Sanjeevamma and Others vs Shanthamma and Others

Ravi V. Malimath, J.—Aggrieved by the judgment and decree of the Trial Court in decreeing the plaintiff''s suit for injunction, the defendant has filed this appeal.

For the sake of convenience, the parties will be referred as per their rank before the Trial Court.

The case of the plaintiff is that she is the owner of the suit schedule property bearing No. 1223/A and H.L. No. 386/4 of Sarakki Village, Uttarahalli Hobli, measuring 35 feet x 35 feet, morefully described in the schedule to the plaint. She purchased the same through a registered sale deed dated 28.02.1994. Ever since then, she is in possession and enjoyment of the same. The defendant who has no right, title or interest over the suit schedule property is interfering with her possession. Hence, the instant suit seeking to restrain the defendant from interfering with the peaceful possession of the suit schedule property.

On service of summons, the defendant entered appearance. She denied the plaint averments. She denied that the plaintiff is the owner and she is in lawful possession of the suit schedule property. Therefore, the question of the defendant interfering with the same does not arise for consideration. She contends that the plaintiff has misrepresented the facts and there is no house list number as claimed by the plaintiff and that the suit schedule property is a part of Sy. No. 24/1 of Sarakki village. The same is granted by the Land Tribunal, Bengaluru South Taluk, by way of occupancy rights in favour of the defendant. The defendant is residing in the said property and there is a nursery therein.

One Sri. S.R. Somashekara Reddy claimed to be a vendor of the plaintiff filed OS No. 2814/1993 before the City Civil Judge, Bengaluru for permanent injunction against the present defendant. An exparte decree was granted. The defendant herein filed Misc.Petition No. 537/1993 which was allowed and the suit was restored to file. Subsequently, on contest, the suit was dismissed. It pertains to the very same suit schedule property herein. Sri. S.R. Somashekara Reddy has committed fraud by claiming to be the Power of Attorney holder and has wrongly executed the sale deed. He has set up the plaintiff to file the suit. Hence, she pleads that the suit be dismissed.

Based on the pleadings, the Trial Court framed the following issues:

"1. Whether the plaintiff proves that she was in lawful possession and enjoyment of the suit schedule property as on the date of filing of suit?

Whether the plaintiff further proves the interference by the defendant in her peaceful possession and enjoyment of the suit property?

Whether the plaintiff is entitled for the permanent injunction?

What order or decree?"

The plaintiff was examined as PW1 and marked 5 documents. One witness was examined on behalf of the defendant and no documents were marked. On contest, the plaintiff''s suit was decreed. Aggrieved by the same, the defendant has filed this appeal.

The learned Counsel for the appellants contends that the impugned order is bad in law. That the Trial Court failed to consider the material evidence on record. The specific case of the plaintiff is that she has purchased the property from Sri. S.R. Somashekara Reddy in terms of Ex. P1, but there is no source of title so far as the vendor of the property is concerned. Therefore, the plaintiff failed to prove the ownership over the suit schedule property. The tax demand register in terms of Ex. P3 would indicate that tax was paid in the year 1992, whereas the sale deed is executed in the year 1994 and that itself would indicate that Ex. P1 is a fraudulent document and therefore, it cannot be relied upon in order to show the possession of plaintiff over the suit schedule property.

Heard learned Counsels and examined the records.

The Trial Court while considering the material evidence on record relied on the evidence of PW1. It accepted the fact that in terms of Ex. P1 which is a sale deed executed by Sri S.R. Somashekara Reddy in favour of the plaintiff, the plaintiff would derive the right, title and interest over the suit schedule property. Consequently, the decree of injunction was granted. Ex. P1 is executed by the Sri.S.R. Somashekara Reddy in favour of Shantamma, the plaintiff. In the course of evidence of PW1, the plaintiff has accepted that she is also aware that Sri. S R Somashekara Reddy had filed the suit against the defendant herein.

It is the plaintiff''s case that the sale deed was executed by the defendant in favour of her vendor namely Sri. S.R. Somashekara Reddy in respect of the suit schedule property. However, no material is produced by the plaintiff. In the absence of producing any material to indicate as to how Sri. S.R. Somashekara Reddy received the property, the Trial Court has committed a blunder in accepting Ex. P1 which is the sale deed executed by Sri. S.R. Somashekara Reddy in favour of the plaintiff. Therefore, Ex. P1 cannot be accepted. There is no source of title found so far as Ex. P1 is concerned. Merely because, the sale deed is executed by Sri. S.R. Somashekara Reddy does not cause any manner of right, title or interest. The Court in order to grant an injunction, the plaintiff would have to show that she is in lawful possession of the suit schedule property. Apparently, she has failed to do so.

Even otherwise, it is submitted by the appellants'' Counsel that the plaintiff herein has since filed OS No. 8526/2012 in the Court of Civil Judge, Bengaluru, seeking for a decree of mandatory injunction and possession of the suit schedule property. That itself would indicate that she is not in possession of the suit schedule property. In view of the subsequent suit being filed by the plaintiff, the same would amount to admission that she is not in possession of the suit schedule property. Therefore, granting of injunction in her favour is opposed to law. Therefore, the plea of the plaintiff herein is false. Ex. P3 is the tax paid receipt of suit schedule property is of the year 1992 and the plea of the plaintiff is that the property is purchased in the year 1994. Based on the pleadings of plaintiff herself, the question of paying taxes to the property when the sale deed itself has not been executed does not arise for consideration. Therefore, it is yet another fact that would render Ex. P1 as being doubtful.

Consequently, the appeal is allowed. The judgment and decree dated 01.02.2002 passed by the learned XVII Addl. City Civil Judge, Bengaluru in OS No. 2559/1996 is set aside. The suit in OS No. 2559/1996 is dismissed.