Mr M Cheluvaraju Vs Mr Chowdappa

MR. V. NIHAL, AGED ABOUT 20 YEARS, S/O. VINAY C., RESIDING AT NO.868, NEAR GOVERNMENT SCHOOL, KONANAKUNTE, KANAKAPURA MAIN ROAD, BENGALURU-560 062. [AMENDED VIDE COURT ORDER DT. 6.2.2026]

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…APPELLANT

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(BY SRI PRASHANT N. RAJ, ADVOCATE FOR SRI RAJAGOPALA NAIDU, ADVOCATE FOR LR OF APPELLANT)

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Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA

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AND:

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MR. CHOWDAPPA S/O LATE NARAYANASWAMY, AGED ABOUT 55 YEARS, R/AT NO.161, NEW BANK COLONY, 10^TH CROSS, KONANAKUNTE, BANGALORE-62.

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…RESPONDENT

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(BY SRI L.M. CHIDANANDAYYA, ADVOCATE)

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THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 20.06.2015 PASSED IN O.S.NO.8105/2006 ON THE FILE OF THE VII ADDL. CITY

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NC: 2026:KHC:7277 RFA No. 1103 of 2015

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HC-KAR

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CIVIL AND SESSIONS JUDGE, BENGALURU CITY, (CCH NO.19), DISMISSING THE SUIT FOR PERMANENT INJUNCTION.

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

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CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL

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ORAL JUDGMENT

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This appeal is by the plaintiff challenging the judgment and decree dated 20.06.2015 passed in O.S. No. 8105/2006 by the VII Additional City Civil and Sessions Judge, Bangalore (CCH No.19), dismissing the suit filed for permanent injunction.

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Original plaintiff M. Cheluvaraju filed a suit in OS No. 8105/2006 seeking relief of permanent injunction against the defendant/respondent herein in respect of a vacant site No. 6, forming part of land in Sy. No. 5/2, Konanakunte Village, Uttarahalli Hobli, Bangalore South Taluk, present khatha No. 5/2 bounded on the East by site No. 7, West by road, North by road and South by property of Patel Ramappa @ Ramachandrappa.

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Original plaintiff in his plaint has claimed that the land in Sy. No.5/2 measuring 9 guntas belonged to one Papanna. Papanna had 5 daughters, no male issues. Got married his 2^nd

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daughter (Chikkabeeramma) with Muniswammappa. Out of love and affection executed a gift deed donating several properties including 9 guntas. RTC and mutation entries came to be made in name of Muniswammappa. Muniswammappa is son-in-law of Papanna, who in turn had four sons namely M. Thyagaraju, M. Cheluvaraju (the original plaintiff), M. Nagaraju and M. Beeranna. That property was not partitioned during the time of Muniswamappa. Muniswamappa has not alienated any portion of the said land to anyone whatsoever. The said Muniswamappa passed away on 27.04.1995. Upon his demise, his four sons succeeded to his estate and became absolute joint owners. Thereafter, there was a partition in which said land in Sy.No. 5/2 was allotted to the share of the plaintiff. Plaintiff had formed a layout consisting of 10 sites out of which he had sold site No. 7 and retained the remaining sites. That the defendant, without having any right, title or interest over the suit property, namely site No. 6, attempted to interfere with the peaceful possession of the plaintiff, constraining him to file the suit.

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Written statement came to be filed by the defendant denying the plaint averments and specifically contending that

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the plaintiff had suppressed the material facts. At paragraph 6

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of the written statement, it is contended that site No. 6, forming part of Sy. No. 5/2 of Konanakunte Village, which is the suit property had been sold by one B. Indira Devi as General Power of Attorney holder of B Muniswamappa in favour of one K. Yashodamma in terms of deed of sale dated 18.01.1995. Thereafter said K. Yashodamma has sold the said site in favour of one V. M. Devaraj in terms of deed of sale dated 16.07.1996. It is further contended that the said Devaraj is still in possession of the suit property. Plaintiff on the basis of the false and created documents is trying to claim the said site No. 6 has not been alienated and he being in possession of the property.

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It is further contended that defendant has purchased site No. 4 in terms of deed of sale dated 24.09.2003 and has been in possession and enjoyment of the same. The site purchased by the defendant is having boundaries towards East - property belonging to Yeriah, towards West - property belonging to Muniswamappa, towards North - road and towards South - Patel Ramachandrappa's property. There are two sheds built on the site No. 4 in the year 2003-2004. Khatha has been

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changed in the name of defendant. He has also paid the tax to

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Grama Panchayath and has installed a bore-well and even obtained the electricity connection in respect to site No. 4 and has been in peaceful possession and enjoyment of the said site. It is contended that defendant has nothing to do with site No.

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The plaintiff, having obtained the interim order in respect of site No. 6, is attempting to grab the property belonging to the defendant which is site No. 4 and therefore sought for dismissal of the suit.

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The trial Court framed the following issues:

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“1. Whether plaintiff proves lawful possession over suit property?

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2. Whether plaintiff proves alleged interference? 3. Whether plaintiff is entitled for permanent injunction?”

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4. What decree or order?”

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Plaintiff examined himself as PW1 and also examined

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two witnesses as PWs2 and 3 and marked 20 documents as Exhibits P1 to P20. Defendant examined himself as DW1 and produced 44 documents as Exhibits D1 to D44.

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On appreciation of evidence, the trial Court answered

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issue numbers 1 to 3 in the negative and consequently

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HC-KAR

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dismissed the suit. Being aggrieved, the plaintiff/appellantsince deceased by his legal representative is before the Court.

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Learned counsel for the plaintiff submits that the original plaintiff having inherited property through his father B. Muniswamappa, had formed the layout and had sold certain sites but however had retained site No. 6. The site being claimed by the defendant is site No. 4. Since the defendant himself has admitted that the subject matter of suit is different from the site claimed by him, the trial Court ought to have decreed the suit. He submitted that the site No. 6 has remained unsold and the contention urged by the defendant that the said site having been sold by Muniswamappa in favour of K. Yashodamma and thereafter the bid purchaser selling this land in favour of V.M Devraj is not substantiated. Therefore, he submits that the trial Court has erred in not appreciating the material evidence placed on record.

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Per contra, learned counsel for the defendant, taking this Court extensively through the records point out that during the evidence, the plaintiff sought to change the course of the litigation while deposing at para 7 of his affidavit filed in

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lieu of his evidence, wherein for the first time the plaintiff has

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pleaded that the property being claimed by him is different from the property which is in possession of the defendant. He also points out to the deposition of PW1 recorded on 17.8.2010 wherein the plaintiff has deposed that his father had neither formed any layout nor sold any sites thereof. Plaintiff has also deposed that he has not sold site No. 6 to anybody. He has denied the suggestion of his father having sold site No. 6 in favour of Yashodamma and Yashodamma selling the same in favour of Devaraj. He also points out to the further deposition of the plaintiff recorded on 20.07.2013 where the plaintiff has admitted he not being in possession of the suit property. He refers to documents at Exhibit D1 in terms of which, Yashodamma had purchased the site No. 6. He points out to the boundaries given to the said deed. He also refers to deed of sale at Exhibit D2 under which the plaintiff himself has sold the very suit site in favour of one R. Shekar. He points out to the schedule given in the said sale deed. Juxtaposing these two schedules given in Exhibit D1 and Exhibit D2, with the schedule given in the plaint he submits, the site which is being claimed in the plaint has been alienated by the father of the plaintiff

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NC: 2026:KHC:7277 RFA No. 1103 of 2015

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and thereafter plaintiff himself under Exhibits D1 and D2. Present suit therefore is clear misuse of the process of law, filed by suppressing the material facts, having no relevance to site No. 6.

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He submits that defendant on the other hand purchased site No. 4 in terms of Exhibit D22 from certain Radha, who was the power of attorney holder of Muniswamappa, the father of plaintiff. He submits that sufficient material was brought on record by the defendant to justify his pleading of site No. 6 being different and distinct from site No.4 and also site No. 6 itself not belonging to the plaintiff anymore. That the plaintiff under the garb of the suit trying to knock of the property belonging to the defendant. Hence, he sought for dismissal of the appeal.

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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 plaintiff has proved that he is the owner in lawful possession of the suit schedule property?

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(ii) Whether the trial Court was justified in dismissing the suit?

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There is no dispute with regard to the fact that the property originally belonged to Muniswamappa, father of the plaintiff. Though plaintiff has claimed that his father during his lifetime had neither formed the layout nor sold any site, has reiterated his stand in the cross-examination, Exhibit D1 indicate that site No. 6 as described in the schedule thereunder with the boundaries as East by - site No. 7, West by - Kerekatte, North by - Siddappa's property, South by - road, has been sold in favour of one Yashodamma as far back as on 18.01.1995 by power of attorney holder of Muniswamappa. Admittedly, Muniswamappa had passed away on 27.04.1995. Further, Exhibit D2 indicate that the plaintiff himself has sold the very same site with very same boundaries in favour of one R. Shekhar. These two documents have not been disputed by the plaintiff. The trial Court has taken note of this aspect of the matter to come to the conclusion that the plaintiff has filed the suit in respect of the property which is not available. No error can be found with this finding and conclusion arrived at by the trial Court.

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Defendant on the other hand has set up his independent claim over site No. 4 which according to him is

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bounded on East by property belonging to Yeriah, West by property belonging to Muniswamappa , North by road and South by property belonging to Patel Ramachandrappa. The said site has been purchased by the defendant in terms of Exhibit D22, which is purportedly executed by one B. Radha who in turn had acquired right through one Varalakshmi who in turn had acquired right through Muniswamappa, the father of the plaintiff.

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Plaintiff though has not pleaded it in the plaint,

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however in his affidavit filed in lieu of his evidence at para 7 has deposed as under :

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“The property alleged by the defendant is entirely different with that of the schedule property and that on wrong identity the defendant cannot disturb my peaceful possession.”

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Clearly plaintiff himself has prevaricated his stand from what was originally pleaded in the plaint. Defendant in justification of his claim of ownership and possession has produced documents in the nature of sale deed-Exhibit D22, tax paid receipt-Exhibits D26 and D27, electricity consumption charges bills – Exhibits D17 to D20 and D31, D32 and D33 and

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bore-well drilling bill – Ex.D34. He has also produced encumbrance certificates – Exhibits D9 to D16. Based on these material evidence produced by the defendant, the trial Court has come to the conclusion that plaintiff has not established his ownership and lawful possession of the suit property. No error can be found in the judgment and decree of the trial Court. Accordingly, the appeal is dismissed .

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Consequently pending applications, if any, do not survive for consideration.

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Sd/(M.G.S. KAMAL) JUDGE

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CKL List No.: 1 Sl No.: 3

Mr M Cheluvaraju v. Mr Chowdappa

Case brief

What is this about?

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Mr M Cheluvaraju v. Mr Chowdappa

Case brief

What is this about?

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What the court decided

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