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2024 DIGILAW 102 (KAR)

T Byregowda v. T. Mukunda

2024-02-02

H.T.NARENDRA PRASAD

body2024
JUDGMENT 1. This appeal under Section 96 of CPC is filed by the appellant-defendant challenging the judgment and decree dated 01.12.2016 passed by the XX Addl. City Civil and Sessions Judge, Bangalore in O.S.No.1136/2013, wherein the Trial Court has decreed the suit filed by the plaintiff for injunction. 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court in the original suit. 3. Brief facts of the case: (a) Sri.T.Ramakrishnappa, Sri.Lakshmi hanumantharayappa and Sri.Kempanna (vendors of plaintiff) have purchased the agricultural land bearing Sy.No.45/3 of Gidadakonenahalli, Yeshwanthapura Hobli, Bangalore North Taluk under the registered sale deed dated 08.11.1958. After the purchase of the said land, their names have been mutated in the revenue records. Based on the application filed by them, the Deputy Commissioner has passed an order dated 08.12.2003 for the conversion of land. Thereafter, they have executed a GPA in favour of one Sri.Sachidananda Prasad for the development of their property and for the formation of a residential layout in the said land. The plaintiff has purchased a site (hereinafter referred to as 'suit schedule property') formed in the said layout in Sy.No.45/3 through a registered sale deed dated 02.08.2004. Even several other purchasers have also purchased sites in the layout through various sale deeds. Thereafter, plaintiff applied for katha before the concerned authority. Hence, the plaintiff is the absolute owner of the suit schedule property. The defendant having no manner of right or interest over the suit schedule property was trying to interfere with the plaintiff's peaceful possession of the suit schedule property. Hence, the plaintiff filed the suit for permanent injunction. (b) On service of suit summons, the defendant appeared through his counsel and filed the written statement denying the entire plaint averments. The defendant has stated that Sri.Thammannappa had purchased the land in Sy.No.45/3 vide registered sale deed dated 08.11.1958 in the name of his minor sons, T.Ramakrishnappa, Sri.Lakshmihanumantharayappa and Sri.Kempanna and at that time, the defendant and his brother, Sri.Hanumaiah, were not born. Subsequent to the purchase of the said property, defendant and his brother, Sri.Hanumaiah were born to Thammannappa and thereafter, they are in joint possession and enjoyment of the property along with his other brothers. Subsequent to the purchase of the said property, defendant and his brother, Sri.Hanumaiah were born to Thammannappa and thereafter, they are in joint possession and enjoyment of the property along with his other brothers. It is stated that at no point of time, neither the defendant nor his brothers have executed the Sale Agreement in favour of the plaintiff nor they have executed any GPA in favour of one Sri.Sachidananda Prasad. It is further stated that in the year 1982, there was a partition among the brothers of the defendant under Panchayath Parikat as per Ex.D-2. Under the said partition, land measuring 1 acre 18 guntas of land in Sy.No.45/3 has fallen to the share of the defendant. From the date of partition, the defendant is in possession of the property. (c) On hearing the rival contentions of the parties, the Trial Court has framed the following issues: a) Whether the plaintiff proves his lawful possession over the suit schedule property as on the date of the suit? b) Whether the plaintiff proves the alleged interference of the defendant? c) Whether the plaintiff is entitled for the relief of perpetual injunction? d) What order or decree? (d) In order to substantiate the case, the plaintiff has examined himself as PW-1 and marked documents at Ex.P-1 to P-16. On behalf of the defendant, he has examined himself as DW-1 and produced documents at Ex.D-1 to D-9. On appreciation of oral and documentary evidence on record, the Trial Court has answered all the issues in affirmative and accordingly decreed the suit vide impugned judgment and decree. Being aggrieved by the same, the defendant has filed this present appeal. 4. Sri.B.S.Jeevan Kumar, learned counsel appearing for appellant-defendant has raised the following contentions: a) The father of the defendant, Sri.Thammannappa had purchased the land in Sy.No.45/3 vide registered sale deed dated 08.11.1958 in the name of his minor sons, T.Ramakrishnappa, Sri.Lakshmihanumantharayappa and Sri.Kempanna. At that time, the defendant and his brother, Sri.Hanumaiah, were not born. Subsequent to the purchase of the said property, defendant and his brother, Sri.Hanumaiah were born to Sri.Thammannappa and thereafter, they are in joint possession and enjoyment of the said property along with his other brothers. At no point of time, neither the defendant nor his brothers have executed the sale agreement in favour of the plaintiff nor they have executed any GPA in favour of one Sri.Sachidananda Prasad. At no point of time, neither the defendant nor his brothers have executed the sale agreement in favour of the plaintiff nor they have executed any GPA in favour of one Sri.Sachidananda Prasad. In the year 1982, there was a partition among the brothers of the defendant under Panchayath Parikat as per Ex.D-2. Under the said partition, land measuring 1 acre 18 guntas of land in Sy.No.45/3 has fallen to the share of the defendant. From the date of partition, the defendant has been in possession of the property. He has not executed any sale deed in favour of the plaintiff. Till today, the defendant is in possession of the property. b) It is contended that the plaintiff is claiming that the brothers of the defendant, namely, T.Ramakrishnappa, Sri.Lakshmihanumantharayappa and Sri.Kempanna have executed GPA in favour of Sri.Sachindananda Prasad; Sri.Sachidananda Prasad has formed the layout and sold sites formed in the layout to various persons and plaintiff has purchased a site in the said layout vide registered sale deed dated 02.08.2004. The plaintiff has not produced the GPA to show that the brothers of the defendant have executed the GPA in favour of Sri.Sachidananda Prasad after receiving sale consideration. The plaintiff has also not produced any documents to show that Sri.Sachidananda Prasad has formed the layout and that Sri.Sachidananda Prasad has obtained any permission from the competent authority for forming the layout. The plaintiff has also not produced the sketch to show that the sites have been formed. Therefore, the defendant has denied the title of the plaintiff. When there is a dispute regarding the title, a suit for injunction is not maintainable. c) It is further contended that from the date of partition, the defendant is in possession of the property. He has also produced Panchayath Parikat at Ex.D-2 and RTC extracts at Ex.D-3. Except producing tax demand extracts and tax paid receipts, the plaintiff has not produced any documents to show that he is in possession of the property and he has also not produced the katha extract issued by BBMP. Since no documents have been produced to show that the layout has been formed, it is difficult to identify the suit schedule property. When the plaintiff fails to prove his possession and also the identity of the property, the suit for bare injunction is not maintainable. Since no documents have been produced to show that the layout has been formed, it is difficult to identify the suit schedule property. When the plaintiff fails to prove his possession and also the identity of the property, the suit for bare injunction is not maintainable. In support of his contention, he has relied upon the judgment of the Apex Court rendered in Civil appeal Nos.5575-5576/2021. d) Lastly, it is contended that if the defendant's brothers have sold the property in Sy.No.45/3 situated in Yeshwanthapura Hobli, Bangalore North Taluk, as contended by the plaintiff and since the defendant's brothers have distinct interest in the property and sold the property together for a lumpsum, the plaintiff ought to have produced the documents to show that the vendors have received the sale consideration, as per the provisions of Section 46 of the Transfer of Property Act. But the plaintiff has not produced any such documents. Therefore, the suit filed by the plaintiff is not maintainable. The Trial Court without considering this aspect of the matter has erred in decreeing the suit. With the above contentions, the learned counsel for appellant sought for allowing the appeal. 5. Per contra, Mr.B.Sharath Kumar, learned counsel appearing for respondent-plaintiff has raised the following the counter-contentions: a) The suit schedule property originally belonged to one T.Ramakrishnappa, Sri.Lakshmi hanumantharayappa and Sri.Kempanna. They had purchased the agricultural land bearing Sy.No.45/3 situated at Gidadakonenahally, Yeshawanthapura Hobli, Bangalore North Taluk, under a registered sale deed dated 08.11.1958. They have executed a registered GPA in favour of Sri.Sachidananda Prasad and thereafter, Sri.Sachidananda Prasad has formed a layout in Sy.No.45/3 after obtaining permission from the Deputy Commissioner and formed residential sites in the said layout. The plaintiff has purchased a site in the layout vide registered sale deed dated 02.08.2004. The original owners, namely, T.Ramakrishnappa, Sri.Lakshmi hanumantharayappa and Sri.Kempanna have signed the said sale deed along with Sri.Sachidananda Prasad. The original owners have not challenged the said sale deed. The plaintiff has been in possession of the suit schedule property from the date of purchase. The defendant has no right or title over the suit schedule property as he was not born as on the date of purchase of the land in Sy.No.45/3 vide registered sale deed dated 08.11.1958. The original owners have not challenged the said sale deed. The plaintiff has been in possession of the suit schedule property from the date of purchase. The defendant has no right or title over the suit schedule property as he was not born as on the date of purchase of the land in Sy.No.45/3 vide registered sale deed dated 08.11.1958. Therefore, he contended that the plaintiff is the absolute owner and in possession of the suit schedule property from the date of purchase and he has produced tax demand receipts and tax paid receipts in respect of the suit schedule property. b) It is further contended that the defendant has not produced any documents to show that he is in possession of the suit schedule property. Even though the defendant has claimed that by partition in the year 1982, land measuring 1 acre 18 guntas has fallen to his share by Panchayath Parikath as per Ex.D-2, but no document has been produced to show that after the partition, his name has been entered in the revenue records. Only for the first time, in the year 2008, he approached the Tahsildar to change the revenue records in his name on the basis of Panchayath Parikat Ex.D-2. Regarding the revenue entries in respect of the said land, there is a dispute pending before this Court in W.P.No.50678/2014. Except producing Ex.D-2, the defendant has not produced any other necessary documents to show that he is in possession of 1 acre 18 guntas of land, which has fallen to his share in the partition of the year 1982. c) It is further contended that there is no plea taken by the defendant in the written statement regarding the identity of the suit schedule property and he has not disputed regarding the identity of the property before the Trial Court. For the first time, this argument has been advanced before this Court. Therefore, he contended that there is no dispute regarding the title of the property of the plaintiff, as the plaintiff has proved his possession. Therefore, the Trial Court has rightly decreed the suit. d) It is further contended that Section 46 of the Transfer of Property Act is not applicable to the present case. Therefore, he contended that there is no dispute regarding the title of the property of the plaintiff, as the plaintiff has proved his possession. Therefore, the Trial Court has rightly decreed the suit. d) It is further contended that Section 46 of the Transfer of Property Act is not applicable to the present case. The defendant has no right or title over the suit schedule property and he has not executed any sale deed and he is not a party to the sale deed dated 02.08.2004. Therefore, such a contention that Section 46 of the Transfer of Property Act is applicable to the present case, is not available to be urged by the defendant. e) Lastly, he has contended that plaintiff's vendors and GPA holder, Sri.Sachidananda Prasad have formed a layout in Sy.No.45/3 and sold sites to various persons. Some of the purchasers, who have purchased sites formed in the layout, have filed suits in O.S.No.770/2014, O.S.No.775/2014 and O.S.No.84/2013 and in all the said suits, defendant is a party. In the said suits, the Trial Court has decreed the suits and granted relief of permanent injunction against the defendant. The judgments and decrees passed in the said suits have not been challenged by the defendant and hence, attained finality. The Trial Court considering all these aspects has rightly decreed the present suit. There is no error in the impugned judgment and decree passed by the Trial Court. With the above contentions, the learned counsel for the respondent-plaintiff has sought for dismissal of the appeal. 6. Heard the learned counsel for the parties. Perused the impugned judgment and decree passed by the Trial Court and original records. 7. After hearing the learned counsel for the parties, the point that arises for consideration in this appeal is: "Whether the Trial Court is justified in decreeing the suit of the plaintiff filed for a bare injunction, in the facts and circumstances of the case? 8. Plaintiff has filed the suit for permanent injunction. The specific case of the plaintiff is that Sri.T.Ramakrishnappa, Sri.Lakshmi hanumantharayappa, Sri.Kempanna have purchased the land in Sy.No.45/3 situated at Gidadakonenahally, Yeshawanthapura Hobli, Bangalore North Taluk under a registered sale deed dated 08.11.1958. Thereafter, they have executed GPA in favour of Sri.Sachidananda Prasad, who has formed a layout in Sy.No.45/3 after obtaining permission from the Deputy Commissioner. The specific case of the plaintiff is that Sri.T.Ramakrishnappa, Sri.Lakshmi hanumantharayappa, Sri.Kempanna have purchased the land in Sy.No.45/3 situated at Gidadakonenahally, Yeshawanthapura Hobli, Bangalore North Taluk under a registered sale deed dated 08.11.1958. Thereafter, they have executed GPA in favour of Sri.Sachidananda Prasad, who has formed a layout in Sy.No.45/3 after obtaining permission from the Deputy Commissioner. The plaintiff has purchased a site formed in the layout vide registered sale deed dated 02.08.2004. To substantiate his case, the plaintiff has produced the registered sale deed of his vendors dated 08.11.1958 and also produced the registered sale deed dated 02.08.2004, to show that he has purchased the suit schedule property from his vendors for valuable consideration. 9. The case of the defendant is that in the year 1982, there was a partition among his brothers through Panchayath Parikat as per Ex.D-2 and land measuring 1 acre 18 guntas in Sy.No.45/3 has fallen to his share under the said partition. From the date of partition, he has been in possession of the property. He has also produced Panchayath Parikat at Ex.D-2 and RTC extracts at Ex.D-3. The defendant (DW-1) in his cross-examination has admitted that he is not concerned with other portions of the property in Sy.No.45/3 except 1 acre 18 guntas, which has fallen to his share. Even though he has specifically contended that under Panchayath Parikat, Ex.D-2, land measuring 1 acre 18 guntas has fallen to his share, he is not sure whether the suit schedule property falls in the said 1 acre 18 guntas or not and he has also not produced any iota of evidence before the Court that suit schedule property falls under 1 acre 18 guntas. Even though the defendant has claimed that in the partition, land measuring 1 acre 18 guntas had fallen to his share under Panchayath Parikat of the year 1982, but only for the first time, in the year 2008, he has approached the Tahsildar for change of revenue entries in his name. He has not produced any documents to show that after the Panchayath Parikat, his name has been entered into the revenue records. 10. In respect of a site purchased by other purchaser formed in the layout in the very same Sy.No.45/3, a suit in O.S.No.4140/2013 has been filed wherein the defendant is a party to the suit. He has not produced any documents to show that after the Panchayath Parikat, his name has been entered into the revenue records. 10. In respect of a site purchased by other purchaser formed in the layout in the very same Sy.No.45/3, a suit in O.S.No.4140/2013 has been filed wherein the defendant is a party to the suit. The said suit came to be decreed vide judgment and decree dated 20.03.2014. The judgment and decree passed in the said suit has been produced and marked as Exs.P-15 and 16. Since the defendant has not challenged the said judgment and decree, the same has attained finality. 11. The respondent-plaintiff has produced a memo before this Court along with copy of judgments and decrees dated 6.3.2017, 29.6.2017 and 5.3.2017 passed by the City Civil Court, Bangalore in O.S.No.770/2014, O.S.No.775/2014 and O.S.No.84/2018 respectively. It is observed that in all these cases, the defendant is a party. Suits filed by the plaintiff for bare injunction have been decreed in respect of certain sites formed in Sy.No.45/3 and since the defendant has not challenged the same, the said decrees have attained finality. 12. Admittedly, the defendant is not a signatory to the sale deed dated 02.08.2004. Hence, the provision of Section 46 of the Transfer of Property Act is not applicable to the facts of the present case. Accordingly, the contention of the learned counsel for the defendant that Section 46 of the Transfer of Property Act is applicable to the facts of the present case, cannot be accepted. 13. As per the principles enunciated by the Hon'ble Supreme Court in the case of Anathula Sudhakar Vs. P.Buchi Reddy (Dead) by L.Rs. & Ors. reported in 2008 (4) SCC 594 , whenever a suit is filed for an injunction in respect of open space and the very title of the said property is emphatically disputed, normally a comprehensive suit will have to be filed seeking the main relief of declaration of title and consequential relief of injunction, if he is in possession of the same. In the very said decision, it is also specifically held that persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration. Paragraph 21 (d) of the said decision is relevant and the same is extracted hereinbelow: "21. In the very said decision, it is also specifically held that persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration. Paragraph 21 (d) of the said decision is relevant and the same is extracted hereinbelow: "21. xxxxx (a) xxxxx (b) xxxxx (c) xxxxx (d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case. 14. Therefore, in view of the law laid down by the Apex Court in the case of Anathula Sudhakar (supra) and also taking into consideration the oral evidence of parties and documentary evidence such as registered sale deed executed in favour of plaintiff, encumbrance certificate, tax demand extracts and tax paid receipts, this Court has come to the conclusion that the plaintiff is in lawful possession and enjoyment of the suit schedule property. 15. This Court, being the first appellate court and final court of facts for an appeal filed under Section 96 of CPC, has reassessed the entire evidence on the touchstone of intrinsic probabilities. Viewed from any angle, the impugned judgment and decree is not opposed to law, facts or probabilities. The Trial Court has adopted the right approach to the real state of affairs. There is no error or perversity in the judgment and decree passed by the Trial Court. Therefore, this Court cannot interfere with the well considered judgment and decree passed by the Trial Court and hence, the appeal is liable to be dismissed. The point raised for consideration by this Court is answered accordingly. 16. There is no error or perversity in the judgment and decree passed by the Trial Court. Therefore, this Court cannot interfere with the well considered judgment and decree passed by the Trial Court and hence, the appeal is liable to be dismissed. The point raised for consideration by this Court is answered accordingly. 16. Accordingly, the following order is passed: ORDER a) The appeal is dismissed. b) The judgment and decree dated 01.12.2016 passed by the XX Addl. City Civil and Sessions Judge, Bangalore in O.S.No.1136/2013, is confirmed. c) Parties to bear their own costs.