Allowed

Ngef House Building Co-Operative Society (R) v. Meera Chengappa

Karnataka HC30 Nov 2021RFA/850/2008

Case brief

AI extract

What is this about?

Common judgment in two cross suits over adjacent sites. The High Court held the society proved its possession of site No.51/A and the interference by the rival claimant, set aside the trial court's common judgment, decreed the society's suit for permanent injunction and dismissed the rival's suit.

What did the court decide?

Both appeals allowed; judgment and decrees dated 25.08.2007 set aside; O.S.No.3891/1991 decreed with permanent injunction restraining interference; O.S.No.4215/1994 dismissed as devoid of merits.

Ngef House Building Co-Operative Society (R) Vs… — Cooperative Societies | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30^TH DAY OF NOVEMBER 2021

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BEFORE

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

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REGULAR FIRST APPEAL No.851 OF 2008

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C/w. REGULAR FIRST APPEAL No.850 OF 2008

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In RFA.No.851/2008 :

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BETWEEN:

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NGEF House Building Co-operative Society (R), By its Secretary, No.215, Link Road, Seshadripuram, Bangalore-560 020. .. Appellant

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( By Sri T.S.Venkatesh, Advocate )

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AND:

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Chennappa, S/o Thayappa @ Muniyappa, 2^nd Main, Sachidananda Nagar, Thayappa Layout, Near NGEF House Building Co-operative Society, Bangalore-94.

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M.Nagaraj, S/o Thyappa @ Muniyappa, No.4, Mahesh Nilaya, Opp. St.Luka's Medical Centre,

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RFA.No.851/2008 C/w.RFA.No.850/2008

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Nagashettihalli, Bangalore-94.

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Meera Chengappa, W/o B.M.Chengappa, No.50, Mission Road Cross, Bangalore-2.

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Belliappa, 3^rd Cross, Nagashettihalli, Bangalore-560 094.

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Munegowda, 5^th Cross, Nagashettihalli, Bangalore-560 094. .. Respondents (Respondent Nos.2, 4 and 5 are deleted vide Court order dated 04.06.2010) ( By Sri M.J.Alva, Advocate for R-3 And Respondent No.1-served)

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This Appeal is filed under Section 96 of Code of Civil Procedure, praying to call for the records and set aside the judgment and decree passed in O.S.No.3891/1991, dated 25.08.2007, passed by the 5^th Addl.City Civil Judge, Bangalore, and praying to decree the suit as prayed for in the suit.

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In RFA.No.850/2008 :

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BETWEEN:

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NGEF House Building Co-operative Society (R), By its Secretary, No.215, Link Road, Seshadripuram, Bangalore-560 020. .. Appellant

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( By Sri T.S.Venkatesh, Advocate )

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RFA.No.851/2008 C/w.RFA.No.850/2008

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AND:

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Meera Chengappa, W/o B.M.Chengappa, No.50, Mission Road Cross, Bangalore-2. .. Respondent

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( By Sri M.J.Alva, Advocate And Sri Pradeep H.S., Advocate )

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This Appeal is filed under Section 96 of Code of Civil Procedure, praying to call for the records and set aside the judgment and decree passed in O.S.No.4215/1994, dated 25.08.2007, passed by the 5^th Addl.City Civil Judge, Bangalore, and to dismiss the suit as prayed for.

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These Appeals having been heard through Physical Hearing/Video Conferencing Hearing and reserved on 11.11.2021, coming on for pronouncement of Judgment this day, the Court delivered the following:

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JUDGMENT

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RFA.No.851/2008 has arisen out of the judgment and decree passed in O.S.No.3891/1991 and RFA.No.850/2008 has arisen out of the judgment and decree passed in O.S.No.4215/1994. Both these appeals have arisen out of a common judgment passed by the learned V Addl.City Civil Judge, at Bengaluru City, (hereinafter for brevity referred to as `trial Court’), dated 25.08.2007.

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The appellant in RFA.No.851/2008 was the plaintiff in O.S.No.3891/1991, wherein the present respondent No.3-

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Smt.Meera Chengappa was the defendant No.3. The appellant in RFA.No.850/2008 was the sole defendant in O.S.No.4215/1994, wherein the present respondent No.3 was the plaintiff. The present respondent Nos.1, 2, 4 and 5 were the defendant Nos.1, 2, 4 and 5 respectively in O.S.No.3891/1991, however, during the pendency of these appeals, the respondent Nos.2, 4 and 5 were deleted as per the order of this Court dated 04.06.2010. Both the suits in the trial Court were for the relief of permanent injunction.

¶37

O.S.No.3891/1991 which was filed for the relief of permanent injunction against the defendants therein was with respect to suit schedule property, which is a site bearing No.51/A, measuring East to West 35' + 58'÷2 and North to South 65' + 62.6'÷2, comprised in Survey No.66/4 and situated at Nagashettihalli, Bengaluru North Taluk, Bengaluru.

¶38

The summary of the case of the plaintiff in the said suit

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was that the plaintiff, which is NGEF House Building Co-operative Society (hereinafter for brevity referred to as `Society'), had purchased 3 acres 12 guntas of land in Survey

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No.66/4 of Nagashettihalli, Bengaluru North Taluk, Bengaluru, under a registered Sale Deed dated 24.02.1972. A Layout was formed by the Society, which was duly approved by the Bengaluru Development Authority, Bengaluru (hereinafter for brevity referred to as BDA'). The suit schedule property is a part and parcel of the said land bearing Survey No.66/4 of Nagashettihalli, Bengaluru North Taluk, Bengaluru. The defendant No.3 therein-Smt.Meera Chengappa (hereinafter for brevity referred to as Smt.Meera Chengappa'), attempted to interfere with the Society's possession and also attempted to encroach upon the Society's said site, which constrained the Society to file a suit for permanent injunction against Smt.Meera Chengappa and others in O.S.No.3891/1991.

¶43

Smt.Meera Chegappa, as defendant No.3, entered her appearance in the said suit i.e., O.S.No.3891/1991 and filed her written statement, wherein she denied the averments made in the plaint and her alleged encroachment of the suit schedule property. She contended that under a registered Sale Deed dated 08.12.1989, she purchased a site measuring 93' x 62' and constructed a compound wall around the site. The

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Secretary of the Society started demolishing the compound wall on the Eastern side, which constrained her to file a suit against the Society in O.S.No.10477/1991, on the file of Addl.City Civil Judge, Bengaluru. The site so purchased by her has not been acquired by the BDA. She further contended that she is the absolute owner of site bearing VPH.No.408, purchased by her under registered Sale Deed dated 08.12.1989 and that she has been in possession of the said property since then. She also stated that it is the Society which has made an attempt to occupy her site.

¶47

In O.S.No.4215/1994, was filed by Smt.Meera Chengappa as a plaintiff for the relief of permanent injunction, wherein the suit schedule property was the piece and parcel of land together with building consisting of Mangaluru Tile house, bearing old No.4/5 (new VPH.No.408) of Nagashettihalli Panchayath, now Geddalahalli Panchayat, situated at Nagashettihalli, Kasaba Hobli, Bengaluru North Taluk and measuring East to West 93' and North to South 62'. The summary of the plaint averments are that, Smt.Meera Chengappa, the plaintiff therein, had purchased the said suit

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schedule property under registered Sale Deed dated 08.12.1989 from Sri.Muniyappa and others. Smt.Meera Chengappa after purchasing the suit schedule property, has been paying taxes by getting the katha transferred to her name. The Society, which was the defendant in O.S.No.4215/1994, started demolishing a portion of the compound wall on the Eastern side and instituted a suit for permanent injunction in O.S.No.3891/1991. Though she had nothing to do with the site bearing No.51/A, which was the suit schedule property in O.S.No.3891/1991, since the Society attempted to demolish a portion of the compound wall in her suit schedule property, she filed a suit for permanent injunction against the Society in O.S.No.10477/1991. Despite the same, the Society continued to interfere in her peaceful possession of the property. In the meantime, she had withdrawn O.S.No.10477/991. As such, she was constrained to file the present suit in O.S.No.4215/1994 against the Society for the relief of permanent injunction.

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The Society as a defendant, filed its written statement in O.S.No.4215/1994, wherein it contended that the suit of Smt.Meera Chengappa, the plaintiff in O.S.No.4215/1994, is

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with respect to land in Survey No.66/8, which land, in fact, had already been acquired by the BDA. Adjacent to the said land in Survey No.66/8, there is a site belonging to the Society formed by it in Survey No.66/4. Since Smt.Meera Chengappa attempted to interfere in the possession of the said site of the Society, it filed a suit against her in O.S.No.3891/1991. It is thereafter, Smt.Meera Chengappa has filed a false suit in O.S.No.4215/1994, when, in fact, she could have contested the matter with her stand in O.S.No.3891/1991 itself.

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Based on the pleadings of the parties, the trial Court framed the following issues :

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Issues in O.S.No.3891/1991 :

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1. Whether the plaintiff proves existence of suit property as mentioned in the Schedule?

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2. Whether the plaintiff proves its lawful possession over the suit property as on the date of suit?

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3. Whether the plaintiff proves that defendants are illegally interfering in such possession of the plaintiff?

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4. Whether the plaintiff proves cause of action for suit?

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5. Whether the plaintiff proves that it has made out a case and is entitled to the reliefs claimed?

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6. To what relief, the parties are entitled?

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Issues in O.S.No.4215/1994 :

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1. Whether the plaintiff proves she is the absolute owner in exclusive possession of suit property?

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2. Whether plaintiff proves interference by defendant?

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3. What order or Decree?

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A common evidence was recorded in both the suits by the trial Court, wherein, Smt.Meera Chengappa was examined as PW-1. She also got examined one Sri Gangadharappa as PW-2 and got marked documents from Exs.P-1 to P-6 . On behalf of the Society, its Official Liquidator/Administrator by name Sri C.N.Rudrappa was examined as DW-1 and one Sri Chennabasavaiah as DW-2 and got marked documents from Exs.D-1 to D-25.

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After recording the evidence and hearing both side, the trial Court by its impugned judgment dated 25.08.2007, while answering issues Nos.1 to 5 in the negative in O.S.No.3891/1991 and issue Nos.1 and 2 in the affirmative in O.S.No.4215/1994, dismissed the suit of the Society filed in O.S.No.3891/1991 and decreed the suit of Smt.Meera Chengappa in O.S.No.4215/1994 and granted the relief of

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permanent injunction in her favour as prayed. It is challenging both the judgment and decrees, the Society has preferred both these appeals.

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In response to the notice served upon them, the respondent No.1 though served, has remained absent and as observed above, the respondent Nos.2, 4 and 5 were deleted vide Court order dated 04.06.2010 in RFA.No.851/2008 and respondent No.3 is being represented by her counsel.

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In RFA.No.850/2008, both parties are being represented by their learned 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 in both the appeals 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 Society has proved the existence of suit property which is mentioned in Schedule to O.S.No.3891/1991?

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2. Whether the Society proves its lawful possession over the suit property in O.S.No.3891/1991?

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3. Whether Smt.Meera Chengappa, the plaintiff in O.S.No.4215/1994, proves her lawful possession over the suit schedule property of that suit?

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4. Whether the judgment and decrees passed in O.S.No.3819/1991 and in O.S.No.4215/1994 warrants any interference at the hands of this Court?

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Smt.Meera Chengappa, as a plaintiff in O.S.No.4215/1994, got herself examined as PW-1. In her examination-in-chief, she has stated that, she has purchased the suit schedule property under registered Sale Deed dated 08.12.1989 from its vendors. She got marked the said Sale Deed at Ex.P-1. Stating that Katha was made in her name, she got marked the Katha Certificate at Ex.P-2. Further stating that she has been paying the tax for the said property, she got

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marked two Tax receipts at Exs.P-3 and P-4. Further stating that she has also paid the Betterment charges, she has produced a receipt with regard to the same at Ex.P-5 and got marked the Encumbrance Certificate at Ex.P-6. She further stated that the suit schedule property had gone to the share of his vendors in a suit for partition. In the very same evidence, she also stated that she knows the defendant, which was the Society and the said Society has formed a Layout on the Eastern side of her property. She further stated that the defendant-Society had attempted to demolish the compound wall in her property, which made her to initially institute a suit in O.S.No.10477/1991. However, since the defendant-Society

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did not continue the interference, she withdrew the suit. But later, since the defendant-Society once again on 19.07.1994, caused damage to the compound wall to her property, she filed the present suit.

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She was subjected to a detailed cross-examination,

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wherein the certified copy of the order sheet in O.S.No.10477/1991 was marked at Ex.D-1 and a copy of the

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memo filed by Smt.Meera Chengappa as a plaintiff in the said suit was marked at Ex.D-2.

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A perusal of Exs.D-1 and D-2 would go to show that when she filed the suit in O.S.No.10477/1991, she could not get an interim order of temporary injunction as could be seen from the order sheet dated 01.07.1991. It is thereafter, she filed a memo on 10.12.1993, seeking dismissal of the suit as not pressed. Accordingly, the said suit came to be dismissed. Therefore, nothing has been mentioned in the said memo, much less, the contention of Smt.Meera Chengappa that she withdrew the suit since the defendants did not continue their alleged interference in the suit property. As such, the contention of PW-1 that she withdrew the suit in O.S.No.10477/1991 since there was cessation of interference by the Society, does not hold water.

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In the very same cross-examination of PW-1, it was further elicited from the witness that she herself was not aware as to in which particular survey number, her suit schedule property was lying. She also stated that she was not aware

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that her suit schedule property falls in Survey No.66/8 and the entire property in Survey No.66/8 has been acquired by the BDA. In that connection, a copy of Final Notification of acquisition of several survey numbers, including Survey No.66/8 was confronted to the witness and got marked as Ex.D-3. More interestingly, no where in her evidence, she has stated that the alleged compound wall said to have been existing in her suit property was put up by her by being in actual and lawful possession of her suit schedule property.

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Smt.Meera Chengappa got examined one

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Sri Gangadharappa as PW-2. The said witness in his examination-in-chief filed in the form of affidavit evidence has stated that the suit schedule property of Smt.Meera Chengappa is situated opposite to his house on the Southern side. He has stated that he is also a purchaser of revenue site, but, from a different vendor and thereafter putting up construction, he is residing there. He has stated that the suit property in O.S.No.4215/1994 was originally belonging to the younger brother of his vendor by name Sri Nagaraj and in the year 1989, it was sold to the plaintiff and it was a private revenue

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Layout. He has also stated that there was interference by the Society in the possession of the suit property of Smt.Meera Chengappa.

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What is to be noticed in his evidence is that, except stating that Smt.Meera Chengappa was a purchaser of the suit property, he has no where stated as to how he was acquainted with Smt.Meera Chengappa or how he came to know about the alleged purchase of the suit property in O.S.No.4215/1994 by Smt.Meera Chengappa. He has not even stated that the knowledge of the said sale was given to his knowledge or notice by anyone, including Smt.Meera Chengappa. Thus, his evidence is of no much benefit to Smt.Meera Chengappa.

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So far as the Society is concerned, it got examined two witnesses as DW-1 and DW-2 respectively.

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DW-1 by name Sri C.N.Rudrappa, claiming himself to be the fourth Liquidator of the Society, has in his examination-inchief filed in the form of affidavit evidence has reiterated the contents of the plaint in O.S.No.3891/1991 and of the written statement of the defendant filed in O.S.No.4215/1994.

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He reiterated that, among various survey numbers purchased or acquired by the Society, including Survey No.66/4 of Nagashettihalli village, sites were formed and one among the site is the suit schedule property bearing site No.51/A. It is in that site, Smt.Meera Chengappa is causing interference unauthorisedly. He also stated that, in that regard, the Society has got surveyed the Survey No.66/4 through a retired Assistant Director of Land Records (DW-2) and got confirmed that suit schedule property of O.S.No.3891/1991, which is described as site No.51/A, falls within the Survey No.66/4 of Nagashettihalli village, which was a land belonging to the Society, wherein the Society has formed the Layout. He got produced the alleged Survey Map said to have been prepared by DW-2 and got it marked as Ex.D-7. Stating that in connection with the interference by Smt.Meera Chengappa in Society's lawful possession of site No.51/A, the Society had also lodged a police complaint, the witness has produced a copy of the said police complaint at Ex.D-12 and an acknowledgment issued by the police at Ex.D-13. The witness also stated that, near the Layout, hoarding has been erected

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and exhibited, which go to show the details of the sites formed in the Layout and shows that more than fifty sites are formed in Survey No.66/4.

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DW-1 was subjected to a detailed cross-examination from Smt.Meera Chengappa's side, where the witness at one place has stated that fifty sites were formed by the Society and the Layout plan had been approved by the BDA. He also stated that the Society has no claim over the property purchased by the plaintiff in O.S.No.4215/1994 on 08.12.1989. He further admitted a suggestion as true that Ex.D-7 was not got prepared through Survey Department. Thus, he denied the suggestion that there is no site No.51/A in existence.

¶116

The Society examined one Sri B.Chennabasavaiah, who is said to be a retired Assistant Director of Land Records, as DW-2, who in his examination-in-chief has stated that, as per the summons, he is producing the certified copy of the Sale Deed dated 24.02.1972 at Ex.D-1 and the certified copies of the Tippani at Exs.D-22 to D-25. He further stated that he

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has served in the Survey Department for thirtytwo years and retired in the year 1983 as Assistant Director of Land Records. He also stated that the Survey Map at Ex.D-7 was prepared by him and its contents are correct. He stated that, as shown in Ex.D-7, site No.51/A is within Survey No.66/4 belonging to the Society. He had visited the spot on 02.12.1991 and thereafter, has prepared Ex.D-7. He has also stated that site No.51/A is still vacant and to the West of site No.51/A, there is Survey No.66/8.

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This witness was also subjected to a detailed crossexamination from Smt.Meera Chengappa's side.

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It is in the light of the above pleadings and evidence of the parties, it was the argument of learned counsel for the Society, which Society is the appellant in both these appeals, that Smt.Meera Chengappa is claiming her alleged possession over the property only through the Sale Deed at Ex.P-1. He further submitted that the said Sale Deed cannot be believed in view of the fact that the said Sale Deed is executed by her husband only in his capacity as a General Power of Attorney

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Holder of the vendors. Thus, a sale by husband to the wife of a non-existing property cannot be believed and acted upon. He further stated that, except Ex.P-1, all other documents in Exhibit-`P' series i.e., Exs.P-2 to P-5 are the documents which came into existence subsequent to the year of 1998, which was much after the institution of the Original Suit. Therefore, they are the documents created with after thought and not reliable.

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He further submitted that, O.S.No.10477/1991 filed by Smt.Meera Chengappa was withdrawn by her since she could not able to get an interim order of temporary injunction in the said suit. He also stated that the Sale Deed at Ex.P-1 does not mention as to how the vendors of the property to Smt.Meera Chengappa got their title in their favour, except mentioning about the suit bearing O.S.No.8936/1980. Further, there are no further details about the said suit. With this, he submitted that Ex.P-1 is a collusive document between the husband of Smt.Meera Chengappa and Smt.Meera Chengappa.

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Learned counsel further submitted that, undisputedly the Survey No.66/8 is adjacent to the property of the Society and

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Smt.Meera Chengappa claims her suit schedule property as in the said survey number. The documents produced by Smt.Meera Chengappa also shows that her alleged property is in Survey No.66/8. However, the entire land in Survey No.66/8 having been acquired by BDA, the question of anybody, much less, the husband of Smt.Meera Chengappa as a General Power of Attorney Holder executing the Sale Deed in favour of Smt.Meera Chengappa, selling a non-existing property, does not arise. He also submitted that the alleged Sale Deed of Smt.Meera Chengappa at Ex.P-1 itself on the Eastern side of the property shows the boundaries as the NGEF Layout, which is the Society's Layout. As such, taking advantage of the vacant site of the Society, which is site No.51/A and encroaching some more land in the adjoining land bearing Survey No.66/8, she is falsely claiming her possession over the alleged property. However, the trial Court without appreciating the evidence in its proper perspective, has erroneously dismissed the suit of the Society, but, allowed the suit filed by Smt.Meera Chengappa.

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Learned counsel for Smt.Meera Chengappa in his brief argument submitted that the total area of the suit schedule property in Smt.Meera Chengappa's plaint is 5,766 sq.ft., whereas, the suit schedule property of the Society's plaint is 2,900 sq.ft. According to the Society, the total number of sites formed by the Society was only fifty, which is also stated by their own witness as DW-1, as such, the question of there being in existence any site No.51/A does not arise. He further stated that the Society even after stating that there is an approved plan by the BDA for the formation of Layout by it, has failed to produce any such plan, which also go to show that there is no site in question bearing No.51/A.

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Learned counsel further submitted that the Society's witness i.e., DW-1 in his evidence has admitted that Smt.Meera Chengappa has put up a compound wall in her suit schedule property and thereby has admitted the possession of the suit schedule property in O.S.No.4215/1994 by the plaintiff therein. He also stated that the non-existence of the property, much less, a site in Survey No.66/8, cannot be contended by the Society and at the best, the same can be contended by the

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BDA, which is admittedly not a party to the suit. With this, he submitted that the impugned judgment does not warrant any interference at the hands of this Court.

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According to the Society and its witnesses i.e., DW-1, the Society had formed the Layout in the land bearing Survey No.66/4 of Nagashettihalli Village. In its plaint, the Society has not specifically stated as to how many sites were carved in the said Layout or in Survey No.66/4. However, its witness i.e., DW-1, in his cross-examination has stated that fifty sites were formed by the Society in the land bearing Survey No.66/4. It is considering these two aspects that the Society has not produced the approved Layout plan and its own witness has stated that Society has formed fifty sites, the trial Court arrived at a conclusion that there cannot be any additional site, much less, suit schedule property in the Society's suit with site No.51/A.

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Simultaneously, the trial Court also observed that since Smt.Meera Chengappa, the plaintiff in O.S.No.4215/1994, has produced the registered Sale Deed in her favour and holds the

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title and also the Katha Certificate and Tax Assessment Extract since shows her name, it has to be held that, she has been in lawful possession of the suit schedule property in O.S.No.4215/1994. It also observed that DW-1 in his crossexamination has admitted that Smt.Meera Chengappa is in possession of her property and has put up a compound wall surrounding to her property, as such also, she is in possession of her suit schedule property. The said finding has resulted in the trial Court dismissing the suit of the Society and decreeing the suit of Smt.Meera Chengappa.

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Smt.Meera Chengappa has not denied or disputed the fact of Society forming a Layout in Survey No.66/4 of Nagashettihalli Village. In that regard, the certified copy of the Sale Deed at Ex.D-21 and Tippani at Exs.D-21 to D-25 produced by DW-2 have not been disputed by the other side. The said Sale Deed would go to show that the Society had purchased inter alia 3 acres 12 guntas of land in Survey No.66/4 under a registered Sale Deed dated 24.02.1972 from its vendor. Ex.D-25 shows that Survey No.66/4 and Survey No.66/8 are adjoining lands. Thus, the contention of the

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Society that it has formed sites in Survey No.66/4 and the land bearing Survey No.66/8 was its adjoining land on the Western side, is not in dispute.

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In order to show that there exists a site bearing No.51/A in the Layout formed by the Society in Survey No.66/4, admittedly the Society has not produced the approved Layout plan said to have been available with it and approved by the BDA. However, the learned counsel for the appellantSociety in his argument submitted that since the NGEF company was liquidated and for the Society also, a Liquidator was appointed at the time when the trial in the trial Court was going on, the evidence was given only by the Liquidator, who was the fourth successive Liquidator to the Society, as such, he could not able to get the correct total number of the sites formed nor got marked the approved Layout plan, though a copy of the approved Layout plan was filed in the trial Court along with the plaint under a list of documents as evidenced in Ex.D-4. However, in the absence of any corroborative material in that regard, the mere say that the document was produced,

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but, was not marked, cannot make this Court to accept that the Society had filed the original approved plan.

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DW-1 in his cross-examination at two places has stated that the Society has formed fifty sites. It is not the case of the Society that those fifty sites includes the site bearing No.51/A. Therefore, it has to be inferred that those fifty sites were given consecutive number. As such, the suit schedule property in O.S.No.3891/1991 could not fall as one of the site among those fifty sites formed by the Society. However, a stray statement made by DW-1 that Society formed fifty sites itself cannot be taken as the true fact. It is because, in order to show that Society has formed more sites than fifty sites, the Society has produced photographs with negatives and got them marked at Exs.D-14 to D-18. A careful observation of those photographs, more particularly, the photograph at Ex.D-17, would go to show that there is a mentioning of the site with No.51 after the site bearing No.50, shown to have been formed

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by NGEF Society. No doubt, after the site No.51, there is no adjoining number as No.51/A, however, a box like figure which is in the said hoarding depict the existence of a site though shown

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as kept blank. Thus, the contention of Smt.Meera Chengappa that only fifty sites were formed in the land bearing Survey No.66/4 cannot be accepted as the whole truth.

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DW-2 who undisputedly is a retired Assistant Director of Land Records and having the experience of acting as a Court Commissioner in fifty to sixty cases during his service, has prepared the Survey Map at Ex.D-7, who in his evidence has specifically and categorically stated that he has visited the site on 02.12.1991 and has prepared the Survey Map as at Ex.D-7, the contents of which Survey Map are correct. In the said Survey Map, he has shown the existence of site No.51/A and few more sites in the same row running from East to West up to the site No.59 as the sites in existence. No doubt, the said map is admittedly not the original approved Layout plan sanctioned by the BDA and was got prepared at the instance of the Society only in December 1991, however, according to DW-2, as an experienced person in survey of the lands and more particularly, as a retired Assistant Director of Land Records, he has prepared that map after the actual visit of the site and verification of the records. Therefore, even though the

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Society has not produced the original approved Layout plan showing the existence of site No.51A, but, it cannot be ignored of the fact that during the actual visit by DW-2, a site of the exactly same dimension of suit schedule property in O.S.No.3891/1991 was found in existence and has been in the possession of the Society. Therefore, the probability of there being specific site with the number 51/A as on the date of forming the Layout by the Society by getting the approval by the BDA can be doubted, but, after noticing the availability of a piece of land of odd dimension in the corner after getting the formation of the Layout, the Society has identified it as site No.51/A by continuing and retaining its possession, however, including the said site as though one of the site approved by the BDA.

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To arrive at the above probability, apart from the evidence analysed above, it also cannot be ignored of the fact that, it is never been the case of Smt.Meera Chengappa as a plaintiff in O.S.No.4215/1994 that vendors of the suit schedule property to her had formed any Layout and had sold one of the sites formed by them in the alleged Layout, to her. No where

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the Sale Deed at Ex.P-1 or any other documents produced by her as Exhibits mention about as to how come a stray site with the measurement of 93' x 62' was available in a revenue land bearing Survey No.66/8 which is alleged to have been sold by its alleged vendors through none else than the husband of the purchaser as a General Power of Attorney Holder. Though PW-1 has stated that she does not know as to whether her site falls in Survey No.66/8, however, the schedule to Ex.P-1 mentions about Survey No.66/8. Further, the documents produced by her, more particularly, the Tax Assessment Extract at Ex.P-3, clearly mentions that the said property is in Survey No.66/8.

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According to PW-2, the witness for Smt.Meera

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Chenagappa, who has deposed that he is a resident of the house opposite to the alleged property of Smt.Meera Chenagappa and is also aware of the alleged fact of Smt.Meera Chenagappa possessing the suit property after purchasing it by its vendor, has clearly stated in his evidence that the property sold to Smt.Meera Chenagappa was a private revenue Layout. Which means, when it is said to be a private revenue Layout, there

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ought to be adjoining sites to the suit schedule property in O.S.No.4215/1994 said to have been purchased by Smt.Meera Chenagappa. However, admittedly, the boundary shown in the schedule to Ex.P-1, on its Eastern side, shows the Layout of the Society, West by property No.3, North by road and South by P & T Layout. Thus, surrounded by such a boundary on four sides, how come in a revenue Layout, a property with old No.4/5-66/8 could be identified or carved and sold in favour of Smt.Meera Chenagappa, remains as a doubt.

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Added to the above, Smt.Meera Chenagappa claims possession of the suit schedule property in O.S.No.4215/1994 with her. Apart from the Sale Deed at Ex.P-1, the other documents relied upon by her to show her alleged possession of the said property as on the date of the institution of the suit are the documents from Exs.P-2 to P-5, which are Katha Certificate, Tax Assessment Extract, Tax paid receipts, payment of Betterment charges and an Encumbrance Certificate. Admittedly, the documents from Exs.P-2 to P-5 are all documents which have come into existence after the institution of the suit by her and more particularly, in the year

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1998 and onwards. Ex.P-3 , which is a Tax Assessment Extract, clearly go to show that for all the previous years from 19951996 up to year 2000-2001, at a time, in July 2000, Smt.Meera Chenagappa has got the tax assessed. None of these documents were in existence when Smt.Meera Chengappa had filed a suit in O.S.No.10477/1991 against the Society and also when she got the said suit dismissed by filing a memo as per Ex.D-2 on 10.12.1993. Therefore, none of these documents can be taken to hold that, as on the date of institution of the suit, she was in lawful possession of the suit schedule property in O.S.No.4215/1994. However, the trial Court while holding that Smt.Meera Chengappa is in lawful possession of the suit schedule property as on the date of filing of the suit, has taken into consideration and relied upon these documents at Exs.P-2 to P-5 also, which, from the above analysis, is proved to be incorrect.

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Learned counsel appearing for Smt.Meera Chengappa in his argument relied upon an admission made by DW-1 in his cross-examination admitting that there is a compound wall around the property claimed by Smt.Meera

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Chengappa and submitted that the said admission goes to show that Smt.Meera Chengappa is in possession of the property. The said argument is also not acceptable for the reason that, mere admission that there is a compound wall around the suit schedule property in O.S.No.4215/1994 does not mean that Smt.Meera Chengappa is in possession of the said property. It is because, the very witness in the very next sentence has stated that the compound was half constructed and the same was stopped by the defendants and the defendants (Society) stopped the construction of the Eastern side compound wall. Thus, it is a clear case of the Society that said Smt.Meera Chengappa attempted to put up a compound wall around the disputed property which was foiled by the Society. It is in that connection, the Society has filed a police complaint also, which could be seen at Ex.D-12 and an acknowledgement issued by the police at Ex.D-13. However, even the trial Court also by misinterpreting the said admission, has erroneously held that Smt.Meera Chengappa was in possession of the suit schedule property in O.S.No.4215/1994 in its entirety.

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The learned counsel for Smt.Meera Chengappa in his argument also stated that, the existence of a shed in the property of Smt.Meera Chengappa and occupation of it by a Watchman, is admitted by DW-1 in his cross-examination. The same proves the possession of the suit schedule property by Smt.Meera Chengappa.

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The said argument is not acceptable, for the reason that, though DW-1 has stated that there is a shed in the property claimed by the plaintiff in O.S.No.4215/1994 (Smt.Meera Chengappa) and the shed is occupied by a Watchman, no evidence has been placed by Smt.Meera Chengappa to the effect that it was she who has put up a shed and has kept a Watchman to watch it. On the other hand, as observed above, the Society could able to establish that the attempt of Smt.Meera Chengappa to put up a compound wall was resisted by it and also a police complaint was filed in that regard.

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Further, according to the Society, its site bearing No.51/A is of lesser measurement, and situated in Survey No.66/4,

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whereas, the site that is being claimed by Smt.Meera Chengappa as her property, is of a larger dimension measuring 92' x 62', which according to her, is situated in Survey No.66/8. Therefore, if at all she has put up a shed and kept a Watchman, that may be in her alleged remaining portion of the property after the suit schedule property. As such, when the burden was upon Smt.Meera Chengappa to show that it was she who has erected the shed outside Survey No. 66/4 and has kept a Watchman for watching the entire suit schedule property, a mere stray statement about the existence of a shed and its occupation by a Watchman cannot be read and interpreted in favour of the plaintiff in O.S.No.4215/1994.

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Smt.Meera Chengappa both in her pleadings, as well in her evidence as PW-1, has stated that she withdrew O.S.No.10477/1991, since the defendant therein (the Society) did not continue its interference in her possession of the suit schedule property. The said reason is not acceptable for the reason that, nowhere in the memo at Ex.D-2, which she has filed seeking dismissal of O.S.No.10477/1991, she has stated the reason for withdrawal of the suit. On the other hand,

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as could be seen in Ex.D-1, the Court dealing with the said O.S.No.10477/1991, had rejected to grant a relief of temporary injunction in her favour. Furthermore, as observed above, while instituting the said suit in O.S.No.10447/1991, she has suppressed the fact of pendency of O.S.No.3891/1991 filed against her by the Society.

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Further the cause of action, which according to her had already arisen to institute the suit in O.S.No.10477/1991, if were to be true, she need not have to expect the continuation or repetition of the alleged interference by the defendants therein even during the pendency of the suit. If as on the date of the institution of the suit filed for the relief of permanent injunction, already an interference was attempted or made by the defendants therein in the alleged possession of the property of the plaintiff, it was a sufficient cause for the plaintiff to institute the suit. As such also, when there was no necessity for repetition of alleged interference, it was not required for the plaintiff to withdraw the suit. As such, the reason given by PW-1 for the first time stating that since there was no subsequent interference by the Society, she withdrew the said

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suit, is not acceptable. However, it cannot be forgotten that within eight months of withdrawal of suit in O.S.No.10477/1991, she has filed once again a similar suit through O.S.No.4215/1994 against the same Society.

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These aspects creates a serious doubt in the case of the plaintiff in O.S.No.4215/1994 about her alleged lawful possession of the suit schedule property in its entirety. If at all she is in possession of any portion of the land in Survey No.66/8, the same may be some portion which is outside the Survey No.66/4, since the suit schedule property in O.S.No.4215/1994 was carved in Survey No.66/8, whereas, the suit schedule property of the Society in O.S.No.3891/1991 is in Survey No.66/4 and the evidence placed by the Society both oral and documentary, including the evidence of DW-2 and the police complaint, which is at Ex.D-12, would go to show that it is the Society which is in the actual possession of the property measuring 2966 sq. ft. though was identified it as site No.51/A. At least, to that extent of the area, the plaintiff in O.S.No.4215/1994 cannot claim her possession, much less, a lawful possession. Therefore the finding of the trial Court

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that the plaintiff in O.S.No.3891/1991 could not prove its lawful possession of the suit schedule property, whereas, the plaintiff in the other suit i.e., O.S.No.4215/1994 could able to prove her lawful possession over the suit schedule property in the said suit and also the interference by the Society, is an erroneous finding.

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Both parties have alleged interference as against each other. However, it is only the Society which has approached the police by lodging a police complaint about the alleged interference and has approached the Court at the earliest point of time by instituting a suit in O.S.No.3891/1991. On the other hand, Smt.Meera Chenagappa suppressing the fact of pendency of O.S.No.3891/1991 filed against her by the Society, approached a different Court, at Mayohall, Bengaluru, and instituted a separate suit in O.S.No.10477/1991, however, she was unsuccessful in getting an interim relief of temporary injunction. Thus, the interference caused by said Smt.Meera Chenagappa, the 3^rd defendant, in the suit schedule property in O.S.No.3891/1991, has stood proved. As such, the plaintiff in O.S.No.3891/1991 deserves the decree as prayed for, whereas,

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the plaintiff in the other suit i.e., O.S.No.4215/1994, does not. Accordingly, the impugned judgment warrants interference by this Court. As such, I proceed to pass the following order:

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ORDER

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Both the Regular First Appeals are allowed. The judgment and decrees passed in O.S.No.3891/1991 and O.S.No.4215/1994, by the learned V Addl.City Civil Judge, at Bengaluru City, dated 25.08.2007, are set aside. O.S.No.3891/1991 is decreed and the defendants in the said suit, their agents, person or persons, representative or representatives, administrator or administrators, executor or executors, acting through or under the defendants are permanently restrained from illegally interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff.

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O.S.No.4215/1994 filed by Smt.Meera Chenagappa is dismissed as devoid of merits.

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Draw the decree accordingly.

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In view of disposal of the appeals, the pending IA.No.2/2008 filed in RFA.No.850/2008, does not survive for consideration.

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Registry to transmit a copy of this judgment along with records to the concerned trial Court without delay.

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Sd/JUDGE

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bk/

Ngef House Building Co-Operative Society (R) v. Meera Chengappa

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Ngef House Building Co-Operative Society (R) v. Meera Chengappa

Case brief

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