Bangalore District Court
In vs In on 5 January, 2015
IN THE COURT OF XXXIX ADDITIONAL CITY CIVIL JUDGE,
BANGALORE
Dated on this the 5th day of January 2015
Present: Sri. R.B. Garasangi, B.A. LL.B [Spl],
XXXIX Additional City Civil & Judge,
Bangalore City.
ORIGINAL SUIT NO.4200/2012 C/W 4531/2008
Plaintiff in
O.S.No.4200/08: Smt. Meenakshi,
W/o S. Rajarathnachar,
Aged about 60 years,
Residing at No.30, 4th Main Road,
N R Colony, Bangalore 560 019.
[By Sri. B.V.M., Advocate]
V/s
Defendants in
O.S.No.4200/08: 1. Smt. Geethanjali
W/o R M Krishnakumar,
Aged about 44 years,
Residing at No.119, 7th Main Road,
2nd "A" Cross, Nagendra Block,
Banashankari 3rd Stage,
Bangalore- 50
2. Muniraju K
S/o Kodappa,
Aged about 54 years,
Residing at No.59/30,
4th Cross, 1st Phase,
Srinivasanagara,
Banashankari 3rd Stage,
Bangalore - 560 085.
[By Sri. B.J.M., Advocate
D2: Deleted]
2 Original Suit 4200/08 & 4531/08
Plaintiffs in
O.S.No.4531/08: 1. Smt. R K Geethanjali
W/o Late R M Krishnakumar,
Aged about 44 years,
2. R K Harikrishna
S/o Late R M Krishnakumar,
Aged about 20 years,
3. R K Lokesh Kumar
S/o Late R M Krishnakumar,
Aged about 14 years,
Since minor represented by
Natural guardian mother
Smt. R K Geethanjali
All are residing at
No.119, 7th Main Road,
2nd "A" Cross, Nagendra Block,
Banashankari 3rd Stage,
Bangalore- 50
[By Sri. B.J.M., Advocate]
V/s
Defendants in
O.S.No.4531/08: Smt. Meenakshi,
W/o S. Rajarathnachar,
Aged about 60 years,
Residing at No.30, 4th Main Road,
N R Colony,
Bangalore 560 019.
[By Sri. B.M.V., Advocate]
Date of Institution of the suit in
O.S.No.4200/08 and 4531/08 : 28.06.2008 and 09.07.2008
respectively:
Nature of suit in abovesaid suits : Suit for permanent injunction
Date of commencement of
: 17.09.2012 and 25.06.2012
evidence in both suits
Date on which the judgment is
: 05.01.2015
pronounced
3 Original Suit 4200/08 & 4531/08
Years Months Days
Duration taken for disposal :
06 05 08
(R.B. Garasangi)
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
COMMON JUDGMENT
The above said two suits are clubbed as per Order dated
01.10.2011.
In O.S.No.4200/08, the plaintiff has filed this suit seeking for the
relief of perpetual injunction against the defendants in respect of suit
schedule property, restraining the defendants from interfering with the
peaceful possession and enjoyment of the suit schedule property by the
plaintiff and requested for decreeing the suit as prayed by her.
In O.S.No.4531/08, the plaintiffs no.1 to 3 have filed this suit for the
relief of permanent injunction against the defendant in respect of their suit
schedule property restraining the defendant from interfering with the
peaceful possession and enjoyment of the suit schedule property by the
plaintiffs and requested for decreeing the suit as prayed by them.
2. The brief averments of the plaint in O.S.No.4200/08 are as
under:-
4 Original Suit 4200/08 & 4531/08
The plaintiff has contended that she is the absolute owner of
the site bearing No.60, formed out of Sy.No.10, situated at Kattariguppe
Village, Uttarahalli Hobli, Bangalore South Taluk, Bangalore measuring
East to West 60 ft., and North to South 40 ft., measuring totally 2400 sq.
ft. Together, with a 15 x 10 ft., AC sheet roofed shed West facing door
and 40 x 10 ft. AC sheet roofed shed East facing door with all civic
amenities. The plaintiff has acquired the schedule property from one K M
Upadyaya through a regd. Sale deed dated 18.7.1968. The plaintiff
further contended that the vendor of the plaintiff acquired the said property
from his erstwhile owner one Sri. Narasingarao, through a regd. Sale deed
dated 09.05.1968 which was registered in the office of Sub-Registrar,
Basavanagudi, Bangalore. The plaintiff further contended that said
NarasingaRao had acquired the same from Byrappa, Jogappa,
Chickajogappa and Hanumaiah the sons of one Late Muninanjaiah
through regd. Sale deed dated 27.8.1963. Since from the date of
purchase, plaintiff is in peaceful possession and enjoyment of suit
schedule property. On 13.5.2008, surprising to the plaintiff, the
defendants appeared near the suit schedule property and handed over the
copies of the regd. Sale deeds dated 24.6.1968, 10.3.1977 and
01.12.2000 said to have been executed by the original owner of the land
i.e., S Narasingarao and demanded the plaintiff to vacate the schedule
premises and immediately, the plaintiff has tried to get the certified copies
of all such sale deeds. On perusal of the Deeds which have been
5 Original Suit 4200/08 & 4531/08
executed in favour of 1st defendant, the plaintiff came to know some of the
material facts from which and same are as follows. The plaintiff submits
that the sale deed dated 24.6.1968 clearly shows that it is pertaining to the
Site bearing No.59 and the boundalries are also very clear that East by
Site No.60, West by Road, North by Road and South by Site No.52. The
next sale deed dated 10.3.1977 also contains the same site No.59 and
same boundaries and thereafter, the vendors of the 1st defendant i.e., 2nd
defendant and others, the L.Rs of one Kondappa have executed the sale
deed in favour of 1st defendant on 1.12.2000 and wherein, the boundaries
of the said site bearing No.59 has become changed that East by Roiad,
West by property belongs to Thimmanna, North by Site No.60 and South
by Site No.44. Now, this has to be carefully considered by this Court. So,
the defendants have no right, title and interest over the suit schedule
property and they are intending to interfere with the peaceful possession
of suit property of plaintiff on 21.6.2008 at about 11a.m. The said date is
the rising of cause of action for the plaintiff to file the present suit with the
above prayer and requested for decreeing the same.
3. In response to the court process, the defendant no.1 appeared
and filed written statement, contending that the suit of the plaintiff is not
maintainable either in law or on facts and same is liable to be dismissed in
limine. She has further contended that the plaintiff has to prove that she is
the absolute owner and in possession of Site No.60 formed out of Sy.
6 Original Suit 4200/08 & 4531/08
No.10 situated at Kattriguppe Village, Uttarahalli Hobli, Bangalore South
Taluk measuring East to West 60 ft., and North to South 40 ft., and
measuring totally 2400 sq.ft. are all denied as false and plaintiff is put to
strict proof of the same. The averments made by the plaintiff in
paragraphs no. 4, 5, 6, 7, 8, 9, 10 and 11 of the plaint are denied by this
defendant. The defendant has submitted the true facts as under, i.e., the
defendant no.1 humbly submitted that she along with her children are the
absolute owners in possession of the immovable property bearing
No.59/30 situated at 4th Cross, Srinivasa Nagar, Banashankari 3rd stage,
Bangalore - 85 measuring East to West 60 ft., North to South 40 ft., which
is more fully described as 'Written Statement Schedule Property' herein.
She further submits that one Sri.K.Muniraju was the erstwhile owner of the
suit schedule property having inherited the same after the death of his
mother Smt. Hanumakka who had purchased the same vide sale deed
dated 06.06.1977 which is registered in the office of Sub-Registrar,
Basavanagudi as Document No.1093/1977-78. That Sri. K. Muniraju
along with his wife and children have sold the suit schedule property in
favour of the defendant and his children vide absolute sale deed dated
1.12.2000. Further, she has contended that the suit schedule property
being a revenue site was carved out in Sy.No.11 of Katriguppe village and
later on was included within the jurisdiction of Bangalore City Corporation
and presently in Ward no.54. Said Sri. K Muniraju had constructed a
residential house in the suit schedule property measuring 600 sq.ft built up
7 Original Suit 4200/08 & 4531/08
area. Further, the amenities like water and electricity were provided by
the BWSSB and KPTCL to the suit schedule property. Said Sri. K
Muniraju had got khatha of the property in his name having paid the
requisite taxes to the BMP and he has got all the revenue documents in
his favour. Further, defendant has contended that since the date of
execution of sale deed in their favour, defendants are in peaceful
possession and enjoyment of the suit schedule property. The defendant
has let out suit schedule property to their tenant by name, one Sri. N.
Muniswamy on monthly rent as per the lease agreement dated 1.8.2006
and the said tenant is in peaceful possession over the schedule property.
Further, the defendant has contended that the plaintiff herein is claiming to
be the owner of site bearing No.60 formed out of Sy.No.10 of Kathriguppe
village has tried to illegally interfere with the peacedful possession and
enjoyment of this defendant over the written statement schedule property
alleging that the same itself is the site bearing No.60, said to have
purchased by her. It is submitted that the said site no.60 is nothing to do
with this schedule property and in fact, the suit schedule property is
formed in Sy.No.11, whereas the plaintiff's alleged property bearing Site
no.60 is said to have formed in Sy.No.10. The plaintiff though claims to
have purchased the site no.60 in the year 1968, he is said to have made
representation to the concerned office of the BMP for transfer of khatha in
her name only in the month of April 2007, for which the defendant has
submitted their representation to the concerned Revenue authority.
8 Original Suit 4200/08 & 4531/08
Further, the defendant has taken contention that she is a widow staying
with her young children. The plaintiff is having money as well as political
power. The plaintiff under the guise of being owner of site no.60 is trying
to dispossess the defendant from the written statement schedule property.
Further, she has contended that the suit of the plaintiff is not maintainable
due to non-joinder of necessary parties and also that the Court fee paid by
the plaintiff is not sufficient. Hence, she requested for dismissal of the suit.
4. The brief averments of the plaint in O.S.No.4200/08 are as
under:-
The plaintiffs 1 to 3 have filed this suit for the relief of permanent
injunction against the defendant wherein, they have contended that the
plaintiffs are the absolute owners in possession of immovable property
bearing site no.59/30 situated at 4th Cross, Srinivasa Nagar, Banashankari
III Stage, Bangalore - 85, measuring East to West 60 ft., North to South
40 ft., which is more fully described as schedule property in their plaint.
They have submitted that one Sri. K Muniraju was the erstwhile owner of
the suit schedule property having inherited the same after the death of his
mother Smt. Hanumakka who had purchased the same vide sale deed
dated 06.06.1977 which is registered in the office of Sub-Registrar,
Basavanagudi as Document No.1093/1977-78. That Sri. K. Muniraju
along with his wife and children have sold the suit schedule property in
favour of the plaintiffs and his children vide absolute sale deed dated
1.12.2000, which is registered in the office of Sub-Registrar, Kengeri vide
9 Original Suit 4200/08 & 4531/08
Document. No.8065/2000-2001. Further, the plaintiffs have contended
that earlier the suit property being a revenue site was carved out in
Sy.No.11 of Katriguppe village and later on was included within the
jurisdiction of B.C.C. and presently in Ward No.54. Said Sri. K.Muniraju
had constructed a residential house in the suit schedule property
measuring 600 sq.ft. built up area. Further, all the amenities, i.e., water
and electricity supply were supplied by B.W.S.S.B and KPTCL to the suit
schedule property. The said K. Muniraju had got khatha of the property in
his name having paid the requisite taxes to the BMP and he has also paid
water charges and electricity charges and also all the revenue records are
standing in the name of the plaintiffs. One tenant by name,
Sri.N.Muniswamy is staying in the suit schedule property under the lease
deed dated 01.08.2006. The plaintiffs have got right, title and interest
over the suit schedule property and are in possession of the same since
past 8 years and contended that they are the absolute owners of site
No.60 carved out of Sy.No.10 of Kathriguppe village. Further, they have
contended that defendant though claims to have purchased the site no.60
in the year 1968, is said to have made a representation to the concerned
office of BMP for transfer of khatha in their name only in the month of April
2007, for which, the plaintiffs have submitted their representation to the
concerned revenue officer along with all the requisite documents,
appraising about their ownership and rightful possession. The plaintiff
no.1 is a widow and 2nd and 3rd plaintiffs are being sons are still studying.
10 Original Suit 4200/08 & 4531/08
The defendant is having money power as well as political power. So, the
plaintiffs have filed present suit on the basis of cause of action arose on
30.6.2008 and on 2.7.2008 against the defendant and requested for
decreeing the same.
5. In response to the Court process, the defendant appeared and
filed detailed written statement, contending that suit of the plaintiff is not
maintainable either in law or on facts and same is liable to be dismissed in
limine. Further, defendant has denied the contents of plaints at
paragraphs no.3, 4, 5, 6, 7, 8 and 9. Further, she has contended that suit
is liable to be dismissed as there is no cause of action to file the suit
against the defendant. Further, defendant has submitted true facts that
she is the absolute owner of Site No.60, formed out of Sy.No.10, situated
in Katriguppe village, Uttarahalli Hobli, Bangalore South Taluk, Bangalore,
measuring East to West 60 ft., and North to South 40 ft., and measuring
totally 2400 sq.ft. She further contended that she has acquired the
schedule property from one K M Upadyaya under regd. Sale deed dated
18.7.1968 registered as document no.1847/1969-70. The said erstwhile
owner of plaintiff got purchased the suit property from one, Narasinga
Rao and said Narasinga Rao has acquired title and interest from Byrappa,
Jogappa, Chickajogappa and Hanumaiah, the sons of Late Muninanjaiah
through regd. Sale deed dated 27.8.1963. Further, she has taken
contention that from the date of purchase, the plaintiff is in peaceful
11 Original Suit 4200/08 & 4531/08
possession and enjoyment of suit property. Further, she has contended
that he has filed suit bearing No. 4200/2008 against the plaintiffs and
obtained temporary injunction against this plaintiff in the said suit. So, she
has contended that she is the absolute owner in peaceful possession of
Site No.60 in Sy.No.10 of Kathriguppe village and hence, she has
requested for decreeing the suit bearing No.4200/2008 and dismissal of
the suit filed by plaintiffs in O.S.No.4531/08.
6. In view of the above pleadings of the parties, the following
issues have been framed by this Court:-
Issues In O.S.No.4200/08:
1) Whether the plaintiff proves that, she is in lawful
possession and enjoyment of the suit schedule
property on the date of instituting the suit?
2) Whether the plaintiff proves the interference of the
defendants?
3) Whether the plaintiff is entitled for permanent
injunction as prayed?
4) What order or decree?
Issues In O.S.No.4531/08:
1) Whether the plaintiffs prove that they are in lawful
possession and enjoyment of the suit schedule
property on the date of instituting the suit?
2) Whether the plaintiffs prove the interference of the
defendant?
12 Original Suit 4200/08 & 4531/08
3) Are the plaintiffs entitled for permanent injunction
as prayed?
4) What order or decree?
7. In order to prove the above issues, in O.S. No.4200/08, SPA
holder of plaintiff got herself examined as P.W.1 by filing an evidence
affidavit and got marked Ex.P.1 to Ex.P.15(a). The defendant's evidence
was not led. But, in O.S.No.4531/08, plaintiff/defendant in O.S.4200/08
was examined as P.W.1 and got marked Ex.P1 to P18 and closed their
side. Then SPA holder defendant/plaintiff in O.S. No.4200/08 was
examined as D.W.1 and got marked Ex.D1 to D 15(a) and closed her
evidence.
8. Heard the arguments. Perused the records.
9. My findings on the above issues are as follows:
Issues in O.S.No.4200/08: In the Negative;
Issues in O.S.No.4531/08: In the Affirmative;
Issues No.4 in both cases: - As per final order, for the
following:-
REASONS
10. ISSUES 1 TO 3 IN BOTH SUITS: All these issues are
interrelated, hence, they are taken together for common discussion.
11. Now, it is very necessary to consider that the plaintiff in
O.S.No.4200/08 has claimed the suit property bearing Site No.60 formed
13 Original Suit 4200/08 & 4531/08
out in Sy.No. 10 of Kattriguppe Village, Uttarahalli Hobli, Bangalore South
Taluk, Bangalore measuring East to West 60 ft., and North to South 40 ft.,
admeasuring totally 2400 sq.ft., and bounded on the East by Road, West
of Site bearing No.59, North by Road and South by Site No.51 belongs to
K. Ramachandraiah.
12. In O.S.4531/08, the plaintiffs have claimed Site No.59/30
situated at 4th Cross, Srinivasa Nagar, Banashankari 3rd Stage, Bangalore
- 85 measuring East to West 60 ft., North to South 40 ft., and bounded on
the East by Road, West by Thimmanna's property, North by Property
No.60 and South by property No.44.
13. Now, this Court has to give reasoning, as to whether who is in
peaceful possession and enjoyment of Site No.60 as well as Site No.59/30
by going through the oral and documentary evidence. In O.S. No.
4200/08 SPA holder of plaintiff got herself examined as P.W.1 by filing an
evidence affidavit. The contents of evidence affidavit are nothing but the
replica of plaint averments. She has produced Special Power of Attorney
as Ex.P1, the Sale Deed dated 18.7.1969 is marked as Ex.P2, Two
encumbrance certificates are marked at Ex.P3 and P4, Copy of sale deed
dated 9.5.1968 is marked as Ex.P5, Certified copy of Sale Deed dated
27.8.1962 is marked as Ex.P6, Two Encumbrance certificates are marked
at Ex.P7, another copy of Sale Deed dated 14.11.1958 is marked at
Ex.P8, Certified copy of the sale deed dated 10.3.1977 is marked at
14 Original Suit 4200/08 & 4531/08
Ex.P9, Certified copy of Sale Deed dated 1.12.2000 is marked at Ex.P10,
Certified copy of sale deed dated 4.6.1973 is marked as Ex.P11,
Endorsement given by the BBMP is marked as Ex.P12, Copy of
application filed under RTI Act is marked as Ex.P13, Copy of Complaint
filed by his wife is marked as Ex.P14, copy of regd. Sale deed dated
18.4.1868 is marked as Ex.P15 and typed copy of sale deed is marked as
Ex.P15(a). Typed copy of sale deed dated 27.8.1962 and typed copy of
sale deed dated 24.6.1968 and another typed copy of sale deed dated
18.7.1969 and another typed copy of sale deed dated 1.3.1997 and one
more typed copy of sale deed dated 9.5.1968.
14. On these documents, plaintiff Smt. Meenakshi has claimed that
she is in peaceful possession and enjoyment of suit property, i.e., Site
No.60 formed out of Sy.No.10 of Kattriguppe village. Now, it is very
necessary to consider the cross examination of this witness dated
21.2.2013, which reads as follows:-
"My wife has filed present suit. I myself given
instructions to my counsel to file present suit. My wife
had no knowledge about this suit and also documents
produced in this suit. At the time of purchase of suit
schedule property it was vacant land and there were no
construction either in suit property or in neighbouring
lands. Rough sketch was given by my vendor in respect
of suit property. There were no boundaries over the suit
15 Original Suit 4200/08 & 4531/08
property at that time. It is true that I identified the
property which was purchased by my wife on the basis
of rough sketch given by my vendor. There was no
survey carried by me at the time of purchase even after
that till this day. I was at Halsoor at the time of
purchase of suit property. I had gone to see the suit
property before filing the suit. It is true that there are 2
roads towards east and north of my site. The same is
not existing today. Witness volunteers that, there is
road towards east of my site. The land owner Narasinga
Rao sold the property in favour of Pushpalatha situated
towards north of my site by giving sub numbers 16/1. I
have not produced any photos in respect of my
property. There was no creation of khatha from 1998 to
2007 as suit property was in revenue land. I had gone
through the documents produced by Geethanjali being
plaintiff in O.S.No.4531/2008. I also seen photos
produced by plaintiff Geethanjali in the above said suit.
Now I see photographs marked at Ex.P.9 and Ex.P.9(a)
are in respect of site owned by Geethanjali in O.S.
4531/08. (who is defendant in this case) It is true to
suggest that there is no link between my site and site of
Geethanjali. It is true that I am not in possession of site
of Geethanjali. Witness volunteers that, there was
construction of a shed in site No.60. I have not
produced any document about taking telephone, water
and electricity connections to my property before this
Court. It is not true to suggest that, I have not
constructed any shed with all amenities. It is not true to
suggest that there is no existence of site No.60 as
16 Original Suit 4200/08 & 4531/08
contended by me. Witness volunteers that, there is
existence of site No.60 but not existence of site No.59. It
is true that the tenant of Geethanjali is residing in site
No.59. It is not true to suggest that I have filed present
false suit claiming site No.59 as site No.60."
Already this Court has referred the documents produced by the plaintiff of
this suit.
15. Now, it is very necessary to consider evidence lead by plaintiff
in O.S.No.4531/08 to prove the burden of proof of issues framed. In order
to prove the same, plaintiff of that suit got herself examined as P.W.1 and
got marked Ex.P1 to P18. She has produced documents like regd. Sale
deed dated 10.3.1977 as Ex.P1, another sale deed dated 1.2.2000 is
marked as Ex.P2, Nil encumbrance certificates in three in numbers are
marked at Ex.P3 and Khata certificate issued by BMP is marked at Ex.P4.
Acknowledgement letter is marked at Ex.P5, Khata extract issued by
BBMP for the year 1996-2000 is marked at Ex.P6, and another khata
extract issued by BMP is marked at Ex.P7. Two taxes paid receipts are
marked at Ex.P8. Two photos with negatives are marked at Ex.P9 &
Ex.P9(a). Lease deed dt. 1-8-06 is marked at Ex.P10. Copy of complaint
is marked at Ex.P11. Acknowledgement is marked at Ex.P12.
Acknowledgement by BMP is marked at Ex.P13. Bill by KEB is marked at
Ex.P14. Electricity bill is marked at Ex.P15. Water bill is marked at
17 Original Suit 4200/08 & 4531/08
Ex.P16 and receipt in respect of water is marked at Ex.P17. Sketch in two
pages is marked at Ex.P18.
16. Now it is necessary to consider cross examination
dated30.8.2012, which reads as under:
"Now I see Ex.P.2-sale deed in respect of house
property executed in my favour. The said house
bounded East by Road, West by Property of
Thimmanna, North by Property No.60 and South by
Property No.44. The measurement of said house
property East to West is 60 feet and North to South 40
feet. Now I see Ex.P.1 which is sale deed of my Vendor.
It is not true to suggest that, the measurement of our
house East to West is about 40 feet and North to South
60 feet. I don't know the measurement of constructed
house. The site No.59/30 comes in survey No.11. It is
not true to suggest that, there is no correct
measurement in respect of my site, even then I have
filed false suit against the defendant. I have not
produced layout map to show that site No.59/30 comes
in survey No.11. It is not true to suggest that, the
eastern boundary of site no.59/30 is site No.60 as per
the layout map. My Vendor got the suit property from
one Hanumakka. I am unable to identify the sale deed
which is executed in favour of Hanumakka from one
Narasamma and Narasingha Rao but, the said
Hanumakka purchased the property in the year 1968. It
is true that the western boundary of site No.59/30 is
18 Original Suit 4200/08 & 4531/08
shown as 'Road' in the said sale deed. It is not true to
suggest that, the suit filed by me is not in respect of site
No.59/30 but, the site bearing No.60 which comes in
survey No.10 claimed by me. It is not true to suggest
that, I am not in possession of suit site. It is not true to
suggest that, there is no house is in existence in the suit
site and presently it is a vacant site. It is not true to
suggest that, there is a difference in respect of
boundaries of property which was purchased by me
from Hanumakka and the boundaries which are
mentioned by me at present in respect of suit property.
I have not produced documents pertaining to owners of
site surrounding to my site. It is true that there is no
link in between site No.59/30 and site No.60. It is true
that the documents which are produced by me are
pertaining to site No.59/30. Now I see lease deed
marked at Ex.P.10 wherein, there are 9 overwritings in
respect of contents of said deed at 1st page. It is true
that there is no mentioning of measurement in said
lease deed. It is not true to suggest that, I created
Ex.P.10-lease deed for the purpose of this case. It is not
true to suggest that, I purchased site No.59/30 and
interfering in site No.60 owned by defendant with an
intention to harass the defendant. It is not true to
suggest that, there is no interference caused by
defendant to my possession in any manner, eventhen I
have filed false suit against the defendant. I have not
filed any police complaint in respect of interference
caused by defendant in my possession."
19 Original Suit 4200/08 & 4531/08
Even it is also necessary to consider the cross examination of this witness
on 5.9.2012 which reads as follows:-
"It is true that earlier to this suit, the defendant
has filed O.S.No.4200/08 same is pending before this
Court. It is not true to suggest that, this Court has grant
Temporary Injunction order in favour of plaintiff of that
suit and defendant in the present suit. It is true that
after taking notice in the said suit, I have filed present
suit. It is not true to suggest that, the suit property
which is claimed by me in this suit is not at all in
existence. It is not true to suggest that, the boundaries
which are mentioned in sale deed in my favour and
present boundary mentioned in schedule are totally
different so, there is no existence of property which is
described and claimed by me. It is not true to suggest
that, I am not in possession of suit property even then I
have filed false with on the basis of created and
fabricated documents. Now we are not residing in the
suit property and the suit property is given on rent."
17. It is well settled principles of law, when the suit is filed for the
relief of perpetual injunction, this Court has to consider only two points,
one is physical possession of the property and another one is alleged
interference. Deciding of title to the suit property is not mandatory but it is
incidental one. In the present suit, on going through the documents
produced in O.S.No.4200/08, they are sale deeds produced by the
20 Original Suit 4200/08 & 4531/08
plaintiff. But, as per the decision of our Hon'ble High Court reported in ILR
2014 Kar. 4716 at Hon'ble Dharwad Bench.There should be a requirement
after supportive documents of possession. There is no such documents
are forthcoming in O.S.No.4200/08. But in O.S.No.4531/08, there are
supportive documents which are marked i.e., Khatha certificate issued by
BBMP marked at Ex.P4 and acknowledgement letter is marked at Ex.P5,
Khatha extract issued by BBMP for the year 1996-2000 marked at Ex.P6,
another khatha extract marked at Ex.P7 and two photos with negatives
are marked at Ex.P9and P9(a), copy of lease deed dated 1.8.2006
marked at Ex.P10, Copy of complaint marked at Ex.P11,
Acknowledgement marked at Ex.P12, Acknowledgement by BMP marked
at Ex.P13, Bill by KEB marked at Ex.P14, Electricity bill marked at
Ex.P15, Water bill is marked at Ex.P16 and receipt in respect of water is
marked at Ex.P17 and Sketch in two pages is marked at Ex.P18. These
are the supportive documents to come to the conclusion that plaintiff in
O.S.No.4531/08 is in peaceful possession of suit property as on the date
of suit. So, the plaintiffs in O.S.No.4531/08 have successfully proved
issue no.1 in respect of peaceful possession over the suit property as on
the date of suit. Further more, the plaintiffs have also proved the
interference caused by the defendant Smt. Meenakshi as it is evident by
the copy of complaint marked at Ex.P11 and acknowledgement is marked
at Ex.P12 about the complaint. Further more, in the cross examination of
P.W.1 in O.S.No.4200/08, wherein, the P.W.1 has admitted about
21 Original Suit 4200/08 & 4531/08
possession of the plaintiff over the suit property. It is true that tenant of
Smt. Geethanjali is residing in Site No.59. So, Smt. Geethanjali has
produced supportive documents in this case instead of plaintiff in O.S. No.
4200/08. Even the plaintiff in O.S.No.4200/08 has not produced any
Layout Map to come to the conclusion about existence of Site No.60
which is claimed by Smt. Meenakshi in O.S.No.4200/08. So, on perusal of
the documents as well as oral evidence which is referred above, it is
crystal clear that plaintiffs no.1 to 3 in O.S.No.4531/08 are in peaceful
possession and enjoyment of suit property as on the date of suit by going
through the documents. But, the plaintiff in O.S.No.4200/08 has failed to
prove her peaceful possession over the suit property i.e., Site No.60,
because, she has not produced any Layout Map to come to the conclusion
about the existence of Site No.60. Further more, she has also not
produced any supportive documents except sale deeds. When there is
cloud about title of suit property, at that time, filing of suit for bare
injunction is not maintainable in view of decision of Hon'ble Supreme
Court reported in AIR 2008 SC 2033 (in between Antule Sudhakara Vs.
P.Bucchi Reddy since dead by L.Rs and others), wherein, the Hon'ble
Supreme Court had given circumstances when the plaintiff has to sought
declaratory relief in respect of property. So, the suit filed by plaintiff in
O.S.No.4200/08 is not maintainable without declaratory relief. Hence, I
answer the issues framed in O.S. No.4200/08 in the negative and issues
framed in O.S.No.4531/08 in the affirmative.
22 Original Suit 4200/08 & 4531/08
18. ISSUE NO.4 IN BOTH SUITS: In view of the findings on the
above Issues, I proceed to pass the following:-
ORDER
O.S.No.4200/2008:
The suit filed by the plaintiff in O.S.No.4200/08 is hereby dismissed.
The parties should bear their own costs. Draw decree accordingly.
O.S.No.4531/2008:
The suit filed by the plaintiffs in O.S.No.4531/08 is hereby decreed against the defendant restraining her permanently from causing interference with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property in any manner.
The parties should bear their own costs. Draw decree accordingly.
(Dictated to the Stenogrpaher, transcribed by her, corrected by me and then pronounced in the open court, this the 5th day of January 2015) (R.B. Garasangi) XXXIX Additional City Civil & Sessions Judge, Bangalore City.
ANNEXURE:-
23 Original Suit 4200/08 & 4531/08
1. List of witnesses examined for plaintiffs:
P.W.1 in O.S.4200/08 : Sri. S. Rajarathnachar P.W.1 in O.S.No.4531/08 : Sri. R.K. Geethanjali
2. List of documents exhibited for plaintiff:
In O.S.No.4200/08:
Ex.P.1 : Special Power of Attorney Ex.P.2 : Sale Deed dated 18.7.1969 Ex.P.3 & P4 : Two Encumbrance certificates Ex.P.5 : Copy of Sale deed dated 9.5.1968 Ex.P.6 : Certified copy of sale deed dt.27.8.1962 Ex.P.7 : Two Encumbrance certificates Ex.P.8 : Copy of Sale deed dated 14.11.1958 Ex.P.9 : Certified copy of sale deed dt.10.3.1977 Ex.P.10 : Certified copy of sale deed dt.1.12.2000 Ex.P.11 : Certified copy of sale deed dt. 04.6.1973 Ex.P.12 : Endorsement given by BBMP Ex.P.13 : Copy of application filed under RTIA Ex.P.14 : Copy of Complaint Ex.P.15 : Copy of Regd. Sale deed dated 18.4.1968 Ex.P.15(a) : Typed copy of Sale deed at Ex.P15.
In O.S.No.4531/08:
Ex.P.1 : Regd. Sale Deed dated 10.3.1977 Ex.P.2 : Sale Deed dated 1.2.2000 Ex.P.3 : Nil Encumbrance certificates (3 in numbers) Ex.P.4 : Khatha Certificate issued by BMP Ex.P.5 : Acknowledgement letter Ex.P.6 : Khatha Certificate issued by BBMP for the year 1996-2000 Ex.P.7 : Khatha extract issued by BMP Ex.P.8 : Two tax paid receipts Ex.P.9 & P9(a) : Two photos with negatives Ex.P.10 : Lease deed dt.1.8.2006 Ex.P.11 : Copy of complaint Ex.P.12 : Acknowledgement Ex.P.13 : Acknowledgement by BMP 24 Original Suit 4200/08 & 4531/08 Ex.P.14 : Bill by KEB Ex.P.15 : Electricity Bill Ex.P.16 : Water bill Ex.P.17 : Receipt in respect of Water Ex.P.18 : Sketch in two pages
3. List of witnesses examined for defendants:
In O.S.No.4200/08 : Nil
D.W.1 in O.S.No.4531/08 : Sri. S. Rajarathnachar
4. List of documents exhibited for defendants:
In O.S.No.4200/08:
Nil In O.S.No.4531/08:
Ex.D.1 : Special Power of Attorney Ex.D.2 Sale Deed dated 18.7.1969 Ex.D.3 & D4 : Two Encumbrance certificates Ex.D.5 : Copy of Sale deed dated 9.5.1968 Ex.D.6 : Certified copy of sale deed dt.27.8.1962 Ex.D.7 & D8 : Two Encumbrance certificates Ex.D.8(a) : Copy of Sale deed dated 14.11.1958 Ex.D.9 : Certified copy of sale deed dt.10.3.1977 Ex.D.10 : Certified copy of sale deed dt.1.12.2000 Ex.D.11 : Certified copy of sale deed dt. 04.6.1973 Ex.D.12 : Endorsement given by BBMP Ex.D.13 : Copy of application filed under RTIA Ex.D.14 : Copy of Complaint Ex.D.15 : Copy of Regd. Sale deed dated 18.4.1968 Ex.D.15(a) Typed copy of Sale deed at Ex.P15.
XXXIX Additional City Civil & Sessions Judge, Bangalore City.
25 Original Suit 4200/08 & 4531/08
05.01.2015 P: By Sri. BMV D1: By Sri. BJM D2: Deleted For Judgment, (Operative portion of the Judgment pronounced in the open Court vide separate sheets) ORDER The suit filed by the plaintiff in O.S.No.4200/08 is hereby dismissed.
The suit filed by the plaintiffs in O.S.No.4531/08 is hereby decreed against the defendant restraining her permanently from causing interference with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property in any manner.
The parties should bear their own costs.
Draw decree accordingly.
XXXIX Additional City Civil & Sessions Judge, Bangalore City.