Plaintiff sought permanent injunction over site 50/16 claiming purchase from heirs of Mohammed Hussain; defendants claimed title to a distinct site in Sy.No.4/3 backed by an earlier decree. Boundaries mismatched; plaintiff failed to prove possession. Appeal dismissed.
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NC: 2024:KHC:43260 RFA No. 118 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN REGULAR FIRST APPEAL NO. 118 OF 2014 (INJ-)
BETWEEN:
SMT. TASNEEM BEGUM W/O MOHAMMED ALI, AGED ABOUT 47 YEARS, R/A NO.341, EWS, KENGERI SATELITE TOWN, BANGALORE - 560 060.
…APPELLANT
(BY SRI. JAVED S., ADVOCATE FOR SRI. PRITHVI RAJ B N., ADVOCATE)
AND:
Digitally signed by VEDAVATHI A K Location: High Court of Karnataka
S/O RAMA REDDY, MAJOR, R/AT NO.1/3, 16TH CROSS, LAKKASANDRA, BANGALORE - 560 030.
…RESPONDENTS
(BY SRI. P. KRISHNAPPA, ADVOCATE FOR R1 & R2)
THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 16.2.2013 PASSED IN O.S.NO.9113/1998 ON THE FILE OF THE X ADDL. CITY CIVIL & SESSIONS JUDGE, I/C VII ADDL. CITY CIVIL & SESSIONS JUDGE, DISMISSING THE SUIT FOR PERMANENT INJUNCTION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
NC: 2024:KHC:43260 RFA No. 118 of 2014
CORAM: HON'BLE MR JUSTICE K.NATARAJAN
ORAL JUDGMENT
NC: 2024:KHC:43260 RFA No. 118 of 2014
further contended that, originally the schedule property was part of the Sy.No.4/2 which was purchased by one K.Shankar along with other properties from its owner. He formed the sites and out of the said sites, the site No.50 was purchased by one Mohammed Hussain from the said K.Shankar under two different sale deeds dated 25.4.1966 and 23.5.1966 and in pursuance to the said sale deed Mohammed Hussain entered into possession and upon amalgamation of schedule property to the Corporation and the corporation has assigned new No.50/16 to the schedule site and after death of Mohammed Hussain, his wife and children have sold to the plaintiff, through their GPA holder. It is further contended that after the purchase, the plaintiff is in possession and enjoyment of the schedule property as absolute owner and she has spent huge amount and obtained the construction permission and sanction plan. The defendants have no concern, right over the suit schedule property started causing illegal interference and attempted to demolish the existing building and compound wall. However, the same was resisted by the plaintiff by filing complaint. Accordingly, the suit came to be filed.
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and filed written statement by denying the averments made in the plaintiff in the plaint as false and also denying the alleged ownerships and possession of the property and contended that the suit schedule property said to be purchased through Riyas the GPA holder of Mohammed Hussain, which is part of survey No.4/2, Lakkasandra out of these sites formed by the previous owner, K.Shankar are all denied as false. By denying all the averments made in the plaint averments, the defendants contended that the defendants is in possession and enjoyment of the property which was formed in sy.no.4/3 measuring 30x40 feet situated in old 5th main and new 4th main Lakksandra which was formed after taking over the said area by the Corporation and assigned new number as 52-8/1. Thereafter, Shankar sold the site No.52 to one Abdul Rahem under the sale deed dated 16.04.1960 and put him in possession and later the said Abdul Rahem sold the said property to Munishettyswamy under the sale deed dated 15.4.1961 and he put in possession later. Later Munishettyswamy sold the schedule property to the defendant No.1 and her brother under sale deed dated
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21.5.1973. Since then, the defendant are in physical possession and enjoyment of the property. It is further contended that in the year 1980 one Syed Yakhoob occupied the existing shedule unauthorisedly. Therefore, the defendant have filed suit in O.S.No.8554/1980 before the Civil Court for declaration and injunction and the said suit was decreed in favour of the defendants and the said Syed Yakhoob filed RFA before the high court in RFA No.279/1990 which also came to be dismissed. It is contended that the said person who was suffered the decree was set up the plaintiff and filed the suit against the defendant by showing the wrong boundaries and wrong numbers and in fact the said property bearing No.52/8-1 situated in Sy.No.4/3 and that plaintiff is not in lawful possession and enjoyment of the schedule property. Hence, prayed for dismissing the appeal.
4 issues as under,
1. Whether plaintiff proves that she is in possession of the suit schedule property?
NC: 2024:KHC:43260 RFA No. 118 of 2014
2. Whether plaintiff proves the alleged obstruction?
3. Whether plaintiff in entitled for any relief?
4. What decree or order?
the plaintiff was examined as PW1 and got marked 23 documents and on behalf of the defendant, the defendant was examined as DW1 and got marked 28 documents. After hearing the arguments, the Trial Court answered issue Nos.1 to 3 in the negative. Ultimately dismissed the suit of the plaintiff. Being aggrieved with the same, the appellant is before this court.
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the defendant is 1973. The vendors of the defendant which is much later than the plaintiffs vendor sale deed and the hospitalisation is not considered by the Trial Court and blindly dismissed the suit of the plaintiff, which is not correct. Hence, prayed for allowing the appeal.
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one and the same, which is situated in Sy.No.4/3 and plaintiffs property comes under the Sy.No.4/2 which is altogether different property. He also contended that the contention of the amalgamation of the two sites by the plaintiff in respect of '30x30' and '30x10' feet are two different properties, which is not adjacent to each other as per the boundaries. Such being the case, there is no case made out by the plaintiff for showing the lawful possession and enjoyment of schedule property. Therefore, the Trial Court rightly dismissed the suit. Hence, prayed for dismissing the appeal. He also contended that even evidence of DW1 defendant has not been cross examined by the plaintiff counsel in the Trial Court and the evidence and documents of the defendants are not contraverted or impeached by the plaintiff. Such being the case, question of allowing the appeal does not arises.
NC: 2024:KHC:43260 RFA No. 118 of 2014
records, the point that arises for my considerations are,
(i) Whether the plaintiff proves that she is in lawful possession and enjoyment of the suit schedule property bearing No.50/16 carved out of sy.no.4/2 of Lakkasandra?
(ii) Whether the plaintiff proves, the defendant is interfering with his peaceful possession and enjoyment of the property?
(iii) Whether the judgment of dismissal of the suit by the Trial Court calls for any interference?
the land in Sy.Nos.4/2 and 4/3 of Lakksandra belongs to
one K.Shankar and he is said to have formed the sites. The vendor of the plaintiffs said to be purchased two sites under Ex.P.2 and Ex.P.3 in the year 1966 i.e., on 25.4.1966 measuring '30x30' feet and in Ex.P.3 measuring '30x10' feet on 23.5.1966. On perusal of the both the sale deeds, there is no site number mentioned, either as number 50 or any other number in the first sale deeds . In Ex.P.3 there is site number mentioned as 50 lying in
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Sy.No.4/2 measuring '30x10' feet and there is no site number mentioned in Ex.P.2 in respect of '30x30' feet, carved in Sy.No.4/2. The boundaries in Ex.P.2 and 3 mentioned are as below;
" a. Ex.P1- Registered Sale Deed dated 24.05.1996 executed by wife and children of Mohammed Hussain duly rept., by their GPA Holder Riyaz in faour of the Plaintiff in respect of the land site No.50 comprised in Sy. No.4/2 Corporation No.50/16 situate at 17th Cross Road, Lakkasanra Extension measuring East to West 30 feet and North to South 40 feet and the same is bounded on as follows:
East by : Road West by : Property No.51, North by : Road, South by : Afzar Building.
b. Ex.P-2 is the Registered Sale Deed dated 25.04.1966 executed by K.Shankar in favour of Mohammed Hussain in respect of the site lying within Sy.No.4/2 measuring East to West 30 feet and North to South 30 feet and the same is bounded on :
East by : 20 feet Road West by : K. Shankar Property North by : K. Shankar Property South by : K. Shankar Property c. Ex.P-3 is the Registered Sale Deed dated 23.05.1966 executed by
K.Shankar in favour of Mohammed Hussain in respect of the site bearing 50 lying within Sy.No.4/2 measuring East to West 30 feet and North to South 10 feet and the same is bounded on :
East by : 20 feet Road West by : Site belonging to shettappa North by : Road South by : Road."
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K.Shankar's property and in Ex.P.3 west by site belonging to shettappa, North by road and South by road. it appears, the site no.50 it is only 10 feet is surrounded by 3 sides road and one side i.e., west by site belonging to Shettappa. There is no site of Mohammed Hussain adjacent to the site No.50 measuring '10x30' feet as per the schedule in Ex.P.3. Whereas even on perusal of Ex.P.2 in the schedule, nowhere the property of the plaintiff vendor Mohammed Hussain is mentioned either 10 feet or 30 feet in any of these two boundaries in Ex.P.2 and Ex.P3, whereas the Shettappa's property is mentioned in Ex.P.3. On the other hand, the contention of the defendant is that the property in site No.52 carved in Sy.No.4/3 have been purchased from the K.Shankar by one Abdul Rahem and said Abdul Rahem sold the property to one Munishettyswamy. The Ex.D2 is the sale deed of the Abdul Rehman dated 16.4.1960 which is shown as site No.52 in sy.no.4/3 east west 30 feet and north to south 40 feet situated at Lakkasandra extension, east by 25, west north by Shankar's property south by Government Oni (water channel) Ex.P.3 the sale deed where Abdul Rahem said to be sold the property to one Munishettyswamy on
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15.4.1961 whether the said boundary in Ex.D2 and Ex.D3 matches each other. The defendant said to be purchased the property from this Munishettyswamy on 21.5.1973 which is also mentioned in Sy.No.4/3, site no.52, measuring '30x40' feet and the boundaries in Ex.D2 to 4 are all one and the same and there is changes in the boundary. Learned counsel for the respondent has produced Ex.D1, the survey sketch prepared by the Survey Commissioner, of office of the direction of survey settlement, where the Sy.No.4/2 is situated adjacent to the Sy.No.4/3 of which clearly shows Sy.No.3 is different from Sy.No.4/2, where the Sy.No.4/2 is said to be claimed by the plaintiff, whereas the Sy.No.4/3 said to be claimed by the respondent in his written statement. Apart from that the defendant also produced and contended that one Syed Yakhoob to interfere in the possession of the defendant property. Therefore, the suit for declaration and injunction came to be filed in O.S.No.8554/1980 and said Syed Yakhoob has taken contention, he is tenant under the Mohammed Hussain who is the original vendor of the plaintiff, where through Mohammed Hussain legal heirs, the plaintiff claims property. The said suit came to be
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dismissed on 27.1.1990. Subsequently, the said Syed Yakhoob filed the first appeal before this court in RFA no.279/1990 and it came to be dismissed on 4.1.1999 by confirming the declaration and injunction granted by the Trial Court in favour of the defendant.
boundaries on Ex.D2 to D4 are matching, whereas the boundaries of the Ex.P.1 to 3 is not matching each other
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and it also came to know that the boundaries in Ex.P.2 and 3 measuring 30 and '30x10' feet altogether different properties which is not at all situated adjacent to each other in order to amalgamate the same by the vendors of the plaintiff. That apart, when the defendant is disputing the title of the plaintiff in written statement claiming through decree and sale deed, there is cloud over the title of the plaintiff. The plaintiff ought to have converted suit into declaration and injunction. Therefore, bare injunction is not maintainable in view of the judgment of Hon'ble Supreme Court in case of Anathula Sudhakar vs. P.Buchi Reddy (Dead) By L.Rs & Ors. reported in 2008 AIR SCW 2692 . That apart, the evidence of DW1 and the documents were not at all impeached and contraverted by the plaintiff counsel in the Trial Court. The evidence and the documents of the defendant is in tact which was not impeached. Such being the case, the suit for bare injunction is not maintainable. Even otherwise, the plaintiff failed to prove his lawful possession and enjoyment of the suit schedule property. Such being the case, the question of interference by the defendant in the suit schedule property of the plaintiff does not arises.
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Therefore, I am of the considered view, I have answered point Nos.1 and 2 against the plaintiff and in favour of the defendant.
record, rightly dismissed the suit of the plaintiff. Hence, there is no error or appreciation in the order, in order to interfere by this court. The request of the appellant cannot be allowed for remanding the matter back to the Trial Court for the facts and circumstances of the case. The appeal is devoid of merits, hence requires to be dismissed.
Accordingly, this appeal is hereby dismissed.
No order as to cost
Sd/(K.NATARAJAN) JUDGE
AKV List No.: 1 Sl No.: 39 CT:SK
3 issues framed by the court
Whether the plaintiff proved lawful possession and enjoyment of site No.50/16 in Sy.No.4/2, Lakkasandra?
Whether the defendant interfered with the plaintiff's peaceful possession of the property?
Whether the Trial Court's dismissal of the bare injunction suit warranted interference?
Colour shows how this judgement treated each authority
Anathula Sudhakar vs. P.Buchi Reddy (Dead) By L.Rs & Ors.Relied on¶14
2008 AIR SCW 2692 · Who else cites this
1 provisions across 1 enactments
Smt. Tasneem Begum
Smt. Manjula
Murali
K.Natarajan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
