Bangalore District Court
Dr. Vidya V. Bhat vs Sri.S.Nagesh on 21 July, 2022
1 O.S.2436/2014
KABC010081292014
IN THE COURT OF I ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU (CCH.No.2)
Present: - SRI.SREENIVASA, B.A., LL.B.
I Addl. City Civil & Session Judge,
Bengaluru.
Dated this the 21 st day of July 2022
O.S.No.2436 / 2014
Plaintiff: Dr. Vidya V. Bhat,
W/o. Sri.B.K.Vishwanath Bhat,
Aged about 46 years,
No.399, J.P.Road, I Phase,
Girinagar, Bengaluru-560 085.
(By Sri.G.R.Prakash, Adv.)
- VS -
Defendants: 1. Sri.S.Nagesh,
S/o. Late A.Subramanya,
Aged about 36 years,
No.8, Reddy Buchanna Lane,
Akkipet, Bengaluru-560 053.
2. Sri.S.Mahesh,
S/o. Late A. Subramanya,
Aged about 34 years,
No.8, Reddy Buchanna Lane,
Akkipet, Bengaluru-560 053.
3. Sri.B.M.Manjunath,
S/o. Sri.B.M.Mallikarjuna,
Aged about 49 years,
2 O.S.2436/2014
No.244/22, 6th Cross, 8th Main,
II Block, Jayanagar, Bengaluru-560 011.
(M/s.Tomy Sebastian Associate, Advocates
for D1 & D2,
Defendant No.3 - exparte)
Date of Institution of the suit 25.03.2014
Nature of the Suit (suit for pronote, Injunction suit.
Suit for declaration & possession,
Suit for injunction, etc.):
Date of the commencement of 03.07.2017.
recording of the Evidence:
Date on which the Judgment was 21.07.2022.
pronounced:
Year/s Month/s Day/s
Total duration:
08 03 26
(SREENIVASA)
I Addl. City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This suit is filed by the plaintiff against the defendants for a judgment and decree of permanent injunction restraining the defendants, their agents, henchmen or any person acting through or under them from interfering with the peaceful possession and enjoyment of the suit schedule property.
2. The brief facts of the plaintiff's case are that:
a) That, the plaintiff is the absolute owner in possession and enjoyment of the site bearing No.696 measuring 60 ft x 120 ft formed 3 O.S.2436/2014 out of Sy.Nos.101, 103, 104, 105, 106 of Hosakerehalli Village, Uttarahalli Hobli, Bengaluru South Taluk, wherein a layout of site is formed by M/s.Vishwabharathi House Building Co-op. Society Ltd., Bengaluru i.e., suit schedule property. Suit schedule property has come to be conveyed in favour of the plaintiff under the sale deed dated 26.06.2003 executed by Viswabharathi HBCS, Bengaluru. The boundaries show in the said sale deed read as East by 80 feet Road, West by 30 feet road, north by site no.697 and south by site No.695.
the plaintiff has paid the assessment to BBMP and the schedule property is connected with water and electricity connections provided by civic amenities, which are standing in the name of the plaintiff.
2b) It is further submitted that, Site No.475 measuring 40 x 60 feet of the very same layout was allotted to one Sri.B.M.Manjunath S/o. B.M.Manjunath, 3rd defendant herein by a sale deed dated 23.12.2003. Schedule to the said sale deed reads as under:
Site No.475, II Phase, formed by the Viswabharathi HBCS Ltd., (formerly the Writes & Artists HBCS Ltd) at the Vishwabharathi Housing Complex Layout, Hosakerehalli, Uttarahalli Hobli, Bengaluru South Taluk, Bengaluru, bounded on the east by part of site Nos.472 and 473, west by site No.476, north by road, south by Storm Water Drain.
The 3rd defendant had executed a GPA dated 04.01.2013 in favour of the defendant Nos.1 and 2 to deal with the suit schedule property to the said sale deed dated 23.12.2003. Though the said GPA has not been registered with the jurisdictional sub-registrar, stamp duty of Rs.2.40 lakhs was paid. It is not forthcoming as to why the said GPA was not registered though the stamp duty was paid and merely got notarized, that too, with entering in the notaries register.4 O.S.2436/2014
2c) It is further submitted that, the defendant Nos.1 and 2 though they are the attorney holders under the executant of the GPA dated 04.01.2013, have got registered the absolute sale dated 28.01.2013 in their favour only, which is impermissible under Power of Attornies Act. Though the guideline value fixed for conveyance of the said property by the Government is Rs.48 lakhs. The defendant Nos.1 and 2 have shown the consideration amount of Rs.23 lakhs, that too, as having paid to themselves the said entire consideration by way of cash. Without making any representation to the Vishwabharathi HBCS Ltd., the defendant Nos.1 and 2 got a Supplementary Deed from the Society dated 06.03.2013, which is contrary to well established law. Signatory to the said deed was not authorized to execute such a unlawful document, as no resolution to execute is not forthcoming from the said document. In contravention of rules and regulations, as well the earlier sale deed dated 23.12.2003, the schedule in the supplemental deed reads as east by Road, west by site no.3962, north by site no.3970 and south by site no.3972 and measuring east to west 60 feet and north to south 40 feet in all measuring 2400 sq. ft.
2d) It is further submitted that, bare perusal of the schedule, more particularly the boundaries of the sale deeds and supplemental deed clearly goes to show the collusion of the defendant Nos.1 and 2 and society for extraneous reasons. In- spite of this factual position, the defendant Nos.1 and 2, who have no manner of title, right or interest over the suit schedule property are trying to interfere with the peaceful possession and enjoyment of the suit schedule property by the plaintiff. The defendant Nos.1 and 2 have back up of certain vested interests, who are trying to dispossess the plaintiff from the suit schedule property. The 5 O.S.2436/2014 defendant Nos.1 and 2 are threatening that they shall enter the suit schedule property anytime from now and bring down the building existed thereon with heavy earthmoving equipments to claim the same as vacant site. Said Society has executed the supplemental deed dated 06.03.2013 stating that the defendant Nos.1 and 2 have been allotted with site No.3971. Photographs of the suit schedule property amplifies the fact that the plaintiff is in possession and enjoyment of it with civic amenities with construction thereon. There is imminent threat of dispossession by the defendant Nos.1 and 2 caused to the plaintiff. The defendants have no manner of right, title or interest over the suit schedule property. Unless the defendants are restrained by an order of injunction at the hands of this Court, there shall be substantial failure of justice.
2e) All of a sudden, during September 2013, few unknown people visited the suit schedule property and informed that the said portion of the property is given with a new number and is available for sale. However, on informing the unknown persons about the true facts, they left the scene. However, during the first week of February 2014, again few other persons have visited the site and intimated the plaintiff that the site is for sale and its alleged owners i.e. defendants are trying to alienate the property alleged to have been purchased under the void documents as stated supra, showing the suit schedule property as one belonging to them. Hence, the plaintiff has filed this suit.
3. After receipt of suit summons, the defendant Nos.1 and 2 have appeared through their counsel and filed written statements. The defendant No.3 remained absent. Hence, he placed exparte.
6 O.S.2436/20143a) The defendant Nos.1 and 2 in the written statement have contended that, a perusal of paragraph No.3 of the plaint makes it clear that, the plaintiff is trying to contend that, she is the owner of the site bearing No.696 and in paragraph 4 of the plaint, the plaintiff herself admits that site No.475 belongs to the defendant No.3 Manjunath. A perusal of the schedule to the plaint makes it clear that, the Plaintiff is trying to assert that she is the owner of the old site No.696 and its new Nos.3971 and 3962. In this background, it is necessary to consider the case of the plaintiff whether the plaintiff has produced any document along with the plaint that old site No.696 is assigned new site Nos.3971 and 3962 to justify her statement. Old site No.696 is nothing to do with new site No.3971 or 3962 as alleged by the plaintiff. On the other hand, site no.475 is assigned new site No.3971 and not as contended by the plaintiff in the schedule. On the other hand, the site No.475 was originally belonging to Vishwabharathi House Building Co-operative Society Ltd., and the said society has sold the same in favour of the defendant No.3 under the registered sale deed dated 28.12.2002. They have purchased the site No.475 from the 3rd defendant under the sale deed dated 28.01.2013. The khatha in respect of the site No.475 is standing in their names and they are paying property tax.
3b) It is submitted that, M/s. Vishwabharathi House Building Co-operative Society Ltd., has filed W.P.6945/2008 before the Hon'ble High Court against BDA. The Hon'ble High Court while disposing off the matter on merits has directed the society to conduct a inquiry with regard to the mode of allotment of sites to the members of the aforesaid society. In pursuance of the orders of the Hon'ble High Court, the society has verified the nature of allotment 7 O.S.2436/2014 made to the members, it has also revised the layout plan, wherein new site numbers to corresponding old sites were given by the society. As such, the old site No.475 was assigned / allotted new site No.3971. To confirm the aforesaid assignment / allotment of new site No.3971, Vishwabharathi House Building Co-operative Society Ltd., has also executed a registered supplemental deed dated 06.03.2013 in favour of these defendants. They have also verified and came to know from the society that the society has not executed any document in favour of the plaintiff with regard to allotment of new number for old site No.696 as 3971 or 3962. As such, unless and until the plaintiff produce any piece of evidence before this Court, the plaintiff cannot try to exercise their alleged right over new site Nos.3971/3962 contending it is new number of old site no.696. Under the said circumstances, the plaintiff has no right, title or interest is accrued in her favour to institute this suit in respect of new site No.3971. There is no cause of action to file this suit.
3c) It is further submitted that, the photographs and other documents produced by the plaintiff is not in respect of site No.3971. Under the said circumstances, there should not be an order of injunction against these defendants at the instance of the plaintiff in respect of their new site No.3971 (old site No.475), who are the lawful owners in possession and enjoyment of the same from the date of purchase from the 3rd defendant. The plaintiff be directed to produce document either executed by the society to justify her statement that old site No.696 and new site No.3971 are one and the same. If the plaintiff fails to do so, this suit in respect of site No.3971 (which belongs to these defendants) has to be dismissed for the reasons stated supra. Since new No.3971 belongs to them, who are the lawful owners in physical, peaceful possession and enjoyment of 8 O.S.2436/2014 the same from the date of purchase, there should not be an order of injunction against them as contemplated under the provisions of the Specific Relief Act. As such, this suit in the present form is not maintainable in law. The plaintiff is not the owner of the new site No.3971.
3d) It is further submitted that, the averments made in para 3 of the plaint are not within their personal knowledge. The plaintiff is put to strict proof of the same. A perusal of the sale deed dated 26.06.2003 produced by the plaintiff makes it clear that, the sale deed is not in respect of item No.3971 and it is only in respect of site No.696. The averments made in para 4 and 5 of the plaint are substantially correct. But whether the GPA was registered or not should not be an issue for the plaintiff, since the said old site No.475 or new no.3971 does not belongs to the plaintiff in any manner. When these defendants are maintaining cordial relationship with the 3rd defendant over the years and when the 3 rd defendant has received the entire sale consideration from these defendants, he has executed a GPA in favour of these defendants. The averments made in para 6 of the plaint with regard to the execution of the sale deed dated 28.01.2013 is correct but further allegations made in the said para are not correct. It is denied as false and the plaintiff is put to strict proof of the same, as such when these defendants have negotiated to purchase old site No.475 and new site No.3971 with the plaintiff and he has agreed to sell the same in favour of these defendants for a particular price, there should not be any issue for the plaintiff to attach any motives either against these defendants or against the 3rd defendant in any manner.
3e) It is further contended that, the averments made in para 7 of the plaint are denied as false. A supplemental deed was 9 O.S.2436/2014 executed in favour of these defendants to confirm that old site No.475 is assigned new site No.3971. Since the plaintiff is not able to secure a supplemental deed in respect of her alleged site No.696, the plaintiff is trying to make false allegations against these defendants as if they have interfered with her alleged possession and enjoyment of new site No.3971 which do not have any access to old site No.696. The averments made in para 8 of the plaint are denied as false. A perusal of the boundaries described in the schedule to the sale deeds in respect of site No.696 and in respect of site No.3971 (namely the supplemental deed) makes it clear both are different properties. However, it is always open for this Court to direct the plaintiff to produce any document executed by the Society, in favour of the plaintiff, thereby confirming that old site No.696 is assigned new site No.3971 as contended by the plaintiff. The averments made in para 9 of the plaint are denied as false. When the plaintiff is not in possession and enjoyment of the site No.3971, the question of alleged interference or alleged attempt of dispossession as alleged by plaintiff is nothing but a falsehood. These defendants are in physical possession and enjoyment of site No.3971. The BDA has issued katha in favour of these defendants and it is also collecting property tax from these defendants in respect of site No.3971. On the other hand, such a document is not forthcoming in the name of the plaintiff in respect of site No.3971. The municipal jurisdiction over the entire layout is within the limits of BDA. The katha register is maintained by BDA and it is also collecting the property tax from the members from time to time. The BDA has not at all handed over the layout to BBMP and as such if the plaintiff has obtained any such document in respect of the suit schedule property from the BBMP it has no legal sanctity can be 10 O.S.2436/2014 attached to such document. The averments made in para 10 of the plaint are denied as false. On perusal of the supplemental deed makes it clear that, old site No.475 belonging to these defendants, which bears new site No.3971. A perusal of the sale deed executed by the Society in favour of the 3rd defendant makes it clear with regard to delivery of physical possession of the site No.475 (which was renumbered as site No.3971) on the date of execution of the sale deed and thereafter, the 3rd defendant has sold the same in favour of these defendants and he has also delivered the physical possession and enjoyment of site No.475 on the date of execution of the sale deed. Thus, these defendants are the lawful owners in physical, peaceful possession and enjoyment of site No.3971. The averments made in para Nos.11, 12 and 14 are denied as false. The averments made in para 13 and 16 of the plaint are not well within their personal knowledge. They are not related in any manner in respect of site No.3962. The plaintiff ought to have sought for declaratory reliefs by requisite court fee on the plaint. Hence, the defendants prayed to dismiss the suit.
4. Based on the pleadings, my learned predecessor-in- office framed the following issues are as under :-
ISSUES
1. Whether the plaintiff proves that, her possession and enjoyment over the suit schedule property as on the date of the suit ?
2. Whether the plaintiff proves alleged interference by the defendants ?
3. Whether the plaintiff is entitled for permanent injunction as sought for ?
4. What order or decree ?11 O.S.2436/2014
5. In order to prove the case, the plaintiff examined herself as PW.1 and got marked the documents at Ex.P.1 to Ex.P.9. Inspite of sufficient opportunities, DW.1 has not been offered himself for cross-examination, hence, his evidence has been discarded vide order dated 24.06.2022.
6. Heard the arguments from the learned counsel for the plaintiff. The prayer of the learned counsel for the defendants is rejected, giving liberty to both the counsels to file written arguments on or before 18.07.2022. Defendant No.1 and 2 have filed written argument. Perused the entire records.
7. My findings on the above issues are as under :-
Issue Nos.1 to 3 :- In the negative, Issue No.4 :- As per final order;
for the following :-
REASONS
8. ISSUE Nos.1 to 3: All these issues are interconnected with each other, hence they are taken together for discussion in order to avoid repetition of facts.
9. To prove the facts in issue, the plaintiff examined herself as PW.1 and she has reiterated the plaint averments in her examination-in-chief. According to the plaintiff, she is the owner of the site bearing No.696 measuring 60 ft x 120 ft formed out of Sy.Nos.101, 103, 104, 105, 106 of Hosakerehalli Village, Uttarahalli Hobli, Bengaluru South Taluk, bounded East by 80 feet Road, West by 30 feet road, north by site no.697 and south by site No.695, by 12 O.S.2436/2014 virtue of the sale deed dated 26.06.2003 executed by M/s.Vishwabharathi House Building Co-op. Society Ltd., Bengaluru.
Further, she has stated that, the society allotted site No.475 to the defendant No.3 on 23.12.2003 bounded on the east by part of site Nos.472 and 473, west by site No.476, north by road, south by Storm Water Drain. Thereafter, the defendant No.3 executed the GPA in favour of the defendant Nos.1 and 2 to deal with his property on 23.12.2003 and it has not been registered. The defendant Nos.1 and 2 acted on the GPA and got the sale deed in their favour and the sale deed even under valued for sale consideration of Rs.23,00,000/-, while guideline value was fixed at Rs.48,00,000/-. Further she has stated that, there being no reason, the society executed a supplemental deed on 06.03.2013 in favour of the defendant Nos.1 and 2 and the said sale deed is not come with in the sale deed executed by the society in favour of the defendant No.3 on 23.12.2003 and the boundaries of the sale deed and supplemental deed do not match. Further, she has taken contention that, the defendants colluding with the society, have manipulated the records of site No.475 as 3971, which falls in the place of site No.696 in the plan approved by BDA and based on that sale deed, the defendant Nos.1 and 2 are trying to sell the property and interfering with her possession.
10. The defendant Nos.1 and 2 in their evidence and also in the written statement have taken contention that, the society sold the old site No.475 new No.3971 to the defendant No.3. The defendant No.3 sold the site bearing No.475, which was originally belongs to the society to the defendant Nos.1 and 2. M/s. Vishwabharathi House Building Co-operative Society Ltd., has filed W.P.6945/2008 before the Hon'ble High Court against BDA. The Hon'ble High Court 13 O.S.2436/2014 while disposing off the matter on merits has directed the society to conduct a inquiry with regard to the mode of allotment of sites to its members. In pursuance of the orders of the Hon'ble High Court, the society has verified the nature of allotment made to the members, it has also prepared revised the layout plan, wherein new site numbers to corresponding old sites were given by the society. As such, the old site No.475 was assigned / allotted new site No.3971. To confirm the same, the society executed a registered supplemental deed dated 06.03.2013 in favour of these defendants. The plaintiff claiming the suit schedule property alleging that, old site No.696 is given as 3971 and the plaintiff is not in possession of the suit schedule property.
11. In view of the specific denial made by the defendants, the burden lies on the plaintiff to prove that, she is in possession of the suit schedule property and the concerned authority have given site No.3971 and 3962 to the old site No.696.
12. To prove the facts in issue, PW.1 in addition to her oral evidence, has produced 9 documents at Ex.P.1 to Ex.P.9. Ex.P.1 is the registered sale deed dated 26.06.2003 executed by the society in favour of Smt.Vidya V. Bhat, who is the plaintiff in this case. This document is relevant to prove that, site No.696 formed out of the Sy.Nos.101, 103, 104, 105, 106 of Hosakerehalli Village, Uttarahalli Hobli, Bengaluru South Taluk. And also relevant to establish that the society executed registered sale deed dated 26.06.2003 in favour of plaintiff. Ex.P.2 is the encumbrance certificate. It shows that, the plaintiff purchased site No.696. Ex.P.3 are the photos. Ex.P.4 is the sale deed dated 23.12.2003 executed in favour of the 3 rd defendant B.M.Manjunath in respect of site No.475. This document shows that, 14 O.S.2436/2014 the defendant No.3 purchased the site No.475 and boundaries of the site are east by part of site Nos.472 and 473, west by site No.476, north by road, south by Storm Water Drain. Ex.P.5 is the sale deed dated 23.12.2002 executed by the society in favour of defendant No.3. Ex.P.6 is the GPA dated 04.01.2013 executed by the 3 rd defendant in favour of defendant Nos.1 and 2. Ex.P.7 is the sale deed executed by 3rd defendant in favour of defendant Nos.1 and 2 on 28.01.2013 . Ex.P.8 is the supplemental deed dated 06.03.2013 executed by M/s.Vishwabharathi House Building Co-operative Society Ltd., in favour of the defendant Nos.1 and 2, wherein it shows that, the society has allotted and given fresh site No. as 3971 to the old site No.475. Ex.P.9 is the sketch, wherein, it discloses that, site No.3971 is situated in between site Nos.3962, 3972 and 3979 and road and defendantno1&2 are in peaceful possession and enjoyment over site No.3971
13. The plaintiff in order to prove that, the concerned Society allotted fresh site No. as 3971 and 3962 to the Old site No.696, no document is placed before this Court. Further, PW.1 in her cross-examination, she has stated that, "it is true to suggest that, Ex.P.8 pertains to site bearing No.3971. I do not have any document to show that, site No.696 is a site No.3971. Further she has stated that, I am not having sale deed in respect of site No.3971 and I am not having possession certificate issued by the society in respect of site No.3971". From the admission which is given by PW.1, it discloses that, Ex.P.8 pertains to Sy.No.3971 and she has no document to show that, site No.696 is site No.3971. If really, her contention is good and the concerned authority had given the site No. as 3971 to the old site No.696, she could have produced the documents in that regard. Further, she has stated in her evidence 15 O.S.2436/2014 that, she has not given any application to the society for grant of site on 14.04.2011. If really, the society committed the mistake and allotted the land of the plaintiff to the defendants, the plaintiff could have filed an application to rectify the same on the ground that, the suit schedule property was given to her and wrongly it was registered in the name of defendant nos.1 & 2. In this regard, no application is placed to show that, she made request to the concerned authority to rectify the same or to get the supplemental deed from the society. Further, she has not challenged the said sale deed before the competent Court of law, even in this case also, she has not sought for cancellation of the sale deed, till it is canceled by the competent Court, it is having presumptive value.
14. To disprove the case of the plaintiff, the GPA holder of the defendant Nos.1 and 2 examined as DW.1 and got marked Ex.D.1 and Ex.D.2. But DW.1 has given evidence and not offered for cross-examination. Hence, this Court discarded the evidence of DW.1, thereby, the evidence of DW.1 has no value in the eye of law. But only on the ground that DW.1 has not been offered for cross- examination and not proved his case, is not a ground to accept the entire case of the plaintiff, since the documents which are placed by the plaintiff discloses that, she purchased the site No.696 from the society. Later on she has not obtained supplemental deed from the society and no resolution is passed in favour of the plaintiff regarding rectification of site number, and also not produced tax paid receipts before this Court to show that she paid tax to the site no.696, thereafter she paid tax to the new site No.3971. In the absence of satisfactory evidence from the side of the plaintiff, it cannot be said that, she is in possession of site No.3971.
16 O.S.2436/201415. Further, the plaintiff contended that, the defendants colluding with each other created documents of the society, but the plaintiff has not challenged the sale deed executed by the Society in favour of the defendant No.3 and supplemental deed executed by the society in favour of the defendant Nos.1 and 2 as stated above . On the other hand, when the defendants have disputed the title of the plaintiff, it is the duty of the plaintiff to convert her suit for declaration, but she has not sought for declaration of title also. On this ground also, the suit of the plaintiff is not maintainable. Further, from the oral and documentary evidence, it discloses that, the plaintiff is the owner and in possession of site No.696 . Further by virtue of the sale deed obtained by her in respect of site No.696, she is trying to get the relief in respect of site No.475 new no. 3971. The plaintiff has not placed any documents in respect of site No.3962. Under the said circumstances, I am of the opinion is that, the plaintiff failed to establish her case with cogent evidence over the suit schedule property. Hence, I answer issue No.1 to 3 are in the negative.
16. ISSUE NO.4: In view of my aforesaid discussions, I proceed to pass the following: -
ORDER The suit of the plaintiff is hereby dismissed.
Draw decree accordingly.
(Dictated to the Stenographer, transcription computerised by her, corrected and then pronounced by me in the open court on this the 21 st day of July 2022.) (SREENIVASA) I Addl. City Civil & Sessions Judge, Bengaluru.17 O.S.2436/2014
ANNEXURE WITNESSES EXAMINED ON BEHALF OF PLAINTIFFS:
PW.1 : Dr.Vidya V. Bhat.
DOCUMENTS MARKED ON BEHALF OF PLAINTIFFS:
Ex.P.1 : CC of the sale deed dated 26.06.2003.
Ex.P.2 : Encumbrance certificate.
Ex.P.3 : Photographs.
Ex.P.4 : CC of the sale deed dated 23.12.2012.
Ex.P.5 : CC of the sale deed dated 23.12.2002.
Ex.P.6 : CC of GPA dated 04.01.2013.
Ex.P.7 : CC of the sale deed dated 28.01.2013.
Ex.P.8 : CC of the supplemental deed dated
06.03.2013.
Ex.P.9 : Original layout plan.
WITNESSES EXAMINED ON BEHALF OF DEFENDANTS:
DW.1 : Sri.Kadapanatha Raghu.
DOCUMENTS MARKED ON BEHALF OF DEFENDANTS:
Ex.D.1 & 2 : GPAs.
Note: Evidence of DW.1 discarded vide order dated 24.06.2022.
(SREENIVASA) I Addl. City Civil & Sessions Judge, Bengaluru.