Sunkamma (Dead) By Lrs. vs S.Pushparaj (Dead) By Lrs.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2225 OF 2007

SUNKAMMA (D) by LRs. …Appellants

Versus

S. PUSHPARAJ (D) by LRs. ...Respondents

JUDGMENT

R. BANUMATHI, J.

This appeal arises out of the common judgment of the High Court

of Karnataka at Bangalore dated 24.08.2006 in and by which the High

Court allowed R.F.A. No.1100 of 2003 preferred by respondent No.1/

plaintiff thereby decreeing the suit for permanent injunction in respect of

site no.47 and dismissing R.F.A.No.1083 of 2003 preferred by

appellants/defendants in respect of site no.53.

2. Appellants/defendants were owners of land measuring 3 acres 30

guntas in Sy. No. 255 of Dodda Banasawadi Village, K.R. Puram Hobli,

Bangalore, South Taluk. Out of which, the defendants sold 39 guntas of Signature Not Verified Digitally signed by VINOD LAKHINA Date: 2017.12.15 land to Madhavan Pillai (PW2) under a registered sale deed dated 00:41:33 IST Reason: Page No.1 of 8 21.04.1975. After the purchase, Madhavan Pillai formed a layout plan

(Ex.P8) of site no.47, as per which the site no.47 is on the eastern side

of site no.53. The matter in dispute pertains to two sites namely site

no.47 and site no.53 in Sy. No.255 of Dodda Banaswadi Village which

are adjoining each other and forming part of 39 guntas of land. Plaintiff

had filed a suit for permanent injunction in O.S.No.424 of 1995

restraining the defendants from interfering with plaintiff's peaceful

possession of suit property - both sites no.47 and 53 and the suit was

partly decreed by the trial court by judgment dated 12.06.2003

restraining the appellants/defendants from interfering with plaintiff's

peaceful possession and enjoyment of site no.53. So far as site no.47,

the trial court dismissed the suit. Being aggrieved by the judgment and

decree of the trial court, the plaintiff filed R.F.A. No.1100 of 2003

challenging the dismissal of suit in regard to site no.47. Similarly,

defendants filed R.F.A. No.1083 of 2003 challenging judgment and

decree in respect of site no.53. By common judgment, the High Court

allowed the appeal filed by respondent/plaintiff in regard to site no.47

and dismissed the appeal filed by the defendants.

3. Case of respondent/plaintiff is that site no.53 was sold by

Madhavan Pillai (PW2) to plaintiff by way of a registered sale deed

Page No.2 of 8 dated 16.06.1975. In support of his claim of ownership and possession

in site no.53, plaintiff had produced judgment and decree of the earlier

suit in O. S. No.1756 of 1982 dated 26.08.1985 in his favour restraining

the defendants from interfering with his peaceful possession of the suit

property which was subsequently confirmed by the High Court in R.F.A.

No.86 of 1986 by judgment dated 21.02.1986. Based on the evidence of

respondent/plaintiff (PW1), Madhavan Pillai (PW2) and the decree in

O.S.No.1756 of 1982, the trial court held that the respondent/plaintiff is

the owner of the property in site no.53 and granted permanent

injunction. Even though defendants challenged the judgment in favour

of respondent/plaintiff with respect to site no.53, before the High Court, it

was stated before us that there is no serious dispute between the parties

with respect to site no.53.

4. Site No.47: So far as site no.47 is concerned, Plaintiff had

produced an agreement of sale dated 09.09.1986, by virtue of which

Madhavan Pillai (PW2) agreed to sell site no.47 to the plaintiff for a

consideration of Rs.48,000/- and the entire sale consideration of

Rs.48,000/- had been paid to Madhavan Pillai. But plaintiff stated that

due to ban of registration of revenue sites, Madhavan Pillai (PW2)

executed a registered general power of attorney dated 03.05.1988 in

Page No.3 of 8 favour of plaintiff and that pursuant to the general power of attorney,

plaintiff has been in possession and enjoyment of site no.47. As

plaintiff's case was not supported by a registered sale deed, the trial

court declined to accept the claim of plaintiff with respect to site no.47

5. In appeal, the High Court noted that the trial court failed to take

into consideration the testimony of Madhavan Pillai (PW2) wherein he

deposed to the effect that he agreed to sell site no.47 to plaintiff and that

he had executed a registered general power of attorney dated

03.05.1988. PW2-Madhavan Pillai had also stated that the sale deed

could not be executed as there was a ban of registration of revenue

sites. Madhavan Pillai stated that in 39 guntas of land which he had

purchased from the defendants, he formed a layout, 20 feet road was

proposed in between sites no.53 and 47. PW2 further stated that since

Bangalore Development Authority (BDA) formed the road in the western

portion of Sy. No.255, the road in between sites no.47 and 53 was given

up and the revised layout plan for 20 feet road was formed (Ex.P9).

Madhavan Pillai stated that respondent/plaintiff is in possession of sites

no.47 and 53. Based on the evidence of PWs 1 and 2 and the general

power of attorney (Ex.P7), the High Court held that the plaintiff is in

possession of site no.47 and granted permanent injunction in favour of

Page No.4 of 8 the plaintiff.

6. Though the appellants/defendants disputed the title and

possession of the plaintiff over site no.47, the defendants have merely

averred that the documents relied upon by the plaintiff that is agreement

of sale (09.09.1986) and general power of attorney (03.05.1988) are

forged and not acceptable. Nothing further has been elicited from PW2

to show that he had no right to sell site no.47 to the plaintiff. The

defendants went to the extent of denying the identity of Madhavan PIllai

(PW2). Be it noted, the plaintiff's suit O.S.No.424 of 1995 was only for

permanent injunction in which the plaintiff is only required to prove that

he is in lawful possession of the suit property. The High Court based

upon the general power of attorney and the evidence of PW2 held in

favour of plaintiff that he is in possession of site no.47. These findings of

fact cannot be said to be perverse warranting interference.

7. Contention of appellants/defendants is that site no.47 is not

covered under the sale deed in favour of Madhavan Pillai (21.04.1975).

Further contention of appellants is that merely on the basis of registered

power of attorney, title and ownership of immovable property (site no.47)

could not have been transferred to the plaintiff. We refrain from going

Page No.5 of 8 into the merits of this contention for two reasons. Firstly, since the

present suit and further appeal thereon emanates from the suit

pertaining to permanent injunction where the touchstone upon which the

suit has to be decided is "lawful possession" and not "ownership".

Secondly, appellants/defendants have filed separate suit in O.S.No.5327

of 1995 against Madhavan Pillai and the respondents, for a declaration

that appellants are the owners of 'B' Schedule property thereon (which

includes site no.47) and other reliefs. As seen from the additional

documents filed before us, the said suit has been dismissed on

17.12.2016 against which an appeal is said to have been filed and

pending. Therefore, we deem it appropriate, not to express any opinion

on the question of title and ownership of respondent/plaintiff on the basis

of registered general power of attorney.

8. The present appeal arises out of the suit filed by

plaintiff/respondent for permanent injunction and the courts below rightly

decided the same on the question of possession. Based on the general

power of attorney and the evidence of PWs 1 and 2, the High Court

rightly held that the plaintiff is in possession and we do not find any

reason warranting interference.

Page No.6 of 8

9. In the result, the appeal is dismissed. No costs.

…….…………...………J. [R. K. AGRAWAL]

…………….……………J. [R. BANUMATHI]

New Delhi;

December 14, 2017

Page No. 7 of 7

Page No.7 of 8 ITEM NO.1505 COURT NO.3 SECTION IV-A [FOR JUDGMENT]

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

CIVIL APPEAL NO(S). 2225/2007

SUNKAMMA (DEAD) BY LRS. APPELLANT(S)

VERSUS

S.PUSHPARAJ (DEAD) BY LRS. RESPONDENT(S)

Date : 14-12-2017 This appeal was called on for pronouncement of judgment today.

For parties: Mr. B. Vishbwanath Bhandarkar, Adv.

Mr. Karunakar Mahalik, Adv.

Mr. Priyang Nath Shukla, Adv.

Mr. V. N. Raghupathy, AOR

Mr. Shailesh Madiyal, AOR

Hon'ble Mrs. Justice R. Banumathi

pronounced the judgment of the Bench comprising

Hon'ble Mr. Justice R.K. Agrawal and Hon’ble

Mrs. Justice R. Banumathi.

The appeal is dismissed in terms of the

signed reportable judgment.

[VINOD LAKHINA] [TAPAN KUMAR CHAKRABORTY] AR-cum-PS BRANCH OFFICER

[SIGNED REPORTABLE JUDGMENT IS PLACED ON THE FILE]

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