Karnataka High Court
Sri.Muniraju vs Mr.B M Shivashankar on 13 October, 2023
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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NC: 2023:KHC:38226
RFA No. 1921 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
REGULAR FIRST APPEAL NO. 1921 OF 2017 (INJ)
BETWEEN:
SRI.MUNIRAJU
SINCE DECEASED BY LRS,
1. SMT. JAYAMMA
W/O LATE SRI. MUNIRAJU,
SINCE DECEASED ON 24.06.2020
BY LRS R-2 TO R-5 ON RECORD.
2. SMT. CHANDRAKALA
W/O LATE SATISH,
AGED ABOUT 37 YEARS,
3. Ms. RADHA
D/O LATE MUNIRAJU,
Digitally signed AGED ABOUT 31 YEARS,
by
GAVRIBIDANUR 4. Ms. VARALAXMI
SUBRAMANYA
GUPTA D/O LATE MUNIRAJU,
SREENATH AGED ABOUT 29 YEARS,
Location: HIGH
COURT OF
KARNATAKA 5. SRI. SASHIKUMAR
S/O LATE MUNIRAJU,
AGED ABOUT 27 YEARS,
BANGALORE-560 038.
ALL ARE RESIDING AT NO.75,
OLD THIPPASANDRA,
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NC: 2023:KHC:38226
RFA No. 1921 of 2017
11TH A MAIN, 8TH CROSS,
HAL 2ND STAGE,
BANGALORE-560 038.
...APPELLANTS
(BY SMT. G. PUSHPALATHA, ADV. FOR SMT. MAYA HOLLA,
ADVOCATE)
AND:
Mr. B. M. SHIVASHANKAR
S/O LATE B. T. MUNIYAPPA,
AGED ABOUT 63 YEARS,
RESIDING AT NO.84, 1ST CROSS,
5TH MAIN, DOMLURU, 2ND STAGE,
BANGALORE-560 071.
...RESPONDENT
(BY SRI JAYAKUMAR S. PATIL, SENIOR COUSNEL FOR SRI.
SHIRISH KRISHNA, ADV. )
THIS RFA IS FILED UNDER SECTION 96 OF CPC.,
PRAYING TO SET ASDIE THE JUDGMENT & DECREE DATED
12.9.2017 PASSED IN O.S. NO.7270/2015 ON THE FILE OF THE
LXIV ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH 65),
BENGALURU CITY ETC.,
THIS APPEAL, COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the defendant in O.S. No.7270/2005 being aggrieved by the Judgment & Decree dated 12th September 2017 passed by the LXIV Additional City Civil & Sessions Judge (CCH-65), Bengaluru City, whereby the -3- NC: 2023:KHC:38226 RFA No. 1921 of 2017 learned trial Judge decreed the suit for Permanent Injunction filed by the plaintiff.
2. Parties shall be referred to as per their status before the trial Court for the sake of easy understanding.
I. Case of the plaintiff
3. Plaintiff filed suit for the relief of Permanent Injunction restraining the defendant from interfering with his peaceful possession and enjoyment of the suit schedule property or forcibly dispossessing him from the suit schedule property, which is a residential property bearing No.1, BBMP PID No.74- 130-1, old HASB Khata No.1004, New No.168, measuring East to West 37 feet, and North to South 50 feet, totally measuring 1850 square feet, situated at 8th Main Road, 7th Cross, HAL 2nd Stage, Old Thippasandra, Ward No.74, Bangalore.
3.1 It is the case of plaintiff that he is the absolute owner in possession of the residential property mentioned hereinabove totally measuring to an extent of 1850 square feet. He purchased the suit schedule property under the registered sale deed dated 23.2.2015 from its previous owners
- Mrs. Saramma Jacob @ Lilly Jacob and her brothers and -4- NC: 2023:KHC:38226 RFA No. 1921 of 2017 sisters. Pursuant to which, the plaintiff got the khatha of the suit schedule property in his name and paid the taxes to the revenue authorities.
3.2 It is further case of the plaintiff that when he purchased the suit schedule property, it comprised of building construction that was more than two-three decades old and he got demolished the said structure and submitted necessary plans for approval by the BBMP for new construction. It is also the case of the plaintiff that eversince the execution of the sale deed in his favour, he is in peaceful possession and enjoyment of the suit schedule property and so also his predecessors-in-title were in uninterrupted possession and enjoyment of the suit schedule property. This being the state of affairs, while the plaintiff was in preparation to put up construction in the suit schedule property, he realized that he would require immediate custody of the original deeds.
3.3 The suit schedule property was originally owned by Mrs.Kunjamma John w/o Mr. M.M. John, who acquired the same under the registered sale deed dated 23.2.1989 from Mrs. Nirmalamma w/o Mr. P.V. Sesha Reddy. After purchasing -5- NC: 2023:KHC:38226 RFA No. 1921 of 2017 the suit schedule property, Mrs. Kunjamma got the khatha of the property mutated in her name with HA Sanitary Board and BBMP and paid necessary taxes to the concerned authority.
3.4 Mrs. Kunjamma John executed her Last Will dated 25th June 2008 bequeathing the schedule property to her children, viz., i) Mrs. Lilly Jacob @ Saramma Jacob ; ii) Mr. Sam John; iii) Mrs. Lincy Thomas; iv) Mrs. Jolly Thomas and her husband - v) Mr. M.M. John. Thereafter, Mrs. Kunjamma breathed her last on 22.9.2008 and her husband - Mr. M.M. John breathed his last on 16.7.2013. Pursuant to the death of Mrs. Kunjamma and Mr. M.M. John, their children got the khatha of the suit schedule property mutated in their names, in terms of the Will executed by Mrs. Kunjamma.
3.5 This being the background of the suit schedule property, the aforesaid children of Mrs. Kunjamma alongwith Mr. John Mathew (elder son of Kunjamma) being the absolute owners in possession of the suit schedule property, conveyed the same in favour of the plaintiff under the registered sale deed dated 23.2.2015 and put up the plaintiff in possession of the suit schedule property. Eversince the execution of the sale -6- NC: 2023:KHC:38226 RFA No. 1921 of 2017 deed in his favour, the plaintiff is in peaceful possession and enjoyment of the suit schedule property and prior to that, the predecessors-in-title were in uninterrupted possession and enjoyment of the suit schedule property since three-four decades.
3.6 It is further case of the plaintiff that when this being the state of affairs, the defendant, who is a stranger and who has no absolute right, title or interest over the suit schedule property came near the suit schedule property on 31.07.2015 and forcibly tried to enter into the suit schedule property. The plaintiff's security guard with the help of neighbours, resisted the illegal efforts made by the defendant. Thereafter, the plaintiff lodged a complaint to the jurisdictional Police. Despite the Police complaint lodged by the plaintiff, the defendant and his agents again tried to interfere with his peaceful possession and enjoyment over the suit schedule property on 15.8.2015, which is also resisted by the plaintiff with the help of relatives and neighbours. The defendant has been making hectic attempts to enter into the suit schedule property taking advantage of the fact that the plaintiff is aged and a senior -7- NC: 2023:KHC:38226 RFA No. 1921 of 2017 citizen. Therefore, the plaintiff is constrained to file the suit against the defendant for the aforesaid reliefs.
ii) Case of the defendant
4. The defendant on appearance filed the written statement denying the contents and the averments made in the plaint and took up a plea that suit of the plaintiff is based on false and fictitious documents and that the plaintiff is not the absolute owner of the suit schedule property and so also the plaintiff is and was not in possession of the suit property at any point of time. It is also pleaded by the defendant that plaintiff has not approached the Court with clean hands. Measurement of the suit property as indicated in the plaint is totally wrong and even boundaries of the suit property as shown by the plaintiff are also false. No such property is in existence as indicated in the plaint. The defendant also denied any arrangement made by the plaintiff to put up construction in the suit schedule property. With regard to title of the vendors of the plaintiff, it is pleaded that all the documents produced by the plaintiff are frivolous and false documents and created only for the purpose of the suit. It is also denied that defendant -8- NC: 2023:KHC:38226 RFA No. 1921 of 2017 caused illegal interference, as contended in the plaint. It is the case of the defendant that the entire suit schedule property stands in his name by virtue of valid title deeds. On the basis of these pleadings, the defendant sought for dismissal of the suit.
iii) Issues framed by the trial Court
5. On the basis of the pleadings, the trial Court framed the following issues for consideration:
i) Whether the plaintiff proves that, he is in actual possession and enjoyment of suit property as on the date of suit ?
ii) Whether plaintiff further proves that, defendant has caused illegal interference in his peaceful possession of the suit property ?
iii) Whether plaintiff is entitle for the relief sought for ?
iv) Findings of the Trial Court
6. In order to substantiate the issues and establish the case, plaintiff examined himself as PW.1 and got marked Ex.P1 to Ex.P43(a), whereas the defendant examined himself as -9- NC: 2023:KHC:38226 RFA No. 1921 of 2017 DW.1 and got marked Ex.D1 to Ex.D41(A). On the basis of the issues framed by the trial Court, oral and documentary evidence adduced by the parties, arguments advanced by learned counsel for the parties and the other material on record, the learned trial Judge agreed with the case of the plaintiff and found favour with the plaintiff having proved the actual possession and enjoyment over the suit schedule property as on the date of the suit and so also agreed with the case of the plaintiff that the defendant made an attempt to interfere illegally in his peaceful possession and enjoyment of the suit schedule property and did not find favour with the defence taken by the defendant and agreeing to the case of the plaintiff, decreed the suit of the plaintiff and granted an order of perpetual injunction restraining the defendant, his agents and henchmen from causing interference in peaceful possession and enjoyment of the plaintiff over the suit schedule property.
v) Arguments advanced by the learned counsel - Smt. G. Pushpalatha on behalf of learned counsel - Smt. Maya Holla for the appellants
7. It is the vehement contention of learned counsel for the appellants that the impugned judgment & decree passed by
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NC: 2023:KHC:38226 RFA No. 1921 of 2017 the trial Court is arbitrary, illegal and erroneous as it is contrary to the material placed on record, both oral and documentary and therefore sought to allow the appeal by setting aside the said judgment and decree.
7.1 It is further contended by the learned counsel - Smt. Pushpalatha that the property which plaintiff purchased and the property of the defendant are altogether different properties situated at two different places with a different measurement, which the learned trial Judge ignored and erred in coming to the conclusion that the defendant caused illegal interference in peaceful possession and enjoyment of the plaintiff over the suit property. It is also contended by the learned counsel that though the suit schedule property is different from the property belonging to the defendant, totally ignored the documentary evidence produced by the parties before the trial Court, the learned trial Judge erroneously held that the plaintiff proved his case to be in peaceful possession and enjoyment of the suit schedule property.
7.2 It is also contended by the learned counsel for the appellants/defendant that the trial Court has failed to notice
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NC: 2023:KHC:38226 RFA No. 1921 of 2017 that in the sale deeds - Ex.P39 to Ex.P41 and Ex.D15, there is no mention of '7th cross' and this ambiguity has not been clarified by the respondent/plaintiff to establish his ownership and possession over the suit schedule property.
7.3 It is further contended by the learned counsel that the trial Court has not taken into consideration the identity and specific boundaries as to where the suit schedule property is situated and when the same is not established with cogent material evidence, no decree of injunction can be granted in favour of the plaintiff. Learned counsel further contends that the plaintiff has not derived title in respect of the suit property from the previous title holder and therefore the question of plaintiff being the owner of the suit schedule property and being in possession and enjoyment of the same is far-fetched, imaginary and contrary to the material placed on record, which is conveniently ignored by the learned trial Judge. Therefore, on this count also, the judgment rendered by the learned Judge requires to be set aside and reversed.
7.4 It is further contended by the learned counsel that the trial Court has committed an error in holding that father of
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NC: 2023:KHC:38226 RFA No. 1921 of 2017 appellants filed O.S. No.1453/1995 (Ex.P31) against the respondent/plaintiff and the said suit though decreed by the trial Court, in appeal the same came to be dismissed and therefore the findings recorded in the said suit are not binding on the legal rights of vendor of plaintiff, without noticing that the said suit is filed by appellant for partition of the property against his brothers and the properties involved in that suit are different from the one involved in the present case. It is also contended by the learned counsel that the trial court has committed a serious error in rejecting the contention of the defendant that the seven sale deeds produced by the respondent/plaintiff are fabricated, fake and cannot be believed.
7.5 It is also contended by the learned counsel that the plaintiff has intentionally avoided to produce certain documents, particularly the registered document in the name of Nanjappa on the ground that the same is determinantal to his interest, which the defendant has produced to prove the fact that the suit schedule property does not belong to the plaintiff so also the plaintiff is not in possession of the same. It is also contended that the alleged property so claimed by the plaintiff
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NC: 2023:KHC:38226 RFA No. 1921 of 2017 is unidentifiable and when the property is not identifiable, the plaintiff is not entitled to an order of injunction.
7.6 It is further contention of the learned counsel that predecessors of the appellants were carrying out thoti services to the entire village of Thippasandra and in recognition of the services rendered, Government granted the land bearing Khaneshumari No.29, old Thippasandra, A.K. Colony, Bangalore measuring 2 acres 10 guntas in favour one Mr. Papaiah, the ancestor of the defendant. After the death of said Papaiah, the property was inherited by his two sons viz., Doddajangaiah and Chikkajangaiah and thereafter on 29.10.1940 the said Doddajangaiah and Chikkajangaiah executed a Will bequeathing the income from the said properties and the other properties in favour of Sri Mariappa (brother-in-law of Doddajangaiah) and Smt. Ramakka (wife of Chikkajangaiah) with no right of alienation and on attaining the age of majority, absolutely in favour of Ramanna s/o Chikkajangaiah and Nagamma D/o Sri Doddajangaiah, who were minors at the time of execution of Will/Ex.D1. It is further contended by the learned counsel that since Ramanna and Nagamma died and since they did not have other legal heirs, the property came to
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NC: 2023:KHC:38226 RFA No. 1921 of 2017 be enjoyed by Mariappa and Ramakka, who in turn executed the Will/Ex.D2 bequeathing the above mentioned property in favour of Muniraju, who is none other than the defendant. Further, Smt. Ramakka w/o Chikkajangaiah executed a Will/Ex.D3 dated 17.11.2001 bequeathing the property in favour of her grand-son - Munirajau and Lakshmamma.
7.7 It is also contention of the learned counsel that the land bearing Khaneshumari No.29 came to be divided among the family members of Papaiah from time to time and as and when family grew in size. This being the state of affairs, after division of the property among the family members, the defendant/Muniraju became the absolute owner of the property measuring 50 feet x 60 feet bearing Khatha No.37/A, New Khatha No.16, 1th Main, 8th Cross, HAL II stage, Indiranagar, Bengaluru. With regard to the suit schedule property which was received by the defendant as stated hereinabove, the documents at Ex.D7 to Ex.D33 are also produced to show that the telephone bill, water bill, electricity consumption bill, gas receipt, khatha extract of the property and all pertaining to the said property continued in the name of the defendant.
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NC: 2023:KHC:38226 RFA No. 1921 of 2017 7.8 It is the contention of the learned counsel that though it is the case of the plaintiff that his erstwhile vendor viz., Smt Gowramma w/o Nanjappa and her daughter - Ratnamma sold the suit schedule property to Nirmalamma, but the sale deed of the erstwhile owner i.e., Gowramma appears to be fictitious and concocted document, which does not confer any right, title or interest to the plaintiff.
7.9 It is also vehement contention of learned counsel for the appellants that there is no existence of the property as claimed by the plaintiff and it is unidentifiable property. She further contends that by virtue of erroneous and perverse judgment passed by the trial Court, the plaintiff made an attempt to trespass into the property belonging to the defendant and thereby the settled possession of the defendant gets disturbed. It is further contended by learned counsel that the defendant is in peaceful possession and enjoyment of the property claimed by the plaintiff and even prior to the defendant, the ancestors of the defendant were in peaceful possession and enjoyment of the larger extent of the property.
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NC: 2023:KHC:38226 RFA No. 1921 of 2017 7.10 It is also contention of learned counsel that when the defendant has categorically denied the existence of the suit schedule property, the identity of the property and the title or ownership of the plaintiff over the suit schedule property and raised cloud over the title of the plaintiff, the plaintiff ought to have converted the suit for perpetual injunction into the suit for the relief of declaration and possession.
7.11 Learned counsel further contends that the plaintiff has not come to the court with clean hands and not placed sufficient material before the Court to show clear title and possession over the suit schedule property and thereby when the conduct of the plaintiff as such is doubtful, the plaintiff would not deserve equitable relief of Permanent Injunction and no cogent materials are placed to grant the said relief.
7.12 In view of the above, learned counsel for the appellants contends that the judgment & decree passed by the trial Court is highly erroneous, perverse and illegal and the same has been passed without appreciating the oral and documentary evidence on record in the proper perspective and
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NC: 2023:KHC:38226 RFA No. 1921 of 2017 therefore sought to allow the appeal by setting aside the said judgment and decree.
7.13 In support of his contentions, learned counsel for the appellant relied on the following judgments:
1. Anathulla sudhakar v. P.Buchi Reddy (dead) by Lr's and others reported in (2008) 4 SCC 594
2. K.P.Govindaraj v. Naria Bee and Others reported in ILR 1973 KAR 1264; 1973 SCC ONLINE KAR 1
3. Bruce v. Silva Raj and others reported in 1987 (Supp) SCC 161
vi) Arguments advanced by learned senior counsel - Sri Jayakumar S. Patil on behalf of learned counsel - Shirish Krishna for the respondent/plaintiff
8. Per contra, learned senior counsel - Sri Jayakumar S Patil appearing on behalf of Sri Shirish Krishna vehemently contends that there is absolutely no illegality or perversity in the impugned judgment & decree passed by the trial Court as the learned trial Judge has considered the materials placed on record, both oral and documentary including the documents relied upon by the plaintiff as per Ex.P1 to P43(a) and so also
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NC: 2023:KHC:38226 RFA No. 1921 of 2017 the documents relied upon by the defendant as per Ex.D1 to D41(A) and rendered well-reasoned and considered judgment and granted the relief sought in the suit. It is the contention of the learned senior counsel that the suit filed by the plaintiff for Perpetual Injunction restraining the defendant from interfering with plaintiff's peaceful possession and enjoyment over the suit schedule property, which has been described in the schedule to the plaint as residential property bearing No.1, BBMP PID No.74-130-1, Khata No.1004, measuring East to West 37 feet, and North to South 50 feet, totally measuring 1850 square feet, situated at 8th Main road, 7th Cross, HAL 2nd Stage, Old Thippasandra, Ward No.74, Bangalore-560 038 with boundaries as stated therein. Whereas, the description of the property as detailed in the present appeal is property bearing Kaneshmari No.29, Property No.39/A and New No.57/A, 11th Main, 8th Cross, HAL 2nd Stage, K.R. Puram Hobli, Bangalore- 560038, bounded on East by :remaining portion of the same property; West by: Private property; North by : Road; and south by property fallen to the share of M. Shashikumar. It is the contention of learned senior counsel that even according to the defence, the defendant claims to be owner of the
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NC: 2023:KHC:38226 RFA No. 1921 of 2017 Kaneshmari No.29, which is a larger extent of the property and not the one which the plaintiff is claiming in the suit. It is the contention of learned senior counsel that the plaintiff is in peaceful possession and enjoyment of the suit schedule property on the basis of the sale deed executed by the vendors of the plaintiff i.e., legal representatives of Mrs. Kunjamma John viz., Mrs. Saramma Jacob @ Lilly Jacob, Mr. Sam John, Mrs. Lincy Thomas, Mrs. Jolly Thomas and Mr. John Mathew by virtue of the registered sale deed dated 23.2.2015 as per Ex.P1. As per Ex.P1/sale deed, the vendors of the plaintiff are the absolute owners of the property mentioned in the plaint measuring to an extent of 1850 square feet as described in the schedule.
8.1 It is further contended by the learned senior counsel that one Smt. Kunjamma John w/o M.M. John was the absolute owner of the suit property and she acquired the same under the registered sale deed dated 23.2.1989 and thereafter khatha of the suit schedule property was transferred to her name and she remained in uninterrupted peaceful possession of the suit schedule property.
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NC: 2023:KHC:38226 RFA No. 1921 of 2017 8.2 It is further contended by the learned senior counsel that said Kunjamma John being the absolute owner executed the registered Will dated 25.6.2008 in favour of her husband - M.M. John and her children (vendors as described in Ex.P1/sale deed). Pursuant to the death of Kunjamma John on 22.9.2008 and death of her husband on 16.7.2013, the property devolved upon the legal heirs of Mrs.Kunjamma John and Mr.M.M. John i.e., vendors of the plaintiff as described in Ex.P1 and in view of the registered Will, the vendors of the plaintiff became the absolute owners in peaceful possession and enjoyment of the suit schedule property and thereafter sold the property in favour of the plaintiff for valuable sale consideration.
8.3 It is the further contention that Mrs. Kunjamma John, who was the erstwhile owner secured the property measuring to an extent of 37' x 50' from one Mrs. Nirmalamma w/o P.V. Sesha Reddy by virtue of the registered sale deed dated 23.2.1989.
8.4 Learned senior counsel would further contend that one Smt. Saraswathi Reddy alienated the property bearing No.168/1004 measuring 37' x 35' in favour of Nirmalamma by
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NC: 2023:KHC:38226 RFA No. 1921 of 2017 virtue of the registered sale deed dated 19.3.1987 vide Ex.P42. On the same day i.e., 19.3.1987, Gowramma, who is the wife of Nanjappa and her daughter - Rathnamma alienated another portion of property bearing No.168/1004 measuring 37' x 15' in favour of Nirmalamma vide sale deed/Ex.P43. Thus, it is clear that on 19.3.1987 Nirmalamma purchased total extent of the property measuring 37' x 50'. Therefore, Nirmalamma got the suit schedule property by virtue of two sale deeds - Ex.P42 and Ex.P43 as mentioned supra, totally measuring 37' x 50'. Tracing of the title of the plaintiff from the legal representatives of Kunjamma i.e, immediate vendors of the plaintiff and so also Kunjamma having acquired the suit schedule property from Nirmalamma and Nirmalama having acquired the title from her previous owners, is established. Therefore, plaintiff secured and obtained the sale deed with regard to the suit schedule property and thereafter his name entered in the revenue records and mutation has been effected in his name and he is in peaceful possession and enjoyment of the suit schedule property.
8.5 It is further contention of the learned senior counsel that these registered documents are not seriously disputed by
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NC: 2023:KHC:38226 RFA No. 1921 of 2017 the defendant except denying in the written statement and taking the plea that the plaintiff is not the owner of the suit schedule property.
8.6 It is also the contention of learned senior counsel that this Court in RFA No.252/2005 c/w RFA Nos.152/2005, 153/2005 & 247/2005 preferred by the Bangalore Development Authority and others by the judgment dated 27th September 2007, rejected the claim of the defendant herein with regard to the relief sought for partition to an extent of ½ share in the suit schedule property therein i.e., Khaneshumari No.29, Khatha No.25/1 & 25/2 of old Chikkasandra village. In the said first appeals, this Court held in detail as to whether the plaintiff therein (defendant herein) has proved title over the suit schedule property therein and entitled for any relief and having not found any merit, the suit preferred by the plaintiff therein (defendant herein) came to be set aside in the first appeal. Learned senior counsel relies on the judgment rendered by this Court in the said appeals. Infact, RFA No.247/2005 is filed against the judgment & decree dated 30.11.2004 passed in O.S. No.1453/1995, partly decreeing the suit filed by defendant herein/Muniraju declaring that Khaneshumari No.29, Khatha
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NC: 2023:KHC:38226 RFA No. 1921 of 2017 No.25/1, 25/2 was the gramatana land and the BDA did not have any authority to deal with the said property. The said RFA No.247/2005 and connected matters came to be allowed setting aside the judgment & decree passed in O.S. No.1453/95 and decreeing O.S. No.5103/1993. Thus, the suit filed by the present defendant/Muniraju with regard to declaration of title in respect of Khaneshumari No.29, Khatha No.25/1 & 25/2 of old Chikkasandra village, came to be set aside. Learned senior counsel places reliance on the issues framed in the original suit preferred by the defendant in O.S. No.1453/95, which were set aside by virtue of the judgment rendered in the RFA No.247/2005 and connected matters.
8.7 It is further contended by the learned senior counsel that the plaintiff is not concerned with the property claimed as owner by the defendant with regard to Khaneshumari No.29 as according to the plaintiff that is not related to the suit schedule property described in the plaint by the plaintiff and no relief is claimed by the plaintiff with regard to the property claimed by the defendant, however, the plaintiff does not admit the ownership of the defendant over Khaneshumari No.29. Learned senior counsel vehemently contends that requirement
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NC: 2023:KHC:38226 RFA No. 1921 of 2017 of the plaintiff is to prove his possession and enjoyment over the suit schedule property by virtue of the registered sale deed as earlier mentioned. Therefore when the sale deed of the plaintiff is not challenged or seriously disputed and the Will executed by Kunjamma in favour of her legal representatives, is not challenged or disputed, the defendant questioning the ownership and peaceful possession and enjoyment of the suit schedule property by the plaintiff, is not sustainable, which is rightly appreciated and elaborately dealt with by the trial court by decreeing the suit of the plaintiff.
8.8 Insofar as the vociferous argument putforth by the learned counsel for the appellants that when the defendant questions right, title and interest and ownership of the plaintiff over the suit schedule property, then it would have to be inferred that the defendant has raised a cloud over the title of the plaintiff on the suit schedule property and thereby when such a cloud is raised over the title of the plaintiff, it is incumbent upon the plaintiff to convert the suit from Permanent Injunction to the relief of declaration and possession, learned senior counsel contends that the said argument is not sustainable and farfetched. Learned senior
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NC: 2023:KHC:38226 RFA No. 1921 of 2017 counsel contends that on every such contention and mere denial of title by the defendant in all the suits for Permanent Injunction, it is not necessary for the plaintiff to convert the suit for injunction into suit for declaration and injunction without there being any bonafide or genuine plea on the cloud raised over the title of the plaintiff.
8.9 In support of his contentions, learned senior counsel for the respondent/plaintiff relies on the following judgments;
1. JHARKHAND STATE HOUSING BOARD v. DIDAR SINGH AND ANOTHER reported in (2019)17 SCC 692, wherein it is held at paragraphs 11 and 12 as under:
"11. It is well settled by catena of Judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendants raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.
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NC: 2023:KHC:38226 RFA No. 1921 of 2017
12. In the facts of the case, the defendant Board by relying upon the land acquisition proceedings and the possession certificate could successfully raise cloud over the title of the plaintiff and in those circumstances plaintiff ought to have sought for the relief of declaration. The courts below erred in entertaining the suit for injunction."
2. T.V. Ramakrishna Reddy -vs- M. Mallappa & another in Civil Appeal No.5577/2021 decided on 7th September 2021, wherein at paragraph-20 it is held as under:
20. It will also be relevant to refer to the following observations of this Court in the case of Jharkhand State Housing Board v. Didar Singh and another.
"11. It is well settled by catena of Judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendants raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances,
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NC: 2023:KHC:38226 RFA No. 1921 of 2017 plaintiff cannot maintain a suit for bare injunction. "
vii) Points for determination
9. Having heard learned counsel for the appellants and learned counsel for respondent, the points that would arise for consideration before this Court in the present appeal are:
i) Whether the plaintiff has made out a case for grant of Permanent Injunction by showing his possession and enjoyment of the suit schedule property as on date of filing of the suit ?
ii) Whether the plaintiff established and proved the interference over his peaceful possession and enjoyment of the suit schedule property ?
iii) Whether the appellants are able to disprove the case of the respondent/plaintiff by establishing that the plaintiff is not in
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NC: 2023:KHC:38226 RFA No. 1921 of 2017 peaceful possession and enjoyment of the suit schedule property as claimed ?
iv) Whether the suit filed by the respondent/plaintiff is not maintainable in view of the cloud with regard to title of the plaintiff raised by the defendants ?
viii) Consideration
10. In order to decide the points for consideration framed by this Court, it is necessary to go through the entire materials placed before the Court by the plaintiff as well as defendants. This being the first appeal and a continuation of the suit, this Court will have to re-appreciate and re-analyse the entire materials evidence on record and decide as to whether the trial Court having decreed the suit in favour of the plaintiff, is based on the materials available on record and whether there is any illegality or perversity committed by ignoring any such material on record both oral and documentary or for that matter, any perversity is committed causing miscarriage of justice to the defendants.
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NC: 2023:KHC:38226 RFA No. 1921 of 2017
11. In the present case, the plaintiff admittedly has filed a suit for the relief of perpetual injunction and for a direction to the defendants not to interfere with the peaceful possession and enjoyment of the suit schedule properties of the plaintiff. The suit schedule property described in the plaint is measuring to an extent of 1860 sq. feet i.e., 37 feet x50 feet and the plaintiff has very clearly stated in his pleadings that he has secured the said property by virtue of the registered sale deed and so also, produced the necessary documents to substantiate the same.
12. Now, let me analyse as to whether the plaintiff has satisfied the trial Court and this Court for a favourable order of perpetual injunction in his favour with regard to the suit schedule properties. It is the case of the plaintiff that he has purchased the suit schedule properties from the legal representatives of Smt.Kunjamma John by virtue of a registered sale deed dated 23.02.2015 at Ex.P1, which is not disputed. The suit schedule properties described in the plaint and the property described in Ex.P1 appears to be the same and there is no discrepancy in the schedule so also in the covenants made in the sale deed at Ex.P1. It is also borne from
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NC: 2023:KHC:38226 RFA No. 1921 of 2017 Ex.P1 at clause(i), wherein the vendors of the plaintiff have put the purchaser in the vacant possession of the suit schedule properties and the purchaser has acknowledged for having taken delivery of the same. Therefore, the fact that the assertion made by the plaintiff in the pleadings and the suit schedule properties described in the plaint co-relates and similar to the schedule property described in the registered sale deed at Ex.P1, based on which, the plaintiff asserts his right over the suit schedule properties as absolute owner, in peaceful possession and enjoyment of the same. Pursuant to the registered sale deed at Ex.P1, the plaintiff has produced the revenue entries and municipal records to show that the khatha certificate and khatha extracts are standing in the name of the plaintiff.
13. The plaintiff has also produced the certified copy of the registered sale deed dated 23.02.1989 at Ex.P15 obtained by Smt.Kunjamma from her vendor, Smt.Nirmalamma with regard to the schedule properties, which conveys the right, title and interest in favour of Smt.Kunjamma, who is none other the mother of the vendors of the plaintiff. The plaintiff has also produced several revenue records from the H.A. Sanitary
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NC: 2023:KHC:38226 RFA No. 1921 of 2017 Board, the tax assessment registers, endorsement given by the Assistant Revenue Officer and other documents in the form of Ex.P16 to Ex.P26. On perusal of these exhibits of revenue records, it is seen that an application has been made by Smt.Kunjamma on 15.05.1989 for change of khatha. Thereafter, the H.A.Sanitary Board has issued an endorsement that khatha No.366/168-B of old Thippasandra Village is bifurcate and transferred in the name of Smt.Kunjamma John and the property is described as 50 x 37 feet. Thereafter, the H.A.Sanitary Board has also issued an Assessment list for Building and Lands liable to taxation on 18.05.1989, which is produced and marked as Ex.P17, which also describes the property measuring to an extent of 50 x 37 feet in the name of Smt.Kunjamma John and another document has been produced at Ex.P18, which is an endorsement issued by the Bangalore Mahanagara Palike on the basis of the application dated 09.03.1998, wherein the entry of the H.A. Sanitary Board katha in respect of property bearing No.366/168-B in old Thippasandra has been taken and a fresh Municipal No.1, Street: 8th Main Road, 7th Cross, HAL II Stage, Ward No.74, Bengaluru has been assigned in the name of Smt.Kunjamma
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NC: 2023:KHC:38226 RFA No. 1921 of 2017 John and on the very same document, betterment charges have been collected by Bangalore Mahanagara Palike amounting to Rs.20,560/- for the site measuring 50 x 37 feet. It also shows that the property is assessed to annual value of Rs.16,000/- and tax of Rs.3,200/-, which has been levied along with cess and a total tax comes to Rs.4,288/- has been charged per annum to the erstwhile owner namely, Smt.Kunjamma John. The plaintiff has also produced the sanctioned plan and the building license for putting up construction, which is issued by the Bruhat Bengaluru Mahanagara Palike at Exs.P20 and P21 and tax paid receipts at Exs.P21 to P26, which depict the name of vendors of plaintiff.
14. Pursuant to the purchase by the plaintiff from his vendors, he has produced the endorsement issued by BBMP dated 07.07.2015 at Ex.P32 to show the name of the plaintiff. Along with these documents, the plaintiff has produced the Official Memorandum from BESCOM for installation of electricity meter in the suit schedule property on the claim of the vendors of the plaintiff and also produced some of the electricity bills at Exs.P36 to 38. The plaintiff has also produced Ex.P39 to show that he has issued a letter to the Assistant Executive Engineer,
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NC: 2023:KHC:38226 RFA No. 1921 of 2017 BWSSB to discontinue the water bill bearing RR.No.E244262040 in view of the fact that the building which was in existence was being demolished. Exs.P40 and P41 are the water bill and receipt for the suit schedule property in the name of the vendors of the plaintiff. The plaintiff has also produced the sale deeds at Exs.P42 and P43 dated 19.03.1987 executed Smt.Saraswathy R. Reddy and Smt.Gowramma in favour of Smt.Nirmalamma, who was the vendor of Kunjamma John to an extent of 37 x 35 feet and 15 x 37 feet respectively, which are two portions of the property belonging to the same site number.
15. These are all the documents placed by the plaintiff in support of his case to prove that he is in absolute possession and enjoyment of the suit schedule property as the owner and the defendant has been making hectic efforts to dispossess the plaintiff and interfere with peaceful possession and enjoyment of the same. Once the plaintiff has produced these documents, the defendants will have to disprove the case of the plaintiff by producing cogent evidence both oral and documentary to deny the plaintiff's relief sought in the suit. The defendant in the written statement has no doubt denied the entire claim made
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NC: 2023:KHC:38226 RFA No. 1921 of 2017 by the plaintiff and has also taken a plea that the plaintiff is not the owner of the suit schedule property and the defendant is the owner of the suit schedule property to a larger extent which was owned by the ancestors of the defendant since 1908 by way of grant. In order to disprove the case of the plaintiff and establish the defence taken out by the defendant, the defendant has produced Exs.D1 to D41(A) mainly contending that the suit schedule property is to a larger extent and much bigger than what is stated in the plaint and the same belongs to the defendant and his ancestors. Therefore, the plaintiff has not come before the Court with clean hands and by suppressing the material facts, he has obtained a decree from the trial Court, which deserves to be set-aside and reversed.
16. As stated earlier, several documents have been relied on by the defendant to contend otherwise about what is stated by the plaintiff and to controvert the pleadings and the documentary evidence placed on record. Though voluminous documents are produced in the form of Exs.D1 to D41(A), I do not find any need to delve into each and every documents produced by the defendant, as this is not a suit filed by the plaintiff for the relief of declaration and title to establish his title
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NC: 2023:KHC:38226 RFA No. 1921 of 2017 over the suit schedule property. The suit filed by the plaintiff is only for perpetual injunction to restrain the defendant from interfering and dispossessing the plaintiff from the suit schedule property. Therefore, if this Court were to venture into each and every documents relied on by the defendant, it may be detrimental to the interest of both parties as this Court would be touching and giving a finding on title of the property, which is not the relief claimed by the plaintiff in the suit. However, this Court will have to satisfy itself as to whether the plaintiff has made out a valid case of his peaceful possession and enjoyment of the suit schedule property and whether he is entitled for any such relief as sought for in the plaint.
17. The materials placed before the Court, the pleadings of the plaintiff in the plaint and the measurements described in the schedule to the plaint corroborates and correlates with Ex.P1-sale deed obtained by the plaintiff from his vendors. It is apparently clear that there is no iota of doubt that the plaintiff is in peaceful possession and enjoyment of the suit schedule property, more so, in view of revenue records produced by the plaintiff at Exs.P8 to P26, which are in the names of the vendors of the plaintiff and thereafter, the further records
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NC: 2023:KHC:38226 RFA No. 1921 of 2017 produced at Exs.P32 to P41 which are endorsement issued by the BBMP, BESCOM and BWSSB etc. go to show the name of vendors of the plaintiff and the same would establish that there is some semblance of possession of the vendors of the plaintiff over the suit schedule property and that of the plaintiff over the suit schedule property.
18. The defendants have made a valiant attempt and vociferous submission with regard to discrepancy in the revenue records as to whether the property is located in the III stage or II stage HAL. If the plaintiff has not established his lawful possession over the suit schedule property and there being identity crisis of the suit schedule property and no such property is in existence, the relief of the perpetual injunction would not have been granted in favour of the plaintiff. Hence, such a contention though raised unless substantiated with cogent evidence, cannot be accepted as the defendant has not placed any material before the Court to show that the defendant is in possession of the suit schedule property measuring to an extent of 37 x 35 feet or that the defendant is the owner of the property to an extent of 15 x 37 feet. However, this Court would not venture into give a finding with
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NC: 2023:KHC:38226 RFA No. 1921 of 2017 regard to the ownership of the defendant over the suit schedule property, as the defendant has not filed any counter claim for declaration as to title over the suit schedule property in the present proceedings.
19. On the contrary, the documents produced by the plaintiff at Exs.P31 and Exs.P27 and P28, which are the suit in O.S.No.1453/1995 having been decreed in favour of the defendant being challenged in the first appeal before this Court in RFA.No.252/2005 c/w RFA.Nos.153/2005 and 247/2005 respectively, negatives the contention put-forth by the defendant and his possession over the suit schedule property herein. On perusal of Ex.P31, the plaint filed by the defendant herein, the suit schedule property describes therein measurement to an extent of 60 x 120 feet, whereas the suit schedule property in the present suit measures to an extent of 37 x 50 feet, if at all the defendant claims to be the owner in possession of a larger extent of the property than what is claimed by the plaintiff in the present suit, then the remedy for the defendant lies elsewhere or the defendant could have preferred a counter claim in the suit preferred by the plaintiff, which is not the case.
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NC: 2023:KHC:38226 RFA No. 1921 of 2017
20. Admittedly, there is no counter claim made by the defendant on the suit on hand and it is the case of the defendant that there is a cloud created on the title of the plaintiff. In view of production of all these documents which are mentioned hereinabove by the plaintiff, which correlates to the pleadings made in the plaint and so also, the evidence adduced by PW.1-the plaintiff himself and having considered all these documents, I do not find any illegality in the order rendered by the trial Court decreeing the suit of the plaintiff.
21. Now coming to the aspect of whether the plaintiff has made out a ground to show that the defendant has been interfering with peaceful possession and enjoyment of the suit schedule of the plaintiff. The plaintiff has made a clear assertion in the plaint averments with regard to the interference made by the defendant and that he is trying to forcibly enter into the suit schedule property on several dates as described at paras-8 and 9 of the plaint and have lodged a complaint to the jurisdictional Police to restrain and provide help to protect rights of the plaintiff from unlawful and illegal interference by the defendants.
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NC: 2023:KHC:38226 RFA No. 1921 of 2017
22. It is the constitutional right of the plaintiff to protect his property from any third party from illegal and unlawful interference. Since the plaintiff did not receive any help or protection from the jurisdictional Police, he has filed a suit for the relief of perpetual injunction against the defendant. It is also seen that the plaintiff has produced Ex.P13, which is the complaint lodged to the jurisdictional Police with regard to the unlawful and illegal interference by the defendant, wherein the plaintiff has clearly mentioned his ownership and possession of the suit schedule property by describing the same and having purchased the same from his vendors and has also produced Ex.P14-acknowledgement by the jurisdictional Police. This would clearly establish that there is an attempt made by the defendant to illegally interfere and dispossess the plaintiff from the suit schedule property, for which the jurisdictional Police has issued an acknowledgement on 01.08.2015. Thereafter, the suit was filed.
23. Therefore, looking into all these documents and exhibits produced by the plaintiff and his statements in the pleadings, it is clearly apparent that an attempt was made by the defendant to interfere with peaceful possession and
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NC: 2023:KHC:38226 RFA No. 1921 of 2017 enjoyment of the suit schedule property of the plaintiff and as stated earlier, the documents produced by the plaintiff at Exs.P1 to P43(a) have clearly established the peaceful possession and enjoyment of the suit schedule property of the plaintiff to an extent of 37 x 50 feet in all measuring 1850 sq.ft. as mentioned in the schedule to the plaint and Exs.P13 and P14 clearly depict unlawful and illegal interference by the defendant over the suit schedule property belonging to the plaintiff.
24. Now coming to the next aspect, the defendant has taken a plea and has vehemently contended that the suit of the plaintiff is not maintainable for the reason that the plaintiff is not the owner of the suit schedule property and the larger extent of the suit schedule property measuring to an extent of 60 x 120 feet is in the ownership of the defendant through his ancestors way back in 1908, which is continued till date. Therefore, once the defendant has raised the plea and contended that there is a cloud over the title of the plaintiff, the trial Court ought not to have decreed the suit of the plaintiff for the relief of perpetual injunction and once such a plea is raised by the defendant, it is incumbent upon the plaintiff to convert his suit from that of perpetual injunction into the relief of
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NC: 2023:KHC:38226 RFA No. 1921 of 2017 declaration and possession, which has not been done in the case on hand and hence, the trial Court has committed a gross error in accepting the contention of the plaintiff and decreeing the suit, which is illegal and erroneous and contrary to the judgment of the Hon'ble Apex Court in the case of the Anathula Sudhakar v. P.Buchi Reddy reported in (2008)4 SC 594.
25. The proposition of law laid-down by the Hon'ble Apex is accepted and is not disputed by learned counsel for plaintiff. So also, this Court has followed the said judgment in several cases, but to it cannot be said that there is straitjacket formula to be adopted in all the cases, where perpetual injunction or permanent injunction is sought. When the defendant pleads that there is a could over the title of the plaintiff, it would become necessary for the plaintiff to convert the suit from that of the perpetual injunction/ permanent injunction to the relief of declaration. When the defendant raises such a plea of creating a cloud over the title of the plaintiff, it cannot be merely by a pleading or a statement in the written statement, but it has to be by way of a cogent materials and the same will have to be substantiated and established before the Court to be
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NC: 2023:KHC:38226 RFA No. 1921 of 2017 genuine and bona fide. Unless such genuine and bona fide claim is made and established, it is not necessary in all such cases where the plea is taken with regard to creation of cloud over the title of the plaintiff, it necessitates to the plaintiff to convert his suit from the relief of perpetual injunction to that of the relief of declaration. Therefore, a mere plea, the statement and the arguments addressed by the defendant that a cloud over the title of the plaintiff is created and raised warranting the plaintiff to convert the suit from perpetual injunction to that of the declaration, cannot be accepted and the same is negatived in the facts and circumstances of the present case.
26. The finding of this Court is fortified by the judgment of the Apex Court relied on by learned counsel in the case of Jharkhand State Housing Board v. Didar Singh reported in (2019)17 SCC 692 at paras-11 and 12, which read as under:
"11. It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and
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NC: 2023:KHC:38226 RFA No. 1921 of 2017 when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.
12. In the facts of the case the defendant Board by relying upon the land acquisition proceedings and the possession certificate could successfully raise cloud over the title of the plaintiff and in those circumstances plaintiff ought to have sought for the relief of declaration. The courts below erred in entertaining the suit for injunction."
27. It is further fortified in the judgment of the Apex Court in the case of T.V.Ramakrishna Reddy v. M.Mallappa & Anr. (Civil Appeal No.5577/2021 @ Special Leave Petition (C) No.10621/2020, Decided on 07.09.2021) at para-20, which reads as under:
"20. It will also be relevant to refer to the following observations of this Court in the case of Jharkhand State Housing Board v. Didar Singh and another:
"11. It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in
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NC: 2023:KHC:38226 RFA No. 1921 of 2017 all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.""
28. Therefore, it is made clear that the trial Court, in the cases where the defendant takes a plea or raises a cloud over the title of the plaintiff without there being any bona fide reasons, it is not necessary for the trial Court to direct the plaintiff to convert or seek for declaratory relief.
29. Lastly, this Court will have to see whether the defendant has made out any case disproving the peaceful possession and enjoyment of the plaintiff over the suit schedule property. Though a plea has been taken in the written statement and also the evidence adduced by producing voluminous documents, on perusal of the pleadings and the exhibits placed by the plaintiff and the defendant, it clearly establishes the peaceful possession of the plaintiff over the suit schedule property and prior to that of the plaintiff in the name
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NC: 2023:KHC:38226 RFA No. 1921 of 2017 of the vendors of the plaintiff and cogent evidence having been placed on record, it is also apparently clear without any ambiguity that the plaintiff has established his peaceful possession and enjoyment over the suit schedule property. As stated earlier, this is only a suit for perpetual injunction and this Court has not decided the right and title of the plaintiff over the suit schedule property, as the same would expand the scope of suit and this appeal.
30. In view of the discussions made hereinabove, the points raised by this Court are answered accordingly holding that the plaintiff has made out a valid case for grant of permanent injunction by producing the cogent evidence to show that he is in peaceful possession and enjoyment of the suit schedule property as on the date of filing the suit. Secondly, the plaintiff has also established and proved that the defendant has made attempts to interfere with the peaceful possession and tried to dispossess the plaintiff from the suit schedule property. Thirdly, the defendant is unable to disprove the case of the plaintiff by placing any cogent materials on record, either oral or documentary to show that the plaintiff is not in peaceful possession and enjoyment of the suit schedule
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NC: 2023:KHC:38226 RFA No. 1921 of 2017 property. Fourthly, merely because the defendant has pleaded in his written statement that there is a cloud on the title of the plaintiff, the suit could not have been maintainable and could not have been decreed by the trial Court, the same cannot be accepted and the same is negatived relying on the judgment of the Apex Court in the case of Jharkhand State Housing Board (supra).
31. Accordingly, I proceed to pass the following:
ORDER
i) The appeal preferred by the defendants is dismissed;
ii) The judgment and decree dated 12.09.2017 passed by LXIV Additional City Civil and Session Judge (CCH-65), Bengaluru City, is hereby confirmed;
iii) No order as to costs.
In view of dismissal of this appeal, pending applications, if any would not survive for consideration and the same pales into insignificance.
Sd/-
JUDGE Pages 1 to 28 .. gss 28 to 32.. CPN 32 to end . LB