Shri v Suresh Vs Smt Lakshmamma

SRI. DIVAKAR S/O. LATE. V SURESH, AGED ABOUT 11 YEARS, SINCE MINOR REP. BY HER NATURAL GUARIDAN HIS MOTHER, SMT. KANCHANA, BOTH ARE RESIDING AT NO. 59/2, 1^ST TEMPLE ROAD, 15^TH CROSS, MALLESWARAM, BANGALORE - 560 003, BOTH REPRESENTED BY THEIR GPA HOLDER SRINIVASA NAIDU.

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...APPELLANTS

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(BY SRI REUBEN JACOB, SENIOR COUNSEL FOR SRI DEVAIAH M P, ADVOCATE)

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AND:

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SMT LAKSHMAMMA W/O. LATE. NARASIMHAIAH, AGED ABOUT 69 YEARS,

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SMT. ANURADHA D/O. LATE. NARASIMHAIAH, AGED ABOUT 48 YEARS,

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SMT. VIJAYA, D/O. LATE. NARASIMHAIAH, AGED ABOUT 46 YEARS,

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SRI. JAYARAM S/O. LATE. NARASIMHAIAH, AGED ABOUT 43 YEARS,

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SRI. NARASIMHA MURTHY, S/O. LATE. NARASIMHAIAH, AGED ABOUT 41 YEARS,

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KUM. VANAJA D/O. LATE. NARASIMHAIAH, AGED ABOUT 38 YEARS,

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KUM. BINDU D/O. LATE. NARASIMHAIAH, AGED ABOUT 32 YEARS,

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ALL ARE R/AT NO. 17/A, NARASIMHAIAH COLONY ROAD, LOTTEGOLLAHALLI VILLAGE, RMV II STAGE, SANJAY NAGAR, BANGALORE - 560094.

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...RESPONDENTS

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(BY SRI G CHANDRASHEKARAIAH, ADV. FOR R1, R2, R4, R5 AND R6, R3 IS SERVED BUT UNREPRESENTED)

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THIS RFA IS FILED U/S.96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 13.07.2018 PASSED IN OS.NO.11289/2006 ON THE FILE OF THE XXIV ADDL.CITY CIVIL AND SESSIONS JUDGE, BANGALORE CITY, DISMISSING THE SUIT FOR PERMANENT INJUNCTION.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 05^TH MARCH, 2026 AND COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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RFA No. 1518 of 2018

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CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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CAV JUDGMENT

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This first appeal is under Section 96 of the Code of Civil Procedure, 1908. The plaintiffs whose suit in O.S No.11289/2006 for injunction is dismissed in terms of the judgment and decree dated 13.07.2018 are in appeal. The original plaintiff V. Suresh died during the pendency of the suit and his legal representatives were brought on record.

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The suit is filed in respect of immovable property described as site bearing No.2, V.P.Khata No.109/A, having Assessment No.3/3, situated at Lottegollahalli Village, Kasaba Hobli, Bangalore North Taluk, measuring East-West:30 feet and North-South: 44 feet, totally measuring 1320 square feet with a shed and a compound wall built around it. The boundaries are described as under:

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East: Property No.3 West: Property No.1 North: Road

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South:Sterling Apartments property belonged to M.Anjanamurthy.

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RFA No. 1518 of 2018

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The plaintiffs seek injunction against the defendants

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from interfering with their peaceful possession and enjoyment of suit schedule property and also seek a restraint order from alienating the suit schedule property.

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This case was heard along with RFAs.

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No.1514/2018, 1515/2018, 1516/2018, 1517/2018, 1519/2018 and 1520/2018. During the hearing, the counsel appearing for both sides submitted that, certain transactions evidenced in the registered sale deeds filed in RFA No.1514/2018 arising from O.S No.11276/2006 are not in dispute. Thus, while narrating

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the facts of the case, the Court has also taken note of the transactions evidenced in O.S.No.11276/2006, as the parties to the proceeding are claiming right over the sites formed in Sy.No.3/3 in all the cases referred to above.

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The property bearing Survey No.3/3 measuring 1 acre 13 guntas in Lottegollahalli Village originally belonged to Hanumanthappa. Said Hanumanthappa had two wives namely; Byamma and Thayamma. It appears that both marriages are valid and from both wives Hanumanthappa had children and among them, a son from first wife Byamma was named as

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Narasimhaiah and a son from second wife Thayamma was also named as Narasimhaiah.

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The plaintiffs claim that there was an oral partition in the family during lifetime of Hanumanthappa and in the said oral partition, Narasimhaiah son of Hanumanthappa from first wife Byamma was allotted 1 acre 13 guntas of land in Survey No.3/3. The plaintiffs claim that said 1 acre 13 guntas of land in Survey No.3/3 was later sold by Narasimhaiah-son of Byamma to Muniswamappa under a registered sale deed dated 11.12.1956.

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The plaintiffs claim that Muniswamappa sold Survey No.3/3 measuring 1 acre 13 guntas to one Ranganayakamma under a registered sale deed 07.03.1957 and Ranganayakamma in turn sold the land to Narasimhaiah, the son from second wife Thayamma under a registered sale deed dated 07.08.1963.

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The plaintiffs also contend that Narasimhaiah son of second wife Thayamma sold the entire 1 acre 13 guntas in Sy.No.3/3 to Tirupathappa under a registered sale deed dated 08.08.1963 and said Tirupathappa formed several sites in 1 acre 13 guntas and retained few sites and sold few sites.

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The plaintiffs claim that, after the demise of Tirupathappa, his two sons T.Venkatesh and T.Rangaswamy succeeded to the estate of Tirupathappa and the aforementioned two sons executed a power of attorney in favour of Srinivasa Murthy. The power of attorney holder Srinivas Murthy, sold the suit property to the original plaintiff on 23.12.2004.

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Thus, the plaintiffs claim title and possession over the aforementioned property.

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It is the contention of the plaintiffs that, defendants No.1 to 7, who are the legal representatives of deceased Narasimhaiah from the second wife did not have any right, title and interest over the property as Narasimhaiah the son from second wife Thayamma had sold 1 acre 13 guntas in Sy.No.3/3 to Tirupathappa.

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Defendants No.1 to 7 contested the suit.

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Defendants contended that, Tirupathappa though

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purchased 1 acre 13 guntas in Sy.No.3/3 did not own and possess the suit property. Tirupathappa had sold all the sites formed by him. Defendants No.1 to 7 inherited certain sites

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formed by Narasimhaiah, the son from the second wife of Hanumanthappa, in 1 acre 2 guntas in Sy.No.3/3, and 37 guntas in Sy. No.3/2. Defendants No.1 to 7 also contended that the plaintiff's vendor Tirupathappa has sold site No.2 to Smt. Pushpabai, Muniraju and Munilakshmi and the suit site did not belong to Tirupatappa. Defendant No.1 contends that she has executed a gift deed in favour of 6^th defendant in respect of the suit property and prayed for dismissal of the suit.

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The Trial Court framed the following issues:

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"1. Whether plaintiff proves that he is in peaceful possession of the suit schedule property?

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2. Whether the plaintiff proves interference of defendants?

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3. Whether the plaintiff is entitled for the relief of permanent injunction as sought in the plaint?

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4. What order or decree?"

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The Trial Court has held that the plaintiffs failed to establish their title and their vendors' title and dismissed the suit. The Trial Court also held that the power of attorney is not proved.

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It is urged that the suit is one for injunction and the Court is only required to look into the possession as on the date of the suit and there was no need to probe into the title.

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The learned Senior counsel appearing for the plaintiffs/ appellants urged that, the Trial Court did not consider the case in proper perspective.

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In addition, it is urged that the records produced by the plaintiffs would demonstrate that the property was acquired by Tirupathappa and later inherited by his two children T.Rangaswamy and T.Venkatesh. Plaintiffs having acquired title of the property through the sale deed executed by power of attorney holder of T.Rangaswamy viz., Srinivas Murthy, have not only established possession of the property but also established the title.

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It is further urged by the learned Senior counsel appearing for the plaintiffs/appellants that, defendants have not produced any records to show the formation of sites and layout by Narasimhaiah, the son from the second wife Thayamma. That being the position, the Trial Court could not have dismissed the suit of the plaintiffs on the ground that the

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plaintiffs have not produced the documents relating to formation of layout by Tirupathappa.

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Learned counsel appearing for the respondents would urge that, the plaintiffs approached the Trial Court seeking injunction and the burden lies on the plaintiffs to prove their case and the Trial Court has rightly held that the plaintiffs have not established the possession over the property and consequently dismissed the suit.

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Learned counsel for respondents would also urge that the sale deed in favour of defendants No.8 and 9 are earlier to the sale deeds executed in favour of the plaintiffs and the said sale deeds in executed by legal favour of defendants No.8 and 9 representatives of deceased Narasimhaiah, the son from the second wife- Thayamma, who had purchased the property bearing Sy.No.3/3 measuring 1 acre 02 guntas from Byrappa under a registered sale deed dated 11.12.1956 (Ex.P15).

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It is also urged that, 37 guntas in Survey No.3/2 and 31 guntas in Survey No.3/3 were sold to one Lingamma and she reconveyed the aforementioned properties to Narasimhaiah, the son from the second wife. The said

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transaction is evidenced in registered sale deed dated 07.04.1965 marked at Exhibit D.2 and would urge that the Trial Court is justified in dismissing the suit.

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The Court has considered the contentions raised at

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the Bar and perused the records.

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The following points arise for consideration:

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(a) Whether the plaintiffs/appellants establish title and possession over the suit property based on the registered sale deed dated 23.12.2004?

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(b) Whether defendants/respondents establish title and possession over the suit property?

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(c) Whether the Trial Court is justified in dismissing the suit?

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Records would reveal that, certain transactions covered by registered sale deeds are not in dispute. The registered sale deed dated 24.09.1947, executed by Narasimhaiah, where he is shown to be resident of Nagashettyhalli, pertains to 1 acre 2 guntas in Survey No.3/3. The said document marked as Exhibit P.11 reveals that Seetappa as the purchaser. Said Seetappa reconveyed the

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same property on 21.04.1950 in favour of Narasimhaiah, resident of Nagashettyhalli as can be seen from Exhibit P.12.

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Subsequently, Narasimhaiah conveyed entire extent of 1 acre 2 guntas in Sy.No.3/3 in favour of Byrappa under a registered sale deed dated 28.05.1951, marked as Exhibit P.13.

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It is further seen that, under a registered sale deed dated 12.05.1955, Narasimhaiah, the son of Hanumanthappa through his first wife, purchased 11 guntas of land from his father, Hanumanthappa, and the children born through father's second wife. The said document is marked as Exhibit P.14.

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Under another registered sale deed dated 11.12.1956 at Exhibit P.15, Narasimhaiah purchased 1 acre 2 guntas of land in Survey No.3/3 from the previous owner, Byrappa. In the said document, the purchaser is described as a resident of Nagashettyhalli.

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Significantly, on the very same day, another registered sale deed, marked as Exhibit P.2, came to be executed, wherein the vendor Narasimhaiah is described as the

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elder son of Hanumanthappa, and an extent of 1 Acre and 13 guntas of land is conveyed in favour of Muniswamappa.

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A comparative reading of these contemporaneous transactions lead to a reasonable inference that, the vendor in the sale deed dated 11.12.1956 (Exhibit P.2) is Narasimhaiah, son of Hanumanthappa through his first wife Byamma, whereas the purchaser under the sale deed of the same date (marked as Exhibit P.15) is Narasimhaiah, son of Hanumanthappa through his second wife Thayamma.

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It is also relevant to note that, the extent of 1 acre 13 guntas purchased by Muniswamappa under the registered sale deed dated 11.12.1956 was subsequently conveyed to Ranganayakamma under two registered sale deeds dated 07.03.1957 and 17.07.1958, marked as Exhibits P.3 and P.16 respectively. Though the extent of the land in the two sale deeds referred to above add up to 1 acre 13½ guntas, same will not have any bearing on the final outcome of the suit as Muniswamappa who had purchased 1 acre 13 guntas from Narasimhaiah can convey only 1 acre 13 guntas through Ranganayakamma and Ranganayakamma in turn has sold only 1 acre 13 guntas to Narasimhaiah, the son from second wife

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under registered sale deed dated 07.08.1963. The said document is marked at Exhibit-P.6.

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Later, on 08.08.1963 Narasimhaiah-the son from second wife Thayamma, sold 1 acre 13 guntas to Tirupathappa. In the said sale deed at Exhibit-P.4, it is mentioned that seller is the son from second wife of Hanumantappa.

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Thus, it can be noticed that, Survey No.3/3 was subject matter of several transactions starting from 1947 onwards. It is also evident that the transactions in respect of Survey No.3/3 referred to above fall in two different chunks of land, one measuring 1 acre 2 guntas and another measuring 1 acre 13 guntas.

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The land measuring 1 acre 2 guntas was purchased by Narasimhaiah, the son from second wife-Thayamma under the sale deed executed by Byrappa on 11.12.1956. This portion of the land was retained by Narasimhaiah the son from second wife. Another chunk of land measuring 1 acre 13 guntas was initially sold by Narasimhaiah, the son from first wife and property was sold to Muniswamappa. As already noticed Muniswamappa sold the same to Ranganayakamma and later, said property measuring 1 acre 13 guntas was

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purchased by Narasimhaiah, the son from second wife and later, sold to Tirupathappa who purchased under a registered sale deed dated 08.08.1963.

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Admittedly, the plaintiffs are claiming that the suit site falls within 1 acre 13 guntas of land purchased by Tirupathappa. Defendants essentially claimed that Tirupathappa sold all the sites during his lifetime and his children did not inherit any site in Survey No.3/3 and the plaintiffs cannot claim any right under the sale deed executed by children of Tirupathappa.

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Defendants also claim that the property of defendants under the sale deeds which are under challenge, are the sites formed in survey No.3/3 measuring 1 acre 2 guntas or Survey No.3/2 measuring 27 guntas which belong to Narasimhaiah the son from second wife Thayamma.

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In the cross-examination PW.1 has stated that, he had records to show that after the death of Tirupathappa, his children's names are mutated in the Record of Right but, it is not produced. He claims to have obtained encumbrance certificate before the purchase however, that is not produced. In the cross-examination he has also stated that he has

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documents to show the boundaries of the suit property but he has not produced any document other than the sale deed which is disputed by the defendants and the boundary mentioned in the sale deed cannot be referred to identify the property which according to the plaintiff is falling in 1 acre 13 guntas of Sy. No.3/3. In the facts and circumstances of the present case, the plaintiff was required to produce the sketch pertaining to the suit property to show that the said property falls within 1 acre 13 guntas in Sy.No.3/3.

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The Trial Court has observed that, the plaintiffs have not produced the records to show that, as on the date of the suit or as on the date of the execution of the sale deed in favour of the original plaintiff, the property was standing in the name of the plaintiffs or their vendors respectively. The encumbrance certificate as on the date of the execution of the sale deed was also not in the name of the plaintiffs' vendors. The khata was not standing in the names of the plaintiffs' vendors. In addition, the Trial Court has also noticed that no documents are produced to hold that the plaintiffs' vendors namely T.Rangaswamy and T.Venkatesh, the children of Tirupathappa inherited the property after the demise of Tirupathappa.

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The plaintiffs claim that Tirupathappa had formed

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sites in Sy.No.3/3 measuring 1 acre and 13 guntas. This contention that the Tirupathappa formed sites is not in dispute. The plaintiffs' claim that Tirupathappa sold certain sites and retained some is disputed by the defendants. Defendants contend that the Tirupathappa sold all the sites formed by him and when he died, his children did not inherit any sites in Sy. No.3/3.

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The plaintiffs have also not produced any records relating to formation of layout by Tirupathappa which could have thrown light as to how many sites were formed by Tirupathappa. The plaintiffs have also not produced the sale deeds said to have been executed by Tirupathappa in respect of sites formed in Survey No.3/3 measuring 1 acre 13 guntas. Had the plaintiffs revealed as to how many sites have been formed, sold and retained by Tirupathappa, the Court would have been in a position to ascertain as to whether Tirupathappa had retained any sites, which eventually would be inherited by his two children namely T.Rangaswamy and T.Venkatesh. However, it is not done.

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In addition, it is required to be noticed that the

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records namely Khata certificate and extract, water bill and installation certificate by BESCOM marked at Exhibits D.3 to D.6 would indicate that the suit site was standing in the name of defendants.

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Though the learned Senior counsel for the plaintiffs/appellants is right in holding that the Trial Court disbelieved the power of attorney on an untenable ground that the signature in the power of attorney is not marked and identified, which could not have been a ground to ignore the power of attorney. The Court is of the view that, there is a valid ground to reject the power of attorney as the recital in the power of attorney read with the evidence of the power of attorney holder- PW.2 would indicate that, the said power of attorney was a power of attorney coupled with interest where through power of attorney, the title is said to have been conveyed to the power of attorney holder.

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The power of attorney holder in his crossexamination states that, when the power of attorney was executed he paid the consideration amount to T.Rangaswamy and T. Venkatesh. In addition, he further claims that he has

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conveyed the title to the purchaser and he has retained the consideration amount. If that is the evidence, the Court is of the view that the power of attorney required registration and same is not registered, as the power of attorney holder seems to be saying that he acquired title to the property under the power of attorney.

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The Court is concurring with the view of the Trial Court which has recorded a finding that, the plaintiffs have failed to establish the title of their vendors.

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Though the learned Senior counsel for the plaintiffs/appellants has urged that, even the defendants have failed to produce the layout said to have been formed by Narasimhaiah, the son from the second wife, on preponderance of probability, the Court is of the view that, there are materials to hold that the property records stand in the name of the defendants.

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Though the suit is one for bare injunction and though the plaintiff would urge that the plaintiff is only required to prove possession and not necessarily the title, the Court is of the view that the claim relating to possession over the suit property is emanating from the claim that the plaintiff has

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purchased the property from Tirupathappa's children under registered sale deed dated 23.12.2004. However, as can be seen from the records placed before the Court, no material is placed to show that Tirupathappa possessed the suit property at the time of his death and his children inherited the property after the death of Tirupathappa. Thus, the very foundation of the plaintiff's claim relating to possession of the suit property is not established.

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It is relevant to notice that PW2 the power of attorney holder has stated that on 06.03.1991 the properties in the names of children of Tirupathappa were partitioned, however, no records are produced to establish the alleged partition and allotment of Sy.No.3/3 in favour of children of Tirupathappa.

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The plaintiffs have produced the judgments passed by the Civil Courts in respect of some properties. The said judgments are of no consequence as the present defendants/respondents or their predecessors were not parties to the said proceeding. Thus, the said judgments do not operate against or bind the defendants. It is also

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