Shri N Janardhana vs Smt Rajamma
2023 Latest Caselaw 7404 Kant

                           1


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 31ST DAY OF OCTOBER, 2023

                        BEFORE

        THE HON'BLE MR. JUSTICE K. NATARAJAN

          REGULAR FIRST APPEAL NO.984 OF 2018
                    CONNECTED WITH
          REGULAR FIRST APPEAL NO.1463 OF 2018
                    CONNECTED WITH
          REGULAR FIRST APPEAL NO.1782 OF 2018

IN REGULAR FIRST APPEAL NO.984 OF 2018

BETWEEN:

SHRI N JANARDHANA
S/O LATE B. NARAYANA,
R/AT NO.299, JALAHALLI VILLAGE,
BENGALURU-13
                                           ... APPELLANT
(BY SRI VISWANATHA SETTY V, ADVOCATE)

AND:

1 . SMT RAJAMMA
    W/O LATE CHANDRAPPA,
    R/AT NO.145/2,
    KEMBYRAPPA BUILDING,
    JALAHALLI POST,
    BENGALURU-560013

2 . SHRI.A.SHANKARANARAYANA NAIDU
    S/O VENKATAPPA NAIDU,
    R/AT NO.59/A,
    RMV II STAGE,
    BHOOPASANDRA,
    BANGALORE-94
                            2


3 . SHRI. NOEL DARREL DALMEIDA
    S/O ALPHONSE DALMEIDA,
    R/AT KUKKAJE, MANCHI POST,
    BANTWAL TALUK
    DAKSHINA KANNADA

   REP BY HIS GPA HOLDER
   SHRI MECHAEL DSOUZA,
   AGED ABOUT 45 YEARS,
   R/AT NO.6/77/3, SAI NILAYA,
   7TH CROSS, BBM COLONY,
   MATHIKERE,
   BANGALORE-560054
                                        ... RESPONDENTS
(BY SRI VIJAYA KUMAR K., ADVOCATE FOR C/R1)

      THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED
23.04.2018 PASSED IN O.S.NO.25604/2008 ON THE FILE OF
THE VIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU, DECREEING THE SUIT FOR PERMANENT
INJUNCTION.

IN REGULAR FIRST APPEAL NO.1463 OF 2018

BETWEEN:

SHRI NOEL DARREL D ALMEIDA
S/O ALPHONSE D ALMEIDA,
R/AT KUKKAJE,
MANCHI POST,
BANTWAL TALUK,
DAKSHINA KANNADA,
REP BY HIS GPA HOLDER
SHRI MECHAEL D SOUZA
AGED ABOUT 45 YEARS
R/AT NO.6/77/3,SAI NILAYA,
7TH CROSS,BBM COLONY
MATHIKERE,
BANGALORE-560 054                             ... APPELLANT
(BY SRI PRASHANTH KUMAR D, ADVOCATE)
                            3


AND:

1 . SMT. RAJAMMA
    W/O LATE CHANDRAPPA,
    R/AT NO.145/2,KEMBYRAPPA BLD.,
    BENGALURU-560 013

2 . SHRI A SHANKARANARAYANA NAIDU
    S/O VENKATAPPA NAIDU,
    R/AT NO.59/A,RMV II STAGE,
    BHOOPASANDRA,
    BANGALORE-560 094

3 . SHRI N JANARDHANA
    S/O LATE B NARAYANA,
    R/AT NO.299,JALAHALLI VILLAGE,
    BENGALURU-560 013
                                        ... RESPONDENTS
(BY SRI VIJAYA KUMAR K., ADVOCATE FOR C/R1)

     THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER 41
RULE 1 AND 2 R/W SEC.96 OF CPC, AGAINST THE JUDGMENT
AND     DECREE    DATED     23.04.2018    PASSED    IN
O.S.NO.25604/2008 ON THE FILE OF THE VIII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DECREEING
THE SUIT FOR PERMANENT INJUNCTION.

IN REGULAR FIRST APPEAL NO.1782 OF 2018

BETWEEN:

A SHANKARANARAYANA NAIDU
S/O VENKATAPPA NAIDU,
NO.59/A, RMV II STAGE
BHOOPASANDRA
BANGALORE-560094                       ... APPELLANT

(BY SRI SHARATH S GOWDA, ADVOCATE)
                             4


AND:

1 . SMT RAJAMMA
    W/O LATE CHANDRAPPA
    R/AT NO.145/2,
    KEMBYRAPPA BUILDING
    JALAHALLI POST,
    BANGALORE-560013

2 . N JANARDHANA
    S/O LATE B NARAYANA
    NO.299, JALAHALLI VILLAGE,
    BANGALORE-560013

3 . NOEL DARREL D ALMEIDA
    S/O ALPHONSE D ALMEIDA
    R/AT KUKKAJE,
    MANCHI POST,
    BANTWAL TALUK,
    DAKSHINA KANNADA
    REPRESENTED BY HIS GENERAL
    POWER OF ATTORNEY HOLDER
    MIDHAEL D SOUZA
    S/O DAVID D SOUZA
    R/AT NO.6/77/3,
    SAI NILAYA
    7TH CROSS, BBM COLONY
    MATHIKERE
    BANGALORE - 560 054
                                        ... RESPONDENTS
(BY SRI VIJAYA KUMAR K., ADVOCATE FOR C/R1)

      THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED
23.04.2018 PASSED IN OS NO.25604/2008 ON THE FILE OF
THE VIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALORU    DECREEING    THE   SUIT   FOR  PERMANENT
INJUNCTION AND PEACEFUL POSSESSION.
                               5


     THESE REGULAR FIRST APPEALS HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT ON 23.09.2023 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:


                      JUDGMENT

R.F.A. No.984/2018 is filed by the appellant-

defendant No.2, R.F.A. No.1782/2018 is filed by the

appellant-defendant No.1 and R.F.A. No.1463/2018 is filed

by the appellant-defendant No.3 under Section 96 of CPC

for setting aside the judgment and decree passed by the

VIII Additional City Civil and Sessions Judge, Bangalore in

O.S. No.25604/2008 dated 23.04.2018 for having decreed

the suit of the plaintiff.

2. Heard the arguments of learned Senior Counsel

appearing for the appellant in R.F.A. No.984/2018, the

learned counsels for appellants in the respective appeals

and the learned counsel appearing for the respondent.

3. The appellants are defendants before the trial

Court and respondent No.1 is the plaintiff before the trial

Court. Hence, the ranks for the parties are retained for

convenience.

4. The case of plaintiff before the trial Court is that

she filed a suit for permanent injunction restraining the

defendants or their agents from interfering with the

property bearing Sy. No.66/1 situated at Jalahalli village

Yeshwantpur, Bangalore, measuring 101/2 guntas bounded

on East by government drainage, west by apportion of sy.

No.66/1 (sold to defendant No.1), North by Gangadhar,

Nagesh, Savitha Ramamurthy and Gangandhara's property

(encroached in the plaintiff) and South by road

(hereinafter referred to as 'suit schedule property').

5. The plaintiff alleged in the plaint that the suit

schedule property measuring 1 acre 24 guntas was

originally owned by Hanumakka, who had two sons

namely, Mallappa and Subbanna. Mallappa got two sons,

Chandrappa and Nagaraja. Hanumakka executed gift

deed in favour of Chandrappa and Nagaraja vide registered

document No.7529/1953-54 before the Sub-Registrar in

respect of Sy. No.68/4 and 66/1 of Jalahalli village.

Chandrappa expired leaving behind plaintiff and her

children. The said property has been partitioned between

the plaintiff and her brother-in-law Nagaraja on

30.09.2004 which was registered before the Sub-Registrar,

Bangalore North. It is further contended that in the said

partition, 'A' schedule property measuring 1 acre 131/2

guntas in Sy. No.66/1 was fallen to the share of the

plaintiff including the karab land and 'B' schedule property

fallen to the share of Nagaraja, i.e. brother-in-law of

plaintiff. RTC were mutated in their respective names. It

is further contended that the plaintiff and her children had

jointly sold 1 acre in Sy. No.66/1 and retained 131/2

guntas, which is demarcated as 'A', 'B', 'C' and 'D' in the

suit sketch.

6. It is further contended that after the partition,

the plaintiff came to know that there was encroachment to

the extent of 1.25 guntas in Sy. No.66/1 retained by the

plaintiff on the northern side of the property. The plaintiff

made an application before the surveyor to survey the

land. The encroachment was detected, a notice was

issued by the surveyor and the plaintiff reserves her right

to file a separate suit for encroachment of her property.

She further contended that the plaintiff retained 131/2

guntas in Sy. No.66/1. The said land now comes under the

purview of Bangalore City Corporation, it losts the

agricultural characteristics. The said 131/2 guntas is

situated on the north side of encroached portion which is

referred in the schedule property.

7. It is further alleged that the defendant No.1,

being a developer and doing real estate agency business,

purchased 1 acre of land from the plaintiff and formed a

layout and taking advantage of her ignorance that she is

widow, tried to interfere in the schedule property on

03.04.2008 at 11.00 a.m. On the guise that vendor

defendant No.2, K.S. Anandan and Syzu had purchased

the property from defendant No.1 including the 3rd

defendant. But the plaintiff has not sold the property to

defendant Nos.1 to 3 prescribed in the schedule. The

defendants are trying to interfere, they do not have any

authority over the schedule property. It is further alleged

by the plaintiff that the defendants appeared on

03.04.2008 and tried to trespass the vacant land of the

schedule property. Hence, the plaintiff approached the

police, but they have not taken ay action, hence she has

filed the suit and prayed for granting injunction. She

further alleged that she also filed O.S. No.25223/2008

against one Gajendra, Gangadhar and Nagesh for

injunction. Hence prayed for decreeing the suit.

8. Defendant No.1 appeared through the learned

counsel, filed written statement by admitting that the

plaintiff was the owner of 1 acre 24 guntas of land in Sy.

No.66/1 and the said property was fallen to her in the

partition and a sale deed was executed on 16.06.2005 for

the land measuring 1 acre, and defendant No.1 also

purchased 10 guntas of land in Sy. No.66/1 and 30 guntas

of land in Sy. No.68/4 on 14.02.2005 executed by

Nagaraja and the very plaintiff. The defendant also formed

a layout and some of the sites were sold to the third

parties.

9. It is further contended by defendant No.1 that on

the request of plaintiff, the land belongs to the plaintiff to

an extent of 6 guntas in Sy. No.66/1 was also included for

formation of the layout, with an understanding that

number and location of sites of the plaintiff would be

identified after completion of work. Initially, at her request

site Nos.23, 24, 43 and a part of site No.49 lying on the

southern side were allotted to the plaintiff, and the plaintiff

requested for allotment of different sites on the northern

side and it was agreed that the plaintiff be given site

Nos.4, 5, 6 and 7. Apart from the land of plaintiff to the

extent of 15 ft. included in the road on the northern side.

The defendant even now confirms that the site Nos.4, 5, 6

and 7 formed on the northern side of the layout represent

the land allocated to the plaintiff/retained by the plaintiff.

The defendant is ready to execute any document as per

the choice of the plaintiff confirming this fact. On the said

understanding, defendant No.1 has executed the sale deed

in respect of remaining sites to various persons. This fact

was known to the plaintiff, but she filed the suit only to

harass the defendants. It is further contended that the

correctness of allegation that the plaintiff retained 131/2

guntas is admitted by the defendants and the land of the

plaintiff was not measured or surveyed. It is further

contended the encroachment in respect 1.25 guntas in Sy.

No.66/1 on the northern side was not within the

knowledge of the defendant. The plaintiff claming

ownership over 131/2 guntas is denied by defendant No.1

and in respect of para No.9 of plaint, partly admitted

regarding forming the road but denied the trespass or

interfering with possession of the suit schedule property on

03.04.2009. The description of the plaint schedule is also

denied. The plaintiff suppressed the earlier sale

transaction dated 14.02.2005 and inclusion of plaintiff's

land to the extent of 6 guntas in the layout and initial

allocation of sites on their option. Hence, it is contended

that the plaintiff is not entitled for the relief and prayed for

dismissing the suit.

10. Defendant No.2 also appeared through the

learned counsel and filed written statement by admitting

that the plaintiff was the owner of Sy No.66/1 measuring 1

acre 24 guntas and the same was fallen to her share in the

partition dated 30.09.2004 and 1 acre 131/2 guntas fallen

to her share and RTCs stands in her name. He further

admits that the plaintiff sold 1 acre of land to defendant

No.1 under the sale deed but denied retaining 131/2 guntas

of land as per the demarcated sketch 'A', 'B', 'C' and 'D'.

The sketch does not reveals true picture. The plaintiff has

not approached the Court with clean hands, she has sold

the property in favour of defendant No.1. Further the

encroachment to the extent of 1.25 guntas was also

denied by the defendant. The averments made in para 7

of the plaint that, in Sy No.66/1, the plaintiff retained

131/2 guntas is false and production of photographs by the

plaintiff is also not a conclusive proof. It is further denied

by the defendant that he is trying to interfere with the suit

schedule property on 03.04.2008 at 11 a.m. It is

contended that the plaintiff has suppressed the fact that

she was an employee of BEL and she was having worldly

knowledge in respect schedule property which belongs to

the defendant. It is also contended that filing of the suit

by the plaintiff against Gejendra and Gangadhar is not

within the knowledge and no cause of action arose for

filing the suit.

11. The defendant No.2 has specifically contended

that the one Melliayappa was the owner of the land in Sy.

No.66/1 measuring 1 acre 24 guntas including karab of 2

guntas, similarly he was also in possession of 31 guntas in

Sy No.68/4 and the said Mealliayappa had two sons

namely, Chandappa i.e. the husband of the plaintiff, and

Nagaraj i.e. the brother-in-law of the plaintiff. In the

aforesaid property, 1 acre 131/2 guntas in Sy. NO.66/1 was

fallen to the share of the plaintiff under the partition deed

and in respect of Sy. No.66/1, 101/2 guntas and 30 guntas

in Sy. No.68/4 were fallen to the share of Nagaraja and a

mutation was entered. The mutation extract discloses the

karab of two guntas which was allotted to the share of

plaintiff excluding the share of plaintiff in sy. No.66/1

showing 1 acre 111/2 guntas only and defendant has no

dispute that the plaintiff was allotted 1 acre 131/2 guntas in

Sy. No.66/1.

12. Defendant No.2 further contended that the

plaintiff sold 1 acre of land in favour of defendant No.1 on

16.06.2005, and 10 guntas of land allotted to the share of

Nagaraja under partition was purchased by defendant No.1

on 13.09.2004, prior to purchasing 1 acre of land from the

plaintiff. The specific measurement in meters was East-

West 54.60 mtrs. and North-South 71 mtrs. under the sale

deed, it is 1 acre out of 1 acre 131/2 guntas. A small

portion of the property was remained unsold. Similarly, on

eastern boundary of land, 1 acre was sold in favour of

defendant No.1, the remaining portion available to the

plaintiff perhaps may be measurement of the property

claimed by the plaintiff subject to the available of the same

the sketch showing 1 acre of land showing to the

defendant No.1. There is small portion remaining on the

northern side and a little portion remained on the eastern

side abutting to the government drainage measuring East-

West 13.60 mtrs. and North-South 71 mtrs., which clearly

shows that the plaintiff has not retained 131/2 guntas on

the northern side of the land sold in favour of the

defendant. Except a small portion which measurement is

not shown in the sketch, a portion retained by the plaintiff

is East-West 13.60 mtrs. and North-South 71 mtrs. The

existence of unsold portion of the property on the eastern

side is already converted into residential sites and sold to

various persons and they are in occupation of the same.

13. It is further contended by defendant No.2 that 1

acre of land was sold in favour of defendant No.1 by the

plaintiff and there was some encroachment of the

remaining land on the northern boundary of 1 acre as if

there is an encroachment by Gangadhar, Gajendra,

Nagesh and Ramanath, in that particular portion, as on

that day, there was existence of houses and building. It is

further contended that defendant No.1 purchased 1 acre of

land from plaintiff and 10 guntas from her brother-in-law

Nagaraj along with 30 guntas in Sy. No.68/4 under

registered sale deed dated 14.02.2005 and formed private

revenue sites. Among them, site Nos.2 and 3 are situated

on the northern portion of 1 acre purchased by defendant

No.1 and they were sold by defendant No.1 in favour of

the one Ananadan and Syzu through sale deed dated

06.02.2006 and the said Anandan and shyzu are in

possession. The property presently comes under BBMP

ward and the said Anandan and shyzu are paying taxes.

Even prior to the sale of site Nos.2 and 3, defendant No.1

himself approached authorities, paid betterment charges,

got transferred khatha in his favour.

14. It is also contended by defendant No.2 that

defendant No.2 purchased site Nos.2 and 3 in the sites

formed on the land bearing Sy. No.66/1. Thus, the

boundary of 1 acre purchased from the plaintiff under the

sale deed dated 12.10.2007, defendant No.2 is continued

to be in peaceful possession and enjoyment site Nos.2 and

3 as absolute owner and he is paying the taxes. The

plaintiff referred rough sketch and produced along with

plaint as if she is owner of 10 guntas of land on northern

side is without any basis as there is no existence of 131/2

guntas of land in between the land sold in favour of

defendant No.1 and the land held by Shamanna and the

same will clearly disclose the Sketch as annexure to the

sale deed of the land claimed by the plaintiff, which does

not belong to the plaintiff. Defendant No.1 already formed

sites and sold to different persons. The plaintiff, having

without any right, title or possession over the property,

wrongly claimed the boundaries where there is existence of

road and sites were formed by the defendant No.1. In

fact, the road referred by the plaintiff to the northern

boundary is nothing but the road situated on the southern

site Nos.1 to 3 held by the defendant No.2 and 3 and

remaining sites were retained by the defendant No.1. The

boundaries referred by the plaintiff to the extent of 10

guntas of land is fictitious one. By denying all other

averments prayed for dismissing the suit.

15. Defendant No.3 also filed written statement by

admitting the partition and the land fallen to the share of

the plaintiff and selling of 1 acre to defendant No.1 and

formation of layout, and contended that defendant No.3

purchased site bearing No.1 under the sale deed dated

22.12.2005 and he is in possession and enjoyment of site

No.1. By denying the averments made in the plaint that

the defendants are interfering with the possession of the

plaintiff, prayed for dismissing the suit.

16. Based upon the pleadings, the trial Court famed

the following issues:

1. Does the plaintiff prove her lawful possession over the suit property as on the date of suit as alleged ?

2. Does the plaintiff prove the alleged interference by the defendants with her possession and enjoyment over the suit schedule property ?

3. Whether the plaintiff is entitled for the relief of permanent injunction as prayed ?

4. What order or decree ?

17. On behalf of the plaintiff, the plaintiff herself

was examined as P.W.1 and got marked 43 documents as

per Exs.P.1 to P.43. On behalf of defendant No.2, he

himself was examined as D.W.1, defendant No.1 was

examined as D.W.2 and the GPA holder of defendant No.3

was examined as D.W.3 and they got marked 44

documents per Exs.D.1 to D.44. Thereafter, the trial Court

also appointed a Commissioner and the said Commissioner

was examined as C.W.1 and marked 3 documents.

18. After hearing the arguments, the trial Court

given finding on issue Nos.1 to 3 in the affirmative and

decreed the suit, which is under challenge by defendant

Nos.1 to 3 by filing the present different appeals.

19. The learned Senor Counsel appearing for

appellant defendant No.2 in R.F.A. No.984/2018 has

contended that the suit for injunction is not maintainable,

the plaintiff is not in possession of the suit schedule

property and she has already sold the property to

defendant No.1 and the defendant No.1 formed the layout

and sold to various persons. It is contended that the

boundaries mentioned in the sale deed executed in favour

of defendant No.1 reveals that, on the eastern side, there

is government drainage and the property is sold by the

plaintiff to defendant No.1 and the eastern side of the

property measuring 10 guntas of land in Sy. No.66/1 and

30 guntas of land Sy. No.68/4 has been sold by her

brother-in-law Nagaraja to defendant No.1. The plaintiff

herself executed the sale deed along with Nagaraja much

prior to the sale deed executed in favour of the defendant

No.1. The boundaries clearly reveals that the plaintiff has

not retained any portion of the land. Defendant No.1 after

forming the layout sold sites to one Anandan and Syzu and

from the said persons, the defendant No.2 purchased the

sites under the sale deed measuring 30 ft. x 40 ft. of two

sites. There are 25 other sites also sold. The learned

senior counsel would further contend that there is no

clarity in the schedule mentioned by the plaintiff in the suit

schedule property and there is no identification as to

where the plaintiff's property is situated and therefore,

injunction cannot be granted. The learned Senior Counsel

would further contend that under Order VII Rule 3 of CPC,

a sketch was produced. The said sketch contains all the

description of the property and the boundaries, and there

is title dispute in respect of the schedule property.

Therefore, the question of granting any injunction does not

arise. Hence, prayed for allowing the appeal.

20. The learned counsel appearing for the appellant-

defendant No.1 in R.F.A. No.1782/2018 has contended

that when the plaintiff was not in possession of the

schedule property, when sites were formed and various

sale deeds were executed, therefore, the suit for bare

injunction is not maintainable and the plaintiff required to

file a comprehensive suit, but it is not filed. The plaintiff is

not able to demonstrate that she is in lawful possession of

the schedule property. The prima facie fact that

possession, identity of the property and its location

required to be established. There is encroachment on the

northern side and she has filed a suit for injunction in O.S.

No.25223/2008 against one Gajendra. The suit is bad for

non-joinder of necessary and proper parties. When the

documents of the property are in possession of the

defendant, the plaintiff is required to file suit seeking

possession and not for bare injunction. The learned

counsel further contended that the trial Court has passed

the decree for having certain lacuna in the evidence of the

defendant. The weakness of the defendant cannot be a

ground for decreeing the suit. There is encroachment by

third parties on the northern portion, who is not a party to

the suit. The plaintiff is not able to show as to what is the

extent of land encroached by the defendant and she goes

on changing the extent of land she continues and there is

no clarity. Exs.P.4, P.6 and P.7 are in respect of the third

parties, who are not in possession. The trial Court by

misconception has held that she has retrained 10 guntas of

land. As per the trial Court, there was encroachment on

the property retained by the plaintiff, is not correct. The

trial Court touches the validity of the sale deed which is

not permissible in the suit for injunction. Even after

producing the Commissioner's report, the plaintiff is not

able to demonstrate as to where is the property situated,

from when the defendant is in possession or when the

defendant encroached the land. Therefore, she has to file

a suit for possession and not a suit for bare injunction. In

support of his arguments, the learned counsel has relied

upon the judgment of the Hon'ble Supreme Court in the

case of ANATHULA SUDHAKAR VS. P.BUCHI REDDY

(DEAD) BY L.RS & ORS reported in 2008 AIR SCW

2692.

21. The appellant in R.F.A. No.1463/18 has also

contended that the judgment and decree passed by the

trial Court is not sustainable, nowhere the dispute

regarding boundary has been analysed by the trial Court.

There is drainage on the western side of the property.

Once it was sold, the question of retaining property by the

plaintiff, does not arise. The sites were formed and sold by

defendant No.1 to various persons. Defendant No.3 also

purchased site No.1 from defendant No.1 and therefore,

suit for bare injunction is not maintainable. The learned

counsel implied the arguments addressed by the learned

Senior Counsel for defendant and prayed for dismissing the

suit and prayed for allowing the appeal.

22. The respondent is the plaintiff, who has

supported the judgment and decree passed by the trial

Court contending that the a portion of land measuring 101/2

guntas is demaracated by the plaintiff. Out of 1 acre 24

guntas, she has sold only 1 acre and the same is fallen to

her share under partition. The eastern side is drainage and

the western side is 'B' schedule property. The northern

side has been retained by the plaintiff, defendant Nos.2

and 3 have purchased the sites under the sale deed,

defendant No.1 admitted that the plaintiff sold the

property of 1 acre in Sy.No.66/1. Once they admitted the

sale, the question of denying the same does not arise.

There is no need to file any suit for declaration or

possession. The Commissioner's report-Ex.C.1 and the

sketch-Ex.C.3 reveals that there is encroachment by other

person and a suit was filed. The plaintiff is already in

possession of the property and the title is not disputed,

and defendant No.1 admitted a portion of his property has

been sold. When title is not in dispute, the question of

filing suit for possession or declaration, is not necessary.

Therefore, the judgment of the Hon'ble Supreme Court

Anathula Sudharkar case, cited supra, is not applicable.

The plaintiff is in possession of the property much earlier

to the sale deed of defendant No.2. 11E skech has been

admitted. The defendants have no right over the

remaining site of the property other than one acre.

Admitted facts need not be proved. The revenue records

produced by the plaintiff is having presumptive value

regarding possession. There is no perversity on finding in

appreciation of evidence and hence, prayed for dismissing

the appeals.

23. Once again, the appellant contended that sites

Nos.4 to 7 stated in written statement by the defendant

No.1 has not been disputed by the plaintiff in the cross

examination. Therefore, prayed for allowing the appeals.

24. Having heard the arguments of learned counsel

for the parties, perused the records.

25. The points that arise for consideration in these

appeals are:

(i) Whether the plaintiff proves that she is in possession and enjoyment of the suit schedule property as on the date of filing the suit ?

(ii) Whether the plaintiff proves that the defendant trying to interfere over the suit schedule property on 03.04.2008 ?

(iii) Whether the suit for bare injunction is not maintainable as contended by the defendants

(iv) Whether judgment and decree passed by the trial Court calls for interference?

26. The GPA holder of the plaintiff in order to prove

the case, one Sri.K.Narayanaswamy was examined as PW1

and got marked 43 documents. The Ex.P1 is the GPA

executed by the plaintiff, he has filed the affidavit evidence

by re-iterating the averments made in the plaint and

marked various documents. The Ex.P2 is partition deed

dated 30.9.2004 Ex.P3 and Ex.P4 mutation and RTC

extracts. Ex.P5 is the copy of the sale deed dated

16.5.2015. The Exs.P6, P7 and P8 are the RTC and

mutation register extracts. The Ex.P9 is the certified copy

of the sale deed dated 14.9.2005. Ex.P10 is the copy of

the sale deed dated 22.02.2012. Ex.P.11 and Ex.P12 are

the two sale deeds dated 06.02.2006. Ex.P13 are the copy

of the sale deed dated 30.09.2005. Exs.P14 to P35 are the

various sale deeds executed by the defendant No.1 in

favour of the various site purchasers. Ex.P36 is the

certified copy of the rectification deed dated 28.06.2007.

Ex.P37 is another copy of sale deed dated 15.05.2011.

Ex.P38 and Ex.P39 are index of land and record of rights.

Ex.P40 is the certified copy of application dated

07.11.2007. Ex.P41 is the copy of the written statement in

O.S.No.25604/2008. Ex.P42 is the objection filed to the

Commissioner's report in O.S.No.25604/2008 and Ex.P43

is the suit sketch. The case of the plaintiff is that she was

owner of the property measuring 1 acre 13½ guntas in

Sy.No.66/1 which was fallen to her share by way of

partition between herself and brother-in-law, M.Nagaraj

and the remaining 10½ guntas of land in Sy.No.66/1 and

30 guntas of land in Sy.No.68/4 has been fallen to the

share of M.Nagaraj. Out of the same 1 acre sold to the

defendant No.1 under the sale deed and plaintiff has

retained 13½ guntas of land. On the other hand, the

defendant No.1 admitted the purchase of one acre of land

from the plaintiff and also admitted prior to purchasing one

acre of land, he also purchased 10 guntas of land in the

same survey number and 30 guntas of land in Sy.No.68/4

under the sale deed dated 14.2.2005, which was executed

by the plaintiff, Nagaraju, along with the family members.

Subsequently, the plaintiff also sold one acre of land in

Sy.No.66/1 to the very same defendant No.1, which is on

the eastern side of the property sold to the defendant

No.1, under sale deed dated 14.02.2005. It is categorical

case of the defendant No.1, that he has purchased almost

2 acres of land i.e., 1 acre 10½ guntas of land in

Sy.No.66/1 and 30 guntas of land from Nagaraj in

Sy.No.68/4. It is an admitted fact, the land in Sy.No.66/1

was totally measuring 1 acre 25 guntas of land. Out of

which, 10½ guntas fallen to the share of Nagraj and 1 acre

and 13½ guntas fallen to the plaintiff, there is no dispute

in this regard. It is not in dispute that the defendant No.1

had purchased 2 acres of land, both in Sy.No.66/1, ie,.50

guntas and in Sy.No.68/4, 30 guntas and he later had

formed the layout. That means the remaining 13½ guntas

of land on the northern side of the property purchased by

the defendant No.1 was not being sold to any person,

which amounts that the plaintiff having retained the same.

However, in the sale deed executed by the plaintiff in

favour of the defendant No.1 on 16.06.2005, there is no

reference in the schedule that she has stated, she has

retained remaining portion of the land in Sy.No.66/1,

which means the northern side of the property purchased

by the defendant No.1, from the plaintiff as well as her

brother-in-law, were retained by the plaintiff.

27. The Ex.P9 is the sale deed dated 14.9.2005,

executed by the plaintiff, as well as her brother-in-law

regarding 30 guntas of land in Sy.No.68/4 and 10 guntas

of land in Sy.No.66/1, which is much prior to the sale

deed of the plaintiff, which was executed in favour of the

defendant No.1, on 16.06.2005. These documents are not

in dispute. The case of the defendant No.1 in the written

statement, that while forming the layout by the defendant

at the request of the plaintiff, he also formed layout in a

portion of the land retained by the plaintiff and on the oral

request, he has undertaken to give some sites to the

plaintiff, which were numbered as site Nos.23, 24, 43 and

a part of site No.49. It is categorical statement made by

the defendant No.1 at paragraph No.2 of the written

statement and has contended that the plaintiff wants some

other alternative sites formed on the northern side of the

layout, which was numbered as site Nos.4, 5, 6 and 7.

These aspects of the evidence and written statement are

not being denied by the plaintiff and his GPA holder in his

evidence, which reveals, while forming the layout by the

defendant No.1, he has also formed layout on the north

western side of the property in Sy.No.66/1 and he has

formed these sites. Out of the said sites, defendant No.1,

sold site Nos.2 and 3 in favour of the one Anandan & shyzu

on 06.02.2006, in respect of Site No.2 for Rs.5,76,000/-.

As per Ex.P11 and the same defendant No.1 also sold

another site No.3 in favour of one Shyzu on the same day,

measuring 30x 40 ft, formed in Sy.No.66/1 and 68/4, for

the valuable consideration of Rs.4,80,000/-, as per

Ex.P.12. The said defendant No.1 sold various sites to the

various other persons as per the sale deeds produced by

the plaintiff from Exs.P.13 to P.36. The defendant No.2 in

turn, purchased site from the Shyzu under Ex.D12 on

12.10.2007, in respect of Site No.3. The very same

defendant No.2 also purchased site No.2 from

K.S.Anandan on 12.10.2007, the very same day as per

Ex.D24. These two documents reveals, that the defendant

No.2 purchased both the sites from Anandan and Shyzu

under sale deed at Exs.D12 and D24 and the said Anandan

and Syzu purchased sites from defendant No.1 under the

sale deed at Exs.P.11 and 12. So the defendant No.2

purchased the sites from the purchaser of the sites from

the defendant no.1 and this is the second sale deed

executed by the purchaser after purchasing site from

defendant No.1. The defendant No.2 is a bonafide

purchaser from the purchaser of the defendant no.1.

Likewise, the defendant no.1 himself sold the site No.1 to

the defendant No.3/Noel Darrel D'Almeida on 22.12.2005

itself. The reference available in the sale deed regarding

purchase of land from the plaintiff. Subsequently, the

defendant Nos.2 and 3 got the khata extract in their name,

the revenue records mutated and the taxes were paid by

them. The defendant No.2 lead evidence as DW1 ad

defendant No.3 lead evidence through GPA holder and

defendant No.1 was examined as DW2. During the

evidence of DW2, who is the defendant No.1 has

categorically stated in his evidence, as well as written

statement, that there was oral contract between them. He

has formed sites by taking 6 guntas of land of the plaintiff

in Sy.No.66/1 on the northern side and he wants to give 4

sites to the plaintiff. But she claimed Site Nos.4, 5, 6 and

7 and he had agreed to give the same. The said fact has

been suppressed by the plaintiff in the cross examination.

Absolutely, there is no denial of his evidence regarding

forming of sites by him, on 6 guntas of land belonging to

plaintiff. In turn, he has agreed to give 4 sites numbering

site Nos.4 to 7. That apart, the plaintiff has not entered

into witness box, the GPA holder examined as PW1. The

allotting of the 4 sites in the previous occasion by the

defendant No.1, in site No.23, 24, 43 and portion of 49 has

been adjusted once again. The plaintiff having agreed to

receive site Nos. 4 to 7 were all within personal knowledge

of plaintiff, but she has not entered into witness box.

There is no rejoinder filed by the plaintiff to the written

statement of the defendant no.1, regarding allotting 4 sites

to her. The plaintiff on the other hand, continuously

agitating that she is in possession of remaining property

and defendant trying to interfere on the schedule property.

On the other hand, defendant No.1 already formed some

sites in the land, including the land of the plaintiff and sold

to the vendor of defendant Nos.2 and 3, i.e., site Nos.1 to

3 and the plaintiff said to be agreed to receive Site Nos.4

to 7, as stated above. There is no evidence or no denial,

that no evidence from PW1 and no denial of the contention

taken by the defendant No.1. On the other hand, the

properties were already sold by defendant No.1, in favour

of vendors of defendant No.2, long back and defendant

No.2 purchased the property from the purchaser of the

property from defendant No.1. Whereas defendant No.3,

purchased the property from defendant No.1, directly and

they are in possession, which reveals as on the date of

filing the suit. The plaintiff may be in possession of portion

of property, on the northern side. On the other hand, the

defendant Nos.2 and 3 were in possession of a portion of

land in Sy.No.66/1, by purchasing the sites from the

defendant No.1 and his purchasers. The plaintiff claiming

that she in possession and defendants are trying to

interfere with the schedule property on 03.04.2008, is not

correct. On the other hand, the plaintiff was not at all in

possession of a portion of schedule property. On the other

hand the defendant Nos.2 and 3 are in possession of the

portion of the property. Therefore, schedule and boundary

mentioned by her, in the plaintiff and sketch at P.43 were

all, not correct. That apart, the Ex.C.3/Sketch submitted

by the Commissioner, clearly reveals there is some portion

of property in possession of the plaintiff. On the other

hand, site Nos.1 to 3 were shown in the sketch. The

Commissioner also stated that the green color marked

portion in the triangle shape has been encroached by the

third party. The red portion also encroached by third

person. The purple colour portion mentioned as drain and

the pit. The sketch marked at "a", "b", "c", "d" and "ea".

The original documents portion was a layout formed and

roads also were formed. It clearly reveals Site Nos.1 to 3

depicted in the Commissioner's sketch, as well as report

reveals the plaintiff is in possession of only 5¾ guntas,

which clearly reveals the defendant Nos.2 and 3 were in

possession of site Nos.1 to 3. Such being the case, the

claim of the plaintiff that she is in possession and

enjoyment of the property as on the date of filing of the

suit, is not correct. The defendants have filed sale deed

claiming the title over the property. Though there is no

cloud on the side of the plaintiff, but plaintiff was not in

possession of the suit schedule property, as stated as on

the filing of the suit. In this regard, it is relevant to

mention the judgment, which reveals the plaintiff was not

in possession of the 10.5 guntas of land in Sy.No.66/1 as

claimed by her and there was interference only on

03.04.2008 is illusionary and she has also suppressed the

material fact before the Court as the defendant was trying

to interfere over the schedule property, as on 3.4.2008 is

not correct. Much prior to that, the defendant No.3 and

vendors of defendant No.2 were already purchased Site

Nos.1 to 3 from the defendant no.1. Therefore, I am of

the view, the plaintiff failed to prove the plaintiff was in

lawful possession of entire 10.5 guntas of land in

Sy.No.66/1, as on the date of filing of the suit and that the

defendant is trying to interfere over the schedule property.

Hence, I hold the point Nos.1 & 2, in the negative.

28. As regards to the above findings, when the

defendant claiming the right over the property under the

sale deed executed by the defendant No.1, in favour of the

vendors of the defendant No.2 and subsequently

defendant no.2 purchasing site Nos.2 and 3 and defendant

No.3 purchased site No.1 from the defendant No.1, in the

year 2005 itself, and got mutated their names in the

khatha, as well as they paid taxes. Such being the case,

once defendants are in possession of property. The

plaintiff was not in possession of property, the question of

filing bare injunction suit is not correct. The plaintiff

required to file the suit for seeking possession and even

otherwise the plaintiff also stated there was some

encroachment at northern side from Gajendraa, there are

not made as parties. The vendor of the defendant no.1,

Anandan and Shyzu also are not parities in the suit.

Therefore, the suit for bear injunction is not maintainable.

In view of the judgment of Hon'ble Supreme Court

reported in ANATHULA SUDHAKAR VS. P.BUCHI

REDDY (DEAD) BY L.RS & ORS reported in 2008 AIR

SCW 2692 at wherein at para 11 of the judgment, the

Hon'ble Apex Court reads thus:

"11) The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and / or possession with injunction as a consequential relief, are well settled. We may refer them briefly.

11.1) Where a plaintiff is in lawful or peaceful possession of the property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory

injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.

11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.

11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction."

29. On careful reading of the 11.2 para, it is

applicable to case on hand, where the plaintiff title was not

disputed, but the plaintiff was not in possession of the

property. "Where the title of the plaintiff is not disputed,

but he is not in possession, his remedy is to file a suit for

possession and seek in addition, if necessary, an

injunction. A person out of possession, cannot seek the

relief of injunction simpliciter, without claiming the relief of

possession". That apart, when the defendant already

having title of the property in the portion of the schedule

property and without seeking relief of declaration to

cancel their title deeds, the question of even filing suit for

possession without suit for injunction is not maintainable.

The bare injunction is not maintainable. Therefore, I hold

the defendant was successful in proving that the suit for

bare injunction, is not maintainable. The Trial Court

without considering the proper appreciation of the

evidence on record, and evidence of DW1 to DW3, and the

title deeds. Merely the averments of the plaint that the

plaintiff is in possession and retained the property and

granting injunction, is not correct. The finding of the Trial

Court, is perverse and against the evidence on record.

The suit for bare injunction is not maintainable and when

the plaintiff was not in possession and defendants are in

possession claiming right through the title deeds or sale

deeds, the Trial Court ought to have dismissed the suit.

Therefore, the judgment and decree passed by the Trial

Court is liable to be set aside. Accordingly answered the

Point Nos.3 and 4 in the affirmative.

30. On the above said reasons, I pass following;

ORDER

I. All the three appeals are allowed.

II. The judgment and decree passed by the Trial Court

in O.S.No.25604/2008 dated 23.4.2018 passed by

VIII Additional City Civil and Sessions Judge,

Bengaluru, is hereby set aside.

III. Accordingly, the suit of the plaintiff is dismissed.

IV. No order as to costs.

V. Draw decree accordingly.

Office to send the copy of this judgment and records

to the concerned court.

Sd/-

JUDGE

CS/AKV