SRI. J.RAMESH v. C.H.HARIBABU

Sri.K.Shrihari, counsel appellant Sri.U.Sivakumar, counsel for the respondent, have appeared in person.

#2. This is an appeal from the Court of VII Addl. City Civil and Sessions Judge, Bengaluru (CCH-19).

#3. For convenience’s sake, the status and ranking of the parties are referred to as per their ranking in the Trial Court.

#4. The plaint averments are stated as under: It is stated that the plaintiff is the absolute owner in possession of property, i.e., Site No.10 formed in Property No.402, House List Katha No.185/249/1 situated at Kalkere Village, K.R Pura Hobli, Bangalore East Taluk. It's a residential site measuring East to West 40 Feet and North to South 30 Feet. The suit schedule property originally belonged to One K.S.Shankarappa. He executed a registered General Power of - 3 - NC: 2025:KHC:27521 RFA No. 1000 of 2016 HC-KAR Attorney dated August 22, 1994, in favor of Shanmugam. The attorney executed a registered sale deed dated 24.02.1996 in favor of Chandrashekar, who in turn executed a registered sale deed on 27.07.2006 in favor of Narayanaswamy, who in turn executed a registered sale deed on 11.09.2006 in favor of the plaintiff. Thus, the plaintiff derived a valid right, title and interest over the suit schedule property. Ever since the date of the purchase, the plaintiff has been in possession and enjoyment of the suit schedule property. The katha stands in his name, and he has been paying taxes to the concerned authority. Contending that the defendant tried to interfere with the scheduled property and attempted to dispossess, the plaintiff filed a suit seeking the relief of a permanent injunction. After service of the suit summons, the defendant appeared through his counsel and filed a written statement and denied the plaint averments. He contended that he is the sole and absolute owner in possession and enjoyment of the property bearing Site No.10, formed in property No.402, Katha No.126/1, situated at Kalkere Village, K.R Pura Hobli, Bangalore East Taluk, having purchased the same from the wife and - 4 - NC: 2025:KHC:27521 RFA No. 1000 of 2016 HC-KAR children of Late Shankarappa under a registered sale deed dated 05.04.2006. He also contended that he is in possession and enjoyment of the property by getting the katha mutated to his name and paying taxes to the authority concerned. He specifically contended that the plaintiff is the owner of the suit schedule property bearing No.10, which is formed in Property No.439 and has H.L Katha No.185/249/1. Among other grounds, he prayed for the dismissal of the suit. Based on the pleadings, the Trial Court framed issues, the parties led evidence and documents were exhibited. The Trial Court vide Judgment and decree dated 22.04.2016 dismissed the suit. Hence, the plaintiff has filed the present appeal under Section 96 of CPC.

#5. Sri.K.Shrihari., counsel for the appellant, submits that the Judgment and Decree of the Trial Court are opposed to law and contrary to the oral and documentary evidence on record. Next, he submits that the Trial Court erred in holding that the plaintiff has failed to establish his lawful possession and enjoyment over the suit property. - 5 - NC: 2025:KHC:27521 RFA No. 1000 of 2016 HC-KAR A further submission is made that the Trial Court has erred in not appreciating the material on record which establishes that the plaintiff was the absolute owner in lawful possession and enjoyment of the suit property and the defendant had no manner of right, title, interest or possession over the suit schedule property. Counsel vehemently contended that the Trial Court erred in holding that the plaintiff was not in possession of the property on the ground that there was a serious dispute about the identity of the suit schedule property. It is also submitted that the plaintiff had established that Shankarappa, the original owner, had sold the property for valuable consideration in favor of plaintiff's predecessor in title; hence, his wife and children had no right to deal with the property. Lastly, he submits that viewed from any angle, the Judgment and Decree of the Trial Court is untenable in law and the same is liable to be set aside. Counsel, therefore, submits that the appeal may be allowed. In support of his arguments, counsel placed reliance on the following decisions: - 6 - NC: 2025:KHC:27521 RFA No. 1000 of 2016 HC-KAR (1) SUBHAGA AND OTHERS VS. SHOBHA AND OTHERS - (2006) 5 SCC 466. (2) ERNATH VS. DIGAMEER - LAWS (KAR) - 1999 - 7 - 71. (3) SHEODHYAN SINGH AND OTHERS VS. MUSAMMAT SANICHARA KUER AND OTHERS - 1961 SCC ONLINE SC 164.

#6. Counsel Sri.U.Shivakumar., for the respondent justified the Judgment and Decree of the Trial Court. Next, he submits that after the death of Shankarappa, his wife and children sold the property in favor of the defendant on

05.04.2006. A further submission is made that the property is identified by description in the schedule. The description in Ex.P.1 differs from Exs.P2 and P3. The Written statement was filed in 2007. The defendant specifically contended that he purchased Site No.10 in 2006. The Rectification deed was made in 2009. Hence, the Rectification Deed is hit by Section 52 of the T.P. Act. - 7 - NC: 2025:KHC:27521 RFA No. 1000 of 2016 HC-KAR Counsel vehemently contended that there is a cloud on the title of the plaintiff; hence, a suit for bare injunction is not maintainable and placed reliance on ANATHULA SUDHAKAR VS. P. BUCHI REDDY (DEAD) BY LRS. AND OTHERS - AIR 2008 SC 2033. Lastly, he submits that the appellant has not made any grounds to interfere with the Judgment of the Trial Court. Counsel, therefore, submits that the appeal may be dismissed.

#7. Heard the arguments and perused the appeal papers and the records with care.

#8. The short point that requires consideration is whether the Judgment and Decree of the Trial Court requires interference and whether the plaintiff is entitled to the relief of a permanent injunction.

#9. The facts are sufficiently said and do not require reiteration. The suit giving rise to this appeal was filed by the plaintiff seeking the relief of an injunction. As could be seen from the nature of the lis between the parties, the suit is one for a bare injunction based on possession as of the date of filing - 8 - NC: 2025:KHC:27521 RFA No. 1000 of 2016 HC-KAR of the suit. The right to an injunction is based on a prima facie right. The issue revolves around the factum of possession as of the date of filing of the suit. It would be relevant to see that in a suit for bare injunction, the plaintiff must prove her/his lawful possession and enjoyment over the suit property as of the date of filing of the suit. The Trial Court holds that the plaintiff is the absolute owner in possession of the property in question; however, it erroneously concludes that a cloud cast on the title of the plaintiff and thus, the plaintiff has failed to prove his possession over the suit schedule property. The approach of the Trial Court is wrong. The reason is apparent. It is well settled that once the plaintiff proves his prima-facie ownership and possession over the suit schedule property as of the date of the filing of the suit, he must succeed. In the present case, the plaintiff has met with the criteria.

#10. Lastly, counsel for the respondents vehemently contended that the Rectification Deeds were executed in 2009, i.e., during the pendency of the suit. The plaintiff amended the plaint to incorporate property No.402 in place of 439. The - 9 - NC: 2025:KHC:27521 RFA No. 1000 of 2016 HC-KAR action is hit by Section 52 of the T.P Act. He argued that the sale deed dated 24.02.1996 is not rectified. Hence, the plaintiff is not entitled to the relief. Sri.K.Shrihari., has invited my attention to the recital in the sale deeds and submitted that the boundaries are specifically mentioned and there is no discrepancy. The contentions are noted with care. There is no dispute about the boundaries. I would observe that in the sale deeds (Ex.P.1, Ex.P.2 and Ex.P.3), the boundaries are specifically stated and shown to identify the property. The area was described and worded. Parties were not left in any doubt as to the boundaries. Furthermore, in the power of attorney, there is a clear mention about Site No.10 in Property No.402. It is pivotal to note that the defendant did not put forth any specific defence about the boundaries. I may venture to say that it was a brief written statement and they referred only to the fact that they had purchased the property under a registered sale deed dated 05.04.2006. It is significant to note that the plaintiff amended the property number; the defendant neither objected nor contested the application. The Trial Court - 10 - NC: 2025:KHC:27521 RFA No. 1000 of 2016 HC-KAR vide Order dated 27.08.2010 allowed the application, and the order allowing the amendment attained finality since the defendant did not challenge it before the higher forum. Furthermore, the defendant did not amend the written statement. The original written statement was bald. This is a matter which may be capable of a great deal of exposition, but the case falls within a small compass. This is a straightforward suit for a bare injunction and a review of the material evidence on record indicates that there is no dispute regarding the plaintiff's predecessors' title to the suit schedule property, and as far as the change in the property number, the Trial Court permitted the plaintiff to amend the property number, and the order has attained finality. Hence, the contention about delay in rectification and dispute on the plaintiff's title over the suit property must necessarily fail. It seems to me that learned Judge, for no particular reason, created confusion regarding the issue and declined to grant the relief. The confusion which, I may venture to think, has sometimes crept into the cases is, in my view, due to a failure to ascertain and understand the material propositions put forth - 11 - NC: 2025:KHC:27521 RFA No. 1000 of 2016 HC-KAR by the parties. I regard it as not merely erroneous in law, but also, to adopt the language of CLAUSON, L.J., a shock to one’s sense of justice. In the result, I think that the conclusion of the Trial Court cannot be sustained. I think that the appeal should be allowed, and that the plaintiff in the circumstances must succeed. There is nothing much to discuss about the issue because the pleadings are simple and the documents are minimal. The Judgment and Decree of the Trial Court are liable to be set aside.

#11. The Judgment and Decree dated 22.04.2016 passed by the Court of VII Addl. City Civil and Sessions Judge, Bengaluru (CCH-19) in O.S.No.995/2007 is set aside. The suit is decreed. The defendant or anybody acting on his behalf are hereby restrained from interfering with plaintiff's peaceful possession and enjoyment over the suit schedule property. The Registry concerned is hereby directed to draw the decree accordingly. - 12 - NC: 2025:KHC:27521 RFA No. 1000 of 2016 HC-KAR

#12. Resultantly, the Regular First Appeal is allowed. Sd/- (JYOTI MULIMANI) JUDGE TKN List No.: 1 Sl No.: 21