%
' IN THE HIGH WURTOF KARNATAKA,
mm nus 'ms 31" may or mncn %
BEFORE
ma HON'Bl.E MR. & '
: 7 I
BETVEN:
1. N.Sai*oja_jm;n"a,'*w--. .
A9ed3t>¢Lrt%s%4% '
aw/0 IY'Y3s'r3pa _' --
23. Svumifiifig 5?' %
Indain,
Bangafom-22_. "
2. ..... ..
._ " 60 yérs,
% 3%'/_'cs= I;vS§d»3shiva Ready.
3. A p.A.a¢pan»;a may,
Agedamm: 41 years,
".-Nib Prabhakara Rfidy,
52"'S3;
%% Govardhan,
Aged about 39 vars,
S/o Lsadmhiva Raddy.
2 am 4 are r/at No.895, 4"' cm,
16"' Main, MICO Layout,
B'm II Sage,
Bangazore --- S60 0276. 1 % T 1
(Common in
(By sn Yoganarasimha, "
AND: A.
1. M/s.Gov§rdhanmeau»e,...[
AFirmofPa_rmmrs,VV....._jV. ' '
45/2, xndssaiaa suburb. A.
Yeshwai'3tha_pur, .T'un1kyr Read,
33"?'-"°'3' «'
2. M/s; unsted0xvW!..%:a. Pvt. Ltx!.,
, -- by its Managing Director,
46:2, Yesmeanthapur, Tumkur Row,
aangam - 550 022.
Toots (Pvt) m,
. ' by Em? Dirwtor,
4.6/2,.'(esmvanfl1apw, Tumleur Road,
- 566 022. RESPONDENTS35?. M/s. Gmmsdhanv lheatre.
A firm of Partners, 46/2,
Induwial Suburb, Yahwanthapur,
‘Turnkur Rom, Bangalore ~— 22
by its Manning Director.
kl/..
Lnarayana Raddy,
Aged about 63 years,
23/1, V Cross, I Main Road,
Yeshvvanthpur,
Bangalore — 22.
C.M.Krishna Raddy,
Aged about 58 yars,
S/o Redd?-_ _ --..
C. Mvaradaraja "
Aged about 65 yams,-1
Both are 1' H .
Tami!
'. Sn ..... .. 7
" 50 years,
A ' % {W/6 c.M.Monan Raddy,
. R.faEt..§’»:em”arwjaIi, No.55/A,
%% 13″”C§m3s, IVMain,
Msaliwwwam,
“‘ 3-
” Since mi by his U25.
Meera,
Aged abwt 52 years,
(3)
wlo Lm R.Samnal:h Kumar.
A»
(b) Dhanaiakshrtfi,
Aged about 30 years,
D10 Late R.Sampath Kumar.
Boa’: are residing at M02911,
1″ ‘A’ Main, Shixmahailép
Bangalore — 10. V
7. R.Kuppamma,
Aged about 32 years,
W/oLateG.Raja Raddy, %
No.49, III crom,c,~a;aupu:~am,
BangaIore–~21. * –
8. M/s.
r:e:tresé»1tésd1–Ihy_it~31′?«*.a_na”g§:1g,_l3irecbor,
546/2,’Yae;€!fnn{a:1tha;)u;, Tumiaxr Road,
Bangaiare ‘- ‘
9. M/s. Eariaofloy 1?::ois.{Pvt.) Ltd.,
5 by its Managing Ezirectm,
yj apur, Tumkur Road,
” — 560 022. RESPONDENTS
‘V Sr. Contact for
‘ _ 5.LJ%h, Adv.,, for R-1)
‘:3-aeiae,
gum R.s=.A.’gp_aga 1.3/5. 95 Riw. onder 41 Rule 1 of cm
against the judgment and cmee dazed 31.3.1999 passed in
* 1108189 by me V Add. City Civil Judge, Bangalare,
— cfismiming the suit for dactarafian and .
me
Efiappeaicomingonforhearirgtzhisclayfihecourt
delivered the foflcwing:-
V,
V-3’\
J
These two appeas filed by the plaintiffs am
against me judgment am decrees dated 31.o3.1%999kk
by the v Addi. City ma Judge, Bangalore, in
1109of89.
2. By the impugned
court has dismm-zed’ we sure: ésgj*o.s.§to.11ea[m9Tand
granzea ;:d9;19-39 for 1/8″‘ share with symbolic
.?..f that, me appeIIanm–p|am’fis have
% 4., mead the fad: in o.s.no. um/39 are as
% x erimnas planfiff, 1.5% may, med suit in
‘ VA .~.0i.S.No.11G8/89 for mandatory injunction and p<%ion
Vctaimingfizatheismeerduaveawnerofthesdtsdwedtse
L/
preperty. According tn him, sat sdzedule is a
portion of see No.1A, which has been aimted up hia1j;bjI,:t:fse
erstwhile C.I.T.B. and poesssion certificate .
on 31.08.1970 and Lease-cum-safe' "–7ai:=}a 'V
executed in his favour and he
enjoyment of sine No.1/A. It is , s;seeaeme kk
property being a port:i§Jaa.'1of_Asi£:e'V' "of super
structures and me and
5;. ex: the piaintiff, i.e.,
six emers purchfi the
p . 1% j'iar}d«e§_e eueepe and it memes in at same Sq.H:.
partnership firm by name M/s.Go\ardhan
_ 1" defendant and it mme into existence from
_ i9e.9a..19?i and dzereaflaez it took on lame the wjacmt sine
regmrea lame deed dated 25.05.1973.
2%..
5. 111eo:igindpiaI?nfiffw$orreof|iveparju{&s.of
the 1* defendant firm. Later on, the
mm others refired from the 1%
partnership was reconstituted on
defendant built the
piaintiff permitted the first of ms
site and thus, the 1*’ “if: possession
of the sat ecnee.-ee was built,
some up in the sat sctmule
property,’ go er things of the 1* defendant.
net out a poruen of the mining to me
they are in occupation of me suit
&
‘me 1″ defendant is in permissive possession of
‘ scmule property and has put up etmcmres in an
% cf time. me plainfiff is not a party m the connect or
any understanding betvmen the defendants intense. The
plaintiff is the absoiute owner of the suit scheduke propmy.
The 1” defandant has mzproved pmpeny,
8. Vacant space
is part of site No.1A has mad by “turd.
shoring bricks, on
mabariais. The plainatfis max works by
name Govarflhafi No.1 suddenly
turned injunction
9.’ has filed its written statement
firm: defendant is a nagmed’ firm fit-.u:aed’
1c};9.197:L22.%% As per the registered sale deed dam
& & iannag irv{Sy.Nos. 4511A and 4512A of mhwanmpur, Bangalore
Taiuk, bearing Munidpa No.46. He mad the property,
a favour of eight persons, namdy I.Sadmhiva Raddy,
‘1
I.Narayma Ready, N.Radhak3-ishna Ready, N.Nagaraj,
C.M.Krishna Reddy, cmvamamju Raddy, R.San§_9afi:fi_:’a’nd
Smt. Kuppamma, through regimred sale
2.5.1959 and 5.3.1971.
10. The said 8 to
Site No. 1A measuring East tn no
South 0+170’/2 and the work
no the plaintiff and contxibiji;ed.”éq§.;aE’£yv…”j’i99’f34ainfiff became
in §_.e., Site No.1A. merem, the
piaintiff mam dated 9.3.1971 agmmm
joinfiy. The agreement damd
9′.S..’19.7:”1._:vis.,’a::fi$gistered document and site mm has been
hesg;95oe:§u9y %aha possasm by an. The plaintiff is not in
“‘-..¢xc!t1siv§1~ possession of the site No.1A, mucmm the suit
r property. Since 25.5.1973 the 2″ defendant is in
and enjoyment of the site No.1A as twee and
super-smxrmrams, fiencing, and stone piiiars have been put up
by the 1” defendant.
10
11. As per the docummts dam-.1 2.5.1959, ..s.3f;19?_1,
27.7.1970 9 9.3.1971, eight persons including
in possmon of three hits of land beafing ” ‘V
9 46/2A. Out of eight
N.Radh|a-ishna Reddy and gm”
deed in favour of their’ _an{A3A hoiding
2/&e’=5ha1’e. .
12. seven others
‘U79 It came into mcmence an
1o.9.1972k97a.m1 on 13.9.1972. The
__of that he and six others had
of land and itwafs (rakes: on lease by the
been denied and it is mmaenaea, the mac
and me suit: scheduie property is also a part of the
‘ deed and the tease is for a paiod of % years mm an
optian fa’ renewal.
11
13. The 1″ defendant is in pomemion
of me $13; bearing Municipat I§gs.46{2 K V’
me suit schedule property.
14. In terms of 1?’ took up
I |. of .. .. in
the} leasehold jg .by an end of
ocmber 1924%% At present, the
averments in para 4 of
me am it is amended, the tease
Md Cinema Theatre and me mar
are”iit””e:~cclm’1ve fiion and enjoyment of the
1:; is aiso the plaintiff has lost his
he is not the absoaum owner of the suit
‘..=.ct1edt.-A:’:¢=1.f’:.propertw,’ and tha-efone, has prayed for dismissal cf
15. ‘medefendana2and3ha\~efi!edfim’rwfitms’3
1st*aternents contending that they are privace iirmmd eompanies
L/.
l& ,–
and they are not in occupation of any portion of
scheduie prwerty and they are in occupation c-fja
the basement area of Govardhan and 1m: L g
have prayed for dismessaa ome st§f;’.__
15. The Trial court
1. Does soie and
absolute of f’ schedule
the 1″ defendant
. ” iein pomiissivo possession M the schedule
3. “o«..4whether’~suit….scheduIe property is part of
~ ~ _ property missed in 1″ defendant and
the ‘1″…defendant is in possession of it as
‘ ” _’ §£_’$SOf?
4; the property as described in the
‘ H vipiaint schedme is in m<i~stence and
'='defendants2and3areinpossm1onoft:he
suit schedafie property as tenants of 1*'
defendant?
k% 5. Whether the 1*’ defendant has put up
sfiucizures on me suit schodum property
withmepmnissionofflzepiainflfl?
6. Whetherthesuithasbeen pmperiyvaiued
and court fee paid ‘:5 sufficient?
L/.
13
7. Whether piaintiff is entitied in a wcme cf____
mandatcry injunctian? W 2
3. Whether piaintiff is mpg: from c:aameng % % _
possession?
9. Whether piaintiffis enh’§j&d”t<3. L
the suit schedule T A. .1
10. Ta what other re'{i_ef_Vif pr%a éré1if§….i§.j’3 %
entitied no?
17. Issue No.1, 2, 5, 7
& 9 in mgnegam;e;%;asue’LjNe;&3,4,5 & 8 in the affirmafive and
1ssumq.1o”&.11k w pér fina! order and oonseqmuy, has
% k% ‘c::skaé:s% traasust paaantifl-‘.
by that, the agoenams have flied RFA .
5s3;99.L % %
” ” The learned counsei fm the appeliants cwantendm
” tiéxat the suit scheduie property is a porfion of site No.1A,
which has been aemea no me paasnarr, by the erstwhiie
14
C.I.T.B. and the plaintiff is are exclusive
schedule promrty and the 1″
possmsion of the suit scheduie ”
plainfiff is ent:tI’ ed for Hé
issues have been rramegs % 321% the bur:$eV§n is am
plated wrongiy. Farmer; is wrormv
construed and Funmr, he
benami provisions of Benami
Inviting my atwmon ho Ex.o.s,
he siAr’ice« iwsors have not become the
‘ V. used, stating that the lwrs are the
of any cmsequencm. It is therefore, he
the impugned judgment and decree cannot be
20.Asmnsttnis,the1earnedcomsaiforthe1’*
racspondentsubrnittedthatthermoondentflalisafirrnand
m 2&3mmmam.mamwbmuwm&
¢/
15
the plaintiff was one of the partners of the 1*’ 4_
Further, rm submmed that me 5
porfion of site mm which has _ L
by the erstmzhile C.I.T.B. Ha gamma * a
sale agreement has ‘of plaintiff.
Furtmr, he submnm produced any
titte deed, iE’x.P.1 pawn
certificate agreement. He also
%%exis:enee from 10.9.1972
and it and me siee was aim
prio§*-..:.~ that, as per Ex.D.3, the
% an agreement dated 9.3.1971 declaring
and own the site mm joinfly. He also
invimd” ‘on to the evidence of PW.1 and subsumed’
.’4 in his evidence has admma that site No.1lA was
jointiy. Further, he submilmd mat he withdraws are
T of benami. He aiso subnwru-ad’ that, by virtue of B<.D.3,
allmespersonshavebwomethejointawnes-sof§teNo.1A.
19
He also subn-am that, one Radhakrishwa
N.Nagaraj have executed a gift deed, in favour _
M.Geetha as per mam 04 am mjeWpia#nti£F~’~
mm tn the said gift me. ,;l’s£:.
plaintiff 5 mpped from daifirg
mvm: my atmnuon tome
that, in view’ of the cannot ciaim
firm to aiso subrnithad
that, “it is mm, aii the sews
Imsa,S’*A_a&~ sine No.1A and cm-efore, me
palaiwff the mcdusive cmner cf the suit
% k% he subnitted that Section 60 of
also mum in the way of the piantiff
daimirrgi He also swarmum that an the :w
% snagaahéve filed the stat for mam he summ
_ % 1′ plaintiff is mpped from damning pcmmmn and
the impugned jmgment and decree does not eat:
furirrha-term. Healsaplacedrfiiancacnthedwsioncf
L/.
1″?
the Hm’ble Supreme Court nepomea in AIR
573, no amend maze the plaintiff “
exctusive ownership to the suit e subrmtnea that equity and law, me law that the allotment aflctrmnt rm hm: made in because we plaintiff the that there can be no 0:
60 of the Easernemt Act. He also
tenant cannot deny the titie and the
owner can maintain the suit. He at-so
that the lease cum saie agreement provides that
r shat! not aiienahe the property and therefore,
agrmment centrary to this, cannot be of any
consequence. He, therefore, submimd that the impugned
judgment and decree cannot be sustained in law.
L/ee
18
22. I have carefuliy considaed the subrnwon$___rnade
by the learned counsei for the parties.
23. The point mat asises for my
whether the impugned judgmen’c””‘amj’_ 2
interfa-mce?
24. It is rdevant suit
injunction and possess .igzfl..__ . is the
property. According in
him, the wit’ ” is a portion of site No.1/A,
wnicgrsnas ‘ _% asmea% t£.$:him., by the asimhiie crra. He has
% produced Exhibits P1 to P7. In his
vA’;;!%:inflff has stated mat see Nc.1A wm aflotted
bo”‘h§m,».f erstwhile CITB and possmnfion cmfifimee wa
2139. no mm and he is the exciusive mama’ of the suit
maty, which is pat cf site No.1A. Ex.P.1 is the
R/A
26
have ceased ta be the partners from 23-2-1977.
xerox cepy of the lease deed dated 1255- K
Lsadashivareddy, I.Narayanz§keHdy; 3 -I ‘A
C.M.Krishnareddy, C.M.Vamdarejareedyfl=«
Rsampath, in faveur of the first1Eieife:1dantVenc'{:it:§
25. The first derekseant suit schedule
property is adjecejjti-tc “Municipai No.46
and Lsadashivareddy,
I.Naray;gr}gv C.M.Krishna Raddy,
N.Radhei<riefiné Raddy, Kuppamma
and 'fiougfit 5: eézeeiring site Ne.1/A and therefore,
the to the paasnurf and contributed the
in pursuance of that, the plainfifi has
_ accA;1:éredv."vt!':e.LA i.e., site No.2/A and thereafter, he has
"an agreement dated 9-8-1937: in favoer of
'I';!V\Vi'a'ra§ranarecidy, Nagaraj, C .M.Kn'shnareddy,
VT :9' 'Nkladhakzishnareddy, C.M.Varadaraja Reddy, Kuppamma and
V U Sampath deciaring his intention to enjoy and own the
V
2.!
property jointly and each of them have got a ;eha.re.
Thereafizer, two of them, nameiy
N.Nagaraj have executed a gift: deed, in
M.Gee’d1a, as per Ex.D.4 (originai
signed the gift deed as a
Lsadashiva Raddy, I.Narayana
Reddy, C.M.Varadaraja and Sampath have
executed a leasedeed, i:ri”‘Fa§’.euffefijtiieihfieeiétiafendant and its
partners, ieasing out the
proper§es…beann§¥.;::E:A:N§_’ and also the suit
scheduie_ the piaintiff cannot ciaim
that he is exeiiusive of the suit schedule property
v _ancF.’:Lij*ie ‘frem’ doing 50.
V if of the defendants two witnesses have
M V’ . and eight documents have been produced.
his eiuidence, D.W.1 has stated that site No.1/A was
1′ in fawur of Sadashiva Reddy and he has executed an
we original 0g Ls?i1.{(J’1 Li €>< «36
' » " 'agreement dated 9~8-1971, a per Ex.D-3/iand as per Ex.D.3,
D.
i./
5L3
has aise stated that property bearing No.46/2 and 11A beiong
to the to-cnwners and aii the ccmwners have contrib_uted.._:the
amount and the propertia have been leased in
defendant No.1 and defendant °’ ‘V
construction.
2?. Em)-1 is the ext’ta c—t…of ttregiister
shows that piaintiff i.e., others
nameiy I.Narayana and I.Raghava
Raddy have f.rom;;tHe: 23-2-1977.
Ex.D-2 is the constitution ef the
firm. H330 Lsadashiva Raddy,
I.Naraya’na .Reddy and I.Raghava Raddy
have vretiret:l””frc_:’m V1%:ii–1e ‘E’_isrm§»LV Ex.D-3 (original Ex.D.6) is the
dated “””§’–8-19?: executed by the plaintiff i.e.,
in faveur of I.Naray-ana Raddy,
V Raddy, N.Nagaraja, C.M.Krishnareddy,
4″=. ‘C.,M,Vata£}araja Raddy, Kuppamma and Sampafla dedaring his
a._é’z’ntes:tAi’e~n ea awn and enjoy the property i.e._. site No.1/A
L/at
deed as a consenfing witness. Thereafter, I.Sadashiv.e
Udarayana Raddy, M.Geetha, C.M.Knshne*~
C.M.Varadaraja Raddy, Kuppamrna””‘ and have.&*hh
executed a tease deed detect 25-5–41e9:*3_htTas
favour of the first defendant ewey 1’
‘are the joint owners. In the ‘firs: defendant
has put up the construction Now
the plaintiff ‘Vheilis of the suit
schedule ‘ a h ‘
2V9,’ ” contended by the {earned
counsel apgtneflz-zhntu, defendant No.1 cannot raise the
r .pIee._jof henarni, vfiewof the specific bar under section 4 of
fact remaire, the piaintiff, by his conduct has
Ehnzention to enjoy and own the propety joinfiy
thereafter, has signed me gift dead as a consenting
A and ewereafter, has executed the lease deed aiong
..w%th the others stating that they are the joint owners.
V Therefore, the plainfiff cannot contend, he is the exctusive
u./
needs to be moulded. He also submitted that the t31ai ‘Co.L:rt
has granted 1/8″‘ share with symboiic
1/7″‘ share with physica! possession and therefosfi, teiief’ ~
needs to be mouided.
32. As against thés, the learned coon$el’: for’;
rfipondent contended that the as
there is a renewal c|ause{j~« that teal Court
has rightiy granted 1/8’*v’A.s!*3.:a’_rje énoi..Lthéref;o%e*,’V”it does not can
for interference. i V’
‘IA coneidefed the submissions made
by the !earned’coon.§§e§.eFor.:t::se «parties.
_ 34, ‘it reieventto note, the trial Court has granted
‘ V’ ‘A1/8″‘ éhézdfe with syrntioiic possasion. There are eight sharers.
uha’$%e gifted their share in favour of their sister
M.{3″eetna’.’ Therefore, the tea! Court has granted 1/8″‘ share,
Therefore, it does not cat} for interference.
.’ Hovveizer, in so far as symboiic possession is concerned, it
29
needs to be modified as the lease period is ever and vacant
space is aiso avaiiable.
35. Therefore, the appeal is allowed in
judgment and decree passed by _:.-he ‘*
O.S.No.1109/89 stands modified gsanerag 1;’a%*e %
physicai powsion. etake steps, £n
accordance to
Sd/-3
Tudge