Karnataka High Court
Smt. Nirmala W/O C.S. Srinivasa Murthy vs Sri Naveen Chhaggar S/O Mangilal ... on 2 November, 2006
Equivalent citations: AIR2007KANT40, AIR 2007 KARNATAKA 40, 2007 (2) ABR (NOC) 293 (KAR), 2007 A I H C 725, 2007 (2) AJHAR (NOC) 548 (KANT.) = AIR 2007 KARNATAKA 40, 2007 (1) AIR KAR R 289, (2007) 2 KANT LJ 343
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
JUDGMENT D.V. Shylendra Kumar, J.
1. This is an appeal by the defendant in O.S. No. 7026/1992 on the file of the Court of VIII Addl. City Civil Judge, Bangalore, directed against the judgment and decree dated 22.8.2000.
2. The suit for injunction having been decreed in favour of the plaintiff in terms of the judgment and decree, the present appeal by the defendant.
3. The appellant had contended that the plaintiff had miserably failed to prove his possession with regard to the suit schedule property either on the date of the sale deed dated 23.1.1985 based on which the plaintiff claimed right, title and possession to the property or on the date of filing of the suit; that the Court below could the date of filing of the suit; that the Court below could not have decreed the suit for injunction in the absence of any credible material placed by the plaintiff to establish possession in respect of the suit property; that the plaintiff was not entitled to claim that he was in possession on the date of filing of the suit even assuming that he was in possession of the property in the year 1985; that the trial Court ought to have dismissed the suit etc.
4. The brief facts leading to filing of the suit and the present appeal are as under:
Plaintiff who had filed the suit initially for a declaratory relief to prove that he is the absolute owner in possession of the suit schedule property by virtue of a sale deed Ex.P-3 dated 23.1.1985 and also a declaration that the subsequent sale deed dated 27.12.1989 - Ex.D-7 to be null and void and praying for the relief of permanent injunction etc., against the defendant from interfering with the peaceful possession of the suit schedule property by the plaintiff and the defendant being one claiming under the subsequent sale deed dated 27.12.1989 and the Society from whom both the plaintiff and the 1st defendant claim title to the property be added as the 2nd defendant.
5. The 2nd respondent had subsequently given up the relief of declaration and had confined the suit to one as suit for injunction alone in terms of a memo filed during the pendency of the suit for deletion of the declaratory relief. The plaint averments were that the 2nd defendant - Society had executed the sale deed dated 23.1.1985 in favour of the plaintiff in respect of site bearing No. 160 a site formed by the 2nd defendant in Sy. No. 333/1, 2, 3, 4 & 5, 334/1 & 2 and part of Sy. No. 335 of Kempapura Agrahara, Bangalore North Taluk, and that on the very day possession of sites had been handed over. Notwithstanding, the lst defendant having claimed right and title to the very sites in terms of a sale deed dated 17.12.1999 executed by the 2nd defendant through one P. Rangaswamappa, as the President of the 2nd defendant - Society and that being a collusive document between the 1st defendant and 2nd defendant and the plaintiff having made enquiry's about the factum of no person by the name Rangaswamappa, being the President of the 2nd defendant society and that the cause of action for the suit arose as on 1.11.1990, when the 1st defendant based on his sale deed dated 27.12.1989 attempted to dispossess the plaintiff and as that the threat continued, within the jurisdiction of the Court, it became necessary for the plaintiff to file the suit praying for an order of injunction/restraint order.
6. While the cause of action is pleaded to be one arising on 1.11.1990, it is significant to notice the suit itself was filed on 2.11.1992.
7. It is also pleaded that the authority of the said P. Rangaswamappa who had purported to act as the President of the 2nd defendant - Society had executed the sale deed dated 27.12.1989 in favour of the 1st defendant came to be challenged and in the proceedings which originated before the Registrar of Co-operative Societies and culminated in W.P. No. 15614/1992 and in the suit O.S. No. 5235/1995 litigation fought as against the office bearers as to who was in management and control of the Society, it had been authoritatively concluded that the said Rangaswamappa was not a competent person to act as the President on behalf of the Society and consequently the BDA having issued cancellation dated 20.4.1995, the declaratory relief became unnecessary and therefore that was deleted. The 1st defendant contested the suit. In the written statement the 1st defendant contended that the suit was frivolous and vexatious; that the plaintiff had no right title or interest to the suit schedule property; that the document based on which the plaintiff claimed title is fabricated and concocted; that the defendant denies the existence of the document in favour of the plaintiff and at any rate does not admit the same. The plaintiff was put to proof of the suit pleadings; that the 2nd defendant - society itself was not in possession or had acquired valid title to the lands in Sy. No. 333/1,2,3, 4 and 5, Sy. No. 333/1 and 2 and part of Sy. No. 335 as on the date of the sale deed based on which the plaintiff claim i.e. as on 23.1.1985 that neither the 2nd defendant nor the plaintiff were ever in possession of the property in question on this day; that the survey numbers were put by themselves and were in possession of the 2nd defendant - society, subsequently that the resolution of the Bangalore Development Authority to sanction 50 sites in favour of the Society was the event subsequent to which the plaintiff claimed. The resolution in fact was communicated to the society only as per the communication dated 24.11.1984 sent by the Executive Engineer to the President of the Society; that the defendant having been put in possession thereafter defendant has been in valid possession ever since 27.12.1989; that the defendant had in fact paid property tax, that thereafter the Court had rightly refused to grant temporary injunction in favour of the plaintiff, there is no cause of action for the suit, the plaintiff was not entitled for the relief sought for and the suit be dismissed. It was also pleaded that the plaintiff is neither entitled for declaration nor for consequential relief of injunction.
8. The 1st defendant filed an additional statement, inter alia, contending that the alleged cancellation dated 5.6.1995 was not a valid one; that the executants of the said document had no legal right or legal authority to execute the same; that the site having been sold in favour of the defendant on 28.12.1989 the 1st defendant had lost all its right title and interest and to create any document in favour of the plaintiff thereafter that the so called possession certificate dated 30.5.1994 said to have been issued in favour of the plaintiff was denied and not admitted; that it had no consequence in law having come into existence during the pendency of the suit; that the court fee paid is not proper: that the suit was not tenable and liable to be dismissed.
9. In the light of the initial proceedings, the trial Court had framed the following 5 issues and an additional issue as under:
1. Does plaintiff prove that he is the owner of the suit property under the sale deed dated 23.1.1985?
2. Does plaintiff prove his lawful possession of the suit property on the date of suit?
3. Does plaintiff prove the obstruction by the defendants as alleged?
4. Is plaintiff entitled to the declaration as prayed for?
5. Is he entitled to the injunction as sought for?
6. What decree or order?
ADDITIONAL ISSUE:
1. Whether the suit is liable to be dismissed as contended in para 7(a) of the written statement in view of the orders of the Registrar of Societies in Case No. 45/61-62 dated 31-3-1999?
10. Though the parties went to trial on these issues, subsequently the plaintiff having filed a memo to the effect that the relief of declaration is not pressed for, the trial court confined the examination of the case on issue Nos. 2, 3, 5 and additional issue and deleted issue Nos. 1 and 4 and passed order on issue No. 6.
11. On behalf of the plaintiff, the father of the plaintiff has been examined as PW1 and on behalf of the defendants, the husband of the first defendant has been examined as DW1. While plaintiff has got marked ExPl to 19, including ExP2 possession certificate, ExP3 sale deed dated 20-4-1985, ExP4 cancellation deed dated 20-4-1995, ExP10 and 11, receipts issued by the second defendant society in favour of the plaintiff, ExP12 encumbrance certificate in respect of the suit schedule property for the period 1984 to 1995, which indicates the execution of sale deed dated 23-1-1985 executed by the second defendant in favour of plaintiff, execution of sale deed dated 28-12-1989 executed by the very second defendant in favour of first defendant and execution of the cancellation deed dated 5-6-1995 executed by the second defendant in respect of the sale deed that had been executed in favour of the first defendant; ExP14, certified copy of the order dated 19-5-1992 passed by this Court in WP No 15614 of 1992, a petition which had been filed by one P. Rangaswamappa, a person whom the first defendant claims to be the president of the second respondent society at the time when the sale deed was executed in her favour, which came to be dismissed; ExP15, judgment in OS No 5235 of 1995, on the file of XII Additional City Civil Judge, Bangalore, a suit filed by one K.G. Srikantaiah against one A.S. Cheluvaiah, for permanent injunction and declaration of his ownership and possession and enjoyment of the suit schedule property, which had come to be decreed; ExP17. certified copy of the order passed by this Court on 14-9-1995, disposing of WP No 6379 of 1990, a petition that has been filed by the second defendant. Likewise, ExP18 and 19, orders passed by this Court in two other writ petitions dismissing both the petitions.
12. On the side of defendants, ExD1 to 9 have been marked. Prominent being, ExP7 sale deed dated 27-12-1989. ExD8 Dossession certificate dated 10-1-1990, ExD9 khata certificate issued by the Bangalore Development Authority, ExD10 tax paid receipt upto the year 1994 issued in favour of first defendant and other related documents.
13. The trial court having answered issues 2, 3 and 5 in the affirmative as also additional issue No 1, decreed the suit for permanent injunction in favour of the plaintiff and against the defendants. Against such judgment and decree, the present appeal.
14. I have heard Sri H.N. Prakash, learned Counsel for the appellant and Sri Paras Jain, learned Counsel for the first respondent.
15. Submission of Sri H.N. Prakash, learned Counsel for the appellant is that the trial court has committed an error in decreeing the suit for bare injunction even when the plaintiff had not established his possession as on the date of institution of the suit; that while the plaintiff had miserably failed in proving his possession of suit schedule property and on the other hand the materials on record indicated that the defendant No 1 was in fact in possession of the suit schedule property; that the question of plaintiff establishing his title as against the first defendant does not have any tearing or consequence particularly when the plaintiff having rescinded from the prayer for declaration; that the trial court should have even on material evidence on record dismissed the suit of the plaintiff; that the suit was even otherwise not maintainable and should have been dismissed for the reason that even when the first defendant had disputed the title of the plaintiff to the property in question, the plaintiff, who had initially filed suit both for declaration and permanent injunction, having deleted the prayer for declaration, the consequential prayer of injunction alone did not survive and the suit was not tenable in the form it was filed and therefore sought for allowing the appeal and set aside the decree passed by the trial court.
16. In this regard, learned Counsel for the appellant has taken me through the pleadings in the plaint and the written statement as also the evidence of PW1 and DW1 and supporting documents.
17. Sri Paras Jain, learned Counsel for the respondent-plaintiff vehemently submits that the plaintiff has established his possession to the suit schedule property; that the sale deed of the year 1985 has clearly recited that the plaintiff had been put in possession of the suit schedule property; that the defendant would claim the very properly in terms of the sale deed of the year 1989, that too a document executed by a person who has been declared to be not competent or authorized to manage the affairs of the society, particularly in the light of the decisions of this Court and the judgment and decree of the trial court as under ExP14, 15, 16; that the trial court having found that the first defendant was unable to establish his possession with reference to the document relied on and particularly the validity of the sale deed of the year 1989 executed in favour of the first defendant, will fall to the ground with the cancellation of the very deed in terms of ExP4 and therefore there was nothing in favour of the defendant that could prevent the trial court decreeing the suit; that the plaintiff being content with mere injunction only, had deleted the prayer for declaration, as the society itself had by the subsequent cancellation deed cancelled the sale deed on which the first defendant had claimed his right to the suit schedule property; that there is nothing in favour of the first defendant based on which the first defendant could either assert his title or his possession; that the trial court has rightly decreed the suit and the first defendant could not in law claim to be in possession particularly as it had been established by orders of courts that all actions on behalf of the second defendant society by the said Rangaswamappa, are all acts of fraud, deceit and therefore nothing was required to be done on the part of the plaintiff to get over such actions and deletion of the prayer for declaration cannot be of any consequence; that the plaintiff had continued to be in possession ever since 1985 and the possession certificate issued in the year 1994 though during the pendency of the suit before the trial court was only in reiteration of the earlier position and by way of abundant caution to dispel the confusion created by the sale deed in favour of the first defendant; that the plaintiff had continued to be in possession all along and there is absolutely no need to disturb the judgment and decree passed by the trial court.
18. It is the submission of learned Counsel for the first respondent-plaintiff that the claim of the appellant [first defendant] has been characterized as one under the deed executed by fraud, deceit and no right flows in favour of the first defendant under such a deed; that fraud vitiates all actions and this Court has to take note of such developments and should not in this appeal disturb the judgment and decree passed by the trial court, which if done, can only amount to encouraging such fraudulent acts and therefore also prays for dismissal of the appeal.
19. Sri Paras Jain, learned Counsel for the first respondent has also drawn my attention to the evidence of DW1 and seeks to submit that the witness on behalf of the defendant having admitted that some more documents are in possession of the first defendant, the suit had been rightly decreed by the trial court and therefore does not warrant any interference in appeal.
20. In the light of the submissions made on behalf of both parties, the points that arise for determination in this appeal are as under:
a) Whether the plaintiff-first respondent had established his factual physical possession of the suit schedule property on the date of filing of the suit and interference on the part of first defendant of such possession of the plaintiff prior to the filing of the suit?
b) Whether the suit in the modified form viz., for mere injunction as against the first defendant was tenable when the plaintiff had laid the suit for declaration of only his title to the property, and declaration against the first defendant under the sale deed of the year 1989 and the prayer for injunction was consequential but later confined the relief and the suit to one of restraint order atone without the relief of declaration?
21. In so far as the first point is concerned, I find that the trial court has not recorded a categorical finding in favour of the plaintiff to the effect that the plaintiff was in physical possession of the suit schedule property either on the date of filing of the suit or immediately prior to the filing of the suit. In fact even the assertion in the plaint was that the plaintiff was put in possession of the property under the sale deed of the year 1985, But there is no positive assertion that the plaintiff continued to be remain in possession thereafter. On the other hand, the plaint pleading in para-5 indicates the cause of action to the following effect:
5. The cause of action for the suit arose on 1-11-90 when the 1st defendant attempted to dispossess the plaintiff and the said threat is still continuing within the jurisdiction of this Hon'ble Court.
This pleading coupled with the deposition of PW1, to the following effect:
During the period of Nov. 1992 myself, plff. Had been to the suit site to put up fence. At that time the defendant No 1 and her followers obstructed our peaceful possession and enjoyment of the suit schedule site.
Would only indicate that the suit itself, which was instituted on 2-11-1992, was about two years after the cause of action arose and the evidence is to the effect that it was the first defendant who was in possession and who obstructed the plaintiff's attempt to put up fence on the suit site.
22. If such is the pleading and evidence, it is very obvious that the plaintiff was not in possession of the suit schedule property on the date of institution of suit. That cannot lead to an inference that the plaintiff was positively in possession of the suit schedule property on the date of filing of the suit. In fact the learned judge of the trial court while does not give such a positive finding, what is recorded in terms of para-16 of the judgment is that:
16. The list of office bearers of second defendant-society as certified by the Registrar of Societies produced at the time of arguments on behalf of first defendant is not of any help to the case of first defendant to show that Rangaswamappa and Ramachandra Reddy were the office bearers of the society at the time of execution of sale deed in favour of first defendant. So, I have no hesitation to hold that plaintiff has successfully shown that he is in lawful possession of the suit schedule property on the date of suit and hence, I answer issue No 2 in the affirmative. The way in which the first defendant contesting the suit is sufficient to hold that first defendant has interfered into possession and enjoyment of the suit schedule property by the plaintiff. Hence, I answer issue No 3 also in the affirmative. Since I have held that plaintiff is in lawful possession of the suit schedule property and has continued to be in possession of the suit schedule property by virtue of the temporary injunction order issued by this Court, at the time of filing of the suit / have hesitation to hold that plaintiff is in possession and enjoyment of the suit schedule property and is entitled for injunction order and hence I answer issue No 5 also in the affirmative.
23. The above finding is not a positive finding in favour of the plaintiff, but an inference drawn in favour lawful possession of the plaintiff on the inability of the defendant to prove his lawful possession.
24. In a suit for bare injunction what is essential for the plaintiff is to prove that he is in factual durable possession of the subject property, when the relief is for injunction in respect of an immovable property. Therefore, the first point has to be answered in favour of the appellant.
25. In so far as the second point is concerned, Sri Paras Jain, learned Counsel for the first defendant-plaintiff has drawn my attention to the law laid down in the following decision:
1. Azeezulla Sheriff v. Bhabhutimul
2. Jagannath Kashimath Patil v. Narayan Balugaikar
3. Balwant Singh v. Daulat Singh
26. In the case of Azeezulla Sheriff what has been held is that the date on which registered documents operates is the date on which the execution of the document is admitted and the document operates from the time of the execution etc. This judgment is of no avail to the first respondent on the facts and circumstances f the present case, as the question in the appeal and the suit was not one of title but only one of possession. A mere fact that the plaintiff might have good title to the property that by itself automatically does not establish his possession of the property unless such possession is actually pleaded and proved by evidence. In fact there being considerable interval of about seven years from the date of execution of the document under which the plaintiff claims title and possession to the property and the date of institution of the suit i.e. between 1985 and 1992 and there being another intervening development viz., execution of another document in favour of the first defendant under which also it is recited that the first defendant was put in possession coupled with the fact that the first defendant has asserted that she was in possession all along and certain additional materials such as tax paid receipt in respect of the very land, khata transfer in her favour etc. are all if at all an indicator that possibly the first defendant was in possession and definitely not that the plaintiff had continued to be in possession.
27. One should bear in mind that the plaintiff was not claiming or suing for injunction based on title but the suit which had been filed for declaration, title and injunction was confined to one of mere injunction. If the suit should have been one for declaration and for a consequential relief of possession, the plaintiff could have succeeded. In a suit for bare injunction, unless the possession of the plaintiff is independently established, there is no way of the suit being decreed.
28. In the case of Jagannath Kashimath Patil while dismissing the appeal of the defendant, the Supreme Court had occasion to observe that actual possession of the plaintiff was further reinforced with the plaintiff having acquired title also to the property through his maternal grandmother, and already being in possession as mortgagee, the further acquisition or improving his title has only improved the quality of factual possession and therefore the appeal was required to be dismissed.
29. This decision again does not advance the case of the plaintiff, as the plaintiff's case in the present suit was only one for mere injunction.
30. The other decision in the case of Balwant Singh is one holding that revenue entries by themselves cannot confer title by itself. But unfortunately, the issue in the case is not one of title, but only about of possession and therefore the decision does not help the case of the first respondent.
31. Sri Paras Jain, learned Counsel for the first respondent has also by drawing attention to the provisions of Section 38 of the Specific Relief Act. 1963 for short, the Act], particularly Section 38(3) of the Act submits that when once the plaintiff had established that he was in lawful owner of suit schedule property the trial court has rightly decreed the suit for injunction: that the judgment and decree is to be sustained having regard to the provisions of Section 38(3)(d) of the Act, particularly to avoid multiplicity of judicial proceedings; that the plaintiff was definitely entitled to defend and protect his possession and seeking for a restraint order against the first defendant and no need to wait till he is dispossessed to file a suit for declaration and the suit for recovery of possession or mere suit for recovery of possession etc.
32. Submission is not relevant to the facts of the present case. Section 38 of the Act is a provision indicating the circumstances under which a perpetual injunction can be granted. It is also subject to other provisions contained in the Act. The court is unable to grant an order of perpetual injunction in the circumstances indicated in Sub-clauses (1), (2) and (3). Sub-clause (3) deals with cases relating to immovable properties and Clause-(b) hereunder provides for grant of an order of perpetual injunction to prevent multiplicity of judicial proceedings.
33. The provision only enables the court to grant a relief of this nature if the plaintiff is able to establish durable possession to the property on the date of filing the suit. Here the plaintiff in fact has not established the possession in fact and cannot rely upon his mere title for seeking the relief of injunction. The relief of injunction cannot be granted for the mere asking, but only when there is necessary pleadings and supporting evidence. Reference to the provision of law does not automatically fetch the relief sought for by the plaintiff unless the plaintiff makes good his case.
34. The plaintiff though in fact pleaded that he is the owner of the suit schedule property and he was in possession etc., on his pleadings, the plaintiff admits in his evidence that the interference was much later and one of obstruction by the first defendant when the plaintiff went to the site to put up fence. The suit itself being filed two years thereafter and the first defendant having categorically denied the right of the plaintiff, the plaintiff if was seeking to support his possession of the property with reference to title, it was necessary for him to have sought a declaration of his title. In a suit which had been filed initially for declaration and consequential injunction, wherein the first defendant has denied title of the plaintiff, the suit fails unless the prayer for declaration is also made good. The suit in law is not maintainable, as unless declaration is made in favour of the plaintiff, the continued possession of the plaintiff particularly in the light of denial by the first defendant cannot be recognized in law, more so when the first defendant has also claimed to herself title in the property and had denied the title of the plaintiff. In fact, when the plaintiff filed a memo for deletion of the prayer for declaration subsequent to the trial court framing issues on this aspect i.e. issue No 1, the plaintiffs suit should have been dismissed then and there.
35. I am of the view that the suit of the plaintiff for bare injunction without supporting declaration was not maintainable in law. The suit should have been dismissed on this aspect alone.
36. However, in the present case, the plaintiff having not made good his case on facts also and the suit being not maintainable for the relief of injunction alone there was no way for the trial court to decree the suit.
37. In the result, this appeal is allowed, and the judgment and decree passed by the trial court is set aside and the suit of the plaintiff is dismissed.
38. Before parting with this appeal, it is necessary for me to make an observation about the legal position. A plaintiff approaching the court for mere injunction if he fails, it does not amount to a positive decree in favour of the defendant, which the defendant can either execute or take advantage for anything further, other than for retaining the existing state of affairs. It is always open to the person who is in possession [of a property] to defend his possession in a manner known to law and the dismissal of the suit of the plaintiff does not give rise to specific or positive right in favour of the first defendant.
39. In the circumstances, the parties to bear their respective costs.