Karnataka High Court
Sri C Nagaraj vs Madan L Amberkar on 29 July, 2024
Author: V Srishananda
Bench: V Srishananda
-1-
NC: 2024:KHC:29878
RFA No. 245 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL NO. 245 OF 2015 (INJ)
BETWEEN:
SRI. C. NAGARAJ,
S/O LATE SRI. CHENGAIAH,
AGED ABOUT 60 YEARS,
R/AT NO. 76/4-2, 30TH CROSS,
TILAKNAGAR MAIN ROAD,
IV "T" BLOCK, JAYANAGAR,
BANGALORE - 560 041.
...APPELLANT
(BY MS. NANDINI B, ADVOCATE FOR
SRI. K.M. SOMASHEKAR, ADVOCATE)
AND:
1. MADAN L. AMBERKAR,
Digitally S/O LATE U.LV. AMBERKAR,
signed by AGED ABOUT 60 YEARS,
MALATESH R/AT NO.1360/C,
KC
NEAR SHADAKSHARI MUTT,
Location:
HIGH KENCHGATA ROAD,
COURT OF TIPTUR - 572 201.
KARNATAKA
2. T.N. UMESH,
S/O SRI. T. NAGAPPA,
AGED ABOUT 39 YEARS,
R/AT NO.237, HUCHCHANGAMMA NILAYA,
DODDABATHI VILLAGE,
DAVANAGERE - 577 002.
-2-
NC: 2024:KHC:29878
RFA No. 245 of 2015
3. SRI. T.M. RAJASHEKAR,
S/O SRI. T. NAGAPPA,
AGED ABOUT 48 YEARS,
R/AT NO.237, HUCHCHANGAMMA NILAYA,
DODDABATHI VILLAGE,
DAVANAGERE - 577 002.
4. BALACHANDRA RAO JADAV,
S/O SRI SUBBOJI RAO,
AGED ABOUT 48 YEARS,
R/AT NO.40/301,
RAGHAVENDRA RESIDENCY,
17TH CROSS, 12TH MAIN,
5TH PHASE, J.P. NAGAR,
BANGALORE - 560 078.
...RESPONDENTS
(BY SRI. N. THEJAS, ADVOCATE FOR R1 TO R3;
VIDE ORDER DATED 17.08.2022, APPEAL IS DISMISSED
AGAINST R4)
THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 8.12.2014 PASSED IN
OK.S.NO.5785/2013 ON THE FILE OF THE 24TH ADDL. CITY
CIVIL & SESSIONS JUDGE, BANGALORE CITY, DISMISSING
THE SUIT FOR PERMANENT INJUNCTION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Smt.Nandini, learned counsel appearing on behalf of Sri.K.M.Somashekar, learned counsel for the appellant. None present on behalf of the respondents. -3-
NC: 2024:KHC:29878 RFA No. 245 of 2015
2. Present appeal is filed challenging the validity of the judgment and decree passed in O.S.No.5785/2013 dated 08.12.2014 on the file of XXIV Addl. City Civil and Sessions Judge, Bangalore (CCH - 6).
3. Parties are referred to as plaintiff and defendants for the sake of convenience as per their original ranking before the Trial Court.
4. Brief facts of the case which are utmost necessary for disposal of the appeal are as under:
4.1. Appellant being the plaintiff filed a suit in O.S.No.5785/2013 against four defendants with a prayer for permanent injunction in respect of immovable property bearing No.37, khatha No.857, formed out of Sy.No.12/1 Kothanur Village, Uttarahalli Hobli, Bengaluru South Taluk measuring east to west 60 ft., north to south 60 ft., together with zinc sheet roofed shed which is bounded on East by road, West by property bearing No.38, North by -4- NC: 2024:KHC:29878 RFA No. 245 of 2015 road and South by private property (hereinafter referred to as suit schedule property).
4.2. Plaintiff claims that he is the owner of the suit property and continued in lawful possession of the suit property having purchased the same from Chengaiah by a registered sale deed.
4.3. One Chengaiah said to have died on 09.10.1984 leaving behind four sons viz., C. Jayachandra, Rajeshekar, C. Mani and C. Nagaraj (plaintiff). C. Rajeshekar and C. Mani, died about two years ago.
4.4. Chengaiah had purchased property bearing No.11, 12/1 and 47/1 of Kothanur Village, Uttarahalli Hobli, Bangalore South Taluk as per the sale deeds dated 31.03.1972 and 20.07.1974 covering about 5 acres 0.3 guntas of land.
4.5. In respect of suit property, there was a partition earlier in O.S.No.4706/1997 and suit property fell to the -5- NC: 2024:KHC:29878 RFA No. 245 of 2015 share of the plaintiff and thereafter, he is in actual possession and enjoyment of the suit property.
4.6. It is further contention of the plaintiff that defendants without there being any interest whatsoever, tried to interfere with the suit property and therefore, filed the suit for permanent injunction.
5. In pursuant to the suit summons issued, defendants entered appearance. But did not chose to file any written statement. Defendant No.4 was placed exparte.
6. Thereafter, learned Trial Judge recorded the evidence of the plaintiff. Plaintiff got examined himself as P.W.1 and placed reliance on seventeen documents which were exhibited and marked as Exs.P.1 to Ex.P.17 comprising of certified copy of the sale deed dated 31.06.1972 as Ex.P.1, certified copy of the sale deed dated 20.07.1974, certified copy of the decree in O.S.No.4706/1997 as Ex.P.3, certified copy of the sketch -6- NC: 2024:KHC:29878 RFA No. 245 of 2015 as Ex.P.4, certified copy of the sale deed dated 17.11.2000 as Ex.P.5, certified copy of the sale deed dated 25.02.2013 as Ex.P.6, four photographs as Ex.P.7 to 10, compact disc as Ex.P.11, Will as Ex.P.12, RTC in respect of Sy.No.12/1 as Ex.P.13, certificate issued by BESCOM as Ex.P.14, bill for having purchased electric meter as Ex.P.15, receipts issued by BESCOM as Exs.P.16 and 17.
7. Defendants failed to adduce any evidence nor addressed any arguments on their behalf.
8. Thereafter, learned Trial Judge raised following points:
1. "Whether plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property as on the date of the suit?
2. Whether the plaintiff proves the alleged interference of the defendants?
3. Whether the plaintiff is entitled for the relief of permanent injunction as sought for?
4. What order or decree?"-7-
NC: 2024:KHC:29878 RFA No. 245 of 2015
9. Learned Trial Judge on considering of the oral and documentary evidence placed on record by the plaintiff, dismissed the suit of the plaintiff interalia holding in paragraph Nos.19 and 20 as under:
"19 However on careful perusal of the documents available on record, the plaintiff failed to establish the Identity of the plaint schedule property as shown in plaint schedule. This is the second round of litigation, which is pending in respect of the very same subject matter, since the plaintiff has already initiated a suit in so.4091/2004 for declaration and permanent injunction, wherein the 4th defendant in this case is also the 1" defendant in the earlier suit 4091/2004. The plaintiff himself has stated in the plaint that the plaint schedule property in this case is also one of the subject matters in O.S.4091/2004. When the comprehensive suit for declaration and permanent injunction is still pending, in my opinion, the plaintiff is not entitled for discretionary relief of permanent injunction as prayed in this suit.
20. Under Ex.P.1 and P.2, the total extent of land purchased by the plaintiff's mother and father is shown in Sy.No.11, 12/1 and 47/1. Under Ex.P.3 and P.4, the plaintiff was allotted 0.20 guntas of land, 0.13 guntas of land and 0.18 guntas of land in Sy.No.11, 47/1 and 12/1 and those documents does not depict the exact location of the plaint schedule property so as to identity the same as shown in the plaint schedule. Ex.P.5 prima facie reveals that the plaint schedule property is no more, which is already sold by the alleged GPA holder of the plaintiff and his brothers in favour of the 4th -8- NC: 2024:KHC:29878 RFA No. 245 of 2015 defendant. Under Ex.P.6, the 4th defendant sold the very same property in favour of defendants 1 to 3. On the basis of the photographs along with the bills, letter issued from BESCOM, it is not sufficient to hold that the plaintiff is in lawful possession of the plaint schedule property as on the date of the suit."
10. Being aggrieved by the same, plaintiff has filed the present appeal.
11. Smt.Nandini, learned counsel reiterating the grounds urged in the appeal memorandum vehemently contended that approach of the Trial Court in dismissing the suit in not properly appreciating the material evidence on record has resulted in miscarriage of justice and sought for admitting the appeal for further consideration.
12. Respondent Nos.1 to 3 engaged the services of Sri.N.Thejas, learned counsel who is absent today.
13. In the light of the arguments put forth on behalf of the appellant, this Court perused the material on record meticulously.
-9-
NC: 2024:KHC:29878 RFA No. 245 of 2015
14. On such perusal of the material on record, in paragraph No.19 of the impugned judgment, learned Trial Judge has held that there is a comprehensive suit already pending and therefore, suit for bare injunction where identity of the property is in dispute cannot be decreed and dismissed the suit.
15. Learned Trial Judge has also taken into consideration the earlier pending suit in O.S.No.4091/2004 where also question of identity is in issue.
16. It is settled principles of law and requires emphasis that injunction can be granted to definite property.
17. In the case of hand, even though plaint schedule referred to supra has got definite boundaries, since there is dispute as to the very identity of the property, having regard to the adjacent land being developed, this Court is of the considered opinion that dismissal of the suit of the plaintiff is just and proper;
- 10 -
NC: 2024:KHC:29878 RFA No. 245 of 2015 more so in view of the pendency of the comprehensive suit filed by the very same plaintiff.
18. Accordingly, no grounds are made out to admit the appeal for further consideration.
19. Hence, the following:
ORDER i. Admission declined.
ii. Appeal is dismissed.
iii. No order as to costs.
Sd/-
(V SRISHANANDA)
JUDGE
KAV
List No.: 1 Sl No.: 42
CT: BHK