Sri Srinivas S Gowda Vs Smt Hemalatha M

SRI SRINIVAS S. GOWDA S/O LATE SANJEEVAIAH, AGED ABOUT 67 YEARS, RESIDING AT NO.15, GAYATHRI H.B.C.S. LAYOUT, NEAR SHANKAR MUTT, BASAVESWARANAGARA, BENGALURU-560079.

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Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA

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SRI H.S. PADMARAJU S/O LATE SANJEEVAIAH, AGED ABOUT 59 YEARS, RESIDING AT NO.15, GAYATHRI H.B.C.S. LAYOUT, NEAR SHANKAR MUTT, BASAVESHWARANAGARA, BENGALURU-560079.

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…APPELLANTS

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(BY SRI RAJESWARA P.N., SRI MANOHAR B., SRI SREENATH C.S. AND SMT. S. AISHWARYA, ADVOCATES)

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AND:

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SMT. HEMALATHA .M D/O LATE S. MUDDAVEERAPPA, AGED ABOUT 54 YEARS, R/AT NO.456, 10^TH MAIN, 3^RD STAGE, 4^TH BLOCK,

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WEST OF CHORD ROAD, BENGALURU-560079.

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SRI K.M. LOKESH S/O K. MALLAIAH, AGED ABOUT 48 YEARS, R/A MYLARALINGESWARA NILAYA, P & T SUB ROAD, HOLALUKERE MAIN ROAD, CHITHRADURGA DISTRICT-577526.

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SMT. K.B. JAYAMMA W/O LATE A.T. DASAPPA AGED ABOUT 60 YEARS, R/AT NO.689, NEAR NETHRAVATHI HOTEL, ANJANEYA BADAVANE, DAVANAGERE-577001.

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…RESPONDENTS

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(BY SRI G.B. NANDISH GOWDA AND V.N. SHANKAREGOWDA, ADVOCATES FOR R-1 REP. BY GPA HOLDER; V/O. DATED 27.06.2024 NOTICE TO R-3 IS HELD SUFFICIENT; V/O. DATED 17.01.2025 NOTICE TO R-2 IS DISPENSED WITH)

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THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 29.02.2024 PASSED IN O.S.NO.4938/2018 ON THE FILE OF XXXIII ADDITIONAL CITY CIVIL JUDGE, BANGALORE CITY., DECREEING THE SUIT FOR PERMANENT INJUNCTION.

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THIS APPEAL COMING ON FOR ORDER, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA

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ORAL JUDGMENT

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This regular first appeal is filed by defendant Nos.1 and 2 assailing the judgment and decree dated 29.02.2024 passed in O.S. No.4938/2018 on the file of XXXIII Additional City Civil and Sessions Judge, Bengaluru (CCH-33) (hereinafter referred to as ‘Trial Court’ for short), whereby the Trial Court decreed the suit for permanent injunction in favour of the plaintiff-respondent No.1, restraining the present appellants and respondent Nos.2 and 3 from interfering with her peaceful possession and enjoyment of the property bearing Site No.752/C, Katha No.945/96/752/C situated at Nagarabhavi Village, Yeshwanthapur Hobli, Bengaluru (hereinafter referred to as the ‘suit property’ for short) formed in the approved layout of Sri Vinayaka Housing Building Cooperative Society Limited (‘society’ for short).

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Plaint averments:

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The plaintiff asserted that she is the absolute

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owner and in lawful possession of the suit property

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situated in the BDA approved layout formed by Society. The suit property was originally allotted to her mother, Smt. Puttanarsamma, under allotment letter dated 17.05.1997 and subsequently, conveyed through a registered sale deed dated 26.02.1999 executed by the society. In turn, her mother executed a registered gift deed dated 17.11.1999 transferring the suit property in favour of the plaintiff.

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It is stated that pursuant to the said transfer,

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the katha has been mutated in her name; she has obtained building licence and sanctioned plan, completed construction and secured electric and water connections and trade licence. She is continuously paying property tax and has been in peaceful, undisturbed possession since the date of purchase. The plaintiff averred that the defendants, without any semblance of right, attempted to trespass and obstruct her peaceful possession.

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That defendants’ claim is based on an alleged

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grant of 4 acres in Survey No.17 of Nagarabhavi Village to one Chikkathimmaiah, which had long been declared bogus by the Special Deputy Commissioner's order dated 21.09.2007, which has attained finality after dismissal of the writ petition, writ appeal, and SLP. The plaintiff sought a decree of permanent injunction restraining the defendants from interfering with her lawful possession and enjoyment of the suit property.

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Written statement averments:

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The defendants denied the plaintiff's title and possession, contending that Survey No.17 of Nagarabhavi Village was a Government Gomal land and that 4 acres thereof had been granted to Sri Chikkathimmaiah in the year 1954 under Saguvali Chit. They claim to have derived their rights through the said grantee, whose successors allegedly sold portions of the granted land to Dr. Ramesh and Smt. Rekha Ramesh under registered sale deed dated 08.06.1986, from whom the defendants in turn purchased

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various sites, including Site No.299 under the registered sale deed dated 29.12.2003. It is contended that the suit property never came into existence in any approved BDA layout, as the society's modified plan was kept in abeyance by BDA and that the plaintiff's documents were fabricated. They averred that in O.S. No.1717/1998 filed by Chikkathimmaiah against the society, temporary injunction were granted on 29.01.1999 and 17.11.1999 and a status quo order was granted on 02.03.1999 in MFA by this Court that the plaintiff's purchase and construction violated the interim order granted by the Courts. They further relied on the pending RFA No.2196/2022 wherein a similar status quo order continues. According to the defendants, the Deputy Commissioner's order declaring the grant was challenged and in the SLP, it had specifically stated that all contentions would be decided in the Trial Court in O.S. No.1717/1998. It is specifically contended that the plaintiff's suit for bare injunction is not maintainable in the face of serious title dispute and alleged

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violation of subsisting Court orders and prayed for dismissal of the suit.

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The Trial Court, upon consideration of the oral

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and documentary evidence, answered issue Nos.1 and 2 in the affirmative, held that the plaintiff has proved the lawful possession and enjoyment of the suit property and the defendants have interfered with the possession without any lawful authority and while answering issue Nos.3 and 4 held that the plea that the suit property does not exist or that the suit is hit by status quo orders in O.S. No.1717/1998 is untenable. The Trial Court by the judgment and decree decreed the suit. Aggrieved by which, the defendants are before the Court.

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Heard the learned counsel appearing for the

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appellants and the learned counsel appearing for the respondent.

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Contention of the appellants:

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Learned counsel for the appellants submits that

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the impugned judgment and decree of the Trial Court is contrary to law and evidence on record. It is urged that the suit property claimed by the respondent-plaintiff never

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came into existence in any sanctioned BDA layout, and therefore, the entire suit is founded upon a non-existent and fictitious property. Learned counsel submits that the land in Survey No.17 of Nagarabhavi Village, measuring 4 acres, was a Gomal land validly granted to Sri Chikkathimmaiah under a Saguvali Chit dated 03.11.1954 (Ex.D8), and the appellants traced their title through a continuous chain from the said grantee. The said Chikkathimmaiah had filed O.S. No.1717/1998 before the Civil Court in respect of the very same land, and in that suit, the Trial Court granted temporary injunction on 29.01.1999 and 17.11.1999 and thereafter, ordered status quo in MFA No.579/1999 on 02.03.1999 (Ex.D14), protecting his possession over the entire extent. It is

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submitted that in RFA No.2196/2022, arising out of the said suit, this Court has again directed the parties to maintain status quo , and the said order continues to be in force. It is therefore submitted that alienation or sale in favour of the plaintiff over the suit property is indirect violation of the subsisting orders of this Court and the Trial Court ought to have taken judicial notice of the same. It is contended that the layout plan on which the plaintiff bases her claim was never approved by the BDA. The original plan of 1992 did not contain any site numbered as 752/C, and the modified plan subsequently submitted by the Society was kept in abeyance and later quashed in W.P. No.31575/2003 (Ex.D38). As such, there is no valid or existing plan under which the plaintiff would claim allotment. It is submitted that the Trial Court completely misdirected itself in treating the alleged allotment letter, sale deed and gift deed are genuine as genuine, even though they are founded upon a layout that had itself been annulled.

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It is also contended that Ex.P32A, the order of

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the Deputy Commissioner relied upon by the plaintiff, holding that the grant in favour of Chikkathimmaiah was bogus, cannot be relied upon as the Apex Court in SLP No.16776/2015 under Ex.D22 has specifically stated that all the questions have to be decided in the Trial Court in O.S. No.1717/1998 and thus, the Deputy Commissioner's order has not attained finality and cannot invalidate the original grant in favour of Chikkathimmaiah. It is submitted that Ex.D.38 and Ex.D39 show that only the order dated 15.12.2003 was set aside, and the earlier order dated 18.11.2003 is still intact and thereby subsisting the original grant. Learned counsel submits that the plaintiff’s alleged documents namely the allotment, sale deed, gift deed, khatha and building plan were all created in violation of the Court's subsisting injunction and status quo orders, and therefore, confer no right or title. It is argued that the Trial Court erred in relying upon Ex.P75, a sale deed executed by the appellants in favour of one

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Smt. Thara for Site No.752/B, to infer that Site No.752/C existed. Learned counsel submits that the existence of Site No.752/B cannot invalidate a fictitious Site No.752/C, and such interference is legally impermissible. It is argued that the Trial Court failed to appreciate that a suit for bare injunction is not maintainable when the title is seriously disputed, and the Court ought to have directed the plaintiff to seek for a declaration of title before granting any injunction. Reliance is placed on the decision of the Apex Court in the case of Anathulla Sudhakar vs P. Buchi Reddy (dead) by L.Rs and Others¹ (Anathulla Sudhakar) to contend that the said decision squarely applies to the facts of this case.

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Learned counsel also relies upon the following decisions:

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i. All Bengal Excise Licensees’ Association vs.

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Raghabendra Singh and others² (All Bengal Excise Licensees’) to contend that an act done in violation of

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1 (2008) 4 SCC 594

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2 (2007) 11 SCC 374

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Court orders is non-est in law and liable to be set aside

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and further emphasizes that no person can claim rights in contravention of a subsistence judicial order.

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ii. Anita International vs. Tungabadra Sugar Works Mazdoor Sangh and others³ (Anita

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International).

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iii. Kolkata Metropolitan Development Authority vs. Pradip Kumar Ghosh and others⁴ (Kolkata Metropolitan Development Authority) to contend that unauthorised construction made without lawful sanction or in contravention are illegal and cannot be protected by Courts merely on the basis of long possession or equities.

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iv. Surjit Singh and others vs. Harbans Singh

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and others⁵ (Surjit Singh) to contend that the transfer made in violation of an injunction or a status quo order is

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void and does not confer title, as Courts must not permit

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parties to benefit from their own contemptuous conduct.

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3 (2016) 9 SCC 44

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4 (2018) 13 SCC 623

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5 (1995) 6 SCC 50

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Learned counsel therefore submits that the Trial Court, by ignoring the binding status quo orders, misconstruing the material evidence, and relying upon inadmissible documents, has rendered a perverse and unsustainable decree. Accordingly, it is submitted that the suit has to be dismissed.

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Contention of the respondents:

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Per contra , learned counsel for the respondentplaintiff strongly supports the judgment and decree passed by the Trial Court and submits that the findings are well founded both on facts and law. It is argued that the plaintiff is the absolute owner in lawful possession of the suit property, which situated within the approved layout of the society. The property was validly allotted to her mother, Smt. Puttanarasamma on 17.05.1997, thereafter conveyed by a registered sale deed dated 26.02.1999, and thereafter, Puttanarasamma gifted the suit property to the plaintiff under a registered gift deed dated 17.11.1999

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(Ex.P2). It is submitted that the khata was duly transferred in the plaintiff's name, she has been paying property tax continuously, and on 08.11.2017, the BBMP sanctioned building plan and licence under Exs.P3, P18 to 22, under which she has completed the construction and obtained electricity and water connections. It is submitted that these documents, being official records issued by the competent authorities, establish an unbroken chain of lawful possession. Learned counsel further contends that the appellants’ entire defence rests on a fictitious long discredited grant in favour of one Chikkathimmaiah, which has been conclusively held to be bogus and fabricated by the Special Deputy Commissioner in the proceedings culminating in Order dated 21.09.2007 (Ex.P32a). The said Chikkathimmaiah had filed O.S. No.1717/1998 (Ex.P74) against the society, which was dismissed on 29.11.2022 and all subsequent writ petitions, writ appeals and SLP No.21659/2023 has been dismissed, thereby giving finality to the finding that the alleged grant was

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non-existent. Consequently, the appellants, who claim through Chikkathimmaiah, have no subsisting right or title in Survey No.17.

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To the plea of status quo , learned counsel submits that the interim orders dated 29.01.1999, 17.11.1999 and 02.03.1999 passed in O.S. No.1717/1999, and MFA No.579/1999 were in the nature of temporary injunctions, and subsequently, the suit came to be dismissed. Further, the plaintiff was not a party to those proceedings, and therefore any interim order cannot bind her. It is further submitted that pendency of RFA No.2196/2022, arising out of O.S. No.1717/1998 has no legal consequence upon the plaintiff's independent title and possession, particularly when the prior grant and claim of Chikkathimmaiah has been adjudicated as void. It is further submitted that the layout in question stands duly approved by the BDA and Ex.D39, though relied upon by the appellants, in fact supports the plaintiff since it records that BDA's earlier order keeping the modified plan in

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abeyance was set aside by the Division Bench in W.A. No.1337/2004 on 22.06.2007, thereby reaffirming the validity of the Society's plan and its sites. It is submitted that the defendants’ contention that Site No.752/C never existed is contradicted by their own admission, as DW.1 candidly admitted execution of Ex.P75, a registered sale deed dated 22.04.2022 in favour of Smt. Thara for Site No.752/B, immediately adjoining the plaintiff's site. Learned counsel submits that this amounts to a clear admission of the existence of the 752-series sites, thereby estopping the appellants from denying the genuineness of the layout. Learned counsel emphasized that the Special Deputy Commissioner's Order at Ex.P32A has attained finality and the subsequent proceedings initiated by the appellants have also been dismissed, hence their challenge does not survive. The plea that the plaintiff's construction violates any order of this Court is unfounded, as the status quo orders relied upon relate exclusively to the grant dispute and not to the plaintiff's BDA-approved site.

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Learned counsel submits that the Trial Court meticulously appreciated the oral and documentary evidence, rightly held that the plaintiff is in lawful possession and the defendants attempted to interfere with such possession interference and therefore, decreed the suit for permanent injunction. The defendants have not produced any credible evidence to establish their alleged title, identity of the property or possession, and their claim is based solely on the cancelled and forged documents. The decree is squarely supported by the principle laid down in Anathulla Sudhakar’s case that a suit for injunction is maintainable when possession is proved and title is clear. Learned counsel submits that the judgment and decree of the Trial Court does not suffer from any perversity, infirmity or irregularity warranting any interference.

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Having heard the learned counsel for the parties

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at length, upon perusal of the entire material on record, including the pleadings, oral and documentary evidence,

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and the judgment of the Trial Court, the following points

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arise for consideration before this Court:

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“i. Whether the plaintiff has established her lawful possession and enjoyment of the suit property?

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ii. Whether the defendants have proved that the plaintiff's claim is untenable on the ground that Site No.752/C never existed in any sanctioned BDA layout or that the plaintiff's claim is hit by status quo orders in O.S. No.1717/1998 and RFA No.2196/2022?

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iii. Whether the suit for permanent injunction was maintainable in the absence of a prayer for declaration of title, in view of the defendants’ challenge to the plaintiff's ownership and identity of the property?

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iv. Whether the Trial Court has properly appreciated the evidence on record and rightly decreed the suit and whether the same warrants any interference by this Court?”

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Point Nos.1 and 2 are taken up together.

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The core question before this Court is whether the plaintiff has proved her lawful possession over the suit property and whether such possession is affected by the status quo orders in O.S. No.1717/1998 or RFA No.2196/2022. The plaintiff's case rests upon a chain of title and possession:

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i. Allotment letter dated 17.05.1997 (Ex. P5) issued by the society in favour of plaintiff’s mother Smt. Puttanarasamma;

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ii. Registered sale deed dated 26.02.1999 (Ex.P5a) executed by the society conveying absolute ownership in favour of Puttanarasamma.

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iii. Registered gift deed dated 17.11.1999 (Ex.P2) executed by plaintiff’s mother in favour of the plaintiff.

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iv. Khatha Transfer Certificate (Ex. P9 to 11) issued by the CMC, Rajarajeshwari Nagar in 2004 and subsequently by BBMP in 2011.

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v. Building plan and licence issued by BBMP on 08.11.2017 (Ex.P3, Exs.P18 to P22).

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vi. Tax paid receipts (Exs.P58 to P60)

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All these documents are produced by the

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plaintiff to prove her title and possession. On the other hand, the defendants’ claim is founded on a grant of 4 acres in Survey No.17 of Nagarabhavi Village in favour of one Chikkathimmaiah said to have been made in the year 1954 (Ex.D8). They also relied upon the subsequent sale deeds (Ex.P37A, Ex.P38 and Ex.P39) executed by Chikkathimmaiah and his successors, through whom they claim ownership.

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The material on record reveals that the Special Deputy Commissioner, Bengaluru after a detailed enquiry under Section 136 (3) of the Karnataka Land Revenue Act, 1964 (‘the Act’ for short) by order dated 21.09.2007 (Ex.P32a), held that the alleged grant and saguvali chit in favour of Chikkathimmaiah were bogus, fabricated and not traceable to any official records. This order was upheld in writ petition, in writ appeal and has attained finality in SLP

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No.21659/2023, which was dismissed. Though in SLP No.21659/2023, liberty was granted to decide all contentions in the Trial Court in O.S. No.1717/1998 for grant of 4 acres in survey No.17, the defendants also relied upon the status quo orders passed in MFA No.579/1999 against the injunction order granted in O.S. No.1717/1998 which was preferred by the society. In the said MFA, there was an order of status quo dated 02.03.1999. It is seen that in O.S. No.1717/1998 filed by Chikkathimmaiah against the society, the Trial Court had granted an order of temporary injunction on 29.01.1999 and 17.11.1999, which was later modified in MFA No.579/1999 (Ex.D14) by directing both the parties to maintain status quo as on 02.03.1999 in respect of a larger extent of 4 acres in Survey No.17 of Nagarabhavi Village. The said order was an interlocutory order.

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The material placed before the Court shows that the society had already completed the sale transaction in favour of Puttanarasamma by executing a registered sale

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deed dated 26.02.1999 (Ex.P5a), which was prior in point of time or to the order of status quo dated 02.03.1999. Thus, the transaction creating ownership in favour of Puttanarasamma had already been completed and the order of status quo passed thereafter cannot retrospectively invalidate a concluded transfer. It is also pertinent to clarify that the order of temporary injunction granted in O.S. No.1717/1998 on 29.01.1999 and 17.11.1999 were only orders restraining the society not to interfere with the peaceful possession of the plaintiff therein, i.e., Chikkathimmaiah over the agricultural extent of 4 acres in Survey No.17 of Nagarbhavi Village. Thereafter, in MFA No.579/1999 arising there from, this Court on 01.03.2004 (Ex. D14) directed the parties to maintain ‘ status quo in respect of possession of the said property’. Thus, the status quo order merely confirmed the existing possession between the parties and did not prohibit alienation of any specific site, nor did it restrain

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the execution of the registered documents that had already been completed before that date.

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The sale deed in favour of Smt.

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Puttanarasamma was executed on 26.02.1999, which was prior to the status quo order dated 02.03.1999 and the subsequent gift deed dated 17.11.1999 (Ex.P2), is in favour of the present plaintiff, was an internal transfer arising out of ownership. The order of status quo being related only to the existing position of the parties in O.S. No.1717/1998, cannot retrospectively affect a completed sale that had already been completed earlier, nor can it be extended to third parties who were not parties to the said proceedings.

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It is further borne from the records that BDA by endorsement dated 31.07.2003 (Ex.D19) had kept the modified layout plan of the society in abeyance. However, in W.A. No.1337/2004, the Division Bench, by an order dated 22.06.2007 (Ex.D39), set aside the abeyance order

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and restored the approval of the layout in favour of the society. The relevant portion of the order in W.A. No.1337/2004 is extracted as below:

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“8. On carefully going through the facts and the records referred to above, we are of the view that the impugned classificatory order of the learned single Judge that “the approved Plan of the Society in the year 1992 is kept undisturbed except Sy.No.17” grants a relief which is in excess of the prayer made in the writ petition. The question of existence of Sy.No.143 measuring 4 acres is in serious dispute and it is a subject-matter of a pending suit.

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9. In that view of the matter, we do not wish to express any opinion and allow the parties to agitate their rights before the Civil Court. Accordingly, the impugned order dated 15.12.2003 is set aside. The Appeal is allowed.”

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(emphasis supplied)

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This order by the Division Bench conclusively recognized the validity of the layout and allotments made thereunder, including the allotment to

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Smt. Puttanarasamma. Consequently, the ownership of

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Puttanarasamma, and by succession through the gift deed, that of the plaintiff stood recognized. It is to be noted that the land in dispute in O.S. No.1717/1998 pertained to the 4 acres of agricultural land, whereas the present litigation pertains to a converted developed BDA layout site, which is a distinct property in both character and existence. Therefore, even on merits, the alleged status quo order has no bearing on the plaintiff's independent title and possession.

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In light of these facts and circumstances, this Court holds that the sale deed dated 26.02.1999 (Ex.P5a) in favour of Puttanarasamma and the subsequent gift deed 17.11.1999 (Ex.P2) are not violative of any injunction or status quo order passed in O.S. No.1717/1998. The said orders were limited to preserving possession between the original litigating parties and they cannot invalidate a prior completed transfer or subsequent intra transfers. The order passed by the Division Bench in Writ Appeal No.1337/2004 restores the layout approval further

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fortifying the legitimacy of the transaction. Equally important is the defendant's admission through Ex.P75, a registered sale deed executed by defendant No.1 himself in favour of Smt. Thara on 22.04.2022, conveying Site No.752/B, the existence of that sale and identification of Site No.752/B in the very same 752 series completely undermines the plea that the ‘Site No.752/C does not

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exist’ and accordingly, point Nos.1 and 2 are answered.

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Point Nos.3 and 4 are taken up together:

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The appellants contend that the suit for bare injunction was not maintainable since the title was disputed. However, this Court finds that the plaintiff's title and possession are supported by unimpeachable documentary evidence, allotment, registered conveyance, mutation, sanction plan and continuous tax payment. The defendants’ claim, being founded on a cancelled and discredited grant, does not confer any genuine or bona fide title in the present suit.

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In Anathullah Sudhakar’s case, the Apex

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Court held that where possession is established and the plaintiff's title is not in serious doubt, a declaration is unnecessary and a suit for injunction is maintainable. Applying the said principle, as possession is proved and title is clear, the contention of the appellants stands rejected.

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This Court independently examined the oral testimony of PW.1 and DW.1 and the voluminous documents marked on both sides. The Trial Court has carefully weighed the evidence. The reasoning of the Trial Court is supported by Ex.P32a-Deputy Commissioner's order canceling the grant, Ex.P74 judgment in O.S. No.1717/1998 dismissing Chikkathimmaiah's case, Ex.P39 Division Bench order restoring BDA layout approval and Ex.P75 admission showing the existence of 752 series. These documents collectively establish the plaintiff's title chain is valid and the defendants’ claim is untenable. This

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Court finds no perversity or legal infirmity in the Trial Court's findings.

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The appellants’ reliance on the decisions in the cases of All Bengal Excise Licensees, Kolkata Metropolitan Development Authority, Anita

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International and Surjit Singh, stated supra are distinguishable and not applicable to the present facts. In the present case, the status quo order was as to the possession of the 4 acres of land and the sale deed in favour of the plaintiff was on 26.02.1999 which preceded the 02.03.1999 status quo order. Further, the layout stands approved, abeyance was set aside in writ appeal (Ex.D39) and the BBMP sanctioned the building approval plan. In light of the above, those decisions are not applicable to the present facts. The plaintiff's lawful possession is established, interference by the defendants is proved, and the suit for injunction is rightly decreed by the Trial Court warranting no interference. Point Nos.3 and 4 answered accordingly and this Court pass the following:

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