IN THE HIGH COURT OF KARNATAKA AT BANGALORE BEFORE THE HON BLE MR.JUSTICE N.ANANDA. R.S.A.No.1045/2006 (INJ)

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1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 13 TH DAY OF SEPTEMBER 2012 BEFORE THE HON BLE MR.JUSTICE N.ANANDA R.S.A.No.1045/2006 (INJ) BETWEEN: Sri Ramakrishna S/o Shivannegowda Aged about 51 Years R/at D.No th Cross, 2 nd Main II Stage, Gokulam Mysore City Appellant (By Sri D.P.Mahesh, Advocate for Sri M.P.Subbaiah, Advocates) AND: Smt.K.T.Sujatha W/o B.K.Doddegowda, Major R/at D.No.41, Ningappa Complex New Kantharaj Urs Road Basaveshwarnagar Mysore City Respondent (By Sri R.S.Ravi, Advocate) This appeal is filed under section 100 CPC, against the judgment dated , passed in R.A.No.148/2003, on the file of the II Additional Civil Judge (Sr. Dn.), Mysore, allowing the appeal and etc. This appeal coming on for hearing this day, the court delivered the following:

2 2 J U D G M E N T This second appeal was filed for determination of following substantial question of law:- Whether the court below was justified in reversing the judgment and decree passed by the trial court in the absence of legally acceptable document of title to the suit schedule property by the respondent in this appeal? 2. The brief facts necessary to answer the above substantial question of law may be stated thus:- The suit schedule property is a vacant site situate at Manchegowdana Koppalu, Devaraja Mohalla at Mysore, within the peripheries of Mysore City. The suit site measures East to West 60 feet, North to South 40 feet, bounded on: East by West by North by South by : Property belonging to MUDA (Mahajana House Building Co-operative Society) : Private Property : Private Property : Road

3 3 3. The appellant herein was the defendant before the trial court (hereinafter referred to as defendant ) and respondent was the plaintiff before the trial court (hereinafter referred to as plaintiff ). The suit was filed for grant of permanent injunction to restrain defendant from interfering with plaintiff s peaceful possession and enjoyment of suit schedule site. 4. The defendant resisted the suit, inter alia contending that he is the absolute owner in possession of suit schedule property having acquired the same under an unregistered sale deed executed on from his vendor namely Channegowda. The trial court on appreciation of evidence adduced by plaintiff and also noticing the non-production of title deed by plaintiff has dismissed the suit. Therefore, plaintiff was before I-appellate court. 5. The learned Judge of I-appellate court on the premise that suit is for permanent injunction, question of title does not arise for consideration and placing reliance on

4 4 documents in particular, house demand register extract of Hinkal Mandal Panchayat and house demand register extract maintained by the Mysore City Municipal Corporation reversed the judgment of trial court and granted decree of permanent injunction. Therefore, defendant is before this court. 6. I have heard Sri Mahesh, learned counsel for appellant-defendant and Sri R.S.Ravi, learned counsel for respondent-plaintiff. 7. The suit was instituted for grant of permanent injunction in respect of a vacant site. It is averred in the plaint that in the year 1982, plaintiff purchase suit schedule property from her vendor Sri Channegowda. It is also averred that suit site was carved out of land bearing survey No.272/4, situate at Hebbal Village, Kasaba Hobli, Mysore Taluk. The plaintiff has relied on photostat copies of tax paid receipts and property register extracts.

5 5 8. The written statement filed by defendant is not in any way better than plaint. The defendant has contended that he had purchased suit site from his vendor namely Sri Channegowda under a sale deed dated , however he has stated that suit site is carved out of survey No.272/4 situate at Hebbal Village, Mysore. The defendant has relied on physical possession of suit schedule property. 9. From the evidence on record, it is noticed that defendant has hastily constructed a compound wall around suit site after institution of suit. 10. The suit was filed for permanent injunction in respect of vacant site. The law is fairly well settled in respect of vacant site, presumption of law would be that possession follows title. 11. In a decision reported in (2008) 4 SCC 594 (in the case of Anathula Sudhakar Vs. P.Buchi Reddy (dead) by LRs and others), the Supreme Court has held:-

6 6 21. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under : (a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without

7 7 a finding thereon, it will not be possible to decide the issue of possession. (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar 3 ). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. (d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such

8 8 cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case. In the instant case, courts below have not bothered to verify if either of parties has established title to suit schedule property to decide the case either in favour of plaintiff or in favour of defendant. The I-appellate court has mainly relied on photostat copies of tax paid receipts and entries made in the house demand register extract of Hinkal Mandal Panchayat and house demand register extract maintained by the Mysore

9 9 City Municipal Corporation to hold that plaintiff is in possession of suit schedule property. 12. After going through pleadings and evidence, I find that both parties have deliberately withheld unregistered sale deeds, which they had filed along with plaint and written statement. Though unregistered sale deeds are not admissible to prove title, the same could have been produced and relied upon for collateral purposes. Therefore, a legitimate query would arise as to why these unregistered sale deeds were not tendered in evidence. 13. On perusal of unregistered sale deeds relied upon by parties, I find that plaintiff had purchased a stale stamp paper from a stamp vendor by name B.Devaraje Urs at Malavalli. The copy of unregistered sale deed dated produced by plaintiff, does not indicate the date on which aforestated stamp paper was issued by the Subtreasury at Malavalli. The plaintiff and his vendor are residing in Mysore. There was no need for plaintiff to go to a

10 10 stamp vendor at Malavalli to purchase a stamp paper of Rs.7/- denomination. This document is alleged to have been written by one N.Srikanta Murthy. The persons who had attested the document cannot be identified either by their signatures or their names. 14. The defendant had also gone to the same stamp vendor at Malavalli, to purchase a stamp paper of Rs.7/- denomination and he got executed the sale deed dated from one Sri Channegowda with the help of same scribe. 15. As per copy of unregistered sale deed produced by plaintiff, the document was executed on As per unregistered sale deed relied upon by defendant, the document was executed on It is on the basis of these documents, parties have asserted title to suit schedule property, which is a vacant site. There is no evidence on record to indicate that suit site was formed out of survey No.272/4, situate at Hebbal Village, Kasaba Hobli, Mysore

11 11 Taluk and it belonged to one Channegowda of Manchegowdana Koppalu. 16. It is obvious from the contents of these documents, plaintiff and defendant in a haste had purchased stale stamp papers from a stamp vendor at Malavalli and brought these ante dated unregistered sale deeds into existence. It looks improbable, when the parties had contemplated to purchase suit schedule property situate within the periphery of Mysore city would not have bothered to get the documents registered. These documents relied upon by parties have not come into existence in the circumstances pleaded by parties. The I-appellate court as also the trial court have not bothered to look into these documents. 17. At this juncture, it will be useful to refer to the judgment reported in (2011)8 SCC 249 (in the case of Ramrameshwari Devi and Others Vs. Nirmala Devi and Others), wherein the Supreme Court has held:-

12 We have to dispel the common impression that a party by obtaining an injunction based on even false averments and forged documents will tire out the true owner and ultimately the true owner will have to give up to the wrongdoer his legitimate profit. It is also a matter of common experience that to achieve clandestine objects, false pleas are often taken and forged documents are filed indiscriminately in our courts because they have hardly any apprehension of being prosecuted for perjury by the courts or even pay heavy costs. In Swaran Singh v. State of Punjab 1 this court was constrained to observe that perjury has become a way of life in our courts. 48. It is a typical example of how a litigation proceeds and continues and in the end there is a profit for the wrongdoer. 49. The Learned amicus articulated the common man's general impression about litigation in following words: Make any false averment, conceal any fact, raise any plea, produce any false

13 13 document, deny any genuine document, it will successfully stall the litigation, and in any case, delay the matter endlessly. The other party will be coerced into a settlement which will be profitable for me and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road. 50. This court in Swaran Singh 1 observed as under: (SCC p.679, para 36) 36. Perjury has also become a way of life in the law courts. A trial Judge knows that the witness is telling a lie and is going back on his previous statement, yet he does not wish to punish him or even file a complaint against him. He is required to sign the complaint himself which deters him from filing the complaint. Perhaps law needs amendment to clause (b) of Section 340(3) of the Code of Criminal Procedure in this respect as the High Court can direct any officer to file a complaint. To get rid of the evil of perjury, the court should resort to the use of the provisions of law as contained in Chapter XXVI of the Code of Criminal Procedure.

14 In a recent judgment in Mahila Vinod Kumari v. State of Madhya Pradesh 2 this court has shown great concern about alarming proportion of perjury cases in our country. 52. The main question which arises for our consideration is whether the prevailing delay in civil litigation can be curbed? In our considered opinion the existing system can be drastically changed or improved if the following steps are taken by the trial courts while dealing with the civil trials: A. Pleadings are the foundation of the claims of parties. Civil litigation is largely based on documents. It is the bounden duty and obligation of the trial judge to carefully scrutinize, check and verify the pleadings and the documents filed by the parties. This must be done immediately after civil suits are filed. B. The Court should resort to discovery and production of documents and interrogatories at the earliest according to the object of the Act. If this exercise is carefully carried out, it would

15 15 focus the controversies involved in the case and help the court in arriving at truth of the matter and doing substantial justice. C. Imposition of actual, realistic or proper costs and/or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings. D. The Court must adopt realistic and pragmatic approach in granting mesne profits. The Court must carefully keep in view the ground realities while granting mesne profits. E. The courts should be extremely careful and cautious in granting ex-parte ad interim injunctions or stay orders. Ordinarily short notice should be issued to the defendants or

16 16 respondents and only after hearing the parties concerned appropriate orders should be passed. F. Litigants who obtained ex-parte ad interim injunction on the strength of false pleadings and forged documents should be adequately punished. No one should be allowed to abuse the process of the court. G. The principle of restitution be fully applied in a pragmatic manner in order to do real and substantial justice. H. Every case emanates from a human or a commercial problem and the Court must make serious endeavour to resolve the problem within the framework of law and in accordance with the well-settled principles of law and justice. I. If in a given case, ex parte injunction is granted, then the said application for grant of injunction should be disposed of on merits, after hearing both sides as expeditiously as may be possible on a priority basis and undue adjournments should be avoided.

17 17 J. At the time of filing of the plaint, the trial court should prepare complete schedule and fix dates for all the stages of the suit, right from filing of the written statement till pronouncement of judgment and the courts should strictly adhere to the said dates and the said timetable as far as possible. If any interlocutory application is filed then the same be disposed of in between the said dates of hearings fixed in the said suit itself so that the date fixed for the main suit may not be disturbed. (Underlining supplied by me) The I-appellate court was satisfied with the photostat copy of house demand register extract of Hinkal Mandal Panchayat and photostat copy of house demand register extract maintained by the Mysore City Municipal Corporation to hold that plaintiff is in lawful possession of suit schedule property. The impugned judgment not only betrays lack of legal knowledge but also betrays lack of application of mind and appreciation of evidence. The

18 18 impugned judgment cannot be sustained. The substantial question of law is answered in negative. SNN 18. In the result, I pass the following:- ORDER The appeal is accepted. The impugned judgment is set aside. O.S.No.747/2001 is dismissed. However, it is made clear that dismissal of O.S.No.747/2001 filed by K.T.Sujatha will not enable defendant-ramakrishna to claim any right over suit schedule property as defendant has to establish his rights independently. Sd/- JUDGE

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