- 1 - HC-KAR NC: 2026:KHC:5237 RFA No. 1047 of 2005 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR FIRST APPEAL NO. 1047 OF 2005 (INJ) BETWEEN: SMT VISHALAKSHI D/O.S.KRISHNAPPAA GED ABOUT 45 YEARS, GRAND D/O.VENKATAMMA@ PILLAMMA, R/AT PROPERTY SY.NO.44/8, IN HOUSE PUT-UPTHEREIN, DUBASIPALYA, VALAGEREHALLI VILLAGE, KENGERI HOBLI, OFF MYSORE ROAD, R.V.COLLEGE POST, BANGALORE SOUTH TALUK BANGALORE - 560 057. …APPELLANT (BY SRI. TEJUS,ADVOCATE FOR SRI. R.B. SADASIVAPPA., ADVOCATE) AND: SMT. I A KASTURI W/O. I K AIYANNA AGED ABOUT 39 YEARS NO.33/37, 9TH CROSS IST MAIN ROAD, BAPUJINAGAR BANGALORE-560 026. …RESPONDENT (BY SRI. M J ALVA.,ADVOCATE FOR C/RESPONDENT) THIS RFA IS FILED U/S.96 O 41 R 1 OF CPC AGAINST THE JUDGMENT AND DECREE DT.29.6.05 PASSED IN O.S.NO.1912/01 ON THE FILE OF THE VII ADDL. CITY CIVIL JUDGE, BANGALORE (CCH- 19), DECREEING THE SUIT FOR PERMANENT INJUNCTION. Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:5237 RFA No. 1047 of 2005 THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL ORAL JUDGMENT This appeal is by the defendant aggrieved by the judgment and decree dated 29.06.2005 passed in O.S.No.1912/2001 on the file of VII Additional City Civil Judge, Bangalore (hereinafter referred to as 'the Trial Court'). 2. Subject matter of suit is property bearing House list No.40 with V.P.Khata No.44/8/45/1 together with a house thereon situated at Dubasipalya, Valagerehalli, Kengeri CMC Area, Kengeri, Bengaluru South Taluk measuring East to West 30Ft., and North to South 40Ft., and bounded on the : East by :Property No.41 West by :Property No.39 North by :30Ft., road and South by :property No.25. 3. The above suit is filed by the plaintiff/respondent herein for the relief of permanent injunction restraining the defendant/appellant herein from interfering with the peaceful possession and enjoyment of the suit schedule property. Contending inter-alia that the plaintiff/respondent is the - 3 - HC-KAR NC: 2026:KHC:5237 RFA No. 1047 of 2005 absolute owner in possession of the suit scheduled property having acquired the title and possession by virtue of absolute deed of sale dated 09.07.1998 and her name having been mutated in the revenue records and she being in undisturbed possession of the property ever since the purchase. That the suit schedule property consisted of a structure which was in a highly dilapidated condition, as such, she could not reside in the suit scheduled property. That when she was in the process of repairing and renovating the same on 12.03.2011 at about 04.00 p.m. defendant/appellant with others threatened the plaintiff/respondent and the workers not to proceed the work further. Plaintiff/respondent not being in position to resist the illegal and high handed act of the defendant/appellant, filed the above suit. 4. Written statement was filed by the defendant/appellant, while denying the case of the plaintiff/respondent it is specifically contended that there is no existence of suit schedule property. That the land in Sy.No.44/8, measuring 2 acres and 33 guntas belonged to grandmother of the defendant/appellant, namely Smt. - 4 - HC-KAR NC: 2026:KHC:5237 RFA No. 1047 of 2005 Venkatamma @ Smt. Pillamma, which she acquired through her husband Sri. D.P. Narayanappa, who in turn had acquired in terms of partition deed dated 14.08.1944. 4.1 That upon the demise of the husband of said Smt. Venkatamma, she continued possession and enjoyment of the same. She has built a house bearing Khata No.105/5 and paying the tax thereon. 4.2 The other land is Sy.No.45/1 belonged to one Smt.Venkatalakshmamma which has been acquired by the Bangalore Development Authority. The plaintiff/respondent deliberately clubbed both the Sy.Nos.44/8 and 45/1, and house list No.40 and Panchayath House List No.1258, though, no such sites existed. 4.3 That the description of property given by the plaintiff/respondent in the plaint is misleading. Claim of the plaintiff/respondent having acquired the suit property in terms of deed of sale dated 09.07.1998 is false as her vendors did not have any right over the land in Sy.No.44/8. - 5 - HC-KAR NC: 2026:KHC:5237 RFA No. 1047 of 2005 4.4 That the plaintiff/respondent not being in possession of the property is not entitled for the relief sought for. Hence sought for dismissal of the suit. 5. Based on the pleadings, the trial Court framed the following issues: ISSUES 1) Whether plaintiff proves that she is in possession of suit schedule property? 2) Whether plaintiff proves alleged obstruction? 3) Whether plaintiff is entitled for any relief? 4) What decree? What order? 6. Plaintiff examined herself and one additional witness as PW.1 and PW.2 and exhibited 15 documents marked as Ex.P1 to Ex.P15. Defendant examined himself and one witness as DW1 and DW2 and exhibited 10 documents marked Ex.D1 to Ex.D10. 7. The trial Court on appreciation of evidence answered Issue Nos.1, 2 and 3 in the affirmative and consequently decreed the suit as prayed for. Being aggrieved the present appeal is filed by the defendant/appellant. - 6 - HC-KAR NC: 2026:KHC:5237 RFA No. 1047 of 2005 8. Learned counsel for the defendant/appellant taking this Court through the records submitted; (a) that the trial Court has failed to appreciate the oral and documentary evidence produced by the parties, more particularly by the plaintiff/respondent. He refers to the contents of deed of sale dated 09.07.1998 produced at Ex.P1 under which the plaintiff claims her right over the suit scheduled property to submit that there is no reference in the deed of sale as to the manner in which the vendors of the plaintiff/respondent acquired the suit property. (b). Referring to Ex.P10 the deed of sale dated 01.12.1988 under which the vendors of the plaintiff/respondent claim to have purchased the property, he further points out that though the said sale deed refers to both Sy.No.45/1 measuring 3 acres 29 guntas and Sy.No.44/8 measuring 2 acres and 33 guntas, the said document refers to two antecedent title deeds which are deed of sale dated 09.06.1960 produced as per Ex.P11 and deed of gift dated 10.07.1980 produced at Ex.P14. - 7 - HC-KAR NC: 2026:KHC:5237 RFA No. 1047 of 2005 (c). Referring to Ex.P14 deed of gift dated 10.07.1980, he submits that the said document also refers to a deed of sale dated 09.06.1960 which is Ex.P11. Ex.P11 is a deed of sale dated 09.06.1960, according to him pertains to only land in Sy.No.45/1 and not in respect of Sy.No.44/8. Thus, he submits that since the plaintiff/respondent has not produced any legally acceptable material evidence to justify her claim over land in Sy.No.44/8, the trial Court erred in accepting the case of the plaintiff/respondent of she being the owner of the suit property which included land in Sy.No.44/8. (d). He also refers to the deposition of PW2- who is the vendor of the plaintiff/respondent, wherein at unnumbered paragraph Nos.1 and 2 of the deposition recorded on 15.02.2005, the said witness has admitted that land in Sy.No.44/8 and Sy.No.45/1 being different properties and he having sold said site to the plaintiff/respondent only in Sy.No.45/1. He also refers to a report of the Commissioner produced at Ex.D9 and Ex.D9A which was apparently prepared at the instance of the defendant in a writ proceedings in W.P.No.2260/93 and submits that the area earmarked referring - 8 - HC-KAR NC: 2026:KHC:5237 RFA No. 1047 of 2005 to Sy.No.44/8 clearly depict defendant/appellant being in possession of the said area. Thus he submits in the absence of any acceptable material evidence the trial Court ought not to have decreed the suit for injunction. (e). He relies upon the following judgments in support of his contentions: 1. Sanjay Kumar Singh Vs. State of Jharkhand reported in (2022) 7 SCC 247. 2. Ramchandra Sakharam Mahajan Vs. Damodar Trimbak Tanksale (Dead) and others reported in (2007) 6 SCC 737. 3. Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by Lrs. and Others reported in (2008) 4 SCC 594. 4. Commissioner, Bangalore Development Authority and another Vs. Brijesh Reddy and Another reported in (2013) 3 SCC 66. 5. Market Committee, Hodal Vs. Sukhdevi and others reported in (2016) 1 SCC 290. 6. Smt. Susheelamma and Another Vs. B.M. Kariappa reported in 2023 (2) KLR 572. 7. Eureka Builders Vs. Gulabchand reported in (2018) 8 SCC 67. - 9 - HC-KAR NC: 2026:KHC:5237 RFA No. 1047 of 2005 9. In response, Sri. M.J. Alva, learned counsel for the plaintiff/respondent herein submits that the deed of sale at Ex.P1 produced by the plaintiff/respondent categorically reveal existence of both Site Nos.44/8 and 45/1 which is traceable to Ex.P10 under which the vendors of the plaintiff had purchased the land. He also furnishes a copy of the Gazette Notification dated 19.01.1994 to contend that even the land in Sy.No.44/8, measuring 2 acres and 33 guntas has been acquired. Therefore, the defendant/appellant cannot have better claim over the plaintiff/respondent. He refers to certain photographs and the purported sanction plan, which according to him indicate the possession of the plaintiff/respondent. Referring to paragraph No.13 of the written statement, he submits that the possession of the plaintiff/respondent has been admitted by the defendant/appellant. Thus the plaintiff/respondent has established right, title and possession of the property requiring no further probe. He submits that the defendant/appellant on the other hand who has setup a different case has not proved it in the manner known to law by entering into the witness box. Instead a power of attorney holder on behalf of the defendant/appellant has entered the witness box which - 10 - HC-KAR NC: 2026:KHC:5237 RFA No. 1047 of 2005 evidence cannot be countenanced. He relies upon the judgment of the Apex Court in the case of Vidhyadhar Vs. Manikrao and Another1. Referring to paragraph No.17 of the said judgment, he submits that the defendant/appellant having set up a case not entering the witness box, has no locus to canvas the case. He also refers to the judgment of the Hon'ble Apex Court in the case of Janaki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd., and others 2 in justification of his submission regarding power of attorney not being a competent witness to depose on behalf of the party. Thus he submits that trial Court has committed no error, warranting interference at the hands of this Court. Hence, seeks for dismissal of the appeal. 10. Heard and perused the records. 11. Following points arises for consideration: (i) Whether the plaintiff/respondent has proved her lawful possession over the suit property? 1 (1999) 3 SCC 573 2 (2005) 2 SCC 217 - 11 - HC-KAR NC: 2026:KHC:5237 RFA No. 1047 of 2005 (ii) Whether the trial Court is justified in decreeing the suit as sought for? 12. Plaintiff has approached the Court seeking relief of permanent injunction based on title and possession traceable to Ex.P1, Ex.P10, Ex.P11 and Ex.P14. 13. Ex.P11 is the deed of sale dated 09.06.1960 executed by one Sayed Abdul Sab in favour of one B. S. Gundappa. The description of the property given in the schedule to the said sale deed is the land in Sy.No.45/1 measuring 3 acres 29 guntas including 4 guntas of karab land. There is no reference to land in Sy.No.44/8 in the said deed of sale. 14. Ex.P14 is a deed of gift dated 10.07.1980 in terms of which said B. S. Gundappa (the purchaser in Ex.P11) has purportedly conveyed land bearing Sy.No.44/8 measuring 35 guntas and Sy.No.45/1 measuring 25 guntas in favour of his wife Smt. Venkatalakshmamma. Reference in the said document Ex.P14 is only to deed of sale dated 09.06.1960 and no other reference is made. 15. Ex.P10 is a deed of sale dated 01.12.1988 executed by wife and children of B. S. Gundappa (purchaser in Ex.P11) in - 12 - HC-KAR NC: 2026:KHC:5237 RFA No. 1047 of 2005 favour of one P. Venkata Narasimaiah and K. V. Narayana Murthy and P. Padmanabaiah, who are the vendors of the plaintiff. The description of the property in the said sale deed is with reference to land in Sy.No.45/1 measuring 3 acres 29 guntas and Sy.No.44/8 measuring 35 guntas totally measuring 4 acres and 24 guntas. Perusal of the said document would indicate that the antecedent title deeds referred to therein are only sale deed dated 09.06.1960 (Ex.P11) and deed of gift dated 10.07.1980 (Ex.P14). It is in furtherance to this deed of sale as per Ex.P10, the vendors and the plaintiff apparently have executed the deed of sale at Ex.P1 in favour of the plaintiff, conveying the suit schedule property, referring the same with the sites in Sy.No.44/8 and Sy.No.45/1. 16. From the perusal of the contents of these documents, it is clear that there is no reference to vendor or the vendor predecessor in title of the plaintiff/respondent having acquired any right, title or interest in respect of land in Sy.No.44/8 and no other legally acceptable material evidence has been brought on record by the plaintiff/respondent to justify her claim of she having acquired the suit property forming part of Sy.No.44/8. - 13 - HC-KAR NC: 2026:KHC:5237 RFA No. 1047 of 2005 17. Deposition of the vendor of the plaintiff recorded on 15.02.2005 reads as under: "Sale deed has been executed by myself and my brother to plaintiff jointly. It is false to suggest that my brother has not singed on sale deed i.e., Ex.P1. I had purchased along with my brother Sy. No.45/1 and 44/8 of Kolagere halli village jointly. Out of these survey numbers, site has been sold to plaintiff I do not know exact in which survey number the site of plaintiff comes. Now I again say the that the site sold to plaintiff comes in S.No.45/1 in Kolagerehalli village. In the recitals of the sale deeds mentioned in favour of plaintiff source of our title has been mentioned. It is false to suggest that there is no recital in Ex.P1 as to source of our title. Survey No.44/8 and Survey No.45/1 are different properties but both from forms one compact block and are having single boundary I have not handed over original sale deed executed by my vendor to plaintiff. It is false to suggest that both survey Nos. do not form one compact block. I purchased Sy.no.44/8 from Gundappa's wife Venkatalakshmamma and her sons Balakrishna. Sheshakumar and wife of deceased son Sathya Narayana and Gundappa's daughter Chandalekha. I do not know total extent of Sy. No. 44/8 was purchased by Gundappa. It is false to suggest that Sy.No.44/8 ad measures 2 acres 33 guntas and same belongs to B.P. Narayanappa and after his death the property is being enjoyed by his wife Pillamma. I have not purchased a portion of Sy.No.44/8 either from B.P. Narayanappa or from Pillamma. It is false to suggest that myself and my brother cannot convey title in favour of plaintiff in respect of any portion of Sy.No.44/8. In this case no layout plan has been produced witness volunteers that he has prepared a layout. Sy. No.45/1 has not been converted under land revenue act for non agricultural user. It is false to suggest that Sy. No.44/8 and Sy. No.45/1 are in possession of Pillamma who had build house and residing in the said property. It is false to suggest that I did not have any right on suit schedule property prior to execution of sale deed. It is false to suggest that I have executed bogus document in favour of plaintiff. It is false to suggest that in respect of suit schedule property the suits are pending in revenue courts, witness volunteers that the case has been dismissed. Till now I have not received any restoration notice. It is false to suggest that I have informed MGRI when he came to serve the notice that I do not reside in the said address falsely. It is true to suggest that in the sale deed I have given the different address. At the relevant time I was residing in the said address. I have given application in the - 14 - HC-KAR NC: 2026:KHC:5237 RFA No. 1047 of 2005 revenue court notifying the change of address. It is false to suggest that I am deposing falsely. It is false to suggest that just to have unjust enrichment I have executed false document in favour of plaintiff." 18. Thus, even the vendor of the plaintiff has clearly deposed that the site which was sold in favour of the plaintiff/respondent falls within and forms part of land in Sy.No.45/1 which is different and distinct from land in Sy.No.44/8. 19. Perusal of the impugned judgment and decree passed by the trial Court reveals that there is no whisper of these aspects of the matter by the trial Court with regard to the claim of the plaintiff/respondent of he having acquired the suit property forming part of Sy.No.44/8. Non appreciation of this material evidence by the trial Court, as rightly contented by the learned counsel for the defendant/appellant has led to the impugned judgment and decree. Thus, the point Nos.1 and 2 is answered accordingly. 20. As regards, the contention of the learned counsel for the plaintiff/respondent wherein referring to paragraph No.13 of the written statement he submitted that the defendant/appellant has admitted in his written statement - 15 - HC-KAR NC: 2026:KHC:5237 RFA No. 1047 of 2005 about the plaintiff/respondent being in possession sufficient enough to decree the suit. Contents of paragraph No.13 of the written statement, relied upon by the learned counsel for the plaintiff/respondent, reads as under: "13. That the Plaintiff's allegation in plaint Para-5 that on 12-3- 2001 at about 4-00 PM the defendant all of a sudden trespassed into the schedule property along with five of her men and threatened the plaintiff and her workers not to proceeds with any work and further threatened to damage the structures stating that her predecessors had sold the property for lesser sale price and that additional sale price should be paid to her are false and concocted version in order to make a suit and to get some orders from this Hon'ble Court. That the Plaintiff is the Trespasser and having entered into land of the defendant, trying to restrain which cannot be done. No injunction could be passed against the true owner. " 21. The last portion of the aforesaid paragraph, which is heavily relied upon by the learned counsel for the defendant/appellant and the said portion would only indicate that the plaintiff/respondent had apparently trespassed into the land of the defendant/appellant and nothing else. It is also necessary to note paragraph No.16 of the written statement, wherein the defendant/appellant has pleaded as under: "16. That it is clear from the above submissions, that the plaintiff has not got better title, not having possession and the allegations in that behalf are not genuine and hence, the plaintiff is put to strict proof of her claims. That it is also false to submit that the plaintiff as a poor lady, without any support and further allegations are also false that she cannot with-stand illegal and high handed acts on defendant. That at a time when plaintiff is - 16 - HC-KAR NC: 2026:KHC:5237 RFA No. 1047 of 2005 under illegal acts, it is not correct to allege such aspersions on the defendant. That the Plaintiff hatched plan to deceive the defendant by some illegal means. That the Plaintiff knowing fully well that defendant and original owner are residing in the land itself before entering into sale transaction and since having entered into some frivolous transaction now alleging on this innocent defendant is not correct." 22. Clearly as seen above, the defendant/appellant has denied the plaintiff being in possession of the suit property as claimed. Therefore, contention that the defendant/appellant has admitted the possession of the plaintiff/respondent cannot be countenanced. 23. It is settled position of law, that the plaintiff/respondent has to stand on his own strength and not on the weakness of the defendant/appellant. Even if the defendant/appellant had not entered into witness box and led any evidence, since the plaintiff has sought for relief of injunction based on title and possession traceable to the title deeds, which as noted above do not support her claim. Suit therefore fails, with the following: ORDER (i) Appeal is allowed. - 17 - HC-KAR NC: 2026:KHC:5237 RFA No. 1047 of 2005 (ii) Judgment and decree dated 29.06.2005 passed in O.S.No.1912/2001 on the file of VII Additional City Civil Judge, Bangalore is set aside. (iii) Notwithstanding the dismissal, the plaintiff/respondent is always at liberty to seek such relief as may be permissible and available under law. Sd/- (M.G.S. KAMAL) JUDGE RL List No.: 1 Sl No.: 15