IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE N.K.SUDHINDRARAO REGULAR FIRST APPEAL No.937/2005 BETWEEN:
P Krishna Reddy, aged about 52 years, s/o late Pillappa, residing No.14 (Old No.90) 13th Cross 8th Main Road, Wilson Garden, Bangalore-30. …Appellant (By Sri C Shankar Reddy, Advocate) AND:
1. The Bangalore City Corporation, represented by its Commissioner Bengaluru-1.
2. The Assistant Revenue Officer City Corporation, Jayanagar Bengaluru-1.
3. The Asst. Engineer Bangalore City Corporation Jayanagar, Bengaluru-11. …Respondents (By Sri T M Venkata Reddy, Advocate) This RFA is filed under Section 96 read with Order 41 Rule 1 of CPC against the judgment and decree dated 19.2.2005 passed in OS No.7045/1993 on the file of the XVI Additional City Civil and Sessions Judge, Bengaluru (CCH-12), dismissing the suit for permanent injunction.
This RFA coming on for hearing this day, the Court delivered the following:
JUDGMENT Counsel for appellant present. Heard. Sri T M Venkatareddy, learned counsel for respondents No.1 to 3 seeks time. Appeal is of the year 2005 and of the year 1993 in terms of the original suit. Considering the age and stage of the matter, prayer for an adjournment is rejected.
2. This appeal is directed against the judgment and decree dated 19.2.2005 passed in OS No.7045/1993 on the file of the 16th Additional City Civil and Sessions Judge, Bengaluru, wherein the suit for permanent injunction filed by the plaintiff came to be dismissed.
3. In order to avoid confusion and overlapping, the parties are referred in accordance with their rankings and status as held before the Trial Court.
4. The plaintiff, P Krishna Reddy filed a suit in respect of schedule property, which forms a vacant land, seeking relief of permanent injunction against the Bangalore City Corporation represented by its Commissioner, Assistant Revenue Officer and Assistant Engineer, Jayanagar, Bangalore.
5. The claim of the plaintiff is that defendants are interfering with the peaceful possession and enjoyment of the schedule property without any reason. The plaintiff claimed that he is the absolute owner in possession of schedule property, which bears Old No.9, New Corporation No.16/9 situated at 1st `B’ Cross, 1st Main Road, Maruthinagar, Madiwala, Hosur Road, Bangalore, measuring on the northern side 53 feet and on the southern side 56 feet and on the southern side 56 feet and north to south 30 feet, having purchased the same from its previous owner, Smt.Anjanamma under a registered sale deed dated 13.8.1984. It is also claimed that the name of the plaintiff in the records of the defendants pertaining to the schedule property and also claimed that the khatha is also obtained in his name. The plaintiff also claimed that one Sarvesh Reddy, adopted son of Smt.Susheelamma of Koramangala village, Bengaluru made attempts to lay false claim against the schedule property. However, the same was amicably settled. The plaintiff further claimed that the defendants being the officers of statutory body are powerful and have no bargaining power and it is only permanent injunction that can protect against the schedule property as the defendants-Corporation started interfering with the peaceful possession and enjoyment of the schedule property. Hence, the plaintiff filed the suit.
6. The defendants contended that the original owner of the schedule property was one K Matsayalu. He sold the same under a registered sale deed to one Smt.Susheelamma in order to form a road. According to the sale deed dated 26.7.1991, the site measurement is 20` x 53`. Again the said K Matsayalu, the vendor sold the schedule property under a sale deed dated 5.10.1983 to one Smt.N Anjanamma without canceling the earlier sale deed executed on 26.7.1971. The said K Matsayalu had no locus standi to sell the same to Smt.Anjanamma. It is the contention of the defendants that before the registered sale deed dated 26.7.1971, vendor had sold the property to one Smt.Susheelamma.
7. The learned Trial Judge framed the issues on possession, interference and relief and dismissed the suit of the plaintiff and connected issues were answered in the negative. The same is challenged in this appeal by the plaintiff.
8. Sri Shankar Reddy, learned counsel for the appellant would submit that the BBMP has recognized the ownership of the schedule property in favour of the plaintiff and estopped from denying the plaintiff as the owner of the property. He would further submit that the title was validly derived from previous vendor, Smt.Anjanamma, who had absolute right over the schedule property. The defendants have not produced any documents showing divesting title or possession from the plaintiff. The learned counsel for the appellant would further submit that the learned Trial Judge erred in refusing to grant decree for permanent injunction in favour of the plaintiff.
9. The suit is filed by the plaintiff against the Bangalore City Corporation. Incidently it is the custodian of the records of moveable property coming within its jurisdiction. It is not a rival claim by the BBMP. It is also necessary to mention the schedule property claimed by the plaintiff stated to be measuring East to West 30 feet and North to South 56 feet. The plaintiff claims to have purchased the property under a sale deed dated 13.8.1984, which is marked as Ex.P4. The vendor of the plaintiff, Smt.Anjanamma had purchased the schedule property from its previous vendor, K Matsayalu on 5.10.1983 and the same is marked as Ex.P29. On perusal of the sale deed dated 13.8.1984, the property sold by the said Smt.Anjanamma is vacant site measuring east to west on the northern side 53 feet and on the southern side 56 feet and north to south 30 feet. In the said sale deed, Smt.Anjanamma, vendor of the plaintiff claimed that the schedule property was purchased by her under a registered sale deed dated 5.10.1983 registered in the office of the Sub-Registrar, Jayanagar, Bengaluru. It is particular to note that the sale deed as contended by the defendants as one which does not confer right, title and interest over the schedule property. It is also stated that even prior to the sale deed, the property measuring 20` x 53` was sold. However, it is stated that the date of the sale deed has been typed wrongly as 26.7.1991 as there is no dispute regarding the same is read as 26.7.1971.
10. The reasoning assigned by the Court below is that when the land was sold in favour of Smt.Susheelamma by K Matsayalu under a registered deed dated 26.7.1971, there could not have been measurement in favour of the plaintiff as stated in the plaint. Thus, the plaintiff has filed the suit for greater measurement ignoring the sale deed that was already effected in favour of Smt.Susheelamma, which is marked as Ex.D2. The same is seriously disputed and supported by documents, the plaintiff is also established the title. The present case is one which seriously disputed the plaintiff’s ownership. Regard being had to the fact that the Corporation does not claim rival title. Further even if the plaintiff is in possession of the schedule property, he has to prove the same as lawful at the time of entering into the possession and there required a principle of two elements, corpus possessionis animus possidendi. Here is a case where the plaintiff seeks relief of permanent injunction on the ground of sale deed.
11. The defendants are the representatives of the statutory body and have no personal interest over the matter. However, their contention is that the schedule property covers road and the said space was purchased by Smt.Susheelamma for the purpose of road.
12. As such, it is understood that this is an unequivocal declaration of the defendants. Thus, in the circumstances, the measurement stated in the registered sale deed does not tally with the state of affairs. However, the defendants filed written statement wherein it is stated that Smt.Susheelamma purchased the property earlier to the plaintiff purchased the same. The said sale deed executed in favour of Smt.Susheelamma is marked as Ex.D2. The plaintiff had ample opportunity and time to question the veracity of the claim by the Corporation regarding the sale deed in favour of the said Smt.Susheelamma. In the over all circumstances, I find that the plaintiff has failed to establish the lawful possession or unlawful interference by the defendants. The learned Trial Judge has rightly dismissed the suit. Therefore, I do not find any infirmity, illegality or irregularity in the judgment and decree and no hesitation to confirm the same. Accordingly, appeal is rejected.
Sd/-
JUDGE Bkm