Karnataka High Court
K C Venkatesh S/O Late Chandaiah vs Smt M Vijayalakshmi W/O Channakeshav on 27 November, 2023
Author: V Srishananda
Bench: V Srishananda
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NC: 2023:KHC:43474
RFA No. 600 of 2008
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL NO. 600 OF 2008 (INJ)
BETWEEN:
K C VENKATESH
S/O LATE CHANDAIAH
AGED ABOUT 39 YEARS
R/AT NO. 564, IST MAIN ROAD
6TH CROSS, LAGGERE
CHOWDESHWARINAGAR
BANGALORE-58
AND SHOP NO.44, PREMANAGARA
RING ROAD, LAGGERE,
BANGALORE-58
...APPELLANT
Digitally (BY SRI.H.T.VASANTH KUMAR., ADVOCATE)
signed by R
MANJUNATHA
Location: AND:
HIGH COURT
OF
KARNATAKA
1. SMT M VIJAYALAKSHMI
W/O CHANNAKESHAV
AGED ABOUT 35 YEARS
R/O NO.17, PARALLEL ROAD,
MALLESHWARAM RAILWAY STATION,
MARUTHI EXTENSION, SRIRAMAPURAM,
BANGALORE-21
AND NOW R/AT B NO 1283/84,
6TH MAIN ROAD, 2ND STAGE A BLOCK,
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NC: 2023:KHC:43474
RFA No. 600 of 2008
RAJAJINAGAR, BANGALORE-10
2. SMT SUSHEELAMMA
W/O M NAARASAPPA
AGED ABOUT 60 YEARS
R/O NO.155, 4TH CROSS
SOMESHWARAPURA
JOGUPALYA, ULSOOR,
BANGALORE-8
...RESPONDENTS
(BY SRI. PRAVEEN KUMAR RAIKOTE., ADVOCATE FOR R2,
R1 SERVED)
THIS RFA IS FILED U/S 96 OF CPC AGAINST THE
JUDGEMENT AND DECREE DATED 07.02.2008 PASSED IN
OS.NO.8470/2004 ON THE FILE OF THE XVIII ADDL.CITY CIVIL
JUDGE, CCH.NO.32, BANGALORE CITY, DISMISSING THE SUIT
FOR PERMANENT INJUNCTION AND ETC.,
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri H.T. Vasanth Kumar, learned counsel for the appellant and Sri Praveen Kumar Raikote, learned counsel for the respondent No.2.
2. Present appeal is filed challenging the validity of judgment and decree passed in O.S.No.8470/2004, dated -3- NC: 2023:KHC:43474 RFA No. 600 of 2008 07.02.2008, on the file of XVIII Additional City Civil Judge, Bengaluru City (CCH 32).
3. Parties are referred to as plaintiff and defendants for the sake of convenience as per their original ranking before the trial Court.
4. Plaintiff filed a suit for relief of permanent injunction restraining the defendants, their agents or servants from interfering with the possession and enjoyment of the suit property.
5. Plaintiff further contended that he is the absolute owner of the suit property and he is in possession of the same. Suit schedule property bearing site Nos.44 and 45 measuring East to West 55 feet and North to South 30 feet, situated at Laggere village, Yashwanthapura Hobli, Bengaluru, with khatha No.47/2 (hereinafter referred to as suit property) was owned by Sri Channappa. Channappa died on 16.12.1999 leaving behind his wife and children. Plaintiff purchased the suit property under two registered sale deeds dated 30.09.2022 and 14.08.2002 from the legal representatives of Channappa. Plaintiff was put in possession of the property after the sale and he has -4- NC: 2023:KHC:43474 RFA No. 600 of 2008 constructed a building consisting of shop premises in the suit property.
6. The electricity connection was also obtained and plaintiff was paying taxes to Dasarahalli City Municipal Counsel. Defendants without there being any right, title and interest over the suit property, tried to interfere with the possession of the property. Therefore, the plaintiff was constrained to file complaint against the defendants to the jurisdictional police and a criminal case is registered against them. Despite the complaint, defendants continued to interfere with the suit property and defendants claim that they have a General Power of Attorney from the erstwhile owner of the land in Sy.No.47/2 in respect of site Nos.54 and 55 and they had filed an application before Bengaluru Development Authority (for short 'BDA') for providing alternate site on the ground that site Nos.54 and 55 were acquired for formation of the ring road. Therefore, the plaintiff was constrained to file the suit for permanent injunction.
7. Upon service of suit summons, defendants appeared before the Court and engaged a counsel and filed detailed -5- NC: 2023:KHC:43474 RFA No. 600 of 2008 written statement denying the claim of the plaintiff in toto . They also further contended that they are the owners of the suit property and plaintiff is not in lawful possession and enjoyment of the suit property and sought for dismissal of the suit.
8. Based on the rival contentions of the parties, following issues were framed by the learned Trial Judge.
1) Whether plaintiff proves that he is the owner in possession of site No.44 described in the plaint schedule?
2) Whether defendants prove that they have purchased portion of site Nos. 44 and 45 as contended and are in possession of the same?
3) Whether plaintiff is entitled for the relief of perpetual injunction prayed?
9. In order to prove the case of the plaintiff, plaintiff got examined himself as P.W.1 and relied on 22 documents which were exhibited and marked as Exs.P.1 to 22 comprising of Ex.P1 - Sale deed dated 30.9.2002, Ex.P2 - General Power of Attorney, Ex.P3 - sale deed dated 14.8.2002, Ex.P.4 - General Power of Attorney, Ex.P5 - Rectification deed dated -6- NC: 2023:KHC:43474 RFA No. 600 of 2008 10.11.2004, Ex.P6 - KEB receipt, Ex.P7 & 8 KEB bills, Ex.P9 & 10 - Encumbrance certificate, Ex.P11 Tax paid receipt, Ex.P12 - Self assessment application, Ex.P13 - Tax paid receipt, Ex.P14 - Self Assessment application, Ex.P 15 to 21 - Photos, Ex.22 - Negatives.
10. As against the evidence placed on record, first defendant namely; Smt. M. Vijayalakshmi is examined herself as D.W.1 and relied on six documents which were exhibited and marked as Exs.D.1 to D.6 comprising of Ex.D1 - Sale deed executed by Channappa, Ex.D2 - General Power of Attorney executed by Channappa, Ex.D3 & 4 - Sale deeds executed by Smt Susheelamma, Ex.D5 & 6 - Photos.
11. Learned trial Judge after conclusion of recording of evidence of the parties, heard the parties in detail and on cumulative consideration of the material on record, has clearly formed an opinion that the plaintiff has failed to prove his lawful possession over the suit property and dismissed the suit of the plaintiff.
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NC: 2023:KHC:43474 RFA No. 600 of 2008
12. Being aggrieved by the same, plaintiff has filed the present appeal on the following grounds:
(a). The City Civil Judge, Bangalore has committed error in law and misread the pleadings and evidences and also misconceived the facts which is quite illegal.
(b). When the defendant herself admitted that when her mother had purchased the sites from Channappa was 54 and 55 with different boundaries as per her own documents, she also does not know the suit properties site No.44 and 45 boundaries, she had not paid tax, she had not get changed the khata, there was no rectification registered deed by Channappa, then how the Trial Court presume that Channappa sold 44 and 45 early to defendant - 2 is totally incorrect, as there is no separate sale deed for site No.44 and 45 to defendant-2 and Channappa had not sold site 44 and 45 to Susheelamma defendant-2 at all.
(c). When defendant-2 is not owner of site No.44 and 45, what title or right of her to sell the same to her own daughter? and how the Trial Court ignores this aspect which is simple case and facts and even according to defendant's version. Hence -8- NC: 2023:KHC:43474 RFA No. 600 of 2008 the City Civil Judge totally erred in law where defendants have no lawful title nor lawful possession.
(d). When according to defendant they have no registered rectification deed for change of property Site No.54 and 55 and its boundaries in exchange of site No.44 and 45, as held by High Court as per Section 34 of Stamp Act, unless Registration no such contention of exchange or rectification made by Channappa get any legal value as held in ILR 1998 KAR. 2650.
(e). Even according to ILR 1998 KAR. Page 1 also Revenue Entry also does not presume valid title.
(f). Next question of law is lawful possession. Appellant proved his title by valid registered sale deeds and boundaries, paid the tax, proved valid succession of Channappa's children who got changed khata after death of Channappa. Tax paid, assessment registered maintained in his name, photo shows identification of sites at possession and temporary injunction operated throughout in favour of appellant but defendants does not know boundaries of site NO.44 and 45, not paid tax, nor changed the khata. Then how the possession will be lawful. Hence the Trial Court's approach is quite illegal which has ignored the provision of Order 39 -9- NC: 2023:KHC:43474 RFA No. 600 of 2008 Rule 1 and 2. Hence the please to interfere since poor plaintiff is victimised for Trial Court's illegal approach.
(g). The appellant's two sites 44 and 45 boundaries are different from site Nos.54 and 55. The defendants does not know their boundaries as she admitted in evidence.
"In the sale deed produced by Susheelamma site No. mentioned as 54 and 55. Correction was made later. But there is no registered rectification deed. I do not know whether BDA acquired site sold by Susheelamma to me. It is not true that I am residing at Rajajinagar. I have not paid tax. I have not applied for change of khata. I do not remember boundaries at North-South Site No.44".
So, when defendant-1 does not know her site nor identify how the Trial Court says plaintiff has not proved is perverse view of Trial Court, City Civil Judge.
13. Sri H.T. Vasantha Kumar, learned counsel for the appellant, reiterating the grounds urged in the appeal memorandum contended that the learned trial Judge failed to note that the plaintiff was in lawful possession of the suit
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NC: 2023:KHC:43474 RFA No. 600 of 2008 property and the material documents produced by him especially the sale deed from the legal representatives of erstwhile owner Channappa and the other material documents namely; tax paid receipt, paid to Dasarahalli City Municiapl Council is totally ignored by the learned trial Judge while recording finding on issue No.1 and sought for allowing the appeal.
14. He further contended that the material evidence on record placed by the defendants have not been properly appreciated in recording a finding that the plaintiff is not in lawful possession of the suit property and sought for allowing the appeal.
15. Per contra, Sri Praveen Raikote, learned counsel for respondent No.2 contended that the property has been acquired by BDA for formation of ring road and the claim of the plaintiff would definitely come in the way of the application seeking re-conveyance of the property by virtue of the acquisition and sought for dismissal of the appeal.
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NC: 2023:KHC:43474 RFA No. 600 of 2008
16. In reply, learned counsel for the appellant has filed an application under Order XLI Rule 27 of Code of Civil Procedure, with the additional documents supported by the affidavit of the appellant wherein he tried to impress upon the Court that the property now coming under Bruhat Bengaluru Mahanagara Palike (for short 'BBMP') and the appellant has been given 'B' khatha and he has been paying taxes to BBMP and sought for considering the same and allow the appeal.
17. In view of the rival contentions of the parties, following points arise for consideration:
1) Whether the appellant has made out a case for accepting the additional evidence by allowing the application under Order XLI Rule 27 of Code of Civil Procedure?
2) Whether the plaintiff has made out a case that he is in lawful possession over the suit property?
3) Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference?
4) What order?
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NC: 2023:KHC:43474 RFA No. 600 of 2008 Regarding point Nos.1 to 3
18. In the case on hand, admittedly the suit property was belonging to one Channappa. According to plaintiff, Channappa died and after his death, his legal representatives sold the site Nos.44 and 45, measuring East to West 55 feet and North To South 30 feet of Laggere village, Yashwanthapura Hobli, having khatha No.47/2.
19. The claim of the defendants is that they are the owners of the property which are sites bearing No.54 and 55.
20. According to the plaintiff, he is in lawful possession and enjoyment of the suit property by putting up a structure on the suit property after purchase and there is a shop premises as well.
21. Before the trial Court, the additional documents were not placed as the property was under the jurisdiction of Dasarahalli Municipality.
22. According to the plaintiff, at present the property comes under the jurisdiction of BBMP and on filing of an application by
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NC: 2023:KHC:43474 RFA No. 600 of 2008 the appellant, BBMP has issued 'B' khatha and therefore, plaintiff is in lawful possession of the property.
23. Admittedly, the documents that are now produced before the Court are post suit documents. Therefore, they cannot be relied upon for finding out whether the plaintiff has made out a case or not.
24. No doubt, in every case, the post suit documents cannot be ignored in toto, especially when there is a subsequent development.
25. In the case on hand, the suit is one for bare injunction. As such, what is required to be considered by the trial Court or by this Court is; "Whether the plaintiff has made out a case of lawful possession over the suit property? " Therefore, the additional evidence placed on record, which are post suit documents, cannot be considered by this Court at this stage.
26. Further, issuance of 'B' khatha by BBMP would not improve the case of the plaintiff in deciding his title over the suit property. Lawful possession would always mean that there must some semblance of right over the suit property.
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NC: 2023:KHC:43474 RFA No. 600 of 2008
27. In the case on hand, the plaintiff is claiming right, title and interest over the suit property by virtue of the sale deed said to have been executed by legal representatives of Channappa.
28. According to defendants, Channappa had executed a General Power of Attorney and thereafter they have purchased the site Nos.54 and 55. Site numbers of the plaintiff is 44 and
45. Whether at all site Nos.44 and 45 purchased from the plaintiff from legal representatives of Channappa and site No.54 and 55 purchased by the defendants by virtue of the Power of Attorney said to have been executed by original owner Channappa are one and the same is the question that needs to be considered.
29. In this regard, plaintiff has not filed any application before the trial Court seeking appointment of the commissioner. Admittedly, plaintiff has not filed any layout plan to show that Channappa had formed a layout and in such layout, after death of Channappa, remaining sites were sold by legal representatives of Channappa.
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NC: 2023:KHC:43474 RFA No. 600 of 2008
30. Further, any one of legal representatives of Channappa could have been examined by the plaintiff to establish the fact of which exact sites that have been sold by them in favour of the plaintiff. Plaintiff was actually put in possession of the property. These aspects of the matter has been rightly considered by the learned trial Judge while appreciating the case of the plaintiff in the impugned judgment.
31. Further, defendants have claimed that the properties are now acquired by the BDA for formation of ring road. Necessary documents have been produced by the defendants in this regard. When such is the factual aspects of the matter BBMP issuing 'B' khatha in favour of the plaintiff in respect of the suit property did not arise at all.
32. Taking note of the evidence placed on record by the plaintiff and defendants, especially the property being acquired for the purpose of formation of ring road, the learned trial Judge was justified in dismissing the suit of the plaintiff.
33. Further, if the plaintiff property is still available on the spot, without being acquired by any of the authority, it is
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NC: 2023:KHC:43474 RFA No. 600 of 2008 always open for the plaintiff to file a comprehensive suit seeking title over the suit property.
34. Reserving such right to the appellant to seek appropriate remedy before the appropriate forum, this Court is of the considered opinion that the material evidence on record are hardly sufficient to interfere with the well reasoned order of the impugned judgment.
35. In view of the foregoing discussion, point Nos.1 to 3 are answered in the Negative.
36. Regarding point No.4: In view of findings on point Nos.1 to 3, following order is passed:
ORDER Appeal is meritless and is hereby dismissed.
The dismissal of the present appeal would not affect the plaintiff to have his remedy in respect of site Nos.44 and 45 by filing appropriate proceedings before the appropriate forum.
Ordered accordingly.
No order as to costs.
Sd/-
JUDGE MR