Karnataka High Court
Smt. N. Vijayalakshmi vs Sri. Chandrashekar on 3 September, 2024
Author: V Srishananda
Bench: V Srishananda
-1-
NC: 2024:KHC:36186
RFA No. 1026 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL NO. 1026 OF 2015 (INJ)
BETWEEN:
SMT. N. VIJAYALAKSHMI,
D/O LATE P.NARAYANARAO,
R/AT, C/O B.GOPALAKRISHNA,
AGED ABOUT 54 YEARS,
NO.349/10TH MAIN, 50 FEET ROAD,
BSK IST STAGE, BANGALORE-560050.
...APPELLANT
(BY SRI SHANKARAIAH B, ADVOCATE (PH) )
AND:
SRI. CHANDRASHEKAR, AGE MAJOR,
S/O, HANUMANTHAPPA,
R/AT 2ND ROAD, MARUTHI NAGAR,
SONNENAHALLI, 1ST STAGE,
BANGALORE-560056.
Digitally ...RESPONDENT
signed by C (RESPONDENT SERVED AND UNREPRESENTED)
HONNUR SAB
Location: THIS RFA IS FILED UNDER SECTION 96 OF CPC.,
HIGH COURT AGAINST THE JUDGMENT AND DECREE DATED 27.02.2015
OF PASSED IN OS.NO.26647/2012 ON THE FILE OF THE XXVIII
KARNATAKA ADDL. CITY CIVIL JUDGE, AT MAYOHAL UNIT BANGALORE,
DISMISSING THE SUIT FOR PERMANENT INJUNCTION AND
POSSESSION.
THIS APPEAL COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
-2-
NC: 2024:KHC:36186
RFA No. 1026 of 2015
ORAL JUDGMENT
1. Heard Sri Shankaraiah B., learned counsel for the
appellant. Respondent though served remained absent.
2. Facts which are necessary for disposal of the
appeal are as under:
Unsuccessful plaintiff is the appellant. Plaintiff namely
N. Vijayalakshmi filed a suit for bare injunction contending
that defendant Chandrashekhar is interfering with the
peaceful possession and enjoyment of the immovable
property with the residential site bearing No.54, new
No.9/54, situated in Survey No.54, 1st Stage, Sonnenahalli,
Maruti Nagar, Bangalore-560056, measuring, east to
west:40 feet and north to south:30 feet, bounded on east by
road, west by Site No.35, North by Site No.53 and South by
Site No.55, which was morefully described in the plaint
schedule.
Plaintiff further contended that the brother of the
plaintiff by name Panduranga Rao was granted the hakku
patra in respect of the said property and name of
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Panduranga Rao was transferred in the revenue records and
khata of the said property is also registered in the name of
the said Panduranga Rao in a village Panchayat, Sulikere.
The said Panduranga Rao was a bachelor and he bequeathed
the suit property in favour of the plaintiff through the Will
dated 05.02.2007 and after the death of Panduranga Rao on
25.08.2010, it is the plaintiff who became the owner of the
property and she produced the Will before the BBMP and got
her name mutated in the BBMP records and she is paying the
taxes to the concerned authority. When the matter stood
thus, when the plaintiff visited the suit property on
15.08.2012 with an intention to put up the compound wall
on the suit property, she noticed that a compound wall was
already put up by the defendant who has no right, title or
interest over the suit property and therefore, filed the suit.
3. Pursuant to the suit summons, defendant entered
appearance and filed detailed written statement denying the
plaint averments in toto. It is also contended that the
plaintiff has suppressed the true facts and it is the defendant
who has been granted the said site by Government of
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Karnataka on 28th Independence Day for the people of low
income group. Government allotted site No.54 in Block No.1
and issued hakku patra on 11.01.1981.
4. Accordingly, thereafter the defendant put up a
hut in the suit property and started residing in the said hut
and thereafter put up the foundation in three squares in the
said site and at that juncture, plaintiff made the false claim
and in fact created the problems for the defendant and
therefore sought for dismissal of the suit.
5. The Learned trial judge in view of the rival
contentions, raised the following issues:
"1) Whether plaintiff proves that she was in
lawful possession and enjoyment of the suit
schedule property, as on the date of the
suit?
2) Whether plaintiff proves alleged
interference?
3) Whether plaintiff is entitled for relief of
permanent injunction?
4) What order or decree?"
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6. In order to prove his case, the plaintiff got herself
examined as P.W.1 and placed on record 12 documents
which were exhibited and marked as Exs.P1 to P12
comprising of original hakku patra said to have been issued
by the Government of Karnataka in favour of Panduranga
Rao brother of the plaintiff, original RTC, Will dated
05.02.2007, death certificate of Panduranga Rao, BBMP
receipt, Form No.3, Tax paid receipts, encumbrance
certificates, license and receipt.
7. As against the evidence placed on record by the
plaintiff, defendant got examined himself as D.W.1 and
placed on record 5 documents which were executed and
marked as Ex.D1 to D5 namely Form No.10, Khata extract,
residential certificate and receipts.
8. On conclusion of recording of evidence, the
learned trial judge heard the parties in detail and after
considering the oral and documentary evidence placed on
record in cumulative manner, dismissed the suit of the
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plaintiff holding that plaintiff is not in lawful possession of the
property and there was no interference by the defendant.
9. Being aggrieved by the same, the unsuccessful
plaintiff has preferred the present appeal.
10. Sri Shankaraiah, learned counsel for the appellant
reiterating the grounds urged in the appeal memorandum
vehemently contended that the defendant has created the
documents and there cannot be two allotments in respect of
site No.54 by the Government of Karnataka by granting
hakku patra to the brother of the plaintiff and defendant and
therefore, defendant has encroached upon the property of
her brother Panduranga Rao and sought for allowing the
appeal.
11. He also pointed out that the learned trial judge
has misdirected himself in not properly appreciating the
material evidence placed on record in as much as the hakku
patra granted in favour of the plaintiff is not cancelled by the
Government.
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12. Therefore, after the death of Panduranga Rao, it
is the present plaintiff who is the successor in interest by
virtue of the Will executed by Panduranga Rao on
05.02.2007 who is the bachelor and therefore, the finding
recorded by the trial Court that the plaintiff has failed to
make out a case of lawful possession and interference by the
defendant is perverse in nature and sought for allowing the
appeal.
13. In the light of the arguments put forth on behalf
of the appellant, this Court perused the materials on record
meticulously.
14. On such perusal of the materials on record, it is
seen that there is a claim and rival claim in respect of one
and the same property. Defendant is also given the hakku
patra and he has also got Form No.10 marked as Ex.D1.
Khata extract also shows the name of the defendant which is
marked at Ex.D2, residential certificate issued by the
Governmental agency which is marked at Ex.D3 shows that
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defendant had put up the hut and he was residing in the suit
property.
15. In paragraph No.9 of the impugned judgment,
learned trial judge has discussed in detail as to the various
admissions that has been obtained in the examination and
cross examination of the parties. PW-1 in her cross-
examination clearly admits that it is the DW-1 the defendant
who has put up the foundation to the extent of 3 squares.
Plaint averments also go to show that when the plaintiff has
visited the property for the purpose of putting up the
compound wall she has noticed that defendant had already
put-up three square foundation on the property.
16. When there is a serious dispute to the very title of
the suit property, suit for bare injunction is not maintainable.
Same is the finding recorded by the learned trial judge.
17. If at all the plaintiff is seeking right over the very
same property on the basis of the hakku patra issued by the
Government of Karnataka to the Panduranga Rao who is the
brother of the plaintiff vide Ex.P1, it is for the plaintiff to file
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appropriate suit seeking declaration in respect of the title
over the property in accordance with law.
18. Reserving such right to the plaintiff, this Court
does not find any legal infirmity or perversity so as to
interfere with the impugned judgment.
19. Accordingly, this Court passes the following:
ORDER
(i) Appeal is merit less and is accordingly
dismissed.
(ii) No order as to costs.
(iii) If any separate suit is filed by the plaintiff
seeking declaration of the title, the parties
are at liberty to canvass respective
contentions uninfluenced by the observations
made by this Court or the trial Court in the
impugned judgment.
Sd/-
(V SRISHANANDA)
JUDGE
