IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY R.F.A. No.1733 OF 2016 BETWEEN:
Smt. Rangamma, Since deceased by her Lrs.
1. Sri. Y.N.Manjunath, S/o. Late Y.P.Nanjappa, Aged about 39 years.
2. Sri. Nagesh S/o. Late Y.P.Nanjappa, Aged about 37 years, Both the appellants R/at No.376, Masjid Road, Yelahanka, Bangalore-560 064.
(By Sri. Y.R.Sadashivareddy, Senior Advocate for Sri. Somashekhara K.H., Advocate) AND:
1. Smt. Hanumakka W/o. Jangamaiah Aged about 60 years.
2. Sri. Muniyappa, S/o. Jangamaiah, …Appellants Aged about 52 years.
3. Sri. Seena S/o. Jangamaiah, Aged about 46 years.
4. Sri. Munikrishna S/o. Jangamaiah, Aged about 44 years.
5. Sri. Venkatesh S/o. Jangamaiah, Aged about 38 years.
The respondents 1 to 5 R/at No.218/207, Bestharabeedhi, Yelhanka, Bangalore-560 064.
(By Sri. D.N.Ramachandrappa, Advocate) **** …Respondents This Regular First Appeal is filed under Section 96 read with 41 Rule 1 of the Code of Civil Procedure, 1908, against the judgment and decree dated:20-09-2016 passed in O.S.No.6496/2009 on the file of XLIV Additional City Civil and Sessions Judge, Bengaluru, (CCH-45), dismissing the suit for permanent injunction.
This Regular First Appeal having been heard and reserved on 18-11-2019, coming on for pronouncement of judgment, this day, the Court delivered the following:
J U D G M E N T The present appellants joined by their mother – Smt. Ragamma, as plaintiffs had instituted a suit against the present respondents arraigning them as defendants in O.S.No.6496/2009 in the Court of the XLIV Additional City Civil and Sessions Judge, Bengaluru (CCH-45) (hereinafter for brevity referred to as “Trial Court”) for the relief of permanent injunction.
2. It was the summary of the case of the plaintiffs in the Trial Court that, the plaint schedule property which is a land bearing Survey No.10/6, measuring 27 guntas said to be situated at Yelahanka, Bengaluru North Taluk, was originally part and parcel of land in Survey No.10/1 of Yelahanka, Bengaluru North Taluk. The said land was owned and possessed by the two brothers by name Sri. Chikka Kondappa and Sri. Bangappa. Both of them though married, were issueless. Consequently, Sri. Chikka Kondappa adopted the first defendant - Smt. Hanumakka. By virtue of an oral partition between the said brothers, an extent of land measuring 01 acre 20 guntas fell to the share of Sri. Chikka Kondappa and the remaining extent of 01 acre 08 guntas fell to the share of Sri. Bangappa. Subsequent to the death of Sri. Bangappa, his wife by name Smt. Nanjamma acquired the said 01 acre 08 guntas of land in Survey No.10/1. On account of legal necessities, the said Smt. Nanjamma sold the said extent to Sri.Y.P. Nanjappa, the late husband of Smt. Rangamma - the first plaintiff, under a registered Sale Deed dated 16-04-1975. Subsequent to the sale of the said land, the revenue documents pertaining to the said land were mutated in the name of Sri.Y.P. Nanjappa. During his life time, the said Sri.Y.P. Nanjappa had given away an extent of land measuring 21 guntas out of 01 acre 08 guntas in Survey No.10/1 to his brother. The remaining extent of 27 guntas was possessed and enjoyed by the said Sri.Y.P. Nanjappa and after his death, it has been the plaintiffs who continued to be in possession and enjoyment of the said land.
It is further the case of the plaintiffs that, by virtue of a partition inter se, the plaintiffs have got partitioned the said extent of the land. Sri. Chikka Kondappa had gifted his share in favour of the first defendant, who, in turn, had executed a General Power of Attorney in respect of the said extent in favour of a person by name Smt. Lalithamma, as such, the first defendant had no property whatsoever in Survey No.10/1 of Yelahanka, Bengaluru North Taluk.
It is further the case of the plaintiffs that, subsequent to the partition among the plaintiffs with respect to 27 guntas of land, the revenue authorities subjected the said land for re-phoding and conducted the proceedings of haddu basthu. Consequently, the said portion of 27 guntas was assigned with a new Survey Number as ‘10/6’. These being the circumstances, the defendants having no manner of right whatsoever have interfered with the alleged possession of plaintiffs of the said extent of 27 guntas of land on 25-02-2009 by attempting to remove the compound wall constructed in the said portion, however, the attempts of the defendants were thwarted by the plaintiffs. The defendants have also filed an original suit in O.S.No.2514/2009 as against the plaintiffs which is still pending. With this, the plaintiffs prayed for the relief of permanent injunction against the defendants.
3. In response to the suit summons, defendants No.4 and 5 appeared through their counsel and filed their Written Statement, wherein they admitted the fact of ownership and possession of land in Survey No.10/1 of Chikka Kondappa and Sri. Bangappa and also the fact of adoption of first defendant – Smt. Hanumakka by said Chikka Kondappa. However, those defendants denied the remaining plaint averments as false and baseless. They also denied the averment in the plaint that, there was an interference by them on 25-02-2009, but they admitted the filing of the original suit in O.S.No.2514/2009 by the defendants and its pendency. They averred that at no point of time, the plaintiffs have been in possession of the land in Survey No.10/1. The defendants No.1 to 3 adopted the said Written Statement by filing a memo dated 23-09-2015.
4. Based on the pleadings of the parties, the Trial Court framed the following issues for its consideration:-
“1. Whether the plaintiffs prove the possession of the suit schedule property as on the date of the suit?
2. Whether the plaintiffs prove the interference by the defendants?
3. Whether the plaintiffs are entitled to the relief’s claimed?
4. What order or decree?”
5. In support of their plaint, the plaintiff No.2 - Sri.Y.N. Manjunath was examined as PW-1 and documents from Exs.P-1 to P-35 were produced and got marked. The second defendant - Sri. Muniyappa was examined as DW-1 and he got produced and marked documents from Exs.D-1 to D-3.
6. After hearing both side and considering the materials placed before it, the Trial Court by its impugned judgment and decree dated 20-09-2016 while answering issues No.1, 2 and 3 in the negative, dismissed the suit of the plaintiffs. It is against the said judgment and decree, the plaintiffs have preferred the present appeal.
7. Lower Court records were called for and the same are placed before this Court.
8. Heard the arguments of the learned Senior Counsel for the appellants, learned counsel for the respondents and perused the material placed before this Court including the memorandum of appeal and the impugned judgment.
9. For the sake of convenience, the parties would be henceforth referred to with the ranks they were holding before the Trial Court respectively.
10. After hearing the arguments addressed from both side and perusing the materials placed before this Court, the points that arise for my consideration in this appeal are:
1] Whether the plaintiffs have proved that they are in possession of the suit schedule property as on the date of the suit?
2] Whether the plaintiffs have proved the alleged interference by the defendants in the suit schedule property?
3] Whether the plaintiffs are entitled to the relief of Permanent Injunction?
4] Whether the judgment and decree under appeal warrants any interference at the hands of this Court ?
11. PW-1 in his examination-in-chief in the form of affidavit evidence has reiterated the plaint averments.
To show that the suit schedule property was purchased by his father - Sri.Y.P. Nanjappa, he has produced and got marked a registered Sale Deed dated 16-04-1975 as Ex.P-1. He produced a survey sketch regarding partition and got it marked as Ex.P-2. The Mutation Register extract, RTC and the survey sketch of the land at Survey No.10/6 were produced by him as Exs.P-3, P-4, and P-5 respectively. A certified copy of the order sheet in O.S.No.3443/2002 and a certified copy of the Memorandum of Agreement dated 09-07-2008 in the Mediation proceedings were marked at Exs.P-6 and P-7 respectively. General Power of Attorney said to have been executed by defendant No.1 - Smt. Hanumakka in favour of Smt. Lalithamma was produced and marked at Ex.P-8. An acknowledgment said to have been issued by the Police with respect to a complaint was marked at Ex.P-9. The witness also produced few colour photographs along with their negatives and got them marked at Exs.P-10 to P-22 and Exs.P-10(a) to P-22(a) respectively. A certified copy of the Partition Deed among PW-1, his mother and brother was marked at Ex.P-23. On behalf of the plaintiffs, a certified copy of the registered Sale Agreement dated 03-05-1993 between the defendant No.1 - Smt. Hanumakka and Smt. Lalithamma was marked as Ex.P-24. A certified copy of Hissa tippani, aakarbandh and settlement aakarbandh were marked at Exhibits P-25, P-26 and P-27 respectively. A Mutation Register extract was marked at Ex.P-28 and six certified copies of the RTCs were marked from Exs.P-29 to P-35. The witness was subjected to a detailed cross-examination wherein apart from giving some more details with respect to the alleged possession of the property by the plaintiffs, the witness also adhered to his original version.
12. DW-1 in his examination-in-chief in the form of affidavit evidence also has reiterated the summary of the Written Statement filed by the defendants. The witness also got produced a certified copy of the Written Statement in O.S.No2514/2009 filed by the defendants who are the plaintiffs/appellants herein and got it marked as Ex.D-1. He also produced the certified copy of the judgment and decree in the said O.S.No.2514/2009 at Exs.D-2 and D-3 respectively. The witness was subjected to a detailed cross- examination, wherein though the witness attempted to adhere to his original version, but, at a place in his cross-examination has stated that, the plaintiffs are in possession of suit schedule property, but they have not constructed any house in their property.
13. It is based upon the above pleading and evidence of the parties, learned Senior Counsel for the plaintiffs/appellants in his argument submitted that the documents produced by the plaintiffs, more particularly, the survey sketch regarding Partition Deed at Ex.P2, Mutation Register at Ex.P-3 and RTC extract at Ex.P-4 clearly establish that, the plaintiffs are in lawful possession of the suit schedule property. He further submitted that the RTCs at Exs.P-30 to P-34 show as to how the land in original Survey No.10/1 was divided between the brothers. Ex.P-27 clearly mentions that a portion of original Survey No.10/1 was later given a new Survey No.10/6. However, the trial Court, without noticing the same, has dismissed the suit only on the ground that the properties at Survey No.10/1 and Survey No.10/6 are different properties. With the said observation, the Trial Court dismissed the suit of the plaintiffs.
14. Learned Senior Counsel further submitted that a clear admission on the part of DW-1 in his cross- examination, that plaintiffs are in possession of the suit schedule property makes the path very clear for the plaintiffs for their entitlement for the relief sought for.
15. Learned counsel for the defendants/ respondents in his very brief argument canvassed only one point that the plaintiffs have failed to prove that they are in possession of the suit schedule property with its boundaries and extent. Therefore, the alleged interference by the defendants does not arise. He also stated that it is not clear as to in which particular Survey Number, the suit property lies. Therefore, the Trial Court has rightly dismissed the suit of the plaintiffs.
16. It is not in dispute that originally, the land measuring 02 acres 28 guntas in Survey No.10/1 of Yelahanka, Bengaluru North Taluk was owned and possessed jointly by two brothers by name Sri. Chikka Kondappa and Sri. Bangappa. It is further not in dispute that both the brothers even after their marriage, remained issue-less. Consequently, Sri. Chikka Kondappa adopted the first defendant - Smt. Hanumakka. Both the brothers divided the property in Survey No.10/1 measuring 02 acres 28 guntas between themselves where under, the land measuring 01 acre 20 guntas had fallen to the share of Sri. Chikka Kondappa and remaining extent of 01 acre 08 guntas had fallen to the share of Sri. Bangappa. It is also not in dispute that, one Smt. Nanjamma was the wife of said Sri. Bangappa. However, the defendants among whom defendant No.1 - Smt. Hanumakka who was adopted by Sri. Chikka Kondappa and defendants No.2 to 5, who are the sons of said Smt. Hanumakka have denied that Smt. Nanjamma - wife of Sri. Bangappa sold 01 acre 08 guntas of property in favour of one Sri.Y.P. Nanjappa - the husband of plaintiff No.1 and father of plaintiffs No.2 and 3 under a registered Sale Deed dated 16-04-1975. To overcome the said contention of the defendants, the plaintiffs have produced the original registered Sale Deed dated 16-04-1975 at Ex.P-1. The said document which was not seriously disputed in the cross-examination of PW-1 clearly goes to show that, Smt. Nanjamma - wife of late Sri.Bangappa claims that the property under sale had fallen to the share of her husband in a family partition and that she succeeded to the said property after the death of her husband Sri. Bangappa and had sold the said property to Sri.Y.P. Nanjappa for a valuable consideration. Thus, the purchaser – Sri. Y.P. Nanjappa became the owner in possession of the land to an extent of 01 acre 08 guntas (including Kharab) in Survey No.10/1.
The pleading of the plaintiffs and the evidence of PW-1 that the said Sri. Y.P. Nanjappa gave 21 guntas of land out of 01 acre 08 guntas to his brother, thus retaining the remaining 27 guntas of land in his name, has not been denied specifically by the defendants. It is the said land measuring 27 guntas is further stated to be partitioned among the wife and children of the said Sri.Y.P. Nanjappa, after his death, on 06-07-2007. The plaint averment as well the evidence of PW-1 is to the effect that, in the said Partition Deed dated 06-07-2007, 3½ guntas fell to the share of first plaintiff – Smt. Rangamma, i.e. the wife of late Sri. Y.P. Nanjappa, 15½ guntas fell to the share of PW-1 – Sri.Y.N. Manjunath (plaintiff No.2) and the remaining 08 guntas of land fell to the share of plaintiff No.3. Ex.P-3 which is a mutation extract also evidences the said partition in the proportion as contended by the plaintiffs. Further, the said mutation entry is reflected even in the RTC extract at Ex.P-4 which is for the year 2008-09, which also evidences the mutation in favour of the plaintiffs sharing inter se the land measuring 27 guntas.
17. Ex.P-5 is the haddu basthu sketch which pertains to fixing of boundaries in the lands. The said document does not appear to be self-explanatory. However, neither the evidence of PW-1 nor the arguments of the learned Senior Counsel for the plaintiffs, could able to explain as to what that document denotes in the matter. Ex.P-6 and Ex.P-7 are the title sheet and a Memorandum of Agreement under Section 89 of the Code of Civil Procedure, 1908, r/w. rules 24 and 25 of the Karnataka Civil Procedure (Mediation) Rules, 2007, in O.S.No.3443/2002 respectively. Ex.P-7 goes to show that in a suit instituted by one Sri. K. Srinivasa Murthy against Sri. Manjunath (appears to be plaintiff No.2 in this case) and six others, the parties have agreed in paragraph No.5 of the agreement that, Sy.No.10/1 measuring 01 acre 08 guntas which is phoded as ‘10/6’ is in possession and enjoyment of defendants 1 and 2 to an extent of 27 guntas and other extent also. The said document which is not opposed specifically by the defendants would go to show that in another suit instituted by one Sri. K. Srinivasa Murthy, the plaintiffs have admitted that with respect to 27 guntas of land, the original land bearing Survey No.’10/1’ was phoded as ‘10/6’ and the said bit of land was in possession of defendants No.1 and 2 therein, among whom, as could be gathered from Ex.P-6, defendant No.1 therein appears to be the plaintiff No.2 herein. The plaintiffs have also produced few colour photographs along with negatives from Exs.P-10 to P-22(a). Thus, the photographs are not self- explanatory, as such, by mere looking at the photographs, nothing can be inferred. Further, neither the evidence of the parties, nor the arguments addressed in the matter also could able to throw any light as to what those photographs actually denote or depict. Merely looking at those photographs produced by the plaintiffs, it cannot be inferred that the plaintiffs are in possession of the suit schedule property.
18. Ex.P-23 is a certified copy of the Partition Deed entered by the plaintiffs inter se. In the said Partition Deed, the plaintiffs have divided 27 guntas of land in Survey No.10/6 of Yelahanka village among themselves where under plaintiff No.1 got 3½ guntas, plaintiff No.2 got 15½ and plaintiff No.3 got the remaining 08 guntas of land. The said document corroborates the pleading as well as the evidence of PW-1 that the plaintiffs partitioned the suit schedule property among inter se on 06-07-2007. The hissa tippani at Ex.P-25 also shows the suit schedule property in the name of the plaintiffs.
19. Ex.P27 is the settlement Aakarbandh extract which though does not show the name of the possessors of the land in Survey No.10/1 and 10/2, however, it shows that land in Survey No.10/1 in total measuring 02 acres 28 guntas was phoded into sub numbers (1) and (6) in which sub No.(1) was to an extent of 02 acres 01 gunta and sub No.(6) was with respect to 27 guntas. A detailed note is also put in the same document which goes to show that as per the orders of the Tahsildar bearing No.TQBN (A) MPR 283/ 06-07, Survey Nos.10/1 and 10/2 were ordered for mutation phoding as per which after measuring the land in Survey No.10/1, the land was phoded as ‘10/1’ and ‘10/6’ and in the land No.10/2, it was phoded as ‘10/2’ and ‘10/7’. Accordingly, Aakarbandh settlement was also effected. This document shows that the land originally bearing Survey No.10/1 and in total measuring 02 acres 28 guntas was subsequently phoded into ‘10/1’ and ‘10/6’, measuring 02 acres 01 gunta and 27 guntas respectively.
20. Ex.P-28 is a mutation extract which also goes to show that the land in Survey No.10/1 was totally measuring 02 acres 28 guntas wherein after phodding, 27 guntas of land in it was given Survey No.10/6 and the remaining land measuring 02 acres and 01 gunta continued to possess Survey No.10/1 and standing in the name of Smt. Hanumakka – defendant No.1. the possessor of the land of 27 guntas with respect to Survey No.10/6 is shown as in the name of plaintiff No.1 Smt. Rangamma. The description as to phodding of the original Survey No.10/1 in total measuring 02 acres 28 guntas into ‘10/1’ and ‘10/6’ has also been mentioned in the same background at page No.2 giving reference to the order of the Tahsildar under which the said phodding was done. Thus, Exhibits P-27 and P-28 give the complete detail as to when and upon whose order the original Survey No.10/1, measuring 02 acres 28 guntas was subsequently phodded into ‘10/1’ and ‘10/6’ measuring 02 acres 01 gunta and 27 guntas respectively.
21. In addition to the above, as already observed, Ex.P-7 which is a settlement of the dispute through mediation in O.S.No.3443/2002, though not with the present defendants herein, but the plaintiffs herein was a party in the said settlement with one Sri. K. Srinivasa Murthy, which also, as observed, mentions that the Survey No.10/1 was phodded creating Survey No.10/6 to an extent of 27 guntas which continues to be in possession of the plaintiffs.
22. These three important pieces of documentary evidence lost notice of the trial Court, as such, the trial Court attributing only the reason that Survey No.10/1 and Survey No.10/6 are two different pieces of land, as such the plaintiffs failed to show in which survey number their land fell, dismissed the suit.
23. The above analysis with respect to the identity of the suit schedule property under Survey No.10/6 shows that the said finding given by the Trial Court is erroneous. Simultaneously the argument addressed by the learned counsel for the respondent, who only reiterated the reasoning given by the Trial Court for the dismissal of the suit, as his only point of argument, also proves to be not convincing.
24. In addition to the above, the RTC extracts at Exs.P-34 and P-35 also shows that the defendants are in possession of only 01 acre 20 guntas of the land and remaining 27 guntas are in possession and in the name of Sri.Y.P. Nanjappa - the husband of the first plaintiff and the father of remaining plaintiffs. These documents have not been specifically denied or disputed by the defendants. As such, these documents further support the case of the plaintiffs that they are in lawful possession of the suit schedule property.
25. The only witness from the defendants’ side i.e.
DW-1, also has in his cross-examination, clearly stated that plaintiffs are in possession of plaint schedule property but they have not constructed any house in their property. However, he denied that the said 27 guntas of land is not a part of land measuring 01 acre 08 guntas in Survey No.10/6. The documents analysed hitherto falsifies his statement that the said 27 guntas of land is not a part of 01 acre 08 guntas of land which originally had fallen to the share of late Bangappa, as such, the specific admission made by DW-1 that plaintiffs are in possession of the plaint schedule property, cannot be construed as a stray statement made by him, rather the said statement is further supported by the evidence of plaintiffs’ side, both oral as well as documentary.
26. The defendants, in their support, have produced certified copy of Written Statement filed by the present plaintiffs as defendants in O.S.No.2514/2009 which was instituted by the present defendant No.1. – Smt. Hanumakka and certified copies of the judgment and decree passed in the said O.S.No.2514/2009.
No doubt, the said suit which was filed for the relief of permanent injunction against the present plaintiffs came to be partly decreed, restraining the defendants therein (appellants herein) permanently from interfering with the peaceful possession and enjoyment by the plaintiffs over the land measuring 01 acre in Survey No.10/1, the suit schedule property in the said suit was a land in total measuring 01 acre 20 guntas. However, the decree was with respect to only 01 acre of land. More importantly, the description of the suit property mentioned therein clearly mentions that, on the southern side, the property belonging to Bangyappa was situated. The present plaintiffs’ case is that, the wife of said Sri. Bangyappa by name Smt. Nanjamma had sold the land measuring 01 acre 08 guntas that had fallen to her share in Survey No.10/1 to Sri. Y.P. Nanjappa, the husband of plaintiff No.1 and father of plaintiffs 2 and 3. Even according to PW-1, the northern boundary of the present suit schedule property is the property belonging to defendant No.1 – Smt. Hanumakka. Therefore, the location and identity of the suit schedule property is established not only by the evidence of PW-1, but also with the help of the documentary evidence in the form of Exs.D-2 and D-3 produced by the defendants themselves. As such, it is established that, the plaintiffs are in lawful possession of the suit schedule property as on the date of the suit.
27. The plaint averment as well the evidence of PW-1 is that, in their lawful possession of the property, the defendants caused interference on 25-02-2009 by attempting to remove the compound wall constructed by the plaintiffs in the suit property. According to the plaintiffs, the said attempts were thwarted by them. PW-1 has further stated that they had lodged a Police complaint before the jurisdictional Police against the acts of the defendants on 25-02-2009, however, the jurisdictional Police have not taken any action against the defendants. Though in the cross-examination of PW-1, it was suggested to the witness that defendant No.3 resides at a separate place, but not in the place where the suit schedule property is located, but PW-1 stated that defendant No.3 though has been residing at Kolar, but visits his house at Yelahanka (place where suit schedule property is located) oftenly. Even in the cross-examination, PW-1 reiterated that the defendants went to the suit schedule property and caused interference in the lawful possession of the suit schedule property by the plaintiffs. Thus, there is no reason to disbelieve the said evidence of PW-1. Therefore, the plaintiffs have also established the alleged interference in their lawful possession of the suit schedule property, by the defendants.
28. Since the finding given by the Trial Court in its impugned judgment, has now proved to be erroneous, the judgment and decree under appeal deserves to be set aside and the suit of the plaintiffs deserves to be decreed.
Accordingly, I proceed to pass the following:
O R D E R [i] The appeal is allowed;
[ii] The impugned judgment and decree dated 20-09-2016 passed by the learned XLIV Additional City Civil and Sessions Judge, Bengaluru (CCH-45), in O.S.No.6496/2009, is hereby set aside;
[iii] The suit of the plaintiffs in O.S.No.6496/2009 is hereby decreed;
[iv] The defendants and their servants, agents or anybody acting on their behalf are permanently restrained from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiffs;
[v] There is no order as to costs;
[vi] Draw the modified decree accordingly.
Registry to transmit a copy of this judgment together with the Lower Court records to the Court below without delay.
Sd/- JUDGE BMV*