IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.F.A.No.2120/2007 BETWEEN:
SHAKEEL SHAFI, S/O S M SHAFI No.1, NANDIDURG ROAD BANGALORE -46. ...APPELLANT (BY SMT.DEEPASHREE, ADVOCATE) AND:
KARNATAKA CO-OPERATIVE MILK PRODUCERS, FEDERATION LTD., BANGALORE DAIRY CIRCLE HOSUR ROAD, BANGALORE – 560 029.
BY ITS DIRECTOR. ...RESPONDENT (BY SRI HARISH T S, ADVOCATE) THIS RFA IS FILED U/S 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED. 4.06.2007 PASSED IN O.S.No.8340/1997 ON THE FILE OF THE XXVII ADDITIONAL CITY CIVIL JUDGE, BANGALORE DISMISSING THE SUIT FOR PERMANENT INJUNCTION.
THIS RFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appeal is directed against the judgment and decree dated 04-06-2007 passed in O.S.No.8340/1997 by the learned 27th Additional City Civil Judge, Bangalore, wherein, the suit of the plaintiff for permanent injunction to restrain defendant from interfering with his peaceful possession and enjoyment over the schedule property and to restrain the officials of the defendant from demolishing the structure in suit property came to be dismissed. It is the plaintiff’s appeal.
2. In order to avoid confusion and overlapping, the parties are addressed in accordance with their status and rankings as held before the trial court.
3. Plaintiff-Shakeel Shafi, filed a suit in O.S.No.8340/1997 against the Managing Director, Karnataka Co-operative Milk Producers Federation Limited, Bangalore, which is also identified as KMF. The substance of the case of the plaintiff is that, he is the owner in possession of the property measuring 40 ft. x 60 ft. bearing House List No.3, Khatha No.380-A, comprised in Survey No.59/1 of Nagasettihalli, Bangalore North Taluk.
4. It is further stated that the land in Survey No.59/1 originally belonged to one Shri.Sonnappa. Upon his death, his two sons, namely Appajappa and Miniveerappa partitioned the said property as per registered Partition Deed dated 3.9.1951. Upon the death of Appajappa and Muniveerappa, in course of time, their sons Byregowda and Sonnegowda succeeded to the properties of their respective fathers. The land in question was used for non agricultural purpose. Both of them executed a General Power of Attorney in favour of one Mohanraju for the development of the said land for non agricultural use, who in turn formed sites in the said land. One Sri.Siddaraju had purchased one of the sites so formed in the said land for a consideration of Rs.1,10,000/- under a registered Sale Deed dated 14.2.1992 and the records maintained by the competent authorities were transferred in his name and he was paying the assessment to it. Plaintiff purchased the property from said Siddaraju under the registered Sale Deed dated 28.10.1995 for a consideration of Rs.2,64,000/- and was put in possession. Thus, the plaintiff claims that schedule property having purchased from his vendor under the registered Sale Deed and originally, the said property belonged to Sonnappa, after his death to his decedents and thereafter finally by his vendor. However, in the end plaintiff became the owner of the same. Thereafter, defendant claimed that the entire extent of land in the area in different survey numbers about 60 acres has been acquired by it over three decades ago and on 13.11.1997 the officials of the defendant attempted to demolish the houses and also attempted to demolish the shed put up in the suit property. Hence, prays to decree the suit.
5. The defendant-KMF placed appearance and contended that Survey No.59/1 along with other lands came to be acquired by the Government for the benefit of KMF and having acquired, necessary Notifications were made and after Final Notification, the possession was handed over to KMF. Defendant contended that the award amount that was deposited had been withdrawn by the erstwhile owners of the property and the suit filed by some of the owners came to be dismissed and plaintiff has lost his right, title and interest over the suit property and he is not at all in possession and enjoyment of the property at any point of time and plaintiff cannot maintain a suit for permanent injunction against the defendant and prays to dismiss the suit.
6. Learned trial Judge was accommodated with the oral evidence of plaintiff Shakeel Shafi as PW1 and documentary evidence as per Exs.P1 to P7 on behalf of plaintiff as under:
Ex.P1 - Sale deed in favour of the plaintiff;
Ex.P2 - Sale deed infavour of the plaintiff’s vendor; Ex.P3 - -
Ex.P4 – Legal opinion given by the advocate for plaintiff’s vendor;
Ex.P5 - Encumbrance certificate; Ex.P6 – Mutation register extract; Ex.P7 - Demand register extract.
One M.K.Sridhar, was examined as DW1 and got marked Exs.D1 to D8 on behalf of defendant as under:
Ex.D1- Preliminary notification dated 15.1.1978; Ex.D2- Final notification dated 9-3-1978;
Ex.D3- Certified copy of the sketch.
Ex.D4- Certified copy of the possession certificate; Ex.D5-
Ex.D6- RTC extracts in respect of lands in Sy.Nos.59/1A and 59/1B;
Ex.D7- Certified copy of the order passed on IAs 1 and 3 in OS 4438/1989;
Ex.D8- Certified copy of the order passed on IAs 1 and 4 in OS 5188/1989.
7. After hearing the learned counsel for both the parties and considering the oral and documentary evidence produced, the trial Judge dismissed the suit of the plaintiff which is challenged in this appeal.
8. Learned counsel Smt. Deepashri appearing for appellant/plaintiff would submit that the vendor of the plaintiff was in actual possession of the schedule property and the same is handed over to the plaintiff. She would also submit that schedule property consisted of a structure which is evident from the Sale Deed Ex.P1 made in favour of the plaintiff. She has further submitted that Ex.P2 is the Sale Deed executed in favour of the vendor of the plaintiff. The learned counsel would also submit that plaintiff borrowed the loan from State Bank of Mysore for the purpose of construction of house and legal opinion was also given by the Advocate as per Ex.P3. She also placed reliance on Ex.P5-Encumbrance Certificate, Ex.P6-Mutation Register Extract and Ex.P7-Demand Register extract.
9. Learned counsel for defendant would submit that land was notified under Preliminary Notification dated 15.1.1978 followed by Final Notification dated 9.3.1978 as per Exs.D1 and D2. He has also submitted that Ex.D3 is the sketch which shows the schedule property and Ex.D4-Possession certificate.
10. In this connection, learned counsel for defendant placed reliance on the decision of the Hon’ble Supreme Court in the case of Commissioner, Bangalore Development Authority and another Vs. Brijesh Reddy and another [(2013) 3 Supreme Court Cases 66].
11. In the over all circumstances of the case, the following points are amply clear:
(i) The existence of property is not in dispute;
(ii) Plaintiff claim that schedule property also consisted of a structure. However, no evidence is coming forth in respect of the said structure or residence of the plaintiff;
(iii) In fact, plaintiff is the purchaser from its previous purchaser and the vendor of the vendor of the plaintiff are the decedents of the original owner Sonnappa of the entire land in survey No.59/1 which is stated to have been acquired in the year 1978;
(iv) The Sale Deed invariably evidences the ownership and the name of the plaintiff definitely shows as purchaser as per Ex.P1-retistered sale deed. The sale deed of the vendor of the plaintiff is also produced as Ex.P2. Thus, he may be the purchaser but not the owner.
12. The crucial point for consideration is, the nature of possession and the title that was pleaded by the plaintiff. In this connection, plaintiff claims that loan was borrowed by the plaintiff and legal opinion given by the Advocate is also filed and marked as Ex.P3. It is necessary to place on record that the certificate issued by the Penal Advocate and the fact of Bank pleading the marketable title themselves conclude that the borrower has acquired valid and marketable title. If the land was sold in favour of Siddaraju by the then owners, in the Sale Deed executed, there will be reference. But the formality of registration and process of getting the registered Sale Deed from the Sub Registrar does not confirm title on the purchaser. The essential factor would be, purchaser does not get better title than what the vendor possessed. In this connection, nemo dat quad non habet which means ‘‘no one can convey better than what he has’’.
13. The next aspect is, the concept of possession was invariably comprised of Corpus possidendi and animus possidendi. The interest that a person in possession is entitled to it that are animus from the legal source.
14. In the circumstances, the injunctory relief is made for lawful possession which means and concludes lawful possession in that matter. In the circumstances of the case, in the case of acquisition of the land, notification of the award, withdrawal of the award amount in respect of acquisition of survey No.59/1 are evidenced. The plaintiff cannot claim that his possession is lawful to get the relief of injunction. No matter the Sale Deed is either by the decedents of the original owner in favour of vendor of the plaintiff or the Sale Deed by the vendor of the plaintiff in favour of plaintiff as per Ex.P1. In the circumstances, I have no hesitation in accepting the reasons and findings given by the learned trial Judge while dismissing the suit.
In the result, appeal is devoid of merits and liable to be rejected. Accordingly, it is rejected.
tsn* Sd/- JUDGE