S Ramesh Vs Sri K Kaliyappan

S. RAMESH AGED ABOUT 47 YEARS, S/O LATE SHAMANNA R/AT SRIRAMPURA, JIGANI HOBLI, ANEKAL TALUK, BANGALORE URBAN DISTRICT. WRONG ADDRESS GIVEN BY THE PLAINTIFF THE CORRECT ADDRESS IS R/AT NAGAVARAPALYA, YELLAMMA TEMPLE STREET, CV RAMNAGAR, BANGALORE-560093.

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

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(BY SRI S. RAMA MURTHY, ADVOCATE)

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AND:

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…APPELLANT

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SRI K. KALIYAPPAN S/O C. KATTAPPAN, AGED ABOUT 59 YEARS, R/AT HOUSE NO.31, 4^TH MAIN, 2^ND CROSS, EVERGREEN STREET, UDAYANAGAR, BANGALORE-560016.

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SMT. VENKATAMMA W/O LATE SHAMANNA, AGED ABOUT 77 YEARS,

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HC-KAR

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SRI PARTHASARATHY S/O LATE SHAMANNA, AGED ABOUT 55 YEARS,

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SRI MANJUNATH S/O LATE SHAMANNA, AGED ABOUT 53 YEARS,

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RESPONDENT NOS.2 TO 4 ARE R/AT NAGAWARAPALYA, NO.381, C V RAMAN NAGAR POST, BANGALORE-560093.

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SRI GOVINDARAJU S/O LATE SHAMANNA, AGED ABOUT 58 YEARS, R/AT THIMMAGONDAHALLI VILLAGE, ANUGONDANAHALLI HOBLI, HOSKOTE TALUK, DIST. PINCODE-562114.

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SMT. YELLAMMA W/O NAGARAJ & D/O LATE SHAMANNA, AGED ABOUT 59 YEARS, R/AT CHALAGENAHALLI, HOSKOTE TALUK, DIST. PINCODE-562114.

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SMT. JAYAMMA W/O RAJAPPA & D/O LATE SHAMANNA, AGED ABOUT 49 YEARS, R/AT UDAYANAGAR, OPP. SHIVAMANDIR, DOORAVANINAGAR POST, BANGALORE-560016.

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…RESPONDENTS

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(BY SRI MANOHAR N., ADVOCATE FOR R-1; V/O. DATED 23/08/2025 NOTICE TO R-2 TO R-7 IS D/W)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 28.09.2021 PASSED IN O.S.NO.2889/2014 ON THE FILE OF THE XLII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DECREEING THE SUIT FOR PERMANENT INJUNCTION.

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HC-KAR

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IN RFA NO.77/2022

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BETWEEN:

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S. RAMESH AGED ABOUT 47 YEARS, S/O LATE SHAMANNA R/AT SRIRAMPURA, JIGANI HOBLI, ANEKAL TALUK, BANGALORE URBAN DISTRICT. PINCODE(WORKING ADDRESS GIVEN BY THE PLAINTIFFS) ACTUALLY RESIDING AT NAGAVARAPALYA, YELLAMMA TEMPLE STREET, CV RAMNAGAR POST, BANGALORE-93.

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...APPELLANT

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(BY SRI S. RAMA MURTHY, ADVOCATE)

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AND:

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SRI RAJIT KUMAR S/O VENUGOPALAN NAIR, AGED ABOUT 47 YEARS, R/AT NO.17, 42^ND MAIN, EVERGREEN STREET, UDAYANAGAR, BANGALORE-560016.

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SMT. RAJANI K.S. W/O RAJITKUMAR R/AT NO.17, 42^ND MAIN, EVERGREEN STREET, UDAYANAGAR, BANGALORE-560016.

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SMT. VENKATAMMA W/O LATE SHAMANNA, AGED ABOUT 77 YEARS,

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SRI PARTHASARATHY S/O LATE SHAMANNA, AGED ABOUT 52 YEARS,

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HC-KAR

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SRI MANJUNATH S/O LATE SHAMANNA, AGED ABOUT 53 YEARS,

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RESPONDENT NOS.3 TO 5 ARE R/AT NAGAWARAPALYA, NO.381, C.V. RAMAN NAGAR POST, BANGALORE-560093.

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SRI GOVINDARAJU S/O LATE SHAMANNA, AGED ABOUT 48 YEARS, R/AT THIMMAGONDAHALLI VILLAGE ANUGONDANAHALLI HOBLI, HOSKOTE TALUK, DIST. PIN CODE-562114.

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SMT. YELLAMMA W/O NAGARAJ & D/O LATE SHAMANNA, AGED ABOUT 59 YEARS, R/AT CHALAGENAHALLI, HOSKOTE TALUK, DIST. PIN CODE-562114.

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SMT. JAYAMMA W/O RAJAPPA & D/O LATE SHAMANNA, AGED ABOUT 49 YEARS, R/AT UDAYANAGAR, OPP. SHIVAMANDIR, DOORAVANINAGAR POST, BANGALORE-560016.

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...RESPONDENTS

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(BY SRI MANOHAR N., ADVOCATE FOR R-1 & R-2; V/O. DATED 12/02/2024 NOTICE TO R-3 TO R-8 IS D/W)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 28.09.2021 PASSED IN O.S.NO.2902/2014 ON THE FILE OF THE XLII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DECREEING THE SUIT FOR PERMANENT INJUNCTION.

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

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HC-KAR

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

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ORAL JUDGMENT

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Both the appeals are preferred by defendant No. 5, aggrieved by the judgment and decree dated 28.09.2021 on the file of XLII Additional City Civil and Sessions Judge, Bengaluru (CCH-43). RFA No.245/2022 arises out of O.S. No.2889/2014 and RFA No.77/2022 arises out of O.S. No.2902/2014.

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Brief facts:

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Plaint averments in RFA 245 of 2022:

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The plaintiff claimed ownership and possession of Site No. 31, katha No. 810/31, East-West 45 feet, NorthSouth 30 feet, totally 1,350 square feet. The plaintiff claims to have purchased the suit property from Shamanna, original owner of the property under a registered sale deed dated 21.01.1998. It is averred that he has built a house and residing in the suit property. Further that the defendants (the legal heirs of Shamanna),

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HC-KAR

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fraudulently obtained a partition decree in O.S. No.453/2003, through a compromise in Lok Adalat, suppressing the fact that Shamanna had already sold portions of Sy No.45/3 to various purchasers. The plaintiff claimed that the defendants are trying to interfere and dispossess them based on the fraudulent decree in O.S.No. 453/2003.

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Defendants written statement:

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The defendants denied the plaintiff's title and possession, contended that no site No. 31 existed in Sy No.45/3 and that the whole Sy. No.45/3 measuring 1 acre 30 guntas was allotted to defendant No. 5 (Ramesh) under the decree in O.S. No.453/2003. The defendants specifically averred that the plaintiff’s sale deed was concocted and unenforceable. The defendants including defendant No. 5 also filed counter claim seeking declaration of ownership and injunction and alternatively

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HC-KAR

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for possession and sought for dismissal of the suit and allowing of the counter claim.

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Plaint averments in RFA 77 of 2022:

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Rajith Kumar and one Rajani filed suit for permanent injunction in respect of house No. 30 (17), Khatha No.392, BBMP Sl.No.442, East-West 30 feet, North-South 40 feet, totally measuring 1,200 feet. The case of the plaintiffs is that the suit property-residential house bearing No.17 is carved out in Sy No.45/3, which was totally measuring 1 acre 30 guntas. Their title flowed through a chain of transactions i.e., Shamanna sold the site to Smt. Susamma on 03.03.2001, Susamma sold it to one R Ravichandran under registered sale deed dated 18.11.2010. Further Ravichandran sold it to the plaintiffs under the registered sale deed dated 05.08.2011. It is the case of the plaintiffs that they have constructed the house, obtained electricity and water connections. The plaintiffs specifically averred that the defendants fraudulently obtained a compromise decree in O.S. No.453/2003 and

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HC-KAR

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claimed that they are the absolute owners of the suit property and tried to disturb the plaintiffs peaceful possession.

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Defendants’ Written Statement:

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They denied the plaintiff's possession and ownership, asserting that in the year 2003, O.S No.453/2003 was compromised and the entire Sy.No.45/3 was allotted to defendant No. 5 (Ramesh) and he is in possession. It is averred that the plaintiffs sale deed is invalid and concocted. The defendants including the defendant No. 5 filed counter claim to declare that they are the absolute owner of Sy No.45/3 measuring 1 acre 30 guntas.

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Both the disputes relate to the sites, which is Site Nos. 17 and 31 carved out of Sy No.45/3 originally measuring 1 acre 30 guntas purchased by Shamanna in the year 1964.

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HC-KAR

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The plaintiffs relied upon the registered sale deed

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supported by tax receipts to contend that they are in possession of the suit properties. The defendants denied the sale and relied upon O.S. No.453/2003, the partition decree and claimed that defendant No. 5 was the absolute owner. The plaintiffs in both the suits specifically averred that the partition decree of O.S.No.453/2003 was fraudulent and collusive, as the land had already been alienated into sites before partition. In both the cases defendant No. 5 and the other defendants filed counter claims seeking ownership, declaration, injunction and possession.

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The trial Court by the judgment and decree decreed the suits, restrained the defendants by way of permanent injunction, from interfering with the plaintiffs peaceful possession and enjoyment of the suit property. The counter claim made by defendant Nos.1, 3 to 7 was rejected. The trial Court, arrived at a conclusion that the plaintiffs have proved that they are in possession and

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HC-KAR

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enjoyment of the suit properties and that the defendants have failed to prove the title, the possession over the property Sy No.45/3 measuring 1 acre 30 guntas and the defendants are not entitled for declaration.

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Heard the learned counsel appearing for the appellant and the learned counsel appearing for respondents 1 and 2 and perused the material on record.

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The learned counsel appearing for the appellant submits that the plaintiffs have relied upon the sale deeds, khatha extract, tax receipts and utility bills. These documents do not conclusively prove ownership of the alleged site, Site No.31 and Site No.17 and that the plaintiffs themselves have obtained the alleged sale deed by fraud. It is the submission of the learned counsel that when the plaintiffs stated that fraudulently a decree has been obtained in O.S. No.453/2003, without seeking declaration of title and without challenging the compromise decree, a bare suit for the injunction was not

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HC-KAR

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maintainable. It is argued that by virtue of the compromise decree in O.S. No.453/2003, Sy. No.45/3 was exclusively allotted to defendant No.5 and once such a decree exists, it confers lawful possession and ownership, which aspect has been totally ignored by the trial Court and the trial Court has erred in granting injunction in favour of the plaintiffs. It is the contention of the appellant that the plaintiffs have not proved the actual possession as on the date of the suit and no official plan, sanction, licence or BBMP records were produced to show the houses were lawfully constructed. It is argued that in the cross-examination, the plaintiffs admitted that they had not produced sanction plan and their own vendors did not hand over any documents. It is further submitted that the plaintiffs’ suit was only for bare injunction and suppressed material facts. It is further argued that the trial Court erred in framing and answering issue arising out of the counter claim when admittedly no written statement was filed by the plaintiffs in reply to the counter claim of

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HC-KAR

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defendant No.5 and a counter claim has to be specifically traversed by a written statement. In the absence of such a pleading, the trial Court could not have proceeded to frame issues or consider evidence thereon. It is argued that the plaint cannot be treated as a written statement to the counter claim. The cause of action, reliefs, and denials in the plaint are distinct from the statutory requirement of filing a reply to a counter claim. That the plaintiffs failed to file the written statement, the counter claim stood unrebutted, and in law, such failure entitles the defendants to succeed on the counter claim unless it is barred on the face of it. Therefore, it is argued that the trial Court's rejection of counter claim, without considering this aspect, has resulted in grave miscarriage of justice.

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Per contra , learned counsel appearing for the respondents submits that the appellant/defendant No.5 mainly relied upon the compromise decree in O.S. No.453/2003 decided in Lok Adalat on 10.09.2003. Under this decree, Survey No.45/3 measuring 1 acre 30 guntas

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HC-KAR

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was specifically allotted to defendant No.5-Ramesh along with the other properties. At that time, the defendant was aware of the sale deed. Shamanna-the father of the appellant, had purchased Survey No.45/3 and during his lifetime divided the land into revenue sites. He sold several sites to the third parties and his sharers also continued those alienations. Taking the Court to Exs.P11, 12 and 13, learned counsel submits that, Shamanna and his children, including the present appellant/defendant No.5 (Ramesh) executed a registered sale deed in favour of Jayakumar Kollara Madhavan Nair in respect of Site No.38, Khata No.45/3/126 under Ex.P11 in O.S. No.2902/2014 and this shows that the family itself admitted the formation and alienation of sites out of Survey No.45/3 and defendant No.5 was a vendor and hence, he cannot plead ignorance of alienation. It is further stated that after Shamanna's death, his wife Venkamma and children including Ramesh, sold site No.17 in O.S. No.2902/2014 under Ex.P12 to Smt. Susamma.

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HC-KAR

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This is the very property which later came to Susamma, then to Ravichandran and the respondents under Ex.P1 dated 05.08.2011. Since the appellant himself executed Ex.P12, he is estopped from disputing the respondents’ title. It is further contended that the appellant relied on the compromise decree, where Survey No.45/3 was allotted to Ramesh. However, this decree was obtained after the alienation of 1998 and 2001 by suppressing the alienation. A decree has been obtained by suppression, fraud and cannot prevail over the rights of the bonafide purchaser. It is submitted that the plaintiffs-respondents proved their possession through registered sale deeds, katha certificate, tax paid receipts and the Trial Court’s decree is based on the oral and documentary evidence, which warrants no interference.

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To the contention regarding the non-filing of written statement to the counter claim, it is submitted that even though no written statement to the counter claim was filed, the burden of proof lies squarely on defendant

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HC-KAR

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No.5-counter claimant to establish the ownership and possession. According to the learned counsel, the counter claim was solely based on the partition of the year 2003, which itself was a fraudulent document. It is submitted that evidence on record, more particularly, the sale deeds, conclusively established the plaintiffs’ possession and the counter claim filed has to automatically fail.

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Having heard the learned counsel appearing for the parties, the point that arises for consideration is:

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“Whether the appellant-defendant No.5, who himself was a party and vendor to the earlier alienations under Ex.P11 dated 20.01.1988 and Ex.P12-the sale deed of the year 2001, can later on rely on the partition decree obtained in O.S. No.453/2003 dated 10.09.2003 to dispute the plaintiffs title and possession over the suit property?”

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This Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the material on record.

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HC-KAR

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Ex.P11 in O.S. No.2902/2014, is the registered sale deed dated 20.01.1998 executed by Shamanna and his children, including defendant No.5 in favour of one Jayakumar Kollara Madhavan Nair in respect of Site No.38 formed in Survey No.45/3. This document, Ex.P11, is a crucial document, which shows that as early as 1998 the family itself treated Sy. No.45/3 as converted into sites and alienated the same. Defendant No.5 is the signatory to the said document and thus, disproves his contention and his plea of ignorance.

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Ex.P12 in O.S. No.2902/2014-registered sale

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deed dated 03.03.2001 executed by Venkatamma, wife of Shamanna and children, including defendant No.5, in favour of Smt. Susamma conveying Site No.17 and the plaintiffs purchased the same from one Ravichandran, who had purchased the same property from Susamma. Once the defendants had already conveyed the title in the year 2001, they were estopped from disputing the same. Further, the compromise decree-Ex.P12 in O.S.

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HC-KAR

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No.453/2003 allotted Sy. No.45/3 to defendant No.5, however, by the date of compromise dated 10.09.2003, portion of Survey No.45/3 had already been sold under Exs.P11 and P12. The decree was obtained by suppressing the alienation, and the decree obtained by suppression cannot defeat the rights of the bonafide purchaser, who had purchased the property under registered sale deeds. The plaintiffs have relied upon Ex.P1- sale deed dated 05.08.2011 in O.S. No.2902/2014 and Ex.P1-sale deed dated 21.01.1998 in O.S. No.2889/2014, katha extracts, tax paid receipts to prove their title and possession. In a suit for injunction, the possession of the plaintiffs as on the date of the suit is decisive and the trial Court rightly found that the plaintiffs are in settled possession. Though defendant No.5 set up a counter claim, the burden was on him to prove his exclusive title and possession. Defendant No.5 having been a vendor under Exs.P11 and P12, he could not have claimed ownership by only relying upon Ex.P12-the compromise decree in O.S. No.453/2002. The

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HC-KAR

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trial Court has rightly rejected the counter claim of defendant No.5.

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For the foregoing reasons, the point framed for consideration is answered and this Court pass the following:

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ORDER

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i. The regular first appeals are hereby dismissed .

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ii. The judgments and decrees passed by the XLII Additional City Civil and Sessions Judge, Bengaluru (CCH-43) in O.S. No.2889/2014 and O.S. No.2902/2014 stand affirmed.

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Sd/-

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_____________________ JUSTICE K.S. HEMALEKHA

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CKL/MBM

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List No.: 1 Sl No.: 56

S Ramesh v. Sri K Kaliyappan

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S Ramesh v. Sri K Kaliyappan

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