Karnataka High Court
Sri. M. Srinivasa Reddy vs Sri. Yellappa on 2 March, 2020
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
REGULAR FIRST APPEAL No.281 OF 2015
C/W
REGULAR FIRST APPEAL No.266 OF 2015
IN REGULAR FIRST APPEAL No.281 OF 2015
BETWEEN:
1. SRI. M. SRINIVASA REDDY
AGED ABOUT 60 YEARS,
S/O LATE MUNISWAMAPPA @
MUNISWAMY REDDY,
RESIDING AT NO.222/2, 11TH MAIN,
RELIABLE LAKE DEW RESIDENCY,
HARLUR
BANGALORE-560102
2. SRI S M ASWATHA REDDY
AGED ABOUT 69 YEARS,
S/O LATE MUNISWAMAPPA @
MUNISWAMY REDDY,
RESIDING AT SINGASANDRA VILLAGE,
BEGUR HOBLI,
BANGALORE SOUTH TALUK,
PIN-560068
3. SRI M DASRATH REDDY
AGED ABOUT 55 YEARS,
S/O LATE MUNISWAMAPPA @
2
MUNISWAMY REDDY,
RESIDING AT SINGASANDRA VILLAGE,
BEGUR HOBLI,
BANGALORE SOUTH TALUK
PIN-560068
...APPELLANTS
(BY SRI: SHANKARANARAYANA BHAT N, ADVOCATE)
AND:
1. SRI. YELLAPPA
AGED ABOUT 57 YEARS,
S/O NALLAPPA
RESIDING AT NO.92,
CHIKKALAKSHMAIAH LAYOUT,
HOSUR MAIN ROAD, ADUGODI,
BANGALORE-560030
2. SRI NAGARAJA REDDY M
AGED ABOUT 66 YEARS,
S/O MUNISWAMPPA @
MUNISWAMY REDDY
RESIDING AT SINGASANDRA VILLAGE,
BEGUR HOBLI,
BANGALORE SOUTH TALUK
PIN-560068
3. SRI NARAYANA REDDY
AGED ABOUT 64 YEARS,
S/O LATE MUNISWAMAPPA @
MUNISWAMY REDDY
RESIDING AT SINGASANDRA VILLAGE,
BEGUR HOBLI,
BANGALORE SOUTH TALUK,
PIN-560068
4. SRI MUNI REDDY
3
AGED ABOUT 62 YEARS,
S/O LATE MUNISWAMAPPA @
MUNISWAMY REDDY,
RESIDING AT SINGASANDRA VILLAGE,
BEGUR HOBLI,
BANGALORE SOUTH TALUK,
PIN-560068
5. SRI RAMA REDDY
AGED ABOUT 59 YEARS,
S/O LATE MUNISWAMAPPA @
MUNISWAMY REDDY
RESIDING ATSINGASANDRA VILLAGE,
BEGUR HOBLI,
BANGALORE SOUTH TALUK
PIN-560068
...RESPONDENTS
(BY SRI: M R RAJAGOPAL, ADVOCATE FOR R1;
SRI: H.R.NARAYANA RAO, ADVOCATE FOR
SRI: P.N.RAJESWARA, ADVOCATE FOR R2 TO R4;
R5-SERVED)
THIS RFA IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 20.11.2014
PASSED IN O.S.NO.2281/2007 ON THE FILE OF THE V
ADDL. CITY CIVIL JUDGE, BENGALURU, DISMISSING THE
SUIT FOR PERMANENT PROHIBITORY INJUNCTION.
IN REGULAR FIRST APPEAL No.266 OF 2015
BETWEEN:
1. SRI NAGARAJ REDDY M
AGED ABOUT 67 YEARS
S/O LATE MUNISWAMAPPA @
MUNISHAMI REDDY
4
2. SRI M NARAYANA REDDY
AGED ABOUT 64 YEARS
S/O LATE MUNISWAMAPPA @
MUNISHAMI REDDY
3. SRI M MUNI REDDY
AGED ABOUT 62 YEARS
S/O LATE MUNISWAMAPPA @
MUNISHAMI REDDY
APPELLANTS 1 TO 3 ARE ALL
R/A SINGASANDRA VILLAGE,
BEGUR HOBLI
BANGALORE SOUTH TALUK-560068.
...APPELLANTS
(BY SRI: H.R.NARAYANA RAO, ADVOCATE FOR
P.N.RAJESWARA, ADVOCATE)
AND:
1. SRI. YELLAPPA
AGED ABOUT 57 YEARS,
S/O NALLAPPA
RESIDING AT NO.92,
CHIKKALAKSHMAIAH LAYOUT,
HOSUR MAIN ROAD, ADUGODI,
BANGALORE-560030
2. SRI M. SRINIVAS REDDY
AGED ABOUT 60 YEARS,
S/O MUNISWAMAPPA @
MUNISHAMI REDDY
3. SRI S.M. ASHWATHA REDDY
AGED ABOUT 69 YEARS,
S/O MUNISWAMAPPA @
5
MUNISHAMI REDDY
4. SRI M. DASHRATHA REDDY
AGED ABOUT 55 YEARS,
S/O MUNISWAMAPPA @
MUNISHAMI REDDY
5. SRI RAMA REDDY
AGED ABOUT 67 YEARS,
S/O MUNISWAMAPPA @
MUNISHAMI REDDY
RESPONDENTS NOS. 2 TO 5 ARE
RESIDING AT SINGASANDRA VILLAGE,
BEGUR HOBLI,
BANGALORE SOUTH TALUK
PIN-560068
...RESPONDENTS
(BY SRI: M.K. SHIVARAJU, ADVOCATE FOR R5-ABSENT;
SRI: M.R. RAJAGOPAL, ADVOCATE FOR R1;
SRI: N. SHANKARANARAYANA BHAT, ADVOCTE FOR
R2-R4)
THIS RFA IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 20.11.2014
PASSED IN O.S.NO.2281/2007 ON THE FILE OF THE V
ADDL. CITY CIVIL JUDGE, BENGALURU, DISMISSING THE
SUIT FOR PERMANENT PROHIBITORY INJUNCTION.
THESE RFA's COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Plaintiffs who have suffered an adverse decree before the trial Court in O.S.No.2281/2007 are in appeals against 6 the impugned judgment and decree dated 20.11.2014 passed by V Addl. City Civil Judge, Bengaluru.
2. In the course of this judgment, parties will be referred to as plaintiffs and defendants respectively.
3. Plaintiffs pleaded before the Trial Court that the one Pilla Reddy, predecessor of the plaintiffs purchased an extent of 1 acre 13 guntas of land in Sy.No.56 of Singasandra Village from one Channappa and Papaiah under a registered Sale Deed dated 06.09.1946 (document No.1588:46-47). In a family partition that took place on 03.11.1969, the schedule property was allotted to the share of the father of the plaintiffs. Since then, plaintiffs are in actual possession and enjoyment of the suit schedule property. In respect of the said property, certain persons namely Chikkamuniyappa, Thimmakka and Thimmarayappa filed an application before the Assistant Commissioner, Bengaluru, for resumption of the suit land under the provisions of the Karnataka Scheduled Castes & Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, 7 (for short 'SC/ST(PTCL) Act') on the ground that the land was originally granted to their ancestor and the alienation made in favour of aforesaid Pilla Reddy was in violation of the provisions of SC/ST(PTCL) Act. The Assistant Commissioner directed restoration of the land. This order was confirmed by the Spl. Deputy Commissioner, Bengaluru. Plaintiffs questioned the said orders before this Court in W.P.No.21646/1998 and by order dated 09.09.1998, the writ petition was allowed and the order dated 30.12.1996 passed by respondent No.1 (Annexure - H) Spl. Deputy Commissioner, Bengaluru, insofar as it relates to 1 acre 5 guntas of land in Sy.No.56 of Singasandra Village, which was the subject matter of enquiry before the Assistant Commissioner in K SC.ST.35/1995-96 was quashed.
4. That being so, the plaintiffs' peaceful possession and enjoyment of the property having been interfered, they filed a suit in O.S. No.2093/1999 (Ex.P5) against Sri. Chikkamuniyappa @ Chikkodu, Smt.Thimmakka and Sri. 8 Thimmarayappa and the learned V Addl. City Civil Judge, Bengaluru City, by order dated 07.10.2005 issued an order of permanent injunction restraining the defendants therein from interfering with the peaceful possession and enjoyment of the aforesaid properties. During the pendency of these proceedings, defendant herein appears to have purchased the suit schedule property from Smt.Thimmakka, Thimmarayappa and Chikkamuniyappa on 11.10.2001 and on the strength of the power of attorney executed by them (i.e., defendants in O.S.No.2093/1999) started interfering with peaceful possession and enjoyment of the plaintiffs. Hence, the plaintiffs instituted a suit in O.S.No.2281/2007 for a decree of permanent injunction restraining the defendant from interfering with the plaintiffs' peaceful possession and enjoyment of the suit schedule property.
5. Defendant on entering appearance, filed written statement of objection opposing the claim of the plaintiffs inter alia contending that he alone is in actual possession and enjoyment of the suit schedule property pursuant to the 9 registered sale deed dated 12.10.2001 and further he contended that the L.Rs of the original grantee viz., Chikkamuniyappa, Smt. Thimmakka and Thimmarayappa obtained prior permission from the Government under section 4(2) of SC/ST(PTCL) Act, vide order dated 04.09.2011 in proceedings No.RD.247/LGV/2001 and sold the schedule property to him and therefore the suit filed against him was not maintainable.
6. In the light of the contentions urged by the parties, the trial court framed the following issues:-
1. Do the plaintiffs prove their lawful possession over the schedule property?
2. Do the plaintiffs prove the interference caused by the defendant with their possession?
3. What order or decree?
7. Plaintiff No.1 examined himself as PW-1 and produced 17 documents at Exs-P1 to P17 viz., Certified copy of the sale deed dated 6.9.1946, certified copy of partition 10 deed dated 03.11.1969, certified copy of the order in W.P.No.21646/1998, certified copy of the order passed by the Special Deputy Commissioner in S.C.No.13/1995-1996, judgment and decree in O.S.No.2093/1999 which were marked as Exs-P5 to P6 respectively and certified copy of the sale deed of the defendant was marked as Ex-P7, certified copy of the order in W.P.No.31246/2004 was marked as Ex-P8. In proof of their possession, plaintiffs relied on Exs-P9 to P11 - RTC extracts and the tax paid receipts Exs-P12 and 13 as well as the certified copy of the order sheet in O.S.No.2093/1999 and certified copy of the order passed in W.P.No.31246/2004 as per Ex-P17.
8. As against this evidence, defendant though entered the witness-box, he having failed to tender himself for full cross-examination, his evidence in effect stood eschewed from records. By the impugned order, the learned trial judge dismissed the suit holding that there is serious dispute regarding the ownership of the suit schedule property and in view of the sale deed obtained by the 11 defendant, a cloud is cast on the title of the plaintiff and therefore without seeking the relief of declaration, plaintiffs are not entitled to maintain a suit for bare injunction.
9. Feeling aggrieved by the impugned judgment and decree, plaintiffs have preferred the above two appeals.
10. I have heard learned counsels appearing for the respective plaintiffs/defendants.
11. Learned counsel for the appellants/plaintiffs at the outset submitted that the trial court has failed to advert its mind to the documentary evidence produced by the plaintiffs. The trial court has proceeded on the assumption that on account of the contentions urged by the defendants, there is dispute with regard to the title to the suit schedule property, when in fact no such dispute is in existence. The documents produced by the plaintiffs clearly indicate that the orders passed by the revenue authorities under the provisions of SC/ST(PTCL) Act have been set-aside by this court in W.P No.21646/1998, as such, there was no cloud 12 whatsoever on the title of the plaintiffs in respect of the suit schedule property. The impugned order having been passed by the learned trial judge under erroneous understanding of law and facts, the same has resulted in gross miscarriage of justice. Thus, the appellants have sought to set aside the impugned judgment and decree passed by the trial Court.
12. The argument of the learned counsel for the defendants is that the enquiry into the alleged violations of section 4 of the SC/ST(PTCL) Act is seized by the authorities constituted under the provisions of the SC/ST(PTCL) Act.
13. Defendant has purchased 4 acres 36 guntas of cultivable land and 1 acre 11 guntas karab land from the L.Rs. of the original grantee after obtaining previous permission of the Government as required under Section 4(2) of the Act. The sale deed obtained by the plaintiffs is violative of Section 4(1) of the Act. The total extent of the land available in Sy.No.56 is only 6 acres 12 guntas. Therefore, there is no dispute with regard to the title of the plaintiffs as well as the identity of the property. In the said 13 circumstances, plaintiffs are not entitled to maintain the suit for bare injunction without seeking for declaration of his title. In support of this submission, learned counsel has placed reliance on the proposition of law enunciated in the case of ANATHULA SUDHAKAR vs. P.BUCHI REDDY (dead) By LRs., & Others, (2008) 4 SCC 594, wherein, it is held that 'Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter."
14. In the light of above contentions, the points that arise for consideration are:-
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1) Whether the plaintiffs' suit for permanent injunction without seeking declaration of title is maintainable under law?
2) Whether the plaintiffs have proved that they are in actual possession and enjoyment of the suit schedule property as on the date of the alleged interference by the defendant'?
15. Undisputedly, plaintiffs claim their title to the suit schedule property based on the registered sale deed executed by the L.Rs of the original grantee as per Ex-P1 and the registered partition deed Ex-P2. Though the authorities constituted under the SC/ST(PTCL) Act ordered for restoration of the suit schedule property to the legal heirs of the original grantee, yet, these orders are set aside by this Court by order dated 09.09.1998 in W.P.No.21646/1998. As a result, the title of the plaintiffs over the suit schedule property and the possession derived by them under these deeds have remained intact. There is nothing on record to show that the possession of the suit 15 schedule property has been taken away from the plaintiffs at any point of time nor is there any document to show that the defendant has come in possession of the suit schedule property by virtue of the sale deed obtained by him in 2001 as per Ex.P.7. The revenue documents produced by the plaintiffs namely the RTCs and the tax paid receipts at Ex.P9 to Ex.P13 no doubt, disclose the names of Chikkamuniyappa, Thimmakka and Thimmarayappa in Column No.9 of the RTCs, yet, there being clear evidence to show that these entries were effected pursuant to the orders passed by the Assistant Commissioner and Deputy Commissioner and these orders having been set-aside in the writ petition referred above, these revenue entries have lost their probative value. Under the said circumstances and for the same reasons, the alienation made by the aforesaid Chikkamuniyappa, Thimmakka and Thimmarayappa in favour of the defendant under the registered sale deed dated 06.09.1946 did not confer any right, title and interest to the defendant over the suit schedule property. As a result, there is no basis for 16 defendant No.1 to hold on to the suit property and dispute the possession of the plaintiffs over the suit schedule property.
15. It is trite law that "where the plaintiff is in lawful possession or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for injunction simpliciter will lie where the plaintiff is out of possession, he cannot seek the relief of injunction simpliciter, without claiming the relief of possession. Likewise, when he is in possession, but this title to the property is in dispute or under a cloud, the plaintiff has to sue for declaration of his title."
16. In the instant case, the facts and circumstances discussed above clearly establish that the predecessor of the plaintiffs came in possession of the suit schedule property from the L.Rs. of erstwhile grantee in 1946 and since then, the predecessor of the plaintiffs and after his death, the plaintiffs are in actual possession and enjoyment of the suit schedule property. The claim made by the 17 subsequent legal heirs of the original grantee for restoration of possession is still under consideration of concerned authorities. Merely because the defendant has brought about a sale deed in his favour during the subsistence of the proceedings before the Revenue authorities, it cannot be said that a cloud is cast on the title derived by the plaintiffs.
18. Undeniably, no order has been passed by the competent authority under section 5(1) of the Act, restoring the possession to the interested persons as on the date of institution of the suit. In the said circumstances, merely because the defendant has purchased the remaining extent of 4 acres 36 guntas, out of total extent of 6 acres 12 guntas of Singasandra village, Begur Hobli, Bangalore South Taluk, it cannot be said that a cloud is raised over plaintiffs' title. As long as the sale deed is executed in favour of the predecessor of the plaintiffs is not declared as null and void, in my view, title and possession of the plaintiffs cannot be disturbed by the defendant. The Assistant Commissioner having not restored possession of the suit schedule property to the legal heirs of the original grantee, defendant cannot 18 claim to have come in possession of the suit schedule property on the strength of the sale deed obtained by him vide Ex.P.7. In view of the order passed by this Court in W.P.No.31246 of 2004, the position of the defendant is no better than that of the plaintiffs. Therefore, I am unable to subscribe to the argument advanced by the learned counsel for the defendant.
21. For the above reasons, appeals are allowed. The impugned judgment and order dated 20.11.2014 passed by learned V Addl. City Civil Judge, Bengaluru City in O.S.No.2281/2007 is set-aside. Consequently, the suit filed by the plaintiffs in O.S.No.2281/2007 is allowed. The defendants or any one claiming through or under them are permanently restrained from interfering with the suit schedule property.
Draw up decree accordingly.
Sd/-
JUDGE Sv/mn/bss