Karnataka High Court
Sri R Anjeni vs Smt Sheela Jagadish on 7 November, 2023
Author: K. Natarajan
Bench: K. Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
REGULAR FIRST APPEAL NO.2034 OF 2017
BETWEEN:
SRI. R. ANJENI
AGED ABOUT 42 YEARS
S/O SRI. K. RAMASWAMY,
R/O NO.72, SWATANTRANAGAR,
CHIKKA BASAVANAPURA,
VIRGONAGAR POST,
BENGALURU - 560 049.
... APPELLANT
(BY SRI. A.M.VIJAY, ADVOCATE)
AND:
SMT. SHEELA JAGADISH
AGED ABOUT 44 YEARS,
W/O LATE M. A. JAGADISH,
R/A 15TH MAIN, 3RD CROSS,
VANNARPET LAYOUT, VIVEKNAGAR,
BENGALURU - 560 047.
... RESPONDENT
(BY SRI. S. NAGABHUSHANA, ADVOCATE)
THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER
XLI RULE 1 READ WITH SECTION 96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED: 01.08.2017 PASSED IN
OS.NO.26379/2011 ON THE FILE OF THE XXVI ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING
THE SUIT FOR PERMANENT INJUNCTION.
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THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 14.9.2023 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant/plaintiff under Section 96 of CPC for setting aside the judgment passed by the XXVI Additional City Civil ands Sessions Judge Mayo Hall, Bangalore in O.S.No.26379/2011 dated 01.08.2017 for having dismissed the suit of the plaintiff.
2. Heard the arguments of learned counsel for appellant and learned counsel for respondent. The appellant was the plaintiff and the respondent was defendant before the Trial Court. The ranks of the parties are retained for the sake of convenience.
3. The case of the plaintiff is that the plaintiff has filed suit for permanent injunction restraining the defendant from interfering with the possession and 3 enjoyment of the suit schedule property, alleging that the plaintiff was the owner of the Site No.63, Khatha No.24 at Basavanapura Village, K.R. Puram Hobli, Bengaluru East Taluk, measuring 30 x 40 feet (herein after referred as the "suit schedule property") was purchased from previous vendor Sri.D.Nataraj s/o Sri.Doreswamy dated 09.04.2010. He was put in possession and paid taxes to BBMP. This property has been formed from Sy.No.24(P) of Basavanapura Village, which was darkhast land. Originally the land was granted to one Sri.Doreswamy, the father of the vendor of the plaintiff on 12.3.1979 measuring 1 acre 20 guntas. The said darkhast land belongs to Scheduled Caste. On 01.09.1977 a certificate was granted under the Regularization of Unauthorized Occupancy scheme and a Saguvali chit was issued by tahzildar on 19.4.1979. Later, after death of the original grantee, the vendor of the plaintiff 4 Sri.D.Nataraj, under a Released Deed dated 25.4.2006 was executed by the wife of the Sri.Doreswamy and other children. Accordingly, sites were formed by Sri.D.Nataraj and was sold to the plaintiff. Accordingly, plaintiff is in possession of the schedule property. The defendant, when came near the property on 25.7.2011 and was trying to encroach the property, hence the suits came to be filed.
4. The defendant appeared and filed written statement contending that the plaintiff is a trespasser, having no title or interest over the property. The plaintiff's vendor's parents by name Doreswamy and Ranjithamma had sold the land on 01.06.1995 in favour of one Sri.E.Venkatesh under the registered sale deed. Later, on 24.11.1995, title has been divested in favour of the defendant. Then, the vendor of the defendant has sold the site in favour of one Smt.Savitha under sale deed dated 01.03.2004 and 5 she has paid the taxes. Smt.Savitha sold the property in favour of the defendant under sale deed dated 15.04.2010. The defendant has remitted the taxes to BBMP. The Assistant Commissioner passed an order and Deputy Commissioner also passed an order and the same was questioned by Sri.E.Venkatesh before the High Court in writ petition and a stay was granted by the High Court. In the writ petition, Sri.D.Nataraj is the respondent No.4, who is the vendor of the plaintiff. The plaintiff's vendor has no locus standi to execute the sale deed in favour of the plaintiff, as the suit schedule property is the subject matter in O.S.Nos.8050/2005, 2360/2007 and the W.P.No.9407/2007. Therefore, the sale deed of the plaintiff is lis-pendency and the plaintiff obtained the sale deed by fraud. Hence, without suit for declaration of title, the bare injunction is not maintainable. Hence, prayed for dismissing the suit. 6 Based upon the pleadings the Trial Court framed following issues,
1) Whether the plaintiff proves that he was in lawful possession of the suit schedule property, on the date of the suit?
2) Whether plaintiff proves the alleged interference?
3) What decree or order?
5. In support of the plaintiff's case, plaintiff examined himself as PW1 and got marked 31 documents. In support of defendant, she herself was examined as DW1 and got marked 32 documents. After hearing the arguments, the Trial Court answered the issue Nos.1 and 2 in negative and dismissed the suit. Being aggrieved by the dismissal of the suit, the plaintiff has filed this appeal.
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6. Learned counsel for plaintiff has contended that father of the vendor of the plaintiff was the grantee of the land and after the death of grantee, the property was succeeded by the plaintiff's vendor. The site was formed and it was sold to the plaintiff by his vendor. Further contended that the plaintiff's father and his wife sold 20 guntas of land in favour of one Sri.E.Venkatesh under sale deed dated 01.06.1995 under Ex.P15 and said Sri.E.venkatesh sold the same to two persons i.e., on Suvalal Jain and Dheeraj Kumar on 24.09.1999. The defendant said to have purchased from Sri.E.Venkatesh, the defendants have no title over the property. The dimension and identity of the property was not in dispute. The plaintiff purchased the property from original grantee on 09.04.2010 as per Ex.P1 . The vendor of the plaintiff was elder son, and a release deed was executed in his favour. Based upon released deed, he has sold the 8 property to the plaintiff. The vendor of the defendant Smt.Savitha purchased property from one Naresh but has not retained any property, as he has sold property to one Suvalal Jain. Sri.E.venkatesh not retained any property therefore, no title flows to the defendant. The Trial Court committed error in dismissing the suit and not considered the documents of the plaintiff. Hence prayed for allowing the appeal.
7. The learned counsel for the respondent has objected the appeal and supported the judgment of the Trial Court and contended that the site was purchased by the defendant's vendor. Once the property has been sold by the original grantee to the vendors, the question of retaining the land does not arises. The Release Deed executed by the wife and children in favour of the plaintiff's vendor is the created documents, there is a cloud over title of plaintiff. Therefore, suit for bare injunction is not 9 maintainable. The plaintiff has no title over the property. The Ex.D1 is "Disclaimed Affidavit" dated 17.1.2012, and hence prayed dismissing the appeal.
8. Having heard the arguments and perused the records, the point that arises for my consideration are;-
1) Whether plaintiff proves she was in lawful possession and enjoyment of the property?
2) Whether suit for bare injunction is maintainable?
3) Whether judgment of the Trial Court calls for interference?
9. On behalf of the plaintiff himself was examined as PW1 and got marked 31 documents. On behalf of the defendant she was examined as DW1 and got marked 32 documents. Both of them filed affidavit evidence in support of their cases. On 10 perusal of the documents, it is not in dispute that the land in Sy.No.24 was a granted land, darkhast land which was granted in favour of the one Doreswamy, the father of the vendor of the plaintiff, Sri.D.Nataraj which was measuring 1 acre and 20 guntas. The Saguvali chit was also issued on 19.4.1979. It is the case of the plaintiff, that after the death of the Sri.Doreswamy, the wife of Sri.Doreswamy and other children, executed the Release Deed in favour of Sri.Nataraj who is the elder son of Sri.Doreswamy and inturn he formed the site and one of the site sold to the plaintiff. Whereas, the claim of the defendant was that the land in question Sy.No.24 was admitted that it was granted land in favour of Sri.Doreswamy. It is contended that the said Sri.Doreswamy and his wife Smt.Ranjithamma sold the said land in favour of one Sri.E.Venaktesh vide sale deed dated 01.06.1995. On 24.11.1995, the title was divested in favour of the 11 vendor of the defendant, who sold the suit schedule site in favour of Smt.Savitha on 01.03.2004. The khatha was changed in the name of Smt.Savitha and tax also filed. The defendant purchased the said site from the said Smt.Savitha on 15.04.2010. In the cross examination of the PW.1, he has admitted that he came to know the sale deed was executed in favour of Smt.Savitha by Sri.E.Venkatesh who purchased 20 guntas of land from the father of his vendor and said Sri.E.Venkatesh sold the site to Smt.Savitha and also he says that he do not know that there was stay in W.P.No.9470/2007, in respect of 20 guntas of land and also says do not know the sites were formed in 20 guntas of land.
Sri.E.Venkatesh has power of attorney for Suvalal Jain and a suit for specific performance was filed which is pending. On the other hand, Ex.D1 is the "Disclaimer Affidavit" executed by the very vendor of 12 the plaintiff stating that the site No.63, is the owner and the said site including 20 guntas of land sold to one Sri.E.Venkatesh and he inturn sold to Smt.Savitha on 01.03.2004. Subsequently, Smt.Savitha sold the site in favour of the defendant Sheela Jagadish on 15.04.2010. It has been stated that by bonafide mistake he has executed sale deed in favour of the present plaintiff. Subsequently, he has realized there was sale deed in favour of the defendant. Therefore, he has executed these affidavit. These document was not seriously disputed by the plaintiff. The Ex.D2 is the order passed in writ petition for having dismissed the writ petition filed by Sri.E.Venkatesh, in respect of the same land, where the Sri.D.Nataraj was the 4th respondent, as in view of the death of the respondent No.4, petition was abated. The Ex.D7 is the sale deed executed by the Sri.E.Venkatesh in favour of Smt.Savita, the vendor of the defendant. The 13 Exs.D8,D9, D11 and D12 are the tax receipts. Ex.D13 is the tax declaration by the vendor of the defendant to the BBMP in the year 2006-07. Ex.D.14 is also a tax declaration. Exs.D15 and 16 are Encumbrance Certificate showing the name of the Sri.E.Venkatesh for having purchased the site by the Smt.Savitha from Sri.E.Venkatesh. Ex.D17 is the Khatha Extract. Ex.D18 is the endorsement. Ex.D19 is Khatha certificate. Exs.D20 to 22 are the tax receipts. Ex.D23 and D24 are the BESCOM Bills. Exs.D25 to 28 are the photographs. Exs.D30,31 and 32 are the original one certified copy of the sale deed for having purchased the site from defendant from the vendor Smt.Savitha on 15.4.2010. These documents reveals, the defendant have purchased the schedule site from the Smt.Savitha in the year 2010, whereas the vendor of the defendant, purchased said site from Sri.E.Venkatesh in the year 2004 itself. There was 14 cases pending in the civil court and writ petition also pending before the High Court. During that time, the very vendor of the plaintiff executed the sale deed in favour of the plaintiff on 09.04.2010 and he has executed "Disclaimed Affidavit" as per Ex.D1 that he has mistakenly executed sale deed in favour of the plaintiff, which clearly reveals the sale deed of the plaintiff is having cloud over the title. Therefore, the plaintiff required to file suit for declaration and injunction to declare herself as owner of the property. When the plaintiff's vendor himself stated that he has executed Ex.D1, but he has mistakenly executed sale deed, the plaintiff cannot derive any right, title over the property. On the other hand, the defendant was successful in showing that the property in question was purchased by Smt.Savitha, the vendor of the defendant. Subsequently in 2010, she has purchased the property and the tax receipts, khatha extract, all 15 reveals, the defendant vendor was continued to be in possession and later the defendant was in possession of the schedule property. Such being the case, filing the suit of bare injunction, is not maintainable. As held by the Hon'ble Supreme Court in ANATHULA SUDHAKAR VS. P.BUCHI REDDY (DEAD) BY L.RS & ORS reported in 2008 AIR SCW 2692, for suit for bare injunction is not maintainable Accordingly, I answer the point Nos.1 to 3, in the negative.
For the above said reasons, the appeal filed by the appellant deserves to be dismissed.
Accordingly, the appeal is dismissed.
Sd/-
JUDGE AKV