Karnataka High Court
Sri N Nazeer vs Sri P B Shashikanth Rao on 10 January, 2024
Author: K. Natarajan
Bench: K. Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
REGULAR FIRST APPEAL NO.1340 OF 2018
CONNECTED WITH
REGULAR FIRST APPEAL NO.1339 OF 2018
IN REGULAR FIRST APPEAL NO.1340/2018
BETWEEN:
SRI. N.NAZEER
S/O LATE ABDUL NABI,
NATIONAL ENGINEERING WORKS,
AGED ABOUT 56 YEARS,
R/AT NO.662, 8TH CROSS,
TRIVENI ROAD, YESHWANTHAPURA,
BANGALORE - 560 022.
... APPELLANT
(BY SRI. S.N.ASWATHA NARAYAN, SENIOR COUNSEL FOR
SRI. S.A.SUDHINDRA, ADVOCATE)
AND:
SRI. P.B.SHASHIKANTH RAO
S/O P.G.DASHARATH RAO,
AGED ABOUT 64 YEARS,
R/AT NO.18, 9TH CROSS,
S.P.EXTENSION,
MALLESHWARAM,
BANGALORE - 560 003.
... RESPONDENT
(BY SRI. B.A.RAMAKRISHNA, ADVOCATE FOR
CAVEATOR/RESPONDENT)
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THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 R/W ORDER XLI RULE 1 R/W SECTION 151 OF
CPC, AGAINST THE JUDGMENT AND DECREE DATED
30.05.2018 PASSED IN O.S.NO.8018/2011 ON THE FILE
OF THE XVIII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU, DECREEING THE SUIT FOR
PERPETUAL INJUNCTION.
IN REGULAR FIRST APPEAL NO.1339/2018
BETWEEN:
SRI. N. NAZEER
S/O LATE ABDUL NABI,
NATIONAL ENGINEERING WORKS,
AGED ABOUT 56 YEARS,
R/AT NO.662, 8TH CROSS,
TRIVENI ROAD, YESHWANTHAPURA,
BANGALORE - 560 022.
... APPELLANT
(BY SRI. S.N.ASWATHA NARAYAN, SENIOR COUNSEL FOR
SRI. S.A.SUDHINDRA, ADVOCATE)
AND:
SRI. D. SURESH RAO
S/O P.G.DASHARATH RAO,
AGED ABOUT 58 YEARS,
R/AT NO.18, 9TH CROSS,
S.P.EXTENSION, MALLESHWARAM,
BANGALORE - 560 003.
... RESPONDENT
(BY SRI. B.A.RAMAKRISHNA, ADVOCATE FOR
CAVEATOR/RESPONDENT)
THIS REGULAR FIRST APPEAL IS FILED UNDER
ORDER XLI RULE 1 READ WITH SECTION 151 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 30.05.2018
PASSED IN O.S.NO.8019/2011 ON THE FILE OF THE XVIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
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BENGALURU, DECREEING THE SUIT FOR PERPETUAL
INJUNCTION.
THESE REGULAR FIRST APPEALS HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT ON 11.10.2023
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
JUDGMENT
RFA No.1339/2018 is filed by the appellant under Section 96 of CPC for setting aside the judgment and decree dated 30.05.2018 passed by the XVIII Additional City Civil Judge, Bengaluru in O.S. No.8019/2011 for having decreed the suit of the respondent.
RFA No.1340/2018 is filed by the appellant under Section 96 of CPC for setting aside the judgment and decree dated 30.05.2018 passed by the XVIII Additional City Civil Judge, Bengaluru in O.S. No.8018/2011 for having decreed the suit of the respondent.
2. Heard the arguments of learned counsel for the parties.
3. The appellant is defendant and the respondent is plaintiff before the trial Court. The appellant is one and the 4 same in both the cases. The rank of the parties is retained for the sake of convenience.
4. The case of the plaintiff in O.S. No.8019/2011 is that he has filed the suit for perpetual injunction against defendant alleging that he is the absolute owner in actual, physical and lawful possession of all that piece and parcel of suit property bearing No.110, 111, House list Katha No.585/1, Dasarahalli Village, K.R. Puram Hobli, Bangalore South Taluk, measuring East to West 40 feet and North to South 60 feet, totally admeasuring 2400 square feet (hereinafter referred to as 'suit schedule property'), which is purchased by the plaintiff under registered sale deed dated 06.12.1993, from his predecessors G. Raghuveer Singh and G. Raghuban Singh, through their GPA holder Smt. J.S Kamala, wife of M.C Krishne Gowda. After the purchase of suit schedule property, the plaintiff has fenced the suit schedule property with stone pillars and barbed wire chain fencing. There is 1 square sheet house inside 5 the suit schedule property at the time of its purchase by the plaintiff. It is the further case of the plaintiff that the defendant has no manner of right, title and interest over the suit schedule property. The defendant on 09.11.2011 at 11.30 a.m. came near the suit schedule property along with rowdy elements and tried to criminally trespass over the suit schedule property and forcibly demolished the stone pillars and barbed wire chain fencing put up by the plaintiff and also demolished the 1 square sheet roofed old house standing thereon and also threatened the plaintiff with dire consequences including dispossession of the plaintiff from the suit schedule property. The plaintiff immediately went to the police to lodge a complaint, but the police were reluctant to receive the complaint. After much persistence, the police received the complaint. The defendant hell bent upon dispossessing the plaintiff from the suit schedule property and warned the plaintiff that if the plaintiff fails to vacate the suit schedule property within a week, he will again come back with rowdy 6 elements and dispossess the plaintiff from the suit schedule property. Hence, the plaintiff has filed the suit.
5. The case of the plaintiff in O.S. No.8018/2011 is that he has filed the suit for perpetual injunction against defendant alleging that he is the absolute owner in actual, physical and lawful possession of all that piece and parcel of site property bearing No.112 and 113, House list Katha No.585/1, Dasarahalli Village, K.R. Puram Hobli, Bangalore South Taluk measuring East to West 40 feet and North to South 60 feet, totally admeasuring 2400 square feet (hereinafter referred to as 'suit schedule property'), which was purchased by the plaintiff under registered sale deed dated 06.12.1993, from his predecessors G. Raghuveer Singh and G. Raghuban Singh, through their GPA holder Smt. J.S Kamala, wife of M.C Krishne Gowda. After the purchase, the revenue records were mutated in his name. The plaintiff has fenced the suit schedule property with stone pillars and barbed wire chain fencing. There is 1 7 square sheet house inside the suit schedule property at the time of its purchase by the plaintiff. It is further case that the defendant had no manner of right, title and interest over the suit schedule property. The defendant on 09.11.2011 at 11.30 a.m. came near the suit schedule property along with 20 rowdy elements and tried to criminally trespass over the suit schedule property and forcibly demolished the stone pillars and barbed wire chain fencing put up by the plaintiff and also demolished the 1 square sheet roofed old house standing thereon and also threatened the plaintiff with dire consequences including dispossession of the plaintiff from the suit schedule property. The plaintiff immediately went to the police to lodge a complaint, but the police were reluctant to receive the complaint. After much persistence, the police received the complaint. The defendant is hell bent upon dispossessing the plaintiff from the suit schedule property and has warned the plaintiff that if the plaintiff fails to vacate the suit schedule property within a week, he will 8 again come back with rowdy elements and dispossess the plaintiff from the suit schedule property. Hence, the plaintiff has filed the suit.
6. The defendant, who is common in both cases before the trial Court, appeared through his learned counsel and filed a separate written statement stating that the plaintiff has suppressed the material facts. The suit for bare injunction is not maintainable in law without seeking the relief of declaration. Hence, the suit of the plaintiffs is based on a sale deed dated 06.12.1993 and except the same all other documents produced by the plaintiffs are concocted and created documents. The plaintiff is the absolute owner and in actual and physical possession of the property bearing site Nos. 112 & 113 of House list Katha No. 580/1 of Dasarahalli village K.R. Puram Hobli, Bangalore South Taluk, East to West 40 feet and North to South 60 feet, purchased under the registered sale deed dated 06.12.1993 which was 9 registered by the Sub- Registrar K.R. Puranı through a G.P.A. Holder J.S. Kamala representing the original owners I.G. Raguveer Singh and G. Raghuban Singh was not within the knowledge of this defendant. Hence, the schedule and measurement are totally different from each other. The signatures made in the Power of Attorney and the signatures made in the sale deed dated 06.12.1993 were totally different signatures. Hence, the plaintiff created the documents by forging the signatures of J.S. Kamala and brought the suit much after 18 years of the alleged sale deed. The revenue documents with un- matched measurements cannot support the claim of the plaintiff and all the records were obtained for the purpose of the suit. The plaintiff fenced the suit property with a barbed fencing along with stone pillars were concocted story created by the plaintiff. In fact, the defendant after having purchased the suit schedule property bearing sites Nos.110, 111, 112 and 113 by means of a registered document through a General Power of Attorney holder One 10 Smt. Saraswathi Bai, W/o Balaji Singh who executed a registered sale deed in favour of the Narasimhamurthy, S/o B.C. Chowdaiah by virtue of the registered sale deed dated 09.09.2010. Thereafter, the said Narasimhamurthy, in turn, sold the suit schedule property in favour of this defendant by virtue of the registered sale deed dated 27.01.2011. Prior to execution of the sale deed by Smt. Saraswathi Bai, the katha of the property stood in the name of Saraswathi Bai and thereafter, in the name of the vendor of the defendant and presently the Katha of the property in respect of the suit property is standing in the name of this defendant. The defendant has been regularly paying the tax to the authority.
7. By virtue of the sale deed dated 27.01.2011, the defendant has been in continuous uninterrupted possession and enjoyment of the site bearing Nos.110 to 113 totally measuring 80 feet x 65 feet and all the records pertaining to the suit schedule property are 11 standing in the name of the defendant. Hence, the defendant is entitled for the relief of injunction against the plaintiff as a counter claim. The defendant also sought for permanent injunction against the plaintiffs as counter claim over the property measuring 40 feet x 65 feet in respect of site Nos.110 and 111 and also in respect of site Nos.112 and 113 and hence, prayed for dismissing the suit.
8. Based upon the pleadings, the trial Court framed the similar issues and additional issues in both suits as under:
Issues:
1. Whether plaintiff proves lawful possession over the plaint schedule property as on the date of suit?
2. Whether he proves interference with the possession over the plaint schedule property by defendants as pleaded?
3. What order or decree?12
Addl.Issues:
1. Whether the defendant proves that he is in possession of suit schedule property?
2. Whether defendant further proves that plaintiff is interfering in his possession over the suit schedule property?
3. Whether defendant is entitled to the reliefs sought in the counter claim?
9. In O.S. No.8019/2011, on behalf of the plaintiff, the plaintiff himself examined as P.W.1 and got marked 32 documents as per Exs.P.1 to 32. On behalf of the defendant, he himself was examined as D.W.1 and two witnesses were examined D.W.2 and 3 and got marked 59 documents as per Exs.D.1 to D.59.
In O.S. No.8018/2011, on behalf of the plaintiff, the plaintiff himself examined as P.W.1 and got marked 32 documents as per Exs.P.1 to 32. On behalf of the defendant, he himself was examined as D.W.1 and two witnesses were examined D.W.2 and 3 and got marked 51 documents as per Exs.D.1 to D.51.
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10. After hearing the arguments, the trial Court answered the issues in the affirmative in favour of the plaintiffs and additional issues in the negative against the defendant and, finally, decreed the suit. Being aggrieved by the same, the common defendant in both the suit, has filed the aforesaid two appeals before this Court.
11. The learned counsel for the appellant has contended that the judgment and decree passed by the trial Court is not sustainable under the law. Further, it is contended that one Giridhar Singh was the absolute owner of the property, who had executed Will on 29.11.1985 in favour of his sons, Raghuveer Singh and Raghuban Singh. During his life time, he also executed a codicil on 18.09.1992 by adding the name of one M.C. Krishnegowda along with sons of Giridhar. On 05.01.1994, Raghuveer Singh and Raghuban Singh and Krishnegowda along with his wife Smt. Kamala, executed GPA in favour of one 14 Saraswathi Bai for site Nos.110, 111, 112 and 113 and on the date of agreement of sale, the possession was delivered. Based upon the said GPA, Saraswathi Bai executed registered sale deed in favour of one Narasimhamurthy on 09.09.2010 and the said Narasimhamurthy sold the sites to the appellant on 27.01.2011. The learned counsel further contended that the plaintiffs claim to be the owner of the sites for having purchased on 06.12.1993 and the sale deed was executed by Kamala Bai, the wife of beneficiary under the codicil namely, Krishnegowda, and the defendant also claims right through Saraswathi Bai, who purchased the property from the beneficiary of the codicil. Therefore, it is a clear cut case of dispute on the title as both the plaintiffs and the defendant claim title over the property. Therefore, the bare injunction suit is not maintainable. The aforesaid Saraswathi Bai obtained GPA under the agreement of sale on 05.01.1994 and she also took possession of the property by paying Rs.4,80,000/- to the beneficiaries of 15 the codicil and subsequently, she sold the property to Narasimhamurthy and the said Narasimhamurthy sold the same to the defendant. It is further contended that the defendant was in possession of the schedule property through out and the schedule property was not with the plaintiffs, and therefore, the simple suit for injunction was not maintainable. The learned counsel also contended that there is cloud over the title, the suit for declaration and possession should have been filed by the plaintiff. Therefore, the trial Court has committed an error in decreeing the suit. Hence, prayed for setting aside the judgment and decree passed by the trial Court.
12. Per contra, learned counsel for respondent- plaintiffs has contended that the sale deed executed by Kamala was on 4.6.1993, where the Raghubeer Singh and Raghuban Singh and Krishnegowda executed GPA in favour of Kamala on 4.6.1993, which is a registered GPA. whereas defendant claims right through unregistered GPA, 16 which is not sustainable. The sale deed of the plaintiffs was 06.12.1993 and from the said date, the plaintiff was in possession of the schedule properties. Ex.P.1 is the sale deed of the plaintiff in both cases. Taxes were paid as per Exs.P.2 to P.9. though the written statement filed by the defendant along with counter claim it is like a suit claiming for injunction. The defendant could have filed a counter claim for declaration but filed for bare injunction. The plaintiffs' sale deed is much prior to the sale deed of the defendant as the defendant sale deed was 27.11.2011. Ex.P.28 is RTI application which reveals that there were 22 sale deeds executed, revenue sites were registered. Raghuveer Singh died on 24.7.1998, Krishnegowda died on 4.4.2006 and at the time of sale deed executed in favour of Narasimhamurthy, both owners have not alive at all. The GPA also does not survive. Saraswathi bai did not have any right for selling the property in favour of Narasimhamurthy in 2010 and Narasimhamurthy do not have any title for selling the property in 2011 to the 17 defendant. The defendant do not have any right and therefore he cannot compel the plaintiffs to file a suit for declaration, when the predecessors of the defendant do not have any right, he also do not have any right over the property. Therefore, prayed for dismissing the appeals.
13. The learned counsel also submits that D.W. 1 has admitted that he do not know the owners of the neighbouring sites, there was no sale agreement in his favour and he has admitted that original owner executed GPA in favour of Kamala Bai and Kamala Bai executed GPA in favour of Saraswathi Bai, there is an admitted that the defendant not verified the records in registrar office. The sale deed of the defendant also does not disclose the payment of sale consideration. He also does not know the khatha number and khatha extract. The defendant is aware of the transaction and he is not the bona fide purchaser. Hence, prayed for dismissing the appeals. 18
14. In support of their arguments, the learned counsels for both sides have relied upon the judgments of the Hon'ble Supreme Court.
15. Having heard the arguments of learned counsels for the parties, perused the records.
16. The points that arise for consideration are:
(i) Whether the plaintiffs prove that they are in possession and enjoyment of the suit schedule property and the defendant is trying to interfere with their possession ?
(ii) Whether the defendant is able to show that he also purchased the property and he is in possession of the schedule property ?
(iii) Whether the suit for bare injunction is not maintainable as contended by the appellant-defendant ?
(iv) Whether the judgment of the trial Court calls for interference in both cases ? 19
17. On perusal of the records, it reveals that the plaintiffs in both cases claim that that they purchased the two sites each under the sale deed dated 06.12.1993, and it is contended by both parties and admitted that, originally, the suit land belongs to one Giridhar Singh, who executed the Will in favour of his sons, Raghuveer Singh and Raghuban Singh. Subsequently, the said Giridhar executed a codicil by adding the name of Krishnegowda. Subsequently, the above said three persons, who are the beneficiaries under the Will and codicil, executed a GPA in favour of one Smt. J.S. Kamala, who is the wife of Krishnegowda. Based upon the GPA executed by Raghuveer Singh, Raghuban Singh and Krishnegowda, the GPA holder Smt. J.S. Kamala sold the sites in favour of the plaintiffs on 06.12.1993 as per Ex.P.1 in both cases, which are the registered sale deeds. There is a reference available in the sale deeds that the said Kamala was the GPA holder, which is a registered GPA. Subsequent to the said sale deeds, the plaintiffs paid taxes to the concerned 20 panchayath continuously. Ex.P.24 is the registered GPA executed in favour of J.S. Kamala, whereas the defendant claims the same property said to be purchased on 27.01.2011. The case of the defendant is also that Raghuveer Singh, Raghuban Singh, Krishnegowda and J.S. Kamala, said to be represented by Smt. Saraswathi Bai as the GPA holder, sold the same property to Narasimhamurthy on 09.09.2010. The said Saraswathi Bai sold the sites to defendant's vendor through GPA alleged to have been executed by Kamala in favour of Saraswathi Bai. Thereafter, the said Narasimhamurthy sold the sites to defendant on 27.01.2011. The said Saraswathi Bai claimed title through the GPA and agreement of sale, both the documents are unregistered documents, dated 05.01.1994. Based upon the unregistered GPA, the said Saraswathi Bai sold the sites to Narasimhamurthy in the year 2010 and in turn, Narasimhmamuthy sold to defendant in the year 2011. When the said Kamala as GPA holder of Raghuveer Singh, Raghuban Singh and 21 Krishnegowda, already sold sites to plaintiffs on 06.12.1993 itself, the said Kamala has no further right to once again execute the agreement of sale or GPA in favour of Saraswathi Bai on 05.01.1994, after one month of the sale deed dated 06.12.1993. The said Kamala lost right by selling the sites to the plaintiffs on 06.12.1993. Once the sites were sold, nothing remains with Kamala for once again executing the agreement of sale or GPA in favour of Saraswathi Bai on 05.01.1994. Therefore, the said Saraswathi Bai does not derive any right or title in respect of schedule property in order to sell the same to Narasimhamurthy on 09.09.2010 and the said Narasimhamurhty also does not derive any right or title to sell the same to the defendant on 27.01.2011. The documents of the defendant are all based upon the sale deed dated 27.01.2011. The sale deeds of the plaintiffs are the registered sale deeds and they purchased the property in the year 1993 itself from Smt. Kamala who was having the registered GPA in her favour. Such being 22 the case, the contention of the appellant-defendant's counsel that the plaintiffs required to file a suit for declaration as there is a cloud over the title, cannot be acceptable. In fact, there is a cloud over the title of the defendant and he has to file a suit for declaration and possession. On the other hand, all the documents are the registered documents of the plaintiffs and the titles flows in favour of the plaintiffs much prior to the sale deed of the defendant.
18. That apart, D.W.1 has admitted in the cross examination that he has not verified the registered GPA and he does not know the neighbours of the sites owners and he also admits that there was sale deeds in favour of the plaintiffs. He also admits that the original land owner executed GPA in favour of Kamala and the said Kamala already sold the land in favour of plaintiffs. He further admits that Raghuban Singh and Krishnegowda died long back, prior to selling the property by Saraswathi Bai in 23 favour of Narasimhamurthy, who was the vendor of the defendant.
19. Of course, the GPA coupled with interest is irrevocable one as per Section 202 of Indian Contract Act, but the said Kamala, who is the actual GPA holder of the beneficiary of the land under codicil sold the property in the year 1993 itself. Therefore, the question of executing the agreement of sale and the GPA in favour of Saraswathi Bai will have no value and no title will be derived in favour of the defendant from his vendor Narasimhamurthy and the GPA holder Saraswathi Bai. Therefore, the question of filing the suit for declaration by the plaintiffs does not arise. The judgments relied by the defendant appellant in the case of ANATHULA SUDHAKAR VS. P.BUCHI REDDY (DEAD) BY L.RS & ORS. reported in 2008 AIR SCW 2692, is not useful to the appellant's case. The suit for bare injunction filed by the plaintiffs who are in possession and enjoyment of the suit schedule property 24 from the year 1993, much prior to sale deed of the defendant, is maintainable. Such being the case, the question of filing the declaration suit by the plaintiffs does not arise. Any documents produced by the defendant were all subsequent to 2011. Therefore, the judgments relied upon by the appellant's counsel will not come to the rescue of the defendant.
20. In a suit for bare injunction, the plaintiffs are successful in proving that they are in lawful possession of the suit schedule property based upon the registered sale deed. Such being the case, the plaintiffs need not file any suit for declaration and the suit for bare injunction is maintainable.
21. On perusal of the entire records in both cases, the trial Court has rightly appreciated the records, both oral and documentary, and come to the conclusion that the plaintiffs have proved the lawful possession and enjoyment 25 of the property and observed that the defendant is claiming title over the same property from the year 2011 and he is trying to interfere with the suit schedule property. Therefore, the trial Court has rightly decreed the suits in both cases. Therefore, I hold that the judgments of the trial Court do not call for interference by this Court. If at all the defendant claims title over the property, the defendant could have filed a suit for declaration and consequential possession. Even the evidence of D.Ws.2 and 3 and the documents produced by the defendant are not useful to the case on hand. On the other hand, the plaintiffs proved their case regarding the lawful possession and interference by the defendant. Therefore, the question of interfering with the impugned judgment and decree passed by the trial Court does not arise.
22. Even the defendant have not filed any separate appeals for having rejecting the counter claim. Such being 26 the case, both the appeals are devoid of merits and they are liable to be dismissed.
23. Accordingly, both the appeals filed by the appellant-defendant are hereby dismissed.
Sd/-
JUDGE CS CT: Sk