Nagaraju vs Venkatalakshmi

P.D. Waingankar, J.—Aggrieved by the judgment and decree dated 27.11.2008 in O.S. No. 8752/2006 on the file of the XVII Additional City Civil Judge, Bangalore, this appeal is preferred by the defendants.

Brief facts which led to filing of this appeal are stated as under:

The respondent (who shall hereinafter be called as ''plaintiff) filed a suit for a decree of permanent injunction alleging that she is the absolute owner of the suit schedule property which she purchased from its erstwhile owner one Eeramarappa by a registered sale deed dated 05.07.2006 for a consideration of Rs. 3,30,000/-. The suit schedule property was a site measuring 30ft x 40ft allotted to Eeramarappa by the Government in the year 1975 by issuance of a Hakku Patrike. After purchasing the schedule property, the Khatha came to be transferred in the name of the plaintiff, the plaintiff has been paying tax to the Bommanahalli City Municipality and she has been in possession and enjoyment of the schedule property. The defendant No. 3-Narasamma, along with other defendant Nos. 1 and 2 made an attempt to interfere with the peaceful possession and enjoyment of the schedule property by the plaintiff. In that connection, the plaintiff lodged a complaint against defendants before the jurisdictional Mico Layout Police Station, who inturn registered a case against defendants. Inspite of that, the defendants went on disturbing the peaceful possession and enjoyment of the plaintiff, which made the plaintiff to file a suit for a decree of permanent injunction against the defendants.

Defendant No. 3 contested the suit. In her written statement she has admitted that the schedule property which is a site was originally allotted to Eeramarappa by the Government by issuance of Hakku Patrike. He was in actual possession and enjoyment of the said site. By a registered sale deed dated 03.11.1995, defendant No. 3 purchased the schedule property from Eeramarappa for a total consideration of Rs. 58,000/- and in pursuance of the sale deed she was put in actual possession and enjoyment of the schedule property by Eeramarappa. The plaintiff though claims to be the owner of the schedule property on the strength of the sale deed executed by Eeramarappa in the year 2006 gets no right, title or interest over the schedule property, as it was already sold by Eeramarappa to defendant No. 3 by a registered sale deed dated 03.11.1995 followed by the confirmation deed dated 05.02.2002. Since Eeramarappa never obtained back the possession from defendant No. 3 at any time, the question of handing over possession of the same site to the plaintiff does not arise. Thus, the plaintiff without having any ownership right or possessory right over the schedule property in fact trying to disturb the peaceful possession and enjoyment of the schedule property by defendant No. 3 and when defendant No. 3 resisted the high handed acts of the plaintiff, the plaintiff filed a false suit for a decree of permanent injunction.

Upon going through the pleadings of the parties, the trial Court framed the following issues:

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

2) Whether the plaintiff further proves that the defendants are interfering with her possession of the suit schedule property?

3) Whether the plaintiff is entitled to the injunction sought for?

4) What order or Decree?

The plaintiff in order to prove her case examined herself as PW-1 and relied upon 7 documents marked as Exs. P-1 to P-7. The defendant No. 3, on the other hand, got herself examined as DW-1 and marked Exs. D-1 to D-24. The trial Court upon hearing the arguments and upon appreciation of the evidence placed on record, recorded a finding that the plaintiff is in peaceful possession and enjoyment of the schedule property on the strength of the sale deed executed by Eeramarappa in the year 2006 and that the defendants are disturbing the peaceful possession and enjoyment of the schedule property by the plaintiff, which resulted in the impugned judgment and decree in favour of the plaintiff as against defendants.

Aggrieved by the judgment and decree passed in favour of the plaintiff, this appeal is preferred by defendant Nos. 1 to 3 on the ground that the trial Court has wrongly recorded a finding that the plaintiff is in possession and enjoyment of the schedule property as on the date of the suit and the defendants are disturbing the possession and enjoyment of the schedule property.

I have heard the arguments addressed by the learned counsel appearing for the appellants/defendants and learned counsel appearing for the respondent/plaintiff. Perused the records.

Learned counsel for the appellants/defendant would submit that though the defendant No. 3-Narasamma purchased the schedule property wayback in the year 1995 from the erstwhile owner Eeramarappa by a registered sale deed whereunder the actual possession has been handed over to the defendant No. 3 and eversince she has been in possession and enjoyment of the schedule property, the trial Court grossly misread the evidence and recorded a finding that the plaintiff is in peaceful possession and enjoyment of the schedule property based on the subsequent sale deed executed by Eeramarappa in favour of the plaintiff in the year 2006. It is submitted that the trial Court failed to understand that the possession handed over to the defendant No. 3 in the year 1995 was never taken back by Eeramarappa or by the plaintiff at any point of time by due process of law. The trial Court erred in coming to the conclusion that the defendants have caused interference with the peaceful possession and enjoyment of the schedule property by the plaintiff, though in fact the plaintiff has been causing interference in the peaceful possession and enjoyment of the schedule property by the defendants. Hence, the learned counsel for the appellants/defendants has sought to set aside the judgment and decree and to dismiss the suit filed by the plaintiff.

Learned counsel for the respondent/plaintiff, on the other hand, would contend that the boundaries of the site shown in the sale deed executed by the Eeramarappa in favour of defendant No. 3 in the year 1995 and the boundaries of the site shown in the sale deed executed in favour of plaintiff-Smt. Venkatalakshmi by Eeramarappa in the year 2006 differs. In other words, the submission of the learned counsel is that the suit schedule property is not the property shown in the sale deed executed by Eeramarappa in favour of defendant No. 3 and hence, the trial Court has rightly come to the conclusion that the plaintiff is in possession and enjoyment of the suit schedule property and defendants are causing interference. Hence, the learned counsel for the respondent/plaintiff has sought for dismissal of the appeal as bereft of merits.

Having heard the submission made by the learned counsels appearing for both the parties and on perusal of the entire material placed on record, the following points would arise for my determination:

1) Whether the finding arrived at by the trial Court that the plaintiff is in peaceful possession and enjoyment of the schedule property as on the date of filing of the suit is proper?

2) Whether the trial Court is justified in coming to the conclusion that the defendants are disturbing the peaceful possession and enjoyment of the schedule property by the plaintiff?

3) What order?

Point No. 1

It is the case of the plaintiff as made out in the plaint and also spoken by the plaintiff in her evidence as PW-1 that she purchased the schedule property from the erstwhile owner Eeramarappa under a sale deed dated 05.07.2006 for a consideration of Rs. 3,30,000/- whereunder she came in possession and enjoyment of the schedule property. It is her further case that on the strength of the sale deed Khatha came to be entered in her name, she is paying tax to the Bommanahalli City Municipality and she is in peaceful possession and enjoyment of the schedule property. Thus, the plaintiff traces her right, title under the sale deed Ex P-1 executed by Eeramarappa in the year 2006. It is not in dispute that the schedule property which is a site measuring 30ft x 40ft was allotted to the Eeramarappa by the Government by issuance of Hakku Patrike dated 24.03.1975. Therefore, if at all the plaintiff or the defendant No. 3 purchased the property from Eeramarappa, it is the same site which was granted to him by Hakku Patrike and not any other property. The plaintiff also states in the plaint that the site was allotted to Eeramarappa under Free Site Distribution Scheme: of the Government. Therefore, there cannot be any dispute regarding the identity of the property. There is no substance in the submission made by the learned counsel for the respondent/plaintiff that the schedule property shown in the sale deed executed in favour of the plaintiff and the schedule property in the sale deed executed in favour of the defendant No. 3 is different. In order to dupe the plaintiff, Eeramarappa might have shown different boundaries of the schedule property in the sale deed executed in favour of the plaintiff.

It is the case of defendant No. 3 that she purchased the schedule property from Eeramarappa in pursuance of a sale deed dated 03.11.1995 Ex. D-1 for a total consideration of Rs. 58,000/-. If we go through the contents of Ex. D-1, it is abundantly clear that under the said document the actual possession of the schedule property had been handed over to the defendant No. 3 by Eeramarappa. Of course, it is true and also admitted by the defendant No. 3 that there was Non-alienation Clause for a period of 25 years in the Hakku Patrike granted to Eeramarappa. As such, Eeramarappa could not have executed the sale deed before the expiry of 25 years from the date of grant of Hakku Patrike. But, he executed the sale deed on 03.11.1995 in favour of the defendant No. 3 before the expiry of stipulated period under Non-alienation Clause. But subsequently, after the non-alienation period is completed, he executed the confirmation deed as per Ex. D-2 for having confirmed the execution of the sale deed by him on 03.11.1995 in favour of defendant No. 3. Thus, there cannot be any dispute that in pursuance of the sale deed executed by Eeramarappa on 03.11.1995, defendant No. 3 came in possession of the schedule property. Eeramarappa in a suit filed against him by defendant No. 3-Narasamma in O.S. No. 1127/2006 on the file of the Principle Civil Judge, (Junior Division), Bangalore Rural District, in his written statement Ex D-1, 4 filed on 02.11.2006 has admitted for having sold the schedule property by sale deed dated 03.11.1995 for a valuable consideration and eversince then defendant No. 3-Narasamma is in possession and enjoyment of the schedule property. He has also made it clear in the written statement that he has no objection to decree the suit filed by Narasamma as prayed for. Ex. D-3 is the Khata Certificate, D-4 to D-7 are tax paid receipts for having paid taxes to Bommanahalli City Municipality, Ex. D-8 is the Sanctioned Plan dated 12.09.2006 for construction of the house in the schedule site, D-10 is the licence to construct building, D-11 is the encumbrance certificate. All these documents are standing in the name of defendant No. 3. Thus, there is sufficient material placed on record by the defendant No. 3 to show that she is in possession and enjoyment of the schedule property eversince 03.11.1995 wherein she has been residing. It is equally true that since. Eeramarappa had already sold the schedule property in favour of the defendant No. 3 by sale deed dated 03 11.1995 whereunder the possession was also handed over, the question of Eeramarappa again selling the same property to the plaintiff after ten years from the date of execution of the sale deed in favour of plaintiff does not arise. Moreover, there is nothing on record placed by the plaintiff to show that Eeramarappa took possession of the schedule property from defendant No. 3 and handed over the same to the plaintiff. Though Eeramarappa sold the schedule property before expiry of non-alienation period, as soon as the period is completed the defendant-3 acquired ownership right in view of Section 8 of the Transfer of Property Act. Be that is it may, if at all, he violated the terms and conditions of the Hakku Patrike, it is for the Government to take action against him. The Government having not taken any action, it is not open to the plaintiff to take such a contention. In a suit for injunction what is to be seen is the possession of the schedule property as on the date of filing of the suit. Since the possession of the schedule property was neither taken back from the defendant No. 3 by Eeramarappa nor it was handed over to the plaintiff by Eeramarappa at any point of time, any amount of documents produced by the plaintiff such as sale deed, Khatha certificate, electricity bill, tax paid receipts marked as Exs. P-1 to P-7 will not help the plaintiff in any way to establish her possession as on the date of filing of the suit. The trial Court without considering the aspect of possession that was handed over to the defendant No. 3 wayback in the year 1995 and that the possession was never taken back either by Eeramarappa or by the plaintiff has wrongly recorded a finding that the plaintiff has established her possession as on the date of filing of the suit. The trial Court exceeded its jurisdiction while making observation that the sale deed executed by Eeramarappa in favour of defendant No. 3 as null and void. The finding of the trial Court to that effect is contrary to the evidence placed on record. It is suffice to say that as on the date of filing of the suit, the plaintiff was not at all in possession. On the other hand, defendant No. 3 was in possession and enjoyment of the schedule property. As such, the question of interference into the possession and enjoyment of the plaintiff by defendant No. 3 does not arise. Hence, the finding recorded by the trial Court both as to the possession as well as interference are liable to be set aside. In the result, I pass the following order.

The appeal is allowed. The judgment and decree dated 27.11.2008 in O.S. No. 8752/2006 on the file of the XVII Additional City Civil Judge, Bangalore, is hereby set aside. The suit filed by the plaintiff in O.S. No. 8752/2006 on the file of the XVII Additional City Civil Judge, Bangalore, is dismissed.