IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 05TH DAY OF JUNE 2009

BEFORE:

THE HON'BLE MR JUSTICE ANAND BYRAREDDY

REGULAR FIRST APPEAL No.1311/2002

BETWEEN:

1. Sri S. Fakruddin. s/o late Babaiah. aged about 42 years, Residing at Behind Ullasa Provision Stores. Manjunatha Nagar, R.T.Nagar, Bangalore-560 032.

2.Sri S.Bashu s/o late Babaiah. aged about 40 years, Residing at no.40. $5^{\text{th}}$ main road. Tata Silk Farm Bangalore-560 028.

3.Sri D.Haneef. s/o late Babaiah. aged about 48 years. Residing at Behind Ullasa Provision Stores. Manjunatha Nagar, R.T.Nagar. Bangalore-560 032.

APPELLANTS

(By Shri R.L.Patil, Advocate)

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AND:

Smt Chikka Ammavamma W/o late Meese Byrappa. Major in age, Residing at Guddadahalli village. Kasaba Hobli Bangalore North Taluk.

...RESPONDENT

(By Shri. R. Shyama, Advocate absent)

非非海岸部

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This Regular First Appeal is filed under Section 96 read with 41 of Code of Civil Procedure, 1908, against the Judgment and Decree dated 3.10.02 passed in O.S.No.6738/96 on the file of the XVII Additional City Civil Judge, Bangalore City (CCH-16), dismissing the suit for permanent injunction.

This Appeal coming on for hearing this day, the Court delivered the following:-

JUDGEMENT

Heard the Counsel for the appellants.

Ž. The Counsel for the respondent has remained absent. The Counsel for the respondent had remained absent on the earlier occasions as well when the matter was heard in part. Hence, the appeal is considered on merits on the basis of the submissions made by the Counsel for the appellants and upon examination of the record.

The facts of the case are: $\mathcal{A}$

The appellants are brothers and have jointly purchased site no.261 culled out of survey no.12/1 in the residential layout formed by the Air-Craft Employees House Building Co.operative Society Layout, (hereinafter referred to as 'the Co.operative Society' for brevity) Ashwathnagar, Bangalore. It is contended that the said Co-operative Society had complied with the acquisition proceedings and had obtained sanction of the layout plan from the competent authority, way back in the year $1973$ and had formed the layout including site no.261 and had allotted the same to one of its members. Shri Thammanna under a possession certificate dated 2.12.1981 and had further executed a registered sale deed dated 2.12.1981. The appellants herein had purchased the site from the said Thammanna under three different sale deeds dated 18.12.1995. The appellants have been put in possession and have been enjoying the same. It transpires that the defendant sought to interfere with their possession and sought to trespass over the suit property on 22.9.1996 and had damaged the compound wall put up by the plaintiffs and it was in that background that the suit was filed for injunction against the

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respondent - defendent. The defendant having entered appearance claimed that she was the owner of the land in survey no.39/1 and by recourse to the present suit, the plaintiffs were seeking to lay claim over the said survey number and that she however has no claim over site no.261 which may have been culled out of survey no. $12/1$ , nor does she claim any portion of the layout formed by the Co.operative Society. The defendant claimed that the documents produced by the appellants plaintiffs were fabricated documents. The plaintiffs thereafter had adduced evidence. The defendant - respondent herein, did not however choose to tender evidence. The trial Court now having dismissed the suit principally on the ground that the appellant has categorically admitted that he does not know the location of survey no.39/1 and the further circumstance that the katha certificate has been obtained only after 17 years and it was at the fag end of the proceedings and the contention of the Counsel for the respondent – defendant that the katha certificate has been obtained for the purposes of suit and are false have been readily accepted by the Court and documents.

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CONVENIENT INOTIACKE OF MARINAMA MIGH COUNT OF KARIVATAA HIGH CO

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therefore has proceeded to dismiss the suit. It is in this background that the present appeal is filed.

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4. The Counsel for the appellants would point out that insofar as the title to the subject property is concerned, it is a site in an authorised layout formed by the Co.operative Society, duly sanctioned by the competent authority and the vendor of the appellants having been granted katha certificate by the competent authority, the transfer of katha in favour of the appellants had been delayed for reasons beyond the control of the appellants. It is a co-incidence that the appellants could produce the katha certificate atleast during the pendency of the proceedings. This ought not to have been held against the appellants especially the document was issued by a competent authority since namely, the Bangalore Mahanagara Palike. The trial Court having disbelieved and suspected the veracity of the documents is unfair and unreasonable. The further circumstance that the appellants did not know the location of survey no.39/1 also could not have been held against them. The plaintiffs were not claiming right or interest in respect of the land in survey

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no.39/1. On the other hand, their claim was in respect of site $\frac{1}{2}$ no.261 formed part of erstwhile land in survey no. $12/1$ out of which the said site was culled out. This did not place the burden on the plaintiffs to establish the alleged land of the defendant in survey no.39/1 or regards its location. If the defendant chose to urge that the plaintiffs - appellants were in fact seeking to lay claim over her land, it was for the defendant to have tendered evidence in this regard. The admitted circumstance that the defendant has not entered the witness box or produced material evidence to establish her claim, precluded the trial Court from holding against the appellants and in dismissing the suit stating that the plaintiffs have not discharged the burden of establishing their case as to title to the property in a suit for bare injunction. The Counsel would place reliance on the judgement of the Supreme Court in VIDHYADHAR V. MANKIKRAO AND ANOTHER reported in AIR 1999 Supreme Court 1441 wherein the Supreme Court has held that where a party to the suit does not step into the witness box and state his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct

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OD HOH PARIABAN JO LANDA AMMIARA IT LANDA HARRICKA HOH

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as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbaksha Singh v. Gurdial Singh, AIR 1927 PC 230. The Counsel would submit that the decision would apply on all fours to the present case insofar as the appellants having discharged their burden of establishing their case and the defendant having failed to tender any evidence. The trial Court having dismissed the suit for the above reasons was wholly untenable and unreasonable.

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SAMARA SA KAPASKA KAPATAN KAPA

S. Given these circumstances and on an examination of the material that is produced as for instance the registered sale deeds in favour of the appellants, katha certificate, tax paid receipts and other related documents to establish that the appellants had in fact purchased the suit property from a bona fide vendor, who in turn had purchased it from the Co.operative Society which had developed the layout after obtaining sanction from the competent authority and on the other hand. the defendant having claimed that she having been in possession of agricultural land which was not the subject matter of the suit, it

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cannot be said that the plaintiffs had failed to establish their case and the trial Court having dismissed the suit for reasons stated are also not acceptable. Accordingly, the appeal is allowed. The judgement of the trial Court is set aside. The suit is allowed and decreed in favour of the appellants.

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COLORISATION TIER COURT OF KARRINGS THEN CO

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