Dismissed

Smt Saraswathi R Rao v. K S Srinivasan

Karnataka HC12 Jun 2024RSA/2420/2011

Case brief

AI extract

What is this about?

Plaintiffs sued for permanent and mandatory injunction over 'A' and 'B' schedule properties, claiming 'B' schedule was included in their purchase. Both courts below dismissed the suit, finding the sale deed did not cover 'B' schedule property. The High Court held that without title over 'B' schedule property, an injunction suit is not maintainable absent a declaration prayer, found no substantial

What the court decided

AI extract

Smt Saraswathi R Rao Vs K S Srinivasan — Specific Performance | Karnataka HC (2024)

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NC: 2024:KHC:20744 RSA No. 2420 of 2011

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA REGULAR SECOND APPEAL No.2420 OF 2011 (INJ)

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BETWEEN:

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SMT SARASWATHI R RAO AGED ABOUT 57 YEARS, W/O SRI. S. RAGHAVENDRA RAO,

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S. RAGHAVENDRA RAO

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AGED ABOUT 67 YEARS, S/O SHANKARA,RETD HIGH SCHOOL TEACHER,

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BOTH ARE R/A NO.93/A, NEW NO.F-74/A, THYAGARAJA ROAD, 5TH CROSS, KHILLE MOHALLA, MYSORE 570004.

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…APPELLANTS

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Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA

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(BY SRI. K N NITISH, ADVOCATE FOR SRI K V NARASIMHAN., ADVOCATE;

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V/O DTD 18.07.2023 A1- DIED ON 04.06.2020

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V/O DTD 31.05.2024 A2 IS TREATED AS LR OF DECEASED A1)

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AND:

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K S SRINIVASAN

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SINCE DEAD BY HIS LRs,

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A) SMT PADMAVATHI @ PREMAKUMARI

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W/O LATE SRINIVAS K S AGED ABOUT 62 YEARS R/A NO.93/A, THYAGARAJA MAIN ROAD,

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K R MOHALLA, MYSORE.

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2 - NC: 2024:KHC:20744 RSA No. 2420 of 2011

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B) SRI MADHUSUDAN, S/O LATE SRINIVAS K S AGED ABOUT 62 YEARS R/A NO.93/A,

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THYAGARAJA MAIN ROAD, K R MOHALLA, MYSORE.

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C) SRI SUDARSHAN S/O LATE SRINIVAS K S AGED ABOUT 62 YEARS R/A NO.93/A,

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THYAGARAJA MAIN ROAD, K R MOHALLA, MYSORE.

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D) SRI RAMANUJAM, S/O LATE SRINIVAS K S AGED ABOUT 62 YEARS R/A NO.93/A,

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THYAGARAJA MAIN ROAD, K R MOHALLA, MYSORE

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SMT. S.R. INDIRA

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D/O LATE K.V. SHESHADRI IYENGAR, & LATE K.S. SEETHAMMA MAJOR, MAJOR AGED ABOUT 56 YEARS R/A NO.93, NEW NO. F-74, THYAGARAJAROAD, 5TH CROSS KHILLE MOHALLA,MYSORE

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SMT. T.R. SHANTHA D/O LATE K.V. SHESHADRI IYENGAR, & LATE K.S. SEETHAMMA MAJOR, AGED ABOUT 53 YEARS R/A NO.93, NEW NO. F-74,

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3 - NC: 2024:KHC:20744 RSA No. 2420 of 2011

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THYAGARAJAROAD, 5TH CROSS KHILLE MOHALLA, MYSORE.

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…RESPONDENTS

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(BY SRI. MALLINATH S MAKA., ADVOCATE FOR R1 (A TO C); NOTICE TO R1(D), R2, R3 ARE HELD SUFFICIENT V/O DTD 27.11.2019)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 1.8.2011 PASSED IN R.A.NO.485/2010 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-II, MYSORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 3.8.2006 PASSED IN O.S.NO.623/2002 ON THE FILE OF THE PRL. FIRST CIVIL JUDGE (JR.DN) MYSORE AND ETC.

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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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Heard Sri K.N.Nitish, advocate for Sri K.V.Narasimhan, learned counsel for the appellants and Sri Mallinath S. Maka, learned counsel for the respondent Nos.1(a to c).

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Present Appeal is by the unsuccessful plaintiff who filed the suit for the relief of permanent injunction and mandatory injunction in respect of the following properties.

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“SCHEDULE –“A”

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House property bearing Door No.93/A New No.F74/A, situated at Thyagaraja Road, 5^th Cross, Khille Mohalla, Mysore City, measuring East to West 25 Ft., and North to South 28 Ft., and also the property situated towards Western side measuring East to West 5 ft., and North to

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4 - NC: 2024:KHC:20744 RSA No. 2420 of 2011

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South 13.5 Ft., and North to South 13.5 Ft. The same has been mentioned in the rough sketch as A, B, C, D, E, F and bounded on:

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East by : Galli West by : "B" Schedule property and the property belongs to the defendants. North by : Veerabhadraiah's house. South by : Galli and Kottur Basavaiah's Vacant space.

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SCHEDULE "B"

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Vacant space abutting to "A" schedule property and situated towards Western side of the said "A" Schedule property, measuring East to West 5 ft, and North to South 14.5 ft., same has been mentioned in the rough sketch as P.Q.R.S, and bounded on:

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East by: "A" schedule property,

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West by: The Defendant's property,

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North by: Veerabhadraiah's house,

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South by: Galli and Kottur Basavaiah's vacant space.

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In toto Plaint "A" and "B" schedule property measuring East to West 30 ft. and North to South 30ft.”

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3. According to the plaint averments, plaintiffs having

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purchased the suit property, complained the interference of the defendants in respect of the ‘B’ schedule property claiming that ‘B’ schedule property is part of ‘A’ schedule property.

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NC: 2024:KHC:20744 RSA No. 2420 of 2011

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Suit was contested by the defendants by filing a detailed written statement.

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The Trial Court raised as many as four issues and two additional issues, having regard to the rival contentions and after considering the oral and documentary evidence placed on record, dismissed the suit of the plaintiffs.

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Being aggrieved by the same, plaintiffs filed an appeal before the First Appellate Court in R.A.No.485/2010.

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Along with the appeal, an application under Order XLI Rule 27 of the Code of Civil Procedure was also filed praying to place additional evidence on record.

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Appeal was contested by the defendants and after affording suitable opportunity for the parties, the learned Judge in the First Appellate Court concurred with the finding recorded by the Trial Court in dismissing the suit of the plaintiffs and the Judge in the First Appellate Court also felt that application filed under Order XLI Rule 27 of the Code of Civil Procedure is unnecessary for resolving the dispute inasmuch as the sale

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NC: 2024:KHC:20744 RSA No. 2420 of 2011

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deed on which the plaintiffs relies to claim the right in ‘B’ schedule property did not include ‘B’ schedule property.

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Thereafter, being further aggrieved by both the judgments, the appeal is preferred raising the following substantial questions of law:

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1. “Whether the appreciation of evidence of PW1 by the lower courts is perverse?

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2. Whether the courts below were justified in dismissing the suit of the appellants/plaintiffs, without considering the admission made by the defendants in their written statement at para 2 that they have sold to the appellants the property measuring East-west 25 Feet and North-South 28 Feet and 5 feet X 13.5 Feet only through a registered sale deed dated 3/3/1983 (Ex.P9)?

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3. Whether the courts below erred in misreading and misinterpreting the sale deed at Ex.P9 which bears as clear recital that the defendant No.1 has sold the property measuring East-west 25 Feet and NorthSouth 28 Feet and 5 feet X 13.5 Feet to the 1st plaintiff by retaining 1½ feet x 28 feet in the southern side. Further the plaintiffs were permitted to use the said 1½ feet x 28 feet for their ingress and egress as observed by the trial court at Para 17 of its judgment?

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NC: 2024:KHC:20744 RSA No. 2420 of 2011

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4. Whether the courts below erred in not properly appreciating the documents at Ex. P9 and Ex. P20 which fortified the case of the appellants?”

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Learned counsel for the appellants, reiterating the grounds urged in the appeal memorandum, drew the attention of this Court to paragraph 17 of the Trial Court Judgment, whereunder, the learned Trial Judge has observed as under:

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“17. So the above schedule clearly reveals that the property measuring 25 feet x 28 feet and 5 feet x 13½ feet was sold in favour of 1^st plaintiff by retaining 1½ feet x 28 feet in the southern side. Further the plaintiffs were permitted to use the said 1 ½ feet x 28 feet for their ingress and egress. Thus it is very clear that there is no mention in the Sale Deed that the plaintiffs were also permitted to use the property situated towards west of the property sold in their favour. Of course Ex.D8 reveals about the existence of 'B' schedule property. Because as per this document the existence of property measuring 5 feet x 14½ feet is accepted. So the contention of the defendants that 'B' schedule property is not in existence cannot be accepted. Even in their pleadings they have not specifically disputed the said fact. But the fact remains is that, whether the plaintiffs have got any right over the said property”

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8 - NC: 2024:KHC:20744 RSA No. 2420 of 2011

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He also points out that when there is a dispute as to the measurement and boundaries, it is the boundaries that would prevail which has been ignored by both the Courts and therefore, sought for admission of the Second Appeal on the aforesaid substantial questions of law for further consideration.

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Per contra, learned counsel for the respondents Sri Mallinath S. Maka, vehemently contended that, admittedly, the suit is one for permanent injunction and mandatory injunction and there is no prayer for declaration. Sale deed executed by the defendants in favour of the plaintiffs clearly mentions the measurement of the property and not an inch more. In fact, it is the defendants who have put the plaintiffs into possession of the property as per the sale deed and therefore, there is no question of plaintiffs occupying any additional area other than the area mentioned in the sale deed and therefore, judgment of the Trial Court as well as the First Appellate Court is just and proper and the substantial questions of law referred to above are meritless and sought for dismissal of the appeal.

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Having heard the learned counsel for the parties, this Court perused the material on record, meticulously.

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9 - NC: 2024:KHC:20744 RSA No. 2420 of 2011

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On such perusal of the material on record, it is crystal clear that in the sale deed executed by the defendants in favour of the plaintiffs, there is a clear mention as to the measurement which would show that ‘B’ schedule property was not part of the sale deed.

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Admittedly, plaintiffs have claimed ‘B’ schedule property as part of ‘A’ schedule property. To substantiate said aspect of the matter, attention of this Court is drawn to the sale deed. Perusal of it shows that, in fact plaintiff purchased the ‘B’ schedule property which is part of ‘A’ schedule property, the measurement in the sale deed has to be looked into inasmuch as it is not the question of parties are enjoying the possession of the property beyond a particular document.

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Since defendants themselves are the vendor of plaintiffs, admittedly, defendants having sold the property as per the sale deed, could not have allowed the plaintiffs to occupy any extra area other than the area mentioned in the sale deed.

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10 - NC: 2024:KHC:20744 RSA No. 2420 of 2011

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Therefore, the observation made by the Trial Court in paragraph-17 referred to supra is just and proper, having regard to the attendant facts and circumstances.

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In the absence of any title over ‘B’ schedule property, suit for permanent injunction and mandatory injunction is not maintainable at all.

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Moreover, there is no prayer for declaration stating that the plaintiffs have occupied the area more than the area mentioned in the sale deed and have perfected the title by adverse possession.

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Under such circumstances, judgment of the Trial Court is just and property. Same has been re-appreciated by the First Appellate Court and also formed a definite opinion that the additional evidence would not advance the case of the appellants any further.

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Under the circumstances, the substantial questions of law

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raised in the appeal memo referred to supra are meritless.

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Hence, the following:

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NC: 2024:KHC:20744 RSA No. 2420 of 2011

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11 -

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ORDER

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(i) Admission declined, as there are no substantial questions of law to be adjudicated in the present appeal.

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(ii) Hence, appeal dismissed .

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Sd/JUDGE

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kcm List No.: 2 Sl No.: 29

Smt Saraswathi R Rao v. K S Srinivasan

Case brief

What is this about?

What the court decided

Smt Saraswathi R Rao v. K S Srinivasan

Case brief

What is this about?

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