Karnataka High Court
Sri R D Rajeev vs Sri S T Ravindran on 25 July, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
1
RFA NO. 467 OF 2016
C/W RFA CROB NO. 22 OF 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25th DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR FIRST APPEAL NO. 467 OF 2016
C/W
RFA CROSS OBJECTION NO. 22 OF 2016
IN RFA NO 467 OF 2016
BETWEEN
SRI. R. D. RAJEEV
S/O. R. DAYANAND
AGED ABOUT 50 YEARS
NO.397, 6TH MAIN ROAD,
BSK 1ST STAGE, 1ST
BLOCK,
SRINAGAR,
BANGALORE - 560 050
...APPELLANT
(BY SRI. VINOD PRASAD, ADVOCATE)
AND
1 . SRI. S T RAVINDRAN,
S/O P SARAVANAN
AGED ABOUT 54 YEARS
NO.22 J NO.2ND STREET,
ASHOKA NAGAR,
BANGALORE - 560 025.
2 . K RAVI,
FATHERS NAME NOT KNOWN TO
APPELLANT
AGED ABOUT 54 YEARS,
2
RFA NO. 467 OF 2016
C/W RFA CROB NO. 22 OF 2016
NO.14, 5TH CROSS
BASAVANAPURA MAIN ROAD,
DEVASANDRA, K.R.PURAM POST
BANGALORE - 560 036.
.....RESPONDENTS
(BY SMT. BHARATHI PATIL ADVOCATE FOR R1;
V/O DATED 04.08.2016 NOTICE TO R2 HELD SUFFICIENT)
THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41, RULE 1
OF CPC., AGAINST TH JUDGMENT AND DECREE DATED
23.02.2016 PASSED IN O.S NO.1872/2012 ON THE FILE OF THE V
ADDL. CITY CIVIL JUDGE, BENGALURU CITY (CCH 13),
DISMISSING THE SUIT FOR PERMANENT INJUNCTION.
IN RFA CROB NO. 22 OF 2016
BETWEEN
SRI. S. T. RAVINDRAN
SON OF P. SARAVAN
AGED ABOUT 54 YEARS,
NO.22, J.NO.2ND STREET,
ASHOK NAGAR,
BANGALORE - 560 025
...CROSS OBJECTOR
(BY SRI. RAHUL CARIAPPA, ADVOCATE)
AND
1 . SRI. R. D. RAJEEV
S/O. R. DAYANAND
AGED ABOUT 50 YEARS
NO.397, 6TH MAIN ROAD,
BSK 1ST STAGE, 1ST BLOCK,
SRINAGAR,
BANGALORE - 560 050
2 . K. RAVI
AGED ABOUT 54 YEARS,
NO.14, 5TH CROSS ROAD,
BASAVANAPURA MAIN ROAD,
DEVASANDRA, K.R.PURAM POST,
3
RFA NO. 467 OF 2016
C/W RFA CROB NO. 22 OF 2016
BANGALORE - 560 036
.....RESPONDENTS
(BY SRI. VINOD PRASAD, ADVOCATE V/O DATED 18.11.2016 IS
DIRECTED TO TAKE NOTICE FOR RESPONDENTS)
THIS RFA.CROB IN RFA FILED U/O 41 RULE 22 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 23.02.2016
PASSED IN OS NO.1872/2012 ON THE FILE OF THE V ADDL. CITY
CIVIL JUDGE, BENGALURU CITY (CCH 13), DISMISSING THE SUIT
FOR PERMANENT INJUNCTION.
THIS APPEAL AND RFA CROB, HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 25.07.2024 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR)
This Regular First Appeal is filed by the plaintiff
challenging the judgment and decree dated 23.02.2016
Passed in O.S.No.1872/2012 by the V Additional City Civil
Judge at Bengaluru City (CCH-13), thereby the suit filed by
the appellant-plaintiff for permanent injunction is dismissed.
2. The defendant No.1 has filed Cross Objection
No.22/2016 in RFA No.467/2016 so far as not granting
prayer in the counter claim.
RFA NO. 467 OF 2016
C/W RFA CROB NO. 22 OF 2016
3. For the sake of convenience and easy reference,
the parties are referred to as per their rankings before the
trial Court.
4. It is the case of the plaintiff that the suit schedule
properties originally belonged to one Meenakshamma. The
plaintiff has purchased the said suit schedule property
through registered sale deed dated 09.01.2004 executed by
C.N. Manjunath, the Power of Attorney holder of
Meenakshamma, for valuable consideration. Then, the
plaintiff had authorized one Sri. R. Mahendran to construct
temporary shed vide agreement dated 31.12.2004 and after
construction of temporary shed, he redelivered the
possession of the property to the plaintiff. It is stated that
the plaintiff has been paying taxes to the BBMP. It is further
pleaded that in the year 2011, the plaintiff had constructed
two shops with intention and desire to let them to the
prospective defendants and also intends to start as tailoring
business and while he was making arrangements for opening
ceremony of the shops, the defendants came near the suit
RFA NO. 467 OF 2016
C/W RFA CROB NO. 22 OF 2016
property and tried to interfere with the possession of the
plaintiff. Therefore, the plaintiff has filed suit for permanent
injunction.
5. The description of the property as described by
the plaintiff in the plaint is as follows:
"Urban property bearing site No.132,
Khata No.26/4/132, in property
No.26/4, situated at Basavanapura,
(Chikkabasavanapura) village,
Krishnarajapuram Bangalore East taluk
and within the jurisdiction of the CMC
Krishnarajapuram, now included in the
BBMP measuring East-West 40ft and
North-South 40ft containing two RCC
roof shops built in a portion of a site to
the extent of 20ft x 10ft, the entire site
bounded:
East by: Site NO.133,
West by: Site No.131.
North by: Site No.138,
South by: Road."
6. The defendants have filed their written statement
stating that the father of defendant No.1 namely P.
Saravaran had purchased the suit schedule property through
RFA NO. 467 OF 2016
C/W RFA CROB NO. 22 OF 2016
registered sale deed dated 18.11.1991 and after death of his
father the defendants have succeeded to the said suit
schedule property. It is further contended that the plaintiff
has given wrong boundaries to attempt to trespass over the
property of the plaintiff and the defendants.
7. It is the case of the defendants that the property
of the plaintiff and defendants are in different area
altogether. Therefore, the defendants have also filed counter
claim against the plaintiff praying for relief of permanent
injunction against the plaintiff.
8. The description of the property as described by
the defendants in the plaint is as follows:
"All that piece and parcel of the House
property bearing ITI notified area Khata
No.350/B/241, situated at Basavanapura
Villaage, ITI Notified Area, K.R. Puram
Hobli, Bangalore South Taluk, Bengalore
measuring East-West 30ft and North-
South 40ft consisting of 1½ square AC
sheet building constructed thereon
without water and electricity facilities
RFA NO. 467 OF 2016
C/W RFA CROB NO. 22 OF 2016
and very far from the bus stop. Bounded
on:
East by: Property No.240,
West by: Property No.242,
North by: Property No.238,
Southh by: Road."
9. Based on the pleadings of the parties, the trial
Court has framed the following issues:
1. Does the plaintiff prove that he is in peaceful
possession and enjoyment of suit property as
on the date of suit?
2. Does the plaintiff prove that there is
interference by the defendants to his
peaceful possession and enjoyment over the
suit property?
3. Does the plaintiff prove that he is entitled for
the relief of permanent injunction against the
defendants?
4. What order or decree?
10. In order to prove the case, the plaintiff has
examined himself as PW-1 and got marked documentary
evidence as Ex.P-1 to Ex.P-8. Defendant No.1 was examined
himself as DW-1 and got marked documentary evidence as
Ex.D-1 to Ex.D-16.
RFA NO. 467 OF 2016
C/W RFA CROB NO. 22 OF 2016
11. The trial Court has dismissed the suit of the
plaintiff on the reason that the plaintiff has not produced
evidence to prove that he has put up temporary shed and
two shops in the suit schedule property. The plaintiff has
stated his site No.132 and plaintiff has not produced any
evidence to show as to how his vendor Smt. Meenakshamma
had acquired the property, which is sold to the plaintiff.
Accordingly, doubted the case of the plaintiff that the
plaintiff's acquisition of the property by his vendor as the
plaintiff has not examined the General Power of Attorney
holder, who has executed the sale deed in his favour in the
year 2004. Therefore, the plaintiff has failed to prove his
possession over the suit schedule property. Hence, the
plaintiff's title is doubtful and also the plaintiff has not
produced his possession over the suit schedule property.
Therefore, denied the relief claimed by the plaintiff. Further,
assigned reason that the plaintiff has not produced any
evidence on record to show that Smt. Meenakshamma has
formed sites in the land bearing Sy.No.26/4, therefore, the
RFA NO. 467 OF 2016
C/W RFA CROB NO. 22 OF 2016
plaintiff is not in possession over the suit schedule property.
However, assigned reason that the plaintiff has not produced
any evidence to show that the defendants are claiming the
property of the plaintiff in the sale deed of the defendants.
The property mentioned is house property and khata is
mutated on the basis of sale deed. Therefore, the plaintiff
has failed to establish that he is in possession over the suit
schedule property on the basis of sale deed-Ex.P-1.
Therefore, when the plaintiff has failed to prove the
possession over the property there would not be interference
from the defendants. Hence, dismissed the suit. The Trial
Court has also observed that if the plaintiff is owner and is
having title, then the plaintiff is at liberty to file
comprehensive suit for declaration. Hence, dismissed the
suit filed for permanent injunction.
12. Upon preferring the appeal, the appellant has
raised grounds and learned counsel for the plaintiff-appellant
argued that if it is the case of the defendants that the
properties altogether are different then if injunction is
RFA NO. 467 OF 2016
C/W RFA CROB NO. 22 OF 2016
granted, it would not affect to the defendants claim, as
defendants are claiming different property and the plaintiff
has given documentary evidence to prove that he has
purchased the property on 09.01.2004 through registered
sale deed and khata has been effected in the name of the
plaintiff-appellant, which show that the plaintiff is in
possession over the property. Therefore, the trial Court
ought to have decreed the suit. Further submitted that non
examination of General Power of Attorney holder of the
vendor Smt. Meenakshamma, cannot bear significance in the
suit. The plaintiff further submitted that what the Court has
to see is whether the plaintiff is in possession over the
property or not but without appreciating evidence on record
in this regard has erroneously dismissed the suit.
13. Further, it is argued that though the defendant
has produced the sale deed which do not contain their survey
number and is only mentioned as there is ½ Sq.ft. AC sheet
building constructed thereon without water, electricity
facilities. Therefore, the AC sheet building is doubtful.
RFA NO. 467 OF 2016
C/W RFA CROB NO. 22 OF 2016
Further, the defendants have produced khata
No.350/B/4/241, but who was holding the khata has not
come on record. Further, submitted that from Ex.D-4-
Endorsement from H.D. Nagappa Reddy to Nazeer Khan by
General Power of Attorney but, the title deed H.D. Nagappa
Reddy was not produced. Therefore, the defendants case is
doubtful. Further, it was submitted that the photographs
produced by the plaintiff proved the existence of two ACC
roof shops but, the observation made by the trial Court that
the plaintiff has not produced materials to establish that the
plaintiff has put up the construction of two sheds is not
correct. Further submitted that when it is the case of the
plaintiff that he had purchased vacant site, then he had given
possession to one R Mahehdran with an agreement of
undertaking-Ex.P-2, to put up a temporary shed and for one
month period it was given to R Mahendran, which proves
that the plaintiff is in possession over the property but, the
trial Court has not considered this evidence. Therefore, the
findings and observations of the trial Court are perverse.
RFA NO. 467 OF 2016
C/W RFA CROB NO. 22 OF 2016
When, the defendants have not produced evidence to prove
his possession over the property but on the other hand, the
plaintiff has produced photographs-Ex.P-7. Hence,
disbelieving the plaintiff's case is not correct.
14. Further, the plaintiff has produced a registered
sale deed with other documents proving the fact that plaintiff
is in possession but the trial Court has doubted the case of
the plaintiff and that the plaintiff's vendor has title and on
this ground, dismissal of the suit is not correct. Therefore,
the trial Court has not considered evidence on record
properly resulting into dismissal of suit erroneously.
Therefore, prays to allow the appeal and grant decree as
prayed for.
15. Learned counsel for the appellant-plaintiff has
placed reliance on the judgments of the Hon'ble Apex Court
and this Court are as follows:
I. P. CHANDRASEKHARAN AND OTHERS vs. S.
KANAKARAJAN AND OTHERS reported in AIR 2007
SC 2306.
RFA NO. 467 OF 2016
C/W RFA CROB NO. 22 OF 2016
II. SMT. SUJATHA PRABHAKAR vs. SRI. KEMPAIAH
reported in 2023 KHC 20347.
16. On the other hand, learned counsel for the
defendants-respondents by justifying the judgment and
decree passed by the trial court held that the plaintiff has not
proved he is in possession over the property. Whereas, the
defendants have proved that they are in possession over the
property and it is rightly considered by the trial Court and
dismissal of the suit requires no interference. Ex.P-2-
undertaking is a created document only for the purpose of
the case that for just for one month the property is let out to
one R. Mahendran cannot be believed, which is rightly
considered by the trial Court. Whereas, the documents
produced by the defendants prove that the defendants are in
possession over the property and it is rightly considered by
the trial Court and dismissed the suit. The plaintiff has to
prove his case on his own strength but not on the weakness
of the defendants and it is rightly considered by the trial
Court. Hence, justified the judgment and decree passed by
RFA NO. 467 OF 2016
C/W RFA CROB NO. 22 OF 2016
the trial Court and prays to dismiss the appeal as not
granting decree for permanent injunction in favour of the
plaintiff but challenged the said judgment and decree so far
as not allowing the counter claim filed by defendant No.1.
17. Upon hearing submissions of the learned counsels
appearing for the appellant and respondent, the following
points that would arise for my consideration are as follows:
i. Whether, under the facts and
circumstances involved in the case, the
plaintiff proves that he is in possession
over the property and is entitled to relief
of decree of permanent injunction as
prayed for?
ii. Whether, the judgment and decree passed
by the trial Court requires any interference
by this Court?
18. It is the case of the plaintiff that the plaintiff has
purchased the property through registered sale deed dated
09.01.2004 and in which the property number is mentioned
as site No.132 khata No.26/4/132 property No.26/4, situated
at Basavanapura Village, K.R. Puram Hobli, Bengaluru East
RFA NO. 467 OF 2016
C/W RFA CROB NO. 22 OF 2016
Taluk now (Bengaluru South Taluk). The schedule
mentioned in the plaint is also the same.
19. It is the case of the defendants that father of
defendant No.1-late P. Saravaran has purchased the
property, through registered sale deed dated 18.11.1991
purchased from one G. Ganesh, who was the owner and it is
the house property bearing ITI notified area khata
No.350/B/4/241 situated at Basavanapura Village, ITI
notified area, K.R. Puram, Bengaluru South Taluk. After
demise of P. Saravaran, the property was devolved into his
legal heirs who is the defendant herein. Therefore, there is
rival claim of title between the plaintiff and defendants.
20. In order to prove the possession of the plaintiff
over the property, the plaintiff has produced tax paid
receipts, khata, photos and CD. The defendants have also
produced allotment of site, self assessment scheme extract
from the year 2002 to 2008, tax paid receipts, photos and
CD. When this being the fact, it is burden on the plaintiff to
prove that he is in possession over the property as on the
RFA NO. 467 OF 2016
C/W RFA CROB NO. 22 OF 2016
date of the suit. Ex.P-1-sale deed is executed in favour of
plaintiff through General Power of Attorney of holder of Smt.
Meenakshamma. Whereas, on rivalry, defendant No.1 is
claiming that his father had purchased the property as per
said Ex.D-1 dated 18.11.1991 which is much prior to the sale
deed of the plaintiff. The plaintiff has stated that he has
entered into unregistered agreement of lease with one R.
Mahendran for temporary period for construction of shed and
Ex.P-2-agreement of undertaking dated 31.12.2008. But,
the said R. Mahendran has not been examined to prove
possession of the plaintiff over the property. One Manjunath
is General Power of Attorney holder of Smt. Meenakshamma
and he has sold property to the plaintiff. The said Manjunath
has not been examined to prove that he has put the plaintiff
into possession.
21. It is the case of the plaintiff that one Smt.
Meenakshamma has formed layout but layout plan is not
produced. In the sale deed of the plaintiff in Ex.P-1, the
property is shown as vacant site whereas in Ex.D-1-sale deed
RFA NO. 467 OF 2016
C/W RFA CROB NO. 22 OF 2016
the property is shown as house property. Therefore, this
probalizes the fact that the plaintiff is not in possession over
the property. When there is a rival claim of title and there is
no prima facie evidence to prove that the plaintiff is in
possession of the property then, relief of permanent
injunction cannot be granted. The khata extracts were
produced by the plaintiff to show that the suit schedule
property is a vacant site whereas, the sale deed produced as
Ex.D-1 is shown as house property. Therefore, where there
is no prima facie evidence to prove the possession of the
plaintiff over the property, then the relief of permanent
injunction cannot be granted.
22. The appellant-plaintiff has relied on by the
judgment of Supreme Court in the case of P.
CHANDRASEKHARAN & OTHERS vs. KANAKARAJAN &
OTHERS and the judgment of this Court in the case of SMT.
SUJATA PRABHAKAR vs. SRI. KEMAIAH (supra) are not
applicable for the reason that having difference in factual
matrix in the present case and in those cited cases. In
RFA NO. 467 OF 2016
C/W RFA CROB NO. 22 OF 2016
Sujata Prabhakar case (stated supra), the Court has
ordered for appointment of Court Commissioner in suit for
injunction by the Trial Court is confirmed by this Court.
Therefore, the facts in this case is different from the case
relied on.
23. The Hon'ble Supreme Court in the case of P.
Chandrasekharan case (stated supra) has dealt with
Section 100 of CPC regarding under what circumstances,
concurrent findings of the trial Court and First Appellate
Court can be interfered with on certain circumstances as
enumerated therein Therefore, this judgment is also not
applicable in the present case.
24. The cross objection is filed by defendant No.1 and
has raised ground that counter claim filed for declaration is
not allowed. Therefore, in so far as not decreeing the
counter claim, the defendant No.1 has filed cross objection.
But, the grounds taken in the cross objection is to the effect
that the Cross Objector is not declared as owner of the
property. But, upon perusing the prayer made in the counter
RFA NO. 467 OF 2016
C/W RFA CROB NO. 22 OF 2016
claim, it is not the relief claimed by defendant No.1 for
declaration. It is prayed for grant of permanent injunction
but not for declaration of defendant No.1 as the owner of the
property. The prayer made in the counter claim has to be
considered and there is no prayer for seeking declaration of
ownership. Further, even if the relief of declaration is
claimed in the counter claim then, it has to be valued
according to the provisions of the Karnataka Court-Fee and
Suits Valuation Act, 1958 and appropriate relief be claimed in
the prayer and to pay Court fee on the relief claimed but that
is not done by the defendant No.1. The trial Court is correct
in dismissing the suit and also not granting the relief as
prayed in the counter claim. Therefore, there is no merit in
the cross objection filed by the defendant No.1 and hence,
cross objection is liable to be dismissed.
25. Though, there is dispute regarding title but the
plaintiff has failed to prove that he is in possession over the
property. Therefore, relief of permanent injunction cannot
be granted. When defendant No.1 is also claiming that he is
RFA NO. 467 OF 2016
C/W RFA CROB NO. 22 OF 2016
owner and having purchased property by his father then to
decide this lis a comprehensive suit for declaration is
necessary. Therefore, by giving such liberty the suit filed by
the plaintiff for permanent injunction is not maintainable as
the plaintiff has not proved possession. Therefore, the trial
Court is correct in dismissing the suit. Accordingly, I answer
point Nos.1 and 2 in the negative.
26. In the result, I proceed to pass the following:
ORDER
i. The RFA No.467/2016 and RFA
Crob.No.22/2016 are dismissed.
ii. The judgment and decree dated
23.02.2016 passed in
O.S.No.1872/2012 by the V
Additional City Civil Judge,
Bengaluru City (CCH-13) is hereby
confirmed.
iii. No order as to costs.
iv. Draw decree accordingly.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
