Allowed

Smt Susheelamma v. the Commissioner

Karnataka HC6 Dec 2023RFA/1433/2017

Case brief

AI extract

What is this about?

High Court allowed the appeal by the unsuccessful plaintiff in a property suit, setting aside the trial court judgment that dismissed claims for mandatory injunction and removal of encroachment and chain link fence, directing the suit be decreed as prayed for.

What did the court decide?

The impugned judgment and decree dated 28.11.2016 are set aside. The suit of the plaintiff is decreed as prayed for.

Smt Susheelamma Vs the Commissioner — Specific Performance | Karnataka HC (2023)

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1 - NC: 2023:KHC:44164 RFA No. 1433 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO.1433 OF 2017(POS)

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BETWEEN:

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SMT. SUSHEELAMMA W/O. LATE SRINIVAS NAIDU AGED ABOUT 69 YEARS RESIDING AT NO.157, 12TH 'B' MAIN, MARUTHI LAYOUT, VIRUPAKSHAPURA, BANGALORE-560 097.

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…APPELLANT

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(BY SRI N. SHARATH, ADVOCATE)

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AND:

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THE COMMISSIONER BBMP, HUDSON CIRCLE BANGALORE-560 001.

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Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA

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THE EXECUTIVE ENGINEER BBMP, BYATARAYANAPURA SUB-DIVISION BYATARAYANAPURA

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BANGALORE-560 092.

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THE ASSISTANT REVENUE OFFICER BBMP, BYATRAYANAPURA SUB-DIVISION BYATARAYANAPURA BANGALORE-560 092.

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VENKATRAMAIAH S/O. SRI KRISHNAPPA

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SINCE DECEASED BY HIS LR'S, 4(a) V. JAGADAMBA

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NC: 2023:KHC:44164 RFA No. 1433 of 2017

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W/O. SANKARAN D. NO.770/12-2, 15TH 'B' MAIN MATHIKERE, GOKULA EXTENSION BENGALURU-560 054.

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4(b) V. DURGADEVI W/O. M. SATYANARAYANA NAIDU AGED ABOUT 52 YEARS R/AT #36/3, HMT MAIN ROAD MATHIKERE, BANGALORE-560 054.

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4(c) V. RAGHAVENDRA S/O. VENKATAMAIAH AGED ABOUT 45 YEARS NO.10, BEHIND RAILWAY COLONY JALAHALLI POST, BANGALORE-560 013.

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…RESPONDENTS

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(BY SRI S.J. PURANIK, ADVOCATE FOR R.1 TO R.3; R.4(a), R.4(c) ARE SERVED; NOTICE TO R.4(b) IS HELD SUFFICIENT VIDE COURT ORDER DATED 27.06.2023)

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THIS APPEAL IS FILED UNDER SECTION 96 READ WITH

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ORDER 41 RULE 1 OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED IN O.S.NO.2149/2013, PASSED BY THE XXXIX ADDITIONAL CITY CIVIL JUDGE AT BANGALORE DATED 28.11.2016, IN THE INTEREST OF JUSTICE AND EQUITY ETC.

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

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3 - NC: 2023:KHC:44164 RFA No. 1433 of 2017

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JUDGMENT

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This appeal by the unsuccessful plaintiff in O.S.No.2149/2013 is directed against the judgment and decree dated 28.11.2016 passed by XXXIX Additional City Civil Judge, Bengaluru, whereby the said suit filed by the appellant/plaintiff against the respondents/defendants for mandatory injunction and other reliefs in relation to the suit schedule immovable properties was dismissed by the trial court.

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Heard both sides and perused the material on record.

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The material on record discloses that the appellant/plaintiff instituted the aforesaid suit for mandatory injunction directing the respondents/defendants to remove the encroachment on the suit schedule property and handover vacant possession of the suit schedule property to the appellant/plaintiff.

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The said suit was not contested by respondent nos.1 to

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3/defendants/BBMP inasmuch as they remained ex parte and obviously did not file their written statement.

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4 - NC: 2023:KHC:44164 RFA No. 1433 of 2017

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Respondent no.4/private defendant/defendant no.4 having entered appearance did not file written statement nor did he contest the suit.

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The appellant/plaintiff examined her General Power of Attorney Holder as PW.1 and Exs.P1 to P32 were marked.

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As stated supra, the respondents/defendants did not file their written statement and did not contest the suit and the pleadings and evidence of the appellant/plaintiff remained unimpeached, unchallenged and uncontroverted in the cross examination.

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The trial court framed the following points for consideration:

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"1) Whether the plaintiff proves that defendants have planted the chain link fence around the suit property without any authority?

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1. Whether the plaintiff is entitled for the reliefs as prayed for?

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1. What order or decree?"

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While dealing with point no.1, the trial court came to the conclusion that the pleadings and evidence of the appellant/plaintiff was sufficient to establish that she was the owner of the suit schedule property as can be seen from the findings recorded in

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5 - NC: 2023:KHC:44164 RFA No. 1433 of 2017

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paragraphs 9 and 10 of the impugned judgment, which read as under:

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''9. Point No.1:- The case of the plaintiff is that the suit schedule property originally belonged to one Venkataramaiah, who purchased the same under registered Sale Deed dated 21.3.1997 and he sold the same through his general power of attorney holder on 28.4.2006 in favour of this plaintiff and since then she has been in possession of the suit schedule property, khatha changed in her name and she has been paying tax to the concerned authorities.

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To prove these facts, plaintiff has produced Ex.P.1-Sale Deed dated 22.4.2006. Ex.P.3-Form No.3 pertaining to self-declared property tax particulars in the name of plaintiff for the year 2005-06. Ex.P.4 is the receipt issued by Bangalore One for payment of tax. Exs.P.5, 7 and 9 are the acknowledgements issued by BBMP for receipt of amount towards tax. Exs.P.8 and 10 are the receipts for payment of tax. Exs.P.11 and 13 are the Challans for payment of tax. Exs.P.12 and 14 are the copies of self-declared property tax declaration lists for the period 2005-07. Ex.P.21 is the certified copy of the Sale Deed dated 21.3.2007 in the name of vendor of plaintiff. Exs.P.22 to 26 are the RTC in respect of Sy.No.144 which stand in the name of vendor of plaintiff. Ex.P.30 is the certified copy of the Secondary Reclassification Copy of Book extract for

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6 - NC: 2023:KHC:44164 RFA No. 1433 of 2017

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re-Sy.No.144. Ex.P.31 is the acknowledgement issued by BBMP for receipt of tax. Ex.P.32 is the Tax Paid Receipt. These documentary evidence clearly corroborates the case of the plaintiff with respect to acquisition of property and possession. These oral as well as documentary evidence corroborates the plaint averments, which remained unchallenged by the defendants No.1 to 3 inspite of service of summons and defendant No.4 though appeared, did not contest the suit. Therefore, I hold that the plaintiff has proved that she having acquired the property under the Sale Deed dated 22.4.2006 was placed in possession and enjoyment of the suit property and she has been paying tax to the concerned authorities."

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However, at paragraph 11, the trial court came to the conclusion that the appellant/plaintiff had not established that the respondents/defendants had put a chain link fence to the suit property and tress passed into the suit schedule property and blocked 30 feet road existing towards the eastern boundary of the suit schedule property. In this context, it is relevant to state that the unimpeached, unchallenged and uncontroverted pleadings and evidence of the appellant was sufficient to come to the conclusion that the claim of the plaintiff that the respondents had tress passed upon the suit schedule property and put up a chain link fence to the

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7 - NC: 2023:KHC:44164 RFA No. 1433 of 2017

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suit schedule property deserves to be upheld particularly when the respondents had neither filed their written statement nor cross examined PW.1 nor adduced any rebuttal evidence to disprove the claim of the plaintiff.

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In this context, the reasoning of the trial court that corroborative evidence was required to establish putting up of a chain link fence is completely incorrect, erroneous and unsound in the facts and circumstances of the case, and consequently, I am of the considered opinion that the reasoning and findings recorded by the trial court at paragraph 11 of the impugned judgment are wholly contrary to the material on record and the same deserves to be set aside.

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While dealing with point no.2, the trial court placed reliance upon its finding on point no.1 and proceeded to dismiss the suit on the sole ground that point no.1 was held against the appellant.

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As stated supra, having recorded a categorical finding that the plaintiff had established her possession and enjoyment over the suit schedule property and also having recorded a finding that the respondents had not established any manner of right, title, interest or possession over the suit schedule property, I am of the

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8 - NC: 2023:KHC:44164 RFA No. 1433 of 2017

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view that the claim of the appellant that respondent nos.1 to 3 had put up a chain link fence and that the same deserves to be removed clearly warranted upholding of the claim of the appellant/plaintiff, which has been incorrectly negatived by the trial court. Under these circumstances, in the light of the findings recorded at paragraphs 9 and 10 of the impugned judgment upholding the right, title, interest and possession of the appellant over the suit schedule property and having come to the conclusion that respondent nos.1 to 3/BBMP did not have any manner of right, title, interest or possession over the suit schedule property, the trial court clearly fell in error in rejecting the claim of the plaintiff by passing the impugned judgment and decree which deserves to be set aside.

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It is relevant to state that respondent nos.1 to 3/BBMP being a statutory authority would have to be reserved liberty to take recourse to such remedies as available in law against the appellant/plaintiff or any one else in relation to the suit schedule property in accordance with law.

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In the result, the appeal is hereby allowed. The impugned judgment and decree dated 28.11.2016 passed by XXXIX

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NC: 2023:KHC:44164 RFA No. 1433 of 2017

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Additional City Civil Judge, Bengaluru in O.S.No.2149/2013 is hereby set aside. The suit of the plaintiff is decreed as prayed for.

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Sd/JUDGE

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hkh.

Smt Susheelamma v. the Commissioner

Case brief

What is this about?

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Smt Susheelamma v. the Commissioner

Case brief

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