Mr T Kiran Kumar Vs Sri Gaffar Baig

¶1

1 - NC: 2025:KHC:12122 RFA No. 1694 of 2023

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 22^ND DAY OF MARCH, 2025

¶4

BEFORE

¶5

THE HON'BLE MR JUSTICE K.NATARAJAN REGULAR FIRST APPEAL NO.1694 OF 2023 (INJ)

¶6

BETWEEN:

¶7

MR. T. KIRAN KUMAR S/O LATE H. THIPPA REDDY, AGED ABOUT 41 YEARS, SAI BRINDAVANA, NO.65/6, 65/7, NELLURHALLI TO SIDDAPURA ROAD, WHITEFIELD, BANGALORE-560066.

¶8

…APPELLANT

¶9

(BY SRI. MITHUN S. K., ADVOCATE)

¶10

AND:

¶11

Digitally signed by PRAJWAL A Location: High Court Of Karnatka

¶12

SRI. GAFFAR BAIG S/O SRI. ABDULLA BAIG, AGED ABOUT 49 YEARS, RESIDING AT NO. 180, WHITEFIELD, BANGALORE-66.

¶13

…RESPONDENT

¶14

(BY SRI. VIJAYA KUMAR K., ADVOCATE)

¶15

2 - NC: 2025:KHC:12122 RFA No. 1694 of 2023

¶16

THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 01.08.2023 PASSED IN OS NO. 25251/2019 ON THE FILE OF THE LXXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT, CITY CIVIL COURT, BENGALURU (CCH-75), DECREEING THE SUIT FOR PERMANENT INJUNCTION.

¶17

THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 06.02.2025 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

¶18

CORAM: HON'BLE MR JUSTICE K.NATARAJAN

¶19

RESERVED FOR ORDERS ON: 06.02.2025 PRONOUNCED ON 22.03.2025

¶20

CAV JUDGMENT

¶21

This appeal is filed under Section 96 of CPC for

¶22

setting aside the judgment dated 01.08.2023 passed in O.S. No.25251/2019 by the LXXIV Additional City Civil and Sessions Judge, Mayo Hall Unit, Bengaluru City.

¶23

Heard the arguments of learned counsel appearing for the parties.

¶24

The appellant was the defendant and the respondent was the plaintiff before the trial Court. The

¶25

3 - NC: 2025:KHC:12122 RFA No. 1694 of 2023

¶26

rank of the parties before the trial Court is retained for the sake of convenience.

¶27

The case of the plaintiff before the trial Court is that the plaintiff filed a suit for the relief of permanent injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the property bearing No.13/1, BBMP khatha No.197, old No.492/13/1, presently bearing BBMP khatha No.492/13/1/1 measuring East-West 36 feet and North to South on the Eastern side 110 feet and on the Western side 125 feet, in all measuring 4230 Sq.ft. situated at Hoodi village, K.R.Puram Hobli, Bangalore East Taluk (hereinafter referred to as 'suit schedule property') belonged to Muniyappa and H.C.Ramaswamy. They sold the property in favour of C. Mary Catherine through GPA under sale deed dated 06.02.2003. Subsequently, the said C. Mary Catherine filed a suit in O.S. No.16359/2003 against one Seenappa and others. The said suit was decreed on 08.02.2010. After purchase of the property by Mary

¶28

4 - NC: 2025:KHC:12122 RFA No. 1694 of 2023

¶29

Catherine, she had paid the betterment charges and conversion charges of the property and later, sold the property in favour of Kalimulla Sheriff by virtue of registered sale deed dated 03.04.2012. Subsequently, a confirmation deed was also executed on 22.01.2013. Thereafter, the said Kalimulla Sheriff got transferred the khatha in his name and was paying taxes to the concerned authorities. Later, he sold the suit schedule property in favour of plaintiff on 28.05.2013. Since then, the plaintiff is in possession of the suit schedule property. It is further stated in the plaint that the defendant in no way connected to the suit schedule property was not having any right, title and interest in the suit property. In order to grab the same, he was trying to interfere with the peaceful possession and enjoyment of the plaintiff. The plaintiff also filed a police complaint and the police did not take any action stating that the matter falls to the jurisdiction of the Civil Court.

¶30

5 - NC: 2025:KHC:12122 RFA No. 1694 of 2023

¶31

In pursuance to suit summons, defendant

¶32

appeared and filed written statement by denying all the averments in the plaint as false and contended that the suit of the plaintiff is not maintainable either in law or on facts. The plaintiff has not approached the Court with clean hands. He has filed a frivolous suit with mala fide intention to cause wrongful loss to the defendant without any pre-existing right over the suit property and the suit is devoid of merits. The defendant has further denied the entire allegations as well as the averments made by the plaintiff in the plaint. The defendant took up the contention that the plaintiff has set up his own case stating that he is the absolute owner in possession of the house property bearing khatha No.348/1 carved out of former Sy.No.13/1 and 13/4 of Hoodi Village. Earlier, one Segar had purchased the suit property under a registered sale deed dated 17.01.2005 from his previous owners H.M.Venkataswamy, H.M.Krishnappa, H.M.Nagappa @ Naga, K.Santhosh, represented by their power of attorney

¶33

6 -

¶34

NC: 2025:KHC:12122 RFA No. 1694 of 2023

¶35

holder H. Thippa Reddy. On account of some mistakes in mentioning the survey numbers in the sale deed, later, a rectification deed was executed on 28.07.2006. The said previous owner of the defendant had also secured water and sanitary connection and constructed the house. Segar was in possession of the said property. The defendant has further contended that the plaintiff is nothing to do with the existing right, share, possession or title over the schedule property described in the written statement. The plaintiff along with other persons tried to demolish the construction found on the schedule property mentioned in the written statement. Thereby, the said Segar filed a suit against the said persons in O.S. No.409/2008. The said suit came to be decreed on 15.11.2012. Subsequently, the said Segar executed a registered sale deed in favour of defendant on 20.03.2013. Based upon the said registered sale deed, the defendant got changed khatha in his name and he has been paying taxes in respect of the schedule property

¶36

7 -

¶37

NC: 2025:KHC:12122 RFA No. 1694 of 2023

¶38

described in written statement. The defendant has also taken contention that the Karnataka Industrial Area Development Board (hereinafter referred to as ‘KIADB’) acquired a portion of the schedule property described in written statement for the benefit of Bengaluru Metro Rail Corporation (hereinafter referred to as ‘BMRC’) under notification dated 08.08.2017 and 14.09.2017. At the time of initiation of acquisition proceedings, local survey was made by the authorities and the defendant has been shown as notified khathedar in the acquisition notification. The defendant further contended that he has received compensation for the portion acquired out of the schedule property mentioned in the written statement and the remaining portion remained to be in possession of the defendant. The plaintiff now by filing a false claim trying to lay his claim over the written statement schedule property. Accordingly, he prayed for dismissal of the suit.

¶39

Based upon the pleadings of the parties, the trial Court framed the following:-

¶40

8 - NC: 2025:KHC:12122 RFA No. 1694 of 2023

¶41

ISSUES

¶42

1. Whether the plaintiff proves

¶43

his possession over the suit property as on the date of the suit?

¶44

2. Whether the plaintiff proves the interference by the defendant as

¶45

alleged in the plaint?

¶46

3. Whether the plaintiff is entitled for the relief of injunction as prayed for?

¶47

4. What order or decree?

¶48

In order to prove his case, plaintiff examined

¶49

himself as P.W.1 and got marked Exs.P.1 to P.24. On

¶50

behalf of the defendant, the power of attorney of defendant was examined as D.W.1 and got marked Exs.D.1 to D.16.

¶51

After hearing the arguments, the trial Court answered issue Nos.1 to 3 in the affirmative in favour of the plaintiff and ultimately, decreed the suit in favour of the plaintiff. Being aggrieved by the same, the defendant is in this appeal.

¶52

9 -

¶53

NC: 2025:KHC:12122 RFA No. 1694 of 2023

¶54

Learned counsel for the appellant has

¶55

strenuously contended that the judgment and decree

¶56

passed by the trial court is not correct and it has not appreciated the documents produced by the defendant on record. The property mentioned in the written statement, originally, belonged to four persons namely H.M.Venkataswamy, H.M.Krishnappa, H.M.Nagappa @ Naga, and K.Santhosh, who were represented by general power of attorney holder, and they sold the property to Segar on 17.01.2005. Later, rectification deed was also made on 28.07.2006 and thereafter, Segar was in possession of the property. Later, Segar filed a suit against the person, who was trying to demolish the structure, in O.S. No.409/2008, the said suit came to be decreed on 15.11.2012. Later, the said property was sold to the defendant in the year 2013. It is also contended by the learned counsel that a portion of the schedule property has been acquired by the BMRC for Metro project and after the local inspection, the name of the defendant

¶57

10 - NC: 2025:KHC:12122 RFA No. 1694 of 2023

¶58

was shown as khathedar and compensation was also paid to the defendant. These documents are the official documents and public documents and they were not properly considered by the trial court. A notice was issued by the BMRC as per Exs. D.13 and D.14, but the plaintiff has not produced any proper documents to show that the suit property was in his possession. Therefore, the trial Court has committed an error in holding that the properties are altogether different, though the land was carved out in survey No.13/1. The learned counsel also contended that the photograph - Ex.D.5 produced by defendant clearly reveals the existence of share in the defendant’s property, but the plaintiff claims property as vacant land. Photos-Exs.D.1 and D.16 produced by the defendant clearly depicts the existence of the property and that the metro bridge crossing the property of defendant was already acquired by the BMRC for metro project and compensation was received by the defendant.

¶59

11 -

¶60

NC: 2025:KHC:12122 RFA No. 1694 of 2023

¶61

The learned counsel for the appellant further contended that the dispute between the parties in respect of title suit for bare injunction is not maintainable and that aspect was neither considered nor appreciated by the trial court, but granted a decree in favour of the plaintiff, which is not correct. The finding of the trial court that the schedule mentioned by the plaintiff is not matching with the property mentioned in written statement, is incorrect finding and hence, prayed for allowing the appeal by setting aside the impugned order passed by the trial court.

¶62

Per contra, learned counsel for the respondent

¶63

has supported the judgement and decree passed by the trial court and contended that the property was originally belonged to one Muniyappa and H.C.Ramaswamy, and through GPA, the said property was sold to C. Mary Catherine and the said C. Mary Catherine sold the property to the vendor of the plaintiff Kalimulla Sheriff on 03.04.2012 and thereafter, the said Kalimulla Sheriff sold

¶64

12 -

¶65

NC: 2025:KHC:12122 RFA No. 1694 of 2023

¶66

the property to the plaintiff on 28.05.2013 and a rectification deed was also done on 13.06.2013. The BBMP issued khatha in favour of the plaintiff and sanction plan was also obtained, but the defendant was trying to interfere with the schedule property. The defendant claims the property in survey No.13/1 and 13/2. The boundaries of a portion of the schedule property and the property mentioned in the written statement are different to each other. Therefore, the trial court has rightly decreed the suit. It is also contended that the vendor of the plaintiff filed a suit in O.S. No.16359/2003, which was decreed on 08.02.2010 and permanent injunction was granted in favour of the plaintiff’s vendor. The plaintiff is in possession of the schedule property. Therefore, the trial court has rightly considered the evidence on record and decreed the suit of the plaintiff and accordingly, prayed for dismissal of the appeal.

¶67

Having heard the learned counsel appearing for the parties, perused the records.

¶68

13 - NC: 2025:KHC:12122 RFA No. 1694 of 2023

¶69

Having heard the arguments and perused the records, the point that arises for considerations are;

¶70

(1) Whether the plaintiff proves that the plaintiff is in possession and enjoyment of the schedule property?

¶71

(2) Whether the plaintiff proves defendant is trying to interfere with the schedule property?

¶72

(3) Whether the plaintiff is put into hardship and irreparable loss?

¶73

(4) Whether the judgment of the trial court calls for interference?

¶74

On perusal of the records, the case of the plaintiff is that the plaintiff purchased the schedule property from his vendor Kalimulla Sheriff on 28.05.2013 as per Ex.P.15 and there was some error in the sale deed.

¶75

Hence, rectification deed was executed as per Ex.P.16 dated 13.6.2013 and it is stated by PW1 in his evidence that the boundary of the schedule property that the measurement of the schedule property is East to West 36 feet, North to South on the Eastern side 110 feet and on

¶76

14 -

¶77

NC: 2025:KHC:12122 RFA No. 1694 of 2023

¶78

Western side 125 feet, measuring 4230 sq.ft bounded by East by land of Munikadirappa’s property, West by P.Muniyappa’s property, North by Road and South by Road. He also stated in his evidence that his vendor Kalimulla Sheriff had purchased the property from one Mary Catherine vide sale deed dated April 2012, which also measures East to West 36 feet, North to South 115 feet on the eastern side and 141 feet on the northern side.

¶79

On perusal of the measurement for having purchased the property by the vendor of the plaintiff purchased from Mary Catherine under sale deed as per Ex.P.13 which reveals the measurement of the properties, East to West 36 feet and North to South on the eastern side 115 feet and on the western side 141 feet. Whereas the sale deed of the Kalimulla Sheriff vendor executed in favour of the plaintiff, the measurement reveals East to West 36 feet and North to South on the eastern side 110 feet and on the western side 125 feet. On perusal of

¶80

15 - NC: 2025:KHC:12122 RFA No. 1694 of 2023

¶81

these two boundaries measurement which is altogether different. In Ex.P13 the North to South on the eastern side 115 feet, whereas in Ex.P.15 the eastern side is reduced to 110 feet and on the western side, it is mentioned as per Ex.P.13 as 141 feet whereas in Ex. P15 it is reduced to 125 feet. The measurement differs from both the sale deeds of the plaintiff, as well as his vendor’s sale deed.

¶82

That apart, as per Ex.P.16 it reveals a rectification deed made by the vendors of the plaintiff by mentioning the measurement on the eastern side as 110

¶83

feet and western side 125 feet, but there is no basic document for this change of measurement towards the North to South. It appears in the rectification deed, they got changed the measurement on the North to South i.e., on the Eastern side 110 feet and Western side 125 feet in Ex.P.16 and Ex.P.15 which is different from the Ex.P.13.

¶84

Though it is well settled, if any measurement changes the boundaries prevails over, whereas on perusal of the

¶85

16 -

¶86

NC: 2025:KHC:12122 RFA No. 1694 of 2023

¶87

confirmation deed at Ex.P.14 executed by children of Muniyappa, children of H. C. Ramaswamy and the children of H.C.Krishnappa in favour of vendor of the plaintiff, where the vendor of the plaintiff Kalimulla Sheriff have purchased the property from Mary Catherine under Ex.P.13, the measurement once again differs from East to West 36 feet, North to South eastern side 115 feet and Western side 141 feet. These measurements differ from Exs.P14, P15 and P16. Whereas Ex.P.13, the sale deed of Kalimulla Sheriff from the Mary Katherine in favour of Kalimulla Sheriff as per Ex.P.13 and Ex.P14 are one measurement whereas the sale deed of the Kalimulla Sheriff in favour of the plaintiff is altogether different measurement. Here in Ex.P.16 rectification deed also is some other measurement from the sale deed of the vendors of the plaintiff. Now coming to the further documents produced by the plaintiff, especially the Ex.P3 sale deed of the vendor’s vendor of the plaintiff Mary Catherine who had purchased the property from one

¶88

17 - NC: 2025:KHC:12122 RFA No. 1694 of 2023

¶89

Muniyappa and H.C.Ramaswamy through the GPA holder Vincent Paul at Ex.P.3, wherein the property was sold as bearing No.13/1 of Hoodi Village, K.R.Puram, Hobli, there is no survey number mentioned and it was measuring East to West northern side 80 feet and Southern side 80

¶90

feet and North to South, eastern side 110 feet and

¶91

Western side 125 feet bounded on;

¶92

East by	Property/Land Munikadarappa	of	Sri.
West by	Property/Land Muniyappa	of	Sri.
North by :	Road
South by	Road

¶93

Whereas the said Mary Catherine also obtained

¶94

a decree in O.S.No.16359/2003 dated 08.02.2010 as per Ex.P2, where it is mentioned property bearing No.13/1, Bruhat Bangalore Mahanagara Palike, Khatha No.197, Old No. 492/13/1, presently bearing BBMP, Khatha No. 492/13/1/1, measuring East to West : 36 Feet and North

¶95

to South on the Eastern side : 110 Feet and on the

¶96

18 - NC: 2025:KHC:12122 RFA No. 1694 of 2023

¶97

Western side : 125 Feet, in all measuring 4230 Sq. Feet, situated at Hoodi Village, K.R. Puram Hobli, Bangalore East Taluk, measuring boundary East to West by Munikadarappa’s property West by Muniyappa’s property, whereas the Mary Catherine purchased the property from Vincent Paul and he was GPA holder and the said GPA was executed by Muniyappa and H.,C.Ramaswamy as under Ex.P.1 and on perusal of the boundaries, it was only mentioned the suit schedule property as the land portion of survey No.13/1 measuring 8 guntas and there is no measurement in feet and it is stated as 8 guntas and this

¶98

8 guntas is roughly calculated with square feet and it comes to 8712 sq.ft and the boundaries mentioned in the GPA was East by Munikadarappa’s property and West by Plastic Factory, North by Road and South by Road.

¶99

Whereas when the property was sold by the Vincent Paul under the GPA in favour of Mary Catherine at Ex.P.3, the property’s measurement was altogether different from East to West 80 feet, North to South on the

¶100

19 - NC: 2025:KHC:12122 RFA No. 1694 of 2023

¶101

eastern side 110 feet and the western side 125 feet, which measures 4462 sq. ft and the boundary mentioned eastern side as Munikadarappa’s property West by Muniyappa’s property. The western side boundary was altogether changed from Plastic Factory to Muniyappa’s property and there is no reference available in the sale deed as to how the Muniyappa’s property became a boundary to the Western side. It is also not explained by the plaintiff regarding the power was given to the Vincent Paul for more than 8712 sq.ft and while selling to Mary Catherine, it was only 4462 sq. ft. There is no reference

¶102

that the remaining property has been retained by the Vincent Paul, the original owners on the Western Side or it was sold to Muniyappa. Altogether the Western boundary changed from Ex.P1 to P2 and P3 and as stated above, the measurement and the boundaries were altogether different from Exs.P1, P2 and P3 and vendor sale deed at Ex.P.13 and sale deed of the plaintiff at Ex.P14.

¶103

20 - NC: 2025:KHC:12122 RFA No. 1694 of 2023

¶104

That apart the boundaries mentioned as per Ex.P3 the sale deed of Mary Catherine obtained from Vincent Paul for the measurement of the property was 80 x 110 + 125/2 more than 4460 sq.ft the boundary mentioned on the eastern side is Munikadarappa’s property West by Muniyappa’s property, where the sale deed of plaintiff’s vendor as per Ex. P13 Kalimulla Sheriff obtained in April 2012 the measurement of the property once again reduced to East to West 36 feet and North to South 115 feet and on the Western side 141 feet, totally the measurement was 2004.5 sq.ft. There is no reference

¶105

available as to how the East to West property 80 feet was reduced to 36 feet and 44 feet was reduced from 80 feet. Even otherwise some portion of property was sold, the boundary must have changed, but the boundary for 80 x 110 + 125/2 in Ex.P3 and the boundaries for the 36 x 115 + 141/2 in Ex. P3 are one and the same. With the portion

¶106

of the property on the East to West 44 feet was sold to somebody else, the boundary must have been changed

¶107

21 -

¶108

NC: 2025:KHC:12122 RFA No. 1694 of 2023

¶109

from Ex.P3 to P13 and the same boundaries cannot be continued for the more than 8 guntas of land thereafter 80 sq.ft was reduced to 36 sq.ft, definitely will not be the same boundaries. Therefore, it appears there is mistake in boundaries and dispute with the measurement of the property of the plaintiff appears in the very document produced by the plaintiff.

¶110

That part, the defendant given evidence through GPA holder DW.1, he also got marked where purchase of the property by the vendor of the defendant in the year 2005 as per Ex.D7 dated 17.1.2005 executed by one H.M.Venkataswamy, H.M.Krishnappa, H.M.Nagappa @ Naga, K.Santhosh, represented by their power of attorney holder H.Thippa Reddy in favour of one Shridhar, where the property was mentioned at site No.348/1 in property No.13/1 and 13/4 of Hoodi village measuring total 5000 sq.ft, East by Munikadarappa’s property which matches with Ex.P3 and Ex.P13 West by remaining portion of the same property, North by

¶111

22 -

¶112

NC: 2025:KHC:12122 RFA No. 1694 of 2023

¶113

property in survey No.12/1 and south by Road. The said Segar sold the property to defendant Kiran Kumar on 20.03.2013. The measurement of the property was shown as 40 + 38/2 feet on East to West and 141 and 4 + 115/2 on North to South totally 5000 sq.ft East by Munikadarappa’s property West by remaining portion of the property north by property No.12/1 and South by Road. Subsequently, rectification deed was executed where in survey number was changed to 13/1 and 13/4 instead of 13/1 and 13/2 and there is no material changes in the property carved out of the land in survey number 13/1 and 13/2 which reveals both the property claimed by the plaintiff and defendants are in survey No.13/1. Both the plaintiff is having purchased the property from vendor and vendor’s vendor, the western boundaries differs from each other. The measurement of the property is also altogether different from the documents of plaintiff, plaintiffs vendor and vendors’s vendor. On the other hand, the defendants also claims property in favour

¶114

23 -

¶115

NC: 2025:KHC:12122 RFA No. 1694 of 2023

¶116

of survey No.13/1 and also 13/4. That apart, it is not in dispute by the plaintiff that a portion of the property of the defendant has been acquired by the Metro Corporation as per Ex. D12, Notification at Ex.D13 also measures the steps taken for sending notice to the defendant for having acquired the land belonging to defendant where the name of the defendant’s vendor shown as Kathedar in revenue record. Subsequently, the BMRC also paid the compensation to the defendant as per Ex.D13 notice issued by the Tahsildar reveals it was known to the defendant, the names of the vendors of the defendant mentioned as khatedar and the compensation amount paid to the defendant. These documents prima facie reveals the defendant is in possession and enjoyment of the property mentioned in the written statement schedule and he received the compensation. That apart, as per Ex.D.10 is the property register extract which stands in the name of the defendant. Ex.D.11 is tax paid receipt in the name of the defendant. Ex.D.12 is the certified copy

¶117

24 -

¶118

NC: 2025:KHC:12122 RFA No. 1694 of 2023

¶119

of the encumbrance certificate. Exs.D.13 and D.14 are the notice. Ex.D.15 is the letter issued by BESCOM in favour of defendant. Ex.D.16 is the photographs showing the existence of property of the defendant and Metro Rail Bridge, which is also seen from the photographs, which establishes that the metro train bridge is passing adjacent to the land of the defendant. Which clearly shows that the boundaries and the properties has been portion of the property which has been acquired by the Metro Corporation and Metro Railway Bridge which is also constructed adjacent to the property of the defendant and

¶120

clearly reveals from the photographs at Ex.P.16. The same was not disputed by the plaintiff. There was no documents to show or produced by the plaintiff, to show the metro train is passing near to his property. Therefore, on consideration of all these aspects, it cannot be said that the plaintiff is in lawful possession and enjoyment of

¶121

the property. Though the vendor of the defendant also obtained decree in their favour along with suit for

¶122

25 -

¶123

NC: 2025:KHC:12122 RFA No. 1694 of 2023

¶124

injunction there is no declaration suit filed by any of the vendors and plaintiff or defendant. The property appears in dispute both are claiming the same property which is said to be situated in survey No.13/1. That apart 13/1 a portion of the property has been acquired by BMRC. Such being the case, defence taken by the defendant is more probable than the plaintiff’s case. The defendant’s vendor sale deed also said to be filed in OS No.409/2008 it was decreed on 15.11.2012 the plaintiffs vendor also filed suit against one Seenappa where the defendants are not party in O.S.No.16359/2003 decreed on 08.02.2010. Though,

¶125

both are equally having a decree each in their favour in respect of their property in possession, as stated above, the measurement of the plaintiff’s property changed from 8 guntas in Ex. P1 and it became 80 feet in Ex.P3 and reduced to 36 feet in Exs.P13, P14 and P15 but the boundaries are not changed on the eastern side or on the western side which reveals there is lot discrepancies in the schedule of the plaintiff and measurement and

¶126

26 -

¶127

NC: 2025:KHC:12122 RFA No. 1694 of 2023

¶128

boundaries of the plaintiffs property. Therefore it cannot be said that the plaintiff is in lawful possession and enjoyment of schedule property as stated in the schedule of the plaintiff. That apart, once the Title of plaintiff is having disputed by the defendant, there is cloud over the title. Such being the case, suit for bare injunction is not maintainable as per the judgment of Hon’ble Supreme Court in Anathulla Sudhakar vs. V. Buchireddy and others case reported in (2008)4 SCC 594 clearly held that when the dispute or cloud over the title exists, the plaintiff is required to amend the plaint into declaration suit by making all the necessary parties in the suit and obtain declaration and injunction but cannot maintain bare injunction suit. Thereby, I hold the plaintiff failed to prove his lawful possession and enjoyment of the property as on the date of filing of the suit.

¶129

The defendant also claimed the property under

¶130

the sale deed, the complaint also filed by the plaintiff, the defendant the police given endorsement as per Ex.P3

¶131

27 -

¶132

NC: 2025:KHC:12122 RFA No. 1694 of 2023

¶133

accordingly suit has been filed before the court. Once the defendant also claims the property in the same survey No.13/1 that definitely there is a cloud over the title, such being the case without converting the suit into declaration, the plaintiff is not entitled to maintain the bare injunction suit. That apart Ex.D16 photographs produced by the defendant and confronted to the plaintiff, he has admitted that the property shown in the photograph belongs to the defendant. Exs.D1 and D2 are also photographs whereby the defendants put up the compound wall and gate to his property and a shed is also constructed in the schedule property of the defendant. These documents are all reveals, the plaintiff is not in lawful possession of the scheduled property. Therefore, when the defendant claims these properties under the same sale deed the question of interference by the defendant in the schedule property, does not arises. Therefore, the question of granting injunction in favour of the plaintiff, does not arises and no irreparable loss would

¶134

28 -

¶135

NC: 2025:KHC:12122 RFA No. 1694 of 2023

¶136

cause to the plaintiff if injunction is not granted when he has not chosen to convert bare injunction suit into declaration suit. The Trial Court considered only the plaintiffs documents but ignored the documents of defendants and the finding of the trial court stating that the question of cloud over the title of the property will not arise because of the plaintiffs property, is completely different from the property of the defendant is not correct, it is also stated that the suit for their bare injunction is maintainable and there is no cloud over the title.

¶137

On perusal of the records, the properties

¶138

claimed by both parties under survey No.13/1 are the different measurement and different boundaries mentioned in the plaintiffs documents. Such being the case, definitely there is cloud over the title, dispute of identity and measurement, apart from the boundaries in the documents of the plaintiff. Such being the case, the finding of the trial court that suit for bare injunction maintainable, is not correct. That apart, the trial court

¶139

29 - NC: 2025:KHC:12122 RFA No. 1694 of 2023

¶140

also ignored the land acquired by the Metro Corporation a portion of the property of the defendant and paid the compensation. The photographs reveal on the one side of the property Metro Rail Bridge is found as per Ex.D.16, the photographs. Such being the case, ignoring the public document and having paid compensation in respect of portion of property in survey No.13/1 to the defendant cannot be ignored by the trial court. Therefore, the trial court given wrong conclusion, while decreeing the suit. Hence, the judgment of the trial court calls for interference by this court. On the other hand, plaintiff failed to prove to show schedule property is in possession and enjoyment of the plaintiff. Therefore, the suit of the plaintiff for bare injunction required to be dismissed. Accordingly answered point Nos.1 to 3 in negative and point No.4 in affirmative.

¶141