Karnataka High Court
Smt Yashodamma W/O A Yogananda Raju vs M/S Royal Legend on 20 February, 2024
-1-
NC: 2024:KHC:7140
RFA No. 229 of 2008
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 229 OF 2008 (INJ)
BETWEEN:
SMT. YASHODAMMA,
W/O A YOGANANDA RAJU,
AGED ABOUT 40 YEARS,
R/O NO.46, 3RD CROSS,
1ST PHASE, J.P.NAGAR,
BANGALORE-560 078.
...APPELLANT
(BY SRI SANDEEP.K, ADVOCATE [NOC];
V/O DATED 14.02.2024, SRI AJAY KUMAR, ADVOCATE)
AND:
1. M/S ROYAL LEGEND,
NO.70, KODI CHIKKANAHALLI
ROAD, BOMMANAHALLI,
Digitally signed BANGALORE-68.
by BY ITS PROP: MR G PRASAD REDDY.
ANNAPURNA G
Location: High
Court of 2. M/S VIJAY NIRMAL CO. PVT. LTD.,
Karnataka FLAT NO.101, PALACE VIEW APARTMENTS,
SADASHIVANAGAR,
BANGALORE-560080.
...RESPONDENTS
(BY SRI NARENDRA D.V GOWDA, ADVOCATE FOR C/R1;
R2 IS SERVED)
THIS RFA IS FILED U/S 96 OF THE CPC AGAINST THE
JUDGMENT AND DECREE DATED 22.11.07 PASSED IN OS NO.
473/2006 ON THE FILE OF THE LEARNED XXXIX ADDITIONAL
-2-
NC: 2024:KHC:7140
RFA No. 229 of 2008
CITY CIVIL JUDGE, BANGALORE, (CCH-40), DISMISSING THE
SUIT FOR PERMANENT INJUNCTION.
THIS APPEAL COMING ON FOR FURTHER ARGUMENTS,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Being aggrieved by the judgment and decree of
dismissal of suit in OS No.473/2006 by the learned XXXIX
Additional City Civil and Sessions Judge, Bangalore, (CCH
40) dated 22.11.2007, the plaintiff is before this Court in
appeal.
2. Brief facts of the case of the plaintiff are as
below:
The plaintiff contended that one C. Nagareddy was
the absolute owner of the property bearing Site No.1 in
Survey No.68 of Bommanahalli village, Beguru Hobli,
Bangalore South Taluk, measuring 30 ft. x 41 ft., which
is bounded by the boundaries as below:
"East by: Site No.2
West by: Rotary Nagara
North by: Private Property
South by: Road"
NC: 2024:KHC:7140
3. The plaintiff contended that the said
C. Nagareddy being the absolute owner of the suit
schedule property had executed a General Power of
Attorney in favour of Yoganandaraju, who is the husband
of plaintiff on 21-12-1988 and had also sworn to an
affidavit for having received the consideration amount. The
plaintiff contended that after execution of General Power
of Attorney by C. Nagareddy, the General Power of
Attorney Holder Yaganandaraju was continuously looking
after the suit schedule property and thereafter, on
29-08-2003 he has executed a registered Sale Deed in
favour of the plaintiff. It is contended that after purchase
of the property, the plaintiff was in possession and
enjoyment of the ame without any interference till 12-12-
2005. The katha was changed in favour of the plaintiff in
the records of the Panchayat. The defendants being the
strangers, have started obstructing to the peaceful
possession and enjoyment of the property by the plaintiff.
It was alleged that an effort was made by the defendants
to throw out the plaintiff from the suit schedule property
NC: 2024:KHC:7140
and with the help of elders and well wishers, the plaintiff
protected her possession over the same. Thereafter, on
15-12-2005 and on 22-12-2005, again, the defendants
came to the suit schedule property with certain rowdy
elements and manhandled the plaintiff, for which, a
complaint was lodged by the plaintiff before the
jurisdictional police. Since the matter was civil in nature,
the police advised the plaintiff to approach the Civil Court.
Therefore, the plaintiff contended that the defendants may
be restrained from their illegal activities and interfering
with the peaceful possession of the plaintiff over the suit
schedule property. It was contended that thereafter the
defendants have tried to construct a compound wall
including the suit schedule property into their fold.
4. On issuance of summons, the defendants have
appeared before the trial Court and defendant No.1 filed
the written statement and the same was adopted by
defendant No.2.
NC: 2024:KHC:7140
5. The defendants filed written statement denying
the plaint averments that C. Nagareddy was the owner of
the suit schedule property or he had executed a Power of
Attorney or sale deed in favour of Yoganandaraju or the
plaintiff. They also denied that they had obstructed the
possession and enjoyment of the plaintiff over the suit
schedule property either on 12-12-2005 or any other date
subsequent thereof. Inter alia, they contended that they
had purchased 30 guntas in Sy.No.60/1; 01 acre 30
guntas in Sy.No.60/3; 1 acre 10 guntas in Sy.No.60/4; 30
guntas in Sy.No.60/8; 1 acre in Sy.No.60/9, totally, 05
acres 21 guntas purchased under valid Sale Deeds from
the respective owners. Soon after the purchase, they
have constructed a compound wall and the plaintiff is
trying to assert right by showing false boundaries and the
plaintiff was never in possession and enjoyment of the
same. Therefore, they sought for dismissal of the suit.
6. On the basis of the above pleadings, the trial
Court framed the following issues:
NC: 2024:KHC:7140
1. Whether the plaintiff proves that she is in lawful
possession of the suit schedule property on the date
of suit?
2. Whether the plaintiff further proves that the
defendant is interfering with her possession of the
suit schedule property?
3. Whether the plaintiff is entitled to the injunction
prayed for?
4. What Order or Decree?
7. Plaintiff examined herself as PW1 and three
witnesses were examined on her behalf as PWs.2 to 4 and
Exhibits P1 to P15 were marked in evidence. The
Defendants did not examine any witness on their behalf
and no documents were produced on their behalf.
8. After hearing the arguments by both the sides,
the trial Court has dismissed the suit with costs.
9. Being aggrieved by the said judgment and
decree the plaintiff is before this Court in appeal.
10. On issuance of notice, respondent No.1/
defendant No.1 appeared before this Court through its
NC: 2024:KHC:7140
counsel and notice to respondent No.2/defendant No.2
served.
11. The arguments by learned counsel appearing for
the appellant and learned counsel for respondent No.1
were heard after securing the trial Court records.
12. The learned counsel appearing for the
appellant/plaintiff would submit that the trial Court has
erred in appreciating the evidence on record. It is
submitted that the impugned judgment passed by the trial
Court is bereft of any consideration being given to the
documents produced by the plaintiff. It is submitted that
the defendants have tried to encroach into the property/
site of the plaintiff high handedly and the plaintiff tried to
protect her property and therefore, she had sought for
injunction. It is submitted that the katha has been
changed in favour of the plaintiff and this shows that
plaintiff is in possession and enjoyment of the suit
schedule property measuring 30 ft. x 40 ft. It is submitted
that the evidence of the PWs 1 to 4 were not properly
NC: 2024:KHC:7140
appreciated by the trial Court and the trial Court erred in
holding that the plaintiff has not proved her lawful
possession and enjoyment over the suit schedule property.
13. Per contra, the learned counsel for the
respondent No.1 has submitted that the trial Court has
appreciated the evidence in a proper way and the
witnesses examined on behalf of the plaintiff have
admitted that the defendants have constructed the
compound wall and when the plaintiff contend that the
defendants have included the property of the plaintiff into
their property by constructing a compound wall, it was
incumbent on the plaintiff to file a suit for possession. It is
submitted that the evidence on record clearly show that
the plaintiff is not in possession of the suit schedule
property and therefore, the impugned judgment does not
call for any interference.
14. The plaintiff contend that one C.Nagareddy was
the owner in possession of the suit schedule property and
he had executed a General Power of Attorney in favour of
NC: 2024:KHC:7140
the husband of the plaintiff i.e. Yoganandaraju. The said
General Power of Attorney is dated 21-12-1988 produced
at Ex.P1. In Ex.P1, it is stated that in Survey No.68, he
has formed sites and site No.1 measuring 30 ft. x 40 ft.,
was the subject matter of the General Power of Attorney.
The boundary of the said site is shown as "site No.2 on the
East, Rotary nagara on the West, property of others on the
North and the road on the South". The power of Attorney
does not mention any details of the layout formed by
C.Nagareddy. It even does not mention the total extent of
land under Survey No.68 or the hissa numbers in said
survey member. Therefore, it is evident that the
identification of the suit schedule property as could be
seen from Ex.P1 is not proper. It does not mention as to
how many sites were formed and what was the total
extent of Survey No.68. The affidavit of the said
C. Nagareddy, is produced at Ex.P2 does not help the
plaintiff in any way. Ex.P3 happens to be the Sale Deed,
where again, the description of the suit schedule property
is as mentioned in the General Power of Attorney. It is
- 10 -
NC: 2024:KHC:7140
pertinent to note that, on the basis of the said sale deed,
the assessment was made by Town Municipality and tax
was paid by the plaintiff in the year 2005-2006. Though
the husband of the plaintiff was the Power of Attorney
Holder, and such Power of Attorney was executed in the
year 1988, there is no document to show that since 1988,
the plaintiff had paid the taxes. The tax payment receipts
and katha extracts are pertaining to the year 2003-2004
and thereafter. Therefore, there is no material on record
to show that since 1988 the plaintiff was in possession and
enjoyment of the suit schedule property.
15. The perusal of the ocular evidence by the
plaintiff and her witnesses show that though they had
asserted that the plaintiff is in possession of the suit
schedule property, in the cross- examination, they had
stated that defendant No.1 had constructed the compound
wall including the property of the plaintiff. In the cross-
examination of PW1 also, she had categorically stated that
the compound has been put up inclusive of the site of the
- 11 -
NC: 2024:KHC:7140
plaintiff. Further, the cross-examination of PWs 2 to 4
also disclose that none of these witnesses have stated
about the total extent of survey No.68. All these witnesses
also state that they do not know about the layout formed
in Survey No.68. The cross-examination clearly establish
that the compound was put up within six months of the
registration of the sale deed by the husband of the plaintiff
in the year 2002.
16. The said Yoganandaraju, the husband of the
plaintiff has been examined as PW2. In his cross-
examination, he states that he do not know how
C. Nagareddy had obtained the suit property. He also
states that he does not know about the layout formed in
Survey No.68. In cross-examination he clearly admits
that the defendant i.e., Prasad Reddy had constructed a
compound wall by encroaching upon the site of the
plaintiff. Thus, the evidence clearly shows that the location
of the site cannot be identified. PW3 states that there is a
- 12 -
NC: 2024:KHC:7140
layout but she does not know the details of the same.
The evidence of PW4 also is on the same lines.
17. Therefore, when the plaintiff has failed to
establish that layout had been formed by C.Nagareddy in
Sy.No.68, and such Layout had been approved by any
competent authority, it is not possible to hold that C.
Nagareddy had the title over the said property and in
pursuance to the General Power of Attorney and the Sale
Deed, the plaintiff has come in possession and enjoyment
of the same. On the other hand, the cross- examination of
plaintiff and her witnesses clearly establishes that
defendants have clearly encroached the property and they
have put up compound wall. Under these circumstances,
the conclusions reached by the trial Court that plaintiff is
not entitled for any injunction cannot be interfered with.
Absolutely, there was no material to show that the plaintiff
was in actual possession and enjoyment of the suit
schedule property as on the date of the suit.
Consequently, the appeal is bereft of merits and therefore,
it is liable to be dismissed. Hence, the following:
- 13 -
NC: 2024:KHC:7140
ORDER
The appeal is dismissed.
The judgment and decree passed by the trial Court in
OS No.473/2006 dated 22-11-2007 is hereby confirmed.
Sd/-
JUDGE
tsn*
