Sri K M Rajendran Vs Smt Saritha Mary Alexander

SMT. SARITHA MARY ALEXANDER D/O P.V. ALEXANDER AGED ABOUT 40 YEARS NO.3-A, SHUBA SHREE APARTMENTS NO.31/3, 5^TH CROSS, 1^ST BLOCK REHMATH NAGAR, R T NAGAR

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BANGALORE-560 032.

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SRI. PERISWAMY FATHERS NAME NOT KNOW TO THE APPELLANT MAJOR IN AGE, CASHIER STATE BANK OF MYSORE WHITEFIELD, BANGALORE-66.

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…RESPONDENTS

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(BY SRI. P.M. RAGHURAMA REDDY & SRI. VASANTHAPPA, ADVOCATES FOR C/R1)

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THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 29.09.2010 PASSED IN O.S.258/2008 ON THE FILE OF THE XLI-ADDL. CITY CIVIL JUDGE, BANGALORE, DISMISSING THE SUIT FOR PERMANENT INJUNCTION.

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IN RFA No. 119/2011

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BETWEEN:

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SRI. K.M. RAJENDRAN S/O LATE M. KRISHNAMURTHY AGED ABOUT 51 YEARS NO.3, 1^ST MAIN, C.K.C. GARDEN BANGALORE-560027.

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SRI. K.M. BABU S/O LATE M. KRISHNAMURTHY AGED ABOUT 37 YEARS CHOLANAYANAKA HALLI KASABA HOBLI, BANGALORE NORTH TALUK-32.

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…APPELLANTS

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(BY SRI. RAJADITHYA SADASIVAN, ADVOCATE)

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AND:

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SMT. SUNILA ANNAMMA ALEXANDER W/O S. PARA VASUDEVAN AGED ABOUT 42 YEARS NO. 3-A, SHUBA SHREE APARTMENTS NO. 31/3, 5^TH CROSS, 1^ST BLOCK REHMATH NAGAR, RT NAGAR BANGALORE-560 032.

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SRI. PERISWAMY FATHERS NAME NOT KNOW TO THE APPELLANT MAJOR IN AGE, CASHIER STATE BANK OF MYSORE WHITEFIELD, BANGALORE

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…RESPONDENTS

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(BY SRI. VASANTHAPPA AND SRI. P.M. RAGHURAMA REDDY, ADVOCATES FOR C/R1; V/O DATED 09.03.2015 NOTICE TO R2 IS DISPENSED WITH)

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THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 29.09.2010 PASSED IN O.S.257/2008 ON THE FILE OF THE XLI-ADDL. CITY CIVIL JUDGE, BANGALORE, DISMISSING THE SUIT FOR PERMANENT INJUNCTION.

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

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL JUDGMENT

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These two captioned appeals are taken together

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though the decree arises out of two independent suits but common question is involved and both the sites are part and parcel of Sy.No.19/6, over which defendant Nos.1 and

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2 are asserting title.

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The facts leading to the case are as under:

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The plaintiffs in O.S.Nos.258/2008 and 257/2008

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instituted suits for injunction simpliciter in respect of Site Nos.56 and 54 respectively, carved out of Sy.No.19/6 situated at Basavanapura Village, K.R. Puram Hobli,

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measuring East–West 40 feet and North–South 30 feet. The plaintiffs assert possession on the strength of registered sale deeds executed by the GPA Holder through original owner, Chowramma. It is specifically pleaded that Sy.No.19/6 was acquired by Chowramma under registered sale deeds dated 17.12.1955 and 09.11.1972. According to the plaintiffs, Chowramma had formed residential sites

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in lands bearing Sy.Nos.18/10, 19/6, 18/8, 19/5, 18/9 and

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19/4.

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It is further pleaded that after conversion of the said lands, the legal heirs of Chowramma entered into an agreement of sale dated 26.08.1997 in favour of C.P. Selvaraj in respect of Sy.No.19/6 along with other lands and, on the very same day, Selvaraj reconveyed the property in favour of Smt. Papamma, Mariyappa, Smt. Theresamma and Rayappa. Upon receipt of the entire sale consideration, the said purchasers executed a registered General Power of Attorney in favour of C.P. Selvaraj, who, acting as GPA holder, formed a residential layout. The plaintiffs claim to have purchased the suit schedule sites from the GPA holder under registered sale deed dated 12.09.1998. Alleging that the defendants attempted to remove the fencing by engaging labourers, the plaintiffs instituted the present suits seeking injunction.

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Defendant Nos.1 and 2 entered appearance and

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filed written statements, stoutly disputing not only the plaintiffs’ title but also the very formation of sites in Sy.Nos.18/10, 19/6, 18/8, 19/5, 18/9 and 19/4. The defendants contended that they had purchased Sy.No.19/6 from the original owner, J.Mariappa and others, and asserted possession over the entire extent of agricultural land bearing Sy.No.19/6, seeking dismissal of the suits.

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On the basis of the rival pleadings, the trial Court framed issues and permitted the parties to adduce oral and documentary evidence. Upon appreciation of the material on record, the trial Court noticed that the defendants had already instituted a comprehensive suit in O.S.No.9087/2006 seeking declaration and consequential injunction and, during its pendency, had sought amendment to include the relief of possession. In this backdrop, the trial Court, relying upon the photographs, tax paid receipts and the conduct of the defendants in

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seeking possession, held that the plaintiffs had independently established their possession as on the date of institution of the suits. Accordingly, the trial Court decreed the suits, holding that the plaintiffs were in lawful possession on the relevant date.

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While granting the relief of perpetual injunction, the trial Court expressly confined its findings to possession alone and reserved liberty to the parties to establish their respective right, title and interest in the comprehensive suit in O.S.No.9087/2006. Observing that the suits were for injunction simpliciter, the trial Court held that its enquiry was necessarily limited to lawful possession as on the date of filing of the suits and not title. Consequently, both the suits came to be decreed.

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Learned counsel appearing for the defendants, reiterating the grounds urged in the memorandum of appeal, submitted that the findings recorded by the trial Court, even while decreeing the suits for injunction, would

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seriously prejudice the defendants’ rights in the pending comprehensive suit in O.S.No.9087/2006. It was contended that unless the findings touching upon possession and title are interfered with or expunged, the defendants would be irreversibly prejudiced, and therefore, the judgment and decree granting perpetual injunction warrant interference by this Court.

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Having heard the learned counsel for the defendants and the learned counsel appearing for the plaintiffs, the following points arise for consideration:

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1. Whether the judgment and decree of the Trial Court granting limited protection by way of perpetual injunction, in the light of the comprehensive suit filed by the defendants in O.S.No.9087/2006 seeking declaration of title and possession, call for interference by this Court?

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2. What order?

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Finding on Point No.1:

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9. The plaintiffs in both the suits assert possession

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of the respective suit schedule sites on the strength of registered sale deeds derived from Chowramma. In order to substantiate their lawful possession as on the date of institution of the suits, the plaintiffs have produced a series of contemporaneous documents, including khata certificates issued by the BBMP, assessment extracts, receipts evidencing payment of betterment charges, property tax paid receipts and photographs depicting the existence of fencing and enjoyment of the suit properties. On a cumulative appreciation of the said documentary evidence, the trial Court has recorded a clear finding that the plaintiffs have succeeded in establishing their lawful possession of the suit sites as on the date of filing of both the suits.

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It is well settled that in a suit for injunction simpliciter, the scope of enquiry is limited. The Court is

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required to examine only two essential aspects: firstly, whether the plaintiff is in lawful possession of the suit property as on the date of the suit; and secondly, whether such possession is threatened or interfered with by the

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defendant. Questions relating to absolute title are ordinarily beyond the scope of such proceedings, particularly when the parties are already before a competent Court in a comprehensive suit seeking declaration and possession.

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Significantly, the defendants, during the course of trial, have fairly acknowledged that they have instituted a comprehensive suit in O.S.No.9087/2006, which is evidenced by Ex.D-5. In the said suit, the defendants have sought the relief of declaration of title in respect of the entire land bearing Sy.No.19/6 measuring 32 guntas and, by way of amendment, have also sought the consequential relief of possession. The defendants’ own pleadings in the comprehensive suit proceed on the premise that they were dispossessed and that the plaintiffs are in possession of

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portions of Sy.No.19/6, including the present suit schedule sites.

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The trial Court, while noticing the pendency of the comprehensive suit filed by the defendants for declaration and possession, has consciously and correctly confined its enquiry in the present suits only to the question of possession. The trial Court has not ventured into adjudicating title, nor has it recorded any conclusive finding touching upon the rival claims of ownership. On the contrary, having regard to the nature of the relief sought in O.S.No.9087/2006, the trial Court has expressly relegated the parties to work out their respective rights, title and interest in the said comprehensive suit.

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Once the defendants themselves assert

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dispossession and seek recovery of possession in the subsequent suit, it necessarily follows that the defendants acknowledge the plaintiffs’ possession, whether lawful or otherwise, as on the relevant date. In such circumstances,

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the core dispute between the parties is no longer confined

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to mere possession but squarely revolves around competing claims of title, one asserted by the plaintiffs through registered sale deeds relating to specific sites and the other asserted by the defendants in respect of the entire Sy.No.19/6. Such a dispute can be effectively and conclusively adjudicated only in the comprehensive suit for declaration and possession already instituted by the defendants.

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The plaintiffs possession, in the present case, is not only admitted by implication in the defendants’ pleadings in O.S.No.9087/2006 but is also supported by registered conveyances and municipal records. Therefore, the limited decree of injunction granted by the Trial Court, restraining the defendants from dispossessing the plaintiffs in both suits otherwise than in due process of law, cannot be faulted. The apprehension expressed by the defendants that the trial Court has, in effect, decided title in a bare suit for injunction is wholly misconceived and runs

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contrary to the explicit observations made by the trial Court, which has categorically confined its findings to possession alone.

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In the light of these significant aspects, the judgment and decree rendered by the trial Court granting injunction, thereby protecting the plaintiffs’ possession until the matter of title and recovery of possession is adjudicated in the comprehensive suit filed by the defendants, do not suffer from any legal infirmity. The fact that the defendants have already sought possession on the basis of title in O.S.No.9087/2006 further fortifies the view that no interference is warranted in the present appeals.

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While the initial burden in the comprehensive suit would rest upon the defendants to establish their title and right to recover possession, the onus may thereafter shift to the plaintiffs to substantiate their claim of title to the suit sites by leading appropriate rebuttal evidence.

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Viewed from any angle, the decree passed by

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the trial Court is in consonance with settled principles governing suits for injunction simpliciter. Accordingly, Point No.1 is answered in the negative .

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Finding on Point No.2:

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