Karnataka High Court

Sri. H S Basavarajaiah vs Dr. Usha Rani on 7 March, 2024

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                                                     NC: 2024:KHC:9558
                                                   RFA No. 950 of 2012
                                               C/W RFA No. 951 of 2012



                IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 7TH DAY OF MARCH, 2024

                                      BEFORE
                THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
                REGULAR FIRST APPEAL NO. 950 OF 2012 (PAR/INJ)
                                        C/W
                REGULAR FIRST APPEAL NO. 951 OF 2012 (PAR/INJ)
              IN RFA NO.950/2012:
              BETWEEN:

                    SMT HONNAMMA,
                    W/O BASAVARAJ,
                    AGED ABOUT 53 YEARS,
                    R/O NO. 371,MARUTHI NILAYA, SUNKADAKATTE,
                    VISHWANEEDAM POST, BANGALORE-560094,
                    REPRESENTED BY HER GPA HOLDER
                    SRI H S BASAVARAJAIAH,
                    S/O LATE SIDDALINGAIAH,
                    AGED ABOUT 67 YEARS,

                  SINCE DECEASED BY HER LRS'
Digitally
signed by C   1a. H.S.BASAVARAJAIAH,
HONNUR SAB        S/O LATE SIDDALINGAIAH,
Location:         AGED ABOUT 73 YEARS.
HIGH COURT
OF            1b. H.B.MAHESH KUMAR,
KARNATAKA         S/O H.S.BASAVARAJAIAH,
                  AGED ABOUT 43 YEARS.

              1c.   SRI H.B.NAGESH,
                    S/O H S BASAVARAJAIAH,
                    AGED ABOUT 41 YEARS.

              1d. SRI H.B.SANJEEVEGOWDA,
                  S/O H.S.BASAVARAJAIAH,
                  AGED ABOUT 39 YEARS.
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                                       NC: 2024:KHC:9558
                                     RFA No. 950 of 2012
                                 C/W RFA No. 951 of 2012



1e. SMT KAVITHA,
    W/O D VENKATESH,
    AGED ABOUT 37 YEARS.

     ALL ARE RESIDING AT MARUTHI NILAYA,
     SUNKADA KATTE, VISHWANEEDAM POST,
     BANGALORE - 560 091.
     (CAUSE TITLE AMENDED VIDE COURT
     ORDER DATED: 31.05.2017).
                                           ...APPELLANTS
(BY SRI B V KRISHNA, ADVOCATE FOR
 SRI S N PRASHANTH CHANDRA, ADVOCATE)
AND:

DR. USHA RANI,
W/O DR.GOPAL,
AGED ABOUT 51 YEARS,
R/O NO.3793, 13TH CROSS,
BANASHANKARI II STAGE,
BANGALORE - 560 070.
                                         ...RESPONDENT
(BY SRI G L VISHWANATH, SR. COUNSEL, FOR
 SMT MANASA AND SRI V.C.RAJU, ADVOCATE'S FOR C/R
 (CP.NO.764/2012)

     THIS RFA IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 21.05.2012
PASSED IN O.S.3109/2008 ON THE FILE OF THE XXIV-ADDL.
CITY CIVIL AND SESSIONS JUDGE, BANGALORE CITY,
DISMISSING THE SUIT FOR PERMANENT INJUNCTION.

IN RFA NO.951/2012:
BETWEEN:

1.    SRI. H S BASAVARAJAIAH,
      S/O LATE SIDDALINGAIAH,
      AGED ABOUT 67 YEARS,
      R/A NO.371, MARUTHI NILAYA,
      SUNKADA KATTE, VISHWANEEDAM POST
      BANGALORE-560091.
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                                     NC: 2024:KHC:9558
                                   RFA No. 950 of 2012
                               C/W RFA No. 951 of 2012



2.    SMT HONNAMMA,
      W/O BASAVARAJ,
      AGED ABOUT 54 YEARS,
      R/O NO.371, MARUTHI NILAYA,
      SUNKADAKATTE VISHWANEEDAM POST,
      BANGALORE - 560091,
      REP. BY HER SPA HOLDER
      SRI H S BASAVARAJAIAH,
      S/O LATE SIDDALINGAIAH,
      AGED ABOUT 67 YEARS.
      SINCE DECEASED BY HER LRS'
2(a). H S BASAVARAJAIAH,
      S/O LATE SIDDALINGAIAH,
      AGED ABOUT 73 YEARS.

2(b). H.B.MAHESH KUMAR,
      S/O H.S.BASAVARAJAIAH,
      AGED ABOUT 43 YEARS.

2(c). SRI H.B.NAGESH,
      S/O H S BASAVARAJAIAH,
      AGED ABOUT 41 YEARS.

2(d). SRI H.B.SANJEEVEGOWDA,
      S/O H.S.BASAVARAJAIAH,
      AGED ABOUT 39 YEARS.

2(e). SMT KAVITHA,
      W/O D VENKATESH,
      AGED ABOUT 37 YEARS.

     ALL ARE RESIDING AT MARUTHI NILAYA,
     SUNKADA KATTE, VISHWANEEDAM POST,
     BANGALORE - 560 091.
     (CAUSE TITLE AMENDED VIDE COURT
     ORDER DATED: 31.05.2017).
                                           ...APPELLANTS
(BY SRI B.V.KRISHNA, ADVOCATE FOR
 SRI S N PRASHANTH CHANDRA, ADVOCATE)
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                                            NC: 2024:KHC:9558
                                        RFA No. 950 of 2012
                                    C/W RFA No. 951 of 2012



AND:

DR. USHA RANI,
W/O DR.GOPAL,
AGED ABOUT 52 YEARS,
R/O NO.3793, 13TH CROSS,
BANASHANKARI II STAGE,
BANGALORE-560070.
                                         ...RESPONDENT
(BY SRI G L VISHWANATH, SR. COUNSEL FOR
 SMT MANASA AND SRI V C RAJU, ADVOCATE'S FOR C/R
 (CP NO.763/2012))

     THIS RFA IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 21.05.2012
PASSED IN O.S.5611/2011 ON THE FILE OF THE XXIV-ADDL.
CITY CIVIL AND SESSIONS JUDGE, BANGALORE CITY,
DECREEING THE SUIT FOR PERMANENT INJUNCTION.

     THESE APPEALS COMING ON FOR FURTHER HEARING
THIS DAY THE COURT DELIVERED THE FOLLOWING:


                        JUDGMENT

1. These two appeals R.F.A. No.950/2012 and

R.F.A. No.951/2012 are arising from the common

judgment in O.S. No.3109/2008 and O.S. No.5611/2011

on the file of XXIV Additional City Civil Judge, Bangalore

City (CCH-6). The suit in O.S. No.3109/2008 filed by the

present appellant Smt.Honnamma for bare injunction is

dismissed. The description of the suit property in O.S.

No.3109/2008 is as under:-

NC: 2024:KHC:9558

"All that piece and parcel of the land bearing Sy.No.47, New No.47/1B, situated at Srigandadakaval village, Yeshwanthapura Hobli, Bangalore North Taluk, now coming under the Rajarajeswari Nagar Ward of the BBMP, measuring East to West 175 + 185, and North to South 140+120/2, bounded on the:

          East by       :      Road,
          West by       :      Road,
          North by      :      Portion of property in
                               Sy. No.47/1B
          South by      :      T. Prakash's property."

2. O.S. No.5611/2011 is also a suit for injunction

filed by the respondent in both appeals. The description of

the property in the said suit is as under:

"All that piece and parcel of Site No.1, bearing Khatha No.2524/2576, situated in Sy.No.47/1B, (Old No.47); Srigandhadakaval village, Yeshwanthapura Hobli, Bangalore North Taluk, measuring East to West 90 feet and North to South 60 feet and bounded on :


          East by       :      Site No.2 (belonging to Smt.
                               Sumithra Plaintiffs mother)
          West by       :      Tar Road,
          North by      :      20 Feet Road,
          South by      :      Remaining property of
                               Smt. Puttahonamma."


     3.     O.S.     No.3109/2008     is   dismissed     and   O.S.

No.5611/2011 is decreed in terms of the aforementioned

common judgment. Aggrieved by the judgment and

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decree, the plaintiff in O.S. No.3109/2008 has filed RFA

No.950/2012 and the defendants in O.S. No.5611/2011

has filed RFA No.951/2012.

4. With a consent of the learned counsel appearing

for the appellant and the learned Senior counsel appearing

for the respondent, both appeals are taken up together for

final hearing.

5. The appellant is the plaintiff in O.S.

No.3109/2008 and defendant in O.S. No.5611/2011. The

respondent is defendant in O.S. No.3109/2008 and

plaintiff in O.S. No.5611/2011. For the sake of

convenience, the parties are referred to as the appellant

and the respondent.

6. Certain admitted facts are as under:-

One Timmakka was the propositus and she had two

daughters namely Puttahonnamma and Lakshmidevamma.

Admittedly, there was a partition on 08.05.1967 under a

registered partition deed. The said document is marked as

NC: 2024:KHC:9558

Ex.D1. In the said partition, Puttahonnamma acquired 11

acres 38 guntas of property in Survey No.47 and the

respondent claims that she has purchased the suit

property in O.S. No.5611/2011 under a registered sale

deed dated 09.12.1991 executed by Puttahonnamma.

7. It appears that there was a partition between

Puttahonnamma and her daughter namely Honnamma in

the year 2006 under a registered partition deed dated

03.06.2006. The appellant claims that the entire suit

schedule property in O.S. No.3109/2008 is allotted to the

share of the appellant in the partition of 2006.

8. Alleging interference by the respondent, a suit

is filed for bare injunction in O.S. No.3109/2008 by the

appellant in respect of the property alleged to have been

allotted to the share of the appellant.

9. The respondent in the said suit, filed an

application seeking a prayer to accept a counter claim.

The said application was not pressed and thereafter, he

filed a suit in O.S. No.5611/2011 claiming injunction in

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respect of the property which is purchased under the

registered sale deed dated 09.12.1991. The registered

sale deed dated 09.12.1991 is marked at Ex.D6. This is

the document under which, the respondent is claiming

possession over the property. The plaintiff is claiming

possession over the property under the registered partition

deed dated 03.06.2006 marked at Ex.P5.

10. Learned counsel appearing for the appellant

would contend that there is a serious dispute relating to

the identity of the property said to have been purchased

by the respondent. The identity of the property is not

established as the respondent has not moved an

application for appointment of a Survey Commissioner to

get the property measured and identified as such, he

would contend that without the documents to prove the

identity of the property, the Trial Court could not have

ventured to identify the property based on the self serving

documents produced by the respondent.

NC: 2024:KHC:9558

11. It is also his submission that the relief of

declaration is not sought by the respondent as such, the

suit is not maintainable and this aspect of the matter is

not considered by the Trial Court. He would also point out

that his suit could not have been dismissed as he has

acquired title over the property under the registered

partition deed executed by his mother and respondent has

admitted the title of his mother over entire Survey No.47

as such, the suit based on registered partition deed could

not have been dismissed and he would further point out

that he has executed a lease deed in respect of the

property allotted to his share and the lessee has been

examined and these factors would establish his possession

over the property.

12. It is also the contention of the learned counsel

for the appellant since identity of the suit property is not

established by the respondent, the finding that the

respondent is in possession of the suit property is also

erroneous.

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NC: 2024:KHC:9558

13. Learned senior counsel Sri G.L.Vishwanath

appearing for the respondent would contend that the sale

of the property under the registered sale deed dated

09.12.1991 is not in dispute. What is disputed is the

identity of the property. The appellant's mother having

sold the property in favour of the respondent has filed an

affidavit admitting the description of the property shown in

the sale deed with reference to the boundaries as well as

survey number as such, the Trial Court is justified in

holding that the respondent is in exclusive possession of

the property purchased by the respondent.

14. It is also his contention that since appellant's

mother has sold the property in the year 1991 under the

registered sale deed dated 09.12.1991, the appellant's

mother did not have the right to allot any portion of the

said property sold to the respondent, to the appellant, in

terms of the alleged partition deed. Since she did not

retain the title over the property which is sold to the

respondent, the partition deed even if executed, to the

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NC: 2024:KHC:9558

extent of the property sold is invalid. It is also his

contention that the description of the property with

reference to the boundary is clearly demonstrated from

the document produced by the plaintiff i.e., the registered

partition deed dated 03.06.2006. In the said partition

deed, it is stated that the northern boundary of the

property allotted to the share of the appellant is the

property sold by the appellant's mother. Thus, he would

contend that the appellant's mother has admitted the sale

and the said sale is in favour of the respondent. It is also

his submission that the identity of the property is

established on the basis of three more sale deeds namely

Ex.D24 to 26.

15. This Court has considered the contentions

raised at the Bar and perused the records.

16. After going through the records and considering

the submission made at the Bar, the following points arise

for consideration:-

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NC: 2024:KHC:9558

(i) Whether the Trial Court is justified in holding that the respondent has proved possession over the property in O.S. No.5611/2011;

and

(ii) Whether the appellant is able to establish that the Trial Court committed an error in granting a decree for injunction without there being a proof relating to the identification of the property.

17. The fact that the mother of the present

appellant sold the property to the respondent under

registered sale deed dated 09.12.1991 is not in dispute.

The extent of the property is not in dispute. What is

disputed is the location of the property in Survey No.47.

Though, there is no reference in the sale deed executed by

the mother to the survey number, in the subsequent

affidavit which she has filed, she has admitted that she

has sold the portion of the property in Survey No.47. The

said affidavit was confronted to PW1 who is none other

than her son-in-law. He has admitted the signature of his

mother-in-law in the said affidavit. The Trial Court has

placed reliance on the said affidavit to hold that the

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NC: 2024:KHC:9558

identity of the property is established as the vendor

herself has made a statement that she has sold the

portion of Survey No.47 in Srigandakavalu, Sunkadakatte

village. The reference to two villages namely

Srigandakavalu as well as Sunkadakatte is made in the

sale deed also. It is not the case of the appellant that the

property sold to respondent by the appellant's mother is

located in some other survey number. On reappreciation

of pleadings and evidence placed on record, the inevitable

inference is that the appellant is also admitting that the

mother of the appellant has sold a property to the

respondent in Sy.No.47. This being so, this Court is of the

view that the fact that portion of Sy.No.47 is sold under

the sale deed of 1991 is established.

18. Now the question is whether the respondent

has established the boundary as specified in the sale deed

which is reflected in the plaint in O.S. No.5611/2011. It is

relevant to note that three sale deeds at Exs.D24 and D26

executed by the mother of the plaintiff are marked on

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behalf of the defendants. These are the properties sold in

the Survey No.47 owned by the mother of the plaintiff.

The recital in the said sale deed particularly, the

description on the southern side would indicate that the

property sold in Survey No.47 is bounded on the southern

side by 20 feet road. Thus, the plaintiff cannot claim right

over the said portion which is sold to the purchaser under

Exs.D24 and D25 and also cannot claim any right over the

20 feet road which is located to the southern side of the

properties sold to the purchaser in Exs.D24 and D25.

19. At this juncture, it is necessary to refer to the

boundaries of the property said to have been allotted to

the share of the plaintiff, which is appearing in the alleged

partition deed. The said description reads as under"

"All that piece and parcel of old Sy.No.48, New No.47/1 B, situated at Srigandadakaval village, Yeshwanhapura Hobli, Bangalore North Taluk, now carrying under the Rajarajeswari Nagar Ward of the BBMP, measuring East to West 175 + 105/2, and North to South 140+120/2, bounded on the:

          East by           :      Road,
          West by           :      Road,
          North by          :      Portion of property in
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                           Sy. No.47/1B
        South by     :     T. Prakash's property."

20. On perusal of the boundaries, it is seen that the

property is bounded on the eastern and western side by a

road and on the northern side, the portion of the property

in Sy. No.47/1B and on the southern side, it is the

property of T.Prakash.

21. From the said description, it is evident that the

northern portion of the property allotted to the share of

the appellant was sold prior to the partition of the year

2006.

22. Learned senior counsel for the respondent has

also drawn the attention of the Court to the cross-

examination of PW-1. In the cross-examination, the

sketch produced by the defendant which is marked at

Exs.D3 and D4 are confronted. Referring to the features

in Ex.D3, the PW-1 has admitted that he is claiming right

over the property shown as BFON in the said sketch.

Thus, the said property described as BFON in the said

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NC: 2024:KHC:9558

sketch is located to the south of the property said to have

been purchased by the respondent. In the sale deed

executed in favour of the respondent, it is seen that on the

north the property sold, there is a 20 feet road and on the

south, the property of the vendor. In the sketch at Ex.D.3

which is admitted to be correct by PW1 in the cross

examination, the northern portion of respondent's

property is shown as 20 feet road. Thus, it can be

concluded that the property of the respondent is located to

the south of 20 feet road and to the north of the property

of the appellant.

23. It is also forthcoming that on the west, the

property is bounded by road and on the east, the property

is bounded by site No.2. It is also relevant to note site

No.2 is in the name of respondent's mother. With

reference to the photographs which are marked at Exs.P12

- 14, PW1 was cross-examined. In the cross-examination,

the PW1 has admitted that the structure shown in the

photograph as the structure pertaining to the factory

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which is referred to in Ex.D3 and Ex.D4, the survey

sketches. These documents are also confronted to PW-1

and he has admitted in the cross examination that he can

identify the location of the property of the respondent in

the said sketch.

24. The trial court has considered all these facts

and has discussed the boundaries of the properties

described in the partition deed, sale deeds executed by the

mother of the appellant in favour of the respondent and in

favour of other purchasers.

25. It is also relevant to note that on the basis of

the materials placed on record, it can be inferred that the

respondent is the first purchaser of the property from the

mother of the appellant.

26. It is also relevant to note that the person who

has sold the property i.e. the mother of the appellant has

supported the case of the purchaser by filing an affidavit

admitting the description of the property shown in the sale

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deed. If at all there was any dispute relating to the

identification of the property and if at all, the appellant is

to contend that the property mentioned in the sale deed is

not the property over which the respondent is now

claiming possession then, it was for the appellant to

examine the mother who was the best witness as she was

a party to the said transaction. The Trial Court has taken

note of the fact that the mother of the appellant has not

entered the witness box. This is one of the strong

circumstances relied upon by the Trial Court to hold that

the appellant has failed to establish his possession. If the

property sold by the appellant's mother was different from

the one claimed by the respondent, then the appellant

should have examined her mother to prove as to which

property is sold to the respondent.

27. The Trial Court has analysed the affidavit of

the appellant's mother and also the admission of the

appellant in the cross examination, particularly with

reference to the evidence in the cross examination where

the sketch at Exs.D.3 and 4 are confronted to the

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appellant. Based on these materials and also Ex.D.24 to

D.26, the Trial Court has concluded that the respondent is

in exclusive possession of the suit property.

28. Though, the learned counsel for the appellant

would urge that it was incumbent upon the respondent to

move an application for appointment of a Survey

Commissioner for identification of the property, this Court

is of the view that such an application would not have

served any purpose for the simple reason that admittedly

there is no approved layout plan and approved layout

sketch which would have formed the basis for the

Surveyor to measure and identify the property. Thus,

even if the Survey Commissioner was appointed, the

Survey Commissioner could not have located the property.

29. Learned counsel for the appellant has also

relied upon following three judgments of the Hon'ble Apex

Court. This Court has referred to the said judgments. The

Apex Court in Jharkhand State Housing Board vs.

Didar Singh And Another, (2019) 17 SCC 692 and

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Padhiyar Prahladji Chenaji (Deceased) Through

Legal Representatives Vs Maniben jagmalbhai

(Deceased) through Legal Representatives and

Others, (2022) 12 SCC 128 has held that in case the

identity of the property is not established, the suit for

injunction without appropriate relief of declaration of title

is not maintainable.

30. This Court having gone through the

aforementioned judgments is of the view that the principle

laid down in the aforementioned judgments are not

applicable to the present case as the identity of the

property is very much established. PW1 in his cross

examination has categorically admitted and identified the

property of the respondent.

31. Learned counsel for the appellant has also

relied upon the judgment of the Hon'ble Apex Court in

T.V. Ramakrishna Reddy vs. M. Mallappa and

Another, (2021) 13 SCC 135. The said judgment would

lay down a principle that unless the possession is

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established, the suit for injunction is not maintainable and

unless a relief of possession is sought, the suit is liable to

be dismissed. Again the principle laid down in the present

judgment does not come to the aid of the appellant as this

Court is agreeing with the view of the Trial Court which

has held that the respondent is in possession of the

property based on a registered sale deed. The Trial Court

has assigned valid reasons. The finding of the Trial Court

is based on acceptable evidence and this Court has given a

finding that the respondent has established his

possession. Accordingly, the aforementioned judgment

does not come to the aid of the appellant.

32. For the aforementioned reasons, this Court is of

the view that there are no grounds to interfere with the

well-reasoned judgment rendered by the Trial Court.

Accordingly, the Court has passed the following;