Smt Vasanthi vs Sri K V Lingaiah
2022 Latest Caselaw 6259 Kant

                             1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 7TH DAY OF APRIL, 2022

                          BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

               R.F.A. NO. 1277 OF 2007(INJ)

BETWEEN:

SMT. VASANTHI
W/O JAYARAM
AGE 45 YEARS
NO.130, SATHYA NILAYAM
M/S SATHYA PAPER MART, MUNESHWARA BLOCK,
MALLESWARAM, BANGALORE-03

                                               ...APPELLANT

(BY SMT.MEDHA RAO, ADVOCATE)

AND:

1. SRI K V LINGAIAH
MAJOR

2. SRI K L LOKESH
MAJOR

3. SRI K L NAGARAJ
MAJOR

BEING LR 1 TO 3 OF DECEASED RESPONDENT
SMT.SARASWATHAMMA
W/O K.V. LINGAIAH
ALL ARE R/OF NO.17, 6TH CROSS,
                                2


B-MAIN, PIPELINE, MALLESWARAM,
BANGALORE-560003

                                                ...RESPONDENTS

(BY SRI.B R VISHWANATH, ADVOCATE FOR R1-3)

      THIS RFA IS FILED U/S 96 R/W ORDER 41 OF CPC AGAINST
THE   JUDGEMENT    AND   DECREE    DT.19.01.2007    PASSED   IN
OS.NO.6142/1997 ON THE FILE OF THE VIII ADLD.CITY CIVIL
JUDGE, BANGALORE CITY, DECREEING THE SUIT FOR PERMANENT
INJUNCITON.


      THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                         JUDGMENT

The captioned Regular First Appeal is filed by the

unsuccessful defendant questioning the judgment and decree

passed in O.S.No.6142/1997, wherein the suit instituted by

the plaintiffs seeking bare injunction against the defendant is

decreed.

2. For the sake of convenience, the parties are

referred to as per their rank before the Court below.

3. The facts leading to the case are as under:

The plaintiffs have approached the Court below seeking

perpetual injunction against the defendant. The subject

matter of the suit is site bearing No.6 situated at 6th cross,

Pipeline Road, Malleshwaram. The plaintiffs assert and claim

that they are the absolute owners of the suit schedule

property and that they are in exclusive possession and

enjoyment of the suit schedule property since 1957. The

plaintiffs claim that they have purchased the suit schedule

property under registered sale deed dated 02.11.1957 as per

Ex.P-1. The plaintiffs have further pleaded that this property

are falling to the share in a family partition dated 01.11.1957

as per Ex.P-7. The plaintiffs have further pleaded that

defendant has no manner of right, title or interest over the

suit schedule property. The grievance of the plaintiffs is that

defendant tried to trespass over the suit schedule property

and also tried to dismantle the compound and cow shed with

the help of her husband and antisocial elements. The plaintiffs

have further pleaded that on 12.08.1997, the defendant

highhandedly tried to dismantle the portion of the suit

schedule property and this compelled the plaintiffs to approach

the jurisdictional police station. She has further pleaded that

however, police officials advised the plaintiff to approach the

Civil Court to seek appropriate relief at the hands of the

competent civil court. On these set of pleadings, the present

suit came to be filed.

4. On receipt of summons, the defendant contested

the proceedings by filing written statement and stoutly denied

the entire averments made in the plaint. The defendant

specifically disputed the alleged cause of action dated

12.08.1997. A specific averment was made at para 5 of the

written statement. At para 5, the defendant specifically

claimed that the measurement and the identity of the property

as referred in schedule annexed to the plaint and the one

found in the sale deeds are totally different. The defendant

has also disputed the measurement and discrepancies in the

registered partition deed dated 01.11.1957 and the

measurements and boundaries shown in the schedule annexed

to the sale deed. The defendant has further contended that in

the partition deed, the measurement shown is 35 ft. towards

south and therefore, the defendant claim that conveyance by

the original owner in favour of plaintiffs is in respect of non-

existing property. On these set of grounds, the defendant

sought for dismissal of the suit.

5. The Trial Court, based on rival contentions,

formulated the following issues:

"1) Does the plaintiff prove her lawful possession of the schedule property?

2) Does she prove that alleged interference by defendant?

3) Is she entitled to the injunctive relief as prayed?"

6. During the pendency of the suit, original plaintiff

died and her legal representatives were brought on record and

plaintiff No.3 who is none other than the son of original

plaintiff was examined as PW.1 and to substantiate the

pleadings and ocular evidence, the plaintiffs adduced

documentary evidence vide Exs.P-1 to P-7. The defendant to

counter the claim of plaintiffs examined herself as DW.1 and

adduced rebuttal documentary evidence vide Exs.D-1 to D-8.

7. The Trial Court having examined oral and

documentary evidence answered issue Nos.1 and 2 in the

affirmative holding that plaintiffs have succeeded in proving

their lawful possession over the suit schedule property as on

the date of the filing of the suit. Having referred to the

documents and serious contest made by the defendant, the

Court below found that there is interference at the hands of

the defendant and consequently answered issue No.3 also in

the affirmative. Learned Judge has referred to the title

documents and also the admissions given by the defendant in

cross-examination, wherein defendant has admitted that

plaintiffs are in possession of the suit schedule property since

30 years. It is in this background, learned Judge referring to

title documents coupled with admissions given by the

defendant proceeded to decree the suit thereby restraining the

defendant from interfering with the peaceful possession and

enjoyment of the plaintiffs over the suit schedule property.

8. It is against this decree for permanent injunction,

the defendant is in appeal.

9. Ms. Medha Rao, learned counsel appearing for the

defendant reiterating the grounds urged in the appeal memo

would vehemently argue and contend before this Court that

the judgment and decree of the Trial Court suffers from

serious infirmities. She would strenuously argue and contend

that the rebuttal evidence led in by the defendant is discarded

and the learned Judge has committed error in only examining

the evidence led in by the plaintiffs. She would seriously

dispute the admissibility of notarized copy of the sale deed

which is placed on record by the plaintiffs. She would contend

that in absence of foundation laid in to rely on attested copy of

sale deed issued by the Manager of the Bank, learned Judge

was not justified in relying on Ex.P-1. She would take this

Court through the schedule annexed to the plaint and contend

that northern side portion which is shown to be 20 ft. passage

is the disputed portion between the parties. Relying on the

discrepancies in regard to boundaries and measurements

found in the partition deed as well as sale deed, she would

contend that plaintiffs are not at all the owner of this disputed

common passage which is reflected in the schedule annexed to

the plaint. She would further contend that learned Judge

erred in totally relying on Ex.P-1 and therefore, would contend

that there is error committed by the learned Judge in not

properly appreciating the documentary evidence led in by the

defendant.

10. To buttress her arguments, she would place

reliance on the judgment rendered by the Hon'ble Apex Court

in the case of Kalyan Singh, London Trained Cutter, Johri

Bazar, Jaipur vs. Smt. Chhoti and Others1. She would

take this Court through paragraphs 23 to 25 and would

contend that the plaintiffs in the present case on hand has not

laid foundation to make out a case for adducing secondary

evidence. Therefore, the principles laid down by the Apex

Court in the judgment cited supra are squarely applicable to

the present case on hand and therefore, she would contend

that Ex.P-1 cannot be looked into and if Ex.P-1 is discarded,

there is absolutely no material on record to indicate plaintiffs

title and lawful possession over the suit schedule property. On

these set of grounds, she would contend that the judgment

and decree passed by the Court below is liable to the reversed

at the hands of this Court and therefore, would request this

Court to allow the appeal and dismiss the suit.

11. Per contra, learned counsel for the plaintiffs

repelling the contentions canvassed by the learned counsel for

the defendant would contend that the clinching evidence on

(1990) 1 SCC 266

record adduced by the plaintiffs would clearly establish their

title and also their lawful possession over the suit schedule

property. Learned counsel for the plaintiffs would place

reliance on all minute details in the present case on hand. He

would take this Court to Ex.P-7 which is the partition deed

dated 01.11.1957. Placing reliance on Ex.P-7, he would

contend that the present suit schedule property was allotted to

plaintiffs' vendor in a family partition under registered

document. The plaintiffs' vendor having acquired right and

title pursuant to family partition has conveyed the suit

schedule property in favour of the plaintiffs under registered

sale deed dated 02.11.1957 vide Ex.P-1. Referring to these

two title documents, he would then stress more on the

location of the properties owned by defendant and plaintiffs.

12. Referring to Ex.P-4, learned counsel would contend

that the defendant's property is situated at Muneshwara Block

whereas the plaintiffs' property is in fact situated at Pipeline

Road, Malleshwaram and both localities are totally different. If

these aspects are taken into consideration, then defendant's

assertion that she owns property adjoining to plaintiffs'

property is misconceived. He would then refer to Ex.D-3

which is the sanction plan of defendant's residential house.

Even in the said document, he would straight away stress on

the location of the property and would contend that the

defendant's property is situated at 'F' Main Road, Muneshwara

Block, Palace Guttahalli. Learned counsel appearing for the

plaintiffs would then place reliance on Exs.D7 and D-8.

Placing reliance on Exs.D-7 and D-8, he would contend that

the very letter addressed by the defendant to the Assistant

Executive Engineer would clearly establish that property

owned by plaintiffs and one owned by defendant are situated

at totally different locations. In the said communication,

defendant herself admits that property owned by plaintiffs is

situated at Veerabhadrappa Garden, Pipeline Road,

Malleshwaram whereas she claims to be the resident of

No.136, 4th Cross, Muneshwara Block, 'F' Cross, Bengaluru.

These two documents would clinch the issue in regard to the

location of the property owned by the plaintiffs and defendant.

13. Then learned counsel would straight away take this

Court through the relevant cross-examination of DW.1 and

would contend that the defendant has admitted in unequivocal

terms the possession of the plaintiffs over the suit schedule

property. On these set of defence, he would contend that the

judgment and decree rendered by the Trial Court is based on

legal evidence adduced by plaintiffs and in absence of

clinching rebuttal evidence. No grounds are made out in

present appeal that would displace the conclusions and

findings recorded by the Trial Court. He would contend that

the title documents coupled with other documents would

clearly establish plaintiffs' exclusive possession as on the date

of filing of the suit. Coupled with this, the claim made by the

plaintiffs is further strengthened by the admissions given by

the defendant. On these set of defence, he would request this

Court to dismiss the appeal.

14. Heard learned counsel for the defendant and

learned counsel for the plaintiffs. Perused the pleadings of the

parties as well as ocular and documentary evidence. The

following point would arise for consideration:

"Whether the judgment and decree of the Trial Court in granting permanent injunction thereby restraining the defendant from interfering with the plaintiffs' possession and enjoyment over the suit schedule property suffers from serious infirmities and warrants interference at the hands of this Court?"

15. The plaintiffs claim to be the owners of suit

schedule property bearing site No.6 measuring East West

44 ft. and North South 41 ft. To establish their possession,

the plaintiffs have placed reliance on Ex.P-7 which is the true

copy of registered partition deed dated 01.11.1957. They

have also produced attested copy of the sale deed which is

attested by the Manager of the Mahila Co-operative Bank,

wherein the original copy is pledged by the plaintiffs. Apart

from these two documents, plaintiffs have also placed on

record the tax paid receipts, photographs as per Exs.P-2 to

P-5. The defendant by contesting the proceedings is asserting

and claiming that there is a common passage which is owned

by her. The alleged common passage depicted towards the

northern side of the schedule is not at all concerned to

plaintiffs and therefore, the defendant is seriously questioning

and disputing the possession of the plaintiffs in the present

case on hand.

16. The primary question that needs to be examined by

this Court is as to whether the property owned by the plaintiffs

and defendant are adjoining to each other. To examine this

controversy, it would be useful for this Court to refer to Ex.D-8

on which defendant is placing reliance. It would be useful for

this Court to cull out the entire extract of the communication

addressed by the defendant to the Assistant Executive

Engineer and the same reads as follows:

"From,

Smt.J.Vasanthi, W/o Jayaram, 136, 4th Cross, Muneswara Block 'F' Cross, Bangalore-3.

To,

The Assistant Executive Engineer,

Malleswaram, Bangalore.

Sir,

Subject : Request to Stop building construction work and to remove the building materials on my site, by one Smt. Sarasamma, W/o. Lingaiah, U 17, Veerabhadrappa Garden, Pipe Line, Malleswaram, Bangalore.

---

I, the undersigned bring the following facts to your kind notice.

I am the absolute owner is in exclusive possession and enjoyment of the property bearing No.16/1, 'F' Main Road, Muneswara Block, Ward No.6, 7, Malleswaram, Bangalore, measuring 16' x 41' feet.

The above said Sarasamma, who is the owner of Site No.U 17, Veerabhadrappa Garden, Pipe Line, Malleswaram, which is adjoining to my property. Now she is also putting up construction on the said site, she is illegally putting up sajja into my site property, which

cover 3 feet of my property. The stair case being put up by her is covering 10 feet of my property.

I am constructing a compound to my property. I have also got a sanction plan, sanction by the Corporation vide L.P. No.43/97-98, dated 24-7-1997.

I had also made an representation to your kind concern on 12-6-1997, inspite of which the said illegal construction and activities being carried out.

Therefore, I request to your goodself, to look into the matter and take necessary action immediately and stop the illegal activities of the above said person.

Thanking you,

Yours faithfully, Sd/-

(J.VASANTH) Bangalore.

Dated: 13.08.1997."

17. If this document is meticulously examined, the

defendant has admitted that plaintiff is the owner of site No.

U-17 situated at Pipeline Road and in the said communication

which also claims that her property is abutting to plaintiffs'

property. In the very said communication, defendant has also

disclosed her residence. Same is referred as No.136, 4th

Cross, Muneshwara Block, 'F' Cross, Bengaluru. Now the

question that needs to be examined is whether defendant

owns her property at Pipeline Road adjoining to plaintiffs'

property or she owns a property at Muneshwara Block 'F'

Cross. This is evident from Ex.D-3 which is a sanction plan of

residential house of defendant. On perusal of the same, this

Court would find that the defendant has constructed a

residential house in site No.16/2 and the same is situated at

'F' Main Road, Muneshwara Block, Palace Guttahalli Road. If

defendant's residential house is situated at 'F' Main Road,

Muneshwara Block and if plaintiffs' own a property bearing

Site No.6 at Pipeline Road, then this Court is unable to

understand as to how defendant can dispute the plaintiffs'

possession over the suit schedule property bearing site No.6.

18. If these documents are examined in the context of

the cross-examination of defendant, then this Court is of the

view that the same would clinch the entire controversy

between the parties. In her cross-examination, DW.1 has

admitted in unequivocal terms that the plaintiffs are in

possession of the suit schedule property for the last 30 years.

The clinching evidence led in by plaintiffs would clearly

establish that they are in lawful possession of the suit

schedule property. The rebuttal evidence which is led in by

the defendant would not come to the aid of the defendant but,

on the contrary, the rebuttal evidence more particularly Exs.

D-7 and D-8 would clearly indicate and prove the alleged

interference as claimed by plaintiffs over the suit schedule

property. If the documentary evidence coupled with ocular

evidence of DW.1 is examined, this Court would find that the

plaintiffs have succeeded in establishing their lawful

possession over the suit schedule property as on the date of

filing of the suit. The rebuttal evidence would not displace the

clinching evidence which is placed on record by the plaintiffs.

In that view of the matter, the point formulated by this Court

is answered in the negative.

19. The judgment relied by the defendant is not at all

applicable to the present case on hand. The present suit is

one for bare injunction and question of title cannot be gone

into. The true copy of sale deed which is placed on record is

referred to and examined only to find out as to who is in

possession over the suit schedule property. Therefore, the

judgment cited by the learned counsel for the defendant would

not come to the aid of the defendant as the same is not at all

applicable to the present case on hand.

20. It is a trite law that irrespective of whether

injunction sought is temporary or perpetual, the jurisdiction to

grant injunction is discretionary. Although the words 'in its

discretion' are absent from Sections 38 and 41, but the

language of Section 36 renders the remedy under both the

sections discretionary. It is also trite law that plaintiff must

seek injunction with clean hands. Therefore, equitable relief of

permanent injunction has to be granted in the present case on

hand and this Court is of the view that defendant is guilty on

account of his inequitable conduct. The claim made by the

plaintiff is fair. The propriety of granting an injunction

depends upon the facts of each particular case and the general

principle of equity as related to injunctions and the discretion

that has to be exercised by the Court has to be judicial

discretion and the Court has to take note of the fact that by

granting injunction should not result in oppression and injury

to the other side. It is a trite law that Courts will not grant

injunction when good conscience does not require it, where it

will cause injustice. The present set of facts also does indicate

that it would be reasonable and equitable to grant an

injunction to the plaintiff. If injunction is granted, it will tend

to promote justice. It is a trite law that to grant injunction

plaintiff has to establish his right. The existence of right and

consequent violation are pre-requisite condition to grant an

injunction. An injunction will not issue to protect a right which

is not lawful and legal. Therefore, in the present set of facts

and circumstances and having regard to the clinching evidence

led in by plaintiff, this Court is of the view that plaintiff is

entitled for discretionary relief of injunction.

21. In the light of the findings recorded by this Court

while answering the above point, the following conclusions are

recorded by this Court:

(a) The finding of the Trial Court that plaintiffs have

succeeded in proving their lawful possession over the suit

schedule property is based on legal evidence.

(b) The finding of the Trial Court that plaintiffs have

succeeded in proving alleged interference is based on evidence

which clearly proves the conduct of the defendant and also

indicates interference by the defendant without any semblance

of right and title over the suit schedule property.

(c) On re-appreciation of the entire evidence on record,

this Court concurs with the findings and conclusions arrived at

by the Trial Court.

22. Hence, I pass the following:

ORDER

The appeal is devoid of merits and the same is

accordingly dismissed.

Sd/-

JUDGE

CA