N Srinivasa Vs Smt v Varalakshmi

THE MANAGER / BRANCH MANAGER SHRI SARASWATHI CREDIT SOUHARDA SAHAKARI LTD., NO.32, SHRISKANDA, SIROOR PARK ROAD, NEAR HOTEL NEW KRISHNA BHAVAN, SESHADRIPURA, BENGALURU - 560 020

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…RESPONDENTS

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(BY SRI. DINESH S, ADVOCATE FOR R1 TO R5; SRI. M. KRISHNAPPA, ADVOCATE FOR R6 AND R7; SMT. SHRIDEVI BHOSALE M, ADVOCATE FOR R8)

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THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 21.12.2023. PASSED IN OS NO. 7627/2011 ON THE FILE OF V ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE SUIT FOR DECLARATION AND INJUNCTION.

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IN RFA NO. 858/2025

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BETWEEN:

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N. SRINIVASA

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S/O LATE G. NARAYANASWAMY AGED ABOUT 56 YEARS NO. 3, SARAKKI GARDEN J.P. NAGAR VI PHASE BENGALURU - 560 078.

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...APPELLANT

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(BY SRI. M.J. ALVA, ADVOCATE)

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AND:

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THE COMMISSIONER BRUHATH BENGALURU MAHANAGARA PALIKE N.R. SQUARE, BENGALURU - 560 002.

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THE REVENUE OFFICER BRUHATH BENGALURU MAHANAGARA PALIKE GANDHINAGAR SUB-DIVISION BENGALURU - 560 009.

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THE ASST. REVENUE OFFICER BRUHATH BENGALURU MAHANAGARA PALIKE GANDHINAGAR SUB-DIVISION BENGALURU - 560 009.

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R. SATHYANARAYANA

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S/O LATE RANGAPPA AGED ABOUT 69 YEARS NO. 218, 7TH CROSS T.DASARAHALLI, BENGALURU - 560 057.

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...RESPONDENTS

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(BY SMT. LAVANYA H.B, ADVOCATE)

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THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 21.12.2023 PASSED IN OS NO.1372/2012 ON THE FILE OF V ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU., DISMISSING THE SUIT FOR PERMANENT INJUNCTION.

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THESE APPEALS, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL JUDGMENT

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These two appeals are by the unsuccessful plaintiffs assailing the judgment and decree rendered in O.S.No.7627/2011 and O.S.No.1372/2012, wherein the Trial Court has dismissed these suits. Appeal in RFA.No.95/2024 is filed questioning the judgment and decree rendered in O.S.No.7627/2011 and RFA.No.858/2025 is filed questioning the judgment and decree rendered in O.S.No.1372/2012.

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For the sake of brevity, the parties are referred to

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as per their rankings before the Trial Court.

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Before this Court proceeds further, this Court

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deems it fit to extract the family tree, which is as under:

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G.Narayanaswamy (13.10.2000)

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Jayamma Varalaxmi I wife (9-6-2006) II wife (defendant No.1)

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Yashoda Mohankumar N.Srinivas Manjula Vinoda Arunkumar N.Srinivas (plaintiff) (defendant 4) (defendant 5) (defendant 3) (defendant 2)

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Facts leading to the case are as under:

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The relationship between the parties is not in dispute. The plaintiff is the son born to Jayamma, wife of late Narayanaswamy. Defendants No.2 to 5 are the children born through Varalakshmi, the 2^nd wife. The genealogical tree placed on record reveals that Narayanaswamy had two wives and, curiously, two sons bearing the identical name “N. Srinivas.” The present

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plaintiff, N. Srinivas, is the son born through Jayamma, whereas defendant No.2, also named N. Srinivas, is the son born through Varalakshmi.

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The plaintiff has instituted two separate suits. O.S.No.7627/2011 is filed seeking a decree of permanent injunction on the premise that his mother, Jayamma, was allotted 1/3rd share in the suit properties in O.S.No.7079/1995, which culminated in a compromise in FDP.No.13/2005. It is the specific case of the plaintiff that Jayamma, having obtained 1/3rd share, executed a registered Will dated 25.05.2006 (Ex.P.9) bequeathing her share in his favour. Tracing title and possession through the said Will, the plaintiff has instituted the suit for injunction simplicitor against the defendants.

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The second suit in O.S.No.1372/2012 is filed against the BBMP and its officials, arrayed as defendants No.1 to 3 therein, seeking a decree of injunction restraining them from effecting khata in favour of

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defendant No.4. The plaintiff asserts that the proposed mutation in favour of defendant No.4 would prejudice his

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alleged rights flowing from the Will dated 25.05.2006.

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On service of summons, the defendants have entered appearance and filed written statements in both suits. In O.S.No.7627/2011, the defendants have seriously disputed the alleged testamentary disposition and the plaintiff’s claim of exclusive possession based on the Will. Though the plaintiff initially sought only injunction simplicitor, he has also sought a declaration that the registered sale deed dated 25.08.2011 executed by defendants No.1 to 5 in favour of defendants No.6 and 7 is not binding on him. In view of the rival pleadings, the Trial Court framed appropriate issues, including an issue as to the maintainability of the suit in its present form.

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The parties were called upon to adduce evidence.

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The plaintiff examined himself as P.W.1 and produced 39 documents marked as Ex.P.1 to Ex.P.39. Defendants No.1

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to 5 did not actively contest the suit; however, the purchasers, namely defendants No.6 and 7, filed written statements and one of them examined himself as D.W.1 and produced 20 documents marked as Ex.D.1 to Ex.D.20.

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In O.S.No.1372/2012, the plaintiff produced 33 documents, whereas the defendants produced 5 documents. Both suits were clubbed and common evidence was recorded.

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Upon comprehensive appreciation of the oral and documentary evidence, the Trial Court answered Issue Nos.1 to 3 in O.S.No.7627/2011 in the negative and held that the plaintiff failed to establish his lawful possession as

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on the date of the suit and the alleged interference. Additional Issue No.1 was also answered against the plaintiff, holding that he failed to prove that the sale deed dated 25.08.2011 executed by defendants No.1 to 5 in favour of defendants No.6 and 7 is not binding on him. Additional Issue No.2 was answered by holding that the suit, in its present form, is not maintainable.

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Similarly, in O.S.No.1372/2012, Issue Nos.1, 1A, 2

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and 3 were answered in the negative, and Issue No.4 was answered in the affirmative by holding that the said suit is also not maintainable.

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Having heard the learned counsel on both sides and upon meticulous re-appreciation of the pleadings and the entire oral and documentary evidence on record, the following points arise for consideration in these appeals:

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(i) Whether the suit in O.S.No.7627/2011 seeking injunction simplicitor is maintainable, when the plaintiff traces title only to a 1/3rd share under the Will dated 25.05.2006, but seeks injunction in respect of the entire property?

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(ii) Whether the finding of the Trial Court that the plaintiff has failed to prove lawful possession as on the date of suit and the alleged interference suffers from perversity warranting interference?

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(iii) Whether the connected suit in

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O.S.No.1372/2012 is maintainable?

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(iv) What order?

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Findings on point Nos.(i) and (ii):

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The plaintiff in O.S.No.7627/2011 predicates his entire claim on the assertion that he has succeeded to an undivided 1/3rd share in the suit schedule property. It is his specific pleading that his mother, Jayamma, was allotted 1/3rd share in the suit schedule property and that he, by virtue of a testamentary bequest, has stepped into her shoes. The foundation of his claim is therefore not one of independent acquisition or exclusive ownership, but one flowing from a limited and defined share said to have fallen to Jayamma in prior partition proceedings.

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The pleadings disclose that the said 1/3rd share is traced to the preliminary decree passed in O.S.No.7079/1995, which was a suit for partition and separate possession in respect of property bearing

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No.96/2. The preliminary decree declared the respective shares of the parties, and the proceedings culminated in a final decree in FDP.No.13/2005, wherein the shares were worked out and allotted. According to the plaintiff, pursuant to the said final decree, Jayamma became entitled to 1/3rd share in the suit schedule property and was in possession and enjoyment of the same.

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It is further the case of the plaintiff that Jayamma, being the absolute owner of her 1/3rd share, executed a Will bequeathing the said share in his favour. Thus, the plaintiff’s title is neither absolute nor in respect of the entirety of the property; rather, it is confined to the 1/3rd undivided share allegedly devolved upon him under the Will. The entire edifice of the suit in O.S.No.7627/2011 is therefore structured upon the prior adjudication in O.S.No.7079/1995 and the final decree proceedings in FDP.No.13/2005.

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In that view of the matter, and in order to appreciate the precise nature of the plaintiff’s claim and the extent of the right asserted, this Court deems it appropriate to extract paragraph Nos.3 to 5 of the plaint filed in O.S.No.7627/2011, which set out the foundational facts relating to the preliminary decree, the final decree, and the alleged testamentary succession.

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"3. The plaintiff further submits that the 1^st defendant is the second wife of the plaintiffs father and the defendant No.2 to 5 are the sons and daughters of the 1^st defendant and father of the plaintiff and the plaintiff had filed suit against the father of the plaintiff and brother of the plaintiff one Mr. Mohan Kumar in O.S.No.7079/95 for the relief of partition and separate possession of his share in the property bearing No.76/2 (old No.80 after 96), 1^st main Temple road, Malleswaram, Ward No.6, Bangalore and the said suit came to decreed on date:29/8/2000 and declaring that the plaintiff is entitled the 1/3^rd share and subsequently the plaintiffs brother one Mr. Mohan Kumar had filed Final Decree Petition in F.D.P.No.13/2005 and during pendency of the above F.D.P. petition the plaintiff and his brother N. Mohan Kumar got executed release deed in favour of the 1^st defendant for extent of 735.37 square feet of their share and in this respect, the 1^st defendant got executed settlement agreement in favour of the plaintiff agreeing to pay a total sum of Rs.30,00,000/- (Rupees Thirty Lakhs only) as his share in the above stated property and the 1^st defendant further agreed that on the date of execution of the release deed the 1^st defendant

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agreed to pay a sum of Rs.10,00,000/- (Rupees Ten Lakhs only) and after with drawing the F.D.P. Petition after selling the above property the 1^st defendant is agreed to pay further a sum of Rs.20,00,000/(Rupees Twenty lakhs only) to the plaintiff and as agreed by the 1^st defendant in the settlement agreement the 1^st defendant had paid Rs.10,00,000/- (Rupees Ten lakhs only) at the time of execution of release deed in favour of the 1^st defendant and subsequent to it the plaintiffs brother had withdrawn the above F.D.P. Petition, thereafter the plaintiff had demanded the 1^st defendant for further payment as and when the plaintiff demanded further payment to the 1^st defendant and she had issued the cheques for discharge of her liability as agreed in the settlement agreement and the 1^st defendant had issued two cheques in favour of the plaintiff and the said two cheques had been dishonoured on 21/1/2010 with a dishonour memo's funds insufficient. In this respect the plaintiff had filed cheque bounce case against the 1^st defendant and the same is pending before the 16^th A.C.M.M. at Bangalore as C.C.No.18555/2010. The copy of the complaint in C.C.No.18555/2010 is herewith produced as document No.2.

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4. The plaintiff further submits that the father of the plaintiff had been died on 13/10/2000 and his share had been fallen to his wife Smt. Jayamma the mother of the plaintiff and the said Jayamma had executed the Will in favour of the plaintiff on 25/05/2006 and she had executed her husband share and her father's property share which is described in the suit schedule property. The certified copy of the Will dated 25/05/2006 is herewith produced as document No.3. It is further submits that thereafter the katha had been changed in to the name 1^st defendant and the plaintiff jointly and the plaintiff is herewith producing the katha certificate. Property extract and tax paid receipt is herewith

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produced as documents Nos.4 to 6 for kind perusal of this Hon'ble court.

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5. The plaintiff further submits that the plaintiff is the absolute owner of the suit schedule property by virtue of the registered Will executed by his mother on dated 25/05/2006 and after her death the katha had been changed in to the name of the plaintiff and he is in possession of the schedule property as a absolute owner thereof and the plaintiff name and the name of the son of the 1^st defendant is one and the same as N. Srinivas and by taking advantage of the same and by misusing the same and behind back of the plaintiff, the defendant No.1 to 5 had colluding with the defendant No.6 & 7 and colluding each other and made a fraud on the plaintiff created a document as execution of sale deed and sold the schedule property to the defendant No.6 & 7 and the same is registered on 25/08/2011 in the office of the Sub-Register, Malleshwaram, Bangalore and registered as document No.MLS-1-00712-2011-12, CD No.MLS32. The certified copy of the sale deed dated 25/08/2011 is herewith produced as document No.7."

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(Emphasis Supplied)

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On a careful reading of the aforesaid pleadings, it

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is manifest that the entirety of the plaintiff’s claim rests

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upon the assertion that his mother, Jayamma, was allotted 1/3rd share in O.S.No.7079/1995. It is on the strength of

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the said allotment that the plaintiff seeks to trace his title. Learned counsel for the plaintiff vehemently contended

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that the preliminary decree passed in O.S.No.7079/1995 has attained finality and therefore binds defendants No.1 to 5. This Court, however, is unable to accede to the said submission.

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A perusal of the material on record discloses that O.S.No.7079/1995 was instituted without impleading the children born to Narayanaswamy through his wife, Varalakshmi. The genealogical tree unmistakably indicates that Narayanaswamy was blessed with four children through Varalakshmi, who were necessary and proper parties to a suit for partition. The institution of the said suit by the present plaintiff, in collusion with his mother Jayamma and his brother, without disclosing the existence of the said children, amounts to suppression of material facts. A decree obtained by withholding vital information and by deliberately excluding necessary parties cannot be clothed with sanctity. Such a preliminary decree, obtained in the absence of indispensable parties and by suppressing the true state of the family, is clearly vitiated by fraud on

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the Court as well as fraud on the affected parties, namely defendants No.1 to 5 herein.

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Be that as it may, even assuming for the sake of argument that the preliminary decree in O.S.No.7079/1995 granting 1/3rd share to Jayamma has attained finality inter se the parties to that suit, the admitted position remains that defendants No.1 to 5 were not parties to the said proceedings. A decree in a partition suit does not bind persons who were neither impleaded nor represented. Therefore, the plaintiff cannot mechanically rely upon the said preliminary decree to assert absolute title against defendants No.1 to 5.

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More importantly, the plaintiff’s claim in the present suit is founded upon a Will allegedly executed by Jayamma in his favour. The very basis of the plaintiff’s title depends upon the validity of Jayamma’s right to 1/3rd share and the genuineness and due execution of the Will. When the title itself is clouded and is seriously disputed, a

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bare suit for injunction simplicitor is not maintainable. Unless and until Jayamma’s entitlement to the 1/3rd share is adjudicated in a properly constituted proceeding binding on all necessary parties, and the Will is proved in accordance with law, the plaintiff cannot maintain a suit for mere injunction seeking to protect possession on the strength of such disputed title.

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Apart from the above, the present suit is liable to fail for yet another reason. Though the plaintiff traces his right only to a 1/3rd undivided share through Jayamma, the plaint schedule reveals that he asserts possession over the entire extent of the suit schedule property. The schedule does not confine the relief to a defined 1/3rd share, but describes the whole property as if he were in exclusive possession thereof. This inconsistency between the pleaded source of title and the extent of possession claimed strikes at the very root of the suit.

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In order to appreciate the nature and extent of

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the property over which injunction is sought, this Court deems it appropriate to extract the schedule appended to the plaint in O.S.No.7627/2011, which reads as under:

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"All that piece and parcel of the property bearing Old No.80, (New No.96/2), BMP Ward No.6, 1^st Main Temple Road, Malleshwaram, Bangalore and measuring on East to West 63½ feet +18 feet and

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2

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North to South 57 feet +12 ½ feet and bounded on :

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East by	:	2 Property belongs to Muddaveerappa
West by	:	Property belongs to Chinnappa & temple road
North by	:	Property belongs to Yarappa
South by	:	Property belongs to Munivenkatappa

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On a pointed and repeated query put by this Court to the learned counsel for the plaintiff as to whether the present suit pertains exclusively to the alleged 1/3rd share in property bearing No.96/2 or whether the injunction is sought in respect of the entire property, learned counsel, upon referring to the pleadings and documents, made an affirmative submission that the present suit is confined only to the 1/3rd share said to

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have been bequeathed by Jayamma in favour of the plaintiff.

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The said submission, however, necessitated a closer scrutiny by this Court. In order to verify the correctness of the stand taken at the Bar, this Court deemed it appropriate to examine the preliminary decree passed in O.S.No.7079/1995, particularly the schedule appended thereto, to ascertain whether the relief sought in the present suit is indeed restricted to the 1/3rd share or whether it travels beyond the same.

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On meticulous perusal of the judgment and the schedule forming part of the preliminary decree in O.S.No.7079/1995, it becomes evident that the property described therein comprises the entire extent of property bearing No.96/2. The decree merely declares the shares of the parties therein, including the 1/3rd share allotted to Jayamma, in the entirety of the schedule property. It does not carve out or earmark any specific portion

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corresponding to her share at the stage of the preliminary decree.

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When the schedule in the present suit is juxtaposed with the schedule in O.S.No.7079/1995, it is apparent that the plaintiff has described and claimed injunction in respect of the entire property bearing No.96/2, and not merely an undivided 1/3rd share therein. The plaint schedule in O.S.No.7627/2011 mirrors the description of the whole property and does not confine the claim to a defined fractional interest i.e 1/3^rd share.

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Thus, notwithstanding the submission made by learned counsel that the suit is restricted to 1/3rd share, the pleadings and the schedule unmistakably disclose that the plaintiff has, in fact, sought protection in respect of the entire extent of the property. This inconsistency between the oral submission and the documentary record cannot be overlooked.

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In order to demonstrate this position with clarity,

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this Court deems it appropriate to extract the schedule as set out in the preliminary decree passed in O.S.No.7079/1995, which reads as under:

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"All that part and parcel of the land and building bearing old No.80, new corporation No.96/2, Temple Road, Malleshwaram, Bangalore560003, measuring East to West 55 + 18 feet and

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2

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North to South 63'.6' + 14 feet bounded on the

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2

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East by Muddaveerappa property, West by Chinnappa property and temple roa, North by Veerappa's property and South by Munivenkatappa's property.

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A careful reading of the plaint extracted supra

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itself discloses that the plaintiff has made significant admissions which go to the very root of the matter. In paragraph No.3 of the plaint, the plaintiff has candidly acknowledged that 2/3rd share in the suit schedule property stood conveyed in favour of the defendants. He has further admitted that he had agreed to relinquish his share by executing a release deed and that, towards such relinquishment, he received a sum of `10,00,000/-, which

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was subsequently enhanced by a further sum of 20,00,000/-. Thus, by his own showing, the plaintiff has received a total consideration of 30,00,000/- in lieu of releasing his share. This admission is unequivocal and is borne out from the pleadings themselves.

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Similarly, there is no serious dispute that his brother, Mohankumar, has also executed a registered release deed in favour of the defendants, which is evidenced at Ex.D.1. These documents clearly indicate that both the plaintiff and his brother have parted with their respective shares in the property. When such is the admitted factual position, the plaintiff cannot be permitted to approbate and reprobate by asserting, on the one hand, that he has received substantial consideration towards relinquishment of his share and, on the other hand, seek an injunction in respect of the entire extent of the suit schedule property.

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This Court also cannot lose sight of the fact that defendants No.1 to 5, being the children of Narayanaswamy through Varalakshmi, have an independent and legitimate claim to the property. As already observed, the preliminary decree in

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O.S.No.7079/1995 was obtained without impleading them

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and was clearly behind their backs. Even dehors the validity of that preliminary decree, once it is admitted that the plaintiff and his brother have conveyed their respective 1/3rd shares by executing release deeds, the very substratum of the present suit for injunction in O.S.No.7627/2011 collapses. The plaintiff cannot maintain

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a suit for injunction over the entire property after having divested himself of his alleged share.

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Further, as noticed supra, the plaintiff’s claim is founded upon a Will said to have been executed by Jayamma. Unless the plaintiff establishes, in a properly constituted declaratory proceeding, that Jayamma had a subsisting 1/3rd share and that such share validly

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devolved upon him under a duly proved Will, he could not have maintained a bare suit for injunction. In the absence of a clear adjudication of title, particularly when serious cloud is cast over the same, the suit in its present form is wholly misconceived.

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In the light of these admitted facts, this Court is of the considered view that the plaintiff has miserably failed to establish that he was in lawful possession of the alleged 1/3rd share as on the date of the suit. The burden squarely lay upon him to prove his lawful possession and the alleged interference. However, the material on record indicates that both he and his brother, Mohankumar, have executed release deeds conveying their respective 1/3rd shares. The documents at Ex.D.1 (in O.S.No.1372/2012), Ex.P.10 (in O.S.No.7627/2011) and Ex.D.2 clearly demonstrate that the plaintiff has divested himself of his rights.

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In view of such relinquishment, the plaintiff is estopped from asserting possession beyond, or even in respect of, the alleged 1/3rd share. Having received consideration and parted with his interest, he cannot now claim to be in possession of the property, much less seek to restrain the defendants from dealing with the same. Accordingly, this Court finds no perversity in the findings recorded by the Trial Court on Issue Nos. (i) and (ii), and the same are answered in the " Negative" .

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Findings on Point No.(iii):

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The connected suit in O.S.No.1372/2012 has been instituted seeking a decree of injunction against the officials of the BBMP restraining them from effecting change of khata in favour of defendant No.4. It is well settled that a civil suit seeking to restrain revenue or municipal authorities from effecting mutation entries is not maintainable, particularly when the statute itself provides an efficacious alternative remedy.

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If the property is agricultural land subject to revenue assessment, remedies are available under the provisions of the Karnataka Land Revenue Act. If the property falls within municipal limits, the concerned municipal enactment provides for appeal and revision against mutation orders. In the case of properties falling within the jurisdiction of the BBMP, the provisions of the BBMP Act provide a complete mechanism to challenge entries relating to khata. Mutation or change of khata being essentially fiscal in nature, does not by itself confer or extinguish title, and any grievance in respect thereof has to be addressed before the competent statutory authority.

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Therefore, a suit for injunction restraining BBMP officials from effecting khata transfer is clearly not maintainable. The Trial Court has rightly appreciated the statutory scheme and has held that the suit in O.S.No.1372/2012 is not maintainable. This Court finds no infirmity or error in the said finding warranting

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