Dismissed

Smt N Nagin Taj v. Sri P Narayana

Karnataka HC3 Oct 2023RFA/506/2005

Case brief

AI extract

What is this about?

In this regular first appeal regarding a property dispute, the High Court of Karnataka dismissed the appeal, upholding the Trial Court's decision. The Court held that the plaintiff failed to prove that the suit property was part of the 8.5 guntas of land covered by the original Power of Attorney due to discrepancies in survey numbers and lack of cogent evidence linking the site to the specific are

What the court decided

AI extract

Smt N Nagin Taj Vs Sri P Narayana — Partition | Karnataka HC (2023)

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NC: 2023:KHC:35674 RFA No. 506 of 2005

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3^RD DAY OF OCTOBER, 2023 BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA REGULAR FIRST APPEAL NO. 506 OF 2005 (DEC/INJ)

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BETWEEN:

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SMT.N.NAGIN TAJ, W/O ABDUL BASITH, AGED ABOUT 39 YEARS, R/AT.NO.1, OLD PENSION MOHALLA, MYSORE ROAD, BANGALORE - 560 018.

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…APPELLANT

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(BY SRI.A.KUMARAVEL AND ABDUL KHADER, ADVOCATES)

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AND:

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SRI.P.NARAYANA, S/O NOT KNOWN TO THE APPELLANT, AGED ABOUT 48 YEARS, CARRYING ON BUSINESS OF ESTATE AGENCY AT NO.1, K.G.HALLI, BANGALORE - 560 045.

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…RESPONDENT

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Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA

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(BY SRI.V.PRABHAKAR, ADVOCATE)

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THIS RFA IS FILED U/S.96 OF CPC AGAINST THE JUDGMENT AND DECREE DT.01.01.2005 PASSED IN O.S.NO.1846/2003 ON THE FILE OF THE VIII ADDL. CITY CIVIL AND SESS. JUDGE, BANGALORE (CCH-15), DISMISSING THE SUIT FOR DECLARATION AND MANDATORY AND PERMANENT INJUNCTIONS.

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

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NC: 2023:KHC:35674 RFA No. 506 of 2005

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JUDGMENT

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Heard Sri.Kumaravel, learned counsel for the

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appellant and Sri.Prabhakar, learned counsel for the respondent.

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Present appeal is directed against the judgment

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and decree passed in O.S.No.1846/2003 on the file of

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Addl. City Civil and Sessions Judge, Bengaluru City (Ch-15) dated 01.01.2005.

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Parties are referred to as plaintiff and defendant for the sake of convenience as per their original ranking before the Trial Court.

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4. Brief facts of the case are as under:

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Plaintiff filed a suit against Sri.P.Narayana with a prayer for declaration, mandatory and permanent injunction in respect of immovable property, which is a site bearing No.9, Katha No.707, House List No.7261/4 called out in Sy.No.122/3, Kasaba hobli, Kadugondanahalli, Bengaluru-560 045, measuring East to

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West 25 ft., North to South 30 ft. bounded on the East by Site No.1, West by road, North by Site No.8 and South by Site No.10 (hereinafter referred to as 'suit schedule property').

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Plaintiff supported the prayer by contending that one Sri.H.M.Baba, original owner of the suit schedule property, sold the suit schedule property to Sir.K.Nazeer Saheb on 11.10.1990 from whom plaintiff had purchased the suit schedule property. He further contended that from the date of purchase, plaintiff is in actual lawful possession and enjoyment of the suit schedule property, but defendant started interfering with the peaceful possession and enjoyment of the property of the plaintiff and therefore, the suit was necessitated.

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It also contended that Sir.K.Nazeer Saheb had

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earlier filed a suit for permanent injunction against the present defendant in O.S.No.3513/1996 and when the suit was pending, Sir.K.Nazeer Saheb sold the suit schedule property to plaintiff for valuable consideration and in view

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of the fact that Sir.K.Nazeer Saheb sold the suit schedule property in favour of the plaintiff, the suit filed by Sir.K.Nazeer Saheb became infructuous and therefore, the said suit was dismissed. When the defendant started interfering with the suit schedule property, the plaintiff approached the jurisdictional police and filed a complaint. In the meantime, plaintiff had filed a suit in O.S.No.16927/2002 before Addl. City Civil and Sessions Judge, Mayo Hall Unit, Bengaluru, for bare injunction. Defendant avoided the service of suit summons in the said suit and started interfering with the peaceful possession of the suit property and defendant even went to the extent of erecting a pillar like structure in the suit schedule property. Therefore, in the suit in O.S.16927/2002, an application was moved for granting temporary injunction to stop illegal constructions of the defendant. However, no order was passed on the said application and therefore, plaintiff was constrained to withdraw the said suit and file the present suit.

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Upon service of suit summons, defendant

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entered appearance and filed a detailed written statement contending that the plaintiff’s suit is based on forged and fabricated documents and there was no valid title possessed by Sri.H.M.Baba to sell the property in favour of the plaintiff. Defendant, further contended that the property belonged to one late Sri.Muninanjappa, who died in the year 1959 and thereafterwards, the successors of late Sri.Muninanjappa are in possession and enjoyment of the suit schedule property. They also referred to suit in O.S.No.10361/1998 before Addl. City Civil and Sessions Judge, Mayo Hall Unit, Bengaluru (CCH-29) and suit schedule property is part and parcel of Sy.No.122/3 for which the plaintiff has no right, title or interest and sought for dismissal of the suit.

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Based on the rival contentions of the parties,

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Trial Court raised following issues:

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1. Whether the plaintiff proves that she is the absolute owner of the suit schedule property?

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2. Whether she was in possession of the suit schedule property as on the date of the suit?

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3. Whether she proves interference by the defendant in her possession of the suit schedule property?

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4. Whether the plaintiff entitled to the relief of declaration sought?

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5. Whether she is entitled for the relief of permanent injunction?

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6. Whether she is entitled for mandatory injunction for direction to the defendant to demolish the illegal structure made by him on the suit schedule property?

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7. Whether the valuation made and the Court fee paid is proper and sufficient?

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8. What order?

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In order to prove the case of plaintiff,

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Sri.Saleem Sherif got examined as P.W.1, Sri.K.Nazeer Saheb as P.W.2 and Sri.Chandrashekar K.K. as P.W.3. Plaintiff placed reliance on 15 documents, which are marked and exhibited as Exs.P.1 to Ex.P.15 comprising of Power of Attorney, sale deed, katha extract, two tax paid receipts, two encumbrance certificates, layout plan,

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certified copy of order sheet passed in O.S.No.3513/1996, office copy of the police plaint and acknowledgment, certified copy of the order sheet in O.S.No.4541/2003, certified copy of the plaint and affidavit, Power of Attorney and the authorisation letter.

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As against the oral and documentary evidence placed on record by the plaintiff, defendant got examined himself as D.W.1 and he has relied on 25 documents which are exhibited and marked as Ex.D.1 to Ex.D.25 comprising of certified copy of the memo and order sheets and other documents in O.S.No.16927/2002, O.S.No.3513/1996 and copy of the sale deed dated 03.08.1959, death certificate of Sri.Muninanjappa, certified copy of Genealogical tree, death certificate of the father of D.W.1, katha registration certificate, katha extract, receipt for having paid the betterment charges, two tax paid receipts, notice issued by BBMP, copy of the written statement in O.S.No.3513/1996 and certified

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copies of the RTC extracts, encumbrance certificate and two electricity bills.

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On conclusion of recording of the evidence,

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learned Trial Judge heard the parties in detail and dismissed the suit of the plaintiff.

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Being aggrieved by the same, plaintiff has filed

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the present appeal on the following grounds:

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The Court below erred in not appreciating the various documents and the facts placed before it, neither did the Court below has taken into consideration, the cogent material evidence placed before it, as to dismiss the suit of the plaintiff/appellant.

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The Court below ought to have taken into consideration that K.Nazeer Sab was inducted in possession of the property, Site No.9 under the registered sale deed dated 11.10.1980. The possession is not disputed by the Respondent.

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The Court below failed to notice that Site No.9 is in Sy.No.122/3, House List No.726/4, Katha No.787, Kadugondanahalli, Bangalore and that it was a vacant site.

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The Court below failed to notice from the evidence of PW2 that as on the date of purchase of the property, the suit

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schedule Site was a vacant site and he was in possession of the property and when there was interference from the Respondent, he filed a civil suit in 0.S.No.3513/1996 and in the said suit, there was order of injunction.

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The Court below failed to notice that the order of injunction was in respect of the vacant site. There was no construction in respect of the property.

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The Court below made much of an interpretation with regard to EX-P15, the Power of Attorney executed in favour of H.M.Baba, who executed registered sale deed in favour of K.Nazeer Sab and K.Nazeer Sab in favour of the Appellant.

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The Court below failed to notice from the evidence of the Respondent that there was only one property that was of Muninanjappa, who had executed Power of Attorney in favour of H.M.Baba, resident of No.151, Road, Frazer Town, Bangalore, which also had the similar number as 122/3.

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The Court below ought to have taken into consideration, boundaries in EXP15 and the evidence of DW1, who has clarified that the boundaries in EX-P15 and EX- PB are one and the same and the sketch produced by the Respondent, pertains to the Power of Attorney schedule mentioned therein. On an overall assessment of the evidence placed before the Court, the Court below ought to have drawn inference that No.121, New No.123 had earlier number as 122/3. Therefore, the 8 1/2

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guntas of land was within land, Sy.No.121, 122/3 and New No.123 of Kadugondanahalli, Bangalore, belonging to one Muninanjappa.

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The Court below ought to have taken note that Site No.9 was within By.No.122/3 and what was executed in respect of Site No.9 is identified in the evidence of the defendant/Respondent, DW1 himself. Therefore, the Court below ought to have believed the evidence of the defendant/respondent and decreed the suit.

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The Court below ought to have granted a decree in favour of the Appellant, instead of dismissing the suit the basis of the frivolous identify.

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The Court below ought to have decreed the suit, ordered demolition of the building and delivered possession of the suit schedule property in favour of the Appellant.

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Sri.Kumaravel, learned counsel for the

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appellant reiterating the grounds urged in the appeal memorandum contended that the Trial Court has not properly appreciated the material evidence on record inasmuch as, the property said to have been purchased by Smt.N.Nagin Taj, is not at all considered by the learned Trial Judge. Court below ignored the probative value of

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the sale deed executed by Sri.K.Nazeer Saheb, who had in

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turn purchased the same from Sri.H.M.Baba.

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He has also argued that material on record would go to establish that what has been sold to the plaintiff is a site with a specific measurement and the said property was subject matter of Power of Attorney and remaining property that has been claimed by the successors of late Sri.Muninanjappa are altogether different and therefore, Trial Court ought to have decreed the suit of the plaintiff.

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He also pointed out that material on record would go to show that Sy.No.121 has been re-numbered as Sy.No.122/3 and mere wrong mentioning of the survey number in Ex.P.15 itself could not to have been considered by the learned Trial Judge to non-suit the claim of the plaintiff, who had purchased the constructed house situated in the suit schedule property and defendant high handedly encroached upon the suit schedule property, necessitating the plaintiff to file a suit for declaration and

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injunction and thus sought for allowing the appeal by decreeing the suit.

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Per contra, Sri.V.Prabhakar, learned counsel representing for the contesting respondent contended that the power of attorney said to have been executed in favour of Sri.H.M.Baba by Sri.Muninanjappa was in respect of Sy.No.123 and 8½ guntas of land was no doubt subject matter of the said power of attorney as per Ex.P.15. Therefore, the suit schedule property should have been situated or carved out in Sy.No.123 and not in Sy.No.121 or 122/3. The schedule in Ex.P.15 would clearly depict that 8½ guntas of remaining land in Sy.No.121, which was newly renumbered as Sy.No.123 was the subject matter of registered Power of Attorney executed by Sri.Muninajappa in favour of Sri.H.M.Baba from whom Sri.K.Nazeer Saheb said to have purchased said Site No.9, which could have been part of Sy.No.121 and new Sy.No.123. Therefore, the case of plaintiff has been rightly appreciated by the

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learned Trial Judge while dismissing the suit of the plaintiff.

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He also pointed out that in the sale deed executed by Sri.K.Nazeer Saheb to Smt.N.Nagin Taj, which is marked at Ex.P.2 conveniently no survey number is mentioned and property is described as Site No.9. As such, Site No.9 is formed in Sy.No.121 new Sy.No.123 is not established by placing reliable material on record and the sketch that has been marked at Ex.P.8 contains several sites and in 8½ guntas of land, such huge number of sites could not have been formed. Therefore, Ex.P.8 would not conclusively establish that the site that has been purchased by Sri.K.Nazeer Saheb in turn sold in favour of the plaintiff is part of Sy.No.121, which is newly numbered as Sy.No.123 having not been established by placing cogent and evidence on record, dismissal of the suit by Trial Court is just and proper and sought for dismissal of the appeal.

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In reply, Sri.A.Kumaravel, learned counsel for the appellant contended that boundaries mentioned in Ex.P.8 in respect of Site No.9 tallies with the sale deed of the plaintiff as per Ex.P.2 and therefore, Ex.P.8 is to be accepted and appeal is to be allowed.

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In view of the rival contentions of the parties, this Court perused the material on record meticulously. On such perusal of the material on record, following points

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arise for consideration:

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1. Whether the plaintiff has made out a case that she is the owner of site No.9 called out of Sy.No.121 new Sy.No.123 and is in lawful possession and therefore, the defendant be restrained from interfering peaceful possession and enjoyment of the suit schedule property and also for mandatory injunction as prayed?

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2. Whether the impugned judgment is suffering from any legal infirmity or perversity and thus calls for interference?

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3. What order ?

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RE. POINT NOS.1 & 2:

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On perusal of the material on record, it is crystal clear that the plaintiff is the second purchaser of Site No.9 said to have been carved out of Sy.No.121, which is newly numbered as Sy.No.123. It is the case of plaintiff that, late Sri.Muninanjappa who is the original owner of the property has executed registered Power of Attorney in favour of one Sri.H.M.Baba to the extent if 8 ½ guntas for development and sale.

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Admittedly, what is the total extent of Sy.No.121 is not established by the plaintiff by placing necessary evidence on record. No doubt, evidence of P.W.1 would go to show that he had purchased the suit property from Sri.K.Nazeer Saheb vide Ex.P.2. In fact, Sri.K.Nazeer Saheb is examined as P.W.2 in favour of the plaintiff.

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P.W.3 is the Sub-Registrar, who has been summoned on behalf of the plaintiff to produce the Power

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of Attorney, which has been registered in the office of Sub

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Registrar and marked as Ex.P.15.

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These aspects of the matter when viewed cumulatively, it is crystal clear that late Sri.Muninanjappa in his lifetime had executed a registered Power Of Attorney in favour Sri.H.M.Baba to develop 8 ½ gutans of land out of Sy.No.121, which is newly numbered as Sy.No.123 with the boundaries as under:

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 East : PWD road.

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 West : Munianjani’s land  North : Muniyappa’s land  South : PWD road.

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According to the plaintiff, in 8½ guntas of land, the sites

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are formed vide Ex.P.8. There is no material on record to show that who has prepared at Ex.P.8 and whether same is approved or not. No seal or signature of either the Grama Panchayat or any other revenue authorities are found on Ex.P.8. How plaintiff got the custody of Ex.P.8 is also not explained on behalf of the plaintiff.

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On careful perusal of Ex.P.8, as many as 70 sites are found with different measurements. Taking note of the total measurements mentioned in each of the sites from site Nos.1 to 70, the same could not have been formed in 8½ guntas of land, which is the subject matter of the Power Of Attorney at Ex.P.15.

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On the contrary, the plan depicts that sites are formed in old Sy.No.121 and 122 and new Sy.No.122/3 and not in Sy.No.123. It is also mentioned in Ex.P.8 that the said map is not to the scale. Who has prepared the said map is also not forthcoming.

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To appreciate the arguments of the learned counsel for the plaintiff, this Court bestowed its attention to the boundaries in respect of site No.9 found in Ex.P.8. No doubt, boundaries mentioned in Ex.P.8 in respect of site No.9, which is suit schedule property, tallies with the sale deed marked at Ex.P.2. But the same when kept in juxta position, with the Power Of Attorney marked at Ex.P.2, the boundaries of the site number would not tally

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with Ex.P.8. In other words, Ex.P.8 is for the whole land which is available in Sy.No.121 and 122, new number 122/3 and not in new number 123. Perhaps the land in Sy.No.121 new Sy.No.123 measuring 8½ guntas might have been separately developed by Sri.H.M.Baba and sold in favour of Sri.Naseer Saheb and Sri.Naseer Saheb sold in favour of Smt.N.Nagin Taj, who is the plaintiff's son by virtue of Ex.P.2. However, it is for the plaintiff to establish before the Court that the property which is the suit schedule property has been situated in the map in Ex.P.8 by placing cogent and convincing evidence on record. In the absence of clear identification as to the site No.9 by placing necessary evidence on record with no declaratory relief could have been granted in favour of the plaintiff. Accordingly, the learned Trial Judge has rightly appreciated the material evidence on record in holding that the sale deed vide Ex.P.2 did not convey any right, title or interest in respect of the property that has been claimed in the suit for which the defendant has also laid

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the claim. Defendant is none other than the grandson of late Sri.Muninanjappa.

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Further, as could be seen from the material evidence on record and from the averments made in the plaint itself, earlier the plaintiff did approach the Civil Court in O.S.No.16927/2002 for grant of temporary injunction and he utterly failed in getting the said suit brought to the logical end and withdrew the suit.

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Further, the vendor of the plaintiff had also filed a suit in O.S.No.3513/1996 and during the pendency of the said suit, he sold the property in favour of the plaintiff and therefore, said suit was also dismissed.

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It is possible that the vendor of the plaintiff having realized that he cannot digest the property any longer having failed in O.S.No.3513/1996, must have clandestinely sold the property during the pendency of the suit in favour of the plaintiff so that she can file a suit against the defendant and make out a case for herself.

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The material on record would also go to show that Sri.N.Gopi had filed a suit in O.S.No.10361/1998 on the file of Addl. City Civil and Sessions Judge, May Hall unit, Bengaluru city (CCh-29) and the said property was formed in the Sy.No.122/3 against the defendant and family members.

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These aspects of the matters would clearly go to show that there are number of litigations in respect of the suit schedule property and plaintiff having approached the Court for declaratory relief must make out a definite case that she has a legal and valid title to the suit schedule property so that she can seek declaration and injunction against the defendant.

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In the case on hand, since the site No.9 is not forming the property, which is subject matter of old Sy.No.121 and new Sy.No.123 as is mentioned in Ex.P.15 to the extent of 8½ guntas, the learned Trial Judge has rightly appreciated the material evidence on record placed

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by both the parties and has rightly rejected the suit of the plaintiff.

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Even after re-appreciation of the material evidence on record, this Court has no hesitation whatsoever in holding that the finding recorded by learned Trial Judge in dismissing the suit of the plaintiff is not suffering from any perversity or legal infirmity.

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In view of the forgoing discussions, this Court has to answer point Nos.1 and 2 in the negative and accordingly, they are answered.

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RE. POINT NO.3:

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In view of the findings of this Court in point Nos.1 and 2, the following:

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ORDER

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i. Appeal is meritless and hereby dismissed.

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ii. However, dismissal of the present suit against the defendant shall not

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come in the way of plaintiff, identifying her property and proceed against the concerned, in accordance with law.

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iii. No order as to costs.

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Sd/JUDGE

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KAV List No.: 1 Sl No.: 30

Smt N Nagin Taj v. Sri P Narayana

Case brief

What is this about?

What the court decided

Smt N Nagin Taj v. Sri P Narayana

Case brief

What is this about?

What the court decided

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