IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE H.P.SANDESH REGULAR FIRST APPEAL NO.2619/2007 (INJ) BETWEEN:
M.P. GUNDAPPA SON OF LATE PUTTASHAMAIAH AGED 61 YEARS RESIDENT OF MALLATHAHALLI VILLAGE YASHWANTHPURA HOBLI BENGALURU NORTH TALUK-560 085. ... APPELLANT (BY SRI. N.S.HIREMATH, ADV., FOR M/s. VAGDEVI ASSOCIATES) AND:
SMT. P. CHUDAMANI W/O. K.A. PRABHAKARA AGED 46 YEARS R/O. NO.814 5TH MAIN ROAD VIJAYANAGAR BENGALURU. ... RESPONDENT (SRI. R. PUSHPAHASA, ADV.,) THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 03.10.2007 PASSED IN O.S.NO.410/2001 ON THE FILE OF XI ADDITIONAL CITY CIVIL JUDGE, BENGALURU (CCH-8), DECREEING THE SUIT FOR PERMANENT INJUNCTION.
THIS RFA IS COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed against the Judgment and Decree dated 3.10.2007 passed in O.S.No.410/2001 on the file of XI Additional City Civil Judge, Bengaluru City, (CCH-8), questioning the granting of decree in favour of the plaintiff.
2. The parties are referred to as per their original rankings before the Court below as plaintiff and defendant in order to avoid the confusion and for the convenience of the Court.
3. Brief facts of the case are:
The plaintiff is the absolute owner in possession of the suit schedule property. The schedule property is site No.54 situated at Nagarabavi Main Road, Govindarajanagara in Ward No.38, Bengaluru. It measures East to west 40 feet and North to South 55 feet, which consists of a shed and bore-well besides the compound wall with gate on all the four sides. The plaintiff has purchased this property from its previous owner Smt. Gowramma through a registered Sale Deed dated 6.2.1998. Since then, the plaintiff is in lawful possession and enjoyment of the schedule property. The plaintiff name has also been entered in the concerned municipal records and also has paying the taxes. Therefore, the suit schedule property comes within the jurisdiction of Bruhat Bengaluru Mahanagara Palike. On 5.9.1998, she has paid the fee towards the Khatha registration charges of Rs.820/- and on 12.3.1998, towards the development charges of Rs.21,115/-. The schedule property also assessed to the taxes and the plaintiff has paid the municipal taxes for the years 2000 to 2001. Khatha Certificate has been issued in the year 1998 itself.
Earlier to purchase of the same, it was situated within the Grama Panchayath jurisdiction of Nagarabavi of Yeshwanthpur Hobli, Bengaluru North Taluk. Earlier the vendor of the plaintiff had purchased schedule property from one Basappa through a registered Sale Deed dated 29.1.1996. The defendant is an utter stranger, who has no manner of right, title and interest over the schedule property. On 10.1.2001, he came along with 5 to 6 anti social elements near the schedule property at about 4 p.m. and tried to interfere with the plaintiff’s peaceful possession and enjoyment of the schedule property. Besides, the plaintiff, he also tried to dispossess the husband of the plaintiff who was present at that time. But due to the timely intervention of the passers-by, otherwise the defendant could have achieved his illegal acts. Hence, without any other go except filing the suit, he has filed the present suit.
4. The defendant appeared through the Counsel and filed the written statement contending that the schedule property belongs to his grand father and the schedule property is situated within Sy.No.83 of Nagarabhavi village. The said Sy.No.83 totally measures 10 acres, 1 gunta belonging to the family of the defendant, the same is an ancestral property. The defendant’s grandfather sold an area of 1 acre 20 guntas of land in favour of Hutchappa and 5 acres 20 guntas of land in favour of one Muniswamaiah. The remaining area of 3 acres 1 gunta is in possession of the defendant over which nobody can make a claim. The area retained by the defendant’s family is sub divided and renumbered as Sy.No.83/1 situated towards the eastern side. The plaintiff cannot lay her hands in respect of Sy.No.83/1 which has not been alienated in favour of any other persons including the vendors of the plaintiff. The son of Hutchappa i.e., Lakkanna had filed a suit in O.S.No.4722/1988 and obtained an ex parte decree against the defendant. Being aggrieved by the said Judgment, the defendant had filed RFA No.762/1996 in the High Court. The High Court by it’s Judgment dated 15.12.1998, held that only 7 acres of land was sold by the defendant’s grand father and for that area only, the plaintiff was entitled for injunction. In respect of the remaining area, the injunction was granted in favour of the defendant. Further, the High Court had remanded the matter for adducing the evidence on behalf of the defendant and accordingly he led the evidence and the suit is pending. By virtue of the order passed in RFA No.762/1996, the present suit is not maintainable in respect of Sy.No.83/1, which measures 3 acres and 1 gunta. If the plaintiff is referring any extent of area coming within the area of 7 acres of land, then the defendant has no objection for the grant of injunction in favour of the plaintiff. The plaintiff has not properly given the identity of the property. The schedule property is unidentifiable and there is no such Khatha. The plaintiff is required to identify her site with reference to the survey number. Therefore, by reading of the schedule, it gives an indication that the plaintiff is making a claim in respect of the area coming under Sy.No.83/1. Since the said land has been retained by the defendant, she cannot claim any right, title and interest over the area of the defendant. It is further contended that in respect of the area coming under Sy.No.83/1 of Nagarabhavi Village, various persons have filed the suits in O.S.Nos.927/2001, 928/2001, 930/20001 and 931/2001 and also other suits. In some of the suits, the injunction sought for have been rejected and hence, the plaintiff is not entitled for an order of injunction.
5. Based on the pleadings of the plaintiff as well as the defendant, the Court below has framed the following issues:
“1. Whether the plaintiff proves that she is in lawful possession of the suit schedule property as on the date of the suit?
2. Whether the plaintiff further proves that the defendant is interfering with the possession of the suit schedule property?
3. Whether the plaintiff is entitled for the relief of injunction as sought for?
4. What order or decree?”
6. The plaintiff in order to prove her contentions, she herself orally examined as PW.1 and got marked the documents as Exs.P1 to P18. The defendant also orally examined as DW.1 and got marked the documents as Exs.D1 to D19. The Court below having heard the arguments of both the counsel, decreed the suit. Hence, the present appeal.
7. In the appeal, the appellant/defendant would contend that the Court below has committed an error in decreeing the suit. The Court below fails to take note of the documents produced by the defendant. The very conclusion of the Trial Court is that the appellant had not proved about Sy.No.83/1, is clearly unsustainable. It is contended that, it is an admitted fact that the reading of Exs.P1 and P2 goes to show that the alleged site purchased by the plaintiff claims title through her vendor-in-predecessor namely, Lakkanna @ Lakka Shettappa and Lakkanna himself was not successful against the present appellant in O.S.No.4722/1988 had already been dismissed. The plaintiff, who is claiming her title through Lakkanna cannot maintain the suit itself as her vendor-in-predecessor failed to his case in respect of Sy.No.83/1. The Trial Court had relied upon the photographs of the plaintiff, but had not considered the photographs of the appellant, which clearly indicates the possession of the shop by the appellant. Even though, the evidence of PW.1 has not proved her possession and enjoyment of the property, the Court below wrongly comes to the conclusion that she has proved her case. The Sale Deed produced by the plaintiff was not even sufficient for granting injunction. The reasoning adopted in paragraph No.36 is clearly illegal and though the title of the appellant is proved, he has to made recover the possession by taking recourse to law. The further observation made in paragraphs No.36 and 37 is erroneous and hence, the Judgment impugned is otherwise illegal, arbitrary and unsustainable.
8. Learned counsel appearing for the appellant, in his arguments, he reiterated the grounds urged in the appeal and also the defence taken in the written statement. The learned counsel mainly made an attack on the ground that earlier Judgment and Decree was challenged before this Court in RFA No.102/2003 and the same was allowed and remanded to Trial Court and thereafter also in RFA Nos.579/2009 and 662/2009, the Court held that the properties are not identifiable and also the plaintiff has suppressed the fact and hence not entitled for any relief at the hands of this Court. Taking into consideration of the order passed by this Court, the Counsel would contend that the Court below has committed an error in decreeing the suit mainly considering the evidence of DW.1, he has also categorically admitted that the photographs were taken standing in front of the shop and any one can take the photos standing in front of the shop and based on the photographs granting an order of injunction amounts to miscarriage of justice and it requires an interference of this Court.
9. Per contra, the learned counsel appearing for the respondent/plaintiff, in his arguments, he would contend that the Court below while decreeing the suit, considered the evidence of PW.1 and also the evidence of DW.1, though the defendant/appellant claims that the suit schedule property comes within the purview of Sy.No.83/1, nothing has been placed before the Court and categorically admitted in the cross-examination that he could not identify in which survey number, the suit schedule property comes and hence, the Court below taking into the note of the admission elicited from the mouth of DW.1, has rightly decreed the suit. It is further contended that it is a suit for bare injunction and the scope of the suit for injunction is very limited and the Court cannot give any finding with regard to the title and only to seek whether the plaintiff has proved his possession as on the date of the suit and hence, the Court below did not commit any mistake in appreciating the evidence and it does not require any interference by this Court.
10. Having heard the arguments of the learned counsel appearing for the appellant/defendant and also the respondent/plaintiff, the points that arise for consideration of this Court are:
(1) Whether the Court Below has committed an error in decreeing the suit and granting the permanent injunction in favour of the plaintiff and it requires an interference of this Court?
(2) What order?
11. Point Nos.1 and 2: The sum and substance of the claim of the plaintiff before the Trial Court is that she has purchased the property from one Smt. Gowramma and thereafter the plaintiff has been in possession of the property and revenue records are standing in the name of the plaintiff. The plaintiff also paid the developmental charges in favour of the Municipality and Khatha stands in the name of the plaintiff. The plaintiff in order to substantiate the contention, examined herself as PW.1 and got marked Exs.P1 to P19.
12. The contention of the defendant in the written statement is that his grand father has retained 3 acres and 1 gunta of land in Sy.No.83 after selling 7 acres of land and this suit schedule property comes within Sy.No.83 and after retaining property to the extent of 3 acres and 1 gunta, the same has re- numbered as Sy.No.83/1. The other contentions are that the suit schedule property cannot be identifiable and hence, the plaintiff is not entitled for the relief of permanent injunction.
13. In keeping the contention of both the plaintiff and also the defendant, this Court has to re- appreciate the evidence since this Court is the First Appellate Court and being a First Appellate Court can consider the facts as well as the question of law. Having considered the evidence available on record, this Court would like to refer the evidence of PW.1. PW.1, in her evidence reiterated the averments of the plaint and relied upon the documentary evidence and she was subjected to cross-examination. In the cross- examination of PW.1, defendant’s counsel elicited the answer from the mouth of PW.1 that she cannot tell whether the suit schedule site comes within 7 acres of land or 3 acres 1 gunta of land and also not produced the sketch in respect of the suit schedule property. It is suggested that in terms of Exs.P13 to P16 i.e., photographs, which shows the shed that was constructed by the defendant and the same was denied that she is not aware of it. But she claims that her vendor has constructed the same and given to her. PW.1 admits that the door of the shed was closed and she obtained the photos standing in front of the said shed. It is suggested that suit schedule property comes within 3 acres 1 gunta of land and the same was categorically denied.
14. DW.1 also reiterated the averments made in the written statement, in his evidence, he also relied upon the documents - Exs.D1 to D19 and he was subjected to cross-examination. In the cross- examination, he admits that he has given the power of attorney in favour of one Sri Mohan Kumar, Kolar, who forms the sites and to sell the same in respect of 3 acres 1 gunta of land, which he is claiming the right in respect of the property. The power of attorney is also confronted given in favour of Mohan Kumar and the same is admitted and marked as Ex.P18. DW.1 also admits that now the property comes within the limit of Bruhat Bengaluru Mahanagara Palike, but denies that the suit schedule property is subjected to tax assessment by Bruhat Bengaluru Mahanagara Palike. It is elicited that he is not aware of the measurement mentioned in the suit and also does not know the description of the suit schedule property mentioned in the suit, but admits that he has seen the suit schedule property. It is also elicited that a shop was constructed in the suit schedule property and there is a rolling shutter to the said shop, but he claims that the said Mohan Kumar has constructed the said shop. Photos were confronted as Exs.P19 and P20 with regard to the existence of the shops. It is elicited from Exs.P19 and P20, that the plaintiff was standing in front of the said shop. It is also elicited in the said photos that the plaintiff’s husband and also the employee, who is working in the shop are standing inside the shop. It is also elicited that in terms of Exs.P13 to P16, the said shops are constructed in the suit schedule property. It is suggested that the plaintiff has been paying the tax and witness does not deny the same and given an answer that she might be making the payment, but claims the same not in respect of her property. It is suggested that in terms of the photographs, the plaintiff has been in possession of the suit schedule property and the same was denied. But she claims that the shop belongs to her and they have taken the photo illegally standing in front of the said shop, but, she has not given any complaint when she has taken the said photographs. It is also elicited that she had not filed any suit for declaration and also it is elicited that she cannot tell the measurement and boundaries of the suit schedule property. It is suggested that she falsely claimed that the suit schedule property comes within Sy.No.83/1 and the same has been denied. It is also elicited that she cannot give the description and boundary of Sy.No.83/1, the entire extent. It is elicited that she can produce the documents in respect of Sy.No.83/1 including the partition deed under which she is claiming the right and also not filed any suit for seeking the relief of declaration. It is also elicited that in terms of Ex.D13, she cannot tell where the suit schedule property comes. It is suggested that the suit in O.S.No.4722/1988 was dismissed and hence, she is claiming the right in respect of the suit schedule property and he admits the same.
15. Having considered the oral and documentary evidence, the evidences of PW.1 and DW.1, it has to be noted that the present suit is filed for the relief of bare injunction. The plaintiff is claiming that she has been in possession in respect of the suit schedule property and the relevant documents are standing in her name. On the other hand, it is the claim of the defendant that the suit schedule property comes within Sy.No.83/1 and to the extent of 3 acres and 1 gunta was retained by the defendant. No doubt, in the cross-examination, PW.1 has admitted that she cannot tell whether the suit schedule property comes within 7 acres of land or within 3 acres of land, which has been retained by the defendant. When the suit is filed for the relief of permanent injunction, the Court cannot extend its hand to trace out the title and only scope of the Court is with regard to examine the lawful possession as on the date of filing the suit, whether the plaintiff has been in possession or not. The suit was filed in the year 2001. The plaintiff in order to substantiate the contention that she has been in possession in respect of the suit schedule property, she relies upon the document-Ex.P1-Sale Deed of the year 1998 and also Ex.P2-Sale Deed of the Vendor of the plaintiff of the year 1996. The plaintiff also relied upon Ex.P3-Khatha Certificate; Exs.P4 & P5-Tax paid receipts; Exs.P6 & P7 – Betterment charges paid receipt and so also Ex.P8 – Khatha Certificate; Ex.P9 – Notice under Section 143 of Karnataka Municipal Act; Ex.P10 – Assessment of property taxes; Exs.P11 and P12 are the encumbrance certificates; Exs.P13 to P16 are the photos and Ex.P17 is the Bill and Exs.P19 and P20, which was confronted to the witness and so also the power of attorney executed by the defendant in favour of one Mohan Kumar, which has been admitted by P.W.1.
16. On the other hand, the defendant relied upon Ex.D1 - the certified copy of Pahani; Ex.D2 – Mutation; Exs.D3 and D4 – certified copy of the RFA Judgment and Decree; Exs.D5 and D6 – certified copy of Judgment and Decree; Ex.D7 – Certified copy of the order; Ex.D8 – certified copy of order of Assistant Commissioner; Ex.D9 – Certified copy of order of Tahasildar; Ex.D10 – certified copy of order of J.D.L.R; Ex.D11 – certified copy of Tippani; Ex.D12 – certified copy of atlas; Ex.D13 – certified copy of sketch; Ex.D14 – certified copy of order of Assistant Commissioner; Exs.D15 to D18 are the photographs and receipt of photo as Ex.D19.
17. Having considered both the oral and documentary evidence, it is an admitted fact and also the evidence of the witnesses that now the property comes within the limit of Bruhat Bengaluru Mahanagara Palike. D.W.1 also has categorically admits the same in the cross – examination and P.W.1 in order to substantiate that the tax has been paid in favour of the Municipality and Khatha stands in her name and also produced the documents. Both the parties have not disputed the fact that the shop is in existence in the suit schedule properties. It is also elicited in the cross-examination of both the witnesses that the shop is in existence. Both the plaintiff and the defendant have claim that they are in exclusive possession of the said shop. It is pertinent to note that Exs.P19 and P20 were confronted to D.W.1 during the cross-examination of D.W.1. D.W.1 in the cross-examination specifically admitted that the plaintiff is standing in front of the said shop in terms of Exs.P19 and 20. It is also elicited in the cross- examination of D.W.1 that in the said photographs, the husband of the plaintiff and also the worker, who is working with the plaintiff in the shop both are standing in the said shop. On perusal of the photographs – Exs.P19 and P20, it is clear that the plaintiff husband and worker are doing the business. It is also admitted in the cross-examination of D.W.1 that in terms of Exs.P13 to P16-photographs, the said shop was constructed in the suit schedule property. When the clear admission is given by D.W.1, he cannot contend that the suit schedule property cannot be identified as contended in the grounds of appeal and also in the written statement. It is pertinent to note that she claims that the said shop was constructed by one Sri Mohan Kumar. But while cross-examining P.W.1, it is on contrary, a suggestion was made that the same was constructed by Gundappa i.e., defendant himself and hence, it is clear that the defendant is not sure about, who had constructed the said shop, whether Mohan Kumar or himself. If really, the defendant had constructed the said shop and he has been in possession as claimed in the evidence, the defendant ought to have placed the material before the Court, but his stand is contrary to his own evidence. It is pertinent to note that he categorically admits that in respect of 3 acres and 1 gunta of land, which he retained already given the power of attorney in favour of the said Mohan Kumar in terms of Ex.P18. The same had admitted in the cross-examination when the document was confronted to him and when he has already given the power of attorney and on the basis of his power of attorney, he has formed and sold the sites, he cannot claim that he has been in possession in respect of the suit schedule property. It is also pertinent to note that his claim is that the said Mohan Kumar had constructed the said shop. If really, the said Mohan Kumar, who is his power of attorney has constructed the said shop, the defendant ought to have examined the said Mohan Kumar before the Lower Court, but he has not examined him. This Court has already pointed out that the Court cannot go into the title of the parties and only to consider whether the plaintiff had been in possession that too in lawful possession as on the date of the suit. When the material placed before the Court as well as the admission elicited from the mouth of D.W.1, it is clear that the plaintiff has been in possession of the suit schedule property. The very contention of the appellant’s Counsel that the Court below has committed an error in decreeing the suit in favour of the plaintiff cannot be accepted. The Court below from paragraph No.30 of the Judgment has clearly opined that one shop has been constructed and photos are confronted which are marked as Exs.P19 and P20 and existence of the shop was also not in dispute in paragraphs No.31 to 33 in detailed discussion with regard to the possession is concerned. In paragraph No. 34 also discussed with regard to the claim of the defendant that till date, it is only a survey number, but further observed that during the course of cross examination of P.W.1, once again it was reiterated that Sy.No.83 has been sub divided as Sy.No.83/1. During the course of cross-examination, D.W.1 has deposed without converting the said land into non-agricultural land, Mohan Kumar had formed the sites. Therefore, contradictory theories put forth by the defendant will not help the case of the defendant.
18. Having considered the material available on record, the Court below has formed its definite opinion in paragraph No.37 that the material available on record goes to show that the plaintiff’s lawful possession and also the settled position over the suit schedule property. Hence, the claim of the defendant is nothing but it amounts to an interference and having considered the material available on record, the Court below has rightly comes to the conclusion that the plaintiff was successfully proved the possession as on the date of filing of the suit. When the Court below did not commit any error in appreciating an evidence available on record, this Court cannot form any other opinion and also forming other opinion itself is not a reason to set aside the Judgment and Decree and only if it amounts to miscarriage of justice, then only the Court can reverse the findings of the Trial Court and I do not find any such circumstances to interfere with the order of the Trial Court. Hence, there is no merit in the appeal.
19. In view of the discussions made above, I proceed to pass the following:
ORDER The appeal is dismissed.
20. In view of dismissal of the main appeal, Misc.Civil.No.19593/2010 does not survive for consideration and the same stands disposed of.
cp* Sd/- JUDGE