Sri P Thanikachalam v. Smt M Saroja

Karnataka HC9 Apr 2025RFA/2189/2017

Case brief

AI extract

What is this about?

Keywords: permanent injunction; title versus possession; khata, tax receipts, sanction plan, encumbrance certificate; GPA lapses on death of holder; prior title litigation Lakkashettappa v. Gundappa (Sy.No.83/1 and 83/2, Nagarabhavi, Bangalore); bare injunction suit not maintainable where title clouded; RFA No.2189/2017 and RFA No.2190/2017; High Court of Karnataka; K. Natarajan J.; decided 09.04.2025; filed under Sec.96(1) CPC.

What did the court decide?

Point I answered: the plaintiff Smt. M. Saroja in O.S.No.741/2011 is held to have successfully established that she is in lawful possession and enjoyment of the suit schedule property (title traced through vendor Gundappa, corroborated by sale deed Ex.P-1, khata, tax receipts, sanction plans, encumbrance certificates and revenue records). ¶¶211

Sri P Thanikachalam Vs Smt M Saroja — Karnataka HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Point I: Whether the plaintiff Saroja in O.S.No.741/2011 proves that she is owner and in possession of the suit property. +2 more

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Court's answer

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Ratio / Principle

Point II answered: the plaintiff in O.S.No.26605/2011 (Sri P. Thanikachalam) failed to prove his case of lawful possession of the scheduled property.

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Key takeaways

The sale deed Ex.D-56 executed by Smt. Kannamma (mother of the first defendant) in favour of the second defendant is not legal and in accordance with law: Kannamma, being only the wife of Perumal Gounder — a GPA holder who died in 2000, with the GPA dying with him — had no right, title or interest over the site in Khata No.108, so neither she nor the defendants derived title thereunder.ratio¶¶181
Lakkashettappa, predecessor-in-title of the defendants' father Perumal Gounder, lost right, title and interest in both civil and revenue proceedings (including RFA No.762/1996 and RFAs 579/2009 and 662/2009); consequently no title transferred to Perumal Gounder or, after his death, to Smt. Kannamma, and the claim of defendant Nos.1 and 2 through Lakkashettappa cannot be allowed.ratio¶¶195

Detailed headnote1 paragraphs

Connected Regular First Appeals RFA No.2189/2017 (by defendants P. Thanikachalam and Rukmini of O.S.No.741/2011) and RFA No.2190/2017 (by plaintiff P. Thanikachalam of O.S.No.26605/2011), under Sec.96(1) CPC, against the common judgment/decree dated 18.11.2017 of the XXIX Additional City Civil and Sessions Judge, Bangalore, which decreed Smt. M. Saroja's permanent-injunction suit (O.S.No.741/2011) over Sites Nos.20 and 29 (new No.51), Nagarabhavi village, Yashwanthpur Hobli, Bangalore, and dismissed Thanikachalam's rival bare-injunction suit (O.S.No.26605/2011) claiming Site No.48 through Lakkashettappa. Held: (i) Saroja, tracing title through vendor Gundappa, established lawful possession and enjoyment via registered sale deed dated 28.01.2005 (Ex.P-1), khata certificate/extract, tax receipts, sanction plans, encumbrance certificates, RTC and mutation entries; Gundappa had prevailed over Lakkashettappa in civil and revenue proceedings (RRT.Cr.No.946/86-87; RA No.7/87-88 dismissed 31.05.1988; suit decreed ex-parte, remitted after RFA No.762/1996 allowed Gundappa's appeal, again dismissed after remittal in RFA.No.102/2003, finally dismissed 09.04.2009 attaining finality; RFAs 579/2009 and 662/2009 confirming Lakkashettappa had no right over Sy.No.83/2). (ii) The defendants' documents — sale deed Ex.D-1 dated 15.09.1980 (1.1 guntas agricultural land, Sy.No.83, no site number), gift deed Ex.D-2 dated 19.12.2001 and sale deed Ex.D-56 dated 19.12.2001 executed by Smt. Kannamma — conveyed no title: Lakkashettappa having lost all right/title/interest, and Kannamma being merely the wife of Perumal Gounder, a GPA holder who died in 2000 (the GPA dying with him), nothing passed to the defendants; their claim through Lakkashettappa cannot be allowed, and their bare-injunction suit (without a declaration prayer) was not maintainable given the cloud over their title. Points I–III answered accordingly; both appeals dismissed.

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RFA NO.2189/2017 C/W RFA NO.2190/2017

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IN THE HIGH COURT OF KARNATAKA, PRINCIPAL BENCH AT BENGALURU DATED THIS ON WEDNESDAY , 09^TH DAY OF APRIL , 2025

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BEFORE

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HON'BLE JUSTICE K.NATARAJAN

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REGULAR FIRST APPEAL NO.2189 OF 2017 C/W

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REGULAR FIRST APPEAL NO.2190/2017

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RFA NO.2189/2017:

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BETWEEN:

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1 . SRI P. THANIKACHALAM

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S/O LATE PERUMAL GOUNDAR,

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AGED ABOUT 57 YEARS, RESIDING AT NO.11 3^RD FLOOR 2^ND “A” MAIN ROAD, BYRAVESHWARA NAGAR NAGARABHAVI MAIN ROAD, BENGALURU-560 072.

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Digitally signed by NIJAMUDDIN JAMKHANDI Location: HIGH COURT OF KARNATAKA

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2 . SMT. RUKMINI

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AGED ABOUT 50 YEARS, W/O SRI P. THANIKACHALAM RESIDING AT NO.11 3^RD FLOOR, 2^ND “A” MAIN ROAD, BYRAVESHWARA NAGAR NAGARABAVI MAIN ROAD, BENGALURU-560 072.

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...APPELLANTS

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(BY SMT. KAMALA T., ADVOCATE FOR SRI. H. M. MURALIDHAR, ADVOCATE )

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AND

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SMT. M SAROJA W/O SRI Y. MANJUNATHA, AGED ABOUT 52 YEARS, REPRESENTED BY HER GPA HOLDER SRI MANJUNATHA AGED ABOUT 45 YEARS, S/O R. YERAPPA R/O DOOR NO.16/39 II MAIN, KGS LAYOUT, VIJAYANAGARA BENGALURU-560 040.

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…RESPONDENT

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(BY SRI.M. B. CHANDRACHOODA, AND SRI. JAMADAGNI P. S. ADVOCATES)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SEC.96(1) OF CPC., PRAYING TO SET ASIDE THE ORDER OF JUDGMENT AND DECREE DATED 18.11.2017 PASSED BY THE XXIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE, IN O.S.NO.741/2011.

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RFA NO.2190 OF 2017:

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BETWEEN:

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SRI P. THANIKACHALAM S/O LATE PERUMAL GOUNDAR AGED ABOUT 57 YEARS, RESIDING AT NO.11 3^RD FLOOR, 2^ND “A” MAIN ROAD, BYRAVESHWARA NAGAR NAGARBAVI MAIN ROAD, BENGALURU-560 072. ...APPELLANT (BY SMT. KAMALA T., FOR SRI. H. M. MURALIDHAR, ADVOCATE)

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...APPELLANT

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RFA NO.2189/2017 C/W RFA NO.2190/2017

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AND

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1 . SMT. M. SAROJA W/O SRI Y. MANJUNATHA AGED ABOUT 52 YEARS, RESIDING AT NO.16/39 II MAIN K. G. S. LAYOUT, VIJAYANAGAR BENGALURU-560 040

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2 . SRI Y. MANJUNATH S/O R. YERAPPA, AGED ABOUT 50 YEARS, RESIDING AT NO. 16/39, II MAIN K.G.S. LAYOUT, VIJAYANAGAR

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BENGALURU-560 040

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..RESPONDENTS

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(BY SRI. M. B. CHANDRACHOODA, ADVOCATE)

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THESE REGULAR FIRST APPEALS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 07.02.2025 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE K.NATARAJAN

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RESERVED FOR ORDERS ON: 07.02.2025 PRONOUNCED ON : 09.04.2025

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CAV JUDGMENT

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RFA.No.2189/2017 is filed by the defendant Nos.1 and

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2 for setting aside the judgment and decree passed by the

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XXIX Addl. City Civil and Sessions Judge, Bangalore in O.S.No.741/2011.

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RFA.No.2190/2017 is filed by the appellant - plaintiff in O.S.No.26605/2011 as against the judgment passed by the same Court, for having dismissed the suit of the plaintiff.

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Heard the learned counsel for the plaintiffs and learned counsel for the defendants.

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Ranks of the parties are maintained as before the Trial Court for convenience.

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The case of the plaintiff in O.S.No.741/2011, who is also defendant in O.S.No.26605/2011 is that the plaintiff filed a suit seeking to restrain the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property situated at Nagarabhavi village,

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Yashwanthpur Hobli, Bangalore bearing No.20 and 29 together with new No.51 given by BBMP. The boundary of the said property is as under:

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East by site No.19 and 30. West by site No.21 and 28. North by road. South by road.

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Measuring East to West 30ft. North to South 80 ft. (herein after referred to as ‘the suit schedule property’). The plaintiff contends that the suit schedule property was purchased under registered sale deed dated 28.01.2005. Thereafter, the Khata of the property was obtained and she has paying taxes to the suit schedule property and also obtained the sanctioned plan for putting up the construction. But, due to financial constraints she could not put up the construction. But, the defendants do not have any right over the schedule property, claiming through one Smt. Kannamma, the mother of first defendant, who said to have executed a gift deed in favour of first defendant and she said to have purchased the site through registered deed dated 16.09.1980 in respect of

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Khata No.302 and second defendant purchased the site from her mother in law in respect of Khata No.108.

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The Plaintiff further contended that the she is claiming title over the suit schedule property from one Gundappa, whereas the defendants are claiming the title through one Lakkashettappa. There was a dispute between both owners in OS No.4772/1988, which was decreed against Gundappa and the said Gundappa filed an appeal in RFA No.762/1996 and matter was remitted back. Thereafter, the suit was dismissed once again. The Lakkashettappa filed RFA No.102/2003 once again and the matter was remitted back and thereafter, once again the suit was dismissed on 09.04.2009. Therefore, it is contended that the plaintiff has right over the property, whereas the defendants and vendors in title have already lost the case. But, the defendants are trying to interfere with the schedule property. Hence, she has filed the suit seeking injunction against the defendants.

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The fact of the case in O.S.No.26605/2011 is that

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the plaintiff is the owner and is in possession of the suit

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property, who is also defendant No.1 in O.S.No.741/2011. It is contended that the plaintiff is the owner and possessor of Site No.48 situated at 4^th main Bhairveshar Nagar, Nagarbhavi, measuring east - west 30 feet north – south 80 feet and it is originally measuring 11 guntas of land in Sy.No.38 of Nagarabhanvi village belongs to one Lakkashettappa who acquired the land under the registered will deed dated 14.11.1978 and the said Lakkashettappa sold the same to one Perumal Gowndar, who is none other than the father of the plaintiff, purchased by sale deed on 15.09.1980. The said Perumal Gowndar was in possession of the property put up a small shed. The said Perumal Gowndar died on 23.11.2000 by living behind plaintiff and his mother Smt. Kannamma. His mother Smt. Kannamma was in possession of the property and gifted to the plaintiff under gift deed dated 19.01.2000. Thereafter, the plaintiff obtained the Khata and paid the tax and he is possession of the same. He has obtained the license for construction on 30.10.2010.

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He further contended that the defendant has filed

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a suit in O.S.No.741/2011 for bare injunction claiming to the owner for non existing property. When the plaintiff digging site for construction, the defendant trying to interfere with the same. Hence, prayed for granting the injunction.

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The defendants No.1 and 2 filed the written statement contending that the suit of the plaintiff is not maintainable, since the defendant No.1 already filed a suit in O.S.No.741/2011. The defendant No.1 is the owner of the property, purchased on 28.01.2005 and obtained Khata from BBMP and paying the taxes. The plaintiff claimed the property through his mother through gift deed and sale deed dated 16.09.1980 and they tracing the title through one Lakkashettappa, whereas the defendant No.1 claiming the title through one Sri. M.P. Gundappa.

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It is further contended that there was a litigation between Lakkashettappa and Gundappa, the said Lakkashettappa filed a suit in O.S.No.4722/1988 which was decreed as ex-parte, against the Gundappa. Later the said

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Gundappa filed appeal in RFA.No.762/1996 where it was decided in his favour and granted injunction in respect of Sy.No.83/1 measuring 03 acres 01 gunta retained by Gundappa’s family. The matter remanded back to the Trial Court. Later, the said suit was dismissed on 04.11.2003 and again the said Lakkashettappa filed an appeal before the High Court in RFA.No.102/2003, which was remanded again on 26.11.2007. Thereafter, once again the suit was dismissed on 09.04.2009. Thus, the said Lakkashettappa failed to get any relief against the Gundappa. Therefore, the claim of the plaintiff through Lakkashettapa who do not have any right over the property. Therefore, it is contended that the defendant No.1 is in possession of the schedule property. Hence, prayed for dismissing the suit of the plaintiff.

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In O.S.No.741/2011 the plaintiff along with his wife have filed the written statement by taking the same contention.

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Based on the pleadings, the Trial Court framed the following issues in O.S.No.741/2011:-

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“1. Whether the plaintiffs prove that they are in lawful possession and enjoyment of suit schedule property?

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Whether the plaintiff proves that, the defendant is illegally interfering in the peaceful possession and enjoyment of the plaintiffs over the suit schedule property?

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Whether the plaintiffs are entitled for the relief of permanent injunction as prayed in the plaint?

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What order or decree?”

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Based on the pleading, the Trial Court framed the

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following issues in O.S.No.26605/2011:-

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“1. Whether the plaintiff proves that, he is in lawful possession and enjoyment of suit schedule property.?

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Whether the plaintiff proves that, the defendants are illegally interfering in the peaceful possession and enjoyment of the plaintiff over the suit schedule property.?

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Whether the plaintiff is entitled for the relief of permanent injunction as prayed in the plaint?

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What order or decree?”

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The Trial Court subsequently clubbed both the

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matters and the common evidence has been led. The plaintiff in O.S.No.741/2011 treated as plaintiff and the plaintiff in O.S.No.26605/2011 treated as defendant.

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The GPA holder of the plaintiff who is also husband of the plaintiff namely Manjunath examined as PW.1 and got marked 42 documents as per Ex.P.1 to 42. He also examined one more witness as PW.2. The defendant No.1 examined as DW.1 and also examined DW.2 and got marked 82 documents as per Ex.D.1 to Ex.D.82.

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After hearing the arguments, the Trial Court answered the issues No.1 to 3 in the affirmative in O.S.No.741/2011 and issues No.1 to 3 in the negative in O.S.No.26605/2011. Ultimately, the suit in O.S.No.741/2011

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has been decreed, wherein the suit of the defendant in O.S.No.26605/2011 is dismissed.

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Assailing both the decisions, the defendants filed

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these two appeals before this Court.

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The learned counsel for the appellant has

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strenuously contended that the property was purchased by the father of the appellant one Perumalgounder, both sites were purchased by the father and later he has died, the appellant as well his mother become the owner of the property. Later his mother gifted the property to the plaintiff on 19.12.2001. They are continued in possession, but the respondent trying to interfere over the property. Therefore,

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the suit came to be filed by the very plaintiff, which was dismissed, whereas the suit of the respondent came be decreed. The property was originally belongs to one Lakkashettappa and he has sold the property to the Perumal Gowndar and subsequent death of the Perumal Gowndar, the appellant’s mother gifted the property i.e., one site and another site has been purchased by the defendant No.2 who is his wife – Smt. Rukmini from the mother of the appellant

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and they are in continue possession. It is further contended

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by the learned counsel that the father of the appellant purchased one more site, which is in possession of the brother of the appellant. The PW.2 one Mohankumar who is carpenter who was created the documents and adduced the evidence in favour of the plaintiff, but the plaintiff do not have any right over the property. The site numbers were changed by the respondent – plaintiff and claiming the property which is not correct. The Trial Court committed error in dismissing the suit and allowing the suit of the respondent. Hence, prayed for setting aside the same.

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On the other hand, the counsel for the respondent has supported the judgment and decree passed by the Trial Court contending that the land Sy.No.81/3 was under the dispute, wherein the appellant’s father Perumalgounder claims the title through Lakkashettappa who is said to be the owner of the 11 guntas of land, whereas the respondent – plaintiff traces the title through one Gundappa. There was litigation between Lakkashettapa the vender of the appellant and the Gundappa vender of the respondent, which were

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attained finality, where the Lakkashettapa failed to get any right, title or interest over the said property. Such being the case, no right or title derived by the father of the appellant for claiming over the property. Therefore, the Trial Court rightly decreed the suit of the respondent and dismissed the suit of the appellant. Hence, prayed for dismissal of the appeals.

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Having heard the arguments and perused the records, the points that would arise for this Court are as under:-

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I. Whether the plaintiff – Saroja in O.S.No.741/2011 proves that she is owner and in possession of the suit property.?

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II. Whether the plaintiff in O.S.No.26605/2011 proves that he is in lawful possession of the scheduled property?

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III. Whether the judgment of the Trial Court decreeing the suit of the plaintiff in O.S.No.741/2011 and dismissing the suit in O.S.No.26605/2011 call for interference.?

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On perusal of the records it is seen that the plaintiff examined himself as PW.1 and got examined PW.2 and got marked 42 documents as per Ex.P.1 to 42. On behalf of the defendants, they themselves examined DW.1 and DW.2 and got marked 82 documents as per Ex.D.1 to Ex.D.82.

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On perusal of documents it is seen that the plaintiff in OS No.741/2011 claims that she is the owner of the suit schedule property purchased through a registered sale deed dated 28.01.2005. The Ex.P-1 is the sale deed. The schedule mentioned in the property are two sites bearing site Nos.20 and 29 measuring 30x40 ft each, totally measuring 30x80 ft. The boundaries for site No.20 are as under:

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East by site No.19 West by site No.21 North by road South by site No.29

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The boundaries for site No.29 are as under:

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East by site No.30 West by site No.28 North by site No.20 South by road.

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After purchase of the property, the taxes were paid by the plaintiff as per Ex.P-2 and P-3 dated 05.03.2005 and 15.3.2005. The EX.P-4 is Khata registration, where the assessment was made for payment of tax. Ex.P-5 is acknowledgment for having paid the taxes dated 22.03.2005. Ex.P-6 is another tax paid receipt. Ex.P-7 is the Khata Extract. Ex.P-8 is the Khata Certificate, which stands in the name of the Plaintiff- Smt. Saroja. Ex.P-9 is another tax paid receipt. Ex.P-10 and 11 are the sanction plans obtained for constructing the building. Ex.P-12 is the permission and Ex.P-13 is the sanction plan. Ex.P-14 to 18 are the tax paid receipts. Ex.P-19 and 20 are the encumbrance certificate, obtained from 01.04.1990 till 31.03.2004 prior to purchase of the sites by the plaintiff. Ex.P-21 is another encumbrance certificate from 01.04.2004

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till 25.11.2010. These documents corroborate with the evidence of PW-1, who is the husband of the plaintiff. Ex.P22 is the General Power of Attorney executed by the plaintiff

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in favour of her husband. Ex.P-23 is RTC standing in the name of vendor of the plaintiff Gundappa. Ex.P-24 is the mutation register, which shows that the name of Gunadappa was effected as per IHC No.2/90-91 in respect of Sy.Nos.82/1 and 83/1. Ex.P-25 is the revenue proceedings before the Assistant Commissioner under Section 136(2) of KLR Act, 1964, filed against the vendor of the plaintiff for changing the name in the revenue record, which was dismissed.

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The Ex.P-23 to 25 would go to show that the plaintiff’s vendor Gundappa was the owner and was in possession of suit schedule property in Sy.Nos.82/1 and 83/1, the same was confirmed by the Assistant Commissioner in Ex.P-25, which corroborates evidence of PW-1 that vendor of the plaintiff having title over the land and from the GPA holder of original owner Gundappa, the

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suit schedule property was purchased by the plaintiff. Subsequently, the Khata was transferred in the name of plaintiff and she has been paying the taxes.

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The Ex.P-26 and 27, the Khata Certificate and

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Khata Extract also show the name of plaintiff in order to prove that she is in possession and enjoyment of suit schedule property. The Ex.P-28 is the RRT proceedings No.946/86-87 initiated by Gundappa against the vendor of the defendant Lakkashettappa, wherein the contention of the plaintiff’s vendor has been upheld.

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Ex.P-29 is the appeal filed before the Assistant Commissioner in RA No.7/87-88 filed by the vendor of the defendant Lakkashettappa and others, which came to be dismissed. Which clearly reveals that the vendor of the plaintiff, Gundappa was having rights over the suit schedule property. Ex.P-30 and 31 are the sketches. Ex.P-32 is the judgment delivered by the High Court of Karnataka in RFA No.762/1996, where the appeal filed by the Gundappa came to be allowed. Ex.P-33 is another judgment in RFA

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No.579/2009 connected with RFA No.662/2009 filed by the children of Lakkanna, which came to be disposed off. This document also confirms the title of the vendor of the plaintiff in respect of the suit schedule property.

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Ex.P-34 is copy of the sale deed dated 12.08.2004, executed by one K. Nilesh in favour one K. G. Ratnamma in respect of site No.30, which is adjacent to the suit schedule property of the plaintiff, which also corroborates the evidence of the plaintiff.

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Ex.P-35 is another sale deed executed by children of Gundappa in respect of site No.31, which is also adjacent to the site of the plaintiff. These two documents reveal the adjacent boundary of the suit schedule property. Ex.P-36 to 39 are the photographs showing the vacant sites. Ex.P-40 is CD and Ex.P-41 is layout plan, which also shows the formation of site No.20 and 29, which are adjacent to each other. Ex.P-42 is also photographs, of the suit schedule property.

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These documents clearly show that the plaintiff is

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in possession and enjoyment of suit schedule property. The evidence of PW-1 is not elicited by the defendant counsel in the cross examining to disbelieve the evidence and the documents of the plaintiff. The PW-2, who is the GPA holder has also given evidence in support of the plaintiff for alienating the suit schedule property. In the cross examination of PW-2, it is seen that a criminal case has been registered and all the allegations made by the defendants’ counsel has been denied by him.

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On the other hand, the case of the defendants, who got examined themselves as DW-1 and 2 is that the first defendant is the owner of site bearing BBMP No.48 and second defendant is owner of site bearing BBMP No.5, measuring 30x40 ft. each. It is contended the Lakkashettappa was the owner of the land acquired through will dated 14.11.1978, measuring 1 acres 7 guntas in Sy.No.83 and the land belonged to the family of Lakkashettappa. The Lakkashettappa formed the sites and

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sold 1.1 guntas in the said survey number to one Perumal Gownder, father of defendant No.1 in 1980. The said Perumal Gownder put up a small shed in the site. Then, the defendants contend that the Perumal Gownder purchased one more bit of property in the same survey number and got GPA in his name on 14.09.1982. After death of defendant’s father, his mother executed the gift deed in his favour and the said site is numbered as site No.48. He further deposes that his mother executed a sale deed on 19.12.2001, in favour of his wife Smt. Rukmini and she has been paying taxes, wherein the plaintiff is trying to interfere with the schedule property.

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To prove their contentions, the defendants also got marked 82 documents. The Ex.D-1 is the photographs of the site. Ex.D-2 is the gift deed dated 19.12.2001 executed by mother of the defendant No.1, in respect of site No.302 measuring 30 x 40 ft. It is contended that his father purchased the property from one Lakkashettappa and after death of his father, his mother got the property and executed

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the gift deed in the year 2001. The same is seriously disputed by the plaintiff. The Ex.D-2(a) is another photograph. Ex.D-3 is Encumbrance Certificate. Ex.D-4 is also Encumbrance Certificate. Ex.D-5 is the demand notice for the payment of tax dated 23.07.2002. Ex.D-6 is the affidavit issued by the BBMP stating that house No.48 stands in the name of Tanikachalam, the first defendant. Ex.D-7 is the Khata Certificate standing in the name of first defendant. Ex.D-8 is the Khata Extract. Ex.D-9 to 19 are the tax paid receipts.

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Ex.D-20 to 24 are the tax paid receipts. Ex.D-25 is the receipt for depositing the amount for obtaining the water supply. Ex.D-26 is the demand notice issued by BWSSB. Ex.D-27 to 31 are the receipts issued by the BWSSB. Ex.D-32 is the plan sanction issued by the BBMP. Ex.D-33 is receipt for having paid the amount. Ex.D-34 is the copy of sanction plan. Ex.D-35 to 38 are the receipts.

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Ex.D-39 is the sale deed dated 18.03.2005 executed in favour of one D. C. K. Kalegouda by one Smt.

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Ramasubbamma through her GPA holder Smt.

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Lakshmamma, which shows that the sale was effected in respect of site No.3 measuring 60 x 40 ft. which has nothing to do with the suit property.

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Ex.D-40 is a copy of the FIR registered by Chandra layout police filed against one Mohankumar. Ex.D41 is the mutation extract in respect of order No.RRT/CR/539/2004-05. Ex.D-42 is another copy of mutation in RRT/CR/961/2004-05. Ex.D-43 to 55 are photographs.

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Ex.D-56 is the sale deed of the second defendant Smt. Rukmini dated 19.12.2001 executed by her mother in law Smt. Kannamma in respect of Khata No.108 assessment No.88 measuring 30x40 ft. There is no site number mentioned in the said sale deed.

¶160

Ex.D-57 is the declaration of payment of tax. Ex.D-58 is the Khata Certificate. Ex.D-59 is the Khata Extract Ex.D-60 is the Encumbrance Certificate. All these documents

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do not refer to any site numbers except the measurement as 30x40 ft. Ex.D-61 and 62 are the Encumbrance Certificates. Ex.D-63 and 64 are also Encumbrance Certificates. Ex.D-65 to 76 are the tax paid receipts and acknowledgments. Ex.D77 to 82 are the tax paid receipts for payment of taxes, where the tax paid receipt is issued in the name of second respondent without any site numbers.

¶164

On perusal of the evidence of DW-1 and in the cross examination, he has admitted that while purchasing the site by his father they have not verified the title of Lakkashettappa in respect of Sy.No.83/1 and they do not know about the measurement or extent of the land. He further admitted the Ex.D-1, the sale deed executed in favour of his father in respect of Sy.No.83 measuring 1.1 guntas and he further admits that there is no formation of sites and it is referred as agricultural land measuring 1.1 guntas. Further, he admitted that in Ex.D-2 while executing the gift deed, the measurement was given by his mother as 30x40 ft. On perusal of the boundaries and the measurement

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of the properties, where Ex.D-1 is a sale deed executed in favour of the father of first defendant and based upon the Ex.D-1, the mother of the first defendant executed gift deed in respect of one site, which is shown as assessment No.83 with the boundary as under:

¶168

East by Lakshimi’s property West by Lilly’s property North by Rukmini’s property South by road.

¶169

But, the boundaries both Ex.D-1 and D2 differs each other, as the second defendant’s name was mentioned on the southern boundary. However, this sale deed goes to show the father of the first defendant Perumal Gownder said to have purchased the land from Lakkashettappa and his mother executed the gift deed in his favour.

¶170

Whereas in respect of the sale deed executed by the very mother of first defendant Smt. Kanamma in favour of wife of first defendant Smt. Rukmini in respect of adjacent site, which is based upon a GPA executed by Lakkashettappa

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in favour of the Perumal Gownder and the said Perumal Gownder died in the year 2000. It is clear case of the second defendant that the sale deed was executed by her own mother in law Smt. Kannamma in her favour based upon the GPA executed in favour of her husband i.e. Perumal Gownder. It is submitted by learned counsel for the appellant that though the Lakkashettappa executed the sale deed in favour of Perumal Gownder in respect of one site as per Ex.D-1, but in respect of second site, the Lakkashettappa executed only a GPA in name of Perumal Gownder. But, the Perumal Gownder died in the year 2000. Perumal Gownder obtained GPA on 14.09.1982 and he died in the year 2000. Subsequently, mother in law of second defendant executed the sale deed in her favour under the sale deed dated 19.12.2001 as per Ex.D-56.

¶174

The counsel for the respondent has contended that Lakkashettappa executed the GPA in favour of the Perumal Gownder in 1982 and the Perumal Gownder has not executed any sale deed either in favour of his wife or in

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favour of his family members. But, he died in 2000. Therefore, the GPA dies along with the GPA holder in 2000 itself. Therefore, the wife of Perumal Gownder i.e. Smt. Kannamma will not derive any title over the site, which was sold by Smt. Kannamma in favour of the second defendant. Once the GPA holder dies, the GPA also dies along with him. Therefore, Smt. Kannamma do not derive any right, title or interest over the site in Khata No.108 for executing the sale deed under Ex.D-56 in favour of the her own daughter in law.

¶178

It is also pertinent to note that the very Smt. Kannamma, mother of first defendant executed gift deed on 19.12.2001 under Ex.D-2 in favour of her son Thanikachalam (the appellant) in respect of site No.302 and on the same day she has executed sale deed in favour of her daughter in law under Ex.D-56 in respect of a site without site number and assessment No.88 and Khata No.108. Absolutely, there is no right over the property for the Smt. Kannamma, who is the wife of the Perumal Gownder, the GPA holder to execute

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a sale deed. Therefore, the sale deed executed by the Smt. Kannamma, mother of first defendant in favour of second defendant is not legal and in accordance with law. Therefore, the second defendant will not derive any right, title or interest over the site in Khata No.108, assessment No.88 measuring 30x40 ft. Therefore, the contention of defendant No.2 that she is the owner and is in possession of the property measuring 30x40 ft, with Khata No.108 and assessment No.88 is not sustainable under the law. Therefore, the suit filed by the defendant Nos.1 in OS No.26605/2011 cannot be decreed.

¶182

The second defendant Smt. Rukmini has not filed any separate suit against the plaintiff for having purchased the site under Ex.D-56, whereas the first defendant alone filed a suit against the plaintiff in respect of both the sites. Wherein the Ex.D-2 is a gift deed, standing in the name of first defendant Thanikachalam executed by his mother also has no legal value as the father of first defendant purchased the site from Lakkashettappa under Ex.D-1 on 15.09.1980

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Though, the site number is not mentioned, but, it contains measurement of the site as 1.1 guntas. But, in Ex.D-2, the mother of first defendant has given the site No.302. The very same property has been gifted by the Smt. Kannamma in favour of first defendant.

¶186

Though, the plaintiff has taken contention that the Sy.No.83 as having dispute between the land owners, the Gundappa, vendor of the plaintiff was succeeded and the vendor of the defendant’s father Lakkashettappa, suffered decree in civil cases and RFA No.762/1996. It is also seen

¶187

from the records, especially that there was a dispute in respect of Sy.No.83 between Lakkashettappa, the vendor of the defendant’s father and one Gundappa, the vendor of the petitioner. The revenue proceedings initiated by the legal heirs of Lakkashettappa was also dismissed. The revision petition also went against the Lakkashettappa. The Lakkashettappa filed the suit against Gundappa. The suit was decreed ex-parte. The Gundappa filed an appeal, which came to be allowed and the matter was remitted back and

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subsequently, the suit filed by the Lakkashettappa, was dismissed. Once again, the Lakkashettappa filed another appeal before the High Court of Karnataka and once again, the matter was remitted back to the Trial Court and thereafter, once again the suit was dismissed, which attained finality. Thereby, the vendors of the defendant’s father, who are the predecessor of the title, lost the right, title and interest over the property and therefore, no right or title transfers either in the name of Perumal Gownder or after his death, to his wife Smt. Kannamma, either to execute gift deed or sale deed in favour first or second defendant. Therefore, the documents produced by the defendants regarding Ex.D-1 and D-56, will not derive any title in their favour.

¶191

That apart, the revenue proceedings initiated by

¶192

the Lakkashettappa’s family, came to have attained finality as the family of the Lakkashettappa, lost the case in revenue proceedings also. Even subsequent proceedings in civil appeals in RFA No.579/2009 and 662/2009 (Ex.P-33), where

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it is stated that the Lakkashettappa do not have any right over the property in Sy.No.83/2 and the sale deed executed by him exceeds the extent of 2 acres and not merely 1 acre 20 guntas. Such being the case, the claim of defendant Nos.1 and 2 through vendor Lakkashettappa, who does not have any right over the property, cannot be allowed.

¶196

From the evidence of PW-1 and 2 and the documents therein, the sale deed and revenue proceedings, (Ex.P-25) shows that the Lakkshettappa, lost the case against the Gundappa, where Gundappa’s name was entered in the revenue records. Thereafter, the Khata is extracted in the name of Gundappa and subsequently to his successors. The revenue proceedings filed by the Gundappa in RRT.Cr.No.946/86-87 at Ex.P-28 clearly reveals the name of Gundappa was mentioned by removing the name of Muniswamy by the Tahasildar. The same was challenged before the Assistant Commissioner under Ex.P-29 in RA NO.7/87-88, which came to be dismissed on 31.05.1988.

¶197

Thereby, the vendors of the plaintiff succeeded in both Civil

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Court as well as Revenue Court and the said Gundappa executed GPA in favour of PW-2 and PW-2 as a GPA holder sold the property to the plaintiff. Both PW-1 and 2 have given evidence before the Trial Court and there is nothing elicited to disbelieve the evidence of the plaintiff and the documents.

¶201

On perusal of the tax paid receipts, assessment extract, Khata certificates, it is seen that the BBMP has received taxes both from the plaintiff and defendants with different site numbers and photographs also reveal existence of two sites, wherein the plaintiff claims site No.20 and 29, whereas the defendants claim two different numbers and the defendants do not have any right over the schedule property.

¶202

A careful consideration of the documents of the plaintiff establish the right over the schedule property. Though, the defendants filed written statement in OS No.741/2011, but, also filed a separate suit in OS No.26605/2011, for bare injunction, not suit declaration to declare that they are the absolute owners of two sites. That

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apart, the alleged sale deed of the Perumal Gownder does not disclose the measurement of the property as 30x 40ft. and also there is no assessment number or site number given by the BBMP. It only says measurement 1.1 acre of land and without mentioning property number, but mentioning Sy.No.83. There is no proper description and identity of the defendant’s property.

¶206

Both the defendants claim the title over the property. The first defendant claims title through the gift deed of the mother, who is not the owner of the property and second defendant claims sale deed through her mother in law, who is not the owner of the property at all. Whereas

¶207

the site is said to be purchased by the Perumal Gownder from Lakkashettappa, who does not have any right or title over the property. The vendor Lakkashettappa has lost the title and interest in both civil and revenue proceedings. Therefore, whatever the documents produced by the defendants, are all subsequent documents after execution of sale deed and gift deed and the suit for bare injunction is not

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maintainable, when there is a cloud over the title of the defendants.

¶211

Therefore, I hold that the plaintiff is successful in establishing the case that she is in lawful possession and enjoyment of suit schedule property in OS No.741/2011, whereas the plaintiff in OS No.26605/2011 has filed to prove his case. Hence, answered the point Nos.1 and 2 accordingly.

¶212

In view of the findings in point Nos.1 and 2 by claiming the right over the suit schedule property, the plaintiff is successful in proving the interference by the defendants. Considering the entire evidence on record, the Trial Court has rightly decreed the suit of the plaintiff and decreed the suit of defendants. Though, learned counsel for

¶213

the plaintiff has contended that the Gundappa entered into compromise before the High Court of Karnataka and received huge money from one Smt. Savitramma and relinquished the rights etc., those documents cannot be considered, since, there is no evidence on record, adduced before the Trial Court and also those documents are not in accordance with

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law. Therefore, without any pleading and without nay grounds in the appeal, the contention of the learned counsel for the plaintiff cannot be acceptable. Therefore, the judgment and decree passed by the Trial Court does not call for interference.

¶217

In view of the same, the both appeal are devoid of

¶218

merits are liable to be dismissed.

¶219

Accordingly, both the appeals are dismissed.

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Sd/(K.NATARAJAN) JUDGE

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NJ/KJJ CT:SI

Sri P Thanikachalam v. Smt M Saroja

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Sri P Thanikachalam v. Smt M Saroja

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