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. ‘