Prakash and Others vs Mangilal Choudary

B.S. Patil, J.—This appeal is directed against the order dated 18.04.2015 passed by the learned City Civil and Sessions Judge, Bengaluru, thereby granting an order of temporary injunction in favour of the plaintiff-respondent herein restraining defendants 1 to 5 - appellants herein from interfering with the possession and enjoyment of the suit property and from putting up any construction on the suit property.

Suit O.S. No. 9049/2014 has been filed by the plaintiff seeking a decree of permanent injunction in respect of the property bearing BBMP No. 2, presently bearing New BBMP No. 2/1, KHB Main Road, Manorayanapalya, Ward No. 96, Bengaluru, morefully described in the schedule annexed to the plaint. According to the plaintiff, the property was purchased by the plaintiff from one Rehana Begum and Noushad Khan under a registered sale deed dated 01.07.2004. It is the further case of the plaintiff that after purchase, he got the khatha in his favour from BBMP on 26.07.2004 whereafter he has been regularly paying taxes and other cesses to BBMP. He has further stated that he was staying with his family in the suit property and his wife was running marketing agency in the property in the name and style ''Akash Marketing''. To prove his possession, plaintiff produced and relied upon the telephone bills receipts for having paid electrical charges and electrical installation made and also the identity card issued by the election commission. Further case of the plaintiff was that he decided to demolish the existing structure and put up a fresh construction. For the said purpose he obtained sanction plan from the BBMP vide endorsement dated 22.07.2014. The building was demolished with a view to put up fresh construction. At that stage, according to the plaintiff, defendants forcefully and illegally entered the property in order to put up a shed in the suit property which was resisted and stopped by the defendants. Thus, plaintiff claims to have been constrained to file the suit for injunction. Along with the plaint, an application seeking temporary injunction as stated herein above was filed.

The suit and the application were resisted by the defendants. The defendants principally contended that the power of attorney setup by the plaintiff and the sale deed obtained by the plaintiff through the power of attorney holder itself was a got up document and the sale deed, therefore, was a sham document. Apart from denying all other plaint averments, it was urged by the defendants that khatha, mutation and the revenue records of the land bearing Sy. No. 38 stood in the name of their father M. Chinnappa and that they were in peaceful possession and enjoyment of the same without any interference by anybody. They also urged that nowhere in the sale deed, the vendors had mentioned the survey number of the land. It was also urged that the original power of attorney was not placed before the Court. The defendants contended that the suit O.S. No. 309/2009 has been instituted in the court of City Civil Judge, Bengaluru, seeking partition of the family properties by one of the joint family members which included the suit property bearing Sy. No. 39.

The Trial Court upon considering the entire materials on record, has come to the conclusion that the General Power of Attorney executed by M. Chinnappa was placed before the Court and that based on the said General Power of Attorney, the property was sold by N. Jeevaratna W/o. late S. Nagaraj in favour of Rehana Begum from whom the plaintiff has purchased it as was demonstrated by producing the copy of the registered sale deed. The Trial Court has further found that the other documents produced before the Court such as telephone bills, electricity installation communications and tax paid receipts pertaining to the property in question disclosed that plaintiff was in possession of the property. The Trial Court has also considered the assertions made by the plaintiff that he got demolished the construction put up on the property with a view to erect a residential use, in this regard, the sanction plan obtained by the plaintiff which was produced before the court has also been referred to and relied upon to record a prima facie finding that plaintiff was able to establish his possession over the suit property and the interference by the defendants.

Learned Counsel for the appellants submits that as per the plaint averments, the plaintiff was not in possession of the property because admittedly the defendants had trespassed into the property and had taken possession of the same. He further contends that the signatures on the General Power of Attorney and the execution of the same were denied and the court below did not take note of the same while placing reliance on the said general power of attorney. He also points out that identity of the property itself was not established by the plaintiff as the land bearing Sy. No. 38 continued to be in the name of Chinnappa in the revenue records, thereby belying the assertion made by the plaintiff that he was in possession of the suit property. Counsel further submits that as the title to the property had been denied, the suit itself was not maintainable for bare injunction as the plaintiff ought to have sought for declaration.

The aforesaid contentions have been strongly refuted by the learned Counsel for the respondents. He has supported the findings recorded by the court below.

Having heard the learned Counsel for both parties and on perusal of the materials on record including the findings recorded by the Trial Court, I find that it is a case where the plaintiff has based his claim on the registered sale deed. The registered sale deed in his favour has been executed as far back as on 01.07.2004. Pursuant to this registered sale deed, khatha of the suit property has been changed in the name of the plaintiff. Plaintiff has taken electricity connection, telephone connection and has continued to pay the taxes and other cesses to BBMP. Plaintiff has obtained sanction plan to put up construction of a residential house in the property. The court below has examined the pleadings and all these documents which have been produced before it. Accordingly, plaintiff has prima facie established that actual possession of the property is with him.

The contention of the learned Counsel for the appellants that plaintiff should have filed a suit for declaration of his title is untenable. The judgment relied on by the learned Counsel for the appellant in the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, AIR 2008 SC 2033 : (2008) 3 CLT 23 : (2008) 4 SCALE 718 : (2008) 4 SCC 594 : (2008) AIRSCW 4959 , does not lay down a principle that even where the plaintiff comes to the Court with a clear assertion of his title and possession traceable to the registered sale deed, seeking a decree of injunction he should ask for declaration of his title. This is not a case where there is no material to prima facie come to the conclusion that the title of the plaintiff is under cloud, because the title to the property is traced to a registered sale deed which has originated in the year 2004 and the property has been shown to be prima facie enjoyed by the plaintiff from then onwards.

Therefore, none of the contentions urged by the learned Counsel for the appellant are sustainable in the facts and circumstances of the case.

Hence, this appeal being devoid of merits is dismissed.