Bangalore District Court
vs on 19 February, 2021
/1/ O.S.No.6122/2013
IN THE COURT OF XXXIX ADDITIONAL CITY CIVIL
JUDGE [CCH40], BANGALORE CITY.
Dated on this the 19th day of February, 2021.
: PRESENT :
Sri.Khadarsab, B.A., LL.M.,
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
ORIGINAL SUIT NO. 6122/2013
Plaintiff :
Chethan Bharath S/o.A.S.Vishnu
Bharath, 30 Years, R/o.No.450, 7 th
Main, 4th Block, Jayanagar,
Bangalore - 11.
[By Sri.K.R.Ashok Kumar, Advocate]
/ VERSUS /
Defendant :
Nagaraj son of late Gurumurthy Bovi,
51 Years, Bande Palya, Near
Garuvebhavipalya, Hosur Road,
Begur Hobli, Bangalore South Taluk,
Bangalore - 560 068.
(Sri.G.G./M.P)
***
Date of Institution of the
: 22.08.2013
suit
Suit for permanent
Nature of suit :
injunction
/2/ O.S.No.6122/2013
Date of commencement of
evidence 22.03.2014
Date on which the
judgment is pronounced : 19.02.2021
Years Months Days
Duration taken for disposal :
07 05 25
***
JUDGMENT
This suit is filed by the plaintiff against the defendant for the relief of permanent injunction restraining the defendant or his agents, henchmen, followers or any other persons acting or claiming through or under him from interfering with peaceful, lawful possession and enjoyment of the suit schedule property by the plaintiff.
2. It is the case of plaintiff that, one Gurumurthy Bhovi was the owner of land bearing Sy.No.116 situated at Hongasandra Village, Begur Hobli, Bangalore South Taluk. The said land has been granted by the Land Tribunal to the said Gurumurthy Bhovi. As per the order /3/ O.S.No.6122/2013 of the Land Tribunal said Gurumurthy was paying tax and assessment to the Government and thereby exercising all the acts of ownership over the said land. The said Gurumurthy Bhovi along with his sons alienated the vacant Site No.4, Gramthana House List No.4, measuring a total area of 5,557.50 Sq.Ft. in khatha No.116 (earlier Sy.No.116) situated at Hongasandra Village to one K.Rajeshwari on 2.9.1994 and has delivered the possession of the said property to K.Rajeshwari on the date of sale deed itself. As per sale deed the name of K.Rajeshwari has been entered in the records and she got the khatha registered in her name in the records of Madivala notified area committee since by that time the property was included in the revenue jurisdiction of the said authority. The said K.Rajeshwari in turn sold the suit schedule property to the plaintiff under the sale deed dated 15.6.1998 and possession of the property has been /4/ O.S.No.6122/2013 delivered to the possession. Since 15.6.1998 plaintiff is in possession and enjoyment of the suit schedule property. Presently suit schedule property comes within the jurisdiction of B.B.M.P. and the khatha in respect of suit schedule property is standing in the name of plaintiff. B.B.M.P. assigned khatha No.116/4 to the suit schedule property. Plaintiff is paying tax to the municipal authority. The defendant who is stranger to the suit schedule property having no right, title or interest over the suit schedule property and is trying to interfere with peaceful possession and enjoyment of the plaintiff with an oblique motive to extract money and to harass the plaintiff. On 1.8.2013 and 8.8.2013 the defendant and his henchmen have visited the suit schedule property and proclaimed that they are going to dispossess the plaintiff from the suit schedule property. The act of the defendant is high handed and illegal. Hence prayed for decreeing the /5/ O.S.No.6122/2013 suit.
3. In response to the suit summons, defendant appeared through his counsel and filed the written statement. He denied the ownership and possession of plaintiff over the suit schedule property. The defendant further contended that the plaintiff is not at all in possession of the suit schedule property. The defendant denied the alleged sale deeds and also denied the layout formed in Sy.No.116 of Hongasandra Village. The defendant denied the alleged obstruction.
4. Defendant further contended that his ancestors and his father Gurumurthy Bhovi and his uncle Chinniga and their respective children including himselfe constituted Hindu undivided family and governed under Mithksara Law. Since his ancestors in possession, cultivation, enjoyment and occupation of Sy.No.116 measuring 4 acres 27 guntas of Hongasandra Village, /6/ O.S.No.6122/2013 Bangalore South Taluk as the tenants and upon the commencement of Land Reforms Act, Gurumurthy Bhovi and Chinniga together filed an application for confirmation of occupancy rights in respect of said land on behalf of the joint family. By considering the request of Gurumurthy Bhovi and Chinniga, the Land Tribunal, Bangalore has confirmed the occupancy rights in their favour. The joint family from its nucleus also incurred expenditure and paid the premium charges etc., towards the grant of occupancy rights. The occupancy rights granted with a specific condition not to alienate the said property. The said land has been granted on behalf of joint family. Gurumurthy Bhovi and Channiga Bhovi are the illiterate and innocent persons having no legal or worldy knowledge, they belong to weaker section of the society. The land bearing Sy.No.116 is the only land to the defendant's family. Upon the demise of Gurumurthy /7/ O.S.No.6122/2013 Bhovi and Chinniga, their respective branches including the defendant continued to be in joint possession and enjoyment of the said land. The land bearing Sy.No.116 is neither converted nor formed the layout. There is no partition in the said land.
5. He further contended that one K.V.Krishnan was known to Gurumurthy Bhovi. The joint family of defendant was interested to dig a borewell in the said land and also enquiring to get sanctioned the borewell under the subsidiary scheme from the Government. At that time, the said K.V.Krishnan came forward stating that he would get all that done without any expenditure and thereby Gurumurthy Bhovi and his family members believed the words of said Krishnan. The said Krishnan took the signatures of Gurumurthy Bhovi and others on the papers and also took them to the office, thereafter advised Gurumurthy Bhovi that the borewell will be /8/ O.S.No.6122/2013 sanctioned within 3 months from thereof. Thereby Gurumurthy Bhovi and his family waited for the same and whenever Gurumurthy Bhovi and his family were asking said Krishnan, he was pulling time on one or the other reason. Thereafter Gurumurthy Bhovi and his family members fedup with said Krishnan as no borewell was getting sanctioned, thereby they kept quite without approaching the said Krishnan. However, the joint family continued to be in cultivation of said property and growing rainy crops. In the meanwhile, the defendant received the suit summons of this case and subsequently he came to know that the said Krishnan obtained the signature and same was converted to sale deed, thereby played fraud upon the family of the defendant. The said Gurumurthy Bhovi or his family members have not at all executed sale deed in favour of Jayamma and her daughter K.Rajeshwari. They have created the sale deed and /9/ O.S.No.6122/2013 khatha. The land bearing Sy.No.116 is still an agricultural land. The said K.Rajeshwari has no right, title or interest over the said land bearing Sy.No.116 and hence, she cannot execute sale deed in favour of plaintiff. On the basis of said sale deed plaintiff will not get any right, title, interest and possession over the suit schedule property. Hence, prayed for dismissal of the suit.
6. On the basis of the pleadings and documents of the parties, the following issues were framed by my predecessor in office on 21.6.2014:
(1) Does the plaintiff prove that he is in peaceful possession and enjoyment of suit property as on the date of suit?
(2) Does the plaintiff prove that there is interference by to his peaceful possession and enjoyment over the suit property?
(3) Does the plaintiff prove that he is entitled for the relief of permanent injunction against the defendant ?
/ 10 / O.S.No.6122/2013 (4) What order or decree?
7. In order to substantiate his claim, plaintiff himself examined as P.W.1 and got marked documents as Exs.P.1 to P.7. In order to establish the defence of defendant, the GPA holder of defendant has been examined as D.W.1 and got marked documents as Exs.D.1 to D.25.
8. Heard the arguments.
9. My findings on the above issues are as follows:
Issue No.1 :In the negative.
Issue No.2 :In the negative.
Issue No.3 :In the negative.
Issue No.4 : As per final order, for the
following :
REASONS
10. Issues No.1 and 2 : These issues are
interlinked with each other. Hence, in order to avoid
/ 11 / O.S.No.6122/2013
repetition of facts and evidence, they are taken up
together for common discussion.
11. This suit is filed by the plaintiff against the defendant for the relief of permanent injunction restraining the defendant, his henchmen or anybody claiming under or through him from interfering, with the plaintiff's lawful possession over the suit schedule property.
12. The advocate for plaintiff argued that one Gururmurthy Bhovi was the owner of suit schedule property and he sold the suit schedule property to one K.Rajeshwari as per Ex.P.1 Sale Deed. Present defendant and his brother are attesting witnesses to the said sale deed. In turn the said K.Rajeshwari and her children sold to plaintiff as per Ex.P.3. As per sale deed, plaintiff's name has been mutated in the B.B.M.P. khatha as per / 12 / O.S.No.6122/2013 Ex.P.7 and has paid update tax to B.B.M.P. Exs.P.4 and P.5 are the Tax Paid Receipts and selfdeclaration forms.
Ex.P.6 are the certified copies of the Encumbrance Certificates in respect of House List No.4, Khatha No.116. All these documents establish the possession of plaintiff over the suit schedule property. Though the defendant is no way concerned with the suit schedule property, he is obstructing plaintiff's peaceful possession and enjoyment. Hence prayed for decreeing the suit.
13. Per contra, the counsel for defendant argued that land bearing Sy.No. 116 has been granted in favour of Gurumurthy Bhovi and Chinniga in the year 1982. The said Gurumurthy Bhovi, Chinniga and their family members are in possession and enjoyment of the said land. The said land has been granted by the Land Tribunal on the basis of Land Tribunal Order Gurumurthy Bhovi and Chinniga names have been entered in the / 13 / O.S.No.6122/2013 Record of Rights. Gurumurthy Bhovi has not at all executed sale deed in favour of K.Rajeshwari. The plaintiff and said K.Rajeshwari have created the sale deed. The land bearing Sy.No.116 of Hongasandra Village is not at all converted from agriculture to nonagriculture. The said land is still an agricultural land. The plaintiff is not at all in possession of said land. The documents produced by the plaintiff are not concerned with Sy.No.116. Hence, prayed for dismissal of the suit.
14. The plaintiff is claiming rights over the property on the basis of title. The defendant seriously disputed the identity and existence of the suit schedule property and also disputed the fact that plaintiff is the lawful owner and in possession over the suit schedule property. Since there is dispute regarding the existence and identification of the property, the burden lies on the plaintiff to establish that / 14 / O.S.No.6122/2013 he was in possession of the suit schedule property as on the date of suit as a lawful owner.
15. In order to prove his case, plaintiff himself examined as P.W.1. The examinationinchief of P.W.1 is nothing but replica of his plaint averments. Plaintiff placed reliance on the documents Exs.P.1 to P.7. P.W.1 deposed that one Gurumurthy Bhovi was the owner of land bearing Sy.No.116 of Hongasandra Village. The said land has been granted by the Government to the said Gurumurthy Bhovi. The said Gurumurthy Bhovi was paying tax and assessment to the revenue authority by exercising all the acts of ownership over the said land. During the lifetime of said Gurumurthy Bhovi, he has sold vacant site No.4, Gramthana House List No.4, totally measuring 5557 Sq.Ft. in khatha No.116 to one Rajeshwari on 2.9.1994 as per Ex.P.1. The present defendant and his brothers are attesting witnesses to the / 15 / O.S.No.6122/2013 said sale deed. The said site has been carved in Sy.No.116 of Hongasandra Village. As on the date of sale deed itself the possession of the suit schedule property has been delivered to said Jayamma. As per sale deed, the name of Jayamma has been entered in the records and khatha has been registered in the name of Rajeshwari in the records of Madivala Notified Area Committee as per Ex.P.2. The said Jayamma paid tax to the concerned authorities. Subsequently by exercising her proprietary rights over the suit schedule property, she has alienated the same and has executed registered sale deed on 15.6.1998 in his favour as per Ex.P.3. On the same day, the possession of the property has been delivered. Since then he is in possession and enjoyment of the suit schedule property. As per sale deed his name has been mutated in the B.B.M.P. records and B.B.M.P. has assigned khatha No.116/3 to the suit schedule property. Presently khatha / 16 / O.S.No.6122/2013 is standing in his name as per Ex.P.7. He has paid up date tax to the B.B.M.P. as per Exs.P.4 and P.5 - Self Declaration Forms, Acknowledgements and Tax Paid Receipts. Ex.P.6 are the encumbrance certificates pertains to suit schedule property. The defendant is no way concerned with the suit schedule property, even then on 1.8.2013 came near the suit schedule property and has obstructed his peaceful possession and enjoyment over the suit schedule property. Hence, prayed for decreeing the suit.
16. On perusal of Ex.P.1 - Sale Deed dated 2.9.1994, it reveals that Gurumurthy Bhovi executed registered sale deed in favour of Rajeshwari on 2.9.1994 in respect of Gramthana House List No.4, Khatha No.116. On perusal of Ex.P.2 - Khata Certificate it reveals that the name of said Rajeshwari has been mutated in the records pertains to Property No.4. On perusal of Ex.P.3 sale deed / 17 / O.S.No.6122/2013 it reveals that the said Rajeshwari and her children in turn have executed registered sale deed on 15.6.1998 in favour of plaintiff in respect of House List No.4, Khatha No.116, situated at Hongasandra Village, Bangalore South Taluk. There is no specific recital in the sale deeds regarding the acquisition of the property by Gurumurthy Bhovi and the layout has been formed in Sy.No.116 of Hongasandra Village. But, there is no recital in the said sale deeds that the suit schedule property has been carved in Sy.No.116 of Hongasandra Village. That, as per plaintiff's version, Gurumurthy Bhovi was the owner of Sy.No.116 of Hongasandra Village and has formed the layout in the said land and has sold Site No.4 to one Rajeshwari on 2.9.1994 as per Ex.P.1. In turn, the said Rajeshwari and her children executed registered sale deed on 15.6.1998 in favour of plaintiff as per Ex.P.3. There is no document in order to show that the land bearing / 18 / O.S.No.6122/2013 Sy.No.116 of Hongasandra Village has been converted from agricultural to nonagricultural purpose and layout has been formed.
17. As per Section 95 of the Karnataka Land Revenue Act, if any occupant of the land assessed or held for the purpose of agriculture wishes to divert such land or any part thereof to any other purposes, he shall apply for permission to the Deputy Commissioner. Without permission, agricultural land cannot be used for non - agricultural purpose. If at all said Gurumurthy Bhovi had formed residential layout in Sy.No.116 of Hongasandra Village, there must be conversion order and approved layout plan. The plaintiff has utterly failed to produce the conversion order and approved layout plan.
18. The counsel for plaintiff argued that plaintiff is in possession of the suit schedule property and presently khatha is standing in the name of plaintiff as per Ex.P.7.
/ 19 / O.S.No.6122/2013 On perusal of Ex.P.2 - khatha extract issued by Madivala notified area it reveals that the said document pertains to property No.4, Sl.No.116, in which there is no recital as regards to Sy.No.116. On perusal of Ex.P.7 - B property register extract pertains Property No.116/4 of Garvipalya Village. The plaintiff claims that the suit schedule property is situated at Hongasandra Village, but the said document pertains to Garvipalya Village. The counsel for plaintiff argued that Garvepalya and Hongasandra are one and the same. Though the counsel for plaintiff argued that Garvipalya and Hongasandra are one and the same, but there is no evidence on record to show that Garvipalya and Hongasandra are one and the same. Without evidence Court cannot accept the arguments advanced by the counsel for plaintiff.
19. Ex.P.6 are the certified copies of the encumbrance certificates pertains to Site No.4. On perusal / 20 / O.S.No.6122/2013 of Ex.P.6, there is no reference in Ex.P.6 that the property purchased by plaintiff earlier was standing in the name Gurumurthy Bhovi. This document does not establish that layout has been formed in Sy.No.116 of Hongasandra Village by the said Gurumurthy Bhovi and there is no reference in Exs.P.1 to 7 that the suit schedule site has been carved in Sy.No.116 of Hongasandra Village. The plaintiff much relied upon Exs.P.4 and P.5 - Tax Paid Receipts. It is well settled law that tax paid receipts will not create any right, title, interest or possession over the suit schedule property.
20. The evidence of P.W.1 reveals that he has purchased the property under sale deed - Ex.P.3 on 15.6.1998. Before purchasing the property, he has not verified the title deeds pertaining to the suit schedule property. Though he claims that suit schedule property was originally belonged to Gurumurthy Bhovi i.e., / 21 / O.S.No.6122/2013 ancestors of defendant, who acquired the property under Inam Abolition Act, no single document has been produced to show that Sy.No.116 originally belonged to Gurumurthy Bhovi and he formed the residential layout, he has been in possession of the property paying tax, khatha was standing in his name as on the date of sale deed - Ex.P.1. In the absence of documentary evidence, it cannot be believed that Gurumurthy Bhovi was the original owner of the suit schedule property. Further evidence of P.W.1 reveals that at the time of purchasing the property, he has not verified the documents to confirm that Gurumurthy Bhovi or Rajeshwari were having valid title and possession over the property, blindly believed and has purchased the property from Rajeshwari though she had no right, title or interest over the property.
21. Though P.W.1 deposed that the land bearing Sy.No.116 of Hongasandra Village has been granted in / 22 / O.S.No.6122/2013 favour of Gurumurthy Bhovi and he has formed the residential layout and has sold House List No.4 in Khatha No.116 to Rajeshwari as per Ex.P.1, in turn said Rajeshwari sold the suit schedule property to him as per Ex.P.3, but in his crossexamination at page No.6 deposed that, as per advise of his counsel he has purchased the property. It is the primary duty of the purchaser to make prudent enquiry as to the existence and ownership of the property. The entire evidence of P.W.1 goes to show that he and his father have not made a prudent enquiry before purchasing the property.
22. P.W.1 further deposed that, Rajeshwari purchased the property as per Ex.P.1. On the basis of said sale deed her name has been mutated in the municipal records as per Ex.P.2 - Khatha extract issued by Madivala Panchayath as notified area for the year 199495 and subsequently he purchased the property as / 23 / O.S.No.6122/2013 per Ex.P.3 and his name has been mutated in the B.B.M.P. records and presently khatha standing in his name as per Ex.P.7. Plaintiff claims that suit schedule property is situated in Hongasandra, but on perusal of Ex.P.7 it reveals that the said document pertains to Garvibhavipalya Villlage. The plaintiff has utterly failed to substantiate how the said document is connected with the suit property.
23. It is well settled law that in order to certify the khatha there must be proceedings. The plaintiff has utterly failed to produce mutation order or directions from gram panchayath to change the revenue records like khatha or house list in favour of Gurumurthy Bhovi or in favour of Rajeshwari. As such, there is no entry in the name of Gurumurthy Bhovi or from him in the name of Rajeshwari in the original register of the grama panchayath in respect of suit schedule property and as / 24 / O.S.No.6122/2013 such, there is no legal, valid, authenticated document or records to show the change of khatha in respect of Sy.No.116 to khatha or house list number and consequently the questions of changing or transferring the revenue records either to CMC or B.B.M.P. does not arise and thereby the municipal authorities have no authority to mutate any records as there was no revenue entries stood in the name of Gurumurthy Bhovi in respect of suit schedule property.
24. Plaintiff in his plaint at para No.5 pleaded that there is a building in the suit schedule property. Further deposed that since 1998 he is paying tax to municipal authority as per Exs.P.4 and 5. If at all there is a structure or building in the property, same would be mentioned in the self declaration form as well as in the khatha extract. On perusal of Ex.P.4 - Self Declaration Form in column No.10 there is no mention regarding the / 25 / O.S.No.6122/2013 existence of building as alleged by the plaintiff. Even on perusal of Ex.P.7 B Property Register extract, in which at column No.6 there is no mention regarding built up area. At column No.7 it is clearly mentioned that, it is vacant land. The evidence of P.W.1 is contrary to his own documents. If at all there is building in the suit schedule property, same would be reflected in Ex.P.4 - self declaration form Ex.P.7 - B Property Register Extract. All these documents show that there is no building in the suit schedule property. The evidence of P.W.1 is contrary to his own documents.
25. P.W.1 in his entire crossexamination has shown his ignorance about earlier title deeds in respect of house list No.4. P.W.1 deposed that suit schedule property has been carved in Sy.No.116 of Hongasandra Village, but in his crossexamination at page No.8 he clearly deposed / 26 / O.S.No.6122/2013 that, "ನಪ3 ರಲಲಲ ನಮಮದಸದ ಸಸತತತ ಸರಲರ ನನ.116 ರ ಯಯವ ಭಯಗದಲಲ ಬರತತತದಲ ಎನದತ ಹಲಹಳಲತ ಆಗತವವದಲಲ."
26. P.W.1 further deposed that land bearing Sy.No.116 has been converted from agricultural to non agricultural purpose and there is an approved layout plan. The plaintiff has utterly failed to produce the said conversion order and approved layout plan. The non production of said documents is fatal to the case of the plaintiff.
27. In order to establish his defence, the power of attorney holder of defendant has been examined as D.W.1 and got marked documents Exs.D.1 to D.25. Ex.D.1 is the GPA dated 20.1.2021 executed by defendant. Ex.D.2 is the Grant Order dated 18.1.1982. Exs.D.3 to D.10 are the RTC extracts in respect of Sy.No.116 of Hongasandra Village. Ex.D.11 are Electricity Bills. Ex.D.12 to D.17 are photographs. Ex.D.18 is the C.D. in respect of Exs.D.12 / 27 / O.S.No.6122/2013 to 17. Ex.D.19 is the Receipt dated 12.1.2021 issued by R.R.Labs, Bengaluru. Ex.D.20 to 22 are the certified copies of the Plaint, Order Sheet and Order passed on I.A.Nos.1 and 2 in O.S.No.9274/2018 on the file of CCH
11. Ex.D.23 is the I.A.No.4 filed under Order I Rule 10(2) r/w/s 151 of C.P.C. in O.S.No.9274/2018 on the file of CCH11. Ex.D.24 is the copy of application dated 28.12.2020 submitted to the Revenue Officer, B.B.M.P., Bangalore South. Ex.D.25 is the Endorsement dated 29.1.2021 issued by A.R.O., HSR SubDivision, B.B.M.P. D.W.1 clearly deposed that, Gurumurthy Bhovi and Chinniga were the cultivators of land bearing Sy.No.116 of Hongasandra Village and they have filed an application before the Special Deputy Commissioner (Inams), Bengaluru for grant of said land. After considering the claim, the Special Deputy Commissioner has granted said Sy.No.116 in favour of Gurumurthy Bhovi and Chinniga / 28 / O.S.No.6122/2013 in LRF No.250/7475 as per Ex.D.2 on 18.1.1982. As per grant order, the name of the Gurumurthy Bhovi and Chinniga have been mutated in the revenue records and accordingly M.R. has been effected. Accordingly their names have been entered in the Revenue Records. After the death of Gurumurthy and Chinniga their legal heirs names have been mutated the revenue records. Presently R.T.C. in respect of land bearing Sy.No.116 of Hongasandra is standing in the name of Legal heirs of Gurumurthy Bhovi and Chinniga as per Exs.D.5 to D.10. The said land has not been converted and even there is no partition in respect of said land. Plaintiff has created Exs.P.2 and 8 Khatas. The BBMP has issued an endorsement as per Ex.D.25. The plaintiff is not at all in possession of the suit schedule property and the plaintiff is no way concerned with Sy.No.116 of Hongasandra. Hence, prayed for dismissal of suit.
/ 29 / O.S.No.6122/2013
28. D.W.1 was subjected to a detailed cross examination from the plaintiff's side, wherein he adhered to his original version. The counsel for plaintiff made specific suggestions that, Gurrumurthy Bhovi executed sale deed as per Ex.P.1, the plaintiff is in possession of suit schedule property and the defendant has made obstruction to his possession. Witness denied the said suggestion. The counsel for plaintiff further made a suggestion that suit schedule property has been carved in Sy.No.116 of Hongasandra, witness denied the said suggestion. The counsel for plaintiff further made suggestion that the present defendant is one of the attesting witness to Ex.P.1 - sale deed, witness denied the said suggestion also. D.W.1 denied Exs.D.1 and D.3 - sale deeds and khatha standing in the name of plaintiff.
29. Though the plaintiff contended that he is in possession of the suit schedule property, the defendant is / 30 / O.S.No.6122/2013 obstructing his possession and is also trying to remove the fencing of suit schedule property, but no material has been placed by the plaintiff to establish that as on the date of Ex.P.1 - Sale Deed his vendor's Vendor i.e., Gurumurthy Bhovi had rights over the suit schedule property. The plaintiff claims that entire land bearing Sy.No.116 of Hongasandra has been granted to Gurumurthy Bhovi, but on perusal of Ex.D.2 Order passed by the Special Deputy Commissioner (Inams), which clearly goes to show that Sy.No.116 measuring 4 acres 7 guntas of Hongasandra Village has been granted in favour of Gurumurthy Bhovi and Chinniga. The plaintiff has not denied the contents of Ex.D.2. Ex.D.2 clearly speaks that Gurumurthy Bhovi alone had no right to alienate the property. On perusal of Exs.D.2 to D.4 it clearly reveals that there is prohibition for alienating the land for the period of 15 years. Plaintiff claims that / 31 / O.S.No.6122/2013 Gurumurthy Bhovi had alienated the property as per Ex.P.1 on 2.9.1994. Admittedly the land has been granted on 18.1.1982. As on the date of alleged sale deed there is prohibition for alienating the property. Hence, on the basis of said sale deed neither Rajeshwari nor plaintiff will get rights over the property.
30. Besides, the plaintiff claims that the land has been granted in favour of Gurumurthy Bhovi, but on perusal of Ex.P.1 - sale deed in which it is mentioned that the said Gurumurthy Bhovi has inherited the property. The evidence of P.W.1 is contrary to his own documentary evidence.
31. The plaintiff has not denied the documents produced by the defendant. If these documents are considered, the primafacie impression emerging is that, property bearing Sy.No.116 measuring 4 acre 07 guntas / 32 / O.S.No.6122/2013 of Hongasandra is in possession of defendant and his family members.
32. Admittedly land bearing Sy.No.116 of Hongasandra is measuring 4 acre 07 guntas. P.W.1 deposed in his cross examination at page No.8 "ನಪ3 ರಲಲಲ ನಮಮದಸದ ಸಸತತತ ಸರಲರ ನನ.116 ರ ಯಯವ ಭಯಗದಲಲ ಬರತತತದಲ ಎನದತ ಹಲಹಳಲತ ಆಗತವವದಲಲ." It is well settled law that court cannot grant decree without getting the identity of the land. As per the order VII Rule 3 C.P.C where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it. The boundary description given by the plaintiff in the plaint schedule for the identity is not sufficient to identify the suit schedule property. Hence, on the basis of alleged sale deed executed by Gururmurthy in favour of Rajeshwari, Rajeshwari in turn to the plaintiff in respect of suit schedule property, the plaintiff will oral testimony get any / 33 / O.S.No.6122/2013 rights over the property. The vendor of the plaintiff was also not in possession of the suit schedule land either on the date of execution of sale deed or earlier to that. In a decision reported in ILR 2005 KAR 884 (T.L. NAGENDRA BABU V/s. MANOHAR RAO PAWAR) the Hon'ble High Court held that "Suit for Declaration and Injunction requirement of evidence duty of the court Held unless the court is satisfied with regard to material details in the light of the material evidence with regard to the identification of the property, no Declaration and Injunction can be granted."
33. In another decision reported in ILR 2014 KAR 1311 (SUMITRA BAI V/s. SIDDESH & ANOTHER) the Hon'ble High Court held that " The identity of the property with specific boundaries and the place where this particular site is situated itself is not satisfactorily established by the Plaintiff. Therefore, the decree ought / 34 / O.S.No.6122/2013 not to have been granted by the First Appellate Court. Neither the First Appellate Court nor the Trial Court having fact meticulously gone into the fact that Plaintiff or the Defendant have not shown how the site No.56 had been divided into 56/1A, 1B and 1C with specific measurements." The said decisions are aptly applicable to the case in hand. In the above said circumstances, the plaintiff herein has failed to prove the identity of the suit property.
34. Plaintiff contented that land bearing survey No. 116 of Hongasandra has been converted from agriculture to non agriculture. In order to substantiate his contention plaintiff has not produced conversion order. In a decision reported in ILR 2006 KAR 4048 (JONH D' SOUZA SINCE DECEASED BY L.R.'S V/s. VIJAYA BANK & OTHERS) The Honble High Court of Karnataka held that "In the absence of conversion order, the claim that the / 35 / O.S.No.6122/2013 land has lost its agricultural character is liable to be rejected." the said decision is aptly applicable to the case in hand.
35. Besides the evidence of PW1 shows that the land in S.No.116 of Hongasandra is not converted for non agricultural purposes. There is no document to show that land bearing Sy.No.116 has been converted and suit schedule property has been carved in the said land. That before assigning Khata number corporation authority will issue special notice under the Karnataka Municipal Corporation Act. Plaintiff failed to produce such notice. There is no document to show that suit property is a part of Sy.No. 116 of Hongasaandra village. As discussed supra identity of the suit property is not established.
36. As per the provisions of Section 101 of the Indian Evidence Act, 1872, the onus of discharging this burden was squarely on the plaintiff. In the light of the / 36 / O.S.No.6122/2013 categorical pleadings in the written statement it was incumbent upon the plaintiff to demonstrate a specific case regarding the identity of the property. A perusal of the plaint pleadings would also reveal another key fact. In the light of the fact of the assertion of the defendant that the suit schedule property does not fall within Sy.No. 116, it became mandatory for the plaintiff to demonstrate the identity of the suit schedule property. The burden was on the plaintiff to demonstrate that the katha number referred to in Ex.P.7, in fact, relates to the Sy.No.116, which burden is not discharged by the plaintiff. There is variance in pleading, oral and documentary evidence as regards to structure. These are the inconsistencies which ought to have been explained by the plaintiff in order to enable the Court to arrive at the conclusion regarding the identity of the suit property. It is seen that despite these glaring inconsistencies, the plaintiff has failed to move an / 37 / O.S.No.6122/2013 application for for appointment of court commissioner for local inspection to ascertain the identity of the property.
37. The counsel for plaintiff argued that defendant is one of the signatory to the sale deed Ex.P.1, he denied his signature on the sale deed, but has not applied for sending the document to the FSL and also relied upon decision reported in ILR 2020 KAR 1741- Sri.S.Ramakrishna Vs. Sri.S.Appaiah and others, wherein the Hon'ble High Court of Karnataka held that : "The Court in order to ascertain whether the signature alleged is that of the person tp whom it purports to be, may compare the disputed signature and the admitted signature to testify itself regarding the authenticity of the signature." On perusal of said decision it reveals that it pertains to suit for partition, in which the parties have denied the registered partition deed, but, this is the suit for bare injunction. Plaintiff has to prove his lawful / 38 / O.S.No.6122/2013 possession over the suit schedule property as on the date of suit and the alleged obstruction, nothing ore than that. Hence, the above said decision will not come to the aid of plaintiff.
38. The plaintiff is claiming relief on the basis of sale deed. He has to prove his case on his own, he cannot proceed on the basis of weakness of other party. In a decision reported in (2011) 12 Supreme Court Cases 220 (Rangammal Vs. Kuppaswamy), it is clearly held that :
"Evidence Act 1872 - S.101 - Burden lies on plaintiff to prove his case on basis of material available - He cannot rely on weakness or absence of defence of defendant to discharge the onus. If plaintiff claims title to property, he must prove his title."
In this case also the plaintiff claims that he has purchased the suit schedule property and is in / 39 / O.S.No.6122/2013 possession. He has to prove the same. Hence, the above said decision is aptly applicable to the case in hand.
39. The counsel for plaintiff argued that one Rajeshwari has purchased suit schedule property from Gurumurthy Bhovi as per Ex.P.1 and her name has been mutated in the records as per Ex.P.2, subsequently the said Rajeshwari and her children alienated the property to the plaintiff as per Ex.P.3. Plaintiff has paid tax to the concerned authority as per Exs.P.4 and 5 and presently khatha is standing in the name of plaintiff as per Ex.P.7. The defendant is no way concerned with the suit schedule property, even then he is obstructing the plaintiff's possession over the suit schedule property. Hence, he prayed for decreeing the suit and also relied upon following decisions :
(1) AIR 2008 SC 2033 - Anathulla Sudhakar Vs. P.Buchi Reddy and others wherein the / 40 / O.S.No.6122/2013 Hon'ble Apex Court held that : (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will oral testimony 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 a finding thereon, it will not be possibel to decide the issue of possession."
(2) 2016 (1) AKR 107 in case of M.Venkatesh and others Vs. Commissioner, B.D.A. wherein the Hon'ble Supreme Court held that, " Specific Relief Act (47 of 1963), S.38 -
Injunction - Issued only to protect lawful possession of plaintiffs - Plaintiffs already dispossessed from suit property prior to filing suit - Cannot claim injunction."
(3) 2019 [2] Kar.L.R.558 - Rudrappa
/ 41 / O.S.No.6122/2013
S/o.Siddappa Vs. Prakash S/o.Halappa,
wherein the Hon'ble High Court of Karnataka held at para No.7 that, "The orders of the Courts cannot be made use for claiming the title without the enabling factors stated above. On the other hand, the title is to be proved before the Court. Thus, without establishing the valid possession by producing documents or the records issued by the competent authority, title or protection for possession cannot be assumed. The title may not be an integral part in a suit for permanent injunction. But, it does not just mean that the person can claim possession and permanent injunction only on the basis of his assertion and to use the decree in future as a source of title.
(4) 2019 SAR (Civil) 333 - Balakrishna Dattaraya Galande Vs., Balakrishna
Rambharose Gupta and another, in which the Hon'ble Apex Court held that : Specific Relief Act, 1963 - Sec.38 - permanent injunction - Grant or refusal In a suit filed / 42 / O.S.No.6122/2013 under Section 38 of the Specific Relief Act, permanent injunction can be granted only to a person who is in actual possession of the property - The burden of proof lies upon the first respondent - plaintiff to prove that he was in actual and physical possession of the property on the date of suit.
(5) 2020 (1) Kar.L.R.SN 18 (DB) - Sri.Anjinappa S/o.Sri.mariswamappa Since (Dead) by LRs Vs. The Special Deputy Commissioner, Bangalore District, Bangalore and others, wherein the Hon'ble High Court of Karnataka held that : "The mutation entries do not confer any title over the property."
(6) 2020(1) Kar.L.R 662 - Smt. Rangamma, Since Deceased by Her LR's Vs. Smt.Hanumakka and others, wherein the Hon'ble High Court of Karnataka held that :
"Lawful possession would be protected by injunction."
40. There is no dispute as regards to the ratio laid / 43 / O.S.No.6122/2013 down by the Hon'ble Apex Court and Hon'ble High Court of Karnataka in the aforesaid decisions relied by the counsel for plaintiff. As discussed supra, the plaintiff has to prove his lawful possession over the suit schedule property as on the date of suit, but in this case the plaintiff has utterly failed to prove his lawful possession over the suit schedule property as on the date of suit. Hence, the above said decisions will not come to the aid of plaintiff.
41. The counsel for plaintiff further argued that once land has been converted into nonagricultural purpose, it looses its agricultural character. It is true that once the land has been converted from agricultural to nonagricultural purpose, it looses its agricultural character, but plaintiff has failed to prove that the land bearing Sy.No.116 of Hongasandra Village has been converted from agricultural to nonagricultural.
/ 44 / O.S.No.6122/2013
42. Though plaintiff contended that while
purchasing the property he had verified the documents pertaining to the title deeds, but he has not produced said documents before the Court to establish that his vendor's vendor - Gururmurthy Bhovi had right, title or interest over the property. The plaintiff has failed to establish that he had right and possession over the suit schedule property. As on the date of alleged sale deed i.e., Ex.P.3 the vendor of the plaintiff had no right over the suit schedule property and hence, on the basis of Ex.P.3 - sale deed plaintiff has not acquired any right, title or interest over the suit schedule property. Except Exs.P.1 to P.7, the plaintiff has not placed any cogent and convincing evidence to establish that he was in physical possession and enjoyment over the suit schedule property. Though plaintiff produced voluminous documents, but none of the documents establish that the plaintiff was in possession of / 45 / O.S.No.6122/2013 the suit schedule property as on the date of suit. The plaintiff has utterly failed to prove that he has been in lawful possession of the suit schedule property on the strength of the sale deed - Ex.P.3. That, Section 38 of Specific Relief Act is a provision indicating the circumstances under which permanent injunction can be granted. The provision only enables the Court to grant the relief of this nature if the plaintiff is able to establish the durable possession to the property as on the date of filing the suit. In this case, plaintiff in fact has not established the lawful possession over suit schedule property. It is well settled law that the relief of permanent injunction cannot be granted by mere asking, but only when there is necessary pleadings and supporting oral and documentary evidence, then only Court can grant such relief.
/ 46 / O.S.No.6122/2013
43. Besides, the burden is upon the plaintiff to prove his lawful possession over the suit schedule properties. In order to prove his possession plaintiff has not examined the neighbourers of the suit schedule property and even not made any efforts for appointment of surveyor in order to ascertain the location and identity of the suit schedule property. The nonexamination of neighbouring property owners, nonproduction of earlier title deeds standing in the name of Gurumurthy Bhovi are fatal to the case of the plaintiff. Hence, as per Section 114(g) of Indian Evidence Act, an adverse inference is drawn against the plaintiff.
44. The aforesaid facts and circumstances would indicate that having regard to the undisputed materials on record and series of events that occurred prior to filing of the suit, it was incumbent upon the plaintiff to file a comprehensive suit for declaration, possession and / 47 / O.S.No.6122/2013 injunction, etc., and not a simple suit for permanent injunction, which is not maintainable in the face of Section 41(h) of the Specific Relief Act, 1963.
45. The suit for permanent injunction simpliciter when there is a cloud on the title as well as the identity of the property is clearly not maintainable. My view is supported by the Judgment of the Hon'ble Apex Court reported in AIR 2008 Supreme Court 2033 - Anathula Sudhakar Vs. P.Buchi Reddy (Dead) by L.Rs and others, wherein the Hon'ble Apex Court at para No.14 clearly held that :
"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 / 48 / O.S.No.6122/2013 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 examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the Court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where Court feels that parties had not proceeded on the basis that title was at issue, the Court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a fullfledged suit for declaration and consequential reliefs."
46. Here in the instant case also the defendant has denied the title of the plaintiff over the suit schedule property. The mode of acquiring the title by the defendant is valid or not is a different aspect, the same cannot be / 49 / O.S.No.6122/2013 adjudicated as this is a suit for bare injunction. When the title is seriously disputed, it is the duty of the plaintiff to seek declaration, thereby the captioned Judgment referred is squarely applicable to the facts of the case.
47. In another decision reported in 2020 (3) KCCR 1718 [Smt. Rathnamma Vs. Mrs.Zeenathunisa since deceased by Lrs], wherein the Hon'ble High Court of Karnataka held that, " Specific Relief Act, 1963 - Section 34 - permanent injunction on the ground the plaintiff is in possession - Possession not proved - Injunction cannot be granted." The said decision is aptly applicable to the case in hand.
48. The plaintiff has utterly failed to prove his possession over the suit schedule property. As discussed above, the plaintiff is not at all in possession over the suit schedule property. The plaintiff miserably failed to prove Issue No.1. Hence, I answer Issue No.1 in the negative.
/ 50 / O.S.No.6122/2013
49. Issue No.2 : The plaintiff has also not established that there was any unlawful interference in his alleged possession of suit schedule property. Besides, plaintiff utterly failed to establish his lawful possession and enjoyment over the suit schedule property as on the date of suit. Hence, the question of alleged interference by the defendant does not arise. Accordingly, I answer Issue No.2 in the negative.
50. Issue No.3 : The plaintiff has utterly failed to prove his lawful possession and enjoyment over the suit schedule property. Hence, he is not entitled for any relief. Accordingly, I answer Issue No.3 in the negative.
51. Issue No.4 : For the foregoing reasons, I proceed to pass the following :
ORDER The suit of the plaintiff is hereby dismissed with costs.
/ 51 / O.S.No.6122/2013 Draw decree accordingly.
(Dictated to the Judgment Writer, typed directly on computer, script corrected, signed and then pronounced by me in the open Court on this the 19th day of February, 2021.) (KHADARSAB) XXXIX Additional City Civil & Sessions Judge, Bangalore City.
*** ANNEXURE
1. List of witnesses examined for plaintiff :
P.W.1 : Chethan Bharath
2. List of documents exhibited for plaintiff :
Ex.P.1 Original Sale Deed dated 2.9.1994.
Ex.P.2 Assessment Extract issued by Madivala
Panchayath for the year 199495
Ex.P.3 Original Sale Deed dated 15.6.1998
Ex.P.4 9 Tax Paid Receipts
Ex.P.5 4 Acknowledgements.
Ex.P.6 3 Encumbrance Certificates
Ex.P.7 Extract issued by BBMP dated 27.9.13.
3. List of witnesses examined for the defendant:
D.W.1 : Gopala G. / 52 / O.S.No.6122/2013
4. List of documents exhibited by the defendant: Ex.D.1 : C/c of GPA dated 20.1.2021 executed by defendant Ex.D.2 : C/c of Grant Order dated 18.1.1982 Ex.D.3 to 10 : C/c of RTCs in respect of Sy.No.116 of Hongasandra.
Ex.D.11 : 6 electricity bills.
Ex.D.12 to D.17 : 6 photographs.
Ex.D.18 : C.D. in respect of Ex.D.12 to 17 Ex.D.19 : Receipt dated 12.1.2021 by R.K.Labs, Bengaluru.
Ex.D.20 to D.23 : C/c of plaint, Order Sheet, Order on I.A.No.1 and 2 and I.A.No.4 Filed under Order I R.10(2) r/w/s 151 of C.P.C. in O.S.No.9274/2018 on the file of CCH11 Ex.D.24 : Copy of the 2 applications dated 28.12.2020 submitted to Revenue Officer, BBMP, Bommanahalli.
Ex.D.25 : 2 Endorsements dated 29.1.21 issued by ARO, BBMP, Bommanahalli.
(KHADARSAB), XXXIX Additional City Civil & Sessions Judge, Bangalore City.
***
/ 53 / O.S.No.6122/2013
19/02/2021
Judgment pronounced in the open
Court (Vide separate Judgment) :
ORDER
The suit of the plaintiff is hereby
dismissed with costs.
Draw decree accordingly.
(KHADARSAB)
XXXIX A.C.C.& S. Judge,
Bangalore City.