Karnataka High Court

Mr. M K Varghese vs Smt. Rathnamma on 11 January, 2024

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                               NC: 2024:KHC:1545
                                                             RFA No. 377 of 2016




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 11TH DAY OF JANUARY, 2024

                                              BEFORE
                           THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                             REGULAR FIRST APPEAL NO. 377 OF 2016 (INJ)
                      BETWEEN:

                      1.    MR. M K VARGHESE
                            S/O. KURIACHAN
                            AGED ABOUT 55 YEARS
                            RESIDENT OF MUTHU KURUPPA BUILDINGS
                            MAHADEVAPURA POST
                            WHITE FIELD ROAD, BANGALORE-48.

                      2.    MRS. LAISA VARGHESES
                            W/O. M.K. VARGHESES
                            AGED ABOUT 50 YEARS
                            MUTHU KURUPPA BUILDINGS
                            MAHADEVAPURA POST
                            WHITE FIELD ROAD
                            BANGALORE-560 048.
                                                                   ...APPELLANTS
Digitally signed by   (BY SRI. A C PATIL.,ADVOCATE)
DHANALAKSHMI
MURTHY
                      AND:
Location: High
Court of
Karnataka
                      SMT. RATHNAMMA
                      W/O. LATE NAGAPPA
                      AGED ABOUT 45 YEARS
                      R/AT MUTHU KURUPPA LAYOUT
                      R.H.B. COLONY, NO.76/2
                      OPP MAHADEVAPURA POLICE STATION
                      WHITE FIELD ROAD, BANGALORE-48.
                                                                  ...RESPONDENT
                      (BY SRI. AJIT P B, ADVOCATE FOR C/R)
                               -2-
                                              NC: 2024:KHC:1545
                                          RFA No. 377 of 2016




     THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41
RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE
DATED 18.12.2015 PASSED IN OS.NO.16402/2004 ON THE
FILE OF THE XIII ADDL. CITY CIVIL AND SESSIONS JUDGE,
MAYO HALL UNIT, BENGALURU, DECREEING THE SUIT FOR
PERMANENT INJUNCTION AND POSSESSION.

    THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

This appeal is filed by defendant Nos. 1 and 2 under

Section 96 r/w. Order 41 Rule 1 of Civil Procedure Code

challenging the judgment and decree dated 18.12.2015

passed by the XIII1 Additional City Civil & Sessions Judge,

Bangalore, in O.S.No.16402/2004, whereby the suit filed

by the plaintiff for injunction is decreed.

2. For the sake of convenience, the parties are

referred to as per their rankings before the trial court.

3. The brief facts of the case are that the land

bearing Sy.No.67/2 situated at Mahadevapura Village,

K.R.Puram Hobli, Bangalore East Taluk was the ancestral

property of the family of the plaintiff's husband late

Nagappa. The said Nagappa filed a suit for partition. In

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the said suit, an extent of 84+80/2 ft. x338 feet, totally

measuring 27,716 sq.ft in Sy.No.67/2, was allotted to the

share of the husband of the plaintiff and he was put into

the possession of the area measuring 27,716 sq.ft., khata

is also changed in the name of Nagappa and in the

revenue records, the name of Nagappa has been

continued. Nagappa has constructed a residential building

in the aforesaid property and he has let out for a tenant.

Portion of the property measuring 1200 sq. ft was sold in

favour of one Chikkanna and the remaining portion of the

property was in the possession of the plaintiff's husband.

4. The further case of the plaintiff is that even though

Nagappa has executed an agreement of sale in favour of

defendant No.1 in respect of 1200 sq.ft in Sy.No.67/2,

since the first defendant has not paid the agreed amount,

Nagappa has not executed any sale deed and possession

has also not been handed over to defendant Nos. 1 and 2.

But, defendant Nos. 1 and 2, without any authority of law,

in the month of August 2004, tried to trespass the portion

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

seeking permanent injunction restraining the defendant

and his agents from interfering with the peaceful

possession and enjoyment of the suit schedule property by

the plaintiff.

5. After service of summons, defendant No.1

appeared through counsel and denied the averments made

in the plaint and has taken a contention that husband of

the plaintiff - Nagappa has executed an agreement of sale

on 06.01.1999 after receiving the sale consideration of

Rs.1.00 lakh. Subsequently, he has also paid Rs.25,000/-

and Rs.35,000/- to Nagappa on 15.01.1999 and

27.01.1999, respectively. The said Nagappa has put the

defendant No.1 in the possession of the suit schedule

property and he has also executed a GPA dated

05.04.1999 in favour of defendant No.1. On the basis of

the GPA defendant No.1 executed a registered sale deed

dated 28.07.2004 in favour of defendant No.2 and plaintiff

was not in possession of 1200 sq.ft of the land in the suit

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schedule property which has been sold in favour of

defendant No.2 by defendant No.1. Hence, prays for

dismissal of the suit.

6. Defendant No.2 has been subsequently

impleaded. She has filed written statement contending

that she purchased 1200 sq.ft of land in Sy.No.67/2 from

defendant No.1 as GPA of the husband of the plaintiff, by a

registered sale deed. Defendant No.2 is the absolute

owner and in possession of the suit schedule property.

Hence, sought for dismissal of the suit.

7. On the basis of the pleadings of the parties, the

trial court has framed the following issues:

"1. Whether plaintiff proves her lawful possession and enjoyment over the suit schedule property, as on the date of the suit?

2) Whether plaintiff proves the alleged obstructions from the defendant?

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3) Whether the plaintiff is entitled to the relief claimed?

4) What decree or order?"

8. To prove the case, GPA holder of the plaintiff has

been examined as PW1 and got marked documents as Exs.

P1 to P6. On behalf of the defendants, defendant No.1 has

been examined as DW1 and marked documents as Exs.D1

to D16.

9. After considering the oral and documentary

evidence of the parties, the trial court answered issue Nos.

1 to 3 in the affirmative and decreed the suit. Being

aggrieved by the same, defendant Nos.1 and 2 have filed

this appeal.

10. The learned counsel appearing for the

appellants/defendants has raised the following

contentions:

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(i) Firstly, plaintiff's husband has executed the sale

agreement dated 06.01.1999 after receiving the sale

consideration amount of Rs.1,00,000/- initially and

subsequently, he received Rs.25,000/- and Rs.35,000/-,

respectively, from defendant No.1 and he has executed

the GPA dated 05.04.1999. The defendant No.1 has

absolute right over the property. On the basis of the GPA

he has executed the registered sale deed dated

28.07.2004 in favour of defendant No.2. Hence,

defendants are in possession of the part of the suit

schedule property. The plaintiff has no right or title over

1200 sq.ft of the land in Sy.No.67/2.

(ii) Secondly, the trial court has rightly given a

finding that the plaintiff's husband sold 1200 sq.ft of the

land in favour of defendant No.1 in Sy.No.67/2, but erred

in decreeing the suit.

(iii) Thirdly, considering the evidence of the parties

and the records produced by the parties, it is very clear

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that 1200 sq.ft of the land which is purchased by

defendant Nos. 1 and 2 is a part of the suit schedule

property, the trial court has erred in holding that the

property purchased by defendant Nos. 1 and 2 is not the

suit schedule property and erred in granting injunction in

favour of the plaintiff. Hence, he sought for allowing the

appeal.

11. Per contra, learned counsel appearing for the

respondent/plaintiff has raised the following contentions:

(i) Firstly, the specific case of the plaintiff is that her

husband has executed an agreement of sale in favour of

first defendant on 06.01.1999, the first defendant has not

paid the sale consideration amount. Hence, the husband

of the plaintiff has not executed any sale deed in favour of

the first defendant much less any GPA has been executed

in favour of the first defendant.

(ii) Secondly, GPA document produced by the

defendants is concocted and it is not executed by

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Nagappa, who is the husband of the plaintiff. He sold the

very same property, i.e, 1200 sq. ft. in Sy.No.67/2 which

belongs to Nagappa in favour of Chikkanna by a registered

sale deed dated 24.03.1999. Therefore, defendant Nos. 1

and 2 are not in possession of the suit schedule property.

(iii) Thirdly, at no point of time, plaintiff's husband

Nagappa has parted the possession in favour of defendant

No.1. In fact, he sold 1200 sq.ft of the suit schedule

property in favour of Chikkanna and possession has been

handed over. The defendant Nos. 1 and 2, taking

advantage of the agreement of sale dated 06.01.1999, are

trying to interfere into the suit schedule property.

Therefore, the plaintiff has filed the suit for injunction.

(iv) Fourthly, even though the suit schedule property

includes 1200 sq. ft. which is sold in favour of Chikkanna,

the claim of the plaintiff is for injunction excluding 1200

sq. ft. The trial court, after considering the evidence of

the parties and the materials available on record has

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rightly granted an injunction. Hence, he sought for

dismissal of the appeal.

12. Heard the learned counsel for the parties.

Perused the impugned order and the original records.

13. The point that arises for consideration in this

appeal is, 'whether the judgment and decree passed by

the trial court is perverse, arbitrary and contrary to law

and calls for interference of this Court?'

14. It is not in dispute that in the partition, husband

of the plaintiff - Nagappa has acquired 27,716 sq. ft. in

Sy.No.67/2. The case of the plaintiff is that Nagappa sold

1200 sq. ft. of the land in favour of Chikkanna by a

registered sale deed dated 24.03.1999 and he has also

executed an agreement of sale dated 06.01.1999 in favour

of defendant No.1. It is the further case of the plaintiff

that since defendant No.1 has not paid the agreed amount

as per the agreement of sale, Nagappa has not executed

any GPA and has not parted with the possession to

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defendant No.1. The case of defendants is that pursuant

to the agreement of sale dated 06.01.1999, the first

defendant has paid Rs.1,60,000/- in favour of Nagappa,

Nagappa in-turn has executed GPA in favour of defendant

No.1 dated 05.04.1999. On the basis of that, defendant

No.1 has executed a registered sale deed dated

28.07.2004 in favour of defendant No.2. The said 1200

sq. ft. which is mentioned in the agreement of sale dated

06.01.1999 is also suit schedule property and the

defendants are in possession of the part of the suit

schedule property, the trial court has erred in granting the

injunction.

15. The trial court has given a finding that the

property, which is claimed by defendant Nos. 1 and 2, i.e.,

1200 sq. ft is not part of the suit schedule property. In

fact, this is not the case of either the plaintiff or the

defendants. The case of the plaintiff is that her husband

has not executed any GPA in favour of defendant No.1 in

respect of 1200 sq. ft in the suit schedule property and it

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has been sold in favour of Chikkanna. The case of

defendant Nos. 1 and 2 is that 1200 sq. ft in the suit

schedule property has been sold in favour of defendant

Nos. 1 and 2. Both the parties are claiming that the area

of 1200 sq. ft. is part of the suit schedule property. The

trial court, under the impression that, 1200 sq. ft. is not a

part of the suit schedule property, has granted an

injunction order. This finding of the trial court is contrary

to the pleadings of the parties.

16. The specific case of the plaintiff is that her

husband sold 1200 sq. ft. of the land in Sy.No.67/2 in

favour of Chikkanna, it is a part of the suit schedule

property and it is also not disputed that Chikkanna is in

the possession of the property. Under the circumstances,

the trial court has erred in granting an injunction in favour

of the plaintiff in respect of the entire suit schedule

property. The said finding is contrary to the materials

available on record. Under the circumstances, in the

interest of justice, the matter requires to be remitted back

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to the trial court for fresh consideration. The point

determined for consideration is answered accordingly.

17. In view of the above, I pass the following order:

(i) The appeal is allowed.

(ii) The judgment and decree dated 18.12.2015

passed by the XXIII Additional City Civil & Sessions Judge,

Bangalore, in O.S.No.16402/2004 is set aside.

(iii) The matter is remitted back to the trial court to

reconsider the matter afresh, in accordance with law,

without being influenced by the observations made in the

course of this order.