Bangalore District Court
Smt.Mary vs Smt.S.Parvathi on 2 July, 2018
IN THE COURT OF THE XXV ADDL. CITY CIVIL &
SESSIONS JUDGE
AT BANGALORE CITY - CCH NO.23.
DATED THIS THE 2nd DAY OF JULY, 2018.
PRESIDING OFFICER
PRESENT : Sri.Sadananda M.Doddamani,
B.A., L.LB.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
O.S.No.4878/2011
PLAINTIFF/S: 1. Smt.Mary,
W/o Sri. Maria Joseph,
Aged about 40 years,
2. Sri.Maria Joseph,
S/o Late Thomas,
Aged about 42 years,
Both are residing at
No. 517, Near Ganesh Temple,
5th 'D' Cross road,
Anandapura, T.C.Palya Post,
K.R.Puram, Bangalore - 560 036.
(By Sri.NRM, Advocate)
Vs.
DEFENDANT/S: Smt.S.Parvathi,
W/o Sri.Kubendran,
Aged about 37 years,
R/at No.36, Anandapura,
T.C.Palya post,
K.R.Puram,
Bangalore - 560 036.
(Sri.NN, Advocate)
*****
Date of institution of suit : 08.07.2011
Nature of suit : Declaration, Injunction &
Possession
Date of commencement
of recording of evidence : 06.11.2013
Date on which the judgment
was pronounded : 02.07.2018
Duration of the suit :Year/s Month/s Day/s
06 11 14
JUDGMENT
1. This is a suit filed by the plaintiffs seeking the relief of declaration, possession and for such other relief.
2. In brief the case of the plaintiffs is as under:
That one Thomas S/o Anthaiah is the father of 2 nd plaintiff and father-in-law of the 1st plaintiff who was allotted site bearing No. 81 by the Tahsildar, Bangalore South Taluk, measuring to an extent east to west 30 feet and north to south 40 feet situated at Sannathammanahalli village, which is called as Thambuchettypalya, K.R.Puram, Bangalore east taluk. It is further contended that the said property now is identified by the BBMP at Anandapura extention of T.C.Palya post, K.R.Puram, Bangalore, which is the suit 'A' schedule property. It is further contended that the father of the plaintiff died on 7/3/2003 leaving behind several children and the said Thomas is under the care and custody of 2 nd plaintiff during his life time. As a result the said Thomas has bequeathed his property under the Will dated 5/1/1990 in favour of 2 nd plaintiff.
After bequeathing the schedule property the 'B' khatha effected in his name by the BBMP authorities and based on the khatha and having possession by the 2nd plaintiff beaqueathed the suit schedule property in favour of 1st plaintiff under registered gift deed dated 8/6/2011.
3. It is further contended that the said Thomas having possession of 'A' schedule property and also "Hakku Patra" issued by the Tahsildar, Bangalore South Taluk, pertaining to 'A' schedule property. It is further contended that on 24/6/2011 when the plaintiffs measures 'A' schedule property they noticed the defendant encroached half of the portion of 'A' schedule property, since the father-in-law of the 1 st plaintiff being adjacent owner of the schedule property. It is further contended that the defendant's father-in-law already sold the property and received consideration amount by all the family members. It is further contended that during the life time of father of 2 nd plaintiff and father-in-law of defendant are good friends and continuously stayed by establishing the neighbourhood among themselves. It is further contended that the said Thomas and father-in-law of defendant went to effect the khatha in respect of their property before the authorities. During that time the said Thomas lost his hakkupatra issued by the Tahsildar pertaining to the suit schedule property. It is further contended that the 2nd plaintiff got the xerox copy of the "Hakku Patra" found along with the Will which was kept in almera belongs to his father. It is further contended that taking undue advantage of old age of Thomas and known to neighbourhood encroached the portion of schedule property and constructed a small house without the knowledge of the plaintiff and other family members. Since the plaintiffs are not having the knowledge about the portion which was encroached as they thought that the father-in-law of the defendant was also the owner of adjacent site to the suit schedule property. It is further contended that the western portion which was encroached by the defendant is approximately 14 x 40 feet which is 'B' schedule property and the remaining portion of property is vacant. On measurement came to know about the illegal and unathorised construction of building in a portion of 'A' schedule property. When the plaintiffs are started to demand to vacate the portion which was encroached by the defendant, it is surprised that unauthorisedly further construction has been made with the help of political persons members of the locality. At the same time the defendant and her husband doing grocery business along with supplying the milk to all local residents, hence the defendant and her husband well known in the locality. It is further contended that taking undue advantage of knowing to everybody started to put up further construction for which the plaintiffs are obstructed. Since the plaintiffs are having knowledge she is not the owner by virtue of title, but encroached portion of 'A' schedule property, but still she is trying to trespass over 'A' schedule property. The defendant is a stranger to the suit schedule property and used to ask him about the ownership of the property by the defendant. On several occasions the defendant has also appeared along with some other persons to deprive the rightful claim of the plaintiff. The 1 st plaintiff is the owner by virtue of gift deed, but all the khatha and other revenue records stands in the name of 2nd plaintiff who is none other than the husband of 1 st plaintiff, as such, the 2nd plaintiff has been made a formal party to the proceedings to establish right was accrued and continued in his possession.
4. It is further contended that the illegal and unauthorised encrochment of the defendant came to know by the plaintiffs recently and called panchayatdars to settle the dispute between them. On measurement of property belongs to the plaintiffs they came to know that the defendant has encroached 'B' schedule property measuring to an extent 14 x 40 feet. Though the old house was constructed about 3 years ago and the plaintiffs are not having knowledge about the property belongs to them. It is further contended that the defendant's father-in- law already sold his property to the third party and his children taken undue advantage by getting the "Hakku Patra" which was lost by father- in-law of the 1st plaintiff and encroached the property as if belongs to them. It is further contended that the 1 st plaintiff's father-in-law neither executed any documents nor sold his property in favour of defendant. During his life time he has bequeathed the property in favour of his son, i.e., the 2nd plaintiff. On having strength of ownership the 2 nd plaintiff executed gift deed in favour of 1st plaintiff, as such, the 1st plaintiff is the absolute owner of the suit schedule property. It is further contended that though in respect of the encroachment made by the defendant panchayat was took place but it was not materialised. It is further contended that the plaintiffs have given complaint to the jurisdictional police, but they failed to take any action and advised them to approach the civil court as the dispute raised by them is of the civil nature. It is further contended that the 1st plaintiff is the absolute owner of 'A' schedule property and the illegal and unauthorised occupation of 'B' schedule property by the defendant, as such, she sought direction to the defendant to hand over the 'B' schedule portion by demolishing the structure made on the encroached portion.
5. It is further contended that the defendant claims that she is the owner of the suit schedule property by virtue of registered sale deed dated 7/3/2001 executed by S.Shashidar, who claims to be the Power of Attorney holder executed by late Thomas, who is none other than the father-in-law of the 1st plaintiff and father of the 2nd plaintiff. Since the suit schedule property was allotted through "Hakku Patra" dated 13/5/1972 with a condition that the said Thomas shall not alienate the property for a period of 25 years. There is a statutory restriction not to alienate the property. In this case the General Power of Attorney holder alieanted the suit schedule property in favour of defendant through registered sale deed is not maintainable either in law or on facts. The sale deed and subsequent documents created by the defendant is not binding on the plaintiffs. The General Power of Attorney holder Shashidar is not having possession and no such document has been executed in favour of Shashidar by late A.Thomas. The false documents have been placed by the defendant as if she is the owner of the suit schedule property and those documents are not binding on the plaintiffs, etc. On these grounds and among other grounds they have come up with the present suit and accordingly prays for to decree the suit.
6. The suit summons sent by this court was duly served upon the defendant and she has appeared before the court through her counsel and filed her detailed written statement by denying all the plaint averments. The defendant in her written statement by denying all the plaint averments contended that one Thomas S/o Anthaiah was the sole and absolute owner of the property bearing site No. 81, khatha No.14/81 situated at Anandapura, Sannathammanahalli village @ Thambuchettypalya, K.R.Puram hobli, Bangalore earlier within the jurisdiction of K.R.Puram CMC and now come wtihin the jurisdiction of BBMP measuring east to west 30 feet and north to south 40 feet. The said Thomas acquired the said property through "Hakku Patra". It is further contended that the said Thomas as an absolute owner on 10/9/1986 executed General Power of Attorney in favour of S.Shashidar S/o late Shanmugam, in respect of the suit schedule property. The said Power of Attorney was executed before the Small Causes Judge, Bangalore City. Under the said General Power of Attorney, the said Thomas has delegated all his powers to deal with the suit schedule property on his behalf. It is further contended that on the same day the said Thomas also executed an affidavit thereby confirming the execution of the said General Power of Attorney and the same affidavit also sworn to before the Small Causes court, Bangalore city.
7. It is further contended that the said General Power of Attorney holder S.Shashidar based on the powers deligated under the aforesaid General Power of Attorney executed by the said Thomas has executed a registered sale deed in favour of the defendant on 7/3/2001 itself. On the very same day the defendant was put in physical and lawful possession of the above said property. It is further contended that the said sale deed was registered in the office of the Sub-Registrar, K.R.Puram, and the defendant has paid valuable sale consideration amount. Earlier the documents in respect of the said property are all standing in the name of the said Thomas and the said property is the self acqruied property of the said Thomas and hence the plaintiffs nor other legal representatives of late Thomas have no manner of right, title or interest over the said property. It is further contended that the defendant immediately after purchasing the above said property, she has approached the corporation authorities have changed all khatha in her name and produced all the title deeds of the property. The corporation authorties after verifying the documents produced by the defendant had already transferred khatha of the property in the name of the defendant. The defendant is also paying the taxes to the corporation authorties. It is further contended that the very documents produced by the defendant, i.e., tax receipts, encumbrance certificate and photographs of the house constructed by him in the suit property shows that he is the absolute owner of the suit schedule property. It is further contended that the said documents clearly goes to show and establish the real fact that the defendant alone is the sole owner and she is in actual physical and lawful possession and enjoyment of the suit schedule property. The defendant all along with her family members are residing in the suit schedule property. The plaintiffs herein knowing all these true and material facts filed this false and frivolous suit with malafide intention to knock off the property of the defendant or in the alternative to extract illegal money from the defendant with malafide intention, as such the suit of the plaintiffs is liable to be dismissed with heavy cost. It is further contended that the market value of the suit schedule property as on the date of suit is at Rs.2,000/- per sq.ft. Accordingly the plaintiffs are required to pay the court fee on the market value of the suit schedule property. Since the plaintiffs have not paid the court fee on the market value of the suit schedule property, the suit of the plaintiffs is liable to be dismissed on the said count alone, etc. On these grounds and among other grounds she sought for the dismissal of the suit.
8. Heard the arguments of both counsels.
9. The the learned counsel for the plaintiffs in support of his arguments has relied upon the decision reported in (2014)2 SCC page
269.
10. The learned counsel for the defendant in support of his arguments has relied upon the following decisions:
(1) (2009)14 SCC page 204 (2) 2014(2) SCC page 269 (3) ILR 2005 Kar page 884 (4) 2004(1) KCCR page 662 (5) 2013(4) KCCR (SN)342(SC) (6) 2013(4)KCCR(SN)308 (SC)(1)
11. On the basis of the above rival pleadings of the parties my learned Predecessor-in-office has framed the following as many as 12 issues.
(1) Whether plaintiffs prove that plaintiff No. 1 is the absolute owner of 'A' schedule property ?
(2) Whether plaintiffs prove that deceased Thomas executed a Will dated 5/1/1990 in favour of plaintiff No. 2 bequeathing him suit schedule 'B' property ?
(3) Whether plaintiffs prove that plaintiff No. 2 has gifted the suit schedule 'B' property under registered gift deed dated 8/6/2011 ? (4) Whether plaintiffs prove that defendant has encroached upon suit schedule 'B' property ? (5) Whether plaintiffs prove that defendant is trying to trespass and intefere with plaintiffs possession of 'A' schedule property ?
(6) Whether defendant proves that 'B' schedule property is the portion of 'A' schedule property ?
(7) Whether suit is barred by limitation ? (8) Whether defendant proves that said Thomas executed General Power of Attorney in favour of S.Shashidar and he has sold to her under registered sale deed dated 7/3/2001 ?
(9) Whether defendant proves that she is in lawful possession of the property ?
(10) Whether suit is properly valued and court fee paid is sufficient ?
(11) Whether plaintiffs are entitled to the reliefs sought for ?
(12) What order or relief ?
12. The plaintiffs in order to establish their case, the 2 nd plaintiff himself got examined as PW1 and got marked 17 documents from Ex.P1 to Ex.P17 and also got examined 2 witnesses as PW2 and PW3 and closed their side evidence.
13. The defendant in order to establish her case she herself got examined as DW1 and got marked 14 documents from Ex.D1 to Ex.D14 and closed her side evidence.
14. My findings to the above issues are as under:
Issue No.1 : In the Negative
Issue No.2 : In the Negative
Issue No.3 : In the Negative
Issue No.4 : In the Negative
Issue No.5 : In the Negative
Issue No.6 : In the Affirmative
Issue No.7 : In the Negative
Issue No.8 : In the Affirmative
Issue No.9 : In the Affirmative
Issue No.10 : In the Negative
Issue No.11 : In the Negative
Issue No.12 : As per the final order
for the following:
REASONS
15. Issue No. 1 to 6, 8 & 9 : Since all these issues are inter-
connected, therefore they have been taken together for common consideration and discussion in order to avoid repetition of facts and also for the sake of convenience.
16. The plaintiffs in order to establish their case, the plaintiff No. 2 himself got examined as PW1 and filed his affidavit by way of examination-in-chief, wherein he reiterated all the averments made in the plaint. PW1 in his evidence stated that one Thomas S/o Anthaiah is none other than his father and father-in-law of the 1st plaintiff was allotted the site bearing No. 81 by the Tahsildar, Bangalore south taluk, measuring an extent of east to west 30 feet and north to south 40 feet, situated at Sannathamanahalli village, which is called as Thambuchettypalya. It is further contended that his father was died on 7/3/2003 leaving behind several children and the said Thomas was under the care and custody of him during his life time. As a result the said Thomas has bequeathed his property under the Will dated 5/1/1990. He further stated that after bequeathing the suit schedule property the 'B' khatha effeted in his name by the BBMP authorities. Based on the khatha and having possession by him, he bequeathed the suit schedule property in favour of 1 st plaintiff under registered gift deed dated 8/6/2011.
17. He further stated that the said Thomas having possession of 'A' schedule property and also "Hakku Patra" issued by the Tahsildar, Bangalore south taluk, pertaining to the suit 'A' schedule property. He further stated that he ascertained the suit schedule property and also measured the same with the help of elders and well wishers. On 24/6/2011 when the 1st plaintiff measured the 'A' schedule property, they noticed the defendant encroached half of the portion of 'A' schedule property, sicne her father-in-law being adjacent owner of the suit schedule property. He further stated that the defendant's father-in-law already sold the property and received consideration amount by all the family members. During the life time of his father and the father-in-law of the defendant were good friends and continuously stayed by establishing the neighbourhood among themselves. He further stated that the said Thomas and father-in-law of defendant went to effect the khatha in respect of the property before the authorities. During that time the said Thomas lost his "Hakku Patra" issued by the Tahsildar pertaining to the suit schedule property and he is having the xerox copy of the "Hakku Patra" found along with the Will which was kept in the almera belongs to his father. He further stated that taking advantage of old age of Thomas and known to neighbourhood encroached the portion of suit schedule property and constructed a small house without the knowledge of them and other family members. He further stated that since they are not having knowledge about the portion which was encroached, as they thought that the father-in-law of defendant was also the owner of adjacent site to the suit schedule property. He further stated that the western portion which was encroached by the defendant is approximately measuring 14 x 40 feet which is the suit 'B' schedule property and remaining portion of property is vacant. He further stated with regard to the illegal and unauthorised construction of building in a poriton of 'A' schedule property, when they measured the suit schedule property. He further stated that though they demanded the defendant to vacate the portion which was encroached by her, but she failed to heed to their request and she has made further construction with the help of political persons. He further stated that the defendant is a stranger to the suit schedule property and he has made encrochment in a portion of 'A' schedule property, i.e., 'B' schedule property.
18. He further stated that the defendants father-in-law already sold his property to the third party and his children taken undue advantage by getting the "Hakku Patra" which was lost by his father encroached the property as if the same belongs to them. He further stated that his father neither executed any documents nor sold his property in favour of defendant. He further stated that with regard to the above said aspect, i.e., encroachment made by the defendant panchayat was taken place, but the same was not materialised and subseeuqntly they filed complaint before the jurisdictional police and they also failed to take action on the ground that the dispute is of civil nature. It is further contended that even the defendant trying to encroach upon the remaining vacant portion of the suit schedule property by putting compound wall, as if he is the owner of the suit schedule property. He further stated that the 1st plaintiff is the absolute owner of 'A' schedule property and the defendant is in illegal and unauthorised occupation of 'B' schedule property, as such the defendant is liable to hand over the vacant possession of the enchroached portion, i.e., 'B' schedule property by demolishing the existing structure. In support of his case he got marked 17 documents from Ex.P1 to Ex.P17. In view of his oral and documentary evidence he prays for to decree the suit.
19. The plaintiffs in order to establish their case examined one witness by name S.Sarojamma as PW2. Upon perusal of the evidence of PW2 it shows that she has spoken with regard to the complaint given against the defendant before Avalahalli Police Station and the enquiry conducted by the police. She further stated with regard to the suit schedule property bequeathed by Thomas in favour of his son, i.e., plaintiff No. 2. She further stated with regard to the factum of plaintiff No. 2 gift away the suit schedule property in favour of plaintiff No. 2 on 8/6/2011. So also she has spoken with regard to the factum of encroachment made by the defendant in the suit schedule property. So upon perusal of her evidence it shows that she has supported the case of the plaintiffs and stated in her evidence with regard to the facts of the case as stated by PW1.
20. The plaintiffs in order to establish their case also examined one more witness by name Rose Mary as PW3. Upon perusal of the evidence of PW3 it shows that she is none other than the own sister of plaintiff No. 2. Upon perusal of her evidence it shows that she has spoken with regard to the factum of Will executed by her father in favour of her brother, i.e. plaintiff No. 2 in respect of the suit schedule property. So also she has stated with regard to the factum of gift deed executed by plaintiff No. 2 in favour of his wife plaintiff No. 1 in respect of suit schedule property. She further stated that she is not going to claim any right in the suit schedule property. She further stated with regard to the encroachment made by the defendant in the suit schedule property. Upon perusal of her evidence it shows that she also supported the case of plaintiffs.
21. The defendant in order to establish her case, she herself got examined as DW1 and filed her affidavit by way of examination-in- chief, wherein she reiterated all the averments made in her written statement. DW1 further stated that one Thomas S/o Anthaiah was the sole and absolute owner of property bearing site no.81, khatha no.14/81 situated at Anandapura, Sannathamanahalli village @ Thambuchettypalya, K.R.Puram hobli, Bangalore east taluk, measuring east to west 30 feet and north to south 40 feet. She further stated that the said Thomas acquired the above said property through "Hakku Patra". She further stated that the said Thomas is an absolute owner of the above referred property on 10/9/1986 executed General Power of Attorney in favour of S.Shashidar S/o late Shanmugam in respect of the suit schedule property. The said Power of Attorney was executed before the Small Causes Judge, Bangalore city. Under the said General Power of Attorney, the said Thomas has deligated his powers to deal with the suit schedule property on his behalf. She further stated that on the same day the said Thomas also executed an affidavit thereby confirming the execution of the said General Power of Attorney and the said affidavit also sworn to before the Small Causes Court, Bangalore city.
22. She further stated that the said General Power of Attorney holder S.Shashidar based on the powers deligated under the aforesaid general Power of Attorney executed by the said Thomas has executed a registered sale deed in her favour on 7/3/2001 itself. On the very same day she ws put in physical and lawful possession of the above referred property. She further stated that the said sale deed was registered in the office of the Sub-Registrar, K.R.Puram and she has paid valuable sale consideration amount. She further stated that earlier the documents in respect of the said property are all standing in the name of said Thomas and the said property is the self acquired property of the said Thomas, as such, neither the plaintiffs nor other legal representatives of late Thomas have no manner of right, title or interest over the said property.
23. She further stated that immediately after she purchasing the above said property she approached the corporation authorities for change of khatha in her name and produced all the title deeds in respect of her aforesaid property. The corporation authorities after verifying the documents produced by her had already transferred the khatha of the property in her name. She further stated that she herself paying taxes to the corporation authorites in respect of the property purchased by her. She further stated that the documents produced by her clearly goes to show that she is the absolute owner and in actual physical and lawful possession and enjoyment of the suit schedule property. She further stated that she is residing in the suit schedule property along with her family members. She further stated that the plaintiffs knowing all these true and material facts filed the false and frivolous suit with malafide intention to knock off her property or in the alternative to extract illegal money from her with malafide intention. She further stated that the plaintiffs have suppressed the true and material facts before this court, as such, the suit is liable to be dismissed. It is further stated that the plaintiffs are not at all owners and never been in possession of her property at any point of time. She further stated that the alleged documents produced by the plaintiffs are not at all pertaining to her property. She further stated that the plaintiffs are very much aware of the entire sale transaction since for the last 10 years. She further stated that even all the documents produced by the plaintiffs will clearly goes to show that the defendants family members are in lawful and peaceful possession and enjoyment of the suit schedule property without any interference or obstruction from anybody including the plaintiffs. In support of her case she got marked 14 documents from Ex.D1 to Ex.D14. In view of her oral and documentary evidence she prays for to dismiss the suit.
24. The learned counsel for the plaintiff during the course of his arguments contended that the plaintiffs have filed the present suit seeking the relief of declaration and direction to the defendant to hand over possession of 'B' schedule property and also sought for permanent injunction. He further contended that one Thomas S/o Anthaiah who is none other than the father of plaintiff No. 2 and father-in-law of the plaintiff No. 1 was allotted site bearing No. 81 by the Tahsildar, Bangalore south taluk, measuring east to west 30 feet and north to south 30 feet situated at Sannathammanahalli village which is called as Thambuchettypalya. What he contended that the said Thomas is the absolute owner of the suit schedule property. He further contended that the said Thomas was died on 7/3/2003 leaving behind several children and he was under the care and custody of the plaintiff No. 2, who is none other than his son during his life time. He further contended that by considering the said aspect, the father of plaintiff No. 2, i.e., Thomas has bequeathed his property, i.e., the suit schedule property under Will dated 5/1/1990 in favour of plaintiff No. 2. In order to substantiate his contention he placed his reliance upon Ex.P17, i.e., the Will alleged to be executed by Thomas in favour of plaintiff No. 2. He further contended that after bequathing the suit schedule property in favour of plaintiff No. 2 through Will the 'B' khatha in respect of the suit schedule property effected in the name of plaintiff No. 2 by the BBMP authorities. In order to substantiate his contention he placed his reliance upon Ex.P1, i.e., form 'B' property registered. He further contended that subsequently the plaintiff No. 2 bequeathed the suit schedule property in favour of 1 st plaintiff who is none other than the wife under the registered gift deed dated 8/6/2011. In order to substantiate his contention he placed his reliance upon Ex.P11 registered gift deed. He further contended that after plaintiff No. 1 acquired the property as per Ex.P11 gift deed she herself paying tax in respect of the suit schedule property. In order to substantiate his contention he placed his reliance upon Ex.P4 to Ex.P9, i.e., tax paid receipts.
25. He further contended that the father of the plaintiff No. 2, i.e., Thomas having possession of 'A' schedule property and also "Hakku Patra" issued by Tahsildar in respect of 'A' schedule property. He further contended that the property of the father-in-law of the defendant is also by the side of the suit schedule property. He further contended that the said Thomas and father-in-law of the defendant are very close friends and both went to effect khatha in respect of their property before the concerned authorities and at that time the father of the plaintiff No. 2 Thomas lost his "Hakku Patra". He further contended that the plaintiff No. 2 was having xerox copy of "Hakku Patra" found along with Will which was found in the almera belongs to the father of plaintiff No. 2. He further contended that since the original "Hakku Patra" was not in the custody of the plaintiffs, as such the plaintiffs have produced the xerox copies of the said "Hakku Patra" issued by Tahsildar in favour of father of plaintiff No. 2 Thomas. He further contended that the father-in-law of the defendant was sold his property long back. He further contended that the defendant taking advantage of the old age of Thomas and known to be the neighbourhood encroached a portion of the suit schedule property and constructed a small house without the knowledge of the plaintiffs and their family members. What he contended that the plaintiffs are not having knowledge about the portion which was enchroached, as they thought that the father-in-law of defendant was also owner of adjacent site to the schedule property. He further contended that the defendant approximately encroached 14 x 40 feet on the western portion of 'A' schedule property, i.e., 'B' schedule property and the remaining portion of the property is vacant. He further contended that when the plaintiff No. 1 went to measure the suit schedule property at that time they noticed the encroachment made by the defendant in the suit schedule property. He further contended that though the plaintiff requested to hand over the possession of the encroached area, but the defendant refused inspite of having conducted panchayat in respect of the same. He further contended that even the complaint lodged by the plaintiffs with the jurisdictional police and enquiry made by the police authorities not materialised, as because the police authorities failed to take action since the dispute is of civil nature and accordingly they have issued endorsement. In order to substantiate his contention he placed his reliance upon Ex.P12.
26. He further contended that the father of plaintiff No. 2 and father- in-law of plaintiff No. 1 at any point of time has not at all executed any document nor sold his property, i.e., the suit schedule property in favour of defendant. He further contended that during the life time of Thomas he has bequathed the property in favour of 2 nd plaintiff through Will and subsequently the plaintiff No. 2 bequeathed the suit schedule property in favour of plaintiff No. 1 under the registered gift deed. So he contended that the plaintiff No. 1 is the absolute owner of the suit schedule property. He further contended that the defendant is a stranger to the suit schedule property and without having any manner of right in respect of the suit schedule property she has encroached a portion of the 'A' schedule property, i.e., 'B' schedule property.
27. He further contended that the defendant claims right in respect of the suit schedule property on the ground that the father-in-law of plaintiff No. 1 by name Thomas during his life time executed the General Power of Attorney in favour of one S.Shashidar and also he has executed an affidavit confirming the execution of General Power of Attorney and the same were executed and sworn before the Small Causes Judge, Bangalore City. What he contended that the father of the plaintiff No. 2 Thomas has not at all executed neither General Power of Attorney nor affidavit as claimed by the defendant and all these documents are got created by the defendant in order to knock off the portion of 'A' schedule property, i.e., 'B' schedule property. He further contended that the father of the plaintiff No. 2 Thomas executed Will in the year 1990 in favour of plaintiff No. 2, whereas the defendant claims to have purchased the 'B' schedule property from General Power of Attorney holder of Thomas in the year 2001, i.e., on 7/3/2001. What he contended that when once the suit schedule property was bequeathed by Thomas in favour of his son plaintiff No. 2, the question of executing the alleged General Power of Attorney and affidavit as claimed by the defendant does not arise at all. So he contended that the above said aspect itself goes to show that the alleged General Power of Attorney and affidavit are got created by the defendant to knock off the suit schedule property.
28. He further contended that the plaintiffs in order to establish their stand that the suit schedule property is the absolute property of plaintiff No. 2 they got examined PW2. Her evidence clearly shows that she has supported the case of plaintiff and stated before the court that the plaintiff No. 1 is the absolute owner of the suit schedule property and also stated with regard to the encroachment made by the defendant in a portion of 'A' schedule property, i.e., 'B' schedule property. He further contended that the plaintiffs in order to establish their stand, i.e., to say the suit schedule property was acquired by plaintiff No. 2 under Ex.P17 Will they got examined one witness as PW3 and she is one of the signatories to the said Ex.P17 and also the sister of plaintiff No. 2. So he contended that her evidence clearly shows the property acquried by the plaintiff No. 2 through his father under Ex.P17 Will and the Will executed by Thomas in favour of plaintiff No. 2 is satisfactorily proved by the plaintiffs by examining the witness to Ex.P17 Will. So what he contended that the oral and documentary evidence placed before the court by the plaintiffs clearly shows that the plaintiff No.1 is the absolute owner of the suit schedule property and the defendant illegally and unauthorisedly encroached the portion of 'A' schedule property, i.e., 'B' schedule property. He further contended that DW1 in the cross- examination has admitted that the signature of Thomas forthcoming in Ex.D5, i.e., affidavit dated 10/9/1986 and Ex.D6, i.e., General Power of Attorney dated 10/9/1986 and the signature forthcoming in Ex.P17 Will are differs with each other. So what he contended that the said admission by DW1 in the cross-examination itself clearly goes to show that the father-in-law of the plaintiff No. 1 has not at all executed Ex.D5 and Ex.D6 and they are got created by the defendant to knock off the portion of suit schedule property. He further contended that none of the documents produced by the defendant shows that she is the absolute owner of the suit schedule property and they are executed by the father- in-law of plaintiff No.1. He further contended that though PW1 in the cross-examination has admitted certain things favourable to the defendant, but that cannot be used as a trumpcard to prove his case. What he contended that the defendant is requried to establish his case on her own strength. In support of his contention he placed his reliance upon the decision reported in (2014)2 SCC page 269. He further contended that the very cross-examination done by the learned counsel for the defendant shows that nothing worth has been elicited to disbelieve their evidence. Per contra there is sufficient acceptable evidence to show the encroachment made by the defendant in a portion of 'A' schedule property, i.e., 'B' schedule property. So in view of his above arguments and decision he urged to answer issue No. 1 to 5 in the affirmative and issue No. 6, 8 and 9 in the Negative.
29. The the learned counsel for the defendant during the course of his arguments contended that the plaintiffs have filed the present suit seeking for declaration, possession and permanent injunction. He further contended that basically there is no cause of action for the plaintiffs to file the present suit. He further contended that the plaintiffs have suppressed the true and material facts before this court. He further contended that the plaintiffs are not at all owners and never been in possession of the defendant property at any point of time. He further contended that the alleged document produced by the plaintiffs are not at all pertaining to the property purchased by defendant. He further contended that the plaintiff No. 1 contended that the suit schedule property was allotted to his father Thomas and also "Hakku Patra"
issued. He further contended that the plaintiff No. 2 claims that his father Thomas was died on 7/3/2003 leaving behind himself and other children and during his last days he was with him, as such by considering the said aspect he bequeathed the suit schedule property in his favour under the Will dated 5/1/1990. He further contended that the plaintiff No. 1 claims that subseeuqntly he bequeathed the suit schedule property in favour of plaintiff No. 2, who is none other than the wife under allged gift deed dated 8/6/2011. He further contended that the plaintiffs contended that when plaintiff No. 1 went to measure the property alleged to be obtained under gift deed, at that point they noticed the encroachment made by the defendant in the suit schedule 'A' property to the extent of 14 x 40 feet, i.e., 'B' schedule property and inspite of their resistence the defendant put up construction. So they have come up with the present suit claiming the reliefs for declaration, possession, permanent injunction and for such other reliefs.
30. He further contended that though the plaintiffs claims that i.e., plaintiff No.2 obtained suit schedule property by virtue of a Will dated 5/1/1990 alleged to be executed by his father Thomas, but in proof of the same no acceptable evidence has been placed before the court. He further contended that even the detail particulars of the execution of Will by his father Thomas has not been given by him in the plaint. He further contended that the plaintiff No.2 claiming title in respect of the suit schedule property by virtue of the alleged Will dated 5/1/1990, but the pleadings with regard to the said aspect is silent. He further contended that the plaintiffs examined PW3 who claims to be the witness to the alleged Will, but the evidence of the said witness cannot be accepted in view of the evidence given by her in the cross-examination. He further contended that PW3 is none other than the own sister of plaintiff No. 2 and in proof of the same he examined his own sister without examining the independent witness to the alleged Will. So what he contended that in the absence of specific pleadings and examination of independent witness the contention taken by the plaintiff No.2 that he acquired title in respect of the suit schedule property by virtue of the alleged Will cannot be accepted. In support of his arguments he has relied upon the decision reported in 2013(4) KCCR(SN) 307 (SC). By placing his reliance upon the said decision what he contended that under the above said circumstances the Will cannot be considered.
31. He further contended that the plaintiffs in their plaint and PW1 in his evidence contended that subseeuqntly he bequeathed the suit schedule property in favour of plaintiff No. 2 under the gift deed dated 8/6/2011. He further contended that the evidence on record shows that the plaintiff No. 2 has failed to prove acquiring title in respect of the suit schedule property under the alleged Will dated 5/1/1990 and when that would be the case the plaintiff No. 2 has absolutely no right to bequeath the suit schedule property in favour of plaintiff No. 2 under the alleged registered gift deed. What he contended that both alleged Will and alleged gift deed are concocted and created documents by the plaintiffs in order to knock of the suit schedule property. He further in order to substantiate his contention that the said two documents are concocted and created documents placed his reliance upon Ex.P11 gift deed. What he contended that the plaintiff No. 2 claims that he bequeathed the suit schedule property under registered gift deed dated 8/6/2011, whereas Ex.P11 shows that in words some other date has been mentioned with regard to the execution of alleged gift deed. What he contended that that aspect itself clearly goes to show that both the documents are got created by the plaintiffs in order to knock of the suit schedule property. He further contended that the very averments made by the plaintiffs in para 10(a) of their plaint shows that they have admitted that the defendant is the owner of the suit schedule property.
32. He further contended that the plaintiffs claims the suit schedule property was allotted to Thomas on 13/5/1972 and also issued "Hakku Patra" and also contending that father-in-law of the defendant and the said Thomas are vey close friends and the property of the father-in-law of the defendant is also by the side of the suit schedule property and when both of them went to effect khatha the father of plaintiff No. 2 lost "Hakku Patra" and other documents and the defendant taking advantage of obtaining the said documents encroached a portion of 'A' schedule property, i.e., 'B' schedule property. So far as the said contention of the plaintiffs is concerned what he contended that if the Thomas lost "Hakku Patra" and other documents certainly he would have given complaint with regard to the said aspect, but admittedly he has not taken any steps with regard to the said aspect.
33. He further contended that the father of the plaintiff No. 2, i.e., Thomas during his life time being the absolute owner of the suit schedule property executed General Power of Attorney in favour of one Shashidar S/o late Shammugam in respect of the suit schedule property and also executed an affidavit thereby confirming the execution of the said General Power of Attorney before the Small Causes Judge, Bangalore city. In order to substantiate his contention he placed his reliance upon Ex.D5 and Ex.D6. He further contended that based on the said General Power of Attorney and affidavit the said S.Shashidar executed registered sale deed in favour of defendant on 7/3/2001 and on the same day itself the possession of the property was handed over to the defendant. In order to substantiate his contention he placed his reliance upon Ex.D7. He further contended that the Thomas while executing the General Power of Attorney and affidavit as per Ex.D5 and Ex.D6 also handed over the original documents relating to the suit schedule property to his General Power of Attorney holder Shashidar, i.e., "Hakku Patra"
dated 13/5/1972 and assessment record. In order to substantiate his contention he placed his reliance upon Ex.D1 and Ex.D2. So what he contended that in view of the General Power of Attorney and affidavit as per Ex.D5 and Ex.D6 executed by Thomas in favour of Shashidar he handed over the original documents relating to the suit schedule property as referred above to defendant. Inspite of plaintiffs having knowledge of the above said aspect they falsely contended that Thomas lost the original "Hakku Patra" and other documents. He further contended that since Thomas during his life time by executing Ex.D5 and Ex.D6 affidavit and General Power of Attorney handed over the original "Hakku Patra" and original assessment record relating to the suit schedule property to the General Power of Attorney holder Shashidar and for that reason only they have not taken any steps, i.e., to say they have not given any complaint to the police. So he contended that the above aspect itself shows that though the plaintiffs are not having any right over the 'B' schedule property claiming right over the same by making baseless allegations that the defendant has encroached a poriton of 'A' schedule property,i.e. 'B' schedule property.
34. The learned counsel for the defendant further contended that the father of the plaintiff No. 2 Thomas was the owner of the suit schedule property. What he contended that it was acquired by him through "Hakku Patra" in the year 1972 and even the said fact has been admitted by PW1 in the cross-examination. He further contended that the documents in respect of the suit schedule property are all standing in the name of the said Thomas. He further contended that even the documents produced by the defendant at Ex.D7 khatha certificate and Ex.D9 certificate dated 8/7/2011 shows that they are standing in the name of vendor of the defendant, i.e., Thomas. So what he contended that since Thomas being the absolute owner of the suit schedule property executed affidavit and General Power of Attorney as per Ex.D5 and Ex.D6 in favour of Shashidar and the Shashidar in turn sold the portion of 'A' schedule property, i.e., 'B' schedule property under registered sale deed dated 7/3/2001 as per Ex.D7. He further contended that after purchasing the property by the defendant he approached the corporation authorties for change of khatha in respect of the property purchased by her and accordingly in respect of the same khatha was transferred in her name and the defendant herself was paying the taxes in respect of the suit schedule property and also she is staying therein along with her family members. In order to substantiate his contention he placed his reliance upon Ex.D12 tax paid receipt and Ex.D13 and Ex.D14 KEB bills to show that the electricity connection was obtained to the construction put up in the 'B' schedule property.
35. He further contended that though the plaintiffs claims to declare the plaintiff No. 1 is the absolute owner of the 'A' schedule property and contended that the defendant encroached a portion of 'A' schedule property, i.e., 'B' schedule property, but the plaint averments shows that no pleadings as to when encroachment took place. What he contended that mere statement that the defendant encroached the suit property in the absence of plaintiffs is not sufficient. He further contended that when the plaintiffs claims declaration of tile and possession, it is the burden of plaintiff to prove or make out his own case for title and entitlement to possession and he cannot rely on the weakness in title or possession of defendant. He further contended that though there may be some stray admission in the cross of DW1, but on the basis of the said stray admission it cannot be said that the plaintiffs have succeeded to prove the stand taken by them in the present suit. What he contended that when the plaintiff claims title and possession in respect of the suit schedule property, it is their duty to prove their claim by placing acceptable oral and documentary evidence and they cannot suppose to take advantage of weakness of the defendant. What he contended that the plaintiffs are required to prove their stand on their own and not on the weakness of other side, muchless the defendant. In support of his contention he placed his reliance upon the following decisions:
(1) (2009)14 SCC page 224 (2) (2014)2 SCC page 269 (3) ILR 2005 Kar page 884 (4) 2004(1) KCCR page 662.
36. He further contended that the documents produced by the plaintiffs at Ex.P1 to Ex.P7 are all the documents after 2011. He further contended that the defendant has produced earlier revenue documents standing in the name of father of the plaintiff No. 2, i.e., Thomas at Ex.D8 and Ex.D9. He further contended that the very documents produced by the defendant at Ex.D1 and Ex.D3, i.e., original "Hakku Patra" dated 13/5/1972, Ex.D2 original assessment record, Ex.D3 two notices issued in the name of Thomas clearly shows that those documents came into the custody of defendant in view of the sale deed executed by Shashidar in favour of the defendant by virtue of Ex.D5 affidavit and Ex.D6 Power of Attorney executed by father of the plaintiff No. 2 Thomas before the court of Small Causes Judge, Bangalore city. He further contended that the very documents produced by the defendant at Ex.D7, i.e., sale deed dated 7/3/2001 clearly shows it is a part of 'A' schedule property and the evidence on record clearly shows on the date of execution of Ex.D7, i.e., sale deed dated 7/3/2001 the possession of the property was handed over to the defendant and subsequently she got transferred khatha in her name by approaching the concerned authority and residing therein along with family members by putting up construction and the very documents produced by defendant at Ex.D12 shows that she herself paying taxes in respect of the suit schedule property. So what he contended that absolutely there is no acceptable evidence placed before the court to prove the stand taken by the plaintiffs, whereas the oral and documentary evidence placed before the court by the defendant clearly shows that 'B' schedule property is a portion of 'A' schedule property and by virtue of General Power of Attorney executed by Thomas in favour of Shashidar, he has executed registered sale deed in favour of defendant as per Ex.D7 and the evidence on record also clearly shows that the defendant is in peaceful possession and enjoyment of the 'B' schedule property. So in view of his above arguments and decisions he urged to answer issue No. 1 to 5 in the Negative and issue No. 6 , 8 and 9 in the affirmative.
37. In the light of the arguments canvassed by the respective counsels for the parties, I have gone through the records and also the decisions as relied upon by the respective counsels for the parties. Admittedly the plaintiffs have filed the present suit seeking the relief of declaration to declare the plaintiff No. 1 as the absolute owner of the 'A' schedule property, seeking for possession of 'B' schedule property by demolishing / removing all the obstacles, permanent injunction and for such other reliefs.
38. The contention of the plaintiffs is that the suit schedule property was allotted to Thomas in the year 1972. It is the contention of the plaintiffs that Thomas was died on 7/3/2003 and the plaintiff No. 2 being the son of Thomas was taking care during his last days, as such by considering the said aspect he bequeathed the suit schedule property to plaintiff No. 2 under the Will dated 5/1/1990. It is the contention of the plaintiffs that subsequently plaintiff No. 2 bequeathed the suit schedule property in favour of plaintiff No. 1 under registered gift deed dated 18/6/2011. So they contended that plaintiff No. 1 acquired the suit schedule 'A' property under the gift deed dated 8/6/2011 as the absolute owner of the same. It is the contention of the plaintiffs that when the plaintiff No.1 went to measure the property at that time they noticed the encroachment made by the defendant to the extent of 14 x 40 feet which is shown in the plaint schedule as 'B' schedule property.
39. The most important aspect to be taken note of here is that the plaintiffs throughout their plaint and PW1 in his evidence stated that the suit schedule property was acquired by Thomas and "Hakku Patra" was issued to him in the year 1972. Whereas upon perusal of the cross- examination of PW1 he states that he does not know how his father obtained the suit schedule property and he pleaded his ignorance with regard to acquisition of suit schedule property by Thomas through "Hakku Patra" in the year 1972 and stated that the suit schedule property was given to his father Thomas by Christ Jothi College. At this juncture it would be relevant to quote the said portion of evidence given by PW1 in the cross-examination at page No.10, 1st para, 7th line from the bottom and at page No.11, first 9 lines wherein he has stated as under:
ದದವದ ಆಸಸ ನವವವಶನ ಸಸಖವಖ 81 ಮಮಲತತ ನಮಮ ತಸದವಗವ ಸವವರದದದ ಅದದ ನನನ ತಸದವಯ ಸಸಯದಜತರ ಆಸಸ. ಅವರಗವ ಅದದ ಹವವಗವ ಬಸತದ ಎನದನವವದದ ಗವಮತಸಲಲ. 1972 ರಲಲ ತಹಶವಲದದರರದ ದದವದ ಆಸಸಯನದನ ನನನ ತಸದವಗವ ಹಕದಕಪತತದ ಮಮಲಕ ನವಡದದರದ ಎನದನವವದದ ಗವಮತಸಲಲ . ಈ ದದವವ ದದಖಲಸದವವದಕಕಸತ ಮದಲದ ನಸತರ ದದವದ ಆಸಸ ನನನ ತಸದವಗವ ಹವವಗವ ಬಸದದ ಎಸದದ ತಳದದಕವಮಳದಳವ ಪತಯತನ ಮದಡದವದ. ಆ ಬಗವಗ ನನನ ತಸದವಯನದನ ವಚದರಸದದಗ ಡ.ಸ.ಪದಳಖದಲಲರದವ ಕಸಸಸಜವಮಖವತ ಕದಲವವಜನಲಲ ತದನದ ಕವಲಸ ಮದಡದತಸದದದ ಕದಲವವಜನವರವವ ತನಗವ ದದವದ ಆಸಸಯನದನ ದದನ ಮದಡದದದರವ ಎಸದದ ತಳಸದರದ . ಕತಸಸಜವಮಖವತ ಕದಲವವಜನವರದ ದದವದ ಆಸಸಯನದನ ನನನ ತಸದವಗವ ದದನ ಕವಮಟಟದದರದ ಎಸದದ ತವಮವರಸಲದ ನನನ ಬಳ ದದಖಲವ ಇಲಲ . ದದವದ ಆಸಸಯನದನ ಕತಸಸಜವಮಖವತ ಕದಲವವಜನವರದ ನನನ ತಸದವಗವ ದದನವದಗ ಕವಮಟಟದದರದ ಎನದನವ ವಷಯವನದನ ದದವವ ದದಖಲಸದವ ಸಮಯದಲಲ ನನನ ವಕವಲರಗವ ಮದಹತ ಕವಮಟಟರಲಲಲ .
40. Looking into the above evidence given by PW1 in the cross- examination it clearly shows that he is saying quite contrary to the things stated by him in the plaint. So by taking note of these aspects it can be said that the plaintiffs are not very firm and even they does not know how Thomas acquired the suit schedule property and inspite of that they claim title and possession in respect of the suit schedule property.
41. It is the contention of the plaintiffs that by taking into consideration the plaintiff No. 2 has taken care of Thomas during his last days he bequathed the suit schedule property under the Will dated 5/1/1990 as per Ex.P17. When the plaintiff No. 2 claiming right in respect of 'A' schedule property under Ex.P17 Will, it is for him to establish the due execution of Ex.P17 Will by Thomas bequeathing the suit schedule property in his favour. Upon perusal of the evidence on record it shows that no acceptable evidence has been placed before the court. Even upon perusal of the plaint averments details of execution of Ex.P17 Will not stated. The plaintiffs in order to prove the execution of Ex.P17 Will examined one witness as PW3, who claims to be the attesting witness to the said Will and she is also the own sister of plaintiff No. 2. Upon perusal of the evidence of PW3, who claims to be one of the witness to Ex.P17 Will it shows that she does not know anything about the Will and the way in which she has given evidence in the cross-examination it shows she is trying to suppress somewhat the truth of the matter. As it is already stated above PW3 is none other than the own sister of plaintiff No. 2. In order to prove the due execution of Will the plaintiffs are required to examine independent witness, but the same has not been done by the plaintiffs. Upon perusal of the evidence on record it shows that the plaintiffs have not proved the due execution of Will as required under section 68 of the Indian Evidence Act. In this regard the dictum laid down by their lordship in a decision reported in 2013(4) KCCR (SN) 307 (SC) at Headnote (I) wherein it was held by their lordship as under:
Civil Procedure Code 1908 - Order 6 Rule 1
- Specific Relief Act, 1963 - Section 34 - In a suit for declaration of title, if pleadings silent regarding plaintiff getting title by Will, Will cannot be considered by the court. Also because it was not proved as per section 68 of Indian Evidence Act.
42. Looking into the dictum laid down by their lordship in the above decision it can be said that the same is aptly applicable to the present case in hand. So from the material evidence on record and in the light of the dictum laid down by their lordship in the above referred decision it can be said that the plaintiffs have failed to prove the due execution of Ex.P17 Will by Thomas bequeathing the suit schedule property in favour of plaintiff No. 2
43. Now coming to the contention taken by the plaintiffs that after plaintiff No.2 acquiring the suit schedule property under the alleged Ex.P17 Will he bequeathed the suit schedule property in favour of plaintiff No.2, who is none other than his wife as per Ex.P11 registered gift deed. Upon perusal of the alleged gift deed Ex.P11 it shows that the same is executed on 8/6/2011. So also upon careful perusal of the said Ex.P11 it shows that in bracket it was mentioned as the said gift deed was executed on 8/6/2011, whereas in words it was mentioend that on 24th June 2011 the said gift deed was executed. So far as this aspect is concerned absolutely no explanation given by the learned counsel representing the plaintiff. Another important aspect to be taken note of here is that this Ex.P11 alleged gift deed came into existance after execution of registered sale deed dated 7/3/2001 in favour of defendant by General Power of Attorney holder of Thomas. So also upon perusal of the schedule mentioned in Ex.P11 alleged gift deed and Ex.D7 registered sale deed it shows that the boundaries mentioned in the said two documents are one and the same. So by taking note of the above said aspect it can be said that after coming to know the execution of sale deed as per Ex.D7 in favour of defendant by General Power of Attorney holder of Thomas this alleged Ex.P11 deliberately got created by the plaintiff No. 2 as if he gifted the said property under the alleged Ex.P11 gift deed. As it is already stated above absolutely no explanation with regard to the date mentioned in wordings, i.e., 24 th June 2011 given by the plaintiff counsel. So by taking all these aspects it can be said that the plaintiffs are somewhat trying to suppress the truth of the matter and also the very conduct of the plaintiffs goes to create a doubt in the mind of the court to accept the stand taken by them in the present suit.
44. As it is already stated above plaintiff No. 2 claims that he acquired the suit schedule property under alleged Ex.P17 Will in the year 1990, but till the execution of alleged gift deed as per Ex.P11 in favour of plaintiff No. 2 his wife he has not made any application to the concerned authorities for change of his name in respect of the suit schedule property. The plaintiffs have produced Ex.P1 Form 'B' Property Register Extract. Upon perusal of the said document it shows that the same was shown to be issued on 22/3/2011. So also upon perusal of the said document it shows that something was typed upon the said document which is no way relating to the said document. So by seeing with bare eyes the said document it can be said that Ex.P1 is a manipulated and created by the plaintiffs for the purpose of this case. Upon perusal of the documents produced by the plaintiffs it shows that all the revenue documents produced by them are of the year 2011 and onwards and they have not produced a single document showing the name of plaintiff No. 2 in the revenue records, after he acquiring the suit schedule property by vitrue of alleged Ex.P17 Will. As it is already stated above Ex.P11 alleged registered gift deed is also came into existance after execution of registered sale deed dated 7/3/2001 in favour of defendant by the General Power of Attorney holder of Thomas. So upon perusal of the oral and documentary evidence placed before the court it shows that the alleged documents relied by the plaintiffs, i.e., Ex.P11 and Ex.P17 are created and concocted documents and also a doubt may arises about the genuinity of the said documents. Under such circumstances whatever stand taken by the plaintiffs cannot be accepted.
45. The plaintiffs in their plaint contended that the property of the father-in-law of the defendant is by the side of property acquired by Thomas, i.e., the suit schedule property and both were close friends. It is the contention of the plaintiffs that when the Thomas and the father-in- law of the defendant both went to effect khatha in respect of their property before concerned authorities, during that time the said Thomas lost his "Hakku Patra" issued by the Tahsildar, Bangalore South Taluk, pertaining to the suit schedule property. The said aspect even deposed by PW1 in his evidence. When the plaintiffs have so firmly contended with regard to the above said aspect it is their duty to establish before the court by placing acceptable evidence that the father of the plaintiff No. 2 and father-in-law of plaintiff No. 1 Thomas lost "Hakku Patra" when he went to effect khatha in respect of the suit schedule property. The evidence placed before the court shows that no acceptable evidence has been placed before the court with regard to the said aspect. If according to the plaintiffs the said Thomas lost "Hakku Patra" and other documents which he carried along with the same, certainly he would have lodged complaint before the jurisdictional police authorities or atleast the plaintiffs being the daughter-in-law and son respectively they would have taken steps with regard to the above said aspect, but admittedly no steps has been taken neither by Thomas during his life time nor after his demise by the plaintiffs. Even the said fact has been admitted by PW1 in the cross-examination. At this juncture it would be relevant to quote the said portion of evidence given by PW1 at page No. 14, 1 st para, first three lines wherein he has admitted as under:
ನನನ ಮಮಖಖವಚಚರಣಣ ಪಪಮಚಣ ಪತಪದ 6 ನಣನ ಪಚಖರಚದಲಲ ಹಕಮಕಪತಪ ಕಳಣದಮಹಣಹನದ ಬಗಣಗ ನಮಹದಸದಮದ ಆ ಹಕಮಕಪತಪವನಮನ ಯಚರಮ ಯಚವಚಗ ಎಲಲ ಕಳಣದಮಹಚಕದರಮ ಎನಮನವವದಮ ಗಣಹತತಲಲ.
46. Again in the same page after 2 lines PW1 deposed as under:
ನನನ ತತದಣಯ ಹಣಸರಗಣ ಇದದ ಹಕಮಕಪತಪ ಕಳಣದಮಹಣಹಗದಣ ಎತದಮ ಪಲಸರಗಣ ದಹರಮ ಕಣಹಟಟಲಲ ದನಪತಪಕಣಯಲಲ ಪಪಕಟಣಣ ಕಣಹಟಟಲಲ . ಆ ಹಕಮಕಪತಪದಣಹತದಗಣ ಬಣನರಣ ಕಣಲವವ ಕಚಗದಪತಪಗಳಮ ಕಳಣದಮಹಣಹನಗವಣ ಎತದಮ ನನನ ತತಗ ಹಣನಳದದಳಮ ಆ ಕಚಗದಪತಪಗಳಮ ಯಚವವವವ ಎನಮನವವದಮ ಗಣಣಹತತಲಲ.
47. The above evidence given by PW1 in the cross-examination shows that even he does not know when and where the "Hakku Patra"
was lost and even he has not lodged any complaint with regard to the said aspect and no proper publication taken with regard to the above said aspect. If according to the plaintiffs if the "Hakku Patra" and other documents were lost by Thomas certainly they would have taken steps either to trace the said documents or to lodge complaint before the jurisdictional Police Station. When that would be the case the above contention taken by the plaintiffs cannot be accepted and no prudent man will accept the said say of the plaintiffs.
48. The evidence placed before the court by the defendant shows how the documents relating to the suit property muchless the "Hakku Patra"
issued in the name of Thomas and other documents came into their custody. DW1 in his evidence stated that Thomas the father of plaintiff No. 2 and father-in-law of plaintiff No. 1 during his life time executed affidavit and General Power of Attorney in favour of one Shashidar and subsequently on the strength of the same the said Shashidar executed sale deed in favour of defendant on 7/3/2001 and at that time the said Shashidar handed over the original "Hakku Patra", original assessment along with two notices issued in the name of Thomas and the said documents are placed before the court by the defendant at Ex.D1 to Ex.D3 and even the defendant produced the original khatha extract dated 27/5/2004 and khatha certificate dated 8/7/2011 at Ex.D8 and Ex.D9 respectively standing in the name of Thomas. The defendant has placed acceptable evidence before the court how the said original documents standing in the name of Thomas relating to the suit schedule property reached their hands. When that would be the case the theory put forth by the plaintiffs that Thomas lost the original "Hakku Patra" and other documents when he went along with father-in-law of the defendant cannot be accepted. So also the stand taken by the plaintiffs that the defendant by securing the said lost documents encroached the portion of 'A' schedule property, i.e., 'B' schedule property cannot be accepted.
49. The learned counsel for the plaintiffs much contended that the original "Hakku Patra" and other documents which were lost by Thomas secured by the defendant and taking advantage of the same they got created Ex.D5 affidavit and Ex.D6 Power of Attorney. He further contended that DW1 in the cross-examination admitted that the signature of Thomas forthcoming in Ex.P17 alleged Will differs from the signature forthcoming in Ex.D5 affidavit and Ex.D6 General Power of Attorney. So he contended that that aspect itself shows Ex.D5 and Ex.D6 are concocted and created documents by the defendant in order to knock off the suit schedule property. So far as the said aspect is concerned it can be said that no doubt DW1 in his crossexamination admits that the signature of Thomas forthcoming in Ex.D17 differs from the signature forthcoming in Ex.D5 affidavit and Ex.D6 General Power of Attorney, but he has not stated or admitted that the signature forthcoming in Ex.D5 and Ex.D6 are not that of Thomas. Admittedly the said two documents, i.e., Ex.D5 and Ex.D6 are executed before the Small Causes Judge, City Civil Court, Bangalore. Under such circumstances the contention of the the learned counsel for the plaintiffs that the said two documents are concocted and created documents cannot be accepted. If according to the plaintiffs the signature forthcoming in Ex.D5 affidavit and Ex.D6 General Power of Attorney is not that of the Thomas, they would have taken steps to disprove the signature forthcoming in the said two documents in the manner known to law, i.e., to say he could have made an application to refer admitted and disputed signature to the Handwriting Expert to get their opinion, but admittedly no such steps have been taken by the plaintiffs for the best reasons known to them. Under the above such circumstances whatever the contention taken by the learned counsel representing the plaintiffs that Ex.D5 affidavit and Ex.D6 General Power of Attorney are concocted and created documents cannot be accepted.
50. Now coming to the contention taken by the plaintiffs that the plaintiff No. 1 after acquiring the suit schedule property under the alleged Ex.P1 registered gift deed she went to measure the property and at that particular point of time they noticed the encroachment made by the defendant to the extent of 14 x 40 feet in the 'A' schedule property, i.e., shown as 'B' schedule property in the plaint schedule. So far as the said contention of the plaintiffs is concerned it can be said that though they stated in the plaint with regard to the alleged encroachment by the defendant, but upon perusal of the plaint averments and the evidence of PW1 shows that no particulars of encroachment, i.e., when and on which date the defendant enchroached the portion of 'A' schedule property, i.e., 'B' schedule property. Though the plaintiffs in their plaint contended that when they went to measure the suit schedule property at that time they noticed the encroachment made by the defendant, but admittedly no report of the person who has measured the property has been placed before the court. When that would be the case on the basis of the bald contention taken by the plaintiffs it cannot be possible to say that the defendant has encroahed a portion of 'A' schedule property. i.e., 'B' schedule property. When the parties contending encroachment by the other party in their property it is their duty to state in detail about the encroachment made by the other party. In this regard the dictum laid down by their lordship in a decision reported in (2009)14 SCC page 224 at Headnote 'C' is aptly applicable to the present case. In the said decision it was held by their lordship as under:
C. "Civil Procedure Code, 1908 - Order 7 Rule 7 & 8 - Suit for declaration of title and possession - burden of proof
- particulars and pleadings necessary to establish - suit filed against encroachment of disputed property -
no pleadings as to when enchroachment took place - mere statement that defendants encroached in absence of plaintiff -
held, plaintiff has to make out his own case for title and entitlement to possession and cannot rely on weakness in title or possession of defendants - Evidence Act, 1872, Section 101 to 103."
51. Looking into the dictum laid down by their lordship in the above decision it shows that the same is aptly applicable to the present facts and circumstances of the case. Apart from that even PW1 in his cross-
examination has admitted that he cannot say on which date, month or year encroachment made by the defendant in the suit schedule property. At this juncture it would be relevant to quote the said portion of evidence given by PW1 in the cross-examination at page No. 12, last para and page No. 13, 1st three lines which reads as under:
ಕಳಣದ ಅತದಚಜಮ 4 ವಷದರ ಹತದಣ ಪಪತವಚದಯಮ ದಚವಚ ಆಸತಯಲಲ ಒತಮತವರ ಮಚಡದಚದರಣ. ಆದರಣ ಯಚವ ತತಗಳಮ , ದನಚತಕ , ವಷರದತದಮ ದಚವಚ ಆಸತಯಲಲ ಒತಮತವರ ಮಚಡದಚದರಣ ಎತದಮ ಹಣನಳಲಮ ಆಗಮವವದಲಲ .
52. Again PW1 at page no.13, after 3-4 lines admitted as under:
ಪಪತವಚದಯಮ ಒತಮತವರ ಮಚಡರಮವ ಜಚಗದಲಲ ಶನಟಮ ಮನಣ ಕಟಟಕಣಹತಡದಚದರಣ . ಪಪತವಚದಯಮ ದಚವಚ ಆಸತಯಲಲ ಒತಮತವರ ಮಚಡ ಮನಣ ಕಟಮಟವ ವಣನಳಣ ನಚನಚಗಲನ ನನನ ಸಹಣಹನದರ ಸಹಣಹನದರಯಚಗಲನ ಇರಲಲಲ .
53. The above evidence given by PW1 in the cross-examination clearly shows that though they contended with regard to the alleged encroachment by the defendant in the 'B' schedule property, but they does not know when the enchroachment was made and even the pleadings in the plaint is very silent with regard to the above said aspect.
In view of the dictum laid down by their lordship in the above referred decision whatever the bald contention taken by the plaintiffs cannot be accepted.
54. In this case the plaintiffs in order to establish their case got examined one witness as PW2. Upon perusal of the evidence of said witness it shows that though he spoken with regard to the factum of giving complaint to the jurisdictional police with regard to the alleged dispute between the plaintiffs and defendant, but upon perusal of the evidence given by him in the cross-examination it shows that he does not know anything about the case and he clearly stated in his evidence whatever things he has stated in his chief-examination are told by the plaintiffs and even he has stated that for preparing his affidavit evidence the plaintiffs have given information to the counsel. Under such circumstances it is needless to say that the evidence of PW2 is not helpful to the case of plaintiffs. Upon perusal of evidence of PW2 it shows that in unequivocal terms he has stated that he does not know about the transaction made by Thomas in respect of the suit schedule property during his life time. When that would be the case the evidence given by PW2 in his chief affidavit evidence cannot be believed. As it is already discussed above the plaintiffs in order to prove the execution of alleged Ex.P17 Will examined on witness as PW3, who alleged to be the signatory to the said document and also she is the own sister of plaintiff No. 2. Upon perusal of her evidence given in the cross-examination it clearly shows she does not know anything the transaction made by her father Thomas during his life time. When that would be the case the contention taken by the plaintiffs that the defendant has encroached 'B' schedule property cannot be accepted.
55. The most important aspect to be taken note of here is that it is an undisputed fact that the suit schedule property acquired by Thomas in the year 1972. The plaintiff No. 2 claims that he acquired the suit schedule property under the alleged Will as per Ex.P17 in the year 1990. The plaintiff No. 1 claims she acquired the suit schedule property under the alleged Ex.P11 gift deed in the year 2011. The defendant contended that she acquired the suit schedule property through registered sale deed in the year 2001 from the General Power of Attorney holder of Thomas. It is an undisputed fact that Thomas was expired in the year 2003, which is also very evident from Ex.P2. So looking at all the above said documents it shows that during the life time of Thomas itself his General Power of Attorney holder S.Shashidar executed Ex.D7 sale deed dated 7/3/2001 in favour of defendant No. 1 and after two years he was died. So it is clear that though the General Power of Attorney holder of Thomas sold the suit schedule 'B' property in favour of defendant No. 1 the Thomas has not objected nor challenged the said Ex.D7 sale deed and even he has not challenged or disputed Ex.D5 affidavit and Ex.D6 General Power of Attorney executed in favour of Shashidar before the Small Causes Judge, City Civil Court, Bangalore. Under such circumstances the contention of the plaintiffs that the defendant taking advantage of securing the lost documents by Thomas got created Ex.D5 and Ex.D6 and encroached the 'B' schedule property cannot be accepted. The most important aspect to be taken note of here is that PW3, who is none other than the daughter of Thomas and sister of plaintiff No. 2 during the course of cross-examination in unequivocal terms admitted that Thomas was aware of the factum of defendant encroached the suit schedule property muchless the 'B' schedule property. At this juncture it would be relevant to quote the said portion of evidence given by PW3 at page No. 4, 9 th line from the top which reads as under:
ನನನ ತತದಣ ಜನವತತ ಇರಮವಚಗಲಣನ ಅತದರಣ
ಅತದಚಜಮ 20 ವಪಗರಳತದ ದಚವಚ ಆಸತಯಲಲ
ಪಪತವಚದ ಒತಮತವರ ಮಚಡರಮವ ವಚಚರ ಗಣಹತಮತ ,
ದಚವಚ ಆಸತಗಣ ಸತಬತದಸ ನನನ ತತದಣ ಮಮಕತನಚರಮ
ಮಚಡಕಣಹಟಟರಮವ ವಚಚರ ಗಣಹತತಲಲ .
56. The above evidence given by PW3 in the cross-examination goes to collapse the entire case set up by the plaintiffs, i.e., the defendant has without any manner of right, illegally encroached the suit schedule property, i.e., 'B' schedule property. On the other hand as it is already discussed above by virtue of Ex.D7 registered sale deed executed by General Power of Attorney holder of Thomas, she obtained the possession of 'B' schedule property and she is in lawful possession and enjoyment of the suit property. As it is already stated above, PW3 in her evidence stated that she does not know about the execution of General Power of Attorney by her father Thomas in favour of Shashidar. Even the same thing has been stated by PW1 in his cross-examination. So it can be said that both PW1 and PW3 being the son and daughter of Thomas not whole-heartedly denied the factum of execution of Ex.D5 affidavit and Ex.D6 General Power of Attorney in favour of Shashidar. Under such circumstances whatever the contention taken by the plaintiffs cannot be accepted.
57. The plaintiffs in their plaint pleaded that the panchayat was convened with regard to the alleged encroachment made by the defendant and even in the chief-examination also PW1 stated the same thing. But the very strange thing is that in the cross-examination PW1 has totally denied the said aspect and he has stated that no panchayat had taken place with regard to the alleged encroachment issue. At this juncture it would be relevant to quote the said portion of evidence given by PW1 in the cross-examination at page No. 15 after 4 lines which reads as under:
ನನನ ಪಪಮಚಣ ಪತಪದ 7 ನಣನ ಪಚಖರಚದಲಲ ಪತಚಚಯತ ಆದ ಬಗಣಗ ನಮಚದಸದಮದ ಆದರಣ ಆ ರನತಯ ಪತಚಚಯತ ಆಗರಲಲಲ ಎತದಮ ಸಚಕಕ ನಮಡದದಚದರಣ .
58. The above evidence given by PW1 and PW3 clearly goes to show that somewhat they are trying to suppress the truth of the matter for the best reasons known to them. As it is already stated above the plaintiffs claiming to declare plaintiff No. 1 as the absolute owner of the suit schedule property and sought for possession of the encroached area, i.e., 'B' schedule property and contending with regard to the alleged encroachment by the defendant and also sought for such other reliefs. When they are claiming such kind of reliefs, it is the basic burden of the plaintiffs to prove the said aspect by placing acceptable oral and documentary evidence before the court. But admittedly no such acceptable neither oral nor documentary evidence placed before the court. When they failed to place before the court the acceptable evidence it is needless to say that they are not entitled for the reliefs as sought by them. In this regard it would be relevant to refer the decision rendered in 2013(4) KCCR (SN) 342 between K.Vishwanathan, since deceased by legal representatives - Appellants Vs. Smt.Anasuyamma - respondents, wherein it was held by their lordship as under:
Civil Procedure Code, 1908 - Section 38 - Specific Relief Act, 1963 - Section 34 - Suit for declaration, possession and mandatory injunction - Plaintiff contended that the defendant encroached on her vacant site during the pendency of her suit for injunction and put up construction hurriedly, which necessitated the subsequent suit - Evidence on record showed that the plaintiff had not exercised possession over the suit property and khatha of the said property was not transferred in her favour nor she had paid tax thereon -
Reliance placed on the sale deeds of neighbours was not accepted - The defendant was found to be in continuous possession over the suit property and was residing thereon by making constructions - Even khatha of the said property was made out in the name of the defendant and he was paying taxes - Held, the Trial Court erred in decreeing the suit of the plaintiff and the sme was liable to be set aside."
59. Looking into the dictum laid down by their lordship in the above decision, it can be said that the same is aptlly applicable to the present case in hand. In the present case also though the plaintiff No. 1 claims that she is the absolute owner of the suit schedule property, but no acceptable materials placed before the court. So also the plaintiff No. 2 claims that he acquired the suit schedule property under Will dated 5/1/1990, but he failed to prove the due execution of said Will by his father Thomas by bequeathing the suit schedule property in his favour.
So also the plaintiffs have failed to prove the execution of Ex.P11 alleged registered gift deed dated 8/6/2011. As it is already discussed above after execution of registered sale deed by the General Power of Attorney holder of Thomas by name Shashidar in favour of defendant, alleged Ex.P11 came into existence and there is mistake in the date of execution of said alleged registered gift deed, i.e., to say in numbers it was mentioned as executed on 8/6/2011, whereas in words it was mentioned that the same was executed on 24/6/2011, but absolutely no explanation with regard to the said aspect. The evidence on record as discussed above shows that the plaintiffs have miserably failed to prove that the defendant has made encroachment in the 'B' schedule property and also no acceptable evidence to show the defendant is trying to trespass and interfere with plaintiffs peaceful possession and enjoyment of the 'A' schedule property. Whereas the evidence placed before the court by the defendant shows that 'B' schedule property is a part of 'A' schedule property and she has acquired the same under Ex.D7 registered sale deed by virtue of the affidavit and General Power of Attorney executed by the father of plaintiff No. 2 and father-in-law of plaintiff No. 1 in favour of one Shashidar and the evidence on record clearly shows, right from the date of execution of Ex.D7 sale deed the defendant is in lawful possession and enjoyment of the property.
60. So also the documents placed before the court by the defendant shows that she has produced original khatha extract at Ex.D8 and khatha certificate at Ex.D9 which were standing in the name of her vendor and after she purchasing the suit schedule property her name came to be entered in all the revenue records i.e., in Ex.D10 demand register extract and Ex.D11 encumbrance certificate and 26 tax paid receipts at Ex.P12 and the endorsement given by KEB at Ex.P13 clearly shows that the defendant herself is paying taxes in respect of the suit schedule property and she has obtained electricity connection and she herself paying the KEB bill. So looking into the oral and documentary evidence on records and in the light of the dictum laid down by their lordship in the above referred decisions it can be said that the plaintiffs have not made out good grounds, i.e., they have not placed acceptable neither oral nor documentary evidence to decree the suit. When that would be the case it is needless to say that there is no merit in the suit filed by the plaintiffs. For the foregoing reasons and discussions this court is of the opinion that the plaintiffs have failed to prove issue No. 1 to 5 and the defendants have succeeded to prove issue No. 6, 8 and 9. Accordingly issue No. 1 to 5 are answered in the Negative and issue No. 6, 8 and 9 are answered in the Affirmative.
61. Issue No. 7: The defendant in her written statement contended that the suit of the plaintiffs is barred by limitation. Admittedly the plaintiffs have filed the present suit seeking the relief of declaration, possession, permanent injunction and such other reliefs. The plaintiffs in the plaint shows the cause of action accrued to them in the year 2007. By taking note of the said date and by taking note of the plaintiff sought the relief of possession along with other reliefs it can be said that the suit of the plaintiffs is not barred by limitation. Accordingly issue No. 7 is answered in the Negative.
62. Issue No. 10: The defendant in her written statement contended that the plaintiffs have not properly valued the suit and the court fee paid by the plaintiff is incorrect. Though the defendant has contended like so in her written statement, she has not stated the marked value of the suit schedule property as on the date of filing the suit and the requried court fee to be paid by the plaintiffs. Admittedly the plaintiffs have filed the present suit seeking declaration, possession and such other reliefs and on the basis of the reliefs sought by them they have paid court fee of Rs.43,000/- as per section 24(a) & (b) of KCF & SV Act. Upon perusal of the valuation slip enclosed to the plaint it shows that the plaintiffs have properly valued the suit and they have paid the proper court fee as per the relief sought by them. For the reasons stated above it can be said that the plaintiffs have properly valued the suit and the court fee paid by them is sufficient. Accordingly issue No. 10 is answered in the Negative.
63. Issue No. 11: In view of my findings to the above issues the plaintiffs are not entitled for any reliefs muchless the reliefs as sought by them. Accordingly the issue in question is answered in the Negative.
64. Issue No. 12: In view of my findings to the above issues, I proceed to pass the following:
ORDER The suit of the plaintiffs is hereby dismissed.
No order as to cost.
Draw decree accordingly.
(Dictated to the Judgment-Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in the open court on this the 2 nd day of July 2018.) (Sadananda M.Doddamani) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE Witnesses examined for the plaintiff :
PW1 - Maria Joseph
Witness examined for the defendant :
DW1 - S.Parvathi
Documents marked for the plaintiff :
Ex.P1 - Form B Property Register extract
Ex.P2 - Death Certificate
Ex.P3 - Genealogical tree
Ex.P4 -9 6 Tax paid receipts
Ex.P10- Election ID
Ex.P11- Gift deed
Ex.P12- Endorsement issued by police
Ex.P13-15- Thee Electrical Bills
Ex.P16- Copy of Representation
Ex.P17- Will
Ex.P17(a)- Signature
Ex.P17(b)- Signature of father
Ex.P17(c)- Signature of father
Documents marked for the defendant :
Ex.D1 - Hakku patra dated 13.05.1972
Ex.D2 - Assessment recording
Ex.D3 - 2 Notices
Ex.D4 - 3 Tax paid receipts
Ex.D5 - Affidavit dated 10.09.1986
Ex.D6 - GPA dated 10.09.1986
Ex.D7 - Sale deed dated 7.3.2001
Ex.D8 - Khatha extract dated 27.5.2004
Ex.D9 - Khatha certificate dated 8.7.2011
Ex.D10 - Demand Register Record
Ex.D11 - 2 Encumbrance certificates
Ex.D12 - 26 Tax paid receipts
Ex.D13 - Endorsements given by KEB
Ex.D14 - 5 electricity bills
(Sadananda M.Doddamani)
XXV ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
Judgment pronounced in the open court
(vide separate detailed Judgment)
The suit of the plaintiffs is hereby
dismissed.
No order as to cost.
Draw decree accordingly.
XXV ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.