Sri G K Harish Rajan Vs Smt Hema Reddy

Digitally signed by BANGALORE – 560 076 SREEDHARAN BANGALORE SUSHMA LAKSHMI Location: High Court ofKarnataka (BY SRI. R.B.SANGAMESH, ADV. FOR SRI.H.S.SOMNATH, ADV.)

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AND:

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SMT.HEMA REDDY AGED 56 YEARS

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HC-KAR

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W/O SRI.KRISHNA REDDY R/AT NO.551, 16^TH A MAIN 3^RD BLOCK, KORAMANGALA BANGALORE – 560 034 …RESPONDENT

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(BY SRI.RAJADITHYA SADASIVAN, ADV.)

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THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC., 1908 AGAINST THE JUDGMENT AND DECREE DATED 30.08.2021 PASSED IN OS NO.5052/2019 ON THE FILE OF THE III ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE SUIT FOR PERMANENT INJUNCTION.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 14.07.2025 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THE COURT DELIVERED THE FOLLOWING:

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CORAM: HON'BLE MR JUSTICE S RACHAIAH

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HC-KAR

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CAV JUDGMENT

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(PER: HON'BLE MR. JUSTICE S RACHAIAH)

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This appeal has been filed by the appellant / plaintiff being aggrieved by judgment and decree dated 30.08.2021 in O.S No.5052/2019 on the file of III Additional City Civil and Sessions Judge, Bengaluru City (CCH-25).

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The ranks of the parties before the Trial Court will be considered henceforth for convenience.

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Factual matrix of the case:

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The case of the appellant is that, he is the absolute owner of the suit schedule property having purchased the same under the registered sale deed dated 03.12.2018, pursuant to which all the revenue records pertaining to the schedule property were mutated in the name of the appellant in the office of the BBMP.

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It is further case of the appellant that, the suit schedule property along with a larger extent of land, originally belonging to one Sri.Krishna Reddy. The said Sri.Krishna

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HC-KAR

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Reddy executed a registered general power of attorney dated 17.12.1993 in favour of one K.K.Uma Devi. Thereafter, the said K.K.Uma Devi as a general power of attorney holder, sold and conveyed the suit schedule property in favour of Smt.Nalini Rao by executing a registered absolute sale deed dated 16.02.1994. The said Smt.Nalini Rao conveyed the suit schedule property in favour of Sri.S.Ramalingam and K.Ponmudi by executing two registered absolute sale deeds dated 04.09.2004. Thereafter, the said Sri.S.Ramalingam and K.Ponmudi have sold and conveyed the said schedule properties to the appellant by executing a registered absolute sale deed dated 03.12.2018.

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The further case of the appellant is that, on 08.07.2019, the defendant had interfered with the peaceful possession and enjoyment of the schedule property with an intention to encroach and knock off the suit schedule property by bringing men and machinery to put up construction over the suit schedule property.

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HC-KAR

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On the contrary, the defendant entered appearance and filed the written statement by contending that the original owner of the land, namely, Sri.Krishna Reddy and their family members have executed an unregistered GPA in favour of one Sri.Lakshminarayanappa on 31.01.2005. The said Sri.Lakshminarayanappa sold and conveyed the entire property in favour of Sri.Narayana Raju by executing a registered absolute sale deed dated 19.02.2005. The said Sri.Narayana Raju has sold and conveyed the property measuring 14 guntas in favour of Sri.M.Shantha Raju by executing a registered sale deed dated 14.09.2006. Thereafter, the said Sri.M.Shantha Raju has sold the said property to Sri.K.Kiran and he obtained conversion order in respect of the property vide its order dated 15.01.2009. The said K.Kiran died on 23.10.2008 in a motor accident by leaving his mother, Smt.Kastoori as Class-1 legal heir. The said Smt.Kastoori had conveyed the property by way of gift deed dated 03.10.2013 to her daughter, who is the respondent herein.

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HC-KAR

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Heard Sri.R.B.Sangamesh, learned counsel appearing on behalf of Sri.H.S.Somnath, learned counsel for the appellant and Sri.Rajadithya Sadasivan, learned counsel for the respondent.

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It is the submission of learned counsel for the appellant that the Trial Court committed an error in not granting the relief and dismissed the suit of the appellant without properly appreciating the oral and documentary evidence on record. The Trial Court ought to have considered the title deeds of the appellant in respect of the suit schedule property. The Trial Court should have considered Ex.P24, which is a registered general power of attorney executed by Sri.Krishna Reddy and Sri.Srinivasa Reddy in favour of K.K.Umadevi. The Trial Court has failed to appreciate the vital documents executed by Sri.Narayana Raju and Sri.Shantha Raju confirming the title of the suit schedule property in favour of Smt.Nalini Rao, who is the vendor of Sri.S.Ramlingam and K.Ponmudi. The said documents, even though have been marked as Exs.P1 and P4, appreciation was not properly done.

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HC-KAR

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It is further submitted that, in fact, the Trial Court ought to have considered the possession of the property and also the sale deeds derived from K.K.Umadevi, who was the GPA holder of original owner. In fact, the GPA executed by the owner has not been cancelled and unregistered GPA was executed in favour of Sri.Lakshminarayanappa. The respondent had obtained the title deed subsequently after the sale deed of Smt.Nalini Rao. Therefore, the alleged title deed ought not to have been considered to substantiate the possession of the property. The Trial Court committed error in considering the same. Therefore, the judgment and decree of dismissal of the suit has to be set aside and the appeal may be allowed.

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Per contra, the learned counsel for the respondent justified the judgment and decree passed by the Trial Court and he further submitted that the identity of the property assumes greater significance while granting the relief of injunction. If the plaintiff or the appellant failed to prove the identity of the property, granting the relief of an injunction need not be necessary. Accordingly, the

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HC-KAR

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Trial Court has rightly considered the same and rejected the relief of the appellant.

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It is further submitted that the said K.Kiran had purchased the property from his vendor and subsequently he applied for conversion, the conversion order was effected vide its order dated 15.01.2009. Therefore, the appellant has no valid right, title and possession of the property. Therefore, the appeal has to be dismissed.

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To substantiate his argument, the learned counsel for the respondent relied on the following judgments:

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i) PRATIBHA SINGH AND ORS. v. SHANTI DEVI PRASAD AND ORS¹

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ii) N.G.SRIDHAR v. D.V.SUBRAMANI AND OTHERS² iii) KANTHAMMA AND ORS. v. V.VENKATESH³

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Making such submissions, learned counsel for the respondent prays to dismiss the appeal.

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1 Appeal (Civil) 7891-7892/2002 DD 29.11.2002

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2 WP Nos.36031 & 38760/2010

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3 Civil Revision Petition No.337/2014 DD 10.12.2019

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HC-KAR

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Having heard the learned counsel for the respective parties and also perused the findings of the Trial Court in dismissing the suit, the points which arise for my consideration are:

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i) Whether the appellant proves that right, title and possession of the property by virtue of title deeds?

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ii) Whether the respondent proved the title and possession of the property?

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iii) Whether the findings of the Trial Court in dismissing the suit is justified?

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The plaintiff in order to prove the case, got examined himself as P.W.1 and produced 23 documents as Exs.P1 to P23. The defendant examined himself as D.W.1 and got marked 21 documents as Exs.D1 to D21.

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Before adverting to the other facts of the case, it is necessary to refer the judgment of the Hon'ble Supreme Court in the case of M.KALLAPPA SETTY v. M.V.LAKSHMINARAYANA RAO⁴ , paragraph No.5 reads as under:

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4 (1973) 2 SCC 358

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“5. So far as the question of possession is concerned, as mentioned earlier, both the trial court and the first appellate court have accepted the plaintiff's case that he was in possession of the suit site ever since he purchased the same in 1947. This is essentially a finding of fact. That finding is based on evidence. The High Court, in our opinion, erred in coming to the conclusion that the possession of the plaintiff after the sale deed in his favour is not a relevant circumstance. We are of opinion that it is an extremely important circumstance. The plaintiff can on the strength of his possession resist interference from persons who have on better title than himself to the suit property. Once it is accepted, as the trial court and the first appellate court have done, that the plaintiff was in possession of the property ever since 1947 then his possession has to be protected as against interference by someone who is not proved to have a better title than himself to the suit property. On the findings arrived at by the fact finding courts as regards possession, the plaintiff was entitled to the second relief asked for by him even if he had failed to prove his title satisfactorily. Therefore, in our opinion, the High Court was not right in interfering with the judgment of the trial court as affirmed by the first appellate court regarding relief.”

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HC-KAR

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Further, it is also necessary to refer the judgment of the Co-ordinate Bench of this Court in the case of SIRIYALA AND OTHERS v. B.N.RAMESH⁵ , wherein the co-ordinate Bench of this Court held that Court should not decide the issue of title in a suit for injunction and the proper course is to relegate the plaintiff to the remedy of a fullpledged suit for declaration and consequential reliefs.

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On careful reading of the dictum of the Hon'ble Supreme Court, and also the co-ordinate Bench of this Court, it appears that, if the plaintiff proves that he is in possession of the property, then, his possession has to be protected as against interfering by someone, who is not proved to have better title than himself to the suit schedule property

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In the present case, the plaintiff is stated to have purchased the property bearing Site No.62 measuring East to West : 30 feet, North to South : 56 feet in all measuring 1680 square feet with AC sheet owned and possessed by one Sri.Krishna Reddy. The said Krishna Reddy along with his son Sri.Srinivas Reddy executed

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5 RSA No.2293/2006 DD 17.02.2010

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GPA dated 17.12.1993 which was duly registered before the office of the Sub Registrar in favour of K.K.Umadevi. The said K.K.Umadevi had sold the property in favour of Smt.Nalini Rao W/o B.G.Nagarajrao under the registered sale deed dated 16.02.1994.

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The said Smt.Nalini Rao had bifurcated the property into two portions, i.e. eastern portion and western portion and sold in favour of Sri.S.Ramalingam and K.Ponmudi under the registered sale deeds dated 04.09.2004. Both Sri.S.Ramalingam and K.Ponmudi getting the katha of the suit property in their respective names from the BBMP Bengaluru and they have jointly sold the schedule property in favour of the plaintiff under the registered sale deed dated 03.12.2018 and put the plaintiff into the possession of the suit property.

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The learned counsel for the respondent contended that Sy.no.13 measuring to an extent of 9 guntas is situated

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at Nyanappanahalli Village. The said property was owned by Sri.Krishna Reddy and Sri.Narayana Reddy. They executed the GPA in favour of

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Sri.Lakshiminarayanappa on 31.01.2005.

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Be that as it may, the defendant also admitted that the property is bearing Sy.no.13 which is the suit schedule property. The plaintiff also contending that a portion of the property i.e. Site No.62 situated within the same survey number, however, the number was given after phodi was effected. Therefore, it is mentioned as Sy.no.13/1. The Trial Court has committed error in appreciating the said aspect and passed the impugned order, in my considered opinion, it is not proper and appropriate for the reason that the property of the plaintiff was derived its title better than the defendant. In fact, the original owner of the property had executed GPA on 17.12.1993 in favour of K.K.Uma Devi. K.K.Uma Devi had sold the property on 16.02.1994. The defendant has not disputed the ownership of the property of which the GPA was executed in favour of K.K.Umadevi.

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When the name of the original owner is not disputed and the property has been conveyed in favour of Smt.Nalini Rao on 16.02.1994 itself, the title of the property did not exist as on the date of executing the GPA in favour of

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Sri.Lakshminarayanappa who is said to be the GPA holder of Sri.Krishna Reddy in respect of the same property. Mere changing of the survey number and got the sale deed executed cannot stated to be valid conveyance. In fact, the defendant has failed to substantiate the possession of the property. The Trial Court has misconceived the facts and also the factum of possession opined that, the plaintiff has not made out a case to grant the relief. The said findings are erroneous and untenable. Therefore, the judgment of dismissal of the suit is not sustainable.

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Though, the learned counsel for the respondent relied on

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the judgments stated supra, all the judgments would indicate that dispute in respect of identity of the property. In the present case, the plaintiff has proved the title and possession of the property. In fact, the defendant tried to interfere with the possession of the property having ambiguity in respect of his property. Therefore, the judgments of which he relied would not enure any benefit to him.

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HC-KAR

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In fact, the plaintiff has proved the title and possession of the property through valid and legal documents. The GPA was executed to K.K.Uma Devi much earlier than the said Lakshminarayanappa. Before the said Lakshminarayanappa could get the GPA in respect of the same property, the said K.K.Uma Devi had sold the property in favour to Smt.Nalini Rao and handed over the possession of the property. The said Smt.Nalini Rao got executed the confirmation affidavits from one Sri.Narayana Raju and Sri.Shantha Raju in respect of the schedule property. Therefore, the possession of the property of the plaintiff has been derived and proved through the title deeds. Hence, the findings of the Trial Court in dismissing the suit cannot be sustained.

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In the light of the observations made above, it is necessary to answer the points which arose for my consideration, which is as under:-

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Point No.(i) - “ Affirmative ” Point No.(ii) - “ Negative ”

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Hence, I proceed to pass the following:

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HC-KAR

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ORDER

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i) The appeal is allowed.

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ii) The judgment and decree dated 30.08.2021 passed in O.S No.5052/2019 by the III Additional City Civil and Sessions Judge, Bengaluru City (CCH-25), is set aside.

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iii) The plaintiff is entitled for relief of permanent injunction as prayed for in the suit.

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iv) No order as to costs.

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v) The Registry is directed to draw the decree accordingly.

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Sd/(S RACHAIAH) JUDGE

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UN

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List No.: 2 Sl No.: 56

Sri G K Harish Rajan v. Smt Hema Reddy

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Sri G K Harish Rajan v. Smt Hema Reddy

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