Karnataka High Court
Sri R D Rajeev vs Sri S T Ravindran on 25 July, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
1
RFA NO. 467 OF 2016
C/W RFA CROB NO. 22 OF 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25th DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR FIRST APPEAL NO. 467 OF 2016
C/W
RFA CROSS OBJECTION NO. 22 OF 2016
IN RFA NO 467 OF 2016
BETWEEN
SRI. R. D. RAJEEV
S/O. R. DAYANAND
AGED ABOUT 50 YEARS
NO.397, 6TH MAIN ROAD,
BSK 1ST STAGE, 1ST
BLOCK,
SRINAGAR,
BANGALORE - 560 050
...APPELLANT
(BY SRI. VINOD PRASAD, ADVOCATE)
AND
1 . SRI. S T RAVINDRAN,
S/O P SARAVANAN
AGED ABOUT 54 YEARS
NO.22 J NO.2ND STREET,
ASHOKA NAGAR,
BANGALORE - 560 025.
2 . K RAVI,
FATHERS NAME NOT KNOWN TO
APPELLANT
AGED ABOUT 54 YEARS,
2
RFA NO. 467 OF 2016
C/W RFA CROB NO. 22 OF 2016
NO.14, 5TH CROSS
BASAVANAPURA MAIN ROAD,
DEVASANDRA, K.R.PURAM POST
BANGALORE - 560 036.
.....RESPONDENTS
(BY SMT. BHARATHI PATIL ADVOCATE FOR R1;
V/O DATED 04.08.2016 NOTICE TO R2 HELD SUFFICIENT)
THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41, RULE 1
OF CPC., AGAINST TH JUDGMENT AND DECREE DATED
23.02.2016 PASSED IN O.S NO.1872/2012 ON THE FILE OF THE V
ADDL. CITY CIVIL JUDGE, BENGALURU CITY (CCH 13),
DISMISSING THE SUIT FOR PERMANENT INJUNCTION.
IN RFA CROB NO. 22 OF 2016
BETWEEN
SRI. S. T. RAVINDRAN
SON OF P. SARAVAN
AGED ABOUT 54 YEARS,
NO.22, J.NO.2ND STREET,
ASHOK NAGAR,
BANGALORE - 560 025
...CROSS OBJECTOR
(BY SRI. RAHUL CARIAPPA, ADVOCATE)
AND
1 . SRI. R. D. RAJEEV
S/O. R. DAYANAND
AGED ABOUT 50 YEARS
NO.397, 6TH MAIN ROAD,
BSK 1ST STAGE, 1ST BLOCK,
SRINAGAR,
BANGALORE - 560 050
2 . K. RAVI
AGED ABOUT 54 YEARS,
NO.14, 5TH CROSS ROAD,
BASAVANAPURA MAIN ROAD,
DEVASANDRA, K.R.PURAM POST,
3
RFA NO. 467 OF 2016
C/W RFA CROB NO. 22 OF 2016
BANGALORE - 560 036
.....RESPONDENTS
(BY SRI. VINOD PRASAD, ADVOCATE V/O DATED 18.11.2016 IS
DIRECTED TO TAKE NOTICE FOR RESPONDENTS)
THIS RFA.CROB IN RFA FILED U/O 41 RULE 22 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 23.02.2016
PASSED IN OS NO.1872/2012 ON THE FILE OF THE V ADDL. CITY
CIVIL JUDGE, BENGALURU CITY (CCH 13), DISMISSING THE SUIT
FOR PERMANENT INJUNCTION.
THIS APPEAL AND RFA CROB, HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 25.07.2024 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR) This Regular First Appeal is filed by the plaintiff challenging the judgment and decree dated 23.02.2016 Passed in O.S.No.1872/2012 by the V Additional City Civil Judge at Bengaluru City (CCH-13), thereby the suit filed by the appellant-plaintiff for permanent injunction is dismissed.
2. The defendant No.1 has filed Cross Objection No.22/2016 in RFA No.467/2016 so far as not granting prayer in the counter claim.
4
RFA NO. 467 OF 2016 C/W RFA CROB NO. 22 OF 2016
3. For the sake of convenience and easy reference, the parties are referred to as per their rankings before the trial Court.
4. It is the case of the plaintiff that the suit schedule properties originally belonged to one Meenakshamma. The plaintiff has purchased the said suit schedule property through registered sale deed dated 09.01.2004 executed by C.N. Manjunath, the Power of Attorney holder of Meenakshamma, for valuable consideration. Then, the plaintiff had authorized one Sri. R. Mahendran to construct temporary shed vide agreement dated 31.12.2004 and after construction of temporary shed, he redelivered the possession of the property to the plaintiff. It is stated that the plaintiff has been paying taxes to the BBMP. It is further pleaded that in the year 2011, the plaintiff had constructed two shops with intention and desire to let them to the prospective defendants and also intends to start as tailoring business and while he was making arrangements for opening ceremony of the shops, the defendants came near the suit 5 RFA NO. 467 OF 2016 C/W RFA CROB NO. 22 OF 2016 property and tried to interfere with the possession of the plaintiff. Therefore, the plaintiff has filed suit for permanent injunction.
5. The description of the property as described by the plaintiff in the plaint is as follows:
"Urban property bearing site No.132, Khata No.26/4/132, in property No.26/4, situated at Basavanapura, (Chikkabasavanapura) village, Krishnarajapuram Bangalore East taluk and within the jurisdiction of the CMC Krishnarajapuram, now included in the BBMP measuring East-West 40ft and North-South 40ft containing two RCC roof shops built in a portion of a site to the extent of 20ft x 10ft, the entire site bounded:
East by: Site NO.133,
West by: Site No.131.
North by: Site No.138,
South by: Road."
6. The defendants have filed their written statement stating that the father of defendant No.1 namely P. Saravaran had purchased the suit schedule property through 6 RFA NO. 467 OF 2016 C/W RFA CROB NO. 22 OF 2016 registered sale deed dated 18.11.1991 and after death of his father the defendants have succeeded to the said suit schedule property. It is further contended that the plaintiff has given wrong boundaries to attempt to trespass over the property of the plaintiff and the defendants.
7. It is the case of the defendants that the property of the plaintiff and defendants are in different area altogether. Therefore, the defendants have also filed counter claim against the plaintiff praying for relief of permanent injunction against the plaintiff.
8. The description of the property as described by the defendants in the plaint is as follows:
"All that piece and parcel of the House property bearing ITI notified area Khata No.350/B/241, situated at Basavanapura Villaage, ITI Notified Area, K.R. Puram Hobli, Bangalore South Taluk, Bengalore measuring East-West 30ft and North-
South 40ft consisting of 1½ square AC sheet building constructed thereon without water and electricity facilities 7 RFA NO. 467 OF 2016 C/W RFA CROB NO. 22 OF 2016 and very far from the bus stop. Bounded on:
East by: Property No.240, West by: Property No.242, North by: Property No.238, Southh by: Road."
9. Based on the pleadings of the parties, the trial Court has framed the following issues:
1. Does the plaintiff prove that he is in peaceful possession and enjoyment of suit property as on the date of suit?
2. Does the plaintiff prove that there is interference by the defendants to his peaceful possession and enjoyment over the suit property?
3. Does the plaintiff prove that he is entitled for the relief of permanent injunction against the defendants?
4. What order or decree?
10. In order to prove the case, the plaintiff has examined himself as PW-1 and got marked documentary evidence as Ex.P-1 to Ex.P-8. Defendant No.1 was examined himself as DW-1 and got marked documentary evidence as Ex.D-1 to Ex.D-16.8
RFA NO. 467 OF 2016 C/W RFA CROB NO. 22 OF 2016
11. The trial Court has dismissed the suit of the plaintiff on the reason that the plaintiff has not produced evidence to prove that he has put up temporary shed and two shops in the suit schedule property. The plaintiff has stated his site No.132 and plaintiff has not produced any evidence to show as to how his vendor Smt. Meenakshamma had acquired the property, which is sold to the plaintiff. Accordingly, doubted the case of the plaintiff that the plaintiff's acquisition of the property by his vendor as the plaintiff has not examined the General Power of Attorney holder, who has executed the sale deed in his favour in the year 2004. Therefore, the plaintiff has failed to prove his possession over the suit schedule property. Hence, the plaintiff's title is doubtful and also the plaintiff has not produced his possession over the suit schedule property. Therefore, denied the relief claimed by the plaintiff. Further, assigned reason that the plaintiff has not produced any evidence on record to show that Smt. Meenakshamma has formed sites in the land bearing Sy.No.26/4, therefore, the 9 RFA NO. 467 OF 2016 C/W RFA CROB NO. 22 OF 2016 plaintiff is not in possession over the suit schedule property. However, assigned reason that the plaintiff has not produced any evidence to show that the defendants are claiming the property of the plaintiff in the sale deed of the defendants. The property mentioned is house property and khata is mutated on the basis of sale deed. Therefore, the plaintiff has failed to establish that he is in possession over the suit schedule property on the basis of sale deed-Ex.P-1. Therefore, when the plaintiff has failed to prove the possession over the property there would not be interference from the defendants. Hence, dismissed the suit. The Trial Court has also observed that if the plaintiff is owner and is having title, then the plaintiff is at liberty to file comprehensive suit for declaration. Hence, dismissed the suit filed for permanent injunction.
12. Upon preferring the appeal, the appellant has raised grounds and learned counsel for the plaintiff-appellant argued that if it is the case of the defendants that the properties altogether are different then if injunction is 10 RFA NO. 467 OF 2016 C/W RFA CROB NO. 22 OF 2016 granted, it would not affect to the defendants claim, as defendants are claiming different property and the plaintiff has given documentary evidence to prove that he has purchased the property on 09.01.2004 through registered sale deed and khata has been effected in the name of the plaintiff-appellant, which show that the plaintiff is in possession over the property. Therefore, the trial Court ought to have decreed the suit. Further submitted that non examination of General Power of Attorney holder of the vendor Smt. Meenakshamma, cannot bear significance in the suit. The plaintiff further submitted that what the Court has to see is whether the plaintiff is in possession over the property or not but without appreciating evidence on record in this regard has erroneously dismissed the suit.
13. Further, it is argued that though the defendant has produced the sale deed which do not contain their survey number and is only mentioned as there is ½ Sq.ft. AC sheet building constructed thereon without water, electricity facilities. Therefore, the AC sheet building is doubtful. 11
RFA NO. 467 OF 2016 C/W RFA CROB NO. 22 OF 2016 Further, the defendants have produced khata No.350/B/4/241, but who was holding the khata has not come on record. Further, submitted that from Ex.D-4- Endorsement from H.D. Nagappa Reddy to Nazeer Khan by General Power of Attorney but, the title deed H.D. Nagappa Reddy was not produced. Therefore, the defendants case is doubtful. Further, it was submitted that the photographs produced by the plaintiff proved the existence of two ACC roof shops but, the observation made by the trial Court that the plaintiff has not produced materials to establish that the plaintiff has put up the construction of two sheds is not correct. Further submitted that when it is the case of the plaintiff that he had purchased vacant site, then he had given possession to one R Mahehdran with an agreement of undertaking-Ex.P-2, to put up a temporary shed and for one month period it was given to R Mahendran, which proves that the plaintiff is in possession over the property but, the trial Court has not considered this evidence. Therefore, the findings and observations of the trial Court are perverse. 12
RFA NO. 467 OF 2016 C/W RFA CROB NO. 22 OF 2016 When, the defendants have not produced evidence to prove his possession over the property but on the other hand, the plaintiff has produced photographs-Ex.P-7. Hence, disbelieving the plaintiff's case is not correct.
14. Further, the plaintiff has produced a registered sale deed with other documents proving the fact that plaintiff is in possession but the trial Court has doubted the case of the plaintiff and that the plaintiff's vendor has title and on this ground, dismissal of the suit is not correct. Therefore, the trial Court has not considered evidence on record properly resulting into dismissal of suit erroneously. Therefore, prays to allow the appeal and grant decree as prayed for.
15. Learned counsel for the appellant-plaintiff has placed reliance on the judgments of the Hon'ble Apex Court and this Court are as follows:
I. P. CHANDRASEKHARAN AND OTHERS vs. S. KANAKARAJAN AND OTHERS reported in AIR 2007 SC 2306.13
RFA NO. 467 OF 2016 C/W RFA CROB NO. 22 OF 2016 II. SMT. SUJATHA PRABHAKAR vs. SRI. KEMPAIAH reported in 2023 KHC 20347.
16. On the other hand, learned counsel for the defendants-respondents by justifying the judgment and decree passed by the trial court held that the plaintiff has not proved he is in possession over the property. Whereas, the defendants have proved that they are in possession over the property and it is rightly considered by the trial Court and dismissal of the suit requires no interference. Ex.P-2- undertaking is a created document only for the purpose of the case that for just for one month the property is let out to one R. Mahendran cannot be believed, which is rightly considered by the trial Court. Whereas, the documents produced by the defendants prove that the defendants are in possession over the property and it is rightly considered by the trial Court and dismissed the suit. The plaintiff has to prove his case on his own strength but not on the weakness of the defendants and it is rightly considered by the trial Court. Hence, justified the judgment and decree passed by 14 RFA NO. 467 OF 2016 C/W RFA CROB NO. 22 OF 2016 the trial Court and prays to dismiss the appeal as not granting decree for permanent injunction in favour of the plaintiff but challenged the said judgment and decree so far as not allowing the counter claim filed by defendant No.1.
17. Upon hearing submissions of the learned counsels appearing for the appellant and respondent, the following points that would arise for my consideration are as follows:
i. Whether, under the facts and circumstances involved in the case, the plaintiff proves that he is in possession over the property and is entitled to relief of decree of permanent injunction as prayed for?
ii. Whether, the judgment and decree passed by the trial Court requires any interference by this Court?
18. It is the case of the plaintiff that the plaintiff has purchased the property through registered sale deed dated 09.01.2004 and in which the property number is mentioned as site No.132 khata No.26/4/132 property No.26/4, situated at Basavanapura Village, K.R. Puram Hobli, Bengaluru East 15 RFA NO. 467 OF 2016 C/W RFA CROB NO. 22 OF 2016 Taluk now (Bengaluru South Taluk). The schedule mentioned in the plaint is also the same.
19. It is the case of the defendants that father of defendant No.1-late P. Saravaran has purchased the property, through registered sale deed dated 18.11.1991 purchased from one G. Ganesh, who was the owner and it is the house property bearing ITI notified area khata No.350/B/4/241 situated at Basavanapura Village, ITI notified area, K.R. Puram, Bengaluru South Taluk. After demise of P. Saravaran, the property was devolved into his legal heirs who is the defendant herein. Therefore, there is rival claim of title between the plaintiff and defendants.
20. In order to prove the possession of the plaintiff over the property, the plaintiff has produced tax paid receipts, khata, photos and CD. The defendants have also produced allotment of site, self assessment scheme extract from the year 2002 to 2008, tax paid receipts, photos and CD. When this being the fact, it is burden on the plaintiff to prove that he is in possession over the property as on the 16 RFA NO. 467 OF 2016 C/W RFA CROB NO. 22 OF 2016 date of the suit. Ex.P-1-sale deed is executed in favour of plaintiff through General Power of Attorney of holder of Smt. Meenakshamma. Whereas, on rivalry, defendant No.1 is claiming that his father had purchased the property as per said Ex.D-1 dated 18.11.1991 which is much prior to the sale deed of the plaintiff. The plaintiff has stated that he has entered into unregistered agreement of lease with one R. Mahendran for temporary period for construction of shed and Ex.P-2-agreement of undertaking dated 31.12.2008. But, the said R. Mahendran has not been examined to prove possession of the plaintiff over the property. One Manjunath is General Power of Attorney holder of Smt. Meenakshamma and he has sold property to the plaintiff. The said Manjunath has not been examined to prove that he has put the plaintiff into possession.
21. It is the case of the plaintiff that one Smt. Meenakshamma has formed layout but layout plan is not produced. In the sale deed of the plaintiff in Ex.P-1, the property is shown as vacant site whereas in Ex.D-1-sale deed 17 RFA NO. 467 OF 2016 C/W RFA CROB NO. 22 OF 2016 the property is shown as house property. Therefore, this probalizes the fact that the plaintiff is not in possession over the property. When there is a rival claim of title and there is no prima facie evidence to prove that the plaintiff is in possession of the property then, relief of permanent injunction cannot be granted. The khata extracts were produced by the plaintiff to show that the suit schedule property is a vacant site whereas, the sale deed produced as Ex.D-1 is shown as house property. Therefore, where there is no prima facie evidence to prove the possession of the plaintiff over the property, then the relief of permanent injunction cannot be granted.
22. The appellant-plaintiff has relied on by the judgment of Supreme Court in the case of P. CHANDRASEKHARAN & OTHERS vs. KANAKARAJAN & OTHERS and the judgment of this Court in the case of SMT. SUJATA PRABHAKAR vs. SRI. KEMAIAH (supra) are not applicable for the reason that having difference in factual matrix in the present case and in those cited cases. In 18 RFA NO. 467 OF 2016 C/W RFA CROB NO. 22 OF 2016 Sujata Prabhakar case (stated supra), the Court has ordered for appointment of Court Commissioner in suit for injunction by the Trial Court is confirmed by this Court. Therefore, the facts in this case is different from the case relied on.
23. The Hon'ble Supreme Court in the case of P. Chandrasekharan case (stated supra) has dealt with Section 100 of CPC regarding under what circumstances, concurrent findings of the trial Court and First Appellate Court can be interfered with on certain circumstances as enumerated therein Therefore, this judgment is also not applicable in the present case.
24. The cross objection is filed by defendant No.1 and has raised ground that counter claim filed for declaration is not allowed. Therefore, in so far as not decreeing the counter claim, the defendant No.1 has filed cross objection. But, the grounds taken in the cross objection is to the effect that the Cross Objector is not declared as owner of the property. But, upon perusing the prayer made in the counter 19 RFA NO. 467 OF 2016 C/W RFA CROB NO. 22 OF 2016 claim, it is not the relief claimed by defendant No.1 for declaration. It is prayed for grant of permanent injunction but not for declaration of defendant No.1 as the owner of the property. The prayer made in the counter claim has to be considered and there is no prayer for seeking declaration of ownership. Further, even if the relief of declaration is claimed in the counter claim then, it has to be valued according to the provisions of the Karnataka Court-Fee and Suits Valuation Act, 1958 and appropriate relief be claimed in the prayer and to pay Court fee on the relief claimed but that is not done by the defendant No.1. The trial Court is correct in dismissing the suit and also not granting the relief as prayed in the counter claim. Therefore, there is no merit in the cross objection filed by the defendant No.1 and hence, cross objection is liable to be dismissed.
25. Though, there is dispute regarding title but the plaintiff has failed to prove that he is in possession over the property. Therefore, relief of permanent injunction cannot be granted. When defendant No.1 is also claiming that he is 20 RFA NO. 467 OF 2016 C/W RFA CROB NO. 22 OF 2016 owner and having purchased property by his father then to decide this lis a comprehensive suit for declaration is necessary. Therefore, by giving such liberty the suit filed by the plaintiff for permanent injunction is not maintainable as the plaintiff has not proved possession. Therefore, the trial Court is correct in dismissing the suit. Accordingly, I answer point Nos.1 and 2 in the negative.
26. In the result, I proceed to pass the following:
ORDER
i. The RFA No.467/2016 and RFA
Crob.No.22/2016 are dismissed.
ii. The judgment and decree dated
23.02.2016 passed in
O.S.No.1872/2012 by the V
Additional City Civil Judge,
Bengaluru City (CCH-13) is hereby
confirmed.
iii. No order as to costs.
iv. Draw decree accordingly.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE