Karnataka High Court
Sri Rajanna M vs Sri J R Mohan on 6 October, 2023
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.F.A. NO.967/2017 (INJ)
C/W.
R.F.A. NO.966/2017 (INJ)
IN R.F.A. NO.967/2017:
BETWEEN:
1. SRI RAJANNA.M,
S/O LATE MARISWAMAPPA,
AGED ABOUT 72 YEARS,
RESIDING AT NO.35/3, 5TH MAIN
(VITTAL MANDIR ROAD)
NANJAPPA AGRAHARA,
CHAMARAJAPET,
BANGALORE-560 018.
2. SRI SOMASHEKHAR ALIAS SOMA
AGED ABOUT 45 YEARS,
S/O SRI RAJANNA M,
RESIDING AT NO.35/3, 5TH MAIN
(VITTAL MANDIR ROAD)
NANJAPPA AGRAHARA,
CHAMARAJAPET,
BANGALORE-560 018. ... APPELLANTS
(BY SRI Y.K.NARAYANA SHARMA, ADVOCATE)
AND:
1. SRI ABHILASH
AGED ABOUT 31 YEARS,
2
S/O SRI N.S.VENKATESH,
RESIDING AT NO.51,
2ND CROSS ROAD,
BHAKTHA MARKANDEYA LAYOUT,
BANGALORE-560 026.
2. THE BRUHAT BANGALORE MAHANAGARA PALIKE
REPRESENTED BY ITS COMMISSIONER,
CORPORATION OFFICES,
N.R.SQUARE,
BANGALORE-560 002. ... RESPONDENTS
(BY SRI ABHINAV R., ADVOCATE FOR R1; R2 SERVED)
THIS R.F.A. IS FILED SECTION 96 R/W ORDER 41 RULE 1
OF CPC, AGAINST THE JUDGMENT AND DECREE DTD:
26.04.2017 PASSED IN O.S.NO.85/2014 ON THE FILE OF THE
LII ADDL. CITY CIVI AND SESSIONS JUDGE, BENGALURU CITY,
PARTLY DECREEING THE SUIT FOR INJUNCTION.
IN R.F.A. NO.966/2017:
BETWEEN:
1. SRI RAJANNA M,
S/O LATE MARISWAMAPPA
AGED ABOUT 72 YEARS
R/AT NO.35/3, 5TH MAIN
(VITTAL MANDIR ROAD)
NANJAPPA AGRAHARA,
CHAMARAJAPET
BANGALORE-560 018.
2. SRI SOMASHEKHAR ALIAS SOMA
S/O SRI RAJANNA M,
AGED ABOUT 45 YEARS
3
R/AT NO.35/3, 5TH MAIN
(VITTAL MANDIR ROAD)
NANJAPPA AGRAHARA,
CHAMARAJAPET
BANGALORE-560 018. ... APPELLANTS
(BY SRI Y.K.NARAYANA SHARMA, ADVOCATE)
AND:
1. SRI J.R. MOHAN
S/O SRI RAJENDRAN
AGED ABOUT 56 YEARS
R/AT NO.30, 1ST CROSS ROAD
BHAKTHA MARKANDEYA LAYOUT
BANGALORE-560 026.
2. THE BRUHAT BANGALORE MAHANAGARA PALIKE
REPRESENTED BY ITS COMMISSIONER
CORPORATION OFFICES, N.R.SQUARE
BANGALORE-560 002. ... RESPONDENTS
(BY SRI ABHINAV R., ADVOCATE FOR R1;
SMT. RAKSHITHA D.J., ADVOCATE FOR R2)
THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 26.4.2017
PASSED IN O.S.NO.9326/2013 ON THE FILE OF THE LII ADDL.
CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, PARTLY
DECREEING THE SUIT FOR PERMANENT INJUNCTION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 26.09.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
4
JUDGMENT
Heard the learned counsel for appellant and the
counsel appearing for the respondents.
2. These two appeals are heard together though
the judgments of the Trial Court are independent
judgments. The plaintiffs are different and the defendants
are common in both the suits and the property is also
adjacent to each other and the dispute is also similar and
considered together since the judgments of both the suits
are by the same judge and the judgment is on the same
day and the relief sought in the suit are also for bare
injunction and instead of repeating the pleadings, for the
convenience of the Court, both are taken together and the
Vendors of the both the plaintiffs are common.
3. The appellants in R.F.A.No.967/2017 are the
defendant Nos.1 and 2 in O.S.No.85/2014 and the
respondents filed the suit for the relief of bare injunction
claiming permanent injunction in respect of property
bearing site No.36-B measuring East-West 25 feet and
North-South 60 feet and the property is situated at 2nd
cross, Bhaktha Markandeya layout, (Karithimmanahalli
Extension) Bengaluru-560026 and the R.F.A.No.966/2017 is
arising out of O.S.No.9326/2013 in respect of site No.36-A
and the measurement is same and situated at 2nd Cross and
both these sites are formulated by Bhaktha Markandeya
layout, (Karithimmanahalli Extn) Bengaluru and layout is
formed in Sy.No.23/1 of Karithimmanahalli village, Kasaba
hobli, Bengaluru North taluk, Bengaluru.
4. In respect of O.S.No.85/2014, site No.36-B is
bounded East by B.M.P Storm water drain, West by Site No.
36-A, B.M.K. layout, North by slum houses, B.M.K layout,
South by 2nd cross, B.M.K layout. In respect of site No.36-A
bounded East by Site No.36-B, B.M.K layout, West by site
No.36 and 35, B.M.K layout, North by slum houses, B.M.K
layout, South by 2nd cross, B.M.K layout.
5. Both the plaintiffs in both the suits claims that
Sri.Baktha Markandeya silk handloom weavers Co-operative
Society Ltd., established with the objective of forming
layout and distribute the sites to the members and it has
purchased the land bearing Sy.No.23/1 measuring 4 acre
30 guntas on 06.08.1958 which is not coming within the
limits of BBMP, Ward No.141. After forming the land into
residential purpose as per Government order under
sanction letter dated 04.04.1960 by taking approval for
formation of private layout by CITB, Bangalore and allotted
sites to the members in the year 1970 on lease cum sale
basis and except site Nos.35-A and site No.35-B as per site
committee report. The plaintiff being the member of the
said society has allotted site No.36-A and site No.36-B
having negotiations with the society and for consideration
of Rs.80/- per Sq.ft, the sale deed was executed on
10.08.2007 in their favour and both of them have paid the
total amount for purchase of said site by paying amount on
installment basis on different dates and possession was
handed over to the plaintiff. Since then the plaintiffs are in
possession in respective suit schedule properties as the
absolute owners and put up the compound wall and there
upon safeguarding the same.
6. The defendant Nos.1 and 2 being the strangers
to the suit schedule property having no manner of title or
interest over the suit schedule property, on 30.12.2013
with rowdy elements came near to the suit property and
tried to dispossess the plaintiffs' from the suit schedule
property and on protest the defendant returned back by
giving threat that they would take away the lives of
plaintiffs' family and they would come again with men and
material and thereby they started to interfere with plaintiffs'
peaceful possession and enjoyment of the suit schedule
property.
7. It is also contended in the plaint that the police
refused to take action against them but advised to
approach the Court, since the issue is civil in nature. The
defendant Nos.1 and 2 are trying to get their name to the
suit schedule property for change of khata and hence filed
the suit before the Trial Court.
8. In pursuance of the issuance of suit summons in
both the suits, the defendant Nos.1 and 2 have appeared
and filed their written statements and the defendant No.3
failed to file any written statement and contend that the
suit is vexatious and not maintainable. It is also contended
that the suit was filed in O.S.No.4764/1999 by defendant
No.1 against the plaintiff and other 4 persons and the same
was decreed. The plaintiff has suppressed the material facts
regarding passing of judgment and decree.
9. It is contended that the suit schedule property
bearing CTS Nos. 181 and 200 being part of said suit
schedule property of O.S.No.4764/1999. The society has
also filed the suit in O.S.No.2058/2007 against the
defendant No.1 seeking injunction and the same was
dismissed on 28.01.2010. The property in question is in
possession and enjoyment of the defendant Nos.1 and 2. It
is not the property of the society at any point of time nor
the society is in possession of the same.
10. It is contended that suit is barred by principles of
Res Judicata and also barred by law of limitation. The
plaintiffs are not in possession of the suit schedule property
nor the society is in possession. The society purchased the
property measuring 4 acre 30 guntas and converted the
land and sold the sites and no existence of site Nos.36-A
and 36-B in the layout plan. The society and the plaintiffs
have indulged in fabricating the document and seeking the
relief of injunction.
11. It is also contended that in view of mis-
management, the competent authority has appointed the
Assistant Registrar of Co-operative Society as liquidator to
liquidate the society as per the order and took the control of
the matter of the society and a public notice was issued on
02.06.2004 cautioning the public notifying the persons that
K.Venkatarama and N.N.Byatgarayappa mis-representing
the general public and collecting the money. They indulged
in fabricating of documents.
12. It is contended that the property belongs to one
Rajanna was transferred in favour of his son Somashekara
i.e., defendant No.2 under registered gift deed dated
07.10.2013 and the defendant No.2 is owner and in
possession of the suit schedule property and the defendant
has put up the compound wall and the defendant is in
possession of the property and the plaintiff is never in
possession of the suit schedule property and also contended
that the plaintiffs ought to have file declaratory suit and
mere injunction suit is not maintainable.
13. The Trial Court based on the pleadings of the
plaintiffs and defendants has framed the issues as whether
the plaintiff proves his lawful possession over the suit
schedule property, whether the defendant Nos.1 and 2
causing obstruction, whether the plaintiff is entitle for the
relief of injunction.
14. The Trial Court in O.S.No.85/2014 and also in
other suit allowed the parties to lead their evidence and in
O.S.No.85/2014 the plaintiff has been examined as PW1
and got marked the document Ex.P1 to Ex.P18 and 2nd
defendant is examined as DW1 and he also got marked the
document Ex.D1 to Ex.D27.
15. The Trial Court has also allowed the parties to
lead evidence in O.S.No.9326/2013 and in the said suit also
the plaintiff has been examined as PW1 and also examined
witness PW2-Byatarayappa. The plaintiffs relied upon the
document marked at Ex.P1 to Ex.P21 and on the other hand
the 2nd defendant examined as DW1 and he relied upon the
documents which are marked at Ex.D1 to Ex.D32.
16. The Trial Court having considered both oral and
documentary evidence, accepted the case of the respective
plaintiffs' and granted the relief of permanent injunction.
Being aggrieved by the said judgment, the present two
appeals are filed by both the defendant Nos.1 and 2.
17. In both the appeals the main contention of the
appellants/defendant Nos.1 and 2 counsel that Sy.No.23/1
totally measuring 4 acre 30 guntas and the same is situated
within Karithimmanahalli village and also the counsel
vehemently contend that the said property was purchased
by the Society i.e., Baktha Markandeya Society and they
obtained layout plan and sold the sites which have been
formed in the said survey numbers.
18. The plaintiffs and the Society have indulged in
creating of documents in collusion and sold the sites as site
Nos.36-A and 36-B and these two sites are not in the
original layout plan. The counsel also vehemently contend
that the very title is disputed and the society is not the
owner to convey any right in favour of the
respondents/plaintiffs herein.
19. The counsel would vehemently contend that in
the written statement the specific stand was taken that suit
of permanent injunction is not maintainable and ought to
have filed the suit for declaration. The counsel also would
vehemently contend that earlier there was a decree in
favour of defendant and these two sites i.e., site Nos.36-A
and 36-B are not carved out in Sy.No.23/1 and claiming the
property of the defendants by creating document. The
documents marked at Ex.P16 to Ex.P21 are earlier suit
documents. The pleadings and admissions are also very
clear that the sites are not in existence and also there is a
clear dispute with regard to the identity of the property.
20. The counsel also would vehemently contend that
the PW1 and PW2 who have been examined in
O.S.No.85/2014 and also the PW1 and PW2 who have been
examined in other suit has given categorical admission with
regard to the very identity of the property and the very
property is not identified and hence the question of granting
of injunction does not arise.
21. The counsel in support of his argument also
relied upon the judgment of the Apex Court reported in AIR
2021 SC 4293 in case of T.V.Ramakrishna Reddy V/s
M.Mallappa and by referring this judgment, the counsel
would vehemently contend that the suit simpliciter for
permanent injunction filed by the plaintiffs without seeking
declaration of title, not maintainable.
22. The counsel also in support of his argument
relied upon the judgment reported in AIR 2018 SC
(SUPP) 1159 in case of Jharkhand State Housing
Board Vs Didar Singh the counsel would vehemently
contend that the suit for mere injunction cannot lie when
the title of plaintiff over the property itself disputed, owner
ought to have sought for relief of declaration of title as well
and in the absence of any relief for declaration, Courts
below erred in entertaining suit seeking bare injunction.
23. The counsel also relying upon the judgment
reported in AIR 2008 SC 2033 in case of Anathula
Sudhakar V/s P.Buchi Reddy(Dead) by LRs and
others vehemently contend that very suit for injunction
simpliciter is not maintainable and the counsel would
vehemently contend that when there is a cloud on the title
of the plaintiff, ought to have sought for the relief of
declaration.
24. The counsel also referring the judgment reported
in (2007) 6 SC 737 in case of Ramachandra Sakharam
Mahajan V/s Damodar Trimbak Tanksale (Dead) and
others vehemently contend that weakness of defense of
failure of defendants to establish rival title set up by them
cannot be a ground to grant the relief of injunction.
25. The counsel also relying upon the judgment of
this Court reported in (2007) 3 KLJ 28 (DB) in case of
Puttanna Shetty by LRs V/s Padma Shetty by LRs and
others contend that the Court has to consider the material
on record in toto and to be read in the light of the pleadings
and other evidence and one stray sentence cannot be
picked up while granting the relief.
26. The counsel also relied upon the judgment
reported in AIR 2003 Mad 374 in case of John Sylem
V/s Chanthanamuthu Pillai (died) and others contend
that when there is no acceptable evidence adduced by the
plaintiff to identify and locate suit property, the plaintiff has
failed to establish the identity of the suit property and he is
not entitled to any decree.
27. The counsel also relied upon the judgment of
this Court reported in ILR 2005 KAR 884 in case of
T.L.Nagendra Babu V/s Manohar Rao Pawar wherein
the counsel brought to notice of this Court that unless the
Court is satisfied with regard to the material details in the
light of the material evidence with regard to the
identification of the property, no declaration and injunction
can be granted.
28. The counsel by referring these judgments would
vehemently contend that first of all there were no sites in
existence and already formed the layout and sold the sites
and subsequently created the document and sold the
property in favour of the plaintiffs and the very identity of
the property is in dispute and the very title of the property
is in dispute and ought to have filed the suit for the relief of
declaration. In the absence of the identity of the property,
the Trial Court ought not to have granted the relief of
permanent injunction. Hence, prayed the Court to set-aside
the judgment and decree of the Trial Court.
29. Per Contra, the counsel appearing for the
respondents/plaintiffs would vehemently contend that site
Nos.36-A and 36-B are the sites sold in favour of the
respective plaintiffs and the measurement is also the same
and also contend that sites are formed in Sy.No.23/1.
30. The counsel would vehemently contend that the
defendant claim their right in respect of Sy.No.22 and no
dispute with regard to the title is concerned and it is not the
claim of the defendant that they are the owners of the
property bearing Sy.No.23/1 and when such being the case,
question of filing a suit for the relief of declaration does not
arise.
31. The counsel also vehemently contend that the
property was purchased by the society in the year 1958 and
layout is formed and the same is approved by the
concerned department. The counsel would vehemently
contend that in respect of site Nos. 36-A and 36-B, a
resolution has been passed by the Society and possession
certificate is also issued in terms of Ex.P4.
32. The defendants claims that the property was
allotted by partition and they have formed the sites and
sold the same. The counsel also vehemently contend that
the document which is marked at Ex.D22, Ex.D23, Ex.D14
and Ex.D15 are of the year 1962. The counsel also would
submits that Ex.P17 is the survey report and also counsel
would vehemently contend that both the Sy.No.23/1 and
Sy.No.22 are separated by a drain.
33. The counsel also vehemently contend that
Ex.P13- partition deed specifically mention the western
boundary as drain and measurement is as 200 feet East
West and northern side and 240 feet to the southern side
and North South to the Eastern side 150 feet and western
side 7 feet, the defendant relies upon the document which
is marked at Ex.P5-gift deed wherein also shown East as
drain. In Ex.P11 also west it is shown as drain. The counsel
would contend that Ex.P19 is a plan in respect of site
Nos.36-A and 36-B. The document at Ex.D16 also discloses
that the West as drain. The document Ex.D19 and Ex.D21
also clear with regard to the earlier pleadings of plaint and
the judgment.
34. The counsel would vehemently contend that in
the cross-examination of PW1 nothing is elicited and in the
cross-examination of DW1 also categorical admission is
given that defendants are not claiming any right in respect
of property bearing Sy.No.23/1 and claim only in respect of
Sy.No.22. Hence, no need to file any suit for declaration.
The counsel would vehemently contend that the identity is
proved by producing documents. The defendants took false
defense and the defendants only disputes its identity and
when the properties are distinct and claim is also distinct
question of filing the suit for declaration does not arise.
36. The counsel in support of his argument, he relied
upon the judgment reported in (2007) 14 SCC 200 in
case of Ramji Rai and another V/s Jagdish
Mallah(Dead) through LRs. And another wherein the
Apex Court held that no prayer for declaration of title is
necessary, when the suit is filed for injunction simpliciter
and he relies upon paragraph Nos.10 and 11 of the
judgment and also Apex Court held that the Court should
held that confine their finding regarding possession and
finding and title is not required to be made.
37. The counsel also relied upon the judgment of the
Apex Court reported in (2008) 4 SCC 594 and the very
same judgment also relied upon by the appellants i.e.,
Anathula Sudhakar V/s P.Buchi Reddy(Dead) by LRs
and other and the counsel brought to notice of this Court
at paragraph Nos.13.1 and 14 wherein held that the suit for
injunction simpliciter is concerned with possession only and
the law relating to injunction and not relief of declaration.
38. The counsel also relied upon the judgment of the
Apex Court reported in (1973) 2 SCC 358 in case of
M.Kallappa Setty V/s M.V.Lakshminarayana Rao
wherein also the Apex Court held that when the plaintiff is
in continuous possession, entitled to injunction restraining
the defendants who has no better title than the plaintiff and
brought to notice of this Court at paragraph No.5 of the
judgment wherein discussed with regard to once it is
accepted, as the Trial Court and the First Appellate Court
have done, that the plaintiff was in possession of the
property ever since and he is in and his possession has to
be protected as against interference by someone who is not
proved to have a better title than himself to the suit
property.
39. The counsel also relied upon the judgment of the
Apex Court reported in (2004) 1 SCC 769 in case of
Ramegowda (Dead) by LRs. V/s M.Varadappa Naidu
(Dead) by LRs. And another the counsel brought to
notice of this Court at paragraph No.s.7, 8 and 9 with
regard to a settled possession and wherein held that it
would suffice with a person seeking injunction that he was
in lawful possession of the same and the possession was
invaded or threatened to be invaded by a person who has
no title thereof.
40. The counsel also relied upon the judgment
reported in ILR 2013 KAR 4983 in case of
Smt.Narasamma and others V/s D.S.Narasi Reddy
and another the counsel referring this judgment would
vehemently contend that when a person is in lawful
possession of the properties and when his possession is
threatened to be interfered by the defendants, he is entitled
to sue for mere injunction without adding prayer for a
declaration of his rights and wherein also the judgment of
the Apex Court Anathula Sudhakar V/s P.Buchi
Reddy(Dead) by LRs and other, Ramji Rai and
another V/s Jagdish Mallah(Dead) through LRs. And
another and Ramegowda (Dead) by LRs. V/s
M.Varadappa Naidu (Dead) by LRs. And another cases
are also discussed.
41. The counsel also relied upon the judgment
reported in AIR 1936 Mad 200 in case of A.L.V.R.Ct.
Veerappa Chettiar V/s Arunachalam Chetti and others
and brought to notice of this Court the discussion made
with regard to the question of title also may have to be
incidentally gone into in deciding whether an injunction can
be given or not is not any justification for holding that the
suit is for a declaration of title and for injunction. Suit for
injunction is maintainable.
42. The counsel also relied upon the judgment Andra
Pradesh High Court reported in 1996 SCC online AP 202
in case of Chepana Peda Appalaswamy V/s Chepana
Appalanaidu and others wherein also the Andra Pradesh
High Court held that the question of title may have to be
incidentally gone into deciding whether an injunction can be
given or not is not any justification for holding that suit is
for a declaration of a title and for injunction and suit for
injunction is maintainable.
43. The counsel also relied upon the judgment
reported in 2006 SCC online Mad 1040 in case of
A.P.Kuppusamy and 5 others V/s P.Kumarapalayam
Municipality, P.Kumarapalayam rep. by its
Commissioner P.Komarapalayam, Tiruchengode
wherein also held that the relief of injunction can be
granted even if no declaratory relief is expressly prayed for
and the suit for bare injunction is maintainable without the
prayer of declaration of title.
44. The counsel referring these judgments would
vehemently contend that no need to file a suit for
declaratory relief and there is no dispute with regard to the
title. In the absence of declaratory suit, even bare
injunction suit is maintainable when the suit is for the relief
of bare injunction of simpliciter. Hence, the contention of
the defendants' counsel that the suit is not maintainable
cannot be accepted.
45. In reply to the arguments of the respondents'
counsel, the appellants' counsel would vehemently contend
that Ex.D22 and Ex.D23 is very specific when the sites
Nos.35 and 36 are sold, no where it is mentioned that in
the boundary that site Nos.36-A and 36-B are in existence.
Hence, it is clear that the documents are created and also
in the boundary no where it is mentioned in those sale
deeds in Ex.D22 and Ex.D23 that remaining property of
society and even if sites numbers are not mentioned and
ought to have mentioned that remaining property of
society. Hence, it is clear that no remaining property
belongs to the society was in existence when the layout was
formed and sites were sold based on the said layout.
46. The counsel also would vehemently contend that
in Ex.D24 also clearly it is mentioned as both east and west
as drain and it is specifically mentioned that particular site
number which were formed in the layout. In the plaint also
it is very clearly mentioned in paragraph No.3 that the
society has converted the land and the same is approved by
the C.I.T.B and approved plan has not been produced by
the plaintiff and the same is also categorically admitted in
the cross-examination of PW1 and PW2. The PW2 has
categorically admitted that the site Nos.36-A and 36-B are
added sites. He categorically admits that the drain passes in
Sy.No.22 but, they have used the remaining land as sites.
47. The counsel brought to notice of this Court that
in Ex.P5 it is specifically mentioned that both property of
the society and the drain are not only mentioned as only a
drain. The counsel also vehemently contend that in the gift
deed also the boundary it is specifically mentioned both
property of the society and the drain.
48. The counsel also would vehemently contend that
drain change its course and BBMP straightened the same.
The PW1 has categorically admitted in the cross-
examination that no approval of sites and only relies upon
the resolution and the same is created by the society and
the plaintiffs and the same is not approved and hence, the
question of granting the relief without identification does
not arise.
49. Having heard the appellants counsel and the
counsel appearing for the respondents and also the
principles laid down in the judgments referred supra, the
point that would arise for the consideration of this Court
are:
1) Whether the Trial Court committed an
error in granting the relief of permanent
injunction against the appellants herein without
the identification of the suit schedule property
and whether it requires interference of this
Court?
2) What Order
Point No.1:
50. Having heard the appellants counsel and also the
counsel appearing for the respondents. It is not in dispute
that suit is filed for the relief of permanent injunction and
not sought for the relief of declaration. The main contention
of the appellants' counsel that the plaintiff ought to have
filed the suit for the relief of declaration.
51. Having considered the principles laid down in the
judgments referred supra relied upon both by the
appellants' counsel and also the counsel appearing for the
respondent and also the pleadings of the parties, the suit is
filed for the relief of injunction simpliciter. It is also not in
dispute having considered the pleadings of the parties, the
Bhaktha Markandeya Society has purchased the property in
Sy.No.23/1 and formed the layout.
52. It is also important to note that the very
contention of the defendant that they are the owners of the
property in Sy.No.22. The plaintiffs are also not claiming
any right in respect of Sy.No.22 and the defendants are
also not claiming any right in respect of Sy.No. 23/1 and
hence no dispute with regard to the title is concerned and
only dispute is with regard to the very identity of the
property since, the plaintiff contend that sites are formed in
Sy.No.23/1 and the defendants claims that the sites which
have been marked as Site No. 36/A and Site No.36/B are
located in Sy.No.22 and not in Sy.No.23/1 and no such
sites are in existence in Sy.No.23/1. Hence, the principles
laid down in the judgments referred by both the counsels
are also very clear that when there is a cloud in respect of
the title is concerned, the plaintiffs have to seek the relief
of declaration and there is no any cloud in respect of the
title as both of them claims different survey numbers and
not the same survey numbers and question of considering
the relief of declaration and seeking the relief of declaration
does not arise and hence, the very contention of the
appellants counsel that they ought to have filed the suit for
the relief of declaration cannot be accepted. The principles
laid down in the judgment referred by the respondents'
counsel are aptly applicable to the facts of the case on
hand. The judgments relied upon by the appellants' counsel
are not comes to aid of the appellants' counsel to
substantiate his contention. Since both of them not claiming
the very same survey number property.
53. Now the question before this Court is with regard
to the ground urged in the appeal that the Trial Court has
committed an error in granting the relief of permanent
injunction in both the suits. Before considering the merits of
the case on hand, I would make it clear that both the
plaintiffs have acquired the property from the Baktha
Markandeya layout Society and sites are also bearing
No.36-A and Site No.36-B have situated at 2nd cross,
Baktha Markandeya layout, Karitimmanhalli extension.
54. It is also not in dispute that the society has
acquired the property in Sy.No.23/1 and formed the sites
and layout has also got approved and sold the sites. The
appellants' counsel mainly relies upon the document of
Ex.D22 to Ex.D24 wherein adjacent sites were sold and not
mentioned the site Nos.36-A and 36-B. However the
plaintiffs relies upon the document which is marked at
Ex.P3 and the same is not the approved layout plan. No
doubt in the said Ex.P3 the site Nos.36-A and 36-B are
shown and the same is not an authenticated document. The
plaintiffs have also relies upon the possession certificate
which is marked at Ex.P4 and the same is issued by the
Society and also lease cum sale deed which is marked at
Ex.D5 and the same is also not registered and also relies
upon the other documents for having issued the receipt by
the society wherein also it is mentioned deposit by for Court
fee and not in respect of the consideration paid to the
society. No doubt the members list as on 31.03.2009 is also
produced wherein both the plaintiffs are members of the
society, but no details when they became the members. But
it is their claim that in 2000 itself both of them become the
members. In order to substantiate the same, no document
is produced before the Court.
55. The fact that the lease cum sale was executed in
the year 2007 is not in dispute in respect of the sale in
favour of the plaintiffs. In the cross-examination of PW1
with regard to the identification of the site is concerned
certain answers were elicited in O.S.No. 9326/2013 and he
categorically admits that 4 acre 30 guntas was acquired in
Sy.No. 23/1 by the society from P.P.Ramadas and Ex.D4 is
the sale deed and also elicited with regard to the
boundaries mentioned in Ex.D4. However he admits the
existence of Baktha Markandeya layout. Once he admits
that suit schedule property is in 3rd cross and again says
that suit schedule property is located in 2nd cross, Baktha
Markandeya layout, Bengaluru and the same was denied
but his claim is that property is in 2nd cross.
56. The PW1 has also categorically admits that when
the question was put to him whether he has got confirmed
site No.36-A is located in Sy.No.23/1 and he admits that he
did not surveyed the same. But, he claims that he
measured the site and put the compound. He also admits
that he cannot say in which direction of Sy.No.23/1
property bearing Sy.No.22 comes and also he cannot tell in
which Survey number drain comes. He also admits that the
site of defendant Nos.1 and 2 comes within Sy.No.23/1 but,
again he says he cannot tell where the sites of defendant
Nos.1 and 2 comes and when he enquired with the society
he came to know that the mother of the Rajanna i.e,
defendant No.1 when he was minor, they sold the sites till
the slum sites and they occupied the site of the society and
the same comes to his knowledge through the PW2, but he
does not aware of the same personally. It is suggested that
site No.36-A and 36-B not belongs to the society and the
same was denied. He also admits that the Ex.P6 and Ex.P7
it is mentioned that towards the Court fee but, he does not
know anything about the same and except Ex.P6 and Ex.P7,
he has not paid any amount and also admits that Ex.P5 and
Ex.P6 are the same date.
57. It is suggested that both the documents are
created by himself and PW2 and the same was denied. He
did not enquire with owner of the site No.36 where site
No.36-A locates. He also admits that he cannot tell when
the site No.36-A was given and he claims that society
himself has given the number as 36-A. It is suggested that
the site No.36-A not belongs the society and the same was
denied. He also admits that he cannot tell who formed the
layout and how many sites are sold in respect of the
society. It is suggested that the society has filed the suit
against the defendant and the same was dismissed and he
says that he is not aware of the same. He also admits that
he cannot tell in which survey number the drain passes. But
he claims that the same is on the north of the disputed
land. He also admits that he does not know suit site comes
in which survey number and he did not enquire with regard
to the earlier two suits. He admits that Ex.P13 to Ex.P15
were given by PW2, he does not know about those
documents and also he cannot tell about Ex.P15(b).
58. The PW1 is further examined and marked Ex.P18
to Ex.P20 and he has subjected to further cross-
examination. He admits that in respect of Ex.P18, he has
not given any notice to the defendant Nos.1 and 2 and he
cannot tell whether the concerned authority passed any
order in respect of Ex.P18. It is suggested that Ex.P18 and
Ex.P19 are created for the purpose of this case and the
same was denied. Further suggestion was made that site
Nos.36-A and 36-B are not in existence and they are not in
possession and the same is also denied.
59. The PW2 who was the former President and
Founder of the society in his evidence he speaks with
regard to Site No.36-A and allotting the same in favour of
the plaintiff and the same is formed in Sy.No.23/1. He was
subjected to the cross-examination. In the cross-
examination, it is suggested that layout formation was
made in the year 1960 to 1962 in Sy.No.23/1 to the extent
of 4 acres 30 guntas and on the east of Sy.No.23/1,
Sy.No.22 is in existence, for that he admits that the layout
plan was sanctioned in the year 1960 and in 1962 it got
amended and thereafter, the same was not amended. He
admits that in the sanctioned layout plan as well as in the
modified plan, site Nos.36-A and 26-B were not found. But
he claims that there were coconut trees, the Well and a
horse stable till 1975 and thereafter site Nos.36-A and 36-B
were formed. It is suggested that site Nos.36-A and 36-B
were formed in Sy.No.22 and the said suggestion was
denied. He admits that site Nos.36-A and 36-B are
declared by the Site Committee. A suggestion was made
that they are not having any power to make site as 36-A
and 36-B and the same was denied. He categorically
admits that site Nos.36-A and 36-B have not been
approved by BDA, Housing Board but he volunteers that the
Site Committee has approved the same and he was one of
the members of the Site Committee. The document at
Ex.P3 is also confronted to him and he says that the same
was prepared on behalf of the society and he cannot tell
who prepared the same and in which year. He also admits
that the approving authority signature was not found in the
document at Ex.P3.
60. These two appeals are arising based on the
different sites and hence, this Court would like to refer the
evidence of PW1 in O.S.No. 85/2014 who also claims that
he is in possession of the property consequent upon
allotment made by the society in his favour and he also got
marked the documents at Ex.P1 to P18 at the first instance
and he was subjected to the cross-examination. He admits
that he was the tenant under PW2 and he admits that he
cannot tell in which survey number, drain pass through and
he cannot tell in which survey number, defendant Nos.1
and 2 are having the property. It is suggested that whether
drain is in existence in Sy.No.22, for that, he says that he is
not aware of the same. He also admits that he cannot tell
that whether they have obtained the approval for formation
of additional sites and he claims that there were coconut
trees and subsequently these two sites are formed in
Sy.No.23/1. He did not enquire before purchasing the site
whether the same was approved or not and also did not
enquire whether the society is having a right to allot the
same. He admits that he got the right based on the lease-
cum-sale agreement of the year 2007 and he cannot tell
when he become the member of the society and also not
having any document to show that when he become a
member and when he paid the membership fee. He says
that he had deposited the amount of Rs.15,000/- and not
paid the remaining amount of Rs.1,05,000/- and he is
having receipt of the same and the same is also signed by
PW2. He admits that in Ex.P3 and P4, only it bears the
society seal and not bears the sign and seal of any of the
authority. He admits that in Ex.P4 even site measurement
is also not mentioned and also a drain which he is referring,
is also not shown. He also admits that he does not know
that before giving Ex.P5, whether the society has passed
any resolution or not. He admits that Ex.P5 is in a
letterhead and he also admits that Ex.P7 and P8 contain the
signature of Betarayappa. It is suggested that same are
created for this case and the same was denied. He also
admits that Ex.P9 was given by the society and he did not
get EC after 1980 and also he admits that he is not having
any information about Ex.P13 to P16 and also he does not
know that in which layout and in which survey number,
Ex.P16 pertains to.
61. PW1 was further examined and got marked the
documents at Ex.P19 and P20. In the cross-examination, he
admits that he does not know that Ex.P19 pertains to which
authority. A suggestion was made that Ex.P19 is created for
the purpose of this case and the same was denied. In this
case also PW2 - N N Betarayappa has been examined and
his evidence is also similar to the evidence in other
connected suit wherein he claims that site No.36-B is
allotted to this plaintiff. He admits that in 2007 he handed
over the charge to the administrative officer. He admits
that they have not formed any layout in Sy.No.22 and they
are not having any power to form the layout in the said
survey number. However, he admits that 1960 approved
layout was sanctioned and subsequently, it was amended in
1962. He categorically admits that these two sites were not
in the original layout plan and also in the amended layout
plan and similar admission was given in other suit also. He
admits that CTS 181 and 200 are in Sy.No.22 and the same
was also belonged to defendant No.1. He admits that in
2004, the society was superseded and an Administrator was
appointed and he also having the knowledge of the
publication dated 02.06.2004 appeared in Vijaya Karnataka
and the same is confronted and admitted and the same is
marked as Ex.D1. D2 is also confronted and admitted.
Similar admissions are given that site Nos.36-A and 36-B
are not approved by BDA, Housing Board or any other
authority and also he categorically admits that he cannot
tell that in which survey number, site Nos.36-A and 36-B
are formed and survey is also not conducted but he
volunteers that it is in existence in Sy.No.23/1.
62. The DW1 who is defendant No.2 is also
examined and he reiterates the averments of the written
statement in his affidavit. He relied upon the documents at
Ex.D1 to D27 and he was also subjected to the cross-
examination in O.S.No.85/2014. In other suit that is
O.S.No.9326/2013 also examined as DW1 and, with regard
to the title of the society he was cross-examined and he
denies that he is not aware of the same but existence of
Bhaktha Markandeya Layout is admitted. He admits that
the suit schedule property is in third cross but the address
of the suit schedule property is in the second cross and the
said suggestion was denied. He says that there is no
existence of site Nos.36-A and 36-B and suggestion was
made that site Nos.36-A and 36-B are not formed in the
property belongs to Mariswamappa layout and the same
was denied. When the suggestion was made that in
between Sy.Nos.23/1 and 22, there is a drain and the
witness says that the same is in existence in Sy.No.22 and
denies the suggestion that the said drain separates both the
properties. However, he admits that Sy.Nos.23/1 and 22
comes within the Karithimmanahalli village. He admits that
in terms of partition deed at Ex.P13 'C' schedule was
allotted to his father and 'D' and 'E' schedule was allotted to
his father's brother and portion of 'C' schedule property was
sold. He admits that suit filed in O.S.No.4764/1999 was
dismissed against the society. It is suggested that site
Nos.36-A and 36-B are formed in Sy.No.23/1 and the same
was denied. He admits that in Ex.D27 to P29 -
photographs, he is not there. It is suggested that while
filing the suit in terms of Ex.P16, his father was not having
any remaining land and the said suggestion was denied and
similar evidence is given in other suit also.
63. Having considered the grounds urged in the
appeals as well as both oral and documentary evidence
placed on record, in both the suits, similar documents are
relied upon by the respective plaintiffs as well as the
defendants. Having perused both oral and documentary
evidence placed on record it is clear that the Bhaktha
Markandeya Society has formed the layout in Sy.No.23/1 in
the year 1960 and it is also admitted fact that layout was
formed in 1960 and the same was amended in 1962. It is
also emerged in the evidence that in the original layout
plan, site Nos.36-A and 36-B were not in existence as well
as in the amended layout plan of the year 1962 and the
same is admitted by PW2 who is the Founder of the society
and for sometimes, he was the President of the society. It
is also emerged in the evidence that both the plaintiffs
claims that while forming the layout, there were coconut
trees and hence, site Nos.36-A and 36-B are not included.
Then what prevented to remove the coconut trees and
include the site Nos.36-A and 36-B, no explanation is given
either by PW1 or PW2 in both the cases.
64. It is also important to note that one of the
plaintiff is the tenant of PW2 and it is the claim of the
plaintiffs that they become the members of the society in
2000 but no document is placed before the Court. No
doubt, the plaintiffs have produced the list of membership
of the society in terms of Ex.P10 and also the list of sharers
wherein the members of the society is included in the list
including the plaintiffs in both the suits but no details to
show that in which year they become as members. PW1
categorically admits that they cannot say in which year they
become as members and they have not remembered the
same and document of membership is also not produced
before the Court. It is also important to note that the
plaintiffs claim that they have deposited the amount in the
society is in terms of Ex.P7 and P8 wherein it is mentioned
that the deposit is for Court fee and not in respect of sites.
It is also important to note that they rely upon only on the
lease-cum-sale agreement in both the cases and the same
is also not registered. It is the claim of PW1 in both the
cases that they have deposited the amount of Rs.15,000/-
towards site but no such document is placed before the
Court except Ex.P6 to P8 which also contains the signature
of PW2 and it is the case of the defendants that these
documents are created at the instance of the plaintiffs and
PW2.
65. It is also important to note that the main issue
involved between the parties is that no such sites were in
existence. Admittedly Ex.P3 and P4 respectively in the
original suits are not approved by any of the authority and
the same is admitted in the cross-examination of witnesses
and the same does not contains the signature of the
approving authority and hence, it is clear that the sites are
not approved by the competent authority. The only
contention of PW1 and PW2 that the same is approved by
the Site Committee of the society. Unless the same are
included and modified in the original plan, the society is
also not having any authority to include those two sites. It
is the claim of the plaintiffs that the said sites are in
Sy.No.23/1. PW1 and PW2 have categorically admitted in
their cross-examination that they have not surveyed the
property to come to the conclusion that in which survey
number the site Nos.36-A and 36-B are locates. It is the
case of the defendants that the site Nos.36-A and 36-B
comes within the Sy.No.22 and the said survey number
belongs to the defendants.
66. The crux of the issue involved between the
parties is to the very identification of the suit schedule
property. When the plaintiffs have given the admission that
they have not got surveyed the site Nos.36-A and 36-B, it
is difficult to say that whether it comes under Sy.No.23/1 or
22. No doubt, both the counsel mentioned the drain on the
west of the property of the defendants. It is the claim of
defendant No.1 that drain is located in Sy.No.22 and
thereafter also the very same survey number extends. The
main contention of the plaintiffs' counsel that the said drain
separates Sy.Nos.23/1 and 22 and the same was denied by
DW1 in the cross-examination. Hence, the issue involved
between the parties is the very identification of the
property. When such dispute raised between the parties,
the plaintiffs ought to have got it surveyed the land to come
to know that whether sites comes within Sy.No.23/1 or in
Sy.No.22. Admittedly these two sites were not in the
original approved plan of the society, then, what made
them to include the same as site Nos.36-A and 36-B in the
plan except telling that Site Committee has formulated the
same and no sufficient material is placed before the Court.
The documents which have been placed before the Court
are also creates the doubt about the payment of amount in
favour of the society and the very receipts for having
received the amount by PW2 and his signature contains in
the documents in both the cases and it is mentioned that
the payment was made towards the Court fee and not in
respect of the said sites. These are the materials which
have not been considered by the Trial Court.
67. No doubt, in detail discussed with regard to the
boundary is concerned making suggestion to both the
witnesses with regard to the location of the sites and when
there is a specific contention by DW1 that no such sites
were in existence in Sy.No.23/1 and the records also
disclose that subsequently, site Nos.36-A and 36-B were
included. Though Ex.P3 and P4 are the layout plan and
possession certificate respectively, I have already pointed
out that those documents are not authenticated documents
and categorically admitted that at no point of time, the site
Nos.36-A and 36-B are got approved by the concerned
authority and hence, the very existence of sites is in
dispute. Under such circumstances, the plaintiffs ought to
have got it surveyed the property and proved the
identification of the property that sites are formed in
Sy.No.23/1 and not in Sy.No.22.
68. No dispute that Sy.No.22 which is on the east of
Sy.No.23/1 as admitted is an adjacent property and the
claim of the defendants that no such sites are in existence
and the plaintiffs have created the documents to allot the
site in favour of the plaintiffs. But nothing is placed on
record to show that the plaintiffs are also the members of
the society and except producing the list, there is no
membership number and in which year, they have become
as members of the society. Apart from that one of the
plaintiffs is the tenant of PW2 from last 25 years and the
very document produced by the plaintiffs also not inspires
the confidence of the Court to believe the case of the
plaintiffs. These are the materials which are not considered
by the Trial Court while considering the case of the
plaintiffs. No doubt, the suit is for the relief of permanent
injunction, not for declaration. Even though the suit is not
for declaration, the very possession has to be proved to
show that the plaintiffs are in possession of the suit
schedule property as on the date of filing of the suit. I have
already pointed that the judgments which have been relied
upon by the respective counsel in respect of the suit for
injunction and declaration, there is no dispute with regard
to the principles laid down in the said judgments. I have
already pointed out that no dispute with regard to the title
and the society claims title in respect of Sy.No.23/1 and
defendants claims that they are the owners of Sy.No.22.
When there is no cloud on the title, the question of
declaration does not arise. Even in the suit for bare
injunction of simplicitor, the possession has to be proved.
In the case on hand the very existence of sites and the very
identification of the property is in serious dispute. When
such being the case, the Trial Court ought not to have
granted the relief of permanent injunction.
69. I have already taken note of the evidence of
PW1 and PW2 as well as the evidence of DW1 in both the
cases and voluminous documents are produced by the
plaintiffs and defendants. The crux of the issue is with
regard to the identity of the property and unless the
surveyor has been examined before the Court, the very suit
schedule property cannot be identified and the plaintiffs
have to prove that these two sites are in Sy.No.23/1 in
order to get the relief of permanent injunction since the
defendants are also claims that the said sites are allegedly
formulated are located in Sy.No.22. In order to thrash out
the dispute between the parties, the survey is necessary
and hence, a commissioner has to be appointed and survey
has to be conducted in order to identify the same, unless
the commissioner is appointed and the property is surveyed
and demarcated, the issue between the parties cannot be
decided. Hence, the matter requires to be remanded to the
Trial Court and the plaintiffs have to make necessary
application to survey the property by the competent
authority to know that whether the said sites are located in
Sy.No.23/1 or 22. Unless the competent authority submits
the report, the issue cannot be sorted out. Hence, the
matter requires to be remanded only for the limited
purpose of conducting the survey and to decide the issue
involved between the parties. Hence, I answer the point as
affirmative that the Trial Court has committed an error in
granting the relief of permanent injunction in favour of the
plaintiffs when identification of the property is in dispute
and when PW1 and PW2 as well as DW1 categorically
admitted that they have not surveyed the suit schedule
property prior to filing of the suit and even subsequent to
the filing of the suit. When there is a serious dispute with
regard to the identification of the property, the respective
parties ought to have filed the necessary application before
the Court for appointment of surveyor to survey the land
and the same has not been done. Hence, the matter
requires to be remanded to the Trial Court and the
respective judgment and decree of the Trial Court has to be
set aside and the matter requires fresh consideration after
getting the report of the surveyor.
70. In view of the discussions made above, I pass
the following:
ORDER
The appeals are allowed.
The impugned judgment and decree dated 26.04.2017
passed in O.S.Nos.9326/2013 and 85/2014 by the Trial
Court are hereby set aside.
The matter is remitted back to the Trial Court for the
limited purpose as observed by this Court in this appeal.
The parties are directed to appear before the Trial
Court on 08.11.2023 without expecting any notice from the
concerned Court. If any one of the parties fails to appear
before the Trial Court, the Trial Court is directed to proceed
with the matter and not to issue notice once again since the
same will cause delay in deciding the matter.
The Trial Court is directed to dispose of the matter
within a period of six months from 08.11.2023 and no
further time will be granted.
Registry is directed to send the records to the Trial
Court forthwith to enable the Trial Court to take up the
matter on 08.11.2023.
Sd/-
JUDGE
RHS/SN
