A T Ganesh vs Sri Ningegowda
2022 Latest Caselaw 5325 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 24TH DAY OF MARCH, 2022

                      BEFORE

        THE HON'BLE MR.JUSTICE R.NATARAJ

 REGULAR SECOND APPEAL NO.487 OF 2022 (INJ)


BETWEEN:


A T GANESH
S/O THIMMAIAH GOWDA,
AGED ABOUT 44 YEARS
R/AT SRI LAKSHMI VENKATESHWARA
ENTERPRISES, K M ROAD,
CHIKKAMAGALURU 577 901.
                                     ...APPELLANT

(BY SRI. SACHIN B.S., ADVOCATE)


AND:


SRI NINGEGOWDA
S/O SIDDE GOWDA
AGED ABOUT 32 YEARS
R/AT KULARAHALLI VILLAGE
MARLE POST
CHIKKAMAGALURU -577 901.
                                   ....RESPONDENT


     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908
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AGAINST THE JUDGMENT AND DECREE DATED 06.10.2020
PASSED IN R.A NO.30/2020 ON THE FILE OF THE
PRINCIPAL   SENIOR    CIVIL  JUDGE    AND   CJM,
CHIKKAMAGALURU, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DATED 07.03.2020
PASSED IN O.S NO.42/2011 ON THE FILE OF THE III
ADDITIONAL CIVIL JUDGE AND JMFC, CHIKKAMAGALURU.


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


                           JUDGMENT

This appeal is filed by the plaintiff in O.S.

No.42/2011 on the file of the III Additional Civil Judge and

JMFC., Chikkamagaluru, challenging the divergent

Judgment of the Principal Senior Civil Judge and CJM.,

Chikkamagaluru in R.A. No.30/2020, by which the First

Appellate Court allowed the appeal and reversed the

Judgment and Decree passed by the Trial Court in O.S.

No.42/2011.

2. The parties shall henceforth be referred to as

they were arrayed before the Trial Court. The appellant

herein was the plaintiff while the respondent herein was

the defendant before the Trial Court.

3. The suit filed in O.S. No.42/2011 was for

perpetual injunction in respect of a vacant site bearing

Municipal Assessment No.7776/69/1 measuring 30 feet x

65 feet situate at Nariguddanahalli, Jyothinagar post,

Chikkamagaluru. The plaintiff claimed that he was the

absolute owner in possession and enjoyment of the said

property, he having purchased it from Mr. Zulfikar Ali in

terms of a sale deed dated 25.05.2009. He claimed that

he was in possession of this property from the date of its

purchase and he had raised a loan on the suit property by

mortgaging it to Syndicate Bank, Chikkamagaluru, on

01.12.2010. He further claimed that the defendant though

having no manner of right, title or interest over the suit

property, attempted to trespass and encroach into the suit

property and when questioned, the plaintiff threatened the

defendant with dire consequences. Thus, the plaintiff

sought perpetual injunction against the defendant.

4. The defendant contested the suit and filed his

written statement denying the averments of the plaint. He

submitted that his father, Sri Siddegowda, had purchased

the property measuring 30 feet x 60 feet in site No.15

from Sri Neelaiah in terms of a sale deed and that the said

site was carved out of Sy. No.507/1 of Hiremagaluru

village which was lying within the limits of Beekanahalli

Mandal Panchayat and now within the limits of

Chikkamagaluru city and was assigned municipal

No.7783/74/A. He claimed that after deducting the road

margin, the property mentioned in the khata was

30x(53+60)/2 feet and the khata of the property stood in

the name of his father. He further claimed that the

plaintiff in collusion with others had created documents to

grab the site of his father and that at no point of time, the

plaintiff was in possession of the suit property. He also

claimed that there is no property in existence as stated in

the plaint and that he and his family members were in

possession of the property. He further contended that the

measurement of the property mentioned in the plaint and

its boundaries were not correct and therefore, prayed for

dismissal of the suit.

5. Based on these rival contentions, the Trial

court framed the following issues:

"1. Whether the plaintiff proves that he is in possession and enjoyment of the suit schedule property?

2. Whether the plaintiff proves that the alleged interference from the defendant?

3. Whether the plaintiff is entitled for relief for permanent injunction?

4. What order or decree?"

6. The plaintiff was examined as PW.1 and he

marked documents as Exs.P1 to P10. He also adduced the

evidence of a witness as PW.2. On the other hand, the

defendant was examined as DW.1 and he marked

documents as Exs.D1 to D14.

7. At this stage, it is relevant to note that the

father of the defendant had also filed the suit in O.S.

No.388/2013 against the plaintiff in the present suit for

perpetual injunction and the said suit was decreed by the

Trial Court in terms of the Judgment and Decree dated

07.03.2020, which was the subject matter of challenge in

R.A. No.28/2020 preferred by the plaintiff in the present

suit. The First Appellate Court in terms of its Judgment and

Decree dated 06.10.2020, dismissed the said appeal and

the same was confirmed by this Court in R.S.A

No.481/2022.

8. Based on the oral and documentary evidence,

the Trial Court held that though the defendant denied the

ownership and possession of the plaintiff over the suit

schedule property, he did not challenge the sale deed

(Ex.P2) executed in favour of the plaintiff before any Court

of law. The Trial Court drew a presumption under Section

49 of the Registration Act, 1908 and held that all official

acts would be done in accordance with law. The Trial

Court further held that the property claimed by the plaintiff

and defendant were different as the site numbers were

different and the assessment numbers were also different.

The Trial Court relied upon the evidence of PW.2 - Bank

Manager, who deposed that before advancing any loan on

any property, they would conduct a spot inspection. The

Trial Court held that since the suit property was a vacant

site, possession ordinarily followed title and since the

plaintiff had produced documents to establish his title as

well as his possession, it decreed the suit.

9. Being aggrieved by the aforesaid Judgment

and Decree, the defendant filed R.A.No.30/2020 before the

First Appellate Court.

10. The First Appellate Court secured the records

of the Trial Court, heard the learned counsel for the parties

and framed the following points for consideration:

"1.Whether the appellant/defendant has established that the trial court has erred in decreeing this suit in view of the decreetal of the suit in O.S.No.388/2013 filed by his father?

2.Whether appellant/defendant has established that without identification of this property the trial court has erred in decreeing this suit?

3.Whether the judgment and decree of the trial court suffers from any illegality or irregularity

and as such calls for interference by this court in this appeal?

4. What order or decree?"

11. The First Appellate Court perused the RTC

extract at Ex.D10 which indicated that Sri Neelaiah was

the owner in possession and enjoyment of 01 acre 20

guntas of land in Sy. No.507/1. It relied upon the

mutation extract at Ex.D11, which indicated that this land

was granted in favour of Sri Neelaiah by the Land Tribunal,

Chikkamagaluru. It further found from Ex.D1 that Sri

Neelaiah had sold the property to the father of the

defendant in terms of the sale deed dated 08.12.1993. It

perused the evidence of PW.1, who deposed that he was

not aware of the original survey number of the land where

the suit schedule property was situate. He admitted that

he had not enquired about the survey number where the

site was located and its earlier owners. The First Appellate

Court noted that on the eastern side of the suit property,

there was a church compound which lay within Sy.

No.507/2. In that view of the matter, the First Appellate

Court held that the sale deed (Ex.P2) in favour of the

plaintiff was much later than the sale deed (Ex.D1) in

favour of the father of the defendant. Therefore, it held

that the contention of the defendant that the suit property

lay within Sy. No.507/1 was probable and that he was the

owner of the suit property having purchased it at an

earliest point of time. The First Appellate Court held that

Ex.D1 in favour of the father of the defendant was

executed in the year 1993 while the sale deed in favour of

the vendor of vendor of the plaintiff was executed in the

year 1997. Therefore, it held that unless the plaintiff

established the title of his vendor, the case of the plaintiff

was not believable. The First Appellate Court held that

both the plaintiff and the defendant were litigating over the

same site. It further held that the judgment of the Trial

Court that the defendant had not challenged the sale deed

(Ex.P2) executed in favour of the plaintiff and therefore

the plaintiff was entitled to perpetual injunction was an

error apparent on the face of the record and hence,

allowed the appeal and dismissed the suit.

12. Being aggrieved by the aforesaid Judgment

and Decree, the plaintiff has filed this Regular Second

Appeal.

13. The learned counsel for the plaintiff/appellant

submitted that the property of the plaintiff was different

from the property of the defendant and therefore, the First

Appellate Court ought to have decreed the suit.

14. In a case filed for perpetual injunction based

on title, the plaintiff is bound to establish his title to the

suit property. In the event of the defendant challenging

the title of the plaintiff based on his own title, it was

incumbent upon the plaintiff to have sought for declaratory

reliefs. This is also the law declared by the Hon'ble Apex

Court in the case of Anathula Sudhakar vs. P. Buchi

Reddy (dead by LRs.) and Others [(2008) 4 SCC 594].

The plaintiff, therefore, could not have maintained a mere

suit for injunction. Even otherwise, the boundaries of the

property claimed by the plaintiff and the defendant when

compared, would indicate that the eastern boundaries of

both the properties was the church compound which

invariably was in Sy. No.507/2. If that be so, the sketch

produced by the defendant at Ex.D14 disclosed that land/s

in Sy. No.507/2 and 507/1 are located adjacent to each

other. Ex.D6 was the revenue record of the land in Sy.

No.507/2 which disclosed that the said property was

owned by the Bishop of the Church. In that view of the

matter, the property claimed by the defendant

undoubtedly lay within Sy. No.507/1. If that be so, it was

incumbent upon the plaintiff to establish that the suit

property lay within a different Survey number other than

Sy. No.507/1. Contrarily, it is found that the suit property

claimed by the plaintiff was bound on the east by the

Bishop house compound and west by road. This in

comparison with the sale deed of the defendant at Ex.D1

would indicate that his property also was bound on the

east by: Church compound and west by: road. Therefore,

it is probable that the property claimed by both the

plaintiff and defendant were one and the same. If that be

so, the plaintiff cannot claim any injunctive relief against

the defendant as the documents reveal that it is the

defendant who is the prior owner of the suit property.

15. In that view of the matter, the First Appellate

Court has rightly held that the plaintiff has not made out a

clear case that he is in possession of the suit schedule

property and therefore, the First Appellate Court was

justified in dismissing the suit.

16. In addition, this Court while disposing off

R.S.A. No.481/2022, had upheld the right of the

defendant's father in respect of the property which is in

dispute and therefore, this Appeal lacks merit and is

dismissed. The impugned Judgment and Decree of the First

Appellate Court is upheld.

17. It is, however, open for the plaintiff to

establish his title in respect of his property in accordance

with law, in which event, he is entitled to raise all defences

and any observation made by this Court will not affect the

decision of the said case on merits.

The pending interlocutory application stands

disposed off.

Sd/-

JUDGE

sma