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2019 Supreme(Kar) 1423
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
H.P. SANDESH, J.
Sri K.S. Basavanagowda, S/o Sri. S. Shivamurthappa – Appellant
Versus
Sri Prahlada Rao, S/o J.V. Raghavendra Rao – Respondent
R.F.A.No.785 of 2013 (DEC & INJ) C/W R.F.A.No.784 of 2013
Decided on : 20-12-2019
Subject
Property Law - Land Ownership
Act Referred
CIVIL PROCEDURE CODE : S.17
REGISTRATION ACT : S.28, S.31, S.32, S.7, S.30, S.17(1)(a), S.17(1)(b), S.17(1)(c), S.17(1)(d), S.17(1)(e), S.18(a), S.18(b), S.18(c), S.18(cc)
SPECIFIC RELIEF ACT : S.34
Headnote
Indian Registration Act - Section 28 - Register sale deed – Purchase adjacent property - Whether plaintiff proves that he is in lawful possession and enjoyment of suit schedule property as on the date of the suit - Whether the plaintiff proves the alleged obstruction and interference of the defendant in enjoying the suit schedule property by the plaintiff - What decree or order – Held, As already pointed out when document was registered at Hour Sub Registrar office which was not having any jurisdiction to register document and when there was bar Section Registration Act and document becomes honest Court below while considering said contention did not form its opinion with regard to validity document - Apart from that different yardstick is applied in coming to conclusion that plaintiffs have not examined vendor when defendants are also claiming right based on sale deed executed by said in favor Shankar and when question of law is involved with regard to validity of those documents and they have also not been examined their vendors before Court below there cannot be two yardsticks and trial Court has proceeded on wrong notion - No doubting suit for declaration seeking for relief of injunction plaintiffs have to prove their case on their own title and not on weakness of defendants there is no dispute with regard to settled principles of law laid down in judgments referred supra by defendants - Court below while considering contention plaintiffs in erroneously observed that palpated is not produced even though same is produced as said suits - Document is not registered document and on perusal of said document also it is evident that share is given in favor son and same is not proved by examining signatures in said document – Appeal dismissed
Advocate Appeared:
For the Appellant :SRI M.L. GOWDA, ADVOCATE
For the Respondent:SRI P. THULASIPATHI NAIDU, SRI S.R. MURALIDHAR, ADVOCATE
JUDGMENT :
R.F.A.No.784/2013 and R.F.A.No.785/2013 are filed challenging the judgment and decree dated 29.9.2012 passed in O.S.No.7102/2009 and O.S.No.7174/2009, respectively on the file of the XLI Additional City Civil Judge, Bangalore (CCHNo.42).
2. The parties are referred to as per their original rankings before the Court below to avoid the confusion and for the convenience of the Court.
3. The plaintiff in O.S.No.7102/2009 filed the suit for the relief of declaration and permanent injunction contending that the plaintiff is the absolute owner in possession and enjoyment of the suit schedule property, which is morefully described in the schedule. The property in Survey No.39 of Yelachenahalli Village, Uttarahalli Hobli, Bangalore South Taluk, is the ancestral property of the vendor of the plaintiff Sri A. Shankar, who has acquired the said property and other composite properties through registered sale deed dated 13.5.1973. During his life time, his father Dr. H. Anjanappa had alienated the property bearing Survey No.39 to the extent of 1 acre 30 guntas and in Survey No.40/1 to the extent of 1 acre 30 guntas, in total extent of 3 acres through registered sale deed dated 18.9.1987 which is registered as document No.2858/1987 in Book No.1 in the office of the Joint Sub-Registrar, Madras and he has been in continuous possession over the said property. The revenue documents clearly show that Sri Shankar was the absolute owner in possession and enjoyment over the said property. Subsequently, he formed sites in Survey No.39 and 40/1A situated at Yelachenahalli Village and sold the sites in favour of several purchasers. The plaintiff is also one of the purchasers of sites who purchased the schedule property from Sri Shankar.
4. The plaintiff has acquired the schedule property through a registered sale deed dated 20.1.2005. Subsequent to the purchasing of the property, khatha has been transferred in his name and he is exercising both possessory right of ownership and in enjoyment of the suit schedule property in the revenue records and he has been paying the taxes. Now the property comes within the jurisdiction of BBMP. Hence, he is paying the taxes in respect of the schedule property with Uttarahalli Sub-Division, BBMP.
5. The defendant No.1 claims to be owner of the schedule property and tried several times to interfere with the suit schedule property and the defendants are strangers to the suit schedule property. That on 18.10.2009, the defendants along with the supporters and rowdy elements came and tried to dispossess the plaintiff. Hence, the plaintiff filed a complaint before the jurisdictional police, but they failed to entertain the complaint and advised the plaintiff to approach the Civil Court since the dispute is civil in nature. Hence, without any alternative, the suit is filed for the relief of declaration and permanent injunction.
6. The defendant No.1 in pursuance of suit summons appeared through the counsel and filed the written statement contending that the averments made in the plaint are false, frivolous and vexatious. With malafide intention to make wrongful gain, the said suit is filed. The defendants contended that in fact the suit schedule property is a part of property in Survey No.39 of Yelachenahalli Village, Uttarahalli Hobli, Bangalore South Taluk, which belongs to one Dr. H. Anjanappa. It is his self-acquired property and he purchased the same vide registered sale deed dated 30.5.1973. The entire extent is 5 acres 5 guntas. The son of Dr. H. Anjanappa, one Sri A. Devaraj, out of 5 acres 5 guntas purchased 3 acres of land on the northern side in Survey No.39 from his father. The said sale deed was signed by the other two sons of Dr. H. Anjanappa, namely Sri A. Shivakumar and Sri A. Shankar. The said sale deed was registered on 18.9.1987 in the office of the Sub-Registrar, Madras, Tamil Nadu. The said Sri A. Devaraj, in turn sold a portion of his property including the schedule property in favour of Sri G. N.
