Sri N Nazeer vs Sri P B Shashikanth Rao
2024 Latest Caselaw 849 Kant

Karnataka High Court

Sri N Nazeer vs Sri P B Shashikanth Rao on 10 January, 2024

Author: K. Natarajan

Bench: K. Natarajan

                           1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 10TH DAY OF JANUARY, 2024

                     BEFORE

       THE HON'BLE MR. JUSTICE K. NATARAJAN

       REGULAR FIRST APPEAL NO.1340 OF 2018
                 CONNECTED WITH
       REGULAR FIRST APPEAL NO.1339 OF 2018

IN REGULAR FIRST APPEAL NO.1340/2018
BETWEEN:
SRI. N.NAZEER
S/O LATE ABDUL NABI,
NATIONAL ENGINEERING WORKS,
AGED ABOUT 56 YEARS,
R/AT NO.662, 8TH CROSS,
TRIVENI ROAD, YESHWANTHAPURA,
BANGALORE - 560 022.
                                      ... APPELLANT
(BY SRI. S.N.ASWATHA NARAYAN, SENIOR COUNSEL FOR
    SRI. S.A.SUDHINDRA, ADVOCATE)

AND:
SRI. P.B.SHASHIKANTH RAO
S/O P.G.DASHARATH RAO,
AGED ABOUT 64 YEARS,
R/AT NO.18, 9TH CROSS,
S.P.EXTENSION,
MALLESHWARAM,
BANGALORE - 560 003.
                                    ... RESPONDENT
(BY SRI. B.A.RAMAKRISHNA, ADVOCATE FOR
    CAVEATOR/RESPONDENT)
                         2


     THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 R/W ORDER XLI RULE 1 R/W SECTION 151 OF
CPC, AGAINST THE JUDGMENT AND DECREE DATED
30.05.2018 PASSED IN O.S.NO.8018/2011 ON THE FILE
OF THE XVIII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU, DECREEING THE SUIT FOR
PERPETUAL INJUNCTION.

IN REGULAR FIRST APPEAL NO.1339/2018
BETWEEN:
SRI. N. NAZEER
S/O LATE ABDUL NABI,
NATIONAL ENGINEERING WORKS,
AGED ABOUT 56 YEARS,
R/AT NO.662, 8TH CROSS,
TRIVENI ROAD, YESHWANTHAPURA,
BANGALORE - 560 022.
                                      ... APPELLANT
(BY SRI. S.N.ASWATHA NARAYAN, SENIOR COUNSEL FOR
    SRI. S.A.SUDHINDRA, ADVOCATE)
AND:
SRI. D. SURESH RAO
S/O P.G.DASHARATH RAO,
AGED ABOUT 58 YEARS,
R/AT NO.18, 9TH CROSS,
S.P.EXTENSION, MALLESHWARAM,
BANGALORE - 560 003.
                                    ... RESPONDENT
(BY SRI. B.A.RAMAKRISHNA, ADVOCATE FOR
    CAVEATOR/RESPONDENT)

     THIS REGULAR FIRST APPEAL IS FILED UNDER
ORDER XLI RULE 1 READ WITH SECTION 151 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 30.05.2018
PASSED IN O.S.NO.8019/2011 ON THE FILE OF THE XVIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
                               3


BENGALURU, DECREEING          THE   SUIT   FOR    PERPETUAL
INJUNCTION.

     THESE REGULAR FIRST APPEALS HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT ON 11.10.2023
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:


                    JUDGMENT

RFA No.1339/2018 is filed by the appellant under

Section 96 of CPC for setting aside the judgment and

decree dated 30.05.2018 passed by the XVIII Additional

City Civil Judge, Bengaluru in O.S. No.8019/2011 for

having decreed the suit of the respondent.

RFA No.1340/2018 is filed by the appellant under

Section 96 of CPC for setting aside the judgment and

decree dated 30.05.2018 passed by the XVIII Additional

City Civil Judge, Bengaluru in O.S. No.8018/2011 for

having decreed the suit of the respondent.

2. Heard the arguments of learned counsel for the

parties.

3. The appellant is defendant and the respondent is

plaintiff before the trial Court. The appellant is one and the

same in both the cases. The rank of the parties is retained

for the sake of convenience.

4. The case of the plaintiff in O.S. No.8019/2011 is

that he has filed the suit for perpetual injunction against

defendant alleging that he is the absolute owner in actual,

physical and lawful possession of all that piece and parcel

of suit property bearing No.110, 111, House list Katha

No.585/1, Dasarahalli Village, K.R. Puram Hobli, Bangalore

South Taluk, measuring East to West 40 feet and North to

South 60 feet, totally admeasuring 2400 square feet

(hereinafter referred to as 'suit schedule property'), which

is purchased by the plaintiff under registered sale deed

dated 06.12.1993, from his predecessors G. Raghuveer

Singh and G. Raghuban Singh, through their GPA holder

Smt. J.S Kamala, wife of M.C Krishne Gowda. After the

purchase of suit schedule property, the plaintiff has fenced

the suit schedule property with stone pillars and barbed

wire chain fencing. There is 1 square sheet house inside

the suit schedule property at the time of its purchase by

the plaintiff. It is the further case of the plaintiff that the

defendant has no manner of right, title and interest over

the suit schedule property. The defendant on 09.11.2011

at 11.30 a.m. came near the suit schedule property along

with rowdy elements and tried to criminally trespass over

the suit schedule property and forcibly demolished the

stone pillars and barbed wire chain fencing put up by the

plaintiff and also demolished the 1 square sheet roofed old

house standing thereon and also threatened the plaintiff

with dire consequences including dispossession of the

plaintiff from the suit schedule property. The plaintiff

immediately went to the police to lodge a complaint, but

the police were reluctant to receive the complaint. After

much persistence, the police received the complaint. The

defendant hell bent upon dispossessing the plaintiff from

the suit schedule property and warned the plaintiff that if

the plaintiff fails to vacate the suit schedule property

within a week, he will again come back with rowdy

elements and dispossess the plaintiff from the suit

schedule property. Hence, the plaintiff has filed the suit.

5. The case of the plaintiff in O.S. No.8018/2011 is

that he has filed the suit for perpetual injunction against

defendant alleging that he is the absolute owner in actual,

physical and lawful possession of all that piece and parcel

of site property bearing No.112 and 113, House list Katha

No.585/1, Dasarahalli Village, K.R. Puram Hobli, Bangalore

South Taluk measuring East to West 40 feet and North to

South 60 feet, totally admeasuring 2400 square feet

(hereinafter referred to as 'suit schedule property'), which

was purchased by the plaintiff under registered sale deed

dated 06.12.1993, from his predecessors G. Raghuveer

Singh and G. Raghuban Singh, through their GPA holder

Smt. J.S Kamala, wife of M.C Krishne Gowda. After the

purchase, the revenue records were mutated in his name.

The plaintiff has fenced the suit schedule property with

stone pillars and barbed wire chain fencing. There is 1

square sheet house inside the suit schedule property at the

time of its purchase by the plaintiff. It is further case that

the defendant had no manner of right, title and interest

over the suit schedule property. The defendant on

09.11.2011 at 11.30 a.m. came near the suit schedule

property along with 20 rowdy elements and tried to

criminally trespass over the suit schedule property and

forcibly demolished the stone pillars and barbed wire chain

fencing put up by the plaintiff and also demolished the 1

square sheet roofed old house standing thereon and also

threatened the plaintiff with dire consequences including

dispossession of the plaintiff from the suit schedule

property. The plaintiff immediately went to the police to

lodge a complaint, but the police were reluctant to receive

the complaint. After much persistence, the police received

the complaint. The defendant is hell bent upon

dispossessing the plaintiff from the suit schedule property

and has warned the plaintiff that if the plaintiff fails to

vacate the suit schedule property within a week, he will

again come back with rowdy elements and dispossess the

plaintiff from the suit schedule property. Hence, the

plaintiff has filed the suit.

6. The defendant, who is common in both cases

before the trial Court, appeared through his learned

counsel and filed a separate written statement stating that

the plaintiff has suppressed the material facts. The suit for

bare injunction is not maintainable in law without

seeking the relief of declaration. Hence, the suit of the

plaintiffs is based on a sale deed dated 06.12.1993 and

except the same all other documents produced by the

plaintiffs are concocted and created documents. The

plaintiff is the absolute owner and in actual and physical

possession of the property bearing site Nos. 112 & 113 of

House list Katha No. 580/1 of Dasarahalli village K.R.

Puram Hobli, Bangalore South Taluk, East to West 40

feet and North to South 60 feet, purchased under the

registered sale deed dated 06.12.1993 which was

registered by the Sub- Registrar K.R. Puranı through a

G.P.A. Holder J.S. Kamala representing the original owners

I.G. Raguveer Singh and G. Raghuban Singh was not

within the knowledge of this defendant. Hence, the

schedule and measurement are totally different from each

other. The signatures made in the Power of Attorney and

the signatures made in the sale deed dated 06.12.1993

were totally different signatures. Hence, the plaintiff

created the documents by forging the signatures of J.S.

Kamala and brought the suit much after 18 years of the

alleged sale deed. The revenue documents with un-

matched measurements cannot support the claim of the

plaintiff and all the records were obtained for the purpose

of the suit. The plaintiff fenced the suit property with a

barbed fencing along with stone pillars were concocted

story created by the plaintiff. In fact, the defendant after

having purchased the suit schedule property bearing sites

Nos.110, 111, 112 and 113 by means of a registered

document through a General Power of Attorney holder One

Smt. Saraswathi Bai, W/o Balaji Singh who executed a

registered sale deed in favour of the Narasimhamurthy,

S/o B.C. Chowdaiah by virtue of the registered sale deed

dated 09.09.2010. Thereafter, the said Narasimhamurthy,

in turn, sold the suit schedule property in favour of this

defendant by virtue of the registered sale deed dated

27.01.2011. Prior to execution of the sale deed by Smt.

Saraswathi Bai, the katha of the property stood in the

name of Saraswathi Bai and thereafter, in the name of the

vendor of the defendant and presently the Katha of the

property in respect of the suit property is standing in the

name of this defendant. The defendant has been regularly

paying the tax to the authority.

7. By virtue of the sale deed dated 27.01.2011, the

defendant has been in continuous uninterrupted

possession and enjoyment of the site bearing Nos.110 to

113 totally measuring 80 feet x 65 feet and all the

records pertaining to the suit schedule property are

standing in the name of the defendant. Hence, the

defendant is entitled for the relief of injunction against the

plaintiff as a counter claim. The defendant also sought for

permanent injunction against the plaintiffs as counter

claim over the property measuring 40 feet x 65 feet in

respect of site Nos.110 and 111 and also in respect of site

Nos.112 and 113 and hence, prayed for dismissing the

suit.

8. Based upon the pleadings, the trial Court framed

the similar issues and additional issues in both suits as

under:

Issues:

1. Whether plaintiff proves lawful possession over the plaint schedule property as on the date of suit?

2. Whether he proves interference with the possession over the plaint schedule property by defendants as pleaded?

3. What order or decree?

Addl.Issues:

1. Whether the defendant proves that he is in possession of suit schedule property?

2. Whether defendant further proves that plaintiff is interfering in his possession over the suit schedule property?

3. Whether defendant is entitled to the reliefs sought in the counter claim?

9. In O.S. No.8019/2011, on behalf of the plaintiff,

the plaintiff himself examined as P.W.1 and got marked 32

documents as per Exs.P.1 to 32. On behalf of the

defendant, he himself was examined as D.W.1 and two

witnesses were examined D.W.2 and 3 and got marked 59

documents as per Exs.D.1 to D.59.

In O.S. No.8018/2011, on behalf of the plaintiff, the

plaintiff himself examined as P.W.1 and got marked 32

documents as per Exs.P.1 to 32. On behalf of the

defendant, he himself was examined as D.W.1 and two

witnesses were examined D.W.2 and 3 and got marked 51

documents as per Exs.D.1 to D.51.

10. After hearing the arguments, the trial Court

answered the issues in the affirmative in favour of the

plaintiffs and additional issues in the negative against the

defendant and, finally, decreed the suit. Being aggrieved

by the same, the common defendant in both the suit, has

filed the aforesaid two appeals before this Court.

11. The learned counsel for the appellant has

contended that the judgment and decree passed by the

trial Court is not sustainable under the law. Further, it is

contended that one Giridhar Singh was the absolute owner

of the property, who had executed Will on 29.11.1985 in

favour of his sons, Raghuveer Singh and Raghuban Singh.

During his life time, he also executed a codicil on

18.09.1992 by adding the name of one M.C. Krishnegowda

along with sons of Giridhar. On 05.01.1994, Raghuveer

Singh and Raghuban Singh and Krishnegowda along with

his wife Smt. Kamala, executed GPA in favour of one

Saraswathi Bai for site Nos.110, 111, 112 and 113 and on

the date of agreement of sale, the possession was

delivered. Based upon the said GPA, Saraswathi Bai

executed registered sale deed in favour of one

Narasimhamurthy on 09.09.2010 and the said

Narasimhamurthy sold the sites to the appellant on

27.01.2011. The learned counsel further contended that

the plaintiffs claim to be the owner of the sites for having

purchased on 06.12.1993 and the sale deed was executed

by Kamala Bai, the wife of beneficiary under the codicil

namely, Krishnegowda, and the defendant also claims right

through Saraswathi Bai, who purchased the property from

the beneficiary of the codicil. Therefore, it is a clear cut

case of dispute on the title as both the plaintiffs and the

defendant claim title over the property. Therefore, the

bare injunction suit is not maintainable. The aforesaid

Saraswathi Bai obtained GPA under the agreement of sale

on 05.01.1994 and she also took possession of the

property by paying Rs.4,80,000/- to the beneficiaries of

the codicil and subsequently, she sold the property to

Narasimhamurthy and the said Narasimhamurthy sold the

same to the defendant. It is further contended that the

defendant was in possession of the schedule property

through out and the schedule property was not with the

plaintiffs, and therefore, the simple suit for injunction was

not maintainable. The learned counsel also contended that

there is cloud over the title, the suit for declaration and

possession should have been filed by the plaintiff.

Therefore, the trial Court has committed an error in

decreeing the suit. Hence, prayed for setting aside the

judgment and decree passed by the trial Court.

12. Per contra, learned counsel for respondent-

plaintiffs has contended that the sale deed executed by

Kamala was on 4.6.1993, where the Raghubeer Singh and

Raghuban Singh and Krishnegowda executed GPA in favour

of Kamala on 4.6.1993, which is a registered GPA.

whereas defendant claims right through unregistered GPA,

which is not sustainable. The sale deed of the plaintiffs

was 06.12.1993 and from the said date, the plaintiff was in

possession of the schedule properties. Ex.P.1 is the sale

deed of the plaintiff in both cases. Taxes were paid as per

Exs.P.2 to P.9. though the written statement filed by the

defendant along with counter claim it is like a suit claiming

for injunction. The defendant could have filed a counter

claim for declaration but filed for bare injunction. The

plaintiffs' sale deed is much prior to the sale deed of the

defendant as the defendant sale deed was 27.11.2011.

Ex.P.28 is RTI application which reveals that there were 22

sale deeds executed, revenue sites were registered.

Raghuveer Singh died on 24.7.1998, Krishnegowda died

on 4.4.2006 and at the time of sale deed executed in

favour of Narasimhamurthy, both owners have not alive at

all. The GPA also does not survive. Saraswathi bai did not

have any right for selling the property in favour of

Narasimhamurthy in 2010 and Narasimhamurthy do not

have any title for selling the property in 2011 to the

defendant. The defendant do not have any right and

therefore he cannot compel the plaintiffs to file a suit for

declaration, when the predecessors of the defendant do

not have any right, he also do not have any right over the

property. Therefore, prayed for dismissing the appeals.

13. The learned counsel also submits that D.W. 1

has admitted that he do not know the owners of the

neighbouring sites, there was no sale agreement in his

favour and he has admitted that original owner executed

GPA in favour of Kamala Bai and Kamala Bai executed GPA

in favour of Saraswathi Bai, there is an admitted that the

defendant not verified the records in registrar office. The

sale deed of the defendant also does not disclose the

payment of sale consideration. He also does not know the

khatha number and khatha extract. The defendant is

aware of the transaction and he is not the bona fide

purchaser. Hence, prayed for dismissing the appeals.

14. In support of their arguments, the learned

counsels for both sides have relied upon the judgments of

the Hon'ble Supreme Court.

15. Having heard the arguments of learned counsels

for the parties, perused the records.

16. The points that arise for consideration are:

(i) Whether the plaintiffs prove that they are in possession and enjoyment of the suit schedule property and the defendant is trying to interfere with their possession ?

(ii) Whether the defendant is able to show that he also purchased the property and he is in possession of the schedule property ?

(iii) Whether the suit for bare injunction is not maintainable as contended by the appellant-defendant ?

(iv) Whether the judgment of the trial Court calls for interference in both cases ?

17. On perusal of the records, it reveals that the

plaintiffs in both cases claim that that they purchased the

two sites each under the sale deed dated 06.12.1993, and

it is contended by both parties and admitted that,

originally, the suit land belongs to one Giridhar Singh, who

executed the Will in favour of his sons, Raghuveer Singh

and Raghuban Singh. Subsequently, the said Giridhar

executed a codicil by adding the name of Krishnegowda.

Subsequently, the above said three persons, who are the

beneficiaries under the Will and codicil, executed a GPA in

favour of one Smt. J.S. Kamala, who is the wife of

Krishnegowda. Based upon the GPA executed by

Raghuveer Singh, Raghuban Singh and Krishnegowda, the

GPA holder Smt. J.S. Kamala sold the sites in favour of

the plaintiffs on 06.12.1993 as per Ex.P.1 in both cases,

which are the registered sale deeds. There is a reference

available in the sale deeds that the said Kamala was the

GPA holder, which is a registered GPA. Subsequent to the

said sale deeds, the plaintiffs paid taxes to the concerned

panchayath continuously. Ex.P.24 is the registered GPA

executed in favour of J.S. Kamala, whereas the defendant

claims the same property said to be purchased on

27.01.2011. The case of the defendant is also that

Raghuveer Singh, Raghuban Singh, Krishnegowda and J.S.

Kamala, said to be represented by Smt. Saraswathi Bai as

the GPA holder, sold the same property to

Narasimhamurthy on 09.09.2010. The said Saraswathi Bai

sold the sites to defendant's vendor through GPA alleged

to have been executed by Kamala in favour of Saraswathi

Bai. Thereafter, the said Narasimhamurthy sold the sites

to defendant on 27.01.2011. The said Saraswathi Bai

claimed title through the GPA and agreement of sale, both

the documents are unregistered documents, dated

05.01.1994. Based upon the unregistered GPA, the said

Saraswathi Bai sold the sites to Narasimhamurthy in the

year 2010 and in turn, Narasimhmamuthy sold to

defendant in the year 2011. When the said Kamala as GPA

holder of Raghuveer Singh, Raghuban Singh and

Krishnegowda, already sold sites to plaintiffs on

06.12.1993 itself, the said Kamala has no further right to

once again execute the agreement of sale or GPA in favour

of Saraswathi Bai on 05.01.1994, after one month of the

sale deed dated 06.12.1993. The said Kamala lost right by

selling the sites to the plaintiffs on 06.12.1993. Once the

sites were sold, nothing remains with Kamala for once

again executing the agreement of sale or GPA in favour of

Saraswathi Bai on 05.01.1994. Therefore, the said

Saraswathi Bai does not derive any right or title in respect

of schedule property in order to sell the same to

Narasimhamurthy on 09.09.2010 and the said

Narasimhamurhty also does not derive any right or title to

sell the same to the defendant on 27.01.2011. The

documents of the defendant are all based upon the sale

deed dated 27.01.2011. The sale deeds of the plaintiffs

are the registered sale deeds and they purchased the

property in the year 1993 itself from Smt. Kamala who

was having the registered GPA in her favour. Such being

the case, the contention of the appellant-defendant's

counsel that the plaintiffs required to file a suit for

declaration as there is a cloud over the title, cannot be

acceptable. In fact, there is a cloud over the title of the

defendant and he has to file a suit for declaration and

possession. On the other hand, all the documents are the

registered documents of the plaintiffs and the titles flows

in favour of the plaintiffs much prior to the sale deed of the

defendant.

18. That apart, D.W.1 has admitted in the cross

examination that he has not verified the registered GPA

and he does not know the neighbours of the sites owners

and he also admits that there was sale deeds in favour of

the plaintiffs. He also admits that the original land owner

executed GPA in favour of Kamala and the said Kamala

already sold the land in favour of plaintiffs. He further

admits that Raghuban Singh and Krishnegowda died long

back, prior to selling the property by Saraswathi Bai in

favour of Narasimhamurthy, who was the vendor of the

defendant.

19. Of course, the GPA coupled with interest is

irrevocable one as per Section 202 of Indian Contract Act,

but the said Kamala, who is the actual GPA holder of the

beneficiary of the land under codicil sold the property in

the year 1993 itself. Therefore, the question of executing

the agreement of sale and the GPA in favour of Saraswathi

Bai will have no value and no title will be derived in favour

of the defendant from his vendor Narasimhamurthy and

the GPA holder Saraswathi Bai. Therefore, the question of

filing the suit for declaration by the plaintiffs does not

arise. The judgments relied by the defendant appellant in

the case of ANATHULA SUDHAKAR VS. P.BUCHI

REDDY (DEAD) BY L.RS & ORS. reported in 2008 AIR

SCW 2692, is not useful to the appellant's case. The suit

for bare injunction filed by the plaintiffs who are in

possession and enjoyment of the suit schedule property

from the year 1993, much prior to sale deed of the

defendant, is maintainable. Such being the case, the

question of filing the declaration suit by the plaintiffs does

not arise. Any documents produced by the defendant

were all subsequent to 2011. Therefore, the judgments

relied upon by the appellant's counsel will not come to the

rescue of the defendant.

20. In a suit for bare injunction, the plaintiffs are

successful in proving that they are in lawful possession of

the suit schedule property based upon the registered sale

deed. Such being the case, the plaintiffs need not file any

suit for declaration and the suit for bare injunction is

maintainable.

21. On perusal of the entire records in both cases,

the trial Court has rightly appreciated the records, both

oral and documentary, and come to the conclusion that the

plaintiffs have proved the lawful possession and enjoyment

of the property and observed that the defendant is

claiming title over the same property from the year 2011

and he is trying to interfere with the suit schedule

property. Therefore, the trial Court has rightly decreed the

suits in both cases. Therefore, I hold that the judgments of

the trial Court do not call for interference by this Court. If

at all the defendant claims title over the property, the

defendant could have filed a suit for declaration and

consequential possession. Even the evidence of D.Ws.2

and 3 and the documents produced by the defendant are

not useful to the case on hand. On the other hand, the

plaintiffs proved their case regarding the lawful possession

and interference by the defendant. Therefore, the

question of interfering with the impugned judgment and

decree passed by the trial Court does not arise.

22. Even the defendant have not filed any separate

appeals for having rejecting the counter claim. Such being

the case, both the appeals are devoid of merits and they

are liable to be dismissed.

23. Accordingly, both the appeals filed by the

appellant-defendant are hereby dismissed.

Sd/-

JUDGE

CS CT: Sk