Karnataka High Court
Kum. Jayashree vs Sri K.N.Jagadeesh on 7 January, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
REGULAR FIRST APPEAL NO.1618/2010 (INJ)
BETWEEN:
1. KUM. JAYASHREE
D/O DR. ANNAMALAI
AGED ABOUT 32 YEARS
NO.213, SECOND MAIN ROAD,
RAMACHANDRAPURAM,
BANGALORE-560 021.
SINCE DEAD BY LRS
1(a) SRI ACHARYA ARAVIND
AGED ABOUT 41 YEARS
S/0 SRI B.JAYACHARYA
R/AT NO.804/A,
FIRST FLOOR, 9TH MAIN,
III-STAGE, 3RD BLOCK
BASAVESHWARANAGAR
BANGALORE-560 079.
1(b) ADITHYA A. CHARYA
AGED ABOUT 6 YEARS
S/0 SRI ACHARYA ARAVIND
MINOR AND NATURAL GUARDIAN
SRI ACHARYA ARAVIND
AND R/AT NO.804/A,
FIRST FLOOR, 9TH MAIN,
III-STAGE, 3RD BLOCK
2
BASAVESHWARANAGAR
BANGALORE-560 079.
(AMENDED VIDE COURT ORDER DATED 02.08.2012)
... APPELLANTS
(BY SRI VINOD REDDY V., ADVOCATE)
AND:
1. SRI K.N.JAGADEESH
S/O SRI NAGARAJ,
CHICKA GOLALRAHATTI,
LAKSHMIPURA POST,
DASANAPUARA HOBLI,
BANGALORE NORTH TALUK. ... RESPONDENT
(BY SRI C.N.KESHAVA MURTHY, ADVOCATE)
THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 24.07.2010
PASSED IN O.S.NO.7241/2006 ON THE FILE OF THE 17TH ADDL.
CIVIL JUDGE, BANGALORE (CCH 16), DISMISSING THE SUIT
FOR THE PERMANENT INJUNCTION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 16.12.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV JUDGMENT
Heard learned counsel for the appellants and learned
counsel for the respondent.
2. This appeal is filed challenging the judgment and
decree of dismissal of suit in O.S.No.7241/2006, wherein prayer
was sought for the relief of permanent injunction.
3. The factual matrix of the case of the original plaintiff
before the Trial Court while seeking the relief of permanent
injunction is that suit schedule property was purchased through
a registered sale deed dated 23.04.2004 from Sri Boranna and
his son Sri B. Kale Gowda through their Power of Attorney holder
Smt. Ambikavathi. It is contended that subsequent to purchase,
the plaintiff was in actual and physical possession of the suit
schedule property. The defendant/respondent tried to interfere
with peaceful possession of the appellant. It is also contended
that on 04.08.2006, the defendant trespassed the property
bearing Sy.No.16 and tried to do Bhoomi pooja and along with
the plaintiff, one person by name Narasimhamurthy also came.
Hence, filed the suit against the defendant for the relief of
permanent injunction, since Narasimhamurthy did not interfere
with the possession of plaintiff.
4. The defendant appeared and filed written statement
contending that plaintiff had already constructed the building in
Site No.16 and not vacant land. But, in the suit, wrongly
mentioned the same as vacant land. It is contended that on the
east of the land of plaintiff, Site No.17 is in existence which
belongs to Narasimhamurthy and also contend that plaintiff had
filed the suit against said Narasimhamurthy in
O.S.No.2434/2004 and no injunction was granted in favour of
the plaintiff and this defendant is owner of Site No.18 which is
not adjacent to the property of the plaintiff' and site of
Narasimhamurthy is on the east of the suit schedule property
and he never interfered with the possession of the plaintiff and a
false case has been registered. The defendant also claims that
he had purchased the property on 19.06.2006 and he has been
in possession of Site No.18. When he tried to put up compound
and shed in his property, a false case has been registered
against this defendant. Hence, prayed the Court to dismiss the
suit with exemplary cost.
5. The Trial Court having considered the pleadings of
the parties, framed the following issues:-
(1) Whether the plaintiff proves that as on the
date of filing of suit, the plaintiff is in
possession and enjoyment of the suit schedule
property?
(2) Whether the plaintiff proves that defendant
tried to interfere with possession of the
plaintiff?
(3) Whether the plaintiff is entitled for the relief as
sought in the suit for permanent injunction?
(4) What order or decree?
6. In order to prove her case, the plaintiff examined
herself as P.W.1 and got marked the documents as Exs.P1 to
P21. The defendant also examined himself as D.W.1 and got
marked the documents as Exs.D1 to D14. The Trial Court having
considered both oral and documentary evidence placed on
record, dismissed the suit. Being aggrieved by the said judgment
and decree of the Trial Court, present appeal is filed before this
Court.
7. In the appeal, learned counsel for the appellants
would contend that the plaintiff filed the suit for the relief of
permanent injunction in respect of vacant Site No.16 which is
morefully described in the schedule. Learned counsel would
contend that Commissioner was also appointed to conduct local
inspection of the property and the Commissioner submitted a
report along with a sketch. The Trial Court erroneously dismissed
the suit without properly considering the material available on
record and failed to take note of the document of registered sale
deed which is marked as Ex.P1 dated 23.04.2004 which is
purchased from the Power of Attorney holder of the original
owner Sri Boranna and his son Sri B. Kale Gowda and no dispute
with regard to the sale deed, boundaries and measurement. It is
also further contended that suit schedule property was part of
Sy.No.1/8 of Sunkadakatte Village and sites are formed in
Sy.No.1/8. The defendant pleaded that the property of the
plaintiff is not vacant and the plaintiff has already constructed a
house in the site purchased by her. The defendant had not filed
any objections either to the report or to the sketch of the Court
Commissioner. As per the report of the Commissioner, a house
had been constructed in Site No.15 measuring 40 ft. x 30 ft. The
western boundary of the suit property is Site No.15. The Court
Commissioner has stated in her report that Site No.16, which is
the suit schedule property is vacant. It is also specifically
mentioned in the report that Site No.16 was measured and
plaintiff has not put up any construction. Thus the said report
clearly disproves the contention of the defendant that the
property of the plaintiff is not vacant and she has already
constructed a house.
8. It is contended that the report of the Commissioner
was submitted to the Court below and it has become part of the
record. The Court Commissioner was not examined and his
report was not marked as an exhibit in the suit and the
defendant has not disputed report and the sketch of the
Commissioner. The Court below totally erred in overlooking the
report and the sketch of the Commissioner just because they
were not marked in evidence. Hence, impugned judgment and
decree is contrary to the material on record. The General Power
of Attorney executed by Sri Boranna and Sr B. Kale Gowda was
produced in evidence and marked as Ex.P2. The validity of Ex.P2
was not disputed by the defendant. It is further contended that
the defendant has been examined as D.W.1 and he categorically
admitted that Site No.16 belongs to plaintiff and also admitted
that suit schedule property is in possession of the plaintiff, but
suit site number is not at all concerned to him. Hence, it is clear
that Site No.16 belongs to plaintiff and she has been in
possession. This admission was not taken note of by the Trial
Court. The defendant claims that he is the owner of Site No.18
and he purchased the same from Sri Boranna and his son Sri B.
Kale Gowda. Site Nos.11 to 19 have been formed in the same
row and Site Nos.11 and 12 measures 40 ft. x 30 ft. and the
defendant has no legal right over Site No.16 which is the suit
schedule property.
9. Learned counsel for the appellants also in his
argument would vehemently contend that the Trial Court
dismissed the suit erroneously and also contend that present
Commissioner report is not correct and correct location of Site
Nos.15 and 16 have not been shown by the Commissioner and
the same is contrary to the documents. Learned counsel would
vehemently contend that the report given by the Commissioner
that all the sites are overlapping is not correct. The defendant,
in Paragraph No.3 of the written statement not disputed the case
of the plaintiff and also admitted in the cross-examination
regarding possession of the plaintiff and inspite of it, the Trial
Court committed an error and the report filed by the
Commissioner before this Court cannot be accepted.
10. Learned counsel for the respondent would
vehemently contend that the very allegation of the appellants is
disputed and in Paragraph No.4 of the plaint, the plaintiff
contends that she is in actual physical possession of the suit
schedule property. Even the recitals of the sale deed clearly
indicate that the plaintiff shall peacefully enjoy the possession of
the suit schedule property, but defendant is interfering with the
possession of the property. Learned counsel also would
vehemently contend that earlier, the very plaintiff had filed the
suit against the owner of Site No.17 and the same was
dismissed. But, not stated anything about filing of the suit
against the owner of Site No.17 and suppressed the material fact
before the Court. Learned counsel also would vehemently
contend that when the suit is filed against the owner of Site
No.17, the plaintiff ought not to have filed the suit against this
defendant, who is the owner of Site No.17. Learned counsel
would vehemently contend that report of the Commissioner is
very clear that construction is made to the extent of 50 feet in
Site No.17 and Site No.15 is used as parking area and none
made any claim to the extent of 9.7 ft. passage which is
adjacent to Site Nos.14 and 15. Learned counsel would contend
that owner of Site No.15 has not questioned the same.
11. Learned counsel for the respondent would further
contend that the very claim of the defendant is that he had
purchased Site No.18 measuring 30.31 ft. x 30 ft. and if any
injunction is granted in respect of Site No.18 in favour of the
plaintiff, it affects the right of owner of Site No.17 and the owner
of Site No.17 has already constructed a shed. Learned counsel
would vehemently contend that in respect of Site No.15 is
concerned, the respondent has created the document of gift
deed. The Trial Court made elaborate discussion while dismissing
the suit and it does not require any interference. Learned
counsel would vehemently contend that Commissioner has given
a detailed report and the same is very clear that owner of Site
No.15 has encroached portion of Site No.16 and hence, owner of
Site No.16 is making an attempt to encroach upon the property
of Site No.17 and failed to get any decree. Hence, filed the suit
against this defendant.
12. In reply to the arguments of learned counsel for the
respondent, learned counsel for the appellants would vehemently
contend that cross-examination of P.W.1 is very clear with
regard to the evidence and claim of the appellants. Learned
counsel for the respondent would vehemently contend that there
was road widening and portion of each sites were overlapped
and nothing is stated about widening of the said road. The
contention that construction is made in Site No.16 is erroneous.
Learned counsel would contend that sketch which is filed along
with the memo of instructions is not disputed. When such being
the case, the Commissioner report cannot be believed.
13. Having heard learned counsel for the appellants and
learned counsel for the respondent, the points that would arise
for consideration of this Court are:
(1) Whether the Trial Court committed an error in
dismissing the suit filed for the relief of
permanent injunction?
(2) What order?
Point No.(1)
14. Having heard learned counsel for the appellants and
learned counsel for the respondent and also considering the
material available on record, it is not in dispute that plaintiff filed
the suit for the relief of permanent injunction in respect of Site
No.16. It is the contention of the plaintiff that suit schedule
property was purchased vide sale deed dated 23.04.2004 from
General Power of Attorney holder of original owner of the land.
It is the contention that respondent/defendant tried to interfere
with the possession of the original appellant/plaintiff. It is not in
dispute that all the sites are formed in the very same survey
number and originally, the property belongs to Sri Boranna and
Sri B. Kale Gowda. It is also not in dispute that the very same
plaintiff had filed the suit against the owner of Site No.16
Narasimhamurthy and the said suit was dismissed. It is also not
in dispute that Site No.18 belongs to the defendant is on the
eastern side of Site No.17.
15. It is also important to note that when the plaintiff
was examined before the Trial Court, she categorically admits
that she had filed the suit earlier against the owner of Site No.17
i.e., one Narasimhamurthy in O.S.No.2434/2004 in respect of
the suit schedule property. It is also a categorical admission that
the said suit was dismissed on 27.09.2008 and it is also the
categorical admission of the plaintiff that towards the eastern
side of the suit schedule property, Site No.17 belonging to
Narasimhamurthy is situated. When a question was put to the
defendant that towards eastern side of Site No.17, site belonging
to this defendant is situated, but denied the same and reply was
given that she is not sure about the same. However, admits
that she has personally verified the site numbers of adjacent
sites of suit schedule property and she has not verified as to who
are the owners of those sites. But admits that she has obtained
sanctioned plan from City Municipal Corporation, Dasarahalli and
not obtained electricity power connection to suit schedule
property. A suggestion was also made that when the sanctioned
plan was obtained, she has put up ground floor and first floor on
the suit schedule property and the same was denied. It is
suggested that BESCOM has given electricity power supply to
suit schedule property under R.R.No.EH-1080 to 1082, but
witness volunteers to state that connection to Site No.18 belongs
to Smt. Ambikavathi and she does not remember whether she
has produced any document to show R.R.No.N6-EH-1080 to
1082 belongs to her mother's building.
16. It is elicited that boundaries of suit schedule property
are towards north by: 25 ft. road, south by: private property,
east by: Site No.17 and West by: Building No.15. But, she says
that she has not verified as to whom Site No.17 belongs to. She
also states that she has read the written statement filed by
Narasimhamurthy in O.S.No.2434/2004. But, admits in the
further cross-examination that Site No.17 belongs to
Narasimhamurthy and the same is situated on the eastern side
of Site No.16 and she is not sure of measurement of Site Nos.17
and 18 and also not sure about the measurement of all the 20
sites in the layout. She also states that she does not know the
measurement of Site No.14 and the distance between Site
Nos.14 and 16 is 40 ft. and admits that she has got the
Commissioner appointed for inspection of the site. It is
suggested that when she could not get the temporary injunction
in the suit filed against Narasimhamurthy, she has filed this false
case against the defendant.
17. This Court also has to consider the evidence of
D.W.1, since this Court has to re-appreciate both oral and
documentary evidence placed on record while considering the
statutory appeal. In his chief evidence, the defendant reiterated
the averments made in the written statement. In the cross-
examination, he admits that Site No.16 belongs to plaintiff and
also admits that suit schedule property is in possession of the
plaintiff. The appellant would also contend that when there is an
admission that suit schedule property is in possession of the
plaintiff, the Trial Court ought to have granted the relief against
the defendant. The defendant also categorically admits that suit
site number is not at all concerned to him. When such admission
is given, the Trial Court ought to have granted the relief of
permanent injunction.
18. Having reassessed both oral and documentary
evidence placed on record, it is very clear that there is an
admission on the part of P.W.1 that earlier also, the plaintiff had
filed a suit against owner of Site No.17 and the same was
dismissed on 27.09.2008. The plaintiff also categorically admits
that on the eastern side of the suit schedule property, Site No.17
which belongs to Narasimhamurthy is situated and also
suggestion was made to the witness that on the eastern side of
Site No.17, Site No.18 belonging to this defendant is not situated
and the same was denied and state that she is not sure about
the same. When such admission is given that earlier she had
filed the suit against the owner of the suit schedule property i.e.,
Site No.17 and the same was dismissed on 27.09.2008, the
present suit is filed in 2006 against the owner of Site No.18.
19. It is also important to note that when the suit was
dismissed against the owner of Site No.17 and the question of
owner of Site No.18 interfering with possession of Site No.16
does not arise. No doubt, the defendant also admits that Site
No.16 belongs to the plaintiff, but categorical defence is taken
that misidentifying the property i.e., Site No.15, the plaintiff also
constructed portion of Site No.16. Now, the Commissioner is
also appointed by this Court, since the Commissioner report
which was filed before the Trial Court was not marked and even
the Commissioner was not examined before the Trial Court.
Now, the Commissioner was directed to measure each of the
sites which is located in the very same road, since Site No.10
starts from the said road. The report of the Commissioner is very
clear that there is an encroachment and misidentification of Site
Nos.15 and 16 and Smt. Ambikavathi originally acquired site
measuring 40 ft. x 30 ft. and the Commissioner has stated that
she has encroached 20 ft. in Site No.16 and identified this
encroached area as Site No.15 and consequently this
misidentification left only 20 ft. in Site No.16, causing
overlapping claims and measurement inconsistencies.
20. This report of the Commissioner is opposed by the
learned counsel for the appellants contending that Commissioner
has falsely stated in her report that sale deed in respect of Site
No.10 was not provided. The sale deed in respect of Site No.10
discloses that Site No.10 measures east to west 38 ft. and north
to south 30 ft. covering two portions each measuring 19 ft. x 30
ft. It is nobody's case that Site No.15 is overlapping over Site
No.16, or the owner of Site No.15 has encroached upon Site
No.16 to the extent of 20 ft. Hence, there is no overlapping or
encroachment over Site No.16 as stated in the sketch and
report. But, it is very clear that plaintiff claims both Site Nos.15
and 16 belongs to them. The Court Commissioner has not shown
or stated correct location of Site No.15 as well as Site No.16. It
has to be noted that the Court Commissioner identified the
property i.e., Site Nos.10 to 12 all measuring 40 ft. x 30 ft. and
also taken note of measurement of Site No.14 i.e., is 50 ft. x 30
ft.
21. The counsel would contend that Site Nos.15 and 16
is not consistent with the measurement in the layout plan, but
there is no discrepancy regarding Site Nos.15 and 16. It is
important to note that Commissioner, who visited the spot,
found that the owner of Site No.14 is using more than his area of
measurement and photograph is also produced before the Court
to show that the owner of Site No.14 is having vacant space of
9.7 ft. in the said road and the same is utilized by the owner of
the property bearing Site No.14. It also important to note that
plaintiff did not dispute the same and the said area is used for
car parking. It appears that 9.7 ft. of land has remained
unclaimed and not countered by any sale deed. Even the original
layout plan which is produced along with the memo of
instructions by the learned counsel for the appellants also does
not disclose anything about the vacant space. But, in terms of
the original plan, the measurement of Site No.14 is east to west
30 ft. and north to south 40 ft. In terms of the sale deed, it is
50 ft. No doubt, in respect of Site Nos.15 and 16, measurement
is shown as 40 ft. x 30 ft. and so also in the original layout plan,
in respect of Site Nos.17 and 18 also, the same measurement is
shown and the measurement of Site No.18 which the defendant
had purchased is 30.31 ft. x 30 ft. and there is a shortfall.
22. It is important to note that when Site No.18 is not
adjacent to Site No.16, the question of owner of Site No.18
interfering with the owner of Site No.16 is nothing but an
imagination. If there exists any grievance regarding interference,
the same must be within the owners of Site Nos.16 and 17.
Admittedly, the plaintiff, who claims to be the owner of Site
No.16 had filed the suit against owner of Site No.17 i.e.,
Narasimhamurthy and the same was dismissed and it has
attained finality. When the suit is dismissed against the
neighboring owner of Site No.17, it is nothing but an imagination
that owner of Site No.18 is interfering with the possession of
plaintiff in respect of Site No.16.
23. The Trial Court has taken note of all these material
into consideration and there must be an interference while
granting the relief of permanent injunction. Even if defendant
admits that plaintiff is in possession of Site No.16, the same
cannot be a ground to grant the relief against the defendant,
who is the owner of Site No.18. Even the owner of Site No.18
i.e., the defendant admits that he is nowhere concerned with
Site No.16 and the same cannot be a ground to grant the relief
against defendant No.18. The property of defendant No.18 is not
adjacent to the property of plaintiff and the plaintiff is also
unsuccessful, when the suit was filed against owner of Site
No.18. Hence, the question of granting the relief against
defendant, who is owner of defendant No.18 does not arise and
though an attempt is made alleging that defendant No.18 tried
to interfere with the possession of Site No.16, but categorical
submission is made in the plaint itself that said
Narasimhamurthy did not interfere with possession of Site
No.16. Thereafter, suit is also filed against the adjacent owner of
Site No.17 and the plaintiff was unsuccessful. When such being
the material available before the Court, unless and until
interference is proved by the plaintiff that defendant, who is the
owner of defendant No.18 interfered with his possession,
question of granting the relief of permanent injunction does not
arise.
24. It is also important to note that suit is filed for the
relief of bare injunction and while granting the relief of bare
injunction, two important ingredients are to be looked into. One
is that, as on the date of filing the suit, the plaintiff must be in
possession of the property and the very possession itself is not
enough and there must be an interference by the defendant and
if no interference is proved, question of granting the relief of
permanent injunction does not arise. When issue No.2 has not
been proved, the question of granting the relief of permanent
injunction against the defendant, who is the owner of Site No.18
does not arise and the plaintiff is not claiming any right in
respect of Site No.18 and the defendant has stated that all the
sites are formed in the very same survey number and unless the
very identity of the property is not proved, the very contention
of the defendant also that already constructed the building in
Site No.16 cannot be accepted. But the Commissioner, who was
appointed by this Court submits that portion of Site No.16 was
constructed while constructing Site No.15 and also produced the
sketch before the Court. When the Commissioner report is filed
and the same disclose that in between Site Nos.14 and 15, there
is a 9.7 ft. vacant space to north to south 30 ft. and east to west
50 ft. is shown in the sketch. The sale deed also shows the
measurement of Site No.14 as north to south 30 ft. and east to
west 50 ft. Site No.15 layout plan shows about 40 ft. x 30 ft. and
in between there is a passage of 9.7 ft. which is unclaimed and
portion of Site Nos.15 and 16 are constructed while constructing
the building and it is specifically shown that Site No.17 is in
existence on the western side of Site No.18.
25. When such material is also available before the Court
and when the plaintiff is unsuccessful while seeking relief of
permanent injunction in respect of Site No.17, the question of
granting injunction against the defendant in respect of Site
No.18 does not arise, since Site No.18 which belongs to
defendant is not adjacent to Site No.16 and in between, there is
Site No.17 and the plaintiff was unsuccessful, when the relief is
sought for permanent injunction in respect of Site No.17 which is
on the eastern side of Site No.18. Hence, I do not find any logic
in granting the relief of permanent injunction against the
defendant, who is the owner of Site No.18 and the said site is
not adjacent to suit schedule property. Therefore, I do not find
any merit in the appeal to reverse the findings of the Trial Court.
Accordingly, I answer point No.(1) in the 'negative'.
Point No.(2)
26. In view of the discussion made above, I pass the
following:
ORDER
The regular first appeal is dismissed.
Sd/-
(H.P. SANDESH)
JUDGE
ST
