Karnataka High Court
Smt Anjali Muniraju W/O Muniraju vs Hekkin Sahib on 3 November, 2023
Author: V Srishananda
Bench: V Srishananda
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NC: 2023:KHC:39107
RFA No. 162 of 2009
C/W RFA No. 439 of 2009
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL NO. 162 OF 2009 (DEC)
C/W
REGULAR FIRST APPEAL NO. 439 OF 2009 (DEC/INJ)
IN RFA NO. 162 OF 2009
BETWEEN:
1. SMT. ANJALI MUNIRAJU
W/O MUNIRAJU,
AGED ABOUT 54 YEARS,
NO.8, VINAYAKA TEMPLE ROAD,
BENDRENAGAR,
B.S.K. II STAGE,
BANGALORE 560 070.
2. SMT. SHARADAMMA
W/O C.P. RANGAPPA,
AGED ABOUT 55 YEARS,
Digitally NO.3A, SATHYANARAYANA TEMPLE ROAD,
signed by R GUPTA LAYOUT, ULSOOR,
MANJUNATHA
Location: BANGALORE-560 008.
HIGH COURT DULY REP. BY HER GPA HOLDER VENUGOPAL,
OF
KARNATAKA S/O M VENKATAPPA,
AGED ABOUT 47 YEARS,
NO.8, KADIRENAHALLI VILLAGE,
SUBRAMANYAPURA MAIN ROAD,
B.S.K. II STAGE,
BANGALORE 560 070.
3. SMT. MUNIRATHNAMMA
W/O SRI. VENKATARAMANAPPA,
AGED ABOUT 26 YEARS,
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NC: 2023:KHC:39107
RFA No. 162 of 2009
C/W RFA No. 439 of 2009
NO.717, 1ST MAIN, 4TH A CROSS,
DOMLUR 1ST STAGE,
DOMLUR LAYOUT,
BANGALORE - 560 070.
...APPELLANTS
(BY SRI. PRADEEP NAIK K., ADVOCATE)
AND:
1. HEKKIN SAHIB
SINCE DEAD BY HIS LR'S
1(A) SMT. VAZEER BEE
W/O LATE HEKKAIN SAHIB SRI. SHAFI
1(B) SRI. SHAFI
1(C) SRI. SHAMNEE,
SINCE DECEASED BY HIS LR'S
1. SMT. CHOTIMA
W/O LATE SRI.SHAMNEE
AGED ABOUT 54 YEARS
R/OF HOODI VILLAGE
BENGALURU-560 048.
2. SMT.SABEENA BEGUM
D/O LATE SRI.SHAMNEE
AGED ABOUT 32 YEARS
R/AT NO. 1038, 4 TH MAIN
NAGAPPA LAYOUT, HOODI,
BENGALURU-560 048.
3. SRI.YEZAD PASHA
D/O LATE SRI. SHAMNEE
AGED ABOUT 30 YEARS
R/AT HOODI VILLAGE
BENGALURU-560 048.
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RFA No. 162 of 2009
C/W RFA No. 439 of 2009
4. SMT. MOSHINA BEGUM
W/O YEZAD,
D/O SRI SHAMNEE
AGED ABOUT 28 YEARS
DEVASANDRA, K.R.PURAM
BEBGALURU EAST TALUK
BENGALURU-560 048.
5. SRI. IQBAL PASHA
S/O LATE SRI. SHAMNEE
AGED ABOUT 26 YEARS
HOODI VILLAGE,
BENGALURU-560 048.
6. SMT. NAZEEM BEGUM
W/O SRI. DADAPEER
D/O LATE SRI. SHAMNEE
AGED ABOUT 25 YEARS
HOODI VILLAGE,
BENGALURU-560 048.
1(D) SRI. CHAM
1(E) SRI. PEERN
1(F) SRI. NAZEER
1(G) SRI. BABU
1(H) SMT. SHAMSAD BEGUM
1(I) SMT. DILSHAD
ALL ARE MAJORS, D1(B) TO D1(G)
ARE THE SONS OF LATE SRI. YAKEEN SAHEB
AND D1(H) AND D1(I) ARE THE DAUGHTERS
OF LATE SRI.YAKEEN SAHEB.
ALL ARE RESIDING AT HOODI VILLAGE,
KRISHNARAJAPURAM HOBLI,
BANGALORE SOUTH TALUK,
BANGALURU 560 048.
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RFA No. 162 of 2009
C/W RFA No. 439 of 2009
2. SRI. NARAYANASWAMY,
S/O SRI. SHAMANNA REDDY,
R/AT HOODI VILLAGE,
KRISHNARAJAPURAM HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE-560 048.
3. SRI. SUBBARAJU,
S/O SRI. BIJRAJU,
R/AT RAJAPALYA, HOODI VILLAGE,
KRISHNARAJAPURAM HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE-560 048.
4. T.M TANGARAJU,
S/O MUNISWAMY,
AGED ABOUT 75 YEARS,
R/A M/S SURENDRA INDUSTRIES,
OLD MADRAS ROAD,
DOORAVANINAGAR POST,
BANGALORE 560 016.
5. SMT.SUNANDA,
AGED ABOUT 45 YEARS,
W/O RAJAPPA REDDY,
NO.26 KAGGADASPURA,
C.V.RAMAN NAGAR,
BANGALORE 560 093.
...RESPONDENTS
(BY SRI.SOMASUNDARA DIKSHIT., ADVOCATE FOR R1(A&B,
D TO G & I. R1 (H) SERVED
V/O/D: 6/6/2013 R1 (C) STANDS DISMISSED
SRI.G.B.MANJUNATH., ADVOCATE FOR R1(C) (1-5)
R1(C) (6) SERVED
SMT. SREEVIDYA G.K FOR
SRI T.N VISHWANATH & T.N RAMESH FOR R2 AND R3
V/O/D:23/2/2012 R4&R5 STANDS DISMISSED)
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NC: 2023:KHC:39107
RFA No. 162 of 2009
C/W RFA No. 439 of 2009
THIS RFA FILED U/S 96 CPC AGAINST THE JUDGMENT
AND DECREE DATED 1.10.2008 PASSED IN OS.NO.3030/1992
ON THE FILE OF THE XIV ADDL.CITY CIVIL JUDGE,
BANGALORE CITY, DISMISSING THE SUIT FOR PERPETUAL
INJUNCTION, MANDATORY INJUNCTION, DECLARATION OF
TITLE AND POSSESSION.
IN RFA NO. 439 OF 2009
BETWEEN:
1. SMT.E.V. TRASIAMMA
W/O PULIKKOTTIL VERGHESE LAZAR,
AGED ABOUT 74 YEARS.
2. SRI.P.L VERGHESE
S/O PULIKKOTTIL VERGHESE LAZAR,
AGED ABOUT 51 YEARS.
3. SRI. P.L.PAUL
S/O PULIKKOTTIL VERGHESE LAZAR,
AGED ABOUT 49 YEARS.
4. SRI.P.L.JOSEPH
S/O PULIKKOTTIL VERGHESE LAZAR,
AGED ABOUT 40 YEARS.
5. SRI.P.L.CORNCLUIS
S/O PULIKKOTTIL VERGHESE LAZAR
AGED ABOUT 36 YEARS.
ALL ARE R/AT NO.226, VI MAIN,
III CROSS, DIWANARAPALYA,
BANGALORE-54.
...APPELLANTS
(BY SRI. PRADEEP NAIK K., ADVOCATE)
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RFA No. 162 of 2009
C/W RFA No. 439 of 2009
AND:
1. HEKKIN SAHIB
SINCE DEAD BY HIS L.RS
1.(A) SMT.VAZEER BEE
W/O LATE HEKKIN SAHIB
1.(B) SRI.SHAFI
1.(C) SRI. SHAMNEE,
SINCE DECEASED BY HIS LR'S
1. SMT. CHOTIMA
W/O LATE SRI.SHAMNEE
AGED ABOUT 54 YEARS
R/OF HOODI VILLAGE
BENGALURU-560 048.
2. SMT.SABEENA BEGUM
D/O LATE SRI.SHAMNEE
AGED ABOUT 32 YEARS
R/AT NO. 1038, 4 TH MAIN
NAGAPPA LAYOUT, HOODI,
BENGALURU-560 048.
3. SRI.YEZAD PASHA
D/O LATE SRI. SHAMNEE
AGED ABOUT 30 YEARS
R/AT HOODI VILLAGE
BENGALURU-560 048.
4. SMT. MOSHINA BEGUM
W/O YEZAD,
D/O SRI SHAMNEE
AGED ABOUT 28 YEARS
DEVASANDRA, K.R.PURAM
BEBGALURU EAST TALUK
BENGALURU-560 048.
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NC: 2023:KHC:39107
RFA No. 162 of 2009
C/W RFA No. 439 of 2009
5. SRI. IQBAL PASHA
S/O LATE SRI. SHAMNEE
AGED ABOUT 26 YEARS
HOODI VILLAGE,
BENGALURU-560 048.
6. SMT. NAZEEM BEGUM
W/O SRI. DADAPEER
D/O LATE SRI. SHAMNEE
AGED ABOUT 25 YEARS
HOODI VILLAGE,
BENGALURU-560 048.
1(D) SRI. CHAM
1(E) SRI. PEERN
1(F) SRI. NAZEER
1(G) SRI. BABU
1(H) SMT. SHAMSAD BEGUM
1(I) SMT. DILSHAD
ALL ARE MAJORS, D1(B) TO D1(G)
ARE THE SONS OF LATE SRI. YAKEEN SAHEB
AND D1(H) AND D1(I) ARE THE DAUGHTERS
OF LATE SRI.YAKEEN SAHEB.
ALL ARE RESIDING AT HOODI VILLAGE,
KRISHNARAJAPURAM HOBLI,
BANGALORE SOUTH TALUK,
BANGALURU 560 048.
2. SRI. NARAYANASWAMY,
S/O SRI. SHAMANNA REDDY,
R/AT HOODI VILLAGE,
KRISHNARAJAPURAM HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE-560 048.
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NC: 2023:KHC:39107
RFA No. 162 of 2009
C/W RFA No. 439 of 2009
3. SRI. SUBBARAJU,
S/O SRI. BIJRAJU,
R/AT RAJAPALYA, HOODI VILLAGE,
KRISHNARAJAPURAM HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE-560 048.
..RESPONDENTS
(BY SMT. SREEVIDYA G.K FOR
SRI. T N VISHWANATH FOR R3,
SRI. SOMASUNDARA DIKSHIT FOR R1(A&B, D TO I)
SRI.G.B. MANJUNATH, FOR R1(C) (1-5)
R1(C) (6) SERVED
R2 SERVED)
THIS RFA FILED U/S 96(1) OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 01.10.2008 PASSED IN
OS.NO.3240/1992 ON THE FILE OF THE XIV ADDL. CITY CIVIL
JUDGE, BANGALORE, DISMISSING THE SUIT FOR
DECLARATION AND POSSESSION.
THESE APPEALS, COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri Pradeep Naik K., learned counsel for the appellant and Sri Somasundara Dikshit, learned counel for R1(A & B, D to G & I), Sri G.B.Manjunath, learned counsel for R1(C)(l-5), Smt.Sreevidya G.K, learned counsel for Sri T.N.Vishwanath and T.N.Ramesh, learned counsel for R2 and R3.
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NC: 2023:KHC:39107 RFA No. 162 of 2009 C/W RFA No. 439 of 2009
2. These two appeals arise out of common judgment in OS No.3030/92 & 3040/92 dated 1.10.2008 on the file of XIV Addl.City Civil Judge, Bangalore (CCH No.28).
3. Parties are referred to `first plaintiff' and `defendants' and `plaintiffs' and `defendants' for the sake of convenience as per their original ranking in the Court below.
4. Facts in brief for disposal of the present appeals are as under:
5. Facts in OS 3030/92: Plaintiff Nos. 1 to 5
filed a suit for perpetual injunction and mandatory injunction at the first instance seeking for an order of injunction restraining interference by defendants therein and also for removal of the stone slabs fixed as a fence over the suit schedule property. Later by amending the plaint suit was converted for declaration of title and
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NC: 2023:KHC:39107 RFA No. 162 of 2009 C/W RFA No. 439 of 2009 possession. In the suit schedule property, five revenue sites are formed which are morefully described in the schedule situated in Hoodi Village, Banglaore East Tq.
K.R.Puram Hobli. (now Bengaluru South Taluk).
6. The property which was described as A-
Schedule property is Site No.33, B-Schedule property is described as Site No.1, C-Schedule Property described as Site Nos.25 and 26, Suit Schedule D-Property described as Site Nos.12 and 13 and E schedule property described as Site No.10. All these properties are formed in Sy.No.13/5 of Hoodi Village, Krishnarajapuram Hobli, Bangalore South Taluk, Bangalore, with different dimensions.
FACTS IN OS 3240/1992:
7. The plaintiffs in this appeal originally filed suit against the defendants seeking perpetual injunction and mandatory injunction. Later by way of amendment, they converted the suit into a suit for declaration of title and possession also. The suit schedule property described
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NC: 2023:KHC:39107 RFA No. 162 of 2009 C/W RFA No. 439 of 2009 are, Site Nos.9, 24, 25 comprised in Sy.No.13/5 of Hoodi Village,K.R.Puram Hobli, Bangalore South taluk measuring an extent of 90 ft. x 40 ft.
8. Plaintiffs claimed their ownership in respect of suit schedule properties by virtue of sale deed dated 4.12.1986 said to have been executed at Chennai. The reason for registration of sites at Chennai is that there was a bar in the State of Karnataka at that relevant point of time on account of Prevention of Fragmentation Act being in force.
9. Plaintiffs claimed the relief relying upon the said sale deeds stating that they are absolute owners. Plaintiff in OS No.3240/92 have also filed similar suit claiming their right over the sites purchased by them in the very same unauthorized layout by virtue of similar sale deeds.
10. Upon service of suit summons, defendants 1, 2 and 3 appeared before the Court and denied the plaint
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NC: 2023:KHC:39107 RFA No. 162 of 2009 C/W RFA No. 439 of 2009 averments in toto. They filed their written statements. First defendants claimed independent right over the suit schedule sites that he is owner of the entire suit property and they raised agricultural crop to the extent of 1 acre 2 guntas. Second and third defendants contended that they have purchased 35 guntas of land in Sy.No.13/5 by virtue of sale deed dated 16.10.1991 for a valuable consideration of Rs.75,000/- from the first defendant and formed the sites.
11. During the pendency of the suit, first defendant died and his legal representatives were brought on record. Though they were impleaded, they remained exparte. Only one of the legal representatives i.e. defendant no.1(f) appeared before the Court and filed written statement wherein he has confirmed that there was a sale of 35 guntas of land to 2nd and 3rd defendants by his father and no rights have been derived by the plaintiffs by virtue of the sale deed registered at Chennai and they are invalid documents.
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NC: 2023:KHC:39107 RFA No. 162 of 2009 C/W RFA No. 439 of 2009
12. The suit property which is subject matter of OS 3240/92 are sites bearing Nos.9, 24 & 25 carved out in Sy.No.13/5 of Hoodi Village, K.R.Puram Taluk, Bangalore South Taluk and the written statement contents in the suit are similar to the written statement contents in OS 3030/92.
13. Based on the rival contentions of both the sides, the following issues were raised by the trial Court in both the suits separately:
Issues in OS No.3030/1992:
1) Whether the plaintiffs prove that they are the owners of the suit schedule property as contended?
2) whether the plaintiffs prove that the defendants are in unlawful possession and put up construction on the property as contended?
3) Whether the plaintiff is entitled for mandatory injunction as prayed for?
4) Whether the plaintiffs are entitled for possession of the respective schedule as contended?
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NC: 2023:KHC:39107 RFA No. 162 of 2009 C/W RFA No. 439 of 2009
5) Whether the plaintiffs are entitled for the relief of permanent injunction?
6) What order or Decree?
Issues in OS No.3240/1992:
1) Whether the plaintiffs prove that the suit is maintainable in the present form without the relief of declaration of their legal character with respect to suit property?
2) Whether the plaintiffs prove that they are in lawful possession and enjoyment of the suit property?
3) Whether the plaintiffs prove the alleged interference by the defendants?
4) Whether the plaintiffs are entitled for the reliefs sought for?
5) What order or decree?
There were two additional issues framed in OS 3240/1992 which read as under:
Additional Issues in OS No.3240/1992
1) Whether plaintiffs prove their title to the schedule property?
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NC: 2023:KHC:39107 RFA No. 162 of 2009 C/W RFA No. 439 of 2009
2) Whether the plaintiffs prove their entitlement to possession of schedule property?
14. The trial was held in common in respect of both the suits and on behalf of the plaintiffs, four witnesses namely Sri P.L.John, Sri V.Venugopal, Smt.Munirathnamma and Sri V.Muniraju were examined as PWs 1 to 4 and in all 20 documents were relied upon on behalf of the plaintiffs which were exhibited and marked as Ex.P1 to P20.
15. In order to prove the case of defendants, three witnesses, i.e. Sri Nazirapasha, Sri H.S.Ashwathaiah and Sri Subbaraju were examined as DWs 1 to 3. They relied on documents Exs.D1 to D59 comprising of documents, photographs and their negatives.
16. On conclusion of recording of the evidence, learned trial Magistrate on consideration of the documents in detail and cumulative consideration of oral
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NC: 2023:KHC:39107 RFA No. 162 of 2009 C/W RFA No. 439 of 2009 and documentary evidence on record, dismissed both the suits.
17. Being aggrieved by the same, the present appeals are filed on the following grounds:
1. The appellants submit that the judgment and decree passed by the court below is contrary to law, equity, which is misconceived one against to the procedure and evidence on record which requires interference by this Hon'ble Court.
2. The appellants submit that the Court below has not properly appreciated the oral and documentary evidence placed by the appellants and wrongly passed the impugned judgment and decree.
3. The appellants submit that, the court below has failed to appreciate the fact that the original 1st respondent has clearly admitted in the written statement that he has sold the respective sites in Sy.No.13/5 of Hoodi village to the respective appellants. When such is the position the Court below ought to have decreed the suit.
4. The appellants submit that the LRs of the original 1st respondent who brought on record after the death of the 1st respondent has taken a different stand saying that their father had not executed any sale deed and the signature on the sale deeds has been taken by collusion and fraud. It is decided by this Hon'ble Court and also by the Hon'ble Supreme Court that the legal representatives cannot take a different stand contrary to the
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NC: 2023:KHC:39107 RFA No. 162 of 2009 C/W RFA No. 439 of 2009 stand taken by the original party. The court below has misconceived itself regarding this position of law while passing the impugned judgment and decree.
5. The appellants submit that the DW1 has specifically admitted in the cross-examination that the 1 acre 35 guntas of land situated in Sy. No.13/5 of Hoodi village to the respective appellants. When such is the position the Hon'ble Court below ought to have decreed the suit.
6. The appellants submit that the LRs of the original 1st respondent who are brought on record after the death of the 1st respondent thas taken a different stand saying that their father had not executed any sale deed and the signature on the sale deeds has been taken by collusion and fraud. It is decided by this Hon'ble court and also by the Hon'ble Supreme Court that the legal representatives cannot take a different stand contrary to the stand taken by the original party. The court below has misconceived itself regarding this position of law while passing the impugned judgment and decree.
7. The appellants submit that the DW1 has specifically admitted in the cross-examination that the 1 acre 35 guntas of land situated in Sy. No.13/5 of Hoodi village is the self acquired property of the 1st respondent, either himself or other legal representatives were not aware what were the transaction did by the original 1st respondent during his life time, even they are also not aware about the pendency of the suits. Hence, the court below is not proper in giving importance to the evidence of the DW1 while passing the impugned judgment.
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NC: 2023:KHC:39107 RFA No. 162 of 2009 C/W RFA No. 439 of 2009
8. The appellants submit that the court below has clearly observed in page No.34 in para No.24 that the appellants have purchased the suit schedule sites by way of registered sale deeds and it is very clear from the registered sale deed that the 1st respondent has executed the same in favour of the appellants herein. But the court below is not proper in further holding that these sale deeds were not acted upon. Once the court held that the 1st respondent has registered the sale deed then it cannot held that those sale deeds are not acted upon. Because once a transfer is always is always a transfer by way of sale in the present case.
9. The appellants submit that the case of the respondent 2 and 3 is that they have purchased 35 guntas in Sy. No.13/5 of Hoodi villag which is situated away from the suit schedule sites and in the cross-examination DW-3 has specifically admitted that their property and the suit schedule sites are entirely different and they have nothing to do with the suit schedule sites but in the cross- examination he has admitted that Ex.P.12 to 17 i.e., the photos belongs to suit schedule sites and the stone slabs are erected by them covering the suit schedule sites. On these admissions, the court below ought to have decreed the suit which requires interference by this Hon'ble Court.
10. The appellants submit that the court below has arrayed the reasons while dismissing the suits holding that the appellants have got registered the suit sites at sub-registrar's office Chennai, since the registration was stopped in Karnataka. But, the Registration Act says that, the document
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NC: 2023:KHC:39107 RFA No. 162 of 2009 C/W RFA No. 439 of 2009 registered before the sub-registrar who is not having the jurisdiction is not a void document but it is only a voidable document and there is no time stipulated to get it valid. Under the said circumstances, it is not proper on the court below in dismissing the suits." Grounds in RFA No.439/2009:
1) The appellants submits that the Judgment and Decree passed by the court below is contrary to law, equity, which is misconceived one against to the procedure and evidence on record which requires interference by this Hon'ble Court.
2) The appellants submit that the court below has not properly appreciated the oral and documentary evidence placed by the appellants and wrongly passed the impugned Judgment and Decree.
3) The appellants submit that, the court below has failed to appreciate the fact that the original 1st respondent has clearly admitted in the written statement that he has sold the respective sites in Sy.No.13/5 of Hoodi village to the respective appellants. When such is the position the Hon'ble court below ought to have decreed the suit.
4) The appellants submit that the L.rs of the original 1st respondent who were brought on record after the death of the 1st respondent has taken a different stand saying that their father had not executed any sale deed and the signature on the sale deeds has been taken by collusion and fraud. It is decided by this Hon'ble court and also by the Hon'ble Supreme court that the legal representatives cannot take a different stand contrary to the stand
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NC: 2023:KHC:39107 RFA No. 162 of 2009 C/W RFA No. 439 of 2009 taken by the original party. The court below has misconceived itself regarding this position of law while passing the impugned judgment and decree.
5) The appellants submit that the Dw1 has specifically admitted in the cross-examination that the 1 acre 35 guntas of land situated in Sy.No.13/5 of hoodi village is the self acquired property of the 1st respondent, either himself or other legal representatives were not aware what were the transaction did by the original 1st respondent during his life time, even they are also not aware about the pendency of the suits. Hence, the court below is not proper in giving importance to the evidence of the Dw1 while passing the impugned judgment.
6) The appellants submit that the court below has clearly observed in page No. 34 in para No. 24 that the appellants have purchased the Suit Schedule sites by way of registered sale deeds and it is very clear from the registered sale deed that the 1st respondent has executed the same in favour of the appellants herein. But the court below is not proper in further holding that those sale deed were not acted upon Once the court held that the 1st respondent has registered the sale deed then it cannot held that those sale deeds are not acted upon. Because once a transfer is always is always a transfer by way of sale in the present case.
7) The appellants submit that the case of the respondent 2 & 3 is that they have purchased 35 guntas in Sy. No. 13/5 of hoodi village which is situated away from the Suit Schedule sites and in the cross-examination Dw-3 has specifically admitted that their property and the Suit Schedule sites are entirely different and they have nothing to do with the Suit
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NC: 2023:KHC:39107 RFA No. 162 of 2009 C/W RFA No. 439 of 2009 Schedule sites but in the cross examination he has admitted that Ex.p-12 to 17 i.e. the photos belongs to Suit Schedule sites and the stone slabs are erected by them covering the Suit Schedule sites and the stone slabs are erected by them covering the Suit Schedule sites. On these admissions, the court below ought to have decreed the suit which requires interference by this Hon'ble court......
8) The appellants submit that the court below has arrayed the reasons while dismissing the suits holding that the appellants have got registered the suit sites at sub registrar's office Chennai since the registration was stopped in Karnataka. But, the Registration Act says that, the document registered before the sub registrar who is not having the jurisdiction is not a void document but it is only a voidable document and there is no time stipulated to get it valid. Under the said circumstances, it is not proper on the court below in dismissing the suits.
9) The appellants submit that one more reason assigned by the court below is that the appellants had purchased the Suit Schedule sites contrary to the provisions of the Fragmentation Act and also the appellants are not the agriculturist. It is for the concerned Revenue Authorities to take appropriate steps regarding the same. But the civil court has to protect the right and interest of the appellants which they have acquired through a valid registered sale deed. By denying the reliefs, the Hon'ble court below virtually setting aside the registered sale deeds obtained by the appellants which lead to miscarriage of justice.
10) The appellants submit that they have not filed any other appeal or Appeals against the impugned judgment and decree before this
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NC: 2023:KHC:39107 RFA No. 162 of 2009 C/W RFA No. 439 of 2009 Court or any other Courts. The appellants further submit that this filed today is within time.
11) The appellants submit that in O.S.No. 3240/1992, for the relief of declaration and for possession for the Suit Schedules C,D,E & F are valued at Rs.10,000, for the purpose of Court fee and jurisdiction, accordingly Court fee of Rs. 1300/- was paid. Now as per the Amended provisions of KCF & SV Act. it comes Rs.250/- for the relief of declarrion and possession. For Injections relief Rs.25/- each has been paid and accordingly a total sum of Rs.300/- is herewith with paid.
18. Sri Pradeep, learned counsel for the appellant in both the appeals, reiterated the grounds urged in the appeal memo and contended that according to the sale deeds executed by the vendor at Chennai, plaintiffs are in lawful possession and enjoyment of suit property by virtue of agreement that was entered into by the erstwhile owner who died during the pendency of the suit, in their favour and therefore, the trial Court ought to have allowed the appeal.
19. He further contended that even if no value could be attached to sale deeds executed at Tamilnadu,
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NC: 2023:KHC:39107 RFA No. 162 of 2009 C/W RFA No. 439 of 2009 those sale deeds are to be looked into for collateral purposes namely for establishing factum if possession appears in respect of suit properties which has not been properly appreciated by trial court and sought for allowing appeal.
20. Per contra, the learned counsel for the respondents in both the appeals vehemently contended that the claim of the plaintiffs in respect of the suit properties is based on the sale deed dated 4.12.1986 said to have been executed at Chennai, Tamil Nadu in respect of suit schedule properties situated at Hoodi village, Krishanarajapuram Hobli, Bangalore South Taluk. Therefore, they are per se invalid documents and the alleged possession under such invalid documents cannot, by any stretch of imagination, be construed as lawful possession and the same has been properly appreciated by the learned trial Judge and the impugned judgment came to be passed therefore, sought for dismissal of the appeals.
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NC: 2023:KHC:39107 RFA No. 162 of 2009 C/W RFA No. 439 of 2009
21. Smt. Sreevidya, learned counsel for the respondents 2 and 3 contended that except producing the sale deeds, no other plausible evidence is placed on record by the plaintiffs which would have established the possession over the suit schedule properties. The photographs Ex.P14 to 15 and Ex.p17 and 18 are not the photographs of respective suit properties.
22. Defendants 2 and 3 having purchased the property to the extent of 35 guntas in Sy.No.13/5 of Hoodi village by virtue of registered sale deed dated 16.10.1991, they are in possession of the said property. She also submits contents of written statement of defendants and his LR i.e. D-1(f) would go to show that defendant no.1 was lawful owner as he was raising agricultural crops and the plaintiffs' assertion that they are owners of individual sites as contended cannot be countenanced in law and sought for dismissal of the appeal.
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NC: 2023:KHC:39107 RFA No. 162 of 2009 C/W RFA No. 439 of 2009
23. In view of rival contentions of learned counsel for both the parties and on appreciation of material on record, the following issues would arise for my consideration:
(1) Whether the plaintiffs were successful in establishing the fact they are the owners of the suit schedule sites which are carved out in Sy.No.13/5 of Hoodi Village, Krishnarajapuram Hobli, Bangalore South Taluk by virtue of sale deed/s executed by the first defendant in the private layout and they were in lawful possession of the suit properties and was there interference by the defendants?
(2) Whether the impugned common judgment suffers from legal infirmity and perversity and whether it calls for interference?
(3) What order?
Regarding Points 1 & 2:
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NC: 2023:KHC:39107
RFA No. 162 of 2009
C/W RFA No. 439 of 2009
24. In the case on hand, admittedly 1st defendant is the owner of the entire land in Sy.No.13/5 of Hoodi Village, K.R.Puram Hobli, Bangalore South Taluk. Admittedly, there is no sanctioned layout plan nor any authorization obtained by the 1st defendant for the formation of the private layout as is contended by the plaintiffs. The 1st defendant has denied formation of any house sites in the land bearing No.13/5.
25. The plaintiffs have filed the suit for the relief of permanent injunction alone. It is settled principles of law that in such suits, plaintiffs are bound to establish that they are in lawful possession of the property.
26. Admittedly, the 1st defendant died during the pendency of the suit. The material on record would clearly go to show that land in Sy.No.13/5 was owned by 1st defendant which was measuring in all 1 acre 36 guntas including 1 gunta of phoot kharab land. Out of the said land, towards the southern side of the land, 35
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NC: 2023:KHC:39107 RFA No. 162 of 2009 C/W RFA No. 439 of 2009 guntas of the land is sold by the 1st defendant by way of registered sale deeds to defendants No.2 and 3 on 16.10.1991 for a valuable consideration of Rs.75,000/-. Thereafter defendants Nos.2 and 3 who were in actual physical possession and enjoyment of the property.
27. Since the land was sold to defendants Nos.2 and 3 as agricultural land, and also taking note of the fact Prevention of Fragmentation Act was in force as on the date of alleged sale in favour of the plaintiffs by the 1st defendant, it is the contention of the plaintiffs that the 1st defendant went to Chennai and registered the sale deeds in favour of the plaintiffs in both the suits and thereby, he conveyed the right, title and interest in respect of individual sites.
28. The defendants have taken a definite stand that such sale deeds allegedly executed by 1st defendant in favour of the individual site owners in respect of the suit properties at Chennai were invalid documents. The trial
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NC: 2023:KHC:39107 RFA No. 162 of 2009 C/W RFA No. 439 of 2009 Court has bestowed its attention with regard to these aspects of the matter in the impugned judgment and has discussed the validity of the sale deeds allegedly executed by the 1st defendant in favour of the individual site owners, who were the plaintiffs.
29. Admittedly, the property is situated in the Bangalore South Taluk and therefore, Sub-registrar of Bangalore South Taluk was the appropriate authority for the registration of the suit property. In other words, the Sub-Registrar at Chennai did not have any jurisdiction over the property situated at Bangalore South Taluk for registration of the sale deeds. Therefore, the sale deeds per se did not convey any right, title or interest in respect of the individual sites in favour of the plaintiffs. In the absence of any right, title or interest established by the plaintiffs, the alleged possession over the suit property by the plaintiffs is held to be unlawful.
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30. Further, there is no other document except the sale deeds to establish the lawful possession. Photographs produced by the plaintiffs would not improve the case of the plaintiffs in establishing the fact that they are in lawful possession of the property. Further, photographs are seriously disputed and no plausible proof is placed on record to establish that photographs are pertaining to the suit properties. When those photographs were taken? Who took the photographs? are all the aspects which remain unexplained by the plaintiffs. Further, there is no mutation of the revenue entries nor the individual sites have been assessed in the City Municipal Council nor any tax paid. Plaintiffs have failed to even produce the alleged private layout plan before the Court to establish that 1st defendant has carved out house sites in his land and sold them to the plaintiffs and similarly placed individual site owners in possession.
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NC: 2023:KHC:39107 RFA No. 162 of 2009 C/W RFA No. 439 of 2009
31. In view of the above factual aspects, even after re- appreciating the material on record, this Court does not find any legal infirmity or perversity in the findings recorded by the learned trial judge in the impugned judgment, whereby interference is called for by this Court by exercising the power under Section 96 of the CPC.
In view of the foregoing discussion, point Nos.1 and 2 are answered in negative.
32. Regarding Point No.3: In view of the findings of this Court on Points Nos.1 and 2 as above, the following:
ORDER Appeals are meritless and are hereby dismissed.
No order as to costs.
Sd/-
JUDGE SK/KLY