- 1 - HC-KAR NC: 2025:KHC:38517 RFA No. 893 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA REGULAR FIRST APPEAL NO.893 OF 2024 (INJ) BETWEEN: MR. ALLAN SUNDER RAJ S/O LATE MAJOR T.A. SUNDER RAJ, AGED ABOUT 80 YEARS, RESIDING AT NO.14, MEG OFFICERS COLONY, JAI BHARATH NAGAR, BANASWADI MAIN ROAD, BENGALURU-560033. SENIOR CITIZEN BENEFIT NOT CLAIMED …APPELLANT (BY SRI TOMY SEBASTIAN, SENIOR COUNSEL FOR SMT. RENY SEBASTIAN, ADVOCATE) AND: MRS. MIRIAM MEERA KUMAR W/O COL. SEBASTIAN KUMAR (RETD) AGED ABOUT 59 YEARS, RESIDING AT NO.8/302, CARLESTON ROAD, COOKE TOWN, BENGALURU-560005. (REPRESENTED BY HER HUSBAND/GPA HOLDER COL. SEBASTIAN KUMAR (RTD)) …RESPONDENT (BY SRI M. ARUN PONAPPA, ADVOCATE FOR C/R) THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 14.02.2024 PASSED IN O.S.NO.6162/2017 ON THE FILE OF IX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE COUNTER CLAIM FOR MANDATORY INJUNCTION. Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:38517 RFA No. 893 of 2024 THIS APPEAL COMING ON FOR ORDER, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA ORAL JUDGMENT The present Regular First Appeal is preferred by the defendant assailing the judgment and decree dated 14.02.2024 in O.S No. 6162 of 2017, on the file of the IX Additional City Civil and Sessions Judge, Bengaluru, (hereinafter referred to as ‘the trial Court’ for short). By the impugned judgment and decree, the trial Court dismissed the counter claim filed by the defendant. 2. The plaintiff filed the suit seeking mandatory injunction to direct the defendant (her brother-in-law) to vacate schedule ‘B’ property (servant quarters/garage portion). The defendant Allan Sunder Raj resisted the claim and filed a counterclaim asserting ownership over ‘C’ schedule property, (there is construction) and sought mandatory injunction against the plaintiff. The trial Court vide the judgment and decree dated 05.04.2021 decreed - 3 - HC-KAR NC: 2025:KHC:38517 RFA No. 893 of 2024 the suit of the plaintiff with respect to schedule ‘B’ property. However, the counter claim was not dealt with. On appeal in RFA 658/2021 by the defendant, this Court remanded the matter to frame issues on counter claim and permit evidence. After remand, issues were framed and evidence were taken. The trial Court on 14.02.2024, dismissed the counter claim holding that (i) defendant had already relinquished his rights over the first floor and terrace in favour of Colonel Sebastian Kumar on 01.12.1982-settlement deed. (ii) Major T.A Sunder Raj had no title left in 2004, hence could not gift the terrace under Exhibit D5. (iii) Therefore, the defendant had no subsisting title over ‘C’ schedule property. Aggrieved by which, the defendant is before this Court in this appeal. 3. Learned senior counsel appearing for the appellant would urge the following grounds: i) It is contended that Exhibit D5, executed by Major T. A. Sunder Raj, father of the appellant/defendant specifically conveys the - 4 - HC-KAR NC: 2025:KHC:38517 RFA No. 893 of 2024 terrace rights with 2 rooms in favour of the appellant. ii) On the strength of this gift deed, the appellant is in lawful possession over ‘C’ schedule property. iii) Original acquisition of site No. 14 was measuring 11,025 square feet purchased under a registered sale deed dated 02.02.1967 by Major T. A. Sunder Raj from Madras Sappers Officers House Building Cooperative Society (‘Society’ for short). The father of the defendant/appellant gifted the entire first floor and terrace with 1 room to the appellant, thereby recognising his rights over the upper portion under Exhibit D2, a gift deed dated 25.07.1977. Further, his father settled the ground floor in favour of the appellant under Exhibit D3 dated 04.11.1982 and it is urged that although - 5 - HC-KAR NC: 2025:KHC:38517 RFA No. 893 of 2024 Exhibit D3 does not expressly reserve terrace rights, it also does not divest the Donor (Major Sunder Raj) of them. iv) It is submitted that the father of the appellant once again gifted the terrace with 2 rooms to the appellant under Exhibit D5-the gift deed dated 21.06.2004 thereby confirming his title to schedule ‘C’ property. v) Learned senior counsel stresses that the trial Court erred in ignoring the significance of Exhibit D5, which is the operative document conferring rights in schedule ‘C’ property. The omission of explicit reservation in Exhibit D3 does not, by itself, negate the donor’s ownership of terrace, which was later validly transferred through Exhibit D5. Therefore, the appellant is entitled to succeed in the counterclaim and to a decree of mandatory - 6 - HC-KAR NC: 2025:KHC:38517 RFA No. 893 of 2024 injunction directing the respondent to vacate schedule ‘C’ property. 4. Per contra, the learned counsel appearing for the respondent submits that the present litigation has traversed multiple rounds. Initially, the respondent (plaintiff before the trial Court) sought a mandatory injunction in respect of schedule ‘B’ property, which formed part of the larger ‘A’ schedule property belonging to the family. During the pendency of the suit, the appellant/defendant filed a counter claim, asserting ownership over schedule ‘C’ property, being a portion allegedly on the terrace where the respondent had erected a small temporary structure. The trial Court decreed the suit in favour of the respondent in so far as schedule ‘B’ property is concerned, while dismissing the counter claim of the appellant. The dismissal of the counter claim was challenged in appeal. In RFA No.658/2021 this Court confirmed the trial Court's decree relating to schedule ‘B’ property, thereby upholding the respondent's/plaintiff's - 7 - HC-KAR NC: 2025:KHC:38517 RFA No. 893 of 2024 ownership and right to mandatory injunction. However, as regards schedule ‘C’ property, the matter was remanded since the trial Court had recorded findings without framing specific issues. Directions were issued for framing proper issues and allowing parties to lead evidence. Pursuant to the remand the trial Court framed issues specifically regarding schedule ‘C’ property. Both sides led evidence, including cross-examination. After a full fledged trial, the Court dismissed the appellant's claim over schedule ‘C’ property, holding that he has failed to prove ownership or possession. It is argued that now the present appeal represents the fourth round of litigation between the same parties. The appellant continues to assert rights over schedule ‘C’ property despite two concurrent findings going against him. It is submitted that on schedule ‘B’ property the decree in favour of the respondent has attained finality and has been confirmed by this Court in the earlier RFA. On schedule ‘C’ property, it is the contention that the appellant failed to discharge the - 8 - HC-KAR NC: 2025:KHC:38517 RFA No. 893 of 2024 burden of proof regarding ownership or lawful possession. Exhibit D5 is void and conveys no title. By 2004, father of the appellant/defendant and Colonel Sebastian Kumar, husband of the plaintiff, had no subsisting rights in the terrace or the first floor, having already settled them on 01.12.1982 under Exhibit D4, and the donor who had parted with the ownership cannot reconvey the same property later. Even if Exhibit D2 gifted first floor plus terrace to the appellant, he himself divested those rights under Exhibit D4 settlement dated 01.12.1982 in favour of Colonel Sebastian. Once alienated, appellant could not claim them again. Exhibit D3 dealt with only the ground floor. The terrace in question was on the first floor, which had already been transferred under Exhibit D4- settlement deed dated 01.12.1982. In the absence of an explicit reservation does not create fresh ownership in favour of the father. The possession without title does not confer ownership. Oral arrangements do not override registered documents. The defendant admitted in cross-examination - 9 - HC-KAR NC: 2025:KHC:38517 RFA No. 893 of 2024 that he had transferred the first floor to Colonel Sebastian and had no written document reversing terrace rights. It is submitted that the trial Court rightly evaluated Exhibit D5 and found it invalid since the donor Major Sunder Raj had no title and the findings of the trial Court are based on clear admission and binding documents and there is no perversity in the order of the trial Court and does not warrant any interference. 5. Having heard the learned counsel for the parties, the point that arises for consideration is, whether the judgment and decree of the trial Court warrants any interference in the present facts and circumstances of this case? 6. The relationship between the parties is not in dispute. One Major T. A. Sunder Raj is the father of Allan Sunder Raj- defendant and Colonel Sebastian Kumar-the husband of the plaintiff. His wife is indicated as Miriam. Exhibit D1 is the sale deed dated 02.02.1967 under which - 10 - HC-KAR NC: 2025:KHC:38517 RFA No. 893 of 2024 Major T. A. Sunder Raj purchased site No. 14 measuring 11,025 square feet from the Society which is described as schedule ‘A ‘property. Exhibit D2 is the gift deed dated 25.07.1977, under this, Major T. A. Sunder Raj gifted the entire first floor with terrace rights and one room to his elder son Allan Sunder Raj (defendant/appellant) and thus Allan (defendant/appellant) becomes owner of the first floor plus terrace. Exhibit D3 is the settlement deed dated 4.11.1982 wherein T.A Sunder Raj settled the ground floor portion in favour of Allan (the defendant) and Allan now had both ground floor under Exhibit D3 and earlier first floor plus terrace (under Exhibit D2). It is now that under Exhibit D4-settlement deed dated 01.12.1982, Allan (defendant), at the instance of his father, settled/transferred the first floor with terrace rights in favour of his younger brother, Colonel Sebastian (husband of the plaintiff). Importantly, by the date of Exhibit D5 Allan divested of all rights in the first floor and terrace, vesting them in Colonel Sebastian. Another crucial - 11 - HC-KAR NC: 2025:KHC:38517 RFA No. 893 of 2024 document which is placed reliance by the defendant is Exhibit D5, the gift deed dated 21.06.2004, which is purported to be a gift by T.A Sunder Raj again in respect of the terrace floor with two rooms to Allan. What is crucial to be stated is that by 2004, Sunder Raj had already exhausted his rights i.e. first floor plus terrace was gifted on 25.07.1977 to Allan under Exhibit D2. Further Allan himself transferred to Colonel Sebastian (husband of the plaintiff) under Exhibit D4 dated 01.12.1982 and hence T.A. Sunder Raj had no subsisting title left in 2004 to re- gift the terrace and the title was fully divested. The appellant-DW1 in his cross-examination admitted that his father had not reserved any terrace rights in the earlier settlement and he himself had transferred the first floor in favour of his brother under Exhibit D4. Consequently, the gift deed dated 21.06.2004-Exhibit D5 executed in favour of the appellant was void and conveyed no title. The trial Court rightly held that the appellant had no subsisting right to schedule ‘C’ property. - 12 - HC-KAR NC: 2025:KHC:38517 RFA No. 893 of 2024 7. The findings of the trial Court are supported by documentary evidence at Exhibits D2 to D5 corroborated by the admission of DW1 in his cross-examination. The gift deed-Exhibit D5 on 21.06.2004 being void, the counter claim rightly fails and there is no perversity or illegality in the judgment and decree of the trial Court warranting any interference. The point framed for consideration is answered accordingly and this Court pass the following : ORDER (i) The Regular First Appeal is hereby dismissed. (ii) The judgment and decree of the trial Court stands confirmed. Sd/- _____________________ JUSTICE K.S. HEMALEKHA CKL List No.: 1 Sl No.: 22