Karnataka High Court
The Licensed Electrical Contractors ... vs B P Devaraj on 19 June, 2018
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
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®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JUNE 2018
BEFORE
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
R.F.A.NO.1019/2003(INJ)
BETWEEN
THE LICENSED ELECTRICAL CONTRACTORS
ASSOCIATION OF KARNATAKA,
NO.33, AVENUE ROAD,
BANGALORE-560 002,
REPRESENTED BY ITS SECRETARY. ... APPELLANT
(BY SRI S SHAKER SHETTY, ADVOCATE)
AND
B P DEVARAJ
S/O.LATE PATHIYAPPA,
AGED ABOUT 67 YEARS,
RESIDING NO.128,
CUBBONPET MAIN ROAD,
BANGALORE-560 002,
SINCE DEAD BY LEGAL REPRESENTATIVES,
1(a) SHWETHA,
(b) SMT.VIMALA,
D/O DEVARAJ B.P,
MAJOR,
BOTH ARE RESIDING AT
NO.697, I FLOOR,
3RD CROSS,
BEML, LAYOUT 5TH STAGE,
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R.R.NAGAR,
BANGALORE - 560 098. ... RESPONDENTS
(BY SRI P.N.RAJESWARA, ADVOCATE FOR R1(A)
NOTICE TO R1(B) IS HELD SUFFICIENT VIDE ORDER
DATED 23.11.2017)
THIS RFA IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DT. 24.6.2003
PASSED IN O.S.NO.486/1993 ON THE FILE OF THE VII
ADDL.CITY CIVIL JUDGE, BANGALORE, (CCH.NO.19),
DECREEING THE SUIT FOR PERMANENT INJUNCTION.
THIS RFA COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The defendant in OS.No.486/1993 on the file of the VII Additional City Civil Judge (CCH-19), Bengaluru, has come up in this appeal impugning the judgment and decree dated 24.6.2003 in decreeing the suit of the plaintiff for the relief of permanent injunction.
2. Brief facts leading to this first appeal are as under:
Plaintiff - B.P.Devaraj is son of late Pathiyappa. It is not in dispute that the plaintiff's father Pathiyappa and his two -3- brothers were the owners of two portions of properties which they acquired under two registered sale deeds somewhere in the years 1912 and 1913. In fact, what is the extent of land that was purchased by them under the said two sale deeds and their boundaries is not placed on record. But, what is seen is that when they were in possession and enjoyment of said properties, they have sold a portion of said properties on its western portion to one Y.V.Subramanyam, Proprietor of Central Tiffin Room on 01.10.1934. The said portion is bounded on its West by Avenue Road, North by Krishna Building, South by Cubbonpet Main Road and East by remaining portion of the property belonging to Pathiyappa and two of his brothers, who were the vendors.
3. It is also not in dispute that said Y.V.Subramanyam was put in possession of the property purchased by him on 1.10.1934 and thereafter, remaining property continued with the three brothers and their family members. It is further not in dispute that subsequently, in the month of March, 1935, there was a partition in the family of Pathiyappa and his two brothers, wherein the property of joint -4- family is divided among three brothers and their children. In fact, by the time partition took place, Pathiyappa was no more. Item No.13 of 'A' schedule of Partition Deed, is the suit schedule property and another portion adjoining to it was given to the share of the plaintiff and his brother Cheluvappa.
4. Subsequently, there was a suit for partition between Cheluvappa and plaintiff herein, in the year 1964. The said suit for partition in OS.No.1277/1964 was filed by the plaintiff herein against his brother - Cheluvappa and his son and others, which resulted in a decree being passed in dividing the property which was in their joint possession hitherto in dividing the same in to two portions. Out of which Portion No.1 as could be seen from Ex.P6(a) - sketch, which is appended to the Commissioner's Report is allotted to the share of plaintiff, who is said to be in possession and enjoyment of the same. It is stated that there is an open space in front of both the properties of the plaintiff and defendant, where it is stated, they have provided common passage to both portion leaving some open space for both of them to reach their respective properties from Cubbonpet Main Road, which is on -5- the southern side of their property. It is the use and enjoyment of said common open yard and common passage which is in dispute between the plaintiff and defendant resulting in filing of the suit for permanent injunction by the plaintiff against the defendant in the Court below, who is appellant herein.
5. Admittedly, property in possession of the defendant is initially sold to one Y.V.Subramanyam by the ancestors of the plaintiff, who was the owner of Central Tiffin Room as on that date and it is that Subramanyam who was in possession and enjoyment of the portion sold to him by his vendors. Subsequently, said Subramanyam sold the portion purchased by him in favour of one Muniswamy Rao s/o Siddoji Rao under a registered sale deed on 15.3.1940, which is produced and marked as Ex.P2 in the Court below, whereas the sale deed in favour of Subramanyam is marked as Ex.P1. It is seen that said Muniswamy Rao subsequently sold the property which was initially sold in favour of Subramanyam to the defendant under a registered sale deed dated 4.6.1953, which is at Ex.P3 thereby indicating that defendant has come to that place in the year 1953. In the meanwhile, with -6- reference to the property which was allotted to the share of Pathiyappa's children, there was a dispute between them which resulted in a suit being filed in OS.No.1277/1964 for the relief of partition, which got subsequently decreed on 25.8.1967.
6. As stated supra, as per the sketch filed along with the Commissioner's Report, which is at Ex.P6(a), the relevant portion that is allotted to the plaintiff is Portion I to the said decree. It is necessary to mention at this juncture that the property at Portion I to the decree in OS.No.1277/1964 not only includes the suit schedule property but also a house which had fallen to the share of plaintiff in the Court below, who was plaintiff in OS.No.1277/1964 also. The possession and title of house property is not disputed by the defendant, but it is only the front open space which is disputed by the defendant as property belonging to it. At this juncture, it is also necessary to mention that when the property was sold by the ancestors of plaintiff to Subramanyam, all that was comprised in the schedule to sale deed Ex.P.1 was a Coffee Club, ie., a room where Indian Coffee House was running its Coffee Club with adjoining hall and inside hall with first floor -7- as well as adjoining Charcoal Depot and a floor mill. All this is included as Schedule to Ex.P1 and P6. Hence, it is needless to say that said property in its entirety is sold by Subramanyam in favour of Muniswamy Rao and in turn purchased by the defendant.
7. The defendant after purchase of the property from its predecessor in title has demolished the existing structure and constructed a new building in the place of old building which was in existence as on 1934. But what is the extent of construction he has taken up on the property purchased by it is not on record; whether it has left any set back on all four sides of the property which it has developed subsequently, is also not on record; whether the open space which is available on eastern side of its property which is to the west of the plaintiff's property, is the portion of property which was purchased by it, is also not placed on record. It is further necessary to mention at this juncture that as on the date of the filing of the suit, the property which was in possession of the plaintiff which he has secured as Portion-I under the decree in OS.No.1277/1964, is given Municipal No.128. At the relevant -8- time the municipal number that was given to the property of defendant is 125 and 126. The property in between the house of the plaintiff and defendant's property i.e., the open space is given municipal number 127, which is also not in dispute. The plaintiff is claiming that said municipal number 127 belongs to him by relying upon certain tax receipts and other documents, where against the name of the plaintiff said property bearing municipal No.127 is shown. That aspect is disputed by the defendant in the original suit.
8. When the defendant filed written statement, it claimed the entire open space as the property belonging to it. However to substantiate the same not even a single document is produced by it before the Court below. Per contra, the documents produced by the plaintiff, which are available on record, namely from Ex.P1, first of the sale deeds which has come into place on 1.10.1934, which divides the entire property in to two portions and sold one portion in favour of Subramanayam would clearly indicate what are the properties that are sold in favour of Subramanayam and what is retained by the vendors. Wherein it would also indicate that besides the -9- house, there is a open space and that open space is abutting the Charcoal depot and the Mangaluru tiled roof, which was provided to Charcoal Depot as a 'awning' towards the open space, which is in front to the property retained by the vendors. Ex.P1 also indicates that said 'awning' is required to be changed by the purchaser - Subramanyam by putting up a roof on the Charcoal Depot in such a way that the water which would fall on that would flow towards southern side, that is, towards Cubbonpet Main Road thereby clearly indicating that there is open space in the property retained by the vendors of Subramanyam after selling a portion of the property to Subramanayam under Ex.P1. It is that property which is claimed by the plaintiff.
9. However, it is seen that in the subsequent sale deeds which are executed by Subramanayam in favour of Muniswamy Rao in the year 1940 and Muniswamy Rao in favour of defendant, the open place is conspicuously missing, which has given an edge to the defendant to take up a defence that there is no open place between the property of the plaintiff and the defendant and therefore, said open space cannot be
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claimed by the plaintiff. According to the defendant, the open space that is available is the open space which is portion of the Charcoal shop and said Charcoal shop being removed, the open space has became the defendant's property. The defendant go a step further to state that it had developed the open space by putting up plants and trees in that place. Though such a defence is taken, there is no supporting evidence to that aspect.
10. Based on the aforesaid pleadings, the Court below, framed the following issues:
ISSUES "1. Whether plaintiff proves his lawful possession over the suit property ?
2. Whether plaintiff proves defendant's interference in his possession as per para 15 and 16 of plaint ?
3. Whether plaintiff is entitled for the reliefs as prayed ?
4. If so, under what order or decree ?"
11. In the trial, on behalf of plaintiff he examined himself as PW.1, he produced and marked several documents,
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which are Exs.P1 to P15. It is seen that there is one more document which is filed by him along with the plaint as a suit sketch. Though it is not marked, it is taken as plaint sketch and included in the decree when the suit was decreed.
12. On behalf of the defendant, three of the members of the defendant - association are examined as DWs.1 to 3. In support of its evidence, the defendant had produced and marked two documents, namely the complaint which is given to Ulsoor Gate Police Station as Ex.D1 and acknowledgement as Ex.D2 thereby clearly indicating that the defendant did not have any independent material to stake claim to the disputed portion which is now referred to as suit property.
13. However, at the time of evidence and also at the time of arguments an effort is made by the defendant to show that the open space that is referred to as suit property, which is identified as municipal No.127 as the property of plaintiff's brother Chalapathi, that Chalapathi had sold it to somebody, who has acquired title to said property and said property is not with the plaintiff. However, the same appears to be incorrect in
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the fact situation. In the FDP proceedings pursuant to the decree passed in OS.No.1277/1964, the Commissioner prepared a report vide Ex.P6 and a sketch - Ex.P6(a) and produced the same before the Court below, wherein it is stated that the property belonging to the family of plaintiff and his brother - Chalapathi is divided in to two portions and out of that Portion - I is allotted to the share of plaintiff. In fact, the sketch would clearly indicate that said portion ie., Portion - I includes the house bearing municipal No.128 and the open space in front of it bearing municipal No.127, which is clearly shown as open space and as a part of Portion - I.
14. As against the aforesaid document which is relied upon by the plaintiff, oral evidence of the defendant to say that it does not belong to plaintiff did not find favour with the Court below, hence, the same was rightly not accepted. Besides said sketch - Ex.P6(a), the plaintiff in the Court below also produced certain documents to demonstrate that the open space was in possession of one Munimallappa as a tenant and subsequently, said Munimallappa's daughter after the death of his father has surrendered possession of said property/open
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space to the plaintiff. In fact, in support of said evidence he has also produced documents to substantiate the same in Exs.P7, P8, P9 and P10. In addition to that, in the sketch which is produced along with the Commissioner's report, that particular portion is referred as the place where Munimallappa was having his depot as on the date when the Commissioner prepared the sketch appended to his report at Ex.P6(a) based on the decree passed in OS.No.1277/1964, which is at Ex.P5.
15. When all these documents are looked into, this Court is of the opinion that the finding of the Court below appears to be correct, more so in the light of the judgment rendered in the matter of Anathula Sudhakar -vs- P.Buchi Reddy (dead)) by his LRs. & Others, Reported in (2008) 4 SCC 594 which is relied upon by the learned counsel for the appellant to demonstrate that the Court below ought not to have considered the relief for permanent injunction in the absence of prayer for declaration, more particularly, when there is a cloud to the title of the plaintiff. In support of said contention, he would rely upon paragraphs 13, 13.1 and 13.2 of the aforesaid judgment, which read as under:
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"13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
13.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
13.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
13.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not
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able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction"
.
16. However, learned counsel for the respondent - plaintiff in the Court below also rely upon the very same judgment. He takes this Court through paragraph Nos.14 to 16 and tried to distinguish under what circumstances an objection could be taken as cloud to the title of the plaintiff; that in what circumstances the plaintiff is required to seek declaratory relief and where mere prayer for permanent injunction would not be sustainable. The said paragraphs reads as under;
"14. We may, however, clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies
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the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raise a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.
15. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and the defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without
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structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally.
16. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs."
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17. By taking this Court through said paragraphs the learned counsel would try to draw parallel to the facts of the case on hand in demonstrating that there is no cloud to the title of the plaintiff. Inasmuch as, title of the defendant itself has flown from the ancestors of the plaintiff and the remaining portion of the property, after selling a portion to the defendant's predecessor in title what is retained by the plaintiff's ancestors has come to the share of plaintiff and his brother. Therefore, there is no cloud to the title of the plaintiff. In the fact situation, a mere suit for permanent injunction to protect his possession and title which is otherwise confirmed by the Court of law in a suit for partition in OS.No.1277/1964, is justifiable is the point that is raised in countering the argument of the learned Senior counsel for the appellant.
18. This Court is in agreement with the argument of the learned counsel for respondent in accepting that in fact, title of the plaintiff to the suit property was never in dispute and the dispute is only with reference to identity of the boundaries of the property purchased by the defendant and whether it would include the open space also. In the fact
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situation, admittedly the defendant is the owner of properties bearing municipal Nos.125 and 126. He admits that he has demolished existing structure of said property, subsequently has put up construction thereon and is in possession of said property. When he is in possession of said property, admittedly, open space is a portion of either 127 or 128.
19. It is pertinent to note that when the defendant has taken a contention that it has put up construction on its property after demolishing the existing building, it has not taken precaution to produce the sanctioned plan or licence to demonstrate what is the extent of building that it has constructed and what is the extent of open space available to it on all sides. The defendant has also not taken steps to demonstrate the same by producing documentary evidence though it has referred to several of them in the written statement. In that view of the matter, this Court find that the judgment rendered by the Court below in decreeing the suit of the plaintiff appears to be just and proper. Therefore, question of interfering with the said judgment does not arise.
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Accordingly, the appeal filed by the defendant in OS.No.486/1993 is hereby dismissed.
Sd/-
JUDGE nd/-