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2017 DIGILAW 467 (KAR)

N. A. JAYARAM v. REVATHI S. ADIGA

2017-02-10

K.N.PHANEENDRA

body2017
JUDGMENT : This appeal is preferred calling in question the order dated 13.6.2016 passed in OS No.2847/2015 by the 29th Addl. City Civil Judge, Bengaluru, (CCH30) on IA No.1, under Order 39 Rule 1 & 2 of CPC, wherein the trial Court after due contest by the parties has allowed the said application granting Temporary Injunction restraining the defendants (appellants herein) from interfering with the plaintiff’s (respondent herein) peaceful possession and enjoyment of the of the site No.11 carved out in Survey No.10/1A of Sarakki village, Bengaluru and consequently dismissed the application filed under Order 39 Rule 4 of CPC, by the appellant (Defendant). 2. I have heard the arguments of the learned counsel for the appellants and the learned counsel for the respondent. I have carefully perused the order passed by the trial Court and the records. 3. Sri V.B. Shivakumar, learned counsel for the appellants submits that, the trial Court has not properly considered the relevant factors in this particular case and not properly assessed the location of the properties involved and wrongly interpreted the documents of title of the plaintiff and the defendants without ascertaining the proper source of title and the possession of the parties respectively over the properties and wrongly come to the conclusion that the plaintiff has established a prima facie case for grant of injunction. It is further contended by the learned counsel for the appellants that the trial Court failed to observe that under the guise of the title deeds in respect of site No.11, the plaintiff is making hectic attempts to come on the property of the defendants in site No.19 carved in Survey No.10/2. The trial Court has also not properly appreciated the balance of inconvenience which is on the part of the defendant. Therefore, the trial Court without giving any finding with regard to the identification of the properties has wrongly granted the injunction order in favour of the plaintiff. Therefore, the same is liable to be interfered with by this Court. 4. The trial Court has also not properly appreciated the balance of inconvenience which is on the part of the defendant. Therefore, the trial Court without giving any finding with regard to the identification of the properties has wrongly granted the injunction order in favour of the plaintiff. Therefore, the same is liable to be interfered with by this Court. 4. Per contra, the learned senior counsel for the respondent Sri Subba Rao, has taken me through the relevant materials in the pleadings as well as the documents produced by the plaintiff and defendants and contended that the trial Court in fact has in detail considered the pleadings of the parties and also the documents on record and thereafter, came to a definite conclusion that the plaintiff’s property and defendants’ property are altogether different with specific distinction, therefore, the plaintiffs have made out a prima facie case for grant of injunction. The trial Court has also considered all the relevant materials to come to the conclusion that the balance of inconvenience lies in favour of the plaintiffs in granting injunction. 5. The learned counsel also strenuously argued with regard to the admission made by the defendants in the pleadings specifically admitting that the plaint schedule property and the written statement property are altogether different. When such being the case, the defendant cannot interfere with the plaintiff’s peaceful possession and enjoyment of the suit schedule property. On these grounds, the learned counsel contended that the order passed by the trial Court does not call for any interference. Hence, the appeal is liable to be dismissed. 6. The learned counsel for the appellants has also filed an application under Order 41 Rule 27 of CPC seeking production of the judgment passed in RFA No.428/2009 and the lease agreement between Sri N.A. JAYARAM and M/S.NANO DIAGNOSTICS and also the katha certificate pertaining to site No.19 of Sarakki village and also certain photographs and receipt issued by BESCOM. 7. First, I would like to consider the respective cases of the parties as put forth by them in their pleadings. It is the case of the plaintiff that the plaintiff is the owner of site bearing No.11 carved out in Survey No.10/1A of Sarakki village measuring East to West 50’ and North to South 30’ consisting of ACC Sheet house of one square. 8. It is the case of the plaintiff that the plaintiff is the owner of site bearing No.11 carved out in Survey No.10/1A of Sarakki village measuring East to West 50’ and North to South 30’ consisting of ACC Sheet house of one square. 8. It is the case of the plaintiff that she has purchased the said property from one Kashinath. The plaintiff derived her title from one Kashinath under registered sale deed dated 19.12.1997. It is the further case of the plaintiff that Survey No.10/1 originally belong to one Doddamuniswamy reddy and after his death, his sons by name Annaiahreddy and Krishnareddy have divided the property by means of a partition dated 30.3.1972. Survey No.10/1A fell to the share of Krishnareddy measuring 3 acres 2 guntas out of that said Krishnareddy has converted the said land for nonagricultural purpose vide orders of the Special Deputy Commissioner dated 27.10.1975. He has developed the said land and formed sites. Out of 3 acres 20 guntas, the remaining 1 acres 5 guntas was sold to one Sharadamma under a registered sale deed dated 21.5.1980. The said property which was sold to Sharadamma has been given number as 10/1A(1). A new number was given to the property remained with Krishnareddy as Survey No.10/1A(2). Totally 52 sites have been sold by the said Krishnareddy. Further, Krishnareddy sold site No.11 in favour of one Madhuranath Padaki on 18.6.1980 through a registered sale deed. The said Madhuranath Padaki has sold the same in favour of Kashinath (vendor of the plaintiff) under a registered sale deed dated 7.6.1997. The same has been purchased by the plaintiff from Kashinath on 19.12.1997. Since the date of purchase, the plaintiff has been in peaceful possession and enjoyment of the property by paying taxes to the said property. It is also stated specifically that one Jayaramreddy, who is the owner of Survey No.10/2 and there is a road bifurcating Survey No.10/2 and 10/1A(2). The said Jayaramreddy has also formed sites in Survey No.10/2. As the said Jayaramreddy and Krishnareddy have interfered with the plaintiff’s possession, she has filed a suit in OS No.8268/2001 and subsequently as the interference was stopped, she got the said suit dismissed on 20.4.2006. 9. The said Jayaramreddy has also formed sites in Survey No.10/2. As the said Jayaramreddy and Krishnareddy have interfered with the plaintiff’s possession, she has filed a suit in OS No.8268/2001 and subsequently as the interference was stopped, she got the said suit dismissed on 20.4.2006. 9. The plaintiff has contended that the defendant claiming that he is the owner of site No.19 carved out in Survey No.10/2 attempted to interfere with the plaintiff’s peaceful possession and enjoyment of the site No.11 carved out in Survey No. 10/1A(2), then the plaintiff has approached the police as well as BBMP, as the defendants did not desist themselves from interfering, she filed a suit. 10. The defendants have denied the contentions of the plaintiff and putforth their case. It is contended that, the defendants have been in possession and enjoyment of the suit schedule property. It is contended that originally, the property belonged to one Jayaramreddy, who was the owner of Survey No.10/2. He also formed layout, out of the said sites, site No.19 has been purchased by the defendant measuring East to West 70’ and North to South 30’. Having specific boundaries i.e., towards East 24th Main Road, West – Survey No.10/1A, North – site No.18, South – Survey No.20/1. It is the specific case of the defendant that from the date of purchase, he has been paying kandayam and obtained licence from the competent authority to construct the house and he has actually constructed a big building in the said site. 11. The defendants have traced their title stating that originally, the said property belonged to one Hemareddy and after the death of Hema reddy, their children Jayaramreddy, Munithayamma, Savithramma and Basappa became the owners and all the family members Munithayamma, Savithramma and Basappa have released their rights in favour of Jayaramreddy on 6.2.2004 and Jayaramreddy has become the absolute owner. He sold site No.19 to one Nataraj under a registered sale deed from whom the defendant has purchased the said property. It is an admitted fact that the entire Survey No.10/1 totally measuring 6 acre 6 guntas belonging to one Doddaswamyreddy. After the death of Doddaswamyreddy, Krishnareddy and Muniswamyreddy have divided the property and Krishnareddy got 3 acres 10 guntas and Muniswamyreddy got 2 acres 36 guntas. In the year 1971, there was partition between the members. It is an admitted fact that the entire Survey No.10/1 totally measuring 6 acre 6 guntas belonging to one Doddaswamyreddy. After the death of Doddaswamyreddy, Krishnareddy and Muniswamyreddy have divided the property and Krishnareddy got 3 acres 10 guntas and Muniswamyreddy got 2 acres 36 guntas. In the year 1971, there was partition between the members. It is contended that after purchase of the property, the defendants have put up lot of constructions. Therefore, on the guise that site No.19 itself is site No.11 and plaintiffs have actually interfered with the possession and enjoyment of the defendants. There is no identification of the plaintiff’s property. Therefore, it is contended that the application filed by the plaintiff is not tenable and the same is liable to be dismissed. 12. The trial Court has considered the documents produced by the plaintiff and the defendants, and ultimately came to the conclusion that the site pertaining to the plaintiff is carved out in Survey No.10/1 of Sarakki village and the site of the defendant is carved out in Survey No.10/2 and they are distinct and separate, therefore, the plaintiff has established a prima facie case. Further, the trial Court has also come to the conclusion that the defendants have not produced any documents with reference to any licence or permission granted for construction of the building and on the other hand, the plaintiff has produced all the necessary documents which shows that they are in possession and enjoyment of the property. It is also observed by the trial Court that the defendants have denied the ownership and possession of the plaintiff and there is every chance of the defendants interfering with the plaintiff’s property. Therefore, the Court has granted injunction as prayed for allowing the application filed under Order 39 Rules 1 & 2 of CPC in respect of the suit schedule property and consequently, dismissed the application filed under Order 39 Rule 4 of the CPC filed by the defendants. 13. Now, the question which has to be examined by this Court is: “Whether the trial Court has committed any serious legal or factual error in coming to the conclusion that the plaintiff’s suit schedule property and the defendants written statement property are distinct and separate, and the plaintiff is entitled for an order of injunction?” 14. 13. Now, the question which has to be examined by this Court is: “Whether the trial Court has committed any serious legal or factual error in coming to the conclusion that the plaintiff’s suit schedule property and the defendants written statement property are distinct and separate, and the plaintiff is entitled for an order of injunction?” 14. As could be seen from the records and also the order of the trial Court, the trial Court from the beginning has narrated relying on the plaint and written statement, and traced the plaintiff’s possession on the basis of the sale deed and other documents. It also traced the defendants property and possession on the basis of the materials placed by the defendants. This Court has also observed that the property bearing Survey No.10 originally belonged to Doddaswamyreddy which is evident from the partition deed dated 30.3.1972 produced by the plaintiff. The said Doddaswamyreddy has got two sons by names Krishnareddy and Annaiah Reddy, since Annaiah Reddy was dead, by his wife Muniyamma. In the said document it also mentioned the house property measuring 15’ x 14’, a tiled roof house also fell to the share of Muniyamma. Survey No.10/1 measuring 3 acres 18 guntas with other properties fell to the share of Krishnareddy. The Krishnareddy out of 3 acres 18 guntas has converted 2 acres vide order of the then Deputy Commissioner dated 27.10.1977 to nonagricultural purpose. Thereafter, in the same survey number, out of 3 acres 18 guntas, one acre was sold to Sharadamma in the year 1980 vide sale deed dated 21.5.1980. The said Krishnareddy after forming layout, sold site No.11 to one Madhuranath Reddy vide sale deed dated 18.6.1980. The said Madhuranath Reddy was paying kandayam to the Sarakki Panchayath and he sold the same in favour of Kashinath on 7.6.1990 and those sale deeds are also produced by the plaintiff. Subsequently, the plaintiff has purchased the said property from Kashinath under a sale deed. The said sale deed is also produced before the trial Court. These documents have been verified by this Court also as the appellants’ counsel himself has produced all these documents in his paper book. The defendants have also produced the sale deed dated 13.2.2009, which shows that the defendants have purchased the property from one G. Shankar. The said document clearly discloses that the property bearing site No.19 carved out in Survey No.10/2. The defendants have also produced the sale deed dated 13.2.2009, which shows that the defendants have purchased the property from one G. Shankar. The said document clearly discloses that the property bearing site No.19 carved out in Survey No.10/2. It is also clear that the said property originally belonged to G.Shankar who purchased the same from one S.K. Nataraj and the kandayam being paid by the vendors of the defendant and thereafter, the defendants have been paying kandayam etc., Therefore, it has to be ascertained whether site No.19 carved out in Survey No.10/2 is the same as that of the site No.11 carved out in Survey No.10/1A(2). 15. As could be seen from the records, the defendants have taken up the contention that he has obtained licence, approved plan and sketch from the competent authority to put up construction in site No.19 carved out in Survey No.10/2. But, they have not produced before the trial Court any such document so as to show where actually the said site number is carved in Survey No.10/2 and where actually the plaintiff’s property falls in Survey No.101A(2). Of course, the defendants have produced the plaint in OS No.8101/2001 filed by one Sunkadamma against Krishnareddy and Jayaramreddy (Vendors of plaintiff and defendants) for partition and separate possession and the said suit was also dismissed. The plaintiff has also produced the documents to show that Krishnareddy has applied for conversion of the land to form lay out from the District Deputy Commissioner which was also relied upon by the trial Court. It is also seen that the defendants have not produced ‘A’ Katha in respect of the property. In this backdrop, the pleadings of the parties play a dominant role in order to distinguish these properties. The plaint Schedule property is specifically described in the following manner: (1) Site No.11 formed out of Survey No.10/1A(2) which is formed by virtue of the order of the Deputy Commissioner dated 27.10.1975 and vide certificate dated 6.12.1975 situated at 24th Main JP Nagar, 6th Phase, Arkere Subdivision, Bommanahalli range measuring East to West 50’ and North to South 30’ along with one ACC sheet house bounded by: East – 80‘ Road, West – Site No.14 North by – Site No.10 and South by – Property No.12. The defendant though he has denied all the allegations of the plaint has categorically stated with regard to these boundaries and also he relied upon the release deed executed by the sisters of Jayaramreddy in favour of Jayaramreddy with specific boundaries of the property. It is also contended at paragraph 7 of the written statement that the property more fully described in the Schedule to the written statement is distinct and separate and separately identifiable in the scketch measures East to West 50’ and North to South 30’ (measurement differs); (2) The written statement describes the property of the defendant specifically stating that, “It is the CMC site No.19 carved out of Survey No.10/2, situated at Sarakki village, Uttarahalli Hobli, Bengaluru South Taluk, Bengaluru, measuring East to West 70’ x North to South 30’. On the basis of the lay out formed vide orders of the Deputy Commissioner, Bengaluru, dated 17.8.1987 having specific boundaries, bounded by: East – 24th Main Road, West – Land bearing Survey No.10/1A, North – Site No.18 South – Land bearing Survey No.20/1 belonging to Jayaramreddy. 16. As I have already observed in the written statement at paragraph 7, it is specifically stated that site No.19 which is carved out in Survey No.10/2, is specifically identifiable, but on the other hand, it is stated that site No.11 is not specifically identifiable in the sketch. Therefore, according to the defendant, plaintiff’s site is not at all there. On the other hand, defendants property can be specifically identified. 17. Admittedly, site number, measurement and the boundaries as noted in the plaint and as noted in the written statement are distinct and separate and individual properties. At this stage, without any other evidence it cannot be said that, one is overlapping against another. The written statement also discloses that Jayaramreddy, the erstwhile owner of the property bearing Survey No.10/2 got the property by way of release deed dated 6.2.2004 from his joint family properties. The defendants have admitted the said version of the plaintiff. At this stage, without any other evidence it cannot be said that, one is overlapping against another. The written statement also discloses that Jayaramreddy, the erstwhile owner of the property bearing Survey No.10/2 got the property by way of release deed dated 6.2.2004 from his joint family properties. The defendants have admitted the said version of the plaintiff. It is also in the written statement at paragraph No.2 that, the defendants have specifically stated that on a comparison of the Schedule given by the plaintiff as site No.11 and the site property of the defendants i.e, site No.19 are two distinct and separate properties, but the plaintiff is seeking relief in respect of the property over and above their property against these defendants, plaintiff’s property is entirely different and in a different location and the plaintiff instead of proceeding against the persons who have grabbed the property of the plaintiff, but intentionally intending to proceed against the defendant in respect of the Schedule property described in the written statement. By way of such pleadings, the defendants have made it clear that the properties are distinct and separate and they are situated in different areas. Apart from that, the sketch produced before the Court which is available at page No.120 of the paper book, which is styled as Akar Bund durasth after phodi work of Survey No.10. This document shows that total property has been divided into Survey No.10/1A(1), 1A(2), 1B on one site and Survey No.10/2 on the other side. This also clears of the doubt that Survey No.10/1A(1), 1A(2) and 1B and Survey No.10/2 are separate and they are distinctly identifiable. The plaintiff in the paper book itself has also produced the document which in fact is a sketch at page No.331 which also discloses that Survey No. 10/1A(1) and 1A(2) and 1B on one side and all these properties are bifurcated by means of a road with that of Survey No. 10/2. Apart from the above, it is very pertinent to note here that the plaintiff, defendants have also produced a document which is at page No.266 of the paper book relied upon by them. It is a sale deed executed by one Sri N. Nataraj in favour of one Sri K.V. Prashanth in respect of property bearing site No.15A carved out in Survey No.10/1A, 10/1A1 and site No.15A, katha No.364. It is a sale deed executed by one Sri N. Nataraj in favour of one Sri K.V. Prashanth in respect of property bearing site No.15A carved out in Survey No.10/1A, 10/1A1 and site No.15A, katha No.364. The said property is bounded by: East – Site No.9A, West – By Road, North – Site No.16 and South – Site No.15 This property was in fact purchased by one Sri N.Nataraju, earlier by virtue of a sale conducted by the Debt Recovery Tribunal. The proceedings of the Recovery Officer of the Debt Recovery Tribunal shows that in the public auction, the said Nataraju has purchased the property. The said document is also appended with a sketch. The sketch also abundantly makes it clear that in Survey No.10/1A(2), sites have been formed and to the South of the said property, Survey No.10/1A is carved out and to the west of the said property, Survey No.10/1B is carved out and to the East of the said property, there is a road width of 18 meters to 24 meters and thereafter to the further east of the said property, Survey No. 10/2 is situated. This sketch also shows that in Survey No.10/1A(2) there are as many as 50 sites are formed. Site No.11 is specifically shown in the said document. This document shows site No.11 is bounded by: East – Road, West – Site No.14 North – Site No.10 and South – Site No.12 This boundary which exactly tallies with the suit schedule property. However, the defendants have not produced any sketch showing how many sites have been formed in Survey No.10/2 and where exactly his property is situated in Survey No.10/2 in order to identify the same with proper and correct specific boundaries. On the other hand, the Schedule mentioned to the written statement clearly discloses that it is carved in Survey No.10/2 of Sarakki village. Looking to the above said facts and circumstances of the case, there is no mistake committed by the trial Court in holding that the said site numbers of the plaintiff and defendants are distinct and separate. 18. The above said sketch produced by the plaintiff himself which is attached to the Debt Recovery Tribunal, sale certificate also contains site No.19 carved out in Survey No.10/1A(2). 18. The above said sketch produced by the plaintiff himself which is attached to the Debt Recovery Tribunal, sale certificate also contains site No.19 carved out in Survey No.10/1A(2). The said site number according to the said sketch is having the following boundaries: East – Site No.8 West – Road, North – Site No.20 South – Site No.18 This particular site number mentioned in the sketch does not tally with the boundaries mentioned in the written statement Schedule properties. Therefore, at any stretch of imagination, at this stage, on the available materials, it cannot be said that the plaintiff claims the property of the defendant on the basis of giving any wrong boundaries. 19. At present, when there is marked distinction which could be made out tentatively by the trial Court, that the plaintiff’s property and the defendants’ properties are different and distinct, the Court has come to the conclusion that the plaintiff who has produced his sale deed, his vendor’s sale deed and the partition deed of the erstwhile owner of the property and also the tax paid receipts, some sketches already discussed to show the distinctness of his property carved out in Survey No.10/1A(2), the Court could grant injunction order tentatively for a limited period i.e., till the disposal of the suit. On the other hand, the defendants have not prima facie established before the Court that the plaintiff on the guise of seeking an injunction order wants to usurp the property of the defendant. As it is clear that both the parties are claiming different properties in different Survey numbers with different boundaries and extents, I do not find any strong reasons to deviate from the opinion expressed by the trial Court when the plaintiff has made out his possession on the suit schedule property distinctly establishing that his property is different with that of the defendants’ property. However, it is made clear that the above said observation made by the trial Court and this Court with regard to the distinctness between the property of the plaintiff and the defendants is only tentative in nature for the limited purpose of considering IA No.1 filed by the plaintiff and IA No.2 filed by the defendants and it cannot be construed as final opinion by this Court or the trial Court. The parties are at liberty to adduce evidence before the trial Court by producing oral and documentary evidence in order to establish their respective cases before the trial Court. The trial Court after recording the evidence and after appreciating the evidence on record, is at liberty to take its own decision on merits and it should not persuade itself in any manner, the observation made by it or by this Court tentatively with regard to the possession of the suit schedule property by the plaintiff. 20. Sofar as it relates to the balance of convenience is concerned, the plaintiff when once established before the Court tentatively for the limited purpose of considering IA No.1, that his property is distinct and separate and he has been in possession and enjoyment of the suit schedule property, on the other hand, the defendants have denied the plaintiff’s ownership and possession over the suit schedule property, that itself is sufficient at this stage to draw a tentative inference that the defendants have attempted to interfere with the plaintiff’s peaceful possession and enjoyment of the property so as to tentatively come to the conclusion that the balance of convenience also lies in favour of the plaintiff. 21. The learned counsel for the respondent has relied upon the following rulings reported in: (1) (1974) 1 SCC 242 between Nagindas Ramdas Vs. Dalpatram Ichharam @ Brijram & Others; (2) AIR 1967 SC 1386 between Mulraj Vs. Murti Raghunathji Mahaaraj; (3) (2015) 10 SCC 203 between Ram Niranjan Kajaria Vs. Jugal Kishore Kajaria Vs. Sheo Prakash Kajaria and others; and (4) (2008) 7 SCC 85 between Gauram Sarup Vs. Leelajetly and others; In all these decisions, the principle has been consistently followed with regard to the admissions made in the pleadings in a Judicial proceedings in comparison with the evidentiary admissions and that the Court can rely upon such admission to draw tentative inference. If the admissions are true, clear and best proof of the facts admitted, such admissions in pleadings or judicial admissions, admissible u/s.58 of the Evidence Act made by the parties or their agents, at or before the hearing of the case, stand on a higher footing than evidentiary admissions. If the admissions are true, clear and best proof of the facts admitted, such admissions in pleadings or judicial admissions, admissible u/s.58 of the Evidence Act made by the parties or their agents, at or before the hearing of the case, stand on a higher footing than evidentiary admissions. As I have already noted the contents of the written statement wherein the defendants have stated about the distinguished features of the property of the plaintiff and defendants, such admission can be relied upon by the Court tentatively, which has been done by the trial Court and there is no reason to differ from such an observation made by the trial Court. Under the above said circumstances, it can be said that the appeal is devoid of merit and the same is liable to be dismissed. 22. Sofar as the application filed by the appellants under Order 41 Rule 27 of CPC is concerned, in this particular document, the appellant’s counsel has produced an order passed in RFA No.428/2009 dated 5.1.2015 between Sandeep Gangadhar Vs. V. Jayaramreddy and another. Admittedly, the plaintiff is not a party to the above said proceedings. The defendant wants to rely upon the said judgment for the purpose of identification of Survey No.10/2 and 10/1A(1). The Court has also observed in the said document that the said Survey numbers are distinct and separate. Commissioner was appointed to inspect the property and to conduct survey, but the said survey report is not discussed in detail and not even a copy of the report is produced by the defendants before this court in order to understand the judgment passed in the said RFA. Another document relied upon is an agreement between M.A. Jayaram and M/s. Nano Diagnostics for which also the plaintiff is not a party and how the contents of this document can be utilized is not stated. Further, though certain photographs are produced, but this Court is not in a position to ascertain from the photographs as to whether the property which are in the photographs pertains to the suit schedule property or the written statement schedule property, without there being any explanation by way of oral evidence. Therefore, these documents though they are produced before this Court are not at all necessary for the purpose of deciding the possession of the parties tentatively. Therefore, these documents though they are produced before this Court are not at all necessary for the purpose of deciding the possession of the parties tentatively. Even these documents admittedly are the documents accrued subsequent to the order passed by the trial Court as stated in the affidavit filed in respect of the application. This Court has to examine whether the trial Court has committed any serious legal error or factual error on the basis of the materials produced before it. This Court found that the trial Court has not committed any serious error. Therefore, the document produced along with this application cannot be relied upon by the Court in order to reverse the finding of the trial Court when the trial Court had no such opportunity to look into these documents. 23. Under the above said circumstances, the defendant is at liberty to produce these documents, if need be, at the time of evidence. Hence, the said IA is deserves to be dismissed and accordingly it is dismissed. 24. Under the above said facts and circumstances of the case, I do not find any strong reasons to differ from the opinion expressed by the trial Court. Accordingly, the appeal is dismissed.