Karnataka High Court
Smt K S Nagarathna vs Sri.Suresh Jain on 14 February, 2024
-1-
NC: 2024:KHC:6381
RFA No. 1000 of 2009
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 1000 OF 2009 (INJ)
BETWEEN:
SMT. K.S NAGARATHNA,
W/O N.MOHAN,
AGED ABOUT 32 YEARS,
R/AT NO.3456,
VTH CROSS, II STAGE,
INDIRANAGAR,
BANGALORE-560 038.
...APPELLANT
(BY SRI M S PRAKASH, ADVOCATE)
AND:
SRI SURESH JAIN,
S/O CHHAGANLAL,
AGED ABOUT 45 YEARS,
R/AT NO.26,
REST HOUSE ROAD,
Digitally signed
by BANGALORE-560 001.
ANNAPURNA G ...RESPONDENT
Location: High
Court of (BY SRI SATHISH V NAIK, ADVOCATE)
Karnataka
THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 25.08.2009 PASSED IN
O.S.8541/2003 ON THE FILE OF THE V ADDL. CITY CIVIL AND
SESSIONS JUDGE, BANGALORE, DISMISSING THE SUIT FOR
PERMANENT INJUNCTION.
THIS APPEAL COMING ON FOR ARGUMENTS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
-2-
NC: 2024:KHC:6381
RFA No. 1000 of 2009
JUDGMENT
Aggrieved by the judgment and decree dated
25.08.2009 passed in O.S.No.8541/2003 by the learned V
Additional City Civil and Sessions Judge, Bangalore,
dismissing the suit for permanent injunction, 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 are as
below:
The plaintiff contended that she is the absolute
owner in possession and enjoyment of the suit schedule
property measuring 19 1/2 ft. East-West and 10 ft. North-
South situated at Site No.55 Airport Road, Konena
Agrahara, Bangalore. She had acquired the same under
an absolute sale deed dated 11-4-1991 from her father,
who in turn, had acquired it in a family partition. The
plaintiff claims that the sale deed was executed as
consideration of her marriage with Mohan. The defendant
NC: 2024:KHC:6381
had no right, title or interest in the suit schedule property
and by force he intended to dispossess the plaintiff by
entering into the suit property and trying to dig a
foundation. The complaint filed to the jurisdictional police
was not fruitful and therefore, she was constrained to file
the suit seeking injunction against the defendants.
4. After service of summons, the defendant
appeared before the trial Court through the counsel and
filed written statement contending that the alleged sale
deed relied by the plaintiff is nothing but a fabricated
document in collusion with her father. It was contended
that the plaintiff was never in possession of the suit
schedule property. It is stated that one Muninanjappa was
the owner and his sons partitioned the family properties
under a deed dated 7-5-1978. In the said partition, 'A'
schedule property measuring 19 1/2 Ft., x 96 ft., was
allotted to one Muniswamy and the remaining B schedule
property with exactly same measurement was allotted to
the father of the plaintiff K. M. Sampangireddy. After
NC: 2024:KHC:6381
death of Muniswamy, his son Ramappa succeeded him.
The said K.M.Ramappa and K.M.Sampangireddy entered
into an agreement for development of the entire property
and agreed to sell the same for a sum of Rs.24,00,000/-.
5. It is alleged that after the property was
developed, the father of the plaintiff approached the
defendant for extra payment of Rs.10,00,000/- and when
the defendant refused, the father of the plaintiff has got
filed the present suit through the plaintiff. It is alleged
that father of the plaintiff had never informed the
defendant that he had sold portion of the property to the
plaintiff while entering into the sale agreement.
Therefore, the suit is filed only to make unlawful gain,
after the defendant had put up construction over the suit
schedule property investing more than Rs.60,00,000/-.
Rest of the contentions of the plaintiff were denied by the
defendant. It is further contended that as per the
documents relied by the plaintiff, when the sale deed was
executed in favour of plaintiff, she was aged 13 years and
NC: 2024:KHC:6381
therefore, she could not have been married to N. Mohan
when the alleged sale deed in her favour was executed.
Therefore, he has sought for dismissal of the suit.
6. On the basis of the above pleadings, the trial
Court framed the following issues:
1. Whether the plaintiff prove her possession over
the suit schedule property as on the date of suit?
2. Whether she further proves the alleged interference
by the defendant with her possession over the suit
property?
3. Whether the plaintiff is entitled to the relief of
permanent injunction as prayed for?
4. What order or decree?
7. In order to prove her case, plaintiff was
examined as PW1, one witness was examined as PW2
and Exhibits P1 to P5 were marked in evidence.
Defendant was examined as DW.1 and Exhibits D1 to
D9 were marked in evidence.
NC: 2024:KHC:6381
8. After hearing both the sides, the trial Court
answered issue Nos. 1 to 3 in the negative and by the
impugned judgment, dismissed the suit of the plaintiff.
9. The said judgment and decree is challenged
by the plaintiff in this appeal.
10. On issuance of notice, respondent/defendant
appeared before this Court through his counsel.
11. On admitting the appeal, the trial Court records
have been secured and heard the arguments by both the
sides.
12. Learned counsel appearing for the appellant
submit that the father of plaintiff had executed the sale
deed on 11-04-1991 as per Ex.P1 to the extent of 19 1/2
ft. x 10 ft. Thereafter, the father of plaintiff had entered
into an agreement of sale with the defendant on
07-10-1994 as per Ex.D3 without disclosing the sale deed
executed by him in favour of the plaintiff. Therefore, no
rights have been accrued to the defendant in pursuance to
the said agreement of sale. It is submitted that possession
NC: 2024:KHC:6381
is not handed over to the defendant under the agreement
and no sale deed was also executed in favour of the
defendant. Therefore, the shed in the suit schedule
property belongs to the plaintiff and the sale deed also
shows the same. Hence, he submits that the trial Court
has erred in holding that the plaintiff has not proved the
lawful possession of the plaintiff over the suit schedule
property.
13. Per contra, the learned counsel appearing for
respondent/defendant submit that PW1 admits in the
cross- examination that her relationship with her father is
good and there are no differences between them.
Therefore, when the plaintiff admits the relationship to be
good with her father, it goes to show that the father of the
plaintiff as well as the plaintiff were trying to blackmail the
defendant for additional money. He further submits that
the cause title of the plaint shows the age of the plaintiff
as 26 years and therefore, as on date of the sale deed
dated 11-4-1991, the plaintiff was aged 13 years.
NC: 2024:KHC:6381
Evidently, the father of the plaintiff was the guardian of
the plaintiff and he knowingly, entered into an agreement
with the defendant stating that he is the absolute owner
and had misrepresented that he had not alienated any
portion to anybody else. It is further submitted that the
defendant commenced the construction in the year 1996
as per the building permission granted at Ex.D8. He also
submits that the agreement of sale executed by the father
of the plaintiff was witnessed by none else than the
husband of the plaintiff N. Mohan. Therefore, when the
plaintiff say that her relationship with K. Sampangireddy
was cordial, it was incumbent upon her either to examine
her father or her husband in order to show that possession
was not handed over as per Ex.D3. He further submits
that the trial Court has clearly observed that as on the
date of the suit, PW1 has admitted that the structure had
been put up on the suit schedule property and therefore, a
mere suit for injunction is not maintainable. Therefore, he
has sought for dismissal of the appeal.
NC: 2024:KHC:6381
14. A perusal of the deposition of PW1 shows that
in the cross-examination, she denies that she had
purchased the suit property from her father, but her father
had given her the suit property towards 'Arisina Kumkuma'
at the time of her marriage. She states that she did not
pay any money to her father as consideration in respect of
the suit property. She also admit that there was a shop
premises in the suit property when it was given to her.
After saying so, she admits the photographs which are
produced at Exs.D1 and D2. She also admits that she had
put up hallow block bricks across the passage blocking the
entry to the remaining portion of the property held by her
father and being developed by the defendant. She states
that in order to put up the sheet structure in her property,
she had applied for the building plan and thereafter, she
has put up the shed. However, no such building plan is
produced by the plaintiff. This shows that the existence of
a structure prior to her purchase is not properly explained
by her. She admits that her relationship is good with her
husband.
- 10 -
NC: 2024:KHC:6381
15. This evidence by PW1 shows that she pleads
her total ignorance to the transactions made by her father
with the defendant and denied that her husband Mohan
had any knowledge about the agreement of sale between
her father Sampangireddy and the defendant. It is evident
that Ex.P1 is an outright sale deed for a consideration of
Rs.20,000/-. Nowhere, Ex.P1 show that it was given by
her father Sampangireddy to the plaintiff as 'Arisina
Kumkuma'. Conspicuously, sale deed dated 11-04-1991
does not show the age of the plaintiff. However, it
describes her husband to be N. Mohan. He was also a
witness to the sale deed. Interestingly, plaintiff has not
produced the original sale deed which would have shown
the endorsement of the Sub- Registrar regarding her age.
No cogent reasons are forthcoming as to why the original
sale deed is not produced by the plaintiff. Evidently, Ex.P1
does not contain the signature of the plaintiff.
16. Be that as it may, in order to establish that the
plaintiff had asserted her possession over the suit schedule
- 11 -
NC: 2024:KHC:6381
property, no documents are forthcoming to show that
prior to 2003, she had asserted her possession over the
suit schedule property. The certificate issued by the
Bangalore City Corporation at Ex.P2, the tax assessment
at Exs.P3 and P4 show that they pertain to the year 2003
by demand notice as per Ex.P4, the tax was assessed from
the year 1995-1996 to 2003-2004 for the first time on
14-11-2003.
17. Sofar as the age of the plaintiff is concerned,
she admits that in the year 1991 she was a minor.
Therefore, she could not have entered into a sale
transaction on her own as per Ex.P1. This itself would
establish that the Ex.P1 sale deed was a nominal one and
the plaintiff could not have enjoyed the possession of the
property since the year 1991 independently. Though she
contend that she had applied for building plan, such
building plan is not forthcoming. Her husband Mohan is
not examined to say that he had received the possession
- 12 -
NC: 2024:KHC:6381
of the property on behalf of his minor wife in the year
1991.
18. So also, PW1 admit that there was construction
by the defendant in the rear portion and the only way to
go to the said portion is through her property. She admit
that building was constructed by the defendant in the rear
portion as shown in the photographs. Thus, it is evident
that the defendant had gone ahead with the construction
of the building as per the building plan produced at Exs.D4
and D5 which are comprising of the entire property
belonging to K.M.Sampangireddy and K.M.Ramappa. So
also he has produced Ex.D9 to show that when he started
construction, the adjacent owner Jawaharlal had filed suit
against the defendant in OS No.8981/1996 where, the
commencement of the construction was admitted by the
adjacent owner.
19. Therefore, it is clear that the plaintiff or her
husband had not objected for the construction of the
building by the defendant pursuant to the agreement
- 13 -
NC: 2024:KHC:6381
between the defendant and the father and uncle of the
plaintiff. Only when the building came up to certain level,
the plaintiff in the year 2003, claimed that there was a
sale deed in her favour and had put up hollow blocks
preventing entry of the defendant into the rear portion of
the suit schedule property. Therefore, the trial Court was
justified in holding that the plaintiff had not proved her
lawful possession over the suit schedule property as on
the date of the suit. This Court also, on re-appreciation of
the evidence on record comes to the conclusion that the
plaintiff has failed to prove the lawful possession of the
plaintiff over the suit property. No way the impugned
judgment can be termed to be either perverse or arbitrary.
20. Therefore, there is no merit in the appeal and
as such, the same deserves to be dismissed with
exemplary costs. Hence, the following:
ORDER
The appeal is dismissed with cost of Rs.50,000/-.
- 14 -
NC: 2024:KHC:6381
The judgment of the trial Court in OS No.8541/2009
dated 25-08-2009 is hereby confirmed.
Sd/-
JUDGE
tsn*
