Karnataka High Court
Sri. Iqbal Pasha vs The Director on 21 March, 2022
Bench: Ravi V Hosmani
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
R.F.A.NO.1543 OF 2017 (INJ.)
BETWEEN:
SRI. IQBAL PASHA,
AGED ABOUT 58 YEARS,
SON OF H. SYED HYDER,
R/AT NO.62, ROCK ROSE RESIDENCY
BHEL OFFICERS LAYOUT
BANNERGHATTA MAIN ROAD,
BENGALURU - 560 041.
...APPELLANT
[BY SRI. V.B. SHIVAKUMAR, ADVOCATE
(VIDEO CONFERENCE)]
AND:
THE DIRECTOR,
SANJAY GANDHI INSTITUTE OF
TRAUMA AND ORTHOPEDICS,
1ST BLOCK, BYRASANDRA
JAYANAGAR EAST,
BENGALURU - 560 011.
... RESPONDENT
[BY SRI. D.R.P. BABU AND ASSOCIATES, ADVOCATE
(VIDEO CONFERENCE)]
2
THIS R.F.A. IS FILED UNDER SECTION 96(1) OF C.P.C.,
AGAINST THE JUDGMENT AND DECREE DATED 26.07.2017
PASSED ON O.S.NO.3294/2000 ON THE FILE OF THE VII
ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY
(CCH NO.19), DISMISSING THE SUIT FOR PERMANENT
INJUNCTION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 21.09.2021, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
Challenging judgment and decree dated 26.07.2017
passed by VII Addl. City Civil Judge and Sessions Judge in
O.S.No.3294/2000, this appeal is filed by the unsuccessful
plaintiff.
2. Appellant herein was plaintiff and respondent
herein was defendant. For sake of convenience, they will
hereinafter be referred as per their ranks in civil suit.
3. Plaintiff filed O.S.No.3294/2000 seeking for
decree of permanent injunction restraining defendant from
interfering with plaintiff's peaceful possession over 'suit
property'. Property bearing no.225 and 226/25 subsequently
rectified as 'RSYZ' (Corporation no.1/1) situated at 1st Cross,
1st Block, East Jayanagar, Bengaluru, Byrasandra, measuring
east to west and north-south 46 ft. in all measuring
2875 sq. ft. bounded on east by Sanjay Gandhi Hospital, west
by road, north by road and south by co-operative housing
society layout is the 'suit property'.
4. Plaintiff claims to have purchased it under
registered sale deed no.1488/88-89 in Book-I, Volume 1181,
page 115-120 dated 05.03.1988 registered in office of
Registrar, Jayanagar, Bengaluru and that khata certificate
was issued to him on 17.05.1989 in no.DACJ/58 KTR 20/89-
90 and that he has been paying property tax till date.
5. It was stated that defendant was owner of
adjacent land bearing Sy.No.5 situated on eastern side of suit
property. Though plaintiff had fenced his property with barbed
wire fitted to stone pillars, while constructing compound wall
around its property, defendant dug foundation on eastern side
of plaintiff's property by encroaching an area of 5 feet into
plaintiff's property. Construction material was also dumped on
plaintiff's land. When show-cause notice dated 10.05.2000
issued by plaintiff to defendant, did not evoke reply, cause of
action for filing suit accrued.
6. In the plaint, area of encroachment was
demarcated in hand sketch (Annexure-B). Plaintiff also sought
for a direction to defendant to remove barbed wire fencing on
eastern side of plaintiff's property and southern side of
defendant's property.
7. Upon service of summons, defendant entered
appearance and filed written statement denying plaint
averments. Plaintiff's title and possession over suit property
was also denied. Defendant stated that an extent 0.03 guntas
in Sy.No.5/2A, and 1 acre 6 guntas in Sy.No.5/2B of
Byrasandra village, Uttarahalli Hobli, Bengaluru South Taluk
was notified for acquisition to provide approach road to
defendant - institution. Upon issuance of final notification, an
award came to be passed on 20.02.1998 in LAQ '3' SR 9/95-
96 by Special Land Acquisition Officer, Bengaluru and
possession was taken and handed over to defendant on
19.02.1998 after demarcation by Surveyor. In view of above,
plaintiff did not have any right, title or interest in suit
property.
8. It was further stated that Smt. Yellamma and
others claiming to be heirs of Sri Muniswamy filed civil suit as
well as writ petition without having any right, title or interest
over any portion of acquired land. The entire land owned by
Sri Muniswamy and others was alienated in favour of
Mariyappa and Byrappa on 01.07.1996, under registered sale
deed as reflected in revenue entries. Subsequently,
Smt Yellamma managed to get her name illegally entered in
revenue records in respect of Sy.No.5/2A but same was later
ordered to be deleted by concerned authorities. It was further
stated that none of records or award disclosed as to plaintiff
was occupier of any portion of acquired land.
9. Defendant further stated that it was in lawful
possession of Sy.nos.5/2A and 5/2B after having acquired
title by due process of law. It also stated that it had put up
compound wall around it's property, except in respect of a
small portion, which was under progress and that defendant
was running a hospital for which approach road was required
and construction of compound wall was to prevent intruders.
Denying encroachment of any portion of plaintiff's property,
defendant asserted that documents secured by it from Citizen
House Building Co-operative Society ('Society' for short)
about property, in which it had formed layout, falsified
plaintiff's claim. On above assertion, defendant sought
dismissal of suit.
10. Based on pleadings, trial court framed following
issues:
1. Whether plaintiff proves that he is in
possession of the suit schedule property?
2. Whether plaintiff proves the alleged
obstruction?
3. Whether plaintiff is entitled for any
relief?
4. What decree? What order?
11. In order to prove his case, plaintiff examined
himself as PW1 and got marked Exhibits P1 to P19(a). In his
deposition, plaintiff reiterated plaint averments. In cross-
examination, it was elicited that while purchasing suit land in
1988, description of land was mentioned as '225 and 226/25',
by stating its measurements as east-west and north-
south as 46 ft. and from year 2000, defendant had not
caused obstruction to plaintiff. PW1 admitted that corporation
number '1/1' was not mentioned either in BDA sketch - Ex.P3
or in Survey Map - Ex.P12 and at any point of time suit
property was not described as 'RSYZ'.
12. PW1 further admits that in Ex.P5, PID number
mentioned is '62-74-1-1'. After initially denying it, khata
certificate was got marked as Ex.D1, after he admitted it in
confrontation. Denying site no.1/1 belonged to Society, he
states that it was attached to property of Society. He admits
name of Society was mentioned in Ex.D1. He also admits suit
property measures '2875' sq. ft, but in Ex.D1, it was
mentioned as '2914' sq. ft. Copy of sanctioned plan of site
no.1/1 was got marked as Ex.D2 after he admitted it in
confrontation and also admits that suit property was assigned
no.1514-6 by City Survey, but denies division of no.1514-8
into eight parts. He later admits that 'CTS no.1514-8' was
assigned to suit property after dividing 'CTS no.1514'. List of
properties of Society layout was got marked as Ex.D3 after he
admitted in confrontation and that his name was mentioned
at Sl.No.2. He states that his property was situated on 8th
main road, but denies it on 1st cross road. He admits 1st cross
road as mentioned in Ex.P.1, but not in Ex.P.2. He denies
suggestion that he would not suffer hardship, if Court
Commissioner was appointed for identifying location of suit
property and states that it would delay conclusion of suit. He
denies location of 'CTS no.1514-1', but states that his site is a
corner site. He admits that there was no mention of 'CTS
no.1514-8' in Ex.P.12, but volunteers to state that it is
adjacent to 'CTS no.1514-7'. He is unaware that Ex.D.1 was
in respect of 'CTS No.1514-1'.
13. In further examination, PW1 got marked order
dated 24.02.2015 passed by Enquiry Officer, City Survey,
Bengaluru as Ex.P.13, but denies suggestion that it was
questioned before JDLR in Appeal no.1/16 and interim order
of stay was granted. Map of local area no.28 was got marked
as Ex.D4 on his admission in confrontation. He denies
knowledge of suit property being assigned CTS number about
20 years ago as per PT sheet 570 of Byrasandra village and
suppressing same, he got assigned new number from Survey
Department. He denies suggestion that except Exs.P.12 and
P.13, he has not produced any other documents to support
his claim.
14. In support of oral evidence, following
documentary evidence was led. Ex.P.1 - Sale deed dated
05.03.1988 executed by Smt.Eeramma, Muniyappa and
others in favour of plaintiff in respect of property bearing
no.'225 and 226/25'; Ex.P.2 - Rectification deed dated
24.04.1990 for correction of property number from '225 and
226/25' to 'RSYZ' (new corporation No.1/1)'; Ex.P.3 - copy of
survey sketch dated 06.03.1987 prepared by SLAO, BDA,
showing property as 'RSYZ' measuring 2875 sq. ft., abutting
8th main road and 1st cross; Ex.P.4 - endorsement issued by
BDA informing that an extent of 27 guntas was left out of
acquisition; Ex.P.6 - tax paid receipts of PID no.62-74-1/1
dated 01.07.2013; Ex.P.7 - postal acknowledgment; Exs.P.8
to P.10 - photographs; Ex.P.11 - rough hand sketch; Ex.P.12
- survey sketch; Ex.P.13 - copy of order dated 24.02.2015
passed by Enquiry Officer, City Survey, Bengaluru; Ex.P.14 -
tax paid receipts of PID no.62-74-1/1 dated 28.03.2015;
Ex.P.15 - Copy of Written statement filed by Society in O.S.
No.4171/1990; Ex.P.16 - Notice dated 28.07.2016 issued by
plaintiff to defendant; Ex.P.17 - copy of reply dated
16.08.2016 given by defendant; Ex.P.18 - copy of sketch
attested by defendant showing 'disputed property'.
15. On behalf of defendant, Sri T.K.Basavaraju,
second division assistant of defendant - institution was
examined as DW1. In his examination-in-chief, he reiterated
written statement averments that land bearing Sy.no.5/2A
and 5/2B was acquired for providing approach road to
defendant's hospital and plaintiff did not have any right, title
or interest over said land and there was no interference by
defendant as alleged. He stated that defendant was
constructing compound wall around its property to protect its
property from intruders.
16. In his cross-examination, it is elicited that 8th
main road lies to west side of hospital and that an area of 1
acre 6 guntas of land lies between hospital and 8th main road.
He states that there is vacant land surrounding defendant's
hospital building and 8th main road is about 40 ft. away from
it. To a query about location of plaintiff's property with
reference to hospital building, DW1 denies existence of suit
property. After admitting suggestion that defendant was not a
party to Writ Petition filed before this Court, he states that
copy of judgment was produced to show that an extent of 1
acre 19 guntas was allotted to Society and 1 acre 6 guntas
was allotted to defendant by BDA. He also admits that as per
Ex.D.28 an extent of 27 guntas was left out of acquisition, but
states that said 27 guntas does not form part of Sy.No.5-2A
and 2B. Though he states that hospital property is not shown
in Ex.D.28, he volunteers to state that after acquiring land in
1996, possession was delivered in 1998. He states that
defendant initiated correspondence with Society, in which it
was mentioned that Society had filed O.S. No.4171/1990
against plaintiff and its dismissal on 10.10.2011 was not
informed by Society.
17. It was elicited that police complaint given by
defendant against plaintiff was closed by asking parties to
approach Civil Court. To a suggestion that defendant had
fenced its property in entirety, but DW1 states that fencing
was not complete. Though DW1 admits that 1st cross road
leads to hospital, but he is unaware when it was formed. He
also states that he was not present at the time of preparation
of Ex.D.9 by Assistant Revenue Officer, BBMP. He admits that
even plaintiff was also not present. He admits that he
produced documents about sites located between 1st and 2nd
cross roads in Ex.D.9 and states that he is not aware of their
measurements. He states that hospital is located after these
sites and admits that during July 2016 when defendant
intended to construct generic medicine building, plaintiff
issued legal notice which was replied by defendant. Copies of
same are got marked as Exs.P.16 and P.17 in confrontation.
He also admitted that prior to issuing reply as per Ex.P.17, he
submitted a note about three storied building existing in
Society layout. Copy of sketch showing measurement of
generic medicine shop attested by defendant was got marked
as Ex.P.18 in confrontation and admits disputed land is
mentioned on both sides of 8th main road in Ex.P.18. He
admits that suit property is shown as Ex.P(B) in Ex.P.18.
DW.1 also admitted that along with Ex.D.6 - reply, Society
had sent copy of plaint in O.S. No.4171/1990. Suggestions
about knowledge of dismissal of O.S.No.4171/1990 and
plaintiff paying tax of suit property to BBMP were denied.
18. Documentary evidence of defendant was Ex.D.1 -
khata extract of property no.'62-74-1/1' issued on
09.03.2012; Ex.D.2 - copy of sanctioned building plan dated
25.02.2012 of site no.1/1 of Society for construction of new
building after dismantling existing building in PID no.62-74-
/1/1; Ex.D.3 - list of properties in Layout of Society; Ex.D.4 -
copy of map of local area no.28; Ex.D.5 - copy of
authorization given to DW.1 for deposition; Exs.D.7 and D.8 -
RTI replies dated 24.05.2016 given by BBMP to Defendant;
Ex.D.9 - rough sketch of layout of Society; Exs.D.10 to D.23 -
khata extracts of sites and property tax paid receipts in layout
of Society; Ex.D.24 - village map of Byrasandra; Ex.D.25 -
survey sketch of Sy.No.5-2A and 5-2B; Ex.D.26 - PT Sheet;
Ex.D.27 - extract of index of lands; Ex.D.28 - Certified copy
of order passed in W.P. No.578/1999; Exs.D.29 and D.30 -
Copies of acquisition notifications.
19. On consideration of evidence and issues framed
regarding lawful possession, interference by defendant and
entitlement for relief, trial court noted narration of acquisition
of title and possession by plaintiff in respect of suit property.
As per plaintiff, while acquiring land for formation of
Kanakapalya Layout by CITB, an extent of 27 guntas of land
in Sy. No.2/6 and Sy.no.4/1A was left out from acquisition in
favour of original owners and plaintiff acquired 'suit property'
from legal heir of earlier owner - Smt Eeramma W/o
Muniswamappa and her five sons under registered sale deed
dated 05.03.1988 (Ex.P.1). It noted that property number
mentioned in sale deed was '225 and 226/25' and after it was
given property number '1/1', rectification deed executed on
24.04.1990 (Ex.P.2) for rectifying description of property as
'RSYZ' (new Corporation no.'1/1') instead of '225 and
226/25'. Trial court also noted plaintiff's contention that
though defendant was owner of adjacent land bearing
Sy.No.5 situated on eastern side of plaintiff's property had
fenced its property, while putting up construction of
compound wall, it dug foundation and dumped construction
material by encroaching an area of five feet into plaintiff's
property.
20. It also considered defendant's contention that
land bearing Sy.No.5-2A and 5-2B totally measuring 1 acre 6
guntas was notified for acquisition in favour of defendant
during 1996 and possession delivered in 1998 after survey for
demarcating land. While construction of compound wall was in
progress towards its southern side, plaintiff filed instant suit
without having any right, title or interest over suit property.
Defendant denied plaintiff's claim of title and possession over
'suit property' in toto. It contended that suit was filed based
on concocted and false documents.
21. While recording its finding on issue no.1,
regarding lawful possession against plaintiff, trial Court stated
that property number mentioned in Ex.P.1 was '225 and
226/25', which was subsequently corrected as '1/1', as per
Ex.P.2. But by that time, Smt.Eeramma had died. Trial court
refers to admission of plaintiff that in Ex.P.3 as well as
Ex.P.12, property number '1/1' was not mentioned. It also
referred to admission that in Ex.P.5, 'RSYZ' property is not
shown and that in Ex.D.1 - khata extract, Society was shown
as owner of property no.1/1 and its measurement was '2914'
square feet, instead of '2875' sq. ft. according to plaintiff.
Trial court also refers admission that Ex.D.2 - sanctioned plan
was in respect of property no.1/1. Detailed consideration and
directions issued by this Court in W.P. No.578/1989 - Ex.D.28
for cancellation of khata in favour of Smt.Eeramma and
others was also noted. Though plaintiff claimed that CTS
No.1514/8 was assigned to suit property, PW1 pleaded
ignorance CTS No.1514/8 was divided into eight parts, but
admitted that his name was mentioned in Ex.D.3 - list of
property holders in layout of Society. Trial court refers to lack
of explanation about omission to mention 1st cross in Ex.P.2
rectification deed, though it was mentioned in Ex.P.1. It also
refers to plaintiff's conduct denying consent for appointment
of Court Commissioner for identification of suit property.
22. After referring to deposition of DW.1 about failed
attempt by legal heirs of Muniswamy to claim title over land
bearing Sy.No.5/2A and plaintiff's failure to explain how and
when according property no.'RSYZ' was assigned no.1/1,
specific defence taken by defendant denying plaintiff's title
over suit property and observations made and directions
issued by this Court in Ex.D.28 order, trial court held that
plaintiff's vendor was not having title over suit property. It
also observed that on examination of evidence led by plaintiff,
property number of suit property varied from 'CTS
No.1514/8', 'PID No.62-74-1/1', 'RSYZ' and '225 and 226/25'
and plaintiff failed to offer clear and acceptable explanation.
23. It also took note of plaintiff's refusal for consent
for appointment of Court Commissioner to identify property in
terms of his title deeds and also setting aside of Enquiry
Order (Ex.P-13) to come to conclusion that as on date of sale
deed, vendor of plaintiff did not have title or possession in
respect of suit property and answered issue regarding lawful
possession in negative. It also held that plaintiff failed to
establish interference by defendant and answered issue no.2
in negative. On basis of above findings, it concluded that
plaintiff was not entitled for relief and dismissed suit.
24. Sri V.B.Shivakumar, learned counsel for appellant
submitted that impugned judgment and decree passed by
trial Court was contrary to law and evidence on record. It was
submitted that in a suit for bare injunction, plaintiff was not
required to establish his title to the hilt. Plaintiff had
succinctly traced his title to suit property in pleadings and
also produced title documents. Merely on ground that
defendant denied plaintiff's title, trial court was not justified in
examining plaintiff's title as if it were a suit for declaration of
title. It was further submitted that grant of khata by BBMP in
his favour and plaintiff paying property tax up to date clearly
established lawful possession of plaintiff. Therefore,
observation of trial court that plaintiff failed to establish lawful
title was erroneous. Especially, as defendant's property was
carved out of Sy.No.5-2A and 5-2B; whereas property of
plaintiff was Sy.No.4/A1 'RSYZ' '1/1' which was totally
different from that of defendant's property. It was submitted
that Exs.D.1, Ex.D.10 to D.27 were in respect of properties in
layout of Society and therefore irrelevant.
25. Learned counsel further submitted that
observations of learned Single Judge in paragraph nos.21 and
22 of order at Ex.D.28 made provision for purchasers to
approach BDA for protection of their rights and therefore,
findings therein were not conclusive. Hence, conclusion of
trial court based on said order that plaintiff's vendor did not
have title would be uncharitable. Finding of trial court that
this Court had directed cancellation of khata in the name of
plaintiff's vendor, therefore, she did not have title would be
contrary to law.
26. Even observation that measurement of property
was changing, was without evidence and contrary to record.
It was further submitted that instead of referring to
documents and evidence of plaintiff, trial court had proceeded
to pass impugned judgment by considering evidence and
documents of defendant and thereby committed material
irregularity. Learned counsel submitted that Ex.D.1 - khata
produced was issued in name of Munawar Sharief and
therefore, irrelevant. Ex.D.3, list of properties of Society, at
item no.2, property number mentioned is 62-74, 1/1 in the
name of plaintiff. Ex.D.6 and D.7 were letters by Society to
Special Deputy Commissioner and by BBMP to defendant.
Without examination of their author, authenticity cannot be
said to have been established and therefore, contents cannot
be looked into. It was further submitted that Ex.D.8 dated
24.05.2016 i.e., issued after filing of suit and does not find
place in written statement. It was further submitted that
Ex.D.9 is a sketch prepared by Assistant Revenue Officer,
BBMP, who has no authority to prepare same and therefore, a
bogus document. Ex.D.10 to D.27 - documents of properties
in Society layout, which were not proved. Ex.D.29 and
Ex.D.30 are notifications issued by Special Deputy
Commissioner for acquisition of Sy.no.5/2A and 5-2B.
Schedule of acquired lands mentioned therein do not overlap
property of plaintiff. Therefore, would not be of much
relevance to defeat plaintiff's claim.
27. Relying upon decision in the case of
T.M. Sreenivasa Murthy Vs. Vinayaka Naik, reported in
2017 (3) KCCR 2666, learned counsel submitted that this
Court held therein that appoint of Court Commissioner for
identification of property and his report would not dispense
with burden upon plaintiff to establish lawful possession and
interference and report of Commissioner could only be
considered as an additional evidence. Therefore, drawing of
adverse inference by trial court against plaintiff for refusing
consent to appoint Court Commissioner was erroneous. Trial
court erred in failing to notice that entire cross-examination
of PW.1 was directed insofar as property bearing Sy.no.5/2A
and 5-2B and notifications issued for acquisition. As plaintiff's
case was that defendant's property is separated from that of
plaintiff and there was no denial of title of defendant over its
property, evidence led by defendant would not therefore
justify dismissal of plaintiff's suit on a finding that plaintiff did
not have title over suit property.
28. It was submitted that DW1 admitted, he had seen
a three storied building constructed by Munawar Pasha, at 2nd
Cross. However, conclusion of trial court is contrary to this
admission. Learned counsel further submitted that as per
Ex.P.4, special land acquisition of BDA, successor of CITB,
which formed Kanakapalya Layout, clarified in Ex.P.4 that out
of total extent of 1 acre 38 guntas of Sy.no.2/6, an extent of
1 acre 30 guntas and out of total extent of 2 acres 37 guntas
in Sy.no.4/A1, an extent of 2 acres 18 guntas was acquired
for formation of Kanakapalya Layout. An extent of 8 guntas in
Sy.no.2/6 and an extent of 19 guntas in Sy.no.4/A1 were
dropped from acquisition in favour of khatedar Smt.
Eeramma. It is specifically stated that Corporation no.1/1 fell
within the extent of 27 guntas dropped from acquisition.
Ex.P.5 is khata certificate issued by BBMP assigning municipal
no.1/1 to plaintiff's property. In addition, Ex.P.6 is tax paid
receipt in respect of suit property would substantiate identity
and possession of plaintiff over suit property. DW.1 also
admitted that land acquired for defendant was not within 27
guntas left out of acquisition. This admission would
corroborate plaintiff's claim. Such being case, trial court was
not justified in passing impugned judgment ignoring above
material evidence.
29. It was further submitted that a conjoint reading of
Sections 37 and 38 of Specific Relief Act would justify grant of
injunction in favour of plaintiff, who was in possession of suit
property. It was submitted that denial of plaintiff's title and
existence of plaintiff's property by defendant would amount to
interference with plaintiff's possession of suit property.
Ignoring said aspect, trial court held plaintiff failed to prove
interference.
30. In support of his submission, learned counsel
relied upon following decisions:
i) Somanath Burman Vs. Dr. S.P. Raju &
Another reported in 1969 (3) SCC 129, for
the proposition that possessory title would
hold good except against true owner.
ii) Jayamma Venkataram & Another Vs.
Smt. Ashraf Jahan Begaum another
reported in 2021(1) KLJ 470, for the
proposition that non-mention of property
number assigned by Corporation would not be
a justification for disputing identity of suit
property.
iii) A Subramanian & Another Vs. R.
Pannerselvam, reported in 2021 (3) SCC
675, for proposition that even a trespasser in
established possession could obtain injunction.
This Court in Shankarbhat Vs. State of
Karnataka in RFA no.2307/2006 disposed
of on 03.02.2014, also has held that entries in
revenue records would avail presumption
under Section 133 of Land Revenue Act and
based on possession, title was declared.
iv) Basavaiah Vs. Smt. Madamma, reported
in 2020 (2) AKR 209, for proposition that
this Court was empowered to mould reliefs
and also for proposition that when there was
no discrepancy with regard to extent of
property conveyed under a document,
boundaries would prevail over measurement
to contend that as there was no change
regarding boundaries of suit property as
mentioned in sale deed - Ex.P.1, denial of
protection to plaintiff's possession from
transgression by defendant was unjustified.
v) Vishram Alias Prakash Govekar Vs.
Sudesh Govekar, reported in AIR 2017 SC
583, for proposition that in a suit for
permanent injunction simplicitor, plaintiff was
not required to prove ownership and relief of
injunction cannot be denied merely on the
ground that declaration was not sought.
vi) Zarif Ahmed Lrs. Vs. Mohammed
Farooq, reported in AIR 2014 SC 1236, for
proposition that payment of house tax and
extracts of house tax register were sufficient
to prove plaintiff's possession for grant of
permanent injunction under Section 38 of
Specific Relief Act. Reliance was also placed on
decision in Iqbal Basih & Ors. Vs. N.
Subbalakshmi & Others, reported in 2021
(1) Kar. L.R. 13 (SC), wherein three-judges
bench expressed similar view.
31. On the other hand, Shri D.R.P. Babu, learned
counsel for respondent opposed appeal. It was submitted that
plaintiff filed suit for permanent injunction in respect of suit
property bearing no.225 and 226/25, subsequently rectified
as 'RSYZ' (corporation no.1/1). Plaintiff claims to have
acquired title over same under Ex.P.1 - sale deed. Schedule in
Ex.P.1 mentions property number as 225 and 226/25.
Property number is claimed to have been subsequently
rectified as 'RSYZ' (corporation no.1/1) under Ex.P.2 -
Rectification deed. It was pointed out that assignment of
Corporation no.1/1 was subsequent to execution of sale deed.
It was submitted that in Ex.P.1, it is stated that property was
marked as 'RSYZ' in survey sketch prepared by Special Land
Acquisition Officer of BDA on 06.03.1987. However, said
number 'RSYZ' is not mentioned in schedule. Instead,
nos.225 and 226/25 is mentioned. Though, there is no
reference to said number in the recitals made in sale deed.
Learned counsel would further submit that there is indication
of manipulation of property number in sale deed. Neither in
plaint nor during evidence plaintiff offered any justification for
these discrepancies.
32. Learned counsel further submitted that even in
plaint, boundaries mentioned were struck off with overwriting
without any countersignature. There is no explanation by
plaintiff in this regard also. He submitted that there was
inconsistency in description of suit property. Ex.P.1 describes
suit property with ACC sheet house, whereas plaintiff's case
has been that suit property is vacant land. In Ex.P.3 & Ex.P.4,
there is no reference to site nos.225 and 226/25. Ex.P.5
issued on 09.03.2012 mentions old no. as 'nil' and new no. as
1/1. Location of property is mentioned as layout of Society.
Property identification number is 62-74-1/1 in favour of
plaintiff. Ex.D1 - khata extract in respect of PID 62-74-1/1 on
the other hand, mentions sital area as 2914 sq.ft. Ex.D.2 is
sanctioned building plan issued to plaintiff in respect of PID
no.62-74-1/1. Sanction is granted for construction of new
building after dismantling existing building. Ex.D.3 - list of
properties of layout of Society enlists PID no.62-74-1/1 in the
name of plaintiff at sl.no.2. Ex.D.9 - indicates division of CTS
no.1514/1 into eight parts and item no.2 standing in the
name of plaintiff. Exs.D1 to D.30 establish that property
standing in the name of plaintiff was in layout of Society.
33. Learned counsel further drew attention of this
Court to admission of plaintiff that he was not aware of cross-
road abutting which suit property was situated. Attention of
this Court was also drawn to order passed by this Court in
W.P.no.578/1989 (Ex.D.28), plaintiff was arrayed as
respondent no.14. It was submitted that in the said
judgment, this Court negatived plaintiff's contention that his
vendor's had right, title and interest over suit property. Said
order had attained finality. It was further submitted that
Ex.P.13 relied upon by plaintiff was challenged before JDLR
and was ultimately set aside on 11.05.2017. As per
observations of this Court in Ex.D.28, there was neither any
re-allotment nor re-conveyance either in favour of plaintiff or
in favour of his vendor, therefore, plaintiff's claim that
vendors secured title in pursuance thereof and conveyed it to
plaintiff was highly improbable.
34. Referring to Ex.D.4, it was submitted that local
area plan showed CTS no.1514 as one block facing main road.
In Village map - Ex.D.24, there is no other Survey number
abutting Sy.no.5. Even Ex.D.26 does not contain PT sheet
no.1514/8. Exs.D.29 and D.30- acquisition notifications do
not mention existence of Sy.no.4 towards west. These
documents would establish that no such property as claimed
by plaintiff exists. By changing property number, boundaries,
and extent which do not tally across documents produced,
without any acceptable explanation by plaintiff, instant suit
was filed to defraud defendant. On appreciation of same, trial
court had dismissed suit.
35. In support of his submissions, learned counsel
relied on decisions of Hon'ble Supreme Court in Gulabchand
Chhotalal Parikh Vs. State of Gujarat reported in AIR
1965 SC 1153 and Sahu Madho Das & Others Vs.
Mukand Ram & Another, reported in AIR 1955 SC 481 for
proposition that decision in earlier Writ Petition would bar
subsequent suit involving same question on general principles
of res judicata. He also relied on Full Bench decision of High
Court of Andra Pradesh in Katragadda China Anjaneyulu &
Another Vs. Katragadda China Ramayya & Others,
reported in AIR 1965 AP 177.
36. Further reliance was placed on decision of Hon'ble
Supreme Court in the case of Anathula Sudhakar Vs.
P.Buchi Reddy (Dead by LRs. And other) reported in
(2008) 4 SCC 594 for the proposition that suit involving
complicated questions about acquisition of title by plaintiff,
mere suit for bare injunction would not be tenable.
In Ritesh Tewari and another Vs. State of Uttar
Pradesh and others reported in (2010) 10 SCC 677, for
the proposition that a party claiming equity must come before
the Court with clean hands to contend that a plaintiff having
produced inconsistent documents was not entitled for any
relief even in equity.
Maria Margarida Sequeira Farnandes and others
Vs. Erasmo Jack De Sequeira (Dead) through LRs.
reported in (2012) 5 SCC 370 for proposition that false
claims and defence in litigation is required to be curved by
imposition of exemplary costs.
37. From the above, it is seen that this is a suit for
bare injunction, where plaintiff contends that though
defendant was owner of adjacent land bearing Sy.No.5
situated on eastern side of plaintiff's property, while
constructing compound wall, defendant dug foundation and
dumped construction material by encroaching an area of five
feet into plaintiff's property. Whereas, defendant contends
that land bearing Sy. No.5-2A and 5-2B totally measuring 1
acre 6 guntas was notified for acquisition in favour of
defendant in the year 1996 and possession was delivered in
the year 1998 after conducting survey and demarcating the
land. Thereafter, defendant had fenced it's property except at
some places. While construction was in progress towards
southern side, plaintiff filed instant suit without having any
right, title or interest over suit property. Defendant denied
plaintiff's claim of title and possession over 'suit property' in
toto. It contended that suit was filed based on concocted and
false documents.
38. It is settled law that in a suit for injunction, the
plaintiff is required to establish lawful possession, interference
by defendant and comparative hardship. In order to establish
lawful possession, plaintiff has stated that suit property was
purchased by him from Smt.Eeramma, Muniyappa and five
others under Ex.P.1 sale deed dated 05.03.1988. Description
of property in sale deed is as follows:
"Immovable property forming property
bearing Corporation 225 and 226/25. Northern
portion situated at first cross, first block east,
Jayanagar, Bangalore, Byrasandra, Bangalore
measuring east to west and north to
south 46 ft. totally measuring 2875 sq. ft. and
bounded as follows:
East by : Private road
West by : Road
North by : Road
South by : Eeramma's property.
The building constructed in the year
1974, 1 square ACC Sheet house, walls
constructed with brick and mud, windows
and doors made out of jungle wood."
39. By Ex.P.2 rectification deed dated 24.04.1990,
property number mentioned as 225 and 226/25 is rectified as
RSYZ (new corporation No.1/1) with measurement,
boundaries, situation remaining same as in principal deed.
40. In order to establish separate identity of property,
plaintiff has also produced Ex.P.4 - endorsement issued by
SLAO, BDA dated 19.06.1998 that property bearing
Corporation No.1:1 is part of 27 guntas left out of acquisition
for formation of Kanakapalya layout. Plaintiff has also
produced Ex.P.5 - khata certificate dated 09.03.2012 issued
by BBMP assigning property ID no.62-74-1/1 to Municipal
No.1/1. Plaintiff produced Ex.P.6 - property tax paid receipt
in respect of PID No.62-74-1/1 dated 01.07.2013, and
another receipt dated 28.03.2015 as Ex.P.14.
41. In order to substantiate interference, plaintiff
produced photographs as Exs.P8 to P.10. Plaintiff also
produced Ex.P.13 - enquiry report dated 24.02.2015 by
Enquiry Officer, City Survey in respect of CTS No.1415/7
wherein Enquiry Officer observed that defendant was claiming
rights in respect of adjacent sites belonging to Iqbal Pasha
falling within boundaries of R.Sy.No.4. But in his deposition,
PW.1 stated that when plaintiff wanted to file suit against
defendant, they gave police complaint and thereafter
removed all construction material and from year 2000,
defendants have not caused any interference till date. Plaintiff
also produced notice of encroachment issued by plaintiff to
defendant and reply received from defendant as Exs.P.16 and
P.17 respectively. In Ex.P.17, while denying any
encroachment defendant denies existence of any vacant site
belonging to plaintiff and counter alleges attempt to encroach
property belonging to hospital by plaintiff. Plaintiff also
produced a drawing got prepared by defendant wherein suit
property is shown as litigation property.
42. Denying allegation of interference, defendant
sought to establish that plaintiff did not have title over suit
property by producing khata extract of PID No.62-74-1/1 in
which measurement mentioned was 2914 Sq. ft. It also
produced building sanction plan Ex.D.2, issued for
construction of building on property bearing PID no.62-74-
1/1. It further produced list of properties in layout of Society,
wherein at Sl. No.2, plaintiff was shown as owner of property
bearing PID No.62-74-1/1. Rough sketch of properties in the
layout of Society, issued by Assistant Revenue Officer, BBMP
was produced as Ex.D.9. Strangely, Ex.D.9 does not show
location of PID No.62-74-1/1. Copies of Khata extracts of
properties in the layout of Society issued by Assistant
Revenue Officer, BBMP were produced as Exs.D.10 to D.17.
None of these were in respect of PID No.62-74-1/1. In order
to establish that Sy.No.4 does not abut defendant's land, it
produced village map of Byrasandra as Ex.D.24 and copy of
survey sketch of Sy.No.5/2A and 5/2B as Ex.D.25. In order to
establish it's case that an extent of 3 guntas of Sy.No.5/2A
and an extent of 1 acre 3 guntas of Sy.No.5/2B was acquired
for providing road to it, defendant produced Ex.D.29 and D.30
- preliminary and final notifications. But thrust of defendant's
case lies in findings/directions issued by this Court in W.P.
No.578/1989 - Ex.D.28.
43. In Ex.D.28 - a public interest litigation,
declaration was sought that sites bearing nos.196, 197, 225,
226, 252 civic amenity site measuring about 250 square
yards were property of BDA and for direction to take
possession of same. Plaintiff's vendor Smt.Eeramma was
arrayed as respondent no.4 represented by her legal
representative Sri Muniyappa - respondent no.5. Plaintiff was
also party as respondent no.14.
44. After detailed examination, it was held that 27
guntas of land left out of acquisition formed a single block
lying to south of acquired land. It also held that on basis of
injunction decree obtained in O.S. No.3410/1982, original
owner - respondents no.4 and 5 therein began claiming
interest in respect of plot Nos.196, 197, 225, 226, 252 and
civic amenity sites even though they did not form a
contiguous block. Trial court also observed that on said basis,
respondent no.4 i.e. Smt.Eeramma claimed another corner
site bearing no.186 by filing O.S.No.1106/1985. It also took
note of O.S.No.3679 of 1986 filed by respondent nos.4 and 5
against BBMP seeking for injunction retraining demolition of
building in area measuring 90 feet X 120 feet on same ground
that it was part of 27 guntas left out of acquisition. In the
schedule therein, description given was Sy.No.4/A1 and
Sy.No.2/6 Byrasandra east, 1st block, Jayanagar and now
bearing Corporation No.14 and 15, 1st cross, 9th main,
Byrasandra, 1st block east, Jayanagar Bangalore. The Court
scathingly narrated modus of respondents no.4 and 5 therein
in perpetrating fraud against BDA by first obtaining injunction
decree without mentioning boundaries and thereafter
approaching BDA to identify decreetal land and on basis of
such survey sketch prepared by respondent no.13 therein,
who admitted that survey was done without referring to any
documents, trial court held that respondents no.4 and 5 did
not have any title in respect of sites claimed by them.
45. On arriving at above conclusion, trial court, taking
note possibility of innocent victims being defrauded by
respondents no.4 and 5 by executing sale deeds, observed
that these victims/purchasers would derive no valid title but
reserved liberty to them to either proceed against respondent
no.5 or to approach BDA for allotment of their respective sites
from BDA by paying market value. The court also directed
cancellation of registration of khata in the name of
respondents no.4 and 5 and consequential cancellation of
mutations and licences/plans.
46. In view of above, though this is not a suit for
declaration of title, as entire basis of plaintiff's title and
possession was not only denied, but challenged by virtue of
findings of this Court in Ex.D.28, it would be imperative for
this Court to delve into said issue briefly.
47. Admittedly, plaintiff's claim is on basis of sale
deed - Ex.P.1 executed by Smt Eeramma and others. The
recitals trace title of vendors to area left out of acquisition
during formation of Kanakapalya extension and injunction
decree of Civil Court in O.S. No.3410/1982. Schedule
property is stated to be part of Sy. No.4/A1 and in particular,
to plot No.196 and 197/47, out of which the area 'RSYZ' was
identified for sale. Peculiarly property number mentioned in
schedule is '225 and 226/25'. A careful perusal of sale deed
would reveal that this number '225 and 226/25' is not
referred to elsewhere in Ex.P1. It would also appear to naked
eye that 'this number' is typed after erasing something. There
is marked lightening of shade paper at this place. No
correction is marked or counter signed.
48. Interestingly there is recital in Ex.P1 about
demised area as 'RSYZ', without explanation about its
absence in schedule. Ex. P2 - rectification deed is executed to
replace no.'225 and 226/25' with 'RSYZ' (new Corporation
No.1/1). However, Ex.P.5 khata certificate does not mention
either 'RSYZ' or '225 and 226/25' as earlier number but
assigns PID No.62-74-1/1 to new municipal No.1/1. In my
opinion lack of explanation is far too glaring to ignore. The
measurement of suit property in Ex.P.1 is 2875 square feet,
whereas in Ex.D.1, admitted by PW.1 as khata extract of suit
property, area mentioned is 2914 Sq.ft. Only explanation on
record is about mentioning of location of suit property as in
layout of Society in Ex.P5 and Ex.D1 is stated to be ease of
identification of location.
49. Though learned counsel for plaintiff contended
that findings of this Court in Ex.D.28 judgment were not
conclusive and left scope to parties to approach BDA for
relief, it has not been the case of plaintiff that he had
approached BDA and suit property was allotted to him. There
is absolutely no evidence led to establish that after passing of
Ex.D.28 judgment, plaintiff or their vendors approached BDA
and secured relief.
50. On the other hand, evidence led by defendant
establishes that CTS No.1514/8 was divided into several parts
none of which relate to suit property. In fact, CTS number
asserted by plaintiff does not appear to be in existence in CTS
record. Reliance on enquiry report that Ex.P.13 for said
purpose by plaintiff is short lived as DW.1 has stated that
Enquiry Report was challenged by it before JDLR, who set-it
aside.
51. As observed by trial court, description of suit
property varies from 'CTS No.1514/8', 'PID No.62-74-1/1',
'RSYZ' to '225 and 226/25'. As observed above, there is
divine silence of the plaintiff on this aspect. Yet another
discrepancy unexplained by plaintiff is regarding existence of
building in suit property. While schedule in Ex.P.1 mentions
existence of building, plaintiff's deposition is that it is vacant
land. Plaintiff admits that D.2 building licence is in respect of
suit property, which grants permission for construction of
building by removing 'earlier construction'.
52. In view of above narrated facts and circumstances
and overwhelming evidence against acquisition of valid title
over suit property by plaintiff, merely on basis of khata
extract and property tax paid receipts, it cannot be held that
plaintiff was in lawful possession of suit property entitling him
for grant of discretionary relief of injunction, that too by
ignoring glaring discrepancies. Trial court has held that
plaintiff not only failed to establish title, but also failed to
establish interference, which as per above discussion would
be fully justified and does not call for any interference.
53. For foregoing reasons, I pass following:
ORDER
Appeal is devoid of merits and is dismissed with cost of
Rs.25,000/-.
Sd/-
JUDGE
Psg/rsh/clk
