Sri Dakshina Murthy and Sri Darman vs Smt. B.A. Saraswathi and Smt. Sowbhagyalaxmi

A.N. Venugopala Gowda, J.—This appeal by the plaintiffs is against the judgment and decree passed by the Trial Court dismissing the suit filed against the respondents/defendants. For convenience, the parties would be referred to with reference to their rank in the suit. The plaintiffs claiming to be the absolute owners filed a suit for permanent injunction, restraining the defendants from interfering with their possession and enjoyment of the property bearing old No. 3, new No. 76/A formed in Sy. No. 152/6, situated at 1st Phase, 1st Cross, 3rd Main, Manjunatha Nagar, Bangalore-10, described in detail in the schedule of the plaint. It was stated that one Chikkamuniswamappa had purchased under a registered sale deed dated 30.03.1990, 2 acres and 12 guntas of land in Sy. No. 152/6 of Kethamaranahalli Village, Bangalore North Taluk from Smt. Nacharamma and her children and after the death of Chikkamuniswamappa, his wife Chowdama sold the suit property under a registered sale deed dated 17.02.1962 in favour of one Sri Krishnappa Mudaliar, the father of the plaintiffs and that the Bangalore Development Authority (for short, BDA) issued a notification dated 13.02.1976 giving opportunity to the site owners, in the revenue lands to apply re-conveyance and thereafter, applied for re-conveyance of the said site and paid necessary charges, but BDA did not re-convey the property. When the plaintiffs approached, BDA assured that the property would be re-conveyed. It was stated that in the month of February 1998, Venkataswamappa, Suvarna and Krishnamurthy started to interfere with the plaintiffs'' possession and enjoyment of the suit property and hence, they filed O.S. No. 1367/1998 and obtained an order of status quo. It was further stated that at the instigation of the said persons, the defendants started to interfere with the plaintiffs'' possession and enjoyment of the suit property and on 25.05.1999 the defendants came near the suit property and threatened the plaintiffs that they would dispossess the plaintiffs from the suit property and on account of such threats, the plaintiffs gave police complaint and that when the jurisdictional police did not take any action since the defendants are influential and political people, they filed the suit to pass a decree for permanent injunction against the defendants.

The defendants having appeared in response to the suit summons, filed written statement inter alia contending that the plaintiffs have suppressed the material facts and that the claim of the plaintiffs to the suit property is untenable and that the claim made by the plaintiffs is in respect of the property, which absolutely belonged to the defendants. It was stated that the property bearing No. 26/A situated towards the eastern side of property bearing No. 75/A is in exclusive possession and enjoyment of D. Venkataswamappa and entire property is enclosed with a compound wall and the eastern side of the property bearing No. 75/A is in possession of one Suvarna, there exists three storeyed building. It was stated that 2 acres and 12 guntas of land in Sy. No. 152/6 of Kethamaranahalli Village was owned by Doddana and others and the same was subject to sale under various transactions, which were listed in the written statement. It was contended that they negotiated with previous owner Sowbhagyalakshmi and purchased the site bearing old No. 2A new No. 75/A towards the western portion for valuable sale consideration as per the registered sale deed dated 16.11.1998 and thereafter, obtained khata and other documents and that they also obtained power supply for construction work and invested huge amount of money and commenced the construction and when the construction was enforced, the plaintiffs obtained an interim order and stalled the construction work. It was submitted that the plaintiffs did not have any right, title or interest either in the property bearing No. 75/A or 76/A and that they are also not in possession of any portion of the said properties and sought dismissal of the suit.

The Trial Court framed the following issues:-

i) Whether the plaintiffs prove their lawful possession over the suit schedule property as or; the date of suit?

ii) Whether the plaintiffs further prove the alleged interference by the defendants?

iii) What order or decree?

For the plaintiffs, their Power of Attorney holder Shanmugam deposed as PW. 1, through whom Exs. P1 to P9 were marked. For the defendants, the 1st defendant deposed as DW. 1, through whom Exs. D1 to D46 were marked. The learned Trial Judge having heard the arguments of the learned advocates appearing for the parties, upon appreciation of record of the case, answered issue No. 1 in the negative and since possession of the plaintiffs over the suit property was not established and identity of the suit schedule property with measurement as shown in the plaint was also not established, it was held that there is no need to answer issue No. 2. As a result, the suit was dismissed with costs.

Sri K.S. Chandrahasa, learned advocate appearing for the appellants contended that the Trial Court has failed to appreciate the Commissioner''s report, wherein it has been clearly stated that the boundary of western portion of the suit property is a road and that all boundaries shown in the plaint schedule tally with the Commissioner''s report. He submitted that on account of encroachment by the neighbour, the measurement of he suit property had been reduced, which aspect has unnecessarily been exaggerated by the learned Trial Judge. Learned counsel further contended that the learned Trial Judge has erred in coming to the conclusion that the admission of the defendants cannot be taken advantage on behalf of the plaintiffs, in as much as, there is clear admission by DW. 1 that the suit property belongs to them. He submitted that the defendants property being entirely different i.e., bearing No. 76/A, boundaries given by the defendants having not tallied, the learned Trial Judge committed error and illegality in dismissing the suit based on misconception. Learned Counsel submitted that the record of the suit has not been correctly appreciated and hence, interference is warranted.

Sri M. Shivaprakash, learned advocate appearing for the respondents on the other hand contended that the plaintiffs have failed to establish that they are in lawful possession and enjoyment of the suit property and that the learned Trial Judge has correctly appreciated the record of the suit and findings recorded in the impugned judgment being based on the correct appreciation of evidence, both oral and documentary, no interference in the decree is warranted. He submitted that keeping in view the nature of claim put forth by the defendants, a mere suit for injunction was not maintainable and in view of the written statement filed denying the title of the plaintiff and setting up a clear and specific case of the title in respect of the property shown in the schedule of plaint, the plaintiffs ought to have amended and converted the suit into one for declaration and injunction. Learned counsel submitted that no case exists for reversal of impugned judgment and decree under appeal.

In view of rival contentions and record of the suit, the points for consideration are:

i) Whether on facts, the plaintiffs ought to have filed a suit for declaration of title and injunction?

ii) Whether the Trial Court is justified in dismissing the suit?

Plaintiffs'' father had purchased site No. 3 in Sy. No. 152/6 of Kethamaranahalli Village, which becomes evident from Ex. P2, certified copy of a sale deed dated 07.12.1962. The plaintiffs have stated in the plaint that BDA did not re-convey the property in favour of their father and when they approached, BDA assured that the property would be re-conveyed. No documents executed by BDA, re-conveying the property has been produced. Ex. P5, an acknowledgment of BDA shows that survey number mentioned is 152/6 and no site number as such is mentioned therein. PW. 1 has admitted that the plaintiffs have applied for re-conveyance of the site, which means that the property was acquired and there being no document in proof of re-conveyance, the plaintiffs have failed to prove that they are in lawful possession and peaceful enjoyment of the suit property as on the date of institution of the suit. PW. 1 has admitted that except the documents produced in the suit, there are no documents to show the possession and enjoyment of the suit property by the plaintiffs. He also admitted that the plaintiffs are not in possession of the suit property. It is on account of admission of PW. 1, learned Trial Judge had held that the evidence of PW. 1 conclusively establishes that the plaintiffs have no right, title and interest over the suit property. The learned Trial Judge has also taken into consideration the Commissioner''s report and has arrived at the conclusion that the plaintiffs have utterly failed to prove their lawful possession and enjoyment over the suit property. In a suit for permanent injunction restraining the defendants from interfering with the plaintiffs possession, plaintiffs will have to establish that as on the date of the suit, they were in lawful possession and enjoyment of the suit property and the defendants attempted to interfere with their possession and enjoyment of the suit property. In this case, the suit property is a vacant site and in such cases, the principle is that, possession follows title. If both the parties claimed to be in possession of the suit site, one who is able to establish title thereto will considered to be in possession of a vacant site, as against the person, who is not able to establish title, which means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the possession. It is trite that where a cloud is raised over the plaintiffs'' title and they did not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. A suit for injunction can lie only if the plaintiffs are able to establish their lawful title and possession and enjoyment of the suit property and not otherwise. In this case, even according to the plaintiffs, in respect of the suit property, their father had sought re-conveyance by BDA and that they had also approached BDA for re-conveyance. The plaintiffs have not produced any document executed by BDA re-conveying the property, which shows that their alleged possession as on date of fling of suit is not lawful. Learned Trial Judge has noticed relevant evidence of PW. 1 and has appreciated the oral and documentary evidence and answered issue No. 1 in the negative. Keeping in view the record of the case, mere suit for permanent injunction was not maintainable and the plaintiffs ought to have sought declaratory and consequential relief''s. In the absence of prayer for declaration of title and issue regarding title, the Trial Court has confined the consideration only to find out lawful possession and peaceful enjoyment of the suit property by the plaintiffs as on the date of filing of the suit. Since the appellants have failed to establish lawful possession and peaceful enjoyment of the suit property, the Trial Court is justified in dismissing the suit.

In the result, the appeal being devoid of merit is dismissed. However, it is open to the plaintiffs to file a comprehensive suit for declaration and consequential relief''s and if such a suit were to be filed, nothing stated herein or by the Trial Court in the impugned judgment shall be construed as an express opinion regarding title and the future suit shall have to be decided in accordance with law. The defence of the defendants remains in tact. In the circumstances of the case, the parties are directed to bear their respective costs.