Anandamma vs N. Leela Kumar

B. Sreenivas Gowda, J.—1. This second appeal is preferred by the plaintiff in O.S. No. 495/2010, assailing the concurrent judgments and decrees passed by the Courts below in dismissing her suit brought for the relief of permanent injunction.

Learned counsel appearing for the appellant submits that the plaintiff has purchased the suit property measuring 1 1/4 guntas of land in Sy. No. 423/4 from one Rajalakshmi under a registered sale deed dated 15/2/1993. The defendant, in his written statement as well as in the evidence, has admitted that the said Rajalakshmi is the original owner of the suit survey number. In spite of that, the courts below have committed an error in holding that there is a cloud with regard to the title of the suit property and erred in dismissing the suit of the plaintiff. He submits that the judgments and decrees passed by the courts below are contrary to the material evidence on record. He submits that when title of the suit property is not in dispute, the suit for bare injunction is maintainable and therefore, there is substantial question of law that arises in the appeal, which needs to be considered and answered in favour of the plaintiff. Hence, he has prayed for allowing the appeal by setting aside the judgments and decrees passed by the courts below and grant the relief of permanent injunction restraining the defendant/respondent from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property.

It is an admitted case of the plaintiff that 23 1/2 guntas of land in Sy. Nos. 422 and 423/4 of Hassan Village Kasaba Hobli, Hassan Taluk, originally belonged to one H.V. Rajalakshmi. Out of said 23 1/2 guntas of land in Sy. No. 423/4, 1 1/4 guntas of land was sold in favour of the appellant/plaintiff under sale deed dated 15/2/1993. As the boundary to the sale deed was wrongly mentioned, the vendor Rajalakshma had executed a rectification deed dated 3/3/1998 in favour of the plaintiff. After purchasing the suit property, the khatha of the suit property was changed in her name and she has been paying the tax to the concerned authorities. She has obtained the commencement certificate from HUDA on 28/1/1998 and also obtained the licence and sketch and she has put up construction upto the plinth level in the suit property. She is in possession and enjoyment of the suit property since 15/2/1993. That being so, about three days prior to the filing of the suit, defendant came near the suit property and caused obstruction to the possession and enjoyment of the suit property. Hence, she was constrained to file the suit for the relief of permanent injunction.

The defendant after entering appearance in the suit, filed written statement contending that the plaintiff is not the owner of the suit property. She is not in possession and enjoyment of the suit property. The suit filed by the plaintiff for injunction without being in possession of the property is liable to be dismissed. The plaintiff''s vendor executed the rectification deed in favour of the plaintiff to facilitate her to file a false claim over the suit property. The averments made in the plaint are baseless. The Municipality, based on the sale deed effected the khatha of the suit property in the name of the plaintiff without verifying the validity of the sale deed. The plaintiff on the strength of the khatha and the sale deed fabricated the documents and obtained the plan and the licence for construction of a building in the suit property. The defendant also contended that the suit property originally belonged to one Rajalakshmi and she has sold 20 guntas of land in favour of one H.R. Ashok under a registered sale deed dated 22/10/1984. He got the said 20 guntas of land converted from agricultural into non-agricultural purpose and made the plots into smaller sites and one such site was sold in favour of one H.V. Prabhakar through registered sale deed dated 12/12/1992. As per the sale deed khatha was effected in the name of the said Prabhakar and he was in possession and enjoyment of the same and he has been paying municipal tax and he has sold the said plot in favour of the defendant through registered sale deed dated 18/3/2009 and since then, the defendant is in possession and enjoyment of the said plot. The property purchased by the defendant measures east to west 45 ft. and north to south 38 ft. The original owner Rajalakshmi filed a suit in O.S. No. 493/1993 on the file of II Addl. Civil Judge (Sr. Dn.), Hassan, for cancellation of the sale deed executed by her in favour of H.R. Ashok and the same came to be dismissed on 10/2/2006. After selling the suit property in favour of Ashok, Rajalakshmi had no saleable interest to sell the suit property in favour of the plaintiff. The plaintiff has not derived any title. She is not entitled for any relief as sought for. There was a suit between plaintiff''s vendor Rajalakshmi and defendant''s vendor Prabhakar vide O.S. No. 346/1998, wherein Rajalakshmi admitted that the property was sold to Ashok. Hence, he prayed for dismissal of the suit.

On the basis of the aforesaid pleadings, the trial court framed the following issues for its consideration:

i) Whether the plaintiff proves that she is in lawful possession and enjoyment of the suit schedule property?

ii) Whether the plaintiff proves that there is an alleged interference by the defendant?

iii) Whether the plaintiff is entitled for the relief as sought for?

iv) What decree or order?

The plaintiff in order to prove her case has examined her power of attorney holder Kempegowda as P.W. 1 and one Manjegowda as P.W. 2 and has produced sixteen documents, which were marked as Exs. P-1 to P-16. On behalf of the defendant, defendant himself was examined as D.W. 1 and has produced nineteen documents, which were marked as Exs. D-1 to D-19.

The Trial Court after hearing the arguments of the parties and considering the oral and documentary evidence on record has answered issue Nos. 1 and 3 in the negative holding that plaintiff has failed to prove that she is in lawful possession and enjoyment of the suit property and the plaintiff has failed to prove the alleged interference by the defendant and dismissed the suit. Being aggrieved by the judgment and decree of the trial court dated 22/1/2014, the plaintiff filed R.A. No. 40/2014 before the first appellate court. On re-appreciation of the entire oral and documentary evidence on record, the first appellate court dismissed the appeal with costs.

Being aggrieved by the concurrent findings of the courts below and not being successful before both the courts, the plaintiff has filed this second appeal.

I have heard the learned counsel for the appellant/plaintiff and perused the judgments and decrees passed by the courts below.

Ex. D-7 survey settlement sketch reveals that as per the orders passed in FDP. 3/1981 and O.S. No. 893/1967, H.V. Rajalakshmi was entitled for 25 3/4 guntas of land in Sy. No. 423/4, out of which 2.23 guntas of land has been acquired for the purpose of Hassan-Mangalore Railway Lane. In Sy. No. 423/4A2, the said Rajalakshmi sold 20 guntas of land in favour of one Ashok, through a registered sale deed dated 26/10/1984. The said Ashok, after purchase of 20 guntas of land in Sy. No. 423 from the original owner H.V. Rajalakshmi, got the same converted into non-agricultural purpose and formed sites and sold the sites in favour of Shyamanna, Ramesha, K. Shivanna and others under different sale deeds marked as Exs. D-2 to D-6 respectively. Survey Sketch Ex. D-7 which was prepared in 1992, reveals that Sy. No. 423 was divided as 423/4A, 423/4A2 and Sy. No. 423/4 was divided as 423/4A1, 423/4A2, 423/4A3 and 423/4b respectively. This phodi and assignment of survey number was also observed in the judgment in O.S. No. 493/1993. Plaintiff claims to have purchased 1 1/4 guntas of land in Sy. No. 423/4 from Rajalakshmi under sale deed Ex. P-2 dated 15/2/1993. It is to be seen that Sy. No. 423/4 was not in existence as on the date of plaintiff purchasing the suit property from Rajalakshmi. It is to be stated that Sy. No. 423 was divided and sub-numbers were assigned as Sy. Nos. 423/4A1, 423/4A2 and 423/4Ab in the year 1992 itself as per survey sketch Ex. D-7. Under the above circumstances, the suit as brought by the plaintiff for bare injunction in respect of 1 1/4 in Sy. No. 423/4 is not maintainable. It is in this background, both the courts below have concurrently held that title of the plaintiff to the suit property is denied by the defendant and Sy. No. 423/4 was not in existence as on the date of institution of the suit and there is cloud with regard to the title of the suit property and the plaintiff except producing the sale deed and khatha obtained on the basis of the sale deed and plan and licence obtained on the basis of sale deed and khatha, has not placed any other document to show that he is in possession and enjoyment of the suit property as on the date of institution of the suit. Whereas the defendant has not only produced the sale deed of Ashok who had purchased 20 guntas of land from the original owner Rajalakshmi has also produced conversion order obtained by Ashok converting the said 20 guntas of land from agricultural into non-agriculture and has also produced the khatha standing in the name of Ashok and also the sale deed executed by Ashok in favour of his vendor in respect of one of the plot formed by Ashok in the said 20 Guntas of land.

In the above circumstances, the trial court, considering the original and documentary evidence on record was justified in dismissing the suit of the plaintiff, holding that he has failed to prove his lawful possession over the suit property and alleged interference of the defendant over the said possession. The first appellate court, after re-appreciating the entire oral and documentary evidence on record dismissed the appeal and confirmed the finding of the trial court.

I have carefully gone through the said findings of the courts below and do not see any infirmity or illegality warranting my interference. Further there is no substantial question of law, which arises for my consideration. Hence, the following order:

Appeal is dismissed as devoid of merit.

In view of the dismissal of the appeal, the application I.A. 1/16 filed for temporary injunction is hereby rejected as the same does not survive for consideration.