High Court Karnataka High Court

Abbas Ali Bohra S/O Tayabali vs The Arya Vidyashala Parents … on 2 September, 2010

Karnataka High Court
Abbas Ali Bohra S/O Tayabali vs The Arya Vidyashala Parents … on 2 September, 2010
Author: B.S.Patil
RFA 102,0/2004

IN THE HIGH COURT OF KARNATAKA AT BANGALORE)

DATED THIS THE 02% DAY 01? SEPTEMBER, _

BEFORE

THE HONTSLE I\/ERJUSTICE T    

R.F.A.No. 1020/20014' T ~ 
BETWEEN: T

Sri ABBAS ALI BOHRA.
S/ o Sri Tayabaii.

Aged about 51 years,
Residing at No.12/2,

New No.1109/3, 47%: Cross,"  -- if '
5"' Block, Jayanagar,   .  
Bangalore. '   . ' APPELLANT
(By Sri M.S.Rajend-rapP1'a5ad:€"E§r;-tioanseit}
AND:
THE ARYA ViDyASTiALA.'.pAT§.ENTS
ASSOCIATION, "  ' '-

4_ .. Represented by its "PreS_tdent

 P1'emi"SeS E'$["o.5;t' 5"] Main Road,

VGanpdh.1:nagar,   __

BatngaIo1=e;5.§O ooa,  RESPONDENT

'   (By  Adv. for

.M / S. Crest'-.VLaw".Partr1ers, AdvS.}

***

dd  Reguiar First Appeal is filed under 96 read with

 ___"t':)rd€;r 43 Rule 1 of CPC against the judgment and decree dated
  f33...8.2004 passed in O.S.No.7993/02 on the file of the VIII
 _ "Add].City Civil and Sessions Judge, Bangalore and etc.

This appeai coming on for Hearing, this day, the Court
made the following:



RFA E020/2004

JUDGMENT

1. This appeal is filed challenging the judgment”an«d.’_’deeifee _

dated 23.08.2004 passed by the V111 Add}. ._

Bangalore city, dismissing the suit
the appellant herein. 0 0 A 0 V

2. Appellant filed the said suitlvifseelging permanent
injunction. In fact, the seeking the
relief of declarationgof titleigrgvijtlg The said relief
was given up to the relief of

permanent inji,_inetion. “”Th4e”-isjuit”scheliiiile property is a vacant

space bearing’ “measuring east to west 177 feet

and north to lisoiith situated at 5111 Main Road,

__Gandhi_nlagar, Barig_alore. The plaintiff contended that the suit

was acquired by him through a registered

sai.e_1-41.11.2002 executed by its original

Vpowners. 1.;-jri-. S.N.PararnesWara, Srnt.Anasuyamma and

:'”v4.a’Srhtflhanvdramma and also Sri S.K.Ramesh, for a total

eonsitieration of Rs.65 iakhs. The plaintiff further contended

due to deficit stamp duty, the Sub–Registrar refused to

“register the sale deed though it was presented before him. The

further case of the plaintiff is that he has paid the corporation

RFA 1020/2004
3

tax to the Bangalore Mahanagara Palike in respect of the suit

property and that the previous owner of the property had_ put

him in Vacant possession of the same on the date of regiistrua-tion

of the sale deed and since then he has

possession and enjoyment of the same?” Plaintiff _;asserted.’_t,hat.

he had fenced the suit schedule

after he got the sale deed registered and__ tliatwwas a”

compound put up by theefathenofj’the’–..originaiowners. He
produced certain photogra’ph.s”~ the same.
According to him, when along with his
workers §l,and–.’on ‘2f’Ei,”i”1.-2’t)02, he noticed that the
defendantihad. along with rowdy elements and

tried to remoire, the fence he was prevented from cleaning

the solfedu1’e prop’e*rty_. ____ __immediately thereafter, he lodged a

“p_olic;e~ _eco.mp1ain’tv.__ In the circumstances, apprehending

inte1vfe1~ence’V’fbyf_ defendant, plaintiff was constrained to

approach the “Civil Court. It is further contended by him that

if S;K_.Ramesh who was the agreement holder of the said

and who was one of the signatories to the sale deed

–fa’1on’g with the original owners had filed a suit

d.u(“).S.No.5938/2002 against the defendant and others for

permanent injunction and that there was an ad interim order of

RFA 1020/2004
4

temporary injunction which was confirmed later and therefore
the action of the defendant in causing obstruction wasptotally

illegal and unjustified.

3. The defendant–resp0ndent herein av-lflsociety -,

registered under the Societies Registration’ Act,

claim by denying the plaint averrnents.l”*’i’h’e defendant lrailé§edial.* ”

preliminary objection contendinglvtthiat the ‘alleged ‘sale deed
being an unregistered havelthe effect of
transferring any right, title anld_i1;terest of the plaintiff

and the plaintiff~’canriot a.sseI’t.7any:.right.s__Hbased on the same

including,_lthat_’o1″ wasmfurther contended that the
earlier suit ” M filed’ declaration of title in

o.s.No._a93s/door’: ‘hhaviriglvbeen withdrawn by S.K.Rarnesh

yVithou.tA:’lib’erty..on 2f”/fll’ll.l2002 and the plaintiff herein having

filed’ and for irnpleading in the said suit stating that

l he the property during the pendency of the

ll”~.~.._sa,Ine, the present suit was barred. The defendant further

ctintenlded that the Counsel who represented S.K.Ramesh —

ll”‘t._,.l:pllair1tiff in O.S.No.5938/2002 also represented Mr.Abbas Ali

Bohara in the application filed for advancement and impleading

e very Counsel has filed the present suit as well. These

RFA 1020/2004
5
averrnents were made to highlight the fact that the pendency of

the proceedings in O.S.No.5938/2002, the nature of–.___relief

sought thereunder, the withdrawal of the same uncoriditihopinfially

and the filing of the present suit, were V’

knowledge of the present plaintiff: -The

contended that the plaintiff was abtisinlgf’tlhelfproeessl

Court with an intention to circuinifent the’ orderfpassed’ thisV f

Court in M.F.A.No.7146/2__oo2, Wh.erein”‘this comp had passed
an interim order on l8.1ll~.;’3:lOO2…ll5oth the parties to

maintain status qno. said appeal’ arose out of

O.S.No.59.38’/ lzlkhere had obtained an interim
order of lternporary’l:injunlcltioVn* ‘Which was challenged by the

defendant–So’ci_elty, –lres’pond_le’nt herein and at whose instance

_. the order ofstatus”q11o__c_arne to be passed. The allegation of the

Alldefendaritl ‘thlat__suppressing the said fact the present suit

came to be til-ed’g;;only in order to obtain an ex~parte order of

«’temporary”*– injunction. Several other contentions are taken in

ll”wr.iti;en’l statement by the defendant touching upon the title

property. which we are not concerned as eventually the

~«l..:pl’ai’ntiff gave up the relief of declaration and the judgment and

“decree which this Court is concerned is only in respect of

dismissal of the suit for permanent. i.nju.nctior1.

Jr

RFA 1020/2004
6

4. According to the defendant, this is a charitable

association which is running a school for poor and .–needy

students and the said school is situated at property

No.5, 5*” Main Road, Gandhinagar, Bangalore V’

vacant land existed in property No.4 as”‘cl~aime-pl byffthe plaintiff’.

It is their assertion that property No.4

They further contended that plfaintiff s not'”ace;uire’* f

title in excess of the area of 35 feye.t..a:npd dinches’ X.A99..ifeet. The
defendant traced its title vaitiposseissiofnfinptrespect of property
bearing No.5 to theigrant under the
registered,vdeiedfidctteld additional grant dated
l0.11.19s§<<i, " that they had Constructed
the school premises and are running a
4_ of the school building stands in the
to be claimed by the plaintiff. The defendant
over the suit property since the last 60

years.u""They. alleged that it was the plaintiff who was trying to

uforpe to encroach upon the property of the defendant and

that the suit was filed only with a View to secure eX–parte order

~«'..:of""injunction so as to trespass into the property of the

«defendant. Hence. the defendant sought for dismissal of the

suit.

A”

RFA 1 O20/2004

5. The court below framed necessary issues regardin§««pi’oVof

of lawful possession of the suit schedule property”

plaintiff on the date of the suit and theyyalleged” interference K”

the defendant so as to entitle the p’l’aif1tiff._lfor” ‘mi

permanent injunction.

6. In support of the case of Jexainined
himself as PW–i and two ‘S_.N.ParaIneshwara
and S.K.RaInesh ast,PWs–2VV–&:._3; ‘l33xs.P–l to P–25

were producedand:?fnarls:e’d. its part examined

two l?””Se.cretary of the defendant-

Society ‘ :Headrnaster of the school.

Exs.D–1 to nl:~;zgu:efe and marked.

.~'”7,_ v§_o’11svideratiovn_..0f the oral and documentary evidence,
.Vv1Ajv;Aelov\y,l::’recorded a finding that the plaintiff failed to

establish possession over the suit schedule property

and the allvegedlinterference by the defendant. Hence, the Court

b.elow’lid._¢clined to grant the relief sought for by the plaintiff and

–.d.isr1iissed the suit. Aggrieved by the same, the present appeal

RFA 1020/2004
8

8. Learned Senior Counsel Mr. Rajendra Prasad contends
that the judgment rendered by the Trial Court suffers from

serious illegality, in as much as the oral and documentary

evidence produced and relied on by the plaintiff is not

appreciated and considered. He particularly points

court below has failed to consider tVhe'”effect–‘_’of ~»{fWi’£_§

executed on 06.04.1967 by one Nanjarasappa in yfavlour

predecessor–in–title of the plainti.fi”~rand also “%1~’«”Njotice”‘

dated 28.10.2002 issued th.er.-au.th.oi’itAies of *the,l§angal0re

City Corporation to the “the defendant.

9. Counsel_A1for._gthe=.re’spbnden_’t Mr. Arun Kumar strongly
supports findings the Trial Court and submits

that the ‘ plaintiff has”not.lprolduced any semblance of document

toprovel his actual povssession. He has taken me through the

pleadings “th’e.Vd.ocuments produced to contend that the suit

filed the~plairitiff was only intended to harass the defendant

–. _;_i::.d subjectllthern to the ordeal of facing successive litigation.

‘Having heard the learned Counsel for the parties and on

careful consideration of the materials on record, the point that

arise for consideration is.

RFA 1020/2004
9
“whether the judgment and decree passed by the

Trial Court holding that the plaintiff failed to
establish his possession suffers from any illegality’ or

perversity warranting interference in this appeaij(“‘,VV”‘ — ~

11. The main basis for the ciairn of the plajntifi asjfcarl _

seen from the pleadings and the evidencesiis’

14.11.2002 executed by his Vendor insfaxrour of Tthe’:plaintiii’in’=.L

respect of the property bearing ‘situated._at* Shh Road.
Gandhinagar. The said deed’ 14. 10.20002 is not
produced before the ‘1’ria1 come up with

the plea that the .vsa3.eV:1:1eed_ thoiigh’«prolperlypilgeitecuted, could not

be registered .s_ta_m_p duty could not be paid and
hence theA’Si1haRegistrué11*did” “not register the document. The

p1aintiffs..assertionsixtrassl’-that the possession was delivered by

his vendors in his favoiir on the date of execution of the sale

¢1e¢a__o”r1– The suit is filed on 27.11.2002. The

causegof said to have arisen on 26.11.2002. As

-..l,l’_f3-‘.._already stated, the claim of the plaintiff is traced to the sale

_dated 14.11.2002 alleging that he took possession of the

–fislcheidule property on the same day (14.11.2002) from his

ffendors. However, in the cross–examination, the plaintiff has

hat he took possession of the suit schedule property on

RFA 1020/2004
10

28.06.2002 and he did not c1.aim the suit property on the said

date on account of obstruction. He further goes on to statcgthat

subsequently he did not go to the suit property. He ‘t_hat

he was aware of filing of MFA No.7146/2002 against thfgaaerr

of temporary injunction granted in O.S.’Nu,.593.s_3

of S.K.Ramesh who is stated to be .’the:’.A.agree:ment’.

respect of the suit property froinflits origin__al the”

plaintiff is claiming possession u.nder~the_ said 0′ original owners
and also under Sri Ramesh; “that he was aware
of the order passed_’by_ the’Highilpolurt-directing maintenance of
status~«quo”in _respec:tif:_o’f t’he*suilt”propVerty, but he asserts that
the said order to his purchasing the

property. It_to.be noti._c’e’d:Jhere that the status–quo order in

v»l’l:o.v”v/’1’~f£6/2002….W§1S passed on 18.11.2002 and the

Al’plair1tiff7ap_pellant herein asserts that he has purchased the

propelrty Vlanlfli4g§1’i.2002 and was put in possession on

1 Iithere was a status quo order on 18.11.2002, the

of the appellant being put in possession by his

.y_en.dorsAAlwho were directed to maintain status–quo with regard

tothe property would not arise. At any rate, in order to show

that the plaintiff-appellant. has been put in possession of the

suit schedule property. there is absolutely no material

fie

RFA 1020/2004
1 1
produced. The very foundation for the suit is the alleged sale

deed dated 1~<§.1 1.2002, which is not produced. Admittedly, the

sale deed has not been registered. In that Vi€W of

the fundamental premise on which the plaintiff V'

falls to the ground. Even assuming .that. .vvit}f41out' deistabiishing

the said sale, the plaintiff could estab:lish::'hi's

because he had abandoned thedeclaratoiyre1_iei7Vandcoiifined"V V

the suit to only for permanent Ainjunction, ll do.,r1ot:§ find any
evidence which establishes'p–.hi~s possession of the
property. Neitherthe khata the..V:'pr'op'erty»"'nor the tax paid
receipts in lithe» propertyvare in the name of the
Dlaintiff. * d

12. The contention of At.hfe’«1’edarned Senior Counsel that Ex.P–2

..~ V.–p_ Willv_*’dated’ 1″36._7__executed by Nanjarasappa in favour of

V.predeces~sory¥i’nrtitle of the plaintiff is not considered by the

Trialtjourt said document has got serious bearing on

the issue of actual possession is not tenable. This document

dddioes’finotfdisclose that the suit property in its definite

-.rneAasurernent and description was bequeathed in favour of the

” ~ persons from whom the plaintiff claims possession and title. As

dy referred to above. the suit is confined to one of actual

RFA 1020 /2004
12

possession. it is not possible by considering EX.P~2 mm Will dated
06.04.1967 to hold that the suit property described the
plain’: schedule was in actual possession of the
title of the plaintiff. 4′ if f l

13. Similarly, Ex.P–i7 on which the”le’arnedp {l3ou7nse}

places reliance is a notice issued byl;th”e._ Corporyation.

upon the defendant to explain as-vto’~undelr what autlhlorityllltheyll’

were trying to put up SlZOI’l.€..f€I1Ci1’1g’ ipropertyiibelonging to
the school. This notice does not of establishing
thf.’ aC’L’u<'-ll p0SS€vSlS:il0i1_ of suit schedule

property' Such "a'.i1otilce cannot be relied upon to establish the
possession.' Aippbest; construed that this notice is

issued by theft"Corporation."'alleging that the defendant was

illegallyCtry'ing"to put lulplstone fencing in respect of the property

belolniging:toliiileV'-sc_i.1ool, which does not mean that the plaintiff

was inpplawftillpiossessioii of the property warranting protection

from the "Court; of law. Therefore, the contentions raised by the

A llearnedljrseiiior counsel cannot be accepted.

On the other hand, the materials placed on record and

relied upon by the Trial Court disclose that the suit filed earlier

by S.K,Ra.mesh in O.S.No.5938/2002 for the relief of

as

RFA 1020/2004
18

declaration and injunction in respect of the very property was

dismissed without reserving liberty to file another suit andrthat

the present plaintiff had knowledge of the institutioiiof p

as he had sought to come on record by filing -« .0

impleacling in O.S.No.5938/2002. Duringiplthellpendejncy’

said suit, the present plaintiff ventured to

property and after the purchase uiasfimade, vtiielplsuit to be
withdrawn and immediatelyv-thereafter:.the”~presentsuit is filed
by the appellant herein who’l’wVas”_ applicant in

O.S.NO.5938/2002.”£3316 conduct i.pi§inu£f discloses that

he was tryingv initiiateethelpresent after Withdrawal of the
earlier suit Without”‘t_he acquisition of title by him.

This shows he is fr1_oLe.:e1’1titled for the equitable relief of

~p’€’l”1’}.’1<":v1lil3I1l;'li'3jl11'1Cl;l01'l,v_HltviS also to be noticed that the fact of

l'sale;rr1aVde.V_vi'o 'favour of the plaintiff was not informed to this

Cou'rt.hi~n' 46 / 2002 where the vendors of the plaintiff

were parties. .' "'lT'he Trial court has rightly taken note of this

on the part of the plaintiff and his predecessor in title

andiiias rightly come to the conclusion that the plaintiff did not

e T " the relief of permanent injunction.

_ 3 #5

RFA 1020/2004
14

15. In the light of the discussion made above and in the wake

of the materials on record adverted to herein above. thereis no

ground made out for interference with the judgment.«andV”dAe’efe.¢

passed by the Trial Court. Hence, this appeal

same is dismissed. Parties to bear theirmrespectivecosts. ‘