Karnataka High Court
Kum. Jayashree vs Sri K.N.Jagadeesh on 7 January, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
REGULAR FIRST APPEAL NO.1618/2010 (INJ)
BETWEEN:
1. KUM. JAYASHREE
D/O DR. ANNAMALAI
AGED ABOUT 32 YEARS
NO.213, SECOND MAIN ROAD,
RAMACHANDRAPURAM,
BANGALORE-560 021.
SINCE DEAD BY LRS
1(a) SRI ACHARYA ARAVIND
AGED ABOUT 41 YEARS
S/0 SRI B.JAYACHARYA
R/AT NO.804/A,
FIRST FLOOR, 9TH MAIN,
III-STAGE, 3RD BLOCK
BASAVESHWARANAGAR
BANGALORE-560 079.
1(b) ADITHYA A. CHARYA
AGED ABOUT 6 YEARS
S/0 SRI ACHARYA ARAVIND
MINOR AND NATURAL GUARDIAN
SRI ACHARYA ARAVIND
AND R/AT NO.804/A,
FIRST FLOOR, 9TH MAIN,
III-STAGE, 3RD BLOCK
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BASAVESHWARANAGAR
BANGALORE-560 079.
(AMENDED VIDE COURT ORDER DATED 02.08.2012)
... APPELLANTS
(BY SRI VINOD REDDY V., ADVOCATE)
AND:
1. SRI K.N.JAGADEESH
S/O SRI NAGARAJ,
CHICKA GOLALRAHATTI,
LAKSHMIPURA POST,
DASANAPUARA HOBLI,
BANGALORE NORTH TALUK. ... RESPONDENT
(BY SRI C.N.KESHAVA MURTHY, ADVOCATE)
THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 24.07.2010
PASSED IN O.S.NO.7241/2006 ON THE FILE OF THE 17TH ADDL.
CIVIL JUDGE, BANGALORE (CCH 16), DISMISSING THE SUIT
FOR THE PERMANENT INJUNCTION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 16.12.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV JUDGMENT
Heard learned counsel for the appellants and learned counsel for the respondent.
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2. This appeal is filed challenging the judgment and decree of dismissal of suit in O.S.No.7241/2006, wherein prayer was sought for the relief of permanent injunction.
3. The factual matrix of the case of the original plaintiff before the Trial Court while seeking the relief of permanent injunction is that suit schedule property was purchased through a registered sale deed dated 23.04.2004 from Sri Boranna and his son Sri B. Kale Gowda through their Power of Attorney holder Smt. Ambikavathi. It is contended that subsequent to purchase, the plaintiff was in actual and physical possession of the suit schedule property. The defendant/respondent tried to interfere with peaceful possession of the appellant. It is also contended that on 04.08.2006, the defendant trespassed the property bearing Sy.No.16 and tried to do Bhoomi pooja and along with the plaintiff, one person by name Narasimhamurthy also came. Hence, filed the suit against the defendant for the relief of permanent injunction, since Narasimhamurthy did not interfere with the possession of plaintiff.
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4. The defendant appeared and filed written statement contending that plaintiff had already constructed the building in Site No.16 and not vacant land. But, in the suit, wrongly mentioned the same as vacant land. It is contended that on the east of the land of plaintiff, Site No.17 is in existence which belongs to Narasimhamurthy and also contend that plaintiff had filed the suit against said Narasimhamurthy in O.S.No.2434/2004 and no injunction was granted in favour of the plaintiff and this defendant is owner of Site No.18 which is not adjacent to the property of the plaintiff' and site of Narasimhamurthy is on the east of the suit schedule property and he never interfered with the possession of the plaintiff and a false case has been registered. The defendant also claims that he had purchased the property on 19.06.2006 and he has been in possession of Site No.18. When he tried to put up compound and shed in his property, a false case has been registered against this defendant. Hence, prayed the Court to dismiss the suit with exemplary cost.
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5. The Trial Court having considered the pleadings of the parties, framed the following issues:-
(1) Whether the plaintiff proves that as on the date of filing of suit, the plaintiff is in possession and enjoyment of the suit schedule property?
(2) Whether the plaintiff proves that defendant tried to interfere with possession of the plaintiff?
(3) Whether the plaintiff is entitled for the relief as sought in the suit for permanent injunction? (4) What order or decree?
6. In order to prove her case, the plaintiff examined herself as P.W.1 and got marked the documents as Exs.P1 to P21. The defendant also examined himself as D.W.1 and got marked the documents as Exs.D1 to D14. The Trial Court having considered both oral and documentary evidence placed on record, dismissed the suit. Being aggrieved by the said judgment and decree of the Trial Court, present appeal is filed before this Court.
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7. In the appeal, learned counsel for the appellants would contend that the plaintiff filed the suit for the relief of permanent injunction in respect of vacant Site No.16 which is morefully described in the schedule. Learned counsel would contend that Commissioner was also appointed to conduct local inspection of the property and the Commissioner submitted a report along with a sketch. The Trial Court erroneously dismissed the suit without properly considering the material available on record and failed to take note of the document of registered sale deed which is marked as Ex.P1 dated 23.04.2004 which is purchased from the Power of Attorney holder of the original owner Sri Boranna and his son Sri B. Kale Gowda and no dispute with regard to the sale deed, boundaries and measurement. It is also further contended that suit schedule property was part of Sy.No.1/8 of Sunkadakatte Village and sites are formed in Sy.No.1/8. The defendant pleaded that the property of the plaintiff is not vacant and the plaintiff has already constructed a house in the site purchased by her. The defendant had not filed any objections either to the report or to the sketch of the Court Commissioner. As per the report of the Commissioner, a house 7 had been constructed in Site No.15 measuring 40 ft. x 30 ft. The western boundary of the suit property is Site No.15. The Court Commissioner has stated in her report that Site No.16, which is the suit schedule property is vacant. It is also specifically mentioned in the report that Site No.16 was measured and plaintiff has not put up any construction. Thus the said report clearly disproves the contention of the defendant that the property of the plaintiff is not vacant and she has already constructed a house.
8. It is contended that the report of the Commissioner was submitted to the Court below and it has become part of the record. The Court Commissioner was not examined and his report was not marked as an exhibit in the suit and the defendant has not disputed report and the sketch of the Commissioner. The Court below totally erred in overlooking the report and the sketch of the Commissioner just because they were not marked in evidence. Hence, impugned judgment and decree is contrary to the material on record. The General Power of Attorney executed by Sri Boranna and Sr B. Kale Gowda was 8 produced in evidence and marked as Ex.P2. The validity of Ex.P2 was not disputed by the defendant. It is further contended that the defendant has been examined as D.W.1 and he categorically admitted that Site No.16 belongs to plaintiff and also admitted that suit schedule property is in possession of the plaintiff, but suit site number is not at all concerned to him. Hence, it is clear that Site No.16 belongs to plaintiff and she has been in possession. This admission was not taken note of by the Trial Court. The defendant claims that he is the owner of Site No.18 and he purchased the same from Sri Boranna and his son Sri B. Kale Gowda. Site Nos.11 to 19 have been formed in the same row and Site Nos.11 and 12 measures 40 ft. x 30 ft. and the defendant has no legal right over Site No.16 which is the suit schedule property.
9. Learned counsel for the appellants also in his argument would vehemently contend that the Trial Court dismissed the suit erroneously and also contend that present Commissioner report is not correct and correct location of Site Nos.15 and 16 have not been shown by the Commissioner and 9 the same is contrary to the documents. Learned counsel would vehemently contend that the report given by the Commissioner that all the sites are overlapping is not correct. The defendant, in Paragraph No.3 of the written statement not disputed the case of the plaintiff and also admitted in the cross-examination regarding possession of the plaintiff and inspite of it, the Trial Court committed an error and the report filed by the Commissioner before this Court cannot be accepted.
10. Learned counsel for the respondent would vehemently contend that the very allegation of the appellants is disputed and in Paragraph No.4 of the plaint, the plaintiff contends that she is in actual physical possession of the suit schedule property. Even the recitals of the sale deed clearly indicate that the plaintiff shall peacefully enjoy the possession of the suit schedule property, but defendant is interfering with the possession of the property. Learned counsel also would vehemently contend that earlier, the very plaintiff had filed the suit against the owner of Site No.17 and the same was dismissed. But, not stated anything about filing of the suit 10 against the owner of Site No.17 and suppressed the material fact before the Court. Learned counsel also would vehemently contend that when the suit is filed against the owner of Site No.17, the plaintiff ought not to have filed the suit against this defendant, who is the owner of Site No.17. Learned counsel would vehemently contend that report of the Commissioner is very clear that construction is made to the extent of 50 feet in Site No.17 and Site No.15 is used as parking area and none made any claim to the extent of 9.7 ft. passage which is adjacent to Site Nos.14 and 15. Learned counsel would contend that owner of Site No.15 has not questioned the same.
11. Learned counsel for the respondent would further contend that the very claim of the defendant is that he had purchased Site No.18 measuring 30.31 ft. x 30 ft. and if any injunction is granted in respect of Site No.18 in favour of the plaintiff, it affects the right of owner of Site No.17 and the owner of Site No.17 has already constructed a shed. Learned counsel would vehemently contend that in respect of Site No.15 is concerned, the respondent has created the document of gift 11 deed. The Trial Court made elaborate discussion while dismissing the suit and it does not require any interference. Learned counsel would vehemently contend that Commissioner has given a detailed report and the same is very clear that owner of Site No.15 has encroached portion of Site No.16 and hence, owner of Site No.16 is making an attempt to encroach upon the property of Site No.17 and failed to get any decree. Hence, filed the suit against this defendant.
12. In reply to the arguments of learned counsel for the respondent, learned counsel for the appellants would vehemently contend that cross-examination of P.W.1 is very clear with regard to the evidence and claim of the appellants. Learned counsel for the respondent would vehemently contend that there was road widening and portion of each sites were overlapped and nothing is stated about widening of the said road. The contention that construction is made in Site No.16 is erroneous. Learned counsel would contend that sketch which is filed along with the memo of instructions is not disputed. When such being the case, the Commissioner report cannot be believed. 12
13. Having heard learned counsel for the appellants and learned counsel for the respondent, the points that would arise for consideration of this Court are:
(1) Whether the Trial Court committed an error in dismissing the suit filed for the relief of permanent injunction?
(2) What order?
Point No.(1)
14. Having heard learned counsel for the appellants and learned counsel for the respondent and also considering the material available on record, it is not in dispute that plaintiff filed the suit for the relief of permanent injunction in respect of Site No.16. It is the contention of the plaintiff that suit schedule property was purchased vide sale deed dated 23.04.2004 from General Power of Attorney holder of original owner of the land. It is the contention that respondent/defendant tried to interfere with the possession of the original appellant/plaintiff. It is not in dispute that all the sites are formed in the very same survey number and originally, the property belongs to Sri Boranna and Sri B. Kale Gowda. It is also not in dispute that the very same 13 plaintiff had filed the suit against the owner of Site No.16 Narasimhamurthy and the said suit was dismissed. It is also not in dispute that Site No.18 belongs to the defendant is on the eastern side of Site No.17.
15. It is also important to note that when the plaintiff was examined before the Trial Court, she categorically admits that she had filed the suit earlier against the owner of Site No.17 i.e., one Narasimhamurthy in O.S.No.2434/2004 in respect of the suit schedule property. It is also a categorical admission that the said suit was dismissed on 27.09.2008 and it is also the categorical admission of the plaintiff that towards the eastern side of the suit schedule property, Site No.17 belonging to Narasimhamurthy is situated. When a question was put to the defendant that towards eastern side of Site No.17, site belonging to this defendant is situated, but denied the same and reply was given that she is not sure about the same. However, admits that she has personally verified the site numbers of adjacent sites of suit schedule property and she has not verified as to who are the owners of those sites. But admits that she has obtained 14 sanctioned plan from City Municipal Corporation, Dasarahalli and not obtained electricity power connection to suit schedule property. A suggestion was also made that when the sanctioned plan was obtained, she has put up ground floor and first floor on the suit schedule property and the same was denied. It is suggested that BESCOM has given electricity power supply to suit schedule property under R.R.No.EH-1080 to 1082, but witness volunteers to state that connection to Site No.18 belongs to Smt. Ambikavathi and she does not remember whether she has produced any document to show R.R.No.N6-EH-1080 to 1082 belongs to her mother's building.
16. It is elicited that boundaries of suit schedule property are towards north by: 25 ft. road, south by: private property, east by: Site No.17 and West by: Building No.15. But, she says that she has not verified as to whom Site No.17 belongs to. She also states that she has read the written statement filed by Narasimhamurthy in O.S.No.2434/2004. But, admits in the further cross-examination that Site No.17 belongs to Narasimhamurthy and the same is situated on the eastern side 15 of Site No.16 and she is not sure of measurement of Site Nos.17 and 18 and also not sure about the measurement of all the 20 sites in the layout. She also states that she does not know the measurement of Site No.14 and the distance between Site Nos.14 and 16 is 40 ft. and admits that she has got the Commissioner appointed for inspection of the site. It is suggested that when she could not get the temporary injunction in the suit filed against Narasimhamurthy, she has filed this false case against the defendant.
17. This Court also has to consider the evidence of D.W.1, since this Court has to re-appreciate both oral and documentary evidence placed on record while considering the statutory appeal. In his chief evidence, the defendant reiterated the averments made in the written statement. In the cross- examination, he admits that Site No.16 belongs to plaintiff and also admits that suit schedule property is in possession of the plaintiff. The appellant would also contend that when there is an admission that suit schedule property is in possession of the plaintiff, the Trial Court ought to have granted the relief against 16 the defendant. The defendant also categorically admits that suit site number is not at all concerned to him. When such admission is given, the Trial Court ought to have granted the relief of permanent injunction.
18. Having reassessed both oral and documentary evidence placed on record, it is very clear that there is an admission on the part of P.W.1 that earlier also, the plaintiff had filed a suit against owner of Site No.17 and the same was dismissed on 27.09.2008. The plaintiff also categorically admits that on the eastern side of the suit schedule property, Site No.17 which belongs to Narasimhamurthy is situated and also suggestion was made to the witness that on the eastern side of Site No.17, Site No.18 belonging to this defendant is not situated and the same was denied and state that she is not sure about the same. When such admission is given that earlier she had filed the suit against the owner of the suit schedule property i.e., Site No.17 and the same was dismissed on 27.09.2008, the present suit is filed in 2006 against the owner of Site No.18. 17
19. It is also important to note that when the suit was dismissed against the owner of Site No.17 and the question of owner of Site No.18 interfering with possession of Site No.16 does not arise. No doubt, the defendant also admits that Site No.16 belongs to the plaintiff, but categorical defence is taken that misidentifying the property i.e., Site No.15, the plaintiff also constructed portion of Site No.16. Now, the Commissioner is also appointed by this Court, since the Commissioner report which was filed before the Trial Court was not marked and even the Commissioner was not examined before the Trial Court. Now, the Commissioner was directed to measure each of the sites which is located in the very same road, since Site No.10 starts from the said road. The report of the Commissioner is very clear that there is an encroachment and misidentification of Site Nos.15 and 16 and Smt. Ambikavathi originally acquired site measuring 40 ft. x 30 ft. and the Commissioner has stated that she has encroached 20 ft. in Site No.16 and identified this encroached area as Site No.15 and consequently this misidentification left only 20 ft. in Site No.16, causing overlapping claims and measurement inconsistencies. 18
20. This report of the Commissioner is opposed by the learned counsel for the appellants contending that Commissioner has falsely stated in her report that sale deed in respect of Site No.10 was not provided. The sale deed in respect of Site No.10 discloses that Site No.10 measures east to west 38 ft. and north to south 30 ft. covering two portions each measuring 19 ft. x 30 ft. It is nobody's case that Site No.15 is overlapping over Site No.16, or the owner of Site No.15 has encroached upon Site No.16 to the extent of 20 ft. Hence, there is no overlapping or encroachment over Site No.16 as stated in the sketch and report. But, it is very clear that plaintiff claims both Site Nos.15 and 16 belongs to them. The Court Commissioner has not shown or stated correct location of Site No.15 as well as Site No.16. It has to be noted that the Court Commissioner identified the property i.e., Site Nos.10 to 12 all measuring 40 ft. x 30 ft. and also taken note of measurement of Site No.14 i.e., is 50 ft. x 30 ft.
21. The counsel would contend that Site Nos.15 and 16 is not consistent with the measurement in the layout plan, but 19 there is no discrepancy regarding Site Nos.15 and 16. It is important to note that Commissioner, who visited the spot, found that the owner of Site No.14 is using more than his area of measurement and photograph is also produced before the Court to show that the owner of Site No.14 is having vacant space of 9.7 ft. in the said road and the same is utilized by the owner of the property bearing Site No.14. It also important to note that plaintiff did not dispute the same and the said area is used for car parking. It appears that 9.7 ft. of land has remained unclaimed and not countered by any sale deed. Even the original layout plan which is produced along with the memo of instructions by the learned counsel for the appellants also does not disclose anything about the vacant space. But, in terms of the original plan, the measurement of Site No.14 is east to west 30 ft. and north to south 40 ft. In terms of the sale deed, it is 50 ft. No doubt, in respect of Site Nos.15 and 16, measurement is shown as 40 ft. x 30 ft. and so also in the original layout plan, in respect of Site Nos.17 and 18 also, the same measurement is shown and the measurement of Site No.18 which the defendant had purchased is 30.31 ft. x 30 ft. and there is a shortfall. 20
22. It is important to note that when Site No.18 is not adjacent to Site No.16, the question of owner of Site No.18 interfering with the owner of Site No.16 is nothing but an imagination. If there exists any grievance regarding interference, the same must be within the owners of Site Nos.16 and 17. Admittedly, the plaintiff, who claims to be the owner of Site No.16 had filed the suit against owner of Site No.17 i.e., Narasimhamurthy and the same was dismissed and it has attained finality. When the suit is dismissed against the neighboring owner of Site No.17, it is nothing but an imagination that owner of Site No.18 is interfering with the possession of plaintiff in respect of Site No.16.
23. The Trial Court has taken note of all these material into consideration and there must be an interference while granting the relief of permanent injunction. Even if defendant admits that plaintiff is in possession of Site No.16, the same cannot be a ground to grant the relief against the defendant, who is the owner of Site No.18. Even the owner of Site No.18 i.e., the defendant admits that he is nowhere concerned with 21 Site No.16 and the same cannot be a ground to grant the relief against defendant No.18. The property of defendant No.18 is not adjacent to the property of plaintiff and the plaintiff is also unsuccessful, when the suit was filed against owner of Site No.18. Hence, the question of granting the relief against defendant, who is owner of defendant No.18 does not arise and though an attempt is made alleging that defendant No.18 tried to interfere with the possession of Site No.16, but categorical submission is made in the plaint itself that said Narasimhamurthy did not interfere with possession of Site No.16. Thereafter, suit is also filed against the adjacent owner of Site No.17 and the plaintiff was unsuccessful. When such being the material available before the Court, unless and until interference is proved by the plaintiff that defendant, who is the owner of defendant No.18 interfered with his possession, question of granting the relief of permanent injunction does not arise.
24. It is also important to note that suit is filed for the relief of bare injunction and while granting the relief of bare 22 injunction, two important ingredients are to be looked into. One is that, as on the date of filing the suit, the plaintiff must be in possession of the property and the very possession itself is not enough and there must be an interference by the defendant and if no interference is proved, question of granting the relief of permanent injunction does not arise. When issue No.2 has not been proved, the question of granting the relief of permanent injunction against the defendant, who is the owner of Site No.18 does not arise and the plaintiff is not claiming any right in respect of Site No.18 and the defendant has stated that all the sites are formed in the very same survey number and unless the very identity of the property is not proved, the very contention of the defendant also that already constructed the building in Site No.16 cannot be accepted. But the Commissioner, who was appointed by this Court submits that portion of Site No.16 was constructed while constructing Site No.15 and also produced the sketch before the Court. When the Commissioner report is filed and the same disclose that in between Site Nos.14 and 15, there is a 9.7 ft. vacant space to north to south 30 ft. and east to west 50 ft. is shown in the sketch. The sale deed also shows the 23 measurement of Site No.14 as north to south 30 ft. and east to west 50 ft. Site No.15 layout plan shows about 40 ft. x 30 ft. and in between there is a passage of 9.7 ft. which is unclaimed and portion of Site Nos.15 and 16 are constructed while constructing the building and it is specifically shown that Site No.17 is in existence on the western side of Site No.18.
25. When such material is also available before the Court and when the plaintiff is unsuccessful while seeking relief of permanent injunction in respect of Site No.17, the question of granting injunction against the defendant in respect of Site No.18 does not arise, since Site No.18 which belongs to defendant is not adjacent to Site No.16 and in between, there is Site No.17 and the plaintiff was unsuccessful, when the relief is sought for permanent injunction in respect of Site No.17 which is on the eastern side of Site No.18. Hence, I do not find any logic in granting the relief of permanent injunction against the defendant, who is the owner of Site No.18 and the said site is not adjacent to suit schedule property. Therefore, I do not find 24 any merit in the appeal to reverse the findings of the Trial Court. Accordingly, I answer point No.(1) in the 'negative'. Point No.(2)
26. In view of the discussion made above, I pass the following:
ORDER The regular first appeal is dismissed.
Sd/-
(H.P. SANDESH) JUDGE ST