Sri M Kantharaj Vs Smt Krishnamma Now Deceased Represented

THE RESPONDENTS 1(a), 1(b) and 1(d) ARE RESIDING AT NO.51 (OLD NO.80), GANDHINAGAR, 7^TH CROSS, OPP. TO SITE NO.69, KADUGONDANAHALLI, BANGALORE -560 084

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SHRI D JOSEPH BHARATHI S/O D DASARATH RAO AGED ABOUT 53 YEARS

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R/AT PORTION OF 70 & 71, OLD NO.65 & 66, 7^TH CROSS, GANDHINAGAR, ARABIC COLLEGE POST, KAYANGUTTA, KADUGONDANAHALLI, KASABA HOBLI, BANGALORE -560005

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SRI LOGANATHAN S/O SAIT AGED ABOUT 65 YEARS R/AT NO.39/A, ANNA BASILICA, OFFICERS MODEL COLONY, PIPELINE T DASARAHALLI, JALAHALLI WEST, BENGALURU -560 005 &RESPONDENTS

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[BY SRI. R BHADRINATH, ADVOCATE R1(A, B AND D) AND R3; VIDE ORDER DATED 25.01.2022 NOTICE TO R1(C)VIJAYALAKSHMI IS HELD SUFFICIENT BY THE WAY OF PAPER PUBLICATION;

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R2 - SERVED]

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CIVIL PROCEDURE CODE, AGAINST THE JUDGMENT AND DECREE DATED 03.08.2011 PASSED IN O.S.No. 25669/2008 ON THE FILE OF THE XIII ADDL. CITY CIVIL JUDGE, MAYO HALL UNIT, BANGALORE, DISMISSING THE SUIT FOR THE PERMANENT INJUNCTION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri B.V.Gangireddy, learned counsel for the appellant and Sri R.Bhadrinath, learned counsel for the contesting respondent.

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Unsuccessful plaintiff is the appellant challenging the judgment and decree dated 03.08.2011 dismissing the suit in O.S No.25669/2008 on the file of the XIII Additional City Civil Judge, Mayo Hall Unit, Bengaluru.

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For the sake of convenience parties are referred to as plaintiff and defendant as per their original ranking before the Trial Court.

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Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under:

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Plaintiff filed a suit for the relief of permanent injunction

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in respect of the following property hereinafter referred to as 8suit property9.

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< All that piece and parcel of the New No.70 and 71, Old No.65 and 66, S.Nos.12, 13 and 14 situated at Kayangutta, Kadugondanahalli, Kasaba Hobli, Bengaluru (presently known as Gandhinagar, 7^th Cross) with structures thereon measuring East to West 40 (forty feet), North to South 60 feet (sixty feet) in all measuring 2400 square feet and bounded on the:

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East by : Site No.18 and 19, West by: 25 feet main road, North by: Plot No.69, South by: Site No.72.

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The plaint averments further reveal that D.Bhaskaran was

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the owner in possession of the land in Sy.Nos.12, 13 and 14 of Kayangutta, Kadugondanahalli, Kasaba Hobli, Bengaluru. He

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formed a private residential layout as per Ex.P-6/ layout plan and divided those properties into different house sites and sold individual revenue sites to the general public.

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Plaintiff is one among them having purchased the suit site from Sri D.Bhaskaran under the registered sale deed. Thereafter, Plaintiff maintains that he was in possession of the suit property.

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It is further contented that the defendants created false documents in their names and in the first week of April 2008 defendants have put up structures in the suit property without any right, title or interest. Therefore there is a cause of action to file the suit.

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Pursuant to the suit summons, it is the defendant No.4 who appeared and filed written statement. Defendant Nos.1 and 2 did not choose to file any written statement. Defendant No.3 was reported to be dead and case against defendant No.3 came to be dismissed.

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Defendant No.4 denied the plaint averments in toto . He denied that the plaintiff is the owner of the suit property. On

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the contrary, contented that from the year 1963 till the date of filing the written statement fourth defendant was in possession and enjoyment of the suit property without there being any disturbance from anybody and plaintiff was never in possession of the suit property at any given point of time, and thus, sought for dismissal of the suit.

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Learned Trial Judge based on the rival contentions, raised following issues:

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(i) Whether the plaintiff prove his lawful possession and enjoyment of the suit schedule property, as on the date of the suit?

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(ii) Whether the plaintiff proves alleged interference by the defendants?

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(iii) Whether suit for bare injunction without seeking declaration is not maintainable, as contended by the defendants?

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(iv) Whether the plaintiff is entitled for the relief sought for?

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(v) What decree or order?=

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Thereafter, in order to discharge the burden cast on the plaintiff, plaintiff got examined himself as PW-1 and placed on

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record as many as 15 documents which were exhibited and marked as Exs.P-1 to P.15 comprising of certified copy of the sale deed dated 03.07.1968 in favour of the vendor of the plaintiff, three RTC extracts, original sale deed dated 21.10.1968, layout plan, demand register extract, tax paid receipt, encumbrance certificates, photographs and compact disc containing the soft copies of the photographs.

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As against the evidence placed on record by the plaintiff, defendant No.4-Loganathan got examined himself as DW-1 and placed on record as many as 19 documents comprising of receipt issued by the K.G.Halli Citizens Co-operative Society, demand register extract, tax paid receipt, original sale deed dated 12.04.2000, tax paid receipts, betterment charge receipts, BESCOM bill, tax paid receipt, acknowledgements issued by BBMP, tax paid receipts. Encumbrance certificate, special notice issued by BMP, Khatha Certificate, Khatha Extract and certified copy of the Sale deed dated 06.06.2006.

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Learned Trial Judge after conclusion of recording of evidence, heard the arguments of the parties and dismissed the

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suit of the plaintiff inter alia holding in paragraph No.11 as under:

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<11. Plaintiff has produced photographs and a CD showing situation of vacant site and construction of building in the same. On the basis of mere photographs, court cannot instill confidence that, really the photographs are belonging to the alleged suit property, as mentioned in Ex.P-5 Sale Deed. Own document of the plaintiff marked as Ex.P6 (approved layout map) would show that, boundaries to the East of Plot Nos.65 and 66 are Plot Nos. 24 and 23, to the North There are Plot Nos. 25 and 64, to the South there are Plot Nos. 22 and 67. Even if plaintiff has purchased property as per Ex.P6 Map the above stated correct boundaries would have been mentioned in Ex.P5 Sale Deed. But, in Ex.P5 Sale Deed, it is shown that, to the North, there is plot No.69 and to the south, there is plot No.72 adjouning to plot Nos.65 and 66. Hence, in the boundaries mentioned in Schedule of Ex. P5, there is no any situation and location of Plot Nos.65 and 66. Always boundaries shall prevail over the numbers of the property. If, boundaries taken into consideration as shown in Ex.P5, it is not proving exact identity and location of the suit property. Said boundaries shown in Ex.P5 was not proved as to, what exact portion out of Sy. Nos.12, 13 and 14, this plaintiff has purchased. Hence, it appears to me that, the Sale Deed is executed without there being actual location and situation of the property mentioned in schedule to Ex.P5. Therefore, on the basis of such imaginary Sale Deed, one cannot guess that, plaintiff

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has obtained title and when clear title is not proved, the court cannot presume that, possession in respect of any bit of land in Sy.Nos.12, 13 and 14 passed to this plaintiff. Defendant No.4 has claimed that, the photographs produced by the plaintiff is in respect of property of the 4^th defendant, which, was already sold to one Jayakumar. t is stated by defendant No.4 that, said property shown in the photograhs of the plaintiff (Exs.P13 and P14 pertains to Site No.4, property No.13, New No.86 and Khatha No. 235/2248. It may be true that, 4^th Defendant has no any title and possession deeds to prove his claim. But, plaintiff could not stand on the weakness of the 4^th Defendant. Plaintiff is required to prove his title and possession independently. Oral evidence of defendant No.4 and documents marked on his side would show that, really Property bearing Khata No.2305/2248 is owned and possessed by one Sri.Jayakumar under the Sale Deed Ex.D4. BBMP has given New No.94-233-86, which is in the name of K.B.Jayakumar (Exs. D12 and D13) Ex. D15 issued a by Revenue Officer would show that, site No.4, Property No.13, Khata No.2305/2248 stood in the name of K.B.Jayakumar. Since defendant No.4 claims that, property shown in photographs produced by the plaintiff is in respect of this Ex.D.15, heavy burden is upon the plaintiff to prove that, alleged property purchased by him under Ex.P.5, So, it appears to me that, the property claimed in this suit by the plaintiff by producing documents Ex.P.13 and P.14 photographs in is the property in Ex.D.15, which is really in possession of K.B.Jayakumar. Thus, defendants 1, 2 and 4 are not at

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all concerned to that property also, hence, it appears that, plaintiff has played trick with the court and intended to get some sort of decree against the persons who are not at all concerned to the property, which is in possession of K.B.Jayakumar and which is shown in Exs.P.13 and P.14 photographs. Therefore, plaintiff has failed to prove his possession based on title. Thus, Issue No.1 is held in the negative.=

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Being aggrieved by the same, plaintiff has filed the present appeal on the following grounds.

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ø <Having regard to the facts and circumstances and the evidence on record, the Learned Judge further ought to have held that admittedly the original owner of the suit scheduled property out of which the two sites in question are carved out or arrived belonged to Sri D. Bhaskaran. It is also in evidence that D.Bhaskaran had formed sites in Sy.Nos.12, 13 and 14 and the sites which the Appellant had purchased were bearing No.70 and 71, which are contiguous as per the plan produced and marked as Ex.P5. Admittedly, the respondents did not seriously challenged. The original owner of the suit scheduled property, D.Bhaskaran from whom the Appellant purchased the two sites which are adjacent each other and the identity of the said sites purchased by the Appellant was also not seriously disputed. Once the Appellant established his title and possession, the Learned Judge was in error in recording the findings on Issues

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No.1, 2 and 4 against the Appellant and consequently, the Learned Judge erred in dismissing the suit.

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ø The Learned Judge ought to have seen that once the Appellant proved the following:

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(i) That the original owner of the suit scheduled property was in respect of Sy.Nos.12, 13 and 14 of Kayangutta, Kadugondanahalli Village, previously called Bangalore North Taluk, and now a part of Bangalore North Taluk is one D. Bhaskaran.

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(ii) The said D. Bhaskaran, the original owner formed a layout of revenue lands bearing Sy.Nos.12, 13 and 14 bearing Sites No.70 and 71, which the Appellant purchased.

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(iii) The Appellant has established on the basis of evidence that he has purchased two sites under Ex.P-5, as per the Original Sale Deed dated 21.10.1968 and the suit scheduled property pertains to those two sites.

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(iv) Even though it was wrongly mentioned in the body of the Sale Deed what was sold was 'Plot Nos.70 and 71', in the schedule, it was mentioned as Site No.65 and 66, but in the boundaries mentioned in the schedule matches Sites No.70 and 71, which were the sites which were actually sold by the previous owner, D.Bhaskaran in favour of the Appellant and the Learned Judge should have treated

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this error as inconsequential and the Learned Judge ought to have held that the Appellant has proved the title and possession in respect of the suit scheduled property.

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(v) In spite of the admission of the Respondents in the Written Statement at Paragraph-7 to the effect that the Plaintiff is the owner in possession of the suit scheduled property, the Learned Judge was in error in dismissing the suit.

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(vi) The Learned Judge after having clearly recorded a finding that the Sale Deed marked as Ex.D-4 said to have been executed by the 4^th Defendant in favour of one K. Benher Jayakumar did not pertain to the suit scheduled property, but instead of relying upon that finding, the Learned Judge makes a grave error in holding that the weakness in the Respondents' case would not prove the case of the Appellant and the said view taken by the Learned Judge is a serious error and consequently, the Decree and Judgement is liable to be set aside.

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(vii) The Learned Judge was also in error in holding that Ex.P-5 plan has not been approved. Ex.P-5 is a private plan prepared by D.Bhaskaran to identify the sites or plots which were sold to different needy persons in Sy.Nos. 12, 13 and 14 in Kayangutta, Gadugondanahalli Village, Bangalore North Taluk and the Learned Judge ought to have held that the said

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plan was only to identify the sites sold by D. Bhaskaran. The Learned Judge further ought to have seen that the authenticity of the plan is further established by Ex.P-9, wherein it has been established that the Appellant purchased Plot No.70 and 71 in Sy.Nos.12, 13 and 14 and these facts are further corroborated by Ex.P-10, P-11 and P-12. All these documents, and oral evidence of the Appellant, established his title and possession in respect of the suit scheduled property and this aspect of the matter was not been considered by the Learned Judge while recording his findings on the Issues. Therefore, the Judgement and Decree are liable to be set aside.

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(viii) The Learned Judge further ought to have seen that the oral evidence of the Appellant coupled with the documents or exhibits produced clearly established that the Appellant has been in possession and enjoyment of the suit scheduled property and the Respondents have encroached upon a portion of the suit scheduled property on either side and once the Appellant has proved his case, the findings recorded by the Learned Judge, without properly marshaling the evidence with reference to the issues, has resulted in serious infirmity in recording the findings and consequently, the Judgment and Decree are liable to be set aside=.

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Sri Gangireddy, learned counsel for the appellant/ plaintiff reiterating the grounds urged in the appeal contended that

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admittedly the sale deed of the defendant is of the year 2000, whereas, plaintiff's sale deed is of the year 1968 as could be seen from Ex.P-5.

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He would further contend that the layout plan specifically mentions the sale deed of the plaintiff. The layout plan marked at Ex.P-6 clearly makes out the case that, out of the land in Sy.Nos.12, 13 and 14 of Kayangutta, Kadugondanahalli, Kasaba Hobli, Bengaluru, the original owner Bhaskaran formed a private layout as per Ex.P-6.

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He would also contend that the Bhaskaran was the owner of suit property. To depict the same, RTC extracts are placed on record and plaintiff having purchased the suit property from Bhaskaran, was entitled to possession of the suit property and was entitled to maintain a suit for permanent injunction against the defendants who admittedly purchased the suit property by original sale deed dated 12.04.2000 and thus, the plaintiff's sale deed is earlier in time and he was in possession of the property which has not been properly appreciated by the learned Trial Judge while dismissing the suit of the plaintiff

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resulting in miscarriage of justice and sought for admitting the appeal for further consideration.

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Per contra , learned counsel for the contesting respondent Sri Bhadrinath supports the impugned judgment by contending that the finding recorded by the learned Trial Judge that the location and situation of the suit property itself is not proved by the plaintiff is just and proper having regard to the material evidence placed on record by the plaintiff.

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He would further contend that in a suit for bare injunction, plaintiff cannot take advantage of the weakness, if any, in the case of the defendants and seek any relief.

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In the case on hand, the respondents/defendants were in possession of the suit property from year 1963 and they got their title confirmed by way of sale deed and paying taxes to the BMP and therefore, dismissal of the suit is just and property and therefore, sought for dismissal of the appeal.

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Having heard both sides, this Court perused the material on record meticulously.

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On such perusal of the material on record, the following

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points would arise for consideration:

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(i) Whether the plaintiff further proves that he was in lawful possession of the suit property by virtue of the sale deed executed by his vendor-D.Bhaskaran vide Ex.P.5?

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(ii) Whether the plaintiff proves that fourth defendant has interfered with the suit property?

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(iii) Whether the impugned judgment is suffering from legal infirmity and perversity?

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(iv) What Order?

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REGARDING POINT Nos.1 TO 3: In the case of hand,

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plaintiff laid the claim based on the sale deed marked at Ex.P.5. To establish as to where the suit property is situated, plaintiff has relied on Ex.P.6.

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In fact after the suit came to be disposed of, he has obtained the return of the original of Ex.P.6 which he has produced by replacing the photocopy in the Trial Court records which he has placed before this Court along with the memo at the time of arguments. This Court perused the same meticulously.

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On considering the boundaries mentioned in Ex.P.5 and Ex.P.6, which are the documents of the plaintiff himself, the boundaries to the suit properties do not tally.

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Sri Gangireddy, learned counsel however tried to maintain that there is a new number that has been given to the suit property and therefore, there is variance between the boundaries in Ex.P.5 and Ex.P.6.

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To establish said aspect of the matter the plaintiff did not choose to examine his vendor who is the author of Ex.P.6 nor his 8bajudars9 to establish that he is in possession of the suit property.

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On the contrary, the material placed on record by the defendant would go to show that he has paid the taxes to the suit property and the khatha is standing in his name and taxes are being paid to the Bengaluru Mahanagara Palike.

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Further, to establish possession over the suit property, except producing Ex.P.5 and Ex.P.6 there is no other material on record.

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Plaintiff for the reasons best known to him did not choose

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to examine his vendor nor the bajudars so as to establish that the suit property is the property as per Ex.P.6.

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Learned Trial Judge, as referred to supra, in Paragraph 11 of the impugned Judgment, has recorded a categorical finding that the plaintiff failed to prove that the site that has been purchased by the plaintiff vide Ex.P.5 is formed out of land in Sy.Nos.12, 13 and 14.

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Admittedly Ex.P.6 is a private residential layout formed by the vendor of the plaintiff. When such is the factual aspects of the matter, where exactly the site of the plaintiff is situated is a question that ought to have been established by the plaintiff by placing necessary material evidence on record.

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As discussed supra, the material on record do not disclose that the plaintiff was able to pin pointedly fix his boundaries as per Ex.P.5 as is depicted in Ex.P.6.

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Under such circumstances, when a suit for bare injunction is filed by the plaintiff, it is incumbent for the plaintiff to establish that he was in lawful possession of the suit property.

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Mere production of Ex.P.5 and Ex.P.6 would not discharge

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said burden cast on the plaintiff. More so, when the defendant has been able to establish that he is in possession of the suit property having purchased the same under Ex.D.4 sale deed.

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Defendant has maintained that from the year 1963 he is in possession of the property.

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In a matter of this nature, only seeking relief for a bare injunction without seeking the declaratory relief when the title of the plaintiff is in cloud, dismissal of the suit by the learned Trial Judge is just and proper.

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Interference is also not proved by the plaintiff as against the defendant as admittedly, plaintiff failed to prove the lawful possession of the suit property.

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In view of the foregoing discussion, the appreciation of the material evidence placed on record by the learned Trial Judge in the impugned judgment is just and proper. Therefore, the same cannot be held to be perverse.

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