Karnataka High Court
Church Of South India Trust Association vs Shri K Madhavaroyay on 23 April, 2016
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF APRIL, 2016
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
REGULAR FIRST APPEAL No.1247/2008
BETWEEN:
CHURCH OF SOUTH INDIA TRUST ASSOCIATION,
A BODY INCORPORATED UNDER THE
COMPANIES ACT, 1913,
HAVING ITS REGISTERED OFFICE AT
C.S.I SYNOD SECRETARIAT, NO.5, WHITES ROAD,
ROYAPETTAH, CHENNAI -2, AND REP.
BY ITS PRESENT ATTORNEYS,
H.F.S KNIGHT, EXECUTIVE TRUSTEE
& REV. D.JOHN MILTON, SECRETARY
KARNATAKA INTERDIOCESAN ADMINISTRATIVE,
FINANCE AND PROPERTY BOARD,
UNITY BUILDINGS, J.C.ROAD,
BANGALORE - 560 002 ... APPELLANT
(BY SRI.B M ARUN AND SRI.A,LOBO, ADVS.)
AND:
SHRI K MADHAVAROYAY
MAJOR,
S/O LATE KASTURI RAJ
R/O NO.19, PETTIGREW STREET
BANGALORE - 560001. ... RESPONDENT
(BY SRI.K S NAGARAJA RAO, ADV. FOR C/R1)
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THIS RFA FILED U/S 96 ORDER 41 RULE 1 OF THE CPC
AGAINST THE JUDGEMENT AND DECREE DT. 27.6.08 PASSED
IN OS NO. 748/04 ON THE FILE OF THE I ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE, DISMISSING THE SUIT FOR
PERMANENT INJUNCTION.
THIS APPEAL COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY AFTER HAVING HEARD AND RESERVED
FOR JUDGMENT ON 20.04.2016, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This regular first appeal is directed against the judgment and decree dated 27.06.2008 passed in O S No.748/2004 on the file of the Additional City Civil & Sessions Judge, Bangalore City, dismissing the suit for the relief of permanent injunction, filed by the appellant-plaintiff against the respondent-defendant.
2. The facts of the case to be stated in brief are that appellant is a religious charitable body and it is the legal and beneficial owner of the composite immovable property known as `Vishranthi Nilayam', situated on Infantry Road, Bangalore - 1. The suit schedule property is the campus of Vishranthi Nilayam, Women's House of the Church of South India, being the headquarters of CSI Order of sisters. The appellant body and its 3 predecessor the Church of England Zennana Missionary Society has been in possession of the suit schedule premises for almost a century. Accordingly, name of the church is entered in respect of the property and plaintiff has paid taxes to Bangalore Mahanagara Palike.
3. It is stated, the defendant is a stranger, having no right, title, interest over the suit schedule property, trying to interfere in the northern portion of vacant land of the suit schedule property claiming that he is the son of A Kasturi Raj, who claimed ownership of the suit schedule property. Therefore, the appellant filed the suit.
4. The respondent, after service of suit summons, was placed exparte. On 14.12.2006 he appeared and filed an application for setting aside the exparte order. The said application was dismissed on 17.8.2007.
5. Before the court below, one Mr.H.F.S. Knight s/o late G W Knight, Executive Trustee and the power of attorney holder of the appellant filed examination in chief by way of affidavit and 4 got marked documents as Ex.P1 to P17(a). The court below heard the arguments and dismissed the suit by the impugned judgment. Being aggrieved, the appellant is in this regular first appeal.
6. I have heard the arguments of the learned counsel for the appellant and the learned counsel for the respondent and perused the entire records.
7. The learned counsel for the appellant submitted that the court below has erred in recording a finding that the plaintiff is not in lawful possession of the suit schedule property, although possession was never an issue. The court below ought to have noticed that evidence of the appellant has remained unchallenged. The court below ought to have framed point as to whether the respondent had attempted to trespass on the suit schedule property and whether the appellant was entitled to the relief of injunction. The court below has erred in recording a finding that measurements of the suit schedule property do not tally with the title documents. The court below has erred in holding that private documents are not reliable, contrary to the 5 scheme of Evidence Act. The court below ought to have noted that suit schedule property is not an agricultural land to produce record of rights. An act of court ought not to cause injustice to a genuine litigant. The appellant is worse than in 2004 when approached the court. Hence he prays for allowing the appeal.
8. On the other hand, the learned counsel for the respondent submits that the appellant having approached the court for relief is bound to prove the pleaded case on its own and as long as the pleaded case is not proved, it does not make any difference, whether the defendant contests the proceedings or not. The essential ingredients for grant of relief of permanent injunction are not made out and court below after evaluating each and every document relied upon by the appellant has recorded a finding against the appellant and there is no reason to interfere with the judgment and decree which is based on cogent reasons.
9. The only point that arises for consideration in this appeal is, whether the impugned judgment and decree suffer 6 from any infirmity so as to call for interference by this Court? My answer would be in the negative for the following reasons.
10. In a suit for permanent injunction, the plaintiff is required to establish his lawful possession in respect of the suit schedule property and the illegal interference attempted by the defendant. The definite case of the appellant is that appellant Church is the owner and in possession of the suit schedule property and without any right, title or interest the respondent is attempting interference with portion of the suit schedule property. If the appellant is failed to establish its ownership and possession in respect of the suit schedule property, then the second question as to the interference by the respondent would be inconsequential.
11. The power of attorney holder of the appellant Church filed affidavit evidence and examined as PW-1 and got marked the documents. PW-1 has sworn to the plaint averments. Ex.P1 & P2 are the power of attorneys. Ex.P3 is the constitution of Vishranthi Nilayam. The measurement shown in Ex.P3 and the boundaries shown therein are in agreement with the 7 measurement and boundaries shown in the suit schedule. Ex.P3 cannot be construed as a title document as it is their own document and it must have reference of title deed under which the said property is derived by the appellant church, which is not there. Ex.P4 is the sanctioned plan and it cannot also be construed as a source of title to show ownership and possession in respect of the suit schedule property.
12. Ex.P5 is the Gift deed dated 21.3.1908 executed by Smt.Lucy Smith in favour of appellant Church. On perusal of Ex.P5 the measurement shown therein is 334 ft., North, 253 ft., South, 260 ft., East and 370 ft., West. The schedule shown to the plaint is 3¼ acres of land including the buildings. The measurement shown in the suit schedule is far more than the measurement shown in the Gift deed Ex.P5. Ex.P6 is stated to be lease deed containing blanks unfilled. It does not even contain the lessee's name and details of the property leased therein is not clear. The said document is also not helpful to the appellant to prove its possession in respect of the suit schedule property.
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13. Ex.P7 is the transfer deed transferring the property to the name of trustees for management. The said document contains the property number 13 by clearly referring therein the gift deed dated 21.3.1908. Therefore, the property referred therein cannot be more than the property derived under the gift deed dated 21.3.2008. Thus in no way this document is helpful to the appellant to prove the possession in respect of the suit schedule property.
14. Ex.P8 to P10 are tax paid receipts. The tax paid receipts are supporting documents to prove possession but they cannot establish measurement in respect of the property. Ex.P11 & P12 are the encumbrance certificates having no presumptive value in the eye of law. They cannot prove either possession or measurement in respect of the suit schedule property.
15. Ex.P13 is the statement of objections filed by the Church of South India Trust Association represented by the Power of Attorney holder before the Joint Director of Land Records. Ex.P14 is copy of the complaint. Ex.P15 to P17 are 9 photos with negatives. In the absence of title document showing the actual measurement equivalent to 3¼ acres of land with buildings as shown in the suit schedule, Ex.P13 to P17 are of no assistance to the appellant to prove its pleaded case.
16. After reconsidering the entire materials placed on record by the appellant - plaintiff, the appellant has failed to prove lawful possession and enjoyment in respect of the suit schedule property measuring 3¼ acres of land consisting of buildings as claimed in the suit schedule. The court below has properly considered each and every material placed on record and has reached to correct conclusion as to the appellant failing to prove its lawful possession and enjoyment in respect of the suit schedule property. Therefore, the impugned judgment does not suffer from any legal infirmity so as to call for interference by this Court. The point framed for consideration is accordingly answered.
17. It is to be noted here that the appellant filed the suit as on 30.1.2004. Along with the plaint, the plaintiff also filed interim application for temporary injunction. The suit was 10 decided on 27.6.2008. Till then the appellant - plaintiff has not pressed the application for temporary injunction. There seemed to be no serious threat as to possession of the property to which the appellant - plaintiff is entitled to be in possession and enjoyment. Only when the appellant sought to claim more extent of property without the proper documents to show that extent, the court could not come to its aid.
18. In the circumstances, I am of the view that there is no merit in any of the contentions sought to be urged in the appeal. Regular First Appeal fails and it is accordingly dismissed.
Sd/-
JUDGE akd