In the High Court of Karnataka at Bangalore

1

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 9 TH DAY OF AUGUST, 2012

BEFORE

THE HON’BLE MR.JUSTICE JAWAD RAHIM

REGULAR FIRST APPEAL.1194/2003

BETWEEN

1. SMT GOWRAMMA W/O LATE GURAPPA REDDY AGED 73 YEARS RESIDING IN A PORTION OF SY NO. 105/1 MURUGESHPALYA KODIHALLY DAKHALA AIRPORT ROAD BANGALORE - 560 017

2. SMT.G S UMA DEVI D/O LATE GURAPPA REDDY W/O. NAGARAJ AGED ABOUT 46 YEARS RESIDING IN A PORTION OF SY NO.105/1 MURUGESHPALYA, KODIHALLI DAKHALA AIRPORT ROAD BANGALORE - 560 017

3. G S LALITHA D/O LATE GURAPPA REDDY W/O. LATE VEERAPPA REDDY AGED ABOUT 55 YEARS RESIDING IN A PORTION OF SURVEY NO. 105/1, MURUGESHPALYA KODIHALLI DAKHALA, AIRPORT ROAD BANGALORE - 560 017

4. G S SRIDEVI D/O LATE GURAPPA REDDY W/O. MUNI REDDY AGED ABOUT 58 YEARS 2

R/AT NO. 2334, 9 TH MAIN 'E' BLOCK, RAJAJINAGAR II STAGE BANGALORE - 560 010

5. SMT.G S BHAGYALAKSHMI D/O LATE GURAPPA REDDY W/O. CHANDRASHEHAR AGED ABOUT 43 YEARS R/AT NO. 227, SWARNA KUPPAM ROBERTSONPET K.G.F.

6. G S KUMARASWAMY S/O LATE GURAPPA REDDY 41 YEARS, R/AT NO. 70, DOMLUR BANGALORE - 560 071

7. G S RAMESH S/O LATE GURAPPA REDDY AGED ABOUT 39 YEARS R/AT NO. 70, DOMLUR BANGALORE - 560 071

(SINCE DEAD BY LEGAL REPRESENTATIVES)

7(a) SMT.GEETHA RAMESH W/O LATE G.S.RAMESH AGED ABOUT 32 YEARS

7(b) MASTER GAUTHAM S/O LATE G.S.RAMESH AGED ABOUT 3 YEARS

BOTH ARE RESIDING AT NO.91, 7 TH CROSS, DOMLUR BANGALORE-560071

8. G S LAKSHMANA S/O LATE GURAPPA REDDY AGED 34 YEARS RESIDING AT NO. 70 DOMLUR BANGALORE - 560 071

(SINCE DEAD BY LEGAL REPRESENTATIVES) 3

8(a) ARUNA, W/O LATE G.S.LAKSHMANASWAMY AGED ABOUT 32 YEARS NO.70, 5 TH CROSS DOMLUR, BANGALORE-560073

8(b) MASTER GOKUL S/O LATE G.S.LAKSHMANASWAMY MINOR, AND REPRESENTED BY HIS NATURAL GUARDIAN APPELLANT 8(A) MOTHER

9. G S ANJANEYALU S/O LATE GURAPPA REDDY AGED 36 YEARS RESIDING AT NO. 70, DOMLUR BANGALORE - 560 071 ... APPELLANTS

(BY SRI.K.T.JAGADEESHA, ADVOCATE FOR SRI.G. PAPI REDDY, ADVOCATE; PETITIONER NOS.7(a) & 7(b) AND 8(a) & 8(b) ARE IMPLEADED VIDE COURT ORDER DATED.06.06.2006 & 12.06.2009 RESPECTIVELY)

AND

1. P. VASUDEVA REDDY MAJOR S/O. CLAIMING AS ADOPTED SON OF LATE PILLA REDDY RESIDING AT NO. 28

2. P NARAYAN REDDY S/O. LATE PILLA REDDY MAJOR RESIDING AT NO. 12.

3. SHAMANNA REDDY SINCE DECD BY LEGAL REPRESENTATIVES a) GOWRAMMA W/O. LATE SHAMANNA REDDY MAJOR. 4

b) SRI.SRINIVASA REDDY W/O. LATE SHAMANNA REDDY MAJOR c) SMT.SHOBHA REDDY S/O LATE SHAMANNA REDDY MAJOR

ALL ARE RESIDING AT NO.57

4. SRI. NAGAPPA REDDY S/O. LATE PILLA REDDY MAJOR RESIDING AT NO.31

RESPONDENTS NO.1 TO 4 ARE RESIDING AT MURUGESHPALYA BANGALORE-560071

5. KRISHNA REDDY @ MUNIKRISHNA REDDY S/O. LATE PILLA REDDY MAJOR R/AT NO. 40, DOMLUR VILLAGE BANGALORE - 560 071. SINCE DECEASED BY HIS LR.S.

5(a) SRI.SRINIVASA REDDY S/O LATE MUNIKRISHNA REDDY AGED ABOUT 65 YEARS RESIDING AT NO.40 DOMLUR VILLAGE BANGALORE-560071

5(b) SMT.AMMAYYA D/O LATE MUNIKRISHNA REDDY AGED ABOUT 62 YEARS NO.161, SHANKARNAG ROAD DOMLUR VILLAGE BANGALORE-560 071

5(c) SRI.GOPALA REDDY S/O LATE MUNIKRISHNA REDDY AGED ABOUT 59 YEARS NO.182, ‘O’ 4 TH P CROSS 5

DOMLUR LAYOUT BANGALORE-71

5(d) SMT.YESHODA D/O LATE MUNIKRISHNA REDDY AGED ABOUT 56 YEARS NO.40, DOMMALUR VILLAGE BANGALORE-71

5(e) SRI.JAYARAMA REDDY S/O LATE MUNIKRISHNA REDDY AGED ABOUT 54 YEARS NO.40, DOMMALUR VILLAGE BANGALORE-71

5(f) SRI.GOVINDA REDDY S/O LATE MUNIKRISHNA REDDY AGED ABOUT 53 YEARS NO.40, DOMMALUR VILLAGE BANGALORE-560 071

6. RAMAIAH REDDY S/O. LATE PILLA REDDY RESIDING AT NO. 30, MURUGESHPALYA BANGALORE - 560 071

7. P LAKSHMAIAH REDDY S/O. LATE PILLA REDDY RESIDING AT NO. 26 MURUGESHPALYA BANGALORE - 560 071 ... RESPONDENTS

(BY SRI: C R SUBRAMANYA, ADV. FOR R1,2, 3[A-C] ABATED AGAINST R4, R5-B TO F SERVED RESPONDENT NO.5(a) to 5(f) ARE IMPLEADED VIDE COURT ORDER DATED 12.06.2009)

RFA FILED U/S 96 OF CPC AGAINST THE JUDGMENT AND DECREE DT. 7.6.2003 PASSED IN OS NO.5012/1990 ON THE FILE OF THE XV ADDL.CITY CIVIL JUDGE, BANGALORE CITY, (CCCH.NO.3), DISMISSING THE SUIT FOR PERMANENT INJUNCTION, COSTS, ETC.

THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: 6

JUDGMENT

Unsuccessful plaintiffs are in appeal against

judgment in O.S.No.5012/1990 on the file of the XV

Additional City Civil Judge, Bangalore dismissing the suit.

2. Heard learned counsel Sri.K.T.Jagadeesha for the appellants and perused the records in supplementation thereto.

3. It reveals the following factual matrix:

The plaintiffs filed a suit bringing into party array the respondents herein as defendants seeking the decree of permanent injunction restraining the defendants from interfering with their possession of land described in the schedule to the plaint on assertive contention that they are the absolute owners thereof. They alleged the defendants have no manner of right or semblance of right in respect of the schedule property but are attempting to dispossess them with ulterior motives. 7

4. To support their title and ownership, it is averred that the property described in the schedule was originally owned by name Pilla Reddy, S/o.Ankaiah. He had sold the property to Sri.Rajappa and he subsequently sold it to one Muniswamappa. The father of the defendants Pilla Reddy ceased to have right in the suit schedule property.

5. That Gurappa Reddy husband of the first plaintiff and father of plaintiffs 2 and 7 purchased the property from Muniswamappa by virtue of indenture of sale dated 15.03.1948. He enjoyed the property as an absolute owner. He filed application before the Inams

Abolition Special Commissioner who granted him occupancy rights in respect of one acre and eight guntas of land in Survey No.105/1 of Kodihally Village described in the schedule to the plaint. They referred to proceedings in case No.6/1958 wherein the issue regarding occupancy was considered and adjudicated confirming the occupancy rights in favour of Gurappa Reddy. Alleging that 8

defendants have no manner of right, title and interest, they sought injunction order against them.

6. The defendants entered contest denying all allegations in the plaint and assertively contended that they are the absolute owners in possession of the land in question. They disputed averment in the plaint regarding acquisition of title of the property in question by

Muniswamappa from Pilla Reddy. They also denied plaintiffs’ father Gurappa Reddy had succeeded in obtaining occupancy rights under the provisions of Inams

Abolition Act as referred to above. They further disputed that plaintiffs are in physical possession of the land casting burden on them to prove it.

7. Based on the material propositions in the pleadings, the learned trial Judge framed the following issues for consideration.

1. Whether the plaintiffs prove that they are in lawful possession of the suit schedule property?

2. Whether the plaintiffs prove that defendants interfered with the peaceful possession and enjoyment of the suit schedule property? 9

3. Whether the plaintiffs are entitled for permanent injunction as prayed for?

4. What order?

8. In the trial that ensued, the parties have lead evidence. Plaintiffs examined one G.S.Lakshmana Swamy as PW1 and relied on 230 documents while Vasudeva

Reddy was examined as DW1 and placed reliance on 5 documents.

9. The learned trial Judge analysed the evidence and held the plaintiffs evidence could not outweigh the defendants evidence and consequently dismissed the suit.

Assailing which, this appeal is filed.

10. Learned counsel reiterates all the grounds urged in the trial Court to support the contention of the plaintiffs. As regards the title is concerned, he refers to the allotment by the Special Deputy Commissioner of

Inams Abolition Act. It cannot be ignored that the suit filed by the plaintiffs was a suit for an order injunction simplicitor. They had not sought for any declaration. 10

Therefore, the issue that is to be considered is the possession as on the date of the suit. The certified copies of four sale deeds which are marked as Ex.P1 to P5,

Assessment extracts which are marked as Ex.P6 and P7,

RTC extract-Ex.P8 was relied heavily to substantiate factum of possession. Subsequent sale deeds at Ex.P9,

P10 and P11 were also relied besides Ex.P14, the plan.

11. In the deposition, Lakshamana Swamy averred that the plaintiffs are in continuous possession of the property in question who have put up a farm house and constructed the houses.

12. The learned trial Judge has analysed the documentary evidence in the light of ocular testimony. In the impugned Judgment, the learned trial Judge has discussed the recital in Ex.P1 to P5, the RTC extracts at

Ex.P166 to Ex.P169, plan-Ex.P14, blue print plan at

Ex.P15. Ex.184 is the certificate issued by KEB for supply of power. It is pertinent to note that the learned trial

Judge has teased out the entries in each document and 11

recorded affirmatively that the entries in revenue records showing the name of first plaintiff’s husband, father of plaintiffs 2 and 9 is in respect of land measuring survey

105/2. Since the plaintiffs had not clarified the difference in the survey number, the learned trial Judge opined that

RTC extracts particularly marked as Ex.P8 indicates that plaintiffs were in possession of survey 105/2 and not suit schedule property. The documents speak only of possession of land measuring 1 acre and 12 guntas.

Therefore, it was a case of misapplying the documents relating to other property to their claim. There is elaborate discussion about the discrepancy in survey numbers of the property.

13. In the impugned Judgment, the learned trial

Judge has taken note of several documents filed like sanction given by the HAL Sanitary Board and permission granted to Gurappa Reddy to construct the property which are at Ex.P14 and P15. On close scrutiny, it is found that the permission granted under Ex.P14 and Ex.P15 is in respect of certain sites pertaining to survey 105/1. 12

Therefore, those documents were held as not supporting the claim of the plaintiffs in respect of schedule property.

The learned trial Judge has further referred to the proceedings in the High Court initiated by the plaintiffs in

W.P.No.8943/1996 which went against them and the appeal filed against the order in W.A.No.6063/1996.

Those actions were nodoubt at the instance of the plaintiffs which established that one Thayappa had claimed possession of the property in question based on the created documents. The tribunal has found he was not in possession of the said property or portion thereof. Since the claim by Thayappa was found to be fraudulent, the

Secretary of Government of Karnataka had reported the forgery of the signature of the officials of the land tribunal and the Tahsildar. Therefore, criminal case was registered against him. All these records show that there was a dispute with regard to the possession of the property in question. Ofcourse, during this period, there are several other simultaneous action under criminal law including special leave petition filed in the Supreme Court regarding the writ action before this Court. The learned trial Judge, 13

on examining the evidence found that the documents produced by the plaintiffs shows payment of amount. pertaining to site No.238. It was not shown whether that site was part and parcel of land in survey No.105/1.

Therefore, doubt was entertained by the learned trial

Judge. Besides, Ex.P16 endorsement on which the plaintiffs placed reliance was found not relating to survey

No.105/1, but it was in respect of land in survey 105/1

(b). Thus the learned trial Judge entertained a doubt regarding plaintiff’s physical possession of the Government land in question. He also entertained a doubt about the allotment of land in favour of Gurappa Reddy on

02.07.1958 as alleged since the complainant had not produced the order of allotment and other related documents. In this view, he opined that the plaintiffs were not entitled for an order of injunction unless factum of possession is established.

Though in the appeal, the plaintiffs had succeeded in

obtaining the order of status quo, there has been no order

of injunction till date. The plaintiffs did not seek 14

declaration in their favour in respect of the property in question. The evidence on record has been appreciated in the correct perspective which does not substantiate the physical possession of the plaintiffs and there is no reason to differ from the view taken by the learned trial Judge.

The same is affirmed and the appeal is dismissed.

Sd/- JUDGE vg/-