Karnataka High Court

K C Venkatesh S/O Late Chandaiah vs Smt M Vijayalakshmi W/O Channakeshav on 27 November, 2023

Author: V Srishananda

Bench: V Srishananda

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                                                    NC: 2023:KHC:43474
                                                   RFA No. 600 of 2008




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 27TH DAY OF NOVEMBER, 2023

                                      BEFORE
                     THE HON'BLE MR JUSTICE V SRISHANANDA

                   REGULAR FIRST APPEAL NO. 600 OF 2008 (INJ)


              BETWEEN:

              K C VENKATESH
              S/O LATE CHANDAIAH
              AGED ABOUT 39 YEARS
              R/AT NO. 564, IST MAIN ROAD
              6TH CROSS, LAGGERE
              CHOWDESHWARINAGAR
              BANGALORE-58
              AND SHOP NO.44, PREMANAGARA
              RING ROAD, LAGGERE,
              BANGALORE-58
                                                          ...APPELLANT
Digitally     (BY SRI.H.T.VASANTH KUMAR., ADVOCATE)
signed by R
MANJUNATHA
Location:     AND:
HIGH COURT
OF
KARNATAKA
              1.    SMT M VIJAYALAKSHMI
                    W/O CHANNAKESHAV
                    AGED ABOUT 35 YEARS
                    R/O NO.17, PARALLEL ROAD,
                    MALLESHWARAM RAILWAY STATION,
                    MARUTHI EXTENSION, SRIRAMAPURAM,
                    BANGALORE-21
                    AND NOW R/AT B NO 1283/84,
                    6TH MAIN ROAD, 2ND STAGE A BLOCK,
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                                                NC: 2023:KHC:43474
                                               RFA No. 600 of 2008




     RAJAJINAGAR, BANGALORE-10

2.   SMT SUSHEELAMMA
     W/O M NAARASAPPA
     AGED ABOUT 60 YEARS
     R/O NO.155, 4TH CROSS
     SOMESHWARAPURA
     JOGUPALYA, ULSOOR,
     BANGALORE-8
                                                     ...RESPONDENTS
(BY SRI. PRAVEEN KUMAR RAIKOTE., ADVOCATE FOR R2,
    R1 SERVED)

      THIS RFA IS FILED U/S 96 OF CPC AGAINST THE
JUDGEMENT AND DECREE DATED 07.02.2008 PASSED IN
OS.NO.8470/2004 ON THE FILE OF THE XVIII ADDL.CITY CIVIL
JUDGE, CCH.NO.32, BANGALORE CITY, DISMISSING THE SUIT
FOR PERMANENT INJUNCTION AND ETC.,

      THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:



                          JUDGMENT

Heard Sri H.T. Vasanth Kumar, learned counsel for the

appellant and Sri Praveen Kumar Raikote, learned counsel for

the respondent No.2.

2. Present appeal is filed challenging the validity of

judgment and decree passed in O.S.No.8470/2004, dated

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07.02.2008, on the file of XVIII Additional City Civil Judge,

Bengaluru City (CCH 32).

3. Parties are referred to as plaintiff and defendants for the

sake of convenience as per their original ranking before the

trial Court.

4. Plaintiff filed a suit for relief of permanent injunction

restraining the defendants, their agents or servants from

interfering with the possession and enjoyment of the suit

property.

5. Plaintiff further contended that he is the absolute owner

of the suit property and he is in possession of the same. Suit

schedule property bearing site Nos.44 and 45 measuring East

to West 55 feet and North to South 30 feet, situated at Laggere

village, Yashwanthapura Hobli, Bengaluru, with khatha No.47/2

(hereinafter referred to as suit property) was owned by Sri

Channappa. Channappa died on 16.12.1999 leaving behind his

wife and children. Plaintiff purchased the suit property under

two registered sale deeds dated 30.09.2022 and 14.08.2002

from the legal representatives of Channappa. Plaintiff was put

in possession of the property after the sale and he has

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constructed a building consisting of shop premises in the suit

property.

6. The electricity connection was also obtained and plaintiff

was paying taxes to Dasarahalli City Municipal Counsel.

Defendants without there being any right, title and interest

over the suit property, tried to interfere with the possession of

the property. Therefore, the plaintiff was constrained to file

complaint against the defendants to the jurisdictional police and

a criminal case is registered against them. Despite the

complaint, defendants continued to interfere with the suit

property and defendants claim that they have a General Power

of Attorney from the erstwhile owner of the land in Sy.No.47/2

in respect of site Nos.54 and 55 and they had filed an

application before Bengaluru Development Authority (for short

'BDA') for providing alternate site on the ground that site

Nos.54 and 55 were acquired for formation of the ring road.

Therefore, the plaintiff was constrained to file the suit for

permanent injunction.

7. Upon service of suit summons, defendants appeared

before the Court and engaged a counsel and filed detailed

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written statement denying the claim of the plaintiff in toto .

They also further contended that they are the owners of the

suit property and plaintiff is not in lawful possession and

enjoyment of the suit property and sought for dismissal of the

suit.

8. Based on the rival contentions of the parties, following

issues were framed by the learned Trial Judge.

1) Whether plaintiff proves that he is the owner in possession of site No.44 described in the plaint schedule?

2) Whether defendants prove that they have purchased portion of site Nos. 44 and 45 as contended and are in possession of the same?

3) Whether plaintiff is entitled for the relief of perpetual injunction prayed?

9. In order to prove the case of the plaintiff, plaintiff got

examined himself as P.W.1 and relied on 22 documents which

were exhibited and marked as Exs.P.1 to 22 comprising of

Ex.P1 - Sale deed dated 30.9.2002, Ex.P2 - General Power of

Attorney, Ex.P3 - sale deed dated 14.8.2002, Ex.P.4 - General

Power of Attorney, Ex.P5 - Rectification deed dated

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10.11.2004, Ex.P6 - KEB receipt, Ex.P7 & 8 KEB bills, Ex.P9 &

10 - Encumbrance certificate, Ex.P11 Tax paid receipt, Ex.P12 -

Self assessment application, Ex.P13 - Tax paid receipt, Ex.P14 -

Self Assessment application, Ex.P 15 to 21 - Photos, Ex.22 -

Negatives.

10. As against the evidence placed on record, first defendant

namely; Smt. M. Vijayalakshmi is examined herself as D.W.1

and relied on six documents which were exhibited and marked

as Exs.D.1 to D.6 comprising of Ex.D1 - Sale deed executed by

Channappa, Ex.D2 - General Power of Attorney executed by

Channappa, Ex.D3 & 4 - Sale deeds executed by Smt

Susheelamma, Ex.D5 & 6 - Photos.

11. Learned trial Judge after conclusion of recording of

evidence of the parties, heard the parties in detail and on

cumulative consideration of the material on record, has clearly

formed an opinion that the plaintiff has failed to prove his

lawful possession over the suit property and dismissed the suit

of the plaintiff.

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12. Being aggrieved by the same, plaintiff has filed the

present appeal on the following grounds:

 (a). The City Civil Judge, Bangalore has committed error in law and misread the pleadings and evidences and also misconceived the facts which is quite illegal.

 (b). When the defendant herself admitted that when her mother had purchased the sites from Channappa was 54 and 55 with different boundaries as per her own documents, she also does not know the suit properties site No.44 and 45 boundaries, she had not paid tax, she had not get changed the khata, there was no rectification registered deed by Channappa, then how the Trial Court presume that Channappa sold 44 and 45 early to defendant - 2 is totally incorrect, as there is no separate sale deed for site No.44 and 45 to defendant-2 and Channappa had not sold site 44 and 45 to Susheelamma defendant-2 at all.

 (c). When defendant-2 is not owner of site No.44 and 45, what title or right of her to sell the same to her own daughter? and how the Trial Court ignores this aspect which is simple case and facts and even according to defendant's version. Hence

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the City Civil Judge totally erred in law where defendants have no lawful title nor lawful possession.

 (d). When according to defendant they have no registered rectification deed for change of property Site No.54 and 55 and its boundaries in exchange of site No.44 and 45, as held by High Court as per Section 34 of Stamp Act, unless Registration no such contention of exchange or rectification made by Channappa get any legal value as held in ILR 1998 KAR. 2650.

 (e). Even according to ILR 1998 KAR. Page 1 also Revenue Entry also does not presume valid title.

 (f). Next question of law is lawful possession. Appellant proved his title by valid registered sale deeds and boundaries, paid the tax, proved valid succession of Channappa's children who got changed khata after death of Channappa. Tax paid, assessment registered maintained in his name, photo shows identification of sites at possession and temporary injunction operated throughout in favour of appellant but defendants does not know boundaries of site NO.44 and 45, not paid tax, nor changed the khata. Then how the possession will be lawful. Hence the Trial Court's approach is quite illegal which has ignored the provision of Order 39

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Rule 1 and 2. Hence the please to interfere since poor plaintiff is victimised for Trial Court's illegal approach.

 (g). The appellant's two sites 44 and 45 boundaries are different from site Nos.54 and 55. The defendants does not know their boundaries as she admitted in evidence.

 "In the sale deed produced by Susheelamma site No. mentioned as 54 and 55. Correction was made later. But there is no registered rectification deed. I do not know whether BDA acquired site sold by Susheelamma to me. It is not true that I am residing at Rajajinagar. I have not paid tax. I have not applied for change of khata. I do not remember boundaries at North-South Site No.44".

 So, when defendant-1 does not know her site nor identify how the Trial Court says plaintiff has not proved is perverse view of Trial Court, City Civil Judge.

13. Sri H.T. Vasantha Kumar, learned counsel for the

appellant, reiterating the grounds urged in the appeal

memorandum contended that the learned trial Judge failed to

note that the plaintiff was in lawful possession of the suit

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property and the material documents produced by him

especially the sale deed from the legal representatives of

erstwhile owner Channappa and the other material documents

namely; tax paid receipt, paid to Dasarahalli City Municiapl

Council is totally ignored by the learned trial Judge while

recording finding on issue No.1 and sought for allowing the

appeal.

14. He further contended that the material evidence on

record placed by the defendants have not been properly

appreciated in recording a finding that the plaintiff is not in

lawful possession of the suit property and sought for allowing

the appeal.

15. Per contra, Sri Praveen Raikote, learned counsel for

respondent No.2 contended that the property has been

acquired by BDA for formation of ring road and the claim of the

plaintiff would definitely come in the way of the application

seeking re-conveyance of the property by virtue of the

acquisition and sought for dismissal of the appeal.

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16. In reply, learned counsel for the appellant has filed an

application under Order XLI Rule 27 of Code of Civil Procedure,

with the additional documents supported by the affidavit of the

appellant wherein he tried to impress upon the Court that the

property now coming under Bruhat Bengaluru Mahanagara

Palike (for short 'BBMP') and the appellant has been given 'B'

khatha and he has been paying taxes to BBMP and sought for

considering the same and allow the appeal.

17. In view of the rival contentions of the parties, following

points arise for consideration:

1) Whether the appellant has made out a case for accepting the additional evidence by allowing the application under Order XLI Rule 27 of Code of Civil Procedure?

2) Whether the plaintiff has made out a case that he is in lawful possession over the suit property?

3) Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference?

4) What order?

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18. In the case on hand, admittedly the suit property was

belonging to one Channappa. According to plaintiff, Channappa

died and after his death, his legal representatives sold the site

Nos.44 and 45, measuring East to West 55 feet and North To

South 30 feet of Laggere village, Yashwanthapura Hobli, having

khatha No.47/2.

19. The claim of the defendants is that they are the owners of

the property which are sites bearing No.54 and 55.

20. According to the plaintiff, he is in lawful possession and

enjoyment of the suit property by putting up a structure on the

suit property after purchase and there is a shop premises as

well.

21. Before the trial Court, the additional documents were not

placed as the property was under the jurisdiction of Dasarahalli

Municipality.

22. According to the plaintiff, at present the property comes

under the jurisdiction of BBMP and on filing of an application by

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the appellant, BBMP has issued 'B' khatha and therefore,

plaintiff is in lawful possession of the property.

23. Admittedly, the documents that are now produced before

the Court are post suit documents. Therefore, they cannot be

relied upon for finding out whether the plaintiff has made out a

case or not.

24. No doubt, in every case, the post suit documents cannot

be ignored in toto, especially when there is a subsequent

development.

25. In the case on hand, the suit is one for bare injunction.

As such, what is required to be considered by the trial Court or

by this Court is; "Whether the plaintiff has made out a case of

lawful possession over the suit property? " Therefore, the

additional evidence placed on record, which are post suit

documents, cannot be considered by this Court at this stage.

26. Further, issuance of 'B' khatha by BBMP would not

improve the case of the plaintiff in deciding his title over the

suit property. Lawful possession would always mean that there

must some semblance of right over the suit property.

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27. In the case on hand, the plaintiff is claiming right, title

and interest over the suit property by virtue of the sale deed

said to have been executed by legal representatives of

Channappa.

28. According to defendants, Channappa had executed a

General Power of Attorney and thereafter they have purchased

the site Nos.54 and 55. Site numbers of the plaintiff is 44 and

45. Whether at all site Nos.44 and 45 purchased from the

plaintiff from legal representatives of Channappa and site No.54

and 55 purchased by the defendants by virtue of the Power of

Attorney said to have been executed by original owner

Channappa are one and the same is the question that needs to

be considered.

29. In this regard, plaintiff has not filed any application

before the trial Court seeking appointment of the

commissioner. Admittedly, plaintiff has not filed any layout

plan to show that Channappa had formed a layout and in such

layout, after death of Channappa, remaining sites were sold by

legal representatives of Channappa.

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30. Further, any one of legal representatives of Channappa

could have been examined by the plaintiff to establish the fact

of which exact sites that have been sold by them in favour of

the plaintiff. Plaintiff was actually put in possession of the

property. These aspects of the matter has been rightly

considered by the learned trial Judge while appreciating the

case of the plaintiff in the impugned judgment.

31. Further, defendants have claimed that the properties are

now acquired by the BDA for formation of ring road. Necessary

documents have been produced by the defendants in this

regard. When such is the factual aspects of the matter BBMP

issuing 'B' khatha in favour of the plaintiff in respect of the suit

property did not arise at all.

32. Taking note of the evidence placed on record by the

plaintiff and defendants, especially the property being acquired

for the purpose of formation of ring road, the learned trial

Judge was justified in dismissing the suit of the plaintiff.

33. Further, if the plaintiff property is still available on the

spot, without being acquired by any of the authority, it is

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always open for the plaintiff to file a comprehensive suit

seeking title over the suit property.

34. Reserving such right to the appellant to seek appropriate

remedy before the appropriate forum, this Court is of the

considered opinion that the material evidence on record are

hardly sufficient to interfere with the well reasoned order of the

impugned judgment.

35. In view of the foregoing discussion, point Nos.1 to 3 are

answered in the Negative.

36. Regarding point No.4: In view of findings on point

Nos.1 to 3, following order is passed:

ORDER Appeal is meritless and is hereby dismissed.

The dismissal of the present appeal would not affect the plaintiff to have his remedy in respect of site Nos.44 and 45 by filing appropriate proceedings before the appropriate forum.