Karnataka High Court
Sri M Mallappa vs Sri T V Ramakrishna Reddy on 19 March, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
R.F.A.No.123/2012
BETWEEN:
SRI M MALLAPPA
AGED ABOUT 72 YEARS
S/O LATE MALLAPPA
PRESENTLY RESIDING AT
APARTMENT No.208
"HARA HOMES"
BHUVANESHWARINAGAR
BANASHANKARI III STAGE
BANGALORE - 560 085. ...APPELLANT
(BY SRI B R VISHWANATH, ADVOCATE)
AND:
1. SRI T V RAMAKRISHNA REDDY
AGED ABOUT 72 YEARS
S/O LATE T V VENKATA REDDY
RESIDING AT No.1 AND 2
NANJAPPA ROAD
SHANTHINAGAR
BANGALORE - 560 027.
2. THE BANGALORE DEVELOPMENT
AUTHORITY REPRESENTED BY ITS
COMMISSIONER
KUMARA PARK WEST
2
BANGALORE - 560 020. ...RESPONDENTS
(BY SMT.PUSHPALATHA G, FOR
HOLLA AND HOLLA, ADVOCATE FOR R1
SRI I G GACHCHINAMATH, ADVOCATE FOR R2)
THIS RFA IS FILED U/S 96 WITH ORDER XLI AND
RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED:14.10.2011 PASSED IN O.S.8543/1996 ON THE
FILE OF THE COURT OF THE XVI ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BANGALORE CITY(CCH-12)
DECREEING THE SUIT FOR THE PERMANENT
INJUNCTION.
THIS RFA COMING ON FOR FURTHER ARGUMENTS
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the appellant/2nd defendant-M. Mallappa, against the judgment and decree dated 14-10-2011 passed in O.S.No.8543/1996 by the learned XVI Additional City Civil and Sessions Judge, Bangalore, wherein, the suit of the plaintiff- T.V. Ramakrishna Reddy, came to be decreed, thereby permanent injunction was granted against the defendants restraining them or their agents and persons claiming under them from interfering with the plaintiff's peaceful possession of the suit schedule 3 property that forms a residential site/house property bearing Municipal No.5, Akkithimmanahalli Layout, Bangalore City, measuring East to West: 40 feet and North to South: 58 feet and bounded by East: Property No.6; West: property No.4; North: Property No.1 and 2 belonging to the plaintiff and South: Road.
2. In order to avoid confusion and overlapping, the parties herein are referred to in accordance with their rankings as held by them before the trial Court.
3. The substance of the facts of the plaintiff's case are:
Plaintiff claims to be the absolute owner in possession of the suit schedule property having purchased the same from Sri. K.P.Govinda Reddy under the registered Sale Deed dated 13-4-1992 and ever since the said purchase, he is in possession and enjoyment of the same. He has also conducted the acts of possession such as constructing compound wall of 8 feet height 4 with hallow bricks and house of the plaintiff having access to the schedule property and also using the same as backyard. Plaintiff claims to be a Civil Contractor by profession and he has been using the schedule property for storing the building materials. He mortgaged the scheduled property by depositing the title deeds. The defendants attempted to demolish the hallow bricks and they did not heed to the request of the plaintiff.
4. Defendants are two in Numbers viz., (1) Bangalore Development Authority and (2) M. Mallappa.
5. Insofar as 1st defendant-Bangalore Development Authority is concerned, it has questioned the very maintainability of suit for lack of notice under Section 54 of the Bangalore Development Authority Act. Further it is contended that the Corporation of City of Bangalore has no power to issue katha over the schedule property. It is contended that Bangalore Development Authority has not received any 5 representation from the plaintiff for re-conveyance. It is contended that, vendor one Smt. Varalakshmamma is said to have been given consent for reconveying the schedule property in favour of the 2nd defendant. Meanwhile one Nagaraj filed the suit against 2nd defendant Mallappa for injunction which came to be dismissed.
6. The contesting party for all practical purposes in the case is 2nd defendant-M. Mallappa. 2nd defendant filed written statement denying the plaint averments and contending that he purchased the suit schedule property through a registered Sale Deed dated 05.04.1984 from one M.Shivalingaiah and ever since the date of purchase, he is in possession and enjoyment of the same. It is further contended that vendor of the plaintiff had no right to convey title nor to deliver possession of the schedule property to any body much less the plaintiff. The documents relied upon by the plaintiff has no legal validity.
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7. It is contended that one K.P.Govinda Reddy got title set up falsely and created document and brought the title and possession into existence which were nowhere. It is claimed that the land in Survey No.37 to the extent of 1 acre 29 guntas belonged to a joint hindu family of M.Shivalingaiah. The partition of the schedule property was effected in their family and the schedule property came to be allotted in favour of M.Shivalignaiah, who formed sites and sold them to different persons. In the said process, the suit schedule property was sold to this defendant. Thus, the sites formed by M.Shivalingaiah according the 2nd defendant is the reckoning point. This defendant also gave representation to the Bangalore Development Authority for re-conveyance and he had put up construction of compound wall. The site is stated to be owner's share and the suit is on the part of owner's share as contended by 2nd defendant.
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8. With the above pleadings and contentions of the parties on hand, the learned trial Judge adjudicated the matter by considering the aspect of lawful possession of the plaintiff over the schedule property, interference by defendants and entitlement of the plaintiff for the relief of permanent injunction and the related.
9. The learned Judge was accommodated with the oral evidence of PW1-T.V.Ramakrishna Reddy and documentary evidence of Exs.P1 to P44 on behalf of plaintiff and oral evidence of DW1-M.Mallappa, DW2- V.Veerabhadraiah and DW3- Murthy and documentary evidence of Exs.D1 to D30 on behalf of defendants.
10. The learned trial Judge refers that the title of the plaintiff originated from one K.P.Govinda Reddy under the registered sale deed dated 13.04.1992 also considers the averments of the plaintiff regarding the existence of compound wall on the schedule property, 8 entrance to the schedule property using the same as backyard.
11. Learned trail judge goes on the lines of the pleadings and the documents produced by the plaintiff and also considered the contentions of the defendants who contends rightlessness of the plaintiff over the schedule property and decreed the suit of the plaintiff, which is challenged by the 2nd defendant in this appeal.
12. The appellant/2nd defendant contended that the vendor of the plaintiff has no right. At the same time, neither the vendor had title nor possession to convey the same to the plaintiff under the registered sale deed dated 13.4.1992. The boundaries given regarding schedule property in the said sale deed are all fictitious. Learned trial Judge also observes the reliance of Possession Certificate and the letter issued by the Deputy Commissioner stating the imposing of ban on reconveyance. Thus, Ex.D13 sale deed dated 9 5.4.1984 in favour of K.P.Govinda Reddy had not conveyed any title to him in respect of the schedule property.
13. Learned counsel for appellant/2nd defendant would further submit that the documents produced by plaintiff do not substantiate or fortify the claim. The learned trial Judge has considered the oral evidence of the plaintiffs and defendants and places reliance on the sale deed and title deeds referred therein and decreed the suit and the same is challenged in this appeal.
14. Learned counsel for appellant/2nd defendant, would submit that out of no where schedule property is tried to be brought into existence though such property never existed. Learned counsel would further submit that in the light of registered sale deed, if any, brought into the existence by the plaintiff and his vendor, it is nothing but the document of convenience for the 10 plaintiff to make a false claim over the schedule property.
15. Learned counsel for the appellant/2nd defendant would submit that the findings of learned trial judge regarding the possession and interference of the schedule property is not based on the realities or the relevant facts.
16. Learned counsel for plaintiff/1st respondent Smt. Pushpalatha, G. for Holla and Holla, would submit that hierarchy of the title of the property fortifies the claim of the plaintiff. The title and possession over the schedule property of the plaintiff is evidenced by series of documents in the form of title deeds, namely, the registered Sale Deed dated 13.04.1992 by vendor K.P.Goivinda Reddy which is marked as Ex.P4. Learned counsel also would submit the competent authorities have recognized and identified the right, title and interest over the schedule property for the plaintiff. The 11 plaintiff made out a good case on merits and established the title, possession of prima facia and on merits in respect of the schedule property. Accordingly and rightly, the trial Judge decreed the suit on the basis of oral and documentary evdience.
17. It is necessary to consider the claim of the plaintiff over the schedule property, which is a vacant space and compounded by the plaintiff also being used as backyard to the house. The plaintiff is getting utility from the schedule property for storing the construction material as he is stated to be a Civil Contractor. The Sale Deed in favour of the plaintiff is Ex.P4 dated 13.04.1992.
18. During the trial, the document was marked as Ex.P4 which is a registered sale deed dated 13.4.1992 executed by one K.P.Govinda Reddy infavour of one T.V. Ramakrishna Reddy. The vendor of T.V.Ramakrishna Reddy/plaintiff in Ex.P4 is stated to have acquired title 12 over the suit schedule property i.e. site No.5 and the schedule property being the house site at Akkithimmanahalli Layout coming under the limits of Corporation Division No.64.
19. It is necessary to place on record that there is no reference under which the vendor of the plaintiff has acquired the title. It supports a things at mentioning katha number before the Corporation of the City of Bangalore in No.DAE:64:PR:387:1991 dated 21.2.1991. The sale consideration for which the plaintiff purchased the schedule property is stated to be Rs.1.75,000/-. The property mentioned therein is: All that piece and parcel of house bearing Municipal katha No.5 situated at Akkithimmanahalli Layout, coming within the limits of Corporation of City of Bangalore Division, No.64 being bounded on the East by: Property No.6; West by: Property No.4, North by: property Nos. 1 and 2 and South by Road.
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20. However, insofar as plaint is concerned, plaintiff Mr. T.V.Ramakrishna Reddy succeeds the source of title.
21. It is stated in para-6 of the plaint as under:
" The plaintiff submits, that as he was in dire need of funds for his contract works, he barrowed a sum of Rupees fifty thousand from the Karnataka Contractors' Credit Co-operative Society Limited, Bangalore, as a security for the loan he barrowed, he had deposited original title deeds relating to the schedule property with the said Creditor and the deposit of title deeds with the creditor was registered as per the Memorandum of Deposit of Title Deeds dated 14.11.1992 registered as document No.2705/993, Volume 1615 at pages 149 to `151 of Book I in the office of the Sub-Registrar, Jayanagar, Bangalore City. The plaintiff also paid the property taxes to the Bangalore Mahanagara Palike since the date of his purchase of he schedule property. Thus, it is clear, the plaintiff is the absolute owner in possession of the schedule property."
22. Plaintiff claims that earlier he borrowed a sum of Rs.50,000/- from Karnataka Contractors' Credit Co- operative Society Limited, Bangalore, on the strength of the security of the schedule property by creating 14 mortgage of deposit of title deeds and has deposited the title deeds with the said mortgagee bank and states that he produced the said mortgage deed which is dated 14.11.1992 registered as document No.2705/92-93 Volume No.1615 at Pages 149 to 151, Book -I in the office of the Sub Registrar, Jayanagar, Bangalore City. Having said thus, it is necessary to mention that plaintiff does not mention the date of registered sale deed. Regard being had to the fact that Ex.P4 the sale deed is relied upon.
23. Smt. Pushpalatha, learned counsel for 1st respondent/plaintiff would submit though the details of the registered sale deed are not mentioned in the plaint, plaintiff has produced the sale deed dated 13.04.1992 that was executed by K.P.Govinda Reddy.
24. Insofar as the said Sale Deed is concerned, as I have stated already, the boundaries to the East- West and North-South are as under:
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East by: Property No.6;
West by: Property No.4, North by: property Nos. 1 and 2 and South by: Road.
25. It is necessary to mention that the boundaries stated in the sale deed as stated above and the one stated in the schedule of the plaint is one and the same, as the property claimed in the plaint is, Site No.5 of Akkithimmanahalli layout, Bangalore. Incidentally, the said site Number is reflected in the registered Sale Deed- Ex.P4. (K.P.Govinda Reddy got it from Smt.Varalakshmamma).
26. It is submitted by learned counsel for plaintiff/1st respondent that vendor of the plaintiff K.P.Govinda Reddy under Ex.P4 had purchased the schedule property from one Smt. Varalakshmamma under the registered sale deed dated 26.3.1971. The said document is marked as per Ex.D3, which pre 16 supposes that it was filed in the trial court by the 2nd defendant. However, the plaintiff has not chosen to file the title deed of his vendor nor the reference. However, insofar as the Sale Deed dated 26.3.1971 is concerned, seller of the property therein is one ".Varalakshmamma"
and purchaser is one "K.P.Govinda Reddy". At the cost of repetition, it is reminded that said K.P.Govinda Reddy is stated to have acquired the title and he sold the same to the plaintiff. Regard being had to the fact that no reference of the sale deed is forthcoming in the plaint as to whether in respect of the Sale Deed in favour of the plaintiff nor the one in favour of his vendor registered as document No.3291 of the year 1970-71 page 76-79 Volume No.134 of Book No.I dated 1.4.1971 by the Sub- Registrar office, Jayanagar, Bangalore.
27. Two properties are stated to have been sold under the said document Ex.D3 by said Varalakshmamma in favour of K.P.Govinda Reddy. The 17 description of location of the properties is:
Akkithimmanahalli village in Survey No.37. Item No.1 is the site/plot bearing No.3 measuring East to West 114 ft. and North to South 37 feet. bounded by:
East by: Site No.2 that was sold by vendor Varalakshmamma to one Narayana Reddy:
West by: Road leading to Church;
North by: 30 ft. road formed in the same survey
Number
South by: Property of Jayalakshmamma and Kodandaramaiah sold by Shankarappa.
Item No.2 is the site/Plot bearing No.4 measuring East, West and North 126 ft. and west by 17 ft and North-South by 103 feet bounded on:
East by: Church property; West by: Land in SurveyNo.35; North by: Remaining land of the vendor South by: Remaining land of the vendor. 18
28. Thus, there are two properties which are stated to have been sold by said Varalakshmamma in favour of K.P.Govinda Reddy, the vendor of the vendor of the plaintiff.
29. The material problem that would arise is, the plaintiff has not mentioned the reference of the Sale Deed in the plaint. Further difficulty is, it is also not mentioned in the plaint. Learned counsel submitted that the title document is Ex.P4 which is the registered sale deed in respect of the schedule property that was executed by his vendor K.P.Govinda Reddy and the vendor's vendor is one Varalakshmamma and the said document is marked as Ex.D3 and the stalement continuous even in the sale deed of Varalakshmamma that was executed in favour of K.P.Govinda Reddy. The details of her title deeds is not mentioned in Ex.D15.
30. Learned counsel for plaintiff/1st respondent would submit in respect of the title of M.Shivalingaiah 19 in respect of schedule property, the proceedings in RRT No.319/78-79 dated 10-12-1991 would confirm and fortify the title of Varalakshmamma, wherein Shivalingaiah, petitioner before Tahasildar consented for joint katha of the schedule property in favour of Varalakshmamma. The suit for permanent injunction filed by the plaintiff literally goes in the way for obtaining the possession against the interference. When the plaintiff avers or when the defendant in his written statement states that title of the plaintiff is denied and when it appears to be a formal denial without being supported by substantial documents, a suit for permanent injunction may suffice. But when the denial of the document is corroborated by the documents, records maintained by the competent authority and where the defendant is continuously assertive in denying the title of the plaintiff, it suggests the suit is to be the one for declaration of title. However, it cannot be the case that the moment the defendant 20 denies and says that the plaintiff has to put to strict proof that the suit should be filed for declaration of title.
31. Insofar as the concept of possession is not an isolated type and it presupposes the lawful possession which is supposed to be lawful at the time of entry by the person claiming, of course, certain times a person, enters unlawfully by virtue of a subsequent event, unlawful possession may turn out to be a lawful possession. But the said aspect is absent.
32. In a suit for the remedy of injunction, invariably it is necessary that the possession must be lawful which makes it clear that when a person who claims possession in his intention feel that he was entitled for it legally.
33. Learned counsel for plaintiff/1st respondent would submit that the plaintiff/1st respondent has produced series of documents issued by Revenue 21 Authorities or Bangalore Development Aauthority. In this connection, it is necessary to mention upto to a particular stage, the title claimed by the plaintiff is not under any title deed, it is not that an ownership of a person over the property invariably be supported by a registered sale deed or other kind of deeds.
34. There are cases wherein without any registered documents from the competent authority title may be of good one as ancestral property which has been devolved among on the descendants of forefathers may not possess any title deeds in respect of the said property nor it is mandatory to get the property to be registered in the office of the Sub Registrar. However, when the title and possession are not enclosed to the ownership, the person claiming must invariably and precisely mention the circumstances under which the property was owned by himself or his ancestral or the joint family as the case may be and as to how they 22 devolved upon him or his earlier ancestors and such assertion should be corroborated by the necessary and relevant revenue or municipal or corporation records.
35. Here, the title deeds starts after the advent of Varalakshmamma who executed the sale deed in favour of K.P.Govinda Reddy under Ex.D3 and her title is Shivalingaiah gave consent to Tahasildar to open joint katha. With all these, it is also seen that there are two sites which are numbered as 3 and 4 that are covered by the registered sale deed, Ex.D3, executed by Varalakshmamma in favour of K.P.Govinda Reddy. Incidentally, in the sale deed executed by K.P.Govinda Reddy in favour of the plaintiff reference is there to site No.5. Thus, apart from non mentioning of the details, the site numbers differs. Basically, irregular and illegal layouts crop up like mushrooms in the city of Bangalore. The site numbers bears no relevant as they are not approved nor a copy is submitted to the 23 competent authority and maintained by them wherein certified copy is available for verification. Out of two properties that are sold in favour of K.P.Govinda Reddy, the property that was sold to K.P.Govinda Reddy by Varalakshmamma which is bounded on the west by site No.4.
36. As I have pointed out earlier, revenue layouts are formed without any basis, was there any regulations and throwing all the other mandatory provisions to air having no bearing of relevancy. However, when the parties/litigants claim against each other for limited and isolated purpose, the location of the properties without any relevance to the title may be verified under certain circumstances. In this connection, it is necessary to mention in the title deeds executed in favour of plaintiff- T.V.Ramakrishna Reddy by K.P.Govinda Reddy, the west boundary is mentioned as 'property No.4'. The schedule property is stated as "site No.5' that is nowhere finds a place in the title deed of 24 K.P.Govinda Reddy. Besides, the reference of the deed is also not forthcoming. Apart from site Number being mentioned as '5' , boundary of the schedule property is mentioned as site No.4. Thus, it substantially made clear that the plaintiff's title deed which he is not produced by himself for the reasons bet known to him and the site numbers sold under Ex.D3 which is the title deed of the vendor of the plaintiff, the site number sold are: 3 and 4 and the plaintiff claims relief in the suit for site No.5.
37. Regard being had to the fact that the properties sold by Varalakshmamma in favour of K.P. Govinda Reddy are two in number and they are site Nos. 3 and 4. Ex.P1-Endorsement relied upon by the plaintiff's counsel does not come to his aid in any manner.
38. Learned counsel for plaintiff/1st respondent would submit that present suit is not for a declaration of title and plaintiff is in possession from the date and 25 2nd defendant has not produced documents to disprove the claim of the plaintiff and the possession of the plaintiff as upheld by the legal principles propounded in the following citations:
(i) M.Kallappa Setty Vs. M.V. Lakshminarayana Rao - AIR 1972 Supreme Court 2299;
(ii) Rame Gowda (D) by LRs. V. M. Varadappa Naidu (D) by LRs and another - AIR 2004 Supreme Court 4609;
(iii) New Okhla Industrial Development Authority Vs. Desh Raj and Another - (2010) 15 Supreme Court Cases 451.
I find that the plaintiff does not get aid from the principles laid down in the said decisions.
39. In totality of the circumstances of the case, plaintiff has miserably failed to establish possession of the schedule property in its true nature, measurement 26 and identify. The plaintiff has to sink or sail on the basis of his own assertion and not on the loopholes or the infirmities in the case of the defendant. When a mere possession is claimed it should be shown to be lawful. When the possession over the property is claimed with respect of defuncto possession lawful possession has to be established. When possession is claimed as an incident to title by the plaintiff, the title must be verifiable and support the claim of the plaintiff. Otherwise, the possession is no possession. In the circumstances, the learned trial judge miserably failed to appreciate the evidence in their true perception and appears to have unnoticed the rightlessness of the plaintiff over the suit schedule property. As stated above, I find that such a decree is liable to be set aside and suit is liable to be dismissed. Hence, I proceed to pass the following ORDER The appeal is allowed with costs throughout. 27 The judgment and decree dated 14-10-2011 passed in OS No.8543/1996 by the learned trial Judge is set aside. Consequently, the suit of the plaintiff is dismissed.
Sd/-
JUDGE tsn*