Karnataka High Court

Sri Papanna vs Smt A H Shirisha on 31 July, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                    RFA No. 48 of 2019




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                     DATED THIS THE 31ST DAY OF JULY, 2024
                                      BEFORE
                    THE HON'BLE MR JUSTICE V SRISHANANDA
                   REGULAR FIRST APPEAL No.48 OF 2019 (INJ)


            BETWEEN:

            1.     SRI PAPANNA
                   SINCE DEAD REPRESENTED BY HIS LEGAL
                   REPRESENTATIVES

            1(a) SMT.N.JALAJAKSHI
                 W/O LATE PAPANNA
                 AGED ABOUT 74 YEARS

            1(b) SRI P.SUDARSHAN
                 S/O LATE PAPANNA
                 AGED ABOUT 49 YEARS

            1(c)   SRI P.MADHAVAN
                   S/O LATE PAPANNA
                   AGED ABOUT 47 YEARS

            1(d) SRI P.MOHAN KUMAR
Digitally        S/O LATE PAPANNA
signed by
MALATESH         AGED ABOUT 46 YEARS
KC
Location:          1(a) to 1(d) ARE RESIDING AT
HIGH               BILEKAHALLI VILLAGE
COURT OF           BEGUR HOBLI
KARNATAKA          BANGALORE SOUTH TALUK

            1(e) SMT.KRISHNAVENI
                 D/O LATE PAPANNA
                 AGED ABOUT 43 YEARS

                   RESIDING AT NO.540, 16TH CROSS
                   35TH MAIN, J.P.NAGAR
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                                             NC: 2024:KHC:30366
                                             RFA No. 48 of 2019




       6TH PHASE, BENGALURU-78
                                                   ...APPELLANTS
(BY SRI K H SOMASEKHARA, ADVOCATE)

AND:

1.   SMT A H SHIRISHA
     AGED ABOUT 39 YEARS,
     WIFE OF SRI A V HARI
     R/AT NO.342, 1ST CROSS
     C.T.BED
     BANAHSANKARI 2ND STAGE,
     BENGALURU - 560 070.
                                                   ...RESPONDENT
(BY SRI NAGESH V R, ADVOCATE)

     THIS RFA IS FILED UNDER ORDER XLI RULE 1 AND 2 R/W
SECTION 96 OF CPC AGAINST THE ORDER DATED 23.11.2018
PASSED ON I.A No.2 IN OS.No.3865/2018 ON THE FILE OF THE
XXV ADDL.CITY CIVIL AND SESSIONS JUDGE, BANGALORE
ALLOWING THE IA NO.2 FILED UNDER ORDER 11(a) TO (d)
R/W SECTION 151 OF CPC FOR REJECTION OF PLAINT.

    THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:     HON'BLE MR JUSTICE V SRISHANANDA

                         ORAL JUDGMENT

Heard Sri K.H.Somasekhara, learned counsel for the

appellants.

2. Present First Appeal is filed challenging the order passed

by the XXV Additional City Civil and Sessions Judge, Bengaluru,

(CCH No.23) dated 23rd November 2018 whereby the

application filed under Order VII Rule 11(a) to (d) read with

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Section 151 of the Code of Civil Procedure by the defendant

came to be allowed and plaint came to be rejected.

3. Parties are referred to as plaintiff and defendant as per

their ranking before the Trial Court, for the sake of

convenience.

4. Facts in brief which are utmost necessary for disposal of

the present second appeal are as under:

Appellant herein filed a suit in O.S.No.3865/2018 for

permanent injunction contending that plaintiff is the owner in

possession of the landed property bearing Sy.No.117

measuring 14 guntas, in Billekahalli village, Begur Hobli,

Bengaluru South Taluk, Bengaluru ('suit property' for short). It

is contended that it is the ancestral property which has fallen to

the share of the plaintiff by partition. After the land has been

partitioned, necessary revenue entries were mutated in the

name of the plaintiff.

5. It is further contended that suit property was acquired by

the Government of Karnataka for the purpose of Vijaya Bank

Employees Housing Co-operative Societies Limited, by

preliminary notification dated 30th May 1983. When there was

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interference with the peaceful possession of the property by

Vijaya Bank Employees Housing Co-operative Societies Limited,

plaintiff was constrained to file a suit in O.S.No.2012/1996 on

21.03.1996 seeking grant of permanent injunction against the

said Society.

6. It is further contention of the plaintiff that suit came to be

decreed in favour of plaintiff by judgment dated 11th June,

2002. When such is the factual aspect of the matter,

defendant, without there being any right, title or interest over

suit property, started to interfere with possession and

enjoyment of the property by the plaintiff allegedly claiming

that defendant has purchased property from Vijaya Bank

Employees Housing Co-operative Societies Limited and

therefore he had approached the Court with a prayer for

permanent injunction.

7. Pursuant to suit summons issued, defendant entered

appearance inter alia, filed an application under Order VII Rule

11(a) to (d) r/w Section 151 of the Code of Civil Procedure

seeking rejection of the plaint for want of cause of action.

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8. Plaintiff opposed the application by filing detailed written

objection.

9. Learned Trial Judge heard the parties in detail and after

considering the rival contents of the parties, has allowed the

application filed by the defendant and rejected the plaint.

10. Being aggrieved by the same, plaintiff has filed the

present appeal on the following grounds:

 The impugned judgment and decree passed by the court below is highly perverse, illegal, arbitrary and opposing to the well established principles of law and contrary to the documents/materials produced by the appellant. Hence the impugned judgment and decree passed by the court below is liable to be set aside by this Hon'ble court.

 The trial court failed to consider the Appellant is the owner of the suit schedule property bearing Sy.No.117 situated at Billekahalli village, Begur hobli, Bangalore South Taluk, Bangalore measuring14 guntas by virtue of the partition deed and he is in exclusive possession of the suit schedule property. On this ground alone the impugned Judgment and decree is liable to be set-aside.

 It is submitted that though the Hon'ble City Civil Court in OS.No.2012/1996 has restrained the said Vijaya Bank Employees Housing Co-operative Societies Ltd. not to interfere with the peaceful possession and enjoyment of the Schedule property by the Plaintiff. And though the

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said Decree was granted in the year 2002, Vijaya Bank Employees Housing Co-operative Societies Ltd. has not challenged the said Judgment and Decree dated

11.06.2002. The Decree granted by the Hon'ble City Civil Court, Bengaluru has reached at its finality and till now the permanent injunction is operative against the Vijaya Bank Employees Housing Co-operative Societies Ltd. and its men and agents, employees, office bearers, workers, laborers, contractors and its subordinates and associates. The said permanent injunction is in full force and operation, the Defendant representing the Vijaya Bank Employees Housing Co-operative Societies Ltd. has now started creating interference with the peaceful possession and enjoyment of the Plaintiff in respect of the Schedule property and trying to put up a portion of the Schedule property illegally without having any right title and interest over the Schedule property. This aspect of the matter has not been considered by the trial court while passing the judgment and decree.

 It is submitted that though appellant has shown the cause of action arose on 25-5-2018 and produced all the relevant documents to prove that he is in possession of the suit schedule property. Without looking into the plaint averments and without authority of law has rejected the pliant of the plaintiff. On these ground the impugned Judgment and decree is liable to be set-aside.

11. Sri K.H.Somasekhara, learned counsel for the appellants

reiterating the grounds urged in the Memorandum of Appeal

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vehemently contended that title to the suit property has been

established by the plaintiff by placing necessary documents on

record and he had the benefit of decree of permanent

injunction against the vendor of the defendant, viz., Vijaya

Bank Employees Housing Co-operative Societies Limited in O.S.

No.2012/1996.

12. Therefore, further interference by the defendant when

questioned by the plaintiff, defendant has specifically

contended that he has purchased the suit property under

registered sale deed and therefore, he is the owner of the suit

property which needs to be enquired into by the trial Court

after holding a detailed trial. As such, rejecting the plaint at

the threshold by accepting the application and affidavit filed by

the defendant has resulted in miscarriage of justice and sought

for allowing the present appeal.

13. Respondent served with notice of the appeal and has

engaged the services of Sri Nagesh V.R, Advocate, who is

absent today.

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14. As such in the light of the arguments put forth on behalf

of the appellants, this Court perused the material on record

meticulously.

15. On such perusal of the material on record, it is not in

dispute that appellants had the benefit of an order of injunction

in their favour in O.S No.2012/1996. But that decree was only

against the Vijaya Bank Employees Housing Co-operative

Societies Limited.

16. Learned Judge in the trial Court, while considering the

rival contentions of the parties in paragraph Nos. 21 and 22 has

held as under:

"21. The defendant has come up with the present application to reject the plaint on the ground that there is no cause of action for the plaintiff to file the present suit. The plaintiff has filed the present suit seeking the relief of permanent injunction to restrain the defendant and any person acting on her behalf from interfering with the peaceful possession and enjoyment of the suit schedule property. Upon perusal of the plaint schedule it would show that the plaintiff described Sy.No.117 as if agricultural property. In fact upon perusal of the documents produced by the defendant it would show that the above referred Sy.No. i.e. suit schedule property is no more an agricultural land and it comes within the BBMP limits, Bangalore. In fact the plaintiff himself at para No. 5 of

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his plaint admitted that now the suit schedule property is coming within the jurisdiction of BBMP. The contention of the defendant is that there is no cause of action for the plaintiff to file the present suit. Per contra the plaintiff in para 10 of the plaint says that on 25/5/2018 cause of action would accrue to her to file the present suit when the defendant interfered with the peaceful possession and enjoyment of the suit schedule property. So it is for the plaintiff to show on the above said date the cause of action would accrue to her and she is in peaceful possession and enjoyment of the suit schedule property. The main contention of the plaintiff is that earlier he has filed suit against the Secretary, Vijaya Bank Employees Housing Co- operative Society Limited in O.S.No.2012/1996 seeking the relief of permanent injunction and the said suit was decreed on 11/6/2002. So she contended that the said judgment and decree passed in the above referred suit itself shows that he is in peaceful possession and enjoyment of the suit schedule property. The plaintiff copy of the judgment and decree passed in the above referred suit also produced original RTC and copy of the endorsement given by the MICO layout police station, except these three documents the plaintiff has not produced any other documents. The learned counsel for the plaintiff during the course of her arguments produced some photographs along with the memo. On the basis of the said photographs it cannot be possible to say that the plaintiff is in peaceful possession and enjoyment of the suit schedule property and the cause of action would accrues to him on the date as contended by him in para 10 of the plaint.

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22. The defendant contended that he is in peaceful possession and enjoyment of the suit schedule property and she has purchase the same from one Suhasini S.Shetty under sale deed dated 5/8/2015 for valuable sale consideration of Rs.96,00,410/- and all the documents pertaining to the said property given to her and all the documents came to be entered in her name and she was put in physical possession and enjoyment of the property purchased under the above referred sale deed bearing vacant site No.1065 A 11. She further contended that she has constructed the building in the above referred site by obtaining necessary permission from the concerned authorities. The defendant has produced nearly 15 documents along with a memo. As it is already stated above the plaintiff except three documents and subsequently during the course of arguments some photos not produced any documents to show he is in possession of the suit schedule property. Upon perusal of the document No. 1 produced by the plaintiff, i.e., the original RTC for the year 2017-18 at column No.9 the name of plaintiff shown, but in the very next column, i.e., extent of the land it shows that wherein no extent shown in front of the name of plaintiff. So from the said document it cannot be possible to say tat the plaintiff is in possession of the suit schedule property. Upon perusal of para No. 4 of the plaint wherein the plaintiff has stated that the suit schedule property has fallen to the share of plaintiff by way of partition, but admittedly the said partition deed is not placed before the court to show the suit schedule property is fallen to his share. The plaintiff has produced the copy of the judgment and decree passed in O.S.No.2012/96 filed against Vijaya Bank Employees Housing Co-operative

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Society Limited seeking the relief of permanent injunction. Admittedly the defendant herein and the vendor of the defendant are not parties to the said case. Admittedly the above referred suit was filed on 21/3/1996. The documents filed by the defendant, i.e., document No.1 and 2, preliminary notification dated 30/5/1983 and final notification dated 1/6/1985 would show that the suit schedule Sy.No.117 was acquired by the government very long back and allotted the same in favour of Vijaya Bank Employees Housing Co- operative Society Limited for its members. The other documents filed by the defendant coupled with the above referred documents would also clearly show that as on the date of filing suit in O.S.No.2012/1996 the suit schedule property, i.e., Sy.No.117 was not in the possession of the original owners. Admittedly the above referred suit was filed on 21/3/1996 and it was decreed on 11/6/2002, whereas the suit schedule Sy.No..117 was acquired by the government under preliminary notification in the year 1983 and final notification in the year 1985. When that would be the case the theory of the plaintiff that he is in possession and enjoyment of the suit schedule property and he acquired the same under partition cannot be accepted. In fact in para 5 of the plaint the plaintiff himself admittedly that the suit schedule survey number, i.e., 117 was acquired by the Government of Karnataka for the benefit of the Vijaya Bank Employees Housing Co- operative Society Limited. The learned counsel for the defendant during the course of his arguments contended that the original owners of Sy.No.117 challenged the acquisition proceedings acquiring Sy.No.117 before the Hon'ble High Court of Karnataka by filing writ petition and

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the same was dismissed. So far as the said contention of the learned counsel for the defendant is concerned no acceptable arguments canvassed by the learned counsel for the plaintiff to disbelieve the said arguments. Per contra as it is already stated above the plaintiff himself in para No.5 of his plaint stated that the suit schedule Sy.No.117 was acquired by the government under preliminary notification for the benefit of Vijaya Bank Employees Housing Co-operative Society Limited. When that would be the case the say of the plaintiff that he is in possession of the suit schedule property and the defendant caused obstruction to his possession and enjoyment of the suit schedule property on 25/5/2018 does not arise at all. The photographs placed before the court by the plaintiff does not disclose that they are relating to the suit schedule property. The defendant in her written statement contended that after she purchasing the suit schedule property from Suhasini S.Shetty put up construction by obtaining necessary plan from the concerned authorities and even the plan and permission given by the concerned authorities is also placed before the court by the defendant. The defendant also produced the copy of the sale deed executed in favour of Suhasini S.Shetty on 6/11/1995 by the Vijaya Bank Employees Housing Co-operative Society Limited and also the defendant has produced the copy of the sale deed executed by Suhasini S.Shetty in her favour on 5/8/2015. Even in the above referred two sale deeds it is the Sy.No.'s of lands acquired by the government mentioned therein and wherein also the suit schedule Sy.No..117 finds place. Apart from that the other documents produced by the defendant show that the suit schedule Sy.No..117 was acquired by the government for the benefit of Vijaya Bank

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Employees Housing Co-operative Society Limited. When that would be the case the whole theory of the plaintiff that he is in possession of the suit schedule property and the cause of action accrues to him on 25/5/2018 when the defendant interfered with his peaceful possession and enjoyment of the suit schedule property cannot be accepted. As it is already stated above not a scrap of paper has been placed before the court to show the plaintiff is in possession of the suit schedule property and cause of action accrue to him on the date as referred by him in para 10 of the plaint. When that would be the case it is needless to say that there is no cause of action for the plaintiff to file the present suit."

17. Factual aspects have been discussed in detail by

considering the documents which have been placed on record,

by the trial Court. As could be seen from the discussion made

in the aforesaid paragraphs, learned trial Judge took into

consideration the fact of earlier decree passed in favour of the

plaintiff/ appellant in detail.

18. Learned trial Judge has formed a definite opinion that

after the acquisition of land, whatever the rights that plaintiff

possessed stood extinguished and injunction order that was

granted in favour of plaintiff would not be of any significance in

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