Ramanna Since Dead by Legal Representatives Vs Smt Neelavathamma (Husband'S Name Not Known)

SRI. CHETHAN B., ADVOCATE FOR RESPONDENT NO.8; NOTICE SERVED ON RESPONDENT NOS.1 TO 4, 7(a) AND 7(b); VIDE ORDER DATED 24.11.2011, SERVICE OF NOTICE TO RESPONDENT NO.6 IS HELD SUFFICIENT)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 03.12.2009 PASSED IN O.S.NO.2741/2005 ON THE FILE OF THE XVIII-ADDL. CITY CIVIL JUDGE, BANGALORE, DISMISSING THE SUIT FOR PERMANENT INJUNCTION.

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

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CORAM: HON'BLE MR. JUSTICE R. NATARAJ

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ORAL JUDGMENT

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The legal representatives of the deceased plaintiff have filed this appeal challenging the judgment and decree dated 03.12.2009 passed by the XVIII Additional City Civil Judge, Bengaluru city in O.S.No.2741/2005 by which, the suit for perpetual injunction was dismissed.

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The parties shall henceforth be referred to as they were arrayed before the Trial Court.

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(i) The suit in O.S.No.2741/2005 was filed for perpetual injunction to restrain the defendants from interfering with the plaintiffs’ peaceful possession and enjoyment of the suit property and from demolishing the existing compound in any manner. The suit property is bearing No.35/6, Khata No.269, situated at Yelachenahalli Village, Uttarahalli Hobli, Bengaluru South Taluk, measuring East to West 63 feet and North to South 25 feet, comprising a sump, pump set and enclosed by a compound.

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(ii) The plaintiff claimed that he was the owner of the aforesaid property, having purchased it in terms of a sale deed dated 11.03.2005. He claimed that the land bearing Sy.No.20/4 of Yelachenahalli village belonged to Sri. M. Muniyappa who had formed residential sites which were assessed to tax by the erstwhile City Municipal Council, Rajarajeshwari Nagar. The plaintiff claimed that he had earlier purchased the above said property from Sri. M. Muniyappa in terms of an agreement of sale dated 26.03.1999, whereunder he was placed in

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possession of the property. He claimed that from the date of the said agreement of sale, he was in peaceful possession and enjoyment of the property, and had enclosed it by a compound and had also laid a water sump and installed an electric motor. He claimed that due to some inconvenience, the sale was not completed and after a hiatus, a sale deed was executed on 11.03.2005. He alleged that the defendants were strangers who attempted to interfere with his possession of the property. He claimed that during the last week of March, 2005 the defendants assembled near the property and attempted to demolish the compound which was thwarted by him. He claimed that he approached the jurisdictional police who advised him to approach the Civil Court. The plaintiff therefore, filed the instant suit.

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(iii) The defendant Nos.1 to 4, 6 and 8 contested the

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suit and filed a common written statement. They claimed that land bearing Sy.No.20/3 situated at Yelachenahalli Village measuring 02 acres 09 guntas belonged to Sri. Ramaiah Reddy, the father of defendant Nos.1, 3, 5 and 7 and the grandfather of defendant Nos.2, 4, 6 and 8. They claimed that land bearing

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Sy.No.20/4 lay on the southern side of Sy.No.20/3. They claimed that there was a dispute among the children of Sri. Ramaiah Reddy which was subsequently resolved and Sy.No.20/3 fell to the share of defendant Nos.1, 3, 5 and 7. As a result of compromise recorded in O.S.No.18/1988, they claimed that no agricultural operations were carried on in Sy.No.20/4 of Yelachenahalli village.

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(iv) They claimed that the owner of land bearing Sy.No.20/4 had encroached into a portion of Sy.No.20/3. The defendants requested the said Sri. M. Muniyappa to hand over the encroached portion, which he refused. The defendants therefore, filed an application before the Assistant Director of Land Records seeking survey and demarcation of Sy.No.20/3 and Sy.No.20/4 to identify the encroached area. The Assistant Director of Land Records issued notice and conducted a chain survey on 04.04.2005. However, the survey could not be effectively conducted due to hindrance caused by several construction in Sy.No.20/4. The survey was therefore adjourned to 11.04.2005 and all persons interested were informed that a survey would be conducted on 11.04.2005 by

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adopting the plain table method. Later a survey was conducted on 11.04.2005 in the presence of occupants of Sy.No.20/3 and Sy.No.20/4 and it was noticed that the occupants of Sy.No.20/4 had encroached into an extent of 05 guntas in Sy.Nos.20/3. The survey authorities prepared a sketch identifying the encroached area. They claimed that though the plaintiff and Sri. Anniyappa, son of Sri. Muniyappa were present, they refused to sign the Mahazar.

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(v) They further claimed that the plaintiff thereafter attempted to put up a compound in Sy.No.20/3 and when the defendants resisted, the plaintiff filed the present suit. They therefore alleged that the plaintiff had not approached the Court with clean hands, as he has suppressed the aforesaid facts. They alleged that there was no structure or compound around the schedule property.

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Based on these rival pleadings, the Trial Court framed the following issues:

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"1) Whether plaintiff proves the existence of the property as described in the plaint schedule?

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2) Whether plaintiff proves that he is the owner in possession of the property described in the plaint schedule as pleaded?

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3) Whether the contested defendants prove that any portion of the suit property has been allotted to the share of defendants 1,3,5, and 7 in the partition referred to in the written statement?

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4) Whether plaintiff is entitled for the relief of perpetual injunction prayed?"

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The deceased plaintiff was examined as PW.1 and he marked Exs.P1 to P10. Defendant No.4 was examined as DW.1 and he marked Exs.D1 to D5. Based on the oral and documentary evidence, the Trial Court held that the plaintiff ought to have filed a suit for declaration as the defendants claimed that the property claimed by the plaintiff lay in a portion of their land. It further held that though the plaintiff claimed that he was put in possession of the suit property under the agreement of sale dated 26.03.1999, the said agreement was not sufficiently stamped. It also held that PW.1 admitted that his wife had filed a suit against the defendants in O.S.No.3071/2005, which fact was not disclosed by the

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plaintiffs. The Trial Court held that the defendants were the owners of land bearing Sy.No.20/3 which lay adjacent to Sy.No.20/4 and that site No.35/6 claimed by the plaintiff was allegedly formed in Sy.No.20/4. It therefore held that it was necessary to identify whether site No.35/6 lay within Sy.No.20/4 or Sy.No.20/3, in view of the allegation that the plaintiff's vendor had encroached into 05 guntas in Sy.No.20/3. It further held that even if a Court Commissioner was appointed, it was difficult to ascertain whether there was any encroachment in Sy.No.20/3. Thus, the suit was dismissed in terms of the impugned judgment and decree.

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Being aggrieved by the said judgment and decree,

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the legal representatives of plaintiff have filed this appeal.

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(i) The learned counsel for the legal

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representatives of plaintiff submitted that the plaintiff is in possession of a site formed in Sy.No.20/4. He contends that the defendants are not concerned with Sy.No.20/4 but are concerned with Sy.No.20/3. He therefore, contends that the Trial Court must have decreed the suit for perpetual injunction as the plaintiff had title to the property. He contends that if the

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possession of the defendants in Sy.No.20/3 was disturbed then they ought to have filed a suit for declaration of their title. He thus contends that the Trial Court committed an error in dismissing the suit on the ground that there was a cloud on title. He submits that there was no cloud on title as the defendants did not claim any portion of land in Sy.No.20/3.

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(ii) He contends that the suit was filed for perpetual injunction based on title and the plaintiff did everything to establish his title and produced all the material documents for the aforesaid purpose. He therefore submits that the Trial Court committed an error in dismissing the suit on a technical ground.

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(iii) He further contends that the defendants stated that the plaintiff had encroached into a portion of land in Sy.No.20/3 based on the report submitted by the Assistant Director of Land Records. He contends that no steps were taken before the Trial Court to appoint a Court Commissioner to identify and demarcate the boundaries of Sy. Nos.20/3 and 20/4. He submits that the Trial Court committed an error in placing reliance on the said report without subjecting the officer

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concerned to cross-examination. He further submits that Trial Court was not justified in holding that in a suit for injunction the question of encroachment cannot be examined. He therefore submits that the impugned judgment and decree is palpably wrong and warrants interference.

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(iv) He further submitted that the entire extent of 2-09 acres of land in Sy.No.20/3 is acquired by the State Government for the Bank Officers House Building Cooperative Society and possession is handed over to the society. He therefore contends that the defendants do not have any subsisting right in land bearing Sy.No.20/3 as society has already formed sites and allotted to its members.

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Per contra, the learned counsel for defendant No.5 submits that the suit is not maintainable in view of Section 135 of the Karnataka Land Revenue Act, 1964. He contends that Exs.D4 and D5 established that there was encroachment of land in Sy.No.20/3 by the owner of Sy.No.20/4 and therefore, the plaintiff ought to have challenged the survey proceedings in the manner known to law. In the face of Exs.D4 and D5, the plaintiff cannot maintain the suit for injunction. He does not

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dispute the acquisition of Sy.No.20/3 and formation of sites but contends that the defendants are still in possession of the property.

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I have considered the submissions of the learned counsel for the plaintiff as well as the learned counsel for the respondents. I have also perused records of the Trial Court, its judgment and considered the arguments canvassed in this appeal.

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The only point that arises for my consideration is:

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"Whether the suit against the defendants is maintainable in view of Section 135 of the Karnataka Land Revenue Act, 1964 and whether it survives for consideration?

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The cross-examination of DW.1 reads as follows:

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"Government has issued acquisition notification for acquiring the land in Survey No.20/3 but the possession of the land is not yet taken as the acquisition proceedings was challenged in Hon'ble High court. Pahani in respect of land in Survey No.20/3 is not written since the year 2006 as the land is handed over to Bank officers, House Building Co-operative society. It is true that special Deputy

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Commissioner handed over the possession of the land in Survey No. 20/3 of Yelachenahali village in pursuance of orders of Hon'ble High court of Karnataka to the Bank Officers House Building co operative society and after wards the Pahani is changed in the name of Bank officers House Building Co-operative society. It is false to suggest that we have not challenged handing over possession of the land to Bank officers House Building Co-operative society as per the court order. It is true that as per the notification for acquisition at Ex.P6 the entire land measuring 2 acres 9 guntas in Survey No. 20/3 belonging to Ramaiah Reddy was acquired by Government. It is false to suggest that the acquisition officer handed over the possession of our land in Survey No.20/3 to Bank Officers House Building Co-operative society on 26.5.1999. It is false to suggest that after 26.05.1999 either myself or the other legal heirs of Ramaiah Reddy are not in possession of 02 acres 09 guntas of land in survey No.20/3. I am having document to show that we were in possession of the land in Survey No. 20/3 before the year 2006. It is false to suggest that we have filed the suit in O.S No.18/1988 after the land as acquired and even though we had no subsisting right or interest over the property mentioned in that suit."

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The plaintiff and defendants have not disputed the fact that Sy.No.20/3 is acquired by the State Government for the purposes of formation of Bank Officer House Building CoOperative Society. Therefore, the defendants do not have any subsisting right in Sy.No.20/3. If any site is allotted by the society to its members, the plaintiff would be required to work out his remedy against such allottee. However, the cause of action as against the defendants has abated.

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As rightly contended by the learned counsel for defendant No.5, the plaintiff cannot maintain a suit for injunction once there is a finding by a survey authority that there is encroachment of land in Sy.No.20/3. The revenue authorities as a follow up of the survey party are bound to restore the survey marks as well as the possession of the encroached area by summarily evicting the encroacher. This is precisely for this reason that the jurisdiction of a Civil Court is ousted. When once Exs.D4 and D5 were placed on record, the Civil Court cannot go into the validity of the finding recorded by the survey party and in the face of Exs.D4 and D5, the Trial Court, could not have decreed the suit. Either the plaintiff must

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