Sunanda vs K.N. Narayana Reddy

H. Billappa, J.—This appeal by the appellant-plaintiff is directed against the judgment and decree dated 8.9.2009 passed by the 17th Addl. City Civil Judge, Bengaluru City in O.S. No. 5926/2002.

By the impugned judgment and decree, the Trial Court has dismissed the suit of the plaintiff.

Aggrieved by that, the appellant-plaintiff has filed this appeal.

The respondent is the defendant before the Trial Court. The parties will be referred to with reference to their rank in the original suit O.S. No. 5926/2002.

Briefly stated the facts are:

"The appellant-plaintiff filed suit in O.S. No. 5926/2002 for permanent injunction. The case of the appellant-plaintiff was that she is the absolute owner of the property bearing K. No. 25, Old No. 242, then 583, Tank Road, near Kote temple, K.R. Puram, Bengaluru 26. The plaintiff obtained title to the suit schedule property through a family registered Partition Deed dated 5.11.2001 which took place between the plaintiff and her brothers, mother and sisters."

It is stated, the father of the plaintiff late K.P. Narayanappa purchased the suit schedule property through registered sale deed dated 5.6.1961 from its owner Nanjundaiah. Thereafter, rectification deed was also executed. It is stated, the original sale deed was lost. Therefore, certified copy is produced. So also rectification deed. Further, it is stated, since the originals are produced in O.S. No. 480/1994 the certified copies are produced.

It is stated, the plaintiff had filed suit in O.S. No. 480/1994 for bare injunction. The suit was dismissed for default on 30.1.2001. By then, there was an oral partition in the plaintiff''s family. Subsequently, it has been registered on 5.11.2001. It is stated, from the date of purchase of the suit schedule property, the plaintiff and her family members father are in peaceful possession and enjoyment of the suit schedule property without any interference from anybody. The plaintiff has been paying the tax. The plaintiff''s father after obtaining license from the Village Panchayat had constructed the house on the suit schedule property. At present, the plaintiff is residing in the suit schedule property. In spite of that, the defendant misusing the dismissal of suit in OS. No. 480/1994 for default on 30.1.2001 is trying to interfere with the plaintiff''s peaceful possession and enjoyment of the suit schedule property. The defendant is having his property on the southern side of the suit schedule property to the extent of 1/2 the distance from western side. The remaining 1/2 property is bounded on the southern side by Krishna Reddy. It is stated that on 15.8.2002 the defendant tried to interfere with the plaintiff''s peaceful possession and enjoyment of the suit schedule property. The plaintiff along with others resisted the same. The defendant who is a powerful person challenged the plaintiff saying that he would come again and take possession of the suit schedule property to the extent of 52 feet East to West and 9 feet North to South. The act of the defendant is uncalled for. It is stated that on 25.8.2002 at about 9:00 a.m., the defendant tried to dispossess the plaintiff from the suit schedule property. Therefore, the plaintiff gave a complaint to the local police. The police directed the plaintiff to approach the Court. Therefore, the plaintiff has prayed for permanent injunction to the extent of East to West 52'' and North to South 9'' on the western side.

The respondent/defendant has filed his written statement contending that the suit is not maintainable. The plaintiff had filed a suit for permanent injunction against the defendant and others in OS. No. 480/1994 based on the same set of facts except the alleged partition deed. The suit came to be dismissed for non-prosecution. There is remedy under Order IX Rule 9 of CPC for restoration. Therefore, the suit is barred by res-judicata.

It is stated, the plaintiff claims title to the suit schedule property by succession and subsequent partition. The brother of the plaintiff had filed a suit in O.S. No. 4096/1987 on the same set of facts. On 24.3.1994, the brother of the plaintiff had filed a memo praying to dismiss the suit as withdrawn. There was no request to reserve liberty to file a separate suit. Therefore, the suit is barred by res-judicata. The acquisition of property by the father of the plaintiff and subsequent rectification deed are denied. It is stated, the partition deed is concocted for the purpose of this case. Since the plaintiff and her brother did not achieve their object in obtaining injunction, the present suit is filed by creating the document. The boundaries furnished are not correct. It is stated, on the western side wrong boundary has been shown. On the western side Venkatappa''s property is not lying. The defendant is owning property measuring 42 x 62 feet in between the property of the plaintiff and Venkatappa''s property. In order to knock off this portion of the property, the plaintiff has filed the suit including the property of the defendant measuring 42 x 62 feet having Khatha No. 23. The plaintiff claims that the originals are lost. It is also stated, the originals are produced in O.S. No. 480/1994. Nothing prevented the plaintiff from taking back the documents and producing the same. It is stated, the father of the plaintiff as well as the vendor of her father did not derive any title to the property. Therefore, the partition deed will not benefit the plaintiff in any manner. It is stated, on the western side of the property the defendant is having property measuring 42 x 62 feet in which nobody has put up construction and no authority has granted license. It is stated, the defendant is owning property on the southern side as well as on the western side of the plaintiff''s property i.e., in between the property of the plaintiff and K.T. Venkatappa which measures 42 x 62 feet. The allegations that on 15.8.2002 and 25.8.2002, the defendant tried to interfere with the peaceful possession and enjoyment of the suit schedule property are denied. It is stated, the property bearing No. 23 measuring 42 x 62 feet situated at K.R. Puram Village belongs to the father of the defendant Nanjappa Reddy and the defendant had succeeded to the said property. The plaintiff has no manner of right, title or interest in the said property. It is stated, the vendor of the plaintiff''s father had no title. Therefore, the plaintiff''s father does not get any right, title or interest in the property purchased under sale deed dated 05.06.1961. The plaintiff and his family members are harassing the defendant''s family from the last 15 years. Therefore, the defendant has prayed for dismissal of the suit.

The Trial Court has framed the following issues.

On appreciation of the evidence on record, the Trial Court has answered issue Nos. 1 to 3 in the negative and consequently, has dismissed the suit. Therefore, this appeal by the plaintiff.

The learned counsel for the appellant/plaintiff contended that the impugned judgment and decree cannot be sustained in law. He also submitted that the Trial Court has failed to consider the evidence on record in proper perspective. Further he submitted that the Trial Court has erred in disbelieving the evidence of P.W.1 who is the power of attorney holder. He also submitted that Exs. P.2, P3 and P4 clearly show that the plaintiff is the owner of the suit schedule property. The suit schedule property has fallen to the share of plaintiff as per item No. 1 of ''E'' schedule to the partition deed Ex. P2. The defendant has not produced any title documents to show that he owns the property measuring 42 x 62 feet in between the property of the plaintiff and K.T. Venkatappa. The additional documents produced by the plaintiff show that the suit schedule property lies to the east of K.T. Venkatappa''s property. The documents produced by the plaintiff clearly show that the plaintiff is the owner of the suit schedule property and the defendant tried to interfere with the peaceful possession and enjoyment of the suit schedule property by the plaintiff. Further, he submitted that Ex. D9 is not acted upon. At the most, it may amount to license. The moment the suit is filed the license stands revoked. The plaintiff being the owner of the suit schedule property is entitled for injunction.

Placing reliance on the decision of this Court in Kaju Devi and Another Vs. H.S. Rudrappa alias Rudy and Others, , the learned counsel for the appellant/plaintiff submitted that the GPA holder can depose to the facts which are within his personal knowledge.

Further, placing reliance on the decisions of the Hon''ble Supreme Court in Maria Margarida Sequeria Fernandes and Others Vs. Erasmo Jack de Sequeria (Dead) through L. Rs., ; U.P. State Brassware Corpn. Ltd. and Another Vs. Udai Narain Pandey, , the learned counsel for the appellant submitted that the court can mould the relief in a given situation. The endeavor of the court should be to find out where the truth lies. A licensee can hold possession on behalf of the owner.

Placing reliance on the unreported decision of this Court in W.P. No. 2581/2015 and connected matters, disposed of on 1/6/2015, the learned counsel for the appellant submitted that a license is merely a leave to do a thing and it passes no interest in the immovable property to the licensee.

Placing reliance on the decision of the Hon''ble Supreme Court in Vinod Kumar Arora Vs. Surjit Kaur, , the learned counsel for the appellant submitted that it is not open to the party to give up the case set out in the pleadings and propound a new and different case. Therefore, the impugned judgment and decree cannot be sustained in law.

Further he submitted that the plaintiff has filed IA No. 2/2015 for additional evidence, IA No. 3/2015 for appointment of the Court Commissioner and IA No. 4/2015 for correction of the prayer and they may be allowed.

As against this, the learned counsel for the respondent submitted that the impugned judgment and decree does not call for interference. The Trial Court on proper consideration of the material on record has rightly dismissed the suit and therefore, the impugned judgment and decree does not call for interference. Further he submitted that Ex. P.3 sale deed does not give any measurements. It is not clear as to how the vendor of the plaintiff''s father acquired the suit schedule property. The measurement of the property owned by Nanjundappa is not forthcoming. Therefore, Ex. P.3 does not convey any title to the plaintiff''s father. Therefore, the plaintiff cannot claim any right, title or interest in the suit schedule property. Further he submitted that the relief claimed is very vague. Therefore, the suit is not maintainable. The plaintiff had filed a suit in O.S. No. 480/1994 for the same relief. It was dismissed for default on 30.1.2001. The brother of the plaintiff had filed a suit in O.S. No. 4096/1987. It was dismissed as withdrawn. Further, he submitted that the partition deed -Ex. P2 is created for the purpose of this case. The defendant owns property measuring 42 x 62 feet in between the plaintiff''s property and the property of K.T. Venkatappa. Ex. D13 is the katha extract which shows that the defendant''s father Nanjappa Reddy was owning 42 x 62 feet between the property of the plaintiff and the property of K.T. Venkatappa. He also submitted that there was an agreement entered into between the plaintiff and the defendant as per Ex. D9 in presence of the panchayathdars. The plaintiff has parted with 13 feet east to west on the western side out of 65 feet. In lieu of that, the defendant has agreed to give East-West 52 feet and North-South 9 feet on the southern side of the suit schedule property. Ex. D9 is suppressed by the plaintiff. No where in the plaint there is mention of Ex. D9. Even now, the defendant is ready to act in terms of Ex. D9 subject to the plaintiff withdrawing the present suit. It is clear from Ex. D9 that the plaintiff has voluntarily given 13 feet to the west of plaintiff''s property. Therefore, the question of defendant interfering with the suit schedule property to the extent of East to West 52 feet and North to South 9 feet does not arise. It is clear from Ex. D9 that to the west of plaintiff''s property, there is property of the defendant and his brother. Therefore, the Trial Court was justified in dismissing the suit. The impugned judgment and decree does not call for interference.

I have carefully considered the submissions made by the learned counsel for the parties.

The points that arise for my consideration are;

"1. Whether the impugned judgment and decree calls for interference?

Whether I.A. Nos. 2, 3 and 4/2015 need to be allowed?"

Point No. 1

It is relevant to note, the suit is for permanent injunction. The plaintiff contends that the suit schedule property was purchased by her father through Ex. P.3. Thereafter, the rectification deed dated 2.11.1961 was also executed as per Ex. P.4. In the family partition dated 5.11.2001, the suit schedule property was allotted to the share of the plaintiff. The plaintiff is in possession and enjoyment of the suit schedule property. The defendant tried to interfere with the possession and enjoyment of the suit schedule property by the plaintiff.

The defendant contends that the plaintiff is not the owner of the suit schedule property. Exs. P.3 and P.4 do not convey any title to the plaintiff''s father. Therefore, the plaintiff cannot claim any right, title or interest in the suit schedule property based on Exs. P.2, P3 and P4. Further, the defendant contends that in between the property of the plaintiff and K.T. Venkatappa, the defendant owns property measuring 42 x 62 feet. The plaintiff is trying to knock off the said property. It is denied that the defendant interfered with the plaintiff''s property.

The plaintiff has examined P.Ws.1 and 2 and marked Exs. P.1 to P.21.

The defendant has examined himself as D.W.1 and Exs. D1 to D17 have been marked.

The material documents are Exs. P2, P3 and P4. Ex. P.2 is the partition deed dated 5.11.2001. ''E'' schedule property in Ex. P2 has fallen to the share of the plaintiff. Item No. 1 in ''E'' schedule is the suit schedule property. Ex. P.3 is the sale deed dated 5.6.1961. It is executed in favour of the plaintiff''s father K.P. Narayanappa by one V.K. Nanjundaiah. On 2.11.1961, the rectification deed has been executed by the vendor of the plaintiff''s father. The property number is shown as Kaneshumari No. 242 measuring East to West 65'' and North to South 80''. The plaintiff has also produced the tax paid receipts as per Exs. P.5 and P.6 and license as per Ex. P7. The license does not indicate the measurements or boundaries of the property to which the license is granted. Exs. P9 and P10 are the residential certificates. Ex. P11 is the complaint dated 26.8.2002. It is alleged that the defendant tried to dispossess the plaintiff from the suit schedule property. Exs. P12 and P13 are the tax paid receipts. Ex. P.15 is the extract of tax payment register. The plaintiff is shown as owner of the property No. 25/242 measuring 65'' x 80''.

The defendant has produced Exs. D1 to D17. Ex. D1 is the certified copy of the plaint in O.S. No. 311/80 (Old No. 166/1972). The suit is filed by the father of the plaintiff. Ex. D2 is the certified copy of the decree in O.S. No. 311/1980 (old No. 166/1972). Exs. D3 to D8 are the photographs. Ex. D9 is the agreement dated 30.10.1999 between the plaintiff and the defendant in presence of the panchayathdars. It is signed by the plaintiff, her husband, defendant and brothers of the defendant. Ex. D.10 is the order sheet in O.S. No. 480/1994. It shows that the suit filed by the plaintiff in O.S. No. 480/1994 was dismissed for default on 30.1.2001. Ex. D11 is the certified copy of the plaint in O.S. No. 480/1994. The suit is filed by the plaintiff for permanent injunction.

Ex. D12 is the written statement filed by the defendant in O.S. No. 480/1994. Exs. D13 to D15 are the katha extracts. They show that the katha of the property No. 23 is standing in the name of Nanjappa Reddy who is the father of defendant and owns the properties measuring 66'' x 125 3/4'', 46'' x 28'' and 46'' x 62''. Ex. D.16 is the endorsement dated 2.7.2008. It shows the details of the property bearing No. 23. It is bounded on the east by K.P. Narayanappa''s house, west by property of K.T. Venkatappa, South by Nanjappa Reddy and North by road measuring 46'' x 62''. Ex. D17 is the rough sketch produced by the defendant.

It is clear from Ex. P.3, it does not indicate the measurements or property number. However, in the rectification deed dated 02.11.1961 i.e., Ex. P.4, it is stated, the property No. 242 measures East to West 65'' and North to South 80''. In Ex. P.2 the property is allotted to the share of the plaintiff. Prior to this, the plaintiff, her brother and her father had filed suits against the defendant and others. The suit filed by the plaintiff in O.S. No. 480/1994 has been dismissed for default on 30.1.2001. The suit filed by the brother of the plaintiff in O.S. No. 4096/1987 has been dismissed as withdrawn on 24.3.1994. The suit filed by the father of the plaintiff in O.S. No. 166/1972 has been dismissed on merits. However, the property involved in O.S. No. 166/1972 does not relate to the suit schedule property. The plaintiff''s claim is based on Exs. P.2, P.3 and P.4. The defendant claims based on Ex. D13. Ex. D13 is not a title deed. It shows that some sites are standing in the name of the defendant''s father. No documents are produced by the defendant to show that his father owns property in between the plaintiff''s property and the property of K.T. Venkatappa. However, Ex. D9 is a relevant document. After O.S. No. 480/1994 was filed by the plaintiff, the defendant and his brother in presence of the panchayathdars have entered into an agreement as per Ex. D9.

Ex. D9 shows that the plaintiff has given East-West 13'' out of 65'' to the defendant and his brothers on the western side. In lieu of that, the defendant has agreed to give East-West 52'' and North-South 9'' in his property lying on the southern side of the suit schedule property. The schedule given to the plaintiff''s property in Ex. D9 is as follows:

Property measuring East-West 52'' and North-South 80'' and bounded as follows:

"East by: Keethappa''s property

West by: K.N. Narayana Reddy and his brother''s property

North by: Road

South by: Krishnappa and K.N. Narayana Reddy and his brother''s property"

It is clear, the parties have entered into an agreement as per Ex. D9. The plaintiff has given East-West 13'' out of 65'' to the defendant and his brothers on the western side and has agreed to take East-West 52'' and North-South 9'' in the property of the defendant lying on the southern side of the suit schedule property. Therefore, the extent of the plaintiff''s property is reduced to East-West 52'' and North-South 82''. In Ex. D9, the western boundary is shown as K.N. Narayana Reddy and his brother''s property. Therefore, the plaintiff cannot contend that the defendant tried to interfere with the suit schedule property and is trying to dispossess the plaintiff. The property involved in Ex. D9 and the suit property alleged to have been interfered with is one and the same. In view of Ex. D9, it is not open to the plaintiff to contend that the defendant is trying to interfere with the suit schedule property. The plaintiff has voluntarily entered into an agreement as per Ex. D9. Therefore, the plaintiff cannot contend that the defendant interfered with her possession and enjoyment of the suit schedule property to the extent of East-West 52 feet and North-South 9 feet.

It was contended by the learned counsel for the plaintiff, at the most Ex. D9 may amount to a licence and it stands revoked the moment suit is filed. This cannot be accepted, for the reason, nowhere in the plaint the plaintiff has pleaded about Ex. D9 or the arrangement made between the parties. Therefore, the argument cannot be accepted. No doubt, the decisions relied upon by the learned counsel for the plaintiff show that the endeavour of the court should be to get at the truth. In the present case, neither the plaintiff nor the defendant have pleaded anything about Ex. D9. However, in the cross examination of PW-1, Ex. D9 has been confronted and PW1 has admitted the contents and signature of the plaintiff and her husband in Ex. D9. Therefore, Ex. D9 can be relied upon. In fact, the real controversy is reflected in Ex. D9. Therefore, it cannot be said that there was interference as alleged by the plaintiff. Therefore, the Trial Court was justified in dismissing the suit.

Point No. 2

The plaintiff has filed I.A. No. 2/2015 praying to produce additional evidence.

Additional evidence cannot be allowed as a matter of course. The plaintiff wants to produce Commissioner''s report in FDP NO.1309/1980 and the sale deed dated 7.5.1917. Neither the plaintiff nor the defendant are parties to FDP No. 1309/1980 or the sale deed dated 7.5.1917. The plaintiff wants to produce additional evidence to show the western boundary of the suit schedule property. Exs. P.2, P.3 and P.4 produced by the plaintiff show the western boundary of the suit schedule property. The real controversy between the parties is with regard to interference by the defendant. It needs to be answered considering the material on record. Therefore, I.A. No. 2/2015 cannot be allowed and accordingly, it is rejected.

I.A. No. 3/2015 has been filed by the appellant praying to appoint Court Commissioner to measure the suit schedule property and report regarding the location of the building existing in the suit schedule property. The suit was pending since 2002 to 2009. The parties have adduced evidence. At this stage, the plaintiff wants to appoint the Court Commissioner. The real controversy between the parties is with regard to interference by the defendant. The evidence on record is sufficient to resolve the issue. Therefore, the appointment of the Court Commissioner is unnecessary. Accordingly, I.A.NO.3/2015 is hereby rejected.

I.A. No. 4/2015 has been filed by the appellant praying to correct the prayer by deleting a portion of the prayer.

The specific case of the plaintiff is that the defendant tried to interfere with the suit schedule property to the extent of East to West 52'' and North to South 9''. Now, the plaintiff wants to delete a portion of the prayer. It cannot be allowed as it changes the nature of the case. Therefore, I.A. No. 4/2015 is hereby rejected.

The impugned judgment and decree does not call for interference.

Accordingly, the appeal is dismissed. The parties shall bear their own costs.