Sri R Muniraju vs Sri Raja Gopal Rai
2023 Latest Caselaw 5264 Kant

                                            RFA.No.1176 of 2017
                               -1-




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 4TH DAY OF AUGUST, 2023

                             BEFORE
  THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY


  REGULAR FIRST APPEAL NO.1176 OF 2017 (INJ)
Between:

Sri R.Muniraju,
S/o late Ittanadu Ramaiah,
Aged about 61 years,
Presently resident of
Rama Nilaya,
No.1,
Arehalli Village Road,
Ittamadu Main Road,
Bengaluru-560 061.                            .. Appellant

 ( By Sri D.L.Jagadish, Senir Counsel for
  Smt. Rakshitha D.J., Advocate )

And:

Sri Raja Gopal Rai,
S/o Late Narasimha Rao,
Aged about 63 years,
R/at Flat No.NA 363,
6th Floor, Vijaya Enclave,
North Block,
Sunder Ram Shetty Nagar,
Bilekahalli,
Bannerghatta Road,
Bangalore-560 076.                            .. Respondent

 ( By Sri Imran Pasha, Advocate )
                                                  RFA.No.1176 of 2017
                                 -2-




      This Regular First Appeal is filed under Section 96(1) read
with Order 43 Rule 1 of the Code of Civil Procedure, 1908,
praying to call for the relevant records in O.S.No.15619/2006
on the file of the XIII Addl.City Civil and Sessions Judge,
Bengaluru City (C.C.H.22), Mayo Hall, Bengaluru City and set
aside the impugned judgment and decree dated 24.04.2017
passed in O.S.No.15619/2006 by the XIII Addl.City Civil and
Sessions Judge, Bengaluru City (C.C.H.22), Mayo Hall,
Bengaluru City and consequently dismiss the suit and pass any
other order or orders as this Hon'ble Court deems fit in the
circumstances of the case, including the cost of the appeal, in
the interest of justice and equity.

      This Regular First Appeal having been heard through
Physical Hearing/Video Conference and reserved on 14.07.2023,
coming on for pronouncement of judgment, this day, the Court
delivered the following:

                          JUDGMENT

This is a defendant's appeal. The present

respondent as a plaintiff had instituted a suit against the

present appellant arraigning him as defendant in

O.S.No.15619/2006, in the Court of the learned

XIII Addl.City Civil and Sessions Judge, Mayohall Unit,

(CCH-22), Bangalore City, (hereinafter for brevity referred

to as `the trial Court'), seeking for the relief of permanent

injunction against the defendant restraining the defendant,

his family members, agents, henchmen etc., from

interfering with the peaceful possession and enjoyment of RFA.No.1176 of 2017

the plaint schedule property or from dispossessing the

plaintiff from the suit schedule property.

2. The summary of the plaint averments in the trial

Court was that, the plaintiff is the absolute owner in

possession of the suit schedule property, having acquired

the same under registered Sale Deed dated 01.03.1993

from one Sri B.M.Prakash, for a valuable sale consideration

of `68,000/-. The plaintiff got entered his name in the

revenue records and has been paying the property tax to

Gram Panchayath, Uttarahalli. He is in actual, physical,

peaceful possession and enjoyment of the suit schedule

property. That being the case, on the date 15.02.2006,

the defendant tried to interfere and dispossess him from

the peaceful possession and enjoyment of the suit

schedule property. The plaintiff contends that the

defendant is the stranger in respect of the suit schedule

property and he is very influential person in the locality.

Though the plaintiff approached the police, however, they

issued an endorsement stating that the dispute is civil in

nature and directed the plaintiff to approach the RFA.No.1176 of 2017

Civil Court. On the date 30.03.2006, the defendant once

again tried to dispossess the plaintiff from the suit

schedule property. This made the plaintiff to approach the

trial Court by filing the suit for permanent injunction

against the defendant.

3. In response to the suit summons served upon

him, the defendant appeared through his counsel and filed

his written statement, wherein he denied all the material

averments made in the plaint and also disputed the

existence of the suit schedule property. He contended

that when the very existence of the suit schedule property

is doubtful, the question of enjoyment, ownership and

possession upon the suit schedule property by the plaintiff

does not arise. He denied his alleged interference and

attempt to dispossess the plaintiff from the suit schedule

property on the date 15.02.2006 and on 30.03.2006. He

specifically contended that the property claimed by the

plaintiff does not exist and the plaintiff is trying to make a

claim over the property of the defendant. As such, the

plaintiff is not entitled for any discretionary relief.

RFA.No.1176 of 2017

The defendant further contended that the documents

of the plaintiff are imaginary and without any semblance

of right. The suit of the plaintiff is suppresio veri and

suggestio falsi. The defendant contended that the plaintiff

had suppressed the fact that one Sri Sundar, who is the

owner of Site No.6, Katha No.7/4, situated at Uttarahalli

Village, Uttarahalli Hobli, Bengaluru South Taluk (written

statement schedule property), delivered the possession of

the same to the defendant under the General Power of

Attorney dated 27.07.2005. The defendant being the

General Power of Attorney Holder, obtained power

connection and water supply and paying the taxes in

respect of the written statement schedule property. The

said property is a portion of Survey No.7/4, originally

owned by one Smt.Sharada Bai. After the demise of

Smt.Sharada Bai, the Khatha was changed in the name of

her husband Sri N.Srinivasappa. Sri

N.Srinivasappa formed layout in the said land and sold

Site No.6 to Mr.Sundar as per the Sale Deed dated

21.06.2004. Thus, there is no property as described in RFA.No.1176 of 2017

the plaint in Survey No.7/2. The defendant also stated

that Survey No.7 is sub-divided into Survey Nos.7/1, 7/2,

7/3 and 7/4. the plaintiff claiming himself to be the owner

of a portion of Survey No.7/2, is trying to trespass over

Site No.6 in Survey No.7/4. Stating that the plaintiff has

approached the Court with uncleaned hands, the

defendant prayed to dismiss the suit of the plaintiff.

4. Based on the pleadings of the parties, the trial

Court framed the following issues for its consideration:

"1. Whether the plaintiff proves his lawful possession and enjoyment of the suit schedule property as on the date of suit?

2. Whether the plaintiff proves alleged interference by the defendant?

3. Whether the suit in the present form is not maintainable as contended by the defendant?

4. Whether the plaintiff is entitled for the relief sought for?

5. What order or decree?"

5. In support of his plaint, the plaintiff got himself

examined as PW-1 and got produced and marked RFA.No.1176 of 2017

documents from Exs.P-1 to P-31. On behalf of the

defendant, the defendant got examined himself as DW-1

and got produced and marked documents from Exs.D-1

to D-33.

6. After hearing both side, the trial Court by its

impugned judgment and decree dated 24.04.2017,

answering issue Nos.1, 2 and 4 in the affirmative and

issue No.3 in the negative, decreed the suit of the plaintiff

and the defendant and his men, agents etc., were

restrained permanently from interfering with the

possession and enjoyment of the suit schedule property by

the plaintiff and from dispossessing the plaintiff from the

suit schedule property. Being aggrieved by the same, the

defendant-appellant has preferred the present appeal.

7. The learned counsel for the appellant (defendant)

and learned counsel for respondent (plaintiff) are

physically appearing before the Court.

8. The trial Court records were called for and the

same are placed before this Court.

RFA.No.1176 of 2017

9. During the pendency of this appeal, the appellant

filed IA.No.2/2022 under Order XLI Rule XXVII read with

Section 151 of Code of Civil Procedure, 1908 (hereinafter

for brevity referred to as `CPC'), seeking permission to

produce four documents shown in the list accompanying

the application. The respondents have filed their

objections to the said application. The said IA.No.2/2022

also was taken up along with this main appeal for its

disposal.

10. Heard the arguments of the learned counsels

from both side and perused the material placed before this

Court, including the memorandum of appeal, impugned

judgment and the trial Court records.

11. For the sake of convenience, the parties would

be henceforth referred to as per their rankings before the

trial Court.

12. Learned counsel for the defendant (appellant)

in his arguments submitted that the only question that

was to be considered by the trial Court was with respect to RFA.No.1176 of 2017

the identity of the property, however, no issue was

framed by the trial Court in that regard. He contended

that when the very identity and title of the plaintiff was in

dispute, the suit of the plaintiff for injunction was not

maintainable. The oral, as well the documentary evidence

led by the parties were not properly appreciated by the

trial Court. It ignored the contradictions in the oral and

documentary evidence of the plaintiff which resulted it in

decreeing the suit. However, he did not address his

arguments on IA.No.2/2022 filed by the appellant under

Order XLI Rule XXVII read with Section 151 of CPC.

13. Learned counsel for the respondent/plaintiff in

his arguments on IA.No.2/2022 submitted that the

documents produced are totally with respect to different

property pertaining to another suit. Those documents

were issued to vendor to the plaintiff by name one Sri

Prakash. No notice was issued to the plaintiff in that other

case also. The suit schedule property is not adjacent to the

property in sketch at document No.1. Therefore, the documents

are not related to the suit schedule property, as such, they RFA.No.1176 of 2017

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are not relevant. He also submitted that no reasons are

forthcoming for delayed production of those documents.

Upon main appeal, learned counsel for the

respondent/plaintiff submitted that the written statement

schedule property is not in existence. Plaintiff's case is

supported by the documents produced and marked by him

as exhibits. Ex.P-9 shows that Bengaluru Development

Authority (BDA) is the owner of the land in Survey No.7/4.

Exs.P-10 to P-12 shows about defendant encroaching the

other property. Ex.P-14 shows that BDA has took over the

suit schedule property. The tax paid receipts produced by

the plaintiff shows that plaintiff is in possession and

enjoyment of the property. Since BDA has acquired

Survey No.7/4 in its entirety, written statement property

does not exist. Thus, there is no dispute regarding the

identity of the property. The title of the plaintiff over the

suit schedule property is also not in dispute. With this, he

submitted that the trial Court has rightly decreed the suit

of the plaintiff.

RFA.No.1176 of 2017

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14. In the light of the above, the points that arise

for my consideration in this appeal are:

i] Whether the applicant in IA.No.2/2022 has made grounds to allow IA.No.2/2022 filed under Order XLI Rule 27 read with Section 151 of Code of Civil Procedure?

ii] Whether the plaintiff proves his lawful possession and enjoyment over the suit schedule property as on the date of the suit?

iii] Whether the plaintiff has proved the alleged interference by the defendant?

iv] Whether the judgment and decree under consideration warrants any interference at the hands of this Court?

15. The appellant has filed IA.No.2/2022 under Order

XLI Rule 27 read with Section 151 of CPC, seeking to

produce the documents which are a copy of hand-sketch

of suit property, copy of google map said to be with

respect to locality of the suit property, copy of a notice

dated 23.07.2018 shown to have been issued by a

Surveyor of land to both the parties to this appeal and two

postal receipts.

RFA.No.1176 of 2017

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In the affidavit accompanying the application, the

deponent has stated that one more suit in

O.S.No.15825/2006 was preferred by one Smt.Lalu

Ayappa against him in respect of adjoining Site No.11,

V.P. Khatha No.7/2, situated at Uttarahalli Grama,

Uttarahalli Hobli, Bengaluru South Taluk, on the file of the

learned LXXIII Addl.City Civil and Sessions Judge,

Mayohall Unit, Bengaluru (CCH-74). In the said suit,

a Court Commissioner was appointed to conduct the

survey in respect of Survey No.7/2. The Court

Commissioner has filed his report, survey sketch and map.

The said suit, after contest, has been dismissed by the

concerned trial Court. Hence, in view of the subsequent

development, it was necessary to bring the documents to

the notice of this Court. The applicant has contended that

since those documents are subsequent to filing of the

present appeal, he could not produce them at the earliest.

16. The respondent who has filed his statement of

objections to the said application has contended that the

documents now sought to be produced as additional RFA.No.1176 of 2017

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evidence are all the documents relating to certain other

survey number alleged to have been shown in respect of

some other property, for which, the respondent/plaintiff

was not a party/signatory to the same. Some of the

documents are all pertaining to the year 2018 i.e., much

later to the disposal of O.S.No.15619/2006. The

documents sought to be produced are nothing to do with

the appeal, but, to mislead this Court and to cause

harassment to the respondent. It is also contended that

since the present suit is being for perpetual injunction,

in order to prove the case, the plaintiff has to prove the

possession over the suit schedule property as on the date of

the suit. As such, the plaintiff cannot rely upon the documents

of some other suit with respect to some other property. With

this, the respondent prayed for rejection of the application.

17. As observed above, learned Senior Counsel for

the appellant addressed no points in his arguments on the

IA. under consideration. His argument was only confining

to the merits of the main appeal. Still, when the contents

of the affidavit accompanying the application is perused, RFA.No.1176 of 2017

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what it denotes is that, even according to the applicant,

the documents now sought to be produced, which are four

in number, have got no direct bearing with respect to the

plaint schedule property or the written statement schedule

property. On the other hand, those documents are said to

be with respect to another site bearing No.11 and the

alleged V.P. Khatha No.7/2 at Uttarahalli Village,

Uttarahalli Hobli, Bengaluru South Taluk.

Secondly, when those documents now sought to be

produced are perused, it only go to show that, it bears a

hand-sketch shown to have been drawn by the Surveyor

with respect to Re-Survey No.7/4. In the said sketch in

Re-Survey No.7/4, one particular property with the

boundary `A', `B', `C' and `D' is shown, calling it as a

property belonging to the plaintiff in the said

O.S.No.15825/2006. Thus, the said document has got

nothing to do with the suit schedule property. A printout

of the google map though shows an ariel view or a satellite

view of some residential area, but, a perusal of the same

throws no light regarding the description or RFA.No.1176 of 2017

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identity of the suit schedule property. The name given to

the said map in the printout appears to be not the one

generated by the google or its satellite which has created

the map, but, it must have been given by the person who

has downloaded the said picture and has taken its

printout. As such, the said map also would not be of any

avail to the appellant.

The other two documents are a copy of the notice

shown to have been issued to both the plaintiff and the

defendant in that other suit and two postal receipts. The

copy of the notice shows about fixation of the date for the

local inspection of the suit schedule property in the said

suit bearing O.S.No.15825/2006. Thus, from looking at

the documents now sought to be produced, it cannot be

taken that those documents are required to enable this

Court to pronounce the judgment or for any substantial

cause. In that background, the date of creation or

availability of the said documents become not a relevant

factor to be considered. Even though those

documents sought to be produced are shown to have RFA.No.1176 of 2017

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come into existence after pronouncement of impugned

judgment and passing of decree by the trial Court in

O.S.No.15619/2006, still, since it is noticed that those

documents are of no help for disposal of the appeal under

consideration and it is not with respect to the present suit

schedule property also, I find no requirement of those

documents for the disposal of the appeal. As

such, I do not find any reason to allow IA.No.2/2022.

18. The plaintiff who got himself examined as PW-1

in his examination-in-chief filed in the form of affidavit

evidence has reiterated the contentions taken up by him in

his plaint. In order to show that he has purchased the suit

schedule property from its previous owner one

Sri B.M.Prakash for a valuable consideration for a sum of

`68,000/- under a registered Sale Deed dated 01.03.1993,

the witness has produced the original Sale Deed dated

01.03.1993 and got it marked as Ex.P-1. The said

document shows that the plaint schedule property was

sold by said Sri B.M.Prakash in favour of the plaintiff for a

valuable consideration. The vendor in the said Sale Deed RFA.No.1176 of 2017

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has narrated as to how he became the owner of the said

property before its sale to the plaintiff. He has stated that

the property was purchased by his father Sri Munireddy

from one Sri.L.Krishnappa and others under registered

Sale Deed dated 09.04.1975. The description of the

property given in the schedule of the said document tallies

with the plaint schedule property.

To show that the said property was assessed for

Property Tax by Uttarahalli Village Panchayath, he has

produced the Tax Demand Extract at Ex.P-2, which

identify the said property as property bearing No.13, in

V.P.Khatha No.7/2 of Uttarahalli Village, as assessed by it

for property tax. The Tax Assessment List for the same

property by the same Panchayath at Ex.P-3 shows that

name of the owner of the property is shown as that of the

plaintiff. The description of the property corresponds to

the description shown in Exs.P-1 and P-2. Ex.P-4 is the

tax paid receipt with respect to the same property for the

year 2004-2005.

RFA.No.1176 of 2017

- 18 -

The Hissa Survey Sketch at Ex.P-17 and Hissa

Survey Tippani at Ex.P-18 and Survey Sketch at Exs.P-19,

P-20 and P-21, except showing that the Survey No.7 was

divided into sub-survey numbers, including Survey

Nos.7/1, 7/2, 7/3 and 7/4, would not throw much light

either as to the suit schedule property or at the written

statement property particularly.

Exs.P-22 to P-27 are the tax paid receipts for four

years i.e., from 2008-2009 to 2013-2014 with respect to

plaint schedule property. Ex.P-28 is an endorsement

shown to have been issued by Bruhat Bengaluru

Mahanagara Palike (for brevity `BBMP'), about visiting the

plaint schedule property during the pendency of the suit.

Exs.P-30 and P-31 are Encumbrance Certificates showing

the sale transaction of the plaint schedule property from

its vendor Sri B.M.Prakash in favour of the plaintiff on the

date 01.03.1993.

19. The above documents produced by the plaintiff

were not seriously disputed or objected to by the

defendant (the appellant herein) in the trial Court. On the RFA.No.1176 of 2017

- 19 -

other hand, the written statement filed by the defendant,

as well the evidence of the defendant as DW-1 does not

dispute the carving of Site bearing No.13 in Survey

No.7/2, which according to the parties is also V.P.Khatha

No.7/2 of Uttarahalli Village, Uttarahalli Hobli, Bengaluru

South Taluk. The case of the defendant is not denial of

the existence of the property bearing No.13 in Survey

No.7/2 or V.P.Khatha No.7/2, but, it is his contention that

he is the purchaser of Site bearing No.6, formed in Survey

No.7/4 of Uttarahalli Village. Thus, the defendant's

contention is of himself being a owner of Site in Survey

No.7/4, whereas, the contention of the plaintiff is of he

being in possession as a owner of a Site bearing No.13 in

Survey No.7/2.

20. In the cross-examination of PW-1, a suggestion

was made to PW-1 suggesting that Survey No.7/2 is

converted for residential purpose in the year 2004, the

witness has admitted the said suggestion as true. Further,

the witness stated that the said conversion order was

passed in his name, but, not in the name of his vendor Sri RFA.No.1176 of 2017

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B.M.Prakash. By suggesting to PW-1 in his cross-

examination that said Sri B.M.Prakash had sold that site

No.13 in Survey No.7/2 to different person/persons, the

defendant conceded the existence of a property bearing

Site No.13 in Survey No.7/2 ( V.P.Khatha No.7/2) of

Uttarahalli Village, Uttarahalli Hobli, Bengaluru South

Taluk.

Apart from the above, in the very same cross-

examination of PW-1 from the defendant's side, it was

suggested to the witness that there is RCC building

consisting of ground and first floor in Site No.13. In the

same cross-examination, it was suggested to PW-1 by the

defendant that there is compound wall and A/C sheet

house in the suit schedule property. It was also suggested

to the witness that the suit schedule property has got

water and electricity connection. Though the witness has

not admitted those suggestions as true, however, by

making those suggestions at more than one place in the

cross-examination of PW-1, the defendant has admitted

the existence of a property bearing Site No.13 in Survey RFA.No.1176 of 2017

- 21 -

No.7/2 (V.P.Khatha No.7/2) of Uttarahalli Village,

Uttarahalli Hobli, Bengaluru South Taluk.

21. To the height of the above, suggestions were

made to PW-1 in his cross-examination from the

defendant's side that the said property bearing Site No.13,

carved in Survey No.7/2, was sold by Sri B.M.Prakash to

one Sri Ramarao and his Power of Attorney Holder

Smt.Bhargavi. Later, the said sale was suggested as

made in favour of one Sri L.S.Manjunatha. Subsequently,

the very same defendant suggested to PW-1 in his very

same cross-examination that the said sale of Site No.13 in

Survey No.7/2 was made in favour of one Sri Farooq.

22. Furthermore, the defendant as DW-1 in his

examination-in-chief at one breath contended that there is

no suit schedule property in existence, in the very next

breath, he contended that the suit schedule property

bearing Site No.13 in Survey No.7/2 was sold by

Sri B.M.Prakash in favour of one Sri Ramarao. In another

breath, the very same defendant has suggested to PW-1 in

his cross-examination that the said site No.13 has been RFA.No.1176 of 2017

- 22 -

carved in Survey No.7/4. However, all these suggestions

about non-existence of the plaint schedule property,

suggesting that the said property was carved in Survey

No.7/4 and also the suggestion that the plaint schedule

property was sold to three different persons by

Mr.B.M.Prakash, were all not admitted as true by the

plaintiff.

23. Thus, the defendant blowing hot and cold

simultaneously was unable to take a specific stand either

about the existence of the suit schedule property or about

non-existence of suit schedule property. On the other

hand, he has taken three different inconsistent stands,

firstly, he alleged the said site as non-existent, secondly,

contending that the suit schedule property was sold to a

different person by Sri B.M.Prakash, which different person

also keep changing and three different names were

attributed by the defendant as the alleged purchasers of

the said property, and thirdly, the defendant has taken a

contention that the Site No.13 was carved in Survey

No.7/4.

RFA.No.1176 of 2017

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However, as observed above, none of these

suggestions were admitted as true by PW-1. On the other

hand, the defendant himself has suggested to PW-1 in his

cross-examination about carving of Site No.13 in Survey

No.7/2 and the existence of the said site. Therefore, the

contention of the defendant and the argument of learned

Senior Counsel for the appellant/defendant that the suit

schedule property bearing Site No.13 in Survey No.7/2 of

Uttarahalli Village, Uttarahalli Hobli, Bengaluru South

Taluk, is not in existence, is not acceptable. On the other

hand, the oral and documentary evidence led by the

plaintiff and the statements elicited in the

cross-examination of PW-1 and more importantly, the

suggestion made to PW-1 in his cross-examination,

establishes clearly about the existence of the plaint

schedule property with the description as given in the

plaint.

24. The defendant who got himself examined as DW-

1 though has reiterated the contentions taken up by him in

his written statement, even in his examination-in chief RFA.No.1176 of 2017

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filed in the form of affidavit evidence also, as observed

above, his contention about non-existence of plaint

schedule property and the alleged alienation of the plaint

schedule property in favour of other persons by its original

owner Sri B.M.Prakash would not hold good. On the other

hand, DW-1 in his cross-examination, apart from stating

that the RTC of Survey No.7/2 is in the name of

Sri B.M.Prakash, has expressed his ignorance about said

Sri B.M.Prakash carving several sites in Survey No.7/2.

He has also stated that the said Survey No.7/2 is

converted into non-agricultural purposes. He expressed

his ignorance about existence of Site Nos.11, 12 and 13 in

Survey No.7/2.

In the very same cross-examination, DW-1 also

stated that he has no any right and possession in Site

No.13 of Survey No.7/2. He further concedes that in the

copy of the Layout Map with respect to Survey No.7/2

produced by him as Ex.D-29, it is shown the existence of

Site No.13. He categorically stated in his cross-

examination that he has no any right in Survey No.7/2 RFA.No.1176 of 2017

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and if there are any sites in Survey No.7/2, he has no

possession on those sites. Thus, his own statement and

his own document at Ex.D-29 shows the existence of Site

No.13 in Survey No.7/2 and his statement that he has no

right with respect to said Site No.13 in Survey No.7/2 and

that if there are any sites in Survey No.7/2, he has no

possession of such sites, would all further strengthen the

case of the plaintiff and go to show that there existed the

plaint schedule property and the same is in possession of

the plaintiff.

25. The defendant has also got produced and marked

several of the documents. It is his oral evidence that land

in Survey No.7/4 of Uttarahalli Village, was also

sub-divided into sites. The said land was owned by

Sri L.Krishnappa and his wife. One Smt.Muniyamma and

Smt.Sharadamma as legal heirs of Sri L.Krishnappa, joined

by their children, formed a revenue layout in Survey

No.7/4 and sold the same to the intending purchasers in

the year 2004. The vendor to the defendant by name

Sri Sundar was also one among the purchaser, who RFA.No.1176 of 2017

- 26 -

purchased Site No.6 in survey No.7/4. It is stated by him

that Sri Sundar who executed a General Power of Attorney

in his favour (defendant) on 21.06.2004 authorising him

to represent him in respect of Site No.6. The defendant

has produced the said General Power of Attorney and got

it marked at Ex.D-1. The Sale Deed in favour of said Sri

T.S.Sundar Raj is got marked by the defendant as Ex.D-2.

The Tax Demand Register with respect to property No.6 in

Survey No.7/4 of Uttarahalli Village Panchayath standing

in the name of said Sri T.S.Sundar Raj and the Tax Paid

Receipts for the years 2006-2007, 2008-2009, 2009-2010

and 2010-2011 by Sri T.S.Sundar Raj are marked as

Exs.D-3 and D-4 respectively. The electricity bills showing

the property No.6 in Survey No.7/4 of Uttarahalli village is

produced at Ex.D-5. A Certificate of Deposit shown to

have been issued by Bengaluru Electricity Supply

Company Limited (BESCOM) and dated 31.03.2011 is

produced at Ex.D-6. The said Electricity Certificate shows

the name of the defendant, but, not the property details.

RFA.No.1176 of 2017

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The endorsement shown to have been issued by the

Bengaluru Development Authroity (BDA) dated 03.08.2010

shows that, it has not formed any sites in Survey No.7 and

its sub-survey numbers. However, it is nobody's case that

BDA has formed any sites in those survey numbers. But,

it is the case of the plaintiff that land in Survey No.7/4 was

acquired by the BDA, however, Ex.D-7 states that,

`regarding the acquisition of those survey numbers, the

applicant can collect the information from Land Acquisition

Section'.

The copies of the Partition Deed and Sale Deeds from

Exs.D-8 to D-10 are not seriously denied from the

plaintiff's side since they pertain to flow of title in the

family of late Sri L.Krishnappa, Smt.Muniyamma and

Smt.Sharadamma. That would not be of much avail to the

parties in the suit since the plaintiff has not denied the

previous ownership of the land bearing Survey No.7/4 of

Uttarahalli Village.

Though the defendant has produced a copy of the

Sale Deed dated 27.09.2006 at Ex.D-16, which shows that RFA.No.1176 of 2017

- 28 -

one Sri C.M.Farooq has sold the property akin to the

description of the suit schedule property to one

Sri K.Kamalapathi Naidu, however, the plaintiff has

disputed the same. Admittedly, except producing the copy

of the said document, the defendant has not produced

other documents to believe the alleged transaction shown

in the said Sale Deed and in the Encumbrance Certificate

at Ex.D-17.

The copies of the Sale Deeds at Exs.D-20, D-22

and D-23 are with respect to the alleged sale of property

Nos.11, 10 and 9 respectively in Survey No.7/2 of

Uttarahalli Village by Sri B.M.Prakash in favour of the

purchasers shown therein. None of these documents and

the Encumbrance Certificates produced at Exs.D-19, D-21,

D-24 and D-26 are with respect to plaint schedule

property. On the other hand, these documents produced

by the defendant himself would falsify his contention that

the plaint schedule property does not exist. His admission

in the cross-examination that the Layout Plan at Ex.D-29

is with respect to Survey No.7/2 of Uttarahalli Village and RFA.No.1176 of 2017

- 29 -

it shows the existence of the plaint schedule property

bearing property No.13 and the neighbouring sites shown

in the said Layout Plan bearing property Nos.9, 10, 11 and

14, would all go to show the existence of plaint schedule

property.

26. Therefore, the documentary evidence produced

by none else than the defendant himself corroborates the

contention of the plaintiff about the existence of the plaint

schedule property. As such also, the contention of the

defendant that the plaint schedule property does not exist,

is not acceptable. Further, in view of the fact that, except

stating that the written statement schedule property itself

is described as a plaint schedule property by the plaintiff is

bereft of any corroborative material, including any

documentary evidence. Therefore, the said contention is

also not acceptable.

27. The contention of the plaintiff apart from the one

that the plaintiff is the owner in possession of the suit

schedule property, is also that the written statement

schedule property is not in existence. The plaintiff has RFA.No.1176 of 2017

- 30 -

contended that the entire property in Survey No.7/3 and

Survey No.7/4 of Uttarahalli Village, Uttarahalli Hobli,

Bengaluru South Taluk, was acquired by the BDA, as such,

the existence of any site with `No.6' and the defendant

being its owner and in possession of the property does not

arise.

28. Apart from leading oral evidence in that regard,

the plaintiff has also got produced a Land Acquisition

Notification at Ex.P-13. The said Notification is

incomplete, as such, the Survey No.7/4 cannot be found

therein. However, a mahazar for acquisition, the

document of which is at Ex.P-14, clearly mentions the

acquisition of the property at Survey No.7/4 of Uttarahalli

village. The Notification published in Karnataka State

Gazette of the date October 8th, 2009, copy of which is at

Ex.P-15, shows the acquisition of Survey No.7/3 and

Survey No.7/4 in favour of Bengaluru Development

Authority. The contention of the plaintiff that after

acquisition of the entire land in the said Survey No.7/4, an

award was passed by the Special Land Acquisition Officer, RFA.No.1176 of 2017

- 31 -

Bengaluru Development Authority, Bengaluru, is

corroborated by Ex.P-16, which is an award copy. The

copy of register of lands notified and acquired for public

purposes and compensation paid thereof maintained by

the BDA and marked at Ex.P-29 also shows the acquisition

of the land at Survey No.7/4 of Uttarahalli Village.

These documents corroborates the evidence of PW-1

and go to establish that though the defendant claims to

have been given with written statement schedule property

bearing its alleged property No.6 in Survey No.7/4 of

Uttarahalli Village by one Sri T.S.Sundar Raj, but, the

documents discussed show that said Survey No.7/4 of

Uttarahalli Village was already acquired by BDA.

Therefore, it is clear that the defendant claims to

have purchased a site by his alleged vendor Sri T.S.Sundar

Raj of a property which was not in existence and available

for sale. Furthermore, even according to the defendant,

except the alleged General Power of Attorney at Ex.D-1,

he does not possess any other registered document,

including a registered Sale Deed in his favour to show his RFA.No.1176 of 2017

- 32 -

alleged title over the written statement schedule property.

A such also, it go to show that the plaintiff by leading both

oral and documentary evidence, has proved both the

existence of the plaint schedule property as well his

possession thereof as on the date of institution of the suit,

whereas, the defendant neither could able to show the

existence of the written statement schedule property nor

could able to establish that the plaintiff is claiming the

written statement schedule property as the plaint schedule

property. Therefore, the argument of learned Senior

Counsel that there is dispute with regard to identity of the

property, as such, the matter requires to be remanded and

that the plaintiff has to institute a suit for declaration of

title by virtue of the judgment of Hon'ble Apex Court in

Anathulla Sudhakar -vs- P.Buchi Reddy (Dead) by LRs

and others, reported in (2008) 4 SCC 594, is not

acceptable.

29. On the other hand, the argument of learned

counsel for the respondent/plaintiff that defendant has

been fighting for a non-existent site and claiming plaint RFA.No.1176 of 2017

- 33 -

schedule property as his site having no basis to sustain

the said claim, is acceptable. Thus, since the plaintiff has

established that he is in possession of plaint schedule

property as on the date of institution of the suit, the

finding of the trial Court on the same lines in that regard

cannot be found fault with.

30. It is the plaint averment, as well the evidence

of the plaintiff that the defendant having no manner of

right, title or interest over the plaint schedule property,

came near the suit schedule property on 15.02.2006 and

attempted to dispossess the plaintiff from his possession

and tried to interfere with the possession of the plaintiff

over the plaint schedule property. It is also his plaint

averment, as well his evidence that, he lodged a complaint

with the jurisdictional police, however, the police gave an

endorsement to him stating that the alleged incident

involves a civil dispute, as such, they cannot register a

case. In that regard, the plaintiff has produced the

complaint, with the police endorsement therein at

Ex.P-5, which shows that, alleging the interference by the RFA.No.1176 of 2017

- 34 -

defendant in the plaint schedule property on 15.02.2006,

the plaintiff has submitted a complaint to the police,

however, the Subramanyapura Police Station has endorsed

on the complaint that, after verification, they noticed that

it is a civil dispute, as such, a C.Misc.No.104/2006 was

registered. Ex.P-6 is an endorsement by the police a week

after their endorsement on Ex.P-5, stating that their

enquiry revealed that dispute was civil in nature, as such,

the parties were directed to settle the matter in a Civil

Court of Law.

31. This oral evidence, corroborated by the

documentary evidence of the plaintiff, go to show that the

defendant has interfered in the peaceful possession of the

plaint schedule property by the plaintiff, as such, the

plaintiff is entitled for the relief of permanent injunction as

prayed for. Since it is considering both oral and

documentary evidence placed before it in their proper

perspective, the trial Court has arrived at appropriate

finding and decreed the suit of the plaintiff, granting him RFA.No.1176 of 2017

- 35 -

the relief of permanent injunction, I do not find any error

warranting any interference in it.

32. Accordingly, I proceed to pass the following:

ORDER

[i] IA.No.2/2022 filed under Order XLI Rule 27

read with Section 151 of Code of Civil Procedure,

stands rejected.

[ii] The Appeal filed by the defendant/appellant

stands dismissed as devoid of merits.

The parties to bear their own costs.

Registry to transmit a copy of this judgment along

with the trial Court records to the concerned trial Court,

immediately.

Sd/-

JUDGE

bk/