Sri. Janardhana Mariyappa Vs N.B. Gurudev

THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 15.02.2023 PASSED IN O.S.NO.5035/2016 ON THE FILE OF THE LXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, DISMISSING THE SUIT FOR PERMANENT INJUNCTION.

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THIS APPEAL COMING ON FOR ORDER, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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

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ORAL JUDGMENT

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The present appeal is preferred by the plaintiff assailing the judgment and decree dated 15.02.2023 in OS No.5035/2016, on the file of the LXII Additional City Civil and Sessions Judge, Bengaluru City (hereinafter referred to as ‘Trial Court’ for short), whereby the suit filed by the plaintiff for permanent injunction came to be dismissed.

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Plaint averments:

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The plaintiff claims to be the absolute owner and in possession of site No.33, Khata No.58 at Halgevaderahalli Kengeri Hobli, Bangalore South measuring 40 x 60 feet, 2400 square feet. The property was originally purchased by P. J. Joseph in the year 1971, after his death, it devolved on his wife Thangamma, and thereafter on her daughter Smt. Nirmala John under a Will. The said Nirmala John executed a GPA in favour of B. T. Bhaskar, Dharmapala M. K. and V. Krishnamoorthy, who in turn sold site No. 33 to the plaintiff under

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registered sale deed dated 26.06.2000. It is averred that after purchase, Khatha was transferred in plaintiff's name and he has paid property taxes to BBMP and since then he is in peaceful possession and enjoyment. It is averred that on the northern side of the property, BBMP undertook road widening and some portion of his site was acquired for road. And the plaintiff formally relinquished 115 square metres to BBMP leaving with him about 1161 square feet). That the defendant having no manner of right, attempted to encroach from the eastern side and the plaintiff alleges illegal interference and apprehension of dispossession. Hence, the suit for permanent injunction restraining the defendant from interfering with the plaintiff's possession of site No.33.

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Written statement averments :

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The defendant specifically took a plea that the suit is not maintainable in law or on facts and that the plaintiff has suppressed material facts. The defendant disputes the validity of the plaintiff’s documents. The sale

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deed in favour of the plaintiff is denied and contends that the plaintiff's claim of site No.33 is not supported by clear survey identification. It is specifically averred by the defendant that he is the owner of site No.26/1, Survey No. 290/2 (Old Survey No.57) measuring 45 feet x 81 feet (3,645 square feet) purchased under registered sale deed dated 17.06.2016 from the wife and daughter of Late H. Puttaswamy, that the RTC, conversion records and the survey documents show the defendant’s lawful title. The defendant asserts that his property is a separate and independent, carved out of Survey No.57 (re-numbered 290/1 and 290/2). Plaintiff's property, if any, is in Survey No.58. Hence, there is no abutment and no question of interference. It is averred that the plaintiff having lost his land in road widening, is allegedly trying to create overlapping claims over the defendant's site. Boundaries of the plaintiff’s property and those of the defendant’s property do not tally and that a false claim has been made

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by the plaintiff against the defendant that he is interfering and sought for dismissal of the suit.

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The trial Court, upon consideration of the oral and documentary evidence, answered issue No. 1 in the affirmative, holding that the plaintiff proved possession of site No.33, but only to the reduced extent (approximately 1161 square feet) after BBMP acquisition. The trial Court however observed that the plaintiff failed to prove that the defendant's site abuts his or that the defendant encroached. The trial Court further held that the plaintiff in his cross-examination admitted that the defendant's site was not on east or west of his property and considering the oral and documentary evidence, held that the plaintiff did not establish interference, hence not entitled for injunction and dismissed the suit with costs. The trial Court's finding was that the plaintiff could not prove in which Survey No. site No. 33 was situated. The documents indicated inconsistencies regarding Survey No. 58 or Survey Nos. 290/1 and 290/2. Boundaries in Ex. P1 and

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Ex. P15 did not match. Defendant’s title to Sy. No. 290/2

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was supported by documents and survey sketches; that there was no abutment between the plaintiff’s and defendant's property was established. Aggrieved by the dismissal of the suit, the plaintiff is before this Court.

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Heard learned counsel for the appellant and

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learned counsel for the respondent.

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Learned counsel for the appellant submits that

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the trial Court itself held in para No. 21 that the plaintiff is in possession of the suit property to the extent of 1161 square feet after the BBMP acquisition. This finding was reiterated in paras 22, 23, yet the trial Court went on to dismiss the suit solely on the ground of non-establishment of interference. It is argued that the trial Court wrongly relied upon stray sentences in the cross- examination of PW1 and recorded that PW1 admitted Survey No. 290/1 is not formed in Survey No. 58, while Ex. P21 clearly shows that Survey No. 58 forms part of Survey No. 290/1. Thus,

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the reasoning that there is no nexus between Survey No. 58 and Survey No. 290/1 is contrary to the record. It is further averred that Ex.P2-khatha extract, Ex.P5-revenue records and Ex.P6- tax paid receipts show that the plaintiff is the registered holder and in possession of site No.33.

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The trial Court having observed that the plaintiff has been paying taxes and his name stands in revenue records and once the possession was established, the trial Court was not justified in dismissing the suit for injunction. The plaintiff purchased site No.33 under a registered sale deed- Ex. P1 executed by the GPA holders of Smt. John , the legatee of P. J. Joseph. This chain of title is consistent and supported by revenue documents and that the trial Court erred in doubting the link between site No. 33 and Survey No. 58. It is argued that site No. 33 forms part of Survey No. 58, and that Survey No. 290 (earlier Survey No. 57) belongs to the family of Late Puttaswamy. The trial Court having accepted that the plaintiff is in possession, and that his property stands in the revenue

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record, was not justified in dismissing the suit on the ground that interference was not proved. It is contended that permanent injunction should have been granted once possession and ownership documents were established.

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Per contra, the learned counsel appearing for the respondent submits that the trial Court has answered issue No. 1 in favour of the plaintiff holding that he is in possession of Site No. 33. However, under Order 41 Rule 22 CPC, the respondent is entitled to challenge this adverse finding even without filing a separate appeal. Therefore, it is contended that finding on issue No. 1 is open to scrutiny in this appeal. Taking to the crossexamination of PW1 it is submitted that PW1 admitted that site No. 33 is not formed in Survey No.58 but in Sy. No. 290/1. This is inconsistent with the plaint schedule, which refers to a sale deed of the year 2000, while road formation and relinquishment to BBMP occurred only in 2011-Ex. P15. The plaintiff has not explained how site No. 33 could exist in two different survey numbers. Ex. P15 is

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a relinquishment deed executed by the plaintiff in favour of BBMP, under which 115 square meters (approximately 1239 square feet) was surrendered for road widening. After such relinquishment, what remains is only about 900-1160 square feet, whereas the suit schedule continues to describe the property as 2400 square feet. Filing a suit for the entire 2400 square feet, based only on the 2000 sale deed, while ignoring the admitted relinquishment in 2011, shows suppression and variation. The plaint schedule was amended to retain the description of 2400 square feet despite the reduced extent after Ex.P15. Even in para 23 of the trial Court's judgment, the Court observed that PW1 admitted that defendant's property is not situated either on the east or west of site No. 33 and such admissions undermine the plea of interference and possession over the entire schedule property. It is argued that the lawful possession cannot be protected when there is variance between title, boundaries and actual possession. The plaintiff’s claim shifted

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inconsistently and this contradiction goes to the root of the case and disentitles the plaintiff to any equitable remedy of injunction. It is argued that, the Court rightly dismissed the suit and the dismissal deserves to be confirmed. Even the partial finding on issue No. 1 in favour of the plaintiff requires reversal under Order XLI Rule 22 CPC, as the plaintiff failed to prove consistent possession or identity of the suit property.

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Having heard the learned counsel for the parties, the points that arise for consideration are:

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“i. Whether the trial Court was justified in holding that the plaintiff is in possession of site No.33 (issue No.1) despite contradiction in survey numbers and boundaries?

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ii. Whether the respondent-defendant is entitled to challenge the findings on issue No.1, in terms of Order XLI Rule 22 CPC without filing a separate appeal?

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iii. Whether the dismissal of the plaintiff’s suit for permanent injunction requires interference by this court?”

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Point Nos. (i) and (ii)

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This Court has carefully considered the rival

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submission. The appellant relies on Ex. P2, Ex. P5, Ex. P6, Ex. P28 and P30 to contend that site No. 33 is consistently recorded in Survey No. 58, and that Ex. P15-the relinquishment deed only reflects a reduction to extent due to road widening without affecting identity. On the other hand, the respondent has pointed out that Survey No. 58 is distinct from Survey Nos. 290/1 and 290/2, which were phoded from old Survey No. 57, and that PW1 in cross-examination gave inconsistent statement. The plaint schedule continued to describe 2400 square feet though Ex. P15 shows only about 1161 square feet remained after relinquishment. Thus, there is variance between pleadings, oral evidence and documentary evidence. The trial Court records that old Survey No. 57 was phoded and renumbered as Survey Nos. 290/1 and 290/2 and this itself indicates that Survey No. 58 is a different survey number and not part of 290/1 or 290/2.

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Ex.P1 is the sale deed which records that site No. 33 is in

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Survey No. 58 supported by Ex. P3, Ex. P5 and P6. In Ex. P18, the plaintiff wrote to BBMP stating that he has purchased site No. 33 in Survey No. 58, and that BBMP acquired a portion for road widening, leaving a reduced extent. Ex.P15 - the relinquishment deed records the plaintiff's relinquishment to BBMP and shows boundaries mentioning 290/1 to the north and south. The trial Court also considers these boundaries. That proves that 290/1 is adjacent and nor ‘Survey No.58’ forms part of ‘290/1’. In other words Survey No. 58 abuts Survey No. 290/1 at road widened edge and it does not become Survey No. 290/1. In the cross examination PW1 made statement that the Court treated as distancing site No. 33 from Survey No. 58 implying 290/1 . The trial Court notes the oral admissions conflicted with the plaintiff’s documentary evidence placing site No.33 in Survey No.58. The trial Court also observed that Ex.P1-the sale deed, does not specify the Survey number, which added to the confusion.

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From the records, it could be gathered that the phodi history shows 290/1 and 290/2 came from old Survey No.57, not from Survey No.58. The plaintiff's records, BBMP documents consistently place site No.33 in Survey No.58. Ex.P15 only reflects that post widening, remainder

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site No.33 in Survey No.58 lies adjacent to Survey No.290/1 and not within it. Therefore, the respondent is right that Survey No.58 is separate and does not form part of Survey No. of ‘290/1’ and the appellant is also right that site No.33 lies in Survey No.58.

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The trial Court has held that plaintiff is in possession and enjoyment of site No. 33, but restricted the extent to 1161 square feet based on the effect of Ex. P15-relinquishment deed executed in favour of BBMP. This finding needs closer scrutiny in appeal since both sides have addressed this. The plaintiff relied upon Exs. P2katha, P5 and P6-tax receipts and Ex. P28-khatha certificate, which consistently mentioned site No. 33 in Survey No. 58, and these documents shows recognition by

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municipal authorities and payment of taxes by the plaintiff, which under settled laws, raises a presumption of possession. It is true that Ex. P1-the sale deed, in favour of the plaintiff does not specify the survey number. However, the subsequent mutations and katha entries indicate that site No. 33 in Survey No. 58. Ex. P15 dated 26.09.2011, the plaintiff surrendered 115 square meters (1239 square feet) to BBMP for road widening. What remained with him was 1161 square feet. This is supported by the BBMP records. Therefore, the claim of the plaintiff continue to hold 2400 square feet is untenable. The trial Court was correct in confining possession to the reduced extent. PW.1's cross

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examination created inconsistency by stating at one stage that site No.33 was inside Survey No.290/1. However, documentary evidence must prevail over stray oral admissions, particularly when khata and tax records show Survey No.58. The boundaries outweigh uncertainty in measurements. The respondent is justified in contending

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that the finding on issue No.1 was adverse to him and can

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be challenged under Order XLI Rule 22 CPC. However, upon re-examination, the evidence does establish limited possession of the plaintiff to 1161 square feet after road widening though not entirety of 2400 square feet claimed in the plaint and thus, the findings of the trial Court on issue No. 1 that the plaintiff is in possession to the extent of 1161 square feet does not warrant any interference. Accordingly, point Nos.(i) and (ii) are answered.

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Point No. (iii) :

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The central question is whether the plaintiff, even assuming possession to the extent of 1161 square feet, has proved interference or encroachment by defendant so as to entitle him to a decree of permanent injunction. It is well settled that in a suit for injunction, the plaintiff must not only prove his possession, but also establish actual or threatened interference by the defendant. The trial Court rightly noted that mere proof of possession does not automatically entitle a party to

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injunction when interference is not established. PlaintiffPW1 in his examination-in-chief alleged that the defendant attempted to interfere from the western side. However, in the cross-examination PW1 categorically admitted that the defendant's site is not situated either to the west or to the east of Site No.33 and such admission goes to the root of the allegation of interference. The defendant produced Exs. D1 to D18, which consistently show that his property lies in Survey No.290/2, carved out of old Survey No.57. This survey number is distinct from Survey No.58, where the plaintiff's site No.33 is situated. Thus, the defendant's property does not abut the plaintiff's property and the allegation of interference lacks factual foundation.

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The plaintiff in a suit for injunction must not only prove the identity of his property but also establish specific acts of encroachment or interference, and in the absence of the same, the injunction cannot be granted. Thus, while the plaintiff has proved possession to a limited extent he has failed to prove interference and mere

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possession without proof of interference cannot justify a decree of permanent injunction and hence, point No.(iii) is answered accordingly and this Court pass the following:

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ORDER

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i. The Regular First Appeal is dismissed

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with costs .

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ii. The finding of the trial Court on issue No.1 is affirmed and clarified that the plaintiff has established the possession and enjoyment only to the limited extent of 1161 square feet in site No.33 after the BBMP acquisition and not to the entire 2400 square feet as claimed in the plaint.

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iii. The finding of the trial Court on issue No.2 is also affirmed, holding that the plaintiff has failed to prove the interference by the defendant.

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