Karnataka High Court
Smt Manjula vs Sri S A Muneer on 5 February, 2024
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RFA No. 604 of 2008
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 604 OF 2008 (INJ)
BETWEEN:
SMT. MANJULA,
W/O LATE N H KRISHNAPPA,
AGED ABOUT 45 YEARS,
R/AT NO.53/A, VEERA REDDY BUILDING,
MAHADEVAPURA, BANGALORE-560 048.
...APPELLANT
(BY SRI H.M MURALIDHAR & SRI NAGENDRASWAMY,
ADVOCATES)
AND:
1. SRI S A MUNEER,
S/O S A GAFFOOR,
AGED ABOUT 38 YEARS,
R/AT NO.126, R R LAYOUT,
Digitally signed VIJAYAPURA, BANGALORE-560 016.
by
ANNAPURNA G 2. SRI TALA SHIVAPRASAD,
Location: High S/O T KRISHNAIAH,
Court of
Karnataka AGED ABOUT 38 YEARS,
R/AT C/O P CHINNAPPA,
SIDDAPPA REDDY LAYOUT,
DEVASANDRA EXTENSION,
KRISHNARAJAPURAM,
BANGALORE-560 036.
...RESPONDENTS
(BY SRI CHITHAPPA, ADVOCATE FOR R1-2)
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RFA No. 604 of 2008
THIS RFA IS FILED U/S 96 OF THE CPC AGAINST THE
JUDGMENT AND DECREE DATED 29.2.08 PASSED IN OS NO.
6294/2000 ON THE FILE OF THE VII ADDL. CITY CIVIL JUDGE,
BANGALORE, (CCH.NO.19), DISMISSING THE SUIT FOR
PERMANENT INJUNCTION.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Aggrieved by the judgment and decree dated
29.2.2008 passed in O.S.No.6294/2000 by the learned VII
Additional City Civil Judge, Bangalore (CCH-19) dismissing
the suit, the plaintiff has approached this Court in appeal.
2. The parties would be referred to as per their
ranks before the trial Court for the sake of convenience.
3. Brief facts of the case of the plaintiff-Manjula
who was the wife of the original plaintiff-N.H.Krishnappa
are as below:
The plaintiff being the absolute owner in actual
possession and enjoyment of the site No.61, ITI Notified
Area Committee, formed in Sy.No.25P of Basavanapura
Village measuring 1,200 Sq.ft. by virtue of the sale deed
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dated 26.07.2000 by Sri.N.Kodanda Reddy. His name was
recorded in the revenue records of the ITI Notified Area
Committee and he was paying the tax. It is stated that
N.Kodanda Reddy had purchased 20 guntas in Sy.No.25P
from one Papamma under a registered sale deed dated
12.06.1995. It was contended that Papamma and
N.Kodanda Reddy had acquired title over the property
through a certificate of Saguvali Chit (grant) dated
19.04.1979 issued by Tahasildar, Bengaluru South Taluk
to the extent of 1 acre 20 guntas. There was a condition
not to alienate the property for 15 years on the grantee-
Papamma. It is contended that the defendants without any
right, title or interest in the suit schedule property started
disturbing and obstructing the plaintiff over the suit site
while he tried to construct a structure. Police complaints
were filed between the parties. Therefore, there was cause
of action for the plaintiff and the suit O.S.No.6294/2000
was filed against the defendants seeking permanent
injunction.
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4. On issuance of summons, defendant Nos.1 and
2 appeared and filed their written statement. Defendant
Nos.1 and 2 had also filed O.S.No.4987/2000 and
O.S.No.4988/2000 on 20.07.2000 and those suits were
also clubbed with O.S.No.6294/2000.
5. The defendants in their written statement
contended that defendant No.1 is the owner in possession
of site No.61, ITI Notified Area Khata No.34/4/25-P/61
and defendant No.2 is the owner in possession of site
No.50 with Khata No.34/4/25-P/50. They had purchased it
from Papamma and her son-Muthu under registered sale
deeds dated 25.02.1994. They contended that they are
paying the taxes and they had obtained permission for
construction of the building and the plaintiff is in no way
concerned to the suit schedule properties. Similar was
their contention in their respective plaints in O.S.Nos.4987
and 4988 of 2000. They also contended that the vendor of
the plaintiff-N.Kodanda Reddy was a subsequent
purchaser from Papamma and therefore, he could not
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have claimed any right, title or interest in the suit sites,
which were sold to the defendants by Papamma and
Muthu. It was alleged that the suit is filed at the
instigation of N.Kodanda Reddy, who had alienated a
portion of the property after he came to know about the
suits filed by these defendants. Therefore, they prayed for
dismissal of suit with costs.
6. On the basis of the above pleadings, the trial
Court framed the following issues:
"1. Whether plaintiffs prove that they are in possession of
suit schedule property?
2. Whether plaintiffs prove alleged obstruction?
3. Whether plaintiffs are entitled for any relief?
4. What order? What decree?"
7. All the three suits were clubbed together and
common evidence was led. The plaintiff herself examined
as PW.1 and Exhibits P1 to P9 were marked in evidence.
Defendants examined themselves as DWs.1 and 2 and
Exhibits D1 to D21 were marked in evidence.
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8. The trial Court after hearing both the sides,
answered issue Nos.1 to 3 in the negative and by the
impugned common judgment, dismissed the suit of the
plaintiff while decreeing the suits filed by the defendant
Nos.1 and 2.
9. The said judgment and decree is challenged
by the plaintiff in this appeal.
10. On issuance of notice, respondents No.1 and 2
/defendants No. 1 and 2 appeared before this Court
through their counsel.
11. On admitting the appeal, the trial Court records
have been secured and heard the arguments by both the
sides.
12. Before entering into the contentions raised by
the parties, it is relevant to note that the suit schedule
was got amended by the plaintiffs during pendency of the
suit. Earlier, the entire 20 guntas of land in Sy.No.25P was
shown as the suit property and later, site Nos.61 and 50
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were shown as the suit schedule property but the
amended plaint did not show this amendment.
13. Learned counsel appearing for the appellant
would submit that the amended version of the suit
schedule was not considered by the trial Court. It went
under the premise that the claim of the plaintiff is in
respect of the entire 20 guntas of land purchased by
N.Kodanda Reddy from Papamma. Therefore, the trial
Court is misdirected in appreciating the suit schedule
property. He contended that the defendants claimed that
they purchased the property through Papamma, but there
was a condition while granting the land to Papamma that
she should not alienate the same for 15 years. Therefore,
the sales in favour of the defendants are invalid. Thirdly,
he contends that N.Kodanda Reddy had purchased 20
guntas in Sy.No.25P from Papamma on 12.06.1995 and
in-turn, he sold the land to the plaintiff on 26.07.2000.
Therefore, the sale deeds in favour of the Kodanda Reddy
and the plaintiff are valid. He contends that the findings of
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the trial Court are perverse and the trial Court do not say
where the site Nos.50 and 61 are situated. Therefore, he
urges that the matter has to be remanded to the trial
Court for fresh disposal.
14. Per contra, learned counsel appearing for the
respondents contend that when the defendant Nos.1 and 2
filed O.S.Nos.4987 and 4988 of 2000 on 20.07.2000, the
trial Court had passed an interim order. Thereafter, on
coming to know of filing of the suit, N.Kodanda Reddy sold
the property to the plaintiff on 26.07.2000. The plaintiff
filed the present suit i.e., O.S.No.6294/2000 on
15.09.2000. Therefore, he contends that the plaintiff has
approached this Court with a malafide intention at the
instigation of Kodanda Reddy. He further contended that
there is no evidence to show that the property purchased
by the plaintiff is in the 20 guntas which was purchased by
N.Kodanda Reddy from Papamma. He submits that the
sale deed executed by Papamma with the specific
boundaries of site Nos.50 and 61 in favour of the
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defendants was much earlier to the sale deed of
N.Kodanda Reddy. Therefore, N.Kodanda Reddy cannot
claim any right, title or interest in respect of the suit
schedule properties, as Papamma had lost title in the
same. Lastly, he contends that the question whether there
is violation of terms and conditions of the grant, is a
matter to be looked into by the concerned authorities and
the plaintiff cannot have any say in the same. Hence, he
sought for dismissal of the suit.
15. The points that arise is whether the plaintiff had
shown his lawful possession and enjoyment over the suit
schedule property and whether there was obstruction by
the defendants?
16. A perusal of Ex.P1, which is a sale deed under
which the plaintiff purchased the property from N.Kodanda
Reddy show that it is the site No.61 in ITI Notified Area
Khata No.34/4/25P/61. It do not pertain to the site No.50.
Therefore, the claim of the plaintiff to that extent i.e., in
respect of site No.50 has to be rejected.
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17. Ex.D1 is a sale deed executed by Papamma and
Muthu in favour of defendant No.1-Muneer. Ex.D12 is the
sale deed executed by Papamma in favour of defendant
No.2-Tata Shiva Prasad. Both these sale deeds are dated
25.02.1994. The sale deed executed by N.Kodanda Reddy
in favour of the plaintiff is produced at Ex.P1 and it is
dated 26.07.2000. It describes the suit site No.61 to bear
Khata No.279/25/61 of ITI Notified Area. Evidently, the
khata numbers are different though site numbers are the
same. Therefore, it is difficult to accept that the plaintiff is
claiming the rights on the basis of his sale deed pertain to
the property which was purchased by defendant No.1. The
claim of the plaintiff cannot be in respect of the property
held by the defendant, which is bearing Khata
No.34/4/25P/61.
18. It is also pertinent to note that the copy of the
sale deed under which N.Kodanda Reddy purchased the
property from Papamma is produced at Ex.P3. The
description of the property is 20 guntas of land in
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Sy.No.25P of Basavanapura Village. It do not mention any
of the site numbers in the said land which was purchased
by N.Kodanda Reddy. Therefore, it was incumbent upon
the plaintiff to establish that N.Kodanda Reddy had formed
the layout in 20 guntas of land of Sy.No.25P, which he had
purchased from Papamma. This evidence is not
forthcoming from any of the documents relied by the
plaintiff. In fact, plaintiff had described the entire 20
guntas of land to the suit schedule property while filing the
suit. Later, the suit schedule was amended. Though it is
true that the trial Court had not considered the amended
version of the suit schedule, the findings in no way
affected the outcome of the suit.
19. As noticed above, the sale deeds executed by
Papamma and Muthu are earlier in point of time to that of
the sale deed executed by them in favour of N.Kodanda
Reddy. Therefore, Papamma could not have alienated the
title in respect of a property which she had alienated much
prior to the alienation in favour of N.Kodanda Reddy. She
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could not have alienated what she did not have. Under
these circumstances, the property purchased by
N.Kodanda Reddy cannot be the property which was sold
by Papamma in favour of defendants.
20. So far as the contention that the alienation by
Papamma was in violation of the conditions of the grant is
concerned, the grant order is not available on record. Even
though it is held to be that the grant was dated
19.04.1979 and the alienation in favour of the defendants
was on 25.02.1994, it was for the concerned authorities to
take suitable action to cancel the grant. At the instance of
the plaintiff, the sale deed by Papamma in favour of the
defendants cannot be held to be void. Therefore, this
contention of the plaintiff also is not sustainable under
law.
21. It is pertinent to note that the defendants have
specifically pleaded that they have obtained permission for
construction of the building and they had commenced such
construction. The approved building plan is produced by
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the defendants at Exs.D7, 8, 18 and 19. It is evident that
the building plans were approved on 16.06.1999. No such
approved building plans are produced by the plaintiff
though he contends that he had started construction in the
site purchased by him. Obviously, the plaintiff purchased
the site on 26.07.2000. It is not the case of the plaintiff
that N.Kodanda Reddy had obtained any permission for
construction of the building. Therefore, the claim of the
plaintiff regarding the lawful possession over the suit
schedule property cannot be accepted.
22. The defendant Nos.1 and 2 had purchased the
property in the year 1994 and thereafter, they obtained
the permission for construction of the building in the year
1999. When the plaintiff and the N.Kodanda Reddy
obstructed their possession and construction of the
building, they filed O.S.Nos.4987 and 4988 of 2000 and
20.07.2000. Thereafter, on 26.07.2000, Kodanda Reddy
sells the suit schedule property to the plaintiff. The plaintiff
files the suit against the defendant on 15.09.2000. This
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sequence of events give impetus to the contention that the
plaintiff has filed this suit under the instigation of Kodanda
Reddy. The plaintiff had purchased the site with a different
khata and he had no right, title or interest over the suit
schedule properties and had not paid any property tax in
respect of the sites purchased by him. Therefore, it is
evident that the intentions of the plaintiff were not
bonafide.
23. The trial Court by the impugned judgment has
analyzed the testimony of PW.1, DW.1 with reference to
the documents produced by the parties. It notices that
N.Kodanda Reddy though was a party in O.S.Nos.4987
and 4988 of 2000 did not appear to contest the suits.
Therefore, no fault can be found in the findings of the trial
Court.
24. Hence, there is no reason to interfere with the
impugned judgment passed by the trial Court. Hence, for
aforesaid reasons, the appeal deserves to be dismissed
with exemplary costs.
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ORDER
The appeal is dismissed with costs of
Rs.25,000/-.
Sd/-
JUDGE
NR/-
