IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22?") DAY OF SEPTEMBER 2010
BEFORE
THE'. HUMBLE MR. JUSTICE A.S. BOPANNA
REGULAR FIRST APPEAL NO. 2451/2007 (INJ)
BEIWEEN :
1 C RAMESH
S/O LATE CHOWDAPPA
AGED ABOUT 48 YEARS '
2 R UMESH S/0 C RAMESH _
AGED ABOUT 22 YEARS
BOTH ARE R/AT NO. 329 '2
Sm CROSS, HULEMAVU _
SANNERGHATTA I{_OA_D _ .,_ ,
SANGALoRE-- 560 "076. a_ 2-. ; APPSLLANTS
{BY SRTM V ANVOROP-~
SR1 TM 'V';3NKATAVRE~I)DY*"& SR1 M NAGESH, ADVS.)
AND:V__
" --- ~ "
~ . A AGED ABOUT 40 YEARS
T W/' 1'«%YA'I'I~IA REDDY
'-'_1R/A'3""I5:_O;.V2.7, 2ND CROSS
A ' B.C.C§'LAY OUT, 2ND STAGE
""VIJ£iYFEAGAR
BANGALORE -- 550 040
I GOVINDU
A AGED ABOUT 22 YEARS
S/o C RAMESH 3
R/AT No: 329
5'1" CROSS, HULIMAVU
I3ANN§+:RC1-IATrA ROAD
BANGALORE A 560 076 RESPONDENTS
(BY SR1 M ERAPPA REIDDY &
SR1 G NARASI REDDY, ADVS FOR R1
NOTICE TO R2 DISPEZNSED WITFI)
THIS APPEAL IS FILED U/O 41 R 1 OF C9C:__Ac:AIN.S’I**-. ‘ I.
THE JUDGMENT AND DEGREE DATED ’05.o9;2007
PASSED IN o.S. NO. 9417/2005 oN TIIE FILE’O’F.:’FHE»}G[1I
ADDL. CITY CIVIL JUDGE, EANG,AL_o.RE.;« _{CCH~”1w6)
DECREEING TI-IE SUIT FOR PERMANENT AIINJUNCTION. A
This Appeal coming OIE’:fi’;3..I_f he.0ar.ing,V t11.iSA..da.y,H 1:’3heV0
Court delivered the following :
defendants in
O.S.No.0″4I10’7/ in question was filed by
the reS_ponde’nt_¥p1aivntiff Seeking judgment and decree of
‘ v’pe1*n;1Iahei-it injunCiiioI’1″Vto restrain the defendants from
‘peaceful possession and enjoyment of
the »SIz.it property. The trial Court after
{he rival Contentions has decreed the Suit
0 /:.§Af’)V’VJ~fV’ifS:fjL1dgfnCI1f. dated 06.09.2007. Only two among
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the three defendants claiming to be aggrieved by the
said judgment. are before this Court.
2. The parties would be referred to in the same
rank as assigned to them before the trial Court for'”?_he
purpose of convenience and Clarity.
3. The plaintiff contended that
purchased the property described, inthe Ru
under a sale deed dated 2O.1O.;2OG’¥l”froh1
Anitha. T he Vendor of the the
property} Srikvadrivtaswamy by sale deed
dated Sri B.C. Srikantaswamy
had purchased’-theproperty from Sri M. Rarnesh, under
‘sale dated 1V§.Ht)l2.1988. After purchase of the
secured change of khatha from
the “City”Mtflriicipal Council and also obtained the
sian<:t'ior1Ve'd plan for putting up ctonstruction. At that
defendants No. 2 and 3 being the sons of
%.
we
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the first defendant interfered with the peaceful
possession and enjoyment of the suit. schedule property
by the plaintiff, the plaintiff was constrained to file a
suit seeking for injunction.
4. On service of suit sumnions, ‘4
appeared and filed their writteryv..sta’tehm’ent”V::a_nci:;_Ad
contended that the suit is liable-..to be’~dismis*s;ed.;
their contention that they are .o_wn_ers..of property
bearing Sy.No.4/2 of though the
plaintiff contendsthat he”lia}sj site situate
in Sy.No.,4/1. does not indicate so and in
fact. the ” Vpitarchased the site situate in
withndregaijdtyto which vendors of the property
‘no right’..§(fi1a.tsoeve1*. It was further contended that
ifi’–1§espe§t property bearing Sy.No.4/2, he had
Calready. suit for partition in O.S.l\§o.8’78/2004» a.nd
the injunction sought for by the plaintiff
” ‘rcaiginoti be granted.
5.
framed as
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The trial Court noticing the rivai contentions
many a.s four issues for its consideration,
which reads as hereunder:
Whether the plaintiff proves that he isf”””iTn
lawful possession of the suit sclieduie gro_f43e1ftyt:4’or’1V”«2
the date of suit ‘?
Whether the plaintiff fL}I’U’],-3I'”‘pi-‘OV€S’_’ that “c1efenVdan.tsViV.,
are interfering with tiis”-posse’ssiori~. of. the
schedule property?
Whether the piaintiff i>$V”‘Vé1’j.’€VV}-Vt/3-e(}.ti.:’.:#11-6 injunction
prayed for’? V A
WT1a’t..Orc13e1′ or Decree”-
“idn the burden cast on the
parties, t.he~-.his-isiVnt:iif’._exafnined hirnseif as P.W.i and
V’ ‘ i
‘V..Vmari§e.d3___?docume’f1’ts …. at EXhs.P1 to F12. The first
himself as D.W.i and marked
E.Xhs.D1 to D7. The trial Court on
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analyzing the said docunients held that the suit is to be
decreed and accordingly, granted the injunction.
7. Learned Counsel for the appellants xvhile
assailing the judgment of the trial Court
that the trial Court has not properly .the:”
evidence available on record. It is the yeontei1.tio.n’ ‘ofithe; e .l
learned counsel that even though thVe”‘salea.deVeds. wjerel
produced and marked beforeflithe trial: the
schedule indicated in the sale;_d.eed’v.does not indicate
319 SUTVEY number :’D1*gE{,’€Tf}}’§v_ is therefore
contended ‘-thatllin-~,1th.eV”-su*hsequent documents, even
assuming Vxforhh a m_oment.7’ that the survey number is
.–.fimenV_ti~3;3ned, ‘then is without basis and without
-site number being allocated in the said
survey nurnfi:}e.i”‘. As such the documents in any event
‘does “riotlsprove the case of the plaintiff. It is also
that even though the RTC record was
_._wp1’o%dL1ced and marked at Ex.P7, the same does not refer
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to t.he details of the property and as such, the trial
Court could not have relied on the same. The learned
Counsel further contends that. when the
have filed a suit for partition relating to the it
same is pending in final decree ‘»proe.:eedirigs~, lthett-r_ial:1VaA
Court could not have granted~..the linjlunctiovn to
defeat the right of the ‘–.l_Il%l_enc?e, the
judgment of the trial Co”urt.. i”.equi,rels«lcIl0iplbepset aside and
the appeal is to allow’ed’.* ii”: V
8., ——– learned for the plaintiff-
respondent that the very perusal of the
judgment llwouldl that the trial Court has
-“‘~a_VrefeI’fr’l’edE the lenti.re.vora1 as well as the documentary
eVidence._available on record. In this regard, the learned
counsel to each of the documents to point out
‘that t’h_e”:. property purchased in fact is situate in
“‘il-S_’jy.l\l.oA_«4/1 regarding which there can be no dispute
whatsoever. It is further contended that the property in
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Sy.i\io.4/1 was purchased by one Sri Ramesh who
thereafter formed layout and sold sites. Since the City
Municipal Council had by then issued khatha numbers
in respect the property, the same were indicated in'”the
sale deed. As such. the trial Court was V.
conclusion and the same does not call for interferefnee. C’
9. In the light of has been if
the respective learned counsel”a:i”1’divn yiiew the
issues framed before trial perusal of the
judgment keeping in Vifiwithve.’lf€C01″ti’S.. s~ec–u1″ed from the
trial Court that the plaintiff while
examininglvlliiirnselt’.as;_P.Wi;1 has at the outset relied on
the _s’a:1e: deed as The documents of his vendors
produced and marked at Ex.P2. It is no
doubt that said documents do not indicate
Vb”‘–«.__4’xreference*;_to Sy.No.4/1. However, the fact. that the
in question is situate within the City Municipal
–..bwCo%unc:i1 of Bonimanahalli at this point in time. is not in
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dispute. In that regard, the document at EXP4 viz., the
endorsement which is issued by City Municipal Council
would indicate that in addition to the khatha number.
the property number also refers to No. 4/1, thoL1.gr:,pit
has not been specifically mentioned as SurVe},.t…nu.rr1b’_€rV”
as against mentioning No. 4/1.
10. Further, to point: out the of
larger extent measuring Sfllllvgluntas l”w.a:si’V’:situ§ate in
Sy.No.4/1, the doCurner_1.tp«.at i_i’.X.é’?’ Rrc isrelied on.
The column No.9 of /indicates the
r1ame the Ramlesh. Though the learned
Counsel for__the_ appellan:t”_.~eontended that the same does
not iijrdicate survey number, a perusal of the same
would indioa_te.that the survey number is mentioned as
number as 1. As such the said
‘.VdocurnentV would indicate that one Sri M. Ramesh was
lciwner of the property bearing Sy.l\lo.4/ 1. In that
if the oral evidenria of the parties is taken into
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we
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consideration. it is seen that the piaintiff has referred to
the fact that the layout has been formed by Sri Ramesh
and thereafter the said property was sub~divided into
plots being soid to different. site owners. It is i1″1.p’t’hat
regard, one of the plots which was demarcate.d._’4″inl’tfie*V.
said property was sold to the vendor of they
thereafter the plaintiff had purchazsedthe p_
ii. In the light of what._Vhadl’belen
plaintiff as P.W.1, a perusalof”-the__cross–zigisgiarrifination
portion of D.W.1 wou1d–lin.di’cat§e :the_ said Witness
has admittedlltiieij’ifao’t.i:_:””tl1’at the property bearing
Sy.No.éi/ by Sri M. Ramesh from one
.a_11dv thereafter he had formed layout.
” also admitted with regard to the
distaiicelbévtiwéaéh Sy.Nos. 4/1 and 4/2 being about 100
lprntis fronreach other. If the docurrientary evidence in
._ “«ti:eVba_ckground of the said oral evidence is kept in View
also considering the fact that after purchase of the
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property. the plaintiff had also secured the change of
khatha in his name and also obtained the plan for
construction and paid tax as per documents at Exhs.P4
to P12. the said evidence would indicate thatffthe
plaintiff after purchase of the property is in
and enjoyment of the same. Mere1y_.Vb.e’c–aus_e’ l._ti1e’l
defendants contended that theyzilhaye ;filed:l_a–..:
O.S.No.878/2004 and theV.a’fi_nall”c1_eeree cypirgfeeédiigsl
relating to the same are itself
cannot permit the de.fenda~nts– .lVto..c__’in”terfere with the
peaceful possession and..enj.oyInentl”olf property by
the plaintiff.’ p _ c
12. ” Therefore; circumstance, where the
plaintiff has only established that a plot had been
lijiythe plaintiff but had also established that
isin and enjoyment of the same, the trial
V _ Court was jxistii’ied in granting injunction in favour of
if the plaintiff. Hence, inga suit for bare injunction filed
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by the plaintiff, the tria} Court in fact has appiied itseif
in an appropriate manner to consider the evi(je.1_i<:e
relating to the said aspect of the matter and %
the decree in favour of the appeliaigt. I1'1.~1'iif,7'.: the
said judgment does not caii foixj ir3:te:3;eu1*'e.1"ic.é"" .'
hands of this Court.
Accordingly, the ?.;.be1f1g=.:CieVo1d of merit
stands disposed ofwith-‘f1’0*ei’jde1*,as te’.ee’s.ts.
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