Sri. a. Krishnappa Vs Sri J P Narasimha Murthy

AGAINST THE JUDGEMENT AND DECREE DATED 07.01.2013 PASSED IN O.S.NO.9430/2007 ON THE FILE OF XXXIX ADDITIONAL CITY CIVIL AND JUDGE, BENGALURU CITY, DECREEING THE SUIT FILED FOR PERMANENT INJUNCTION.

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IN REGULAR FIRST APPEAL NO.599/2013:

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BETWEEN:

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SRI. A. KRISHNAPPA S/O LATE APPAYYANNA AGED ABOUT 62 YEARS NO.279, 17^TH CROSS, 24^TH MAIN, 6^TH PHASE, J.P.NAGAR BENGALURU-560 078 PRESENTLY RRESIDING AT NO.94, APPAYANNA I AND II CROSS KONANAKUNTE MAIN ROAD, 7^TH PHASE, J.P. NAGAR, BENGALURU - 560 078.

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SINCE DECEASED, REPRESENTED BY HIS LRS

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1(a) SMT. HEMAVATHI AGED ABOUT 65 YEARS W/O LATE A. KRISHNAPPA

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1(b) SRI. HARISH K., AGED ABOUT 40 YEARS S/O LATE A. KRISHNAPPA

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1(c) SRI. NITESH K., AGED ABOUT 38 YEARS S/O LATE A. KRISHNAPPA

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ALL RESIDING AT HANI FOUNDATION NO.96, APPAYANNA 2^ND CROSS KONANKUNTE MAIN ROAD BENGALURU – 560 062.

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(AMEDNDED VIDE ORDER DATED 19.12.2024)

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2 . SRI. A. ANAND S/O LATE APPAYANNA AGED ABOUT 57 YEARS RESIDING AT NO.37, II CROSS, TEACHERS COLONY, 1^ST STAGE, BANASHANKARI, BENGALURU-560 050.

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SINCE DECEASED, REPRESENTED BY HIS LRS

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2(a) SMT. K.Y.JAYASHREE ANAND AGED ABOUT 55 YEARS

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W/O LATE ANAND

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2(b) SRI. AKSHITH ANAND AGED ABOUT 33 YEARS S/O LATE ANAND

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ALL RESIDING AT NO.66 ‘SHRUNGARA’, 4^TH MAIN PAUL CHINNAPPA LAYOUT BIKASIPURA MAIN ROAD BENGALURU-560 111.

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(AMEDNDED VIDE ORDER DATED 19.12.2024)

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3 . SRI. A. KUMAR S/O LATE APPAYANNA AGED ABOUT 57 YEARS RESIDING AT HLBC COLONY DUDDA POST, MANDYA DISTRICT-571 401. … APPELLANTS

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(BY SRI. ABHINAV R., ADVOCATE)

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AND:

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1 . SRI. SARVESHWAR N. RAIKAR S/O NARAYAN N RAIKAR AGED ABOUT 52 YEARS

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RESIDING AT NO.631/4 24^TH CROSS, 15^TH MAIN B.S.K. I STAGE BENGALURU-560 070. … RESPONDENT

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(BY SRI. SACHIN V.R., ADVOCATE)

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THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGEMENT AND DECREE DATED 07.01.2013 PASSED IN O.S.NO.2208/2008 ON THE FILE OF XXXIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DECREEING THE SUIT FOR PERMANENT INJUNCTION.

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THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 29.04.2025 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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CAV JUDGMENT

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Heard learned counsel for the appellants and learned

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counsel for the respondents.

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These two appeals are filed by the defendants challenging the common judgment and decree passed in O.S.Nos.9430/2007 and 2208/2008 dated 07.01.2013 on the file of XXXIX Additional City Civil Judge, Bangalore City.

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The factual matrix of the case of the

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respondents/plaintiffs in these appeals is that they are the

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absolute owners in possession and enjoyment of the property which is morefully described in the respective suit. It is their case that one Appayanna was the absolute owner of the converted land bearing Sy.No.24 measuring 1 acre 20 guntas situated at Konanakunte Village, Uttarahalli Hobli, Bangalore South Talulk. He acquired the said land through the registered sale deed dated 15.09.1965 from its owners. It is also their contention that land was converted vide order passed by the Deputy Commissioner, Bangalore District in the year 1989 bearing No.ALN.SR[S]424/1988-1989 dated 06.04.1989. Based on the conversion order, the said Appayanna formed layout of sites in the said converted land bearing Sy.No.24, which was within the jurisdiction of Anjanapura Village Panchayath and he also obtained khatha. The said Appayanna for want of his family and legal necessities sold the property bearing House List Khatha No.177/35 which have been morefully described in the respective suit.

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The plaintiffs in O.S.No.9430/2007 claims that

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Appayanna had sold the property in favour of Smt. Vijayalakshmi

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Raghuram through the registered sale deed dated 18.08.1992 for valuable consideration and the property subsequently came under the jurisdiction of City Municipal Council, Bommanahalli. Thereafter, Smt. Vijayalakshmi Raghuram got transferred khatha of the said property into her name and she was paying taxes regularly in respect of the suit property. The said Smt. Vijayalakshmi Raghuram has also put up constructions consisting of watchman shed in the said property. Thereafter, the said Smt. Vijalakshmi Raghuram to meet her legal and family necessity sold the schedule property in favour of the plaintiffs under the registered sale deed dated 23.11.2007 for valuable consideration and they have approached the office of the Corporation for change of khatha into their names in respect of the schedule property. However, due to establishment of new zones by the BBMP, the application filed by the plaintiffs have not been accepted and the BBMP authorities have asked the plaintiffs to come after some time for obtaining khatha into their name in respect of the suit schedule property. So, the plaintiffs could not file application for change of khatha into their names. It is the case of the plaintiffs that defendants are the sons of

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said Appayanna and they have no manner of right, title, interest and possession of any kind over the suit schedule property or any portion thereof and they made attempt to interfere with the possession of the suit schedule property. It is also the case of the plaintiffs that earlier also, defendants had fought against one of the site holder i.e., Sri P. Bhogachar. The said Sri P. Bhogachar has filed an appeal before the High Court in Regular First Appeal No.605/1994 and by the judgment and decree passed on 07.12.1999, this Court held that the said Sri P. Bhogachar is one of the purchaser of the site and the said judgment has become final. It is contended that there is a threat of interference.

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In the other suit in O.S.No.2208/2008 also, same averments are made that the property originally belongs to Appayanna and he got converted the property and thereafter formed layout and sold the site and the property flows to Appayanna vide sale deed dated 15.09.1965 and plaintiff had purchased the property vide sale deed dated 31.01.1991 and similar averments are made in both the plaints. The defendants,

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who are the sons of Appayanna in their written statement contend that suit property is joint family property and the sale deeds which are executed by Appayanna are null and void and defendants are not parties to the said transaction and sale deed executed by Appayanna had not created any right, title, interest or possession in favour of the plaintiffs. It is also their case that they have filed suit in O.S.No.6286/2007 against mother for the relief of partition and separate possession of their share in the said land and the suit is pending for consideration. Hence, present suits are not maintainable. It is contended that the judgment and decree passed by the High Court in Regular First Appeal No.605/1994 is not binding on the defendants.

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The Trial Court having taken note of the pleadings of

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the parties, framed the following common issues in both the suits:

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“ (1) Whether the plaintiffs prove that they are in possession and enjoyment of the plaint schedule property as on the date of suit as contended?

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(2) Do the plaintiffs prove the interference of the defendants as alleged?

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(3) Are the plaintiffs entitled for permanent injunction as sought?

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(4) What order or decree?”

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The plaintiffs, in order to prove their case in O.S.No.9430/2007, got examined the first plaintiff as P.W.1 and examined a witness as P.W.2 and got marked the documents as Exs.P1 to P26. The defendant No.1 examined himself as D.W.1 and got marked the documents as Exs.D1 to D25. The plaintiff in O.S.No.2208/2008 examined himself as P.W.1 and a witness as P.W.2 and got marked the documents as Exs.P1 to P14. The defendant No.1 examined himself as D.W.1 and got marked the documents as Exs.D1 to D23.

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The Trial Court having considered both oral and documentary evidence placed on record comes to the conclusion in both the suits that plaintiffs are in possession and enjoyment of the suit schedule property and there was an interference by the defendants. Hence, granted the relief of permanent

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injunction in both the suits answering issue Nos.1 to 3 as ‘affirmative’. Being aggrieved by the judgment and decree of the Trial Court, present regular first appeals are filed before this Court.

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The main contention of learned counsel appearing for the appellants in R.F.A.No.598/2013 in O.S.No.9430/2007 is that measurement of the suit property is 60 x 60. Learned counsel would vehemently contend that they are in possession and khatha was not obtained till date. Learned counsel would vehemently contend that in the written statement specifically denied the title and also very existence of schedule property. Learned counsel would vehemently contend that in Ex.P1, no reference of survey number in the sale deed and no description of any construction in any of the sale deeds and no reference whatsoever regarding the existence of building in Exs.P3 and P4. It is also contended that Ex.P16 is very clear that in Cl.No.7, it is mentioned as ‘vacant land’ and in Exs.P17 to P19, there is description of property. Learned counsel would vehemently contend that in the revenue records, there is an inconsistency

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and no documents of layout plan and order of conversion is placed before the Court. Learned counsel would vehemently contend that adverse inference can be drawn and the Trial Court not considered the admissions given by P.Ws.1 and 2 that Site No.36 belongs to Sri P. Bhogachar. In paragraph Nos.30 and 31, no discussion was made, even though no layout plan and Trial Court has not considered the material on record. Learned counsel would vehemently contend that the documents which have been produced are after filing of the suit and no there is no proper evaluation of the documents and name of the plaintiff was not found in Ex.D17, particularly in Cl.No.12. It is contended that measurement is also very odd and possession is not proved and no sketch is placed before the Court and when there is no identity and no construction put up, question of demolition does not arise.

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The learned counsel for the appellants in R.F.A.No.599/2013 in O.S.No.2208/2008 would vehemently contend that there is no proper description of the property. But, in the sale deed description of the property is shown as 40 x 30,

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but schedule is shown as 50 x 30 and the description not tallies with each other and the Trial Court ought not to have granted the relief of decree of permanent injunction. Learned counsel would vehemently contend that when there is a dispute and cloud on the title, the plaintiffs ought to have sought for the relief of declaration and suit for injunction simpliciter is not maintainable. Learned counsel would vehemently contend that when complicated question of title is involved, the same could be examined only in a title suit for declaration and consequential relief's and not in a suit for injunction simpliciter.

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Learned counsel for the appellants in support of his argument, relied upon the judgment of the Apex Court in

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ANATHULA SUDHAKAR V. P. BUCHI REDDY (DEAD) BY L.RS. AND ORS. reported in AIR 2008 SC 2033. Learned counsel referring the judgment would vehemently contend that very suit for bare injunction is not maintainable. Learned counsel also brought to notice of this Court paragraph No.11, wherein discussion was made regarding suit for declaration and brought to notice of this Court paragraph Nos.11.1 to 11.3 in support of

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his contention and so also brought to notice of this Court paragraph No.17 where a cloud is raised over plaintiff’s title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Learned counsel also brought to notice of this Court evidence available on record and admission of P.Ws.1 and 2 and contend that when possession has not been proved, the question of granting the relief of permanent injunction does not arise.

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Per contra, learned counsel for the respondents in his arguments would vehemently contend that it is not dispute that Appayanna was owner of the property to the extent of 3 acres in Sy.No.24 of Konanakunte Village. Learned counsel would vehemently contend that he had purchased the property in the year 1965 and obtained conversion order and thereafter formed layout and executed sale deed in the year 1991-92 itself and the vendor of the plaintiffs in O.S.No.9430/2007 purchased the property in the year 1992. The plaintiff in other suit in O.S.No.2208/2008 purchased the property in the year 1991 and vendor of plaintiffs in O.S.No.9430/2007 sold the properties in

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favour of the defendants on 23.11.2007 in terms of Ex.P2. The documents of Exs.P1 and P2 are the sale deeds, Ex.P3 is Form No.III, Ex.P4 is the Tax paid receipts. It is also contended that in the sale deed of the year 1992 specifically mentioned the schedule describing the same as vendor’s property and it is also not in dispute that later property came within Bommanahalli City Municipal Council (‘Bommanahalli CMC’ for short). Ex.P5 is copy of the decree passed in Regular First Appeal No.605/1994. Exs.P6 and P7 is the Encumbrance Certificates, Ex.P8 is the Tax Paid Receipt, Ex.P9 is the Self Assessment Extract, Exs.P10 to P13 are Acknowledgements, Exs.P14 and P15 are property tax receipts, Ex.P16 Property Register Extract, Exs.P17 to P22 are Electricity Bills, Ex.P23 is Demand Register Extract, Ex.P24 is Receipt, Ex.P25 is copy of order passed in Writ Petition No.19174/1989 and Ex.P26 is copy of judgment passed in Regular First Appeal No.605/1994 and defendants have no right. The written statement is also very clear that the defendants are interfering with peaceful possession of the plaintiffs and paragraph Nos.7 and 12 discloses claiming of right by the defendants. Learned counsel would contend that Ex.D5 is very

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clear that plaintiff has right over the suit schedule property and there is no cloud on the title and evidence cannot be beyond the pleadings.

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Learned counsel for the respondents would

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vehemently contend that even D.W.1 has admitted that he has not seen the suit property and identity of the property is also admitted. The counsel would contend that Ex.P26 is clear that other purchaser Sri P. Bhogachar has succeeded before this Court by filing an appeal and contend that an application is filed invoking Order 41 Rule 27 CPC, wherein placed on record the documents of application filed for impleading in the suit filed by the appellants herein and the said application was allowed and

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written statement was also filed in the said suit. The counsel would further contend that an application was filed for temporary injunction and the application was also rejected and ultimately, suit filed by the appellants was also dismissed. It is contended that the respondents came to know about the same recently and hence, they filed an application and all the documents produced before the Court is clear about existence of the property.

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Learned counsel also filed a memo along with other documents i.e., E-khatha. Learned counsel would vehemently contend that vendor of the plaintiffs also paid the tax and new numbers are assigned and in the written statement not stated anything about the discrepancies. The plaintiffs have proved the possession and property is also identified by BBMP and possession is also proved by producing the documents. Learned counsel referring the material in respect of Regular First Appeal No.599/2013 would vehemently contend that there is no dispute with regard to identity and property was purchased long back on 31.01.1991 from Appayanna, who is none other than the father of the defendants. It is also contended that plaintiffs entered into compromise with defendant No.2 under a partition suit which was filed earlier in the year 1997 and the appeals are also dismissed.

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In reply to this argument of learned counsel for the respondents, learned counsel for the appellants would submit that he has filed objections to the application filed under Order 41 Rule 27 CPC and there is no pleading with regard to change

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of jurisdiction and property number is also changed and admission was given that they did not know who is in possession of next property. Learned counsel would vehemently contend that regarding dimension is concerned in respect of other schedule, nothing is explained. It is contended that documents which have been placed before the Court along with application under Order 41 Rule 27 CPC are subsequent to the suit and if the Court comes to the conclusion that documents are necessary, it could be remanded to the Trial Court invoking Order 41 Rule 27 CPC. Learned counsel also brought to notice of this Court statement of objection filed to the application filed under Order 41 Rule 27 CPC and contend that reasons assigned in the affidavit are plain and bald as it could be and no cogent reasons forthcoming to invoke Order 41 Rule 27 CPC. The respondents in the affidavit accompanying the application have neither stated the date of knowledge of the said documents now sought to be produced nor have they assigned any reason as to why they did not choose to produce these documents at an earliest point in time. Hence, question of invoking Order 41 Rule 27 CPC does not arise. The respondents cannot rely upon the

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documents now sought to be produced to prove the existence of the property and prayed the Court to dismiss the application, since the respondents have not exercised due diligence throughout to place on record the documents which are now sought to be produced before the Court.

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Having heard learned counsel for the appellants, learned counsel for the respondents and also considering both oral and documentary evidence placed on record in both the suits and also the principles laid down in the judgment referred supra by learned counsel for the appellants, the points that

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would arise for consideration of this Court are:

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(1) Whether the respondents have made out grounds to allow the application filed under Order 41 Rule 27 CPC and the same requires consideration in these appeals?

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(2) Whether the Trial Court committed an error in granting the relief of permanent injunction in both the suits relying upon the evidence of P.Ws.1 and 2 in respective suits and whether it requires interference of this Court?

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(3) What order?

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Point No.(1)

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The learned counsel for respondents have filed an application under Order 41 Rule 27 CPC praying this Court to place on record the documents which have been not been produced before the Trial Court. Having perused those documents, those documents are certified copy of the impleading application, order dated 08.02.2016, certified copy of the amended plaint in O.S.No.6286/2007, copy of the written statement filed by respondent Nos.1 and 2 in O.S.No.6286/2007, copy of I.A. filed by the appellants in O.S.No.6286/2007 seeking police protection, copy of the order dated 06.03.2017, copy of the relevant order sheet in O.S.No.6286/2007 and copy of the I.A. filed by the respondent in O.S.No.6286/2007 seeking temporary injunction restraining the respondents from changing the nature of suit schedule property. Having produced those documents before the Court, a detailed affidavit is filed that those documents are necessary for determining the issue involved between the parties. The same was objected by the appellants by filing separate statement of objections contending that the documents which have been placed before the Court are

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only the certified copies of the impleading application, order sheets and written statement in the suit in O.S.No.6286/2007 and the respondents have not complied with the conditions referred in Order 41 Rule 27 CPC. The respondents cannot seek any advantage of their misdoings and not exercised due diligence throughout in placing the documents on record. The Court has to take note of the documents which have been placed before the Court while invoking Order 41 Rule 27 CPC and also the grounds urged in the application and statement of objection and only if those documents are necessary for deciding the issue involved between the parties, then Court can invoke Order 41 Rule 27 CPC provided the appellants have diligently acted upon.

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Having perused the documents itself, an impleading application was filed and order was passed and application was filed for temporary injunction and order was passed and the respondents have produced certified copy of the order sheet in the suit filed for the relief of partition and those documents are not necessary, in order to decide the issue involved between the parties. This Court has to only look into the documents which

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have been produced keeping in view the relief sought in the suit whether those documents are necessary to consider the germane issues involved between the parties. Having perused those documents, the same are not necessary to decide the germane issues involved in the case on hand and those documents also will not twilt the result of the case in the suit for the relief of permanent injunction. Hence, I do not find any ground to allow the application to consider the appeals and no grounds are made out to invoke Order 41 Rule 27 CPC. Accordingly, I answer point No.(1) in the ‘negative’.

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Point No.(2)

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Having heard learned counsel for the appellants and learned counsel for the respondents and also considering the grounds urged in the appeal as well as oral submission of respective counsel, this Court has to consider both oral and documentary evidence placed on record since these appeals are first appeals and statutory appeals and to consider both question of fact and question of law. The plaintiffs in O.S.No.9430/2007 relies upon oral evidence by examining the first plaintiff as P.W.1 and one witness as P.W.2 and mainly two sale deeds i.e., Exs.P1

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and P2 of the vendor of their father and plaintiff sale deed in O.S.No.2208/2008 respectively and Form No.III and tax paid receipt as Exs.P3 and P4 and copy of decree passed in Regular First Appeal No.605/1994 as Ex.P5 in which the High Court granted the relief in favour of one of the purchaser Sri P. Bhogachar. The documents at Exs.P6 and P7 evidences the Encumbrance Certificate issued in favour of the plaintiffs and plaintiff’s vendor, tax paid receipt as Ex.P8, Self Assessment Extract as Ex.P9, Exs.P10 to P13 are Acknowledgments, Exs.P14 and P15 are Property Tax Receipts, Ex.P16 is Property Register Extract, Exs.P17 to Ex.P22 are Electricity Bills, Ex.P23 is Demand Register Extract, Ex.P24 is Receipt, Ex.P25 is copy of the order passed in W.P.No.19174/1989 and Ex.P26 is the copy of the judgment passed in Regular First Appeal No.605/1994. The defendant No.1 also examined himself as D.W.1 and he relied upon Exs.D1 to D3 i.e., copy of the sale deeds, Ex.D4 RTC Extracts, Ex.D5 certified copy of plaint in original suit in O.S.No.6286/2007, Ex.D6 certified copy of order sheet in O.S.No.6286/2007 and Exs.D7 to D25 are RTC Extracts.

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In respect of other suit in O.S.No.2208/2008, the

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first plaintiff examined himself as P.W.1 and examined one witness as P.W.2 and relies upon Ex.P1 original sale deed, Ex.P2 Encumbrance Certificate, Ex.P3 Demand Register Extract, Ex.P4 Tax Paid Receipt, Ex.P5 Self Assessment Extract, Ex.P6 Demand Register Extract, Ex.P7 Receipt, Exs.P8 to P10 Acknowledgements, Exs.P11 to P13 Property Tax Receipts and Ex.P14 copy of decree passed in Regular First Appeal No.605/1994. The defendant also examined himself as D.W.1 and relied upon copy of the sale deeds as Exs.D1 and D2, RTC Extract as Ex.D3, certified copy of plaint in O.S.No.6286/2007 as Ex.D4 and RTC Extracts as Exs.D5 to D23.

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This Court would like to consider the evidence available on record. The witness P.W.1 reiterated the averments of plaint in his affidavit and he was subjected to crossexamination. In the cross-examination, he admits that one Upadyay is his neighbour and he got purchased the property from his vendor and also verified the mother deed of vendor of Vijayalakshmi Raghuram and so also sale deed of Appayanna of

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the year 1965. It is elicited that he is unable to tell boundaries mentioned in above sale deed of the year 1965. But, the said survey number was measuring 3 acres. It is suggested that Sy.No.24 is not the absolute property of Appayanna as it was their joint family property and the same was denied. It is admitted that in the sale deed Ex.P2, there is no mention of the fact that suit schedule property is carved out of Sy.No.24, but measurement is 60 x 60 and Khatha No. is shown as No.177/35 and in Ex.P2 western boundary is shown as vendor’s property. A suggestion was made that boundaries shown at Exs.P1 and P2 are not similar and the same was denied. It is suggested that Sy.No.24 is agricultural land and the same was denied. However, admits filing of suit in O.S.No.6286/2007 for partition and suggestion was made that Appayanna had no absolute right and the same was denied, but admits that the children of Appayanna had not signed the sale deed. A suggestion was made that he is not having right, title and interest over the suit schedule property on the basis of the sale deed and the same was denied. It is suggested that Exs.P1 to P24 are created and fabricated and the same was denied.

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The other witness is P.W.2 and he reiterates the evidence of P.W.1. He was subjected to cross-examination. In the cross-examination, he admits that contents of affidavit evidence is dictated by the plaintiff and categorically admits that suit site is carved in Sy.No.24.

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The other witness is D.W.1 and he reiterates in his evidence the contents of written statement. But, in the crossexamination, he admits that he has not seen the suit property and that his father had purchased the property bearing Sy.No.25 and also admits relationship between them. He also admits that there was conversion of land measuring 1 acre 20 guntas on 06.04.1989. But, claims that it was stayed and also admits that he verified documents which have been produced by the plaintiff. He admits that Ex.P25 is the Writ Petition No.19174/1989 which his father had filed and the same was dismissed on 06.04.1995 and they have not preferred any appeal. When question was put to him whether his father had sold the property, answer was elicited that he do not know whether his father sold site Nos.35 and 36 in favour of

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Vijayalakshmi Raghuram under Ex.P2 sale deed dated 18.08.1992.

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Having considered these admissions, it is very clear

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that he did not specifically deny very execution of sale deed by the father, except stating that he do not know the same and he categorically admits that suit schedule property was within the limits of Anjanapura Grama Panchayath and also not denies mutating the suit schedule property in the name of Vijayalakshmi Raghuram and she paid taxes to the Panchayath and also admits the fact that suit schedule property came under the limits of Bommanahalli CMC in the year 1999 onwards. He also says he does not know said Vijayalakshmi Raghuram paid tax and her name is mutated to the suit property. It is contended that Vijayalakshmi Raghuram had put up shed and witness volunteers to state that shed belongs to them. But admits that he had not seen the said shed and also not produced photos to show existence of the shed. However, he categorically admits that suit schedule property comes under Ward No.197 of

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Vasanthapura and admits that there was a case between him and Sri P. Bhogachar which is not pertaining to this property.

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This Court also would like to rely upon the evidence given in connected suit in O.S.No.2208/2008, wherein also similar evidence is given by the parties. P.W.1 reiterates the averments of plaint in the affidavit. In the cross-examination, he says that there was no agreement of sale between him and father of the defendants, but claims that said property comes within Sy.No.24. A suggestion was made that Sy.No.24 was joint family property of Appayanna and the same was denied and admits that his vendor had not given khatha of Anjanapura and payment of tax and he had verified tax paid receipt and order of conversion before purchasing the site. It is suggested that Appayanna had purchased Sy.No.24 after alienating his ancestral property at Attibele and the same was denied. A suggestion was made that Appayanna had no absolute right and the same was denied. However, admits that defendants have not signed Ex.P1 and admits regarding filing of suit for partition. A suggestion was

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made that documents of Exs.P2 and P14 are fabricated documents and the same was denied.

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The other witness P.W.2 and he reiterates the evidence of P.W.1. In the cross-examination, except eliciting that there is a partition suit pending between sons and daughters of Appayanna, nothing is elicited.

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The defendant, who has been examined as D.W.1 reiterated the averments of written statement in his evidence and he was also subjected to cross-examination. Similar answer was given that he has not seen the suit property. He also admits that his father was owner of Sy.No.24 and also admits that his father had purchased the property in the year 1965. He also admits conversion of land measuring 1 acre 20 guntas in the year 1989 and similar answers are given in the crossexamination of D.W.1 as that of answers given in the crossexamination in the other suit.

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Having considered both oral and documentary

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evidence placed on record, it is not in dispute that Appayanna,

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who is father of the defendants had sold the property in favour of both the plaintiffs. But, the only contention is that it was joint family property and in order to prove the same, nothing is placed on record. It is also important to note that, when the sale was made in the year 1991-92 in favour of the vendor of the plaintiffs in O.S.No.9430/2007 and when sale was made in the year 1991 in the other suit, property was transferred in the name of the plaintiff and plaintiff’s vendor long back and tax was also paid and tax demand was also made, no doubt, learned counsel appearing for the appellants would contend that khatha was not transferred in favour of the plaintiffs after the property came within the purview of the BBMP. However, the documents are very clear that immediately after selling the property in favour of the plaintiffs in the year 1991-92, khatha was transferred in favour of the plaintiffs and subsequently, property came within the jurisdiction of Bommanahalli CMC and also khatha was transferred and subsequently, khatha was not transferred. But, the material placed before the Court is very clear that vendor of the plaintiffs in O.S.No.9430/2007 and also the plaintiff in other suit in O.S.No.2208/2008 were in

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possession as soon as the sale deeds were executed and the same was not questioned by the defendants at any point of time, except making interference as pleaded by the plaintiffs in the respective original suits.

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While considering the suit for injunction, the Court has to take note of the fact that as on the date of filing of the suit, whether the plaintiffs are in possession of the suit schedule property. Both the plaintiffs have placed on record the sale deed as well as the tax paid receipt and other documents and also in the cross-examination, there was a categorical admission that before formation of sites, property was converted. Learned counsel appearing for the appellants would contend that no documents with regard to layout plan and order of conversion. When there is an admission on the part of D.W.1 in the crossexamination in respect of both the suits that there was conversion to the extent of 1 acre 20 guntas out of 3 acres of land and even there was an categorical admission in both the suits that he has not seen the suit schedule property, the very contention that no proper description of the property given by

¶160

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both the plaintiffs cannot be accepted. The D.W.1 also categorically admitted that his father was owner of Sy.No.24 of Konanakunte Village and except this property, he has not owned any property at Konanakunte Village. When such admission was given and he categorically admits that father had purchased 3 acres in Sy.No.24 in 1965, the very contention that father was not absolute owner to sell the property cannot be accepted. The sale of property by father Appayanna is not disputed. When such being the case, there is no dispute with regard to title and contention that there was cloud on the title also cannot be accepted.

¶162

The very principles laid down in the judgment relied upon by learned counsel for the appellants in ANATHULA SUDHAKAR’s case not applies to the facts of the case as there is no cloud on the title. Admittedly, the property belongs to father of the plaintiffs and the same was purchased in the year 1965. I have already pointed out that there was conversion of land measuring 1 acre 20 guntas which is also admitted and the said conversion order was passed on 06.04.1989 and thereafter

¶163

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itself, sites were formed and sites were also sold and possession was delivered long back in the year 1991 and 1992 respectively and suit was also filed by the respective plaintiffs in the year 2008 itself. Though a suit was filed for the relief of partition, the same was dismissed for non-prosecution as contended by learned counsel for the respondents. It is also important to note that the material on record clearly disclose that the father of the defendants itself formed the layout and sold the sites and identity of the property is not in dispute, since description was given in the respective sale deeds and tax paid receipts also clearly disclose that immediately after sale of the property, property was transferred and tax was also paid, which clearly discloses possession. In a suit for permanent injunction, the Court has to look into possession and possession has been established by the plaintiffs and the Trial Court has not committed any error in granting the relief of permanent injunction. Hence, I do not find any ground to allow the appeals by setting the judgment and decree passed in both the suits and both oral and documentary evidence placed on record has been considered by the Trial Court and the appellants cannot blow hot

¶165

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and cold that there was no sale when the father had sold the property long back. Therefore, I do not find any merits in the appeals. Accordingly, I answer point No.(2) in the ‘negative’.

¶167

Point No.(3)

¶168