Karnataka High Court
K K Marwah S/O Late Amarnath Marwah vs M Venaktesh S/O Late Munivenkatappa on 9 August, 2012
Author: Subhash B.Adi
Bench: Subhash B Adi
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 09TH DAY OF AUGUST 2012
BEFORE
THE HON'BLE MR. JUSTICE SUBHASH B ADI
REGULAR FIRST APPEAL No.1405/2003
BETWEEN:
SRI. K K MARWAH
S/O LATE AMARNATH MARWAH
AGED ABOUT 66 YEARS,
R/AT NO.196, KEB LAYOUT,
1ST MAIN, SANJAYANAGAR,
BANGALORE 560 094.
...APPELLANT
( By Sri. P.R. MOHAN RAO, ADV.,)
AND:
SRI. M VENAKTESH
S/O LATE MUNIVENKATAPPA
AGED ABOUT 60 YEARS,
R/AT NO.410, 12TH CROSS
SADASHIVANAGAR
BANGALORE 560 084
...RESPONDENT
( By Sri. G M SHETTY, ADV.,)
THIS REGULAR FIRST APPEAL IS FILED U/S 96 OF CPC
AGAINST THE JUDGEMENT AND DECREE DATED 26.9.2003,
PASSED IN O.S.NO.282/1998 ON THE FILE OF THE VII ADDL. CITY
CIVIL JUDGE, BANGALORE, (CCH.NO.19), DISMISSING THE SUIT
FOR PERMANENT INJUNCTION.
THIS RFA IS COMING ON FOR ORDERS, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
2
JUDGMENT
This appeal is by the plaintiff against the judgment and decree dated 26.09.2003 passed in O.S.No.282/1998 on the file of the VII Additional City Civil Judge, Bangalore.
2. Parties will be referred as per their ranking in the trial Court.
3. The suit is one for bare injunction restraining the defendant from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property.
4. The case of the plaintiff was that, he had purchased the suit schedule property measuring 25 ft x 60 ft under two registered sale deeds dated 19.01.1994 and 05.08.1994 for consideration of Rs.1,00,000/- and Rs.1,20,000/- from the defendant. The two sites bearing Katha No.139A are situated in Sy.No.68/5 at Nagasettyhalli village, Kasaba Hobli, Bangalore North Taluk bounded towards east by the property belonging to NGEF House Building Co-operative Society Ltd., West by 50 ft road, North by the property belonging to NGEF 3 House Building Co-operative Society Ltd., and South by the remaining property of the defendant.
5. Before the trial Court, the plaintiff got himself examined as PW1 and examined one witness as PW2 and got marked Exs.P1 to P12. However, the defendant did not choose to enter the witness box.
6. The suit was contested by the defendant by filing written statement. The defendant did not disputed the sale deeds. Nowhere in the sale deed it is stated that the suit property is part of Sy.No.68/5 of Nagasettyhalli. Portion of Khata No.139A has been retained by the defendant and plaintiff is wrongfully claiming the portion of the said Khata number.
7. The trial Court based on the pleading framed the following issues:
i) Whether plaintiff proves his lawful possession over suit schedule properties on the date of suit?
ii) Whether plaintiff proves the alleged 4 interference?
iii) Whether plaintiff is entitled for the relief of permanent injunction against defendant as prayed for?
8. It is the case of the plaintiff that he has purchased the suit property out of Sy.No.68/5. It is further case of the plaintiff that the said property bears V-P Khata No.139/A, however, plaintiff has not produced any lay-out plan showing the sites are made-out the said Sy.No.68/5, no plan of approved lay-out has been produced. The boundaries of both the sale deeds do not tally with the claim made by the plaintiff. The trial Court held that the plaintiff has failed to prove his possession and identity of the suit property.
9. Sri. P.R. Mohan Rao, learned counsel appearing for the plaintiff submitted that the defendant is none other than the vendor of the plaintiff. He has executed Exs.P1 and P2 registered sale deeds in respect of Khata No.139/A. The trial Court, without appreciating the same, has dismissed the suit only on the ground that the boundaries of Exs.P1 and P2 do not tally.
5
10. On the basis of the submission, the point that arises for my consideration in this appeal is:
"Whether the plaintiff is entitled for grant of decree for permanent injunction?"
11. It is not in dispute the Exs.P1 and P2 are registered sale deeds. They also shows that the defendant had executed the said deeds and both sale deeds are in respect of property measuring East-West 60 feet and North-South 25 feet each. However, Exs.P5 is building plan, it shows that the building plan has been granted in favour of the plaintiff. But to identify the portion of the plaintiff's property there is no corresponding documents. Ex.P12-Conversion order is in respect of 17 guntas and it is a revenue land. In these circumstances, the trial Court having not able to appreciate the boundaries, has rejected the suit of the plaintiff for bare injunction.
12. In my opinion, the plaintiff in order to succeed in getting the decree for permanent injunction, he must show the definite identity of the property. If it is part of 17 guntas, the lay-out plan and corresponding boundaries required to be 6 established. The trial Court has rightly found that the boundaries and identity of the suit property is not established. I do not find any error in the judgment and decree of the trial Court. However, it is open to the plaintiff if there is any interference with his lawful possession of the property, by proving the proper identity of the suit property and lawful possession by producing necessary evidence.
With this observation, this appeal is dismissed. However, no order as to the cost in this appeal.
Sd/-
JUDGE PMR