Shri Govindaraju Vs Smt Veenamba

THIS RFA is FILED U/SEC.96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 20.11.2010 PASSED IN O.S.8307/2006 ON THE FILE OF THE XXXIX ADDITIONAL CITY CIVIL JUDGE, BANGALORE CITY, DECREEING THE SUIT FOR PERMANENT INJUNCTION.

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THIS APPEAL, COMING ON FOR HEARING, 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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The captioned appeal is by the defendants directed against the judgment and decree dated 20.11.2010 rendered in O.S.No.8307/2006 whereby plaintiff's suit seeking injunction simpliciter is decreed and defendant is restrained from interfering with plaintiff's peaceful possession and enjoyment over the suit schedule property.

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For the sake of convenience, the parties are referred to as per their rank before the trial Court.

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The brief facts of the case are as under:

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The plaintiff instituted O.S.No.8307/2006 seeking the relief of permanent injunction, alleging that on 06.09.2006 the defendant, without any semblance of right, unlawfully attempted to encroach upon the suit schedule property by undertaking excavation work therein. It was specifically contended that the defendant’s acts were high-handed and

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amounted to interference with the plaintiff’s peaceful possession. The plaintiff asserts absolute ownership and possession over Site No.105 corresponding to House List Khatha No.361/105 and claims to be in settled possession as on the date of the suit.

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On service of summons, the defendant entered appearance and filed a detailed written statement stoutly denying all material averments. By way of defence, it is contended that the property claimed by him forms part and parcel of Survey No.94/2. The defendant asserts ownership over Site No.2A carved out in Survey No.94/2 and maintains that the plaintiff’s alleged property is situated towards the northern side of his site. It is further pleaded that he and his brothers had secured conversion of the land for non-agricultural residential purpose pursuant to an order of the Deputy Commissioner dated 04.01.1992 and thereafter formed sites. According to him,

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he retained Site Nos.1A, 2A, 3A and 4A of varying measurements and is in lawful possession thereof. He also

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claims that khathas have been issued by the competent local authority, namely the City Municipal Council, Byatarayanapura, and that he has been regularly paying property taxes.

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On the basis of the rival pleadings, the Trial Court framed appropriate issues and both parties were afforded opportunity to adduce oral and documentary evidence. Upon appreciation of the material on record, particularly the title deed produced by the plaintiff marked at Ex.P2, the Trial Court concluded that the plaintiff had succeeded in establishing her title and lawful possession over the suit schedule property. Holding that there was credible evidence of interference by the defendant, the Trial Court decreed the suit and granted a decree of perpetual injunction restraining the defendant from interfering with the plaintiff’s peaceful possession of Site No.105.

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Assailing the judgment and decree, learned

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counsel for the defendant has reiterated the grounds urged in the memorandum of appeal and has taken this Court through the photographs marked at Exs.D13 and

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D14, as well as Ex.D8, along with the unapproved layout plan at Ex.D7. Placing reliance on this rebuttal evidence, it is contended that the excavation work undertaken by the defendant was strictly within the boundaries of his own property and that the photographs at Ex.D8 clearly demonstrate that no construction activity was carried out within the plaintiff’s site. It is further argued that the Trial Court has failed to properly appreciate the discrepancy in identification of the suit property, inasmuch as the sale deed relied upon by the plaintiff does not mention the survey number of Site No.105. In the absence of a specific survey reference, the very identity and location of the

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plaintiff’s property, it is contended, remain seriously disputed. Therefore, the finding that the plaintiff has proved lawful possession and interference is alleged to be

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contrary to the rebuttal evidence and hence perverse, warranting interference by this Court.

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This Court has heard the learned counsel for the defendant at length and has carefully perused the pleadings, oral testimonies and documentary evidence placed on record, including the exhibits relied upon by both parties.

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In the light of the rival contentions and the material available on record, the following points arise for consideration:

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"(i) Whether the finding of the Trial Court that

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the plaintiff has proved her lawful possession over the suit schedule property and the alleged interference by the defendant, while answering Issue No.2 in the affirmative, suffers from perversity and calls for interference by this Court?

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(ii) What Order?"

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Finding on point no. (i)

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On a meticulous examination of the schedule appended to the sale deed marked at Ex.P2, it is manifest that there is absolutely no reference to the survey number in which the alleged Site No.105 is formed. The description is confined only to site number, house list khatha number, measurements and boundaries. Significantly, the boundaries indicated in the sale deed are identical to those found in the plaint schedule. However, when the rival claims of the parties are examined in their entirety, it becomes evident that both the plaintiff and the defendant assert ownership over sites carved out in what is admittedly an unapproved layout formed in agricultural land. The plaintiff has not produced any layout plan to indicate the formation, demarcation or positioning of Site No.105 within any larger survey extent. On the contrary, the defendant, by way of rebuttal evidence, has produced

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a layout plan marked at Ex.D7 and photographs at Exs.D8, D13 and D14, attempting to demonstrate the topography, spatial arrangement and relative location of the sites claimed by both parties.

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The core defence set up by the defendant is that the southern boundary of the plaintiff’s property is not a road, as described in the plaint and sale deed, but rather the defendant’s own site situated in Survey No.94/2. This dispute strikes at the very root of identification and location of the suit schedule property. When the properties are carved out of agricultural lands without approved layout plans and when they partake the character of revenue sites, the burden on the plaintiff to precisely identify and establish the location of the property becomes all the more stringent. In such circumstances, mere production of a sale deed, which itself does not disclose

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the survey number or any correlation to the parent survey land, would not suffice to conclusively establish identity.

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In the present case, the plaintiff has chosen to file a suit for bare injunction without seeking declaratory relief, despite a serious cloud being raised over the identity and location of the suit property. When the very existence of a road on the southern side is disputed and when the defendant asserts that his site abuts the plaintiff’s site, it was incumbent upon the plaintiff to place cogent and convincing material such as an approved or even a contemporaneous layout sketch, survey records, or any other technical evidence to demonstrate the exact situs of Site No.105. The learned Trial Judge, however, appears to have been swayed primarily by the title deed and certain assessment extracts, without adverting to this foundational controversy relating to identification.

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Though the defendant had sought local inspection to resolve the boundary dispute, the application came to be rejected. Be that as it may, even in the absence of local inspection, the Trial Court was dutybound to scrutinize the material on record and record a

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clear finding as to how the identity and location of the suit property stood established. A bare reliance on Ex.P2, which is conspicuously silent about the survey number, cannot by itself establish the precise location of a revenue

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site formed in an unapproved layout. This crucial aspect, which goes to the root of the matter, has not been addressed in the manner required by law.

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Equally significant is the admission contained in paragraph (6) of the plaint, which has been extracted herein below which reads as under:

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"6. The plaintiff had constructed unauthorisedly some structures on the suit schedule property and the concerned authority has also regularised the said constructions after the receipt of the betterment charges as mentioned above. The order passed by the authority concerned is also produced hereto for the kind perusal of this Hon'ble Court. The earlier notice issued by the Notified area Committee Hebbal for responding to the application made by the plaintiff for regularising the illegal constructions is also enclosed for the kind perusal of this Hon'ble Court."

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The plaintiff has candidly admitted that he had constructed certain structures unauthorisedly on the suit schedule property and that steps were being taken to secure regularisation by payment of betterment charges. The notice issued by the Notified Area Committee, Hebbal and the subsequent order of regularisation are also referred to by the plaintiff. This pleading unequivocally discloses that as on the date of construction, the structure was unauthorised.

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It is trite that in a suit for bare injunction, the plaintiff must not only establish lawful possession as on the date of the suit but must also approach the Court with clean hands. The equitable relief of injunction is discretionary in nature. When the plaintiff himself pleads that the construction put up on the property was unauthorised and that he was in the process of seeking its regularisation, the Court ought to have examined whether such possession could be termed lawful so as to warrant protection under a decree of perpetual injunction.

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The subsequent act of regularisation, even if accepted, does not retrospectively validate an initially unauthorised construction so as to automatically entitle the plaintiff to equitable relief. The Trial Court, while exercising discretion, has failed to advert to this admission in paragraph (6) of the plaint and has not examined its legal implications. The equitable considerations, therefore, do not lean in favour of the plaintiff.

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When the plaintiff has failed to conclusively establish the identity and location of the suit schedule property, and when his own pleadings disclose that the construction was unauthorised, the finding of the Trial Court that the plaintiff has proved lawful possession and interference cannot be sustained. The discretion appears not to have been exercised judiciously and in accordance with settled principles governing suits for injunction.

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Accordingly, for the foregoing reasons, Point No.(i) is answered in the affirmative .

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