Sri. B M Devarajapa and Smt. Indira Devarajappa vs Sri. Marappa

Huluvadi G Ramesh

This is a defendants'' appeal challenging the judgment and decree passed by the V Addl. City Civil Judge, Bangalore decreeing the suit of the plaintiff in OS 175/2007 on 28.1.2011.

Plaintiff claims to be the absolute owner in physical possession and enjoyment of the property bearing Sy. No. 3/1 measuring 30 guntas having purchased the same under a registered sale deed dated 11.7.1967 and that he has been paying the taxes. Stating the defendants have no manner of right and title over the suit property and are trying to interfere with his peaceful possession and enjoyment of the suit property, suit came to be filed for permanent injunction restraining the defendants or any body on their behalf from interfering with his possession.

It is also stated, the entries in the revenue records were challenged in RRP BSCR 14/2004-05 which came to be dismissed. According to the plaintiff, the suit property was purchased by him from its previous owners Amanappa, Marappa, Subbaiah and Poojamma under a registered sale deed dated 11.7.1967. Since then, he is in possession and enjoyment.

The defendants filed their written statement contending that the averment made by the plaintiff in the plaint is false and baseless and he has not come to court with clean hands. Only with a malafide intention to knock of the defendants'' valuable property, suit has been filed. The plaintiff does not have any right, title and possession of any part of the suit schedule properties. Plaintiff has not made the necessary party to the suit and without seeking a declaratory relief by paying proper court fee, mere suit for permanent injunction is not maintainable. Plaintiff has sold the property over which he had right along with his family members and executed a sale deed by receiving sale consideration to an extent of 25 guntas in Sy. No. 3/1 situate at Kotihosahalli, Yelahanka. Bangalore North Taluk in favour of N N Srinivasaiah and K V Sujatha under a registered sale deed dated 9.2.1995 (19.6.1995) and this N N Srinvasaiah and K V Sujatha have sold the suit property receiving sale consideration from one B Santosh Kumar in his favour under a registered sale deed 11.6.2004 and the document is produced at Ex. D3. The said D Santosh Kumar has right, title and possession to the extent of 25 guntas and another 3 guntas was acquired by him under a sale deed by paying sale consideration. By another deed dated 3.1.2006, D Santosh Kumar sold both the properties i.e., 25 guntas and 3 guntas in favour of Kaveri Social & Educational Trust. The said Trust also obtained permission under S. 109 of the Karnataka Land Reforms Act, 1961 which is at document 3 and 4 and there is also entries in the revenue records in the name of the Trust as per Ex. D5. Since then i.e., the date of purchase, the Trust is in possession of the property even as on today. The Trust is having right, title and possession and interest over the suit property. The plaintiff himself has executed the sale deed by transferring right, title and possession in favour of the purchasers which in turn was purchased by D Santosh Kumar who in turn has sold the property to the Trust as such, the plaintiff has not right, title and possession over the suit properties.

It is further submitted, under the Inams Abolition Act, 1954, this Kotihosahalli Village was declared as Kayam Gutta Jodidar Village. As per the Act, all the occupants of the land to the extent held by them, were ordered to be registered under S. 5(1) of the Act, as such the previous transfers have no force in the eye of law. The plaintiff''s ancestors have got registered as a holder under S. 5(1) of the Act to an extent of 25 guntas of land in Sy.No. 3/1 situate at Kotihosahalli Village. Plaintiff being the legal heir to the granted land, has sold his share to the intended purchaser. Under the Inams Abolition Act, all lands which were declared as Inam lands vested with the State under the Act and all who held the land are to be registered as holders under S. 5(1) of the Act, if they have not sought registration, they were not declared as holder, and they have lost their right, title and possession over such land and such title has no force in the eye of law. Plaintiff has not challenged the proceedings under the Inams Abolition Act nor his predecessors have. He has also not sought declaration of his title under the alleged sale deed. Plaintiff is put to strict proof of his possession. On coming into force of the Inams Abolition Act, 1954, all lands vested in the State as such, plaintiff''s vendor has no right to alienate the suit schedule property. As such, possession if any, claimed under the sale deed in the year 1967 is not binding on the defendants. Plaintiff has no right or title in the eye of law and he has no cause f auction. It is only with an intention to extort money illegally and to knock off the property, a frivolous suit has been filed. Accordingly, the suit came to be resisted.

Based on the pleadings, trial court raised the following issues:

Whether the plaintiff proves his lawful possession over schedule property:

Whether the plaintiff proves interference by the defendants:

Whether the plaintiff is entitled for permanent injunction and What order or decree ?

On behalf of the plaintiff, two witnesses were examined and sixteen documents were got marked. On behalf of the defendants, one witness was examined and forty documents were got marked. While answering issues 1 to 3 in favour of the plaintiff, trial court decreed the suit of the plaintiff as against which, present appeal is filed by the defendants contending that trial court has grossly erred in granting permanent injunction against the appellants when admittedly Kaveri Social & Educational Trust is not made a party as it is the owner of the land purchased under the sale deed of the year 2006. The trial court failed to note, while analyzing the boundaries in the judgment, the boundaries relied upon is of the year 1967 by the plaintiff and the same property had been purchased by N N Srinivasaiah and K V Sujatha from the plaintiff in the year 1995 in respect of 25 guntas of land is tallying with the boundaries of the suit schedule property as such, when the identity of the property is very much clear, that the plaintiff had sold the property in the year 1995, once again he is laying hands on the property which were sold and which was purchased by the Trust from D Sumosh Kumar. The trial court also erred in relying upon the revenue proceedings. The trial court ought to have considered the case for permanent injunction based on the title to the property and also other documents. When such being the case, the suit ought to have been filed for declaration and for permanent injunction and the trial court erred in granting permanent injunction in a suit for bare injunction and without considering the same, it has granted permanent injunction which is non-est. Even the plaintiff has not made out a prima facie case. The defendants have relied upon the registered document of the year 1995 which was admittedly executed by the plaintiff and his family members in favour of their vendees and thereafter, it was purchased by Kaveri Education Trust during 2006 and the Trust is not made a party as such, the judgment and decree is liable to be set aside. The trial court wrongly relied upon the evidence of the plaintiff and especially the sale deed of the year 1967 and schedule of the sale deed dated 1995. The trial court failed t appreciate there are two separate independent properties - one under the sale deed of 1967 and another is by way of partition. Defendants are only concerned with the property which they have purchased for the Trust right from 1995. Conveniently the plaintiff has shown the boundary of the properly which he had already conveyed under the sale deed in 1995 which he has admitted in his evidence. In the plaint, nothing has been whispered about the selling of property under the registered sale deed in the year 1995 in favour of N N Srinivasaiah and K V Sujatha and as such, he has not come to the court with clean hands since he has suppressed the material facts. It is also submitted, simply relying upon the revenue proceedings, trial court has decreed the suit though the revenue proceedings have not reached finality and the matter is pending before the Deputy Commissioner in revision. Accordingly, appellant''s counsel on the grounds urged in the appeal, has sought for dismissal of the suit filed by the plaintiff and to set aside the judgment and decree passed by the trial court.

Heard the counsel representing the parties.

It is the argument of the appellants'' counsel that the suit filed by the plaintiff is without making necessary party as such, the suit is bad for non-joinder of necessary parties. According to the counsel, the suit property had been sold by the plaintiff in favour of N N Srinivasaiah and K V Sujatha which in turn was purchased by D Santosh Kumar who in turn, sold the property in favour of the Trust as such, the suit is bad for non-joinder of necessary parties. Further, according to the Learned Counsel, plaintiff is disputing the title, right and possession of the defendants whereas the defendants are the President and Secretary of the Trust and Trust is not made a party. There is clear admission on the part of the plaintiff himself as to he selling the property to the extent of 25 guntas in favour of Srinivasaiah and Sujatha in the year 1995. Once again, he has filed the suit deliberately to knock of the property which was sold by him. Further, the boundaries mentioned has changed from time to time. Plaintiff is taking advantage of the property which was not available to him and trying to knock of the same after alienating the property in favour of the vendees. It is further submitted, without filing a suit for declaration and permanent injunction, when the property has been sold in favour of the vendees without there being a right whatsoever filing the suit only for a permanent injunction the plaintiff is claiming relief and the trial court failed to note that the suit ought to have been filed for declaration and injunction and the suit for bare injunction in the circumstances, is not maintainable and also in view of the clear fact that there is admission on the part of the plaintiff that he has sold the property to his vendees. Without looking into the documents produced by the defendants and also the admission by the plaintiff as regards alienation of the suit property in favour of the vendees, the trial court has decreed the suit although the suit is not maintainable for non-joinder of necessary parties and without filing a declaratory suit and for permanent injunction.

Counsel for the respondent vehemently contended that the property is purchased by the plaintiff in 1967 and the boundaries depicted in the plaint very much tallies with the suit property which is claimed by him. The trial court has rightly decreed the suit which does not call for interference.

In the light of the arguments advanced, the points that arise for consideration are -

Whether the trial court is justified in holding that the plaintiff has proved his lawful possession over the suit schedule property;

Whether the trial court is justified in holding that there is interference by the defendants,

Whether the trial court is justified in decreeing the suit for permanent injunction:

Whether the suit filed by the plaintiff for permanent injunction without seeking for declaration and for non-joinder of necessary parties is not maintainable;

What order.

It is seen, the trial court tried to tally the boundaries mentioned in the plaint and also the boundaries mentioned in the sale deeds of 1967 and 1995 wherein the plaintiff sold the property in favour of N N Srinivasaiah and Sujatha. It is a clear case of identity of the property in question. What is not in dispute is, in the evidence of PW 1 in his cross-examination, he has stated that his father is Laxmaiah and his grand father is Marappa, It is his admission, out of 2.39 acres he received 25 guntas of land from his father and he purchased 30 guntas of land in Sy.No. 3/1. His father is said to have received the suit property in a partition. However, he pleads his ignorance as to how the family has acquired right over the property in Sy.No. 3/1. The specific admission is, himself and his mother got partitioned 25 guntas of land which was received from his father and also that he partitioned 12 guntas and 13 guntas among himself and his mother. He pleads, he does not know the boundaries to the extent of the said land measuring 25 guntas. He admits that he was born at Kotihosahalli Village. There is also specific admission by him that he sold 25 guntas of land to N N Srinivasaiah and K V Sujatha. He pleads ignorance as to whether the 25 guntas of land is situate out of the total extent of land in Sy.No. 3/1. He also pleads ignorance as to N N Srinivasaiah having sold the property to D Santhosh Kumar. In the specific cross-examination on various details as to the right of the vendor of the plaintiff, he pleads ignorance. He has also pleaded ignorance as to what documents were verified by him before purchase of 30 guntas of land from his vendor. He has admitted that he filed an appeal before the Assistant Commissioner. Bangalore North in No. 232/2002-03 and that he had filed an application before the Tahsildar for change of katha in his name. It is also suggested that the purchaser is in possession and they have put up a school in the suit property. There is a suggestion made to him that he has produced manipulated photographs which he has denied. A suggestion was also got denied to the effect that he sold the property in Sy.No. 3/1 i.e., land received from his lather and purchased by him and they have no right over the suit schedule property or any other land in Sy.No. 3/1, He has admitted that he has no difficult to obtain encumbrance certificate from 1946 to 1967 and it is suggested that if he obtains encumbrance certificate for the said period, it would reveal that his vendor had no right over Sy.No. 3/1. A suggestion was got denied that there are more than fifteen transactions from the year 1946 to 2010 and by suppression of facts, he obtained a concocted encumbrance certificate and produced the same.

The other witness who was examined as PW 2 admits that there is no cultivable land around the suit property. A suggestion is also got denied that the plaintiff has sold the property and he has no right nor possession of the suit schedule properly.

The trial court proceeded on the premise that plaintiff is the absolute owner of the property to the extent of 30 guntas in Sy.No. 3/1 which he has purchased under the sale deed dated 11.7.1967. He has got the entries in the revenue records however, the said revenue entries were challenged in RRT proceedings 14/04-05. It is also noted, the plaintiff and his mother sold 25 guntas of land to N N Srinivasiah and Sujatha in Sy.No. 3/1 under a registered sale deed dated 9.2.1995. Even one Thimmaiah and his children sold 3 guntas of land in Sy. No. 3/1 to M N Srinivas under a sale deed dated 25.1.1995. This N N Srinivasaiah and Sujatha sold 28 guntas of land under two registered sale deeds dated 9.2.1995 and 25.1.1995 to D Santosh Kumar on 11.6.2004. In turn. Santhosh Kumar sold 25 guntas of land to the defendants on 3.1.2006. According to the defendants, plaintiff has no land at all in Sy.No. 3/1. He cannot claim possession of 30 guntas of land in Sy.No. 3/1. The trial court proceeded on the basis that under the sale deed dated 19.7.1967, this plaintiff purchased 30 guntas of land in Sy.No. 3/1 from Anjanappa, Marappa. Subbaiah and Poojamma. According to the plaintiff, himself and his mother Poojamma with Anjanappa and children or Marappa and late Laxmaiah, sold 25 guntas of land to N N Srinivasaiah and K V Sujatha in Sy.No. 3/1 under Ex. D1 dated 9.2.1995. In addition to that, 3 guntas of land in Sy.No. 3/1 was sold to N N Srinivasaiah by Thimmaiah and his three children under a sale deed dated 25.1.1995. Thus, 28 guntas of land was acquired by Santosh Kumar through Srinivasaiah and Sujatha and in turn, Santhosh Kumar sold the same to the defendants who formed a Trust and the property stands in the name of the Trust. What is also being stated in the written statement is. Kotihosahalli Village was declared as kayam gutta jodidar village and on coming into force of the Inams Abolition Act the occupants had to be re-granted the land on such application being filed, What is being pleaded is, without there being a re-grant of the land in possession in favour of the holder on such application, the property purchased by the plaintiff to the extent of 30 guntas does not confirm any right on him when the transaction has become non-est, Ultimately, the properly which had fallen to the share of the plaintiff and his mother has been sold by him to N N Srinivasaiah and Sujatha and also in the course of time, there are transactions mentioning the boundaries, change of boundaries. Even the plaintiff was not sure of the exact boundaries and the nature of the land i.e., Sy.No. 3/1 and how it was available to his vendor to the extent of 30 guntas.

In the affidavit evidence filed by the 1st defendant, it is specifically stated as to the factual position and that the Village was a jodidar village under the Inams Abolition Act and it was declared as kayam gutta and all occupants of the lands shall be registered under S. 5(1) of the said Act and previous title have no force. Only the occupants who have filed application will be registered as holders under S. 5(1) and the plaintiff''s ancestors have got registered as holders under S. 5(1) of the Act only to an extent of 25 guntas of land in Sy.No. 3/1 and the plaintiff being the legal heir of such granted land to the extent of 25 guntas, sold it to the intended purchaser. It is also specifically stated, on coming into force of the Inams Abolition Act, all lands vested with the State and all those who have filed application on such holding as on the date of the enactment as registered holders, are tenants under S. 5:(1) and they were granted occupancy rights and those who have not filed application seeking registration were not declared as: holders and they have no right and title. It is stated, the plaintiff claims right to the extent of 30 guntas on the basis of the sale deed executed by Anjanappa, Marappa, Subbaiah and Poojamma in Sy.No. 3/1 and RS No. 3/10 which very much is disclosed in revenue appeal 232/2003-04. The plaintiff suppressing the true facts regarding the ease pending, got entries in the revenue records out of political influence and obtained certain documents.

It is also stated by the defendant in the evidence that plaintiff sold the land and delivered possession of 25 guntas of land in Sy.No. 3/1 of Kotihosahalli Village. Plaintiff, Anjanappa and others have colluded and sold the land in Sy No. 3/1, RS 3/10 to an extent of 17496 sq.ft. in favour of one Jonna Jaganatha. To that sale deed, plaintiff has executed a confirmation of supplementary deed giving up his rights. It appears, the trial court has not looked into the extent of the property which was available in the hands of the plaintiff when he sold Sy.No. 3/1 i.e., RS 3/10 during 2004 to some other person and his deriving the title also in view of the document that the said property in Sy.No. 3/1 is an Inam land and also without verifying whether application for re-grant is filed as the land vested with the State. If anybody has sold the properly in favour of the plaintiff to the extent of 30 guntas, it becomes non-est unless there is re-grant of the land in favour of the vendor of the plaintiff. The trial court has failed to get the report as to what is the boundary of the property held by the Trust when it is admitted by the plaintiff regarding sale of 25 guntas in Sy.No. 3/1 and also regarding alienation made by him in favour of third persons during 2004. Simply it has formed an opinion, the boundaries tally with 1967 sale deed of the plaintiff which is erroneous. As per the records available to the Trust, the boundaries are different.

Ultimately, the suit ought to have been filed seeking declaration of title and for injunction based on possession in the factual background. When the right and title of the plaintiff itself is in dispute as to the acquisition of property other than 7.5 guntas which was sold in favour of vendees K N Srinivasaiah and Sujatha, when he sets up a claim to the extent of 30 guntas claiming the suit property itself as the same, the defendants have disputed the same specifically relying upon the sale deed said ''o have been executed by the plaintiff in favour of N N Srinivasaiah and Sujatha, and another 3 guntas of land obtained by Thimmaiah and his children i.e., totally 28 guntas of land was purchased by D Santhosh Kumar under a registered sale deed and also when the plaintiff himself has sold the land in Sy.No. 3/1 RS 3/10 to the extent of 17496 sq.ft. to some other person during 2004 as per the documents and also when the alleged purchase of 30 guntas of land by the plaintiff during 1967 itself is in dispute in the back ground - unless it is verified whether the application was filed for re-grant has been considered and re-granted in favour of the last holder as per law, question of plaintiff claiming title or possession would not arise. The trial court was required to call upon the plaintiff to prove his title by filing a suit for declaration in the context when the title itself with regard to acquisition of 30 guntas of land is in dispute and that he also sold the land to third persons. Further, when he sold the property to the extent of 25 guntas as admitted by him and also when the plaintiff mentions the boundary held by the defendants without making the Trust as party in whose possession the property stands, trial court is not justified in holding that the plaintiff has made out a prima facie case and it is also not justified in holding that the plaintiff is in possession of the suit property. The defendants have established their case and their source of title and how they have acquired. Such being the case, trial court without examining the factual back ground before entertaining the suit so as to pass an order of injunction, simply proceeded to decree the suit which is bad in law. In the case of Premji Ratansey Shah and Ors. Vs Union of India & Ors. AIR 1995 SCW 2425, the Apex Court held, it is not mandatory that for mere asking, such relief should be given as per S. 41(j) of the Specific Relief Act. The interest or right not shown to be in existence, cannot be protected by injunction.

The trial court in paragraph 8 of its judgment has analyzed the source of the title of plaintiff without there being a pleading, merely based on revenue proceedings suo motu. However, the trial judge has not examined the mater in the light of the rival contentions raised by the defendants as to the boundary and land available to the plaintiff as on the date of filing the suit and also regarding the alienation made by the plaintiff in Sy.No. 31 i.e., RS 3/10 which was sold in favour of third parties in the year 2004. The trial court has also not examined the matter as to whether there vas a re-grant in favour of the plaintiff on coming into force of the Inams Abolition Act.

In view of the discussion made above, while answering the points raised accordingly, it is held the trial court is not justified in holding that the plaintiff proves his lawful possession over the suit property and also in a passing reference it tried to conclude that there is interference by the defendants as such, the order of permanent injunction granted being perverse and without appreciating the material on record in the proper perspective, is bad. The trial court has also erred in decreeing the suit that too when there is non-joinder of necessary parties i.e., Kaveri Social & Educational Trust and the suit is also bad for not seeking declaration of title and for injunction.

Accordingly, appeal is allowed. Impugned order is set aside holding that the defendant - Trust is in possession under a valid title to the properly held by it as observed above. The suit of the plaintiff is dismissed. Parties to bear their own costs.