IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY REGULAR FIRST APPEAL NO.1532 OF 2015 BETWEEN:
Smt.Manjula, W/o Rangaswamy, Aged about 39 years, R/o Papamma’s Compound, 4th A Cross, Abbigere Main Road, Kammagondanahalli, Jalahalli West, Bangalore – 560 015.
(By Sri.Prasanna V.R, Advocate) AND:
1. N.Pugazendi, S/o S.K.Neelam, Aged about 50 years, R/o No.BB-2, BHEL, Township (EPD), Sector-B, 8th Main, Malleshwaram West, Bangalore – 560 055.
2. Gangappa, S/o late Chikkanjinappa Aged bout 70 years.
…Appellant 3. Smt.Gangamma, W/o Gangappa, Aged about 64 years.
4. Smt.Madhavi, W/o Nanjegowda, Aged bout 36 years.
Respondents No.2 to 4 R/o Papamma’s Compound, 4th A Cross, Abbigere Main Road, Kammagondanahalli, Jalahalli West, Bangalore – 560 015.
…Respondents (By Sri.D.N.Ramachandrappa, Advocate for R-1; Sri.Venkatesha.M, Advocate for R2 and R3; Sri.J.V.Srinivas, Advocate for R4) **** This Regular First Appeal is filed under Section 96 R/W Order XLI Rule 1 of the Code of Civil Procedure, 1908, praying to set aside the judgment and decree dated 25.06.2015 passed in O.S.No.2344/2013 on the file of the XXIV Additional City Civil and Sessions Judge at Bangalore and allow this appeal with costs.
This Regular First Appeal coming on for Hearing this day, the Court delivered the following:
JUDGMENT The present appellant was defendant No.3 in the Court XXIV Additional City Civil and Sessions Judge, Bangalore City (CCH-6), (hereinafter for brevity referred to as the “Trial Court”) in O.S.No.2344/2013, which was initiated by the present respondent No.1 as plaintiff arraying the present appellant and the present respondent Nos.2, 3 and 4 herein as defendant Nos.3, 1, 2 and 4 respectively for the relief of permanent injunction.
2. The summary of the case of the plaintiff in the trial Court was that the plaintiff is the absolute owner in possession and enjoyment of the suit schedule property, which is shown to be a site bearing Old No.56/2, New No.5-A, Katha No.1408, situated at Kammagondanahalli Village, Yeshwanthapura Hobli, Bangalore North Taluk, presently situated at 4th ‘A’ Cross, Papamma Compound, Abbigere Main Road, Kammagondanahalli, Jalahalli West, Bangalore – 560 015, measuring East-West 20 feet, North-South 45 feet having purchased the same from one Sri.A.Gurunanjundaiah under a registered Sale Deed dated 08.10.2002 for a valuable consideration. According to the plaintiff, the possession of the suit schedule property was handed over to him on the very same day of execution of the Sale Deed. Since then, he has been in lawful possession and enjoyment of the suit schedule property by paying the necessary taxes on the property to the Corporation authorities continuously.
It is his further contention in the plaint that on 17.03.2013, the defendants and their men came near the suit schedule property and tried to dig up a trench with an intention to put up construction. Though he could able to defeat the said attempt with the help of neighbours, still he is apprehending that the defendants may interfere in his peaceful possession once again. He had also lodged a complaint to the jurisdictional police, who advised to approach the competent Civil Court as the matter was civil in nature. Thus, he was constrained to institute the present suit.
3. The defendants appeared through their counsel. Defendant Nos.1 and 2 in their written statement denied the plaint averments and contended that it is they, who are in peaceful possession and enjoyment of the suit schedule property, which fact was suppressed by the plaintiff. They further stated that they are the sole and absolute owners in peaceful possession and enjoyment of the suit property measuring 12+15+18/3 and North to South 40 feet having acquired the same under the General Power of Attorney and affidavit by one Sri.A.Gurunanjundaiah, S/o Sri Patel Anjaneyappa on 02.05.1994 for valuable consideration. It is because of the Fragmentation Act, which was in force, a registered Conveyance Deed could not be executed in their favour. As such, they have been in peaceful possession of the property as the owners thereof. They also stated that, at no point of time, they have alienated the suit schedule property in favour of the plaintiff. On the other hand, they stated that they were in requirement of financial assistance from the plaintiff as he is one of the friends. Considering the said friendship, he paid the amounts and at the time of payment of the amount, the plaintiff sought for some security for the said amount. Taking advantage of the same, the plaintiff insisted them to execute some document in his favour as a security. Accordingly, they have agreed to do so and taking advantage of the situation, the plaintiff played fraud on them by getting the Sale Deed in his favour for a meager amount. They further denied the plaint averments that they had interfered in the alleged possession of the property by the plaintiff on 17.03.2013.
4. Defendant Nos.3 and 4 also filed their written statement separately. They have stated that defendant Nos.1 and 2 are their father and mother respectively. As such, all of them were constituting a joint family. Among the joint family, defendant No.1 was the Karta of defendant Nos.1 to 4. They stated that the suit schedule property was acquired by them jointly from their family fund. As such, defendant Nos.1 and 2 cannot sell the said property in favour of anybody. They further contended that their father – defendant No.1 was addicted to liquor and that he was a habitual drunkard. Hence, by misleading defendant No.2, the plaint schedule property was sold to the plaintiff. They have stated that their mother i.e., defendant No.2, had no worldly knowledge and she was an illiterate lady. Hence, defendant No.1 in collusion with the plaintiff by making use of the illiteracy and innocence of defendant No.2, sold the property to the plaintiff with malafide intention and for his habitual consumption of liquor.
5. Based on the pleadings of the parties, the trial Court framed the following issues for its consideration:-
‘1. Whether plaintiff proves that he is in lawful possession of the suit schedule property as on the date of the suit?
2. Whether the plaintiff further proves the alleged interference of the defendants?
3. Whether the plaintiff is entitled for the reliefs as claimed?
4. What decree or order?’ 6. In support of the case of the plaintiff, he got himself examined as PW1 and got marked documents from Exs.P1 to P9. PW1 was not cross- examined from the defendants’ side. Defendants also failed to adduce any evidence from their side. The trial Court by its impugned judgment and decree dated 25.06.2015, while answering issues No.1, 2 and 3 in the affirmative proceeded to decree the suit as prayed for by the plaintiff. However, made an observation that if at all the plaint suit schedule property is the joint family property and if at all defendant Nos.1 to 4 have got any right, title or interest over the suit schedule property, then they are at liberty to workout their remedy in a separate suit seeking comprehensive relief, if they so desire. It is against the said judgment and decree, defendant No.3 in the Court below has preferred this appeal.
7. The Lower Court records were called for and the same are placed before this Court.
8. Heard the arguments of the learned counsel from both side and perused the materials placed before this Court, including the memorandum of appeal, the impugned judgment and the lower Court records.
9. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.
10. In the light of the materials placed before this Court, the following points arise for my consideration in this appeal:-
i) Whether the plaintiff has proved that he has been in lawful possession and enjoyment of the suit schedule property as on the date of the institution of the suit?
ii) Whether the plaintiff has proved that defendants have interfered in his alleged possession of the suit schedule property as averred by him in his plaint?
iii) Whether the judgment and decree under appeal deserves interference at the hands of this Court?
11. The plaintiff in support of his case, got examined himself as PW1. In his examination-in-chief in the form of affidavit evidence, the plaintiff reiterated the contentions taken up by him in his plaint. In order to show that he purchased the suit schedule property from its vendor Sri.A.Gurunanjundaiah, through his General Power of Attorney, who are the defendant Nos.1 and 2 in the suit, PW1 produced the registered Sale Deed dated 08.10.2002. In support of his contention that from the said date of the sale under which he was put in possession of the suit schedule property it is he, who is paying the property tax with respect to the suit schedule properties, PW1 has produced six tax paid receipts for the relevant years, which are at Exs.P2 to P7. To substantiate his contention that he had also applied for the corporation for making of khata in his name, he has produced an acknowledgment, which shows that a necessary application in the prescribed form in that regard was filed by the plaintiff with the Bruhat Bangalore Mahanagara Palike under the Scheme of ‘Suvarna Khata’. To show that there is no encumbrance on the suit schedule property, the plaintiff also got produced a nil encumbrance certificate for the period from 01.04.2011 to 27.12.2013 issued by the competent authority and got it marked at Ex.P9.
12. A perusal of the Sale Deed at Ex.P1, go to show that the plaintiff purchased the suit schedule property on 08.10.2002 under a registered Sale Deed from its vendor – Sri.A.Gurunanjundaiah. However, the Sale Deed being executed by his General Power of Attorney holders - Sri.Gangappa and Smt.Gangamma, who undisputedly are the defendant Nos.1 and 2 in the suit, the recital of the said Sale Deed go to show that said Sri.Gangappa and Smt.Gangamma as General Power of Attorney holders have sold the suit schedule property, which was the self acquired absolute property of Sri.A.Gurunanjundaiah in favour of the plaintiff for a lawful consideration. The said document further shows that on the very same day, the purchaser i.e., the plaintiff was also put in possession of the suit schedule property. Ex.P8 – the acknowledgment of the application for change of khata would only evidence that the plaintiff has made an application with the Bruhat Bangalore Mahanagara Palike, seeking making of khata in his name. However, Exs.P2 to P7 go to show that the suit schedule property was assessed for property tax and the property tax was being paid by the plaintiff for the relevant years. Thus, the entire oral evidence of PW1, as well the documentary evidence from Exs.P1 to P9, have remained undenied and undisputed since PW1 was not cross-examined from the defendants’ side.
13. Learned counsel for the appellant as well learned counsel for respondent No.4 in their arguments made a submission that the plaintiff has not approached the Court with clean hands and he had suppressed the fact without disclosing in the plaint that the alleged Sale Deed was executed not directly by the vendor but by its General Power of Attorney holders. Learned counsel further submitted that the non production of the said General Power of Attorney by the plaintiff is fatal to the case of the plaintiff. Learned counsel for the appellant further submitted that no police complaint copy or acknowledgment have been produced by the plaintiff. As such, it is hard to believe that there was any cause of action arisen for the plaintiff to institute a suit. He also submitted that non mentioning of the word ‘vacant’ in the schedule to the plaint also go to show that the plaintiff has suppressed the vital fact. Learned counsel continued that when the suit schedule property is a vacant site, the plaintiff cannot maintain a suit for permanent injunction in simplicitor. On the other hand, he ought to have instituted a suit for declaration. In his support, he relied upon the judgment of the Hon’ble Apex Court in the case of Anathula Sudhakar vs. P. Buchi Reddy (Dead) by L.Rs and Ors. reported in AIR 2008 SC 2033. Learned counsel for respondent No.4 also submitted that since the plaintiff has not obtained the signature of respondent No.4 and the appellant, who were defendant Nos.3 and 4 in the trial Court in the Sale Deed at Ex.P1, the case of the plaintiff becomes suspicious.
14. The plaintiff in the trial Court in his pleading though has stated that he purchased the suit schedule property from its vendor Sri.A.Gurunanjundaiah under a Sale Deed dated 08.10.2002 for valuable consideration, has not stated that the said Sale Deed was executed not directly by said vendor Sri.A.Gurunanjundaiah but, through his General Power of Attorney i.e., Sri.Gangappa and Smt.Gangamma, who are the defendant Nos.1 and 2 in the suit. The said defendant Nos.1 and 2 in their written statement have not denied that they were the General Power of Attorney holders of Sri.A.Gurunanjundaiah, but it is their contention that at no point of time, they have alienated the property in favour of the plaintiff. On the other hand, it is their contention that they have sought for some financial assistance from the plaintiff as he was their friend and the plaintiff sought for a security from them. It is in that connection, he got executed Ex.P1, without disclosing the contents of the documents to them. Thus, he has played fraud upon them. The said written statement filed by them has confined itself at the stage of written statement and did not develop any further since they have neither cross-examined PW1 nor chosen to enter the witness box or nor even examined any witnesses from their side. However, the fact remains that defendant Nos.1 and 2 have not denied that they were the General Power of Attorney holders of Sri.A.Gurunanjundaiah. More over, they have also not denied of they executing the Sale Deed at Ex.P1 though, they contend that they have executed it without knowing its contents. In such circumstance, when the power of attorney holders by themselves have not denied of they being holders of General Power of Attorney executed by Sri.A.Gurunanjundaiah and they have not denied of they signing in the Sale Deed at Ex.P1, then, the mere non production of General Power of Attorney by the plaintiff would in no way weaken the case of the plaintiff on the said aspect. In addition to the above, it is also required to be observed that no where the defendants have stated in any part of their pleading that the General Power of Attorney executed by Sri.A.Gurunanjundaiah, in favour of defendant Nos.1 and 2 was delivered or handed over to the plaintiff at any point of time. When the Power of Attorney holders have admitted that they are the Power of Attorney holders and when they have not disputed they executing Ex.P1 then, without they expressly mentioning that the documents of Power of Attorney, which they were in possession of had been delivered to the plaintiff, it cannot be presumed that such a Power of Attorney was delivered to the plaintiff by them. As such, the argument of learned counsel for respondent No.1 that there is no whisper that the document of General Power of Attorney was handed over to the plaintiff is acceptable.
The contention of learned counsel for respondent No.4 that there is a general practice that General Power of Attorney would normally be delivered to the purchaser of the property cannot be accepted unless, that is substantiated in some form of material or evidence either oral or documentary. Therefore, the non production of General Power of Attorney or non mentioning in the plaint that the Sale Deed at Ex.P1 was executed through General Power of Attorney of Sri.A.Gurunanjundaiah, is not fatal to the case of the plaintiff. As such, the argument of learned counsel for the appellant and respondent No.4 on the said point is not acceptable.
15. Defendant Nos.1 and 2 have in their written statement taken a contention that the plaintiff has fraudulently obtained their signature on the Sale Deed with respect to the suit schedule property and they have signed the documents without noticing the contents of the document. It is needless to say that when a party to a litigation takes a plea of fraud, it is for him to establish the same. Mere taking a plea of fraud would not take the case of a litigant any further unless he corroborates his averment regarding the fraud through cogent evidence. In the case on hand, as already observed above, the defendants except filing the written statement have not evinced any interest in further prosecuting the matter. They have not even cross-examined PW1 and denied the statement made by the witness in the witness box.
16. Learned counsel for respondent No.4 in his arguments made a submission that non obtaining the signature of defendant Nos.3 and 4 in the Sale Deed at Ex.P1 would take away the value of the said document. Except making the said statement, learned counsel for respondent No.4 did not elaborate as to how and on what basis, Ex.P1 looses its validity. However, a reading of the written statement filed by defendant Nos.3 and 4 go to show that both of them claim to be the daughters of defendant Nos.1 and 2. It is their contention that defendant Nos.1 to 4 constituted a joint family and defendant No.1 was the Karta of the family. However, defendant No.1 was addicted to liquor. As such, taking undue advantage of the same and the illiteracy of their mother i.e., defendant No.2, Sale Deed was got executed by the plaintiff in his favour from defendant Nos.1 and 2. Once again, it is to be mentioned here that mere taking such a plea would not take the case of the defendant further. In the circumstances of the present case, when the defendant Nos.3 and 4, among whom, defendant No.3 is the present appellant, has taken such a plea of the existence of the joint family, it was for them to establish the same. Even their written statement is also bereft of any details as to since how long they constituted the joint family and who were the contributory members to the alleged joint family, when both of them i.e., defendant Nos.3 and 4 got married and separated from the family and how the suit schedule property can be treated as the property of the joint family. In the absence of any such detail in their pleadings in the form of a written statement, merely taking a contention that the family of the defendants was a joint family and that the suit schedule property was a joint family property is not acceptable. When the said contention of the alleged existence of a joint family and the suit schedule property being a part of the family is not established by them in the present suit, the contention that the non obtaining the signature of defendant Nos.3 and 4 to the Sale Deed would invalidate the Sale Deed at Ex.P1, is not acceptable.
In addition to the above, it is also not out of context to mention here that even though defendant Nos.1 and 2 admitted that they are the General Power of Attorney holders of Sri.A.Gurunanjundaiah and an affidavit also had come to be given to them but, there are no material to believe, in the circumstances of the present suit, that merely by virtue of the alleged General Power of Attorney and an affidavit, the defendants and more particularly, defendant Nos.1 and 2 had become the owners of the suit schedule property. If according to the defendants, they were the owners of the suit schedule property, then it was incumbent upon them to subject PW1 to cross- examination and to deny his contentions and also to lead evidence from their side. As has been repeatedly observed, since the defendants have failed to do any of these aspects, merely because they have taken such a plea in the written statement, that by itself, would not weaken the case of the plaintiff.
17. Lastly, learned counsel for the appellant in his arguments also raised a point that in the absence of any relief for declaration of title, a bare suit for injunction with respect to the vacant site would not lie. In his support, he relied upon the judgment of the Hon’ble Apex Court in the case of Anathula Sudhakar (supra). In the said case, the Hon’ble Apex Court had an occasion to analyze the scope of injunction suit and necessity of seeking a relief of declaration and the position of law in that regard. After a detailed discussion on the point, the Hon’ble Apex Court has summarized the position in regard to suit for prohibitory injunction relating to immovable property.
18. The relevant paragraph in the summary of the decision is paragraph No.17 (b) and (c), which reads as under:-
‘17. xxx (a) xxx (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.’ 19. A reading of the above paragraphs go to show that where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without finding thereon, it is not possible to decide the issue of possession. In the instant case, so far as the evidence regarding his title, the plaintiff apart from leading oral evidence as PW1, has also got marked the registered Sale Deed at Ex.P1. As observed above, the said document go to show that with respect to the suit schedule property, a Sale Deed has been executed by defendant Nos.1 and 2 in their capacity as General Power of Attorney holders of the vendor – Sri.A.Gurunanjundaiah, on 08.10.2002. If at all, the case of the defendants was that the said document was a fraudulent document or that it was not executed by them, they should have necessarily denied the oral evidence of PW1 as well, if found necessary, entered witness box and led their evidence. Without doing anything since the defendants have allowed both oral and documentary evidence of PW1 undenied and undisputed, it has to be held that in the circumstances of the case and confining to the facts, the plaintiff could able to show that the title with respect to the suit schedule property has been passed on to him.
The Hon’ble Apex Court in the case of Anathula Sudhakar (supra) has also observed that where the averments made regarding title are absent in a plaint and where there is no issue relating to title, the Court will not investigate or examine or render a finding on a question of title, in a suit for injunction. In the instant case, as observed, except taking such contention in the written statement, nothing has been produced by the defendants. They did not even agitate their alleged ownership over the suit property. As such, even though, the suit schedule property is shown to be a vacant site, merely because, a relief of declaration of title is not claimed by the plaintiff, the same cannot be considered as fatal to the case of the plaintiff when in fact he had through his evidence, both oral and documentary has proven his lawful possession over the suit schedule property as on the date of the suit.
20. The plaintiff has also both in his pleading as well in his evidence as PW1, stated that the defendants have caused interference in his lawful possession of the suit schedule property. No doubt, though he has stated that he approached the jurisdictional police in that regard but has not produced any acknowledgment or any document in that regard. Merely because, the plaintiff has not produced any document to show that he had approached the jurisdictional police, by that itself, and more particularly, in the light of non denial of said evidence of PW1 by defendants, it cannot be taken that the said evidence of PW1 regarding interference by the defendant in his lawful possession of the property is not established. As such, the plaintiff could able to show that there was interference in the lawful possession of his property. Since the trial Court has not only considered all these aspects in its proper perspective while decreeing the suit, but also since has made an observation that in case that it is the contention of defendant Nos.1 to 4 that the suit schedule property was a joint family property wherein, they have got their right, title or interest, then they are at liberty to workout their remedy in a separate suit seeking comprehensive relief, it has to be gathered that the trial Court has not ignored protecting the alleged right and interest of defendants, provided if they have any with respect to the suit schedule property. I do not find any error in the said finding of the trial Court in decreeing the suit of the plaintiff. As such, the same does not warrant any interference at the hands of this Court.
21. Accordingly, I proceed to pass the following:
ORDER (i) The appeal is dismissed.
(ii) The judgment and decree dated 25.06.2015 passed by the XXIV Additional City Civil and Sessions Judge, Bangalore City (CCH-6) in O.S.No.2344/2013 is confirmed.
(iii) The Registry to transmit a copy of this judgment along with lower Court records to the Court below.
In view of the disposal of the main appeal, I.A.No.1/2017 does not survive for consideration. Hence, disposed of.
Sd/- JUDGE dn/-