R. Ranjana vs N. Chidananda Reddy

Anand Byrareddy, J.

Heard the learned Counsel for the appellant and the learned Counsel for the respondent.

The appellant was the plaintiff before the trial court. The plaintiff had claimed that she was the absolute owner of a site bearing No. 1, khata No. 20, in Survey No. 104 of Cholanayakanahalli, Bangalore North Taluk, R.T. Nagar Post, Bengaluru - 560 032, more fully described in the suit schedule.

The plaintiff had claimed that she has purchased the suit property from one C. Nanjappa Reddy, Son of Gunda Reddy of Cholanayakanahalli, R.T. Nagar Post, Bengaluru, under a registered sale deed dated 12.8.1992. After the purchase of the property, which was a vacant site, the plaintiff had constructed a house and let out the same to a tenant.

It was claimed that the defendant was one of the sons of the vendor and he along with his brothers and sisters had filed a suit for partition and separate possession against Nanjappa Reddy, the vendor of the plaintiff in O.S. No. 3382/1984, on the file of the City Civil Judge, Bengaluru. In the said suit, a compromise petition was said to have been filed on 19.1.1987 and in terms of the compromise, the vendor of the plaintiff Nanjappa Reddy was allotted an extent of 20 guntas of land in land bearing survey No. 104, of Cholanayakanahalli, bounded on the east by road, west by drainage, north by land bearing Survey No. 103 and south by vacant land in survey No. 104 as his share amongst other properties allotted to him.

It was stated that out of 20 guntas of land in Survey No. 104 allotted to the said Nanjappa Reddy, Nanjappa Reddy had formed a residential layout and sold site No. 1, now site No. 20, in favour of the plaintiff and that she has been in possession of the same from inception and she had paid property taxes to the competent authority and she had filed an application before the Tahsildar seeking regularization of the construction. The defendant, who is said to be one of the sons of Nanjappa Reddy, being aware that his father had sold the property to the plaintiff, sought to interfere with the suit property by raising untenable claims. The defendant, though he was a party to the suit for partition in OS 3382/1984 and also party to the compromise petition, had raised claims over the suit property, which had fallen to his father''s share and from whom the plaintiff had purchased the same. It is in this background that the suit was filed seeking permanent injunction against the defendant from interfering with the suit property.

The defendant had entered appearance and had disputed that the suit property was part of Survey No. 104 and contended that the plaintiff was placing reliance on spurious documents and the plaintiffs averments were denied generally. It was further contended that insofar as the allotment at the partition in favour of Nanjappa Reddy was concerned, it was allotted to him during his life time and that he had no power to alienate the property and that the defendant in that regard had filed a suit in OS 2074/1982 for permanent injunction against Nanjappa Reddy, not to alienate the suit property and there was an order of injunction restraining Nanjappa Reddy from alienating the property and it was pending till the death of Nanjappa Reddy and ultimately it was dismissed as having become infructuous on the death of Nanjappa Reddy. It was therefore contended that the suit was not maintainable and the plaintiff had not derived any right under the socalled alienation in favour of her by Nanjappa Reddy. It is on those pleadings, that the court below had framed the following issues :

"1. Whether the plaintiff proves that she is in lawful possession of the suit schedule property as on the date of the suit?

Whether the plaintiff further proves that the defendant is interfering with the possession of the suit schedule property?

Whether the plaintiff is entitled for the relief of permanent injunction as prayed for?"

The court has answered the issue as to the plaintiffs lawful possession of the suit property in the negative and also as regards interference by the defendant with the possession of the suit property in the negative and dismissed the suit.

It is that which is under challenge in the present appeal.

The learned Counsel for the appellant has now filed an application seeking to produce the following additional documents:

"A compromise petition under Order XXIII Rule 3 of the Code of Civil Procedure, 1908, filed in OS 3382/1984, the order passed on the compromise petition, the rental agreement dated 1.11.2008 and six photographs of the suit property."

The learned counsel for the respondent has filed serious objections to the said application and had contended that the documents sought to be produced were always available even during the pendency of the suit and therefore, unless the appellant is in a position to demonstrate that the circumstances are as are required to be established in terms of Order 27(1)(aa) and (b) of the CPC, it is not permissible for the appellant to introduce such documents as additional documents at the stage of the appeal, especially in the light of adverse findings which the appellant has suffered before the trial court.

The reasoning of the court below in the suit may be summarized as follows:

"That the plaintiff was seeking to contend that the suit schedule property was formed in survey No. 104, of which 20 guntas was allotted to the vendor of the plaintiff and since the portion which was culled out as the suit schedule site is not evident from any material produced on record, the contention of the defendant that the identity of the suit property is in serious dispute and cannot be established in a suit for bare injunction, was to be accepted. And the court below has expressed that a heavy burden was on the plaintiff to show that the property purchased from the vendor was located within the boundaries as indicated by her, which are not supported by any independent document. And since the compromise decree under which her vendor had obtained a share allotted to him was not also before the court. Therefore, an adverse inference had to be to drawn against the plaintiff for not producing appropriate documents. It was also incidentally observed that the plaintiff, who was claiming that the suit property had been let out to a tenant, had not placed any material before the court to indicate that it was in the occupation of a tenant and even if it was in the occupation of a tenant, it was the inference with the tenant that was being complained of and not the plaintiff It was incumbent on the plaintiff to have examined the tenant and in the absence of which, it ought to be held that the plaintiff had not established any interference by the defendant nor the location and identity of the suit property. Since no revenue sketch was produced, as to whether any survey was taken out after the shares were allotted to the respective members of the family at the partition, which is referred to, it could not be readily accepted that the suit property was within the confines of the boundaries as defined. The court has also carried out the exercise of comparing the description of the property, as found in the deed of agreement of sale, the power of attorney executed in favour of the agent, the boundaries as mentioned in the sale deed and the boundaries as mentioned in the suit schedule property, to point out the infirmities and inconsistencies and has finally concluded that the plaintiff has miserably failed to establish her case and has dismissed the suit."

It is in this background that the matter was argued at length and vehemently. In order to satisfy itself, this court had appointed a court commissioner to visit the suit schedule property and to ascertain as to whether such property was indeed in the occupation of a tenant and was in existence at the place and location where it was indicated. The property as described in the suit schedule as well as in the documents gives the impression that it is agricultural land, which is undeveloped. However, from the photographs that were produced, it was found that the land was indeed built up completely and the suit property was a house property, which had clear boundaries. Though there was a serious argument canvassed that the suit property was the property of the defendant and that he had indicated the same by painting a slogan on the wall of the property, it was endowed to a trust through his father and it was part of a temple etc., and also reference was drawn to a slogan painted on the wall of the property, to indicate that the property belongs to Venkateshwara Vinayaka Trust. In this regard, the counsel for the appellant was compelled to seek permission of this court to remove the slogan, which was painted over. In any case, the commissioner having taken out inspection of the spot, has now filed his report today and serious objections are filed by the counsel for the respondent.

The Commissioner''s report would indicate that the suit property is self contained house property with a compound wall and the socalled temple, to which reference is made by the learned Counsel for the respondent is separated by a road away from the suit property and that there is a tenant in occupation of the property, who acknowledges that the plaintiff was the landlord.

The plaintiff had also brought the tenant to the court, along with her, on the previous occasion when the matter was taken up, to acknowledge that she is in possession of the property as a tenant under the plaintiff In this view of the matter, the documents that are produced along with the application under Order XLI Rule 27 of the CPC are found necessary for this court to place reliance upon and to deal with the reasoning of the court below.

The court below having taken a strict view of the manner in which the property was to be identified in order to address whether the plaintiff was in lawful possession of the suit property, if it was in doubt as to the location and identity of the property, Order XXVI Rule 9 of the CPC, was very much available, which is an enabling provision, for the trial court to appoint such a commissioner, as it desired to carry out an inspection and satisfy itself as to the location and existence of the property. To merely chastise the plaintiff for not having established the identity at the instance of the defendant, results in a miscarriage of justice and the plaintiff was placing reliance on a registered document of sale for claiming title to the property and the fault of the appellant in not having produced the compromise decree, under which her vendor had got the property, has now been cured by filing the same along with an application to produce additional documents. The interference by the defendant, though not established by examining the tenant, who was earlier in occupation of the suit property, would not be fatal to the case of the defendant. Since the very transaction is sought to be denied by the defendant and the defendant also seeking to lay claim to the suit property, is sufficient indication of his intention to interfere with the suit property. Therefore, for the reasons stated above and on the strength of the documents that are now produced as additional evidence, the appeal is allowed and the suit of the plaintiff is decreed, as prayed for.