Karnataka High Court
Mr.C. Nagaraj vs Mr Anantha Murthy on 19 December, 2023
Author: K. Natarajan
Bench: K. Natarajan
1
IN THE HIGH COURT OF KARNATAKA
AT BENGALURU
DATED THIS THE 19TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
REGULAR FIRST APPEAL NO.2135 OF 2019
BETWEEN:
MR. C. NAGARAJ
S/O LATE CHINAPPA,
AGED ABOUT 64 YEARS
R/AT NO.1/1,
SRI. MARUTHY ROAD,
A. NARAYANPURA MAIN ROAD,
DOORVANI NAGAR,
BANGALORE - 560 016.
... APPELLANT
(BY SRI. ASHOK HARANAHALLI, SENIOR ADVOCATE FOR
SRI. SUSHEELKUMAR V. HADLI, ADVOCATE)
AND:
1. MR. ANANTHA MURTHY
S/O LATE KAVERAPPA
AGED ABOUT 55 YEARS
R/AT NO.1 KAGGADASPURA
C.V. RAMAN NAGAR,
BANGALORE - 560 093.
2
2. MR. KRISHNAREDDY
S/O LATE DODDAGURAPPA
AGED ABOUT 80 YEARS,
R/O: NO.1 KAGGADASPURA
1ST MAIN ROAD, NEAR ANGENAYA TEMPLE
C.V. RAMAN NAGAR POST,
BANGALORE - 560 093.
... RESPONDENTS
(BY SRI. H. P. LEELADHAR, ADVOCATE FOR C/R1 AND R2)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 READ WITH SECTION 41 OF CPC, 1908
PRAYING TO A) CALL FOR THE RECORDS IN
O.S.NO.3855/2014 BY THE XVIII ADDITIONAL CITY CIVIL
JUDGE AND SESSION JUDGE (CCH-10), AT BANGALORE, B)
SET-ASIDE THE JUDGMENT AND DECREE DATED 13.09.2019
PASSED BY THE XVIII ADDITIONAL CITY CIVIL JUDGE (CCH-
10) AT BANGALORE CITY IN O.S.NO.3855/2014 AND ETC.,
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT ON 13.10.2023 THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:
3
JUDGMENT
This appeal is filed by the appellant for setting aside the
judgment passed by the Trial Court in O.S.No.3855/2014
dated 13.09.2019 for having dismissed the suit.
02. Heard the arguments of learned counsel for the
appellant and the respondents.
03. The rank of the parties before the Trial Court is
retained for the sake of convenience. Appellant is the plaintiff
and the respondents are defendant Nos.1 and 2 before the
Trial Court.
04. The case of the plaintiff before the Trial Court is
that the plaintiff filed a suit for relief of permanent injunction
restraining the defendants from interfering with the
possession and enjoyment of the suit schedule property and
also from demolishing any construction over the schedule
property.
05. It is alleged that the plaintiff is in possession and
enjoyment of the land bearing Sy.No.62/1B measuring to an
extent of 00.03 guntas situated at Benniganahalli, K.R.Puram
Hobli, now coming under BBMP called as 3rd cross,
Vijayanagar Colony, B Narayanapura, Bangalore. Originally
the land in Sy.No.62/1 measuring 00.28 guntas including
00.01 gunta kharab and out of the same, 00.14 guntas plus
00.01 gunta kharab property has been acquired by
Chinnappa under the registered sale deed dated 16.05.1957
and remaining 00.13 guntas was acquired by one Chikka
Honnappa. The plaintiff is the son of late Chinnappa and on
the basis of sale deed, he is in possession of the land in
Sy.No.62/1 adjacent to land in Sy.No.62/1B. All the revenue
records are transferred in the name of his father and his
father executed a will on 06.04.1990 in respect of properties
belong to him including Sy.No.62/1 has also executed a
codicil in his favour in respect of land bearing Sy.No.62/1B
on 24.07.1990. After his death, plaintiff acquired the right,
title and interest over the property and phodi also effected
and renumbered as Sy.No.62/1A2. Accordingly, the name of
Chinnappa was continued in revenue records and he was in
possession and enjoyment of the said survey number. The
defendants are allegedly claiming right over the land bearing
Sy.No.62/1B measuring to an extent of 00.03 guntas and the
said land is in continuation, peaceful, openly in possession
and enjoyment of the plaintiff and late Chinnappa from past
59 years along with adjacent land bearing Sy.No.62/1A2 and
subsequently, the mutation was registered in his name.
06. It is further contended that one Gurrappa alias
Dodda Gurrappa, the grand father of the defendant No.1 and
father of defendant No.2 has acquired the property in
Sy.No.62/1 measuring to an extent of east-west on the
northern side 50 feet and on southern side 4 feet, north-
south 92 feet under the sale deed dated 31.07.1948. There
is no revenue records in the name of Gurrappa. The
defendants have failed to establish that the Sy.Nos.62/1 and
62/1B are one and the same. The boundaries are different
for both the properties. The defendants have filed false
appeal before the Assistant Commissioner in
R.A.No.168/2011-12 in respect of unidentifiable and
unascertainable property by challenging the mutation and
the appeal was allowed. The plaintiff filed revision which is
pending before the Deputy Commissioner. The defendants
are trying to trespass over the suit schedule property and
trying to demolish the construction of the schedule property
hence, suit came to be filed.
07. The defendants appeared before the court through
the counsel and filed written statement by denying all the
plaint averments as false and contended that the Gurrappa
who also called Dodda Gurrappa who is grand father of the
defendant No.1 and father of the defendant No.2 had
purchased the property in Sy.No.62/1 which is triangle
shaped land measuring east to north 50 feet, southern side 5
feet, north to south 92 feet measuring 03 guntas under the
sale deed dated 31.07.1948 from its previous owner
Hanumanthappa. The land was phoded in the year 1984,
new number was given as No.62/1B. Earlier, the land was
cultivated by the father of the defendant No.2 and due to
urbanization, it was kept vacant. The Gurrappa was died in
the year 1991 and the defendants are unaware of the
revenue records and khata was not been changed and
further contended that the father of the defendant No.1-
Kaverappa who was managing the property was died in the
year 2010 and on enquiry before the Tahsildar, the khata
was changed in the name of the plaintiff. The RTC was
fraudulently obtained. The defendant No.1 filed objection
before the Tahasildar, but, name of the plaintiff was
mutated, hence, appeal has been filed before the Assistant
Commissioner and it was allowed on 17.03.2014 and plaintiff
filed revision which is pending. The plaintiff in order to knock
the suit schedule property belongs to the defendants has
filed a suit in collusion with revenue officials and tampered
the RTC. The plaintiff constructed a house and by tapping the
electricity to the asbestos sheet house had falsely claimed
that he has obtained the electricity for the said house. No
cause of action arose for filing the suit, hence, prayed for
dismissing the suit.
08. Based upon the pleadings, the Trial Court framed
the following issues:
"1) Whether the plaintiff proves his peaceful
possession and enjoyment over the suit
schedule property as on the date of the
suit?
2) Whether the plaintiff proves the alleged
interference of the defendants over the
suit schedule property?
3) Whether the plaintiff is entitled for a
decree of permanent injunction as prayed?
4) What order or decree? "
09. On behalf of the plaintiff, the plaintiff himself
examined as P.W.1 and got marked 116 documents and on
behalf of the defendants, defendant No.1 examined as D.W.1
and got marked 11 documents. After hearing the arguments,
the Trial Court answered issue Nos.1 to 3 in the negative and
finally dismissed the suit. Being aggrieved by the same, the
plaintiff is before this Court.
10. The learned counsel for the appellant-plaintiff has
contended that the father of the plaintiff had purchased the
property in the year 1957 about 14 guntas of land and he
has executed a will on 6.3.1990. Subsequently, he has
executed a codicil on 24.7.1990 as 3 guntas of land was left
out and also bequeathed 3 guntas of land in favour of the
plaintiff. All the documents were produced by the plaintiff
before the Trial Court and from 1957, the plaintiff's father
was in possession and thereafter plaintiff was in possession
of the property. He has put up a shed and obtained
electricity connection. He has produced numerous documents
to show that he is in possession of the property but the
defendants have not produced any documents except the
sale deed of the year 1948. The plaintiff was in possession of
the property from more the 59 years. Based upon the
possession, the name of the plaintiff was mutated in the
revenue records which was set aside by the Assistant
Commissioner and revision is pending. The suit is based
upon the possession, when the possession was proved, the
suit is required to be decreed by the suit, but the Trial Court
has wrongly dismissed the suit which is not correct and
hence, prayed for allowing the appeal.
11. Per contra, the learned counsel for respondents
has supported the judgment of the Trial Court and contended
that the plaintiff was the owner of 14 guntas of land, but
there is no document to show that 3 guntas of land belongs
to the plaintiff's father for executing a will. On the other
hand, the land was purchased by the father of defendant
No.1 under the sale deed. Though the plaintiff claimed the
property through codicil, but the same was not proved by the
plaintiff in accordance with law. Therefore, the plaintiff is not
entitled for any relief as claimed in the suit. Hence, prayed
for dismissing the appeal.
12. Having heard the arguments and perused the
records, the points that arise for my consideration are:
1) Whether the plaintiff proves that he is in
lawful possession and enjoyment of the
schedule property and the defendants trying
to interfere in the suit schedule property?
2) Whether the judgment of the Trial Court call
for interference?
3) Whether the plaintiff is entitled for decree
as prayed in the suit?
13. On perusal of the entire evidence on record,
though the plaintiff produced numerous documents as per
Ex.P.1 to P.116, the father of the plaintiff purchased the
property bearing Sy.No.62/1 measuring 14 guntas as per
Ex.P.45 as on 16.5.1957. This document is not in dispute and
subsequently, the father of the plaintiff executed a will in
favour of the plaintiff on 6.4.1990. The entire land in
Sy.No.62/1 has been bequeathed by his father under the
will. However, subsequently, the father of the plaintiff
executed a codicil on 24.7.1990 in respect of land in
Sy.No.62/1B i.e., schedule property. Though the plaintiff
produced various documents i.e., sale deed and other
revenue records in his favour, in respect of Sy.No.62/1, but
there is no document like a mother deed or any sale deed of
his father to show that his father was the owner of the land
in Sy.No.62/1B i.e., 0.3 guntas of land which is schedule
property in order to bequeath to his son i.e. the plaintiff
under the codicil dated 24.07.1990. When the father of the
plaintiff himself do not have any right, title or interest over
the property, the question of executing either will or codicil
or bequeathing the property in favour of the plaintiff does
not arise. Therefore, the subsequent documents produced by
the plaintiff based upon the codicil executed by the father of
the plaintiff has no legal value in the eye of law. On the other
hand, the sale deed of the defendants i.e., Ex.D.4 reveals,
the suit schedule property has been purchased by father of
the defendant No.2 on 30.07.1948.
14. It is worth to mention the legal maxim that
"Nemo Dat Quod Non Habet" its meaning "No one can
give what they do not have". This legal maxim squarely
applicable to the case of the plaintiff that plaintiff's father do
not have any right over the scheduled property measuring
00.03 guntas of land in Sy.No.62/1B and he has not
purchased the property. The father of the plaintiff has
purchased only 00.14 guntas of land in Sy.No.62/1 which is
adjacent property. The said property has been bequeathed to
the plaintiff by Will dated 06.04.1990. But subsequently, he
has also executed codicil by bequeathing the scheduled
property. He has no right, title or interest over the suit
scheduled property. Such being the case, the question of
bequeathing, either by way of Will or codicil does not arises.
On the other hand, the father of the defendant No.2 had
purchased the suit scheduled property even much prior the
property purchased by the father of the plaintiff in the
adjacent property. Therefore, claim of the plaintiff cannot be
acceptable that he is in law full possession of the suit
scheduled property. It is well settled that any number of
revenue records will not give title to his property. The
revenue records were created based upon the codicil
executed by the father of the plaintiff. Therefore, the
revenue records does not have any legal value and he cannot
claim schedule property as he is law full owner and in
possession. Therefore, the relief of injunction is not entitled.
On the other hand, the defendants able to prove that they
are the owners and successors of the suit schedule property.
Therefore, no question of interfering with the possession of
the property does not arises. Therefore, I have answered
point Nos.1 to 3 in the Negative.
15. The plaintiff has relied upon the judgment of the
Hon'ble Supreme Court in the case of Anathula Sudhakar
vs. P. Buchi Reddy (Dead) by Lrs. and others reported in
(2008)4 SCC 594. If at all the plaintiff claim his right over
the property and the defendants produced the sale deed of
the schedule property, the plaintiff could have convert the
suit for declaration and injunction, but bare injunction is not
maintainable. Therefore, the judgment relied upon by the
plaintiff will not help the plaintiff.
16. The Trial Court after considering the entire
documents on records and evidence, has rightly dismissed
the suit, which call for no interference. The plaintiff has failed
to prove the case against the defendants. Hence, the appeal
is devoid of merits and liable to be dismissed. Accordingly, I
proceed to pass the following;
ORDER
The appeal filed by the appellant is dismissed.
In view of the dismissal of the appeal, the pending I.As.
if any does not survive for consideration, hence, the same
are disposed of.
Sd/-
JUDGE
GBB
CT:SG
