IN THE HIGH COURT OF KARNATAKA AT BENGALURU BEFORE: THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY. REGULAR FIRST APPEAL No.1351 of 2009 CONNECTED WITH

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1 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09 th DAY OF MARCH 2015 BEFORE: THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY REGULAR FIRST APPEAL No.1351 of 2009 CONNECTED WITH REGULAR FIRST APPEAL No.46 OF 2010 IN R.F.A.No.1351/2009 BETWEEN: Ms. Mangala Gowri, Daughter of Boga Siddaiah, Major, residing in Premises No.44, 5 th Cross, Hanumanthanagar, Bangalore, Represented by power of Attorney Holder Mr. Sundare Gowda, Son of Boraiah, Aged 53 years, No.4, 5 th Cross, Hanumanthanagar, Bangalore APPELLANT (By Shri. Shyam Prasad B.M., Senior Advocate)

2 2 AND: 1. Vishwabharathi House Building Co-operative Society Limited, #35, Ratnavilas Road, Basavanagudi, Bangalore Represented by its President/ Executive Director Mr. B. Krishna Bhat, Son of Late B. Narayana Bhat. 2. Mr. H.Lankappa, Son of Late Hanumanthappa, No.46, New Colony, Avalahalli, GEF Post, Mysore Road, Bangalore , Presently residing at 2156, 3 rd B Main Road, RPC Layout, Hampe Nagar, Vijayanagar, Bangalore. 3. Mrs. Nanjamma, Wife of H. Lankappa, No.46, new Colony, Avalahalli, GEF Post Mysore Road, Bangalore , Presently residing at 2156, 3 rd B Main Road, RPC Layout, Hampe Nagar, Vijayanagar, Bangalore. 4. The State of Karnataka, Represented by its Secretary,

3 3 Home Department, Vidhana Soudha, Bangalore The Circle Inspector of Police, Girinagara Police Station, Girinagar, Bangalore. RESPONDENTS (By Shri. B.L.Sanjeev, Advocate for Respondent No.1; Shri. V.B.Shivakumar, Advocate for Respondent Nos. 2 and 3; Shri. I. Tharanatha Poojary, Government Pleader for Respondent Nos. 4 and 5;) Impleading Applicants: 1. Sachidanandanagar-Girinagar Residents Welfare Association, By its Secretary, No.365, 60 th Feet Road, Sachidanandanagar, Bangalore. 2. Smt. Shalini V Prabhu, Aged about 54 years, Wife of Sri Vivek R Prabhu, Residing at No.994, Service Road, RPC Layout, Vijayanagar, Bangalore Sri. H.K.Anantharam, Aged about 69 years, Son of Late Krishnaswamy Iyengar, Residing at No.52,

4 4 4 th Main Road, A.G s Layout, RMV Extension II, Bangalore Sri. K. Subramanya Bhat, Aged about 50 years, Son of Late Mahalinga Bhat K, Residing at No.5, 1 st Cross, Nagappa Reddy Layout, B. Narayanapura, Bangalore Smt. Anuradha Guptha, Wife of Mr. Subaraya Guptha, 130/A, 3 rd Cross, Road E, Ideal Home 2 nd Stage, Rajarajeshwarinagar, Bangalore K. Ananth Bhat, Son of Late C. Keshav Bhat, 167, 13 th Main, 5 th Sector, HSR Layout, Bangalore T. Vishwanatha Reddy, Son of Late T. Krishna Reddy, 301, Multishree Apartments, 29 th Main, 2 nd Stage, BTM Layout, Bangalore Ratnakar Hegde, Son of Gangadareshwar Hegde, 343, D Road,2 nd Cross, Ideal Home 2 nd Phase,

5 5 Rajarajeshwarinagar, Bangalore Dr. Nirmala Talkal, Wife of Amaresh Gaddi, 114, 1 st Main, 1 st Stage, 3 rd Phase, West of Chord Road, Manjunathnagar, Rajajinagar, Bangalore A. Shantharam, Son of Kapu Naik, 7/171, 2 nd Church Street, Kollegala Smt. Ranjitha Bhaskar, Wife of Ananth Bhaskar, 757, Malathi, 1 st Main, 2 nd Phase, 7 th Block, BSK 3 rd Stage, Bangalore Smt. Bhagya M Rao, Wife of Madhav Rao, 201, 5 th Cross, GKW Layout, Vijayanagar, Bangalore Smt. V.S.Radhika, Wife of Venkataramana Bhat, 65, 1 st Main, Happy Valley, Next to Poornapragna Layout, BSK 1 st Stage, Bangalore

6 6 14. S.M. Veerabhadrappa, Son of Murigappa, Manjunatha Nilaya, Opposite Sai Baba Mandira, 3 rd Cross, Basavanagudi, Shimoga. 15. Smt. S. Eshwari, Wife of Subarayanna, 91/A, Vyalikaval Society, Pipeline, W.O.C. Road, Kurubara Halli, Bangalore D. Ramanarayana Reddy, Son of Suryanarayana Reddy, 301, Multishree Apartments, 29 th Main, 2 nd Stage, BTM Layout, Bangalore Smt. Kamala R Bhat, Wife of SR.Bhat, 7, 2 nd Cross, Kumar Cot Layout, Kumarakrupa Layout, Madhavnagar, Bangalore Mr. Subraja Gupta, Son of Late M.S.R.Shetty, 130/A, 3 rd Cross, Road E, Ideal Home 2 nd Stage, Rajarajeshwarinagar, Bangalore Smt. Lakshmi.S,

7 7 Wife of Late Sampath Kumar, 801, 5 th Cross, 4 th Block, Koramangala, Bangalore Smt. Srividya, Wife of K. Venkatesh, 911, Sri Bharathi Teertha Prasad, 9 th Cross, SBM Colony, BSK 1 st Stage, Bangalore Smt. Champaka Lakshmamma.K, Wife of S. Krishnamachari, 576, 2 nd Main, Mico Layout, Bangalore Smt. N.K.Kamala, Wife of Late K.S.Viswanath, 691, 21 st Main, Padmanabanagar, Bangalore Smt. Parimala V Prasad, Wife of Venkatesh Prasad, 325, 6 th Cross, Canara Bank Layout, Nagarbhavi, Bangalore Smt. Bhagyalakshmamma, Wife of Bhaskarachar, 5/24, 2 nd Main, 3 rd Cross, Bytrayanapura, Mysore Road, Bangalore

8 8 25. R. Suresh, Son of K. Rachaiah, 51/B, 1 st Floor, 20 th Main, 1 st Cross, Vijayanagar, Bangalore Smt. Mamatha Rao, Wife of Nagabhushan Rao, 31, Nagendra Block, BSK 1 st Stage, Bangalore Smt. V. Sarojamma, Wife of Govindaraju, 28, 9 th Cross, N.R.Colony, Bangalore Nagraj G Acharya, Son of Late G Acharya, 5, 3 rd Cross, Nehru Nagar, Bangalore G. Prabu Shankar, Son of Gurunanjaya.M, 107, 2 nd Cross, Basaveshwara Layout, Behind BTS Depot, Vijayanagar, Bangalore H.N.Keshav Murthy, Son of HK. Narayana Murthy, 430, 6 th Main, 2 nd Stage, Rajajinagar, Malleshwaram west Post Office,

9 9 Bangalore Dr. Suma Prabhu Shnakar, Wife of Prabhu Shankar, 10, 32 Cross, 9 th Main, 4 th Block, Jayanagar, Bangalore Smt. Lalitha Satish, Wife of Satish, 76, 7 th Cross, Nerellu Lagere, Bangalore M. Amarnath, Son of M.M.Sundaresh, 20, 4 th Main, 5 th A Cross, Girinagar (1 st -phase), Bangalore K.M.Shankaraya, Son of Late Madegowda, 872, 5 th Main, Kempe Gowda Road, BHEL 2 nd Stage, Rajarajeshwarinagar, Bangalore Smt. Sharada, Wife of Devaraj, 850, BSK 1 st Stage, 1 st Block, Srinagar, Bangalore J.M.Paramashivan, Son of Murigappa, 106, 1 st Floor, 37/76, SVT Sriganda, 15 th Cross,

10 10 A.K.Layout, Annapoorneshwari Nagar, Bangalore Smt. Savitha Nagesh, Wife of Nagesh, 430, 6 th Main, 2 nd Stage, Rajajinagar, Malleshwaram West Post Office, Bangalore C.V. Seshadri, Son of C.N.Vedantachar, 64, 2 nd H Main Road, 11 th Block, Nagarbhavi, Bangalore R. Mahesh Kumar, Son of K. Rangaswamaya, 6/56, Shree Rangaswamy Nilaya, 1 st Main, Adarsha Nagar, 9 th Cross, Chamarajpet, Bangalore K. Damodar Naidu, Son of Late Naidu, 240/A, Anugraha, 1 st D Cross, 1 st Phase, Girinagar, Bangalore V.A.Narayana Swamy, Son of Late Appaiah Naidu, 472, 19 th Main Road, 4 th T Block, Jayanagar, Bangalore R. Harsichandrabhat, Son of Sitaram Bhat,

11 11 20/5, Uthare Gowda Street, Akkithimana Halli, Bangalore Smt. M.N.Roopa, Wife of Manjunatha Srivatsa, 981, 5 th Block, 66 th Cross, 18 th Main, Rajajinagar, Bangalore Chitaranjan Das, Son of V. Das, 1164, 18 th B Main Road, J.P.Nagar, 2 nd Phase, Bangalore M. Ramamurthy, Son of M. Ananthaiah, 115, Sethavinayaka Layout, Ullal Main Road, Jnanabharathi Post, Bangalore Smt. K. Nagaratnamma, Wife of H.S.Vishwanath, 72, Haridwara, R.K.Layout, 1 st Stage, 5 th Main, 7 th Cross, BSK 2 nd Stage, Bangalroe. 47. Subash Kamat, Son of S.C.Kamat, 919, Ashirvad, 5 th Cross, Vijaya Bank Colony, Bangalore. 48. Smt. K. Jayashree,

12 12 Wife of Sridhar Murthy, 1780, B Block, 7 th Main, Rajajingar, Bangalore N. Nagaraj, Son of N. Narayanamurthy, 46/1, 4 th Cross, Malleshwaram, Bangalore Smt. B. Kousalya, Wife of Late B. Srinivasa.C, 9 th Main, R.K.Layout, 2 nd Stage, Padmanabhanagar, Bangalore Smt. Shyla Raju, Wife of Cheluvaraju, 290/B, Ideal Home Township, 12 Cross, Rajarajeshwari Nagar, Bangalore Smt. Poornima Muniraj, Wife of Muniraj, 4, 2 nd Main, Dattatreyanagar, Hosakerehalli, BSK 3 rd Stage, Bangalore. 53. Smt. Vijayakumari, Wife of Krishna, 216, 10 th Cross, BEML Layout 3 rd Stage, 4 th Block, Basaveshwarnagar, Bangalore. 54. Smt. Shivamma, Wife of Nagaraj,

13 13 216, 10 th Cross, BEML Layout 3 rd Stage, 4 th Block, Basaveshwarnagar, Bangalore. 55. Smt. Thanaraj, Daughter of Ponnaswamy, 778, 17 th F, 3 rd Main, 6 th Cross, Koramangala, Bangalroe. 56. Harish, Son of A.P.Sundara, 778, 17 th F, 3 rd Main, 6 th Cross, Koramangala, Bangalore. 57. B. Cheluvayya, Son of Late Narswgowda, 5/A, 1 st Cross, 2 nd Main, Bytarayanapura, Mysore Road, Bangalore. 58. Smt. Sabitha Ranga, Wife of N.R.Rangaswamy, 63, Narayanapillai Street, Bangalore Dr. K. Somanath, Son of K. Iyer, 232, 14 th Cross, M.C.Layout, Vijayanagar, Bangalore Dr. K. Ramnath,

14 14 Son of K. Iyer, 232, 14 th Cross, M.C.Layout, Vijayanagar, Bangalore P. Dwarkanath, Son of Late R. Padmanabha Rao, 28/25, 4 th Cross, K.V.Layout, Jayanagar 4 th Block, Bangalore Padmanaba Rao M.N., Son of M.V.Nagaraj Rao, Lakeshore Homes Layout, Kasavana Halli Main Road, Bangalore Rama Rao M.K., Son of Krishna Murthy, 115/A1516, 4 th Cross, Ananthappa Layout, Doreswamy Palya, Banerghatta Layout, Bangalore Kumar.K, Son of B.V.Krishna Iyer, Prashanthanagar, Vijayanagar, Bangalore. 65. Smt. M. Davalashree, Wife of Nataraj, 156/802, 20 th Cross, Hulimavu, Banergatha Layout,

15 15 Bangalore Ramesh, Son of Narayanappa, 54, 6 th Main, 3 rd Cross, Srinivasanagar, BSK 1 st Stage, Bangalore C.R.Manjunath, Son of Ramaiah, Cheenya, Nagamangala Taluk, Mandya District. 68. Smt. Bharati.B, Wife of Dr. Sanjay Patil, 165, West of Chord Road, 2 nd Main, 11 th Cross, Rajajinagar, Bangalore. 69. H.S.Shivaram, Son of Srikantaiah, 1370, 2 nd Main, Krishna Murthy Puram, Mysore Smt. Vanajasatyanarayan, Wife of Satyanarayan, 605/39, Jain Temple Road, V.V.Puram, Bangalore Smt. S. Meenakshi, Wife of S.Sridharan, 39, F3, Navneeth Apartment, 7 th B Cross, NHCS Layout Plan II,

16 16 Govindaraja Nagar, Bangalore R.S. Ramachandran, Son of Subramaniam, 602, Maple, Godrej Woodsman Estate, Hebbal, Bangalore V. Ramachandran, Son of R. Venkataraman, 150, 6 th Block, Banashankari III Stage, 3 rd Phase, Bangalore Smt. V. Padvathamma, Wife of Late Jaganath, 21/D, 17 th A Cross, 7 th Main, Malleshwaram, Bangalore M.C.Ramesh, Son of Chiksidhegowda, 45/1, 15 th Main, Muneshwara Block, Bangalore H.S.Nagaraja, Son of Srinivasa Iyer, 55, 6 th Main, Gaurava Nagar, J.P.Nagar 7 th Phase, Bangalore C.N.Krishnaswamy, Son of Narayanaiah, 1, 8 th Main, Gaurava Nagar, J.P.Nagar 7 th Phase,

17 17 Bangalore R. Pushpa, Daughter of Ramakrishnaiah, 34, 18 th Cross, 2 nd Main, Jainagar, Mysore. 79. Ravi, Son of M. Gowda, 813, BHEL 2 nd Phase, Rajarajeshwarinagar, Bangalore Smt. Sakku Bai, Wife of K.S.Karinika, 1 st H Main, Girinagar, 2 nd Stage BSK, Bangalore S. Ramamurthy, Son of Late K.N.Shivarama Iyer, 12, 18 th Main, Malleshwaram, Bangalore Smt. Jaya S Rao, Wife of B.S.Rao, 959, 1 st E Main, Shubamangala Apartments, Girinagar (2 nd phase), Bangalore [all are majors] APPLICANTS

18 18 Shri. Puttige R Ramesh, Advocate for impleading Applicants 1, 5 to 82 Shri. Y.K.Narayana Sharma, Advocate for impleading Applicants 2 to 4 ***** This Regular First Appeal filed under Section 96 of the Code of Civil Procedure, 1908, against the order dated passed in O.S.No.834/1996 on the file of the V Additional City Civil and Sessions Judge, Bangalore, decreeing the suit for permanent injunction. IN R.F.A.No.46/2010 BETWEEN: 1. Sri. H. Lankappa, Son of Late Hanumanthappa, Aged about 74 years, Resident of No.46, New Colony, Avalahalli GEF Post, Mysore Road, Bangalore , Presently residing at No.2156/3B, Main Road, RPC Layout, Hampinagar, Vijayanagar, Bangalore Smt. Nanjamma, Wife of H. Lankappa, Aged about 68 years, Resident of No.46, New Colony, Avlahalli, GEF Post, Mysore Road,

19 19 Bangalore Presently residing at No.2156/3B, Main Road, RPC Layout, Hampinagar, Vijayanagar, Bangalore APPELLANTS (By Shri. V.B.Shivakumar, Advocate) AND: 1. Vishwabharathi House Building Co-operative Society Limited, No.35, Rathnavilas Road, Basavanagudi, Bangalore , By its Executive Director, Sri. B.Krishna Bhat, Son of Late B. Narayana Bhat. 2. The State of Karnataka, Represented by its Secretary, Home Department, Vidhana Soudha, Bangalore. 3. Smt. Mangala Gowri, Daughter of Boga Siddaiah, Major, resident of No.44, V Cross, Hanumanthanagar, Bangalore The Circle Inspector of Police, Girinagar Police Station, Girinagar,

20 20 Bangalore. RESPONDENTS (By Shri. B.L.Sanjeev, Advocate for Respondent No.1; Shri. I. Tharanath Poojary, Government Pleader for Respondent Nos. 2 and 4 Shri. B.M.Shyam Prasad, Senior Advocate for Respondent No.3) Impleading Applicants: 1. Sachidanandanagar-Girinagar, Residents Welfare Association, By its Secretary, No.365, 60 th Feet Road, Sachidanandanagar, Bangalroe. 2. Smt. Anuradha Guptha, Wife of Mr. Subaraya Guptha, 130/A, 3 rd Cross, Road E, Ideal Home 2 nd Stage, Rajarajeshwarinagar, Bangalore K. Ananth Bhat, Son of Late C. Keshav Bhat, 167, 13 th Main, 5 th Sector, HSR Layout, Bangalore T. Vishwanatha Reddy, Son of Late T. Krishna Reddy, 301, Multishree Apartments, 29 th Main, 2 nd Stage, BTM Layout,

21 21 Bangalore Ratnakar Hegde, Son of Gangadareshwar Hegde, 343, D Road,2 nd Cross, Ideal Home 2 nd Phase, Rajarajeshwarinagar, Bangalore Dr. Nirmala Talkal, Wife of Amaresh Gaddi, 114, 1 st Main, 1 st Stage, 3 rd Phase, West of Chord Road, Manjunathnagar, Rajajinagar, Bangalore A. Shantharam, Son of Kapu Naik, 7/171, 2 nd Church Street, Kollegala Smt. Ranjitha Bhaskar, Wife of Ananth Bhaskar, 757, Malathi, 1 st Main, 2 nd Phase, 7 th Block, BSK 3 rd Stage, Bangalore Smt. Bhagya M Rao, Wife of Madhav Rao, 201, 5 th Cross, GKW Layout, Vijayanagar, Bangalore Smt. V.S.Radhika,

22 22 Wife of Venkataramana Bhat, 65, 1 st Main, Happy Valley, Next to Poornapragna Layout, BSK 1 st Stage, Bangalore S.M. Veerabhadrappa, Son of Murigappa, Manjunatha Nilaya, Opposite Sai Baba Mandira, 3 rd Cross, Basavanagudi, Shimoga. 12. Smt. S. Eshwari, Wife of Subarayanna, 91/A, Vyalikaval Society, Pipeline, W.O.C. Road, Kurubara Halli, Bangalore D. Ramanarayana Reddy, Son of Suryanarayana Reddy, 301, Multishree Apartments, 29 th Main, 2 nd Stage, BTM Layout, Bangalore Smt. Kamala R Bhat, Wife of SR.Bhat, 7, 2 nd Cross, Kumar Cot Layout, Kumarakrupa Layout, Madhavnagar, Bangalore Mr. Subraja Gupta, Son of Late M.S.R.Shetty,

23 23 130/A, 3 rd Cross, Road E, Ideal Home 2 nd Stage, Rajarajeshwarinagar, Bangalore Smt. Lakshmi.S, Wife of Late Sampath Kumar, 801, 5 th Cross, 4 th Block, Koramangala, Bangalore Smt. Srividya, Wife of K. Venkatesh, 911, Sri Bharathi Teertha Prasad, 9 th Cross, SBM Colony, BSK 1 st Stage, Bangalore Smt. Champaka Lakshmamma.K, Wife of S. Krishnamachari, 576, 2 nd Main, Mico Layout, Bangalore Smt. N.K.Kamala, Wife of Late K.S.Viswanath, 691, 21 st Main, Padmanabanagar, Bangalore Smt. Parimala V Prasad, Wife of Venkatesh Prasad, 325, 6 th Cross, Canara Bank Layout, Nagarbhavi, Bangalore

24 Smt. Bhagyalakshmamma, Wife of Bhaskarachar, 5/24, 2 nd Main, 3 rd Cross, Bytrayanapura, Mysore Road, Bangalore R. Suresh, Son of K. Rachaiah, 51/B, 1 st Floor, 20 th Main, 1 st Cross, Vijayanagar, Bangalore Smt. Mamatha Rao, Wife of Nagabhushan Rao, 31, Nagendra Block, BSK 1 st Stage, Bangalore Smt. V. Sarojamma, Wife of Govindaraju, 28, 9 th Cross, N.R.Colony, Bangalore Nagraj G Acharya, Son of Late G Acharya, 5, 3 rd Cross, Nehru Nagar, Bangalore G. Prabu Shankar, Son of Gurunanjaya.M, 107, 2 nd Cross, Basaveshwara Layout, Behind BTS Depot, Vijayanagar, Bangalore

25 H.N.Keshav Murthy, Son of HK. Narayana Murthy, 430, 6 th Main, 2 nd Stage, Rajajinagar, Malleshwaram west Post Office, Bangalore Dr. Suma Prabhu Shnakar, Wife of Prabhu Shankar, 10, 32 Cross, 9 th Main, 4 th Block, Jayanagar, Bangalore Smt. Lalitha Satish, Wife of Satish, 76, 7 th Cross, Nerellu Lagere, Bangalore M. Amarnath, Son of M.M.Sundaresh, 20, 4 th Main, 5 th A Cross, Girinagar (1 st -phase), Bangalore K.M.Shankaraya, Son of Late Madegowda, 872, 5 th Main, Kempe Gowda Road, BHEL 2 nd Stage, Rajarajeshwarinagar, Bangalore Smt. Sharada, Wife of Devaraj, 850, BSK 1 st Stage, 1 st Block, Srinagar,

26 26 Bangalore J.M.Paramashivan, Son of Murigappa, 106, 1 st Floor, 37/76, SVT Sriganda, 15 th Cross, A.K.Layout, Annapoorneshwari Nagar, Bangalore Smt. Savitha Nagesh, Wife of Nagesh, 430, 6 th Main, 2 nd Stage, Rajajinagar, Malleshwaram West Post Office, Bangalore C.V. Seshadri, Son of C.N.Vedantachar, 64, 2 nd H Main Road, 11 th Block, Nagarbhavi, Bangalore R. Mahesh Kumar, Son of K. Rangaswamaya, 6/56, Shree Rangaswamy Nilaya, 1 st Main, Adarsha Nagar, 9 th Cross, Chamarajpet, Bangalore K. Damodar Naidu, Son of Late Naidu, 240/A, Anugraha, 1 st D Cross, 1 st Phase, Girinagar, Bangalore V.A.Narayana Swamy, Son of Late Appaiah Naidu,

27 27 472, 19 th Main Road, 4 th T Block, Jayanagar, Bangalore R. Harsichandrabhat, Son of Sitaram Bhat, 20/5, Uthare Gowda Street, Akkithimana Halli, Bangalore Smt. M.N.Roopa, Wife of Manjunatha Srivatsa, 981, 5 th Block, 66 th Cross, 18 th Main, Rajajinagar, Bangalore Chitaranjan Das, Son of V. Das, 1164, 18 th B Main Road, J.P.Nagar, 2 nd Phase, Bangalore M. Ramamurthy, Son of M. Ananthaiah, 115, Sethavinayaka Layout, Ullal Main Road, Jnanabharathi Post, Bangalore Smt. K. Nagaratnamma, Wife of H.S.Vishwanath, 72, Haridwara, R.K.Layout, 1 st Stage, 5 th Main, 7 th Cross, BSK 2 nd Stage, Bangalroe. 44. Subash Kamat,

28 28 Son of S.C.Kamat, 919, Ashirvad, 5 th Cross, Vijaya Bank Colony, Bangalore. 45. Smt. K. Jayashree, Wife of Sridhar Murthy, 1780, B Block, 7 th Main, Rajajingar, Bangalore N. Nagaraj, Son of N. Narayanamurthy, 46/1, 4 th Cross, Malleshwaram, Bangalore Smt. B. Kousalya, Wife of Late B. Srinivasa.C, 9 th Main, R.K.Layout, 2 nd Stage, Padmanabhanagar, Bangalore Smt. Shyla Raju, Wife of Cheluvaraju, 290/B, Ideal Home Township, 12 Cross, Rajarajeshwari Nagar, Bangalore Smt. Poornima Muniraj, Wife of Muniraj, 4, 2 nd Main, Dattatreyanagar, Hosakerehalli, BSK 3 rd Stage, Bangalore. 50. Smt. Vijayakumari, Wife of Krishna, 216,

29 29 10 th Cross, BEML Layout 3 rd Stage, 4 th Block, Basaveshwarnagar, Bangalore. 51. Smt. Shivamma, Wife of Nagaraj, 216, 10 th Cross, BEML Layout 3 rd Stage, 4 th Block, Basaveshwarnagar, Bangalore. 52. Smt. Thanaraj, Daughter of Ponnaswamy, 778, 17 th F, 3 rd Main, 6 th Cross, Koramangala, Bangalroe. 53. Harish, Son of A.P.Sundara, 778, 17 th F, 3 rd Main, 6 th Cross, Koramangala, Bangalore. 54. B. Cheluvayya, Son of Late Narswgowda, 5/A, 1 st Cross, 2 nd Main, Bytarayanapura, Mysore Road, Bangalore. 55. Smt. Sabitha Ranga, Wife of N.R.Rangaswamy, 63, Narayanapillai Street, Bangalore Dr. K. Somanath,

30 30 Son of K. Iyer, 232, 14 th Cross, M.C.Layout, Vijayanagar, Bangalore Dr. K. Ramnath, Son of K. Iyer, 232, 14 th Cross, M.C.Layout, Vijayanagar, Bangalore P. Dwarkanath, Son of Late R. Padmanabha Rao, 28/25, 4 th Cross, K.V.Layout, Jayanagar 4 th Block, Bangalore Padmanaba Rao M.N., Son of M.V.Nagaraj Rao, Lakeshore Homes Layout, Kasavana Halli Main Road, Bangalore Rama Rao M.K., Son of Krishna Murthy, 115/A1516, 4 th Cross, Ananthappa Layout, Doreswamy Palya, Banerghatta Layout, Bangalore Kumar.K, Son of B.V.Krishna Iyer, Prashanthanagar, Vijayanagar, Bangalore.

31 Smt. M. Davalashree, Wife of Nataraj, 156/802, 20 th Cross, Hulimavu, Banergatha Layout, Bangalore Ramesh, Son of Narayanappa, 54, 6 th Main, 3 rd Cross, Srinivasanagar, BSK 1 st Stage, Bangalore C.R.Manjunath, Son of Ramaiah, Cheenya, Nagamangala Taluk, Mandya District. 65. Smt. Bharati.B, Wife of Dr. Sanjay Patil, 165, West of Chord Road, 2 nd Main, 11 th Cross, Rajajinagar, Bangalore. 66. H.S.Shivaram, Son of Srikantaiah, 1370, 2 nd Main, Krishna Murthy Puram, Mysore Smt. Vanajasatyanarayan, Wife of Satyanarayan, 605/39, Jain Temple Road,

32 32 V.V.Puram, Bangalore Smt. S. Meenakshi, Wife of S.Sridharan, 39, F3, Navneeth Apartment, 7 th B Cross, NHCS Layout Plan II, Govindaraja Nagar, Bangalore R.S. Ramachandran, Son of Subramaniam, 602, Maple, Godrej Woodsman Estate, Hebbal, Bangalore V. Ramachandran, Son of R. Venkataraman, 150, 6 th Block, Banashankari III Stage, 3 rd Phase, Bangalore Smt. V. Padvathamma, Wife of Late Jaganath, 21/D, 17 th A Cross, 7 th Main, Malleshwaram, Bangalore M.C.Ramesh, Son of Chiksidhegowda, 45/1, 15 th Main, Muneshwara Block, Bangalore H.S.Nagaraja, Son of Srinivasa Iyer, 55, 6 th Main, Gaurava Nagar, J.P.Nagar 7 th Phase,

33 33 Bangalore C.N.Krishnaswamy, Son of Narayanaiah, 1, 8 th Main, Gaurava Nagar, J.P.Nagar 7 th Phase, Bangalore R. Pushpa, Daughter of Ramakrishnaiah, 34, 18 th Cross, 2 nd Main, Jainagar, Mysore. 76. Ravi, Son of M. Gowda, 813, BHEL 2 nd Phase, Rajarajeshwarinagar, Bangalore Smt. Sakku Bai, Wife of K.S.Karinika, 1 st H Main, Girinagar, 2 nd Stage BSK, Bangalore S. Ramamurthy, Son of Late K.N.Shivarama Iyer, 12, 18 th Main, Malleshwaram, Bangalore Smt. Jaya S Rao, Wife of B.S.Rao, 959, 1 st E Main, Shubamangala Apartments, Girinagar (2 nd phase),

34 34 Bangalore [all are majors] 80. Smt. Shalini V Prabhu, Aged about 54 years, Wife of Sri.Vivek R Prabhu, Residing at No.994, Service Road, RPC Layout, Vijayanagar, Bangalore Sri. H.K.Anantharam, Aged about 69 years, Son of Late Krishnaswamy Iyengar, Residing at No.52, 4 th Main Road, A.G s Layout, RMV Extension II, Bangalore Sri. K. Subramanya Bhat, Aged about 50 years, Son of Late Mahalinga Bhat.K, Residing at No.5, 1 st Cross, Nagappa Reddy Layout, B. Narayanapura, Bangalore APPLICANTS (By Shri. Puttige R Ramesh, Advocate for impleading Applicants 1 to 79 Shri.Y.K.Narayana Sharma, Advocate for impleading Applicants 80 to 82) *****

35 35 This Regular First Appeal filed under Section 96 of the Code of Civil Procedure, 1908, against the order dated passed in O.S.No.834/1996 on the file of the V Additional City Civil and Sessions Judge, Bangalore, decreeing the suit against the defendant nos.2 to 4 therein for permanent injunction and dismissing the suit against the defendant nos.1 and 5 therein. These Regular First Appeals having been heard and reserved on and coming on for pronouncement of Judgment this day, the Court delivered the following:- J U D G M E N T The first of these appeals is by the fourth defendant and the second of these appeals is by the second and third defendants. 2. The parties are referred to by their rank before the trial court for the sake of convenience. These appeals are heard and disposed of by this common judgment. 3. The suit was filed by the Vishwabharathi House Building Co-operative Society Ltd., a Society registered under the Karnataka Co-operative Societies Act, The prayer was for a permanent injunction restraining the defendants from interfering with the possession of the Society in respect of lands bearing survey no.212

36 36 measuring 5 acres and 16 guntas and survey no. 213 measuring 5 acres and 30 guntas, of Halagevaderahalli, Kengeri hobli, Bangalore South Taluk. It was asserted by the plaintiff that the owners of the said lands, Sarasamma and Chikkathayamma had executed an agreements of sale dated , along with other documents, such as affidavits dated and and a General Power of Attorney, dated and had delivered possession of the above properties to the plaintiff. It was alleged that one Lankappa, defendant no.2 and one Nanjamma, Defendant no. 3, started asserting title over the same. In the meanwhile as the State of Karnataka, defendant no.1 had initiated acquisition proceedings in respect of the lands in question, for the benefit of the plaintiff, it was claimed that the plaintiff had paid certain amounts of money to defendants 2 and 3, who according to the plaintiff, had consented to the acquisition proceedings. The plaintiff is said to have prepared a layout plan and is said to have submitted the same to the Bangalore Development

37 37 Authority (BDA), for approval. Since the same had not been processed by the BDA, the plaintiff claimed that there was a deemed approval of the plan, in terms of Section 32(8) of the Bangalore Development Authority Act, 1976 (Hereinafter referred to as the BDA Act, for brevity). The plaintiff is then said to have commenced formation of the layout. The BDA is said to have taken exception and is said to have filed a suit in O.S.1373/1982, before the City Civil Court, Bangalore. Though there was said to be an order of temporary injunction granted in the first instance it was said to have been stayed by this court in an appeal in MFA 809/1995. This, according to the plaintiff, paved the way for formation of roads and sites and other infrastructure pertaining to the V Phase of the layout formed by the plaintiff, including on the suit schedule properties. The plaintiff claimed to have invested more than Rs.5 crore in that regard, by the time the suit was filed. It was the case of the plaintiff that it was at this juncture, one Mangala Gowri, defendant no.4, the appellant in the first of these

38 38 appeals, sought to interfere with the lands in question. And hence the suit. The said defendant no.4 is said to have resisted the suit contending that Sarasamma, was the owner of land bearing survey no.212, suit Schedule A property and Chikkathayamma was the owner of land bearing survey no. 213, suit Schedule B property and that they had transferred the properties to defendant nos.2 and 3, under sale deeds dated , respectively. That those defendants had in turn entered into sale agreements with her and had put her in possession of the properties in part performance of the agreements and she was even compelled to file suits for specific performance against the said defendants, in O.S.Nos and of 1996 before the City Civil Court, Bangalore, which had been decreed in her favour. On the other hand, the documents relied upon by the plaintiff never conferred title on the plaintiff and were executory in nature. On a plain examination of the documents, it would indicate that the same were executed in favour one Krishna Bhat and not in favour of the plaintiff - Society. Hence the claim of

39 39 the plaintiff of having conveyed title to any portions of the suit schedule properties was without any substance as it never had any right to make such conveyances. On the basis of the above pleadings, the trial court had framed the following issues : 1. Whether the plaintiff proves that the schedule properties are in its lawful possession and enjoyment? 2. Whether the plaintiff proves interference? 3. What relief and decree the parties are entitled for? The same were answered in the affirmative and the suit having been decreed in favour of the plaintiff, the present appeals are filed. 4. The second of these appeals is filed by defendants no.2 and 3, supporting the case of defendant no.4, while alleging that the plaintiff had created certain nebulous documents to claim the suit properties. 5. The learned Senior Advocate Shri B.M.Shyamprasad, appearing for the counsel for the appellant in the first of these

40 40 appeals and Shri V.B. Shivakumar, appearing for the appellants in the second of these appeals would commonly canvass the following: It is highlighted that the plaintiff had placed reliance on certain agreements of sale, affidavits and powers of attorney, that were executed in favour of the alleged executive director of the plaintiff - Society and not the plaintiff. Hence, this glaring circumstance had been glossed over in proceeding on the footing that the plaintiff had discharged the burden of proving its case. It is contended that significantly, the Society was not placing reliance on any title deed to claim lawful possession of the suit property. It is also canvassed that the plaintiff - Society could not hold agricultural land as there was a statutory bar to the same and hence reliance placed on time barred sale agreements was wholly illegal and contrary to public policy. Therefore, the approach of the trial court in holding that the plaintiff - society had established its possession of the suit property is illegal and cannot be sustained.

41 41 It is also pointed out that defendants 2 and 3 had purchased the properties in question under registered sale deeds, which were not challenged at any point of time, and not at all by the plaintiff - society, and hence possession could not be claimed over the suit property. Further, by virtue of the sale deeds, mutation entries as well as the record of rights had been effected in favour of the defendants and hence, there was a presumptive value in favour of the defendants 2 and 3, under whom defendant no.4 was claiming. It is also pointed out that the criminal cases initiated by the original owners, Chikkathayamma and Sarasamma as well as defendants 2 and 3 had resulted in the police filing a B report and hence the sale deeds executed in favour of the appellant had become final. The suit property being vacant land, it is the settled position of law that the plaintiff can establish possession only on the basis of title deeds, which the plaintiff admittedly, did not possess and hence the suit ought to have been dismissed.

42 42 6. The learned counsel for the respondent - plaintiff, Shri B.L.Sanjeev and also the learned counsel for several members of the plaintiff Society, who had sought to implead themselves as parties to the proceedings, Shri Puttige R. Ramesh and Shri Y.K.Sharma, were heard. They have only sought to justify the judgment of the trial court, apart from drawing attention to legal principles, on which their possession through the plaintiff was to be protected. The reason for permitting the proposed respondents to participate in these proceedings, though their application to implead themselves was not decided, was that the Society presently is said to be under the supervision of an Administrator, and there was no elected managing body and the learned counsel Shri Sanjeev had hence pleaded his handicap in not having been fully instructed. And on this court finding that the appeals were virtually uncontested, the audience afforded to the counsel for the proposed respondents was hence in advancement of justice and no serious objection was taken by the counsel for the appellants either.

43 43 On a close perusal of the record and on a consideration of the contentions canvassed and the several authorities cited by the counsel for the parties, the first thought that strikes one is whether the parties should have been permitted to go to trial at all, having regard to the tenor of the pleadings and the involved manner in which the plaintiff was seeking to assert its right to possession and the basis thereof. In that, the main issue on which the parties went to trial in the suit, as regards the lawful possession of the plaintiff, had generated voluminous evidentiary material, both relevant and irrelevant. This, in itself, was an indication that there was a serious dispute as to the manner in which the plaintiff was claiming a right to possession in the suit properties. Admittedly, the title deeds in respect of the suit schedule properties stood in favour of the appellant-defendant no.4, as on the date of the suit. The validity or otherwise of the same was not in issue and could not also have been considered in the suit. It was certainly a case where the parties ought to have been relegated to a comprehensive suit.

44 44 It is therefore curious as to how the trial court has arrived at a finding in favour of the plaintiff in respect of the main issue, notwithstanding the serious dispute as regards title to the property. 7. From a perusal of the judgment, the reasoning of the trial court, in answering the issue in the affirmative could be summarized thus : After reiterating the rival contentions of the parties at paragraphs 1 to 9, the trial court has embarked on its reasoning from paragraph 10. It is concluded that the suit properties were no longer agricultural lands and that sites had been formed on the lands by the Society. That it did not matter whether it was on a deemed approval of the BDA or on a sanction of the layout plan by the Pattangere Village Panchayath, as per Exhibits P.40 or P.41, respectively, which according to the trial court, was irrelevant. This position, it is held by the trial court, was evident with effect from the year 1993, as is established by the said documents. The execution of documents in favour of one Krishna Bhat by defendants 2 and 3, could not be disbelieved, for the reason that

45 45 there was evidence to indicate that Krishna Bhat and defendant no.2 were colleagues working together in the ITI Ltd., Bangalore and were not strangers. Secondly, the several documents executed in favour of Bhat were sought to be only after a period of ten years. In that, Exhibit P-66, a General Power of Attorney dated , in respect of the suit properties is sought to be denied under Exhibit D-15, a notice issued by Defendant no.2, only as on Inspite of the continued physical possession of the Society of the lands in question since the year 1975, after having paid the entire consideration amount to the land owners, and the admission by defendant no.2 in Exhibit P-66, the General Power of Attorney executed by him in favour of the predecessor-in-interest of the plaintiff - society, the sale deed in respect of the suit properties was executed in favour of defendants 2 and 3, due to unavoidable circumstances and that they were holding the property on behalf of the Society. In the face of the said intention of defendant no.2, as expressed therein, it was not open to defendant no.2 to have issued the notice at Exhibit D-15, ten years later seeking to deny the

46 46 transaction. The trial court has then categorically declared that the sale deeds in favour of defendants 2 and 3 were indeed for and on behalf of the plaintiff. This is further fortified by the fact that the vendors under the sale deeds in favour of Defendants 2 and 3 have received payments from the plaintiff, as evidenced by Exhibits P-47 to 49. It is held that in so far as the formation of the layout by the plaintiff is concerned, though the BDA had filed a suit against the plaintiff, questioning its activity on the suit property, the same had not been pursued, as the suit property had, by operation of law, come within the jurisdiction of a Notified Area Committee and was hence without the jurisdiction of the BDA. The layout plan having been approved by the Pattanagere Grama Panchayath was sufficient to enable the plaintiff to develop the residential layout. There was proof of formation of house sites thereafter, as PW-2 and PW-3 had produced sale deeds executed by the Society in respect of such sites, as per Exhibits P-76 and P-77. It is found by the trial court, that

47 47 defendant no.2 himself has purchased a site as per Exhibit P-44, dated It is held that the formation of such sites is evident even from the execution proceedings initiated by the appellant - fourth defendant, pursuant to the decree for specific performance of the agreements of sale, said to have been executed by defendants 2 and 3 in her favour, obtained in the civil suits in O.S.Nos and of 1996, since execution is taken out in respect of ten house sites and not agricultural land. It was never the case of the defendants that sites had been formed by them on the agricultural land. Whereas it was evident from the material on record that the suit properties were not under cultivation from the year The V Phase of the layout said to have been formed by the plaintiff was provided with electricity connection by the concerned authorities and the said area included the suit properties. It is found that defendants 2 and 3 had executed agreements of sale dated , Exhibits P-33 and P-35, respectively, in favour of the fourth defendant, in respect of the suit schedule

48 48 properties. And much prior to the execution of the said deeds, defendants 2 and 3 had executed the General Power of Attorney dated and had admitted the possession of the suit properties having been delivered to the plaintiff. Therefore, the trial court has held that they were not acting bona fide. And further that the alleged possession of the lands handed over to defendant no.4 was only as on 25/ on receiving full payment of the sale consideration. Thus, the trial court has concluded that the plaintiff - society was in firm possession of the suit properties, as evidenced by Exhibits P-9, P-66 and P-44. Though the trial court goes on to hold that the claim of the plaintiff to title to the property cannot be accepted as contended by it, with reference to Exhibits P-1 to P-8, the trial court was of the opinion that in a suit for injunction, title to the suit property is not very material and that if it is able to establish its possession even otherwise than on title deeds, the plaintiff would be entitled to the relief of injunction. In so far as the incidental proceedings for acquisition of lands for the formation of the layout, in anticipation of which, the plaintiff

49 49 - Society had ventured into the present transactions, are concerned, were found to have been dropped and though the plaintiff had pursued the revival of the same unsuccessfully. In this regard, the trial court holds that it made no difference as the plaintiff was not precluded from acquiring the property on its own. It is held that the General Power of Attorney dated , would override the sale deed if any executed in favour of defendants 2 and 3 and also the further transfer in favour of defendant no.4. With regard to the plaintiff not having taken any further steps pursuant to Exhibits P-1 to P-8 to have the transaction completed by seeking conveyance of the suit properties through registered sale deeds, the trial court has opined that the plaintiff had no knowledge of the transfer made in favour of defendants 2 and 3. It is only on learning about the same, that a notice was issued to defendants 2 and 3 as per Exhibit P-10. However, in view of the continued possession of the plaintiff having been established, any such transactions were not significant.

50 50 The trial court has accepted the proposition canvassed by the plaintiff that even if title to the suit property could not be made out, it could protect its possessory right, with reference to the following authorities : 1. M.Kallappa Shetty vs. M.V.Lakshminarayana Rao, AIR 1972 SC Kallappa Rama Londa vs. Shivappa Nagappa Aparaj and others, AIR 1995 Kar.238, 3. P.Fatesh Ahamed Saheb vs. Sandur Usman Saheb, ILR 1997 Kar.999. The trial court has accordingly held that the plaintiff had established its possession over the suit properties. The trial court has found a case for the plaintiff on a conjoint reading of the following documents: a. Agreement dated , Exhibit P-9, which is a deed executed by H. Lankappa, the second defendant in favour of the Writers and Artists House Building Co-operative Society Ltd., as the plaintiff - society was earlier known. The second defendant has

51 51 agreed thereunder to transact the purchase of lands described therein, including the suit schedule properties, from the respective land owners, for the benefit of the Society and to surrender the lands in favour of the society after exemption was granted by the Urban Land Ceiling Authorities or after the State government initiated acquisition proceedings in respect of those lands for the benefit of the Society. This document is without any preamble or indicating the background in which it is executed. There is no apparent consideration indicated. b. A General Power of Attorney executed by H. Lankappa in favour of the plaintiff - society, dated , Exhibit P-66 with the following recitals : Whereas the schedule property clearly described hereunder originally belonged to one Smt.Sarasamma and Smt.Chikkathayamma, both are residents of Halagevadeyarahalli village, Kengeri Hobli, Bangalore South Taluk. During the year 1975 when we have discussed with the first person Sri Lankappa regarding the formation of Sachchidananda Nagar Layout, in and around the area of Halagevadeyarahalli, I, Lankappa, have agreed to make available agricultural lands for the layout from land owners

52 52 and on first person Lankappa also executed a Memorandum of Understanding for Sale Agreement. That the schedule property was also within the limit of your Layout Sketch. I secured these two items of properties to society from the original owners on , after oral agreement and the original owners also delivered the possession to you by receiving token advance. Thereafter, on I secured an agreement of sale from Smt.Sarasamma and Smt.Chikkathayamma in respect of the schedule properties in favour of society. Whereas we, the first parties H.Lankappa and Nanjamma have purchased the schedule properties from Smt.Sarasamma and Smt.Chikkathayamma under two registered sale deeds. Due to unavoidable circumstances, instead of getting the said sale deeds registered in favour of society and even though the society is in actual physical possession of the lands ever since 1975 and the entire consideration amount has been paid by the society to the land owners through me, the schedule lands were registered in favour of myself and my wife. The payment made by the society from time to time duly acknowledge and agreements of sale with the original owners were also entered into for and on behalf of the society. The society is the absolute owner in actual possession and enjoyment of the property; but the Revenue records pertaining to both items of properties, stand in our name in view of the registered sale deeds. We also took part in formation of the Layout in the interest of society and its

53 53 members and due to personal problems. We are not able to be available to the society for its requirements in the formation of the Layout as and when required. Hence, we are executing this Power of Attorney conferring the following powers on the holder society. c. Sale deed dated executed by the plaintiff - society in favour of the second defendant in respect of a site no.109 formed in lands, including the suit properties. The following recital in the sale deed may be pertinent : Whereas the vendor society is the absolute owner in possession and enjoyment of the area called the 5 th Phase of VIshwabharathi Housing Complex measuring about 63 acres in survey Nos.212, 213, 216, 233, 233/1, 234, 235, 236, 237/1A, 237/1B, 237/2, 238, 239, 240, 241 and 242/2 of Halagevaderahalli, Kengeri Hobli, Bangalore South Taluk, duly deemed urbanized and classified and Residential area in the Comprehensive Development Plan prepared by the Planning Authority and approved by the Government of Karnataka vide Order No.HUD3/55p83/84-85 dated and in view of the judgments of the Hon ble High Court of Karnataka in Writ Petition No.7910/86 dated and Writ Appeal No.1844/90 dated and formed in the said layout.

54 54 It is accepted by the trial court that the plaintiff - society was not in a position to acquire and hold agricultural land and hence an arrangement was made between the Executive Director of the plaintiff - Society one Krishna Bhat and the second defendant, who were said to have been erstwhile co-workers at the ITI Industries Ltd., who were good friends till they fell out later, for the said second defendant along with his wife - the third defendant, to hold the lands sought to be purchased from land owners as described in the above agreement at Exhibit P-9, till such time the plaintiff was in a position to hold the lands in question in its own name. And this arrangement is further evidenced by the execution of Exhibits P-1 to P-4 and Exhibits P-5 to P-8, in respect of the Schedule A and B properties, respectively. Namely, an agreement of sale dated , executed by one Sarasamma, the erstwhile owner of suit Schedule A land, in favour of Krishna Bhat (Exhibit P-1), two affidavits by the said Sarasamma, dated and (Exhibits P-2 and P-3, respectively), wherein it is declared that the entire sale consideration in respect of the property had been

55 55 received and that the property was unencumbered and would be available for a formal transfer in favour of the plaintiff. A general power of attorney dated (Exhibit P-4) executed by the said seller, in favour of Krishna Bhat, with absolute right to deal with the property in any manner. Similar is the documentation made at Exhibits P-5 to P-8, by Chikkathayamma, the erstwhile owner of Schedule B lands in favour of Krishna Bhat. Even according to the trial court, Exhibits P-1 to P-8, cannot be cited as documents conferring title to the properties, on the Society. The court however, has concluded that the plaintiff has established its long possession pursuant to the above documents and hence such possession is to be protected. On the other hand, defendant no.4 was claiming under registered sale deeds in respect of the suit properties, said to have been executed pursuant to enforcement of agreements of sale said to have been executed by defendants 2 and 3 in her favour. It was hence not sufficient if the plaintiff merely claimed possession of the

56 56 suit properties, it was necessary also to examine whether the plaintiff could claim to have lawfully entered into such possession. The above documents relied upon by the plaintiff cannot be readily sustained as affording a right to the plaintiff society, to claim possession over the suit properties. Except Exhibit P-66, none of the above documents are executed in favour of the plaintiff - society. There is no indication as to when the suit properties were conveyed in favour of the Society, to enable it to convey the same to third-parties. In so far as Exhibit P-66 is concerned it candidly discloses a benami transaction, whereby the second defendant admits to having acquired the suit properties for and on behalf of the Society, in his own name, with funds provided by the Society. Such a transaction is illegal and is incapable of enforcement in view of the provisions of the Benami Transactions (Prohibition) Act, There is no pleading or proof to claim that the transaction would be saved under Section 6 of the said Act. No suit could be entertained to enforce any right under such a transaction. This aspect of the matter however, has neither occurred to the defendants

57 57 or to the trial court and no such point has even been suggested any where in the record. In any event, it cannot be said that the manner in which the plaintiff claims to have come into possession of the suit property is evident from any of the documents above referred, which have found favour with the trial court. As already stated, the very exercise of embarking on a detailed examination of the respective claim to title of the parties was itself an error committed by the trial court. There is no doubt that some material evidence has been brought on record to indicate that the plaintiff has carried out developmental activity pertaining to formation of house sites and provision of infrastructure on the suit property. But the same has been carried out at the plaintiff s own risk and intermittently, without having any semblance of title over the property. The property does remain as vacant land, even if portions of it have been alienated by the plaintiff in favour of third-parties, including in favour of the second defendant, as per Exhibit P-44.

58 58 The following observations of the Apex court in the case of Anathulla Sudhakar v. P.Buchi Reddy, AIR 2008 SC 2033, is relevant in considering whether the plaintiff was entitled to the relief of permanent injunction : 13. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff s possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit though it may arise incidentally or collaterally. 14. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to