR, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGEMENT AND DECREE DATED: 15.7.2000 PASSED IN OS.NO.
504/1993 ON THE FILE OF THE ADDL.CIVIL JUDGE (JR.DN.) & JMFC,
KOLAR.
THIS RSA COMING ON FOR FURTHER HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
R.DEVDAS J., (ORAL):
This regular second appeal is directed against the judgment and decree passed by the First Appellate Court in R.A.No.138/2000 and the judgment and decree of the trial court in O.S.No.504/1993.5
2. The parties shall be referred to as they were referred in the original suit.
3. The brief facts of the case are as follows:
The property described as 'A' Schedule property which measures about 130' x 108' originally belonged to one P.V.Malleshaiah S/o Veerabhadraiah. Defendant No.1 is the wife while the defendants No.2, 5 and 7 are the children of the said P.V.Malleshaiah. Defendants No.3, 4 and 6 are the daughters-in-law and defendant No.8 is the son-in-law of P.V.Malleshaiah. Defendant No.9 is his sister. It is the case of the plaintiff that Sri P.V.Malleshaiah during his life time had borrowed certain money from Taluk Rural Industrial Co-
operative Society Ltd., Kolar, mortgaging 'A' schedule property and one another property. Since the loan was not repaid, the Society raised a dispute under the Karnataka Co-operative Societies Act and obtained an award in case No.243/69-70 before the Asst. Registrar of Co-operative Societies and 'A' schedule property was brought for sale. In the public auction, the plaintiff purchased 'A' schedule property and the 6 sale was confirmed and possession was handed over to the plaintiff V.Kondappa.
4. The plaintiff contends that he sold a portion of 'A' schedule property marked as A, E, F, G to some of the defendants under three different sale deeds, all dated 8.1.1992. It is stated in the plaint that the three sale deeds and documents relating to the sale proceedings were filed before the Civil Court in O.S.No.449/1989. The portion retained by the plaintiff is shown as 'B' schedule property in the plaint. It is contended by the plaintiff that in between the property sold to the defendants and the portion retained by him, there is a passage of 10' reserved for the use of the plaintiff. The plaintiff contends that the defendants who purchased a portion of the 'A' schedule property, had not paid the entire sale consideration and without paying the entire sale consideration they had sought for change of katha in their names before the Town Municipal Council, Kolar. Since the plaintiff objected to the change of katha, the defendants started obstructing and interfering with the possession and 7 enjoyment of the 'B' schedule property, especially the passage of 10' lying between the two properties, on which the defendants have no manner of right title or interest. Reserving his right to seek cancellation of the sale deeds dated 8.1.1992 in a separate suit, the plaintiff approached the trial court seeking a decree of permanent injunction restraining the defendants and all persons claiming under the defendants from interfering with the plaintiff's possession and enjoyment of the 'B' schedule property in any manner whatsoever, subject to the right of passage of 10' width. Sri P.M.Shivanna (defendant No.2), elder son of Sri P.V. Malleshaiah and defendant No.1 who is the wife of Sri P.V.Malleshaiah filed written statement and rest of the defendants adopted the written statement filed by the defendant No.2 denying all the allegations made in the plaint. Except admitting 'A' schedule property belonged to Sri P.V.Malleshaiah and the relationship between Sri 8 P.V.Malleshaiah and the defendants, the defendants denied all of other averments. The defendants contended that they continued to be in possession of the property in question having inherited the same from Sri P.V.Malleshaiah. The defendants have disputed the factum of 'A' schedule property being brought for sale and the fact that the plaintiff purchased 'A' schedule property in a public auction and as a consequence denied the ownership of the plaintiff over the suit schedule property. It is contended by the defendants that the plaintiffs who posed himself to be a well wisher of the defendants' family has cheated the entire family of the defendants and that the documents produced by the plaintiff are fraudulent documents. The Trial Court has framed the following three issues;
(1) Whether the plaintiff proves that he is in lawful possession and enjoyment of 'B' schedule property? (2) Does the plaintiff prove the interference of the defendants?
(3) What order or decree?
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5. The plaintiff has entered the witness box as PW1. Four other witnesses have been examined for the plaintiff while 16 documents are marked in Ex.P series and 19 documents in Ex.C series. On behalf of the defendants four witnesses have entered the witness box and Ex.D1 to D5 are photographs, Ex.D6 is a receipt and Ex.D1(a) to 5(a) are the negatives of the photographs.
6. The plaintiff produced the certified copy of the sale deed executed by Sadashivaiah in favour of Malleshaiah marked as Ex.P2, certified copy of the sale deed executed by Industrial Bank in favour of the plaintiff is Ex.P3, the registered sale certificate is Ex.P4 and encumbrance certificate is Ex.P5. The other documents which were got marked as Exhibits on behalf of the plaintiff are the katha certificate, tax paid receipts, and more importantly certified copy of the sale deeds executed by the plaintiffs in favour of some of the defendants.
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7. The Assistant Registrar, Rural Industrial Development Co-operative Bank Limited, has been examined as PW2. The Secretary of the Bank is examined as PW3, who has deposed regarding the loan obtained by P.V.Malleshaiah, regarding non-repayment of the loan, substantiating the same by producing the ledger extract and register, the proceedings initiated for recovering the amount due from P.V.Malleshaiah, the auction conducted by the Bank and receipt of money on account of the auction from V.Kondappa. In fact, PW3 has given complete details of the amount that was receivable from Malleshaiah, the amount recovered from auction, the details of the principal amount, interest levied etc. PW4 is the Deputy Registrar of Industrial Bank, during the relevant period has also supported the case of the plaintiff.
8. One Buchappa is examined as PW5 and he has deposed about the measurement and details of the suit schedule property and he has supported the case of the 11 plaintiff with respect to his possession of the suit schedule property for the last 20-25 years.
9. The defendants on the other hand have led oral evidence to substantiate their contentions that 'A' schedule property was never brought for auction and the defendants continue to be in possession of the suit schedule property having inherited the same from Sri P.V.Malleshaiah. It is contended that possession of 'A' schedule property was never given to the plaintiff under the sale certificate. It is contended that the Deputy Commissioner has not authorised any person to deliver possession of the property under the sale certificate. It is therefore contended that the sale certificate is not valid in the eye of law. The defendants have attacked the sale certificate stating that it does not bear the seal of the concerned authority, it is not a genuine document and possession was not delivered to the plaintiff under the sale certificate. It is further contended that the procedures under the Karnataka Co-operative Societies Act, especially Section 89-C (2) is not followed, since the Deputy Commissioner has 12 not appointed any person to deliver possession to the purchaser.
10. Reliance is placed by the defendants on the sketch prepared by the Court Commissioner to contend that there are 'Vappara' and other structures in the 10 ft. passage and it has been established that the structure is put up by the defendants and therefore the plaintiff was never in possession and enjoyment of the 10 ft. width passage.
11. The Trial Court has given its findings on the sale certificate and sale deeds executed by the plaintiff in favour of the defendants. The Trial Court has come to a conclusion that the sale certificate is a registered document which has come into existence on 21.04.1970. It has held that Ex.C18 is a document by which possession is delivered to the plaintiff. The Trial Court has also taken note of Ex.P7 which is a letter written by Mysore State Industrial Bank to the Town Municipal Council, Kolar, to change the katha in favour of the plaintiff.
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12. The Trial Court holds that the defendants are disputing the auction sale and delivery of possession under the sale certificate after a lapse of 25 years, while the defendants do not say anything about the discharge of loan by P.V.Malleshaiah. The Trial Court holds that the evidence on record reveals that the sale was confirmed and possession was delivered to the plaintiff and he has been in lawful possession of 'A' schedule property. The Trial Court is of the opinion that if there are any laches in the auction sale or confirmation of sale or regarding delivery of possession, the Civil Court has no jurisdiction to entertain the same, in view of Sections 89 and 89-C (3) of the Karnataka Co-operative Societies Act, 1959.
13. Another important aspect considered by the Trial Court is that P.V.Malleshaiah, died about 30 years back and if the contentions of the defendants had to be accepted, they could not have kept quiet without getting the katha transferred in their name after the death of P.V. Malleshaiah. These aspects disprove the claim of the defendants that they 14 remained in possession of the remaining portion of 'A' schedule property by inheritance and that they did not purchase the property from the plaintiff. The Trial Court has come to a categorical conclusion that the defendants are in possession of the remaining portion of 'A' schedule property by virtue of the sales deed executed by the plaintiff in their favour, which is evidenced by the fact that they sought for change of katha from the Municipality by virtue of the sale deeds executed in their favour and notice was issued to the plaintiff by the Municipality on the basis of the application made by the defendants. The Trial Court has examined the other documents such as katha certificate, tax paid receipts etc., whereby the actual ownership and occupation of 'B' schedule property by the plaintiff is evidenced and affirmed.
14. The Trial Court after examining the materials on record and the report of the Court Commissioner, is of the opinion that the 10 ft. width passage is a common passage meant for the use of the occupants of 'B' schedule property and the remaining portion of 'A' schedule property. In other 15 words, the passage is meant for the use of both the plaintiff and the defendants. The Trial Court holds that the plaintiff is in lawful possession and enjoyment of 'B' schedule property. It further holds that on their own showing the defendants are interfering with the plaintiff's peaceful possession and enjoyment of 'B' schedule property and therefore decrees the suit permanently injuncting the defendants from interfering with the plaintiff's lawful possession and enjoyment of 'B' schedule property mentioned in Ex.P1 sketch measuring East to West 48 ft. and North to South 108 ft.
15. The defendants No.1 and 2 took up the matter in appeal before the first appellate court in R.A.No.138/2000. The other defendants before the Trial Court were arrayed as respondents No.2 to 8. The first appellate court has raised the following points for consideration and determination:
1) Whether the plaintiff was in lawful possession of the suit schedule property as on the date of the suit?16
2) Whether the judgment and decree under appeal are perverse, capricious or liable to be set-aside?
3) What order?
16. The First Appellate Court has carefully re- appreciated the evidence on record, both oral and documentary evidence and found no reason to interfere with the judgment and decree of the Trial Court. Accordingly the appeal came to be dismissed.
17. During the course of the second appeal, the original plaintiff died and his legal representatives are brought on record. The grounds raised by the defendants before this Court are that plaintiff has claimed permanent injunction only in respect of 'B' schedule property, which according to the plaintiff is a passage. The plaintiff has not sought for declaration of easementary rights over 'B' schedule property and the suit should have been dismissed. Similarly, since the defendants have denied the title of the plaintiff to 'B' schedule property, a mere suit for injunction without seeking 17 declaration of right over the passage is not maintainable. Since the plaintiff has admitted that the defendants also have a right to use the passage, the plaintiff cannot claim exclusive right over the suit schedule property.
18. As per the report of the Court Commissioner, the defendants have put up structures in the site area which goes to prove that the defendants are in possession of the passage and therefore the Courts below have wrongly come to a conclusion that the plaintiff is in lawful possession of 'B' schedule property.
19. The following substantial questions of law are raised for consideration in this appeal:
i) Whether the Courts below are justified in decreeing the suit for permanent injunction only without seeking declaration of right to pass through in 'B' - schedule property?
ii) Whether the Courts below are justified in accepting the case of the plaintiff, granting Injuncitive Relief in respect of 'B' schedule property, where the buildings and 18 foundation are existing in the 'B' schedule property which according to the plaintiff is a passage?
iii) Whether the plaintiff is entitled of injunction against the defendants in view of the admission in the plaint itself that the defendants have right to pass through in the 'B' schedule property?
20. During the course of the arguments, learned Counsel for the appellants has restricted his arguments to the substantial question, "whether a suit for mere bare injunction is maintainable without seeking declaration when the defendants have denied the title of the plaintiff over the suit schedule property?"
21. Sri G.Papi Reddy, learned Counsel appearing for the appellants has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Anathula Sudhakar Vs. P.Buchi Reddy (Dead) by L.Rs. & Ors. reported in AIR 2008 SC 2033. Their Lordships have laid down the general principles as to when a mere suit for permanent injunction 19 will lie and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief.
22. The relevant paragraphs are extracted here below:
10. On the contentions urged, the following questions arise for our consideration in this appeal:
i)What is the scope of a suit for prohibitory injunction relating to immovable property?
ii)Whether on the facts, plaintiffs ought to have filed a suit for declaration of title and injunction?
iii) Whether the High Court, in a second appeal under section 100 CPC, examine the factual question of title which was not the subject matter of any issue and based on a finding thereon, reverse the decision of the first appellate court?
iv) What is the appropriate decision?
Re: Question (i):
11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and /or possession with injunction as a consequential 20 relief, are well settled. We may refer to them briefly.
11.1 Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
11.2 Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
11.3 where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from 21 defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
23. The learned Counsel submits that the defendants have filed their written statement and have clearly and in unequivocal terms denied title to the plaintiff over the suit schedule property. In such a situation, the suit of the plaintiff seeking bare injunction could not have been decreed by the courts below. It is therefore his submission that on this ground alone, the impugned judgments are liable to be set aside.
24. Sri N.Murali, learned Counsel appearing for the legal representatives of the original plaintiff submits that in the same judgment relied upon by the learned Counsel for the appellants, their Lordships have clarified as to what would amount to raising a cloud on the title of the plaintiff over the 22 property. The relevant paragraph is extracted for easy reference:
12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or 23 title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration.
Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction.
He may file the suit for declaration with
consequential relief, even after the suit for
injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.
25. Their Lordships have held that where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient.
26. The learned Counsel also places reliance on the judgment of the Hon'ble Supreme Court in the case of 24 Vishram alias Prasad Govekar and Ors. Vs. Sudesh Govekar (D) by Lrs. And Ors. reported in AIR 2017 SC 583.
27. The learned Counsel relies on this judgment to rebut the argument of the defendants that the report of the Court Commissioner establishes that the defendants have put up certain structures over the common passage and therefore, the Court could not have come to a conclusion that the plaintiff is in lawful possession of the 10 ft. common passage.
28. Their Lordships in this case have held that an act of trespass by putting an illegal structure in a portion of the suit property which otherwise admeasures an area of 1000 sq. mtrs. cannot establish that the plaintiff is in possession of the suit property, as nothing has been disclosed as to what is the nature of possession in respect of the remaining portion of the suit property. There is nothing on record to suggest that on the date of filing the suit, the appellants have exercised any legal right of possession in the disputed house and the suit property. A sporadic act of trespass by the appellants in 25 demolishing the existing structure and attempting to put up a new construction therein cannot be held to be in possession of such structure.
29. Learned Counsel has further relied upon a judgment of this Court in the case of Shri Durgappa since dead represented by his LRs. Vs. Nagamma and Others reported in (2017) 4 KCCR 3287.
30. Adverting to the judgment of the Hon'ble Supreme Court in the case of Anathula Sudhakar (supra), it is held that if there is a serious dispute with regard to the title of the plaintiff taken by the defendants, then the suit without a relief of declaration of title is not maintainable. However, in a decision reported in AIR 2016 SC 2250 noted supra if suppose the defendant's plea is very casual in nature and is unable to prove the defence taken up by him with regard to the title and proving his case, then it does not amount to prima facie casting cloud over the title of the plaintiff. In such an eventuality, the suit is maintainable even without declaratory relief.
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31. What is glaring in this case is that the defendants who have acquired title over the remaining portion of 'A' schedule property from the plaintiff through three registered sale deeds deny their own sale deeds. The other aspect is having set up a defence that they are in possession of the remaining portion of 'A' schedule property by way of succession, they have not made any attempt to get the katha transferred in their name. As pointed out earlier Sri P.V.Malleshaiah, passed away more than 30 years back and no efforts have been made by the defendants to get the katha transferred in their name and it is admitted that they have not paid taxes towards the property which is in their possession. More than anything else, the defendants do not raise their little finger as to how the plaintiff is in possession and enjoyment of 'B' schedule property which measures 48' x 108' and they are residing in 'B' schedule property. No attempt is made to challenge plaintiff's title and possession of suit schedule property. The evidence on record clearly establish that the plaintiff has clear title over the property 27 and the defendants have attempted to deny the title of the plaintiff over the suit schedule property in a casual manner. Mere denial made by the defendants does not raise a cloud over the plaintiff's title.
32. Having regard to the evidence on record and the consideration given by the Courts below and having given anxious consideration to the arguments of the learned Counsels, this Court is of the opinion that no fault could be found with the impugned judgments passed by the Courts below. The substantial question stands answered in favour of the plaintiff.
33. Accordingly, the appeal is dismissed with costs.
SD/-
JUDGE KLY/JT