Allowed

Smt Nusrathunnisa v. Sri Ismail Sharief

Karnataka HC10 Oct 2023RFA/933/2017

Case brief

AI extract

What is this about?

Appeal against dismissal of suit for permanent injunction. Plaintiff proved lawful possession through sale deed, revenue records, and electricity bills. Defendants absent, no defence raised. Trial court erred in requiring a declaratory suit; appeal allowed, injunction granted.

What did the court decide?

Permanent injunction granted restraining the respondents/defendants from interfering with the appellant/plaintiff's peaceful possession and enjoyment of the suit schedule property.

Smt Nusrathunnisa Vs Sri Ismail Sharief — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:37030 RFA No. 933 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR REGULAR FIRST APPEAL NO.933 OF 2017 (PAR/INJ)

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BETWEEN:

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SMT.NUSRATHUNNISA W/O SRI SIRAJUDDIN DELVI AGED ABOUT 42 YEARS R/AT NO.114, B STREET VEERANNA GARDEN FRAZER TOWN, BENGALURU-560 005

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Digitally signed by GAVRIBIDANUR SUBRAMANYA GUPTA SREENATH

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Location: HIGH COURT OF KARNATAKA

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REPRESENTED BY HER POWER OF ATTORNEY HOLDER[ SRI SIRAJUDDIN DELVI S/O LATE K.P.DELVI AGED ABOUT 53 YEARS R/AT NO.114, 'B' STREET VEERANNA GARDEN FRAZER TOWN BENGALURU - 560 005

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(BY SRI JANARDHANA G.,ADVOCATE)

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AND:

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SRI ISMAIL SHARIEFF S/O SHAIK MOHIUDDIN AGED ABOUT 52 YEARS R/AT NO.503, R.K.MAIN ROAD BENGALURU - 560 077

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…APPELLANT

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SRI JABIR PASHA S/O ABDUL KHADAR AGED ABOUT 33 YEARS

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R/AT NO.27, BYRAPPA LAYOUT GOVINDAPURA ARABIC COLLEGE POST, BENGALURU -560 045

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…RESPONDENTS

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(BY SMT.ARCHANA K.M., ADVOCATE & AMICUS CURIAE FOR R-1 & R-2)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 R/W ORDER 41 OF CODE OF CIVIL PROCEDURE., PRAYING TO SET ASIDE THE ORDER DATED 04.04.2017 PASSED BY THE XLIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU DISMISSING THE SUIT OF THE APPELLANT IN O.S.NO.8965/2014 AND CONSEQUENTLY DECREE THE SAME.

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

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O R D E R

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This appeal is preferred by the plaintiff in O.S. No.8965/2014 being aggrieved by the Judgment and Decree dated 4^th April 2017 passed by the XLIV Additional City Civil & Sessions Judge, Bengaluru, whereby the learned trial Judge dismissed the suit for Permanent Injunction.

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The parties shall be referred to as per their ranking before the trial Court.

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(i) Case of the plaintiff before the trial Court

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The plaintiff claims to be the absolute owner in possession and enjoyment of the site bearing No.119, Khatha No.92/2/119 formed out of larger property No.92/2 situated at Thanisandra village, K.R. Puram Hobli, Bangalore East taluk measuring East to West : 30 feet, North to South 25 feet – in all measuring 750 square feet with 3 squares of A.C. Sheet roofed residential house constructed with cement and bricks.

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3.1 It is the case of the plaintiff that she purchased the suit schedule property from one Sri K. Basheer Khan, Sri S.A. Munaff, Syed Ataullah and Smt. Shaheda Begum through their GPA holder – Sri Sirajuddin Delvi, who is none other than her husband, under a registered sale deed dated 23.2.2013, registered in the office of the Sub-Registrar, Banaswadi, Bangalore. Pursuant to the registration of the suit schedule property in her name, she got the revenue records transferred to her name and continued to be in possession of the suit schedule property as absolute owner.

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3.2 It is further case of the plaintiff that the defendants who have no manner of right, title and interest and strangers

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to the suit schedule property tried to interfere with her peaceful possession and enjoyment of the suit schedule property. The plaintiff resisted the said interference and later she came to know that the defendants and others with the help of local persons are in the habit of identifying the vacant sites available in and around the area and thereafter go to Panchayat Office and create false revenue records in collusion with the officials, thereby concoct sale deeds and sell the vacant sites to various parties and make ill-gotten fast money out the same. Plaintiff came to know that the defendants with the malafide intention and illegal motive trying to knock off the suit schedule property belonging to her and also trying to dispossess her from the suit schedule property using the said false and concocted documents.

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3.3 The plaintiff came to know that the defendant No.1 herein filed the suit in O.S. No.3970/2014 against her for the relief of Permanent Injunction on the basis of false and frivolous concocted documents alleging that he had purchased southern portion of the suit schedule property under the sale deed dated 3.9.2012 and trying to dispossess her from the suit schedule property.

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3.4 The defendants having failed in their attempt to get

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an exparte order of injunction in the said suit, made hectic efforts to dispossess her and tried to interfere with her peaceful possession and enjoyment of the suit schedule property.

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3.5 On these grounds, the plaintiff filed the suit for the relief of Permanent Injunction against the defendants.

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(ii) Case of the defendants before the trial Court

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On issuance of the notice and despite service of notice

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to the defendants, they have not appeared before the Court and accordingly, they were placed exparte .

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(iii) Findings of the trial Court

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On the basis of the pleadings, the trial Court proceeded to frame following issues for consideration:

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"1. Whether the plaintiff has proved and established that, there exist obligations in favour of plaintiff to be performed by the defendants in respect of suit property?

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2. Whether the plaintiff further proves that, the defendants have intention to breach such obligations exist in favour of plaintiff?

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3. Whether the plaintiff is entitled for the relief of perpetual injunction as sought for?

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In order to substantiate the issues and establish the case, the plaintiff examined herself as PW.1 and got marked Ex.P1 to Ex.P9(a). After hearing the counsel for the plaintiff on record and on going through the evidence, both oral and documentary, the trial Court not being satisfied with the contentions putforth by the plaintiff, negatived the issues against the plaintiff and consequently dismissed the suit of the plaintiff.

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Aggrieved by the dismissal of the suit, the

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appellant/plaintiff is before this Court in the first appeal under Section 96 read with Order 41 of the Code of Civil Procedure.

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(iv) Regarding appointment of learned amicus curiae on behalf of respondents/defendants

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Before this Court though the respondents/defendants

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were served with notice, there is no representation on their

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behalf and the service of notice to them is held sufficient. This

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Court in abundant precaution and to facilitate proper representation on behalf of the unrepresented respondents/defendants appointed an amicus curiae.

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Accordingly, learned amicus curiae has taken notice of the first appeal and assisted this Court by effectively arguing the matter, which will be dealt with during the course of judgment.

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(v) Arguments advanced by learned counsel - Sri Janardhan .G for the appellant/plaintiff

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It is the vehement contention of learned counsel – Sri

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Janardhan .G for the appellant/plaintiff that the judgment & decree passed by the trial Court is illegal, arbitrary and same requires to be set aside as the trial Court has not considered the material evidence placed on record in the proper perspective and despite the defendants having not appeared and not placed any defence on record and not adduced evidence, has dismissed the suit of the plaintiff that caused miscarriage of justice to the plaintiff. Learned counsel further contends that the trial Court has committed an error in holding that the plaintiff has not proved the subsistence of the power of attorney as on the date of plaintiff purchasing the suit schedule

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property through her power of attorney holder i.e, her husband, ignoring the fact that under Section 85 of the Evidence Act, the Court shall presume genuineness of the said document unless otherwise it is rebutted by the other side by cogent evidence. It is further contended by the learned counsel that a suit for injunction came to be filed on the basis of the registration of the sale deed. The plaintiff produced and got marked registered sale deed, revenue records, electricity bills and other documents as per Ex.P1 to Ex.P9(a) to show her lawful possession and ownership over the suit schedule property. It is also vehement contention of learned counsel that the trial Court has seriously erred in coming to the conclusion that the plaintiff ought to have filed a suit for declaration rather than a suit for Permanent Injunction when the other side has not denied the title of the plaintiff.

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9.1 Learned counsel further contends that the learned trial Judge has erred in coming to the conclusion that none of the deponents has sworn to an affidavit in favour of husband of the plaintiff and neither any evidence adduced other than by the plaintiff/PW.1 to prove the contents of the GPA and that it was intact as on the date of execution of the sale deed/Ex.P1 in

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favour of the plaintiff. In fact under Section 85 of the Evidence Act, the Court shall presume that every document purporting to be a power of attorney, and to have been executed before, and authenticated by, a Notary, Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul, or representative of the Central Government, was so executed and authenticated and unless it is otherwise rebutted and controverted, same will have to be taken on its face value for the purpose of deciding the case. Learned counsel further contends that the trial Court extended the scope of the suit for Permanent Injunction filed by the plaintiff without any proper basis and assumed that the defendants had denied the title and possession of the plaintiff over the suit schedule property and erred in holding that suit for Permanent Injunction would not be maintainable and the plaintiff ought to have filed suit for declaration.

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9.2 Learned counsel further contends that the trial Court committed an error in holding that the plaintiff failed to prove cause of action for interference of the defendants during the 3^rd week of June-2014 over the suit schedule property belonging to the plaintiff despite the fact that the plaintiff has

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clearly stated at paragraph-4 of the plaint that the defendants started to interfere with the peaceful possession and enjoyment of the suit schedule property in the 3^rd week of June and following the same on 15.7.2014 at 10.30 a.m., the defendants came to the suit schedule property and caused obstruction, which was resisted by the plaintiff and left with no other alternative option and remedy, plaintiff purports to have filed the suit for Permanent Injunction against the defendants.

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9.3 Learned counsel further contends that the trial Judge erred in holding that since the tax for the years 2012-13 and 2013-14 was paid on 10.6.2014 together and not paid as and when fell due, she is not entitled for any relief, ignoring the sale deed and other revenue records. This sort of conclusion drawn by the trial Court is without any basis and not material for the purpose of deciding the suit.

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9.4 Learned counsel further contends that the trial Court has committed an error in holding that the plaintiff ought to have filed the suit for declaration instead of filing the suit for Permanent Injunction and should have proved her possession as on the date of filing of the suit, ignoring the fact that

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absolutely there is no defence nor written statement nor denial by the defendants with regard to the ownership, title and possession of the plaintiff over suit schedule property including the cause of action raised by the plaintiff in the suit.

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9.5 Learned counsel also contends that the trial Court has seriously erred in coming to a conclusion that the plaintiff has failed to prove the ingredients under Section 38 of the Specific Relief Act and hence she is not entitled to the relief sought in the suit.

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9.6 It is further contended by the learned counsel that the trial Court has erroneously come to the conclusion that in view of the plaintiff having produced the certified copy of the earlier suit proceedings filed by the defendants in O.S. No.4107/2014 and 3970/2014, the 2^nd part of Section 38 of the Specific Relief Act has not been proved and established by the plaintiff to seek the relief of injunction.

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9.7 Learned counsel further contends that despite the plaintiff making categorical statement in the plaint averments and in the verifying affidavit annexed to the plaint and so also stated on oath that the defendants are trying to interfere with

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his peaceful possession and enjoyment over the suit schedule property and cause of action is made out for granting Permanent Injunction on the basis of the pleadings and the documents produced at Ex.P1 to Ex.P9(a), the trial Court has misconstrued itself with regard to filing of the suit and the manner of filing of the suit by the plaintiff for the relief of Permanent Injunction. The trial Court has further committed an error in holding that the plaintiff has not proved her title on the basis of the sale deed/Ex.P1 dated 23.2.2013 on the ground that the defendants have denied the title of the plaintiff and since no prayer for the relief of declaration is sought, the suit filed by the plaintiff for mere Permanent Injunction is not maintainable and accordingly dismissed the suit which is highly erroneous in law.

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9.8 It is also contention of learned counsel that the trial Court has committed an error in concluding that the power of attorney executed by husband of the plaintiff has not been proved in accordance with law. Learned counsel further contends that the trial Court has committed a gross error in holding that the plaintiff has not made out a cause of action and not proved the same having accrued in the 3^rd week of

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June-2014 so also the trial Court committed an error in coming to the conclusion that the modus operandi of the alleged interference by the defendants having taken place on 15.7.2014 at 10.30 a.m. is not at all proved by the cogent evidence by the plaintiff. Learned counsel further contends that the trial Court ignored the documentary evidence on record including the certified copy of the sale deed/Ex.P1, certified copy of the revenue records at Ex.P1 to Ex.P4; Electricity bills/Ex.P5 and Ex.P6 and the receipt/Ex.P6(a). Despite there being no defence or denial by the defendants, the trial Court also ignored and not considered Ex.P7 and Ex.P8, the certified copies of the order sheet and plaint in O.S. No.3970/2014 in the proper perspective.

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9.9 It is further contention of the learned counsel that the plaintiff has filed the suit for Permanent Injunction against the defendants and produced material evidence, both oral and documentary to prove her case. The plaintiff mainly relied on Ex.P1 to Ex.P9(a). Ex.P1 is the certified copy of the sale deed, which is the document of title to support her case that she is the absolute owner of the suit schedule property and Ex.P2 to Ex.P4 are the revenue records. Learned counsel also produced

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Ex.P7 and Ex.P8, the certified copies of the order sheet and the plaint in O.S. No.3970/2014 to impress upon the Court that the defendants have earlier made an attempt to interfere with the peaceful possession and enjoyment of the plaintiff over the schedule property. The defendants have failed to secure an interim order in the said original suit and ultimately, the said suit in O.S. No.3970/2014 came to be dismissed for nonprosecution. The trial Court has also ignored Ex.P9/photograph and Ex.P9(a)/relevant CD, which show that the plaintiff constructed a shed and residing in the suit schedule property. These are all the documents which apparently throw light on the fact of the ownership, title and possession of the plaintiff over the suit schedule property. To show that the defendants

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are trying to interfere and knock off the property of the plaintiff, Ex.P7 and Ex.P8 are produced, which have not been appreciated by the trial Court in the proper perspective.

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9.10 On these grounds, learned counsel for the appellant/plaintiff submits that he has made out a valid case for grant of an order of Permanent Injunction in favour of the plaintiff and there being no defence and no cross-examination of the plaintiff or denial of the right, title and interest, there is

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nothing on record to dispute the ownership, title and possession of the plaintiff over the suit schedule property and he has proved the interference caused by the defendants. Hence, he contends that the dismissal of the suit by the trial Court is erroneous, arbitrary, illegal and the same requires to be set aside and the decree of Permanent Injunction deserves to be granted in favour of the plaintiff.

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(vi) Arguments advanced by learned counsel – Smt. Archana K.M. appointed as amicus curiae on behalf of respondents/defendants

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Per contra, learned counsel – Smt. Archana K.M., amicus curiae appointed on behalf of respondents/defendants, vehemently contends that the trial Court not committed any error either on facts or on law and passed a considered judgment against the plaintiff, which does not call for interference at the hands of this Court. She further contends that when the plaintiff comes before this Court to seek an order of Injunction or any relief for that matter, she has to approach

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the Court with clean hands without suppression of facts and place all the materials for grant of relief in her favour in support her contentions. In the present case on hand, the plaintiff has

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not come before the Court with clean hands and concocted frivolous cause of action and not placed sufficient material before the Court to show her ownership and title over the suit schedule property. The plaintiff also failed to establish the subsistence of the power of attorney on the basis of which, she secured or procured the sale deed vide Ex.P1. The power of attorney having not been established with any other additional evidence on behalf of the plaintiff, learned amicus curiae contends that the trial Court rightly dismissed the suit and the same does not call for interference at the hands of this Court.

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10.1 Learned amicus curiae further contends that when

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there is a cloud raised on the title of the plaintiff, apparently it becomes the duty of the plaintiff to seek for the relief of declaration and not file a mere suit for injunction. Even according to the plaintiff by production of Ex.P7 and Ex.P8, the defendants had filed earlier suit against the plaintiff and therefore that itself would prove that there is a cloud on the title of the plaintiff and therefore plaintiff ought to have filed the suit for declaration rather than mere filing the suit for Bare Injunction. She further contends that when the plaintiff relies on the power of attorney for registration of the sale deed, it

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becomes the duty of the plaintiff to prove the existence and subsistence of the power of attorney as on the date of purchase of the suit schedule property so also it becomes the duty cast on the plaintiff to prove that the document is duly executed and authenticated by the so called power of attorney in her favour. It is the further contention of the learned amicus curiae that the plaintiff has miserably failed to prove her title and possession over the suit schedule property and the documents produced i.e, electricity bills at Ex.P6 and Ex.P6(a) do not reflect the name of the plaintiff. Therefore, the trial Court is right in dismissing the suit of the plaintiff for not having proved her case.

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10.2 It is the further contention of the learned counsel for the defendants that the plaintiff having come before the Court will have to establish her right, title and interest over the suit schedule property by producing the relevant documents in support of her case. The plaintiff cannot take shelter under the guise that there was no defence or that the defendants have not appeared before the Court or was placed exparte . The plaintiff has to stand on her own legs rather than flaws or defects of the defendants.

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10.3 On these grounds, learned amicus curiae contends

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that the trial Court has rightly dismissed the suit and the plaintiff has not made out a valid reason to allow the suit and grant the decree of Permanent Injunction in her favour.

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(vii) Points for consideration

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Having heard learned counsel for the appellant/plaintiff and learned amicus curiae on behalf of respondents/defendants, the points that would arise for consideration before this Court in the present appeal are:

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i) Whether the appellant/plaintiff has made out a case for grant of Permanent Injunction in her favour over the suit schedule property ?

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ii) Whether the appellant/plaintiff was in lawful

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possession of the suit schedule property as on the date of filing the suit and whether the respondents/defendants interfered with the peaceful possession and enjoyment of the suit schedule property ?

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(viii) Consideration

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In order to consider these aspects, it is relevant to note the pleadings in the plaint with regard to the ownership, title and possession over the suit schedule property, the cause of action pleaded in the suit - not merely the date of cause of action, but the series of cause of actions pleaded in the entire plaint. It is also relevant to see what are the documents produced by the plaintiff to establish her lawful possession over the suit schedule property as on date of filing the suit and whether the plaintiff deserves to be granted the relief of Permanent Injunction on the basis of the material placed by her.

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Admittedly, on issuance of notice, the defendants have not appeared and they have been placed exparte before the trial Court and absolutely there is no defence and no denial of the averments made in the plaint. The defendants have not cross-examined the plaintiff, not controverted the averments made either in the plaint or in the evidence. Neither they stepped into the witness box to adduce evidence on their behalf or to cross-examine the plaintiff. They conveniently remained

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absent. Therefore, this Court will have to take into consideration the pleadings placed before the Court, evidence adduced by the plaintiff/PW.1, the documentary evidence placed on record as per Ex.P1 to Ex.P9(a) and the arguments advanced by the learned counsel for the appellant/plaintiff as well as the learned amicus curiae for the respondents/defendants to decide the matter.

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In order to establish the case of the plaintiff, she produced Ex.P1/certified copy of the sale deed dated 23.2.2013. This document is a registered sale deed executed by none other than her husband in her favour acting as power of attorney holder of the vendors – Sri K. Basheer Khan, Sri S.A. Muinaff, Sri Syed Ataullah and Mrs. Shaheda Begum. The sale deed is a registered document which is not disputed in the proceedings on hand. Two Encumbrance Certificates in Form No.15 are produced at Ex.P2, which depict the sale consideration amount and the transfer of the property in favour of the plaintiff from earlier vendors through the power of attorney holder. Two property assessment Register extracts

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are produced at Ex.P3, which also depict the name of the plaintiff to be an occupier of site measuring 30 feet x 25 feet

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i.e. 750 square feet. Three tax paid receipts are produced at Ex.P4, which are in the name of the plaintiff and they depict that tax has been paid to Bruhat Bangalore Mahanagara Palike for the years 2012-13 to 2014-15. Electricity bills and receipt are produced by the plaintiff at Ex.P6 and Ex.P6(a) and these documents have not been denied. Ex.P7 is the certified copy of the order sheet in the suit proceedings in O.S. No.3970/2014 initiated by the defendants herein against the plaintiff and other person. According to the plaintiff, the said suit was initiated by the defendants to knock off the property of the plaintiff and thereby to secure an order of Temporary Injunction against the plaintiff. The order sheet clearly depicts that the defendants were unsuccessful in securing an interim order and thereafter

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vide order dated 22.7.2016, the said suit filed by the defendants in O.S. No.3970/2014 came to be dismissed for non-prosecution. Ex.P8 is the copy of the plaint in O.S. No.3970/2014 preferred by the defendants herein against the plaintiff, which pertain to portion of the suit schedule property, which is agitated by the plaintiff in the present suit. Ex.P9 and Ex.P9(a) are the photograph and CD showing the plaintiff in the suit schedule property, which is a house with a temporary

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shed. These are the documents produced by the plaintiff in support of her case to prove her lawful possession over the suit schedule property as on date of filing the suit.

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In the suit for Permanent Injunction, what is required

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to be seen is whether the plaintiff was in lawful possession of the suit schedule property as on the date of filing the suit and whether the plaintiff established her lawful possession by placing cogent material on record. In the present case on hand, the plaintiff having produced Ex.P1 to Ex.P9(a), particularly by virtue of Ex.P1/sale deed, apparently and unambiguously substantiated her case with regard to title over the suit schedule property. Though this Court is not inclined to pass any order with regard to title of the suit schedule property, the Permanent Injunction sought for by the plaintiff will have to be decided on the basis of the material documents placed by the plaintiff on record. In the suit schedule property measuring to an extent of 30 feet x 25 feet, there is a small house constructed with an AC sheet roof and the revenue records and the electricity bills are produced to show the possession and enjoyment of the plaintiff over the suit schedule property. This is not a case where the suit schedule property is

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a vacant site and in a suit for Permanent Injunction of a residential property, the same will have to be decided on the basis of the documentary evidence placed by the plaintiff like

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tax paid receipts, khatha extract, photographs, which are accordingly placed on record in the form of Ex.P1 to Ex.P9(a). The plaintiff has also placed on record Ex.P1/certified copy of the sale deed through which she is in lawful possession of the suit schedule property.

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The defendants neither chose to file their written statement nor chose to place on record any material to controvert the pleadings and the statement made on oath by the plaintiff. The defendants have also not stepped into the witness box to deny the claim and assertions made by the plaintiff in the pleadings. Thereby when there is absolutely no defence in writing or through cross-examination, it is not necessary or essential for the plaintiff to file a suit for declaration merely because the plaintiff herself has produced the documents/Ex.P7 and Ex.P8, which were filed by the defendants on an earlier round of litigation to seek an order of injunction against the plaintiff. That itself will not create a cloud over the title of the plaintiff, as admittedly there is no

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defence or contravention by the defendants in the present case. In the present case on hand, the plaintiff has placed cogent material evidence on record i.e., Ex.P1 to Ex.P9(a) to establish and prove her case that she is in lawful possession and enjoyment of the suit schedule property in her own right and therefore, the trial Court ought to have considered these aspects in passing the judgment rather than erroneously passing the judgment of dismissal of the suit on the ground that the plaintiff has not proved her title and possession and ought to have filed the suit for declaration rather than suit for Permanent Injunction, which in my opinion is arbitrary and erroneous and the same is illegal and deserves to be set aside.

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My view is fortified by the judgment of the Hon’ble Apex Court in the case of Jharkhand State Housing Board - vs- Didar Singh & Another reported in (2019)17 SCC 692, wherein at paragraph-11 it is held as under:

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"11. It is well settled by catena of Judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relef of declaration. A suit for mere injunction does not lie only when the

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defendants raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction. "

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No doubt it is true that in a suit for Permanent Injunction when there is a defence raised and when there is a pleading made by the defendants raising cloud on the title of the plaintiff, then it is the discretion of the trial Court to see whether the plaintiff is entitled to the relief of Permanent Injunction or whether the plaintiff ought to have filed a suit for declaratory relief rather than a mere suit for Permanent Injunction. However, in the case of Jharkhand State Housing Board stated supra, the Hon’ble Apex Court made it clear that in each and every case where the plaintiff files a suit for Permanent Injunction and where there is a defence or dispute raised by the defendants with regard to the title of the plaintiff, it is not necessary that in all such cases, plaintiff will have to convert the suit for Permanent Injunction into a suit for declaratory relief.

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In the present case, defendants have remained absent and placed exparte , the question of creating a cloud on the title of the plaintiff on the basis of Ex.P7 & Ex.P8 is farfetched and the same is unacceptable.

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My view is also fortified by the judgment of the Hon’ble Supreme Court in the case of Anathulla Sudhakar - vs- B.C. Reddy reported in (2008)4 SCC 594.

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Under the circumstances, having appreciated the entire oral and documentary evidence on record and the arguments putforth by the learned counsel for the parties, I am of the considered opinion that the plaintiff has made out a valid case for grant of Permanent Injunction based on the material placed before the trial Court. In view of the above, the trial Court has committed an error in dismissing the suit of the plaintiff merely on the ground that there is a cloud raised on the title of the plaintiff and the plaintiff was not correct in filing a mere suit for Permanent Injunction and same is not sustainable in law. Accordingly, I answer the points raised hereinabove in favour of the plaintiff holding that the plaintiff has made out a valid case by producing cogent material as per

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Ex.P1 to Ex.P9(a) to prove that she is in lawful possession over the suit schedule property and also proved that the defendants have been trying to interfere with her peaceful possession and enjoyment over the suit schedule property, which is apparently clear from Ex.P7 and Ex.P8. Therefore, the plaintiff is entitled to an order of Permanent Injunction restraining the defendants or their agents from interfering with the peaceful possession and enjoyment of the suit schedule property.

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In view of the discussion made hereinabove, I deem it appropriate to pass the following:

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O R D E R

¶156

i) Appeal is allowed .

¶157

ii) The impugned judgment & decree dated 4^th April 2017 passed by the XLIV Additional City Civil & Sessions Judge, Bengaluru, in O.S. No.8965/2014 dismissing the suit of the plaintiff, is hereby set aside .

¶158

iii) The appellant/plaintiff is entitled to the relief of Permanent Injunction. The respondents/defendants, their agents, servants etc., are hereby restrained from interfering with the appellant/plaintiff’s peaceful

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28 - NC: 2023:KHC:37030 RFA No. 933 of 2017

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possession and enjoyment of the suit schedule property.

¶161

iv) I place on record the valuable assistance rendered by learned counsel – Smt. Archana K.M. appointed as amicus curiae on behalf of respondents/defendants and in token thereof, the honorarium is fixed at Rs.15,000/- (Rupees fifteen thousand only). The Registrar General, High Court of Karnataka, Bengaluru shall pay the Honorarium to the learned amicus curiae.

¶162

v) No order as to costs.

¶163

Sd/JUDGE

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GSS List No.: 1 Sl No.: 28

Smt Nusrathunnisa v. Sri Ismail Sharief

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Smt Nusrathunnisa v. Sri Ismail Sharief

Case brief

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