Karnataka High Court
Sri V Krishna vs Sri Rangaswamy on 11 July, 2025
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11th DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR FIRST APPEAL NO. 458 OF 2023
C/W
REGULAR FIRST APPEAL NO. 168 OF 2017 (INJ)
REGULAR FIRST APPEAL NO. 169 OF 2017 (INJ)
IN RFA NO. 458/2023
BETWEEN:
1. SRI. V. KRISHNA
SON OF LATE VENKATANARASIMHAIAH
AGED ABOUT 57 YEARS
RESIDING AT NO 143/1,
NAYANDAHALLI, MYSORE ROAD
BANGALURU-560039.
...APPELLANT
(BY SRI. K.V. NARASIMHAN, A/W
SRI. G. PANDURANGA, ADVOCATES)
AND:
1. SRI. RANGASWAMY
S/O SHIVA SHETTY
AGED ABOUT 70 YEARS
RESIDING AT NO 16, 2ND CROSS
ANUBHAV NAGAR, NAGARABHAVI
BANGALURU-560072.
2. SRI. S KRISHNAPPA
SON OF SRI. M SIDDAPPA
SINCE DEAD BY HIS LRS
2
2(A) SMT. SAROJAMMA
W/O LATE S. KRISHNAPPA
AGED ABOUT 68 YEARS
2(B) SRI. PURUSHOTHAM .K
S/O LATE S. KRISHNAPPA
AGED ABOUT 46 YEARS
2(C) SMT. PUSHPALATHA .K
D/O LATE S. KRISHNAPPA
AGED ABOUT 48 YEARS
2(D) SMT. DEEPARANI .K
D/O LATE S. KRISHNAPPA
AGED ABOUT 41 YEARS
ALL ARE RESIDING AT
NO.24, 4TH CROSS
SIDDALIGESHWARA NILAYA
BASAVESHWARA LAYOUT
NAGASHETTY HALLI
BANGALORE-560 060.
3. SRI. H. RADHAKRISHNA
SON OF HANUMANTHARAYAPPA
AGED ABOUT 64 YEARS
RESIDING AT NO 18/1
9TH MAIN, 4TH A CROSS
K N EXTENSION, YESHWANTHAPURA
BANGALURU-560022.
[VIDE COURT ORDER CAUSE TITLE AMENDED]
...RESPONDENTS
(BY SRI. H.T. VASANTH KUMAR, ADVOCATE FOR R1, R2(A-D)
AND R3)
THIS RFA FILED IS UNDER SECTION 96 R/W ORDER 41 RULE
1 OF CPC., AGAINST THE JUDGEMENT AND DECREE DATED
12.01.2023 IN OS NO.2416/2014 ON THE FILE OF THE V
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ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU.
DISMISSING THE SUIT FOR PERMANENT INJUNCTION.
IN RFA NO. 168/2017
BETWEEN:
1. SRI KRISHNA V
SON OF LATE VENKATANARASIMHAIAH
AGED ABOUT 48 YEARS,
RESIDING AT NO.61/1
1ST CROSS, CHANDRA LAYOUT
BANGALORE-560 004.
...APPELLANT
(BY SRI. K.V. NARASIMHAN, A/W
SRI. G. PANDURANGA, ADVOCATES)
AND:
1. S. KRISHNAPPA
SON OF SRI. M SIDDAPPA
SINCE DEAD BY HIS LRS
1(A) SMT. SAROJAMMA
W/O LATE S. KRISHNAPPA
AGED ABOUT 68 YEARS
1(B) SRI. PURUSHOTHAM .K
S/O LATE S. KRISHNAPPA
AGED ABOUT 46 YEARS
1(C) SMT. PUSHPALATHA .K
D/O LATE S. KRISHNAPPA
AGED ABOUT 48 YEARS
1(D) SMT. DEEPARANI .K
D/O LATE S. KRISHNAPPA
AGED ABOUT 41 YEARS
ALL ARE RESIDING AT
4
SIDDALIGESHWARA NILAYA
BASAVESHWARA LAYOUT
NAGASHETTY HALLI
BANGALORE-560 060.
[VIDE COURT ORDER CAUSE TITLE AMENDED]
...RESPONDENTS
(BY SRI. H.T. VASANTH KUMAR, ADVOCATE FOR R1(A-D))
THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE 1 OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED 18.01.2017
PASSED IN OS NO.2836/2014 ON THE FILE OF THE XLIV ADDL.
CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DECREEING THE
SUIT FOR PERMANENT INJUNCTION.
IN RFA NO. 169/2017
BETWEEN:
1 . SRI. KRISHNA .V
S/O LATE VENKATANARASIMHAIAH
AGED ABOUT 48 YEARS
R/AT NO. 61/1, 1ST CROSS
CHANDRA LAYOUT
BANGALORE - 560 004.
...APPELLANT
(BY SRI. K.V. NARASIMHAN, A/W
SRI. G. PANDURANGA, ADVOCATES)
AND:
1 . B. RANGASWAMY
S/O LATE SHIVARA SHETTY
AGED ABOUT 65 YEARS
R/AT NO. 16, 2ND CROSS
ANUBHAVANAGAR
5
NAGARABHAVI ROAD
BANGALORE - 560.
...RESPONDENT
(BY SRI. H.T. VASANTH KUMAR, ADVOCATE)
THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE 1 OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED 18.01.2017
PASSED IN OS.NO.2838/2014 ON THE FILE OF THE XLIV ADDL.
CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DECREEING THE
SUIT FOR PERMANENT INJUNCTION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 03.07.2025, THIS DAY ORDER WAS PRONOUNCED
THEREIN, AS UNDER:
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
C.A.V. JUDGMENT
These three appeals arise out of three independent suits,
while the subject matter in all the three suits is common.
Though suits are independently decided by the trial Court, this
Court deems it fit to club all the three appeals and pass a
common judgment as the evidence led in all the three suits
are relevant and the admissions elicited in all the three suits
have to be read together.
2. For the sake of brevity, the rank of the parties in
O.S.No.2416/2014 shall be referred.
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3. The facts leading to the case are as under:
The plaintiff, V. Krishna, instituted a suit for permanent
injunction in O.S.No.2416/2014, contending that he is in
lawful possession of the suit property measuring 13 guntas,
which originally formed part of Sy.No.60. The said survey
number measuring 4 acres 2 guntas was acquired by the State
Government to facilitate the formation of a residential layout
by ITI Employees Housing Co-operative Society Limited.
According to the plaintiff, since there was no specific scheme
framed by the Society, a Memorandum of Understanding
(MoU) was entered into post-acquisition, wherein the Society
voluntarily relinquished 13 guntas in favour of the plaintiff.
This portion of land was allegedly re-conveyed to him free of
cost.
The plaintiff further averred that out of the 13 guntas, he
gifted a portion measuring 35x80 ft. to his son, Naveen
Kumar, through a registered gift deed, and that the remaining
8 guntas continues to be in his exclusive possession. It was
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also asserted that Naveen Kumar constructed a residential
building on the gifted portion, while the remaining area is
vacant.
Alleging interference, the plaintiff claimed that
defendants Nos.1 and 2, who are members of the ITI Housing
Society, made attempts to unlawfully encroach upon the suit
property by deploying machinery with the intention of erecting
a public structure. Upon further enquiry, the plaintiff
discovered that defendants Nos.1 and 2 had mutually
executed sale deeds in favour of each other during their
tenure as office bearers of the Society, and were now
asserting possession based on such documents.
Defendants Nos.1 and 2 entered appearance and filed
their written statements. Defendants Nos.1 and 2, in their
defence, denied the plaintiff's title and contended that once
the land was acquired by the State and handed over to the
Housing Society, the plaintiff ceased to have any right or
interest in the land. They alleged suppression of material facts
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by the plaintiff and asserted that the suit was filed to harass
them and disturb their legitimate possession. They specifically
relied on registered sale deeds dated 07.04.2003 and
16.06.2003, under which they claimed to have lawfully
acquired title to their respective portions of the suit land.
Defendant No.1, B. Rangaswamy, filed a separate suit
for injunction in O.S.No.2838/2014 against the plaintiff V.
Krishna, asserting possession and ownership over a site
measuring 60x40 ft., based on the registered sale deed dated
16.06.2003. He placed reliance on a possession certificate
dated 07.08.2003 and katha issued by the Bruhat Bengaluru
Mahanagara Palike (BBMP) to support his claim of lawful
possession.
Similarly, Defendant No.2, S. Krishnappa, filed O.S.
No.2836/2014, also a suit for injunction simplicitor against the
plaintiff, claiming ownership and possession over another
portion of the property based on the registered sale deed
dated 07.04.2003. He relied upon a possession certificate
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dated 25.05.2003, the BBMP katha issued in his favour, and
tax payment receipts to substantiate his possession.
All the three suits were independently contested and
prosecuted by the respective parties. Oral and documentary
evidence was adduced in each case. Plaintiff V. Krishna
contested the suits filed by defendants Nos.1 and 2, while
they, in turn, contested the suit filed by him. Despite the
interconnection of subject matter and parties, the suits
were not clubbed and were disposed of separately by the trial
Court.
In O.S.No.2416/2014, the trial Court dismissed the
plaintiff's suit, holding that the Memorandum of Understanding
(MoU) dated 08.01.1996 (Ex.P-1) and the alleged re-
conveyance/allotment of 13 guntas did not vest any valid title
in the plaintiff. The MoU was found to be an unregistered
document, and the trial Court therefore discarded the same as
inadmissible for the purpose of proving title. Consequently,
10
the plaintiff's claim for injunction was rejected by judgment
and decree dated 12.01.2023.
Conversely, in O.S.No.2838/2014 and O.S.No.2836/
2014, the trial Court decreed the suits filed by defendants
Nos.1 and 2 respectively, and permanently restrained the
plaintiff, V. Krishna, from interfering with their peaceful
possession over their respective sites measuring 60x40 ft.
4. Heard learned counsel appearing for the plaintiff V.
Krishna and the counsel appearing for defendant Nos.1 and 2.
There was no contest by defendant No.3 in the suit filed by
plaintiff in O.S.No.2416/2014. Records also reveal that
defendant No.3 filed an injunction suit against plaintiff V.
Krishna, which was dismissed for non-prosecution which is
marked at Ex.P-5.
5. On meticulous examination of the records, the
following points would arise for consideration.
1) Whether the finding of the trial Court in O.S.
No.2416/2014 that the plaintiff, V. Krishna, has failed to
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establish lawful possession over the suit schedule
property measuring 8 guntas, and that Exs.P-1 and P-
2 do not confer any legal right or title, suffers from
perversity or legal infirmity warranting interference by
this Court?
2) Whether the finding of the trial Court
in O.S.No.2838/2014 that defendant No.1, B.
Rangaswamy, has established lawful possession over the
suit property based on the registered sale deed dated
16.06.2003, is perverse or otherwise unsustainable in
law, so as to warrant interference?
3) Whether the finding of the trial Court
in O.S.No.2836/2014 that defendant No.2, S.
Krishnappa, has established lawful possession over the
suit property based on the registered sale deed dated
07.04.2003, suffers from any perversity or error
warranting appellate interference?
4) Whether the plaintiff has made out sufficient
grounds for this Court to accept and rely upon the
additional evidence sought to be produced under Order
XLI Rule 27 of the Code of Civil Procedure?
Finding on Point Nos.1 to 3:
6. From the material placed on record, certain
foundational facts stand admitted and undisputed. The State
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Government, under a notification dated 25.02.1985, proposed
to acquire several parcels of land, including Sy.No.60
measuring 4 acres 2 guntas, which was admittedly owned by
the family of the plaintiff, V. Krishna. This acquisition was
undertaken for the purpose of facilitating the formation of a
residential layout for the benefit of members of the ITI
Employees Housing Co-operative Society Limited. The fact that
the said land belonged to the plaintiff's family and that the
acquisition was to benefit the Housing Society is not in
dispute. It is also an admitted fact that defendant Nos.1 and
2 were at one point of time office bearers of the said Housing
Society. These facts were not seriously contested during trial
and are borne out by the pleadings and oral evidence on
record.
7. The plaintiff, in support of his claim of continued
possession and re-conveyance of land, relied on
a Memorandum of Understanding (MoU) executed by the ITI
Employees Housing Co-operative Society Limited, which is
marked as Ex.P-1. A perusal of Ex.P-1 reveals that, following
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the acquisition of Sy.No.60, the Society passed a resolution to
allot the eastern portion measuring 13 guntas to the plaintiff's
family free of cost, presumably as a gesture of accommodation
or settlement. Pursuant to the said resolution, an allotment
letter (marked as Ex.P-2) was issued in favour of the plaintiff's
family. Both Exs.P-1 and P-2 are signed by C. Venkatappa,
who was then serving as the President of the Society.
8. However, this Court finds that the evidentiary value
of Exs.P-1 and P-2 must be weighed in conjunction with Ex.D-
7, the approved layout plan, which assumes significant
importance in determining the question of lawful
possession and title. While the plaintiff claims possession over
a contiguous extent of 13 guntas, defendants Nos.1 and 2,
who previously held office as Presidents of the Society, base
their title on registered sale deeds and claim possession over
defined sites.
9. A certified copy of the approved layout plan is
produced and marked as Ex.D-7. Upon a closer examination
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of Ex.D-7, it becomes evident that there is no mention or
demarcation of a site measuring 60x40 ft. as claimed by
defendant No.1. The layout discloses the existence of
only 30x50, 30x40, and odd-dimensioned sites. This
discrepancy casts doubt on the specific claim of defendant
No.1 regarding the size and identity of the site in his
possession, especially when viewed in the light of his own oral
testimony.
10. Turning to the oral evidence, defendants Nos.1 and
2 were examined as DW.1 and DW.2, respectively. The cross-
examination of DW.1 (B. Rangaswamy) is particularly
significant. Specific questions were posed to him regarding
whether the site claimed by him, measuring 60x40 ft., is
identifiable in the approved layout marked as Ex.D-7. In
response, DW.1 admitted that he was the President of the
Society during 2001-2002, and crucially, he also admitted that
he was unable to identify or locate his claimed site of 60x40 ft.
in the layout approved by the competent authority. This
admission materially undermines his assertion of lawful
15
possession over the suit schedule property. The relevant
portion of his cross-examination reads as follows:
"It is true that I have produced Ex.D7 in my
evidence. Now the witness is shown Ex.D7 and asked
to identify the site formed measuring 60x40 feet.
Witness says I do not know. It is false suggest that ITI
House Co-operative Society has not formed the site
measuring 60x40 feet and knowing fully well I am
deposing falsely. It is true that Ex.D1 contains the
measurement of site 60x40 feet."
11. The next set of crucial admissions emerges from
the proceedings in the two connected suits filed by defendant
Nos.1 and 2 namely, O.S.
No.2838/2014 and O.S.No.2836/2014 respectively which shed
considerable light on the bona fides of the defendants in
asserting ownership over the respective sites, each
measuring 60x40 feet. The plaintiff has consistently alleged
that defendant Nos.1 and 2, while functioning as Presidents of
the ITI Employees Housing Co-operative Society at different
points in time, executed sale deeds in favour of each other,
16
thereby attempting to acquire title over portions of the land
initially acquired for public purpose.
12. Specifically, the allegation is that defendant No.1,
B. Rangaswamy, while serving as President, executed
a registered sale deed in favour of defendant No.2, S.
Krishnappa, in respect of a site measuring 60x40 feet.
Reciprocally, defendant No.2, during his tenure as President,
executed a registered sale deed in favour of defendant No.1
for a similar site. These mutual transactions are placed on
record in O.S.No.2416/2014 and marked as Ex.D-1 and Ex.D-
17 respectively.
13. This reciprocal arrangement wherein two office
bearers of a Co-operative Society dealing with public property
allocate sites to one another raises serious concerns
about conflict of interest, abuse of position, and the validity of
the underlying transactions, especially in the absence of any
resolution from the Society or evidence of allotment through a
lawful and transparent process.
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14. It is in this context that the cross-examination of
defendant No.1, who is examined as PW.1 in O.S.
No.2838/2014, becomes highly relevant. During cross-
examination, pointed questions were posed to him regarding
the origin and basis of the sale deed executed in his favour by
defendant No.2. The admissions elicited in this context
reinforce the plaintiff's contention that the transactions were
not rooted in any lawful allotment or authority, but rather
reflect collusive and self-serving actions of the defendants in
their capacity as Presidents of the Society.
15. The relevant portion of the cross-examination
of PW.1 (defendant No.1 in O.S.No.2416/2014 and plaintiff in
O.S.No.2838/2014) is extracted below:
"The sites were allotted to the members of the
Society on the basis of seniority of membership. I have
not produced any document to show that the Society
has allotted me the suit site."
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16. The next relevant extract of cross-examination is
extracted, which reads as under:
"Ex.P-1 sale deed stands in my name was
executed by then President of Society by name
Krishnappa. It is true that, the Krishnappa referred
above by me is the plaintiff in O.S.No.2836/2014. It is
true that, when I was the President of the Society, I
had executed the sale deed in respect of subject matter
of suit in O.S.No.2836/2014 in the name of Krishnappa.
It is true that, Registrar of Co-operative Societies
submitted the report that during the Presidency of
myself and Krishnappa it was alleged that we have
acted illegally in respect of registration of site in the
name of myself and in the name of Krishnappa. It is
true that, the Registrar of Co-operative Societies had
directed, the Society to cancel the sale deed stands in
the name of myself and also Krishnappa. The Society
had served notice to myself and Krishnappa on the
orders of Registrar of Co-operative Societies, who
directed to cancel our sale deeds. For the notice issued
by the Society, myself and Krishnappa had preferred an
appeal before Joint Registrar of Co-operative Societies
challenging the notice. The Joint Registrar of Co-
operative Societies after hearing our appeal from both
sides, passed the orders holding that the sale deeds
stands in the name of myself and Krishnappa are valid
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and in accordance with law. It is true that, I have not
produced that order copy passed by Joint Registrar.
Witness volunteers that he would produce that order
copy to the court."
17. The cross-examination of defendant No.2 in
O.S.No.2836/2014, wherein he is the plaintiff is also relevant.
The same is extracted as under:
"..........It is not true to suggest that I am deposing
false. I had paid the amount in the year 1979. I paid
Rs.1500/- for the first time. I had paid so for the site
measuring 30 X 40 feet. I had preferred an application
narrating the fact that my family consist of more
members with a request to allot a bigger site and I
preferred so to the Secretary concerned. That my said
application being considered bigger site of the
measurement of 60 X 40 was allotted. I had adduced
document to substantiate my application and request as
above mentioned. It is not true to suggest that the
Secretary had absolute power in the matter of allotment
of and distribution of sites. Witness volunteers, it was a
President who had the suggested power. The bigger site
was allotted to me by the President. Sale deed was
registered by the then President by name Rangaswamy.
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It is true to suggest that, the Joint Registrar of
Co-operative Societies had filed a report by mentioning
that I being the then President and the then President
Rangaswamy by colluding with each other have allotted
sites to each other. I do not know the fact that the Joint
Registrar of Co-operative Societies had even
recommended for the necessary and suitable action
against me at the instance of Society. That no action
was taken in this behalf. That pursuant to order of Joint
Registrar of Co-operative Society, we have preferred
appeal which ended in our favour and I was also
produced the relevant order before this court. We
preferred the appeal before the Joint Registrar of Co-
operative Society himself.
Question: According to the plan adduced by you
at Ex.P.13 sites with the measurements 50 X 30, 30 X
40 and odd sites other than the sites measuring 60 X
40 were formed?
Answer: BDA plan was approved and copy of the
approved plan is submitted.
Question: I put it to you though site of the
measurement of 40 X 60 being not formed, documents
have been created reflecting the fact of formation of
sites of the measurement 40 X 60.
Answer: I deny.
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Question: I put it to you Ex.P.13 does not have
the site bearing No.686.
Answer: I deny.
Question: I put it to you that the photographs
adduced by you at Exs.P.7 to P.10 do reflect the vacant
portion and same do not reflect the fact of formation of
sites.
Answer: True."
18. Upon meticulous appreciation of the oral and
documentary evidence on record, this Court finds that
the Memorandum of Understanding dated 08.01.1996, marked
as Ex.P-1, and the consequent allotment letter, marked
as Ex.P-2, though unregistered, cannot be brushed aside in
their entirety. While it is true that these documents do not
confer legal title, they nevertheless possess evidentiary value
for collateral purposes, especially in the context of a suit for
injunction simplicitor, where the primary issue for adjudication
is lawful possession, not title.
19. Ex.P-1 and Ex.P-2 were admittedly executed by the
then President of the ITI Employees Housing Co-operative
22
Society, and their contents have not been repudiated or
challenged by the Society at any point in time. These
documents reflect the Society's voluntary act of allotting 13
guntas to the plaintiff's family post-acquisition, and no
evidence is brought on record by the defendants to
demonstrate that the Society ever withdrew, revoked, or
denied the execution of these documents. Thus, even if not
enforceable as title deeds, these documents serve as relevant
evidence supporting the plaintiff's claim of possession over the
suit schedule property.
20. Further, a significant aspect of the case is
that neither defendant No.1 nor defendant No.2 has laid any
claim over Sy.No.60 during the course of trial. The approved
layout plan, marked as Ex.D-7, clearly does not reflect the
formation of any site measuring 60x40 feet, which is the very
dimension of the site claimed by each of the defendants. The
cross-examinations of both defendants, who were examined in
the respective suits, contain unequivocal admissions that no
official allotment order exists in their favour and that they had
23
reciprocally conveyed sites to one another during their
respective tenures as Presidents of the Housing Society. This
pattern of conduct reveals a highly irregular and self-serving
exchange of properties, which appears more in the nature of
a "barter arrangement", executed by defendants by misusing
their positions of authority within the Society.
21. It has also been successfully elicited during cross-
examination that the sale deeds executed in favour of
defendant Nos.1 and 2 were subjected to scrutiny by the office
of the Registrar of Co-operative Societies, pursuant to
allegations of illegalities in the registration of these sites. The
Registrar, upon enquiry, found that both defendants, during
their respective terms as Presidents, had indulged in mutual
conveyance of sites in violation of established norms, and
accordingly directed the cancellation of the said sale deeds.
The defendants have attempted to rely on the outcome of an
appeal purportedly filed before the Joint Registrar of Co-
operative Societies, wherein they claim that the cancellation
orders were set aside and their sale deeds upheld.
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22. However, critically, neither defendant No.1 nor
defendant No.2 has produced a copy of the order passed by
the Joint Registrar, despite claiming that the order was
rendered in their favour. The oral testimony contains only
a bare assertion, unsubstantiated by any supporting
documentary evidence. In the absence of production of the
appellate order, the defence cannot take refuge under such
claim. More importantly, even assuming such an order exists,
it does not ipso facto establish valid title or lawful possession,
particularly when the sites in question are not identifiable
within the approved layout plan (Ex.D-7), nor supported by
any formal resolution or allotment register maintained by the
Society.
23. Furthermore, both defendant Nos.1 and 2
have admitted in unequivocal terms in their respective
depositions that they do not possess any official allotment
order issued by the Society, nor any documentation to show
that the sites claimed by them were regularly allotted in
accordance with the Society's rules, which clearly
25
prioritized seniority of membership. Their entire claim rests
on the registered sale deeds executed by each other during
their tenures as President. A close scrutiny of the layout plan
(Ex.D-7) further weakens their case, as there is no formation
of any 60x40 ft. sites within the sanctioned plan. The sites
claimed under Exs.D-1 and D-17 are not traceable to any
particular plot demarcated in the approved layout. This lack of
correlation between the documentary title and actual layout
renders their possession unauthorized and lacking legal
foundation.
24. In contrast, the plaintiff, though unable to
establish title in the strict legal sense, has produced
documents and led evidence sufficient to establish lawful
possession for the limited purpose of sustaining a claim for
injunction. In suits of this nature, the Court's inquiry is
confined to whether the plaintiff is in settled possession and
whether such possession is sought to be disturbed without due
process of law. The MoU (Ex.P-1) and the allotment letter
(Ex.P-2), though unregistered, are contemporaneous records
26
executed by the Society and support the plaintiff's claim of
long-standing possession.
25. It is also significant to note that the Society itself
has not instituted any proceedings against the plaintiff
challenging the MoU or the allotment. In fact, the suit filed by
the Society against the plaintiff was dismissed, and this is
evidenced from the certified copies of the judgment marked
at Exs.P-9 and P-10. These facts, taken cumulatively,
strengthen the plaintiff's claim to peaceful and lawful
possession, whereas the defendants' claim is riddled
with admissions of impropriety, lack of allotment, and absence
of layout conformity, which fundamentally erodes the
credibility of their asserted rights.
26. Accordingly, point Nos.1 to 3 formulated above are
answered in the affirmative.
Finding on Point No.4:
27. In view of findings recorded on point Nos.1 to 3,
this Court is of the view that additional evidence is not
27
necessary for effective adjudication of the dispute that has
arisen for consideration. This Court having come to conclusion
that defendant Nos.1 and 2 have not acquired right based on
sale deeds obtained by them, plaintiff's reliance on additional
documents is of no consequence. Accordingly, point No.4 is
answered in the Negative.
28. Conclusions:
(i) On a comprehensive reappraisal of the oral and
documentary evidence on record, this Court is of the
considered view that the findings recorded by the trial Court,
particularly in O.S.No.2416/2014, suffer from manifest
perversity and legal infirmity. The trial Court has summarily
discarded Ex.P-1 (Memorandum of Understanding) and Ex.P-2
(Allotment letter) on the ground that they are unregistered
documents and therefore inadmissible, without appreciating
that in a suit for injunction simplicitor, such documents
are relevant and admissible for collateral purposes, particularly
to prove long-standing possession. The trial Court's narrow
28
view of admissibility overlooks the settled principle that
possession can be protected even in the absence of title, so
long as it is lawful and peaceful.
(ii) The trial Court further failed to appreciate
the undisputed fact that the ITI Housing Society itself has
never repudiated or questioned the authenticity of Exs.P-1 and
P-2, nor initiated any proceedings to cancel or nullify the
allotment of 13 guntas made to the plaintiff's family. On the
contrary, the Society's own suit against the plaintiff was
dismissed, as evidenced by Exs.P-9 and P-10. These crucial
facts, which go to the root of the plaintiff's possessory rights,
were either ignored or glossed over by the trial Court,
resulting in a serious miscarriage of justice.
(iii) Equally perverse is the trial Court's acceptance of the
title and possession claimed by defendant Nos.1 and
2 under Exs.D-1 and D-17, without scrutinising their own
admissions that, (a) there is no allotment order in their
favour, (b) the sites measuring 60x40 ft. are not found in the
29
approved layout (Ex.D-7), and (c) the sale deeds were
executed reciprocally by them while holding the office of
President. These admissions expose a clear abuse of
authority and suggest that both defendants colluded to
allocate Society land among themselves in violation of
cooperative principles and without any governing resolution or
membership-based entitlement. The trial Court's failure to
draw adverse inference from these startling admissions and
documentary inconsistencies reflects non-application of
mind and acceptance of tainted transactions, thereby vitiating
its findings.
(iv) Moreover, the trial Court did not properly assess
the impact of the Registrar of Co-operative Societies'
direction to cancel the sale deeds, nor did it insist on the
production of the alleged appellate order said to have reversed
that direction. The defendants' failure to produce this crucial
order should have been viewed with suspicion, but was instead
overlooked. This again reflects a material omission in
30
appreciating the burden of proof and undermines the legality
of the sale deeds on which the defendants' suits are founded.
(v) In view of the above findings, this Court is
constrained to hold that the trial Court's approach is not
merely erroneous, but one that reflects perversity in the
appreciation of evidence, both oral and documentary. The
Court below failed to properly apply settled legal principles
relating to injunction, possessory rights, and fiduciary misuse
by office bearers of cooperative societies. Such findings, being
patently unsustainable in law and on facts, call for appellate
interference.
29. For the foregoing reasons, this Court proceeds to
pass the following:
ORDER
(i) The appeals are allowed;
(ii) The judgment and decree dated
12.01.2023 passed in O.S.No.2416/2014 on the file
of the V Additional City Civil Court, Bengaluru
(CCH-13), the judgment and decree dated
18.01.2017 passed in O.S.No.2838/2014 on the file
of the XLIV Additional City Civil & Sessions Judge,
Bengaluru (CCH-45) and the judgment and decree
dated 18.01.2017 passed in O.S.No.2836/2014 on
the file of the XLIV Additional City Civil & Sessions
Judge, Bengaluru (CCH-45) are hereby set aside;
(iii) Consequently, suit filed by the plaintiff in
O.S.No.2416/2014 is decreed and the suits filed by
defendant Nos.1 and 2 in O.S.Nos.2838/2014 and
2836/2014 respectively are dismissed;
(iv) Draw decree accordingly;
(v) Pending interlocutory application, if any,
stands disposed of.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
CA
