M. Suresh vs Govindappa and Others

Anand Byrareddy, J.

The Counsel for the appellant remains absent and a request is made for an adjournment. However, the learned Counsel for the respondent would point out that the matter has been heard at length on more than two occasions and when this court had expressed an opinion that the appeal may lack in merit and about to dispose of the appeal, a request for an adjournment was made and the matter stood adjourned and therefore, the appeal would have to be disposed of on merits on the basis of the contentions already urged before this court.

The appellant was the plaintiff before the trial court. The case of the plaintiff was that land bearing Survey No. 16/3, totally measuring 4 acres of Laggere Village, Bangalore North Taluk belonged to one Ammayamma @ Ramakka. The said Ammayamma had sold the same in favour of Thimmakka @ Gundamma under a registered sale deed dated 6.1.1964. The said Thimmakka was in possession and enjoyment of the said land as the absolute owner and that the revenue records also stood in her name. It was the plaintiffs claim that subsequently, the plaintiffs mother one Kamalamma had purchased the entire 4 acres of land from Thimmakka under a registered sale deed dated 20.1.1972 and from the date of purchase, it is claimed that the plaintiffs mother was exercising possession and was paying taxes to the competent authority and that the khata also stood in her favour. It was further alleged that the Kamalamma had two sons and two daughters namely, Suresh, the plaintiff herein, Shivashankar, Rathnamma and Dhanalakshmi. It appears that the daughters are said to be married and living alongwith their families. The plaintiffs brother, Shivashankar was residing with the plaintiff and that during the life time of Kamalamma, she was looking after the affairs of the family and managing the properties and she had died on 5.2.2000 leaving behind the appellant and others. After the death of Kamalamma, the plaintiff - appellant, being the elder son of Kamalamma had been taking care of the joint family consisting of the appellant and his brother and sisters.

It was further stated that Kamalamma had sold a portion of the property purchased by her in favour of different persons and that there was a storm water dram, which passed through the land of the appellant and that the mother of the plaintiff had retained the land measuring east to west 200 feet and north to south 140 feet, which is described as the suit ''A'' schedule property and that the documents pertaining to the suit schedule property had not been transferred in the name of the plaintiff and his family members, pursuant to the death of Kamalamma and that the plaintiff had approached the authorities in respect of the same. The plaintiff further claimed that during the life time of Kamalamma, he had put up four asbestos sheet roofed dwelling units and eight huts and all of which had been let out to various tenants in the ''A'' schedule property. This was on account of the fact that the suit property was in the midst of a fully developed area and could no longer be cultivated conveniently. The said constructed portion of A'' schedule property was within the purview of the Bruhat Bengaluru Mahanagara Palike (BBMP) and in order to better protect the property, the plaintiff has fen ced the area described as A'' Schedule property in the year 1995. It is alleged that some third-parties namely, one Logan had made efforts to interfere with the appellant''s mother''s possession and enjoyment of A'' Schedule property and had questioned her title which constrained her to file a civil suit in OS 3316/1995 and Logan was the defendant in that suit which was ultimately decreed in favour of Kamalamma, the plaintiff therein. Therefore, the BBMP had sought to form a road over the suit schedule property in the year 2001, which compelled the plaintiff to file a suit in OS 2130/2001 against the BBMP and there was an interim order of status-quo against the corporation authorities. The plaintiff had then with an intention to further protect his property, put up a shed on the north eastern portion of the ''A'' Schedule property to provide shelter to a security guard to look after the entire property belonging to the plaintiff. It is in this background that the plaintiff contends that the defendants, who were having no manner of right over the suit schedule property, had sought to interfere and had made such an attempt on 24.1.2003 and therefore the suit was filed.

The defendants had entered appearance and had filed their written statement to deny the plaint averments and contended that Kamalamma had formed a layout in Survey No. 16 and sold the same to different persons at different points of time and as the registration of revenue sites were prohibited at the relevant point of time, the sale transactions were sought to be on the basis of the affidavits and power of attorney, while delivering possession to the purchasers of sites. In this vein, a site bearing No. 1 formed in the said extent of land, was sold to the defendants for a sale consideration of Rs. 2,00,000/- and a affidavit agreement of sale cum delivery was executed on 21.4.1997, acknowledging delivery of physical possession and had received full consideration thereof and it is in that manner that the defendants had been put in possession and enjoyment of the suit properties, namely, a site measuring east to west 29 feet and north to south 45 feet and 40 towards west. The plaintiff himself had attested the general power of attorney, the agreement of sale and the affidavit as well. Being a party to the sale transaction, the plaintiff was estopped from contending that he continued to be the owner of the property.

It is further pointed out that the entire luggere area was brought under the BBMP in the year 1995 and the BBMP collected betterment charges from the site owners and has issued khata certificates in respect of the houses delivered by them. The defendants also claimed to have paid betterment charges and the property assessed to tax and khata was also made out in the name of the second defendant and a new number was assigned to the suit schedule property. The tax paid receipts, the encumbrance certificate and the property tax assessment extract from 1995-96 onwards were produced to demonstrate that the defendants were in physical possession of the suit property, having acquired the same from Kamalamma and that the said property is not the same as defined in the suit schedule, which is a mischievous ploy on the part of the plaintiff to lay claim over the property of the defendants notwithstanding such description and therefore sought dismissal of the suit.

The court below had framed the following issues:-

"1. Whether the plaintiff proves his lawful possession over the suit schedule property?

Whether the plaintiff further proves the unlawful interference by the defendants?"

The court below has held the issues in the negative. It is that which is under challenge in the present appeal.

The learned Counsel for the appellant has contended that originally, the suit schedule property was part of the land bearing Survey No. 16, subsequently shown as Survey No. 16/3 measuring 4 acres of Laggere village and same belonged to one Kamalamma @ Ramakka and she had sold the same in favour of one Thimmakka. The trial court has completely overlooked the fact that Thimmakka had sold the property to the appellant''s mother in the year 1972 under a registered sale deed and further, the court below has overlooked the fact that Kamalamma had formed sites and had sold the same in favour of different persons while retaining the suit property measuring 40 feet x 140 feet and that Kamalamma along with appellant, had jointly filed suits against one Logan in OS 3316/1995 and that the same was decreed in favour of the appellant and his mother and had attained finality.

The appellant further contends that BBMP having sought to interfere with the possession of the appellant, a suit in OS 2130/2001 was filed in which there was an order of temporary injunction and therefore, the possession of the property being with the appellants and such possession having been protected by the courts below in the earlier suits, has been completely overlooked by the court below and the existence of four asbestos sheet roofed houses and eight huts belonging to the appellant, whose tenants were in occupation of the same, has been completely ignored.

A particular admission by the respondents in their written statement, is completely overlooked, in that, the defendants had contended that the property purchased by them had nothing to do with the portion described as the suit schedule property by the appellant and this admission would require that the suit be decreed in terms of Order XII Rule 6 of the Code of Civil Procedure, 1909, and reliance sought to be placed on Exhibits P. 7, P. 8, and P. 9, which cannot be considered as documents conveying title to the property, is an error committed in law by the court below, which are on the face of it nebulous documents. Even the signature of Kamalamma was denied. But the court has taken upon the exercise of comparing the signature on the said documents along with the admitted signature of the appellant in the vakalath and has formed its opinion as regards the genuineness of the said documents and that there is inconsistency insofar as the date on which the said Exhibits P. 7 to P. 9 had come into existence, when on the face of it, was of a much later date. It is on these several contentions that the judgment of the court below is sought to be questioned.

The court below however has found that in Exhibit P. 7, the plaintiff had affixed his signature as a witness and the mere denial of the same did not efface the endorsement made by the appellant himself and the interference complained of by the plaintiff was only in respect of site No. 1 and the admitted circumstance that the plaintiffs mother had formed sites and sold it to different persons would lead to presumption on the face of documents which were produced by the defendant and that the defendant was in possession of site No. 1 and the suit being one for permanent injunction where the scope of inquiry is limited to whether the plaintiff had prima facie right to the property and was in lawful possession of the property, and when there was no evidence brought on record by the plaintiff to indicate that the mother of the plaintiff had retained a portion of the property in land bearing Survey No. 16 it would follow that the defendants had established that they were in possession of the suit property.

Insofar as the suits preferred against one Logan and the BBMP is concerned, even though the same have been produced as evidence to demonstrate that the appellant and his mother were exercising possession over the suit schedule property involved therein the said circumstance could not be extended to the suit property unless there was material to indicate that the plaintiff and his mother had retained any portion of the land on having formed sites and having sold the sites to various persons. Consequently, the court below has held in favour of the plaintiff and has dismissed the suit.

The judgment of the court below cannot be faulted. The dismissal of the suit is in order. The appeal is dismissed.