B.G. Channappa vs N.R. Surendranath

P.D. Waingankar, J.—This appeal by the defendant is directed against the judgment and decree dated 07.12.2010 ''in O.S. No. 8724/2004 on the file of the V Additional City Civil Judge at Bangalore, whereby the suit filed by the plaintiffs is decreed and the defendant has been restrained by way of permanent injunction from causing interference with peaceful possession and enjoyment of the suit schedule property by the plaintiffs.

The facts in a nutshell which gave rise to this appeal are as under:

It is alleged by the plaintiffs who are husband and wife that they are the owners in peaceful possession and enjoyment of suit schedule property i.e., residential site No. 50 formed out of Sy. No. 3/2B measuring 7,065 sq. ft., which they had purchased under a registered sale deed dated 02.09.1994 from one Raghupathi the erstwhile owner to the property. The plaintiffs paid an amount of Rs. 2,11,950/- to Bangalore Development Authority (BDA) towards betterment charges and development charges. The defendant has absolutely no right, title or interest over the schedule property. Even then he is bent upon to cause interference with the peaceful possession and enjoyment of the suit schedule property by the plaintiffs which compelled the plaintiffs to file a suit for a decree of permanent injunction against the defendant.

The defendant in reply contended that the suit filed by the plaintiffs is not maintainable in law. It is the case of the defendant that one Sri. Hafeezur Rahman, Sri. Shafeequr Rahman and Sri. Najeebur Rahman along with their parents late A. Abdul Azeez and Faizunnisa jointly acquired 11 acres 30 guntas of land under different survey numbers by virtue of registered sale deed dated 07.03.1979. They executed a General Power of Attorney dated 27.10.2004 in favour of the defendant to lookafter their lands on their behalf, to put up compound wall etc., When the defendant after completing the compound wall in respect of various survey numbers purchased by the aforesaid persons and when he was in the process of putting up compound wall to Sy. No. 17/2A, the plaintiffs have obstructed the defendant. Sy. No. 17/2A is adjacent to Sy. No. 3/2B wherein the schedule property belonging to the plaintiffs said to be situated. In fact according to the defendant, the entire Sy. No. 3/2B measuring 17 guntas was notified and acquired by the BDA for formation of layout called as Banashankari VI Stage, meaning thereby the site belonging to the plaintiffs formed and carved out of the said survey number is also acquired by the BDA. The plaintiffs knowing fully well are trying to encroach upon the Sy. No. 17/2A belonging to the defendant. When their acts was resisted by the defendant, they filed a suit for a decree of permanent injunction against the defendant. Hence, defendant had sought for dismissal of the suit.

Upon going through the pleadings and the documents placed on record, the trial Court framed the following issues:

1) Do the plaintiffs prove their lawful possession over schedule property?

2) Do the plaintiffs prove the interference caused by the defendant with their possession?

3) What order and decree?

After framing of the issues, plaintiffs in order to prove their case examined plaintiff No. 1 as PW-1 and marked Exs. P-1 to P-4. The defendant got himself examined as DW-1 and marked Exs. D-1 to D-14. The trial Court upon hearing the arguments and upon appreciation of the entire material placed on record, recorded a finding that though the land is acquired by the BDA, the possession is still with the plaintiffs. The trial Court also recorded a finding that the defendant is trying to interfere with their peaceful possession and enjoyment of the plaintiffs over the schedule property which made the trial Court to pass a judgment and decree in favour of the plaintiffs as against the defendant.

Aggrieved by the judgment and decree, this appeal is preferred on the ground that the Court below has failed to take note of the factum of acquisition of the schedule property by the BDA much earlier to the filing of the suit and the plaintiffs have no right, title or interest whatsoever over the schedule property. Court below has also failed to note that the plaintiffs have not produced any document to show their right, title, interest over the schedule property as on the date of filing of the suit.

I have heard the learned counsel for the appellant since the respondents though served and unrepresented. Perused the records.

The learned counsel for the appellant would submit that the Court below has failed to take note of the factum of acquisition of the schedule property by the BDA much earlier to the filing of the suit and that the plaintiffs have no right, title or interest whatsoever over the schedule property. Learned counsel also submitted that the Court below failed to note that the plaintiffs have not produced any document to show their right, title, interest over the schedule property as on the date of filing of the suit Hence, the learned counsel sought to set aside the judgment and decree and to dismiss the suit.

Upon hearing the learned counsel appearing for the appellant and upon consideration of the entire material placed on record, the following points would arise for my determination:

1) Whether the finding recorded by the trial Court that the plaintiffs are in possession of the schedule property as on the date of filing of the suit is proper?

2) Whether the appellant has made out a case to call for interference with the impugned judgment and decree passed by the trial Court?

It is the specific case of the plaintiffs who are husband and wife that they are the owner in actual possession and enjoyment of the schedule property bearing a site No. 50 in Sy. No. 3/2B of Ganakallu village, Kengeri hobli, Bangalore South Taluk and that the defendant made an attempt to encroach upon the portion of the suit schedule property which made them to file a suit for a decree of perpetual injunction. On the other hand., it is the case of the defendant that one Hafeezur Rahman, Shafeequr Rahman and Najeebur Rahman along with their parents late A. Abdul Azeez and Faizunnisa jointly acquired Sy. Nos. 3/2C, 3/2A2, 17/1C, 17/1D1, 17/1D2, 17/2A, 17/2B, 17/1G2, 17/H1, 17/1H2, 17/1J2 of Ganakallu village, Kengeri Hobli, Bangalore South Taluk, totally measuring 11 acres and 33 guntas by a registered sale deed dated 07.03.1979 and they being the absolute owner of all the aforesaid survey numbers which they are in actual possession and enjoyment executed General Power of Attorney dated 26.10.2004 in favour of the defendant to safeguard the said properties and to represent them before any authority or Court or to carry out all acts or deeds as if he is the owner of the aforesaid survey numbers. It is the further case of the defendant that on the strength of the said power of attorney he is in possession and enjoyment of all the aforesaid survey numbers. While he was putting up compound around all these survey numbers, the plaintiffs have infact obstructed the defendant and filed the instant suit to grab the property of the defendant. The plaintiff No. 1-N.R. Surendranath, who has been examined as PW-1 has also reiterated their case in his evidence. So also the defendant who has been examined as DW-1 reiterated his case in his evidence. Since the plaintiffs have filed a suit for relief of permanent injunction, it is for the plaintiffs to establish their possession over the schedule property as on the date of filing of the suit and the obstruction or interference by the defendant into their peaceful possession and enjoyment. Defendant is not claiming any right, title or interest over the schedule property i.e., a site formed out of Sy. No. 3/2B. On the other hand, according to the defendant., plaintiffs are trying to encroach upon the adjacent property belonging to the defendant. Therefore, burden is on the plaintiffs to prove their ownership over the schedule property and the possession as on the date of filing of the suit on 26.11.2004.

Apart from oral evidence, the plaintiffs have produced four documents in support of their case. Ex. P-1 is the original sale deed dated 02.09.1994 having purchased the schedule property from one M. Raghupathi for a total consideration of Rs. 23,000/-. It is seen from Ex. P-1 that the schedule property totally measures 9 guntas of land out of 17 guntas in Sy. No. 3/2B of Ganakallu village. Ex. P-2 is the encumbrance certificate for the period from 01.04.1994 to 05.12.1994. It goes to show that the plaintiffs purchased the schedule property by registered sale deed dated 02.09.1994 for a total consideration of Rs. 23,000/- from M. Raghupathi. Ex. P-3 is the copy of the complaint addressed by the plaintiffs to the Police Inspector, Kengeri Police Station complaining that the defendant has been putting up compound wall by encroaching upon their land. Ex. P-4 is a letter dated 01.01.1997 issued by Omkar Farms addressed to plaintiff No. 1. If we look at these documents produced by the plaintiffs., except complaint which is dated 25.11.2004 no documents have been produced to show the ownership of the plaintiffs or the possession of the plaintiffs over the schedule property as on the date of filing of the suit.

The defendant on the other hand apart from oral evidence, produced as many as 14 documents marked as Exs. D-1 to D-14. Out of 14 documents produced by the defendant, Ex. D-2 is the General Power of Attorney dated 26.10.2004 executed by Hafeezur Rahman, Shafeequr Rahman and Najeebur Rahman in favour of the defendant. Ex. D-3 is the Preliminary Notification dated 15.11.2000 issued by the Commissioner, BDA, Bangalore, expressing their intention to acquire various survey numbers including Sy. No. 3/2B for formation of layout called Banashankari VI Stage. At Sl. No. 8 of the notification the name of M. Raghupathy, the original owner of the Sy. No. 3/2B, N.R. Surendranath, N.S. Jeevarekha, the plaintiffs and K. Chandrashekar Shetty are shown as Kathedars and Anubhavdars. The total area of Sy. No. 3/2B is shown as 17 guntas. Thus, from Ex. D-3, it is abundantly clear that the BDA issued Preliminary Notification for acquisition of entire extent of 17 guntas in Sy. No. 3/2B. Ex. D-4 is the final notification issued by BDA dated 21.08.2001 for having acquired various survey numbers including entire extent of Sy. No. 3/2B standing in the name of M. Raghupathy, N.R. Surendranath, N.S. Jeevarekha and K. Chandrashekar Shetty. Thus, from Exs. D-3 and D-4 notifications it is abundantly clear that the entire Sy. No. 3/2B has been acquired by the BDA for the formation of layout known as Banashankari VI Stage. It also appears that since the names of these plaintiffs and M. Raghupathy are shown in both notifications, they must have received compensation in respect of schedule property a site measuring 9 guntas carved out of Sy. No. 3/2B measuring 17 guntas. Thus, the plaintiffs have lost their rights, title and interest over the schedule property by virtue of Final Notification dated 21.08.2001. Perhaps for this reason, the plaintiffs have not been able to produce any documents either RTC or Khatha Certificate in respect of schedule property show that as on the date of filing of the suit the schedule property was standing in their name.

The case of the defendant is that on the strength of the power of attorney executed by Hafeezur Rahman, Shafeequr Rahman and Najeebur Rahman, he had undertaken construction of compound wall to adjacent survey number to safeguard the property as defined by the owners. The plaintiffs gave a complaint as per Ex. P-3 and filed suit. When they lost right, title and interest over the schedule property in view of the acquisition of the land by the BDA, much earlier to the filing of the suit, there was absolutely no cause of action for the plaintiffs to file a suit for injunction against defendant. The trial Court without appreciating the effect of Exs. D-3 and D-4, the Preliminary Notification and Final Notification in its proper perspective has erred in coming to the conclusion that the plaintiffs were in possession of the schedule property as on the date of filing of the suit without there being any material to substantiate the same. If the possession is still with the plaintiffs as on the date of filing the suit in the year 2004, even after acquisition of entire survey number in 2001 for formation of layout called as Banashankari VI Stage, nothing prevented the plaintiffs from producing the documents. The burden is on the plaintiffs who approached the Court. On the other hand, the trial Court expects the defendant to discharge this burden. The plaintiffs by suppressing the factum of acquisition of suit property filed false suit. When the plaintiffs failed to prove not only their ownership over the suit schedule property as on the date of filing of the suit and also their possession over the suit schedule property, the question of granting decree of permanent injunction in favour of plaintiffs does not arise. Needles to say that the judgment and decree are not sustainable in law. They are liable to be set aside. Accordingly, I pass the following order.

The appeal is allowed. The judgment and decree dated 07.12.2010 in C.S. No. 8724/2004 on the file of the V Additional City Civil Judge at Bangalore, is hereby set aside. O.S. No. 8724/2004 on the file of the V Additional City Civil Judge, Bangalore, is dismissed.