JUDGMENT
Sri.M.J.Alva learned counsel for appellant has appeared in person.
2. This is an appeal from the Court of XLIII Additional City Civil and Sessions Judge, Bangalore.
3. For the sake of convenience, the parties are referred to as per their rankings before the trial Court.
4. The facts of the case are simply stated as under:-
It is stated that the Plaintiff is the absolute owner of the suit schedule properties bearing No.6, 7, 8 and 9 situated at Parappana Agrahara Village, Konappana Agrahara Panchayath, Begur Hobli, Bangalore South Taluk, having acquired title and
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possession by virtue of sale deeds dated 01.01.1996, 06.07.2001, 06.07.2001 and 04.01.2002 respectively. Pursuant to the purchase, the plaintiff got the khata transferred into her name. The suit schedule properties were originally forming the part of lands in Sy.Nos.65/1 and 68/4 of Parappana Agrahara Village, wherein one Muniyellappa had formed private layout. He had sold the schedule sites to the vendors of the plaintiff from whom the plaintiff purchased the same through the registered sale deeds and site No.6 was sold by Muniyellappa himself to the plaintiff.
It is stated that the plaintiff constructed four dwelling houses in the schedule properties by obtaining necessary permission from Village Panchayath and she obtained power connection from BESCOM Authority. She is residing in Item No.1 of the schedule property along with her family members since 1997 and the other 3 houses are let out to tenants. Plaintiff has been paying property tax to the Village Panchayath and electricity bills to the BESCOM Authority. The schedule property is also provided with telephone connection.
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The defendant is claiming herself to be owning certain lands in Parappana Agrahara Village. Defendant has no manner of right, title or interest over the suit schedule properties and tried to interfere with plaintiff's peaceful possession and enjoyment over the suit schedule properties hence, she sought the aid of the Court and filed the suit for permanent injunction. After the issue of the suit summons, the defendant appeared through her counsel and filed written statement and she denied the plaint averments. She contended that the suit for bare injunction without seeking the relief of declaration is bad in law.
She contended that one Yellappa was the owner in possession of 2 Acres 26 Guntas of land in Sy.No.65/1 and 68/4 of Parappana Agrahara Village. Yellappa had 2 sons Dodda Yellappa and Chikka Yellappa. Dodda Yellappa married to Ramakka and had no children. Chikka Yellappa had a son by name Muniyellappa and two daughters by name Chikka Yellamma and Dodda Yellamma. Upon the death of Yellappa, his
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sons Dodda Yellappa and Chikka Yellappa and the three children of Chikka Yellappa succeeded to the estate of Yellappa including 2 acres and 26 guntas of land in Sy.Nos.65/1 and 68/4 of Parappana Agrahara Village. The children of Chikka Yellappa partitioned 2 Acre 26 Guntas of land in Sy.Nos.65/1 and 68/4 of Parappana Agrahara village among themselves. In the family division, Chikka Yellamma and Dodda Yellamma were allotted around 1 Acre 31 Guntas of land including kharab land attached to the said survey numbers. The rest of the land in the said survey number was allotted to the share of Muniyellappa. It is said that Chikka Yellamma and Dodda Yellamma sold
27.32 Guntas of land in Sy.No.65/1 and 43.3 Guntas of land in Sy.No.68/4 in favor of defendant's vendor under a registered sale deed 21.10.2004 and also executed a rectification deed dated 23.12.2004 to the defendant. The defendant became the absolute owner and in possession to the extent of 1 acre 31 Guntas of land in said survey number and the Khata in respect of the said land made into her name and the revenue authorities
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collected the assessment due and payable in respect of the said suit land from her.
Defendant further contended that the plaintiff and six others raised a dispute before the Assistant Commissioner, Bangalore South Sub-division, Bangalore, seeking the cancellation of Mutation in respect of Sy.Nos.65/1 and 68/4 of Parappana Agrahara Village made in the name of the defendant on the ground that they are the purchasers of certain plots carved in the said land from Muniyellappa to whom the said land belonged. The appeal was dismissed with a finding that the land purchased by the defendant belonged to Chikka Yellamma and Dodda Yellamma and no fault could be found with the order passed by the Tahsildar while mutating the land in favor of the defendant. The Authority attached to the survey Department surveyed the lands and fixed the boundaries. Thus, it was contended that she is in possession of the suit properties. The entire land in Sy.Nos.65/1 and 68/4 of Parappana Agrahara Village continues to be a survey number land although it has lost the characteristics of an agricultural land. The records
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in relation to the land in question maintained not in the Panchayath Office, but in the jurisdictional revenue office. The land in question does not come under the administration of the local Panchayath, instead it comes under the administrations of the revenue office.
She also contended that the land in question has not been converted from agricultural to non-agricultural purpose. Consequently, the jurisdictional Panchayath office could not have issued khata certificate in respect of the suit schedule properties even if the claim made by plaintiff were to be proved in favor of plaintiff and it could not have accepted from the plaintiff the assessment if any due and payable in respect of the suit schedule properties. Among other grounds, she prayed for the dismissal of the suit.
On the basis of the aforesaid pleadings, the Trial Court framed the following issues:-
1. Whether plaintiff proves that she is in peaceful possession and enjoyment of suit property?
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2. Whether plaintiff proves that defendant is illegally interfering in her peaceful possession and enjoyment of suit property?
3. Whether plaintiff is entitled for the relief sought for?
4. What order or decree?
To substantiate their contention, plaintiff was examined herself as PW.1 and produced forty documents which were marked as Exs.P1 to P40. On behalf of defendant, the Power of Attorney of the defendant was got examined as DW-1 and produced nine documents which were marked as Exs.D1 to D9. On the trial of the action, the suit came to be dismissed Hence, this Regular First Appeal is filed under Section 96 of CPC.
5. Sri.M.J.Alva, learned counsel for appellant submits that the Trial Court has erred both in facts and under law in dismissing the suit.
Next, he submitted that the suit was filed for the relief of permanent injunction and the plaintiff is in peaceful possession
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and enjoyment of the suit schedule properties as on the date of filing of the suit. She is residing in one of the items in the suit schedule property and has let out other three portions to different tenants. These facts are not disputed by the defendant. A further submission was made that plaintiff having proved her lawful possession and enjoyment of the suit schedule properties through documents like sale deeds, Khata Certificate, electricity bills and telephone bills and other documents. But the said documents have not been considered by the trial Court. Counsel submitted that plaintiff has proved the prima facie ownership and lawful possession over the suit schedule properties. However, the Trial Court erred in not considering the facts and hence, not justified in decreeing the suit. He also argued that the defendant did not enter into the witness box, on the contrary, the Power of Attorney Holder was examined on behalf of defendant. The Power of Attorney Holder cannot depose in the place of a Principal.
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Sri.M.J.Alva vehemently contended the Trial Court has seriously erred in applying Section 95 of the Karnataka Land Revenue Act.
Lastly, he submitted that viewed from any angle, the judgment and decree of the Trial Court is totally erroneous and un-sustainable in law. Accordingly, he submitted that the appeal may be allowed.
Learned counsel for appellant has relied upon the following decisions:-
1. 2011 (2) SCJ 622 - KALYAN SINGH CHOUHAN V/S. C.P.JOSHI.
2. 2021 (1) SCJ 646 - A.SUBRAMANIAN AND ANOTHER V/S. R.PANNERSELVAM.
3. (1985) 3 SUPREME COURT CASES 545 - OLGA TELLIS AND OTHERS V/S. BOMBAY MUNICIPAL
CORPORATION AND OTHERS.
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4. AIR 1999 SUPREME COURT 1441(1) - VIDHYADHAR V/S. MANKIKRAO AND
ANOTHER.
5. (2005) 2 SUPREME COURT CASES 217 - JANKI VASHDEO BHOJWANI AND ANOTHER V/S.
INDUSIND BANK LIMITED AND OTHERS.
6. 2013 (3) SCJ 876 - S.KESARI HANUMAN GOUD V/S. ANJUM JEHAN AND OTHERS.
7. 2018 (1) SCJ 524 - PRASADI DEVI V/S. NAGAR
PALIKA SAWAI MADHOPU (NOW NAGAR
PARISHAD).
8. ILR 2015 KAR 635 - SAJIDA BANU V/S.
HALEMA BANU AND OTHERS.
9. AIR 1995 SUPREME COURT 234 - STATE OF KARNATAKA AND OTHERS V/S. SHANKARA
TEXTILES MILLS LTD.
10. AIR 2015 KARNATAKA 139 - SMT.VIJAYALAKSHMI V/S SMT.UGAMA BAI
AND ANR.
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11. ILR 2005 KAR 60 - J.M.NARAYANA AND OTHERS V/S CORPORATION OF THE CITY OF
BANGALORE AND ORS.
Heard the contentions urged on behalf of appellant and perused the records with care.
The short point which would arises for consideration is-
"1. Whether the Trial Court justified in rejecting the prayer of permanent injunction?
2. Whether the Trial Court justified in relying upon Section 95 of the Karnataka Land Revenue Act?"
The detailed narration of facts would not require reiteration.
The suit giving rise to this appeal was brought by the plaintiff for the relief of permanent injunction. As could be seen from the nature of lis between the parties, the suit is one for bare injunction based on title and possession as on the date of the suit. The right to injunction is based on prima facie right.
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An injunction is a judicial remedy by which a person is ordered to refrain from doing or to do a particular act or thing. In the former case it is called a "restrict injunction " and the latter
"mandatory injunction". It is a remedy of an equitable nature and since equity acts in personam an injunction affecting land does not run with the land. An injunction is an order of the Court directing a party to the proceedings to do or refrain from doing a specified act.
It is the specific case of the plaintiff that she has purchased the suit schedule properties under different sale deeds and she is in lawful possession and enjoyment.
Plaintiff was examined as PW-1. She has deposed that she is in lawful possession and enjoyment of the suit property on the basis of Exs.P1 to P7. The defendant has no manner of right, title and interest in the suit property.
It is significant to note that on behalf of the defendant one V.Balakrishna claiming himself to be the Power of Attorney Holder gave evidence. He denied the entire case of the plaintiff.
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He has also deposed that the defendant is claiming independent right, title and ownership over the suit schedule properties. To prove prima facie ownership over the suit schedule properties plaintiff produced the sale deeds. Exs.P1 to P4 are the sale deeds dated 01.01.1996, 06.07.2001, 06.07.2001 and 04.01.2002. To prove lawful possession over the suit schedule properties the plaintiff has produced the electricity bills which are at Exs.P20 to 22, electricity receipts at Exs.P23 and P24 and the telephone bills at Exs.P25 and 26.
It is found from the records that plaintiff has purchased the properties under different sale deeds for valuable consideration. After the purchase of the property, all the documents are standing in the name of the plaintiff.
I should observe that the documentary evidence of ownership like a sale deed cannot be ignored. The documents produced by the plaintiff would show that she has sufficient interest to maintain an action. On the basis of material proof, it
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can be safely held that the plaintiff is in lawful possession of the suit properties as on the date of filing of the suit. It would be relevant to observe that in a suit for bare injunction, plaintiff is required to prove his/her lawful possession and enjoyment over the suit property as on the date of filing of the suit.
I am satisfied that there is sufficient material on record to hold the plaintiff is in peaceful possession and enjoyment of the suit schedule properties as on the date of filing of the suit.
In ANANTHULA SUDHAKAR VS. P. BUCHI REDDY (DEAD) BY LRs & ORS - AIR 2008 SC 2033 the Hon'ble Apex Court has held as under:-
"In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession."
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In the instant case also, plaintiff has produced sufficient material to establish that she is in possession of the property in question.
While arguing the matter, Sri.M.J.Alva, learned counsel for appellant strenuously urged that the Trial Court has erroneously applied Section 95 of the Karnataka Land Revenue Act, 1964 which was alien to the subject matter of the suit. I have given my anxious consideration to the said contention.
It is pivotal to note that the Trial Court declined the prayer of permanent injunction on the ground that private revenue layout has been formed without conversion order and hence, plaintiff has failed to prove that she is in possession of the suit schedule properties. In my considered opinion, the said finding is contrary to the pleadings and evidence on record. The title of the plaintiff in respect of the suit property has neither been questioned nor challenged by the defendant. According to the plaintiff the property in question comes within the jurisdiction of Corporation limits.
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It is significant to note that this Court in J.M. NARAYANA
AND OTHERS VS CORPORATION OF THE CITY OF
BANGALORE, BY ITS COMMISSIONER OFFICE, BANGALORE
AND OTHERS reported in ILR 2005 KARNATAKA 60 in extenso dealt with the application of the Karnataka Land Revenue Act to the lands which are included in the extended Corporation limits and has held as under:-
"It is not disputed that the suit property stands included within the Corporation limits in terms of a notification issued much earlier to the filing of the suit. As a result of such inclusion, the taxes applicable within the Corporation limits would by operation of law and in particular Section 4 Sub- Section 4 of the Municipal Corporation Act become applicable to the extended area also. Even assuming that the land in question was agricultural land before its inclusion in the Corporation limits, the same would not necessarily mean that it either continued to pay land revenue nor would such land be exempted from payment of property tax under the said Act.
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Section 110 of the Karnataka Municipal Corporation Act, 1976, exempts the payment of property tax qua only such lands as are registered to be agricultural lands in revenue records of Government and as are actually used for cultivation of crops.
Just because certain land included in the Corporation limits is registered or used for cultivation purposes would not imply that the said land continues to pay land revenue under the Land Revenue Act. On the contrary, Land Revenue Act would cease to be applicable no sooner the land is brought within the Corporation limits." In the present case also, the suit schedule properties are included in the extended limits of Corporation and the Karnataka Land Revenue Act would cease to be applicable to the suit schedule properties. Thus in my considered opinion, application of Section 95 of the Karnataka Land Revenue Act to the facts and circumstances of the present case is totally unsustainable in law. The points are answered accordingly.
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Counsel for appellant has cited a number of decisions but I do not think the law is in doubt. Each decision turns on its own facts. The present case is also tested in the light of the aforementioned decisions.
For the reasons which I have stated, I think that, in the result, the Trial Court reached a wrong conclusion and I see no justification in confirming the judgment and decree of the Trial Court.
The appeal is allowed. The judgment and decree dated 23.01.2014 passed by the Court of XLIII Additional City Civil and Sessions Judge, Bangalore is set aside.
The suit is decreed for permanent injunction restraining the defendant her husband, their men, relatives, agents, servant, workers or anybody acting under them from interfering with the plaintiffs peaceful possession and enjoyment of the suit schedule property in any manner.
The Registry concerned to draw up the decree accordingly.
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Parties to bear their own costs. In view of disposal of the main appeal, I.A.No.1/2014 does not survive for consideration and the same is disposed of.
Sd/-
JUDGE
PTJ/VMB