Sri S Raghurama Reddy vs The Commissioner Of Police
2022 Latest Caselaw 7298 Kant

                             1



  IN THE HIGH COURT OF KARNATAKA, BENGALURU

        DATED THIS THE 23RD DAY OF MAY, 2022

                          BEFORE

   THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

               R.F.A.No.2039 OF 2005 (INJ)
BETWEEN

SRI. S. RAGHURAMA REDDY
S/O LATE K H SHAMANNA REDDY,
AGED 60 YEARS,
RESIDING AT NO 58/A, 18TH MAIN,
6TH BLOCK, KORAMANAGALA,
BANGALORE - 560 034.
                                                ...APPELLANT
(BY SRI S. SHEKAR SHETTY, ADVOCATE)

AND

1. THE COMMISSIONER OF POLICE
   INFANTRY ROAD,
   BANGALORE 560001.

2. THE SUB INSPECTOR OF POLICE
   LAW AND ORDER,
   TILAKNAGAR POLICE STATION,
   BANGALORE-78.

3. THE COMMISSIONER
   BANGALORE DEVELOPMENT AUTHORITY,
   SANKEY ROAD, KUMARA PARK WEST,
   BANGALORE-01.

4. THE JOINT COMMISSIONER,
   B.B.M.P., BANGALORE-560 001.
                                              ...RESPONDENTS
(BY SRI D.S.SHIVANANDA, AGA FOR R-1 AND R-2
    SRI K.KRISHNA, ADVOCATE FOR R-3
    SRI K.N.PUTTEGOWDA, ADVOCATE FOR R-4)
                               2



       THIS APPEAL IS FILED UNDER ORDER XLI RULE 1 AND 2
R/W SEC 96 OF CPC. AGAINST THE JUDGMENT AND DECREE
DATED 01.12.2005 PASSED IN O.S.NO.6008/1990 ON THE FILE OF
THE I ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE
(CCH-2), DISMISSING THE SUIT FOR PERMANENT INJUNCTION.

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


                         JUDGMENT

This appeal by the unsuccessful plaintiff in

O.S.No.6008/1990 is directed against the impugned judgment

and decree dated 01.12.2005 passed by the I Addl.City Civil

Judge, Bangalore (for short 'the trial court'), whereby the said

suit for permanent injunction and other reliefs filed by the

appellant - plaintiff seeking to restrain the respondents -

defendants from interfering with his possession and enjoyment

of the suit schedule immovable property was dismissed by the

trial court.

2. Heard learned counsel for the appellant and learned

HCGP for the respondents 1 and 2 - State and learned

counsel for respondent No.3 - BDA and perused the material

on record.

3. The material on record discloses that the appellant

herein instituted the aforesaid suit for permanent injunction

inter alia contending that he had right, title, interest and

possession over the suit schedule property and that neither

the 3rd respondent - BDA nor the respondents 1 and 2 - State

Police Department had any right over the same and since the

defendants were interfering with the plaintiffs possession and

enjoyment of the suit schedule property, he had filed the

instant suit.

4. The respondents 1 and 2 - defendants 1 and 2, i.e.,

the State Police Department filed their written statement

disputing the plaint averments and the alleged right of the

plaintiff as well as the identity and location of the suit schedule

property. It was contended that the suit schedule property

was acquired by the erstwhile CITB (now 'BDA'), who had

allotted the same in favour of defendants 1 and 2 on

04.09.1971, pursuant to which, possession certificate was

issued in their favour on 24.02.1973 after collecting the sital

value from defendants 1 and 2. It was therefore contended

that defendants 1 and 2 were in possession and enjoyment of

the suit schedule property and that the suit filed by the plaintiff

was liable to be dismissed.

5. Defendant No.3 - BDA filed a separate written

statement reiterating the defence of defendants 1 and 2 and

also contending that the suit schedule property which was part

of Sy.No.61 which originally measured 9 acres 12 guntas had

been acquired by the CITB and subsequently, allotted in

favour of defendants 1 and 2. It was also contended that in

view of the earlier litigation in respect of the suit schedule

property, the claim of the plaintiff was liable to be rejected. It

was contended that the suit schedule property which was

allotted in favour of defendants 1 and 2 had been notified for

acquisition but award had not been passed and the same was

under process. Thus, denying and disputing the plaint

averments, the defendant No.3 - BDA sought for dismissal of

the suit.

6. Based on the above pleadings, the trial court framed

the following issues:-

1) Whether the plaintiff proves his lawful possession of the suit property on the date of suit?

2) Whether he further proves that there is valid cause of action for the suit?

3) Whether the suit is not maintainable?

4) To what relief's, if any the parties are entitled?

         ADDITIONAL ISSUES
         1) Whether suit is not            maintainable as
             contended by 3rd defendant in his written
             statement?"

7. The plaintiff examined himself as PW-1 and Exs.P1

to P17 were marked on his behalf. The defendants -

respondents neither cross-examined PW-1 nor adduced any

oral or documentary evidence in support of their defence.

After hearing the parties, the trial court proceeded to pass the

impugned judgment and decree dismissing the suit filed by the

appellant - plaintiff who is before this Court by way of the

present appeal.

8. The only point that arises for consideration in the

present appeal is, whether the trial court was justified in

dismissing the suit filed by the appellant.

9. The undisputed material on record clearly indicates

that though the specific defence had been put forth by the

defendants with regard to their right, title, interest and

possession over the suit schedule property in their written

statements, they had neither cross-examined PW-1 nor

impeached or challenged his oral and documentary evidence.

So also, the defendants had not adduced any oral or

documentary evidence in support of their defence. In this

context, a perusal of the impugned judgment and decree, will

clearly indicate that the trial court has completely misdirected

itself in failing to consider and appreciate the unimpeached,

uncontroverted and unchallenged evidence of the plaintiff

coupled with complete and total lack of any oral or

documentary evidence adduced by the defendants, which

clearly established that the appellant - plaintiff was in lawful

and peaceful possession and enjoyment of the suit schedule

property. The trial court also failed to consider and appreciate

the well settled principle of law that the scope and ambit of a

suit for bare permanent injunction simpliciter in relation to

immovable property, was restricted and limited to adjudicating

upon the plaintiff's lawful possession and enjoyment of the suit

schedule property. In the instant case, in the absence of

cross-examination of the plaintiff (PW-1) by the defendants

who also did not adduce any oral or documentary evidence

and failed to place any material in support of their defence, the

trial court clearly erred in rejecting the claim of the plaintiff for

lawful possession of the suit schedule property, which stood

established by the material on record.

10. It is also relevant to state that the defendants -

respondents have not challenged the impugned judgment and

decree nor filed any application for permission to cross-

examine PW-1 or to adduce any additional evidence. In fact,

the various contentions urged in the synopsis filed on behalf of

3rd respondent - BDA is not only inconsistent with the defence

put forth by the BDA in its written statement but the same is

also not substantiated by any material on record. While it is

specifically contended by the BDA in its written statement that

no award had been passed in respect of the suit schedule

property alleged to have been allotted in favour of the

respondents 1 and 2, State Police Department, a completely

new contention is put forth in the synopsis by stating that the

suit schedule property had been acquired. Under these

circumstances, the various contentions urged by the

respondents in the present appeal cannot be accepted.

11. A re-appreciation and re-evaluation of the entire

material on record clearly establishes that the appellant -

plaintiff had sucessfully proved that he was in lawful and

peaceful possession and enjoyment of the suit schedule

property and since the defendats had not placed any material

to establish their alleged possession or enjoyment of the suit

schedule property, the plaintiff was entitled to a decree for

permanent injunction against the defendants. The trial court

clearly misdirected itself in failing to correctly and properly

consider and appreciate the unimpeached, uncontroverted

and unchallenged material on record which clearly establishes

that the plaintiff was in lawful and peaceful possession and

enjoyment of the suit schedule property and consequently, the

impugned judgment and decree passed by the trial court

deserves to be set aside. However, it has to be clarified that

no opinion is expressed by this Court on the rival contentions

regarding title or identity of the suit schedule property and the

suit of the plaintiffs deserves to be decreed for the limited /

restricted purpose of passing a decree for permanent

injunction in favour of the plaintiff against the defendants.

Accordingly, the point formulated in the appeal is

answered in favour of the appellant.

12. In the result, I pass the following:

ORDER

I. The appeal is hereby allowed.

II. The impugned judgment and decree dated 01.12.2005

passed in O.S.No.6008/1990 on the file of the I

Additional City Civil and Sessions Judge, Bangalore is

hereby set aside and the suit of the appellant - plaintiff

is decreed as prayed for by him.

III. It is made clear that this judgment and decree is for the

limited / restricted purpose of passing a decree for

permanent injunction simpliciter in favour of the plaintiff

in respect of the suit schedule property.

IV. All rival contentions between the parties with regard to

title and identity of the suit schedule property as

described in the plaint and as claimed by the

appellant/plaintiff and also by the

respondents/defendants are kept open and no opinion

is expressed on the same.

V. Liberty is reserved in favour of the respondents to take

appropriate steps in respect of the property allegedly

claimed by them in accordance with law and by

following due process of law.

Sd/-

JUDGE

BMC/SRL.