Smt G Ambika vs Chandra
2023 Latest Caselaw 4913 Kant

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                                                          NC: 2023:KHC:26285
                                                              RFA No. 634 of 2018




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 27TH DAY OF JULY, 2023

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


                        REGULAR FIRST APPEAL NO. 634 OF 2018 (INJ)
                   BETWEEN:

                   Smt G. Ambika
                   D/o. Late Gaviyappa,
                   51 years,
                   R/o.No.337, Lakshmi Road,
                   7th Cross, Shantinagar,
                   Bengaluru-560 027.
                                                                         ...Appellant
                   (By Sri.Shivashankar S.K., Advocate)

                   AND:

                   Chandra
                   S/o. Late Ganesh,
                   Aged about 28 years,
Digitally signed
                   R a/t No.37, Rayasandra Village,
by BANGALORE
MADHAVACHAR
                   Huskur Post,
VEENA
Location: High
                   Sarjapur Hobli,
Court of
Karnataka
                   Anekal Taluk -562 106.
                   Bangalore Rural District,
                   Bangalore.
                                                                      ...Respondent
                   (By Sri. Chandan M.N., for
                   Sri. Ramesh Adithya, Advocate)

                                                  ***
                          This Regular First Appeal is filed under Section 96 of the
                   Code of Civil Procedure, 1908, with the following prayers:
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                                           NC: 2023:KHC:26285
                                                 RFA No. 634 of 2018




   "1. Call for the records

   2.    Set aside the judgment and           passed by the dated
   5/1/2018 passed in OS NO.7438/2013 filed by the appellant
   on the file of XXXIX additional City Civil and Sessions Judge
   at Bangalore (C.C.H.40) by allowing this appeal and decree
   the suit in the interest of justice and equity;

   3. To award costs."



        This Regular First Appeal coming on for Final Hearing
through Physical Hearing/Video Conferencing, this day, the
Court delivered the following:

                         JUDGMENT

This is a plaintiff's appeal. The present appellant as

a plaintiff had instituted a suit against the present

respondent, arraigning him as the defendant in

O.S.No.7438/2013, in the Court of the learned XXXIX

Additional City Civil Judge, Bangalore City, (hereinafter for

brevity referred to as "the Trial Court"), seeking the relief

of permanent injunction against him and his servants,

agents or any man on his behalf from interfering with her

peaceful possession and enjoyment of the suit schedule

property.

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2. The summary of the case of the plaintiff in the

Trial Court was that, the suit schedule property which

was carved out in the land bearing Survey No.45/4 was

originally belonging to one Smt. Thimmakka, W/o.

Chikkaramaiah. The said Smt. Thimmakka, joined by her

sons, namely, Sri. Gundappa, Sri. Gowri Shankar and

Sri. Balappa, registered a General Power of Attorney

(hereinafter for brevity referred to as "the GPA") on the

date 03-06-1993, in favour of one Sri.L. Venkatesh S/o.

Lakshma Reddy, in respect of 26 guntas of land in

Sy.No.45/4 of Parappana Agrahara Village, Begur Hobli,

Bangalore South Taluk. In turn, the said Sri.L. Venkatesh

executed a registered Sale Deed dated 23-01-2004 in

favour of his wife - Smt. V. Manjula. The said

Smt. V. Manjula formed sites in the said land and one

among those sites, i.e. site bearing No.72, formed in

Sy.No.45/4 of Parappana Agrahara Village, measuring East

to West - 40 ft. and North to South - 30 ft., totally

measuring 1200 sq.ft. and bounded on the East by a Road,

West by Site No.73, North by Site No.67 and South by a

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Road, was sold to the present plaintiff, under a registered

Sale Deed dated 01-03-2005. The plaintiff has further

contended that since the date of purchase of the suit site

by her, she has been in lawful possession and enjoyment

of the suit schedule property having put up a construction

of a Shed in the suit schedule property and also erecting

a compound around the suit schedule property.

It is further the contention of the plaintiff that, the

same being the case, in the first week of September 2013,

when she had been to the suit schedule property, the

defendant approached her and claimed his right over the

suit schedule site, stating that he has purchased the said

suit schedule site on the date 08-08-2013 from one

Sri.N. Krishnappa. The plaintiff contended that since the

defendant interfered in her lawful possession, she was

constrained to file the present suit for the relief of

permanent injunction.

3. In response to the suit summons served upon

him, the defendant appeared before the Trial Court

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through his counsel and filed his Written Statement. In

his Written Statement, the defendant denied the plaint

averment to the extent that the plaintiff has been the

purchaser in possession of the suit schedule property. On

the contrary, he contended that the land in Sy.No.45/4

was totally measuring 02 Acres and was belonging to one

Smt. Thimmakka, W/o. Chikkaramaiah. It was during her

lifetime, said Smt. Thimmakka formed sites with the help

of her sons, namely Sri. Gundappa, Sri. Gowri shankar,

and Sri. Balappa. on the date 07-07-1993, the said

Smt. Thimmakka, as the absolute owner in possession of

the entire land in Sy.No.45/4, measuring 02 Acres and

forming sites thereupon, sold the Site No.72, measuring

East to West - 30 ft., North to South - 40 ft., in favour of

one Sri. N. Krishnappa, by executing a General Power of

Attorney (GPA) and affidavit with full settlement

agreement, empowering Sri. N. Krishnapa to deal with the

said site.

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The defendant further contended that in turn, the

said Sri. N. Krishnappa, as an absolute owner in

possession of the suit schedule property executed a

registered Sale Deed dated 08-08-2013 in his favour (the

defendant) of the very same site No.72. To the said Sale

Deed, one of the sons of Smt.Thimmakka by name

Sri. Gowri Shankar also subscribed his signature as a

consenting witness. The defendant contended that his site

(Written Statement schedule site) is bounded on the East

by a Road, West by site No.73, North by site No.68 and

South by a Road. It is also contended by the defendant

that, he is also the owner of site No.68 situated on the

Northern side and in turn, he has sold the same to one

Tamil Selvi recently. He contended that the boundaries

mentioned in the plaint with respect to the suit schedule

site are not correct.

The defendant also contended that subsequent to he

purchasing the said site, he obtained electricity supply

connection, put up a small house where his labourers are

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residing and he has been paying the taxes to the said

property after getting the khata made in his name. He

denied the alleged interference by him in the suit schedule

site, on the contrary, contended that it was the plaintiff

who was interfering in his property.

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

Court framed the following issues for its consideration:

(1) Does the plaintiff prove that she is in peaceful possession and enjoyment of suit property as on the date of suit?

(2) Does the plaintiff prove that there is interference by the defendant to her peaceful possession and enjoyment over the suit property?

(3) Does the plaintiff prove that, she is entitled for the relief of permanent injunction against the defendant?

(4) What order or decree?

5. In support of her case, the plaintiff got herself

examined as PW-1 and also got examined Sri. Ravikumar

G., her younger brother, as PW-2 and got marked

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documents from Exs.P-1 to P-9. On behalf of the

defendant, he himself got examined as DW-1 and also got

examined one more person by name Sri. Gundappa, as

DW-2 and got produced and marked Exhibits D-1 to D-9.

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

impugned judgment and decree dated 05-01-2018 while

answering all the issues framed by it in the negative,

dismissed the suit of the plaintiff with costs. Aggrieved by

the same, the plaintiff has preferred the present appeal.

7. The learned counsel for the appellant (plaintiff)

and learned counsel for respondent (defendant) are

appearing physically before the Court.

8. The Trial Court records were called for and the

same are placed before this Court.

9. Heard the arguments of the learned counsel for

the plaintiff (appellant herein) and the learned counsel for

the defendant (respondent herein).

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10. Perused the material placed before this Court

including the impugned judgment, memorandum of

Regular First Appeal and the Trial Court records.

11. For the sake of convenience, the parties herein

would be henceforth referred to as per their rankings

before the Trial Court.

12. Learned counsel for the plaintiff (appellant

herein) in his brief argument submitted that, in order to

show that she is the lawful owner of the suit schedule site,

the plaintiff has produced a notorised copy of the

registered Sale Deed dated 01-03-2005 at Ex.P-1. She

has also produced the copy of the Sale Deed of her vendor

of the suit schedule property. Further, he contended that

Form B Khata Extract has been issued by the Bruhat

Bengaluru Mahanagara Palike (hereinafter for brevity

referred to as "the BBMP") in favour of the plaintiff and the

taxes are being paid by her on the suit schedule property

which are all established through the documents which are

marked as Exhibits by her.

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Learned counsel further stated that the photographs

at Ex.P-8 show the photograph of the suit schedule

property. He submitted that, though the defendant

contends that he had the electricity supply connection to

the Written Statement schedule property, however, Ex.P-9

shows that the said electricity supply was disconnected, as

such, it cannot be believed that the defendant had got the

electricity supply connection to the suit schedule property.

With this submission, the learned counsel for the plaintiff

(appellant herein) submitted that, the Trial Court, without

considering these aspects, has suspected the existence of

the site and dismissed the suit of the plaintiff, which

finding of the Trial Court is erroneous, as such, the same

warrants interference at the hands of this Court. Thus, he

submitted that the appeal filed by the plaintiff deserves to

be allowed.

13. Per contra, the learned counsel for the

defendant (respondent herein) in his brief argument

submitted that, the plaintiff's contention that she has got

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documents to show her alleged possession over the suit

schedule property would not take away the value of the

documents produced by the defendant. The defendant has

produced a Sale Deed dated 08-08-2013 standing in his

name, at Ex.D-2 and has produced six tax paid receipts,

encumbrance certificate and also Form B Property Register

Extract. He stated that the acknowledgments for payment

of tax are also produced by him. Reiterating that the

defendant has obtained the electricity supply connection

to the property and is residing therein, the learned counsel

submitted that, Exs.D-7 to D-9 are the documents to that

effect. With this, he submitted that unless the plaintiff

proves the identity of the suit schedule property and her

possession over the said property, she is not entitled for

the relief of permanent injunction. Thus the Trial Court has

rightly dismissed the suit of the plaintiff, which does not

call for interference by this Court.

14. In the light of the argument addressed by the

learned counsels from both side and other materials

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placed before this Court, the points that arise for my

consideration in this appeal are :

i] Whether the plaintiff has proved her lawful possession over the suit schedule property as on the date of filing of the suit?

ii] Whether the plaintiff has proved the alleged interference by the defendant upon the suit schedule property as alleged in the plaint?

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

15. In order to prove her case, the plaintiff got

herself examined as PW-1, who, in her examination-in-

chief in the form of affidavit evidence has reiterated the

contentions taken up by her in her plaint. To show that

she is the purchaser of the suit schedule property and in

possession thereof, she has produced a photocopy of the

Sale Deed dated 01-03-2005 and a notorised copy of the

alleged Sale Deed in her favour with respect to the suit

schedule property which are marked at Ex.P-1

and P-1(A) respectively. Both these documents are said

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to be the copies of the very same original Sale Deed dated

01-03-2005. She has also produced a certified copy of

the General Power of Attorney dated 03-06-1993 shown to

have been executed by Smt. Thimmakka and her three

sons in favour of one Sri. L. Venkatesh. She has produced

a copy of the Sale Deed dated 23-01-2004 to show that 26

Guntas of land have been sold by said Sri. L. Venkatesh in

favour of his wife - Smt. V. Manjula, under a registered

Sale Deed. She has produced RTC extract at Ex.P-4 to

show the standing of the property in Sy.No.45/4 in the

name of Smt. Thimmakka and her family members. She

has produced Form B Property Register Extract issued by

the BBMP and contended that the khata in the form of 'B'

khata with respect to the suit schedule property stands in

her name. Apart from these documents, the plaintiff has

also produced six tax paid receipts showing the payment

of the property tax with respect to the suit schedule

property by her to the BBMP, Bommanahalli Sub-division,

Bengaluru. She has produced the Encumbrance Certificate

for the period from 01-01-2005 to 20-09-2013 and got it

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marked at Ex.P-7, which document evidences the sale of

the property described as suit schedule property from

Smt. V. Manjula to the present plaintiff on the date

01-03-2005. Producing two colour photographs and

marking them at Ex.P-8, the plaintiff contended that those

photographs are with respect to the suit schedule

property.

16. According to the learned counsel for the plaintiff

(appellant herein), the Shed and the Compound that can

be seen in the said photographs were put up by the

plaintiff. PW-1 also got produced a letter issued to her by

the Bangalore Electricity Supply Company Limited

(hereinafter for brevity referred to as "the BESCOM"), in

response to her application under Right to Information Act,

2005 (hereinafter for brevity referred to as "the RTI Act"),

giving the electricity supply details with respect to site

No.72 of Parappana Agrahara Village.

17. The plaintiff, in support of her contention also

got examined one Sri. Ravi Kumar G., who is her younger

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brother, as PW-2, who, in his examination-in-chief in the

form of affidavit evidence has reiterated the contentions

taken up by the plaintiff both in her plaint as well in her

evidence as PW-1. He too has identified the documents

produced and exhibited by the plaintiff as the documents

pertaining to the suit schedule property including the

photographs at Ex.P-8.

18. The defendant - Sri.G. Chandra got himself

examined as DW-1, who, in his examination-in-chief in

the form of affidavit evidence, has reiterated the summary

of the contentions taken up by him in his Written

Statement. In support of his contention, he got produced

the alleged GPA dated 07-07-1993 said to have been

executed by Smt. Thimmakka in favour of Sri. N.

Krishnappa, empowering him to deal with site No.72

measuring 30 feet x 40 feet carved out in Sy.No.45/4 in

Parappana Agrahara Village, Bangalore South Taluk. To

support his contention that he purchased the said site

No.72 from the said GPA holder - Sri.N. Krishnappa, under

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a registered Sale Deed dated 08-08-2013, the defendant

has produced the Sale Deed dated 08-08-2013 at Ex.D-2.

To show that he is in possession of the property and

paying the taxes, he has produced six tax paid receipts at

Ex.D-3. These tax paid receipts would go to show that,

with respect to the property shown in the said document

as 'Sy.No.45/4-72', the defendant is paying the tax. He

has also produced Form B Property Register Extract issued

by the BBMP with respect to the said property which is

shown as 'Sy.No.45/4-72'. To show that he has obtained

electricity supply connection to the said property, the

defendant has produced a payment receipt shown to have

been issued by the BESCOM and dated 13-09-2013 at

Ex.D-7. He has also produced a tax invoice/Bill showing

the purchase of single phase electricity Meter at Ex.D-8

and other electricity installation charges details with the

certificate by BESCOM authority at Ex.D-9.

19. The defendant, apart from examining himself as

DW-1, has also got examined one more witness by name

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Sri.Gundappa as DW-2, who, in his evidence has

supported the case of the defendant stating that the

defendant is the purchaser in possession of the property

described in the Written Statement. The witness,

identifying himself as one among the children of

Smt. Thimmakka, has stated that, his mother had sold the

suit property to one Sri. N. Krishnappa and had delivered

the possession by virtue of GPA and full settlement

agreement.

20. In the instant case, both the plaintiff and the

defendant have produced a similar set of documents to

prove their respective alleged possession over the suit

schedule property. From their pleading as well the

evidence, the undisputed fact remains that the suit

schedule site No.72 of Parappana Agrahara Village, which

both of them claim to have purchased from their

respective vendors has been carved out in a land bearing

original Sy.No.45/4. It is also not in dispute that the said

land bearing Sy.No.45/4 in Parappana Agrahara Village,

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Bangalore South Taluk was originally belonging to one

Smt. Thimmakka and her three sons. The vendors of the

suit schedule site No.72 both to the plaintiff and to the

defendant claim that it is through the General Power of

Attorney executed by said Smt. Thimmakka and her sons,

the property has subsequently passed on to the

subsequent purchasers.

21. According to the plaintiff, the said

Smt. Thimmakka and her three children had executed a

General Power of Attorney as per Ex.P-2 in favour of one

Sri.L. Venkatesh with respect to the land, measuring an

extent of 26 Guntas in Sy.No.45/4 and the said

Sri.L. Venkatesh sold the said land measuring 26 Guntas

in favour of his wife Smt.V. Manjula, under a registered

Sale Deed dated 23-01-2004, copy of which Sale Deed is

at Ex.P-3. According to the plaintiff, the said Smt. V.

Manjula carved few sites in the said land measuring 26

Guntas, out of which, site No.72 was purchased by her

from the said Smt. V. Manjula, under a registered Sale

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Deed dated 01-03-2005, the copies of which documents

are at Exs.P-1 and P-1(A).

22. Though the said contention of the plaintiff prima

facie appears to show the flow of title, however,

admittedly, no alleged Layout Plan has been produced by

the plaintiff to show that the said Smt. V. Manjula formed

a Layout in 26 Guntas of land. In fact, the plaintiff, as

PW-1 in her cross-examination has pleaded her ignorance

to several of the aspects including she verifying the

documents before purchasing the site from Smt.V.

Manjula. She has stated that her vendor Smt. V. Manjlula

had not given her a Layout Plan. She even pleaded her

ignorance that she does not even know in which survey

number, the said site was carved out. Thus, for several

basic questions, the witness has pleaded her ignorance.

She even pleaded her ignorance about the fact as to

whether the original executant of the General Power of

Attorney - Smt. Thimmakka was alive or not, as on the

date of execution of the alleged GPA in favour of

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Sri.L. Venkatesh. Thus the plaintiff, as a purchaser of the

site is not aware as to whether the original executant of

the Power of Attorney - Smt. Thimmakka was alive as on

the date when the alleged GPA holder - Sri.L. Venkatesh

had sold 26 Guntas of land in Sy.No.45/4, under a

registered Sale Deed dated 23-01-2004 in favour of his

wife Smt. V. Manjula. However, except making a

suggestion to PW-1 to the effect that Smt. Thimmakka

was not alive on the said date, no material is placed from

the defendant's side also to show that said Thimmakka

was not live as on the date of execution of the registered

Sale Deed dated 23-01-2004. Still, the fact remains that

the plaintiff has neither seen nor secured nor even verified

the Layout Plan, which, according to the plaintiff, has

made her vendor Smt. V. Manjula to form a Layout and to

sell the suit schedule property to her. Therefore,

when the formation of Layout and carving of site No.72

itself could not be established, overcoming some

basic doubts, it becomes hard to jump to a

conclusion that a Layout was formed by Smt. V. Manjula,

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carving a site No.72 in it. Thus the subsequent documents

which are alleged to be Form B Property Register Extract

and tax paid receipts at Exs.P-5 and P-6, would not add

any further strength to the case of the plaintiff. However,

considering the said documents at Ex.P-5 and Ex.P-6

independent of the alleged Layout Plan, they show that a

particular site bearing No.72 has been assessed for the

tax purpose in the name of the plaintiff. The Form B

Property Register Extract at Ex.P-5 also describes the

property as '45/4-72'.

23. The defendant is claiming title to the property

also through a General Power of Attorney said to have

been executed by the very same Smt. Thimmakka,

however, in favour of one Sri. N. Krishnappa.

Though the defendant in his Written Statement has

called the said N. Krishnappa as the absolute owner

of the property who has executed Sale Deed in his favour,

however, the documents produced by the defendant

including the GPA at Ex.D-1 and the Sale Deed at Ex.D-2

would only go to show that, the said Sri.N.

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Krishnappa has executed the Sale Deed in favour of the

defendant not as an absolute owner but only as a General

Power of Attorney for the said Smt.Thimmakka.

24. Incidentally, the differences/variations that

could be noticed between the two General Power of

Attorneys (GPAs)i.e. between the GPA alleged to have

been executed in favour of Sri. L. Venkatesh, at Ex.P-2

and the other GPA alleged to have been executed in favour

of Sri.N. Krishnappa, at Ex.D-1 by the very same Smt.

Thimmakka are that, though both of them are shown to

have been executed by one Smt.Thimmakka, however, in

Ex.P-2, in addition to the said Smt.Thimmakka, her three

sons by names Sri. Ganesh (DW-2), Sri.Gowri Shankar

and Sri. Balappa are also shown as the joint executants of

the said GPA in favour of Sri.L. Venkatesh. Whereas the

other GPA at Ex.D-1 is executed only by Smt. Thimmakka,

in her individual capacity, in favour of Sri.N Krishnappa,

who in turn was the alleged vendor of the site to the

defendant. In case if the said property does not stand in

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the name of Smt. Thimmakka alone, but it belongs to

Smt. Thimmakka and her three children who have

executed GPA at Ex.P-2, then the GPA at Ex.D-1 and the

subsequent Sale Deeds in favour of the defendant at

Ex.D-2 raises some questions about their reliability and

the passing of title upon the defendant.

25. The plaintiff has produced Form B Property

Register Extract at Ex.P-5. Even the defendant also has

produced Form B Property Register Extract at Ex.D-5 and

six tax paid receipts at Ex.D-3. Incidentally, the property

number even in Ex.D-5 also is shown as '45/4-72' which is

exactly the same as in Ex.P-5 which is standing in the

name of the plaintiff. Thus, with respect to the very same

property number, i.e. '45/4-72', though with different

serial numbers (first column in the document) and might

be with different boundaries, two separate Form B

Property Register Extracts have been issued and the

BBMP appears to be collecting taxes from both the plaintiff

and the defendant for the same property No.45/4-72. As

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such, it appears to be not safe to rely solely upon the

Form B Property Register Extract or the tax paid receipts

to conclude as to who is the actual owner in possession of

the suit schedule property.

26. In the above background, the evidence of PW-2

and DW-2, whose evidence is nothing but a summary of

the evidences of PW-1 and DW-1 respectively, would not,

in any manner, further strengthen the case of either the

plaintiff or the defendant.

27. In the light of the above observation that both

the plaintiff and the defendant have produced similar type

of documents in support of their respective pleas, among

which several of them are shown to have been issued by

the very same authority, then the further scrutiny of the

documents produced by both side may be required in the

circumstances of the case.

28. When the documents produced by the plaintiff

as well as the defendant are carefully examined, it can be

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seen that the plaintiff has described the suit schedule

property in her plaint in the following manner:

"Residential property bearing Site No.72, formed in Sy.No.45/4 of Parappanaha Agrahara Village, BBMP Katha No.2308-45/4-72, situated at Parappana Agrahara Village, Begur Hobli, Bangalore South Taluk, Bangalore and measuring East to West 40 feet and North to South - 30 feet, totally measuring 1200 square feet and bounded on the East by a Road, West by Site No.73, North by site No.67 and South by a Road."

Similarly, the defendant also has mentioned the

description of his property in paragraph 12 of his Written

Statement in the following manner:

"Vacant site No.72 out of property No.45/4 Assessment No.45/4, Katha No.45/4 of Parappana Agrahara village, which is within BBMP limit and bounded on the East by a Road, West by site No.73, North by site No.68 and South by a Road."

The Sale Deed produced by the defendant at Ex.D-2

also gives the very same boundary description of the

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property including the boundary as stated above, however,

adding the measurement as 30 feet x 40 feet.

29. A comparison of the above two descriptions of

the disputed property would go to show that, the plaintiff's

plaint averment about the description of the property as

well the copy of the Sale Deed at Ex.P-1 and P-1(A)

shows that the property in question was measuring East to

West - 40 feet and North to South - 30 feet. On its

Northern side, the suit site is shown to be bounded by 'site

No.67' whereas, in the Written Statement of the

defendant, the description of the alleged site which is also

the very same site No.72 mentions its measurement from

East to West - 30 feet and North to South - 40 feet and

bounded on the Northern side by 'site No.68'. Incidentally

the Sale Deed at Ex.D-2 does not give the direction of the

measurement of the site like East to West and North to

South, except stating "measuring: 30 x 40 feet". Thus,

there is a variation between the directional measurement

of the property between the plaint schedule in the

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plaintiff's documents to that of the Written Statement

description at Ex.D-2 by the defendant. What is the

measurement of the site No.72 from East to West which is

said to be 40 feet in the plaint schedule as well the Sale

Deeds at Ex.P-1 and Ex.P-1(A) is shown as measurement

of the very same site No.72 from North to South in the

Written Statement. Vice versa, the measurement of 30

feet in length from the direction North to South in the

plaint schedule as well in the Sale Deeds at Ex.P-1 and

P-1(A) is shown as the measurement between East to

West in the Written Statement schedule with respect to

the defendant's property. However, as observed above,

the length/measurement of the site from East to West and

from North to South direction has not been mentioned in

the defendant's Sale Deed at Ex.D-2.

30. In addition to the above, the Northern boundary

of suit site No.72 in the plaintiff's plaint schedule property

to that of the defendant's Written Statement schedule

property also varies with the site numbers. As such,

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regarding the identity of the property with a particular

description as described by both parties to the litigation, a

serious doubt remains, which neither of the parties have

taken pains to clarify either through their oral evidence or

through their documentary evidence. However, it appears

that both the parties are claiming possession with respect

to the very same alleged single property bearing site

No.72, which is shown in Ex.P-8.

31. The plaintiff as PW-1 has produced two colour

photographs at Ex.P-8, calling them to be the photographs

of the suit schedule property and also of the Shed and a

Compound shown therein as put up by her. Though the

defendant has not denied the evidence of PW-1 that

Ex.P-8 is the photographs of the property in dispute,

however, he has denied that the structure of the Shed

shown therein and the compound were put up by the

plaintiff. On the other hand, the defendant has contended

that, the said Shed was put up by him and that he is

residing therein.

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In that regard, the document to be looked into is

Ex.P-9 which is a reply letter by BESCOM to the plaintiff

under the RTI Act. The said document shows that the

BESCOM had supplied the electricity supply to the site

No.72, however later, it was disconnected. The

documents at Exs.D-7 to D-9 produced by the defendant

also shows that it is with respect to the very same site

No.72, the electricity was initially given. Though the

defendant as DW-1 in his cross-examination has stated

that, the disconnected electricity supply was restored back

to the Written Statement schedule property, however,

except his self-serving statement, he has not produced

any documents to show that the alleged electricity supply

connection which was disconnected as could be seen in

Ex.P-9 was restored to the said property. Thus, it shows

that with respect to one particular site only (i.e. Site

No.72 of Parappana Agrahara Village), both the defendant

and the plaintiff are contending that it belongs exclusively

to them.

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32. In addition to the above, when the evidence of

the parties is looked into, it can be seen that, in the cross-

examination of PW-1 at page 6, the following statement

has been elicited.

"It is not true to suggest that the defendant are residing in a shed existing in suit site marked at Ex.P-8."

33. The plaintiff has produced two colour

photographs at Ex.P-8, stating that they depict the picture

of the plaintiff's suit schedule property. By making the

above suggestion to the plaintiff, the defendant, apart

from admitting that the said photographs are that of the

disputed property (site No.72), has stated that he is

residing there. However it cannot be ignored of the fact

that, according to the plaintiff, its measurement from East

to West is 40 feet and from North to South is 30 feet.

According to the Written Statement schedule, its

measurement from East to West is 30 feet and from North

to South is 40 feet. That apart, the said site, according to

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the plaintiff, is bounded on the North by Site No.67 and

according to defendant, the very same disputed site is

bounded on the North by site No.68. Thus, for identifying

one particular property, both the parties to the suit have

given different descriptions about its measurement/length

in a particular direction and its boundary on the Northern

side.

34. In further addition to the above, in the cross-

examination of PW-1, at page 7, a suggestion was made

to the witness and answer was elicited which reads as

follows:

" It is not true to suggest that the suit site is owned by defendant even than I have cheated some body else to get the sale deed in the said site."

Further in the cross-examination of DW-1 at page 8,

the witness has clearly stated as below:

"Ex.P8 relates to suit schedule property."

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From the above, the defendant has once again

shown that it is with respect to the suit site only, he is

claiming his title over the property to the exclusion of the

plaintiff.

35. Therefore, though both the parties have

identified the site shown in the photographs produced at

Ex.P-8 as the site property in dispute, however, they have

described the said property in their respective pleadings in

a different manner both in its measurement and its

boundary on its Northern direction.

36. Thus, apart from the description of the property

in the title documents as well in the revenue documents

even in their evidence also, the parties have shown that

their description of the suit property/disputed property

mismatches, as such, there exists some confusion or

ambiguity or cloud with respect to the exact identity of

the property.

37. Our Hon'ble Apex Court in the case of NAHAR

SINGH Vs. HARNAK SINGH AND OTHERS reported in

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(1996) 6 Supreme Court Cases 699, which judgment was

relied upon by the learned counsel for the defendants

(respondents herein), was pleased to observe in paragraph

6 of its judgment that, it is well settled that unless the

property in question for which the relief has been sought

for is identifiable, no decree can be granted in respect of

the same. Thus, the plaintiff is also required to overcome

the contention of the defendants and establish the identify

of the suit schedule property, which in the instant case,

the plaintiff has failed to do.

38. In the light of the above, when the very identity

of the property in question itself is in cloud and not clear,

the alleged possession claimed by both the parties by

placing similar type of documents would not entitle to hold

that it is the plaintiff alone who is in possession of the

property.

39. In the above circumstances, the alleged

interference by the other party (defendant) in the alleged

possession of the plaintiff would not gain importance.

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Though the plaintiff, both in her plaint as well in her

evidence as PW-1 stated that, in the first week of

September 2013, when she had gone to the suit schedule

property, the defendant approached her and claimed his

right over the suit schedule property, the same would not

be taken as a conclusive proof of the alleged interference

since the defendant also is claiming his possession

probably against the very same property through his set of

documents.

40. In the light of the above, the finding given by

the Trial Court answering all the issues framed by it in the

negative, cannot be found fault with. However, in the said

process, the observation made by the Trial Court in the

last few lines of its judgment, at its internal page Nos.19

and 20, stating that "Per contra, the document produced

by the defendant establish that he was in

possession of Site No.72 and put up shed and obtained

electricity connection from BESCOM" was an

unnecessary, un-required and un-supported observation

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made by it in a suit for permanent injunction filed by the

plaintiff. As such, though the appeal does not deserve to

be allowed, however, the above extracted sentence/

observation of the Trial Court made at its page Nos.19 and

20 in the impugned judgment requires to be expunged

from the said judgment.

Accordingly, I proceed to pass the following:

ORDER

[i] The Regular First Appeal filed by the

plaintiff (appellant) stands dismissed as

devoid of merit;

[ii] The impugned judgment and decree

dated 05-01-2018 passed by the XXXIX

Additional City Civil Judge, Bangalore City, in

O.S.No.7438/2013, stands confirmed.

However, the following observation of the

Trial Court in its impugned judgment dated

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05-01-2018 at page Nos.19 and 20 stands

expunged.

"Per contra, the document produced by the defendant establish that he was in possession of Site No.72 and put up shed and obtained electricity connection from BESCOM"

Registry to transmit a copy of this judgment along

with the Trial Court records to the concerned Trial Court,

immediately.

Sd/-

JUDGE

BMV*