IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL No.1345 OF 2003 BETWEEN Smt. Byramma, W/o. Late Sri. M.Venkatappa, Aged about 80 years, Residing at No.13/1, Vinayaka Cross, Bendrenagar, Kadirenahalli, Banashankari 2nd Stage, Bangalore-560070.
Represented by her General Power of Attorney Holder Sri. V.Muniraju S/o. Smt.Byramma, Age: Major, Residing at No.13/1, Site No.8, Bendrenagar, Kadirenahalli Village, B.S.K., 2nd Stage, Bangalore-560070. ….Appellant (By Sri. P.D.Surana, Advocate) AND 1. Smt. Sarasvathi, W/o. Late Sri. K.Gopal Krishna, No.13/1, Site No.2, Bendrenagar, Vinayaka Temple Road, B.S.K. 2nd Stage, Bangalore-560070.
2. Sri. Anil Kumar, S/o. Smt. Sarasvathi, Age: Major, Residing at: No.31/1, Site No.2, Bendrenagar, Vinayaka Temple Road, B.S.K. 2nd Stage, Bangalore-560070. …Respondents (By Sri. C.Prakash, Advocate, for R1, Sri. M.S.Varadarajan, Advocate, for R2) This RFA is filed under Section 96 of CPC., against the order dated 23.08.2003 passed in O.S.No.933/98 on the file of the VII Additional City Civil Judge, Bangalore City, CCH No.19, dismissing the suit for permanent injunction.
This RFA having been heard and reserved on 16.11.2017, coming on for pronouncement this day, the Court pronounced the following :
JUDGMENT The plaintiff in O.S.No.933/1998 on the file of VII Addl. City Civil Judge, Bengaluru, has preferred this appeal aggrieved by the judgment and decree dated 23.08.2003. The substance of the pleadings is as follows:
2. The plaintiff is represented by her power of attorney holder V. Muniraju who is none other than her son. She claims to be the absolute owner being in possession of property bearing Site No.4 in Sy.No.13/1 of Kadirenahalli Village, Uttarahalli Holbi, Bengaluru South Taluk measuring East to West 48 ft. and North to South 29 ft. (hereafter referred to as ‘suit property’). She states that the suit property was allotted to her under a registered partition dated 24.9.1980. Even before that, there had taken place a partition on 15.2.1973, and in this partition her husband had obtained the suit property. She constructed a house in a part of the suit property and in the remaining portion she raised flower plants and coconut plants. The 1st defendant is her daughter and that the 2nd defendant is the son of the 1st defendant. The plaintiff has alleged that for a over a period of one year, the 1st defendant used to put pressure on her to give the suit property to her (1st defendant). When the 1st defendant came to know that she would not get the suit property, with a malfide intention to grab the same, she along with her son i.e., 2nd defendant came near the suit property and tried to trespass over the same by removing the flower plants and damaging the fence that the plaintiff had put around the suit property. Again on 22.1.1998 the defendants came near the suit property and damaged the flower plants and the fence. Since the interference of the defendants continued, the plaintiff brought a suit for permanent injunction to restrain the defendants from interfering with her peaceful possession and enjoyment of the suit property.
3. In the written statement the defendants admitted the relationship but denied allegations against them. They specifically contended that land in Sy.No.13/1 of Kadirenahalli, Uttarahalli Hobli, Bengaluru South Taluk totally measuring 16 guntas fell to the share of Venkatappa i.e., the father of the 1st defendant and husband of the plaintiff. In the year 1987, her father was in need of money for providing finance to his sons viz., V. Murthy and V. Muniraju for their business purpose. At that time Venkatappa volunteered to sell two sites bearing Nos.2 and 3 in Sy.No.13/1 each measuring 40 x 52 ft. to the 1st defendant. Having received Rs.40,000/- out of the total consideration of Rs.50,000/- from the 1st defendant, Venkatappa put the 1st defendant in possession of two sites and executed a sale agreement in her favour on 26.6.1987. On 21.3.1989, Venkatappa executed a regular settlement deed in respect of Site No.2 in favour of the 1st defendant. The registration of sale deed of another site was not persisted by the 1st defendant as she was in possession of the same and that the relationship between her and her parents was cordial and good. Only after death of Venkatappa on 10.7.1996, the controversy arose at the instance of her brother V. Muniraju who claimed to be power of attorney holder of the plaintiff. His intention was to grab site No.3. The plaintiff was also a signatory to the sale agreement executed by Venkatappa. Actual subject matter of the suit is site No.3. The plaintiff has filed the suit giving wrong description of the property. The defendants have also stated that on 30.6.1987 Venkatappa executed a general power of attorney in favour of the 1st defendant authorizing her to deal with the above sites in the manner she liked. She was also given power of alienation. In these circumstances the 1st defendant executed a sale deed in favour of 2nd defendant in respect of suit property i.e., bearing No.3 on 12.8.1987 and it came to be registered also. On the basis of the sale deed, the 2nd defendant obtained Katha in his name and has been in possession. The plaintiff has no manner of right to claim the title or possession over the same and therefore the suit has to be dismissed.
4. The trial court framed the following issues.
i) Whether the plaintiff proves that she has been in lawful possession over the suit schedule property?
ii) Whether the plaintiff further proves that there was any interference by the defendants?
iii) Whether plaintiff is entitled to the suit premises?
iv) What order or decree?
5. The power of attorney holder viz. V. Muniraju adduced evidence as PW-1 and produced four documents Exs.P.1 to 4. From the defendants’ side, two witnesses DW.1 and DW.2 adduced evidence and produced 8 documents as per Exs.D.1 to 8. The learned trial judge after appreciation of the evidence came to conclusion that from the evidence placed by the plaintiff before the court it was not possible to identify the suit property. He held that since the defendants also laid their claim on two sites bearing Nos.2 and 3 on the basis of an agreement of sale and a power of attorney marked as Exs.D.1 and D.2, the description given by the plaintiff regarding suit property was insufficient for its identification. Moreover the plaintiff claims that her tenant Lakshmamma was living the suit property and to prove her possession, the plaintiff could have examined the said Lakshmamma. Therefore the trial court dismissed the suit.
6. The appellant has filed an application under Order XLI Rule 27 CPC for production of two documents-(1) a certified copy of the gift deed in favour of first respondent and (2) a sketch of the property bearing Survey No.13/1 of Kadirenahalli Village. The GPA holder of appellant has stated in the affidavit that he was not aware of the gift deed when the suit was pending before the trial court. This gift deed pertains to site No.5. When he was searching for documents to ascertain as to how the first respondent could possess site No.5, he came to know about the gift deed executed by his father and then applied for the certified copy of the same and obtained it on 20.7.2012. He states further that this gift deed makes it clear that the suit property is located towards the North of the gifted property and thus helps to decide the appeal.
7. The respondents have not filed objection statement to this application. I heard arguments on this application along with merits of the appeal.
8. The first respondent/first defendant is none other than his sister. If his father had executed the gift deed, and the first defendant was in possession of site No.5, whatever he has stated that he did not know about the gift deed executed by his father is difficult to be believed. But the learned trial judge has held that identity of the suit property is not established; and for this reason, if the gift deed and the sketch are helpful, Order XLI Rule 1(b) CPC can be invoked to receive these documents and with the help of these documents, an attempt can be made to examine whether identity of suit property is proved. Hence his application is allowed. There is no need to record oral evidence on these two documents, for a comparison of the boundaries mentioned in the gift deed and the sketch with the boundaries given in Exs. D1 and D2 is enough to draw inferences. The learned counsel for appellant also did not submit that oral evidence was necessary. It is not always necessary that oral evidence on the additional documents should be recorded, it all depends on circumstances.
9. Assailing the judgment of the trial court, the learned counsel for the appellant argued that the learned trial judge has erroneously held that the identity of the suit property has not been established, and that the evidence produced by the plaintiff has not been properly appreciated. The sketch produced by the plaintiff gives clear location of the suit property. The temple is situated in between the two sites that the defendant claims. The boundaries given in the gift deed show that towards the North, land of Venkatappa is situated. It is in this northern side land the suit property is situated. Therefore he argued that the identity of the suit property is established.
10. The learned counsel for the respondents/defendants argued that the sketch produced by the appellant by way of additional evidence cannot be considered as it is not approved by any authority and that it is drawn by the appellant to his convenience. The measurements of the sites as shown in the sketch have been reduced to carve out a site which is alleged to be suit property. The agreement of sale executed by Venkatappa in favour of first defendant contain correct boundaries, and therefore the trial court has not erroneously held that identity of suit property is not established.
11. Upon considering the arguments, the point that arises for consideration is, whether the finding of the trial court that identity of the suit property is not established, is correct?
12. In a suit for permanent injunction with respect to immovable property, if the defendant disputes the identity of the suit property, no decree against the defendant can be granted unless identity of the suit property is established besides proving possession of the plaintiff on the date of suit and interference by the defendant. The plaintiff claims to be in possession of suit property that bears site No.4. PW1, in the cross examination states that two sites bearing Nos. 2 and 5 belong to the defendants. The sketch that the plaintiff has produced by way of additional evidence also depict a picture that sites bearing Nos. 2 and 5 belong to the first defendant and that the suit property is situated towards North of site No. 5 and further that a temple has been shown to be in existence towards South of site No. 2 and North of site No. 4.
13. The appellant/plaintiff has produced documents, marked Exs. P1 to P4. Ex. P1 is the death certificate of Venkatappa and Ex. P2 is a GPA executed by plaintiff in favour of her son i.e., PW1. The other two documents, are a settlement deed dated 15.2.1973 (Ex. P3) and a partition deed (Ex. P4). Ex. P3 and Ex. P4 are not disputed; in fact from these two documents the title of Venkatappa is traceable. These two documents do not help plaintiff to prove the existence of the suit property, the reason being that only after a partition took place as per Ex. P4, Venkatappa transferred the possession of two sites bearing Nos. 2 and 3 to his daughter, i.e., the first defendant by executing an agreement of sale on 26.6.1987. The boundaries given in Ex. D1 show that in between site Nos. 2 and 3 there is a temple. Now if the gift deed produced by the appellant/plaintiff by way of additional evidence is seen, what can be understood is that Venkatappa gifted two guntas of land in S.No.13/1 of Kadirenahalli Village to his daughter, i.e, the first defendant on 30.10.1980. In this deed, the northern boundary is shown as Venkatappa’s land and the southern boundary as Vishalakshamma’s land. This property does not bear site number. Gift deed was executed much before Venkatappa executed Ex. D1 in favour of his daughter. Ex. D2 is a settlement deed dated 21.03.1989 executed by Venkatappa in favour of his daughter in respect of site No. 2. Ex. D4 is a sale deed dated 12.8.1997 executed by first defendant in favour of her son, i.e., the second defendant in respect of site No. 3. In Exs. D1 and D4, the southern boundary of site No. 3 is shown as property of Saraswathamma, i.e., first defendant. It is very important to mention here that the plaintiff has not challenged Exs. D1 to D4. Therefore, by juxtaposing the boundaries given in the gift deed with boundaries given in Exs. D1 to D4, it is possible to infer that the property gifted to first defendant on 30.10.1980 may be the one shown to be in existence towards south of site No. 3.
14. Further in Ex. D1, the measurement of each site is shown as 40x52 ft. In the settlement deed, Ex. D2, the measurement of site No. 2 is shown as East to West 60 ft and North to South 40ft. In Ex. D4, the measurement of site No. 3 is shown as 30ft (East to West) and 52 ft (North to South). Therefore, there are discrepancies with regard to measurement. But the sketch produced by the plaintiff gives a different picture about measurements. Moreover the sketch appears to have been prepared by PW1. It is not authenticated. Although there are discrepancies about measurements of the sites shown in Exs. D1 to D4, it cannot be a ground for accepting the measurements given in the sketch and believe that suit property exists in between the temple and site No. 5. It is for the plaintiff to prove the identity of the suit property and he cannot depend on weakness of the defendants. DW1 has not been questioned with regard to the measurements. An attempt is made while cross-examining DW2 to elicit from him about measurement of the temple. It is his clear answer that his grand father had given or set apart a piece of land for the temple even prior to execution of deeds in his mother’s favour. The additional documents produced by the appellant do not better her case. Therefore re-appreciation of evidence leads to concur with the finding of the trial court that identity of suit property is not established. I do not find any infirmity in the judgment of trial court though it is cryptic.
15. From the above discussion, I hold that the appeal fails. It is dismissed with costs.
Sd/- JUDGE sd