Karnataka High Court
Smt S Sampoornamma vs Smt Jayamma on 3 February, 2023
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.1546/2017 (INJ)
BETWEEN:
1. SMT. S. SAMPOORNAMMA
W/O. K. SHIVARAMAIAH
AGED ABOUT 61 YEARS
2. SRI K. SHIVARAMAIAH
S/O. LATE KRISHNAIAH
AGED ABOUT 74 YEARS
3. SRI VENKATESH
S/O. K. SHIVARAMAIAH
AGED ABOUT 39 YEARS
ALL ARE R/O. YADANAHALLI VILLAGE
ATHAGUR HOBLI, MADDUR TALUK
MANDYA DISTRICT-571 433. ... APPELLANTS
(BY SRI K.N.NITISH, ADVOCATE FOR
SRI K.V.NARASIMHAN, ADVOCATE)
AND:
SMT. JAYAMMA
W/O. LATE DODDAIAH
D/O. LATE HOSA BORA HEGDE
AGED ABOUT 59 YEARS
R/O. YADANAHALLI VILLAGE,
ATHAGUR HOBLI, MADDUR TALUK
MANDYA DISTRICT-571 433. ... RESPONDENT
(BY SRI SHIVARAJ PATIL, ADVOCATE)
2
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGEMENT AND DECREE DTD. 05.06.2017
PASSED IN R.A.NO.12/2011 ON THE FILE OF THE SENIOR CIVIL
JUDGE, MADDUR, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGEMENT AND DECREE DATED 24.02.2011 PASSED IN
OS.NO.04/2008 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE
(JR.DN.) AND JMFC., MADDUR.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 20.01.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
Heard the arguments of the learned counsel for the
appellants-defendants and learned counsel appearing for the
respondent-plaintiff.
2. This regular second appeal is filed under Section 100
of C.P.C. praying this Court to allow the appeal and set aside the
judgment and decree passed by the learned Senior Civil Judge,
Maddur in R.A.No.12/2011 dated 05.06.2017 and the judgment
and decree passed by the learned Additional Civil Judge (Jr.Dn.)
and JMFC at Maddur in O.S.No.4/2008 dated 24.02.2011.
3. The parties are referred to in the original ranking
before the Trial Court as defendants and plaintiff, in order to
avoid confusion and for the convenience of the Court.
4. The factual matrix of the case of the plaintiff before
the Trial Court while filing the suit for permanent injunction is
that she is the absolute owner and in possession of the suit
schedule property which originally belongs to her father
Hosabore Hegde and the suit schedule property is the ancestral
property of the plaintiff. The father of the plaintiff demised
leaving behind the plaintiff, who is the daughter and his only son
Revanna. After the death of the father of the plaintiff, the
brother of the plaintiff Revanna being a sole male member of the
family inherited the landed property to an extent of 1 acre, 8
guntas in suit Survey No.1017/1. All the revenue entries were
mutated in his name. In fact, the brother of the plaintiff died
intestate in an unmarried status. During his life time, he sold 8
guntas of land in the suit survey number to one K. Thimmaiah
and also 6 guntas of land in favour of the first defendant herein.
The plaintiff being his own legal representative, has succeeded
to his estate in respect of the remaining land. Thus, she became
absolute owner and all the revenue entries were mutated in her
name with respect to suit schedule property and she has been in
lawful possession and enjoyment of the suit schedule property
and cultivating the same by raising sugarcane and mulberry and
rearing silk worms. There are 15 coconut trees, 8 baniyan trees,
8 neem trees, 2 mango trees and other trees in the suit schedule
property.
5. It is the case of the plaintiff that the defendants,
without having any right, title, interest or possession over the
suit schedule property, they have always causing unnecessary
harassment to the enjoyment of the plaintiff over the suit
schedule property. That on 30.12.2007, the defendants colluded
together and came near the plaintiff's suit schedule property
along with their henchmen and made unsuccessful and unlawful
attempts to interfere with the peaceful possession and
enjoyment of the plaintiff over the suit schedule property and
the same has been resisted by the plaintiff. The defendants
openly proclaimed that they will dispossess the plaintiff from the
suit schedule property. Hence, the plaintiff has filed the suit.
6. In pursuance of the suit summons, the defendants
entered appearance through their counsels and filed written
statement and contended that Old Sy.No.864/1 measured and
mapped and pacca phoded and new survey number assigned as
1017/1. Out of 1.8 acres, about 10 guntas of land has been
utilized for the purpose of channel. After formation of the
channel, the remaining 38 guntas became two pieces because
the channel is formed in the middle of 1.8 guntas. Out of 38
guntas, 30 guntas lies towards northern side and 8 guntas lies
towards southern side and the father of the plaintiff had sold
northern portion of entire land in old Sy.No.864/1 in favour of
the father of the second defendant and put his father in
possession and enjoyment of the same. It is contended that, at
the time of selling the land, though the extent was mentioned as
24 guntas, put the boundary to the entire land and the entire
land was transferred and his father was put in possession of the
entire land as on the date of sale. Accordingly, the father of the
second defendant was in possession and enjoyment of entire
northern portion till his death and since the old survey number
was mentioned in the sale deed, mutation was accepted in the
name of the second defendant to the old survey number and all
the revenue entries are entered in the name of the father of
second defendant. After the death of the father of the second
defendant, khatha of the said land has been transferred in the
name of the first defendant.
7. In the year 2004-05, Survey Department has
measured the lands of Athagur Hobli and at that time, it was
found that the land sold to the father of the second defendant is
measuring 30 guntas within the boundary even though extent is
mentioned as 24 guntas in the sale deed. Considering the more
extent, the brother of the plaintiff by name Revenna, who was
the sole surviving coparcener executed a sale deed with respect
to 6 guntas of land in favour of the first defendant. As per law,
the entire land was transferred in the year 1969 itself but, the
extent was wrongly mentioned. The piece of land measuring 8
guntas which lies towards south of Nala was sold by the brother
of the plaintiff in the year 2004. But, while executing the sale
deed for second time, new survey number was mentioned. At
the time of execution of the second sale deed, the extent
mentioned in the earlier sale deed has not been deducted. In
fact, the said Revanna has not at all retained any land, much
less the suit land either in new survey number or old survey
number. The said Revanna had land in another survey number
towards western side of the old Sy.No.864. Even after giving
new survey number, that has not been incorporated in the name
of the first defendant by the Revenue Department. Hence, the
RTC is entered in the new survey number and continued in the
old survey number also. Now, the plaintiff by misutilizing the
wrong RTC, has filed this false and baseless suit. In fact, neither
the plaintiff's father nor Revanna were in possession of entire 30
guntas of land after 1969. The plaintiff is not in possession and
enjoyment of the suit schedule property and there is no land in
existence as described in the plaint schedule. Since the second
defendant and his wife are in possession of land in
Sy.No.1017/1, old Sy.No.864, the question of interference does
not arise.
8. Based on the pleadings of the parties, the Trial Court
has framed four issues for its consideration. The plaintiff, in
order to prove the case, examined herself as P.W.1 and another
witness as P.W.2 and got marked the documents as Exs.P1 to
P10. On the other hand, the defendants have examined the
second defendant as D.W.1 and another witness as D.W.2 and
got marked the documents as Exs.D1 to D7.
9. The Trial Court, after considering both oral and
documentary evidence placed on record, comes to the conclusion
that the plaintiff is in possession and enjoyment of the suit
schedule property and the defendants are interfering with the
peaceful possession and enjoyment of the plaintiff over the suit
schedule property and granted the decree.
10. Being aggrieved by the judgment and decree of the
Trial Court, the defendants have filed the appeal in
R.A.No.12/2011, wherein the grounds urged by the appellants-
defendants is that the Trial Court has committed an error in
decreeing the suit of the respondent even though the respondent
has miserably failed to prove her possession over the suit
schedule property and on the other hand, the appellants have
proved their possession over the suit schedule property as on
the date of the suit. The learned Judge has not at all understood
the case of the parties and crux of the case and not at all read
the pleadings of the parties properly, which leads to decreeing
the suit of the plaintiff. The learned Trial Judge also not at all
considered the hard and admitted facts and not properly read
the report of the Commissioner, who has been appointed and
submitted the report and the same is not disputed by either of
the parties. The learned Trial Judge has failed to appreciate the
fact that right from 1969 to till date, the RTC to the land
measuring 24 guntas stands in the name of the appellants.
Inspite of it, the Trial Court held that these appellants have not
challenged the revenue records. The appellants have clearly
established and rebutted the presumption by proving before the
Trial Court. Hence, it requires interference of this Court.
11. The First Appellate Court, having considered the
grounds urged in the appeal, formulated four points for
consideration, whether the Trial Court erred in decreeing the suit
of the plaintiff and the judgment and decree of the Trial Court is
perverse and capricious and whether it requires interference. In
the appeal, an application was also filed under Order 41, Rule 27
of C.P.C. by the defendants seeking to produce additional
evidence and hence, the points were also framed. On re-
appreciation of both oral and documentary evidence placed on
record, the First Appellate Court has confirmed the judgment
and decree of the Trial Court and while answering point No.3
with regard to production of additional evidence is concerned,
the Trial Court observed that the revenue records were prepared
on 12.12.2014 and mutation has been effected on 30.04.2015
and RTC extract pertaining to R.S.No.930/1 for the year 2014-15
is standing in the name of the defendants. Based on these
documents, it is contended that the respondent-plaintiff is not in
possession of the suit schedule property and comes to the
conclusion that the petition is also pending before the Tahsildar
with regard to the revenue records which have been produced
before the Court and the same has not yet reached its finality
and its correctness and legality is yet to be adjudicated. The
Trial Court also comes to the conclusion that these documents
do not meet the conditions precedent stipulated under the
provisions of Order 41, Rule 27 of C.P.C. and rejected the
application. Hence, the present second appeal is filed before this
Court.
12. The main grounds urged in the second appeal is that
the appreciation of evidence by the Courts below is perverse and
ought to have dismissed the suit. It is contended that the father
of the plaintiff had sold the suit schedule property in favour of
the father of the first defendant which is evident from Ex.D1 and
suppressing the said fact, the suit had been filed. The very
contentions of the defendants was that old Sy.No.864/1 have
been re-numbered as Sy.No.1017/1 and the said contention is
fortified by Ex.D7 and the report of the Court Commissioner.
But the same has not been appreciated by the Courts below. It
is further contended that the Court Commissioner in his report
had clearly identified the property that had been sold in favour of
the father of the second defendant. He had also observed that,
Sy.No.864/1 referred to in the said sale deed bears the new
Sy.No.1017. The sketch of Sy.No.1017/1 have also been drawn
by him which corroborates with the defence of the defendants.
As could be seen from the sketch, a Nala bifurcates the land in
Sy.No.1017/1. The southern portion is sold to Thimmaiah which
measures 8 guntas and northern portion in favour of the father
of the second defendant. However, the said aspect has been
appreciated by the Courts below, but the First Appellate Court, in
a cryptic manner upheld the judgment and decree of the Trial
Court and did not consider the various contentions urged by the
appellants-defendants in the appeal and the evidence of P.W.1
has not been appreciated by both the Courts below, wherein she
has given admission regarding assigning of new survey number.
The counsel would vehemently contend that both the Courts
below committed an error in holding that the suit schedule
property had already been sold in favour of the father of the
second defendant by the father of plaintiff in terms of Ex.D1 and
the plaintiff was never in possession of the suit schedule
property.
13. This Court, while admitting the second appeal,
framed the substantial question of law, whether the undisputed
sale in favour of the father of the appellant No.2 under the sale
deeds dated 08.06.1969 and 04.04.2006 was material evidence
along with the Commissioner's report and whether the Courts
below have erred in over-looking this evidence in decreeing the
suit.
14. This Court has secured the records of the Trial Court
and in the meanwhile, the appellants have also filed paper book
as directed by this Court and I have heard the respective
counsels on record.
15. The main contention of the learned counsel
appearing for the appellants is that the land in question is an
agricultural land and the same is not in dispute. The respondent-
plaintiff sought for the relief of permanent injunction to the
extent of 27 guntas of land. The boundaries are given in the
plaint with regard to 27 guntas of land which is situate at
Kesthur Village, Athagur Hobli, Maddur Taluk bearing
Sy.No.1017/1 which is bounded on the East by the land of
Chikkonu, West by the land of first defendant and Krishna, North
by Government Halla and South by Nala which leads to Kesthur
tank.
16. The learned counsel for the appellants-defendants
would vehemently contend that, out of total 1 acre, 8 guntas of
land, no dispute with regard to the fact that 6 guntas of land was
sold in favour of the first defendant and 8 guntas of land was
sold in favour of Thimmaiah and in total, 14 guntas of land was
sold and claim that the remaining land belongs to the plaintiff.
It is the contention of the defendants that the land measuring 1
acre, 8 guntas originally belongs to the father of the plaintiff. It
is contended that the father of the plaintiff had sold 24 guntas of
land vide sale deed dated 08.06.1969 in favour of the father of
the second defendant and while executing the sale deed,
boundary is mentioned to the extent of 30 guntas. Hence, the
sale deed was executed to the extent of 6 guntas in favour of
the first defendant and in total, 30 guntas of land was sold in
favour of the defendants.
17. The counsel would vehemently contend that, old
survey number is 864/1 and new survey number is 1017/1. The
counsel would further contend that 10 guntas of land was taken
for formation of Nala and the same runs in the middle of the
entire land of 1 acre, 8 guntas. The counsel also would contend
that the Court Commissioner has been appointed and he has
given the report stating that, 10 guntas had gone for Nala and
suit schedule property is assigned with new Sy.No.1017/1. The
counsel would vehemently contend that the report of the
Commissioner is not disputed and the sale deed of the year 1969
is produced and marked as Ex.D1 and in the boundaries, it is
mentioned as East by-Government land, West by-remaining
land, North by-Government land and South by-Government land.
The defendants have also produced the document of Ex.D7
which clearly discloses the old survey number as 864 and new
survey number as 1017/1 and this survey number is not phoded.
Though the plaintiff has denied the sale deed of the second
defendant executed by their father, the same has not been
questioned by the plaintiff. The P.Ws.1 and 2 have also
admitted that new survey number is 1017/1. The counsel would
further contend that, when the application is filed under Order
41, Rule 27 of CPC, the same was dismissed and committed
error in dismissing the application. Hence, it requires
interference.
18. Per contra, learned counsel appearing for the
respondent-plaintiff would contend that, all the documents were
standing in the name of the plaintiff as on the date of filing of
the suit, including Ex.P5-RTC Extract. It is the defence of the
defendants that old survey number is 864/1 and the same was
sold in the year 1969 to the extent of 24 guntas in terms of
Ex.D1 and the defendants claim 24 guntas of land in respect of
old Sy.No.864/1. However, the suit is filed in respect of old
Sy.No.864/1 and new Sy.No.1017/1 and Sy.No.864/1 is not
related to Sy.No.1017/1 and the total extent is also not stated
and hence, the Commissioner was also appointed and he says
that, new Sy.No.1017/1 is measuring 1 acre, 8 guntas and no
dispute with regard to the fact that 8 guntas and 6 guntas of
land was sold and 7 guntas of land was used for formation of
Nala and in total, 21 guntas of land was not in the possession of
the plaintiff and out of 1 acre, 8 guntas, the plaintiff is in
possession to the extent of 27 guntas.
19. Learned counsel appearing for the respondent-
plaintiff would further contend that both the Courts have taken
note of oral and documentary evidence placed on record and
comes to the conclusion that Sy.No.864/1 is not existing and suit
is also filed in respect of new Sy.No.1017/1. It is further
contended that both the Courts have given a concurrent finding
on appreciation of both oral and documentary evidence placed
on record and not committed any error and there is no
perversity in the judgment of the Trial Court as well as the First
Appellate Court. Hence, it does not require any interference.
20. Learned counsel appearing for the appellants-
defendants in his reply would contend that the property was sold
in the year 1969 in favour of the father of second defendant and
the Commissioner has also given the report which has not been
challenged and in terms of the Commissioner's report, Old
Sy.No.864/1 and new Sy.No.1017/1 are one and the same. The
property on the northern side is measuring 30 guntas and in the
middle, there is a Nala and other 8 guntas on the southern
portion was also sold in favour of one Thimmaiah and the
defendants are in possession to the extent of 24 guntas in terms
of the earlier sale deed and 6 guntas was purchased
subsequently and in total, the defendants are in possession to
the extent of 30 guntas and no extent is available to grant the
relief of permanent injunction in favour of the plaintiff and the
sale deed of the year 1969 has not been challenged. The very
execution of the sale deed in favour of the father of the second
defendant was suppressed by the plaintiff and obtained the
decree.
21. The learned counsel for the appellants-defendants, in
support of his argument, relied upon the judgment of the Apex
Court in ANATHULA SUDHAKAR VS. P. BUCHI REDDY
(DEAD) BY LRS. AND ORS. reported in
MANU/SC/7367/2008 and brought to notice of this Court Para
No.17, wherein the Apex Court held that, where a cloud is raised
over plaintiff's title and he does not have possession, a suit for
declaration and possession has to be filed.
22. The counsel also relied upon the judgment of the
Apex Court in PREMJI RATANSEY SHAH AND ORS. VS.
UNION OF INDIA (UOI) AND ORS. reported in
MANU/SC/0819/1994 and brought to notice of this Court Para
No.4 whether an injunction can be issued against the true owner
and held that issuance of an order of injunction is absolutely a
discretionary and equitable relief and the same cannot be
granted against the true owner.
23. The counsel also relied upon the judgment of the
Delhi High Court in M/S. SEEMAX CONSTRUCTION (P) LTD.
VS. STATE BANK OF INDIA AND ANOTHER dated
12.12.1991 and brought to notice of this Court Para No.10
wherein, it is held that a party seeking discretionary relief has to
approach the Court with clean hands is required to disclose all
material facts which may, one way or the other, affect the
decision and a person deliberately concealing material facts from
Court is not entitled to any discretionary relief of injunction.
24. The counsel also relied upon the judgment of this
Court in T.L.NAGENDRA BABU VS. MANOHAR RAO PAWAR
reported in ILR 2005 KAR 884 and brought to notice of this
Court Para Nos.34 and 51, wherein this Court observed that
taking into consideration the evidence, the identity of the suit
schedule property can be fixed and it is clearly identifiable and
observation is also made in Para No.51 that the Courts have not
taken note of the material on record and grant of injunction is
serious in nature and it affects the rights of the parties. The
Court must be very careful in evaluating the pleadings and
evidence in the matter of injunction.
25. Having heard the contentions of the counsels and the
substantial question of law framed by this Court while admitting
the appeal, this Court has to consider the material on record
whether both the Courts have committed an error in ignoring the
sale deeds which have been executed in favour of the father of
the second defendant and the first defendant, whether the
findings of the Trial Court as well as the First Appellate Court is
perverse against the material on record ignoring the
commissioner's report.
26. The main contention of the plaintiff before the Trial
Court that the suit schedule property is an ancestral property
measuring 1 acre 8 guntas and after the death of her father, her
brother-Revanna being the sole member of the family inherited
the suit schedule property and during his lifetime, he had sold 8
guntas of land in favour of K Thammaiah vide sale deed dated
11.08.2004 and also sold another 6 guntas of land in favour of
the first defendant through a registered sale deed dated
06.08.2006. The said Revanna also passed away on 04.03.2007.
It is the claim of the plaintiff that out of 1 acre 8 guntas of land,
8 guntas and 6 guntas were sold by the brother of the plaintiff
and 7 guntas of land was utilized for formation of channel and
remaining 27 guntas of land was stands in the name of the
plaintiff hence, sought for the relief of injunction.
27. On the other hand, the defendants contend that the
father of the plaintiff was having 1 acre 8 guntas of land in
Sy.No.864/1 of Kesthur village and it is their contention that out
of that 1 acre 8 guntas, father of the plaintiff had executed the
sale deed dated 08.06.1969, in favour of the second defendant
to the extent of 24 guntas. Though boundaries were mentioned,
it was realised that 30 guntas was conveyed under the sale
deed. For the documentary purpose, 6 guntas of land was sold
in favour of the first defendant by the brother of the plaintiff vide
sale deed dated 04.04.2006. It is their claim that at the time of
the execution of the sale deed to an extent of 6 guntas, new
Sy.No.1017 was mentioned but while executing the sale deed in
the year 1969, the survey number was mentioned as 864/1.
28. In order to consider the contentions of the parties,
the substantial question of law is framed by this Court with
regard to ignoring the materials on record particularly, the sale
deeds as well as the evidence on record and not considered the
commissioner's report and hence, this Court has to look into the
evidence available on record.
29. PW1 in her evidence admitted the sale of the
property of 8 guntas in favour of one Thammaiah and also 6
guntas of land in favour of the first defendant vide sale deed
dated 06.08.2006. But claims that remaining land was in her
occupation. Though she was cross-examined in length, it is
elicited that in the middle of 1 acre 8 guntas of land, channel
runs and only 7 guntas of land was utilized for formation of the
said channel. It is also elicited that on the west of the suit
schedule property, her father was also having other properties
and if the boundaries of said property was mentioned, she can
understand. It is also elicited that when survey number of suit
land was 864 and new number was assigned as 1017. It is
suggested that her father had sold the property which was on
the northern side of the channel vide sale deed dated
08.06.1969 in favour of the second defendant, the said
suggestion was denied. However, she admits selling of 8 guntas
of land in favour of one Thammaiah and also selling of 6 guntas
of land by her brother in favour of the first defendant. She also
admits the boundaries of the sale deed executed in favour of the
first defendant. It is suggested that her father had sold the
property in favour of the second defendant mentioning the old
survey number and in respect of 24 guntas of land, the kahtha
was still standing in the name of the first defendant and PW1
deposed that she was not aware of the same. It is also admitted
that the land sold in favour of the first defendant is situated on
the east of the land of the plaintiff. The plaintiff was also
examined one witness as PW2 who is the subsequent purchaser
of the land to the extent of 8 guntas and he reiterates the case
of the plaintiff and in the cross-examination, he admits that the
survey number of the property which he had purchased is
1017/1 and total extent is 48 guntas and it is suggested that old
survey number is 864/1 but he denies that he is not aware of
the same. It is suggested that Revanna has got 27 guntas of
other land and the said suggestion is admitted.
30. On the other hand, the second defendant has been
examined as DW1 and he reiterated the contents of the written
statement and subjected to the cross-examination and in the
cross-examination, he admits that in Sy.No.1017/1, total extent
of land is 1 acre 8 guntas and the same was belongs to the
father of the plaintiff and witness volunteers that the same is
owned by his father after 1969. He also admits that other than
this property, they have not having any ancestral property. He
admits that his father purchased the property in Sy.No.864/1 to
the extent of 24 guntas. He admits that the said property is
standing in the name of his father from 1969 to 1991 in respect
of Sy.No.864/1. He also admits that his wife had purchased 6
guntas of land in Sy.No.1017/1 and he admits that 10 guntas of
land was utilized for the formation of the channel but he
categorically admits that he had no document to show that the
land to the extent of 10 guntas was utilized for the formation of
the channel and denies that only 7 guntas of land was utilized
for the formation of the channel. He also admitted that inspite
of new number, he did not get changed the katha in the name of
his wife. He also admits that in respect of Sy.No.1017/1, he has
not produced any document to show that he has been in
possession of the said property and also he admits that he has
not paid any ax in respect of new Sy.No.1017/1 and he admits
that he has been paying the tax in respect of Sy.No.864/1. But
he claims that both survey numbers that is Sy.No.864/1 and
1017/1 are belonged to same property and he also admits that
while purchasing the property from Revanna, survey number is
mentioned as Sy.No.1017/1 and so also in the sale deed of
Thammaiah. He also admits that in the sale deed of 6 guntas,
nowhere it is mentioned that the same is in respect of
Sy.No.864/1 and also admits that till date also he has been in
paying the tax in respect of Sy.No.864/1. He also admits that
he has not produced any documents even after filing of the suit
that he has been in possession of the property. It is elicited that
the land which is sold to the extent of 6 guntas, 8 guntas and 7
guntas of land which has utilized to the channel and remaining
land, the plaintiff is in possession and the said suggestion is
denied. He also admits that he has not produced any document
for having resurveyed the land and also not produced any
endorsement with regard to resurvey of the land. He also
admits that he cannot tell the boundaries to the extent of 1 acre
8 guntas but he can tell the boundaries to the extent of 24
guntas. He also cannot say that in which year, Sy.No.864/1
renumbered as Sy.No.1017/1. It is also elicited that he cannot
tell the extent of 27 guntas of land of the plaintiff. He cannot
tell what is the extent of Sy.No.1017/1 when the property was
purchased in the year 2007 in the name of his wife. It is also
elicited that he has given an application for transfer of katha to
the extent of 30 guntas after purchasing the property and the
same is pending. It is elicited that Sy.No.864/1 is in Yedenahalli
survey number and the same is different property and the said
suggestion was denied. In Sy.No.1017/1, in total, 33 guntas, he
had purchased only 6 guntas of land. He also admits that when
Sy.No.864/1 was renumbered as Sy.No.1017/1, the documents
will be there in the revenue department. It is his claim that in
Sy.No.864/1, total extent is 40 guntas and out of that 10 guntas
was given to the channel. It is suggested that he has falsely
deposing that they have purchased 30 guntas of land and the
said suggestion was denied and it is suggested that on the east
of 24 guntas of land, the plaintiff's property of Chikonu is located
and the said suggeston was denied.
31. The defendants have also examined one witness as
DW2 who in his evidence says that the defendants are in
possession and enjoyment of 30 guntas of land and given the
boundary description and they are in possession from the last 40
years. It is also his evidence that he is owning the landed
properties towards west of disputed land one furlong away from
the same. The plaintiff's 5 guntas of land is lying fallow and
disputed land is comes in Kesthur survey number. The plaintiff is
also his relative. The disputed 30 guntas of land was sold by the
father of the plaintiff in favour of Krishnaiah about 40 years ago
and put him in possession, but about 4 years back, the said land
was measured and at that time, it was found that the land in
possession of defendants is 30 guntas and panchayat was
convened and decided to execute the sale deed to the excess
land of 6 guntas and accordingly, the plaintiff's brother Revanna
executed the sale deed in favour of Sampoornamma in the year
2004. This witness was subjected to the cross-examination. In
the cross-examination, he admits that he cannot tell whether
Sy.Nos.864/1 and 1017/1 are one and the same or not and also
he cannot tell that what is the extent of the land in
Sy.No.1017/1. He admits that 30 guntas of boundary was given
and when found that 6 guntas was less while executing the
subsequent sale deed, the same is mentioned and he claims that
10 guntas may be given to channel. It is suggested that only 7
guntas was given for channel but he says that he cannot tell how
much land was given to the channel. It is suggested that out of
1 acre 8 guntas in Sy.No.1017/1, 7 guntas was given to channel,
8 guntas was sold in favour of Thammaiah and 6 guntas was
sold in favour of the first defendant and in the remaining 24
guntas, the plaintiff is in possession and the said suggestion was
denied and he says that he cannot tell the survey numbers. It is
suggested that the first defendant purchased 6 guntas of land in
Sy.No.1017/1 and 24 guntas was purchased by the second
defendant in Sy.No.864/1 for that he says that he cannot tell the
survey number. It is suggested that he is not having cordial
relationship with the plaintiff's family hence, in order to give
trouble, he is giving evidence on behalf of the defendants and
the said suggestion was denied. He also admits that he has not
seen the revenue records of 24 guntas and 5 guntas of land. It
is suggested that the plaintiff is in possession of 27 guntas of
land and the said suggestion was denied and it is suggested that
he is falsely deposing before the Court to help the defendants
and he said suggestion was also denied.
32. Having considered both oral and documentary
evidence available on record, it is the claim of the plaintiff that
out of 1 acre 8 guntas as well as 6 guntas of land was sold in
favour of Thammaiah and also in favour of first defendant and 7
guntas of land was used for formation of channel. In total, 21
guntas of land was not in possession of the plaintiff and she has
been in possession to the extent of remaining 27 guntas. It is
also her claim that earlier the survey number was 864 and the
same is changed as Sy.No.1017. The contention of the
defendants that out of 1 acre 8 guntas, admittedly, 8 guntas was
sold in favour of Thammaiah and 6 guntas was sold in favour of
the first defendant and 10 guntas of land was taken for
formation of channel and the remaining area is only 24 guntas
and the said 24 guntas of land was sold by the father of the
plaintiff vide Sale Deed - Ex.D1 dated 08.06.1969. In order to
prove their contentions, the parties have led their evidence and
marked both plaintiff's series and defendants' series.
33. In the chief evidence of P.W.1, it is elicited that the
property was the ancestral property of their father to the extent
of 1 acre 8 guntas and after the death of the father, the property
was transferred in favour of the plaintiff's brother Revanna and
he had sold only 8 guntas and 6 guntas in his lifetime and he
was cultivating the remaining land i.e., out of 1 acre 8 guntas.
It is also his claim that only 7 guntas of land was taken for
formation of the channel.
34. In the cross-examination, P.W.1 also admits that
Sy.No.1017/1 measuring 1 acre 8 guntas is the ancestral
property of her father and also admits formation of channel in
the middle of the said property and specifically deposed that 7
guntas was taken for formation of channel and also admits that
the said channel runs towards East to West. On the southern
side, 8 guntas was in existence and the remaining land is on the
northern side. It is also elicited in the cross-examination of
P.W.1 that on the west side of the suit schedule property; her
father was also having the other property. It is elicited that old
number of the suit property was Sy.No.864 and the new number
assigned as Sy.No.1017, but denied the execution of the Sale
Deed by the father in favour of second defendant on 08.06.1969.
However, P.W.1 admits her brother has sold 8 guntas of land in
favour K.Thammaiah and the remaining 6 guntas of land on the
northern side of the channel was sold to the first defendant by
her brother. But it is the claim of the defendants that there was
excess land of 6 guntas apart from the Sale Deed dated
08.06.1969. Hence, the Sale Deed was executed and the same
was denied. It is contended that the first defendant is having
Khatha to the extent of 24 guntas of land and the same was
denied.
35. The other witness - P.W.2, who is the purchaser of 8
guntas of land. A suggestion was made that old Sy.No.864/1,
the same was denied that he is not aware of it and also
suggested to the witness P.W.2 that, Revenna was having other
27 guntas of land and the same was admitted. Hence, it is clear
that the very suggestion made to P.W.2 that the brother of
plaintiff was having 27 guntas of land, but the only dispute is
that both of them are claiming the said property belongs to
them. No dispute with regard to having purchased 6 guntas of
land in the name of the first defendant and also the same is from
Sy.No.1017/1 and while purchasing the property in the name of
the first defendant, survey number is mentioned as
Sy.No.1017/1.
36. It is important to note that a suggestion was made
that 7 guntas of land was taken for channel and the said
suggestion was denied. But he claims that it was 10 guntas.
But, he categorically admits that he has not produced any
documents to show that 10 guntas of land was used for
formation of channel and also he categorically admits in the
cross-examination that in the Sale Deed, the survey number is
mentioned as 864/1. But he claims that it is mentioned as
Yadanahalli Survey Number that means Kesturu Village Elle and
mentioned as Yadanahalli, but the same is a spelling mistake.
He admits that the village is in existence in the name of
Yadanahalli and also he admits that he is residing in Yadanahalli
Village. But he claims that old Sy.No.864/1 after re-survey the
new number was assigned as Sy.No.1017/1. He categorically
admits that he did not get the Khatha changed to a new number.
He also admits that he has not produced any documents to show
that he has been in possession in respect of Sy.No.1017/1 and
also categorically admits that he has not paid any tax in respect
of Sy.No.1017/1, but he claims the tax is paid in respect of
Sy.No.864/1. He also claims that both Sy.No.No.864/1 and
Sy.No.1017/1 are one and the same. But categorically admits
that while purchasing the property from one Revenna, the
survey number is mentioned as Sy.No.1017/1 and while selling
the property in favour of Thammaiah, it is mentioned as
Sy.No.1017/1 and also categorically admits that while
purchasing the property to the extent of 6 guntas, Sy.No.864/1
has not been mentioned and categorically admits that till date
they are paying tax in respect of Sy.No.864/1. It is also
important to note that he categorically admits that he cannot tell
when the new number was assigned to old Sy.No.864/1 as
Sy.No.1017/1 and he cannot tell the entire boundary to the
extent of 1 acre and 8 guntas.
37. Having considered all these materials available on
record both oral and documentary evidence, it is clear that the
Sale Deed executed in the year 1969 in favour of father of
D.W.1, in respect of Sy.No.864/1. He cannot tell when the
survey number was re-numbered as Sy.No.1017/1. The learned
counsel appearing for the appellants mainly relied upon the
document of Ex.D7 which has been produced by the plaintiff
before the Court. It is very clear that Ex.P2 is in respect of
Mutation Register Extract, which clearly shows that by virtue of
Ex.D4, the name of defendant No.1 has been mutated. Ex.D4
shows that the name of the plaintiff has been mutated in respect
of 27 guntas, it is the claim made by the plaintiff as suit
schedule property. Exs.P5 to P8 are the RTC Extracts which are
standing in the name of father of the plaintiff - Hosaborahegde.
Exs.P5 to P8, the certified copies of RTC extracts clearly shows
that since 1969-1970, the name of Hosaborahegde is mentioned
in respect of Sy.No.1017/1. The RTC extracts are also supports
the contention of the plaintiff. The father had inherited the
property in Sy.No.1017/1. But the claim of defendants is that
old Sy.No.864/1 in terms of Ex.D1. In Ex.D1, it is mentioned as
Sy.No.864/1 and also admitted in the cross-examination that till
date, the defendant is paying the tax in respect of Sy.No.864/1
and the document has not been transferred in respect of
Sy.No.1017/1. It is clear that as on the date of the Sale Deed
dated 08.06.1969, the property was having Sy.No.1017/1 as per
Ex.P5. Hence, it is clear that Sy.No.864/1 re-numbered as
Sy.No.1017/1 is doubtful. Ex.D7, a copy of the survey record
pertaining to Sy.No.1017/1, the same did not come to the aid of
the defendants that Sy.No.864/1 has been assigned with new
Sy.No.1017/1. It is also elicited from the mouth of P.W.2
suggesting by the defendants' counsel itself that the plaintiff's
brother Revenna was having 27 guntas of other land and no
doubt the Commissioner also filed the report stating that
Sy.No.864 was Gomal land and the same was re-numbered as
Sy.No.1017. He says that earlier it was Sy.No.864.
38. It is also the case of the plaintiff that earlier old
survey number is 864 and new survey number is 1017. The land
measuring 01 acre 10 guntas including kharab in Sy.No.1017.
The Commissioner also in his report he has stated that
Sy.No.864 is situated in new Sy.No.1017. It is not the contention
of the Court Commissioner that Sy.No.864/1 and Sy.No.1017/1
are one and the same. He also reported that the entire
Sy.No.864 is comprised with 33.20 acres and Sy.No.1017 is 2.29
acres and it is having 3 phodies. These are the aspects to be
considered by the Trial Court as well as the First Appellate Court
and comes to the conclusion that without the documentary proof
it cannot be believed that Sy.No.864/1 is Sy.No.1017/1 as
contended by the defendants. Total extent of land in Sy.No.864
is 33.20 acres and also in Sy.No.1017 is 2.2 acres; the same is
having three phodies. When such being the material and when
the documentary evidence available before the Court and all the
documents are stand in the name of the plaintiff as on the date
of filing the suit and the Court has to see that whether the
plaintiff has been in possession as on the date of the suit. It is
also admitted by D.W.1 that he is paying the tax in respect of
Sy.No.864/1 only and not in respect of Sy.No.1017/1. When no
material has been placed by the defendants that he has been in
possession and enjoyment of the property in Sy.No.1017/1,
except the extent of 6 guntas, which they have purchased in the
said survey number, the very contention of the
defendants/appellants cannot be accepted. The defendants
claim right in respect of 24 guntas in respect of Sy.No.864/1 as
per the Sale Deed - Ex.D1. When such being the case and when
the revenue records are standing in the name of the plaintiff as
on the date of filing the suit and the scope of the suit for
injunction is very limited and the Court has to examine whether
on the date of filing the suit, the plaintiff is in possession or not,
any interference and defendant is also interfering and claiming
that Sy.No.1017/1 belongs to him. Hence, there is an
interference. Hence, the Trial Court taken note of these facts
into consideration and also the First Appellate Court on re-
appreciation also taken note of the defendants did not place any
material that old Sy.No.864/1 becomes new No.1017/1 as
claimed. Hence, the very contention of the learned counsel for
the appellants cannot be accepted.
39. No doubt, the learned counsel appearing for the
appellants relied upon the judgment in ANATHULA
SUDHAKAR's case (supra), the same is not applicable to the
facts of the case on hand. First of all, the suit is filed for bare
injunction and not for any other relief. The plaintiff also placed
the documents with regard to her claim in respect Sy.No.1017/1,
which is in existence from the year 1969 even as on the date of
the father of the second defendant purchasing the property in
the year 1969 and also categorically admit that he cannot tell in
which year the old Sy.No.864/1 was assigned with new number
and the title is not in dispute and only the claim is that they
have purchased the property in the year 1969, but Sale Deed
discloses Sy.No.864/1 and not new Sy.No.1017/1. He is also
paying the tax in respect of Sy.No.864/1 and he claims that the
Khatha and all stand in respect of Sy.No.864/1 and not
Sy.No.1017/1. The defendant has to seek the comprehensive
relief in respect of his claim that he has got the title when he is
claiming that Sy.No.1017/1 belongs to him but the Sale Deed
discloses Sy.No.864/1. The plaintiff need not seek for the better
relief as contended by the learned counsel for the appellants in
view of the judgment referred supra.
40. No doubt, the learned counsel appearing for the
appellants also relied upon other judgments, there cannot be
any temporary injunction against the true owner but the
documents stand in the name of the plaintiff throughout in
respect of Sy.No.1017/1. Hence, the said contention also cannot
be accepted. The other two judgments of Delhi High Court and
also this Court, no doubt, the principles is very clear in a suit for
declaration, the party who seeks for the discretionary relief, he
has to approach with clean hands. The Court also should be
careful in evaluating the pleadings and evidence in the matter of
injunction.
41. In the case on hand, both the Trial Court as well as
the First Appellate Court have taken note of the documentary
evidence and the defendants claim rights in respect of
Sy.No.864/1 and new Sy.No.1017/1 and all the documents not
discloses any documentary proof with regard to Sy.No.1017/1 as
claimed by the defendants and instead of the plaintiff's
documents clearly discloses in respect of Sy.No.1017/1.
42. Under the circumstances, I do not find any merit in
the second appeal to come to a conclusion that both the Courts
have ignored the material on record and no doubt this Court
while admitting the appeal framed the substantial question of
law that there was a sale deed dated 08.06.1969 in favour of
appellant No.2. But the same is in respect of Sy.No.864/1 and
not in respect of Sy.No.1017/1. The appellants have failed to
prove that Sy.No.864/1 becomes Sy.No.1017/1. Both the Courts
after considering both oral and documentary evidence placed on
record came to the conclusion that the plaintiff has made out a
case to grant the relief of permanent injunction and the dispute
is not in respect of the property of the plaintiff and defendants'
claim is Sy.No.864/1 become Sy.No.1017/1, and he failed to
prove the same and all the documents pertaining to
Sy.No.864/1. Both the Courts have taken note of the date of
execution of the Sale Deed in favour of the father of defendant
No.2. Sy.No.1017/1 is in existence in terms of Exs.P5 to P8 and
the Sale Deed also in respect of Sy.No.864/1 of Yadanahalli
Village. It is also the claim of the plaintiff that Sy.No.864/1
belongs to Yadanahalli Survey Number and not in respect of
Kesthuru Survey number and the same is also admitted by
D.W.1 in the cross-examination, it is mentioned as Yadanahalli
Village and the same is a spelling mistake. When such material
is available on record, I do not find any merit in the appeal to
reverse the concurrent finding of the Trial Court as well as the
First Appellate Court. Hence, I answer the substantial question
of law as 'negative'.
43. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
ST/SN/cp*
