Karnataka High Court
Smt Tasneem Begum vs Smt Manjula on 25 October, 2024
Author: K.Natarajan
Bench: K.Natarajan
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RFA No. 118 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
REGULAR FIRST APPEAL NO. 118 OF 2014 (INJ-)
BETWEEN:
SMT. TASNEEM BEGUM
W/O MOHAMMED ALI,
AGED ABOUT 47 YEARS,
R/A NO.341, EWS, KENGERI SATELITE TOWN,
BANGALORE - 560 060.
...APPELLANT
(BY SRI. JAVED S., ADVOCATE FOR
SRI. PRITHVI RAJ B N., ADVOCATE)
AND:
1. SMT. MANJULA
D/O RAMA REDDY,
AGED ABOUT 48 YEARS,
R/A SHETTIHALLI VILLAGE,
KASABA HOBLI, ANEKAL TALUK,
BANGALORE DISTRICT - 562 106.
2. MURALI
Digitally signed by S/O RAMA REDDY,
VEDAVATHI A K
MAJOR, R/AT NO.1/3,
Location: High
Court of Karnataka 16TH CROSS, LAKKASANDRA,
BANGALORE - 560 030.
...RESPONDENTS
(BY SRI. P. KRISHNAPPA, ADVOCATE FOR R1 & R2)
THIS RFA IS FILED UNDER SEC.96 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 16.2.2013
PASSED IN O.S.NO.9113/1998 ON THE FILE OF THE X
ADDL. CITY CIVIL & SESSIONS JUDGE, I/C VII ADDL. CITY
CIVIL & SESSIONS JUDGE, DISMISSING THE SUIT FOR
PERMANENT INJUNCTION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RFA No. 118 of 2014
CORAM: HON'BLE MR JUSTICE K.NATARAJAN
ORAL JUDGMENT
1. This appeal is filed by the appellant/plaintiff
under Section 96 of CPC for setting aside the judgment and
decree for having dismissed the suit of the plaintiff in
O.S.No.9113/1998 dated 16.2.2013 by X Additional City
Civil and Sessions Judge I/c. VII Additional City Civil
Sessions Judge, Bengaluru.
2. Heard the arguments of learned counsel for the
appellant and learned counsel for the respondents.
3. The ranks of the parties before the Trial Court is
retained for the sake of convenience.
4. The case of the plaintiff before the Trial Court is
that the plaintiff is the owner in the possession of the
property bearing No.50/2016 carved out in Sy.No.4/2
situated at 17th Cross, Lakkasandra, Bangalore, herein
after referred to as 'schedule property'. Having purchased
the same from one Smt.Muqbul Jan, Miss. Zareen Taj and
Amjad through their GPA holder Riyaz on 24.6.1996. It is
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further contended that, originally the schedule property
was part of the Sy.No.4/2 which was purchased by one
K.Shankar along with other properties from its owner. He
formed the sites and out of the said sites, the site No.50
was purchased by one Mohammed Hussain from the said
K.Shankar under two different sale deeds dated 25.4.1966
and 23.5.1966 and in pursuance to the said sale deed
Mohammed Hussain entered into possession and upon
amalgamation of schedule property to the Corporation and
the corporation has assigned new No.50/16 to the schedule
site and after death of Mohammed Hussain, his wife and
children have sold to the plaintiff, through their GPA
holder. It is further contended that after the purchase, the
plaintiff is in possession and enjoyment of the schedule
property as absolute owner and she has spent huge
amount and obtained the construction permission and
sanction plan. The defendants have no concern, right over
the suit schedule property started causing illegal
interference and attempted to demolish the existing
building and compound wall. However, the same was
resisted by the plaintiff by filing complaint. Accordingly,
the suit came to be filed.
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5. The defendants appeared through their counsel
and filed written statement by denying the averments
made in the plaintiff in the plaint as false and also denying
the alleged ownerships and possession of the property and
contended that the suit schedule property said to be
purchased through Riyas the GPA holder of Mohammed
Hussain, which is part of survey No.4/2, Lakkasandra out
of these sites formed by the previous owner, K.Shankar
are all denied as false. By denying all the averments made
in the plaint averments, the defendants contended that the
defendants is in possession and enjoyment of the property
which was formed in sy.no.4/3 measuring 30x40 feet
situated in old 5th main and new 4th main Lakksandra which
was formed after taking over the said area by the
Corporation and assigned new number as 52-8/1.
Thereafter, Shankar sold the site No.52 to one Abdul
Rahem under the sale deed dated 16.04.1960 and put him
in possession and later the said Abdul Rahem sold the said
property to Munishettyswamy under the sale deed dated
15.4.1961 and he put in possession later. Later
Munishettyswamy sold the schedule property to the
defendant No.1 and her brother under sale deed dated
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21.5.1973. Since then, the defendant are in physical
possession and enjoyment of the property. It is further
contended that in the year 1980 one Syed Yakhoob
occupied the existing shedule unauthorisedly. Therefore,
the defendant have filed suit in O.S.No.8554/1980 before
the Civil Court for declaration and injunction and the said
suit was decreed in favour of the defendants and the said
Syed Yakhoob filed RFA before the high court in RFA
No.279/1990 which also came to be dismissed. It is
contended that the said person who was suffered the
decree was set up the plaintiff and filed the suit against the
defendant by showing the wrong boundaries and wrong
numbers and in fact the said property bearing No.52/8-1
situated in Sy.No.4/3 and that plaintiff is not in lawful
possession and enjoyment of the schedule property.
Hence, prayed for dismissing the appeal.
6. Based upon the pleadings the Trial Court framed
4 issues as under,
1. Whether plaintiff proves that she is in possession
of the
suit schedule property?
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2. Whether plaintiff proves the alleged obstruction?
3. Whether plaintiff in entitled for any relief?
4. What decree or order?
7. In order to prove the contention of the plaintiff,
the plaintiff was examined as PW1 and got marked 23
documents and on behalf of the defendant, the defendant
was examined as DW1 and got marked 28 documents.
After hearing the arguments, the Trial Court answered
issue Nos.1 to 3 in the negative. Ultimately dismissed the
suit of the plaintiff. Being aggrieved with the same, the
appellant is before this court.
8. Learned counsel for the appellant has seriously
contended that the Trial Court committed error in not
discussing the documents and evidence of the plaintiff,
which is adduced before the court. Only relying upon the
written statement and documents of the defendant, the
Trial Court dismissed the suit which is not correct. Also
contended the sale deed of the plaintiff is for the year
1996, prior to that of the vendor. The vendor had
purchased the same in the year 1966 and the sale deed of
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the defendant is 1973. The vendors of the defendant
which is much later than the plaintiffs vendor sale deed
and the hospitalisation is not considered by the Trial Court
and blindly dismissed the suit of the plaintiff, which is not
correct. Hence, prayed for allowing the appeal.
9. Per contra, learned counsel appearing for the
respondents has supported the judgment of the Trial Court
and contended that the boundaries mentioned in the sale
deed of the vendor of the plaintiff at Ex.P.2 and Ex.P.3 are
altogether different from the boundaries mentioned in
Ex.P.1. The boundaries mentioned in the Ex.P.1 is nothing
but the boundaries of the defendants property where the
defendant already obtained the decree by filing the suit for
declaration and injunction against the alleged tenant
belonging to Mohammed Hussain who is the predecessor
of the plaintiff in title and the appeal was also filed by the
Syed Yakhoob pending before the High Court. The said
property was sold to the plaintiff in the year 1996 and
therefore it is contended that the documents of the
defendant clearly reveals that on the boundary of the
vendors and the boundary of the defendants sale deed are
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one and the same, which is situated in Sy.No.4/3 and
plaintiffs property comes under the Sy.No.4/2 which is
altogether different property. He also contended that the
contention of the amalgamation of the two sites by the
plaintiff in respect of '30x30' and '30x10' feet are two
different properties, which is not adjacent to each other as
per the boundaries. Such being the case, there is no case
made out by the plaintiff for showing the lawful possession
and enjoyment of schedule property. Therefore, the Trial
Court rightly dismissed the suit. Hence, prayed for
dismissing the appeal. He also contended that even
evidence of DW1 defendant has not been cross examined
by the plaintiff counsel in the Trial Court and the evidence
and documents of the defendants are not contraverted or
impeached by the plaintiff. Such being the case, question
of allowing the appeal does not arises.
10. In reply, learned counsel for the appellant has
contended that if at all the cross examination is not done
by the plaintiff counsel in respect of DW1, the matter can
be remanded back for fresh consideration. Hence, prayed
for allowing the appeal.
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11. Having heard the arguments, perused the
records, the point that arises for my considerations are,
(i) Whether the plaintiff proves that
she is in lawful possession and
enjoyment of the suit schedule
property bearing No.50/16 carved out
of sy.no.4/2 of Lakkasandra?
(ii) Whether the plaintiff proves, the
defendant is interfering with his
peaceful possession and enjoyment of
the property?
(iii) Whether the judgment of
dismissal of the suit by the Trial Court
calls for any interference?
12. On perusal of the record, it is not in dispute that
the land in Sy.Nos.4/2 and 4/3 of Lakksandra belongs to
one K.Shankar and he is said to have formed the sites.
The vendor of the plaintiffs said to be purchased two sites
under Ex.P.2 and Ex.P.3 in the year 1966 i.e., on
25.4.1966 measuring '30x30' feet and in Ex.P.3 measuring
'30x10' feet on 23.5.1966. On perusal of the both the sale
deeds, there is no site number mentioned, either as
number 50 or any other number in the first sale deeds . In
Ex.P.3 there is site number mentioned as 50 lying in
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Sy.No.4/2 measuring '30x10' feet and there is no site
number mentioned in Ex.P.2 in respect of '30x30' feet,
carved in Sy.No.4/2. The boundaries in Ex.P.2 and 3
mentioned are as below;
"a. Ex.P1- Registered Sale Deed dated
24.05.1996 executed by wife and
children of Mohammed Hussain duly
rept., by their GPA Holder Riyaz in
faour of the Plaintiff in respect of the
land site No.50 comprised in Sy.
No.4/2 Corporation No.50/16 situate
at 17th Cross Road, Lakkasanra
Extension measuring East to West 30
feet and North to South 40 feet and
the same is bounded on as follows:
East by : Road
West by : Property No.51,
North by : Road,
South by : Afzar Building.
b. Ex.P-2 is the Registered Sale Deed
dated 25.04.1966 executed by
K.Shankar in favour of Mohammed
Hussain in respect of the site lying
within Sy.No.4/2 measuring East to
West 30 feet and North to South 30
feet and the same is bounded on :
East by : 20 feet Road
West by : K. Shankar Property
North by : K. Shankar Property
South by : K. Shankar Property
c. Ex.P-3 is the Registered Sale Deed
dated 23.05.1966 executed by
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K.Shankar in favour of Mohammed
Hussain in respect of the site bearing
50 lying within Sy.No.4/2 measuring
East to West 30 feet and North to
South 10 feet and the same is
bounded on :
East by : 20 feet Road
West by : Site belonging to
shettappa
North by : Road
South by : Road."
13. Whereas the contention of the plaintiff that
these two sites were amalgamated by the vendors of the
plaintiff and subsequently it was sold to the plaintiff in the
year 1996 under Ex.P.1. The boundary shown in Ex.P.1 is
shown as site No.50 comprised in Sy.No.4/2 corporation
No.50/16, 17th cross Lakkasandra measuring '30x40' feet
bounded by east by road west by property no.51, north by
road, south by Afzar building. The learned counsel for the
respondent brought to the notice of this court that the
boundaries mentioned in Ex.P.1 and boundaries mentioned
in Ex.P.2 and Ex.P.3 were altogether different from the
boundaries mentioned in the Ex.P.1. On careful perusal of
the boundaries in Ex.P.2 and Ex.P.3 east by road and west
by K Shankars property bounded north and south by
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K.Shankar's property and in Ex.P.3 west by site belonging
to shettappa, North by road and South by road. it
appears, the site no.50 it is only 10 feet is surrounded by 3
sides road and one side i.e., west by site belonging to
Shettappa. There is no site of Mohammed Hussain
adjacent to the site No.50 measuring '10x30' feet as per
the schedule in Ex.P.3. Whereas even on perusal of Ex.P.2
in the schedule, nowhere the property of the plaintiff
vendor Mohammed Hussain is mentioned either 10 feet or
30 feet in any of these two boundaries in Ex.P.2 and
Ex.P3, whereas the Shettappa's property is mentioned in
Ex.P.3. On the other hand, the contention of the
defendant is that the property in site No.52 carved in
Sy.No.4/3 have been purchased from the K.Shankar by
one Abdul Rahem and said Abdul Rahem sold the property
to one Munishettyswamy. The Ex.D2 is the sale deed of
the Abdul Rehman dated 16.4.1960 which is shown as site
No.52 in sy.no.4/3 east west 30 feet and north to south 40
feet situated at Lakkasandra extension, east by 25, west
north by Shankar's property south by Government Oni
(water channel) Ex.P.3 the sale deed where Abdul Rahem
said to be sold the property to one Munishettyswamy on
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15.4.1961 whether the said boundary in Ex.D2 and Ex.D3
matches each other. The defendant said to be purchased
the property from this Munishettyswamy on 21.5.1973
which is also mentioned in Sy.No.4/3, site no.52,
measuring '30x40' feet and the boundaries in Ex.D2 to 4
are all one and the same and there is changes in the
boundary. Learned counsel for the respondent has
produced Ex.D1, the survey sketch prepared by the Survey
Commissioner, of office of the direction of survey
settlement, where the Sy.No.4/2 is situated adjacent to the
Sy.No.4/3 of which clearly shows Sy.No.3 is different from
Sy.No.4/2, where the Sy.No.4/2 is said to be claimed by
the plaintiff, whereas the Sy.No.4/3 said to be claimed by
the respondent in his written statement. Apart from that
the defendant also produced and contended that one Syed
Yakhoob to interfere in the possession of the defendant
property. Therefore, the suit for declaration and injunction
came to be filed in O.S.No.8554/1980 and said Syed
Yakhoob has taken contention, he is tenant under the
Mohammed Hussain who is the original vendor of the
plaintiff, where through Mohammed Hussain legal heirs,
the plaintiff claims property. The said suit came to be
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dismissed on 27.1.1990. Subsequently, the said Syed
Yakhoob filed the first appeal before this court in RFA
no.279/1990 and it came to be dismissed on 4.1.1999 by
confirming the declaration and injunction granted by the
Trial Court in favour of the defendant.
14. In intervening period, during the pendency of
the RFA No.279/1990 the said plaintiff said to be
purchased the property through the legal heirs of the
Mohammed Hussain. Though the plaintiff was not the
party to the said suit, but one Syed Yakhoob who claimed
to be tenant under the Mohammed Hussain who fought in
dispute and suffered the decree in both the court and the
said judgment was attained finality. Even otherwise, the
defendants contention in the written statement is that the
suit property is nothing but the property of the defendant
which was wrongly claimed. In fact, the property of the
plaintiff as vendor property was carved out of Sy.No.4/2
which is site no.50, whereas the site of the defendant and
the boundary is carved out of 4/3 and site no.52 when the
boundaries on Ex.D2 to D4 are matching, whereas the
boundaries of the Ex.P.1 to 3 is not matching each other
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and it also came to know that the boundaries in Ex.P.2 and
3 measuring 30 and '30x10' feet altogether different
properties which is not at all situated adjacent to each
other in order to amalgamate the same by the vendors of
the plaintiff. That apart, when the defendant is disputing
the title of the plaintiff in written statement claiming
through decree and sale deed, there is cloud over the title
of the plaintiff. The plaintiff ought to have converted suit
into declaration and injunction. Therefore, bare injunction
is not maintainable in view of the judgment of Hon'ble
Supreme Court in case of Anathula Sudhakar vs.
P.Buchi Reddy (Dead) By L.Rs & Ors. reported in 2008
AIR SCW 2692. That apart, the evidence of DW1 and the
documents were not at all impeached and contraverted by
the plaintiff counsel in the Trial Court. The evidence and
the documents of the defendant is in tact which was not
impeached. Such being the case, the suit for bare
injunction is not maintainable. Even otherwise, the
plaintiff failed to prove his lawful possession and
enjoyment of the suit schedule property. Such being the
case, the question of interference by the defendant in the
suit schedule property of the plaintiff does not arises.
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Therefore, I am of the considered view, I have answered
point Nos.1 and 2 against the plaintiff and in favour of the
defendant.
15. The Trial Court considering all evidence on
record, rightly dismissed the suit of the plaintiff. Hence,
there is no error or appreciation in the order, in order to
interfere by this court. The request of the appellant cannot
be allowed for remanding the matter back to the Trial
Court for the facts and circumstances of the case. The
appeal is devoid of merits, hence requires to be dismissed.
Accordingly, this appeal is hereby dismissed.
No order as to cost
Sd/-
(K.NATARAJAN)
JUDGE
AKV
CT:SK
