Dismissed

Sri N K Visweswar v. Sri M R Seetharam

Karnataka HC30 Jul 2021RFA/882/2014

Case brief

AI extract

What is this about?

Appeal against dismissal of a suit for permanent injunction. The High Court held that the appellants failed to prove the physical existence and identity of the disputed properties. Since they could not establish lawful possession, the suit for bare injunction could not be maintained, and the impugned judgment was upheld.

What did the court decide?

The appeal was dismissed with no order as to costs, and the pending interim injunction application was disposed of.

Sri N K Visweswar Vs Sri M R Seetharam — Property and Title | Karnataka HC (2021)

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

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BEFORE

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THE HON’BLE MR. JUSTICE M.I.ARUN

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RFA NO. 882 OF 2014 (INJ)

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BETWEEN :

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SRI. N.K.VISWESWAR SINCE DEAD BY LRS.

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SRI. RAJESWARI VISWESWAR W/O SRI. N.K.VISWESWAR AGED ABOUT 68 YEARS R/AT NO.C-1630 8^TH MAIN, 23^RD CROSS SAHAKAR NAGAR

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BANGALORE – 560 090

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AMENDED VIDE COURT ORDER DATED 20.03.2015

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SRI. V.RADHAKRISHNAN S/O LATE N.K.VISWESWAR AGED ABOUT 45 YEARS R/AT NO.C.1630, 8^TH MAIN 23^RD CROSS, SAHAKAR NAGAR BENGALURU – 560 090

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SRI. N. A. MOHIDEEN GAFOOR S/O SRI. N. H.ALIAR AGED ABOUT 54 YEARS OLD NO.9, VENKATASWAMY STREET SANTHOME, CHENNAI – 600 004

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SRI. K.V.SUBBARAO S/O SRI. K.SRIKRISHNAIAH AGED ABOUT 70 YEARS NO.11, GOPALA KRISHNAN STREET

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T. NAGAR, CHENNAI – 600 017

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BOTH REP. BY ITS P.A.HOLDER SRI. V. RADHAKRISHNAN S/O N. K. VISWESWAR R/AT NO-C-105 SHOBHA AMBER JAKKUR PLANTATION BENGALORE – 560 064 … APPELLANTS

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(BY SRI.R.B.SADASIVAPPA, ADV.)

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AND :

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SRI. M.R.SEETHARAM S/O LATE M.S.RAMAIAH AGED ABOUT 57 YEARS R/AT GOKULA HOUSE M.S.R.ROAD, GOKULA BANGALORE – 560 054 … RESPONDENT

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(BY SRI. UDAYA HOLLA, SR. COUNSEL, FOR SRI. ASHOK G.V., ADV. AND SRI. APABHARANA K.M., ADV.)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST

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THE JUDGMENT AND DECREE DATED 07.04.2014 PASSED IN O.S.NO.5159/2011 ON THE FILE OF THE XXIV-ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, DISMISSING THE SUIT FOR PERMANENT INJUNCTION.

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THIS RFA HAVING BEEN HEARD AND RESERVED ON 16.07.2021 FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT THROUGH VIDEO CONFERENCE DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is directed against the judgment and decree dated 07.04.2014 passed by XXIV Additional City Civil and Sessions Judge, Bengaluru dismissing the suit in O.S.No.5159/2011 filed by the appellants/plaintiffs therein.

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For the sake of convenience, the parties are referred to herein as per their status before the trial court.

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The plaintiffs filed the said suit for permanent injunction with a prayer to restrain the defendant or anybody claiming under him from entering upon the plaint schedule properties and from dispossessing the plaintiffs from the said properties and also to restrain the defendant from interfering with peaceful possession and enjoyment of the plaint schedule properties by the plaintiffs.

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The case of the plaintiffs is that plaintiff nos.1 and 2 are the owners of the following properties:

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SCHEDULE-A

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All that piece and parcel of the residential immovable property bearing Plot No.178, measuring East to West 80 feet and North to South 50 feet in all measuring 4000 Sq.ft. comprised in the layout namely Sai Enclave of Assessment Nos.97 and 88 of Katha No.111, situated at Kothanur village, Uttarahalli Hobli, Bangalore South Taluk, Bangalore, together with a small building made of brick wall with Mangalore tiles roof measuring a plinth area of approximately ½ Square area constructed in the year 1970 and bounded on:

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East by : 30 Feet Road; West by : Shantharaju’s Property; North by : 30 Feet Road; South by : Plot No.177

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SCHEDULE–B

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All that piece and parcel of the residential immovable property bearing Plot No.177, measuring East to West 80 feet and North to South 50 feet in all measuring 4000 Sq.ft. comprised in the layout namely Sai Enclave of Assessment Nos.97 and 88 of Katha No.111, situated at Kothanur village, Uttarahalli Hobli, Bangalore South Taluk, Bangalore, together with a small building made of brick wall with Mangalore tiles roof measuring a plinth area of

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approximately ½ Square area constructed in the year 1970 and bounded on:

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East by : 30 Feet Road; West by : Shantharaju’s property; North by : Plot No.178; South by : Plot No.176

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The said properties are described as Schedule-A and

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Schedule-B respectively in the plaint.

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Plaintiff no.3 is the owner of the following property:

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SCHEDULE – C

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All that piece and parcel of the residential immovable property bearing Plot No.175, measuring East to West 80 feet and North to South 50 feet in all measuring 4000 Sq.ft. comprised in the layout namely Sai Enclave of Assessment Nos.97 and 88 of Katha No.111, situated at Kothanur village, Uttarahalli Hobli, Bangalore South Taluk, Bangalore, together with a small building made of brick wall with Mangalore tiles roof measuring a plinth area of approximately ½ Square area constructed in the year 1970 and bounded on:

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East by : 30 Feet Road; West by : K.Shantharaju’s property; North by : Plot No.176; South by : Plot No.174

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The same is described as Schedule-C to the plaint.

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Plaintiff no.4 is the owner of the following property:

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SCHEDULE – D

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All that piece and parcel of the residential immovable property bearing Plot No.176, measuring East to West 80 feet and North to South 50 feet in all measuring 4000 Sq.ft. comprised in the layout namely Sai Enclave of Assessment Nos.97 and 88 of Katha No.111, situated at Kothanur village, Uttarahalli Hobli, Bangalore South Taluk, Bangalore, together with a small building made of brick wall with Mangalore tiles roof measuring a plinth area of approximately ½ Square area constructed in the year 1970 and bounded on;

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East by : 30 Feet Road; West by : K. Shantharaju’s property; North by : Plot No.177; South by : Plot No.175

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The same is described as Schedule-D to the plaint.

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It is submitted that the aforementioned properties are situated adjacent to each other in a row and a common compound wall enclosing the said four plots has been constructed. It is alleged that on 25.05.2011 the plaintiffs have found that the defendant had illegally written on the compound wall by paint that he is the owner of the plaint

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schedule plots. Immediately, the plaintiffs issued a notice to the defendant and also lodged a police complaint before the jurisdictional Hulimavu police, but no action was taken by the police. Hence, the plaintiffs were constrained to file the original suit for permanent injunction against the defendant.

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Upon service of notice, the defendant has appeared before the trial court and has filed his written statement. It is contended by the defendant that he is the owner of plot nos.548, 549, 550 and 551 in M.S.Ramaiah City layout in Survey No.88 (P), Kothanur village, Uttarahalli Hobli, Bengaluru South Taluk and the properties being claimed by the plaintiffs are in fact plot nos.548 to 551 in M.S.Ramaiah City layout and the plaintiffs have no right, title or interest over the same and pray for dismissal of the suit.

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Based on the pleadings, the trial court framed the

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following issues:

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Whether plaintiffs prove that they are in lawful possession of the Plaint ‘A’, ‘B’, ‘C’, and ‘D’ schedule properties as stated in the plaint?

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Whether the plaintiffs further prove the existence and identity of the Plaint A’, ‘B’, ‘C’, and ‘D’ schedule properties as stated in the plaint?

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Whether the plaintiffs further prove the alleged interference of the defendant as stated in the plaint?

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Whether the defendant proves that he is in lawful possession and enjoyment of the property bearing Sy.No.97/548, 549, 550 and 551 as per the particulars shown in page-7 of the written statement?

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Whether the plaintiffs are entitled for the relief of permanent injunction as sought for?

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What order or decree?

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In support of their contentions, the plaintiffs have examined one witness and have got marked Exs.P1 to P72. The defendant has examined one witness and got marked Exs.D1 to D36. As both the plaintiffs and defendant in support of their claim have produced sale deeds and revenue documents, as physical identification of the property became an issue, a Court Commissioner was appointed and the Court Commissioner has been examined as CW.1 and Exs.C1 to C12 has been marked.

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Based on the pleadings and the evidence let in, the

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trial court has answered the aforementioned issues in the

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following manner:

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“Issue No.1)	In the Negative
Issue No.2) Issue No.3) Issue No.4)	Partly in the affirmative In the Negative In the Negative
Issue No.5)	In the Negative
Issue No.6)	As per final Order for the
	following:”

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Based on the said conclusions, the trial court has dismissed

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the suit. Aggrieved by the order of dismissal, the plaintiffs in the original suit have preferred this appeal.

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Heard Sri R.B.Sadasivappa, learned counsel for the appellants and Sri Udaya Holla, learned Senior Counsel for the respondent.

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It is the contention of the learned counsel for the appellants/plaintiffs that the plaintiffs have produced the necessary sale deeds and the revenue documents pertaining to the plaint schedule properties and they indicate that the plaintiffs are the owners of the plaint schedule properties.

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Once the sale deeds and the revenue documents are produced to show that they are the owners of the plaint

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schedule properties, the trial court ought to have held the plaintiffs to be the owners of the same. However, the trial court has erred in answering issue no.1 in the negative. It is further submitted that the case of the plaintiffs is that they are the owners of site nos.175 to 178 in Sai Enclave carved out of 88 of Kothanur village whereas the contention of the defendant is that he is the owner of plot nos.548 to 551 in M.S.Ramaiah City which is formed in Survey No.97 of Kothanur village. Thus, the properties itself being different and DW.1 having admitted in his evidence that he is not interested in plot nos.175 to 178 of Sai Enclave in Survey No.88 of Kothanur village, the trial court ought to have decreed the suit but it erroneously did not do so. It is further contended that the trial court erred in relying upon the report of the commissioner in its judgment while the same trial court after considering the report of the Court Commissioner it allowed I.A.No.1 filed by the plaintiffs and it granted a temporary injunction in favour of the plaintiffs and that the trial court erred in going against its own conclusion in the final judgment. The main contention of

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the plaintiffs is that admittedly the defendant has got nothing to do with plot nos.175 to 178 situated in Sai Enclave in Survey No.88 of Kothanur village and the plaintiffs having produced their title deeds and the revenue entries standing in their name, the trial court ought to have decreed their suit and it erred in dismissing the suit.

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It is further contended by the plaintiffs that in fact plot nos.548 to 551 claimed by the defendant in M.S.Ramaiah City layout formed in Survey No.97 of Kothanur village do not exist and the defendant is trying to encroach upon the plots of the plaintiffs in the guise that they are plot nos.548 to 551 and it is his property.

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It is contended by the plaintiffs that both Survey Nos.97 and 88 of Kothanur village were acquired by the Bangalore Development Authority (‘BDA’ for short) for formation of J.P.Nagar 8^th Phase and portions of the same were subsequently denotified and they have relied upon Ex.P65 in this regard which is a resolution by the BDA which shows that it was resolved to release certain portions of the

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land in Survey Nos.88 and 97 of Kothanur village from acquisition. They have also relied upon Ex.P67 which is a layout map of M.S.Ramaiah City layout and have contended that it does not show the existence of site nos.548 to 551 and thereby have contended that the plots claimed by the defendant do not exist. Attention of the Court is also drawn to the cross examination of DW.1 who is defendant himself. In the cross examination, he has admitted that all the documents produced by him pertains to Survey no.97 and not Survey no.88. He has admitted that he does not know anything about the plaint schedule properties and that he has not filed any case against the plaintiffs. He admits that in Ex.P58, there is no mention of site nos.548 to 551. He also admits that his layout has no connectivity with Sai Enclave but he states that he has come to Court because his property was affected and he has put compound around his sites and written his name on his sites.

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Based on the above contentions, the

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appellants/plaintiffs have contended that they are the owners of the plaint schedule properties that are located in

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Survey No.88 of Kothanur village and the defendant himself having admitted that he has got nothing to do with Survey No.88, the trial court ought to have decreed the suit in their favour.

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Per contra, the learned Senior Counsel for the respondent/defendant has contended that the report of Commissioner proves that the sites as claimed by the plaintiffs i.e., the plaint schedule properties are not in existence. He further claims that entire Survey nos.88 and 97 were acquired by the BDA but there was denotification only in a portion of Survey no.97 and that the defendant is in enjoyment of site nos.548 to 551 and the plaintiffs are trying to claim the sites of the defendant as their own and as they have failed to prove the existence of their properties and the trial court has rightly dismissed their suit. The defendant has submitted that they are the true owners of site nos.548 to 551 and no injunction can be issued against the true owner. The defendant has relied upon the decision of the Hon’ble Supreme Court of India reported in Anathula

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Sudhakar v. P. Buchi Reddy (Dead) by L.Rs. & Others.

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[AIR 2008 SC 2033] . Para 17 of the judgment reads as

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under:

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“17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:

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(a) Where a cloud is raised over plaintiff’s title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff’s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff’s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

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(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.

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(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar [2005 AIR SCW 3516) (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law

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relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

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(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”

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He has also relied upon a decision of this Court in

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T.L.Nagendra Babu vs Manohar Rao Pawar [ILR 2005

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KAR 884] . Paragraphs 33 and 34 of the said judgment reads as under:

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"33. From the reading of all these materials, what is clear to this Court is that the plaintiff is not sure of the details of the property. Learned Judge in the impugned Judgment notices this argument but however, he has answered the same in favour of the plaintiff. He has noticed the submission by holding at para 9 that “it is no doubt true that PW1 has admitted that he does not know with whom Ex.P5 the sketch prepared; that he does not know the correctness of Ex.P5. Thus Ex.P5 cannot be given much importance.

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After noticing this, the learned Judge also notices that there is infirmity with regard to identity of the property in question but still the oral evidence of PWs.1 to 3 is consistent and taking into consideration the evidence of DW1 also, identity of the suit schedule property can be fixed and it is clearly identifiable. Those findings to say the least is totally not acceptable to me. The learned Judge himself is not satisfied that Ex.P5 and the very learned Judge is of the view that he could not have ordered injunction and he could not have ordered declaration in a matter like this. Unless the Judge is satisfied with regard to material details in the light of the material evidence with regard to the identification of the property no declaration and no injunction can be granted as has been done by the learned Judge. It is rather unfortunate again that the learned Judge has chosen to give a finding in favour of the plaintiff despite his own findings of non-acceptance of Ex.P5 and infirmities in the case on hand. In these circumstances, the argument of the appellant is well founded. I accept his argument. The findings on this issue is reversed in the light of non availability of sufficient material in terms of evidence and pleadings.”

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17. He has also contended that the appellants/plaintiffs

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are required to prove their title to the properties and show that they are in possession of the properties on their own strength and not on the weakness of the defendant. If for any reason, there is a cloud cast on the identity of the property, a suit for bare injunction cannot lie.

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It is further contended by the respondent/defendant

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that he is the owner of sites bearing nos.548 to 551 and he has produced the necessary sale deeds and revenue entries in this regard and the property in question which is compounded and where the defendant has written his name are site nos.548 to 551 belonging to the defendant and not that of the plaintiffs. On the said grounds, the respondent/defendant has justified the judgment passed by the trial court and has sought for dismissal of the appeal.

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The issue that arises for consideration in this appeal is whether the plaintiffs have been able to establish physical existence of the properties as described in the plaint.

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To ascertain the physical existence of the properties, the trial court apart from the evidence adduced by the plaintiffs and defendant has appointed a Court Commissioner and has considered his evidence.

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The Court Commissioner has been cross examined and the plaintiffs are not able to discredit the evidence of the Court Commissioner. The report of the Court Commissioner indicates that he has examined the plaint schedule properties and his report shows that a portion of the plaint schedule properties falls in Survey No.88 and another portion falls in Survey no.97. The sketch prepared by him is marked as Ex.C7 and it shows that 1423-64 sq.mtrs is the total area of the properties in question and an area of 1298.27 sq.mtrs. of the property falls in Survey No.97 and an area of 125-35 sq.mtrs. falls in Survey No.88.

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The evidence of the Court Commissioner clearly shows that the properties in question are not as described and claimed by either the plaintiffs or the defendant. For the said reason, the trial court has come to the conclusion that the plaintiffs have failed to prove that they are in lawful possession of the plaint A, B, C & D schedule properties as stated in the plaint and also has

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concluded that the defendant has also failed to prove that he is in lawful possession and enjoyment of the property bearing survey no.97/548, 549, 550 and 51 as per particulars shown in the written statement. The argument of the plaintiffs that the report of the Court Commissioner was not relied upon while granting the interim order in their favour and hence it could not have been relied upon while passing the final judgment by the trial court cannot be accepted. While passing an order on interlocutory application filed under Order 39 Rules 1 and 2 of CPC, the trial court generally considers whether the plaintiff has been able to make out a prima facie case proving his ownership and possession over the suit schedule property and to protect the nature of the property. Taking into consideration the balance of convenience, interim orders are granted. It is only at the time of passing the judgment, the entire evidence on record is considered.

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It is a settled proposition of law that the plaintiffs

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have to establish their case whether the defendant proves his case or not. The plaintiffs cannot rely upon the weakness of the defendant to prove their case. The case on hand is a suit filed by the plaintiffs for bare injunction. They have not made any prayers for possession or declaration of title in respect of the plaint schedule properties in their favour. Though both the plaintiffs and defendant have produced the sale deeds and the revenue entries to show that they are the owners and in possession of the properties as reflected in the said sale deeds and though the properties mentioned in the title deeds of the plaintiffs and defendant are different, both are in fact making a claim over the same property. To ascertain the truth, the trial court had appointed a Court Commissioner and his report shows that the property in dispute is not as described by either the plaintiffs or the defendant. The identification of the property being different from what is claimed in the plaint schedule

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properties and the plaintiffs being not able to establish the identification of the property physically and that they are in possession of the same, a suit for bare injunction cannot lie. For the said reason, I do not find any infirmity in the impugned judgment and decree passed by the trial court.

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23. Hence, the following:

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ORDER

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(i) The appeal is hereby dismissed. No order as to

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costs.

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(ii) Pending I.A. does not survive and it stands

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disposed of.

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Sd/JUDGE

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hkh.

Sri N K Visweswar v. Sri M R Seetharam

Case brief

What is this about?

What did the court decide?

Sri N K Visweswar v. Sri M R Seetharam

Case brief

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