Lakshmidevamma vs Narayanaswamy and Others

Anand Byrareddy, J.—Heard the learned counsel for the appellant. The appellant was the plaintiff before the Trial Court in a suit for injunction against several defendants. It transpires that the suit property bearing site No. 18 formed in Sy. No. 4 measuring 60 feet East to West towards Northern side, 60 feet towards Southern side and North to South 42 feet towards Eastern side and 40 feet towards Western side situated at Laggere Village, Yeshwanthpur Hobli, Bangalore North Taluk. The plaintiff claims to have been put in possession by one Chikkabyrappa on 10/7/1985 under an agreement of sale and a General Power of Attorney, as there was said to be a bar on registration of revenue sites at that point of time. Chikkabyrappa is said to have received the full consideration there of. And, from the time of purchase, the plaintiff claims to be in possession.

Earlier, one C. Narayan had sought to disturb the plaintiff''s possession which entailed the plaintiff in filing a suit in O.S. No. 2219/1997 before the City Civil Court, Bangalore, which suit was ultimately decreed. Later, defendant Nos. 4 and 5 are also said to have executed a document entitled as (sic) confirming the possession of the plaintiff dated 18/7/2006. In spite of defendant Nos. 1 to 3 and their father having confirmed the occupation of the plaintiff, it was alleged that they were seeking to alienate the property in favour of defendant Nos. 6 and 7 by suppressing their earlier conduct and it was stated that defendants 6 and 7 had no right over the suit property, but they were constantly visiting and threatening the plaintiff of dispossession. It is in that background, the suit was filed seeking the relief of permanent injunction.

Defendant Nos. 1 to 5 had entered appearance and filed written statement denying the plaintiff''s claim to ownership over the suit property on the basis of the agreement and general power of attorney executed by Chikkabyrappa. Chikkabyrappa was said to be the father of defendant Nos. 1 and 3 to 5 and father-in-law of defendant No. 2. It was submitted that the property was allotted to Chikkabyrappa under a registered partition deed dated 18/7/1963 and that Chikkabyrappa had died on 11/9/1994 leaving behind his five sons and three daughters to succeed to the suit property and they were in peaceful possession of the same. That Chikkabyrappa during his lifetime had not sold any property to the plaintiff and that he was an illiterate man and therefore the very documents said to have been executed in favour of the plaintiff was in serious dispute. It was further stated that defendants 1 to 5 were not parties to the earlier suit in O.S. No. 2219/97 which was filed by the plaintiff against one C. Narayana and it was denied that defendant No. 5 had confirmed the execution of any document confirming the possession of the suit property by the plaintiff. It was claimed that the property was joint family property and that the defendants were in peaceful possession of the property and that there was no division amongst them.

Defendant No. 6 had filed a separate written statement to contend that the plaintiff was not the owner and in fact it was defendants 6 and 7 who were the bona fide purchasers of the suit property and the plaintiff was a stranger to the suit property and that the sale deed was executed by defendant Nos. 1 to 3 in their favour dated 21/7/2008, and that they are in possession of the same from the date of the sale deed. The plaint averments were denied.

On the basis of the said pleadings, the Trial Court had framed the following issues:

Whether the plaintiff proves that she is in lawful possession over the suit schedule property as on the date of suit?

Whether the plaintiff proves that the defendant Nos. 6 and 7 caused interference and gave threat to the plaintiff''s peaceful possession and enjoyment of the suit schedule property?

What Decree or Order?

Addl. Issue framed on 31/08/2013

Whether the defendant Nos. 6 and 7 prove that they are the bona fide purchasers of suit property from the defendant Nos. 1 to 3 under a registered Sale Deed, dated 21/07/2008 and they are in lawful possession of the suit property?

The Trial Court had answered issues Nos. 1 and 2 in the negative and the additional issue No. 1 in the affirmative and dismissed the suit. It is that which is under challenge in the present appeal.

The learned counsel for the appellant would insist that the very suit property was the subject-matter of the earlier suit in O.S. No. 2219/1997 wherein the plaintiff''s possession of the suit property had been confirmed.

Though it is a vacant site, the exercise of possession by the plaintiff, was not denied. Therefore the court below, having opined that since there was a sale deed in favour of defendant Nos. 6 and 7, they had better title to the suit property and since the suit property was a vacant site, the plaintiff could not be claiming possession of the same, on the basis of the general power of attorney and an agreement said to have been executed by Chikkabyrappa and that the title deed in favour of defendant Nos. 6 and 7 prevailed over such documents set up by the plaintiff.

Though the learned counsel for the appellant would now submit that there is a small house on the suit property and that he has been in possession of the same and his possession should be protected notwithstanding the title set up by defendant Nos. 6 and 7 in respect of the property and that he cannot be dispossessed otherwise than under due process of law, the suit schedule does not indicate that there is any small house as submitted by the learned counsel for the appellant. Therefore there is no merit in this appeal. The appeal is dismissed. The learned counsel for the appellant seeks leave of this court to file a suit for declaration. No such leave can be granted. It is, however, open for the appellant to invoke Section 14 of the Limitation Act, 1963, if so applicable, and seek whatever relief is available to him.