Karnataka High Court
Sri.S.A.Govindegowda vs Smt.Sharadamma on 8 June, 2022
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 8TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
R.F.A.NO.1642 OF 2014 (PAR/INJ)
BETWEEN
SRI.S.A.GOVINDEGOWDA
S/O.LATE APPEGOWDA
AGED ABOUT 49 YEARS
R/AT SITE NO.32
SY.NO.96/2, BAGALGUNTE VILLAGE
KATARAYANAGAR, MANJUNATH NAGAR
BAGALGUNTE
BANGALORE-560 073
...APPELLANT
(BY SRI.A.CHANDRA CHUD, ADVOCATE)
AND
1. SMT.SHARADAMMA
W/O.SRI.NARAYANAPPA
AGED ABOUT 55 YEARS
RESIDING AT MYLASANDRA
R.V.COLLEGE POST, KENGERI HOBLI
BANGALORE SOUTH TALUK
2. SMT.INDIRAMMA
W/O.SRI.SRINIVASA MURTHY
AGED ABOUT 60 YEARS
RESIDING AT MARUTHI BAR BUILDING
23RD CROSS, BAGALGUNTE
YESHWANTPUR HOBLI
BANGALORE NORTH TALUK
3. SMT.SUKUNDAMMA @ SUNANDAMMA
W/O.SRI M.C.GURUMURTHY
AGED ABOUT 58 YEARS
2
RESIDING AT NO.4, 5TH CROSS
SULTANPALYA, SRI BHUVANESWARI NAGAR
NEAR AYYAPPA SWAMY TEMPLE
BANGALORE-560 032
...RESPONDENTS
(R1, R2- SERVED
V/O DATED 13/11/2018 NOTICE TO R3, HELD SUFFICIENT)
THIS APPEAL IS FILED UNDER SECTION 96 R/W ORDER 41
RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED
12.09.2014 PASSED IN O.S.NO.6638/2012 ON THE FILE OF V
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE,
DISMISSING THE SUIT FOR PERMANENT PROHIBITORY
INJUNCTION AND ETC.
THIS APPEAL COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the unsuccessful plaintiff in O.S.No.6638/2012 is directed against the impugned judgment and decree dated 12.09.2014 passed by the V Addl.City Civil and Sessions Judge, Bangalore city, whereby the said suit for permanent injunction and other reliefs filed by the appellant -
plaintiff against the respondents - defendants in respect of the suit schedule immovable property was dismissed by the trial court.
32. Heard learned counsel for the appellant and perused the material on record. The respondents having been served with the notice of appeal, have chosen to remain unrepresented and have not contested the same.
3. In addition to reiterating the various contentions urged in the appeal and referring to the material on record, learned counsel for the appellant submits that the suit schedule property bearing Site No.32 is situated in the layout formed in Sy.No.96/2 of Bagalagunte village, Bangalore North Taluk, Bangalore. In respect of other sites situated in the same layout near the suit schedule property viz., sites bearing No.1, 6, 23, 30 and 36, five different suits were filed by the respective owners and the same having been dismissed by the trial court, appeals in RFA Nos.1635, 1636, 1637, 1638 and 1639/2014 were preferred before this Court. In the said appeals also, the very same respondents - defendants did not contest the appeals and chose to remain unrepresented. By common judgment and decree dated 25.05.2021, this Court allowed all the appeals and decreed the suits in favour of the 4 respective plaintiffs. It is therefore submitted that by applying the doctrine of parity, in the light of the aforesaid judgment passed by this Court, the present appeal which is undisputedly in respect of the suit schedule property which is situated in the very same layout also deserves to be allowed and the appellant - plaintiff's suit deserves to be decreed in his favour.
4. As stated supra, the respondents have chosen to remain unrepresented and have not contested the appeal.
5. As rightly contended by the learned counsel for the appellant, in RFA No.1638/2014 and connected appeals in relation to sites situated in the very same layout against the very same respondents, the co-ordinate Bench of this Court has held as under:-
" In view of the fact that subject matter of these appeals are different sites formed in the same land i.e., Sy.96/2 and as defendants are same and further as suits were disposed by trial court on a similar finding, they are connected to each other. As plaintiff's suit schedule, exhibits marked and issues framed in each of the suits differ, they are dealt with separately as under:5
In RFA No.1638/2014:
Challenging judgment and decree dated 12.09.2014 passed by the V Additional City Civil Judge, Bengaluru City, in O.S.No.6643/2012, this appeal is filed. Appellant herein was plaintiff in suit, while respondents No. 1 to 3 herein were defendants No.1 to 3 respectively. For the sake of convenience, parties will hereinafter be referred to as per their ranks before trial Court.
2. Brief facts leading this appeal are that plaintiff filed O.S.No.6643/2012 against defendants seeking following reliefs:
"a) Restraining the defendants, their agents, henchmen etc, from interfering with the Plaintiff's peaceful possession and enjoyment of the suit schedule property in any manner by granting permanent injunction against the defendants restraining them or their agents, or any person claiming through or under them and
b) grant such other reliefs."
3. In the plaint, it was stated that southern portion of house property bearing site no.23, measuring 40 ft. east-west and 15 ft. north-south, in the layout formed in Sy.No.96/2 of Bagalgunte village is the 'suit schedule property'.
4. Plaintiff purchased suit schedule property under a registered sale deed dated 25.10.2000, executed by Smt. D.R. Bhagyamma. It was stated that originally land bearing Sy.No.96/2 of Bagalgunte village, measuring 2 acres 25 guntas, belonged to one Muniswamappa. It was stated to be his self-acquired property. Muniswamappa 6 executed a sale deed in favour of one Shri. C.R. Krupad on 02.07.1971 conveying entire Sy.No.96/2. Since, date of purchase, said Shri. C.R. Krupad was in possession of suit property. His name was also mutated in revenue records. Subsequently, he sold sites out of it by forming unapproved layout. On 25.01.2000, plaintiff purchased suit property from Shri. Chandrabhojaraj represented by his General Power of Attorney (hereinafter referred to as "GPA" for short) Smt. B.R. Bhagyamma under a registered sale deed. Since date of purchase, plaintiff claims to be in possession and enjoyment of suit property.
It is further stated that on 30.08.2012, defendants came over to suit property and tried to interfere with plaintiff's possession. Defendants tried to put up a notice board on schedule property declaring that it belonged to them. Defendants claimed that they were daughters of original owner - Muniswamappa, who sold it for a very low price and even they had right over it. Plaintiff resisted their attempts and also tried to lodge a police complaint against them. But police refused to register complaint on the ground that it was a civil dispute and asked plaintiff to approach Civil Court. On the said cause of action, suit was filed.
5. Upon service of summons, defendants entered appearance through counsel, but did not file written statement. Based on pleadings, trial Court framed following points:
1. Whether the plaintiff is entitled for relief to injunction?
2.What order?7
6. In order to establish his case, plaintiff examined himself as PW-1 and got marked Exs.P.1 to P.21. No evidence is adduced on behalf of defendants. After hearing arguments and considering material on record, trial Court answered point No.1 in negative and point No.2 by dismissing the suit. Aggrieved thereby this appeal is filed.
7. Shri. D. R. Sundaresha, learned counsel for plaintiff - appellant submitted that impugned judgment passed by trial Court was opposed to rule of Law and probabilities and evidence on record. Even though defendants entered appearance, neither they filed written statement, nor cross-examined PW-1 or led any evidence on their side. Such being the case, trial Court instead of drawing adverse inference against respondents and considering plaintiff's case on its merits, proceeded to dismiss the suit. It was further submitted that in the connected suit, defendants claimed right under decree of Civil Court, but said suit was collusive in nature and not binding on plaintiff. Trial Court failed to apply principles of law applicable for a suit for injunction and proceeded to pass impugned cryptic judgment without framing proper issues and adverting to evidence led by plaintiff. Learned counsel further contended that trial Court ought not to have dismissed plaintiff's suit after arriving at prima facie conclusion regarding 'title'. On above grounds learned counsel sought for setting aside judgment and decree and for allowing this appeal.
88. Notice to respondents No.1 and 3 is held sufficient. There is no representation on their behalf. Respondent No.2 is served unrepresented. Hence the matter is proceeded with in their absence.
9. Heard learned counsel, perused impugned judgment, decree and records.
10. In view of the above submissions, the only point that arises for consideration herein is:
"Whether trial Court is justified in dismissing plaintiff's suit without applying principles of law applicable to perpetual injunction?"
11. From the above, it is not in dispute that suit schedule property was originally belonging to Shri. Muniswamappa. On one side, case of plaintiff is that, Muniswamappa sold entire extent of 2 acres 25 guntas of Sy.No.96/2 of Bagalgunte village in favour of Shri. C.R. Krupad, under a sale deed dated 02.07.1971 and who after forming revenue layout, sold plots to different persons. Plaintiff is one such purchaser, who purchased suit schedule property on 25.10.2000 under registered sale deed executed by Smt. S. R. Bhagyamma, as GPA holder of Shri. Chandrabhojaraj. He claims to have constructed a house therein and residing therein.
12. In the plaint, plaintiff has stated that defendants are claiming right over suit schedule property on the ground that they are daughters of original owner - Shri. Muniswamappa, sold it for a meagre price ignoring 9 their rights over the property. But, defendants have not at all contested suit after entering appearance.
13. Admittedly, relief sought in suit is for permanent injunction. The relief is governed by Section 37, 38 and 41 of Specific Relief Act. The only issues framed by trial court are 'whether plaintiff is entitled for injunction and what order'. After considering the material on record, it dismissed the suit. The dispute, therefore is, whether plaintiff is entitled for relief sought for and whether dismissal of his suit is justified.
14. In order to establish his case, plaintiff examined himself as PW-1. He virtually reiterated plaint averments in his examination-in-chief. Plaintiff also got marked certified copy of sale deed dated 01.07.1971 executed by Shri. Muniswamappa in favour of C.R. Krupad as per Ex.P.1. Mutation entry-Ex.P.2 was made in pursuance of Ex.P.1. Ex.P.3 to Ex.P.9 are copies of record of rights in respect of Sy.No.96/2 of Bagalgunte village from 1967-68 to 2001-02 respectively; Ex.P.5 - Record of rights for 1977-78 to 1982-83 shows name of Shri. C.R. Krupad; Ex.P.10 - property tax paid receipt for 2013-14; Ex.P.11 is original sale deed dated 25.10.2000 executed in favour of plaintiff by Smt. S.R. Bhagyamma as GPA holder of Shri. Chandrabhojaraj; Ex.P.12 to Ex. P.16 are tax paid receipts for 2008-09 to 2012-1; Ex.P.17 - encumbrance certificate for the period from 25.10.2000 to 27.10.2000 reflects purchase of suit schedule property by plaintiff from Shri. Chandrabhojaraj, through GPA; Ex.P.18 is 'Nil' encumbrance certificate from 24.05.2004 to 01.08.2012;
10Ex.P.19 is Electricity consumption bill issued by BESCOM to plaintiff on 23.03.2012; Ex.P.20 is the photograph of suit schedule property and Ex.P.21 is it's negative.
15. On perusal of impugned judgment, only reason assigned by trial Court for refusing relief to plaintiff is that plaintiff failed to produce khata certificate, approved layout plan, approved plan for construction of building and building licence. Though, trial court held plaintiff had proved prima facie title, it held that he failed to prove his lawful possession over suit schedule property and dismissed the suit.
16. While passing said judgment, trial court rightly avoided entering into issue of title. Same is in accordance with law laid down by the Hon'ble Supreme Court in the case of Anathula Sudhakar Vs. P. Buchi Reddy (dead) by LRs., & others, reported in (2008) 4 SCC 594, wherein, it is held that when no prayer for declaration of title made out, Court should confine their finding regarding possession only and any finding on title is not required to be made. Therefore, no issue regarding plaintiff's title was required to be framed.
17. As regards reliefs claimed is concerned, evidence placed on record by plaintiff are Ex. P11- sale deed, under which plaintiff purchased suit property. In the plaint, it is stated that suit property was part of Survey no.96/2 measuring 2 acres 25 guntas of Bagalgunte village, originally belonging to Muniswamappa, who sold it to Shri. C.R. Krupad under a registered sale deed dated 01.07.1971, produced as Ex.P.1. Pursuant to the sale, 11 mutation was effected as per Ex.P.2, which is also reflected in Ex.P5.
18. Plaintiff further stated that after purchase of the land, Shri. C.R. Krupad formed unapproved layout and sold plots to different persons. Some of these alienations were by way of general power of attorney coupled with possession. One such purchaser was Smt. S.R. Bhagyamma, who purchased suit schedule property, executed sale deed-Ex.P.11 in favour of plaintiff. Said purchase is reflected in Ex.P.17 - encumbrance certificate. From Ex.P.18- encumbrance certificate from 24.05.2004 to 01.08.2012, it is seen that there are no other encumbrances on the suit property. In addition to above documents, plaintiff produced tax paid receipts for 2008- 2009 to 2012-2013 as Exs.P.12 to P.16 and for 2013-2014 as Ex.P.10. In order to further substantiate his possession over suit schedule property, plaintiff produced electricity consumption bill issued by BESCOM on 23.03.2012 as Ex.P.19. Though, plaintiff has not produced copy of building plan or licence for putting up construction of building over suit schedule property, he has produced copy of positive photograph of building as Ex.P.20 and it's negative as Ex.P.21.
19. Above documents indicate that original owner Muniswamappa alienated Sy.No.96/2 of Bagalgunte village in the year 1971. Shri. C.R. Krupad, purchaser sold sites by forming unapproved layout in the said land. Smt. Bhagyamma, executant of sale deed in favour of plaintiff, 12 obtained suit schedule property under a GPA dated 21.04.1997.
20. It is clarified by Hon'ble Supreme Court in the case of Suraj Lamp & Industries Private Limited vs. State of Haryana, reported in (2012) 1 SCC 656 that sale transactions done through GPA, Agreement to Sale, Will etc. neither transfer any title nor create any interest in the immovable property except to limited extent of Section 53- A of the Transfer of Property Act. But, in the very same judgment, it is seen that certain protections have been granted to GPA/Agreements etc. entered into prior to date of judgment i.e.,11.10.2011. As GPA in favour of executant of Ex.P.11 - sale deed is prior to date of decision in Suraj Lamps (supra, it cannot be invalidated on that count.
21. Subsequent to purchase, plaintiff is shown to be paying property tax to Municipal Corporation. He claims to have put up construction and obtained electricity connection, as indicated in Ex.P.19 and P.20. Evidence of plaintiff in this regard has remained unchallenged. Therefore, in the absence of any contrary evidence, plaintiff has to be held to have established his possession over suit schedule property. As plaintiff has come in possession of suit schedule property under a registered sale deed, his possession has to be held as 'lawful possession'. Merely on the ground that plaintiff failed to produce copy of approved layout plan or building plan and licence, it cannot be held that plaintiff's possession over suit schedule property is not lawful, especially in the absence of any challenge. Defendants claim as per plaintiff 13 was as legal heirs of original owner. However, defendants have neither filed written statement nor led any contrary evidence to plaintiff's case. Plaintiff's claims are virtually uncontested. Under such circumstances, trial court ought to have examined material on record and evaluate, whether it substantiates plaintiff's claim. Unless, there are any inherent lacunae or defect in plaintiff's title or possession, trial Court ought not to have rejected entire evidence of plaintiff, especially so, after it held that plaintiff had established prima facie title in respect of suit schedule property. Failure to produce khata certificate, approved layout plan, building plan and licence etc., does not render possession as unlawful. Even in the absence of approved layout plan, there can be a valid alienation of immovable property. Further failure to produce building plan and licence at most casts doubt about plaintiff's claim of having put up construction over suit schedule property, but, same cannot have bearing on his possession over suit schedule property. As clarified in Anathula's case (supra), production of sale deed in respect of a vacant site would be sufficient to establish possession, in any case, plaintiff has produced tax paid receipt, encumbrance certificate, 'Nil' encumbrance certificate and positive photograph to establish possession over suit schedule property. In the absence of any contrary evidence or challenge to such evidence, finding of trial court regarding lawful possession of plaintiff over suit schedule property in negative, is unsustainable, capricious and contrary to the evidence on record. Hence, same is set-aside. Point for consideration is 14 answered in negative and it is held that plaintiff is entitled for the relief sought for.
22. Accordingly, appeal is liable to be allowed.
In RFA No.1635/2014:
23. Challenging judgment and decree dated 12.09.2014 passed by the V Additional City Civil Judge, at Bengaluru City in O.S.No.6555/2012, this appeal is filed. Appellant herein was plaintiff in suit; while respondents No. 1 to 3 herein were defendants No.1 to 3 respectively. For the sake of convenience parties will hereinafter be referred to as per their ranks before trial Court.
24. Brief facts leading this appeal are that plaintiff filed O.S.No.6555/2012 against defendants seeking for following reliefs:
"a) Restraining the defendants, their agents, henchmen etc, from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property in any manner by granting permanent injunction against the defendants restraining them or their agents, or any person claiming through or under them and
b) grant such other reliefs."
25. In the plaint, it was stated that house property bearing site no.36, measuring 40 ft. east-west and 30 ft. north-south, in the layout formed in Sy.No.96/2 of Bagalgunte village is 'suit schedule property'.
26. Plaintiff - Shri. Nagaraju son of late Nanajappa - purchased suit schedule property under a 15 registered sale deed dated 14.08.2003, executed by Smt. Surya. It was stated that originally land bearing Sy.No.96/2 of Bagalgunte village, measuring 2 acres 25 guntas belonged to one Muniswamappa. It was stated to be his self-acquired property. On 02.07.1971, Muniswamappa executed a sale deed in favour of one C.R.Krupad conveying entire Sy.No.96/2. Since date of purchase, said C.R. Krupad was in possession of suit property. His name was also mutated in revenue records. Subsequently, he sold sites out of it by forming unapproved layout. On 14.08.2003, plaintiff purchased suit property from Smt. Surya, under a registered sale deed. Since date of purchase, plaintiff claims to be in possession and enjoyment of suit property.
27. It is further stated that on 30.08.2012, defendants came over to suit property and tried to interfere with plaintiff's possession. Defendants tried to put up a notice board on schedule property declaring that it belonged to them. Defendants claimed that they were daughters of original owner - Muniswamappa, who sold it for a very low price, even they had right over it. Plaintiff resisted their attempts and also tried to lodge a police complaint against them. But police refused to register complaint on the ground that dispute was civil in nature and asked plaintiff to approach Civil Court. On the said cause of action, suit was filed.
28. Upon service of summons, defendants entered appearance. Defendant No.1 filed written statement, generally denying entire suit averments and 16 specifically stating that property bearing Sy.No.96/2 of Bagalgunte village measuring an extent of 2 acres 25 guntas and other lands belonged to her father Muniswamappa. After his death, defendant No.1 filed O.S.No.4210/1987 for partition and separate possession of her 1/3rd share in ancestral property of her father Muniswamappa. After contest, suit came to be decreed declaring plaintiff as owner of 1/3rd share in properties held by Muniswamappa. Defendant No.2 therein had also challenged preliminary decree before this Court in RFA No.226/2002, which came to be dismissed. After dismissal, defendant No.3 filed FDP No.101/2008 and Court Commissioner was appointed for measuring properties and on 12.01.2010, he measured properties, drew sketch and submitted report to Court. After drawing up of final decree, final decree was registered with Sub-Registrar, Peenya on 02.03.2012. Subsequently, on the basis of Final Decree Proceeding, khata of land was changed in favour of defendant No.1. Plaintiff as well his vendor, Shri. C.R. Krupad were well aware of proceedings, drawing up final decree, drawing up of sketch, measuring the land and mahazar by Court Commissioner appointed in FDP No.101/2008. But, suppressing all these facts, plaintiff filed instant suit. In pursuance of Commissioner's report, final decree is drawn and defendant No.1 was put in possession of her share in property. Since then, defendant No.1 was owner in possession of property including suit property.
1729. Based on pleadings, trial court framed following issues:
1. Whether the plaintiff proves that he is in lawful possession of the suit property on the date of the suit?
2. Whether the plaintiff proves the interference made by the defendants?
3. Whether the plaintiff is entitled for relief claimed in the suit?
4. What decree or order?
30. In order to establish his case, plaintiff examined himself as PW-1 and got marked Ex.P.1 to P.19. No evidence is adduced on behalf of defendants. After hearing arguments and considering material on record, trial court answered points No.1 to 3 in negative and point No.4 by dismissing the suit. Aggrieved thereby this appeal is filed.
31. Since submissions of Shri. D.R. Sundaresha, learned counsel for plaintiff - appellant in all the appeals are common, hence to avoid repetition, same is adopted in this appeal also as that of RFA N.1638/2014.
32. Notice to respondents No.1 and 3 is held sufficient. There is no representation on their behalf. Respondent No.2 is served unrepresented. Hence, matter is proceeded with in their absence.
33. Heard learned counsel, perused impugned judgment, decree and records.
34. In view of the above submissions, the only point that arises for consideration herein is:
18"Whether trial Court is justified in dismissing plaintiff's suit without applying principles of law applicable to perpetual injunction?"
35. From the above, it is not in dispute that suit schedule property was originally belonging to Shri. Muniswamappa. On one side, case of plaintiff is that Muniswamappa sold entire extent of 2 acres 25 guntas of Sy. No.96/2 of Bagalgunte village, in favour of Shri. C.R. Krupad, under a sale deed dated 02.07.1971 and who after forming revenue layout, sold plots to different persons. Plaintiff is one such purchaser, who purchased suit schedule property on 14.08.2003 under registered sale deed executed by Smt. Surya. He claims to have constructed a house therein and residing therein.
36. Admittedly, relief sought in suit is for permanent injunction, which is governed by Sections 37, 38 and 41 of Specific Relief Act. Issues framed are as to, whether plaintiff's prove lawful possession of suit property as on the date of suit; interference made by defendants and plaintiff's entitlement for relief claimed in the suit.
37. On consideration, trial court dismissed the suit. The dispute therefore is, whether dismissal of plaintiff's suit is justified.
38. In order to establish his case, plaintiff examined himself as PW-1. He virtually reiterated plaint averments in his examination-in-chief. Plaintiff got marked sale deed dated 14.08.2003 executed by Smt. Surya in favour of the plaintiff as Ex.P.1; Form No.111 regarding 19 self-assessment of property tax for 2004-2005 and 2005- 2006 as per Ex.P.2; Ex.P.3 to Ex.P.11 are tax paid receipts for assessment years 2002-2003 to 2005-2006; and 2008- 2009 to 2012-2013 respectively; Ex.P.12 and Ex.P.13 are encumbrance certificates from the period 20.04.1988 to 17.02.2003 and 01.04.2003 to 31.03.2004 respectively. The 'Nil' encumbrance certificate for the period from 20.04.2004 to 03.08.2012 is produced as per Ex.P.14 and Ex.P.15 is electricity bill. Positive photograph of construction and negative are produced as per Ex.P.16. Certified copy of sale deed dated 01.07.1971 executed by Shri. Muniswamappa in favour of C.R. Krupad as Ex.P.17. Encumbrance certificate in respect of sy.No.96/2 from 01.04.1971 to 31.03.2004 is produced as Ex.P.18 and Ex.P.19 is the 'Nil' encumbrance certificate from 24.05.2004 to 25.08.2012.
39. On perusal of impugned judgment, the only reason assigned by trial Court for dismissal of suit is failure of plaintiff to produce khata certificate, approved layout plan, approved plan for construction of building and building licence, which according to trial court were required in the background of the contention taken by defendant no.1 that she had filed a suit claiming 1/3 rd share in Sy.No.96/2, which was granted to her and thereafter final decree was also drawn and registered. Trial court observed that though plaintiff established his title to property, but failed to establish lawful possession over suit property as on the date of filing of suit. It further observed that plaintiff had not stated that he was unaware of Court proceedings and decree in favour of defendant No.1.
2040. Insofar as issue no.2, the only reason assigned is that defendants are seeking to espouse their rights in terms of decree in civil suit and final decree proceedings and therefore, allegation of interference and imminent threat of dispossession as made out by plaintiff was imaginary. Therefore, dismissal of suit on the ground that plaintiff failed to establish lawful possession over suit schedule property as on date of the suit despite establishing his title and interference with peaceful possession by defendants was imaginary.
42. In order to establish his possession, evidence placed on record by plaintiff are Ex.P1 - sale deed, under which plaintiff purchased suit property, which contains averments about delivery of possession. In the plaint, it is stated that suit property was part of Survey no.96/2 measuring 2 acres 25 guntas of Bagalgunte village, originally belonging to Muniswamappa, who sold it to Shri. C.R. Krupad under registered sale deed dated 01.07.1971, produced as Ex.P.17. The sale is also reflected in the encumbrance certificate - Ex.P.18.
43. Plaintiff - PW1 has deposed that after purchase of the land, Shri. C.R. Krupad formed unapproved layout and sold plots to different persons. One such purchaser was Smt.Surya, who had purchased suit schedule property, executed sale deed-Ex.P.1 in favour of plaintiff, reflected in Ex.P.13 - encumbrance certificate. From Ex.P.18 - encumbrance certificate from 01.04.1971 to 31.03.2004, it is seen that there are no other 21 encumbrances in respect of Sy.No.96/2. In addition to above documents, plaintiff produced self-assessment Form and tax paid receipts - Ex.P.2 to P.11 respectively. Plaintiff produced electricity bill as per Ex.P.15. Though, plaintiff has not produced copy of building plan or licence for putting up construction of building on suit schedule property, he has produced copy of positive photograph of building and it's negative as Ex.P.16.
44. These documents indicate that original owner Muniswamappa alienated Sy.No.96/2 of Bagalgunte village in the year 1971. The purchaser Shri. C.R. Krupad sold sites by forming unapproved layout in the said land. Smt.Surya purchaser of suit schedule property, sold the same to the plaintiff under Ex.P1 - sale deed. Subsequent to purchase, plaintiff is shown to be paying property tax as per Ex.P2 to P11. He claims to have put up construction and obtained electricity connection, as indicated by Ex.P.15 and P.16. Evidence of plaintiff in this regard has remained unchallenged. Therefore, in the absence of any contrary evidence, plaintiff has to be held to have established his possession over suit schedule property. As plaintiff has come in possession of suit schedule property under a registered sale deed, his possession has to be held as 'lawful possession'. Merely on the ground that plaintiff failed to produce copy of approved layout plan or building plan and licence, it cannot be held that plaintiff's possession over suit schedule property is not lawful, especially in the absence of any challenge. Defendants claim in their written statement remains without being substantiated by leading evidence. Plaintiff's claims are 22 virtually uncontested. Under such circumstances, trial court ought to have examined material on record and evaluate whether it substantiates plaintiff's claim and unless, there was any inherent lacunae or defect in plaintiff's title or possession, it ought not to have rejected the entire evidence of plaintiff, especially so after it held that plaintiff had established valid title in respect of suit schedule property. Failure to produce khata certificate, approved layout plan, building plan and licence etc., does not render possession as unlawful. Even in absence of approved layout plan, there can be a valid alienation of immovable property. Failure to produce building plan and licence at most cast doubt about plaintiff's claim of having put up construction over suit schedule property. But same cannot have bearing on his possession over suit schedule property. In any case, plaintiff has produced tax paid receipts, encumbrance certificates, nil encumbrance certificate and positive photograph to establish possession over suit schedule property. In the absence of any contrary evidence or challenge to such evidence, finding of trial court regarding lawful possession of plaintiff over suit schedule property in negative is unsustainable. Therefore, finding of trial court on Issue no.1 is capricious and contrary to evidence on record.
45. From a bare perusal of the written statement, it is seen that defendant no.1 contended therein that she along with defendants no.2 and 3 were daughters of Muniswamappa and were having interest in the properties owned by their father. The alienation by their father for meagre amount ignoring their interests was 23 contrary to law. Hence, defendant No.1 filed suit for partition, which was decreed. Defendant No.1 further stated that in pursuance of decree, final decree was also drawn after getting the Sy.no.96/2 measured and even the final decree drawn was got registered. The very contention of the defendant setting up her own claim over suit schedule property amounts to interference. Therefore, the finding of trial court on issue no.2 is also capricious, if not perverse.
46. As the result of the suit depended entirely on findings of trial on these two issues and as the findings thereon are held to be unsustainable, the point for consideration is answered in negative and it is held that plaintiff is entitled for the relief sought for.
47. Accordingly, appeal is liable to be allowed.
In RFA No.1636/2014:
48. Challenging judgment and decree dated 12.09.2014 passed by the V Additional City Civil Judge, at Bengaluru City in O.S.No.6553/2012, this appeal is filed. The appellant herein was plaintiff in suit, while respondents No. 1 to 3 herein were defendants No.1 to 3 respectively. For the sake of convenience, the parties will hereinafter be referred to as per their ranks before trial Court.
49. Brief facts leading this appeal are that plaintiff filed O.S.No.6553/2012 against defendants seeking for following reliefs:
24a) Restraining the defendants, their agents, henchmen etc, from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property in any manner by granting permanent injunction against the defendants restraining them or their agents, or any person claiming through or under them and
b) grant such other reliefs.
50. In the plaint, it was stated that house property bearing site no.6, measuring 30 ft. east-west and 40 ft. north-south, in the layout formed in Sy.No.96/2 of Bagalgunte village is the 'suit schedule property'.
51. Plaintiff - Shri. Nagaraju son of late Nanajappa - purchased suit schedule property under a registered sale deed dated 13.08.2012, executed by Smt.Jayamma. It was stated that originally land bearing Sy.No.96/2 of Bagalgunte village, measuring 2 acres 25 guntas, belonged to one Muniswamappa. It was stated to be his self-acquired property. On 02.07.1971, Muniswamappa executed a sale deed in favour of one Shri. C.R. Krupad conveying entire Sy.No.96/2. Since the date of purchase, said Shri. C.R. Krupad was in possession of suit property. His name was also mutated in revenue records. Subsequently, he sold sites out of it by forming unapproved layout. On 13.08.2012, plaintiff purchased suit property from Shri. H Gangadharappare presented by his GPA holder, Smt.Jayamma under a registered sale deed. Since date of purchase, plaintiff claims to be in possession and enjoyment of suit property.
2552. It is further stated that on 30.08.2012, defendants came over to suit property and tried to interfere with plaintiff's possession. The defendants tried to put up a notice board on schedule property declaring that it belonged to them. Defendants claimed that they were daughters of original owner - Muniswamappa, who sold it for a very low price and even they had right over it. Plaintiff resisted their attempts and also tried to lodge a police complaint against them. But police refused to register complaint on the ground that dispute was civil in nature and asked plaintiff to approach civil Court. On the said cause of action, suit was filed.
53. Upon service of summons, defendants entered appearance. Defendant No.1 filed written statement, generally denying entire suit averments and specifically stating that property bearing Sy.No.96/2 of Bagalgunte village measuring an extent of 2 acres 25 guntas and other lands belonged to her father Muniswamappa. After his death, defendant No.1 filed O.S.No.4210/1987 for partition and separate possession of her 1/3rd share in ancestral property of her father Muniswamappa. After contest, suit came to be decreed declaring plaintiff as owner of 1/3rd share in properties held by Muniswamappa. Defendant No.2 therein had also challenged preliminary decree before this Court in RFA No.226/2002, which came to be dismissed. After dismissal, third defendant filed FDP No.101/2008. Court Commissioner was appointed for measuring properties and on 12.01.2010, he measured properties, drew sketch and submitted report to Court. After drawing up of final decree, 26 on 02.03.2012 final decree was registered with the Sub- Registrar, Peenya. Subsequently, on basis of FDP decree, khata of land was changed in favour of defendant No.1. Plaintiff as well his vendor Shri. C.R. Krupad were well aware of proceedings, drawing up final decree and also measuring, drawing of sketch and mahazar by Court Commissioner appointed in FDP No.101/2008, but suppressing all these facts, plaintiff filed instant suit. In pursuance of Commissioner's report, final decree is drawn and defendant No.1 was put in possession of her share in property. Since then, defendant No.1 was owner in possession of property including suit property.
54. Based on pleadings, trial Court framed following issues:
1. Whether the plaintiff to prove his lawful possession and enjoyment of the suit schedule property?
2. Whether the plaintiff to prove the interference made by the defendants?
3. Whether the plaintiff is entitled for relief claimed in the suit?
4. What decree or order?
55. In order to establish his case, plaintiff examined himself as PW-1 and got marked Ex.P.1 to P.10. No evidence is adduced on behalf of defendants. After hearing arguments and considering the material on record trial Court answered points No.1 to 3 in negative and point No.4 by dismissing the suit. Aggrieved thereby this appeal is filed.
2756. Since submissions of Shri. D.R. Sundaresha, learned counsel for plaintiff - appellant in all the appeals are common, hence to avoid repetition, same is adopted in this appeal also as that of RFA N.1638/2014.
57. Notice to respondents No.1 and 3 is held sufficient. There is no representation on their behalf. Respondent No.2 is served, unrepresented. Hence, matter is proceeded with in their absence.
58. Heard learned counsel, perused impugned judgment, decree and records.
59. In view of the above submissions, the only point that arises for consideration herein is:
"Whether trial Court is justified in dismissing plaintiff's suit without applying principles of law applicable to perpetual injunction?"
60. From the above, it is not in dispute that suit schedule property was originally belonging to Shri. Muniswamappa. On one side, case of plaintiff is that Muniswamappa sold entire extent of 2 acres 25 guntas of Sy.No.96/2 of Bagalgunte village in favour of Shri. C.R. Krupad, under a sale deed dated 02.07.1971 and who after forming revenue layout, sold plots to different persons. Plaintiff is one such purchaser, purchased suit schedule property on 13.08.2012 under registered sale deed executed by Smt. Jayamma, as GPA holder of Shri. H Gangadharappa. He claims to have constructed a house and residing therein.
2861. Admittedly, relief sought in suit is for permanent injunction, which is governed by Sections 37, 38 and 41 of Specific Relief Act. Issues framed are as to whether plaintiff's prove lawful possession of suit property as on the date of suit; interference made by defendants and his entitlement for relief claimed in the suit.
62. On consideration, trial court dismissed the suit. The dispute therefore is, whether dismissal of plaintiff's suit is justified.
63. In order to establish his case, plaintiff examined himself as PW-1. He virtually reiterated plaint averments in his examination-in-chief. Plaintiff got marked sale deed dated 13.08.2012 executed by Smt.Jayamma, GPA holder of Shri. H Gangadharappa in favour of the plaintiff as Ex.P.1. The property tax paid receipts for assessment years 2008-2009 to 2012-2013 are produced as Ex.P.2 to Ex.P.6 respectively; Ex.P.7 is encumbrance certificate of 13.08.2012; Ex.P.8 is electricity bill; Ex.P.9 is positive photograph of construction and it's negative; and Ex.P.10 is certified copy of sale deed dated 01.07.1971 executed by Shri. Muniswamappa in favour of Shri. C.R. Krupad.
64. On perusal of impugned judgment, the only reason assigned by trial Court while deciding issue no.1 is failure of plaintiff to produce khata certificate, approved layout plan, approved plan for construction of building and building licence, which according to trial court were required in the background of the contention taken by 29 defendant no.1, that she had filed a suit claiming 1/3rd share in Sy.No.96/2, which was granted to her and thereafter final decree was also drawn and registered. Trial court observed that though plaintiff established his title to the property, but failed to establish lawful possession over the suit property as on date of filing of the suit. It further observed that plaintiff had not stated that he was unaware of the court proceedings and decree in favour of defendant No.1.
65. Insofar as issue no.2, the only reason assigned is that the defendants are seeking to espouse their rights in terms of decree in civil suit and final decree proceedings and therefore, allegation of interference and imminent threat of dispossession as made out by plaintiff was imaginary.
66. Therefore, dismissal of suit is on the ground that plaintiff failed to establish lawful possession over suit schedule property as on date of suit, despite establishing his title and interference with peaceful possession by defendants was imaginary.
67. In order to establish his possession, evidence placed on record by plaintiff are Ex. P1 - sale deed, under which plaintiff purchased suit property, contains averments about delivery of possession. Sale is also reflected in the encumbrance certificate - Ex.P.7. In the plaint, it is stated that suit property was part of Survey no.96/2 measuring 2 acres 25 guntas of Bagalgunte village, originally belonging to Muniswamappa, who sold it 30 to Shri. C.R. Krupad under registered sale deed dated 01.07.1971 as per Ex.P.10.
68. Plaintiff - PW1 has deposed that after purchase of land, Shri. C.R. Krupad formed unapproved layout and sold plots to different persons. Some of the alienations were by way of GPA with possession. One such purchaser was Smt.Jayamma, who purchased suit schedule property by way of GPA. She executed sale deed-Ex.P.1 in favour of plaintiff on behalf of Shri. H. Gangadharappa. This sale is reflected in Ex.P.7- encumbrance certificate. In addition to above document, plaintiff produced tax paid receipts - Ex.P.2 to P.6 respectively and electricity bill as per Ex.P.8. Though, plaintiff has not produced copy of building plan or licence for putting up construction of building on suit schedule property and copy of positive photograph of building and it's negative as Ex.P.9.
69. These documents indicate that original owner Muniswamappa alienated Sy.No.96/2 of Bagalgunte village in the year 1971. The purchaser Shri. C.R. Krupad sold sites by forming unapproved layout in the said land. Smt. Jayamma, purchaser of suit schedule property by way of GPA with possession, executed sale deed in favour of plaintiff under Ex.P1.
70. It is clarified by Hon'ble Supreme Court in the case of Suraj Lamp & Industries Private Limited Vs. State of Haryana, reported in (2012) 1 SCC 656, that sale transactions done through GPA, Agreement to Sale, Will 31 etc., neither transfer any title nor create any interest in the immovable property except to limited extent of Section 53- A of the Transfer of Property Act. But, in the very same judgment, it is seen that certain protections have been granted to GPA/Agreements etc., entered into prior to date of judgment i.e., 11.10.2011. As GPA in favour of executant of Ex.P.11 - sale deed is prior to date of decision in Suraj Lamps case (supra), it cannot be invalidated on that count.
71. Subsequent to purchase, plaintiff is shown to be paying property tax as per Ex.P2 to P6. He claims to have put up construction and obtained electricity connection, as indicated in Ex.P.8 and P.9. Evidence of plaintiff in this regard has remained unchallenged. Therefore, in the absence of any contrary evidence, plaintiff has to be held to have established his possession over suit schedule property. As plaintiff has come in possession of suit schedule property under a registered sale deed, his possession has to be held as 'lawful possession'. Merely on the ground that plaintiff failed to produce copy of approved layout plan or building plan and licence, it cannot be held that plaintiff's possession over suit schedule property is not lawful, especially in the absence of any challenge. The claim of defendants in their written statement remains without being substantiated by leading evidence. Plaintiff's claims are virtually uncontested. Under such circumstances, trial court ought to have examined material on record and evaluate whether it substantiates plaintiff's claim and unless, there was any 32 inherent lacunae or defect in plaintiff's title or possession, it ought not to have rejected the entire evidence of plaintiff, especially so, after holding that plaintiff had established valid title in respect of suit schedule property. Failure to produce khata certificate, approved layout plan, building plan and licence etc., does not render possession as unlawful. Even in the absence of approved layout plan, there can be a valid alienation of immovable property. Further, failure to produce building plan and licence at most casts doubt about plaintiff's claim for having put up construction over suit schedule property. But, same cannot have any bearing on his possession over suit schedule property. In any case, plaintiff has produced tax paid receipts, encumbrance certificates, 'Nil' encumbrance certificate and positive photograph to establish possession over suit schedule property. In the absence of any contrary evidence or challenge to such evidence, finding of trial court regarding lawful possession of plaintiff over suit schedule property in negative is unsustainable, hence, finding of trial court on issue no.1 is capricious and contrary to evidence on record.
72. From a bare perusal of the written statement, it is seen that defendant no.1 contended therein that she along with defendants no.2 and 3 were daughters of Muniswamappa and having interest in the properties owned by their father. The alienation by their father for meagre amount ignoring their interests was contrary to law. Hence defendant No.1 filed suit for partition, which was decreed. Defendant No.1 further stated that in 33 pursuance of decree, final decree was also drawn and got registered after getting measured Sy.no.96/2. The very contention of defendant setting up her own claim over suit schedule property amounts to interference. Therefore, finding of trial court on issue no.2 is also capricious, if not perverse.
73. As the result of the suit depends entirely on findings of trial court on these two issues and as the findings thereon are held to be unsustainable, point for consideration is answered in negative and it is held that plaintiff is entitled for the relief sought for.
74. Accordingly, appeal is liable to be allowed.
RFA NO.1637/2014:
75. Challenging judgment and decree dated 12.09.2014 passed by the V Additional City Civil Judge, at Bengaluru City in O.S.No.6552/2012, this appeal is filed. Appellant herein was plaintiff in suit, while respondent Nos. 1 to 3 herein were defendant Nos.1 to 3 respectively. For the sake of convenience, parties will hereinafter be referred to as per their ranks before trial Court.
76. Brief facts leading this appeal are that plaintiff filed O.S.No.6552/2012 against defendants seeking for following reliefs:
a) Restraining the defendants, their agents, henchmen etc, from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property in any manner by granting permanent injunction against the 34 defendants restraining them or their agents, or any person claiming through or under them and
b) grant such other reliefs.
77. In the plaint, it was stated that house property bearing site no.30, measuring 40 ft. east-west and 30 ft. north-south, in the layout formed in Sy.No.96/2 of Bagalgunte village is the 'suit schedule property'.
78. Plaintiff - Shri. R Umesh son of Ramaiah- purchased suit schedule property under a registered sale deed dated 03.09.2003, executed by Shri. S.K. Nazeer. It was stated that originally land bearing Sy.No.96/2 of Bagalgunte village, measuring 2 acres 25 guntas, belonged to one Muniswamappa. It was stated to be his self-acquired property. Muniswamappa executed a sale deed in favour of one Shri. C.R. Krupad on 02.07.1971 conveying entire Sy.No.96/2. Since the date of purchase, said C.R. Krupad was in possession of suit property. His name was also mutated in revenue records. Subsequently, he sold sites out of it by forming unapproved layout. Some of them were by way of GPA along with possession. Shri. S.K. Nazeer obtained the suit property from Shri. C.R. Krupad by way of GPA on 24.03.1988. Plaintiff purchased suit property from Shri. S.K. Nazeer under registered sale deed on 03.09.2003. Since date of purchase, plaintiff claims to be in possession and enjoyment of suit property.
79. It is further stated that on 30.08.2012, defendants came over to suit property and tried to interfere 35 with plaintiff's possession. Defendants tried to put up a notice board on schedule property declaring that it belonged to them. Defendants claimed that they were daughters of original owner - Muniswamappa, who sold it for a very low price and even they had right over it. Plaintiff resisted their attempts and also tried to lodge a police complaint against them. But, police refused to register complaint on the ground that dispute was civil in nature and asked plaintiff to approach Civil Court. On the said cause of action, suit was filed.
80. Upon service of summons, defendants entered appearance. Defendant No.1 filed written statement, generally denying entire suit averments and specifically stating that property bearing Sy.No.96/2 of Bagalgunte village measuring an extent of 2 acres 25 guntas and other lands belonged to her father Muniswamappa. After his death, defendant No.1 filed O.S.No.4210/1987 for partition and separate possession of her 1/3rd share in ancestral property of her father Muniswamappa. After contest, suit came to be decreed declaring plaintiff as owner of 1/3rd share in properties held by Muniswamappa. Defendant No.2 therein had also challenged preliminary decree before this Court in RFA No.226/2002, which came to be dismissed. After dismissal, defendant No.3 filed FDP No.101/2008. Court Commissioner was appointed for measuring properties and on 12.01.2010, he measured properties, drew sketch and submitted a report to Court. After drawing up of final decree, final decree was registered with Sub-Registrar, Peenya on 02.03.2012. Subsequently, on basis of FDP 36 decree, khata of land was changed in favour of defendant No.1. Plaintiff as well his vendor Shri. C.R. Krupad were well aware of proceedings, drawing up final decree and also measuring, drawing of sketch and mahazar by Court Commissioner appointed in FDP No.101/2008. But suppressing all these facts, plaintiff filed instant suit. In pursuance of Commissioner's report, final decree is drawn and defendant No.1 was put in possession of her share in property. Since then, defendant No.1 was owner in possession of property including suit property.
81. Based on pleadings, trial Court framed following issues:
1. Whether the plaintiff to prove his lawful possession and enjoyment over the suit schedule property?
2. Whether the plaintiff to prove the interference made by defendants?
3. Whether the plaintiff is entitled for relief claimed in the suit?
4. What decree or order?
82. In order to establish his case, plaintiff examined himself as PW-1 and got marked Ex.P.1 to P.21. No evidence is adduced on behalf of defendants. After hearing arguments and considering material on record, trial Court answered points No.1 to 3 in negative and point No.4 by dismissing the suit. Aggrieved thereby this appeal is filed.
3783. Since submissions of Shri. D.R. Sundaresha, learned counsel for plaintiff - appellant in all the appeals are common, hence to avoid repetition, same is adopted in this appeal also as that of RFA N.1638/2014.
84. Notice to respondents No.1 and 3 is held sufficient. There is no representation on their behalf. Respondent No.2 is served unrepresented. Hence, matter is proceeded with in their absence.
85. Heard learned counsel, perused impugned judgment, decree and records.
86. In view of the above submissions, the only point that arises for consideration herein is:
"Whether trial Court is justified in dismissing plaintiff's suit without applying principles of law applicable to perpetual injunction?"
87. From the above, it is not in dispute that suit schedule property was originally belonging to Shri. Muniswamappa. On one side the case of plaintiff is that Muniswamappa sold entire extent of 2 acres 25 guntas of Sy. No.96/2 of Bagalgunte village in favour of Shri. C.R. Krupad, under a sale deed dated 02.07.1971 and who after forming revenue layout, sold plots to different persons. Some of them were by way of GPA along with possession. Shri. S.K. Nazeer, obtained suit schedule property from Shri. C.R. Krupad, by way GPA on 24.03.1988. Plaintiff purchased suit schedule property on 03.09.2003 under registered sale deed executed by Shri. S.K. Nazeer, as GPA holder of Shri. C.R. Krupad. After 38 purchase, plaintiff claims to have constructed a house and residing therein.
88. Admittedly, relief sought in suit is for permanent injunction, which is governed by Sections 37, 38 and 41 of Specific Relief Act. Issues framed are as to whether plaintiff's prove lawful possession of suit property as on the date of suit; interference made by defendants and his entitlement for relief claimed in the suit.
89. On consideration, trial court dismissed the suit. The dispute therefore is, whether dismissal of plaintiff's suit is justified.
90. In order to establish his case, plaintiff examined himself as PW-1. He virtually reiterated plaint averments in his examination-in-chief. Plaintiff got marked the sale deed dated 03.09.2003 executed by Shri. S.K. Nazeer, GPA holder of Shri. C.R. Krupad in favour of the plaintiff as Ex.P.1. Property tax paid receipts for assessment years 2003-2007 to 2012-2013 are produced as Ex.P.2 to Ex.P.7 respectively; Ex.P.8 is encumbrance certificate for the period from 01.04.2003 to 31.03.2004; Ex.P.9 is 'Nil' encumbrance certificate for the period from 01.04.2004 to 03.08.2012; Exs.P.10 and P.11 are electricity bills for the months of May and July 2012; Ex.P.12 is positive photograph of construction and it's negative and Ex.P.13 - Certified copy of the sale deed dated 01.07.1971 executed by Shri. Muniswamappa in favour of Shri. C.R. Krupad; Ex.P.14 is mutation extract no.1/1980-81 and Exs.P.15 to Ex.P.21 are record of rights in respect of Sy.No.96/2.
3991. On perusal of impugned judgment, the only reason assigned by trial Court while deciding issue no.1 is failure of plaintiff to produce khata certificate, approved layout plan, approved plan for construction of building and building licence, which according to trial court were required in the background of the contention taken by defendant no.1 that she had filed a suit claiming 1/3 rd share in Sy.No.96/2, which was granted to her and thereafter final decree was also drawn and registered. Trial court observed that though plaintiff established his title to property, but failed to establish lawful possession over suit property as on date of filing of suit. It further observed that plaintiff had not stated that he was unaware of the court proceedings and decree in favour of defendant No.1.
92. Insofar as issue No.2, the only reason assigned is that defendants are seeking to espouse their rights in terms of decree in civil suit and final decree proceedings and therefore, allegation of interference and imminent threat of dispossession as made out by plaintiff was imaginary.
93. Therefore, dismissal of suit is on the ground that plaintiff failed to establish lawful possession over suit schedule property as on date of suit, despite establishing his title and interfering with peaceful possession by defendants was imaginary.
94. In order to establish his possession, evidence placed on record by plaintiff are Ex. P1 - sale 40 deed, under which plaintiff purchased suit property, which contains averments about delivery of possession. Sale is also reflected in the encumbrance certificate - Ex.P.8. In the plaint, it is stated that suit property was part of Survey no.96/2 measuring 2 acres 25 guntas of Bagalgunte village, originally belonging to Muniswamappa, who sold it to Shri. C.R. Krupad under registered sale deed dated 01.07.1971, produced as Ex.P.13.
95. PW1- plaintiff has deposed that after purchase of the land, Shri. C.R. Krupad formed unapproved layout and sold plots to different persons. Some of the alienations were by way of GPA with possession. One such purchaser was Shri. S.K. Nazeer, who purchased suit schedule property by way of GPA on 24.03.1988. He executed sale deed-Ex.P.1 in favour of plaintiff on behalf of Shri. C.R. Krupad, which is reflected in Ex.P.8 - encumbrance certificate. In addition to above document, plaintiff produced tax paid receipts - Ex.P.2 to P.7 respectively. Plaintiff produced encumbrance certificates as per Exs.P.8 and P.9 and electricity bills of the year 2012 as Exs.P.10 and P.11. Though, plaintiff has not produced copy of building plan or licence for putting up construction of building on suit schedule property, he has produced copy of positive photograph of building and it's negative as Ex.P.12.
96. These documents reveal that original owner Muniswamappa alienated Sy.No.96/2 of Bagalgunte village in the year 1971. Shri. C.R. Krupad, purchaser sold sites 41 by forming unapproved layout in the said land. Shri. S.K. Nazeer, purchaser of suit schedule property by way of GPA with possession, executed sale deed in favour of plaintiff under Ex.P1.
97. It is clarified by the Hon'ble Supreme Court in the case of Suraj Lamp & Industries Private Limited vs. State of Haryana, reported in (2012) 1 SCC 656 that sale transactions done through GPA, Agreement to Sell and Will etc., neither transfer any title nor create any interest in the immovable property except to limited extent of Section 53-A of the Transfer of Property Act. But, in the very same judgment, it is seen that certain protections have been granted to GPA/Agreements etc., entered into prior to date of judgment i.e., 11.10.2011. As GPA in favour of executant of Ex.P.11 - sale deed is prior to date of decision in Suraj Lamps,(supra), it cannot be invalidated on that count.
98. Subsequent to purchase, plaintiff is shown to be paying property tax as per Ex.P2 to P7. He claims to have put up construction and obtained electricity connection, as revealed by Ex.P.10 and P.11. Evidence of plaintiff in this regard has remained unchallenged. Therefore, in the absence of any contrary evidence, plaintiff has to be held to have established his possession over suit schedule property. As plaintiff has come in possession of suit schedule property under a registered sale deed, his possession has to be held as 'lawful possession'. Merely on the ground that plaintiff failed to 42 produce copy of approved layout plan or building plan and licence, it cannot be held that plaintiff's possession over suit schedule property is unlawful, especially in the absence of any challenge. The claim of defendants in their written statement remains without being substantiated by leading evidence. Plaintiff's claims are virtually uncontested. Under such circumstances, trial court ought to have examined material on record and evaluate, whether it substantiates plaintiff's claim and unless, there was any inherent lacunae or defect in plaintiff's title or possession, it ought not to have rejected entire evidence of plaintiff, especially so after it held that plaintiff had established valid title in respect of suit schedule property. Failure to produce khata certificate, approved layout plan, building plan and licence etc., does not render possession unlawful. Even in the absence of approved layout plan, there can be a valid alienation of immovable property. Further failure to produce building plan and licence at most casts doubt about plaintiff's claim of having put up construction over suit schedule property. But same cannot have bearing on his possession over suit schedule property. In any case, plaintiff has produced tax paid receipts, encumbrance certificates, 'Nil' encumbrance certificate and positive photograph and also electricity consumption bills to establish possession over suit schedule property. In the absence of any contrary evidence or challenge to such evidence, finding of trial court regarding lawful possession of plaintiff over suit schedule property in negative is unsustainable. Hence, 43 finding of trial court on issue no.1 is capricious and contrary to evidence on record.
99. From a bare perusal of the written statement, it is seen that defendant no.1 contended therein that she along with defendants no.2 and 3 were daughters of Muniswamappa and having interest in the properties owned by their father. The alienation by their father for meagre amount ignoring their interests was contrary to law. Hence, defendant No.1 filed suit for partition, which was decreed. Defendant No.1 further stated that in pursuance of decree, final decree was also drawn after getting the Sy.no.96/2 measured and even the final decree drawn was got registered. The very contention of defendant setting up her own claim over suit schedule property amounts to interference. Therefore, finding of trial court on issue no.2 is also capricious, if not perverse.
100. As the result of the suit depends entirely on findings of trial on these two issues and as the findings thereon are held to be unsustainable, point for consideration is answered in negative and it is held that plaintiff is entitled for the relief sought for.
101. Accordingly, appeal is liable to be allowed.
RFA No.1639/2014102. Challenging judgment and decree dated 12.09.2014 passed by the V Additional City Civil Judge, at Bengaluru City in O.S.No.6557/2012, this appeal is filed. Appellant herein was plaintiff in suit, while respondents No. 1 to 3 herein were defendants No.1 to 3 respectively. For 44 sake of convenience, parties will hereinafter be referred to as per their ranks before trial Court.
103. Brief facts leading this appeal are that plaintiff filed O.S.No.6557/2012 against defendants seeking for following reliefs:
a) Restraining the defendants, their agents, henchmen etc, from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property in any manner by granting permanent injunction against the defendants restraining them or their agents, or any person claiming through or under them and
b) grant such other reliefs.
104. In the plaint, it was stated that house property bearing site no.1, measuring 30 ft. east-west and 40 ft. north-south, in the layout formed in Sy.No.96/2 of Bagalgunte village is the 'suit schedule property'.
105. Plaintiff - Shri. Shivalingegouda son of Poojari Kodigouda, purchased suit schedule property under a registered sale deed dated 17.11.2006, executed by Smt. Sujatha. It was stated that originally land bearing Sy.No.96/2 of Bagalgunte village, measuring 2 acres 25 guntas, belonged to one Muniswamappa. It was stated to be his self-acquired property. On 02.07.1971,Muniswamappa executed a sale deed in favour of one Shri. C.R. Krupad conveying entire Sy.No.96/2. Since the date of purchase, said C.R. Krupad was in possession of suit property and his name was also 45 mutated in revenue records. Subsequently, he sold sites out of it by forming unapproved layout. Some of them were by way of GPA along with possession. On 12.02.1988, Shri. Jayaram obtained the suit property from Shri. C.R. Krupad by way of GPA. On 09.03.2004, Shri. Jayaram as GPA holder of Shri. C.R. Krupad executed registered sale deed in favour of Smt. Sujatha, conveying the suit schedule property. On 17.11.2006, plaintiff purchased suit property from Smt. Sujatha under a registered sale deed. Since date of purchase, plaintiff claims to be in possession and enjoyment of suit property.
106. It is further stated that on 30.08.2012, defendants came over to suit property and tried to interfere with plaintiff's possession. Defendants tried to put up a notice board on schedule property declaring that it belonged to them. Defendants claimed that they were daughters of original owner - Muniswamappa, who sold it for a very low price and even they had right over it. Plaintiff resisted their attempts and also tried to lodge a police complaint against them. But, police refused to register complaint on the ground that dispute was civil in nature and asked plaintiff to approach Civil Court. On the said cause of action, suit was filed.
107. Upon service of summons, defendants entered appearance. Defendant No.1 filed written statement, generally denying entire suit averments and specifically stating that property bearing Sy.No.96/2 of Bagalgunte village measuring an extent of 2 acres 25 46 guntas and other lands belonged to her father Muniswamappa. After his death, defendant No.1 filed O.S.No.4210/1987 for partition and separate possession of her 1/3rd share in ancestral property of her father Muniswamappa. After contest, suit came to be decreed declaring plaintiff as owner of 1/3rd share in properties held by Muniswamappa. Second defendant therein had also challenged preliminary decree before this Court in RFA No.226/2002 which came to be dismissed. After dismissal, defendant No.3 filed FDP No.101/2008. Court Commissioner was appointed for measuring properties and on 12.01.2010, he measured properties, drew sketch and submitted a report to Court. After drawing up of final decree, it was registered with Sub- Registrar, Peenya on 02.03.2012. Subsequently, on the basis of FDP decree, khata of land was changed in favour of defendant No.1. Plaintiff as well his vendor Shri. C.R. Krupad, were well aware of proceedings, drawing up final decree and also measuring, drawing of sketch and mahazar by Court Commissioner appointed in FDP No.101/2008. But, suppressing all these facts, plaintiff filed instant suit. In pursuance of Commissioner's report, final decree is drawn and defendant No.1 was put in possession of her share in property. Since then, defendant No.1 was owner in possession of property including suit property.
108. Based on pleadings, trial Court framed following issues:
1. Whether the plaintiff to prove his lawful possession and enjoyment over the suit schedule property?47
2. Whether the plaintiff to prove the interference made by defendants?
3. Whether the plaintiff is entitled for relief claimed in the suit?
4. What decree or order?
109. In order to establish his case, plaintiff examined himself as PW-1 and got marked Ex.P.1 to P.22. No evidence is adduced on behalf defendants. After hearing arguments and considering the material on record, trial court answered points No.1 to 3 in negative and point No.4 by dismissing the suit. Aggrieved thereby this appeal is filed.
110. Since submissions of Shri. D.R. Sundaresha, learned counsel for plaintiff - appellant in all the appeals are common, hence to avoid repetition, same is adopted in this appeal also as that of RFA N.1638/2014.
111. Notice to respondents No.1 and 3 is held sufficient. There is no representation on their behalf. Respondent No.2 is served unrepresented. Hence the matter is proceeded with in their absence.
112. Heard learned counsel, perused impugned judgment, decree and records.
113. In view of the above submissions, the only point that arises for consideration herein is:
48"Whether trial Court is justified in dismissing plaintiff's suit without applying principles of law applicable to perpetual injunction?"
114. From the above, it is not in dispute that suit schedule property was originally belonging to Shri. Muniswamappa. On one side the case of plaintiff is that Muniswamappa sold entire extent of 2 acres 25 guntas of Sy. No.96/2 of Bagalgunte village in favour of Shri. C.R. Krupad, under a sale deed dated 02.07.1971, who after forming revenue layout, sold plots to different persons. Some of them were by way of GPA along with possession. Shri. Jayaram, obtained suit schedule property from Shri. C.R. Krupad, by way GPA on 12.02.1988. Thereafter Smt. Sujatha purchased suit schedule property from Shri. Jayaram under registered sale deed dated 09.03.2004. Plaintiff purchased suit schedule property on 17.11.2006 under registered sale deed. After purchase, plaintiff claims to have constructed a house and residing therein.
115. Admittedly, relief sought in suit is for permanent injunction, which is governed by Sections 37, 38 and 41 of Specific Relief Act. Issues framed are as to whether plaintiff's prove lawful possession of suit property as on the date of suit; interference made by defendants and his entitlement for relief claimed in the suit.
116. On consideration, trial court dismissed the suit. The dispute therefore is, whether dismissal of plaintiff's suit is justified.
49117. In order to establish his case, plaintiff examined himself as PW-1. He virtually reiterated plaint averments in his examination-in-chief. Plaintiff got marked the GPA and Affidavit dated 12.02.1988 as Exs. P.1 and P.2; Sale deed dated 09.03.2004 as per Ex.P.3 executed by Shri. Jayaram, GPA holder of Shri. C.R. Krupad in favour of Smt. Sujatha; Sale deed executed by Smt. Sujatha in favour of plaintiff on 17.11.2006 is produced as Ex.P.4; Ex.P.5 is the 'B' khata extract; Property tax paid receipts dated 16.09.2009 marked as Ex.P.6 and property tax paid receipts for assessment years 2008-2009 to 2012-2013 are produced as Ex.P.7 to Ex.P.10 respectively. Ex.P.11 is electricity bill; Exs.P.12 and P.13 are positive photographs of construction and it's negative; Ex.P.14-certified copy of the sale deed dated 01.07.1971 executed by Shri. Muniswamappa in favour of Shri. C.R. Krupad; Ex.P.15 is mutation extract no.1/1980-81 and Exs.P.16 to Ex.P.22 are record of rights in respect of Sy.No.96/2.
118. On perusal of impugned judgment, the only reason assigned by trial court while deciding issue no.1 is failure of plaintiff to produce khata certificate, approved layout plan, approved plan for construction of building and building licence, which according to trial court were required in the background of the contention taken by defendant no.1 that she had filed a suit claiming 1/3 rd share in Sy.No.96/2, which was granted to her and thereafter final decree was also drawn and registered. Trial court observed that though plaintiff established his title to 50 property, but failed to establish lawful possession over suit property as on date of filing of suit. It further observed that plaintiff had not stated that he was unaware of the court proceedings and decree in favour of defendant No.1.
119. Insofar as issue no.2, the only reason assigned is that defendants are seeking to espouse their rights in terms of decree in civil suit and final decree proceedings and therefore, allegation of interference and imminent threat of dispossession as made out by plaintiff was imaginary.
120. Therefore, dismissal of suit is on the ground that plaintiff failed to establish lawful possession over suit schedule property as on date of the suit, despite establishing his title and interference with peaceful possession by defendants was imaginary.
121. In order to establish his possession, the evidence placed on record by plaintiff are certified copy of the sale deed dated 01.07.1971 executed by Muniswamappa in favour of Shri. C.R. Krupad, which is reflected in encumbrance certificate; the transfer made in favour of Shri. Jayaram by Shri. C.R. Krupad on 12.02.1988 by way of GPA along with possession and Affidavit; registered sale deed executed by Shri. Jayaram in favour of Smt. Sujatha 09.03.2004 and the registered sale deed executed by Smt. Sujatha in favour of plaintiff on 17.11.2006. Sale deeds contain averments about delivery of possession.
51122. In the plaint, there are clear assertions that suit property was part of Survey no.96/2 measuring 2 acres 25 guntas of Bagalgunte village, originally belonging to Muniswamappa, who sold it to Shri. C.R. Krupad under registered sale deed dated 01.07.1971, produced as Ex.P.15.
123. Plaintiff - PW1 deposed that after purchase of the land, Shri. C.R. Krupad formed unapproved layout and sold plots to different persons. Some of the alienations were by way of GPA with possession. One such purchaser was Shri. Jayaram, purchased suit schedule property by way of GPA on 12.02.1988. Shri. Jayaram executed registered sale deed dated 09.03.2004 in favour of Smt. Sujatha. The sale deed is marked as Ex.P.3. Smt. Sujatha executed registered sale deed in favour of plaintiff on 17.11.2006 marked as Ex.P.4. In addition to above document, plaintiff produced tax paid receipts - Ex.P.5 to P.10 respectively. Plaintiff also produced electricity bills of the year 2012 as Ex.P.11. Though, plaintiff has not produced copy of building plan or licence for putting up construction of building on suit schedule property, he has produced copy of positive photographs of building as Ex.P.12 and it's negative as Ex.P.13.
124. These documents indicate transfer of ownership of suit schedule property from original owner - Muniswamappa upto plaintiff. Though, transfer by Shri. C.R. Krupad in favour of Shri. Jayaram is by way of GPA 52 with possession, transfer is dated 12.02.1988 as per Ex.P.1.
125. It is clarified by Hon'ble Supreme Court in the case of Suraj Lamp & Industries Private Limited vs. State of Haryana, reported in (2012) 1 SCC 656, that sale transactions done through GPA, Agreement to Sell, Will etc., neither transfer any title nor create any interest in the immovable property except to limited extent of Section 53- A of the Transfer of Property Act. But, in the very same judgment, it is seen that certain protections have been granted to GPA/Agreements etc., entered into prior to date of judgment i.e., 11.10.2011. As GPA in favour of executant of Ex.P.11 - sale deed is prior to date of decision in Suraj Lamps, (supra), it cannot be invalidated on that count.
126. Subsequent to purchase, plaintiff is shown to be paying property tax as per Ex.P5 to P10. He claims to have put up construction and obtained electricity connection, as indicated by Ex.P.11. Evidence of plaintiff in this regard has remained unchallenged. Therefore, in the absence of any contrary evidence, plaintiff has to be held to have established his possession over suit schedule property. As plaintiff has come in possession of suit schedule property under a registered sale deed, his possession has to be held as 'lawful possession'. Merely on the ground that plaintiff failed to produce copy of approved layout plan or building plan and licence, it cannot be held that plaintiff's possession over suit schedule 53 property is not lawful, especially in the absence of any challenge. The claim of defendants in their written statement remains without being substantiated by leading evidence. Plaintiff's claims are virtually uncontested. Under such circumstances, trial court ought to have examined material on record and evaluate whether it substantiates plaintiff's claim and unless, there was any inherent lacunae or defect in plaintiff's title or possession, it ought not to have rejected entire evidence of plaintiff, especially so, after it held that plaintiff had established valid title in respect of suit schedule property. Failure to produce khata certificate, approved layout plan, building plan and licence etc., does not render possession unlawful. Even in absence of approved layout plan, there can be a valid alienation of immovable property. Further failure to produce building plan and licence at most casts doubt about plaintiff's claim of having put up construction over suit schedule property. But, same cannot have bearing on his possession over suit schedule property. In any case, plaintiff has produced tax paid receipts, encumbrance certificates, 'Nil' encumbrance certificate and positive photograph and also electricity consumption bills to establish possession over suit schedule property. In the absence of any contrary evidence or challenge to such evidence, finding of trial court regarding lawful possession of plaintiff over suit schedule property in negative is unsustainable. Hence, finding of trial court on issue no.1 is capricious and contrary to evidence on record.
54127. From a bare perusal of the written statement, it is seen that defendant no.1 contended therein that she along with defendants no.2 and 3 were daughters of Muniswamappa and were having interest in the properties owned by their father. The alienation by their father for meagre amount ignoring their interests was contrary to law. Hence, defendant No.1 filed suit for partition, which was decreed. Defendant No.1 further stated that in pursuance of decree, final decree was also drawn after getting the Sy.no.96/2 measured and even the final decree drawn was got registered. The very contention of the defendant setting up her own claim over suit schedule property amounts to interference. Therefore, finding of trial court on issue no.2 is also capricious, if not perverse.
128. As the result of the suit depended entirely on findings of trial on these two issues and as the findings thereon are held to be unsustainable, point for consideration is answered in negative and it is held that plaintiff is entitled for the relief sought for. Hence, appeal is liable to be allowed.
Accordingly, appeals are allowed. Impugned judgment and decree in all the suits is set aside and plaintiff's suits are decreed with costs.
6. The aforesaid judgment passed against the respondents having attained finality and become conclusive and binding upon them, I am of the view that by applying the 55 doctrine of parity, the present appeal also deserves to be allowed and the suit of the plaintiff deserves to be decreed.
7. In the result, I pass the following:-
ORDER
(i) Appeal is hereby allowed.
(ii) The impugned judgment and decree dated 12.09.2014 passed in O.S.No.6638/2012 by the learned V Addl.City Civil and Sessions Judge, Bangalore, is hereby set aside.
(iii) The suit filed by the appellant - plaintiff is decreed as prayed for.
Sd/-
JUDGE Srl.