Dismissed

Smt Vasanthi v. Sri K v Lingaiah

Karnataka HC7 Apr 2022RFA/1277/2007

Case brief

AI extract

What is this about?

This Regular First Appeal dismissed appellant's challenge to a permanent injunction decree. The High Court upheld the Trial Court's finding that plaintiffs established lawful possession over the suit schedule property. The court clarified that title need not be finally adjudicated in injunction suits and distinguished the cited Apex Court case as inapplicable.

What did the court decide?

Appeal dismissed maintaining the permanent injunction decree in favor of the plaintiffs.

Smt Vasanthi Vs Sri K v Lingaiah — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7^TH DAY OF APRIL, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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R.F.A. NO. 1277 OF 2007(INJ)

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BETWEEN:

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SMT. VASANTHI W/O JAYARAM AGE 45 YEARS NO.130, SATHYA NILAYAM M/S SATHYA PAPER MART, MUNESHWARA BLOCK, MALLESWARAM, BANGALORE-03

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...APPELLANT

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(BY SMT.MEDHA RAO, ADVOCATE) AND:

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SRI K V LINGAIAH MAJOR 2. SRI K L LOKESH MAJOR 3. SRI K L NAGARAJ MAJOR BEING LR 1 TO 3 OF DECEASED RESPONDENT SMT.SARASWATHAMMA W/O K.V. LINGAIAH ALL ARE R/OF NO.17, 6TH CROSS,

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B-MAIN, PIPELINE, MALLESWARAM, BANGALORE-560003

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…RESPONDENTS

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(BY SRI.B R VISHWANATH, ADVOCATE FOR R1-3)

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THIS RFA IS FILED U/S 96 R/W ORDER 41 OF CPC AGAINST THE JUDGEMENT AND DECREE DT.19.01.2007 PASSED IN OS.NO.6142/1997 ON THE FILE OF THE VIII ADLD.CITY CIVIL JUDGE, BANGALORE CITY, DECREEING THE SUIT FOR PERMANENT INJUNCITON.

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THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The captioned Regular First Appeal is filed by the unsuccessful defendant questioning the judgment and decree passed in O.S.No.6142/1997, wherein the suit instituted by

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the plaintiffs seeking bare injunction against the defendant is decreed.

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For the sake of convenience, the parties are referred to as per their rank before the Court below.

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3. The facts leading to the case are as under:

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The plaintiffs have approached the Court below seeking perpetual injunction against the defendant. The subject matter of the suit is site bearing No.6 situated at 6^th cross, Pipeline Road, Malleshwaram. The plaintiffs assert and claim that they are the absolute owners of the suit schedule property and that they are in exclusive possession and enjoyment of the suit schedule property since 1957. The plaintiffs claim that they have purchased the suit schedule property under registered sale deed dated 02.11.1957 as per Ex.P-1. The plaintiffs have further pleaded that this property are falling to the share in a family partition dated 01.11.1957 as per Ex.P-7. The plaintiffs have further pleaded that defendant has no manner of right, title or interest over the suit schedule property. The grievance of the plaintiffs is that defendant tried to trespass over the suit schedule property and also tried to dismantle the compound and cow shed with

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the help of her husband and antisocial elements. The plaintiffs have further pleaded that on 12.08.1997, the defendant highhandedly tried to dismantle the portion of the suit schedule property and this compelled the plaintiffs to approach the jurisdictional police station. She has further pleaded that however, police officials advised the plaintiff to approach the Civil Court to seek appropriate relief at the hands of the competent civil court. On these set of pleadings, the present suit came to be filed.

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On receipt of summons, the defendant contested the proceedings by filing written statement and stoutly denied the entire averments made in the plaint. The defendant specifically disputed the alleged cause of action dated 12.08.1997. A specific averment was made at para 5 of the written statement. At para 5, the defendant specifically claimed that the measurement and the identity of the property as referred in schedule annexed to the plaint and the one found in the sale deeds are totally different. The defendant

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has also disputed the measurement and discrepancies in the registered partition deed dated 01.11.1957 and the measurements and boundaries shown in the schedule annexed to the sale deed. The defendant has further contended that in the partition deed, the measurement shown is 35 ft. towards south and therefore, the defendant claim that conveyance by the original owner in favour of plaintiffs is in respect of nonexisting property. On these set of grounds, the defendant sought for dismissal of the suit.

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The Trial Court, based on rival contentions, formulated the following issues:

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"1) Does the plaintiff prove her lawful possession of the schedule property?

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2) Does she prove that alleged interference by defendant?

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3) Is she entitled to the injunctive relief as prayed?"

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During the pendency of the suit, original plaintiff

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died and her legal representatives were brought on record and

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plaintiff No.3 who is none other than the son of original plaintiff was examined as PW.1 and to substantiate the pleadings and ocular evidence, the plaintiffs adduced documentary evidence vide Exs.P-1 to P-7. The defendant to counter the claim of plaintiffs examined herself as DW.1 and adduced rebuttal documentary evidence vide Exs.D-1 to D-8.

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The Trial Court having examined oral and documentary evidence answered issue Nos.1 and 2 in the affirmative holding that plaintiffs have succeeded in proving their lawful possession over the suit schedule property as on the date of the filing of the suit. Having referred to the documents and serious contest made by the defendant, the Court below found that there is interference at the hands of the defendant and consequently answered issue No.3 also in the affirmative. Learned Judge has referred to the title documents and also the admissions given by the defendant in cross-examination, wherein defendant has admitted that plaintiffs are in possession of the suit schedule property since

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30 years. It is in this background, learned Judge referring to title documents coupled with admissions given by the defendant proceeded to decree the suit thereby restraining the defendant from interfering with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property.

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It is against this decree for permanent injunction, the defendant is in appeal.

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Ms. Medha Rao, learned counsel appearing for the defendant reiterating the grounds urged in the appeal memo would vehemently argue and contend before this Court that the judgment and decree of the Trial Court suffers from serious infirmities. She would strenuously argue and contend that the rebuttal evidence led in by the defendant is discarded and the learned Judge has committed error in only examining the evidence led in by the plaintiffs. She would seriously dispute the admissibility of notarized copy of the sale deed which is placed on record by the plaintiffs. She would contend

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that in absence of foundation laid in to rely on attested copy of sale deed issued by the Manager of the Bank, learned Judge was not justified in relying on Ex.P-1. She would take this Court through the schedule annexed to the plaint and contend that northern side portion which is shown to be 20 ft. passage is the disputed portion between the parties. Relying on the discrepancies in regard to boundaries and measurements found in the partition deed as well as sale deed, she would contend that plaintiffs are not at all the owner of this disputed common passage which is reflected in the schedule annexed to the plaint. She would further contend that learned Judge erred in totally relying on Ex.P-1 and therefore, would contend that there is error committed by the learned Judge in not properly appreciating the documentary evidence led in by the defendant.

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To buttress her arguments, she would place reliance on the judgment rendered by the Hon'ble Apex Court in the case of Kalyan Singh, London Trained Cutter, Johri

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Bazar, Jaipur vs. Smt. Chhoti and Others¹ . She would take this Court through paragraphs 23 to 25 and would contend that the plaintiffs in the present case on hand has not laid foundation to make out a case for adducing secondary evidence. Therefore, the principles laid down by the Apex Court in the judgment cited supra are squarely applicable to the present case on hand and therefore, she would contend that Ex.P-1 cannot be looked into and if Ex.P-1 is discarded, there is absolutely no material on record to indicate plaintiffs title and lawful possession over the suit schedule property. On these set of grounds, she would contend that the judgment and decree passed by the Court below is liable to the reversed at the hands of this Court and therefore, would request this Court to allow the appeal and dismiss the suit.

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Per contra, learned counsel for the plaintiffs repelling the contentions canvassed by the learned counsel for the defendant would contend that the clinching evidence on

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1 (1990) 1 SCC 266

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record adduced by the plaintiffs would clearly establish their title and also their lawful possession over the suit schedule property. Learned counsel for the plaintiffs would place reliance on all minute details in the present case on hand. He would take this Court to Ex.P-7 which is the partition deed dated 01.11.1957. Placing reliance on Ex.P-7, he would contend that the present suit schedule property was allotted to plaintiffs' vendor in a family partition under registered document. The plaintiffs' vendor having acquired right and title pursuant to family partition has conveyed the suit schedule property in favour of the plaintiffs under registered sale deed dated 02.11.1957 vide Ex.P-1. Referring to these two title documents, he would then stress more on the location of the properties owned by defendant and plaintiffs.

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Referring to Ex.P-4, learned counsel would contend that the defendant's property is situated at Muneshwara Block whereas the plaintiffs' property is in fact situated at Pipeline Road, Malleshwaram and both localities are totally different. If

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these aspects are taken into consideration, then defendant's assertion that she owns property adjoining to plaintiffs' property is misconceived. He would then refer to Ex.D-3 which is the sanction plan of defendant's residential house. Even in the said document, he would straight away stress on the location of the property and would contend that the defendant's property is situated at 'F' Main Road, Muneshwara Block, Palace Guttahalli. Learned counsel appearing for the plaintiffs would then place reliance on Exs.D7 and D-8. Placing reliance on Exs.D-7 and D-8, he would contend that the very letter addressed by the defendant to the Assistant Executive Engineer would clearly establish that property owned by plaintiffs and one owned by defendant are situated at totally different locations. In the said communication, defendant herself admits that property owned by plaintiffs is situated at Veerabhadrappa Garden, Pipeline Road, Malleshwaram whereas she claims to be the resident of No.136, 4^th Cross, Muneshwara Block, 'F' Cross, Bengaluru.

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These two documents would clinch the issue in regard to the location of the property owned by the plaintiffs and defendant.

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Then learned counsel would straight away take this Court through the relevant cross-examination of DW.1 and would contend that the defendant has admitted in unequivocal terms the possession of the plaintiffs over the suit schedule property. On these set of defence, he would contend that the judgment and decree rendered by the Trial Court is based on legal evidence adduced by plaintiffs and in absence of clinching rebuttal evidence. No grounds are made out in present appeal that would displace the conclusions and findings recorded by the Trial Court. He would contend that the title documents coupled with other documents would clearly establish plaintiffs' exclusive possession as on the date of filing of the suit. Coupled with this, the claim made by the plaintiffs is further strengthened by the admissions given by the defendant. On these set of defence, he would request this Court to dismiss the appeal.

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Heard learned counsel for the defendant and

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learned counsel for the plaintiffs. Perused the pleadings of the parties as well as ocular and documentary evidence. The following point would arise for consideration:

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"Whether the judgment and decree of the Trial Court in granting permanent injunction thereby restraining the defendant from interfering with the plaintiffs' possession and enjoyment over the suit schedule property suffers from serious infirmities and warrants interference at the hands of this Court?"

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The plaintiffs claim to be the owners of suit schedule property bearing site No.6 measuring East West 44 ft. and North South 41 ft. To establish their possession, the plaintiffs have placed reliance on Ex.P-7 which is the true copy of registered partition deed dated 01.11.1957. They have also produced attested copy of the sale deed which is attested by the Manager of the Mahila Co-operative Bank,

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wherein the original copy is pledged by the plaintiffs. Apart from these two documents, plaintiffs have also placed on record the tax paid receipts, photographs as per Exs.P-2 to P-5. The defendant by contesting the proceedings is asserting and claiming that there is a common passage which is owned by her. The alleged common passage depicted towards the northern side of the schedule is not at all concerned to plaintiffs and therefore, the defendant is seriously questioning and disputing the possession of the plaintiffs in the present case on hand.

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The primary question that needs to be examined by this Court is as to whether the property owned by the plaintiffs and defendant are adjoining to each other. To examine this controversy, it would be useful for this Court to refer to Ex.D-8 on which defendant is placing reliance. It would be useful for this Court to cull out the entire extract of the communication addressed by the defendant to the Assistant Executive Engineer and the same reads as follows:

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"From, Smt.J.Vasanthi, W/o Jayaram, 136, 4^th Cross, Muneswara Block 'F' Cross, Bangalore-3. To, The Assistant Executive Engineer, Ward No.6, 7 Malleswaram, Bangalore.

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Sir,

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Subject : Request to Stop building construction work and to remove the building materials on my site, by one Smt. Sarasamma, W/o. Lingaiah, U 17, Veerabhadrappa Garden, Pipe Line, Malleswaram, Bangalore.

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---

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I, the undersigned bring the following facts to your kind notice.

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I am the absolute owner is in exclusive possession and enjoyment of the property bearing No.16/1, 'F' Main Road, Muneswara Block, Ward No.6, 7, Malleswaram, Bangalore, measuring 16' x 41' feet.

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The above said Sarasamma, who is the owner of Site No.U 17, Veerabhadrappa Garden, Pipe Line, Malleswaram, which is adjoining to my property. Now she is also putting up construction on the said site, she is illegally putting up sajja into my site property, which

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cover 3 feet of my property. The stair case being put up by her is covering 10 feet of my property.

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I am constructing a compound to my property. I have also got a sanction plan, sanction by the Corporation vide L.P. No.43/97-98, dated 24-7-1997.

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I had also made an representation to your kind concern on 12-6-1997, inspite of which the said illegal construction and activities being carried out.

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Therefore, I request to your goodself, to look into the matter and take necessary action immediately and stop the illegal activities of the above said person.

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Thanking you,

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Yours faithfully, Sd/(J.VASANTH)

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Bangalore. Dated: 13.08.1997."

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If this document is meticulously examined, the

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defendant has admitted that plaintiff is the owner of site No. U-17 situated at Pipeline Road and in the said communication

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which also claims that her property is abutting to plaintiffs' property. In the very said communication, defendant has also disclosed her residence. Same is referred as No.136, 4^th

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Cross, Muneshwara Block, 'F' Cross, Bengaluru. Now the question that needs to be examined is whether defendant owns her property at Pipeline Road adjoining to plaintiffs' property or she owns a property at Muneshwara Block 'F' Cross. This is evident from Ex.D-3 which is a sanction plan of residential house of defendant. On perusal of the same, this Court would find that the defendant has constructed a residential house in site No.16/2 and the same is situated at 'F' Main Road, Muneshwara Block, Palace Guttahalli Road. If defendant's residential house is situated at 'F' Main Road, Muneshwara Block and if plaintiffs' own a property bearing Site No.6 at Pipeline Road, then this Court is unable to understand as to how defendant can dispute the plaintiffs' possession over the suit schedule property bearing site No.6.

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If these documents are examined in the context of the cross-examination of defendant, then this Court is of the view that the same would clinch the entire controversy between the parties. In her cross-examination, DW.1 has

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admitted in unequivocal terms that the plaintiffs are in possession of the suit schedule property for the last 30 years. The clinching evidence led in by plaintiffs would clearly establish that they are in lawful possession of the suit schedule property. The rebuttal evidence which is led in by the defendant would not come to the aid of the defendant but, on the contrary, the rebuttal evidence more particularly Exs. D-7 and D-8 would clearly indicate and prove the alleged interference as claimed by plaintiffs over the suit schedule property. If the documentary evidence coupled with ocular evidence of DW.1 is examined, this Court would find that the plaintiffs have succeeded in establishing their lawful possession over the suit schedule property as on the date of filing of the suit. The rebuttal evidence would not displace the clinching evidence which is placed on record by the plaintiffs. In that view of the matter, the point formulated by this Court is answered in the negative.

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The judgment relied by the defendant is not at all applicable to the present case on hand. The present suit is one for bare injunction and question of title cannot be gone into. The true copy of sale deed which is placed on record is referred to and examined only to find out as to who is in possession over the suit schedule property. Therefore, the judgment cited by the learned counsel for the defendant would not come to the aid of the defendant as the same is not at all applicable to the present case on hand.

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It is a trite law that irrespective of whether injunction sought is temporary or perpetual, the jurisdiction to grant injunction is discretionary. Although the words 'in its discretion' are absent from Sections 38 and 41, but the language of Section 36 renders the remedy under both the sections discretionary. It is also trite law that plaintiff must seek injunction with clean hands. Therefore, equitable relief of permanent injunction has to be granted in the present case on hand and this Court is of the view that defendant is guilty on

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account of his inequitable conduct. The claim made by the plaintiff is fair. The propriety of granting an injunction depends upon the facts of each particular case and the general principle of equity as related to injunctions and the discretion that has to be exercised by the Court has to be judicial discretion and the Court has to take note of the fact that by granting injunction should not result in oppression and injury to the other side. It is a trite law that Courts will not grant injunction when good conscience does not require it, where it will cause injustice. The present set of facts also does indicate that it would be reasonable and equitable to grant an injunction to the plaintiff. If injunction is granted, it will tend to promote justice. It is a trite law that to grant injunction plaintiff has to establish his right. The existence of right and consequent violation are pre-requisite condition to grant an injunction. An injunction will not issue to protect a right which is not lawful and legal. Therefore, in the present set of facts and circumstances and having regard to the clinching evidence

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led in by plaintiff, this Court is of the view that plaintiff is entitled for discretionary relief of injunction.

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In the light of the findings recorded by this Court

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while answering the above point, the following conclusions are recorded by this Court:

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(a) The finding of the Trial Court that plaintiffs have succeeded in proving their lawful possession over the suit schedule property is based on legal evidence.

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(b) The finding of the Trial Court that plaintiffs have succeeded in proving alleged interference is based on evidence which clearly proves the conduct of the defendant and also indicates interference by the defendant without any semblance of right and title over the suit schedule property.

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this Court concurs with the findings and conclusions arrived at by the Trial Court.

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Hence, I pass the following:

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ORDER

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The appeal is devoid of merits and the same is

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accordingly dismissed.

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Sd/JUDGE

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Smt Vasanthi v. Sri K v Lingaiah

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Smt Vasanthi v. Sri K v Lingaiah

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