Allowed

Sri. J. Ramanathan v. Sri. Shreesh Mudri

Karnataka HC26 Mar 2024MFA/669/2024

Case brief

AI extract

What is this about?

The High Court allowed a first appeal challenging a trial court order to maintain status quo over a 20 feet x 60 feet disputed strip. It set aside the order as the plaintiff failed to prove possession beyond his title to 60x40 feet. The court restrained interference with the plaintiff's 40x60 feet site, imposed costs for unauthorized construction on the extra land, and directed its exclusion in th

What did the court decide?

Impugned order set aside. Plaintiff restricted to injunction over 60x40 feet site. Defendant to pay Rs. 5,00,000; construction to be excluded in final trial.

Sri. J. Ramanathan Vs Sri. Shreesh Mudri — Property and Title | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ

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MISCELLANEOUS FIRST APPEAL NO. 669 OF 2024 (CPC)

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BETWEEN:

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SRI. J. RAMANATHAN AGED 47 YEARS, S/O LATE MR. R. JAGANNATHAN, RESIDING AT NO.E-1/89, 4^TH CROSS, SYNDICATE BANK COLONY, ARAKERE, BANNERGHATTA MAIN ROAD, BENGALURU-560 076 …APPELLANT (BY SRI. G.V. SHASHIKUMAR, ADVOCATE)

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AND:

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Digitally signed by BS RAVIKUMAR Location: HIGH COURT OF KARNATAKA

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SRI. SHREESH MUDRI S/O LATE SRI. SHRIRAMA SUBBABHAT MUDRI, AGED ABOUT 55 YEARS, REP. BY GPA HOLDER AND MOTHER SMT. SHANTA SHRIRAMA MUDRI, AGED 79 YEARS, RESIDING AT NO.E-1/88, 4^TH CROSS, SYNDICATE BANK COLONY, ARAKERE, BANNERGHATTA MAIN ROAD, BENGALURU-5600076 …RESPONDENT (BY SRI. B. VACHAN, ADVOCATE)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE ORDER DATED 11.12.2023 PASSED ON I.A NO.1 IN O.S.NO.1888/2023 ON THE FILE OF THE XXXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH-36), PARTLY ALLOWING I.A NO.1 FILED UNDER ORDER 39 RULES 1 AND 2 OF CPC.

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

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JUDGMENT

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The defendant in O.S. No.1888/2023 on the file of the XXXV Additional City Civil and Sessions Judge, Bengaluru, (henceforth referred to as ‘the Trial Court’) has filed this appeal challenging an order dated 11.12.2023 in terms of which the Trial Court allowed in part an application (I.A. No.1) filed by the plaintiff under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (for short, ‘CPC’) and directed the parties to maintain status quo in respect of an extra strip of land measuring 20 feet x 60 feet which lay between the house of the plaintiff and the defendant, till the disposal of the suit.

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The parties shall henceforth be referred to as

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they were arrayed before the Trial Court.

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The suit in O.S. No.1888/2023 was filed for perpetual injunction in respect of a property bearing House List No.434 (old House List No.E-1/88) measuring East to West 60 feet and North to South 60 feet and situate at Arekere village, Begur hobli, Bengaluru South Taluk. The

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plaintiff claimed that Sri A.S. Narayanaswamy was the owner of the suit property, who sold it to Sri S.N.Jayanth in terms of a sale deed dated 19.02.1988. Sri S.N. Jayanth conveyed the property measuring East to West 60 feet and North to South 40 feet to Sri S. Bala Subramaniam on 20.03.1995 but Mr. S.N.Jayanth who was in actual possession of the entire extent measuring, East to West 60 feet and North to South 60 feet, handed it over to Sri S. Bala Subramaniam. Later, Sri Bala Subramaniam sold the suit property to the plaintiff on 20.02.2002 and under a letter addressed to the plaintiff, he handed over possession of the entire extent of the suit property. The plaintiff claimed that he was thus the absolute owner of the suit schedule property and that he had constructed a house in an area measuring 40 feet x 60 feet and left the remaining area on the northern sides measuring 20 feet x 60 feet which was in his exclusive possession for over 20 years. He claimed that he had enclosed the property by a compound on all the sides. The plaintiff claimed that the defendant is the owner of the

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adjacent property bearing No.E-1/89. He alleged that when the defendant came to know of the discrepancy in the measurement of the property mentioned in the sale deed executed by the vendor of the plaintiff and the property in actual possession, he was eyeing it with an intention to grab the extra strip of the land measuring 20 feet x 60 feet. The plaintiff claimed that he was working in the United States of America (USA) and that he had authorized his mother to look after the suit property and taking advantage of his absence, the defendant demolished the compound wall on the western side and on the northern side of the suit property and tried to annex the patch of land measuring 20 feet x 60 feet into his property. Therefore, the plaintiff sought for the relief of perpetual injunction restraining the defendant from interfering with his peaceful possession and enjoyment of the suit schedule property. Along with the plaint, the plaintiff filed an application under Order XXXIX Rules 1 and 2 of CPC for interim injunction to restrain the defendant

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from interfering with his possession and enjoyment of the application schedule property pending disposal of the suit.

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The suit was contested by the defendant who claimed that he was the owner of the property bearing No.E-1/89 measuring East to West 60 feet and North to South 40 feet and that he was in lawful possession and enjoyment of the said property. He contended that the land bearing Sy. No.23 was owned and possessed by Sri Seethappa which totally measured 07 acres 16 guntas. In terms of an unregistered document executed by the family members of the said Sri Seethappa, the land in Sy. No.23 was divided into four parts and renumbered as Sy. Nos.23/1, 23/2, 23/3 and 23/4. The property bearing Sy. No.23/1 was allotted to the share of Sri A.S Ramaswamy, son of Sri Seethappa and portion bearing Sy. No.23/2 was allotted to the share of Sri A.S. Narayanaswamy, son of Sri Seethappa and portion bearing Sy. No.23/3 was allotted to the share of Sri A.S. Krishnappa, son of Sri Seethappa and portion bearing Sy. No.23/4 was allotted to

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Sri A.S. Srinivas, son of Sri Seethappa. The aforesaid owners got the land converted for residential purposes and thereafter, formed a residential layout. The defendant claimed that amongst the sites formed in the land bearing Sy. No.23/2, Sri A.S. Narayanaswamy sold two sites bearing house list Nos.E-1/88 and E-1/89 each measuring East to West 60 feet and North to South 40 feet in favour

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of Sri S.N. Jayanth, son of Sri S. Neelakantappa on 19.02.1988. Later, Sri S.N. Jayanth sold site No.E-1/89 measuring East to West 60 feet and North to South 40 feet to Sri N. Radhakrishnan on 22.06.1994 who in turn sold it

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to Sri M. Subramanya Naidu on 05.12.2003 who thereafter, sold the site to the defendant on 26.03.2004. The defendant claimed that he intended to put up construction in the vacant portion of the property bearing House List No.E-1/89 belonging to him. Therefore, he cleaned up his property and fixed the boundaries by enclosing it by a compound wall. At this juncture, he alleged that the plaintiff and his relatives objected against carrying on any civil work in the property. He claimed that

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those persons claimed that the plaintiff was the owner of the site No.88 measuring 60 feet x 60 feet but they could not justify the same. Therefore, the jurisdictional Police suggested to the relatives of the plaintiff to inform the plaintiff to approach the Civil Court if he had any grievance. The defendant denied the allegations made in the plaint and contended that the plaintiff was not entitled to the reliefs sought for.

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The defendant filed his objections to the application for interim injunction.

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The Trial Court at the request of the plaintiff, posed interrogatories to the defendant and based on the replies given, passed an order on 21.04.2023 directing the parties to maintain status quo in respect of the suit property till an order was passed on I.A. No.1 on merits. This was challenged by the defendant before this Court in W.P. No.11330/2023 where a co-ordinate Bench of this Court in terms of the order dated 27.06.2023, set aside the aforesaid order dated 21.04.2023 passed by the Trial

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Court, and directed the Trial Court to consider I.A. No.1 and pass appropriate orders thereon. The Trial Court in terms of the order impugned herein, allowed the application – I.A. No.1 in part and directed the parties to maintain status quo in respect of the extra strip of land measuring 20 feet x 60 feet till the disposal of the suit on the ground that: (i) both the plaintiff and defendant were claiming title to their respective sites, but the title deed of the plaintiff and his predecessors showed that his property measured 60 feet x 40 feet and not 60 feet x 60 feet as claimed by him; (ii) that though the defendant claimed that his property measured 60 feet x 40 feet and the area measuring 20 feet x 60 feet was set apart by him after constructing the house, there were no corresponding documents to establish it; (iii) that it was difficult to decide who was in possession of the extra piece of land based on the photographs produced by both the parties.

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Being aggrieved by the said order, the

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defendant has filed this appeal.

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Learned counsel for the defendant / appellant submitted that it is the plaintiff who had approached the Court and therefore, it was incumbent upon him to establish that he was the owner of the suit property measuring East to West 60 feet and North to South 60 feet. He contends that the averments made in the plaint itself are doubtful inasmuch as at one breath, the plaintiff claimed that he was the owner of site measuring 60 feet x 60 feet while in the other, he claimed that he owned property measuring East to West 60 feet and North to South 40 feet and that he was permitted to be in possession of the adjacent 20 feet x 60 feet. He contended that except claiming that the plaintiff was in possession of the strip of land measuring 20 feet x 60 feet, there was nothing to establish it. He has placed on record a copy of the sale deed in respect of site bearing house list No.E1/90 which indicated that the defendant had purchased the said site measuring East to West 60 feet and North to South 40 feet. Therefore, he contends that the Trial Court committed an error in directing the parties

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to maintain status quo though the plaintiff was in possession of the property he had purchased under the sale deed dated 20.02.2002. Thus, he prayed this Court to dissolve the order of status quo passed by the Trial Court as no useful purpose would be served as the suit itself is not maintainable. He further contended that having regard to the nature of the suit and the statements made in the plaint, a suit for bare injunction is not maintainable in view of the judgment of the Hon’ble Apex Court in Anathula Sudhakar vs P. Buchi Reddy (Dead) By Lrs & Ors [ (2008) 4 SCC 594].

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Per contra, the learned counsel for the plaintiff / respondent contended that the plaintiff, his vendor and their predecessors-in-title were in possession of the said adjacent land measuring 20 feet x 60 feet. Therefore, from an undisputed point in time, the plaintiff has been in possession of that patch of land and hence, his possession had to be protected against forcible dispossession by the defendant. He further contends that in reply to the

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interrogatories by the Trial Court, the defendant admitted that the plaintiff had encroached into 20 feet x 60 feet of land. He, therefore contended that the possession of the plaintiff in respect of extra strip of land measuring 20 feet x 60 feet is admitted by the defendant in categorical terms and hence, possession of the plaintiff had to be protected until disposal of the suit.

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During the pendency of this appeal, the plaintiff alleged that after this Court granted an order of stay of the impugned order passed by the Trial Court, the defendant took law into his hands and demolished the compound that the plaintiff had put up enclosing the patch of land measuring 20 feet x 60 feet. It was alleged that the defendant raised a compound abutting the house of the plaintiff and was in the process of constructing a shed in the extra piece of land. Since this was denied by the defendant, this Court appointed a Commissioner to visit the property and submit a report. The Commissioner who visited the property submitted his report as follows:

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"a. The appellants property is to the northern side of the property of the respondent. On the eastern side there is a private property and road is on the western side.

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b. It is submitted that, to the northern side of the property of the respondent, there is a shed erected in the disputed property the same is constructed with hollow cement blocks and the same has sheet roofing (sheet blue in color as shown in the photograph). The shed looks newly constructed and the cement mortar appears fresh. Further the wall attached to the shed also appears to be newly constructed. The said portion of the wall is constructed with cement blocks and mortar of the walls are looks fresh. There are few flower pots placed inside the shed with unfurnished floors. Few cement blocks are seen near the shed.

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c. Further it is observed that, there exists a white primer coated compound wall on the northern side of the respondents property, the same is single coated with primer and on the eastern side there exists a compound wall which is painted in purple. The compound walls on eastern and northern side are different in color.

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d. It is submitted that, to the northern side of the property of the respondent there exists 3(three)

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steps connecting to the property of the appellant and the disputed property. The said steps has entry from two sides i.e., from the property of the appellant and from disputed property. Sides of the said walls attached to the steps are incomplete and no coating of any nature over the same. Few pots are placed near the steps.

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3. It is submitted that there is a blue color sheet gate. The material of the sheet gate is same as that of the one used for roofing of the shed."

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I have considered the submissions made by the learned counsel for the appellant / defendant and the learned counsel for the respondent / plaintiff.

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A perusal of the plaint discloses that the plaintiff claimed title in respect of the entire suit property measuring 60 feet x 60 feet but contemporaneously claimed that he was the owner of 60 feet x 40 feet and that he and his predecessors-in-title were in possession of the abutting 20 feet x 60 feet. It is therefore clear that the plaintiff did not have any title to the property measuring 20 feet x 60 feet. The plaintiff although

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claimed that he was in possession of the property measuring 20 feet x 60 feet abutting his house, he did not produce any material to establish it. The possession of an immovable property can be demonstrated by some physical act done over the property. If the property is vacant and no physical developments are found, the plaintiff cannot claim that he was in possession of the excess area measuring 20 feet x 60 feet. The photographs produced along with the plaint show that the patch of land measuring 20 feet x 60 feet abutting the house of the plaintiff was vacant. Therefore, unless the plaintiff established by sufficient evidence that apart from 60 feet x 40 feet, which belonged to him, he was in actual possession of an excess area measuring 20 feet x 60 feet abutting his house, he could not maintain a suit for injunction. Furthermore, since the plaintiff claimed that he was the owner of excess portion of the land measuring 20 feet x 60 feet, the suit was not based on title but was based on previous possession. As is often said, possession is a visible badge of ownership and to establish it, a mere

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claim that the plaintiff was in exclusive possession of the extra strip of land measuring 20 feet x 60 feet is not sufficient. As a matter of fact, during the course of the impugned order, the Trial Court held “In this case, it is to be noted that the plaintiff is before this Court seeking for protection of a strip of land measuring 20 ft x 60 ft but the plaintiff has not placed any materials before this Court to show his possession over that extra strip of 20 ft x 60 ft.” Having held so, the Trial Court could not have directed the parties to maintain status quo. In that view of the matter, the impugned order passed by the Trial Court directing the parties to maintain status quo deserves to be set aside.

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Consequently, this appeal is allowed and the impugned order dated 11.12.2023 passed by the XXXV Additional City Civil and Sessions Judge, Bengaluru, on I.A. No.1 in O.S. No.1888/2023 is set aside and the application–I.A. No.1 filed by the plaintiff under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 is allowed in part and the defendant/appellant herein is

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restrained from interfering with the possession of the plaintiff in respect of the site bearing House List No.434 (old House List No.E-1/88) measuring East to West 60 feet and North to South 40 feet situate at Arekere village, Begur Hobli, Bengaluru South Taluk, pending disposal of the suit.

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After having held that the plaintiff was not entitled for interim injunction in respect of the entire suit schedule property, it is relevant to note that this Court on 12.03.2024, had granted an order of stay of the impugned order dated 11.12.2023 passed by the Trial Court in so far as it related to the direction of the Trial Court to maintain status quo in respect of the extra strip of land measuring 20 feet x 60 feet. Taking advantage of this order, the defendant overreached the process of Court by taking law into his hands by demolishing the existing wall and constructed a shed in the patch of the land measuring 20 feet x 60 feet. He has also raised a compound abutting the house of the plaintiff to cordon off the patch of land

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measuring 20 feet x 60 feet and the Commissioner has reported that all these constructions are done recently. Learned counsel for the defendant tried to justify this act by claiming that there was no impediment for the defendant to take possession of the property which lawfully belonged to him and hence, there was nothing wrong in the defendant putting up a shed and annexing it into his property.

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This Court on 12.03.2024, had granted an interim order of stay of the impugned order passed by the Trial Court, by which the parties were directed to maintain status quo. The order of stay of the impugned order did not mean that the order of status quo granted by the Trial Court was completely effaced but was suspended and therefore, the defendant had no authority to take law into his hands and change the status quo of the property and construct a structure thereon. Since the defendant has shown scant respect to the proceedings before this Court and has taken law into his hands, he deserves to be

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hauled up suitably. This Court, therefore, proposed to demolish structures put up by the defendant. However, the learned counsel for the defendant pleaded that instead of doing so, this Court may accept an apology from the defendant. When this Court refused to it, he prayed that a nominal cost be imposed upon the defendant. Under the circumstances, this Court considers it appropriate to direct the defendant to pay a sum of Rs.5,00,000/- (Rupees Five Lakhs only) to S ri Jayadeva Institute of Cardiovascular Sciences and Research, Bengaluru, within a period of four weeks from today failing which the case shall be brought

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up before this Court to take steps to demolish the construction put up by the defendant in the excess area measuring 20 feet x 60 feet. It is made clear that while deciding the suit, the Trial Court shall not consider the construction put up by the defendant in the area measuring 20 feet x 60 feet but shall decide the suit on the basis of facts as it existed on the date of suit.

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Any observations made against the plaintiff in

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this order shall not come in the way of the Trial Court disposing off the suit on merits.

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In view of disposal of this appeal, I.A. No.2/2024 for vacating stay does not survive for consideration and the same stands disposed off.

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Sd/JUDGE

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SMA List No.: 1 Sl No.: 49

Sri. J. Ramanathan v. Sri. Shreesh Mudri

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Sri. J. Ramanathan v. Sri. Shreesh Mudri

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