Karnataka High Court

Sri T Byregowa vs Sri T Mukunda on 2 February, 2024

Author: H. T. Narendra Prasad

Bench: H. T. Narendra Prasad

                      1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 02ND DAY OF FEBRUARY 2024

                    BEFORE

THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

           RFA No.13 OF 2017 (INJ)

BETWEEN:

SRI T BYREGOWDA
S/O LATE THAMMANNAPPA
AGED ABOUT 43 YEARS
RESIDING AT GODDEKONEHALLI
YESHAVANTHAPURA HOBLI
BANGALORE NORTH TALUK
BANGALORE-560 022.
                                  ... APPELLANT

(BY SRI.JEEVAN KUMAR B.S.,ADVOCATE )

AND

SRI T MUKUNDA
S/O LATE A THIPAREDDY
AGED ABOUT 43 YEARS
RESIDENT OF NO.121
9TH CROSS, MAGADI MAIN ROAD
KADABAGERE POST,
BANGALORE-560 030.
                                ... RESPONDENT

(BY SRI. B. SHARATH KUMAR, ADVOCATE)
                             2



       THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CPC, AGAINST THE JUDGMENT AND
DECREE       DATED:      01.12.2016            PASSED    IN
OS.NO.1136/2013 ON THE FILE OF THE XX ADDL.
CITY CIVL AND SESSIONS JUDGE, BENGALURU (CCH-
32),    DECREEING     THE       SUIT     FOR    PERMANENT
INJUNCTION.


       THIS RFA HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 25.01.2024, COMING ON FOR
PRONOUNCEMENT           THIS      DAY,         THE   COURT,
DELIVERED THE FOLLOWING:


                      JUDGMENT

1. This appeal under Section 96 of CPC is filed by

the appellant-defendant challenging the judgment

and decree dated 01.12.2016 passed by the XX

Addl. City Civil and Sessions Judge, Bangalore in

O.S.No.1136/2013, wherein the Trial Court has

decreed the suit filed by the plaintiff for injunction.

2. For the sake of convenience, the parties are

referred to as per their ranking before the Trial

Court in the original suit.

3. Brief facts of the case:

(a) Sri.T.Ramakrishnappa, Sri.Lakshmi

hanumantharayappa and Sri.Kempanna (vendors of

plaintiff) have purchased the agricultural land

bearing Sy.No.45/3 of Gidadakonenahalli,

Yeshwanthapura Hobli, Bangalore North Taluk under

the registered sale deed dated 08.11.1958. After

the purchase of the said land, their names have

been mutated in the revenue records. Based on the

application filed by them, the Deputy Commissioner

has passed an order dated 08.12.2003 for the

conversion of land. Thereafter, they have executed

a GPA in favour of one Sri.Sachidananda Prasad for

the development of their property and for the

formation of a residential layout in the said land.

The plaintiff has purchased a site (hereinafter

referred to as 'suit schedule property') formed in the

said layout in Sy.No.45/3 through a registered sale

deed dated 02.08.2004. Even several other

purchasers have also purchased sites in the layout

through various sale deeds. Thereafter, plaintiff

applied for katha before the concerned authority.

Hence, the plaintiff is the absolute owner of the suit

schedule property. The defendant having no manner

of right or interest over the suit schedule property

was trying to interfere with the plaintiff's peaceful

possession of the suit schedule property. Hence, the

plaintiff filed the suit for permanent injunction.

(b) On service of suit summons, the

defendant appeared through his counsel and filed

the written statement denying the entire plaint

averments. The defendant has stated that

Sri.Thammannappa had purchased the land in

Sy.No.45/3 vide registered sale deed dated

08.11.1958 in the name of his minor sons,

T.Ramakrishnappa, Sri.Lakshmihanumantharayappa

and Sri.Kempanna and at that time, the defendant

and his brother, Sri.Hanumaiah, were not born.

Subsequent to the purchase of the said property,

defendant and his brother, Sri.Hanumaiah were

born to Thammannappa and thereafter, they are in

joint possession and enjoyment of the property

along with his other brothers. It is stated that at no

point of time, neither the defendant nor his brothers

have executed the Sale Agreement in favour of the

plaintiff nor they have executed any GPA in favour

of one Sri.Sachidananda Prasad. It is further stated

that in the year 1982, there was a partition among

the brothers of the defendant under Panchayath

Parikat as per Ex.D-2. Under the said partition, land

measuring 1 acre 18 guntas of land in Sy.No.45/3

has fallen to the share of the defendant. From the

date of partition, the defendant is in possession of

the property.

parties, the Trial Court has framed the following

issues:

a) Whether the plaintiff proves his lawful possession over the suit schedule property as on the date of the suit?

b) Whether the plaintiff proves the alleged interference of the defendant?

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

d) What order or decree?

(d) In order to substantiate the case, the

plaintiff has examined himself as PW-1 and marked

documents at Ex.P-1 to P-16. On behalf of the

defendant, he has examined himself as DW-1 and

produced documents at Ex.D-1 to D-9. On

appreciation of oral and documentary evidence on

record, the Trial Court has answered all the issues in

affirmative and accordingly decreed the suit vide

impugned judgment and decree. Being aggrieved by

the same, the defendant has filed this present

appeal.

4. Sri.B.S.Jeevan Kumar, learned counsel

appearing for appellant-defendant has raised the

following contentions:

a)    The        father            of         the         defendant,

Sri.Thammannappa             had       purchased     the     land    in

Sy.No.45/3       vide     registered          sale    deed       dated

08.11.1958       in    the    name       of    his   minor        sons,

T.Ramakrishnappa, Sri.Lakshmihanumantharayappa

and Sri.Kempanna. At that time, the defendant and

his brother, Sri.Hanumaiah, were not born.

Subsequent to the purchase of the said property,

defendant and his brother, Sri.Hanumaiah were

born to Sri.Thammannappa and thereafter, they are

in joint possession and enjoyment of the said

property along with his other brothers. At no point

of time, neither the defendant nor his brothers have

executed the sale agreement in favour of the

plaintiff nor they have executed any GPA in favour

of one Sri.Sachidananda Prasad. In the year 1982,

there was a partition among the brothers of the

defendant under Panchayath Parikat as per Ex.D-2.

Under the said partition, land measuring 1 acre 18

guntas of land in Sy.No.45/3 has fallen to the share

of the defendant. From the date of partition, the

defendant has been in possession of the property.

He has not executed any sale deed in favour of the

plaintiff. Till today, the defendant is in possession of

the property.

b) It is contended that the plaintiff is claiming

that the brothers of the defendant, namely,

T.Ramakrishnappa, Sri.Lakshmihanumantharayappa

and Sri.Kempanna have executed GPA in favour of

Sri.Sachindananda Prasad; Sri.Sachidananda Prasad

has formed the layout and sold sites formed in the

layout to various persons and plaintiff has

purchased a site in the said layout vide registered

sale deed dated 02.08.2004. The plaintiff has not

produced the GPA to show that the brothers of the

defendant have executed the GPA in favour of

Sri.Sachidananda Prasad after receiving sale

consideration. The plaintiff has also not produced

any documents to show that Sri.Sachidananda

Prasad has formed the layout and that

Sri.Sachidananda Prasad has obtained any

permission from the competent authority for

forming the layout. The plaintiff has also not

produced the sketch to show that the sites have

been formed. Therefore, the defendant has denied

the title of the plaintiff. When there is a dispute

regarding the title, a suit for injunction is not

maintainable.

c) It is further contended that from the date of

partition, the defendant is in possession of the

property. He has also produced Panchayath Parikat

at Ex.D-2 and RTC extracts at Ex.D-3. Except

producing tax demand extracts and tax paid

receipts, the plaintiff has not produced any

documents to show that he is in possession of the

property and he has also not produced the katha

extract issued by BBMP. Since no documents have

been produced to show that the layout has been

formed, it is difficult to identify the suit schedule

property. When the plaintiff fails to prove his

possession and also the identity of the property, the

suit for bare injunction is not maintainable. In

support of his contention, he has relied upon the

judgment of the Apex Court rendered in Civil appeal

Nos.5575-5576/2021.

d) Lastly, it is contended that if the defendant's

brothers have sold the property in Sy.No.45/3

situated in Yeshwanthapura Hobli, Bangalore North

Taluk, as contended by the plaintiff and since the

defendant's brothers have distinct interest in the

property and sold the property together for a

lumpsum, the plaintiff ought to have produced the

documents to show that the vendors have received

the sale consideration, as per the provisions of

Section 46 of the Transfer of Property Act. But the

plaintiff has not produced any such documents.

Therefore, the suit filed by the plaintiff is not

maintainable. The Trial Court without considering

this aspect of the matter has erred in decreeing the

suit.

With the above contentions, the learned

counsel for appellant sought for allowing the appeal.

5. Per contra, Mr.B.Sharath Kumar, learned

counsel appearing for respondent-plaintiff has raised

the following the counter-contentions:

a) The suit schedule property originally

belonged to one T.Ramakrishnappa, Sri.Lakshmi

hanumantharayappa and Sri.Kempanna. They had

purchased the agricultural land bearing Sy.No.45/3

situated at Gidadakonenahally, Yeshawanthapura

Hobli, Bangalore North Taluk, under a registered

sale deed dated 08.11.1958. They have executed a

registered GPA in favour of Sri.Sachidananda Prasad

and thereafter, Sri.Sachidananda Prasad has formed

a layout in Sy.No.45/3 after obtaining permission

from the Deputy Commissioner and formed

residential sites in the said layout. The plaintiff

has purchased a site in the layout vide registered

sale deed dated 02.08.2004. The original

owners, namely, T.Ramakrishnappa, Sri.Lakshmi

hanumantharayappa and Sri.Kempanna have signed

the said sale deed along with Sri.Sachidananda

Prasad. The original owners have not challenged the

said sale deed. The plaintiff has been in possession

of the suit schedule property from the date of

purchase. The defendant has no right or title over

the suit schedule property as he was not born as on

the date of purchase of the land in Sy.No.45/3 vide

registered sale deed dated 08.11.1958. Therefore,

he contended that the plaintiff is the absolute owner

and in possession of the suit schedule property from

the date of purchase and he has produced tax

demand receipts and tax paid receipts in respect of

the suit schedule property.

b) It is further contended that the defendant has

not produced any documents to show that he is in

possession of the suit schedule property. Even

though the defendant has claimed that by partition

in the year 1982, land measuring 1 acre 18 guntas

has fallen to his share by Panchayath Parikath as

per Ex.D-2, but no document has been produced to

show that after the partition, his name has been

entered in the revenue records. Only for the first

time, in the year 2008, he approached the Tahsildar

to change the revenue records in his name on the

basis of Panchayath Parikat Ex.D-2. Regarding the

revenue entries in respect of the said land, there is

a dispute pending before this Court in

W.P.No.50678/2014. Except producing Ex.D-2, the

defendant has not produced any other necessary

documents to show that he is in possession of 1

acre 18 guntas of land, which has fallen to his share

in the partition of the year 1982.

c) It is further contended that there is no plea

taken by the defendant in the written statement

regarding the identity of the suit schedule property

and he has not disputed regarding the identity of

the property before the Trial Court. For the first

time, this argument has been advanced before this

Court. Therefore, he contended that there is no

dispute regarding the title of the property of the

plaintiff, as the plaintiff has proved his possession.

Therefore, the Trial Court has rightly decreed the

suit.

d) It is further contended that Section 46 of the

Transfer of Property Act is not applicable to the

present case. The defendant has no right or title

over the suit schedule property and he has not

executed any sale deed and he is not a party to the

sale deed dated 02.08.2004. Therefore, such a

contention that Section 46 of the Transfer of

Property Act is applicable to the present case, is not

available to be urged by the defendant.

e) Lastly, he has contended that plaintiff's

vendors and GPA holder, Sri.Sachidananda Prasad

have formed a layout in Sy.No.45/3 and sold sites

to various persons. Some of the purchasers, who

have purchased sites formed in the layout, have

filed suits in O.S.No.770/2014, O.S.No.775/2014

and O.S.No.84/2013 and in all the said suits,

defendant is a party. In the said suits, the Trial

Court has decreed the suits and granted relief of

permanent injunction against the defendant. The

judgments and decrees passed in the said suits

have not been challenged by the defendant and

hence, attained finality. The Trial Court considering

all these aspects has rightly decreed the present

suit. There is no error in the impugned judgment

and decree passed by the Trial Court.

With the above contentions, the learned

counsel for the respondent-plaintiff has sought for

dismissal of the appeal.

6. Heard the learned counsel for the parties.

Perused the impugned judgment and decree passed

by the Trial Court and original records.

7. After hearing the learned counsel for the

parties, the point that arises for consideration in this

appeal is:

"Whether the Trial Court is justified in decreeing the suit of the plaintiff filed for a bare injunction, in the facts and circumstances of the case?

8. Plaintiff has filed the suit for permanent

injunction. The specific case of the plaintiff

is that Sri.T.Ramakrishnappa, Sri.Lakshmi

hanumantharayappa, Sri.Kempanna have purchased

the land in Sy.No.45/3 situated at

Gidadakonenahally, Yeshawanthapura Hobli,

Bangalore North Taluk under a registered sale deed

dated 08.11.1958. Thereafter, they have executed

GPA in favour of Sri.Sachidananda Prasad, who has

formed a layout in Sy.No.45/3 after obtaining

permission from the Deputy Commissioner. The

plaintiff has purchased a site formed in the layout

vide registered sale deed dated 02.08.2004. To

substantiate his case, the plaintiff has produced the

registered sale deed of his vendors dated

08.11.1958 and also produced the registered sale

deed dated 02.08.2004, to show that he has

purchased the suit schedule property from his

vendors for valuable consideration.

9. The case of the defendant is that in the year

1982, there was a partition among his brothers

through Panchayath Parikat as per Ex.D-2 and land

measuring 1 acre 18 guntas in Sy.No.45/3 has fallen

to his share under the said partition. From the date

of partition, he has been in possession of the

property. He has also produced Panchayath Parikat

at Ex.D-2 and RTC extracts at Ex.D-3. The

defendant (DW-1) in his cross-examination has

admitted that he is not concerned with other

portions of the property in Sy.No.45/3 except 1 acre

18 guntas, which has fallen to his share. Even

though he has specifically contended that under

Panchayath Parikat, Ex.D-2, land measuring 1 acre

18 guntas has fallen to his share, he is not sure

whether the suit schedule property falls in the said 1

acre 18 guntas or not and he has also not produced

any iota of evidence before the Court that suit

schedule property falls under 1 acre 18 guntas.

Even though the defendant has claimed that in the

partition, land measuring 1 acre 18 guntas had

fallen to his share under Panchayath Parikat of the

year 1982, but only for the first time, in the year

2008, he has approached the Tahsildar for change

of revenue entries in his name. He has not produced

any documents to show that after the Panchayath

Parikat, his name has been entered into the revenue

records.

10. In respect of a site purchased by other

purchaser formed in the layout in the very same

Sy.No.45/3, a suit in O.S.No.4140/2013 has been

filed wherein the defendant is a party to the suit.

The said suit came to be decreed vide judgment and

decree dated 20.03.2014. The judgment and decree

passed in the said suit has been produced and

marked as Exs.P-15 and 16. Since the defendant

has not challenged the said judgment and decree,

the same has attained finality.

11. The respondent-plaintiff has produced a memo

before this Court along with copy of judgments and

decrees dated 6.3.2017, 29.6.2017 and 5.3.2017

passed by the City Civil Court, Bangalore in

O.S.No.770/2014, O.S.No.775/2014 and

O.S.No.84/2018 respectively. It is observed that in

all these cases, the defendant is a party. Suits filed

by the plaintiff for bare injunction have been

decreed in respect of certain sites formed in

Sy.No.45/3 and since the defendant has not

challenged the same, the said decrees have attained

finality.

12. Admittedly, the defendant is not a signatory to

the sale deed dated 02.08.2004. Hence, the

provision of Section 46 of the Transfer of Property

Act is not applicable to the facts of the present case.

Accordingly, the contention of the learned counsel

for the defendant that Section 46 of the Transfer of

Property Act is applicable to the facts of the present

case, cannot be accepted.

13. As per the principles enunciated by the Hon'ble

Supreme Court in the case of Anathula Sudhakar

Vs. P.Buchi Reddy (Dead) by L.Rs. & Ors.

reported in 2008 (4) SCC 594, whenever a suit is

filed for an injunction in respect of open space and

the very title of the said property is emphatically

disputed, normally a comprehensive suit will have to

be filed seeking the main relief of declaration of title

and consequential relief of injunction, if he is in

possession of the same. In the very said decision, it

is also specifically held that persons having clear

title and possession suing for injunction, should not

be driven to the costlier and more cumbersome

remedy of a suit for declaration. Paragraph 21 (d) of

the said decision is relevant and the same is

extracted hereinbelow:

"21. XXXXX

(a) XXXXX

(b) XXXXX

(c) XXXXX

(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding

title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.

14. Therefore, in view of the law laid down by the

Apex Court in the case of Anathula Sudhakar

(supra) and also taking into consideration the oral

evidence of parties and documentary evidence such

as registered sale deed executed in favour of

plaintiff, encumbrance certificate, tax demand

extracts and tax paid receipts, this Court has come

to the conclusion that the plaintiff is in lawful

possession and enjoyment of the suit schedule

property.

15. This Court, being the first appellate court and

final court of facts for an appeal filed under Section