The High Court
Case Details
- 1 - NC: 2025:KHC:13954 RFA No. 1776 of 2006 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE C M JOSHI REGULAR FIRST APPEAL NO. 1776 OF 2006 (INJ) BETWEEN: SMT. SHAHIDA BEGUM, W/O AMEER JAN, AGED ABOUT 55 YEARS, R/A NO.215, IVTH EAST, JAYANAGAR HUTTING COLONY, THILAKNAGAR, BANGALORE. REP. BY POWER OF ATTORNEY HOLDER AMEER JAN, S/O LATE ABDUL LATHEEF, JAYANAGAR HUTTING COLONY, TILAKNAGAR, BANGALORE-560 069. (BY SRI M SHIVAPRAKASH, ADVOCATE) AND: 1. SRI. BALARAM, MAJOR, AGED ABOUT 58 YEARS, S/O LATE SANJEEVI, R/A NO.216, IVTH EAST, JAYANAGAR HUTTING COLONY, THILAKNAGAR, BANGALORE-560 069. 2. SMT. BABY, W/O BALARAM, AGED ABOUT 50 YEARS, R/A NO.216, IVTH EAST, JAYANAGAR HUTTING COLONY, THILAKNAGAR, BANGALORE-560 069. 3. SRI ARUNACHALAM, S/O VENKATAPPA, Digitally signed by NANDINI R Location: HIGH COURT OF KARNATAKA ...APPELLANT - 2 - NC: 2025:KHC:13954 RFA No. 1776 of 2006 AGED ABOUT 58 YEARS, C/O. M.S CANDLE HOME WORKS, D.NO. 413, CAUVERYNAGAR, 1ST CROSS, BANASHANKARI, KANAKAPURA MAIN ROAD, BANGALORE-560 070. (BY SRI B SHIVAMALLAPPA & SRI B VASANTHAKUMAR, ADVOCATE FOR R-2; SRI K.R RAMESH, ADVOCATE FOR R-1; NOTICE TO LRS OF R-3 IS D/W V/O DATED 28.10.2009) …RESPONDENTS THIS RFA IS FILED U/S.96 OF CPC AGAINST THE IN JUDGMENT AND DECREE DATED 3.6.2006 PASSED O.S.NO.5269/1989 ON THE FILE OF THE 15TH ADDL. CITY CIVIL AND SESS. JUDGE, BANGALORE, DISMISSING THE SUIT FOR PERMANENT INJUNCTION AND MANDATORY INJUNCTION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT AND COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT’, THIS DAY, THROUGH VIDEO CONFERENCING AT DELIVERED THE KALABURAGI BENCH, THE COURT FOLLOWING: CORAM: HON'BLE MR. JUSTICE C M JOSHI CAV JUDGMENT 1. This appeal is filed by the plaintiff in O.S.No.5269/1989 assailing the dismissal of the said suit by the learned XV Additional City Civil and Sessions Judge, Bengaluru (CCH-3) on 03-06-2006. 2. The factual matrix of the case as pleaded by the plaintiff is that, she is the absolute owner in possession and enjoyment of the suit schedule property bearing - 3 - NC: 2025:KHC:13954 RFA No. 1776 of 2006 No.215 situated in 4th block East, Jayanagar (Hutting Colony), Thilaknagar, Bengaluru. The said property was
Legal Reasoning
allotted by BDA to Sri.Veera Muthu under Possession Certificate dated 09-11-1973. From the said Sri.Veera Muthu, the plaintiff purchased the suit schedule property under a registered Sale Deed dated 09-10-1975. Since the date of purchase, the plaintiff is in possession of the said property and is staying in the said property with her family. The plaintiff has constructed a dwelling house measuring 11 ft. x 22 ft. and an open space is left as mentioned in the schedule. She submitted that the defendants who are the neighbhours, are having enmity since long and in all possible ways, they are trying to grab the plaintiff’s property. It is contended that they tried to dig up a foundation in the western portion of the suit schedule property, which is a open space and are trying to encroach upon the property of the plaintiff. 3. The defendants have no right, title or interest over the plaintiff’s suit schedule property and they have interfered with the possession and enjoyment of the same. - 4 - NC: 2025:KHC:13954 RFA No. 1776 of 2006 The plaintiff resisted the high handed act of the defendants and approached the concerned Police, but the plaintiff was asked to approach the Civil Court. Therefore, the plaintiff had no other way than to approach the Civil Court seeking civil remedies of injunction. Thus, alleging that the cause of action has arisen on 27-09-1989, she approached the trial Court seeking a permanent injunction against the defendants. 4. Subsequent to the filing of the suit, the plaint was amended by inserting an additional fact that in spite of undertaking given by defendant Nos.1 and 2 before the trial Court not to trespass into the suit schedule property, they have constructed a bathroom on the North-Western portion of the suit schedule property. Therefore, the plaintiff sought an injunction against the defendants to restrain them, their family members, followers or anybody claiming under them from interfering in any manner with the plaintiff’s peaceful possession and enjoyment of the suit schedule property and grant such other relief as the Court deems fit. - 5 - NC: 2025:KHC:13954 RFA No. 1776 of 2006 5. The suit schedule property is described as below in the plaint: East by West by North by South by : : : : Road Property No.216 Road Property No.224 Measuring as follows: East to West North to South : : 20 feet 23 feet + 23 feet, 6 inches 2 6. On issuance of summons, defendant Nos.1 and 2 appeared and defendant No.1 filed the written statement contending that plaintiff is not the owner of the suit schedule property. He contended that it belongs to the sons of Sri.Veera Muthu and the said Veera Muthu was allotted the suit schedule property by BDA. The purchase of suit schedule property by the plaintiff from Veera Muthu is denied by the defendants. It was contended that by the time the alleged sale deed in favor of the plaintiff was executed on 09-10-1975, the said Veera Muthu was not alive and therefore, the said sale deed is a spurious and created document and is a non est. It is contended that the plaintiff colluding with some people, has planned to - 6 - NC: 2025:KHC:13954 RFA No. 1776 of 2006 knock off the property and has entered in the possession. In addition to it, defendant No.1 contended that the Khata, tax paid receipts are all got up records for the purpose of knocking off the suit schedule property. It is contended that Veera Muthu had no right to sell the suit schedule property, since no Sale Deed was executed in his favor by the BDA. 7. It was further contended by defendant No.1 that the plaintiff has unauthorizedly constructed a small house without leaving any space towards the west and therefore, there is no space available for the plaintiff in Site No.215. However, the house was constructed by the plaintiff without any plan or licence and there being no window put up on the western wall of the plaintiff’s house, it cannot be said that there is any open space left belonging to the plaintiff. In other words, he claims his property bearing Site No.216 just abutting the western wall of the house of the plaintiff. He admits that the plaintiff is his neighbor and that he is in occupation of the property bearing No.216 situated towards the west of the - 7 - NC: 2025:KHC:13954 RFA No. 1776 of 2006 plaintiff’s house. He alleges that the plaintiff is trying to grab the property belonging to the defendants and has falsely alleged that the defendants are trying to dig up a foundation on the western open space of the plaintiff’s property. 8. It was the case of the defendant No.1 that he and his family members are living in a property bearing No.216 situated on the western side of the house of the plaintiff since long. Initially, the parents of the defendant No.1 i.e., Sanjeev and Rajamma came to Bengaluru about 35 years back and constructed the present hut and continued to live there without any obstruction from anyone. Therefore, they have perfected their title over the property bearing No.216, measuring East to West-19 feet and North to South-24 feet. His parents had constructed the hut initially and since the Government, the Corporation as well as the BDA allowed them to have their hut constructed, they are in the said premises since long. Defendant No.1 filed an application to BDA to regularize the occupation and on considering the application, the BDA - 8 - NC: 2025:KHC:13954 RFA No. 1776 of 2006 has prepared the mahazar and they are about to give the possession certificate to the defendants. 9. It is relevant to note that defendant No.1 has obtained an allotment letter from the BDA and later, in the year 2009, he claims to have their title deed executed i.e., the Sale Deed executed from the BDA in his favour, which he intends to produce in this appeal by way of an application under Order XLI Rule 27 of CPC. It was further contention of the defendant No.1 that the plaintiff in order to complicate the matter has got impleaded the defendant No.3-Arunachalam during the pendency of the suit. They have colluded with the said Arunachalam and got impleaded him in a suit and he is claiming that the BDA had allotted the site No.216 in his favour. 10. Subsequent to the amendment of the plaint, he also got amended the written statement. In view of such amendment, he has contended that the BDA allotted the site No.216 to him on 14-05-2000 and such allotment letter was issued after the spot inspection by the BDA - 9 - NC: 2025:KHC:13954 RFA No. 1776 of 2006 authorities. Therefore, alleging that there is no cause of action for the plaintiff to file the suit, he has sought for dismissal of the suit. 11. Defendant No.3-Arunachalam, who was impleaded in the suit at the instance of the plaintiff filed a written statement contending that the plaintiff has not approached the Court with clean hands. He alleged that the suit has been filed by the plaintiff in collusion with defendant Nos.1 and 2. He contended that the BDA had allotted the suit schedule property in his favour. However, he denied that the plaintiff had purchased the suit schedule property bearing No.215 from Veera Muthu. He also denied that the plaintiff constructed a house measuring 11 feet X 20 feet and she is staying in the same. 12. It was his case that Veera Muttu had constructed a Hut and Veera Muthu had not left any open space on the western side. In other words, he has supported the claim of defendant No.1 and denied that the - 10 - NC: 2025:KHC:13954 RFA No. 1776 of 2006 defendants are digging up the property belonging to the plaintiff. It was his case that he is a daily wage labourer and he had applied to the CITB for grant of the site bearing No.216 and vide resolution dated 12-02-1969, it was allotted to him and the allotment letter was issued. It was stated that a Possession Certificate was also issued in his favour on 30-09-1981. Accordingly, a khata certificate was also issued by the Bangalore City Corporation and since then he is paying the taxes regularly. It was contended that since there was a bereavement in the family, he was advised not to reside in the house situated in site No.216 and therefore, he had inducted the defendant No.1 on a monthly rental of Rs.100/- and later, the defendant No.1 turned hostile and started to give trouble to the defendant No.3 and as such, he had filed an Eviction Petition in HRC No.1109/1996 under the provisions of the Rent Control Act. It is contended that there is a dispute between him and the defendant No.1 as
Decision
well as the BDA and the Writ Petition No.56688/2002 was filed by him. Ultimately, he prayed for dismissal of the suit. - 11 - NC: 2025:KHC:13954 RFA No. 1776 of 2006 By way of additional written statement, the defendant No.1 and 2 have denied the contents of the amendment to the plaint is concerned. 13. On the basis of the above pleadings, the trial Court has framed the following issues and additional issues: 1. 2. ISSUES zÁªÁ ¸ÀéwÛ£À «¢ü¸ÀªÀÄävÀ ¸Áé¢üãÀzÀ°è vÁ¤gÀÄvÉÛãÉA§ÄzÀ£ÀÄß ªÁ¢ ¸Á©ÃvÀÄ ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ? zÁªÁ ¸ÀéwÛ£À vÀ£Àß ¸Áé¢üãÀzÀ°è ¥ÀæwªÁ¢UÀ¼ÀÄ «¢ü«gÀÄzÀÝ ºÀ¸ÀÛPÉëÃ¥ÀªÀ£ÀÄß ªÀiÁqÀÄwÛzÁÝgÉAzÀÄ ªÁ¢AiÀÄÄ ¸Á©ÃvÀÄ ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ? 3. K£ÀÄ DzÉñÀ? ADDL. ISSUES: 1. 2. zÁªÁ ¸ÀéwÛ£À°è ¥ÀæwªÁ¢UÀ¼ÀÄ DPÀæ«Ä¹PÉÆArgÀÄvÁÛgÉAzÀÄ ªÁ¢AiÀÄÄ ¸Á©ÃvÀÄ ¥Àr¸ÀÄvÀÛgÉAiÉÄÃ? vÁ£ÀÄ PÉÆÃjgÀĪÀAvÉ PÀvÀðªÀå ¤§AzsÀPÁeÉÕAiÀÄ£ÀÄß ¥ÀqÉAiÀÄ®Ä ªÁ¢AiÀÄÄ ºÀPÀÄ̼ÀîªÀgÁVgÀÄvÁÛgÉÃAiÉÄÃ? 14. Power of Attorney Holder of the plaintiff was examined as PW.1 and one witness was examined as PW.2 and Exs.P1 to P11(c) were marked in evidence. On behalf of the defendants, defendant No.1 was examined as DW.1 and one witness was examined as DW2. Defendant No.3 - 12 - NC: 2025:KHC:13954 RFA No. 1776 of 2006 was examined as DW.3 and Exs.D1 to D18 were marked in evidence. Since DW.2 did not offer herself for cross- examination, her evidence was eschewed from the records. 15. After hearing both the sides, the trial Court answered Issue No.1 in the 'Affirmative' and all other issues in the 'Negative' and proceeded to dismiss the suit. 16. Being aggrieved by the same, the plaintiff is before this Court in appeal. 17. During the pendency of the suit, defendant No.1 has filed an application under Order XLI Rule 27 CPC seeking to produce the copy of the Sale Deed executed by BDA in his favour in respect of site No.216, which is adjoining the suit schedule property. The affidavit filed in support of the said application contends that the said document is of the year 2009 and it is the subsequent development and it is necessary to bring the said fact on record and therefore, the application deserves to be allowed. - 13 - NC: 2025:KHC:13954 RFA No. 1776 of 2006 18. Further, during the pendency of this appeal, it was felt by this Court that a Court Commissioner has to be appointed for the spot inspection and therefore, learned counsel Mr.H.N.M.Prasad, was appointed as Court Commissioner, he visited the suit schedule property and then he has submitted the report along with the sketch. 19. The defendants have filed the objections to the said Report of the Court Commissioner stating that the Court Commissioner refused to measure the site No.216 despite a Memo of Instructions having been filed by the defendant Nos.1 and 2. It is contended that the Report of the Court Commissioner without the measurement of Site No.216 is erroneous. 20. On issuing summons, respondent Nos. 1 and 2 appeared through their counsel. During pendency of this appeal, respondent No.3 died and since this is a suit for injunction, the notice to LRs of respondent No.3 was dispensed with. - 14 - NC: 2025:KHC:13954 RFA No. 1776 of 2006 21. On admitting the appeal, the trial Court records have been secured and the submissions by the learned counsel appearing for the appellant/plaintiff and learned counsel for the respondents were heard. 22. The learned counsel appearing for the appellant/plaintiff contends that the trial Court has answered issue No.1 regarding lawful possession over the suit schedule property by the plaintiff in the affirmative. Even though defendant No.1 in his written statement contends that the open space on the western side of the house of the plaintiff belongs to him, the trial Court fails to construe the same as an interference and therefore, declines to grant the decree of injunction. The trial Court should have noted the resistance by defendant Nos. 1 and 2 as an interference in the possession of the plaintiff and answered the issue No.2 in the affirmative. 23. Secondly, he contends that the Report of the Court Commissioner and the photographs show that there exists a passage of 3 feet 3 inches adjoining the eastern - 15 - NC: 2025:KHC:13954 RFA No. 1776 of 2006 wall of the house of the plaintiff. This would reiterate the contention of the plaintiff about his possession and the claim of defendant Nos.1 and 2 over the said passage is itself the obstruction by the defendants. Thirdly, it is pointed out that it is only defendant No.1 who is contesting the suit. Defendant No.1 being a tenant under defendant No.3, has suffered an eviction decree by the Rent Court. Therefore, the plaintiff has a better title to the suit schedule property and therefore, the trial Court erred in dismissing the suit. The contention of defendant Nos. 1 and 2 that the BDA has allotted the site to them is a subsequent event, has not been proved. Therefore, he submits that the impugned judgment is not sustainable in law and the suit deserves to be decreed. 24. Per contra, learned counsel appearing for the respondents would submit that the Report of the Court Commissioner show that the property of the defendants which bears property No.216 was not measured despite there being a Memo of Instructions to that effect. Later, an effort was made by this Court to get the measurements - 16 - NC: 2025:KHC:13954 RFA No. 1776 of 2006 with the help of the photographs. Nevertheless, the Report of the Court Commissioner coupled with the photographs show that a bathroom has been constructed by the defendants in front of their hut. Therefore, when the hut of the defendants is just behind the bathroom, it indicate that the plaintiff is not in possession of the entire suit schedule property. The absence of any windows on the western wall of the house of the plaintiff, shows that the passage was never claimed and occupied by the plaintiff. When the defendants have taken up the contention that they have perfected title by way of adverse possession, it was incumbent upon the plaintiff to seek the declaration of title in respect of the entire property. Therefore, they seek dismissal of the suit. 25. Regarding application filed under order 41 Rule 27 of CPC, he submits that the Sale Deed executed by BDA being a subsequent event, is relevant for rendering an effective judgment and as such, the same be allowed. - 17 - NC: 2025:KHC:13954 RFA No. 1776 of 2006 26. After hearing the counsels appearing for the parties, the only point that arises for consideration is, whether the trial Court is justified in holding that the plaintiff is in lawful possession and that there was interference by defendant Nos.1 and 2 in enjoyment of such possession by plaintiff. As a corollary, the construction of the bathroom is to be removed or not by way of mandatory injunction. 27. The trial Court in its judgment, has elaborately dealt with the oral testimony of plaintiff and defendants and came to the conclusion that the testimony of defendant No.3 is unbelievable since his two written statements are contradictory to each other. The trial Court also observes that plaintiff admits that there is no window in the western wall of the house of the plaintiff. Further, it observes that PW1 admits that the suit schedule property measures East-West 20 feet but the building is measuring only 11 ft. East-West and it is adjoining a road and facing East. In other words, there is no door or window from the house of the plaintiff for the egress and - 18 - NC: 2025:KHC:13954 RFA No. 1776 of 2006 ingress into the open space which is on the western side of the house. This fact can also be seen from the photographs produced by the Court Commissioner. The testimony of PW1 regarding the situation gets impetus from the report of the court commissioner. Moreover, the plaintiff has not filed any objection to the report of the Court Commissioner. 28. The Report of the Court Commissioner shows that the bathroom constructed by defendant No.1 measures 3 x 3 ft. and is abutting the vacant area of the alleged suit schedule property and is in front of the house in property No.216 of the defendants. 29. The sketch, even though do not show the house of defendant No.1 in property No.216, it shows that excluding the bathroom, the total East-West measurement of the property occupied by the plaintiff would only be 14 ft. 6 inches. In other words, the plaintiff cannot be said to be in possession and enjoyment of the property which measures 19 ft. East-West. Therefore, if we accept that - 19 - NC: 2025:KHC:13954 RFA No. 1776 of 2006 the suit schedule property measures 19 ft. East-West, then it would obviously, encompasses the house constructed in property No.216 also. A perusal of the photographs produced by the Court Commissioner also emphasize this aspect. 30. It appears that the trial Court construed the 3 ft. passage adjoining the western wall of the house of the plaintiff to be the only suit property and not beyond that. It being an open space, the trial Court came to the conclusion that it is in possession of the plaintiff and answered issue No.1 in the affirmative. But the fact that the passage and the house of the plaintiff measures only 14 ft. 6 inches east-west which leads to the conclusion that the plaintiff is not in possession of the entire suit schedule property measuring 20 ft. North South and 19 ft. East-West was not appreciated by it. To that extent, even issue No.1 appears to be flawed. 31. Be that as it may. Defendant No.1 has taken up the contention that Veera Muthu had no title to transfer - 20 - NC: 2025:KHC:13954 RFA No. 1776 of 2006 the said property to the plaintiff. In fact, Veera Muthu, was only having the allotment letter by CITB which was the earlier entity of the BDA. Defendant No. 1 has denied the title of the plaintiff in categorical terms and even has set up adverse possession. 32. Defendant No. 1 has contended that the BDA has allotted property No.216 to him and later has executed a registered sale deed in his favour in the year 2009. The said sale deed is sought to be produced as an additional evidence in this appeal. Evidently, the provisions of order 41 Rule 27(1) of CPC empowers the Appellate Court to permit such subsequent events to be considered in rendering an effective judgment. Therefore, though the Sale Deed is not of much relevance as the question of title is not involved in this case, it gives an impetus to the claim of defendant No.1 over the property No.216 and its measurement. As such the IA deserves to be allowed. When compared, it appears that the title of the defendants is better than that of the plaintiff. - 21 - NC: 2025:KHC:13954 RFA No. 1776 of 2006 33. The reason for the trial Court to hold issue No.2 in the negative is that the testimony of PW1 nowhere shows that the defendants obstructed her possession by attempting to construct a bathroom and during pendency, they proceeded with the construction of the bathroom. On the contrary, the defendants have reiterated that the bathroom was constructed about 40 years back when he constructed his hut. The trial Court has also came to the conclusion that the photographs and the documents failed to establish that the bathroom is in the property belonging to the plaintiff. It also observes that the bathroom is exactly in front of the building of defendant No.1 in property No.216. Therefore, it negated the contention of plaintiff that defendant No.1 had tried to interfere in the possession and enjoyment of the open space belonging to him. 34. The above discussion shows that though the plaintiff claims that suit schedule property measuring East- West 20 feet bearing No.215 is in her lawful possession, in fact, she is in possession measuring 11 ft.,3 inches East- - 22 - NC: 2025:KHC:13954 RFA No. 1776 of 2006 West in the form of building and 3 ft. 3 inches in the form of a passage as reported by the court commissioner. The bathroom being exactly on the northern side of the house of the defendant No.1, is not within the passage stated above. Oral testimony of PW1 shows otherwise. The oral testimony do not show that bathroom was constructed during the pendency of the suit. If we accept the measurement of the property of the plaintiff as East-West 20 ft., then even the house of the defendant No.1 will also come within the suit schedule property. Therefore, the conclusion of the trial Court that the plaintiff is not entitled for any reliefs deserves to be upheld. This Court do not agree with the finding of the trial Court on issue No.1 in view of the evidence on record which is supported by the report of the Court Commissioner, which remain un- objected by the plaintiff. 35. In the result, no fault can be found with the judgment of the trial Court in dismissing the suit. Consequently, point raised above is answered in the negative. - 23 - NC: 2025:KHC:13954 RFA No. 1776 of 2006 36. Hence, the following: ORDER (i) IA No.1/2024 is allowed. (ii) The appeal is dismissed. (iii) The judgment of the trial Court in dismissing the suit of the plaintiff is confirmed. Sd/- (C M JOSHI) JUDGE tsn* Sl No.: 1