First appeal against a decree for permanent injunction over a site in Kodigehalli village. The High Court found the plaintiff's claim consistent and supported by documents and admissions by defendant No.1, while the defendants' claims were inconsistent. The application for additional evidence under Order 41 Rule 27 CPC was also rejected.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2024:KHC:14441 RFA No. 1199 of 2008
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI REGULAR FIRST APPEAL NO. 1199 OF 2008 (INJ)
BETWEEN:
SRI K NAGABUSHAN, S/O B.D KRISHNAPPA, AGED ABOUT 43 YEARS, ABBIGERE LAYOUT, CHIKKABANAVARA POST, BANGALORE-560 090.
...APPELLANT
(BY SRI SAINATH & SRI S SUDHINDRANATH, ADVOCATES)
AND:
SINCE DECEASED BY HIS LR'S
Digitally signed by NANDINI R Location: High Court of Karnataka
1(c) SRI RAKESH, S/O LATE K RAMAMURTHY, AGED ABOUT 21 YEARS.
ALL ARE R/AT NO. 398, KEMPEGOWDA ROAD, KODIGEHALLI, SAHAKARANAGAR POST, BANGALORE-560 092.
NC: 2024:KHC:14441 RFA No. 1199 of 2008
…RESPONDENTS
(BY SRI P.M NARAYANASWAMY, ADVOCATE FOR R1(a TO c); APPEAL AGAINST R2 IS ABATED V/O DATED 15.06.2023)
THIS RFA IS FILED U/S 96 R/W ORDER XLI OF CPC AGAINST THE JUDGMENT AND DECREE DATED 20.10.2008 PASSED IN OS.NO.15131/2005 ON THE FILE OF THE XIII ADDL.CITY CIVIL JUDGE, MAYOHALL UNIT, BANGALORE, (CCH22), DECREEING THE SUIT FOR PERMANENT INJUNCTION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 11.01.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Being aggrieved by the judgment and decree dated 20.10.2008 passed in O.S.No.15131/2005 by the learned
XIII Additional City Civil Judge, Mayohall Unit, Bangalore, CCH-22, decreeing the suit for permanent injunction, the defendant No.2 has approached this Court in appeal.
ranks before the trial Court for the sake of convenience.
NC: 2024:KHC:14441 RFA No. 1199 of 2008
below:
(a) The plaintiff describes the suit schedule property to be the site bearing No.1, old katha NO.587/218/1 of Byatarayanapura CMC No.261/218/1 situated at Kodigehalli village, measuring East-West 30 feet, North-South 40 feet, bounded on East-By road, West by Muni Huchappa’s property, North by: remaining portion of same property and ACC Sheet House and South by: RCC roof house, vacant land and Kodigehalli road.
(b) The plaintiff is the absolute owner of the above property and in possession of the same through a registered sale deed executed by Ananthapadmanabhachar in favour of father of the plaintiff Kempaiah dated 20-10-1992. After death of his father Kempaiah, the plaintiff is in possession and
enjoyment of the suit schedule property, paying the municipal taxes, cesses etc. The said
NC: 2024:KHC:14441 RFA No. 1199 of 2008
Ananthapadmanabhachar, the vendor of the plaintiff had purchased 20 guntas of land in Survey No.218 of Kodigehalli village from defendant No.1 under the registered sale deed dated 09-08-1979. Later, he has sold the suit schedule property to Kempaiah under the sale deed and therefore, the plaintiff is in lawful possession and enjoyment of the suit schedule property.
(c) The defendants having no right, title or interest over the suit schedule property are trying to encroach by putting up a shed on the basis of certain forged and created documents, claiming the plaintiff’s property as their property. The resistance by the plaintiff by approaching the jurisdictional police did not yield any result and therefore, the plaintiff was constrained to file the suit. Hence, the plaintiff prayed for a decree of perpetual injunction against the defendants restraining them from interfering with the peaceful possession an
NC: 2024:KHC:14441 RFA No. 1199 of 2008
enjoyment of the suit schedule property by the plaintiff and other appropriate reliefs.
appeared before the trial Court through their counsel and
filed their separate written statements.
5. Defendant No.1 contended as below:
(a) The suit schedule property is not part and
parcel of survey No.218 of Kodigehalli village. But
however, it is the part of the property which belonged to Ananthapadmanabhachar, who claimed to be the vendor of the plaintiff. The said Ananthapadmanabhachar had filed OS No.4465/1987
against defendant No.1 and one Anjanappa in respect of property measuring 30 ft x 40 ft. with four stone pillars on the southern side of survey No.218
of Kodigehalli. On 20-6-1998, the said suit came to be dismissed for non prosecution. In the said suit, defendant No.1 had contended in his written statement that the land belongs to Muthurayaswamy
Temple, coming under Mujarayi Department and defendant No.1 was cultivating the land as Archak. The entire survey No.218 was comprising of 01 acre 16 guntas, out of which, 16 guntas was Kharab land. Defendant No.1 filed declaration before the Special Deputy Commissioner, claiming occupancy rights under Inam Abolition Act. Accordingly, the land was granted on 28-12-1978. There was a restriction for alienation for a period of 15 years. Though issues were framed in OS No.4465/1997, the suit came to be dismissed for non prosecution.
(b) It is further contended that father of the
plaintiff Kempaiah, filed a suit through his son Manjunath in OS No.8666/1997 in respect of the schedule property and it was dismissed on 02-091998. In the said suit also, defendant No.1 had filed written statement denying the possession of the property by Kempaiah or his son Manjunath. In the
NC: 2024:KHC:14441 RFA No. 1199 of 2008
said suit also, defendant No.1 had taken up similar contentions in his written statement.
(c) Earlier to it, the father of the plaintiff had also filed OS No.689/1990 and it was dismissed as withdrawn when it was at the stage of evidence. Therefore, it is contended that the plaintiff has suppressed the real facts and filing of the suit after suit, though the plaintiff knew about the same. It was further contended that the plaintiff is not in possession of the suit schedule property since no site
is formed till today and it remained to be an agricultural land and defendant No.1 was paying taxes to the Government and he has constructed a building as farm house and living there by performing Pooja of the temple. The other contentions of the plaintiff regarding interference by the defendants etc., are specifically denied by defendant No.1 and he sought for dismissal of the suit.
NC: 2024:KHC:14441 RFA No. 1199 of 2008
6. Defendant No.2 in his written statement has
contended as below:
(a) The defendant No.2 is the absolute owner in
possession of 1.39 guntas out of 01 acre in Sy.No.218 of Kodegehalli village through a sale deed dated 17.01.2002 from defendant No.1 for valuable consideration. It is alleged that plaintiff has suppressed the real facts. He contends that the land was neither converted to non-agricultural nor permission was granted to form a layout. Therefore, possession was never obtained by the plaintiff from his vendor.
(b) The documents produced by the plaintiff in respect of the suit schedule property is concocted and fabricated and that the plaintiff has not approached to the court with clean hands. He has reiterated the contentions taken up by the defendant
NC: 2024:KHC:14441 RFA No. 1199 of 2008
No.1 regarding the previous suits filed by the father and brother of the plaintiff.
Court framed the following issues:
himself as PW1 and examined one witness as PW2 and Exhibits P1 to P28 were marked in evidence. Defendants No.1 and 2 were examined as DWs.1 and 2 and Exhibits D1 to D20 were marked in evidence.
NC: 2024:KHC:14441 RFA No. 1199 of 2008
NC: 2024:KHC:14441 RFA No. 1199 of 2008
improbable and impossible. It is contended that the Ananthapadmanabhachar has filed a suit against Venkatasanjeevaiah i.e., defendant No.1 in the year 1987 which is registered as OS No. 4465/1987 and it was dismissed for non prosecution on 26-4-1998. The plaint in the said suit is essential for defendant No.2/appellant to demonstrate that non existence of the suit schedule property as alleged in the present suit. Similarly, identical Original suit in OS No.8666/1997 was filed by Kempaiah, the father of the plaintiff and it was closed as abated on 02-09-1998. In both the suits, the suit schedule property vary in description and again the description of the suit schedule property is different from the description stated in those two suits. Therefore, those documents are essential for the appellant/defendant No.2 and it goes to the root of the case.
produced. The documents sought to be produced are, the copy of the plaint in OS No.4465/1987, plaint in OS No.8666/1998 and the written statement of Venkatasanjeevaiah /defendant No.2 in O.S.No.8666/1997.
dismissed. Inter-alia , it is also the contention of the plaintiff/respondent No.1 that OS No.4465/1987 was filed by Ananthapadmanabhaachar against Venkatasanjeevaiah and one Anjinappa and the plaintiff is not the party to the
said suit. Therefore, the description of the property
mentioned in the said suit is not pertaining to the suit schedule property. He contends that property described in the said suit is not pertaining to the plaintiff and not concerned and therefore, on this ground the application is not sustainable in law.
The Arguments:
appellant/defendant No.2 in his arguments has contended that:
a) Suit schedule property described by the plaintiff
and his father in earlier suit is different than the one mentioned in the present suit. It is contended that the alleged sale deed relied by the plaintiff executed by Ananthapadmanabhachar in favour of the father of the plaintiff Kempaiah, mention that, there is a house situated on the property, but the photographs which were shown to DW1 in the cross- examination show that it is completely newly constructed shed. Therefore, there is a clear inconsistency in the contention of the plaintiff. He further
NC: 2024:KHC:14441 RFA No. 1199 of 2008
submitted that the boundaries mentioned in Ex.P1, plaint, etc., show inconsistency and therefore, the contention of the plaintiff is unbelievable.
b) He further submits that the revenue records relied by the defendants show that the conversion of 20 guntas of land in survey No.218 is not reflected in the records of rights and therefore, the plaintiff’s contention that there was conversion cannot be relied upon. The conversion of 20 guntas of land for non agricultural purpose was not pleaded in the plaint and as such, the evidence which is not pleaded cannot be considered.
c) The third prong of the argument by the learned counsel for the appellant is that the impugned judgment does not appreciate the evidence on record in a proper way. He submits that Para 10 of the judgment of the trial Court fails to appreciate that defendant No.2 had purchased portions of the lands measured in guntas, but not in square feet or the sites. Therefore, when defendant No.1 had sold portion of the land in favour of defendant
No.2, which is reflected in records of rights, the possession of defendant No.2 is to be presumed by the trial Court. Therefore, he contends that the appreciation of the evidence of the trial court is not proper.
d) Fourthly, he submits that the plaintiff had failed to prove the identity of the property. He contended that when Ananthapadmanabhachar as purchased 20 guntas of land from defendant No.1 Venkatasanjeevaiah under the sale deed as per Ex.P10, thereafter had allegedly converted the land into non agriculture, there should have been survey maps depicting the same. There is absolutely no evidence on record by the plaintiff to show that Ananthapadmanabhachar has formed the layout and in the said layout the plaintiff’s father Kempaiah had purchased a site. Therefore, he contends that the identification of the property by the plaintiff is not proper and hence, the trial Court could not have granted an injunction.
e) In support of his contention, he has relied upon
the judgment in the case of Vinod Kumar Arora Vs.
Smt. Surjit Kaur1 to contend that “the pleadings of the parties form the foundation of their case and it is not open to them to give up the case set out in the pleadings and propound a new and different case.” It was also held that “ it must be remembered that the Rule would apply only where the findings have been rendered with reference to the facts and not on the basis of non-existent material and baseless assumptions” .
f) He further relied on the judgment in the case of
Birad Mal Singhvi Vs. Anand Purohit2 concerning the appreciation of evidence. It was held that “mere proof of documents would not tantamount to proof of all the contents or the correctness”.
g) He relied on the judgment of the Apex Court in
the case of Maria Margarida Sequeria Fernandes and others Vs. Erasmo Jack de Sequeria (Dead) through
1 AIR 1987 SC2179
2 AIR 1988 SC 1796
NC: 2024:KHC:14441 RFA No. 1199 of 2008
LRs3 wherein, it was held that “the Court must ensure that the pleadings of a case must contain sufficient particulars. Insistence on details reduces the ability to put forward a non-existence or false claim or defence. In dealing with a civil case, pleadings, title documents and relevant records play a vital role and that would ordinarily decide the fate of the case”. It was also held that, “ …… the endeavour of the Court that if a suit for mandatory injunction is filed, then it is the duty of the Court to critically examine the pleadings and documents and pass an order of injunction” .
h) He further relied on the judgment in the case of Chikkam Koteswara Rao Vs. Chikkam Subbarao and others4 wherein, it was held that, “….before the right of a party can be considered to have been defeated on the basis of an alleged admission by him, the implication of the statement made by him must be clear and conclusive
3 AIR 2012 SC 1727
4 AIR 1971 SC 1542 (V.58 c.317)
and there should not be any doubt or ambiguity about the alleged admission.”
i) Lastly, he relied on the judgment in the case of Remco Industries Workers House Building Cooperative Society vs. Lakshmeesha M and others, wherein it was held that “the identity of the land is vital for the just decision in the case” . It was also held that, “if necessary, the appellate Court can frame an issue and remit it for trial, which had been omitted to be framed and tried by the trial court.”
18. Per contra , the learned counsel appearing for the plaintiff has contended that the boundaries in the
plaint and Ex.P1 are one and the same. In Ex.P1, it was stated that the suit schedule property bears panchayat No.587/218/1 and later, CMC Byatarayanapura formed and it was renumbered as 261/218/1. He contends that the transfer certificate and receipts have been produced wherein the old number is shown. He contends that Ananthapadmanabhachar had purchased 20 guntas of land from Venkatasanjeevaiah and thereafter, he sold the site measuring 30 ft. x 40 ft. to the plaintiff in the year 1992. By that time, Ananthapadmanabhachar had converted the
same into non agriculture. It is submitted that the boundaries shown in Ex.D1 are different and it may be true that defendants’ land is situated somewhere else. It is contended that when the land is assessed for the tax by the CMC, obviously, after conversion of the land it would not be available in the revenue records. Therefore, he points out that the tax payment receipts produced by the defendants do not bear the CMC Number or the Panchayat Number. Hence, he contends that the suit schedule property is owned and possessed by the plaintiff and
NC: 2024:KHC:14441 RFA No. 1199 of 2008
defendants are unnecessarily or illegally obstructing his possession and enjoyment.
NC: 2024:KHC:14441 RFA No. 1199 of 2008
documents show that the plaintiff is in possession and enjoyment of the property, the judgment of the trial Court need not be interfered. Hence, he has sought for dismissal of the appeal.
Re.Point Nos. (i) and (ii)
down in the case of Santosh Hazari v. Purushottam Tiwari5 , enunciate the principles that govern a first appeal.
So also the recent judgment of the Apex court in the case
5 (2001) 3 SCC 179
NC: 2024:KHC:14441 RFA No. 1199 of 2008
of V. Prabhakara v. Basavaraj K.6 are also kept in view,
while considering the points raised in this appeal.
has purchased a site in 20 guntas of land which was
6 (2022) 1 SCC 115
purchased by Ananthapadmanabhachar under the sale deed Ex.P1. He states that the said site is on the western side of the portion of the property of Ananthapadmanabhachar. Curiously, either the plaintiff or the defendant do not produce any document to show that how the sites have been formed. Defendant No.1 though contends that he did not sell any property except the property sold to defendant No.2/appellant herein, admits in the cross examination that he sold several pieces of land to others and those sale deeds were confronted
him in the cross examination and he admits the same. Therefore, as per his evidence, Sy.No.218 measuring 01 acre was divided into two portions measuring 20 guntas each, the said Ananthapadmanabhachar and defendant No.1 knew where their land is situated. It is relevant to note that in Ex.P10, the land purchased by Ananthapadmanabhachar shows the boundaries as: “East by: Government channel; West by Munihuchappa’s property and Kannappanavara Munishamappa’s land, North by: Government land and South by : Government
NC: 2024:KHC:14441 RFA No. 1199 of 2008
road” . It is pertinent to note that this Ex.P10 appears to describe the entire Survey No.218, for, no any remaining land of defendant No. 1 is shown on any side.
whether the plaintiff has proved that he is in lawful possession and enjoyment of the suit schedule property or not?
by the Panchayat Byatarayanapura or CMC
Byatarayanapura and it was the subject matter of the transaction between Ananthapadmanabhachar and the plaintiff’s father Kempaiah.
26. Per contra, defendant No.2 relied on the sale deed executed by Venkatasanjeevaiah, defendant No.1 in his favour as per Ex.D1. Ex.D1 is dated 17-01-2002. It is pertinent to note that, Ex.D1 is in respect of 5.37 guntas and 1.39 guntas in Survey No.218. Obviously, this property purchased by defendant No.2 is in 20 guntas of land which was retained by defendant No.1Venkatasanjeevaiah. The boundaries mentioned in Ex.D1 in respect of two pieces of lands appear to be different. 5.37 guntas of land is described as: “ land of Muniyappa on the East; 11 ft. road and that of Venkatasanjeevaiah’s land on the West, land of Basavaraj on the North and Kodigehalli Tindlu road on the South” . The other piece of land measuring 1.39 guntas is described with the boundaries as: 11 feet road on the East; Land of
NC: 2024:KHC:14441 RFA No. 1199 of 2008
Ramanjinappa on the West, land of Rathnamma on the North and house of Venkatasanjeevaiah on the South . What can be gathered from Ex.D1 is that it is a corner site, but on east it was mentioned as 11 ft. road.
NC: 2024:KHC:14441 RFA No. 1199 of 2008
year 1982 and in the sale deed, it is mentioned that there exists the ACC sheet shed in the property and the property was given Panchayat number by Byatarayanapura CMC. In addition to it, the plaintiff has shown that there are receipts for payment of the property tax. Obviously, the receipts for payment of property tax are from the year 2002 onwards and there was no such receipts pertaining to the year 1992 to 2002. It appears that the when revenue records sought, it was informed through an endorsement issued by the revenue authorities that the documents are not available. Ex.P17 and Ex.P18 show that Ananthapadmanabhachar had sought for certain records, i.e., the RTC of survey No.218 from year 1966 to 1988. But he has received an endorsement stating the records are in dilapidated condition and therefore, the records cannot be given. This endorsement shows that the revenue records are not clearly available.
NC: 2024:KHC:14441 RFA No. 1199 of 2008
have been recorded in the Sub Registrar’s Office with respect to the survey numbers. Ex.P22, Ex.P23 are the Tax Payment receipts, self assessment declarations etc., pertaining to the suit schedule property by the plaintiff. Evidently, these documents show the Panchayat Number as contended by the plaintiff in the plaint. Whereas, the defendants have produced self assessment tax payment receipts at Ex.D18 to D20, these documents show that there is mention about the Survey Number, but not about the Panchayat Number. The Panchayat has received the
taxes by mentioning survey Numbers, but not the Panchayat Number. These documents, therefore, do not refer to Panchayat Number which the plaint is describing.
Ananthapadmanabhachar had been converted into non agriculture and it was meant for Industrial Purpose i.e.,
for the manufacturing of the bricks. This conversion is dated 06-03-1984. Obviously, after five years of the purchase, Ananthapadmanabhachar applied for the conversion of the land and it was granted by the Deputy Commissioner. Evidently, this conversion is not stated by the plaintiff in the plaint. At the most, this document can be considered as further elucidation of the contentions of the plaintiff. Whether it was converted or not will not have
much bearing in the matter. It can be only said that the conversion of the land into non agriculture has led to entry of property numbers in the Panchayat records. The land which was converted did not reflect in the revenue records (as revenue records of Sy No.218 are not available) and therefore, it would be susceptible for assessment of the tax by the Panchayat or the CMC. Except this, much importance cannot be attached since the plaintiff has not averred the same in the plaint.
property. His cross examination is only of denial.
importance. He admits in the cross-examination that he sold 20 guntas of land to Ananthapadmanabhachar and thereafter, he has sold 06 guntas to defendant No.2. He states that he has constructed the building in the site measuring 70 ft. x 40 ft. He states that apart from the said site, he has no other property left with him. He does not disclose as to the property which he had sold from out of 20 guntas which he has retained. A categorical admission is made by him to the effect that the two items of the properties sold in favour of defendant No.2 are not concerned to the suit schedule property. Therefore, it is evident that defendant No.2, who is appellant herein cannot contend or claim any right, title or interest over the suit schedule property. When DW1 himself has made such an admission in the cross-examination, it is not in the mouth of defendant No.2 to say that he has any right, title or interest over the suit schedule property.
that he has sold certain property to one Basavaraj and another piece of land to Basavegowda. These sale deeds were confronted to him and are marked as Ex.P24 and P25. He was also confronted with the photographs at Ex.P26. He states that the shed seen in the said photograph is put up by plaintiff unauthorizedly. Thus, he has submitted that the plaintiff is in possession of the suit schedule property and it is admitted that his house is situated on the southern side of the suit site. Further, he admits that he has not filed any suit challenging the sale deed executed in favour of Ananthapadmanabhachar or the plaintiff’s father. Further, he admits that the land which has been purchased by Ananthapadmanabhachar is not used for the agricultural purpose since last 20 years. These admissions by DW1 go a longway in showing that the plaintiff is in possession and enjoyment of the suit schedule property.
of Exs.P26, 27, and P28 would clearly show that they are one and the same shed. Thus, it is evident that defendant No.2 claim that the said shed belongs to him and he constructed it, whereas, defendant No.1 admits that the shed was constructed by the plaintiff unauthorisedly.
not consistent in their claim and contentions. Defendant No.1 Venkatasanjeevaiah says that the sale deed in favour of Ananthapadmanabhachar has been cancelled. Such contentions are directly against Ex.P10 and the admissions in the cross examination shattered the contentions of the defendants.
NC: 2024:KHC:14441 RFA No. 1199 of 2008
property to plaintiff’s father and he claims that the suit property falls within 20 guntas of land. Whereas, defendants contend that the suit schedule property is the property standing in the property retained by Venkatasanjeevaiah. However, the claim is based on the alleged transaction between the defendant No. 1 and defendant No.2 in the year 2002. Evidently, defendant no.1 had sold his piece of land to various others as per Exs.P24 and P25. Therefore, unless it is established by the defendants that Ananthapadmanabhacar had no alienable right or possession over the suit schedule property in favour of plaintiff’s father-Kempaiah, it is not the mouth of the defendants to claim that the said site belongs to them or possessed by them.
NC: 2024:KHC:14441 RFA No. 1199 of 2008
examination. According to the defendant No.1 though the possession is illegal, but the documents produced by the plaintiff show that he is in lawful possession of the property.
NC: 2024:KHC:14441 RFA No. 1199 of 2008
conclusion reached by the trial Court. Hence the points raised by this court are answered in the negative.
No.1/2018 filed by the appellant u/o 41 Rule 27 of CPC as well as the appeal are liable to be dismissed. Hence the following
ORDER
Sd/JUDGE
tsn* List No.: 1 Sl No.: 21
3 issues framed by the court
Whether the plaintiff proved lawful possession and enjoyment of the suit schedule property and interference by the defendants?
Whether the trial court's decree of permanent injunction required interference?
Whether additional documents could be admitted under Order 41 Rule 27 CPC?
Colour shows how this judgement treated each authority
Vinod Kumar Arora Vs. Smt. Surjit KaurReferred¶16
AIR 1987 SC2179 · Who else cites this
Birad Mal Singhvi Vs. Anand PurohitReferred¶16
AIR 1988 SC 1796 · Who else cites this
Chikkam Koteswara Rao Vs. Chikkam Subbarao and othersReferred¶16
AIR 1971 SC 1542 (V.58 c.317) · Who else cites this
Santosh Hazari v. Purushottam TiwariRelied on¶21
(2001) 3 SCC 179 · Who else cites this
V. Prabhakara v. Basavaraj K.Relied on¶21
(2022) 1 SCC 115 · Who else cites this
Union of India v. Ibrahim UddinRelied on¶39
(2012) 8 SCC 148 · Who else cites this
2 provisions across 1 enactments
Sri K Nagabushan
Sri K Rama Murthy (since deceased, by his LRs)
Smt. Sunandamma
Sri Nagaraja
Sri Rakesh
Sri Venkata Sanjeevaiah
C M Joshi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
