Dismissed

Smt. Ashwathamma v. Sri.Altaf Ahmed

Karnataka HC21 Dec 2021RFA/266/2016

Case brief

AI extract

What is this about?

This appeal challenged a trial court decree granting permanent injunction against defendants alleged to interfere with plaintiff's possession. The High Court dismissed the appeal, holding that the plaintiff established peaceful possession through tax receipts and physical enclosure, justifying the injunction despite disputed title and the execution of the sale deed via a power of attorney after th

What did the court decide?

The First Appeal was dismissed; the trial court's judgment and decree granting permanent injunction against the defendants were confirmed.

Smt. Ashwathamma Vs Sri.Altaf Ahmed — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21^ST DAY OF DECEMBER 2021

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BEFORE

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THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

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R.F.A.No.266 OF 2016

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BETWEEN:

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Smt. Ashwathamma

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W/o late Sri. Papaiah,

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Aged about 79 years.

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Sri. Umesh S/o Late Papaiah, Aged about 45 years, Occ:Business.

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Sri. Radhakrishna S/o Late Papaiah, Aged about 45 years, Occ: Business.

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Appellants No.1 to 3 are R/o No.5/36, Kadugondanahally, Bengaluru-560045. …Appellants

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(By Sri Shantesh Gureddi, Advocate)

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AND:

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Sri. Altaf Ahmed, S/o Sri. L.Abdul Ghaffoor, Aged about 49 years, Occ:Not known to appellant R/o No.298/1, Thimmaiah Road, Shivajinagar, Bengaluru-560051. …Respondent

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(By Sri M.D.Raghunath, Advocate)

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RFA.No.266/2016

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This Appeal is filed under Section 96 of Code of Civil Procedure, praying to set aside the judgment and decree passed by the Learned XIII Additional City Civil and Sessions Judge Mayohall Unit, Bengaluru in O.S.No.25653/2008 dated 27.01.2016 consequently dismiss the Suit O.S.No.25653/2008 and pass such other order, relief and direction which this Hon'ble Court deems fit under the facts and circumstances of the case in the interest of justice and equity.

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This Appeal coming on for Final Hearing through Physical Hearing/Video Conferencing Hearing, this day the Court delivered the following :

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JUDGMENT

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It is a defendants' appeal. The present respondent, as a plaintiff, had instituted a suit in O.S.No.25653/2008, on the file of learned XIII Addl.City Civil & Sessions Judge, Mayohall Unit, Bengaluru, (hereinafter for brevity referred to as `trial Court’), against the appellants herein arraying them as defendants, for the relief of permanent injunction.

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The summary of the case of the plaintiff in the trial Court was that he is the absolute owner of the suit schedule property and has acquired the same under a Deed of Sale dated 31.03.2004 and got Katha transferred in his name and that he is in peaceful possession and enjoyment of the suit schedule property by paying taxes to Bruhat Bengaluru Mahanagara Palike (BBMP) upto date. The defendants having no manner of

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right, title and interest in the suit schedule property are trying to interfere with his peaceful possession and enjoyment of the suit schedule property. He has also stated that he has enclosed the suit schedule property with a compound wall on all sides. The defendants with an intention to grab the land, are trying to interfere with his possession of the suit schedule property. One such attempt was made on 09.04.2008, however, the jurisdictional police were of no help to the plaintiff though he approached them. As such, he was constrained to file the suit.

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In response to the summons served upon them, the defendants appeared through their counsel and filed their written statement, wherein they denied all the plaint averments. They contended that the property in Survey N.141 of Kadugondanahalli, Bengaluru, now coming under the limits of BBMP Ward No.94, to an extent of 1 acre 30 guntas was belonged to Sri Papaiah, who was the husband of defendant No.1 and father of defendant Nos.2 and 3. The said Sri Papaiah died on the date 26.08.1999. After his demise, the property came to the defendants and they are in possession and enjoyment of the same. They specifically contended that during

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his life time, Sri Papaiah has not conveyed any property or any portion thereof in favour of the plaintiff nor he executed any General Power of Attorney in favour of anybody. They stated that they have also not parted with their right and possession of the property in favour of anybody. They further stated that the alleged execution of the Sale Deed is dated 31.03.2004 in favour of the plaintiff by Sri Papaiah through his alleged General Power of Attorney Holder and since Sri Papaiah himself was died in the year 1999, the question of General Power of Attorney Holder executing the Sale Deed in favour of the plaintiff in the year 2004 does not get any validity. They denied that the plaintiff is in possession of the suit schedule property.

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Based on the pleadings of the parties, the trial Court

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framed the following issues :

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1. Whether the plaintiff proves his lawful possession and enjoyment of suit schedule property, as on the date of the suit?

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2. Whether the plaintiff proves alleged interference by the defendants?

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3. Whether the plaintiff is entitle for the relief sought for?

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4. What decree or order?

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In support of his case, plaintiff got himself examined as PW-1 and one Sri Masood Parveez as PW-2 and got marked documents from Exs.P-1 to P-17 . The defendant No.2 got himself examined as DW-1 and got marked documents from Exs.D-1 to D-18.

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After recording the evidence and hearing both side, the trial Court while answering issues Nos.1 to 3 in the affirmative, proceeded to pass the impugned judgment and decree dated 27.01.2016. Challenging which, the defendants in the trial Court have preferred the present appeal.

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In response to the notice served upon him, the respondent is being appearing through his counsel.

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Records from the trial Court are called for and the same are placed before the Court.

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For the sake of convenience, the parties would be referred to as per their rank before the trial Court.

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Heard the arguments of learned counsel from both side and perused the materials placed before this Court, including the impugned judgment and the trial Court record.

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The points that arise for my consideration are,

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1. Whether the plaintiff has proved his

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lawful possession over the suit schedule property as on the date of the suit?

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2. Whether the plaintiff proves the alleged interference by the defendants in his alleged possession of the suit property?

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3. Whether the suit for bare injunction was maintainable?

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4. Whether the judgment and decree under appeal deserves any interference at the hands of this Court?

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The plaintiff as PW-1 in his examination-in-chief filed in the form of affidavit evidence has reiterated the contentions taken up by him in his plaint. Stating that he has purchased the suit schedule property under registered Deed of Sale, he has produced the Sale Deed dated 31.03.2004 and got it marked as Ex.P-1. He has also stated that the katha of the property was made in his name and he has been paying the taxes with respect to the suit property. In that regard, he has produced the Katha Certificate and Tax paid receipts and got them marked at Exs.P-2 to P-4. Stating that he has also paid

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the betterment charges to the BBMP, he has produced the Betterment charges receipt at Ex.P-5. He has also produced a office copy of the plaint in O.S.No.911/2006 said to have been filed in the Court of City Civil Judge, at Bengaluru and got it marked at Ex.P-9. The office copy of the written statement filed in O.S.No.911/2006 was marked at Ex.P-10. The certified copy of the order sheet in O.S.No.911/2006 was marked at Ex.P-11. PW-1 has also produced few colour photographs and got them marked at Exs.P-12 to P-17.

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He was subjected to cross-examination from the defendants' side.

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The plaintiff also got examined one Sri Masood Parveez as PW-2, who in his evidence has stated that he is the

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friend of the plaintiff, as well a witness to the Sale Deed at Ex.P-1. He has stated that the plaintiff is in physical possession of the suit schedule property.

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The defendant No.2 Sri P.Umesh, as DW-1, in his examination-in-chief filed in the form of affidavit evidence has reiterated the contentions taken up by the defendants in their written statement, wherein they have given more stress on

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denying the title of the plaintiff with respect to the suit schedule property. The witness has stated that his father Sri Papaiah since died on 26.08.1999, the General Power of Attorney Holder, from whom the plaintiff claims to have purchased the property, cannot get any title, because, from the date of death of Sri Papaiah, there would be no valid and existing Power of Attorney. At the same time, he also denied that Sri Papaiah had executed General Power of Attorney in favour of one Sri A.S.Anwer Shareef, who is the vendor to the plaintiff under Ex.P-1. They also denied the plaintiff's alleged possession over the suit schedule property and also alleged interference by them in the suit schedule property.

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In his support, DW-1 got produced and marked a certified copy of the Land Tribunal's order at Ex.D-1, the certified copy of a sketch at Ex.D-2, an endorsement issued by the office of the Land Tribunal, Bengaluru North Taluk, at Ex.D-3, certified copy of the Mutation register extract at Ex.D-4, a document shown to be a genealogical tree at Ex.D-5, RTC extracts with respect to Survey No.141 at Exs.D-6 to D-17 and a document which was described as a certified copy of death certificate of Sri Papaiah at Ex.D-18.

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The witness was cross-examined from the plaintiff's side

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in detail, wherein he adhered to his original version.

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In the light of the above, it was the argument of learned counsel for the appellants/defendants that since the defendants have specifically denied the title of the plaintiff not merely by denying the Sale Deed, but, questioning the validity of the very Sale Deed at Ex.P-1, the suit for bare injunction was not maintainable, however, the trial Court has not considered the said aspect. He further submitted that even according to the plaintiff, the property was purchased by an alleged General Power of Attorney Holder of Sri Papaiah. The said Sri Papaiah had never executed General Power of Attorney in favour of Anwer Shareef. The General Power of Attorney is also not produced and marked as an exhibit. Added to that, much before the Sale Deed is shown to have been executed in favour of the plaintiff by the said General Power of Attorney Holder, the alleged executant Sri Papaiah since was already dead, the General Power of Attorney does not convey any right, title or interest in the suit property to the plaintiff. However,

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the trial Court committed an error in suspecting the death certificate. Learned counsel also submitted that, except an oral

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statement of PW-1, there is nothing on record to show that there was any attempt of interference in the alleged possession of the suit property by the defendants. The said aspect also was not considered by the trial Court.

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On the other hand, learned counsel for the respondent/plaintiff in his argument submitted that the very same defendants, as plaintiffs, had earlier instituted a suit in O.S.No.911/2006 in the Court of learned City Civil Judge, at Bengaluru, for the relief of permanent injunction for the entire property comprised in Survey No.141. The said suit came to be dismissed for non-prosecution. However, even after getting the said suit restored by filing a Miscellaneous Petition, the plaintiffs did not prosecute the matter, as such, the said suit came to be dismissed for the second time. He also submitted that the photographs at Exs.P-12 to P-17, which are admittedly of suit schedule property, when considered in the light of the Katha certificate, Tax paid receipts and Betterment charges paid receipt produced by the plaintiff, the same would go to show that the plaintiff has been in possession of the suit schedule property. As such, the trial Court has rightly decreed

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the suit of the plaintiff, in which, interference by this Court is not warranted.

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The plaintiff/respondent has not disputed that the property in Survey No.141 of Kadugondanahalli, Bangalore, to an extent of 1 acre 30 guntas was originally granted to Sri. M. Papaiah, in a manner known to law. He does not also dispute the confirmation of occupancy rights passed by the Court of the Land Tribunal, Bangalore North Taluk, Bangalore, in the proceedings before it bearing No.L.R.F.45/83-84 and dated 12-03-1987, the certified copy of which is at Ex.D-1. However, the contention of the plaintiff is that, a portion of the said property, which is the suit schedule property was sold to him by the very same grantee - Sri. M. Papaiah, through his General Power of Attorney by name Sri. A.S. Anwer Shareef, under a registered Sale Deed dated 31-03-2004, which is at Ex.P-1.

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Learned counsel for the defendants/appellants contending that, the sale by a General Power of Attorney holder, in the absence of a convincing document, is not recognisible, has relied upon a judgment of the Hon'ble Apex Court in the case of Suraj Lamp and Industries Private

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Limited (2) through Director Vs. State of Haryana and

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another reported in (2012) 1 Supreme Court Cases 656, wherein the Hon'ble Apex Court was pleased to hold that the immovable properties can be transferred/conveyed only by a Deed of Conveyance (Sale Deed) duly stamped and registered as required by law. After explaining the nature and scope of an Agreement for Sale, the Power of Attorney and living Will, the Hon'ble Apex Court was further pleased to observe that, the GPA sales or SA/GPA/living Will transfers neither convey any title nor do they amount to transfer of, or create interest in, immovable property except to the limited extent of Section 53-A of the Transfer of Property Act.

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The facts of the present case varies from the one which was under consideration before their Lordships [in Suraj Lamp's case (supra)]. In the instant case, the sale of the suit schedule property is not in the form of either an affidavit or a General Power of Attorney or an affidavit by a General Power of Attorney. On the other hand, a perusal of the Sale Deed at Ex.P-1 would clearly go to show that, the sale is through a Deed of Conveyance which Sale Deed is also a registered document. The vendor under the Sale Deed is

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shown as none else than late Sri. M. Papaiah himself, however,

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he is being shown as represented by his General Power of Attorney holder - Sri. A.S. Anwer Shareef. Therefore, since the sale is not a sale in the form of a General Power of Attorney or a living Will as substitution for the registered conveyance document, the benefit of the principle laid down in Suraj

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Lamp's case (supra) is not applicable to the case of the defendants/appellants in the present case.

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The plaintiff though claims that the suit schedule property has been purchased by him under a registered Sale Deed at Ex.P-1, but the undisputed fact remains that the said Sale Deed was executed by one Sri. A.S. Anwer Shareef, in his capacity as an alleged General Power of Attorney holder for the vendor Sri. M. Papaiah. According to the defendants (appellants), the said Sri. M. Papaiah was dead on the Dt.26-08-1999 itself, as such, if at all it is taken that he had executed the Power of Attorney during his life time, still, the same would come to an end by the death of the executant - Sri. M. Papaiah on the date 26-08-1999. Since the Sale Deed, admittedly, was executed nearly four years thereafter, which

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was on 31-03-2004, the said Sale Deed would have no recognition in the eye of law.

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On the contrary, the plaintiff has disputed the very death of the said Sri. M. Papaiah. Though the defendants have produced a document at Ex.D-18, stating the same to be the Death Certificate of the said Sri. M. Papaiah, however, the plaintiff has denied the authenticity of the said document. Several suggestions to that effect were made in the crossexamination of DW-1 (defendant No.2) questioning the genuinity and authenticity of the said document.

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A perusal of the document at Ex.D-18 would go to show that, the said document is shown to be a Death Certificate shown to have been issued by the competent authority under Section 17 of the Registration of Births and Deaths Act, 1969 and Form No.10. The document is described as a certified copy, while accepting the same in the evidence of DW-1. The learned counsel for the defendants/appellants submits that the said document is the original Certificate issued by the competent authority which has been opposed by the learned

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counsel for the plaintiff/respondent who submits that the same is a carbon copy of the original.

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A perusal of Ex.D-18 would go to show that it appears to be the original Certificate but not a carbon copy, as contended by the learned counsel for the plaintiff/respondent. When the said document is an extract of a Register of Deaths maintained by the Registrar of Births and Deaths under Rule 7 of the Registration of Births and Deaths Rules, 1999, which is in consonance with the provisions of the Registration of Births and Deaths Act, 1969, the extract of the entry regarding the death, though issued in the form of a Certificate of Death, would be under the Rules called as the certified copy only. As such, no error can be noticed in identifying the said document at Ex.D-1 by the producer of the said document (DW-1) as the certified copy of the document.

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Further, Section 77 of the Indian Evidence Act, 1872, permits proving a public document by producing a certified copy of it. As such merely because the plaintiff has denied the death of his alleged vendor - Sri. M. Papaiah and denied the document at Ex.D-18, the authenticity of the document at Ex.D-18 cannot

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be ignored. In this regard, the Trial Court, without appreciating the law relating to the proof of public document and misreading the document at Ex.D-18, has erroneously come to a conclusion that, the death of Sri. M. Papaiah has not been established by the defendants before it.

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When the death of Sri. M. Papaiah, the alleged vendor of the suit schedule property to the plaintiff is shown to be on Dt. 26-08-1999, but admittedly, when the registered Sale Deed at Ex.P-1 is dated 31-03-2004, it stands established that the said Sale Deed came into existence long after the death of Sri. M. Papaiah. Further admittedly, Ex.P-1 is executed by one Sri. A.S. Anwer Shareef in his alleged capacity as the General Power of Attorney holder of the said Sri. M. Papaiah. Admittedly, the General Power of Attorney either in its original as a primary evidence or in its any other form as secondary evidence has not been produced by the plaintiff in the case. Therefore, it is not known as to what were the recitals of the General Power of Attorney, said to have been given to Sri. A.S. Anwer Shareef by the original grantee - Sri.M. Papaiah. However, the question of the title of the plaintiff need not be gone in depth in this appeal since the suit was only for bare injunction. Even though the

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defendants have disputed the title of the plaintiff over the suit schedule property, the production of the Death Certificate of Sri. M. Papaiah, at Ex.D-18, would intensify the cloud against the title of the plaintiff, however, the plaintiff producing Exs.P-2, P-3, P-4 P-8 and Exs.P-12 to P-17 cannot be ignored.

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Ex.P-2 is the khata Certificate issued by the BBMP in favour of the plaintiff, showing the khatha with respect to a particular property, which according to both parties, is the suit schedule property, has been made in the name of the plaintiff. Ex.P-3 is a document relating to registration of khatha with the very same Municipal Corporation with respect to the suit property. Ex.P-4 is a tax paid receipt Dt.01-10-1995 upto the year 2004-05 and also for subsequent years up to the year 2009-10, which includes the date of institution of the original suit before the Trial Court. Ex.P-8 is a receipt said to have been issued by the BBMP as a proof of collecting the betterment charges with respect to the suit property. These documents have not been specifically denied or disputed from the defendants' side. Therefore, even though the title of the plaintiff upon the suit schedule property has been denied or disputed by the defendants, but regarding the possession of the property and

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these municipal Corporation documents including the tax paid receipts show that as on the date of the suit, it was the plaintiff who was paying the taxes upon the property holding the khatha with respect to the suit property in his name.

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In addition to the above, the plaintiff has also produced six colour photographs at Exs.P-12 to P-17 which shows the picture of a vacant site and adjoining area. DW-1 (defendant No.2) to whom these photographs were confronted, has admitted that these photographs are of the suit schedule property only. The photographs depict the erection of a compound wall around the suit schedule property, which property in the photographs, appears to be in the form of a vacant site with a tree there upon. The plaintiff has claimed both in his plaint as well in his evidence as PW-1 that, he has been in possession of the property since he purchased the same under Ex.P-1 and has erected a compound wall around his property.

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PW-2, whose evidence was not cross-examined by

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the defence in the Trial Court, also has stated that, as on date, it was the plaintiff who was in possession of the property from

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the date of its purchase by him. PW-2 has further stated that, he has been a witness also to the Sale Deed at Ex.P-1. As such, as claimed by him, he is a known person to plaintiff and a friend of him. The evidence of PW-1 that he has erected a compound wall around the suit schedule property has not been categorically denied by the defendants, in the crossexamination of PW-1 except a general denial suggestion made to the witness. On the other hand, the Sale Deed at Ex.P-1, the revenue records at Exs.P-2, P-3, P-4 and P-8 makes one to believe that it is the plaintiff, who, after his alleged purchase of the suit schedule property under Ex.P-1, got the revenue entries made in his name and has put up the compound wall. Otherwise, there is nothing from the defendants' side either in their pleading or in their evidence as to whether they have retained the possession of the suit schedule property, if so and in what manner. They have not even stated that the compound wall found around the suit schedule property was erected by them. Therefore, if they have not erected and if they deny that the plaintiff has not erected the compound wall around the suit schedule property, then, it is nobody's case that a compound wall has been put up by some body else or that it was there

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prior to the grant of land to the original grantee - Sri. M. Papaiah. Therefore, from these reasonings also, it can be believed that, it is the plaintiff who has put up the compound wall around the suit schedule property to establish his possession over the suit property.

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Learned counsel for the plaintiff/respondent submitting that, since the respondent (plaintiff) has not only produced the document of title at Ex.P-1, but also has produced the oral and documentary evidence regarding the possession of the suit schedule property, the relief of injunction can be granted in his favour, without driving him to institute a suit for the relief of declaration, has relied upon a judgment of the Hon'ble Apex Court in the case of Ramegowda(D) by L.Rs. Vs. M. Varadappa Naidu (D) by L.Rs. and another reported in AIR 2004 Supreme Court 4609.

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In the said case, wherein also, both the parties were claiming their title with respect to the very same property and the suit was for the relief of injunction, the Hon'ble Apex Court was pleased to observe that, when the title of either party was not proved and the plaintiff was found to be in settled possession,

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he would be entitled to the relief of injunction, restraining the defendant from interfering with his possession.

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In the instant case also, even though the defendants deny or dispute the title of the plaintiff and claim their title against the suit property, on the contrary, the plaintiff also is asserting his title over the very same property through a registered document at Ex.P-1, however, the plaintiff, by producing the other corroborative evidence in the form of Exs.P-2, P-3, P-4, P-8 and Exs.P-12 to P-17 has established that, he is in actual physical possession of the property, as such, without prejudice to the right of the defendants to file a suit for declaration of possession and title, it can be held that the plaintiff has proved that, he is in peaceful possession of the suit schedule property as on the date of the institution of the suit.

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The plaintiff contended both in his plaint as well in his evidence that the defendants were causing interference in his lawful possession of the suit schedule property. He has stated that the defendants, taking advantage of the plaintiff residing at a distance place from the location of the suit schedule property, trying to takeaway the possession of the suit schedule

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property by attempting to trespass into the suit schedule property. He has also stated that they have even attempted to demolish the compound wall on the hind side, which was obstructed and resisted by the Power of Attorney holder of the plaintiff on the date 09-04-2008. The plaintiff has also stated that, his effort to lodge a Police complaint in that regard did

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not yield any result and that he could not get any help/assistance by the jurisdictional Police, since they did not receive his complaint, stating that the dispute would be a civil dispute.

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Even though the defendants have denied in their Written Statement as well in the cross examination of PW-1 that, no such interference was caused by the defendants, however, the pleading of plaintiff as well his evidence as to what attempt was made by the defendants and his statement that he could not even get any help from the jurisdictional Police stating that the dispute is a civil dispute, cannot be discarded or disbelieved. Therefore, I am of the view that the plaintiff has made out a case for grant of the relief of permanent injunction in his favour and that merely because his title was denied or disputed by the other side, the suit cannot

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be held as not maintainable, since the plaintiff has produced several other corroborative evidence like the revenue records, the sufficiency of which proof has been recognised by the Hon'ble Apex Court in Ramegowda's case (supra). As such, I do not find any reasons warranting any interference in the impugned judgment and decree.

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Accordingly, I proceed to pass the following :

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O R D E R

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[i] The Regular First Appeal stands dismissed;

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[ii] The judgment and decree dated 27-01-2016 passed by the learned XIII Additional City Civil and Sessions Judge, Mayo Hall Unit, Bangalore, in O.S.No.25653/2008, stands confirmed.

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Registry to transmit a copy of this judgment along

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with the Trial Court records to the concerned Court, without delay.

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Sd/JUDGE

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Bk/BMV*

Smt. Ashwathamma v. Sri.Altaf Ahmed

Case brief

What is this about?

What did the court decide?

Smt. Ashwathamma v. Sri.Altaf Ahmed

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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