Bangalore District Court
Sri. M.Murali vs Smt.B.S.Padma on 27 July, 2022
KABC010007902019
Govt. of Karnataka TITLE SHEET FOR JUDGMENT IN SUITS
Form No.9(Civil)
Title Sheet for
Judgment in suits
(R.P.91)
IN THE COURT OF THE VI ADDL. CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY
(CCCH.11)
Dated this the 27th day of July 2022
PRESENT: Sri. D.P. Kumara Swamy, B.Com., LL.M.,
(Name of the Presiding Judge)
O.S.NO. 186/2019
PLAINTIFF SRI. M.MURALI
S/o.Sri.Manda Nagaraj
Aged about 75 years
R/at No.8, 17 'B' Block, Phase II
Nandi Garden Apartments, JP Nagar
9th Phase, Bengaluru - 560 007.
(Since deceased)
Represented by
1(a) SRI.M.SRINIVAS
S/o.Sri.M.Murali
Aged about 47 years
R/at No.8, 17 'B' Block, Phase II
O.S.NO.186/2019
2
Nandi Garden Apartments, JP Nagar
9th Phase, Bengaluru - 560 007.
[By Pleader Smt. Krutika Raghavan]
/Vs/
DEFENDANT SMT.B.S.PADMA
D/o.Sri.S.Subba Rao
Aged about 52 years
No.941, Kengeri Main Road
Dwarakanagar, KRVNSS Layout
Channasandra, Uttarahalli Hobli
Bengaluru - 560 061.
[By Pleader Sri.B.K.Manjunatha]
Date of Institution of the suit : 07.01.2019
Nature of the Suit : Injunction
Date of commencement of recording
of evidence : 17.07.2021
Date on which the Judgment was
pronounced : 27.07.2022
Year/s Month/s Day/s
Total Duration : 03 06 20
(D.P. KUMARA SWAMY)
VI ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
O.S.NO.186/2019
3
JUDGMENT
This is a suit for bare injunction.
2. The pleaded facts of the case of the plaintif may be stated to the following efect .- 2.1 One Sri.M.Murali, the sole plaintif died during the pendency of the suit. On his demise, his son Sri.M.Srinivas has got himself impleaded as plaintif No.1(a) and pursuing the suit. 2.2 The original plaintif was the absolute owner in possession of the suit property. 2.3 An open plot bearing House Site No.926, situate in Dwarakanagar, formed out in Sy.No.33 situate in Channasandra Village, Uttarahalli Hobli, Bengaluru South Taluk, within the limits of BBMP, more fully described in the schedule of the plaint is ' the suit property'.
O.S.NO.186/2019 4 2.4 The plaintif is a member of Karmikara Raithara Vasathi Nirmana Sahakara Sangha Ltd., (for short 'the society'). The said society allotted the suit property to the original plaintif. Subsequently, the original plaintif purchased the suit property under a registered sale deed bearing document No.8711/2011-12 dated 27.01.2012 of the Office of the Sub-Registrar, Basavanagudi, Bengaluru, for valid and valuable consideration. Since the date of purchase, the original plaintif was in peaceful and exclusive possession and enjoyment of the suit property as absolute owner thereof.
2.5 The defendant Smt.B.S.Padma was an Office Assistant of the said society. By misusing her position, she got transferred the properties in her own favour and in favour of her family members. The defendant was never a member of the society. One such document which she concocted is the O.S.NO.186/2019 5 General Power of Attorney (GPA) dated 28.11.1999, which was allegedly executed by the then Secretary of the society late Sri.B.G.Visweswaraiah in favour of the mother of the defendant by name Smt.Nagarathnamma. The said Smt.Nagarathnamma was also not a member of the society. Hence, the said Smt.Nagarathnamma could not alienate the suit property based on the said concocted GPA. Based on the said concocted GPA, the said Smt.Nagarathnamma (mother of the defendant) transferred the suit property to the defendant under a sale deed dated 07.03.2001. 2.6 Subsequently, when the society got the knowledge about the said sale deed, the society passed a resolution dated 19.08.2012 cancelling all the illegal transfers made by Smt.Nagarathnamma and the defendant and upheld all the valid transfers made by the society itself. One such sale deed which was held valid by the society is the sale deed O.S.NO.186/2019 6 dated 27.01.2012 executed by the society in respect of the suit property in favour of the original plaintif. The society resolved to remove the illegal encroachment made by the defendant on the suit property. The defendant, on realizing the fact that the fraud played by her on the society was detected, using the above mentioned concocted and fraudulent documents filed a false, frivolous, vexatious and mischievous suit for declaration and injunction against the society and also against the original plaintif on 05.01.2013 in O.S.No.252/2013, which was allotted to CCH.No.15. In the said suit, the said Court granted an ad-interim order of status quo in favour of the defendant on 16.02.2013, which got elapsed on 13.09.2013.
2.7 In the meanwhile, the society had instituted a proceedings before the Additional Registrar of co- Operative Societies (Housing and others) (for short, the ARCS) under Section 70(b) of the Karnataka O.S.NO.186/2019 7 Co-operative Societies Act, 1959. The said case was registered as Dispute No.MD/50/2014-15 before the ARCS to uphold the resolution dated 19.08.2012 and to annul all the transfers made by Smt.Nagarathnamma including the one made by her in favour of the defendant in respect of the suit property.
2.8 In the said case before the ARCS, the brother of the defendant, during the course of his cross- examination, admitted that the defendant had no means to purchase the suit property. Finally on 06.01.2018, the ARCS had passed an order upholding the resolution of the society dated 19.08.2012 cancelling the illegal alienations made by the defendant and her mother.
2.9 As the matter stood thus, in and around middle of April 2018, the defendant along with her henchmen attempted to illegally dispossess the O.S.NO.186/2019 8 plaintif from the suit property. The plaintif resisted her attempts and continued to be in possession of the suit property. To protect the suit property, the plaintif had approached the jurisdictional police station (RR Nagar Police Station) and lodged a complaint against the defendant on 21.04.2010. 2.10 On 14.06.2018 the defendant had filed a memo seeking permission to withdraw the suit in O.S.No.252/2013 before the said Court. 2.11 On 22.08.2018 the defendant and her henchmen made another attempt to dispossess the plaintif from the suit property. On 25.08.2018, the plaintif had lodged another complaint before the RR Nagar Police Station. Based on the said complaint, C.C.No.2970/2018 is registered on the file of the 3rd Addition Metropolitan Magistrate Court, Bengaluru.
O.S.NO.186/2019 9 2.12 The suit in O.S.No.252/2018 came to be dismissed on 13.12.2018 for want of compliance of Section 125 of the Karnataka Co-operative Societies Act.
2.13 On 30.12.2018 the defendant made another attempt to dispossess the plaintif from the suit property and destroyed the fence put up by the plaintif around the suit property. The plaintif has again successfully resisted the said attempt. 2.14 The said police are helping the defendant and not protecting the rights of the plaintif over the suit property.
2.15 The defendant is a land grabber. Several criminal cases are pending against her. One such case is C.C.No.7404/2017 on the file of the III ACMM Court, Bengaluru. The properties sought to be sold as per the story of the allegations made in the said criminal case is a portion of the road.
O.S.NO.186/2019 10 2.16 The above are the facts constituting the cause of action for the suit. The suit is within time. No other cases are pending before any Court in respect of the suit property. Hence, this suit.
3. The pleaded facts of the case of the defendant may be stated to the following efect :
3.1 The President of the society had executed Power of Attorney. After allotment, he issued Possession Certificates to various persons after collecting the sale consideration amount. One such site was allotted to the mother of the defendant Smt.Nagarathnamma. Thereafter, the Possession Certificate, No Objection Certificate, GPA and Affidavit were executed by the President of the society. The No Objection statement and possession certificate was issued by the then President of the society by name Sri.N.V.Sridhar.
The GPA and affidavit were executed by the Secretary of the society by name O.S.NO.186/2019 11 Sri.V.G.Visweswaraiah. A receipt for having received Rs.65,000/- (Rupees Sixty-five Thousand) was also issued by the society. Under a registered sale deed dated 07.03.2001, Smt.Nagarathnamma transfered and conveyed the suit site in favour of the defendant. After the purchase, the defendant got assessed the suit property from BBPM for payment of tax. The BBMP has issued khatha in respect of the suit property in the name of the defendant. The defendant has applied for sanctioned plan. She has got obtained the sanctioned plan for construction of a building in the suit property. The defendant is the owner in possession of the suit property. 3.2 Somewhere in 2013, said Sri.N.V.Sridhar and the plaintif started to interfere with the defendant's possession over the suit property. Hence, the defendant had filed the said suit in O.S.No.252/2013. In the said suit, the Secretary of the society had filed his written statement.
O.S.NO.186/2019 12 3.3 Said Sri.B.G.Visweswaraiah died on 22.11.2011. The entire sites in Sy.Nos. 1, 2, 3, 4, 6, 7, 8, 9, 18, 19, 20, 21, 23, 31 and 34 of Channasandra Village had been transferred to the Secretary of the society Sri.N.V.Sridhar under a Will dated 19.07.2011, which is unregistered. Under the said Will, suit site was bequeathed in favour of Sri.N.V.Sridhar.
3.4 The said Sri.N.V.Sridhar, the then President of the society transferred and conveyed the suit site in favour of the mother of the defendant in the year 2001. Thereafter, he has once again executed a sale deed in favour of the plaintif on 27.01.2012. The said Sri.N.V.Sridhar has committed fraud by executing second sale deed in respect of the suit property in favour of the plaintif. 3.5 The plaintif is a Driver by profession. He was a Driver of one Sri.Raghavan, who is a witness to the Will dated 19.07.2011.
O.S.NO.186/2019 13 3.6 During trial of the suit, though it was brought to the notice of the Court that the subject matter of the suit was not the business of the society, the Court had erroneously returned the plaint for want of notice under Section 125 of the Karnataka Co- operative Societies Act.
3.7 The defendant has also filed a private complaint in P.C.R No.329/2019 before the III Addl. Chief Metropolitan Magistrate Court against the plaintif and Sri.N.V.Sridhar.
3.8 The defendant had challenged the order of the Court in returning the plaint for want of notice before the Hon'ble High Court of Karnataka in W.P.No.3544/2019 and also filed an appeal in M.F.A No.10377/2018. The Hon'ble High Court permitted the defendant to convert the appeal to a Writ Petition.
O.S.NO.186/2019 14 3.9 The sale transaction relied on by the plaintif is a sham transaction. Since the title over the suit property was transferred to the mother of the defendant, the society did not have title over the suit property to convey the same to the defendant. 3.10 Sri.N.V.Sridhar has sold the suit property in favour of the plaintif in his individual capacity, despite of the fact that he himself had executed Possession Certificate and No Objection Certificate in favour of the mother of the defendant, allotting and transferring the suit property in her favour. 3.11 With the above assertions and explanations the defendant has denied rest of the pleaded facts of the plaintif allegedly constituting cause of action for the suit.
3.12 The defendant had withdrawn the suit in O.S.No.252/2013 with an intention to file a fresh suit.
O.S.NO.186/2019 15 3.13 There is no cause of action for the suit. The suit may be dismissed with exemplary costs.
4. Based on the pleadings and other materials on record, this Court has framed the following Issues :
1) Whether plaintif proves that he is in possession of suit schedule property as on the date of suit ?
2) Whether plaintif proves the alleged interference ?
3) Whether plaintif is entitled for the reliefs as prayed for ?
4) What order or decree ?
5. The plaintif No.1(a) got himself examined as PW.1 and got marked Exs.P.1 to P.27 and got closed his side. The defendant got herself examined as DW.1 and got marked Exs.D.1 to D.30 and got closed her side.
6. Heard arguments. Perused the records.
O.S.NO.186/2019 16
7. The learned advocate for the plaintif has argued that the sale deed in favour of the Plaintif is by the co-operative society itself and that the Plaintif was a member of the co-operative society as on the date of the said sale deed. He also submitted that since he has proved title over the suit property, he has proved de-jure possession over the suit property. He has also highlighted the facts like the presence of two persons in the open Court during cross- examination of DW.1 and their names being recorded in the deposition of DW.1 and as per the question of the Court to the said two persons (but not to DW.1) and answered by the said two persons. Simultaneously, he referred to the papers from criminal case where the said two names are found. He also refers to the contempt proceedings papers where, according to him, admissions are given by the Defendant regarding constructions of the shed etc. He also submitted that since the Defendant is not a member of the co-
O.S.NO.186/2019 17 operative society, the sale deed relied on by her is not valid. According to him, since the sale deed is not valid, the possession certificate and NOC issued by co-operative society have no value. The Defendant has not produced the alleged GPA executed by co-operative society in favour of the mother of the Defendant. There is discrepancy regarding the sale consideration amount in the deposition and in the Ex.D.4. The amounts are varying and in the deposition she says that she has paid the said sum to her mother (said GPA holder) by way of treatment to her aliment, but, whereas, in sale deed it is written that payment of money is made. The second argument regarding the GPA is that it is not in accordance with Section 33 of the Registration Act, 1908. Hence, according to him the sale deed is required to be ignored. According to him there is no cloud on the title of the Plaintif and there is no need for the Plaintif to seek for declaration of title of the Plaintif over the suit O.S.NO.186/2019 18 property. According to him, in view of the law declared by the Hon'ble Supreme Court in (2008) 4 SCC 594 - Anathula Sudhakar V. P.Buchi Reddy relied on by him, in a suit for bare injunction in respect of a site, the Court is expected to decide title over the suit property which is a condition precedent for arriving at conclusion regarding the proof of de-jure possession. The sale deed of the Defendant needs to be ignored for the reason that mother executed it in favour of daughter. The evidence shows that the Defendant was also an employee in the co-operative society. The Court returned the plaint to the Defendant in the suit filed by her in OS No.252/2013 and thereafter, she has not taken recourse to get her right decided in accordance with law.
8. According to him, the Plaintif has proved his title over the suit property and also proved his de- jure possession over the suit property and also O.S.NO.186/2019 19 proved the alleged interference by the Defendant into the possession of the Plaintif over the suit property. Hence, according to him, the suit deserves to be decreed in favour of the Plaintif. In support of his argument he has relied upon the judgments of the Hon'ble Supreme Court viz.,
1. (2008) 4 SCC 594 - Anathula Sudhakar V. P.Buchi Reddy
2. (2021) SCC SC 674 - T.V.Ramakrishna Reddy V. M.Mallappa and Another
3. 1954 SCR 919: AIR 1954 SC 316 - Sri Sri Sri Kishore Chandra Singh Deo Vs. Babu Ganesh Prasad Bhagat and Others.
9. The learned advocate for the defendant has submitted his arguments to the efect that Ex.P.4 and Ex.D.3 are the possession certificates in respect of the suit property, the former being issued to the plaintif and the latter being issued to the mother of the defendant. The signatory by name Sri.N.V. Sridhara in his capacity as President of the society is common in the both the documents. In Ex.D.21 O.S.NO.186/2019 20 the Karnataka Appellate Tribunal observed that it is only Civil Court which can cancel the sale deed. The sale deed as per Ex.D.4 is a registered document. Hence, there is presumption about Ex.D.4. The plaintif has not sought for declaration about Ex.D.4. He refers to para 27 and 28 in the judgment of the Hon'ble Supreme Court in AIR 2006 SC 3608 Prem Singh and Others V. Birbal and others. For the same proposition, he refer to paras 37, 38 and 40 in the judgment of the Hon'ble High Court of Karnataka in ILR 2008 KAR 2245 Binny Mill Labour Welfare House Building Co-operative Society Limited V. D.R.Mruthyunjaya Aradhya. In the light of the existence of Ex.D.4 sale deed which is a prior sale deed when compared to Ex.P.1 sale deed, in view of the law declared in Prem Singh (Supra) and in Binny Mill (Supra), whether the plaintif can maintain a bare injunction suit is the basic question which requires consideration. In Anathula Sudhakar (supra), the Hon'ble Supreme Court has laid down O.S.NO.186/2019 21 the law regarding what relief is appropriate in a given facts. He has produced copies of the judgments relied on by him which are as follows :
1. (2008)4 SCC 594 Anathula Sudhakar Vs. P.Buchi Reddy (Dead) by Lrs., and Others
2. AIR 2006 SC 3608 Prem Singh and Others V. Birbal and others
3. ILR 2008 KAR 2245 Binny Mill Labour Welfare House Bilding Co-operative Society Limtied V. D.R.Mruthyunjaya Aradhya
4. 2001 KLJ 336 T.S.Raju V. S.Anilkumr and another
5. CDJ 2008 APHC Smt.K.V.Sudha Rani Vs. Vijayawada-Guntur-Tenali-
Mangalagiri Urban Development Authority (VGTM-UDA).
10. The learned advocate for the plaintif in his reply arguments submitted that the disparity in the sale consideration amount which is already noted supra may be considered to hold that the sale deed relied on by the defendant is not valid one. The defendant ought to have pursued her above noted O.S.NO.186/2019 22 suit. Having not done so, she cannot turn around and say that the plaintif should seek for declaration. Since the said sale deed is not valid, the present suit for bare injunction is maintainable.
11. My findings on the Issues are as follows:
Issue No.1 : Not Answered Issue No.2 : Not Answered Issue No.3 : In view of the fact that no findings is recorded on Issues No.1 and 2, the plaintif is not entitled for the relief in the present suit Issue No.4 : As per the final order, for the following :
REASO NS
12. Issues No.1 and 2 : The pleadings and the Issues noted supra would sufficiently indicate that this is a bare injunction suit. Issues are regarding the plaintif's possession over the suit property, the alleged interference, the alleged O.S.NO.186/2019 23 entitlement of the plaintif for the relief of injunction etc. This is one aspect of the matter. The other aspect of the matter is that the suit property is an open plot. The Court is called upon to decide the de-jure possession over the suit property. Both the plaintif and the defendant have relied upon the sale deeds. Ex.P.1-original sale deed dated 27.01.2012 is the sale deed relied upon by the plaintif. Ex.D.4-original sale deed dated 07.03.2001 is relied on by the defendant. Whether the Plaintif has established his title over the suit property based on Ex.P.1 or whether the defendant has established her title over the suit property based on Ex.D.4 is the question for consideration in this suit.
13. Whether the defendant has made out a clear case which has raised real controversy regarding the title of the plaintif over the suit property is the question for consideration. Whether title of the plaintif is free from any doubt O.S.NO.186/2019 24 and as such there is no need for the plaintif to clear the doubtful circumstances surrounding the Ex.P.1 sale deed is the question for consideration. These are the several aspects of the controversies involved in this suit.
14. I would propose to discuss about the recitals in Ex.D.4 to start with. As per the recitals in Ex.D.4, Smt.Nagarathnamma (mother of the defendant) has executed Ex.D.4 Sale Deed in respect of the suit property in favour of the defendant in her capacity as a GPA holder of one Sri.B.G.Visweswaraiah. It is recited that the said Sri.B.G.Visweswaraiah was the Secretary of the Society. It is important to bear in mind the fact that it is said Sri.B.G.Visweswaraiah who purchased 03 Acres 12 guntas of land in Sy.No.33 of Channasandra village (where a layout called Dwarakanagar is formed), Uttarahalli Hobli, Bengaluru South Taluk, from its original owner under a registered sale deed bearing document O.S.NO.186/2019 25 No.4547, Book-I, Vol-1307, Pages 186-92 dated 06.07.1995 of the Office of the Sub-Registrar, Kengeri. The recitals do not indicate that the purchaser under the said sale deed dated 06.07.1995 is in fact, the society itself, represented by its the then Secretary Sri.B.G.Visweswaraiah. On the other hand, the language employed in Ex.D.4 shows that it is Sri.B.G.Visweswaraiah who purchased the said 03 Acres 12 guntas of land in his individual capacity. The said questions to the efect that Sri.B.G.Visweswaraiah purchased the said 03 Acres 12 guntas of land under the said sale deed dated 06.07.1995 is further fortified by the further recitals in Ex.D.4. The further recitals say that the said 03 Acres 12 guntas of land fell to his exclusive possession and he was enjoying the said 03 Acres 12 guntas of land as absolute owner thereof and that since he was not able to manage the said property, he executed a GPA dated 26.07.2000 in favour of Smt.Nagarathnamma.
O.S.NO.186/2019 26
15. Bearing in mind the above noted facts found in Ex.D.4, let me pause for a while and consider Ex.P.1 Sale Deed. Ex.P.1-sale deed shows that it is one Sri.N.V.Sridhar who executed it. Of course, below his name it is shown that he was the President of the society at the time of execution of Ex.P.1-sale deed. But, however, the Ex.P.1-sale deed does not show that it is the society represented by its office bearer (viz., its President - Sri.N.V.Sridhar) who executed it. At page-3 in Ex.P.1, it is stated that in view of the legal hurdles in acquisition of the land and in disbursement of the lands, the matter was placed before the general body of the society. After a detailed discussion it was resolved by the general body of the society that the land be purchased for the society in the name of the President, Secretary, Directors and the well wishers/members of the society who are eligible to acquire the agricultural lands and get the same converted for non-agricultural residential O.S.NO.186/2019 27 purpose as contemplated under the law and form a layout and allot the sites to the members. Accordingly, the lands were purchased, converted and layouts were formed in the name of 'Dwarakanagar'. A decision was taken to purchase the property in the name of said Sri.B.G.Visweswaraiah. Sri.B.G.Visweswaraiah died on 22.12.2011. He had executed a registered Will dated 16.07.2011. Under the said Will Sri.B.G.Visweswaraiah bequeathed the suit property to the name of Sri.N.V.Sridhar. The seller is the absolute owner of the suit property. It is also recited in Ex.P.1 that the said Will was accepted and confirmed by all the legal heirs and acted upon. The words 'legal heirs' in the said recitals raises several questions. Can there be legal heirs to a Co- operative society is the first question. Thereafter, if at all Sri.B.G.Visweswaraiah purchased the above said 03 Acres 12 guntas of land for the benefit of the society and its members, whether he has O.S.NO.186/2019 28 dedicated the said 03 Acres 12 guntas of land in favour of the society. If he has transferred the said 03 Acres 12 guntas of land in the name of the society, under what deed and on what date, he has done it has to be explained. If at all Sri.B.G.Visweswaraiah has transferred the said 03 Acres 12 guntas of land in the name of the society, what was the necessity for him to execute the said Will in respect of the suit property alone in favour of Sri.N.V.Sridhar? Likewise, what was the necessity for his legal heirs to confirm and act upon the said Will? The above noted facts would also raise further questions to the following efect :
1) Whether the said 03 Acres 12 guntas of land or small extent of piece of land viz., suit property was the property of Sri.B.G.Visweswaraiah or whether it was the property of the society ?
2) Whether Smt.Nagarathnamma was the GPA holder of the society represented by its then Secretary O.S.NO.186/2019 29 viz., Sri.B.G.Visweswaraiah or whether Smt.Nagarathnamma was the GPA holder of Sri.B.G.Visweswaraiah in his individual capacity ?
3) Whether Smt.Nagarathnamma sold the suit property under Ex.D4 sale deed in favour of the defendant on behalf of the society or she did so on behalf of Sri.B.G.Visweswaraiah in his individual capacity ?
4) Whether Sri.N.V.Sridhar has sold the suit property in favour of the plaintif under Ex.P.1 sale deed in his individual capacity or whether the society represented by its then President Sri.N.V.Sridhar sold the suit property in favour of the plaintif under Ex.P.1 ?
16. It is to be clarified at this stage itself that the Court is discussing all these things not to give final finding on the questions raised, but, to bring on record the complicated questions of fact and law O.S.NO.186/2019 30 arising from the recitals in Ex.P.1 and Ex.D.4 to arrive at a conclusion as to whether a suit for bare injunction simpliciter is sufficient or whether the plaintif ought to have brought the suit for comprehensive relief of declaration of title of the plaintif over the suit property under Ex.P.1 sale deed, seeking for cancellation of Ex.D.4 sale deed and consequently, for the relief of injunction. As noted supra, the plaintif has simply filed this suit for bare injunction and not sought for declaration of his title over the suit property based on Ex.P.1 Sale Deed and not sought for cancellation of Ex.D.4 Sale Deed. As noted earlier, this Court is dealing with the question of de-jure possession, but not the actual possession over the suit property. In the case of an open plot, the possession follows title. But, not other way round. In the wake of the above noted factual scenario, is it possible to hold that the plaintif is the owner of the suit based on Ex.P.1 sale deed even without relief of declaration of title is O.S.NO.186/2019 31 sought for by the plaintif based on Ex.P.1 sale deed is one question. The other question would be, can a conclusion be reached based on Ex.D.4 sale deed that undoubtedly the defendant is found to be the owner of the suit property? These are the controversies which loom large in the case on hand.
17. In the light of the above noted factual backdrop, it would be necessary to note the law declared by the Hon'ble High Court of Karnataka in ILR 1996 KAR 1517 Hanumappa Bhimappa Koujageri vs Bhimappa Sangappa Asari, wherein, at para-21, the Hon'ble High Court has ruled thus :
" 21. Dealing with the principle of construction of the document that whether it was a security or not, Their Lordships of the Supreme Court in CHUNCHUN JHA v. EBADAT ALI AND ANR, laid it down as under:
"......where a document has to be construed, it must be gathered in the first place from the document itself, if the words are express and clear, efect must be given to them and in an extraneous enquiry into what was thought or intended is ruled out. The real question in such a case was not what parties intended or meant, but, what is the O.S.NO.186/2019 32 legal efect of the words which they used."
It is clear from the just above observations of the Supreme Court that the intention of the parties is to be gathered from the document itself, an extraneous enquiry of what was thought is ruled out. Sometimes, there may be a cause extraneous enquiry where a claim is made that the document is void or illegal on the ground that a diferent document than the document which was intended was got executed. But, this is not so here in the present case. Here even in the written statement, it is admitted that the Sale Deed was executed. It was also stated that it was otherwise agreed or intended, it will operate as security. "
18. Ultimately, if proper suit with appropriate relief is brought, the Court may have to apply the above noted proposition of law in construing Ex.P.1 Sale Deed and Ex.D.4 sale deed to find out as to who was the original owner of the suit property. Whether it is said Sri.B.G.Visweswaraiah or whether it is said Sri.N.V.Sridhar or whether it is the society which was the real owner of the suit property before execution of either Ex.D.4 sale deed or Ex.P.1 sale deed. To answer all these questions, in my considered view, it is necessary for the plaintif or O.S.NO.186/2019 33 the defendant as the case may be to bring a comprehensive suit for declaration of title and consequential relief of cancellation of either Ex.P.1 Sale Deed or Ex.D.4 sale deed as the case may be with a further consequential relief of injunction. Unless such a comprehensive suit is brought, it is not permissible for the Court to go into the above noted complicated questions of law and fact and decide them one way or the other in the present suit which is having very narrow scope.
19. In the above background, it is necessary to notice the law laid down by the Honb'le Supreme Court in Anathula Sudhakar case (supra), wherein, at para 13 and 21 the Hon'ble Supreme Court has held thus :
" 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 plaintif is in lawful or peaceful possession of a property and such possession is interfered or threatened by O.S.NO.186/2019 34 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 plaintif 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 plaintif 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 defendant, the plaintif will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintif is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintif will have to file a suit for declaration, possession and injunction."
"21. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :
(a) Where a cloud is raised over plaintif's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy.
Where the plaintif's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an O.S.NO.186/2019 35 interference with plaintif's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and
appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight- forward, the court may decide upon the O.S.NO.186/2019 36 issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintif to a more comprehensive declaratory suit, depending upon the facts of the case. "
20. In the above extracted passages, the Hon'ble Supreme court has given one of the guidelines in the following words :
" The Court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintif to a more comprehensive declaratory suit, depending upon the facts of the case ."
21. Bearing in mind the declaration of law by the Hon'ble Supreme Court in Anathula Sudhakar case (supra), if the facts of the case on hand are analyzed, in my considered view, the plaintif must O.S.NO.186/2019 37 be asked to go for comprehensive declaratory suit and this is not a fit case where this Court can use its discretion to enquire into the title over the suit property. Unless the title is clarified, it is not possible to hold as to who is in possession of the suit property, as the entire case is based on the finding regarding de-jure possession. Hence, Issues No.1 and 2 are not answered in this suit.
22. Issue No.3 : So far as Issue No.3 is concerned, in view of the fact that no findings is recorded on Issues No.1 and 2, for that reason alone, the plaintif is not entitled for the relief in the present suit. Hence, Issue No.3 is answered accordingly.
23. It is clarified that since the suit is for bare injunction only, since the suit is not for declaration of title, and also since this Court has come to a conclusion that this is not a fit case for using its discretion to enquire into the title over the suit O.S.NO.186/2019 38 property in this suit and that the plaintif must be asked to go for comprehensive suit for declaration and injunction, the pleadings, the evidence, the materials and the arguments touching the title over the suit property are not considered in this judgment, even though the said aspect is argued by the learned Advocates.
24. Issue No.4: Hence, the following :
ORDER The suit is dismissed.
No order as to costs.
(Dictated to the Judgment Writer, transcribed and computerized by her, transcript thereof corrected and then pronounced by me in open court, on this the 27th day of July 2022).
(D.P. KUMARA SWAMY) VI Addl.City Civil & Sessions Judge Bengaluru City O.S.NO.186/2019 39 ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 Sri.M.Srinivas, dtd.17.07.2021
(b) Defendants side :
D.W.1 Smt.B.S.Padma, dd.02.03.2022 II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Original Sale Deed dtd. 27.01.2012 executed by Sri.N.V.Sridhar in favour of Sri.M.Murali Ex.P.2 Khatha Certificate dated 11.04.2018 issued by BBMP in the name of Sri.M.Murali Ex.P.3 Property Register Extract for the year 2017- 2018 Ex.P.4 Original Possession Certificate dated 27.01.2012 issued by Karmikara Raithara Vasathi Nirmana Sahakara Sangha Ltd., to Sri.M.Murali Ex.P.5 Original 'No Objection' certificate dtd.27.01.2012 issued by Karmikara Raithara Vasathi Nirmana Sahakara Sangha Ltd., to Sri.M.Murali Ex.P.6 Certified copy of the Order sheet in CCC No.1861/2019 before the Hon'ble High Court of Karnataka Ex.P.7 Certified copy of contempt petition in CCC No.1861/2019 filed by Sri.M.Murali O.S.NO.186/2019 40 Ex.P.8 Certified copy of Bye law of Agricultural Labourers House Building Co-operative Limited Ex.P.9 Property Tax paid Receipt for the year 2018-
2019 by Sri.M.Murali Ex.P.10 Annual Report of Karmikara Raithara Vasathi Nirmana Sahakara Sangha Ltd.,for the year 2012-2013 Ex.P.11 Certified copy of plaint in OS No.252/2013 Ex.P.12 Certified copy of application filed under Order 39 Rule 1 and 2 in OS No.252/2013 by the plaintif Ex.P.13 Certified copy of application filed under Order 39 Rule 1 and 2 in OS No.252/2013 filed by the plaintif Ex.P.14 Certified copy of written statement filed by Defendants No.1 and 2 in OS No.252/2013 Ex.P.15 Certified copy of written statement filed by Defendant No.3 in OS No.252/2013 Ex.P.16 Certified copy of order sheet in OS No.252/2013 Ex.P.17 Certified copy of police complaint dated 25.08.2018 lodged by Sri.M.Murali before Rajarajeshwrai Nagar Police Ex.P.18 Certified copy of charge sheet Ex.P.19 Certified copy of FIR in Crime No.0244/2018 Ex.P.20 Certified copy of order sheet in CC No.29740/2018 Ex.P.21 Certified copy of order sheet in OS No.252/2013 O.S.NO.186/2019 41 Ex.P.22 Certified copy of police complaint dated 08.11.2016 given by Mr.C.V.Raju to the Police Inspector of R.R.Nagar Police Station, Bengaluru Ex.P.23 Certified copy of FIR in Crime No.0127/2016 Ex.P.24 Certified copy of charge sheet Ex.P.25 Certified copy of order sheet in CC No.7407/2018 Ex.P.26 Certified copy of the Order dtd.06.01.2018 passed by Addl. Registrar of Co-operative Society Ex.P.27 Certified copy of the Order dtd.17.07.2020 passed by the Hon'ble High Court of Karnataka in CCC No.1861/2019
(b) Defendants side :
Ex.D.1 Receipt dtd.22.01.2001 for having deposited site amount of Rs.65,000/- before Karmikara Raithara Vasathi Nirmana Sahakara Sangha Ltd.
Ex.D.2 'No Objection certificate' issued by Karmikara Raithara Vasathi Nirmana Sahakara Sangha Ltd., issued to Smt.Nagarathnamma Ex.D.3 Possession certificate issued by Karmikara Raithara Vasathi Nirmana Sahakara Sangha Ltd., in favour of Smt.Nagarathnamma Ex.D.4 Original Sale Deed dtd. 07.03.2001 executed by Smt.Nagarthnamma, GPA holder of Sri.B.G.Visweswaraiah in favour of Smt.B.S.Padma (defendant) Ex.D.5 Endorsement Ex.D.6 Tax paid receipt dtd.02.07.2001 O.S.NO.186/2019 42 Ex.D.7 License dtd.10.07.2001 issued by Municipal Corporation, Pattanagere in favour of defenant Smt.B.S.Padma Ex.D.8 Building Plan Ex.D.9 Khatha Certificate dtd.21.11.2012 in the name of Smt.B.S.Padma (Defendant) Ex.D.10 To Assessment Registers Ex.D.12 Ex.D.13 Tax paid receipt dtd.11.06.2001 Ex.D.14 Tax paid receipt dtd.16.12.2000 Ex.D.15 Tax paid receipt for the year 2008-2009 Ex.D.20 Certified copy of Sale Deed dated 27.01.2012 executed by Sri.N.V.Sridhar in favour of Sri.M.Murrali Ex.D.21 Certified copy of Judgment dtd.20.03.2020 in Appeal No.70/2018 passed by Karnataka Appellate Tribunal, Bengaluru Ex.D.22 and Encumbrance Certificates Ex.D.23 Ex.D.24 To Photographs - 4 Nos.
Ex.D.27 Ex.D.28 CD Ex.D.29 Tax paid Receipt for the year 2020-2021 in the name of Smt.B.S.Padma Ex.D.30 Tax paid Receipt for the year 2021-2022 in the name of Smt.B.S.Padma VI Addl.City Civil & Sessions Judge Bengaluru City O.S.NO.186/2019 43 O.S.NO.186/2019 44