Karnataka High Court
Smt T Leelavathi vs C Nagaraju on 16 February, 2024
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RFA No. 1307 of 2008
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 1307 OF 2008 (INJ)
BETWEEN:
SMT. T LEELAVATHI,
W/O K.B.THIMMARAJU,
AGED ABOUT 42 YEARS,
R/O BALAJI NIVAS,
SAPTAGIRI EXTENSION,
K.E.B LAYOUT,
TUMKUR-572 101.
...APPELLANT
(BY SRI K VIJAYA KUMAR, ADVOCATE [PH])
AND:
1 . C NAGARAJU,
AGED ABOUT 54 YEARS.
2 . C JACHANDRA,
Digitally signed AGED ABOUT 61 YEARS.
by
ANNAPURNA G BOTH SONS OF LATE CHENGAIAH,
Location: High R/O NO. 76/1, 30TH CROSS,
Court of 4TH 'T' BLOCK, JAYANAGAR,
Karnataka BANGALORE-4.
3 . SMT. SUDHA GAIKAWAD,
W/O B.R.JADAV,
AGED ABOUT 42 YEARS,
R/O NO.189, CANARA BANK
COLONY, NAGARBHAVI MAIN
ROAD, BANGALORE-86.
4 . C VENUGOPAL,
S/O LATE CHIKKANNA,
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RFA No. 1307 of 2008
AGED ABOUT 58 YEARS,
R/O NO.745/A, 25TH CROSS,
24TH MAIN, J.P.NAGAR, 6TH PHASE,
BANGALORE-78
...RESPONDENTS
(BY SRI C.R GOPALASWAMY, SERNIOR COUNSEL FOR
SRI K.M SOMASHEKARA, ADVOCATE FOR R1 [PH];
SRI V BASAVAKUMAR, ADVOCATE FOR R3 & R4
THROUGH GPA;
R2 IS SERVED)
THIS RFA IS FILED U/S 96 CPC AGAINST THE JUDGMENT
AND DECREE DATED 29.8.2008 PASSED IN OS.NO. 8147/2004
ON THE FILE OF THE XXXVIII ADDL.CITY CIVIL JUDGE,
BANGALORE, PARTLY DECREEING THE SUIT FOR PERMANENT
INJUNCTION AND DISMISSING THE SUIT IN RESPECT OF ITEM
NO 2 OF SUIT SCHEDULE PROPERTY AND THE APPELLANT
HEREIN PRAYS TO SET ASIDE THE ABOVE JUDGMENT AND
DECREE IN RESPECT OF SITE NO.92 MOREFULLY DESCRIBED
IN THE SCHEDULE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Aggrieved by the judgment and decree dated
29-08-2008 passed in O.S.No.8147/2004 by the learned
XXXVIII Additional City Civil and Sessions Judge,
Bangalore City, decreeing the suit in part, the plaintiff has
approached this Court in appeal.
2. The facts in brief are as below:
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The suit schedule properties are two sites bearing
No. 92 and 93 formed in the Survey Nos.11, 12/1 and
47/1, Katha No.857 of Kothnur Village, Uttarahalli Hobli,
Bangalore South Taluk. The measurements of the sites
and the boundaries are mentioned in the plaint schedule.
It is the case of the plaintiff that the lands in the above
survey numbers totally measuring 05 acres 04 guntas was
ancestral property of one Changaiah, the father of
defendant Nos. 1 and 2. He had two other sons by name
C. Rajashekhar and C. Mani, who are no more. Defendant
No.1 Nagaraj filed the suit for partition against defendant
No.2 and his brothers i.e. C.Rajashekhar and C.Mani in
respect of Survey Nos.11, 12/1,47/1 in OS No.4706/1997.
By way of Final Decree in the said suit dated 27-6-1997,
defendant No.1 C Nagaraj was allotted 01 acre 10 guntas
in the above mentioned survey numbers. Even during the
pendency of the final decree proceedings, the four sons of
Changaiah have formed layout in the said survey
numbers, which was approved by the Administrator of
Kothnur Group Panchayat. The site Nos. 92 and 93 had
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fallen to the share of deceased C. Rajashekhar and C.
Mani. Defendant Nos. 1 and 2 were allotted other sites
towards their share. The plaintiff purchased site No.93
from defendant Nos. 1 and 2 and their deceased brothers
C. Rajashekhar and C. Mani, for a valuable consideration
under the registered sale deed dated 29-10-1997 which is
shown as item No.1 of the suit schedule. Similarly, plaintiff
purchased site No.92 from defendant Nos. 1 and 2 and
their deceased brothers C. Rajashekhar and C. Mani,
under registered sale deed dated 09-04-2001 which is
described as item No.2 of the suit schedule. The sale deed
dated 09-04-2001 regarding item No.2 was executed by
defendant Nos. 3 and 4 as GPA holders of the land
owners. Both the sites were adjoining to each other. In
pursuance to the sale deeds, plaintiff got her name
entered in the Panchayat records and paid taxes regularly.
Later, both the sites came into the jurisdiction of
Bommanahalli CMC and the CMC is yet to make a demand
for betterment charges and taxes. Due to some
misunderstanding between defendant Nos. 1 and 2 and
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their brothers regarding sharing of the sites in the layout,
defendant No.1 has made false claims in respect of the
sites fallen to the share of the said C.Rajashekhar and
C.Mani.
3. It was contended that on 31-10-2004, the
plaintiff came to know that some people proclaiming
themselves as the agents of defendant Nos. 1 and 2 are
interfering in the possession and enjoyment of the suit
schedule sites and the plaintiff resisted the same. Due to
altercations in the suit schedule sites, the plaintiff was
constrained to file the suit seeking permanent injunction
against the defendants to restrain them from interfering
with the plaintiff's possession and enjoyment of the suit
sites.
4. After service of summons, defendant No.1
appeared before the trial Court through his counsel and
filed his written statement. Defendant Nos. 2 to 4 did not
appear despite service of summons and as such they were
placed exparte.
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5. Defendant No.1 in his written statement
contended that he has filed OS No.4091/2004 alleging that
the transactions entered into by unauthorized persons on
the basis of the General Power of Attorney and also the
alleged partition in OS No.4706/1997 are fraudulent and
unauthorized and that the suit schedule properties had
not fallen to the share of C. Rajashekhar and C. Mani and
defendant Nos. 3 and 4 had no right to sell the suit
schedule properties which had fallen to the share of
defendant No.1. It was contended that the plaint in OS
No.4091/2004 may be treated as his written statement in
the present suit. All other allegations and plaint averments
were denied by defendant No.1. He also denied that there
was interference to the possession and enjoyment of the
plaintiff.
6. On the basis of the above pleadings, the
following issues were framed by the trial Court;
1) Does plaintiff prove her lawful possession of the
suit schedule property on the date of suit?
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2) Do plaintiff further proves illegal interference by
defendants as alleged?
3) What order or decree?
7. In order to prove his case, plaintiff examined
herself as PW1 and Exhibits P1 to P12 were marked in
evidence. Defendant No.1 was examined as DW.1 and
Exhibits D1 to D5 were marked in evidence.
8. After hearing the arguments by both the sides,
the trial Court answered issue Nos. 1 and 2 partly in the
affirmative, and proceeded to decree the suit in respect of
item No.1 i.e. Site No.93 of the suit schedule property
and dismissed the claim in respect of item No.2 site No.92.
9. The said judgment and decree is challenged
by the plaintiff in this appeal.
10. On issuance of notice, respondent Nos.1, 3 and
4 have appeared through their counsel. Respondent No.2
did not appear despite service of notice.
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11. On admitting the appeal, the trial Court records
have been secured and the arguments by both the sides
were heard.
12. The learned counsel appearing for the
appellant/plaintiff contended that the trial Court
disbelieved the sale in respect of site No.92 only on the
ground that the plaintiff has not produced the General
Power of Attorney of defendant No.1 in favour of
defendant Nos.3 and 4. It is contended that the plaint
categorically state that the suit schedule properties had
fallen to the share of C. Rajashekhar and C. Mani, but not
to defendant Nos. 1 and 2. Defendant Nos. 1 and 2 did not
have any right, title or interest in the site Nos. 92 and 93
and therefore, non production of the General Power of
Attorney did not affect the rights of the plaintiff. When the
plaintiff had produced the registered sale deed of site
No.92, there was no reason to hold that it was a false and
created document. The plaintiff had established her title by
producing the general power of attorney and the sale
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deeds at Exs.P1 to P3 in addition to the affidavits of the
owners. Therefore, the analogy adopted to site No.93
would also be applicable to site No.92. It is contended that
OS No.4091/2004 filed by the plaintiff had ended in favour
of the appellant, and the doubt of the trial Court in
respect of site No.92 has been cleared.
13. It is contended that in the sale deed at Ex.P8,
wrongly the name of defendant No.1 is also shown as
vendor, though he had no right in respect of Site No.92.
The contention of defendant No.1 in OS No.4091/2004
claiming right in Site No.92 was negatived by the Court.
Therefore, defendant No.1 has no right, title or interest in
Site No.92 and it never belonged to him. Taking
advantage of the fact that GPA holder of defendant No.1
was also a signatory to the sale deed, with other vendors,
defendant No.1 is claiming rights in respect of the suit Site
No.92. Therefore, it is contended that the impugned
judgment sofar as it relates to Site No.92 is not
sustainable in law.
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14. In support of his submission, learned counsel
appearing for the appellant has placed reliance on the
judgment in the case of Lakhan Sao (deceased)
through his Legal Heirs vs. Dharamu Choudhary1
and in the case of Moran Mar Basselios Catholicos Vs.
Thukalan Paulo Avira and others2 , wherein it was
held that, "the question of burden of proof at the end of case
when both parties have tendered evidence is not of any great
importance and the court has to come to a decision on a
consideration of all materials". He also relied on the
judgment in the case of Balkrishna Dattatraya Galande
Vs. Balkrishna Rambharose Gupta and another3,
wherein, it was held that, "in a suit involving grant of
permanent injunction to restrain the defendants from disturbing
the possession of the plaintiff can only be granted when plaintiff
proves his lawful and actual possession on the date of filing of
the suit."
(1991)3 SCC 331
AIR 1959 SC 31
(2020) 19 SCC 119
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15. Per contra, learned counsel appearing for
respondent No.1/defendant No.1 submits that Exs.P1 to
P3 are the General Power of Attorneys executed by C.
Mani, C. Jayachandra and C. Rajashekhar. They were not
the GPA holders for defendant No.1. He contends that the
GPAs are not in respect of the suit schedule properties and
defendant No.1 had not given any GPA. Therefore, Ex.P8
sale deed does not convey any right, title or interest of
defendant No.1 to the plaintiff in whatsoever manner.
Therefore, the trial Court had rightly concluded that the
plaintiff had not shown that a valid title had flowed to him
under the sale deed at Ex.P8. As such, the finding of the
trial Court regarding Site No.92 need not be interfered
with. Inter alia, he also submitted that against the
dismissal of OS No.4091/2004, defendant No.1 is in
appeal in RFA No.805/2022 which is pending.
16. From the above submissions, the question that
arise is Whether the Ex.P8 had conveyed the title and
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possession of Site No.92 to the plaintiff and the plaintiff
was in enjoyment of the same?
17. A perusal of Ex.P8 show that it is a sale deed
executed by C. Jayachandra, C. Rajashekhar, C. Mani and
C.Nagaraj through their GPA Holders who are defendant
Nos. 3 and 4. Evidently, Exs.P1 to 3 are the General Power
of Attorney executed by C. Mani, C.Jayachandra and C.
Rajashekhar. The Power of attorney allegedly executed by
defendant No.1 Nagaraj has not been produced by the
plaintiff. Defendant No.1 Nagaraj has not filed any appeal
in respect of site No.93 against which the suit came to be
decreed. The contention of defendant No.1 is that he also
has right, title and interest in Site No.92 and he has filed a
comprehensive suit in OS No.4091/2004 and therefore,
the sale deed at Ex.P8 is fraudulent and cannot affect his
rights in Site No.92. The plaint in OS No.4091/2004 is
produced at Ex.D2. The said suit is in respect of Survey
No.12/1, 47/1 to the extent of 30.5 guntas in the entire
land totally measuring 3 acres 02 guntas. Obviously, the
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vendors of the plaintiff had 01 acre 10 guntas in the said
survey numbers as per the decree passed in OS
No.4706/1997 produced at Ex.D4. The hand sketch map
annexed to the decree, at Ex.D5 show that the plaintiff
therein i.e. C. Nagaraj has got a share to the extent of 01
acre 11 guntas, (including Kharab of 01 gunta) in the
entire land measuring 05 acres 03 guntas.
18. In the cross-examination of DW.1 he admits
that in the partition he has received the area measuring
01 acre 10 guntas as depicted in Ex.D5. However, he
pleads ignorance that his brothers had formed sites in
their land and had sold them to different persons. It is
also an admitted fact that OS No.4091/2004 filed by
defendant No.1 came to be dismissed. In the said suit,
issue No.3 was pertaining to site Nos.92 and 93 and the
present appellant was defendant No.3. The Court has held
that Site Nos. 92 and 93 had fallen to the share of the
brothers of defendant No.1. Therefore, it is evident that
the site No.92, for which the defendant No.1 claims to be
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in possession and enjoyment, had never fallen to the
share of defendant No.1. The injunction claimed by
defendant No.1 in OS No.4091/2004 has been rejected by
the Court .
19. It is worth to note that defendant No.1 in his
written statement does not state that site No.92 had fallen
to his share. But he takes shelter under the plaint in OS
No.4091/2004. Obviously, there is no reference to Site
Nos.92 and 93 in the plaint of OS No.4091/2004.
Therefore, when it is the specific contention of the plaintiff
that defendant No.1 was not at all the owner of Site
No.92, his name was mistakenly mentioned in Ex.P8 sale
deed, the rights held by defendant No.1 could not have
passed on to the plaintiff. When defendant No.1 had no
right, title or interest in Site No.92, as held in OS
No.4091/2004, simply by the existence of the name of
defendant No.1 in Ex.P8, he cannot take any mileage out
of such error. The said C.Mani, C. Jayachandra and C.
Rajashekhar, have executed affidavits as per Exs.P4 to P6
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confirming the power of attorney in favour of defendant
Nos. 3 and 4. Ex.D4 shows the compromise between
defendant No.1 and his brothers. Therefore, when Site
No.93 is not objected to by defendant No.1, a wrong
mention of his name in Ex.P8 could not have deprived the
plaintiff from a relief in the suit.
20. A perusal of the impugned judgment would
show that only on the basis of absence of the power of
attorney by defendant No.1 in favour of defendant Nos. 3
and 4, the trial Court disbelieved the claim of the plaintiff
over Site No.92. Evidently, such finding was not
sustainable in law since defendant No.1 had no right, title
or interest in Site No.92. Therefore, the impugned
judgment insofar as it relates to Site No.92 deserves to be
set aside. Hence, the following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and decree
passed by the trial Court in OS No.8147/2004 on
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29-08-2008, so far as it relates to Item No.2 of the
suit schedule property is set aside.
(iii) The suit of the plaintiff in respect of Item
No.2 of suit schedule property i.e. Site No.92 is also
decreed and the defendants are restrained from
interfering with the peaceful possession and
enjoyment of the plaintiff over the same.
Sd/-
JUDGE
tsn*
