Karnataka High Court
Smt. M.Sumathi vs Smt. Meenakshiamma on 27 July, 2022
Author: V. Srishananda
Bench: V. Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
R.F.A.No.990/2010 (INJ)
BETWEEN:
SMT M.SUMATHI
W/O SRI VIJAYAVELU
AGED ABOUT 49 YEARS,
R/A NO.17, 4TH CROSS,
LAKSHMIPURAM, ULSOOR,
BANGALORE-560008
..APPELLANT
(BY SMT.NALINI VENKATESH, ADVOCATE)
AND:
SMT. MEENAKSHIAMMA
MAJOR
HUSBAND'S NAME NOW KNOWN
TO THE APPELLANT
MAJOR,
R/A NO.10/10-C,
MUKYA RASTHE,
BENSAPPA GARDEN,
PIPELINE, MALLESWARAM,
BANGALORE-560003
..RESPONDENT
(BY SRI M SHIVAPRAKASH, ADVOCATE FOR C/R)
2
THIS RFA IS FILED UNDER SECTION 96 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 17.04.2010
PASSED IN O.S.NO.17397/2005 ON THE FILE OF THE XIII
ADDL. CITY CIVIL JUDGE, MAYOHALL UNIT, BANGALORE,
(CCH 22), DISMISSING THE SUIT FOR PERMANENT
INJUNCTION.
THIS APPEAL COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Smt.Nalini Venkatesh, learned counsel for appellant and Sri.M.Shivaprakash, learned counsel for respondent.
2. Appeal filed by the plaintiff challenging the validity of the Judgment and decree dated 17.04.2010 passed in O.S.No.17397/2005 on the file of the learned XIII Additional City Civil Judge, Mayohall Unit, Bangalore.
3. Brief facts of the case are as under:
A suit came to be filed by the plaintiff stating that she is the absolute owner in possession of site bearing No.17, khatha No.368 carved out of property 3 bearing Sy.No.12/2, B.Narayanapura Village, K.R.Puram Hobli, Bangalore East Taluk, under Mahadevapura CMC limits, subsequently into the limits of Bruhat Bangalore Mahanagara Palike, Bangalore measuring East to West 32 feet, North to South 30 feet in all measuring 960 sq.ft. and bounded on the East by Road, West by Gramatana Property, North by Rajamma's property and South by Site No.16. Plaintiff claimed the title to the said property having purchased the said site property by virtue of registered sale deed dated 10.04.2002 registered as document No.550/2002-2003 before the Sub-Registrar, K.R.Puram, Bangalore from G.E.Shambulinge Gowda. Further the plaintiff traces the title of the property which belonged to Avalappa and he sold the property in favour of G.E.Shambulinge Gowda by a registered sale deed dated 03.12.2001. It is further contended by the plaintiff when the defendant who purchased the site bearing Nos.16 and 17 which is 4 falling elsewhere in Sy.No.12/2 tried to encroach upon the property of the plaintiff and therefore sought for an order of permanent injunction restraining defendant/respondent from interfering with possession and enjoyment of the property of plaintiff.
4. On issuance of suit summons, defendant appeared before the trial court and filed a detailed written statement denying the plaint averments in toto. It is specific contention of the defendant that vendor of G.E.Shambulinge Gowda had earlier parted away with the property in the year 1994 itself and defendant had purchased site Nos.16 and 17 carved out in Sy.No.12/2, B.Narayanapura Village, K.R.Puram Hobli, Bangalore by virtue of a registered sale deed in the year 1994 and therefore Avalappa did not possess any right, title and interest in respect of site No.17 to resell it in favour of G.E.Shambulinge Gowda and as such sale deed executed by G.E.Shambulinge Gowda in favour of the 5 present plaintiff did not convey any right, title and interest in the suit property. Therefore, sought for dismissal of the suit. It is also contended that by virtue of sale deed executed in favour of the defendant in the year 1994, the subsequent sale deed executed by Avalappa in favour of G.E.Shambulinge Gowda on 03.12.2001 did not result in transfer of any right, title and interest in respect of the suit schedule property and thus sought for dismissal of the suit. Thereafter learned trial Judge framed the following issues:
(1) Whether the plaintiff prove her lawful possession and enjoyment of the suit schedule property, as on the date of the suit?
(2) Whether the plaintiff proves alleged obstructions from the defendant?
(3) Whether the plaintiff is entitled to the relief of injunction as prayed?
(4) What decree or Order?
5. In order to prove the case of the plaintiff, plaintiff got examined herself as PW-1 and also two 6 witnesses on her behalf as PW-2 and PW-3. Plaintiff reiterating the plaint averments got marked documents on her behalf as Exhibits P-1 to P-8, comprising certified copy of the sale deed dated 03.12.2001 executed by Avalappa as Ex.P-1, original sale deed dated 10.04.2022 executed by G.E.Shambulinge Gowda in favour of plaintiff as Ex.P-2, Tax paid receipts as Exs.P-3 to 5, encumbrance certificate in respect of suit property as Ex.P-6 and encumbrance certificate in Form No.16 as Ex.P-7 and copy of the complaint filed before the jurisdictional police as Ex.P-8. Further, plaintiff also got examined her vendor G.E.Shambulinge Gowda and one N.Kodanda Reddy a neighbour to establish the suit averments. In the cross examination of PW-1 it is elicited that she does not know about putting up of fence in the year 1994 by defendant in respect of suit site. She denied the suggestion that G.E.Shambulinge Gowda has not delivered the physical possession in 7 respect of the suit site to her, she also denied suggestion that she concocted the documents.
6. G.E.Shambulinge Gowda-PW-2 deposed by filing affidavit stating that he purchased property from Avalappa by a registered sale deed dated 03.12.2001 and thereafter he also sold the property in favour of plaintiff. In his cross examination he has stated that he does not know who was in possession of suit property earlier to 2001. It is also elicited that he has not observed whether the survey number is not mentioned in the sale deed executed in favour of the plaintiff. It is also elicited that property No.12/2 mentioned referred to survey number and he does not know who has formed layout in Sy.No.12/2. It is further elicited that Avalappa is no more and he does not know who was in possession of the property earlier to his sale deed. 8
7. PW-3 is N.Kondanda Reddy- he deposed about sale deed dated 10.04.2002 executed in favour of the plaintiff by PW-2. He also deposed that the plaintiff is the absolute owner in possession of the property in respect of site No.17. He further deposed G.E.Shambulinge Gowda had acquired schedule property from Avalappa under absolute sale deed and from the date of execution of sale deed by G.E.Shambulinge Gowda in favour of plaintiff, plaintiff is in possession and enjoyment.
8. In his cross examination it is elicited that he studied upto 5th standard and he does not know how to read and write English and he can read Kannada language. It is elicited that according to his knowledge the suit is filed in respect of site purchased from Avalappa. It is also elicited that he does not know the name of the plaintiff. It is further elicited that he is 9 acquainted with the suit schedule property since childhood and he was the Vice President of City Municipal Council in the year 1994-95.
9. On behalf of the defendant, defendant examined herself as DW-1 reiterating the contents of written statement stating that she has purchased both the sites bearing Nos.16 and 17 in the year 1994. DW-1 in her examination-in-chief reiterated the contentions of written statement and relied on documents Ex.D-1 to D-
38.
10. In her cross examination it is elicited that her sites are different from the sites of the plaintiff. DW-2 is S.Papaiah Naidu, power of attorney holder of Avalappa, who sold the property in favour of defendant. He stated the case of the defendant by deposing in line with examination-in-chief of DW-1. In the cross examination of Papaiah Naidu it is elicited that he 10 purchased suit property from Avalappa and Avalappa has executed General Power of Attorney in his favour. He admits that he has not produced the copy of power of attorney before the court. It is also elicited that power of attorney is not available with him. He further deposed that he has given it to somebody and further elicited that power of attorney is notarised and not registered power of attorney. He denied the suggestion that Avalappa has not executed any power of attorney in his favour. He denied the sale in favour of G.E.Shambulinge Gowda by Sri.Avalappa on 10.04.2002.
11. The above evidence on record was relied on by the trial court and after appreciating the rival contentions, dismissed the suit of the plaintiff. 11
12. Before this court, the appeal came to be filed challenging the validity of the impugned Judgment and decree on the following grounds:
The impugned judgment and decree dated 17.04.2010 capricious, arbitrary, unsustainable and the same is needs to be set aside.
The Trial Court has grossly erred in not holding that the Schedule Property being the vacant site and the possession in respect of the same follows the title and that the Appellant having acquired valid title to the schedule property under a Registered Sale Deed dated 10.4.2002 under which she has purchased the schedule property and other relevant documents placed on records has proved her lawful possession in respect of the schedule property and ought to have held that the Appellant herein has been in lawful possession and enjoyment of the Schedule Property as on the date of the suit.
The Court below ought to have relied upon the title deeds produced at Ex. P1 & P2, being the Sale Deed of the Appellant herself and her Vendor, ought to have come to the conclusion that valid right, title and interest have been derived upon the Appellant and that she has been in lawful possession and enjoyment of the Schedule Property.
The Court below failed to appreciate the sworn testimony of PW2 and PW3 who have been the witnesses to the title deed of the Plaintiff/Appellant and also the 12 localities who have stated on oath as to the fact of the lawful possession of the Appellant in respect of the said property and nothing has been elicited from their cross-examination to discard their evidence and as such the Court below ought to have drawn conclusion that the sworn testimony of PW1, the Plaintiff and the documents on which she relied upon to prove her possession was supported by the oral testimony of PW2 and PW3 and as such ought to have held that the Plaintiff has been in possession and enjoyment of the schedule property, which aspect of the matter has been substantially proved based on the materials placed on record. The Court below ought to have held that D1 who has made counter claim in respect of the Schedule Property was claiming her title vide registered Sale Deed dated 25.6.94 which was later on rectified by virtue of a Rectification Deed, which itself shows that the boundaries of the property claimed by the Respondent herein and the boundaries shown in the title deed of the Plaintiff are distinctly different and the Defendant cannot lay any claim whatsoever in respect of the Schedule Property or any part thereof and ought to have come to the conclusion that by virtue of making a false claim based on the registered sale deed dated 25.6.94 and Rectification Deed dated 9.11.94, the Defendant/Respondent was making obstruction to the suit property and the Appellant herein has readily brought up the suit to register the illegal act and the Court below ought to have held that there was obstruction on the part of the Defendant in respect of the suit schedule property which was in lawful possession and enjoyment of the Plaintiff in her own right.
13The Court below has committed an error on the face of the record in not relying upon the attempts made by DW1 i.e.. the contesting defendant that the Schedule Property owned and possessed by the Plaintiff and the property claiming to have been held by the Defendant are different to each other and in the circumstances, the Court below ought to have drawn conclusion that the Defendant cannot lay any claim in respect of the suit schedule property which is owned and possessed by the Appellant herein in her own right and that the Defendant has no manner of right, title or interest whatsoever in respect of the same and that the interference made in respect of the suit property was unlawful and ought to have decreed the suit for Perpetual Injunction as prayed for. The Court below has grossly erred in relying upon the documents produced by the Respondent herein which was in respect of the sites bearing No.26 and 27 which re nothing to do with the schedule property owned and possessed by the Appellant herein. The Court below had made much of the fact that the original owner has executed a General Power of Attorney in favour of one Sri. Avalappa, who in turn has formed a residential layout and sold sites in favour of the Defendant vide registered Sale Deed dated 25.6.1994 and consequently, the same was rectified and mutation of Khatha etc., The Court below ought not to have placed relience on these documents since the documents pertain to the property which is distinctively different from the schedule property and as such the said documents were not relevant to adjudicate the real question in controversy and the Court 14 below ought not to have placed reliance on these documents.
The Court below has drawn an erroneous conclusion which is apparent on the face of the record that just because that the Appellant has not got mutated the Khatha in respect of the Schedule Property, she has not found to be in possession of the suit property and accordingly dismissed the suit for injunction. The Court below ought to have borne in mind that the Khatha does not confer title in respect of the immovable properties. In so far as the schedule property is concerned since it is a vacant site, possession follows title. The appellant having produced the title deeds of herself and her vendor which documents were subjected to the test of cross examination and nothing was elicited from the mouth of DWI as to the correctness/genuineness of the same. The Court below ought to have held that the plaintiff has been in lawful possession and enjoyment of the schedule property having derived valid right, title and interest from her vendor and ought to have held that the Defendant on the guise of claiming title over the site Nos.26 and 27 in the same vicinity which is admittedly and distinctively separate from the schedule property, has made interference with the schedule property and the Court below ought to have granted Judgment and Decree of Permanent Injunction as prayed for.
Viewing from any sight of angle, the judgment and decree of the Trial Court suffers from serious legal infirmities, 15 besides being perverse and capricious and needs interference of this Hon'ble Court. The suit was valued at Rs. 1000/- before the Court below and Court fee of Rs.25/- was paid and accordingly the same Court Fee is paid along with this Memorandum of Appeal as per Section 49 of the Karnataka Court Fees and Suits Valuation Act. The Appeal is in time"
13. Reiterating the grounds urged in the appeal memorandum, learned counsel for appellant Smt.Nalini Venkatesh vehemently contended that the trial court has not appreciated the case of the parties in proper perspective resulting in miscarriage of justice and sought for allowing of the appeal.
14. She also pointed out that a court commissioner came to be appointed before this court and court commissioner has visited the suit schedule property and has filed a detailed report as per the memo of instructions furnished by the appellant and no instructions were furnished on behalf of the respondent. 16 She invites the attention of the court to the report of the commissioner wherein it has been specifically mentioned that the suit property as is described in the plaint is available in Sy.No.12/2 of B.Narayanapura Village, K.R.Puram, Bangalore, whereas the schedule of the properties bearing site Nos.16 and 17 said to have been purchased by the defendant from DW-2 is not available on the land bearing No.12/2 and therefore the land of defendant lies elsewhere. It is for her to work out remedy as against her vendor and sought for allowing the appeal.
15. Per contra, Sri.M.Shivaprakash, learned counsel for respondent contended that Avalappa has executed General Power of Attorney in favour of Papaiah Naidu-DW-2 and Papaiah Naidu had already sold site Nos.16 and 17 in the year 1994 to the defendant, in the year 2001 Avalappa did not possess any right 17 whatsoever to part away with site No.17 in favour of G.E.Shambulinge Gowda and G.E.Shambulinge Gowda having not derived any right, title and interest in respect of site No.17, could not have further sold the property in favour of the plaintiff and as such the finding recorded by the trial Judge is perfectly valid and sought for dismissal of the appeal.
16. He has also pointed out there is a serious doubt as to the title of the plaintiff, the remedy of injunction is not available to the plaintiff and appropriate remedy having not been sought for in the suit, the present appeal is meritless and sought for dismissal of the same.
17. In view of the rival contentions of the parties this court perused the material on record, on such perusal following points arise for consideration: 18
(1) Whether the appellant has established her right in respect of site No.17 carved out in Sy.No.12/2 of K.R.Puram having purchased the same from G.E.Shambulinge Gowda by virtue of the sale deed dated 10.04.2002..
(2) Whether the appellant/plaintiff has successfully established she was in lawful possession in respect of the suit property and there was an interference by the respondent/defendant.
(3) Whether the impugned Judgment suffers from legal infirmity and perversity, thus calls for interference.
18. In order to prove the case of the parties, plaintiff has relied on the sale deed executed by Avalappa in favour of G.E.Shambulinge Gowda dated 03.12.2001 and sale deed executed by G.E.Shambulinge Gowda in favour of plaintiff dated 10.04.2002 marked at Ex.P-1 and P-2 respectively. According to the plaintiff, 19 she was put in physical possession of the property on 10.04.2002 by G.E.Shambulinge Gowda. Parties have led in oral evidence in support of their documents as under:
Ex.P-1- Certified copy of the sale deed dated 03.12.2001 Ex.P-2 - Original Sale deed dated 10.04.2002 Exs.P-3 to P-5- Tax paid receipts Ex.P-6- Encumbrance Certificate from 01.06.1989 to 31.03.2004.
Ex.P-7 - Encumbrance Certificate in Form No.16. Ex.P-8 -Copy of the complaint filed before police. Ex.D-1- Xerox copy of the layout plan Ex.D-2- Original Sale Deed dated 25.06.1994 Ex.D-3- Rectification Deed dated 09.11.1994 Exs.D-4 & 5- 2 Encumbrance Certificates Exs.D-6 to D-15 - 10 Tax Paid receipt Ex.D-16 - Notice issued by CMC Ex.D-17 - Khata Endorsement Ex.D-18 - Assessment register extract Ex.D-19 - Building License Ex.D-20 & D-21- 2 receipts towards payment of building license Ex.D-22 - Approved Sanctioned Plan Ex.D-23- Water bill paid challan Exs.D-24 to D-26- 3 copies of police complaints Ex.D-27- Tax paid receipt Ex.D-28 - Assessment Register Extract Ex.D-29- Certified copy of the Sale deed dated 12.10.94 Ex.D-30- Encumbrance Certificate 20 Ex.D-31- Certified copy of the Sale deed dated 28.05.1994 Ex.D-32- Encumbrance Certificate Exs.D-33 to D-37 - 5 photographs Exs.D-33(a) to D-37(a) - Respective negatives Ex.D-38 - Photographs bill
19. Plaintiff got her vendor G.E.Shambulinge Gowda examined as PW-2. Plaintiff also examined other witness N.Kondanda Reddy, the person who has seen suit site from his childhood and he was also the Vice President of the City Municipal Council, K.R.Puram, Bangalore, for the year 1994-95. Defendant claims right in respect of site Nos.16 and 17 having purchased the same from DW-2- Papaiah Naidu who is said to be power of attorney holder of Avalappa. Her sale is in the year 1994. According to defendant when once Papaiah Naidu has registered site Nos.16 and 17 in her favour Avalappa again did not possess any right to part away in favour of G.E.Shambulinge Gowda by virtue of sale deed dated 03.12.2001 marked at Ex.P-1. It is also found in the 21 record that the sale deed executed in favour of the defendant by Papaiah Naidu is earlier in the point of time.
20. Admittedly the layout is a revenue layout. Whether Avalappa formed the layout by taking necessary permission from the City Municipal Council or not is not forthcoming on record. None of the parties have placed any material in that regard. Therefore, there is a serious doubt as to the very identity of the suit schedule property. Having noticed such a deficiency in the case of the appellant, an application is filed before this court seeking for appointment of court commissioner. Said application was allowed by this court after contest.
21. Thereafter the commissioner who is the surveyor has visited the suit schedule property after giving notice to the parties. Respondent appeared before the commissioner on the date when the 22 commission work was carried out. Further counsel for respondent was absent. A detailed panchanama has been drafted by court commissioner before commencing the work. Court commissioner after verifying the village map as well as layout map, was of the considered opinion that the measurements of the suit property as described by the plaintiff is very much available in Sy.No.12/2 whereas measurement of the site Nos.16 and 17 claimed to have been purchased by the defendant through Papaiah Naidu as power of attorney holder of Avalappa is not found in the area and portion of the site possessed by defendant as overlapping in site No.17 which is possessed by the plaintiff.
22. For the reasons best known to the parties neither appellant nor respondent have filed objections to the commissioner report. As could be seen from the above discussion, in respect of site No.17 there are two sale deeds whereas defendant claims she has purchased 23 the same in the year 1994 by a registered sale deed from Papaiah Naidu who is said to have been the power of attorney holder of Avalappa. The title claimed by the plaintiff in respect of site No.17 in Sy.No.12/2 is by virtue of a sale deed executed by PW-2 in her favour. PW-2 has purchased the site directly from Avalappa on 03.12.2001. Whether both the sites sold by Papaiah Naidu in favour of the defendant is based on General power of attorney executed by Avalappa in favour of DW-2. Whether Avalappa ratified the action of DW-2 or not is not forthcoming on record.
23. Further, there is a clear admission in the cross examination of DW-2-Papaiah Naidu that he does not have the copy of power of attorney said to have been executed by Avalappa in his favour. It is also elicited that the said power of attorney is notarised and not a registered power of attorney. Whether at all Papaiah Naidu had the power to execute the sale deed in favour 24 of the defendant has also not been gone into by the trial court in the impugned Judgment.
24. On account of such discrepancies on record especially having regard to the fact that there is a finding that the site of the defendant overlaps into the site of plaintiff, a detailed enquiry is necessary in order to identify the very suit property itself. However, no objections are filed with respect to the commissioner report and appellant having got appointed the commissioner cannot question the report given by the court commissioner as at her instance court commissioner came to be appointed.
25. In view of the above, this court is of the considered opinion that further enquiry is necessary as to the very identity of the suit schedule property by the trial court and to arrive at a specific finding. 25
26. In the absence of clinching evidence placed on record by either of the parties, this court is of the considered opinion matter requires reconsideration. Accordingly, Point No.1 is answered partly in the affirmative and so also Point No.2 is answered partly in the affirmative.
Regarding Point No.3 - In view of the finding by this court on point Nos.1 and 2 as above, point No.3 is answered partly in the affirmative and the following order is passed:
ORDER Appeal is allowed. Impugned Judgment and decree is hereby set aside. Matter is remitted to fresh consideration in accordance with law in the light of commissioner report which is part of the appeal court records.26
Parties are at liberty to obtain the certified copy of the commissioner report along with annexures and rely upon the same. Trial court is further directed to dispose of the matter on or before 30.11.2022 after affording suitable opportunities for the parties.
Parties shall appear before the trial court on 10.08.2022 without waiting for further notice. Needless to say that parties shall co-operate for early disposal of the suit.
Sd/-
JUDGE SBN