Karnataka High Court
Sri Raghurama Reddy vs Smt Nisha Ravindran on 17 November, 2023
Author: K. Natarajan
Bench: K. Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
REGULAR FIRST APPEAL NO.1327 OF 2021
C/W
REGULAR FIRST APPEAL NO.1325 OF 2021
IN REGULAR FIRST APPEAL NO.1327 OF 2021
BETWEEN:
1 . SRI RAGHURAMA REDDY
S/O LATE NANJUNDAPPA
AGED ABOUT 69 YEARS,
2 . SRI BABU
S/O LATE NANJUNDAPPA
AGED ABOUT 63 YEARS,
BOTH ARE RESIDENTS OF NO.380,
REDDY COLONY,
YAMALUR MAIN ROAD,
YAMALURU VILLAGE,
AND POST
BENGALURU-560037
... APPELLANTS
(BY SRI VIJAY A M, ADV.)
AND:
1 . SMT ROHINI S NAIR
W/O P RAVINDRAN
AGED ABOUT 65 YEARS,
2
2 . SRI P SADASHIVAN
S/O LATE GOPALAN NAIR
AGED ABOUT 70 YEARS,
RESIDENT OF SAMRAT NO.803
2ND D CROSS, 8TH MAIN,
HRBR LAYOUT,
2ND BLOCK
BENGALURU-560043
3 . SRI HANUMAPPA
S/O LATE NANJUNDAPPA
... RESPONDENTS
(BY SRI RAVI JAGAN, ADVOCATE)
THIS REGULAR FIRST APPEAL IS FILED UNDER
ORDER XLI RULE 1 R/W SECTION 96 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 12.03.2021 PASSED IN
OS No.787/2014 ON THE FILE OF THE VII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU,
DECREEING THE SUIT FOR PERMANENT INJUNCTION.
IN REGULAR FIRST APPEAL NO.1325 OF 2021
BETWEEN:
1 . SRI RAGHURAMA REDDY
S/O LATE NANJUNDAPPA
AGED ABOUT 69 YEARS,
2 . SRI BABU
S/O LATE NANJUNDAPPA
AGED ABOUT 63 YEARS,
BOTH ARE RESIDENTS OF NO.380,
REDDY COLONY,
YAMALUR MAIN ROAD,
3
YAMALURU VILLAGE,
AND POST
BENGALURU - 560 037
... APPELLANTS
(BY SRI VIJAY A M, ADV.)
AND:
1. SMT NISHA RAVINDRAN
W/O SRI P RAVINDRAN
AGED ABOUT 53 YEARS,
RESIDENT OF NO.24,
HOMESTEAD
ROAD ORPINGTON KENT UNITED KINGDOM BR 6
6HW
REPRESENTED BY HER OF POWER ATTORNEY
HOLDER SRI P SADASHIVAN S/O LATE GOPALN
NAIR AGED ABOUT 70 YEARS,
RESIDENT OF SAMRAT NO.803, 2ND D CROSS, 8TH
MAIN,
HRBR LAYOUT,
2ND BLOCK
BENGALURU-560043
2. SRI HANUMAPPA
S/O LATE NANJUNDAPPA
... RESPONDENTS
(BY SRI RAVI JAGAN, ADVOCATE)
THIS REGULAR FIRST APPEAL IS FILED UNDER
ORDER XLI RULE 1 R/W SECTION 96 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 12.03.2021 PASSED IN
OS No.5294/2014 ON THE FILE OF THE VII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU,
DECREEING THE SUIT FOR PERMANENT INJUNCTION.
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THESE REGULAR FIRST APPEALS HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT ON 5.9.2023 THIS
DAY, THE COURT PRONOUNCED THE FOLLOWING:
JUDGMENT
RFA No.1325/2021 is filed by the defendant Nos.2 and 3 under Section 96 of CPC for setting aside the judgment and decree passed by the VII Additional City Civil Judge, Bengaluru in O.S.No.5294/2014 dated 12.03.2021 for having decreed the suit of the respondent No.1/plaintiff.
2. RFA No.1327/2021 also is filed by the same defendant Nos.2 and 3 under Section 96 of CPC for setting aside the judgment and decree passed by the same court in O.S.No.787/2014 dated 12.3.2021 for having decreed the suit of the respondent No.1/plaintiff.
3. Heard the arguments of learned counsel for appellants and respondents.
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4. The appellants in both appeals are defendant Nos.2 and 3 and respondent No.1 in both these appeals was the plaintiff before the Trial Court. Hence, the rank of the parties are retained for the sake of convenience.
5. Though the plaintiff filed separate suits, but the defendants are one and the same and with consent of both parties, both the appeals are taken together for common disposal.
6. The case of he plaintiff in O.S.No.5294/2014 (challenged in RFA No.1325/2021) is that the plaintiff represented by the GPA holder, the father of the plaintiff, it is alleged that the plaintiff filed suit for permanent injunction against the defendants, contending that the plaintiff is the sole and absolute owner of the property measuring 6 guntas, which is a portion of land bearing Sy.No.61/2, Revenue Khatha 6 No.154 situated at Horamavu-Agara village, K.R.Puram Hobli, which was acquired under the sale deed dated 7.9.1996 ("hereinafter referred as suit schedule property"). The khatha extract, RTC, Pahani for the year 2011 stands in her name. The plaintiff has been paying taxes regularly to the Village panchayat, subsequently to the BBMP. The defendants are utter strangers to the suit schedule property, having no manner of any right, title or interest over the property filed application before Tahsildar and seeking cancellation of mutations in Sy.No.61/1 and 61/2, Horamavu AGara village, KR.R. Puram Hobli, Bengaluru, East taluk. The Tahsildar dismissed the application of the defendants and the plaintiff had no knowledge of the same. Subsequently, the defendant filed R.A.No.644/2007- 08 which also came to be dismissed and they have filed the Revision Petition No.340/2011-12 before the 7 Deputy Commissioner and the Deputy Commissioner allowed the writ petition, which was also not in the knowledge of the plaintiff. The plaintiff is residing at United Kingdom(U.K) along with her children and they came to know only from the power of attorney holder. Hence, filed this suit.
7. The case of the plaintiff in OS.No.787/2014 (in respect of RFA No.1327/2021) is that the plaintiff file suit for injunction against the defendants, alleging that the plaintiffs are the joint and absolute owner of the property bearing dry lands measuring in all 3¾ guntas lying in Sy.No.61/2, Revenue Khatha No.154 of Horamavu-Agara village, KR Puram Hobli, Bangalore East (earlier south taluk). The property was acquired under sale deed dated 08.04.1996 (hereinafter referred as suit schedule property). The khatha, M.R.Extract No.5/1996-97, RTC, Pahani for 8 the year 2011-12 stands in the name of the plaintiff and the plaintiff is paying taxes regularly, initially to the Horamavu Village Panchayat and thereafter to BBMP. From the date of purchase, they are in possession. The defendants having no manner of right, title or interest in the suit schedule property. They are trying to interfere by way of filing an application before the Tahsildar for canceling the Mutations in Sy.No.61/1 and 61/2. They also filed R.A.No.644/2007-08 before the Assistant Commissioner, Bengaluru North Sub-Division and the same was dismissed. In the revision RP.No.340/2011-12 before the Deputy Commissioner and the same was allowed, which was not within the knowledge of the plaintiff. The plaintiff had also approached the police for filing the complaint, but the police directed to approach the civil court, hence filed this suit.
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8. The defendant appeared through their counsel and filed written statement taking same contention in both the suits as under.
9. It is contended that suit is not maintainable the schedule property is non est property. There is no 6 guntas of land existing at any point of time in Sy.No.61/2 and 61/1 suit and it was created and manipulated documents. They have shown the wrong boundaries. The said suit schedule property cannot be identified. The entire land was 3 acres 16 guntas, the sale deed was executed on 7.9.1996 fraudulently and created mutations. The lands are still agricultural and there is no conversion of land.
10. It is further contended that the land in Sy.No.61/1 and 62/2 were previously numbered as Sy.No.52 measuring 3 acres 16 guntas which was vested with one Brahmin family possessed by one 10 Pattabhi Shastry of Ulsoor and after his demise his children succeeded the said lands and thus 1/3rd share of the land fallen to the share of his son Neelakanta Shastry and it was sold by is wife Smt.Nanjamma under sale deed dated 06.02.1895. Later, Sy.No.61 which was re-phoded and presently numbered as Sy.No.61/1 and 61/2. The rectification deed of the share purchase by above person and one Subbaraya Shastry, Rama Shastry and Nanjunda Shastry who had 2/3rd share have jointly sold in favour of Sannappa and Devaiahnavara Muniyappa under the registered sale deed dated 31.1.1898 with specific boundaries, the land were in the joint names. They are divided under oral partition and formed 1 acre and 28 guntas. Thereafter Sannappa sold 1 acre 28 guntas of southern portion of Sy.No.52 in favour of one Jogappa S/o Kallubarada Muniyappa under sale deed dated 13.3.1899. Later, Jogappa died and his 11 wife Smt.Bamma and son Munivenkatappa succeeded the property and sold 1 acre and 28 guntas in favour of Devaiah Channappa S/o Muniyappa under sale deed dated 14.05.1927. The said Devaiah Muniyappa is none other than the senior paternal uncle of Devaiah Channappa Devaiahnavara Ramanna died leaving behind Devaiah Channappa who become absolute owner. He had two sons, Maluraiah and Devaiah. During lifetime of Devaiah, the 2nd son of Channappa was minor and they needed fund for family legal necessities, approached Hanumappa @ Doddapillaiah for loan and obtained Rs.500. Accordingly, he executed registered mortgage deed on 31.03.1933. They failed to redeem the mortgage even after 5 years, thereby the mortgagee Hanumappa became absolute owner and the said mortgage deed was treated as absolute sale deed as per its recitement. 12
11. It is further contended that Hanumappa who is the grand father of defendant, had a son by name Nanjundappa, who succeeded the property of his father Hanumappa. After death of Nanjundappa, the defendant succeeded the said lands in Sy.Nos.61/1 and 61/2 measuring 3 acres 16 guntas and later came to know about the illegal alienations and creation of legal revenue records. Hence, they challenged the mutation entries before the Tahsildar, Assistant Commissioner and later the Deputy Commissioner, who allowed the revision in favour of the defendant. There was a sanction of mutation in MRH No.27/2012- 13 which, depicts name of the defendant. Later, the alleged purchaser approached the High Court in writ petition against the order of the Deputy Commissioner and High Court directed the Deputy Commissioner to pass necessary orders by allowing the said writ petition. The names of the defendants are still 13 showing in the RTCs. The defendant are in possession of the property in question. Therefore, claim of the plaintiff for purchasing the property under sale deed 07.09.1996 executed from Chikkamuniyappa does not arises at all. As per sections 48, 7 read with 54 of Transfer of Property Act (hereinafter referred to as 'TP Act'), when a person do not possess any right, title or interest over the property then question of transferring the right in favour of the plaintiff does not arises. If a Court Commissioner is appointed the true fact will depict. Hence prayed for dismissing the suit.
12. The defendants also denied the sale deed in favour of the plaintiff Nos.1 and 2, in respect of 3/4th guntas of land contending that the sale deed of plaintiff dated 7.9.1996 in favour of the plaintiff does not arise at all. Hence prayed for dismissing the suit. 14
13. Based upon the pleadings, the Trial Court framed the following issues in O.S.No.5294/2014,
1) Whether the plaintiff proves that she is in peaceful possession and enjoyment of suit schedule property?
2) Whether the plaintiff proves that
the defendants have interfered with
her peaceful possession and
enjoyment of suit schedule
property?
3) Whether the plaintiff is entitled for relief of permanent injunction?
4) What order or decree?
14. The GPA holder of plaintiff in OS.NO.5294/2014 examined a PW1 and he got marked 5 documents and defendant No.2 examined as DW1 and got marked 22 documents. After hearing the arguments the Trial Court answered the issue Nos.1 to 3 in favour of the plaintiff and decreed the suit, which is under challenge.
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15. The Trial Court framed 3 issues in O.S.No.787/2014 as below,
1) Whether the plaintiffs are in lawful possession and enjoyment of the suit property?
2) Whether the plaintiffs prove the interference of the defendants is true?
3) What order or decree?
16. In O.S.No.787/2014 the plaintiff No.2 Sadashivan examined as PW1 and got marked 9 documents and defendant No.2 examined as DW1 and got marked 22 documents . The defendants marked documents are one and the same in both cases.
17. The plaintiffs also are one and same family and represented by Sadashivan himself in OS.NO.784/2014 and GPA holder in O.S.No.1594/2014.
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18. The Trial Court after hearing the arguments answered the issues in favour of the plaintiffs and decreed the suit on the same day both these appeals are filed by the defendants Nos.2 and 3 as first defendant died during the pendency of the suit.
19. The learned counsel for the appellants- defendants, in both cases, strenuously contended that the judgment and decree passed by the trial Court is not sustainable. The defendants are in possession of the suit schedule property. By taking advantage of the names appeared in mutation entry, both the sale deeds were created and executed in favour of the plaintiff in the year 1996. Even after the sale deed, there are documents produced to show for having paid taxes to BBMP, there is no khatha in the name of plaintiff. The RTC extracts, mutation were all 17 pertaining to the year 1996. The suits were decreed only based upon possession on the ground that 13 suits were pending. The judgment of the trial Court holding that the plaintiff is in possession of the suit schedule property by way of sale deed, is not correct. The learned counsel further contended that the ancestors of the defendants got the property in the year 1933 itself by way of mortgage. If the mortgage is not redeemed even after five years, it becomes absolute sale deed and thereby, the defendants are the successors of the suit schedule property. The Deputy Commissioner's order reveals that it was in favour of the defendants. The plaintiff did not challenge the order of the Deputy Commissioner, but some other persons/site owners challenged the same. Therefore, the plaintiff is not entitled for any decree. The plaintiff cannot take the weakness of the defendants. There is no tax paid receipts produced 18 by the plaintiff. Ex.D.5 is the mortgage deed, which is a crucial document in favour of defendants. Therefore, it is contended that the plaintiff has failed to prove the lawful possession over the suit schedule property. Therefore, prayed for allowing the appeals and dismissing the suits.
20. Per contra, learned counsel for respondent- plaintiff has supported the judgment of the trial Court. It is contended that, in the writ petition, the High Court set aside the order of the Deputy commissioner and restored the mutation entries in favour of the vendors of the plaintiff and the plaintiff's name in the RTC. Once the sale deed is executed, the plaintiff becomes the owner of the property. As per Section 54 of the TP Act, the sale deed was executed and it was registered. There is no document to show that the mortgage was redeemed. The mortgage deed was 19 90 years old. If the mortgage was redeemed, the question of taking the contention that the defendants become the owner of the property does not arise. The defendants required to file a suit for foreclosure of the mortgage, which was not done. The defendants have not produced any document to show that they were having better title than the plaintiff for purchasing the property under the sale deeds. It is also contended that if at all the defendants are the owners of the suit schedule property, the tax paid receipts are not produced from 1933-2012. Therefore, the claim of the defendants is false and hence, prayed for dismissing the appeals.
21. Having heard the arguments of learned counsel for the parties, perused the records.
22. The points that arise for consideration are: 20
(i) Whether the plaintiff has proved that they are in lawful possession and enjoyment of the suit schedule properties and the defendants are trying to interfere in the possession as claimed in both suits ?
(ii) Whether the judgment and decree passed by the trial Court call for interference by this Court.
23. On perusal of the records, especially the evidence of P.W.1 in both cases, the plaintiff claims the right over the suit schedule property in respect of 33/4 guntas in Sy. No.61/2 and 6 guntas, a portion of land in Sy. No.61/2 respectively. P.W.1, as GPA holder of plaintiff in O.S. No.5294/2014 and the plaintiff in O.S.No.787/2014 filed affidavit in lieu of evidence and he got marked the sale deeds dated 7.9.1996 as per Ex.P.2 in O.S. No.5294/2O14 and Ex.P.1-sale deed dated 08.04.1996 in O.S No.787/2014 and the remaining documents such as 21 mutation register, Revenue record, tax paid receipts were all also got marked. It is the categorical contention of the plaintiff that plaintiff purchased the property on 7.9.1996 and 8.4.1996 from one Chikkamuniyappa, Nagaraja, Papanna, Suresh, Madesh, Akkayymma and Siddamma. In both the sale deeds, the recital available is that the property in Sy. No.61/2 belonged to one Sonnappa and later, Sonnpapa and his wife expired. Then their daughter Munilakshmamma also expired. One Chikkappa, the brother of Sonnappa got the land who is having two sons namely, Dodda Muniyappa and Chikka Muniyappa. As per the entry No.8/94-1995 dated 29.04.1995, Chikka Muniyappa becomes the owner of the property, he paid up-to-date taxes and sold the property to the plaintiff. The sale deeds produced by plaintiff in both cases were not disputed by the defendants.
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24. On the other hand, the case of the defendants is that the property was originally belonged to a Brahmin family i.e., Sri Pattabhi Shastry and after his demise, his children succeeded to the property and thus, 1/3rd share of the property had been fallen to Neelakanta Shastry, who sold the said property and it was purchased on 01.08.1895 from one Nanjamma. Subsequently, Subbaraya Shastry, Rama Shastry and Nanjunda Shastry sold their 2/3rd share in the property in Sy. No.52 under registered sale deed 31.01.1898 in favour of Sannappa and Devaiahnavara Muniyappa. There was oral partition in respect of 1 acre 28 guntas in southern portion of Sy. No.52. Thereafter, the said Sannappa sold southern portion to one Jogappa on 13.03.1899 and the said Jogappa died leaving behind his wife Byamma and a son Munivenkappa. Byamma and Munivenkappa sold 23 the extent of 1 acre 28 guntas in favour of one Devaiah Channappa on 14.05.1927. Devaiahnavara Muniyappa was the senior paternal uncle of Devaiahnavara Channappa. The said Devaiahnavara Muniyappa and Devaiahnavara Ramanna died leaving behind Devaiahnavara Channappa. Thus, Channappa became the absolute owner after death of the Devayanavar Ramanna. Channappa had two children, namely, Malurayya and Devaiah. When the said Devaiah was minor, his father Channappa, executed mortgage in favour of Hanumappa @ Doddapillaiah on 31.03.1933 for five years. The said mortgage was not redeemed even after five years, hence, Hanumappa became the absolute owner. The said Hanumappa was the grand father of defendants. Hanumappa had a son by name Nanjundappa, who succeeded the property and later, the defendants continued to be in possession of the property. The defendants challenged 24 the RTC entries before the Tahsildar as well as before the Assistant Commissioner in R.A. No.644/2007-08, which was dismissed, but the Deputy Commissioner allowed the revision petition in R.P. No.340/2011-12, which was challenged by the some other persons before this Court in various writ petitions and this Court set aside the order of the Deputy Commissioner in the writ petition.
25. Defendant No.2 was examined as D.W.1 and he got marked 22 documents in both cases, the copy of mutation entry, RTC extract were produced. The copy of the sale deeds dated 06.02.1895, 31.01.1898 and 13.03.1899 were also produced and those documents are not in dispute. However, subsequently on 14.05.1927, Channappa and Devaiah became owners. There was mortgage executed on 31.03.1933 in favour of Hanumappa, the grand father 25 of defendants. There was a condition in the deed that if the mortgage was not redeemed even after five years, Hanumappa, who is the grand father of the defendants, becomes owner of the property in Sy. Nos.61/1 and 61/2. The mortgage was not redeemed and thereby, the defendants claimed the property through the mortgage deed. During the cross examination, D.W.1 admitted that there were various sale deeds executed by Chikka Muniyappa and others. Almost 13 suits are pending against the defendants. It is not in dispute that there was mutation entry in the names of the vendors of the plaintiff and also in the revenue records. Subsequently, the entry in the revenue records was challenged by the defendants before the Tahsildar, which came to be dismissed. Thereafter, they filed regular appeal which also came to be dismissed. The copy of the order passed in R.A. No.644/2007-08 is produced and marked as Ex.P.20. 26 The copy of the order passed in RP.No.340/2011-12 by the Deputy Commissioner is marked as Ex.D.18, wherein the Deputy Commissioner allowed the revision and set aide the order of the Tahsildar as well as the Assistant Commissioner holding that Hanumappa was the owner of the suit schedule property. Admittedly, the Co-ordinate Bench of this Court has set aside the order passed by the Deputy Commissioner in W.P. No.11469/2014 (KLR-RR-SUR) on 29.02.2016 and has held that if the respondents claims right under a fraudulent sale deed, they have to establish in the civil Court. On the other hand, the respondent's counsel produced the order dated 07.01.2021 passed in Writ Petition No.33896/2014 wherein the Co-ordinate Bench has allowed the petition based upon the order passed by the another Co-ordinate Bench in W.P. No.11469/2014, which reveals that the plaintiff has already filed the petition 27 and got set aside the order of the Deputy Commissioner. Admittedly, the defendants have not filed any suit against the plaintiff and other purchasers by challenging the sale deeds and to set aside those sale deeds and to declare them as owners. On the other hand, under sale deed-Exs.P.1 and 2 respectively in both cases, the plaintiff has purchased the suit schedule property in the year 1996 and the plaintiff continues to be in possession of the suit schedule property. The tax paid receipts are produced. Of course, after falling of the property under BBMP, no taxes were paid by the plaintiff. However, in a suit for bare injunction, the plaintiff required to prove the lawful possession under the sale deed and interference of the defendants. The validity of the sale deeds cannot be looked into in the suit for bare injunction. As per Section 54 of the TP Act, when the sale deeds are produced for having 28 purchased the property, which was registered sale deed, the plaintiff becomes the owner. If at all, the defendants claim title over the property, they could have filed a suit for declaration to declare their title. Admittedly, they have not filed any suit. Merely producing the mortgage deed claming right through the mortgage deed is not acceptable. There is no evidence from the defendants' side, as to whether the mortgage is redeemed or not. The mortgage deed is pertaining to the year 1933. No document is obtained from the Sub-Registrar office to prove the contention that the mortgage is not redeemed. There no suit filed by the defendants for foreclosure of the mortgage in accordance with law. Therefore, merely claiming right over the property under mortgage deed is not enough until the defendants establish their rights in the competent Court of law.
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26. That apart, there are 13 suits filed by various persons against defendants which reveals that there were various sale deeds executed by the vendors who are owners of the property and one of the suit in O.S. No.786/2014 has been decreed and marked as Ex.D.22, which reveals that as many as 13 suits are filed against defendants. In all the suits, the defendants have taken the similar contention and trying to interfere with the suit schedule property. Therefore, the contention of the appellants' counsel that there is cloud over the plaintiffs' property, is not acceptable. If at all, the defendants claim right over the property, they have to establish in a suit filed against the plaintiff and original owners. Therefore, I hold that the plaintiffs are successful in proving that they are in lawful possession and enjoyment of the suit schedule property. On the other hand, the defendants are trying to interfere with the possession 30 over the suit schedule property. Hence, the suit for injunction against the defendants is maintainable. Hence, I answer point No.1 in the affirmative.
27. In view of the above said observation, the trial Court, on considering the evidence on record, has rightly decreed the suit, which does not call for interference. Though the appellants' counsel contends that the plaintiff is required to file a suit for declaration and injunction, but, in view of judgment of the Hon'ble Supreme Court in the case of ANATHULA SUDHAKAR Vs. P.BUCHI REDDY (DEAD) BY L.RS AND OTHERS reported in 2008 AIR SCW 2692, the said contention of the learned counsel for the appellants, is not acceptable to the present case on hand. Hence, the judgment and decree passed by the trial Court do not call for interference. Hence, I answer point No.2 in the negative.
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28. For the foregoing reasons, both the appeals are liable to be dismissed. Accordingly, the appeals filed by the appellants-defendants are hereby dismissed.
Pending I.As., if any, stand disposed of.
SD/-
JUDGE AKV/CS ct-SK