Sri Suresh vs Smt Sharadamma
2023 Latest Caselaw 6016 Kant

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 29TH DAY OF AUGUST, 2023

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                 M.F.A.NO.2921/2023 (CPC)

BETWEEN:

SRI SURESH, S/O. LATE P. NANJAPPA
AND SMT. SHARADAMMA
AGED ABOUT 42 YEARS
R/AT NO.206, NEAR BUS STOP
KOTHANURU VILLAGE
BANNERGHATTA ROAD
8TH PHASE, J.P NAGAR
BENGALURU-560 076                             ...APPELLANT

(BY SRI M.S. CHANDRASHEKAR, ADVOCATE)

AND:

1. SMT. SHARADAMMA
   W/O. LATE RAMAKRISHNAPPA M.
   R/AT NO.10, 15TH CROSS
   4TH MAIN, SAMPANGIRAMA NAGAR
   BENGALURU-560 027

2. SRI. SATHISH N.
   S/O. LATE NAGARAJ
   AGED ABOUT 47 YEARS
   R/A NO.13/1, 1ST CROSS
   SWASTHI ROAD, SHANTHINAGAR
   BENGALURU-560 027                        ... RESPONDENTS

(BY SRI MAHESH KIRAN SHETTY, ADVOCATE)
                                      2



      THIS MFA IS FILED UNDER SECTION 104 R/W O.43 RULE
1(r) OF CPC, AGAINST THE ORDER DATED 21.04.2023 ON
I.A.NO.1 IN O.S.NO.1078/2023 ON THE FILE OF THE XXIX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
AND ETC.

    THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT   ON   21.08.2023, THIS  DAY,  THE  COURT
PRONOUNCED THE FOLLOWING:

                          JUDGMENT

This appeal is filed challenging the order dated 21.04.2023

passed on I.A.No.1 in O.S.No.1078/2023 on the file of XXIX

Additional City Civil and Sessions Judge, Bengaluru.

2. The factual matrix of the case of plaintiff before the

Trial Court that the plaintiff is the owner of the suit schedule

property and he got the same from his mother - Smt.

Sharadamma under the registered gift deed dated 11.08.2022.

The defendants being the strangers are trying to obstruct the

plaintiff from digging a bore-well and they also trying to trespass

into the suit schedule property. It is the case of the plaintiff that

the suit in O.S.No.1466/2022 is filed before the Principal Civil

Judge, Bengaluru Rural District against K R Gangadhar and Jai

Shankar in respect of the property bearing No.815/6/6

measuring east to west 200 square feet and north to south 75

feet. The property of the plaintiff and the defendants are

different. The property of the defendants is not at all in

existence. It should be southern side of Maramma Temple. The

defendants, taking the advantage of the pendency of the suit in

O.S.No.1466/2022, are trying to dispossess the plaintiff from the

suit schedule property and hence, the plaintiff has filed a suit

seeking for the relief of permanent injunction.

3. In pursuance of the notice, the defendants have

appeared and filed the statement of objections contending that

the property falls within the rural area. The plaintiff has filed the

suit in respect of the property bearing No.47 measuring 1940.25

square feet. The plaintiff has suppressed the material facts as to

pendency of the suit in O.S.No.1466/2022 wherein temporary

injunction has been granted and the defendants are in peaceful

possession and enjoyment of the property. The Civil judge,

Bengaluru Rural District also passed an order directing the

jurisdictional police to provide protection and also implement the

orders of the Court. The defendants are the owners of the suit

schedule property measures about 200 x 75 feet. The flow of

title has been narrated since 1927. The measurement of the suit

schedule property is given as 1540.25 square feet but the

plaintiff claims the measurement as 1940.25. The measurement

in the sale deed dated 17.04.1988 and the gift deed are

different. Hence, prayed the Court to reject the application.

4. The Trial Court having heard the counsel for the

respective parties answered the points which have been

formulated as negative and rejected the application filed under

Order XXXIX Rule 1 and 2 of CPC and hence, this miscellaneous

first appeal.

5. The main contention of the counsel for the appellant

before this Court that Trial Court has committed an error in

rejecting the application and failed to appreciate that the suit

schedule property in O.S.No.1078/2023 and the suit schedule

property in O.S.No.1466/2022 are two separate properties and

have no nexus to each other. The Trial Court has also failed to

appreciate that the suit filed in O.S.No.1466/2022 is not at all

maintainable on the ground of territorial jurisdiction and the

respondents have suppressed the said fact. The Trial Court

committed an error in considering cardinal principles of

temporary injunction even though the appellant/plaintiff has

demonstrated that there is a prima facie case and balance of

convenience lies in his favour and if injunction is not granted, it

cause hardship to the plaintiff but the Trial Court failed to

exercise the discretionary relief and committed an error in

coming to the conclusion that the suit is a counter blast to the

suit filed by the respondents in O.S.No.1466/2022 and also fails

to take note that the suit schedule property is different property

and the Trial Court committed an error in coming to the

conclusion that the appellant/plaintiff has not made out any

prima facie case.

6. The counsel would vehemently contend that the suit

schedule property originally belongs to Venkataramanachar and

Muniyappa and they have purchased the same on 09.10.1950

and in turn they have sold the same on 16.03.1959 in favour of

Nanjundappa son of Munishamappa and the property morefully

described as Kaneshumari No.43 and in turn, the Nanjundappa

sold the property in favour of D Sundar vide sale deed dated

28.06.1971 wherein also reference was made that property was

purchased on 10.03.1959. In turn, the wife of late D Sundar

executed the sale deed in favour of Nanjamma on 07.04.1998 in

favour of Sharadamma who is the mother of the plaintiff. The

mother of the plaintiff has executed the gift deed in favour of the

plaintiff on 11.08.2022 and also executed another gift deed in

favour of the brother of the plaintiff and the total extent of the

property is 4095 square feet and the plaintiff got 1940.25 square

feet and his brother got remaining extent of 2154.75 square feet

through another gift deed and there is no any discrepancy in

mentioning the total extent of the property.

7. The counsel also brought to notice of this Court that

when the property was purchased by the mother of the plaintiff,

all the revenue documents were transferred in her name and

subsequent to the gift deed, the revenue documents of the said

property was transferred in favour of the plaintiff and thereafter,

the plaintiff also taken electricity connection in respect of the

said suit schedule property and he also dug the bore-well and no

dispute with regard to the identity of the property. The

photographs produced before the Court also clearly depicts that

he had dug the bore-well in the suit schedule property, inspite of

it, the Trial Court has committed an error in rejecting the

application.

8. The counsel also brought to notice of this Court that

the father of Ramakrishnappa had already sold the property vide

sale deed dated 25.03.1953 and the said document was

suppressed by the said Ramakrishnappa and he had executed

the gift deed in favour of his wife in the year 2018 and hence,

the said Ramakrishnappa was not having any title to convey any

right in favour of his wife Sharadamma and now based on the

said concocted and created document of gift deed, the

defendants are claiming right in respect of the suit schedule

property and the said sale deed is also produced before the

Court and when the defendants are not having any right in

respect of the suit schedule property and also they specifically

contend in the written statement that the suit schedule property

is different from what they are claiming the right over the

property, the Trial Court committed an error in rejecting the

application.

9. The counsel for the respondents in his arguments he

would vehemently contend that the property was sold on

04.01.1927 in favour of Sonnappa S/o Muniyappa by one

Timmaiah S/o Puttaiah and in turn he had sold the property in

favour of Munivenkatappa S/o Venkataramappa on 13.04.1939

and he died intestate and his son Ramakrishnappa succeeded to

the property of Munivenkatappa and he in turn executed the gift

deed in favour of defendant No.1 that is Sharadamma in the

year 2018. The counsel also would vehemently contend that

based on the said document, katha also transferred and also

injunction suit was filed in O.S.No.1466/2022 wherein the

brother of the plaintiff is also a party to the suit, granted ad-

interim injunction against the brother of the plaintiff and he has

not claimed that his brother is the owner of the suit schedule

property. The counsel would vehemently contend that

temporary injunction was granted on 31.01.2023 and police

protection was also given in the month of February. The counsel

also would vehemently contend that plaintiff claims the right in

favour of property No.43 and there is no any document to show

that how he claimed the right over property No.47 wherein

schedule of the said properties are different. The counsel also

would vehemently contend that survey sketch is also clearly

depicts that the property belongs to the defendants and schedule

also not tallies with each other and the plaintiff has not proved

the possession over the suit schedule property and the

documents are created in this miscellaneous first appeal and

hence, the case of the plaintiff cannot be believed.

10. In reply to the arguments, the counsel for the

appellant would vehemently contend that the defendants are

claiming 15000 square feet property but there is no document to

prove the same. When the property was sold and not retained

any property, the question of gifting the property by

Ramakrishnappa does not arise since his father had already sold

the property vide sale deed dated 25.03.1953 itself and by

creating the documents, filed the frivolous suit in

O.S.No.1466/2022.

11. The counsel in support of his arguments he relied

upon the judgment of the Andhra Pradesh High Court reported in

2020 0 SUPREME (AP) 921 in the case of TOUFIQ ALL

MIRZA vs BADERUNNISA wherein the Court held that the

question that falls for consideration is as to whether any prudent

person would have entered into an agreement of sale with a

person who has admittedly no title to the property since the

respondent claims that they have executed a sale agreement.

The counsel also relied upon the judgment of the Delhi High

Court reported in 2017 O SUPREME (DEL) 4063 in the case of

NEERA KHANNA vs GOVERNMENT OF INIDA AND OTHERS

wherein the Court held that no fault can be found with the

aforesaid reasoning and conclusion of the trial Court because

fraud vitiates everything. A person who had no title cannot pass

a title better than what he had and therefore, no relief can be

granted. The counsel also relied upon the judgment of the High

Court of Delhi reported in 2018 O SUPREME (DEL) 2305 in the

case of YOGENDER KUMAR AND ANOTHER vs RAJENDER

KUMAR AND OTHERS wherein also an observation is made that

a person who himself has no title cannot convey title to

transferee. The counsel also relied upon the judgment of the

High Court of Rajasthan reported in 2006 0 SUPREME (RAJ)

727 in the case of RAKHELI BAI vs PYARE LAL wherein also

the Court held that the person who has no title, cannot get the

decree for injunction against the person who is in occupation,

therefore, the substantial questions of law is decided

accordingly. The counsel also relied upon the judgment reported

in 2006 0 SUPREME (SC) 584 and brought to notice of this

Court paragraph 6 wherein an observation is made that the

attempt had been to identify the suit property with reference to

the boundaries and the Commissioner has identified that

property with reference to such boundaries. Even if there was

any discrepancy, normally, the boundaries should prevail. The

counsel also relied open the judgment of this Court reported in

2020 0 SUPREME (KAR) 1664 in the case of H NAGANNA vs

MARILINGE GOWDA SINCE DEAD BY LRS wherein an

observation is made that where the property sold is part of a

definite survey number and in the sale deed the exact

boundaries of the part sold are given and the area mentioned is

only approximate, the description by boundaries should prevail

in ascertaining the actual property sold under the document. The

counsel also relied upon the judgment of this Court reported in

2021 0 SUPREME (KAR) 161 in the case of DR.JAYASHEELA

VENU AND OTHERS vs A.J.F.D'SOUZA AND OTHERS wherein

an observation is made that by taking note of the document, the

plaintiffs have also established that defendant Nos.2 and 3 have

illegally invoked the provisions of Section 321 of the KMC Act

when admittedly the compound wall constructed by the plaintiffs

was well within their property. The counsel also relied upon the

judgment of the Apex Court reported in APPEAL (CIVIL)

No.6191/2001 DATED 25.03.2008 in the case ANATHULA

SUDHAKAR vs P BUCHI REDDY (DEAD) BY LRS AND

OTHERS and brought to notice of this Court paragraphs 12, 13,

14 wherein it is held that when the property is a vacant site,

which is not physically possessed, used or enjoyed, in such

cases, the principle is that possession follows title. If two

persons claim to be in possession of a vacant site, one who is

able to establish title thereto will be considered to be in

possession as against the person who is not able to establish

title. The counsel referring these judgments would vehemently

contend that when the property was already sold in the year

1953, the very execution of the document of gift deed by the

husband in favour of his wife who had no title to convey any

better title does not arise and these are the aspects not

considered by the Trial Court and hence, prayed the Court to

allow the application filed under Order XXXIX Rule 1 and 2 of

CPC setting aside the order of the Trial Court.

12. Having heard the learned counsel appearing for the

respective parties and also the principles laid down in the

judgments referred supra, the points that would arise for the

consideration of this Court are:

1. Whether the Trial Court has committed an

error in dismissing the application filed under

Order XXXIX Rule 1 and 2 read with Section

151 of CPC?

2. What order?

Point No.1:

13. The case of the plaintiff before the Trial Court is that

the plaintiff got the suit schedule property to the extent of

1940.25 square feet in respect of earlier old V.P. katha No.47

present BBMP katha No.1017/60/47/47 measuring north to

south towards eastern side 47 feet and towards western side

52.5 feet and in all north to south 42.7/2 feet and east to west

39 feet and all together measuring 1940.25 square feet. It is

the case of the plaintiff that his mother had executed a gift deed

on 11.08.2022 and hence, the plaintiff is the absolute owner in

possession and enjoyment of the suit schedule property. It is

also his contention that the property originally measuring 4095

square feet along with the building construction thereon was

belonging to his mother Sharadamma as she acquired the same

through a registered sale deed dated 07.04.1998 and katha was

standing in her name and she also executed one more gift deed

in favour of the brother of the plaintiff and the documents of the

property which was gifted to him are transferred in his name and

thereafter he has taken the electricity connection and he dug the

bore-well. In order to show the same, photograph is also

produced before the Court.

14. It is also the claim of the plaintiff that his mother

had purchased the property from Nanjamma who is the wife of D

Sunder who had acquired the property in the year 1959 and

prior to that her vendor had purchased the said property in the

year 1950 and he had perfected the title also. The counsel also

produced the document dated 25.03.1953 and would

vehemently contend that Munivenkatappa who is the father of

the said Ramakrishnappa had sold the property in favour of

Nanjappa son of Kaverappa and the question of executing the

gift deed by the son of Munivenkatappa that is Ramakrishnappa

in favour of the wife does not arise since he has not having any

right to sell the property. No doubt, this document was not

placed before the Trial Court and for the first time produced the

same before this Court. Though respondents claim that property

originally sold in favour of Sonnappa by one Puttaiah on

04.01.1927 and subsequently very same property was sold on

13.04.1939 in favour of Munivenkatappa and Munivenkatappa in

turn sold the property on 25.05.1953 in favour of Nanjappa

wherein the reference of earlier document dated 13.04.1939 also

mentioned and in the earlier document also same registration

number is mentioned. When such being the case, the claim of

the defendants that they are having right in respect of the suit

schedule property based on the gift deed executed by

Ramakrishnappa in favour of his wife Sharadamma in the year

2018 cannot be sustainable. The said document has been

suppressed by the defendant-Sharadamma.

15. On perusal of the gift deed executed in favour of

Sharadamma by her husband Ramakrishnappa, there is no

reference of document dated 25.03.1953 which was sold by the

father of the said Ramakrishnappa has been stated and the

same has been suppressed before the Trial Court. No doubt, the

respondent also filed a suit in O.S.No.1466/2022 wherein ad-

interim injunction was also granted in favour of the respondents

and having perused the said plaint averments wherein a

document of 1927 was referred in paragraph 4 and also in

paragraph 5 the document of sale deed dated 13.04.1939 was

referred but suppressed the fact of sale made vide sale deed

dated 25.03.1953 and in paragraph 6 it is pleaded that gift deed

was executed by Ramakrishnappa on 05.01.2018. No doubt, an

order of ad-interim injunction was granted in O.S.No.1466/2022

and the same is not vacated, wherein the schedule is mentioned

as katha No.815/6/6 measuring east to west 200 feet and north

to south 75 feet and to the extent of 200 x 75 also no

explanation on the part of the defendants that how they got the

said measurement. But the very material placed before the

Court by the plaintiff clearly discloses that the mother of the

plaintiff had purchased the property in the year 1998 to the

extent of 4095 square feet and she had executed the gift deed in

favour of the plaintiff on 11.08.2022 to the extent of 1940.25

square feet and also other document of gift deed executed by

the mother in favour of the brother of the plaintiff is that to the

extent of 2154.75 square feet and having considered the said

measurements, it comes to 4095 square feet which the mother

had purchased the property. But the Trial Court while passing

an ad-interim order comes to the conclusion that the defendants

have already obtained an order of injunction in

O.S.No.1466/2022 but the Trial Court fails to take note of the

fact that in the written statement the defendants themselves in

paragraph 9 categorically stated that the schedule indicated in

the plaint as well as the schedule in respect of the property

where the defendants are claiming as owners are all together

different and as such the plaintiff unless and until come with

clean hand and describe his property correctly he cannot claim

his right, title and interest over the property and rejected the

application. But the Trial Court while passing the said order

opined that the present suit is a counter blast against the suit

filed by the defendants. I have already pointed out that when

the defendants are claiming their right based on the gift deed

wherein the very donor has not having any right to execute any

such gift deed since his father had already sold the property on

25.03.1953 itself, the same does not convey any title and the

judgments which have been quoted by the appellant are aptly

applicable to the case on hand wherein it is observed that when

the person who is not having title, cannot convey any title or

possession in favour of others.

16. No doubt, the suit is filed only for bare injunction

and the plaintiff has established the documents from 1950

onwards that is the original vendor, when the property was sold

in the year 1959 categorically mentioned that he had purchased

the property in the year 1950 and he had sold the same in the

year 1959 and in turn the next vendor of the plaintiff also

purchased the property in the year 1971 and the wife of the

vendor i.e., Nanjamma executed the sale deed in favour of

Sharadamma in the year 1998 and the said Sharadamma in turn

executed the gift deed of the property measuring 1940.25

square feet in favour of the plaintiff and also his brother but the

Trial Court fails to take note of the said fact into consideration

and instead of that carried away by taking into note of the fact

that ad-interim injunction has been granted in

O.S.No.1466/2022 and also taken note of the fact that in the

said case Jai Shankar who is the brother of the plaintiff is a party

and not the plaintiff and an observation made by the Trial Court

is that the present suit is filed just counter blast to the suit of

the defendants and the said observation is an erroneous

approach and the Trial Court ought to have considered the claim

made by the plaintiff based on the title as well as the possession

of the suit schedule property. The documents produced before

the Court also clearly discloses that when the property was sold

in favour of Sharadamma vide sale deed of the year 1998, all the

revenue documents were transferred in the name of

Sharadamma that is the mother of the plaintiff by BBMP on

12.01.2011 itself and also collected the tax till 2022 i.e., till the

execution of the gift deed in favour of the plaintiff as well as his

brother. The plaintiff also got transferred the katha in his favour

based on the gift deed and also obtained the electricity

connection and bill is also produced from the period from

13.02.2023 to 13.03.2023 to prove his case and the description

shown in the plaint tallies with the gift deed executed by the

mother to the extent of 1940.25 square feet and also the other

gift deed executed in favour of the brother of the plaintiff to the

extent of 2154.75 square feet and the same tallies with the total

extent of 4095 square feet with which the property purchased by

the mother of the plaintiff and the same is described in the sale

deed of the mother of plaintiff dated 07.04.1998 wherein total

measurement is mentioned as 4095 square feet and this sale

deed is of the year 1998. Subsequent to the gift deed and as on

date of the suit, the revenue documents issued by BBMP are

stands in the name of the plaintiff with regard to the suit

schedule property. When such being the material on record, the

Trial Court ought not to have rejected the application. The

observation made by the Trial Court while rejecting the

application is that the sale deed contradicts from the claim of the

plaintiff and the plaintiff has argued that the property mentioned

in the plaint in O.S.No.1078/2023 and the property mentioned in

O.S.No.1466/2022 are different. Actually the plaintiff and the

defendants are disputing the same property is erroneous

observation of the Trial Court and also an observation made by

the Trial Court that when there is an order of ad-interim

injunction by the Civil Court, it is not tenable to order for an

injunction in respect of the said property is not correct.

17. I have already pointed out that in the written

statement the very defendants themselves admitted in

paragraph 9 that both the properties are all together different

and when such admission was made by the defendants

themselves, the Trial Court ought not to have dismissed the

application when title flows from 1950 onwards in favour of the

plaintiff till the date of filing of the suit and as on the date of

filing of the suit also, the possession is with the plaintiff in terms

of the documents which have been produced before the Trial

Court. The plaintiff mainly relied upon the document produced

by the defendants that is gift deed executed by Ramakrishnappa

in favour of his wife Sharadamma wherein the very donor was

not having any right to gift the property since the grandfather of

the plaintiff had already sold the property in the year 1953 itself.

The Trial Court observed that defendants have got the injunction

in respect of the suit schedule property as per the gift deed and

there is a need to go for the trial is an erroneous observation. I

have already pointed out that the document of sale deed

executed by the father of Ramakrishnappa is produced for the

first time before this Court and hence, title also not flows in

favour of the defendants as claimed and in the other suit is also

only an ad-interim injunction was granted and not granted the

injunction based on the merits. Under such circumstances, I am

of opinion that the very observation made by the Trial Court that

the plaintiff has not made out a prima facie case and balance of

convenience does not lie in favour of the plaintiff and no

hardship will be caused to the plaintiff if application is not

allowed is an erroneous approach. Merely the plaintiff's brother

has not taken up any contention that the property belongs to

own brother by virtue of gift deed cannot be a ground to reject

the application. The very observation that the Court cannot

order on the presumption and assumption for the injunction

restraining the defendants cannot be accepted and the same is

not based on any presumption and assumption and the same is

based on the flow of title in favour of the plaintiff from 1950

onwards and also the documents which have been placed before

the Court show that as on the date of the suit, the same stand in

the name of the plaintiff and establishes the possession of the

plaintiff. Hence, it requires interference. Thus, I answer this

point as affirmative.

Point No.2

18. In view of the observations made above, I pass the

following:

ORDER

The appeal is allowed.

The impugned order dated 21.04.2023 passed

on I.A.No.1 in O.S.No.1078/2023 by the XXIX

Additional City Civil and Sessions Judge, Bengaluru

City is set aside and consequently, the application

filed under Order XXXIX Rule 1 and 2 read with

Section 151 of CPC is allowed and the defendants are

restrained from interfering with the peaceful

possession and enjoyment of the plaintiff over the

suit schedule property till the disposal of the suit.

Sd/-

JUDGE

SN