Sri C Annayappa Vs C Balappa

THIS RFA IS FILED U/SEC.96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 29.01.2010 PASSED IN O.S. NO.7961/1992 ON THE FILE OF THE VII ADDL. CITY CIVIL JUDGE, BANGALORE, (CCH-19), DECREEING THE SUIT FOR MANDATORY INJUNCTION & PERMANENT INJUNCTION AND ETC.

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THIS APPEAL, COMING ON FOR FURTHER 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 Regular First Appeal is filed by the legal heirs of defendant Nos.1 and 2 assailing the judgment and decree dated 29.01.2010 rendered in O.S.No.7961/1992 on the file of the VII Additional City Civil Judge, Bengaluru City (CCH-19).

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For the sake of brevity, the rank of the parties are

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referred as they are ranked before the Trial Court.

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Brief facts leading to the case are as under;

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The original plaintiff - C.Balappa, instituted the

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suit seeking a decree of mandatory injunction directing the defendants to close the doors illegally opened at points 8A9 and 8B9 towards the southern side, as depicted in the rough sketch annexed to the plaint. The plaintiff also sought a decree of perpetual injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the suit schedule property, which is situated to the south of the defendants9 property.

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The original plaintiff traced his title through his father - Chowrappa. It is the specific case of the plaintiff that his father purchased the property bearing Khanesumari No.200 under a registered sale deed dated 11.04.1932 from Smt.Chinnamma. On the strength of the said sale deed, the plaintiff asserted that his ancestors

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were the absolute owners of the property measuring 60 feet east to west on the northern side, 75 feet east to

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west on the southern side, 55 feet north to south on the eastern side, and 85 feet north to south on the western side.

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It is further pleaded that after the death of the plaintiff9s father, the property was managed by his mother - Smt.Annamma, who alienated the northern portion of the property under a registered sale deed dated 02.06.1947 in favour of Smt. Chinnamma w/o Mariyanna, measuring 15 yards east to west and 9 yards north to south on the eastern side and 7 yards on the western side. The plaintiff pleaded that the purchaser constructed a house thereon, having its main entrance towards the northern road.

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It is further averred that the said Smt. Chinnamma w/o Mariyanna sold the property in favour of Venkatappa under a registered sale deed dated 20.09.1961, who in turn conveyed the same in favour of

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Smt.Yagamma w/o Annaiappa (Defendant No.2) under a registered sale deed dated 27.10.1971.

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The principal grievance of the plaintiff in the present suit is that defendant Nos.1 and 2, despite having no manner of right, title or interest over the vacant open space lying to the southern side of their house, have illegally opened doors on the southern side, thereby indirectly asserting rights over the said open space, which according to the plaintiff has always remained with his ancestors. On these allegations, the suit came to be filed seeking mandatory injunction for closure of the said doors and perpetual injunction restraining interference with the plaintiff9s possession over the vacant open space.

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Upon service of summons, defendant Nos.1 and 2 entered appearance and filed their written statement, stoutly denying the plaint averments in toto. The defendants contended that the plaintiff had manipulated the documents, particularly the sale deed dated

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11.04.1932 and that in the absence of production of the

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original document, reliance on a xerox copy was impermissible in law. The defendants specifically asserted that the plaintiff9s father had purchased only a property measuring 8×35 yards, whereas the plaintiff is now claiming ownership over an extent of 25×35 yards by manipulating revenue and other records.

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The defendants further disputed the rough sketch appended to the plaint and contended that the plaintiff had not approached the Court with clean hands and was therefore disentitled to the discretionary relief of mandatory injunction. By way of amendment, the defendants incorporated additional paragraph Nos.9 to 11 in the written statement raising a plea that the suit was bad for non-joinder of necessary parties.

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On the basis of the rival pleadings, the Trial Court framed appropriate issues and directed the parties

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to adduce oral and documentary evidence in support of

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their respective claims.

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In support of the plaintiff9s case, four witnesses were examined and twenty-five documents were produced and marked as Exs.P-1 to P-25. On the other hand, the defendants examined two witnesses and produced documentary evidence marked as Exs.D-1 to D-16.

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The Trial Court, upon an elaborate examination of the title deeds and oral evidence, particularly the evidence adduced by both parties, answered issue Nos.1 to 3 in the affirmative and held that the plaintiff had successfully established his lawful possession over the suit schedule property as on the date of institution of the suit. The Trial Court further held that the defendants had illegally opened doors on the southern side of their houses, marked as points 8A9 and 8B9 in the rough sketch. While answering issue No.3, the Trial Court concluded that

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the plaintiff was entitled to the discretionary relief of mandatory injunction.

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Aggrieved by the said judgment and decree passed in O.S.No.7961/1992, the present appeal is preferred only by the legal heirs of defendant Nos.1 and 2. Defendant Nos.3 and 4 have not chosen to challenge the decree of the Trial Court.

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This Court has heard the learned counsel appearing for the legal heirs of the defendant Nos.1 and 2 and the learned counsel appearing for the legal heirs of the original plaintiff - C. Balappa.

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This Court, being the final fact-finding authority, has carefully re-examined the pleadings, the rival contentions urged in the written statement and has independently assessed the entire oral and documentary evidence adduced by both parties.

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On the basis of the above, the following points

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arise for consideration:

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(i) Whether the Trial Court was justified in granting the relief of mandatory injunction directing the defendants to close the doors opened on the southern side of their houses at points 8A9 and 8B9 as shown in the rough sketch?

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(ii) Whether the Trial Court was justified in granting the reliefs of mandatory injunction and perpetual injunction as prayed for in the plaint?

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(iii) What order?

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Findings on Point Nos.(i) and (ii)

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Though defendants are disputing the plaintiff's title over the suit schedule property, this Court deems it fit to advert to the title documents, more particularly, Exs.P.3, 4 and 5. Ex.P.3 is the registered sale deed executed by the plaintiff's mother - Smt.Annamma in favour of one Smt.Chinnamma w/o Mariyanna under a

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registered sale deed dated 02.06.1947. The boundaries

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indicated in the said sale deed are as follows;

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East : Plaintiff's house

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West: Government Land

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North: Road

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South: Remaining vacant land owned by the plaintiff

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It would be also relevant to record the

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measurement shown in Ex.P.3, which reads as under;

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East to West - 15 yards

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North to South towards East - 9 yards

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towards West - 8 yards

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Similarly, the legal heirs of Smt.Chinnamma sold

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the very same portion to one Venkatappa under registered

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sale deed dated 20.09.1961 evidenced at Ex.P.4. The boundaries would be relevant and the same is extracted as follows;

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East :Annamma's House

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West: Government Land

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North: Road

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South: Annamma's vacant land

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It would be also relevant to record the

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measurements of the portion sold by the legal heirs of Smt.Chinnamma in favour of Venkatappa.

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East to West - 45 feets

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North to South towards East - 27 feets

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towards West - 21 feets

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Defendant No.2 - Smt.Yagamma has purchased

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some portion of the property from Venkatappa under the registered sale dated 27.10.1971 evidenced at Ex.P.5, which shows same measurement and same boundaries.

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The legal heirs of defendant No.2 are before this Court assailing the judgment and decree of the Trial Court, whereby the reliefs of mandatory injunction and perpetual injunction have been granted in favour of the plaintiffs. This Court, having carefully examined the boundaries recited in the three registered title documents marked as

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Exs.P-3, P-4 and P-5, considers it appropriate to refer and extract the rough sketch appended to the plaint as the same throws considerable light on the physical features of the properties and enables effective adjudication of the core dispute between defendant Nos.1 and 2 and the plaintiffs.

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It is also of significance to note that defendant Nos.3 and 4, against whom an identical decree of mandatory injunction has been passed, have not chosen to challenge the said decree, thereby allowing the findings of

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the Trial Court to attain finality insofar as they are concerned.

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The rough sketch relied upon by the plaintiffs, which forms part of the plaint, is therefore extracted hereunder for ready reference:

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EAST
55'
PLAINTIFF'S HOUSE
50'
27' G
75' 75' SOUTH
45' 45' A PLAINTIFF'S PROPERTY
NORTH 60' SUIT SCHEDULE PROPERTY
21'
15' B
20'
C
85'
WEST

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On a careful and closer scrutiny of the chain of

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title commencing from the registered sale deed of the year 1932 obtained by the plaintiffs9 ancestor, followed by the subsequent alienation of a portion of the said property in favour of Smt. Chinnamma w/o Mariyanna, and the further conveyances made by her in favour of Venkatappa, who in turn conveyed the property to defendant No.2 3 Smt. Yagamma, this Court finds that the rough sketch furnished by the plaintiffs unmistakably tallies with the boundaries recited in all the three registered title deeds marked as Exs.P-3, P-4 and P-5.

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A holistic and meaningful reading of the sketch,

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which has been extracted hereinabove, clearly demonstrates that the property purchased by defendant No.2 is a north facing residential house abutting the northern road with its main entrance opening towards the north. The sketch, read in conjunction with the title deeds, leaves no manner of doubt that the southern side of the defendants9 house is bounded by vacant land retained by the plaintiffs9 ancestors.

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It is, therefore, wholly inexplicable that defendant Nos.1 to 4, who admittedly trace their title through the very same ancestor of the plaintiffs, have ventured to question and dispute the plaintiffs9 title over the vacant open space lying to the south of their residential houses.

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A closer examination of Exs.P-3, P-4 and P-5, which are the registered sale deeds forming the root of title of defendant No.2, clearly reveals that in all the three

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documents, the southern boundary is consistently

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described as vacant land belonging to the plaintiffs9 family. The recitals in these registered instruments unequivocally establish that the plaintiffs9 ancestors had retained ownership and possession of the vacant land on the southern side, while only a defined portion was conveyed to the predecessors of defendant No.2.

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Defendant No.2, being a subsequent purchaser and admittedly tracing title through the plaintiffs9 ancestor, cannot assert any right, title or interest over the vacant land lying to the south of her residential house contrary to the express boundary recitals contained in the very documents under which she claims title. Any such assertion by the defendants is squarely opposed to and inconsistent with the admitted documentary evidence.

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In view of the clear and unambiguous recitals in the registered sale deeds, the defendants are estopped from setting up a plea contrary to the terms of the written

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instruments and such a claim is clearly barred by the mandate of Section 92 of the Indian Evidence Act, 1872. The attempt of the defendants to assert ownership over the southern vacant land is thus legally untenable.

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It is evident from the materials on record that the defendants have high-handedly fixed doors on the southern side of their residential houses, thereby indirectly asserting a claim over the vacant land admittedly retained by the plaintiffs.

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The alternative plea sought to be raised by defendant No.2 contending that the land situated to the south of her house is Government Land and that she had applied for grant and obtained a Grant Order, is also wholly devoid of merit. No documentary evidence whatsoever, much less a valid Grant Order issued by the competent authority, has been produced to substantiate such a plea.

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Be that as it may, even assuming such a

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contention for the sake of argument, the same stands conclusively negated by the boundary descriptions in the registered sale deed under which defendant No.2 derives title, which clearly reflect that the southern boundary is vacant land belonging to the plaintiffs. Therefore, this Court has no hesitation in holding that defendant Nos.1 and 2 along with defendant Nos.3 and 4 have illegally opened doors on the southern side of their residential houses despite having no manner of right or ownership over any open space beyond their southern boundary.

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In this background, the plaintiffs9 prayer for mandatory injunction squarely arises for consideration. The defendants are found to be asserting title and possession contrary to the extents and boundaries expressly recorded in the registered sale deeds and such conduct is impermissible in law. The undisputed fact that the house of defendant No.2 is north-facing and abuts a public road on the northern side further reinforces the

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conclusion that defendant No.2 has adequate and lawful access from the northern side and the opening of doors on the southern side serves no legitimate purpose other than to encroach upon and interfere with the plaintiffs9 vacant land.

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The contention urged by the learned counsel for defendant No.2 that the plaintiffs have acknowledged possession of the defendants beyond their residential houses is wholly misconceived and dehors the pleadings. In the present suit, the plaintiffs have confined their relief strictly to seeking a mandatory injunction directing closure of the door fixed at point 8A9 by defendant Nos.1 and 2 and

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at point 8B9 by defendant Nos.3 and 4 and a consequential perpetual injunction restraining interference with their possession over the vacant land.

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In the light of the foregoing discussion, this Court is of the considered view that the plaintiffs have successfully established and proved that defendant Nos.1

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and 2 have illegally fixed a door at point 8A9 and defendant

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Nos.3 and 4 have illegally fixed a door at point 8B9, despite not owning or possessing any vacant portion beyond the southern boundary of their respective residential houses.

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This Court finds that the Trial Court, upon a proper and in-depth appreciation of the oral and documentary evidence, has rightly exercised its discretion in granting the relief of mandatory injunction directing closure of the said doors and has also rightly granted the relief of perpetual injunction restraining the defendants from interfering with the plaintiffs9 lawful possession over the vacant land. Accordingly, Point Nos.(i) and (ii) are answered in the Affirmative.

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