The University of Agricultural Science House Building Corporative Society Ltd. Vs Ashwanthnarayana Gowda

THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 26.6.2010 PASSED IN O.S.NO.6299/2000 ON THE FILE OF THE VIII ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE, DISMISSING THE SUIT FOR PERMANENT INJUNCTION AND MANDATORY INJUNCTION.

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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 appeal is by the unsuccessful plaintiff namely University of Agricultural Science House Building Co-Operative Society(for short "the society") assailing the

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judgment and decree rendered in OS.No.6299/2000 wherein plaintiff's suit for injunction simpliciter is dismissed.

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For the sake of convenience, the parties are

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referred to as per their rank before the trial Court.

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The facts leading to the case are as under:

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The plaintiff, a housing society, has instituted the present suit seeking a decree of permanent injunction simpliciter, asserting possession over certain kharab lands comprised in Survey Nos.105/3 and 108/2. It is the case of the plaintiff that it purchased an extent of 7 acres 14 guntas in Survey No.105 along with 1 acre 22 guntas of kharab land, and 2 acres 5 guntas in Survey No.108 along with 19 guntas of kharab land, all situated at Allalasandra Village, Bangalore North Taluk, under a registered sale deed dated 16.01.1987 executed by late Narayanappa and defendant No.1.

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The plaintiff asserts that pursuant to the said

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purchase, it formed a residential layout after securing approval from the competent authority, namely the Bangalore Development Authority, and thereafter carved out sites. The grievance of the plaintiff is that though defendant No.1, who had no subsisting right, title, or interest over the suit schedule property, had earlier filed O.S.No.1403/1989 which came to be dismissed, defendants 2 to 6 subsequently filed a suit for partition in O.S.No.423/1991 and attempted to interfere with the plaintiff9s peaceful possession and enjoyment of the suit schedule property. Alleging that the defendants are now putting up illegal constructions over the kharab land claimed by the plaintiff-society, the present suit came to be filed.

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Defendant No.1 remained ex-parte. Defendant No.2 entered appearance and filed a written statement, which was adopted by defendants 3 to 6. In the written statement, defendant No.2 categorically denied the plaint

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averments and specifically contended that neither the original owner nor defendant No.1 had sold the kharab land and that the plaintiff is attempting to set up a false claim over the same by fabricating documents. It was further contended that the kharab land is ancestral in nature, that the defendants have been in possession from the beginning, and that the said land forms the subject matter of O.S.No.4903/1993, which is presently pending consideration in RFA No.178/1999. The defendants also asserted that constructions have already been put up by them and that they are in actual physical possession of the suit property.

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On the basis of the rival pleadings, the Trial Court framed appropriate issues and permitted both parties to adduce oral and documentary evidence. On behalf of the plaintiff-society, one witness was examined as PW.1 and eight documents were marked as Exs.P1 to P8. The defendants, in rebuttal, examined one witness as

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DW.1 and produced twenty-six documents marked as Exs.D1 to D26.

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Upon appreciation of the oral and documentary evidence, the Trial Court adverted to the rebuttal evidence led by the defendants and recorded a finding that the defendants had put up constructions and were in actual physical possession of the suit property. The Trial Court also took note of the plaintiff9s claim that it had approached the Special Deputy Commissioner seeking grant of kharab land, as evidenced by Ex.P5. However, upon examining the title documents and the material on record, the Trial Court held that the plaintiff had failed to produce cogent evidence to establish its actual possession as on the date of the suit. Consequently, the suit came to be dismissed.

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Having heard the learned counsel appearing for the parties, this Court has independently examined the

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pleadings as well as the oral and documentary evidence

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adduced by both sides.

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consideration:

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"(i) Whether the finding recorded by the Trial

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Court that the plaintiff-society failed to establish its possession as on the date of the suit suffers from perversity and warrants interference by this Court?

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(ii) What order?"

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Finding on point number (i):

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Though the plaintiff-society has asserted

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throughout that it is in actual and physical possession of the suit schedule property, namely the kharab land attached to Survey Nos.105/3 and 108/2, the evidence brought on record during the course of trial tells a different story. Significantly, the plaintiff, while relying upon Ex.P5, has taken an additional and inconsistent stand that its

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application seeking grant of the kharab land attached to the aforesaid survey numbers is still pending consideration before the Special Deputy Commissioner. This stand, in itself, dilutes the plaintiff9s assertion of existing lawful possession over the suit schedule property.

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On the other hand, the defendants, while disputing the plaintiff9s claim over the kharab land, have placed substantial rebuttal evidence on record. The defendants have produced the sale deed to demonstrate that the kharab land was not the subject matter of conveyance and that the plaintiff cannot derive any possessory right over the same. In fact, the recitals in the sale deed relied upon by the plaintiff itself disclose that Survey Nos.105/3 and 108/2 were sold by the original owner excluding the kharab portion, which aspect is borne out from Ex.P8.

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The defendants have further relied upon Ex.D1, being the certified copy of the inspection report, and more

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importantly Exs.D17 and D18, being the survey sketches prepared by the Assistant Director of Land Records. These documents unequivocally indicate that the defendants are in actual physical possession of the kharab land and that constructions have been put up by them thereon.

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It is well settled that in a suit for injunction simpliciter, the plaintiff is required to establish two essential ingredients. Firstly, the plaintiff must prove that it was in lawful and actual possession of the suit schedule property as on the date of the institution of the suit. Secondly, the plaintiff must establish interference with such possession by the defendants. Unless the foundational requirement of possession is proved, the question of interference does not arise for consideration.

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On a careful examination of the rebuttal evidence adverted to hereinabove, it is evident that the defendants have successfully displaced the plaintiff9s claim of possession over the disputed kharab lands, which form

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the suit schedule property. The defendants have demonstrated that the sale deed executed by the original owner did not convey the kharab portion.

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Be that as it may, the certified copy of the inspection report marked at Ex.D14, coupled with the survey sketches prepared by the Assistant Director of Land Records marked at Exs.D17 and D18, conclusively establish the factum of possession. These official records clearly reveal that the defendants are in physical possession of the kharab land and have raised constructions thereon.

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Once the defendants have been able to establish that the plaintiff-society was not in possession of the suit schedule property as on the date of filing of the suit, and when the plaintiff itself admits to having sought grant of the kharab land by filing an application before the Special Deputy Commissioner, this Court has no hesitation in holding that the plaintiff has utterly failed to

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substantiate its possessory rights over the suit schedule property on the relevant date. In the absence of proof of possession, the question of examining alleged interference does not arise at all.

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Accordingly, Point No.(i) is answered in the

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Negative.

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Finding on point No.(ii):

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