Allowed

Mr R Praveen v. Mr Mariyappa

Karnataka HC11 Jul 2023RSA/2423/2010

Case brief

AI extract

What is this about?

The High Court allowed the second appeal, setting aside the lower courts' dismissal of a suit for permanent injunction. The Court held that the appellant, who had a prior sale deed, has valid title and possession, defeating the respondents' claim based on a subsequent sale. The Court affirmed that a suit for injunction need not include a prayer for declaration and relied on presumptions where defe

What did the court decide?

The judgment and decrees of the trial court and first appellate court were set aside, and the suit for permanent injunction was decreed as prayed.

Mr R Praveen Vs Mr Mariyappa — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:24886 RSA No. 2423 of 2010

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR REGULAR SECOND APPEAL NO. 2423 OF 2010 (INJ)

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BETWEEN:

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MR. R. PRAVEEN S/O LATE SRI. RANGASWAMI AGE:30 YEARS R/AT PAKEGOWDANA PALYA SILVEPURA VILLAGE P.O BANGALORE-560090

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…APPELLANT

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(BY SRI. G.PAPIREDDY., SENIOR COUNSEL FOR A/W

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SRI. RAVIKIRAN P., ADVOCATE-PH)

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AND:

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MR. MARIYAPPA SINCE DEAD BY LRS

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Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA

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1A ANTHONY MARY W/O JOSEPH RAJ (FLOOR MILL) CHIKKAMANAHALLI GPTTOGERE POST BENGALURU-560083

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1B SMT. SAGAYAMARY W/O KUMAR S/O ANANADAMMA MARIAPURA THATTAGUPPE BENGALURU-82

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MR. DOMINK S/O RAJANNA AGED ABOUT 32 YEARS R/AT SILVAPURA BANGALORE-560090

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…RESPONDENTS (BY SRI. K P BHUVAN., ADVOCATE FOR R1(A-B)-SERVED)

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2 - NC: 2023:KHC:24886 RSA No. 2423 of 2010

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THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 16.4.2010 PASSED IN R.A.NO.48/2008 ON THE FILE OF THE ADDL. DISTRICT & SESSIONS JUDGE, FAST TRACK COURT-V, BANGALORE RURAL DISTRICT, BANGALORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 8.2.2008 PASSED IN O.S.NO.312/1998 ON THE FILE OF THE ADDL. II CIVIL JUDGE (JR.DN) BANGALORE RURAL DISTRICT, BANGALORE.

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THIS RSA, COMING ON FOR DICTATING JUDGMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed praying to setting aside the judgment and decree dated 16.4.2010 passed by District & Session Judge, Fast Tract Court-V, Bangalore Rural District, Bangalore in RA No.48/2008 and judgment and decree dated 8.2.2008 passed by II Additional Civil Judge (Jn. Dn), Bangalore Rural District, Bangalore in OS No.312/1998.

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The appellant was the plaintiff and respondents No.1 and 2 were defendants No.1 and 2 in OS No.312/1998.

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The parties are referred to as per their rankings in the trial Court.

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The plaintiff has filed a suit for the reliefs of permanent Injunction restraining the defendants from

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NC: 2023:KHC:24886 RSA No. 2423 of 2010

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interfering with possession of the plaintiff over the suit schedule property. It is the case of the plaintiff before the Trial Court that he is a absolute owner for having purchased the suit schedule property from Smt.V.Jayalakshmi under registered sale deed dated 7.4.1998 and he is in possession of the same. It is stated that originally suit schedule property belongs to defendant No.1, he has executed GPA in favour of Smt.V.Jayalakshmi authorizing her deal with the property. The katha of the suit schedule property was in the name of defendant No.1 and he authorized Smt.V.Jayalakshmi to deal with the property on the basis of GPA. As the original sale deed was not returned by the Sub-Registrar’s office, the plaintiff could not get katha transferred in his name in the panchayath records. It is stated that defendant No.1 has no right over the suit schedule property and he is making efforts to sell the suit schedule property to the third parties. It is stated that the plaintiff has put up barbed fencing to the suit schedule property. As defendants started interfering with his possession and trying to

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remove the barbed wire fencing, the plaintiff has filed the suit.

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The defendant No.1 and 2 has filed written statement contending that the plaintiff has no right, title and interest over the suit schedule property. Smt.V.Jayalakshmi has no right over the suit schedule property and to convey the said property in favour of the plaintiff. The sale deed dated 7.4.1998 is created document in order to knock off the property belonging to defendant No.1. It is stated that defendant No.1 has not executed any document in favour of Smt.V.Jayalakshmi. The authorities have no rights under law to effect changes in the demand register extract. The GPA and affidavit produced by the plaintiff are created documents, the alleged sale deed has been executed by Smt.V.Jayalakshmi the mother of the plaintiff and therefore does not confer title on the plaintiff in respect of suit schedule property. It is stated that defendant No.1 is absolute owner of the property and he has conveyed the said property in favour of defendant No.2 through

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registered sale deed dated 28.4.1998. The defendant No.2 is in possession and enjoyment of the suit schedule property and the plaintiff is not in possession of the suit schedule property. It is stated that the defendant No.1 was absolute owner of the suit schedule property since the date of grant made by the Government in his favour by issuing “Hakku Patra” in the year 1972. All the revenue records were standing in the name of defendant No.1. The Khatha of the suit schedule property has been changed in the name of defendant No.2, with this they prayed to dismiss the suit.

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On the basis of the above pleading, the trial

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Court has framed the following issues;

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1. Whether the plaintiff proves his lawful possession over the suit schedule property?

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2. Whether the plaintiff proves the alleged interference by the defendants?

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3. To what order or decree?

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The plaintiff’s Special Power of Attorney holder

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has been examined as PW 1 and got marked as

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Ex.P.1 to 15 and defendant No.1 has not lead evidence and produced any documents. The defendant No.2 has filed his evidence affidavit but the same has been discarded by the trial Court by order dated 19.6.2007.

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The trial Court after hearing arguments and appreciating the evidence on record has answered issued No.1 and 2 in the negative and dismissed the suit.

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Aggrieved by the judgment and decree passed by the trial Court, the plaintiff filed appeal in RA No.48/2008 before the presiding officer Fast Track Court-V, Bangalore Rural District, Bangalore (First Appellate Court). The First Appellate Court after hearing the arguments on both sides has formulated the following points for consideration;

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1. Whether the appellant proves that the judgment and decree passed by the trial Court is perverse, arbitrary and this court’s interference is necessary?

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2. What Order?

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The First Appellate Court answered point No.1 in the negative and dismissed the appeal confirming the judgment and decree passed by the trial Court. The plaintiff has challenged judgement and decree passed by trial Court and First Appellate Court in this second appeal. The Second appeal came to be admitted to considered the substantial question of law:

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“Whether the doctrine of priority of rights created by transfer, operates in the matter against 2^nd defendant”.

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Heard the arguments of learned counsel the

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appellant and learned counsel for the respondents.

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Learned counsel for the appellant has argued

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that the defendant No.1 is the owner of the suit schedule property, he has executed GPA dated 14.6.1994 (Ex.P.2) by virtue of the said power given under GPA (Ex.P.2), the said Smt.V.Jayalakshmi-GPA holder of defendant No.1 has executed sale deed dated 7.4.1998 (Ex.P.4) in favour of the plaintiff. Apart from that an affidavit has been sworn

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to by defendant No.1 and his daughter Manjula as per Ex.P.3. The possession of the property has been handed over to Smt.V.Jayalakshmi under Ex.P.3 after receiving the consideration of Rs.25,000/-. He further argued that by virtue of the said sale deed (Ex.P.4), the defendant No.1 has lost title over the suit schedule property. The alleged sale deed executed by the defendant No.1 in favour defendant No.2 dated 28.4.1998 does not confer any title on defendant No.2. The katha of the suit schedule property has been changed in the name of Smt.V.Jayalakshmi based on GPA and affidavit as per Ex.P.8 extract of tax assessment register. The suit schedule property is standing in the name of plaintiffdefendant No.1 and defendant No.2 as per Ex.P.9 tax assessment register. The katha of the suit schedule property standing in the name of plaintiff and the names of defendants No.1 and 2 were rounded off. The plaintiff has paid tax of the suit schedule property as per Ex.P.14. The possession of the suit schedule property has been handed over to the plaintiff under sale deed (Ex.P.4). The

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said Smt.V.Jayalakshmi was in possession of the suit schedule property as a GPA holder of defendant No.1 under affidavit (Ex.P.3) and GPA (Ex.P.2). The trial Court without considering all these aspects and technically considering the Ex.P.5 and 8 has erred in dismissing the suit. The defendants No.1 and 2 did not enter the witness box and therefore there is a presumption that the case set up by defendants No.1 and 2 is not correct. The plaintiff has proved his prima facie title and therefore possession follows title. He further argued that, GPA (Ex.P.2) has been authenticated by the notary public and therefore the presumption under Section 85 of Evidence Act is attracted. In support of his contention he placed reliance on the following decisions:

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1. (1999) 3 SCC 573

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2. (2009) 2 SCC 513

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3. (1983) 1 Kar. L.J.69

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4. (1991) 1 Kar. L.J. 146

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5. (2007) 14 SCC 200

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Learned counsel for respondents has argued

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that the defendants No.1 and 2 have filed written statement and they have cross examined PW 1. PW1 is a Special PA holder of the plaintiff and she is not entitled to depose on behalf of plaintiff. The witnesses to the GPA and sale deed are not examined. As per the description of the property in the sale deed it consists of sheet house but in plaint it is described as a vacant site. The GPA is of the year 1994 and earlier to the GPA, the GPA holder has paid taxes. The plaintiff has not produced original sale deed. The person who issued Ex.P.13-receipt for having constructed fence over the suit schedule property has not been examined. The tax paid receipts produced are for the period subsequent to the filing of the suit. The plaintiff has failed to prove the possession. The plaintiff has not filed comprehensive suit seeking declaration. The plaintiff has to establish his case. The weakness or lapses on part of the defendants cannot be taken as filing up the blanks or the lapses in the case of the plaintiff. If plaintiff himself failed to establish his case even the defendant’s weakness

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in any manner cannot be taken into consideration for the purpose of taking the case of plaintiff as proved. The trial Court appreciating the evidence on record and the First Appellate Court reappreciating the evidence on record and rightly came to the conclusion that plaintiff failed to prove his possession over the suit schedule property and rightly dismissed the suit. On that point, he placed reliance on a decision of this Court in the case of Sathyamma vs. Kempamma reported in LAWS (KAR)-2017-4-94.

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It is the case of the plaintiff that the defendant No.1 is the owner of the suit schedule property. In the written statement defendants No.1 and 2 have admitted that the defendant No.1 is the owner of the suit schedule property. The plaintiff claims title and possession of the suit schedule property on the basis of sale deed (Ex.P.4) dated 7.4.1998. The said sale deed (Ex.P.4) has been executed by the Smt.V.Jayalakshmi as a GPA holder of the defendant No.1. The said GPA i.e., Ex.P.2 is dated 14.6.1994. The Ex.P.3 is a affidavit sworn to by defendant No.1 and his daughter-Manjula dated 14.6.1994 (Ex.P.3)

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where under the defendant No.1 and his daughter have handed over the possession of the suit schedule property to Smt.V.Jayalakshmi-GPA holder. The defendant No.1 in his written statement has denied the execution of GPA in favour of Smt.V.Jayalakshmi. The original GPA is produced at Ex.P.2, under the said GPA (Ex.P.2) an authority has been given to the GPA holderSmt.V.Jayalakshmi to sell the property. The said GPA is executed before and authenticated by notary public. The defendant No.1 who disputed the execution of GPA (Ex.P.2) did not choose to enter the witness box to prove the said contention. There is presumption as to power of attorney under Section 85 of the Indian Evidence Act, 1872 which reads thus;

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85. Presumption as to powers-of-attorney .—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.

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The GPA (Ex.P2) has been executed and

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authenticated by a notary public. Therefore, the presumption arises under Section 85 of the Indian Evidence Act was so executed and authenticated. The said presumption has not been rebutted by the defendant No.1 as he did not choose to enter the witness box. On

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the same day of execution of GPA (Ex.P2) i.e., 14.6.1994 the defendant No.1 and his daughter-Manjula have sworn to an affidavit before notary stating they have handed over possession of the suit schedule property to Smt.V.Jayalakshmi and have received Rs.25,000/- from her. In the said affidavit it is stated that, the said Smt.V.Jayalakshmi can enter her name in the katha and enjoy the possession of suit schedule property. By virtue of this GPA holder- Smt.V.Jayalakshmi got entered her name in tax demanded register, Ex.P.5 is the said extract of the that Tax Demand Register for the year 1992-93. The name of Smt.V.Jayalakshmi has been mentioned in owners coloum after rounding off the name of the

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defendant No.1. The name of the defendant No.1 was

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mentioned in owners coloum in Ex.P.5 for the year 199293 and after rounding off his name, the name of Smt.V.Jayalakshmi has been entered based on GPA and affidavit. The trial Court did not believe the document on the ground that the extract is for the year 1992-93 and when GPA and affidavit are dated 14.6.1994 how could the GPA holder got her name entered in the register pertaining to the year 1992-93. Even though the register pertains to the year 1992-93 contains the name of defendant No.1 in the owners coloum, subsequently, on an application being made by Smt.V.Jayalakshmi based on GPA and affidavit, the name of defendant No.1 has been rounded off and name of Smt.V.Jayalakshmi has been entered in owners coloum. The trial Court and the First Appellate Court have erred in properly considering Ex.P.5.

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Ex.P.4 is certified copy of sale deed dated 7.4.1998 and it is executed by Smt.V.Jayalakshmi as a GPA holder of the defendant No.1 in favour of the plaintiff.

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In the sale deed it is mentioned that possession of the suit

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schedule property has been handed over of the purchaser. The GPA holder- Smt.V.Jayalakshmi was in possession of the suit schedule property as mentioned in affidavit (Ex.P3) and tax assessment registered (Ex.P.5). The GPA holder- Smt.V.Jayalakshmi has conveyed title by the virtue

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of GPA (Ex.P.2) to the plaintiff under the sale deed (Ex.P.4) in respect of suit schedule property.

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Learned counsel for the respondents has argued that the original sale deed has not been produced and certified copy has been produced. On back of page No.6 of Ex.P.4, there is endorsement of Senior Sub-Registrar, Yelahanka, Bangalore that stamp duty has been paid as per law and document is registered under Sl.No.107/98-99 as more number of documents have been registered and it takes time for entering the same in the register and as an alternative arrangements, the said endorsement has been issued. The said endorsement itself shows that the original sale deed is with Sub-Registrar office. The Ex.P.8

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is the extract of tax assessment register for the year 1993-94 pertains to the suit schedule property, wherein the name of defendants No.1 and 2 and plaintiff have been shown in the coloum No.4 as possessor, even though the sale deed of plaintiff Ex.P.4 is dated 7.4.1998 his name is mutated in Ex.P.8, so also name of defendant No.2 who’s alleged the sale deed is dated 28.4.1998 and the said tax assessment register is for the year 1993-94. The trial Court and the First Appellate Court did not believe this document on the ground that how could a person who purchased the property in the year 1998 would enter his name in the tax assessment register pertaining to the year 1993-94. The reasoning of the trial Court and the First Appellate Court in disbelieving this Ex.P.8 is not proper as observed while considering the Ex.P.5. The name of the plaintiff has been mutated in the owners coloum in Ex.P.9, the extract of Tax Demand Register for the year 1998-99, after rounding of the names of defendants No.1 and 2.

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In Ex.P.15 – Tax Demand Register extract for

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the years 2004-05 name of plaintiff alone is mentioned in

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owner’s column in respect of suit schedule property. All these goes to establish that the plaintiff had acquired title to the suit schedule property by virtue of sale deed dated 07.04.1998 executed by Smt. V. Jayalakshmi exercising power as GPA Holder of defendant No. 1 as per GPA (Ex.P.2).

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There is a presumption that possession goes with the title. Same has been considered by this Court in the case of The Banashankari Temple through Vithal Rao Vs. Viswanath and another reported in ILR 1983

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Kar. 81 wherein it is held as under:

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5. In a case like this what should be the inference? Parties in whose favour is a prima facie title, will have to win though this is not a suit claiming any declaration of title. It is on record that the temple’s name is shown as the khathedar in respect of this area in the village panchayat records. This, in the circumstances, is prima facie evidence of its title. The presumption that possession goes with title applies to a case like this where neither party has been able to prove or establish

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possession, but one of the parties is able to show its title.

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The plaintiff has established his title over the suit schedule property. Therefore, the presumption arises that possession follows title.

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Defendant Nos.1 and 2 claimed that defendant No. 1 executed sale deed in favour of defendant No. 2 alienating the suit schedule property on 28.04.1998. Said sale deed dated 28.04.1998 is not produced. Even if for the sake of argument it is taken that defendant No.1 has executed sale deed in favour of defendant No.2 on 28.04.1998, defendant No. 1 was not possessing title over the suit schedule property as already his GPA holder Smt. V. Jayalakshmi had sold the suit schedule property under sale deed dated 07.04.1998 (Ex.P.4) in favour of the plaintiff. Sale deed executed in favour of the plaintiff dated 07.04.1998 (Ex.P.4) is prior in time than the alleged sale deed dated 28.04.1998 said to have been executed by defendant No.1 in favour of defendant No. 2.

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Section 48 of Transfer of Property Act deals with priority of rights created by transfer which reads thus:

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48. Priority of rights created by transfer .—Where a person purports to create by transfer at different times rights in or over the same immoveable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created.

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Transfer cannot prejudice the rights of the transferee by any subsequent dealing with the property. If there are successive transfers of the same property, the later transfer is subject to the prior transfer. Transfer of title made under sale deed Ex.P.4 dated 07.04.1998 is prior to the sale deed dated 28.04.1998 alleged to have been executed by defendant No. 1 in favour of defendant No. 2. Therefore, defendant No. 1 cannot prejudice the

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rights of plaintiff by subsequent execution of the sale deed

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in respect of same property.

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Defendant Nos.1 and 2 even though denied the execution of GPA (Ex.P.2), affidavit (Ex.P.3) and sale deed (Ex.P.4) in their written statement, they did not choose to enter the witness box. Under the circumstances a presumption arises that the case set up by the defendants is not correct. Same has been considered by the Hon’ble Apex Court in the case of Vidhyadhar Vs. Manikrao and another reported in 1999 (3) SCC 573 wherein it is held as under:

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17. Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh Vs. Gurdial Singh. This was followed by the Lahore High Court in Kirpa Singh Vs. Ajaipal Singh and the Bombay High Court in Martand Pandharinath

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Chaudhari Vs. Radhabai Krishnarao Deshmukh. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter Vs. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbhakhsh Singh case. The Allahabad High Court in Arjun Singh Vs. Virendra Nath held that if a party abstains from entering the witness-box, it would give rise to an adverse inference against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass Vs. Bhishan Chand drew a presumption under Section 114 of the Evidence Act, 1872 against a party who did not enter the witness-box.

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Defendant Nos.1 and 2 did not enter the witness box and stated their own case on oath and they did not offered themselves to be cross-examined by the other side. Therefore, a presumption would arise that the case set up by them is not correct.

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Learned counsel for respondent argued that the plaintiff has not sought the relief of declaration and suit is filed for bare injunction and as title of the plaintiff is disputed by the defendants the suit is not maintainable.

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The Hon’ble Apex Court considered the said aspect in the case of Ramji Rai and another Vs. Jagdish Mallah (Dead) through LRs and another reported in 2007

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(14) SCC 200 wherein it is held as under:

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10. On the finding of facts, we do not wish to interfere. There is no reason to reverse the concurring findings. However, suffice it to state that the lower appellate Court should have dismissed the suit filed by the appellants only on the ground that the appellants had failed to prove that they were in possession of the disputed lands. Under Section 38 of the Specific Relief Act, 1963 an injunction restraining disturbance of possession will not be granted in favour of the plaintiff who is not found to be in possession. In the case of a permanent injunction based on protection of possessory title in which the plaintiff alleges that he is in possession, and that his possession is being threatened by the defendant, the plaintiff is entitled to sue for mere injunction without adding a prayer for declaration of his rights. (See Mulla’s Indian Contract and Specific Relief Acts, 12^th Edn., p. 2815).

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Suit of the plaintiff seeking relief of injunction is based on possession and title. Therefore, there is no need for the plaintiff to seek a prayer for declaration of his rights. He can maintain a suit for mere injunction without adding the prayer for declaration of his rights. Considering all these aspects the trial Court and the first appellate Court have erred in appreciating the evidence on record. Accordingly, the substantive question of law is answered.

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In the result, the following;

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O R D E R

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i. Appeal is allowed.

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ii. The judgments and decrees passed by the trial Court in O.S. No. 312/1998 dated 08.02.2008 and the first appellate Court in R.A. No.48/2008 dated 16.04.2010 are set aside.

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iii. The suit of the plaintiff is decreed as prayed for.

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Draw decree accordingly.

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Sd/JUDGE

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SR/LRS

Mr R Praveen v. Mr Mariyappa

Case brief

What is this about?

What did the court decide?

Mr R Praveen v. Mr Mariyappa

Case brief

What is this about?

What did the court decide?

What the court decided

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