Karnataka High Court
Smt. Mallamma vs Sri. Dilip Kumar on 18 December, 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF DECEMBER 2023
BEFORE
THE HON'BLE MRS. JUSTICE M G UMA
REGULAR FIRST APPEAL NO. 393 OF 2007 (INJ)
REGULAR FIRST APPEAL NO. 1751 OF 2017 (INJ)
C/W
REGULAR FIRST APPEAL NO. 1772 OF 2017
BETWEEN:
IN R.F.A.NO.393/2007:
1. SMT SAMPOORNAMMA
AGED ABOUT 61 YRS
W/O KRISHNAMURTHY
2. SRI M K.KRISHNAMURTHY
AGED ABOUT 71 YRS
S/O LATE SRI T MUNISWAMY
BOTH ARE R/O NO 565, 8TH MAIN,
HMT LAYOUT, II BLOCK, VIDYARANYAPURAM,
BANGALORE-13
(DEFENDANTS IN THE COURT BELOW)
APPELLANT NO.2 SINCE DECEASED
REPRESENTED BY HIS LR'S
A) RAMAMURTHY K
S/O LATE KRISHNAMURTHY.M
AGED ABOUT 24 YEARS
B) SMT VASANTHA T K
D/O LATE KRISHNAMURTHY M
AGED ABOUT 48 YEARS
2
C) SRI.PRAKASH T.K
S/O LATE KRISHNAMURTHY M
AGED ABOUT 46 YEARS
ALL ARE RESIDING AT NO.1126,
7TH BLOCK, HMT LAYOUT,
VIDYARANAYAPURA,
BANGALORE-97
...APPELLANTS
(BY SRI.ANIL SHEKHAR K S, ADVOCATE)
AND:
1. SMT MALLAMMA
AGED ABOUT 57 YRS
W/O SRI SOMANA GOWDA
2. SRI SOMANA GOWDA
AGED ABOUT 60 YRS
S/O SRI NOORADA GOWDA PATEL
BOTH ARE R/O NO 419/F-48, 5TH CROSS
GOKULA I STAGE, I PHASE,
BANGALORE-54
...RESPONDENTS
(BY SRI.P.M.SIDDAMALLAPPA, ADVOCATE FOR R1, R2)
THIS RFA IS FILED U/S 96 OF CPC AGAINST THE
JUDGEMENT AND DECREE DT.15.11.2006 PASSED IN
OS.NO.4503/1997 ON THE FILE OF THE VIII ADDL.CITY CIVIL
JUDGE, BANGALORE CITY, CCH-15, DECREEING THE SUIT
FOR DAMAGES AND PERMANENT INJUNCTION.
IN R.F.A.NO. 1751/2017
BETWEEN:
SMT MALLAMMA
W/O SOMNA GOWDA,
AGED ABOUT 68 YEARS,
3
R/AT NO.419/F48, 5TH CROSS, GOKULA I STAGE,
BANGALORE-560 054.
...APPELLANT
(BY SRI.SIDDAMALLAPPA P M, ADVOCATE)
AND:
1. SRI DILIP KUMAR
S/O VARADARAM JI,
AGED ABOUT 44 YEARS
2. SMT.PRIYA DEVI
W/O DILIP KUMAR,
AGED ABOUT 40 YEARS
BOTH ARE R/AT NO.86/2,
MATHAJI HOME APPLIANCES, SIDDALINGESHWARA
COMPLEX, MATHIKERE, BANGALORE-560 054.
...RESPONDENTS
(BY SRI.ANIL SHEKAR K S, ADVOCATE)
THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W
SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE
DATED 23.09.2017 PASSED IN OS.NO.4931/2015 ON THE
FILE OF THE XIX ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU CITY, DECREEING THE SUIT FOR
PERMANENT INJUNCTION.
IN R.F.A.NO. 1772/2017
BETWEEN:
1 . SMT. MALLAMMA
WIFE OF SOMNA GOUDA PATIL,
AGED ABOUT 68 YEARS,
NOW RESIDING AT NO.419/F48,
5TH CROSS, GOKULA I STAGE,
BANGALORE-560 054.
OLD ADDRESS
4
R/AT NO.84, 5TH CROSS,
A SECTOR, BELLARY ROAD,
AMRUTH NAGAR,
BANGALORE-560092
2 . SRI. SOMANA GOUDA PATIL
SON OF NOORANDA GOUDA,
AGED ABOUT 71 YEARS,
NOW RESIDING AT NO.419/F48,
5TH CROSS, GOKULA I STAGE,
BANGALORE-560 054.
OLD ADDRESS
R/AT NO.84, 5TH CROSS,
A SECTOR, BELLARY ROAD,
AMRUTH NAGAR,
BANGALORE-560092
...APPELLANTS
(BY SRI.SIDDAMALLAPPA P M, ADVOCATE)
AND:
1 . SRI. DILIP KUMAR
SON OF VARADARAM JI,
AGED ABOUT 44 YEARS
2 . SMT. PRIYA DEVI
WIFE OF DILIP KUMAR,
AGED ABOUT 40 YEARS
BOTH ARE RESIDING AT NO.86/2,
MATHAJI HOME APPLIANCES,
SIDDALINGESHWARA COMPLEX,
MATHIKERE, BANGALORE-560 054.
...RESPONDENTS
(BY SRI.ANIL SHEKAR K S, ADVOCATE)
THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W
SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE
DATED 23.9.2017 PASSED IN OS NO.5133/2015 ON THE FILE
5
OF THE XIX ADDL. CITY CIVIL AND SESSIONS JUDGE,
BANGALORE DISMISSING THE SUIT FOR PERMANENT
INJUNCTION.
THESE R.F.AS. HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 10.10.2023 COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
COMMON JUDGMENT
Defendant Nos.1 and 2 in O.S.No.4503/1997 on the file
of the learned VIII Additional City Civil Judge at Bengaluru
City, (CCH-15) (hereinafter referred to as the 'Trial Court' for
brevity), have preferred RFA No.393/2007, impugning the
judgment and decree dated 15.11.2006, decreeing the suit of
the plaintiff for damages and for permanent injunction against
them.
2. The defendant in O.S.No.4931/2015 on the file of
the learned XIX Additional City Civil and Sessions Judge at
Bengaluru City (CCH-18), (hereinafter referred to as the 'Trial
Court' for brevity), has preferred RFA No.1751/2017,
impugning the common judgment and decree dated
23.09.2017, decreeing the suit of the plaintiffs granting the
decree of permanent injunction against the defendant in
respect of the Schedule Property.
6
3. In RFA No.1772/2017, plaintiff Nos.1 and 2 in
O.S.No.5133/2015 before the Trial Court, are impugning the
above said common judgment, dismissing the suit O.S.
No.5133/2015 for permanent injunction against the
defendants from interfering with their peaceful possession and
enjoyment of the Schedule Property.
4. RFA No.393/2007 arising out of
O.S.No.4503/1997 was disposed of by the judgment and
decree dated 15.11.2006, whereas RFA No.1751/17 and
1772/17 arising out of O.S.No.4931/15 and 5133/2015 were
disposed of under the common judgment and decree dated
23.09.2017. The subject matter in all these three suites are
site No.860E and 860D i.e., plaintiff in O.S.Nos.4503/1997
and 5133/2015 is claiming to be the owner in possession of
site No.860E, whereas, defendant in the said suits and the
plaintiff in O.S.No.4931/2015 claims to have purchased and in
possession of site No.860D. Therefore, I propose to take up
all the three appeals for common discussion and to dispose of
the same under common judgment.
7
5. Parties to the appeals are referred to as per their
ranking in O.S.Nos.4503/1997 before the Trial Court.
6. Brief facts of the case are that, plaintiff Nos.1 and
2 in O.S.No.4503/1997 filed the suit against defendant Nos.1
and 2, seeking damages of Rs.5,000/- from them on the
ground that they have caused damages to the southern
compound wall belonging to plaintiffs and for the relief of
permanent injunction, restraining them from interfering with
the plaintiffs' peaceful possession and enjoyment of the
Schedule Property.
7. The Schedule appended to the plaint describes the
part and parcel of the House Property bearing old No.206,
formed in Sy.No.57, CITB (City Improvement Trust Board)
No.207/1-860/E and present Municipal Corporation No.206/2,
situated at 19th Main Road, Gokula 1st Stage, 1st Phase,
Corporation Division No.1, Bengaluru City, measuring on the
Eastern side: 29.41 feet, Western side: 30 feet, Northern
side: 29.10 feet and on Southern side: 17+22.6 feet, with the
boundaries mentioned therein. (hereinafter referred to as the
suit property No.1). It is contended by the plaintiffs that the
8
Suit Property No.1 was purchased by them plaintiffs under the
registered sale deed dated 22.01.1996 from T.Venkataswamy
and T. Saroja. The revenue records mutated in the names of
the plaintiffs. They were paying revenue and they are in
absolute possession and enjoyment of the same.
8. It is contended that on 15.04.1997, at about 7.00
p.m., the defendants came near the Schedule Property and
taking advantage of the absence of the plaintiffs, pulled down
a portion of the compound wall measuring 14 feet in length on
the southern side and thereby, caused damage to an extent of
Rs.5,000/-. They also made an attempt to trespass over the
Schedule Property. A neighbour- Sri Kanakaraj has resisted
the high handed acts of the defendants and informed the
same to the plaintiffs. The plaintiffs immediately lodged
police complaint which was registered in Crime No.240/1997
for the offence punishable under Sections 447, 427 of IPC.
Therefore, the plaintiffs sought for damages of Rs.5,000/-
from the defendants and for permanent injunction, restraining
the defendants from interfering with their peaceful possession
and enjoyment of the Schedule Property.
9
9. Defendant Nos.1 and 2 have appeared before the
Trial Court and filed their written statement, denying the
contention taken by the plaintiffs. It is contended that the
boundaries and the measurement of the Schedule Property as
stated by the plaintiffs are not correct. Sri T.Venkataswamy
and T. Saroja referred to by the plaintiffs as vendors, had no
manner of right, title or interest over the Schedule Property.
Therefore, they could not have executed the sale deed. The
property in question belongs to the defendants and they are
the absolute owners of the same. The Schedule Property as
described does not exist and therefore, the plaintiffs are not
entitled for any reliefs.
10. It is contended that the defendants have
purchased the site bearing No.206/4, CITB No.860/D,
Corporation No.3/1 in Sy.No.57 of Mathikere Village,
Yeshwanthapura Hobli, Bengaluru, measuring East to West
30+40/2 feet and North to South 65+45/2 feet (hsereinafter
referred to as suit property No.2) from one Kanakaraju under
the registered sale deed dated 28.04.1975 for a valuable
consideration and ever since then, they are in possession and
enjoyment of the same. The said property is now within
10
Bengaluru City Corporation and the defendants are paying
revenue. The khatha stands in their names.
11. It is also contended that the vendor
Sri Kanakaraju had entered into an agreement of sale to
purchase portion of this property, but failed to perform his
part of the contract. However, he started interfering with the
peaceful possession and enjoyment of the suit property.
Therefore, the defendants have filed the suit for permanent
injunction against the said Kanakaraju in O.S.No.2637/1997,
where, an ad-interim order of temporary injunction was
granted in favour of the plaintiffs therein. The defendant-
Kanakaraju in the said suit had remained ex-parte. The said
Kanakaraju set up the plaintiffs to file the above suit on
frivolous grounds and documents.
12. The contention of the plaintiffs that on 15.04.1997
at 7 p.m., the defendants have caused damage to the
compound wall and caused loss of Rs.5,000/- are all denied.
It is contended that the plaintiffs were never in possession
and enjoyment of the suit Property No.1 and therefore, they
are not entitled for any relief.
11
13. On the basis of these pleadings, the following
issues came to be framed;
"1. Whether the plaintiffs prove that they have
been in lawful possession over the suit
schedule property as on the date of the suit?
2. Whether the plaintiffs further prove that the
defendants have demolished and pull down a
portion of the compound wall on the southern
side of the suit schedule property and caused
damage of Rs.5,000/- to the plaintiffs?
3. Whether there is any cause of action for the
suit?
4. Whether plaintiffs are entitled to suit
remedies?
5. What order or decree?"
14. The plaintiffs examined PWs.1 and 2 and got
marked Exs.P1 to 7 in support of their contention. The
defendants examined DW-1 and got marked Exs.D1 to D17 in
support of their contention. The Trial Court after taking into
consideration all these materials on record, decreed the suit
of the plaintiffs, directing the defendants to pay a sum of
Rs.5,000/- towards damages caused by them by pulling the
12
southern side of the compound wall and also granting
permanent injunction, restraining the defendants from
interfering with the plaintiffs' lawful possession and enjoyment
of the Schedule Property.
15. Being aggrieved by the impugned judgment and
decree passed by the Trial Court, defendant Nos.1 and 2 are
before this Court in RFA No.393/2007.
16. The brief facts in O.S.No.4931/2015 are as
follows;
The plaintiffs- Dilip Kumar and Priya Devi have filed the
suit O.S.No.4931/2015 against the defendant- Mallamma,
seeking the decree of permanent injunction, restraining the
defendant from interfering with their peaceful possession and
enjoyment of the Schedule Property. The Schedule appended
to the plaint describes all that piece and parcel of the property
site bearing BDA No.860/D, Old No.206/2004, CITB (City
Improvement Trust Board) No.860/D, PID No.3/31-3/1,
situated at Gokul 1st Stage, 1st Phase, (formerly site in
Sy.No.57 of Mathikere), Bengaluru City Corporation Division
No.1, measuring East to West: 34+21.9 X 17.9+8 feet; North
13
to South: 29+46 X 16+25 feet, totally measuring 1127.57
sq.ft. with the boundaries mentioned therein i.e., suit
property No.2.
17. It is contended by the plaintiffs that one
Sampurnamma acquired the property bearing CITB No.860/D,
situated at Gokul 1st stage, 1st phase, measuring 30+40/2
from East to West and 65+45/2 from North to South under
the registered sale deed dated 28.04.1975 executed by
Kanakaraju. Thereafter, the BDA re-allotted/re-conveyed the
property bearing CITB No.860/D with PID No.3-31-3/1,
measuring 34+21.9X17.9+8 feet towards East to West and
29+46X16+25 feet towards North to South, totally measuring
1,127.57 sq.ft. as per the letter dated 03.10.2007. Later,
BDA has executed the registered sale deed in respect of the
schedule property on 30.10.2007. The said sampurnamma
sold the very same property in favour of the plaintiffs for a
valuable consideration, under the registered sale deed dated
26.06.2014. Thus, Sampurnamma was in possession and
enjoyment of the suit Property No.2. She executed the sale
deed in favour of the plaintiffs for a valuable consideration on
26.06.2014. Since then, the plaintiffs are in possession and
14
enjoyment of the properties as absolute owners and the
revenue records were mutated in their names. The plaintiffs
and their predecessor in interest were in peaceful possession
and enjoyment of the suit Property No.2 and constructed the
compound wall. The defendant is a stranger and having no
authority, tried to interfere with the plaintiffs' peaceful
possession and enjoyment of the same on 03.06.2015. The
plaintiffs approached the jurisdictional police who advised the
plaintiffs to approach the Civil Court.
18. It is contended that the plaintiffs have mortgaged
the Schedule Properties by depositing the title deeds in favour
of M/s. Capital First Home Finance Private Limited and
registered mortgage deed dated 08.07.2014 was executed.
The original title deeds are with the mortgagee. Since the
defendant tried to interfere with the peaceful possession and
enjoyment of the Schedule Properties, they have approached
the trial Court. Accordingly, they prayed for grant of
permanent injunction, restraining the defendant from
interfering with plaintiffs' peaceful possession and enjoyment
of the Schedule Properties.
15
19. The defendant has appeared before the trial Court
and filed her written statement, denying the contention taken
by the plaintiffs. It is contended that the defendant and her
husband Somna Gowda are the bona-fide purchasers of the
residential site bearing BDA No.860/E, Old No.206, CITB
No.207/a-806/E and present Corp.No.206/2 situated at Gokul
1st Stage, 1st Phase i.e., suit property No.1 under the
registered sale deed dated 22.01.1996 executed by
T.Venkataswamy and T. Saroja. Thus, the defendant and her
husband acquired absolute right, title and interest over the
property in question and they are in possession of the same.
They have constructed the compound wall on all the four
sides. The Khatha also stands in the joint names of defendant
and her husband.
20. The defendant contended that she had filed the
suit O.S.No.4503/1997 before the trial Court against
Sampurnamma and her husband M. Krishna Murthy, seeking
damages and permanent injunction with respect to the suit
property No.1. The said suit was contested by the defendants
therein and the same came to be decreed vide judgment
dated 15.11.2006. Damages of Rs.5,000/- was awarded and
16
permanent injunction was also granted against the
defendants. The defendants in the said suit have preferred
RFA No.393/2007 before this Court, which is pending for
consideration.
21. It is further contended that Sampurnamma and
her husband- M. Krishna Murthy have played fraud on BDA by
misrepresenting and without disclosing the true facts, got site
No.860/D, measuring 1127.57 sq.ft. (suit property No.2)
They managed to get the sale deed dated 30.10.2007 and by
misrepresentation, they sold the said property in favour of the
plaintiffs. Therefore, the plaintiffs are not in peaceful
possession and enjoyment of the same. The contention of the
plaintiffs that the defendant had tried to trespass over the
property is denied.
22. It is contended that the defendant and her
husband Somna Gowda resisted the high handed act of the
plaintiffs and even approached the police. The attempt on the
part of the plaintiffs to put up the building without any licence
or approval was discouraged. The defendant and her husband
Somna Gowda filed the suit O.S.No.5113/2015 before the trial
17
Court against the plaintiffs, seeking permanent injunction.
The original title deeds of the defendants were produced in
O.S.No.4503/1997. Since the defendant is in possession and
enjoyment of the suit property, she prayed for dismissal of
the suit with costs.
23. On the basis of these pleadings, the following
issues came to be framed in O.S.No.4931/2015;
"1. Whether plaintiffs prove that they are in
lawful possession and enjoyment of suit
schedule property within given boundaries as
on the date of suit?
2. Whether plaintiffs prove the alleged
interference from the defendant?
3. Whether plaintiffs are entitled for the relief
of permanent injunction as prayed in the
plaint?
4. What order or decree?"
24. The brief facts in O.S.No.5133/2015 are as
follows;
Plaintiff Nos.1 and 2 (plaintiff No.1 being defendant in
O.S.No.4931/15 and plaintiff No.1 in OS.No.4503/1997) have
filed the suit O.S.No.5133/2015 against defendant Nos.1 and
2 (plaintiffs in O.S.No.4931/2015), seeking permanent
18
injunction, restraining them from interfering with their
peaceful possession and enjoyment of the Schedule Property.
The Schedule appended to the plaint describes the part and
parcel of the residential site bearing old No.206, formed out of
Sy.No.57, CITB, 207/1-860/E and present Municipal
Corporation No.206/2, situated at 19th Main Road, Gokula 1st
Stage, 1st Phase, Mathikere, Bengaluru- 560 054, measuring
on the Eastern side: 29.4 feet; Western side: 30 feet;
Northern side: 29.10 feet and Southern side: 17+22.6 feet
with the boundaries mentioned therein (i.e., suit property
No.1).
25. It is contended by the plaintiffs that they are the
husband and wife and are the bona-fide purchasers of the
residential site bearing old No.206, morefully described in the
Schedule, as they purchased the same under the registered
sale deed dated 22.01.1996 executed by T.Venkataswamy
and T. Saroja. Since then, the plaintiffs are in peaceful
possession and enjoyment of the suit property No.1. They
constructed the compound wall on all four sides, khatha
stands in their names and they are paying the revenue.
19
26. It is contended that the plaintiffs have filed the
suit O.S.No.4503/1997 before the trial Court against the
defendants Sampurnamma and her husband M. Krishna
Murthy, seeking damages and permanent injunction. The said
suit came to be decreed vide judgment and decree dated
15.11.2006. Permanent injunction was granted along with
damages of Rs.5,000/-. The defendants have preferred RFA
No.393/2007 which is pending consideration.
27. It is contended that the said Sampurnamma and
M. Krishna Murthy have played fraud on BDA without
disclosing the true facts and by misrepresentation, got the
sale deed dated 30.10.2007 and sold the said site bearing
No.860/D (suit property No.2), measuring 1127.57 sq.feet in
favour of the defendants without having physical possession
of the said property. On 30.05.2015, the defendants have
came near the Schedule Property and started demarcating the
site and putting up the compound wall. The plaintiffs have
approached the local police, but they have not initiated any
action. The construction put up by the defendants are illegal.
They were not having any valid licence to put up the
construction. The plaintiffs are not in a position to resist the
20
high handed acts of the defendants. Therefore, they prayed
for grant of permanent injunction against the defendants from
interfering with the peaceful possession and enjoyment of the
suit property No.1 in the interest of justice.
28. Defendant Nos.1 and 2 have appeared before the
trial Court and filed their written statement, denying the
contention taken by the plaintiffs. It is contended that the
plaintiffs are not having valid title in respect of the Schedule
Property, nor they are in possession of the same. The
defendants are in possession and enjoyment of the site
bearing BDA No.860/D, Old No.206/2004, CITB No.860/D,
PID No.3-31-3/1, situated at Gokul I Stage, 1st Phase
(formerly site in Sy.No.57 of Mathikere) Bengaluru City
Corporation Division No.1, measuring East to West: 34+21.9
X 17.9+8 feet and North to South 29+46 X 16+25 feet,
totally measuring 1127.57 sq.ft (suit property No.2).
29. It is contended that originally, the defendants'
vendor Sampurnamma acquired the revenue site bearing
No.206/4, CITB No.860/D, situated at Gokul I Stage, 1st
Phase (site in Sy.No.57 of Mathikere) Bengaluru City
21
Corporation Division No.1, measuring East to West 30+40/2
and North to South 65+45/2 from Kanakaraju, through the
registered sale deed dated 28.04.1975. Originally the entire
land in Sy.No.57 of Mathikere was acquired by CITB for
formation of sites. The BDA re-allotted the sites and the
written statement schedule property was allotted in favour of
Sampurnamma on 03.10.2007. Sale deed was also executed
in her favour on 30.10.2007 and reconveyence-possession
certificate was issued. Thus, Sampurnamma was in
possession and enjoyment of the written statement schedule
property. The said Sampurnamma executed the sale deed
dated 26.06.2014 in favour of defendant Nos.1 and 2 for
valuable consideration. Khatha in respect of the said property
stands in the name of the defendants and they are paying the
revenue. The plaintiffs are not in possession of any property
and they are not entitled for any relief.
30. It is contended that the description of the
property in the sale deed executed in favour of the plaintiff
does not tally with the description of the property in the sale
deed executed in favour of T.Venkataswamy and Saroja by
their vendor. The vendors of the plaintiffs viz., Venkataswamy
22
and Saroja purchased the property from its earlier owner
Kanakaraju under the sale deed dated 28.04.1975. The
eastern boundary of the said property is shown as the
property of Sowbhagya Puttaswamy. The description of the
property sold to plaintiffs do not tally with the sale deed
executed in favour of their vendors. Kanakaraju had sold only
875 Sq.Ft of land in favour of T.Venkataswamy and Saroja.
But they have executed the sale deed in favour of the
plaintiffs to an extent of 1087 sq. ft., which is morethan the
land which they acquired under the sale deed. The site and
the boundaries referred to in the Schedule appended to the
plaint does not exist. The khatha in respect of the Schedule
Property measures only 544.68 sq. feet.
31. It is further contended that Sampurnamma along
with her husband M. Krishna Murthy had filed the suit
O.S.No.2637/2001 against Kanakaraju. The said suit came to
be decreed on 13.11.2001. Since then, Sampurnamma was
in possession of the said property till she conferred it in favour
of the defendants. Therefore, the defendant prayed for
dismissal of the suit as devoid of merits.
23
32. On the basis of these pleadings, the following
issues came to be framed in O.S.No.5133/2015;
"1. Whether plaintiffs prove that they are in
lawful possession and enjoyment over suit
schedule property within boundaries furnished
in the plaint as on the date of suit?
2. Whether plaintiffs prove the alleged
interference from the defendant?
3. Whether plaintiffs are entitled for the relief
of permanent injunction as prayed in the
plaint?
4. What order or decree?"
33. O.S.No.5133/2015 and O.S.No.4931/2015 were
clubbed together and common evidence was lead.
34. The plaintiff in O.S.No.5133/2015 got examined
her husband as PW-1 and got marked Exs.P1 to 22 in support
of her contention. Defendant No.1 in the said suit, examined
himself as DW-1 and got marked Exs.D1 to D32 in support of
his defence. The trial Court after taking into consideration all
these materials, passed the common judgment dismissing the
suit O.S.No.5133/2015 and decreeing the suit
24
O.S.No.4931/2015 and granting permanent injunction in
favour of the plaintiffs therein against the defendant,
restraining her from interfering with peaceful possession and
enjoyment of the Schedule Property.
35. Being aggrieved by the said judgment and decree,
the defendant in O.S.No.4931/2015 who is plaintiff No.1 in
O.S.No.5133/2015 has preferred RFA No.1751/2017 and RFA
No.1772/2017 respectively.
36. Heard Sri Anil Shekar K.S., learned counsel for the
appellants and Sri Siddamallappa P.M., learned counsel for
the respondents.
37. Learned counsel for the appellant in RFA
No.393/2007 submitted that the plaintiff has failed to prove
the description of the suit property No.1 and various sale
deeds produced by the plaintiffs and defendants disclose that
there is serious dispute about the measurement and
boundaries of the properties in question. Under such
circumstances, the title of the plaintiffs over the suit property
No.1 is seriously disputed. The plaintiffs have not chosen to
25
seek declaration of title, under such circumstances, plaintiffs
are not entitled for permanent injunction.
38. Learned counsel further submitted that plaintiffs
except pleading in the plaint that there was a compound wall
constructed by them after purchase of schedule property and
the same was damaged by the defendants, caused loss to the
plaintiffs, have not placed any materials to substantiate their
contention. The evidence of PW2 is not acceptable since he
was having a reason to wreak vengeance against the
defendants. Admittedly, the vendors of defendants have filed
the suit against PW2 in OS No.2637/2021, which was came to
be decreed by granting permanent injunction against him.
Under such circumstances, his evidence is to be considered
carefully and if it is considered carefully, his oral evidence is
not worth believing. The Trial Court had committed an error in
placing reliance only on the oral evidence of PW.2 to decree
the suit as prayed for. When title and possession of the
property is not proved and when the existence of the
compound wall and its destruction are also not proved, the
trial Court committed an error in decreeing the suit.
26
Accordingly, he prays for allowing the appeal and set aside
the impugned judgment and decree passed by the Trial Court.
39. At the same time, learned counsel submitted that
the trial Court in O.S.Nos.4931/2015 and 5133/2015 on
proper appreciation of material on record decreed the suit of
the plaintiff in O.S.No.4931/2015 and dismissed other suit.
There are no reasons to interfere with the said common
judgment and decree. Hence, prayed for dismissal of
RFA Nos.1751/2017 and 1772/2017 with costs.
40. Per contra, learned counsel for the plaintiff in
O.S.No.5133/2015 who are defendants in O.S.No.4931/2015
contended that the Trial Court rightly decreed the suit
O.S.No.4503/2007 and granted permanent injunction and also
damages against defendants. Under such circumstances, the
plaintiffs in O.S.No.4931/2015 could not have filed another
suit for permanent injunction. When the suit
O.S.No.4503/2007 filed by the plaintiffs came to be decreed,
the trial Court could not have dismiss their suit
O.S.No.5133/2015, which is in respect of the very same
property, seeking very same relief.
27
41. Learned counsel further submitted that when the
impugned judgment passed in O.S.No.4503/2007 is of very
reasonable, same is liable to be confirmed. The common
judgments which are impugned in RFA No.1751/2017 and RFA
No.1772/2017 are without any basis. The Trial Court has not
taken into consideration both oral and documentary evidence
placed before it. Therefore, the said common judgment is
liable to be set aside by allowing both the appeals.
42. Perused the material including the Trial Court
records.
43. In view of the rival contentions urged by learned
counsel for the parties, the point that would arise for my
consideration is:
1. Whether the impugned judgment and decree
passed by the Trial Court in OS.No.4503/1997
suffers from any perversity or illegality and calls for
interference by this Court?
2. Whether the impugned common judgment and
decree passed by the Trial Court in
OS.No.4931/2015 decreeing the suit of the
28
plaintiffs suffers from any perversity or illegality
and calls for interference by this Court?
3. Whether the impugned common judgment and
decree passed by the Trial Court in
OS.No.5133/2015 dismissing the suit of the
plaintiffs suffers from any perversity or illegality
and calls for interference by this Court?"
My answer to the above points are as under:
Point No.1: In the Affirmative
Point No.2: In the Affirmative
Point No.3: In the Negative
REASONS
44. It is an undisputed fact that originally both the
suit property Nos.1 and 2 were part of Sy.No.57 of Mattikere
wherein revenue sites were formed. Subsequently, CITB
acquired the property for forming layout. It is an admitted
fact that BDA got surrendered the title deeds of all the
revenue site owners and re-conveyed and re-allotted different
sites in favour of respective owners. It is also admitted fact
that in the process of acquiring and re-allotting the sites there
was difference in the measurements of the properties which
29
were referred to in the earlier sale deeds, which are parent
deeds of the plaintiffs and defendants.
45. Ex.P.6 in O.S.No.4503/1997 is the oldest sale
deed under which, Venkatarajendra Prasad sold site No.206 in
Sy.No.57 of Mattikere village CITB No.860 which was
measuring North to South on the eastern side: 90 Feet, on
the western side: 35 feet and East to West on the northern
side: 100 feet and on the southern side: 66 feet. The western
boundary to this property is described as site No.207
purchased by the Kanakaraj on the same day. Therefore,
Kanakaraj purchased site Nos.206 and 207, which are the
larger sites. Admittedly, the plaintiffs and defendants have
derived title over their respective sites originally from
Kanakaraju.
46. The plaintiffs placed reliance on Ex.P.1 in
O.S.No.4503/1997, which is the sale deed dated 22.01.1996
executed by Venkataswamy and Saroja in favour of the
plaintiffs and subject matter of the sale deed is site No.860/E
(i.e., suit property No.1) measuring the total measurement as
under:
30
on the eastern side : 29.4 feet
on the western side: 30 feet
on the northern side: 29.10 feet and
on the southern side: 17+22.6
Totally measuring 1087 Sq.ft and the boundaries are
referred as under:
East - Property belongs to Sowbhagya Puttaswamy
West - Property of Md.Ibrahim
North - Government Road
South - K.C.Devaki's house No.270/0
47. The vendors of the plaintiff ie., Venkataswamy
and Saroja have admittedly purchased the property from
Kanakaraju under Ex.P.5, the sale deed dated 28.04.1975. As
per this document, Venkataswamy purchased site No.860E
measuring East to West: 25 feet, North to South, on the
eastern side : 40 feet, on the western side: 30 feet with
specific boundaries mentioned therein. If these two sale deeds
Exs.P.1 and 5 are taken into consideration, the measurement
mentioned in both the sale deeds are not tallying with one
another. The boundaries mentioned in both the sale deeds are
quite different as the prevailing boundaries at the time of
executing the sale deeds were mentioned. Even though
plaintiff adduced the evidence himself as PW.1 and the
vendor-Kanakaraju as PW2, he categorically admitted during
31
cross examination that measurement of the sites mentioned
in paras 1 and 2 of Ex.P5 are quite different. He pleaded his
ignorance about the extent of remaining land retained by him
after executing sale deed as per Ex.P.5.
48. If the contention taken by the plaintiff in
O.S.No.4503/1997 and the defendants in OS.No.5133/2015 is
to be taken into consideration, it is their contention that they
are the owners in possession of site No.260/D of Mattikere
village. (i.e., suit property No.2). It is their contention that
the defendants in OS No.4503/1997 namely, Sampurnamma
purchased the said property under the sale deed dated
28.04.1975, which is marked as per Ex.P.4. After purchasing
the same, BDA re-allotted site on 30.10.2007. It is thereafter
under the sale deed dated 26.06.2014 and as per Ex.P.5, the
said Sampurnamma sold the site No.860/D in favour of Dilip
Kumar and Priya Devi, viz., plaintiffs in OS. No.4931/2015
and defendants in O.S.No.5133/2015.
49. It is also an admitted fact that the defendant,
Sampurnamma had purchased the said property from its
original owner Kantaraju, who in turn purchased the same
32
from earlier owner, Rajendra Prasad under sale deed dated
27.01.1975 ie., Ex.P.6. All these facts clearly establish that
the suit property Nos.1 and 2 i.e., both site Nos.860D and
860E which are being claimed by the plaintiffs and defendants
were part of same land owned by same person and several
sale deeds were executed after forming of revenue sites. The
property was acquired by CITB and a new layout was formed
and there was re-allotment of sites and therefore, BDA
executed fresh sale deeds in favour of the original site
owners.
50. Both the learned counsel admitted that there is
variance in the measurement of both sites claimed by the
plaintiffs and defendants. But strangely, none of the parties
have chosen to seek for appointment of Commissioner for
identifying the property, which are in their possession. Both
the plaintiffs and defendants claimed ownership over their
respective sites under the registered sale deeds and several
previous sale deeds are also produced and got marked. When
the description in one sale deed do not tally with other, so
also the boundaries, it cannot be held that plaintiffs or
defendants, as the case may be, are successful in identifying
33
their properties, which are in their possession to claim
permanent injunction. When the length, breadth and the
extent of sites in possession of the plaintiffs and defendants
itself is not certain, the reliefs claimed cannot be granted only
on the basis of the recent sale deed relied on by them. Both
plaintiffs and defendants are relying on registered sale deeds
which are not reconciling with one another. What was the
actual extent of land in their possession is not made known.
Even though the plaintiff examined the vendor Kanakaraju as
PW1, his evidence is not helpful in identifying the property
claimed by the plaintiffs. Similarly, the defendants are also
not successful in leading any evidence to identify their site.
Under such circumstances, I am of the opinion that both
parties are not successful in proving possession over the
schedule property with specific measurements. Hence, both
are not entitled for grant of permanent injunction against one
another.
51. Plaintiffs in O.S.No.4503/2007 claimed damages
from defendants on the ground that compound wall which was
put up on the eastern side was damaged by the defendants.
Except oral evidence of PWs.1 and 2 and complaint filed with
34
the Police, there is absolutely no material placed before the
Court, which can be worth mentioning to prove the existence
of the compound wall and its destruction. To determine the
damages, the plaintiff is required to give necessary
particulars, at least the length, breadth and height of
compound wall and the materials that are used for the same.
Except saying that the compound wall measuring 14 feet was
demolished by the defendants, there are no other details
either to accept the contention of the plaintiffs regarding
existence of compound wall and its destruction as contended
in the plaint or to quantify the actual damages caused to the
plaintiffs.
52. Admittedly, PW.1 was not present at the spot
when the defendants said to have demolished the compound
wall. Even according to the plaintiffs, it was only PW2 who
was present at the spot and he prevented the high handed
acts of defendant. Even though PW.2 is examined and spoke
about the high handed act of defendants, his evidence is not
worth mentioning for want of specific particulars. Moreover,
the defendants have filed the suit OS No.2637/2021 against
PW.2 seeking permanent injunction. The material discloses
35
that PW.2 remained ex parte and had not contested the suit.
The said suit came to be decreed in favour of defendants.
Under such circumstances, much reliance cannot be placed on
the evidence of PW.2 to accept the same in the absence of
any other satisfactory materials.
53. When there is serious dispute about the actual
measurements of the suit property Nos.1 and 2 and its
ownership, the plaintiffs and the defendants should have
made an attempts to identify their respective properties. More
so, when various sale deeds relied on by the plaintiffs and
defendants since from the year 1975 till filing of the suit are
not helpful to identify the same. The description of the site
varies from sale deed to sale deed. The boundaries were also
not specific. Under such circumstances, I am of the opinion
that either suit property No.1 or 2 are not identifiable to form
an opinion that respective parties are in possession and
enjoyment of the same when the suit properties cannot be
identified with specific measurement and boundaries and
when the parties to the suits failed to prove their possession
over a specific piece of land, I am of the opinion that both the
36
parties are not entitled for grant of permanent injunction as
sought for.
54. When plaintiff in O.S.No.4503/19997 has not
placed any satisfactory material to prove existence of
compound wall and its destruction by producing any
satisfactory evidence, I am of the opinion that the plaintiff is
not entitled for any damages. In the result, all the three
suites referred to above are liable to be dismissed with costs.
55. It is to be noted that the plaintiffs in
O.S.No.4503/1997 filed the suit for damages and also for
permanent injunction against defendants ie., Sampurnamma
and her husband Kirshna Murthy. Admittedly, the said suit
came to be decreed vide judgment and decree dated
15.11.2006. Thereafter, the said Sampurnamma and her
husband Sri. Krishnamurthy have preferred an appeal in RFA
No.393/2007. During pendency of the said appeal, property
owned by them i.e., site No.860D was sold in favour of the
plaintiffs in O.S.No.4931/15 under the sale deed dated
26.06.2014. Admittedly, the sale was during the pendency of
RFA.No.393/2007. When the plaintiffs in O.S.No.4931/2015
37
purchased site No.860D from Sampurnamma and her
husband under the registered sale deed, they actually step
into the shoes of vendor for all practical purposes. When the
vendors have already suffered decree for damages and
permanent injunction in O.S.No.4503/1997, the purchasers
should have impleaded themselves in RFA No.393/2007,
which was initially filed by vendors. But, they have not chosen
to do so. On the other hand, the purchasers have chosen to
file the fresh suit O.S.No.4503/2007 seeking permanent
injunction. There is absolutely no explanation as to why the
purchasers under the sale deed from the original defendant
have not got impleaded themselves in RFA No.393/2007 and
as to why they have filed a separate suit for permanent
injunction.
56. The doctrine of lis pendens is based on the
principle that the decision of a Court in a suit would be
binding not only on the litigating parties, but on those who
derive title pendente lite. Section 52 of Transfer of Property
Act, 1882 renders such transfer subservient to the rights of
parties to be determined by the Court. Under such
circumstances, I do not find any reason for the plaintiffs in
38
O.S.No.4931/2015 to file a separate suit when their vendors
have already having suffered a decree for damages and
permanent injunction. There is also no reason as to why they
have chosen to prosecute RFA No.393/2007 even after selling
the property. It is not explained as to why the original
defendants in O.S.No.4503/2007 who have lost their interest
over the property are still pursuing RFA No.393/2007.
57. From the discussion held above, only conclusion
that could be arrived at is that suits filed by the plaintiffs and
defendants against one another are liable to be dismissed
with costs.
58. I have gone through the impugned judgment and
decree passed by the Trial Court. The Court proceeded to
decree the suit O.S.No.4503/2007 to award amount of
Rs.5,000/- as damages and to grant permanent injunction. It
decreed the suit O.S.No.4931/2015, while dismissing the suit
O.S.No.5133/2015, only on the oral evidence led by parties.
The Trial Court has ignored the fact that there is a glaring
variance in measurements and boundaries of the schedule
properties described in their respective pleadings. However,
39
the Trial Court was right in dismissing the suit
OS.No.5133/2015. Therefore, I am of the opinion that the
impugned judgment and decree, decreeing the suit
O.S.Nos.4503/2007 and 4931/2015 are liable to be set aside.
Since, the Trial Court has rightly dismissed the suit
O.S.No.5133/2015, the same is to be upheld. Accordingly, I
answer above point Nos.1 and 2 in the affirmative and point
No.3 in the negative and proceed to pass the following:
ORDER
i. RFA No.393/2007 is allowed with costs.
The impugned judgment and decree dated
15.11.2006 passed in O.S.No.4503/1997 is set
aside. Consequently, the suit O.S.No.4503/1997 is
dismissed with cost.
ii. RFA No.1751/2017 is allowed with costs.
The impugned judgment and decree dated
23.09.2017 decreeing the suit O.S.No.4931/2015
is set aside. Consequently, the said suit is
dismissed with costs.
iii. RFA No.1772/2017 is dismissed with costs.
The impugned common judgment dated
23.09.2017 dismissing O.S.No.5133/2015 is
confirmed.
Office is directed to draw the decree in RFA
Nos.393/2007 and 1751/2017 accordingly and send back the
Trial Court records along with copies of the judgment and
decree.
Sd/-
JUDGE
PN/BH
