Bangalore District Court
O.S./5169/2014 on 28 February, 2022
IN THE COURT OF XXXIX ADDITIONAL CITY CIVIL JUDGE,
[CCH-40], BANGALORE CITY
Dated on this the 28th day of February, 2022
-: PRESENT :-
Sri.Khadarsab, B.A., LL.M.,
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
ORIGINAL SUIT NO. 5169/2014
Plaintiff :-
1. Sri T.R. Murali, S/o The.S. Ramaswamy
Iyengar, 46 years, R/o.No.99, 4th Main
Road, Poornapragna Layout,
Banashankari 3 Stage, Bangalore - 85.
rd
2. Smt. K. Sripriya, W/o T.R. Murali, 40
years, R/o.No.99, 4th Main Road,
Poornapragna Layout, Banashankari 3rd
Stage, Bangalore - 560 085.
[By Sri.K.M.Subair., Advocate]
/ VERSUS /
Defendants :-
1. M. Puttaswamy, S/o Late Muniyappa,
Major.
2. Smt.Sarojamma W/o Late Sitaram,
Major.
/2 / O.S.No.5169/2014
3. Lokesh, S/o Late Sitaram, Major.
4. Vinutha, S/o Late M. Muniraju, Major.
5. Smt.Shivalingamma W/o. Late
M.Muniraju, Major.
6. Ravi, S/o Late M. Muniraju, Major.
7. Gangadhar, S/o Late M. Muniraju,
Major.
8. Latha, D/o Late M. Muniraju, Major.
All are residing at No.21, 2nd Main Road,
Deepanjali Nagar, Bangalore.
(By Sri.S.M., Advocate)
***
Date of Institution of the
: 09.07.2014
suit
Suit for declaration and
Nature of suit :
permanent injunction
Date of commencement of
: 30.07.2021
evidence
Date on which the
: 28.02.2022
judgment is pronounced
Years Months Days
Duration taken for disposal :
07 07 19
/3 / O.S.No.5169/2014
JUDGMENT
Plaintiffs have filed the present suit against the defendants for the relief of declaration of title and permanent injunction restraining the defendants, their agents, henchmen or anybody claiming under or through them from interfering and obstructing the peaceful possession and enjoyment of the plaintiffs over the suit schedule property.
2. Initially plaintiffs have filed suit for permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment over the suit schedule property. Subsequently, plaintiffs filed I.A.No.II under Order VI Rule 17 C.P.C. for amendment of the plaint, thereby claimed the additional relief of declaration of ownership over the suit schedule property.
The said application came to be allowed. Defendants
/4 / O.S.No.5169/2014
have challenged the said order in Writ Petition
No.144/2021 (GM-CPC), the said Writ Petition came to be disposed off on 13.1.2021. In the said Writ Petition the Hon'ble High Court of Karnataka issued direction for disposal of the suit within the outer limit of one year. The Order of said Writ Petition received on 9.3.2021.
3. It is the case of plaintiffs that, land bearing Sy.No.124 measuring 10 acres situated at Halagevaddarahalli Village, Kengeri Hobli, Bangalore South Taluk was originally granted to one Muniyappa by the Karnataka Government under the provisions of the Inams Abolition Act. The said Muniyappa formed residential layout in the entire Sy.No.124 measuring 10 guntas of Halagevaddarahalli Village and has sold the sites in favour of several persons. The son of Muniyappa viz., Seetharam has sold Site bearing No.166 measuring /5 / O.S.No.5169/2014 East - West 40 Feet, North - South 60 Feet to Dr.J.R.Iyengar under registered Sale Deed dated 20.7.1996. As per sale deed, name of the said said Iyengar has been mutated in the records. The said Iyengar obtained necessary licence and sanctioned plans for construction of the building at the site and has constructed the building over the suit schedule property. Subsequently, said J.R.Iyengar sold the suit schedule property to the plaintiffs under registered sale deed dated 27.3.2002. As per sale deed, Katha has been changed in the name of plaintiffs. Since, 27.3.2002 they have been in peaceful possession and enjoyment of the suit schedule property. They have been paying tax to the concerned authorities. The BBMP has every year sanctioned the budget for the purpose of laying road and general uplift of layout formed in Sy.No. 124 and also carrying out the civil works and other maintenance. The defendants have no manner of right title interest over the suit property, but with malafide /6 / O.S.No.5169/2014 intention to make a wrongful gain, they along with the rowdy elements causing disturbance to the physical possession and enjoyment of the suit property by the plaintiffs and they are attempting to dispossess them and also demolish building. Plaintiffs resisted the illegal acts of the defendants and have approached the police, but, the police officials have advised them to approach the civil court. Hence, prayed for decreeing the suit.
4. In response to the suit summons, the defendants appeared through their counsel and have filed written statement. The defendants have denied the plaintiffs' ownership and possession over the suit schedule property. Defendants further contended that land bearing Sy.No.124 of Halagevaderahalli was a Sarakki tank as per the RTC of the year 1982 to 2014. When such being the fact, land vests with the government and the question of alienating the same /7 / O.S.No.5169/2014 does not arise. Even if any portion is sold, it is not a valid sale deed and not binding on the successor of Muniyappa and this land was never converted and Seetharam had not formed any layout. The said Seetharam was not the owner of the property and if there is any sale deed in favour of the plaintiffs, it is not valid sale deed and not binding on the successor of the Late Muniyappa and alleged Katha in the name of plaintiffs is illegal document and land bearing Sy.No. 124 measuring 10 acres of Halagevaderahalli, Kengeri Hobli, Bangalore South Taluk was an Inam land. One Late Muniyappa along with the family members were cultivating the said land as a tenant and after abolish of Inams in the year 1995 this land came to be vested with the government and after coming into force of Inams Abolition Act, Muniyappa filed application for grant of occupancy right in respect of the said land before the /8 / O.S.No.5169/2014 Special Deputy Commissioner and occupancy right was granted in his favour in the year 1966 and thereafter Muniyappa along with his family members was cultivating the said land and after Land Reforms Amendment Act of 1974 came into force, said Muniyappa unknowingly has also filed an application to grant the occupancy right before the land tribunal which was also allowed and he was granted occupancy right and the revenue records were mutated in his name and in the year 1983 Assistant Commissioner abruptly passed an order to cancel the mutation entry made in favour of Muniyappa and changed the revenue records incorporating the name of Sarakki Kere in respect of the said lands and Muniyappa challenged the same before Hon'ble High Court of Karnataka and matter was remanded before the Assistant Commissioner and matter was agitated before Tahasildar, Assistant /9 / O.S.No.5169/2014 Commissioner, Deputy Commissioner and also filed the suit before the Civil Court and again the matter was taken up before Hon'ble High Court of Karnataka in writ petition and dispute ended in the year 2014. Thereafter these defendants became the successors of Late Muniyappa and they are the absolute owners of the suit land and Katha has restored in their names and the suit schedule property is not at all identifiable and its existence is doubtful. The plaintiffs are not in possession of the suit schedule property, when the identity of the property is in dispute. Plaintiffs are not entitled for relief of permanent injunction. Plaintiffs are no way concerned with the suit schedule property and are making false claim over the suit schedule property. The defendants are in possession of land bearing Sy.No.124 of Halagevaderahalli Village which includes the suit schedule property also. The plaintiffs have created the / 10 / O.S.No.5169/2014 documents in respect of the suit schedule property and on the basis of created documents, they are claiming rights over the suit schedule property. Plaintiffs have no right, title, interest and possession over the suit schedule property. Hence, prayed for dismissing the suit.
5. On the basis of the pleadings and documents of the parties, following issues and additional issues have been framed :
1) Do the plaintiff proves that they are in peaceful possession and enjoyment of suit property as on the date of suit ?
2) Do the plaintiffs prove that there is interference by the defendants to their peaceful possession and enjoyment over the suit property ?
/ 11 / O.S.No.5169/2014
3) Do the plaintiffs prove that they are entitled for the relief of permanent injunction against the defendants ?
4) What Order or Decree?
Additional Issues
1) Whether the plaintiffs prove that they are the absolute owners of suit schedule property ?
2) Whether the court fee paid by the plaintiffs is sufficient ?
6. In order to substantiate their claim, plaintiff No.1 has been examined as P.W.1 and got marked documents as Exs.P.1 and P.32. In order to establish their defence, defendant No.7 has been examined as D.W.1. While cross-examining D.W.1, the counsel for plaintiffs confronted relinquishment deeds, partition deed, gift deed, Letter issued by BESCOM, witness / 12 / O.S.No.5169/2014 admitted the said documents, accordingly same have been marked as Ex.P.33 to 37.
7. Heard the arguments and perused the written arguments filed by the counsel for plaintiffs.
8. My findings on the above issues are as follows:
Issue No.1 : In the affirmative.
Issue No.2 : In the affirmative.
Issue No.3 : In the affirmative.
Addl.Issue 1 : In the affirmative.
Addl.Issue 2 : In the affirmative.
Issue No.4 : As per final order, for the
following :-
REASONS
9. Issue No.1 and Additional Issue No.1 :-
These issues are interconnected with each other. Hence, in order to avoid repetition of facts, evidence and law, they are taken up together for common discussion.
10. This suit is filed by the plaintiffs against the defendants for the relief of declaration of title and / 13 / O.S.No.5169/2014 permanent injunction restraining the defendants, their agents, servants, henchmen or anybody claiming under or through them from interfering with their possession over the suit schedule property.
11. It is the case of the plaintiffs that they are the absolute owners in possession of the suit schedule property.
12. In order to establish the case of the plaintiffs, plaintiff No.1 is examined as P.W.1 and relied upon documents Exs.P.1 to P.37. The examination-in-chief of P.W.1 is nothing but replica of plaint averments. P.W.1 deposed that land bearing Sy.No.124 measuring 10 acres situated at Halagevaderahalli Village was granted by the Government of Karnataka in favour of Muniyappa under the provisions of Inams Abolition Act. The said Muniyappa formed the residential layout in the said land.
/ 14 / O.S.No.5169/2014 The layout plan was approved by the then Village Panchayath. The sites have been sold to several persons. Accordingly, Site No.166, Khatha No.246/12 measuring East - West 40 Feet, East - West 60 Feet has been sold by Seetharam to one Dr.J.R.Iyengar under registered Sale Deed dated 20.7.1996 as per Ex.P.1. as on the date of sale deed itself the possession of the property was delivered to said J.R.Iyengar. The said Iyengar obtained licence for construction of building over the suit schedule property as per Ex.P.2 and has constructed the building over the suit schedule property. C.M.C., Pattanagere has assigned Khatha No.326/166/124. Ex.P.3 is the certified copy of the Encumbrance Certificate in respect of suit schedule property. The said Iyengar paid betterment charges to C.M.C. as per Ex.P.5. By exercising his proprietory rights, said Iyengar sold the suit schedule property to the / 15 / O.S.No.5169/2014 plaintiffs under registered Sale Deed dated 27.3.2002 as per Ex.P.4. They have obtained electricity connection to the suit schedule property as per Ex.P.6 - Endorsement issued by AEE, KEB and have also applied for water connection as per Ex.P.7. The BWSSB has granted connection as per Exs.P.8 and P.9. They have paid update tax to the municipal authorities as per Exs.P.10 to P.30. Presently khatha is standing in their names as per Exs.P.31 and 32. Defendants are no way concerned with the suit schedule property, on 31.1.2014 came near the suit schedule property and have tried to demolish the building on the suit schedule property. The act of the defendants has been resisted. The acts of the defendants are illegal, high handed and unauthorised. Hence, prayed for decreeing the suit.
13. The counsel for defendants cross-examined P.W.1 in length, witness adhered to his original version.
/ 16 / O.S.No.5169/2014 The counsel for defendants made a suggestion that there is no reference regarding land bearing Sy.No.124 of Halagevaderahalli Village in the plaint schedule or examination-in-chief of P.W.1. Witness admitted the said suggestion. P.W.1 further admitted that the property number mentioned in Ex.P.1 and P.4 are different. The counsel for defendant further made a suggestion that the land bearing Sy.No.124 of Halagevaderahalli has been forfeited by the Government, witness denied the said suggestion. The counsel for defendant further made a suggestion that Seetharam has no right to execute sale deed as per Ex.P.1 and Iyengar has no right to execute sale deed - Ex.P.4. Witness denied the said suggestion. Though the counsel for defendants cross- examined P.W.1 in length, but has not denied the possession of the plaintiffs over the suit schedule property and even he has not denied the khatha, / 17 / O.S.No.5169/2014 electricity and water connections pertains to suit schedule property standing in the name of plaintiffs.
14. In order to establish their defence, defendant No.7 examined as D.W.1. D.W.1 deposed that land bearing Sy.No.124 measuring 10 acres has been granted to his grandfather Muniyappa under the Inams Abolition Act. Himself and his family members are in possession of the land bearing Sy.No.124 of Halagevaderahalli. Accordingly, RTC are standing in their names. Plaintiffs are no way concerned with the suit schedule property, they are not entitled for any relief. Hence, prayed for dismissal of the suit.
15. Though D.W.1 denied the plaintiffs' right over the suit schedule property, but in his cross-examination at page No.13 deposed that, Muniyappa died in the year 1984, prior to death of Muniyappa there was a partition, / 18 / O.S.No.5169/2014 but, he has no personal knowledge about the said partition. D.W.1 admitted in his cross-examination that, prior to 1996 there was no partition in his family. D.W.1 at one stretch claims that prior to 1984 i.e., during the lifetime of Muniyappa there was a partition in his family and at another stretch he deposed that prior to 1996 there was no partition in his family. It is well settled law that no one is permitted to approbate and reprobate.
16. D.W.1 in his cross-examination at page No.12 deposed that due to accident defendant No.1 is not in a position to put his signature. Since two years he is bed- ridden. On perusal of written statement and additional written statement filed by defendants, it reveals that they have filed written statement on 29.10.2014 and additional written statement on 19.2.2021. In the written statement as well as additional written / 19 / O.S.No.5169/2014 statement defendant No.1 has put his signature. D.W.1 in his cross-examination at page No.14 denied his signature on the written statement. The conduct of D.W.1 goes to show that, he goes to the extent to deny his own signatures. On perusal of entire evidence of D.W.1 it reveals that he is deposing false. It is well settled law that one who approaches the Court must be with clean hands. The Court of law are meant for imparting justice between the parties. One who comes to the Court must come with clean hands, that a person whose case is based on falsehood has no right to approach the Court. He can be summarily thrown out at any stage of litigation.
17. D.W.1 in his cross-examination at page Nos.16 and 17 clearly admitted that, in the year 1993 itself the sites have been formed in land bearing Sy.No.124 of / 20 / O.S.No.5169/2014 Halagevaderahalli Village. D.W.1 in his cross- examination at page Nos.15 and 16 deposed that they have executed relinquishment deeds as per Exs.P.33 and 34 and have also entered into partition deed as per Ex.P.35. Admittedly, sites have been formed in the entire land bearing Sy.No.124 prior to 1993 and have been sold to different persons, but the defendants have executed relinquishment deed and partition deed as per Exs.P.33 to 35 in respect of sites bearing Nos.102 to 104, 106, 113 to 116, 118, 129, 132, 133, 138, 139, 140, 141, 143, 150, 151, 153, 159 to 162, 164, 165, 174, 176, 178, 180, 183, 187, 190, 201, 202, 205, 134, 145 to 147, 149, 152, 154 to 157, 163, 184 to 186, 193 to 197 carved in Sy.No.124 of Halagevaderahalli Village. D.W.1 in his cross-examination at page No.16 deposed that he has canceled the relinquishment deed - Ex.P.34.
/ 21 / O.S.No.5169/2014
18. D.W.1 in his cross-examination at page No.16 clearly admitted that in entire land bearing Sy.No.124 of Halagevaderahalli Village sites have been formed in the year 1993. The counsel for plaintiff put a specific suggestion to D.W.1 that plaintiffs have obtained electricity and water connections to the suit schedule property. D.W.1 gave evasive answer to said suggestion.
19. Though defendants in their written statement claimed that suit schedule property has been carved in Sy.No.124 of Halagevaderahalli Village and they are in possession, but D.W.1 in his cross-examination at page No.18 deposed that, "ದದವದಸಸತತಗಗ ಸಸಬಸಧಸದಸತಗ ಖದತದ ವದದಯರ ಹಗಸರಗಗ ಯದವದಗ ಅಗದಗ ಎಸದದ ನನಗಗ ಗಗಗತತಲಲ. ಸಸತದರದಮ ನನನ ಚಕಕಪಪ. ನಪ1 ರಸತಗ ನನನ ಚಕಕಪಪ ಸಸತದರದಮ ಖರಸದಪತತ ಮದಡದದರ ಕದರತದ ನನಗಗ ಗಗಗತತಲಲ. .... ದದವದಸಸತತನಲಲ ಏನದ ಇದಗ ಎಸದದ ನನಗಗ ಗಗಗತತಲಲ. ದದವದಸಸತತನದನ ನದನದ ನಗಗಸಡರದವವದಲಲ. ದದವದಸಸತದತ ಸವಗರ ನಸ.124 ರಲಲ ಇರಬಹದದದ." D.W.1 / 22 / O.S.No.5169/2014 clearly admitted in his cross-examination at page No.19 that he has not produced documents pertaining to suit schedule property standing in their names. The entire evidence of D.W.1 clearly goes to show that his uncle Seetharam has alienated the suit schedule property on 20.7.1996 to J.R.Iyengar as per sale deed - Ex.P.1. as on the date of sale deed itself the possession of the property has been delivered to said Iyengar. In turn, said Iyengar sold the suit schedule property to the plaintiffs on 27.3.2002 as per Ex.P.4 - sale deed. As per sale deed, the plaintiffs are in possession of the suit schedule property.
20. In this case it is admitted fact that land bearing Sy.No.124 measuring 10 acres of Halagevadera Halli Village has been allotted to Muniyappa. The said Muniyappa and his children have formed the layout in / 23 / O.S.No.5169/2014 entire land bearing Sy.No.124 and have sold the sites to various persons.
21. On perusal of Ex.P.1 - certified copy of the sale deed dated 20.7.1996, it reveals that erstwhile vendor - Seetharam is the legal heir of Muniyappa, he has sold suit schedule property to one J.R.Iyengar. As on the date of sale deed itself the possession of the property has been delivered to said J.R.Iyengar. The counsel for the defendants argued that plaintiffs have not produced documents in order to show that how the said Seeetharam acquired title over the suit schedule property. The said Seetharam has no right to alienate the suit schedule property.
22. On careful perusal of Ex.P.1 in which it is clearly mentioned that property bearing No.166, Khatha No.246/12 measuring East - West 40 Feet, North - South / 24 / O.S.No.5169/2014 60 Feet, situated at Halagevaderahalli Village is the ancestral property of Seetharam. D.W.1 also in his cross- examination clearly deposed that, in the year 1984 his grandfather Muniyappa died and before his death, joint family properties have been divided. The evidence of D.W.1 coupled with Ex.P.1 - sale deed, it clearly goes to show that the children of Muniyappa have partitioned the joint family properties prior 1996.
23. Defendants claim that all the joint family members have executed relinquishment deed as per Exs.P.33 and 34 in favour of defendant No.1 and have partitioned the joint family properties as per Ex.P.35. In turn, defendant No.1 has executed gift deed in favour of his son - Umashankar as per Ex.P.36 on 14.7.2020. On perusal of Exs.P.33 to 36 it reveals that all these documents have been executed during the pendency of / 25 / O.S.No.5169/2014 suit. Though the defendants claim that suit schedule property is their joint family property, but on careful perusal of Exs.P.33 to P.36 there is no reference regarding Site No.166. If at the suit schedule property is their joint family property, same should have been reflected either in the relinquishment deeds or in partition deed or gift deed. The suit schedule property is not at all the joint family property of defendants, hence, there is no reference regarding Site No.166 in Exs.P.33 to P.36. Though the defendants are no way concerned with the suit schedule property, even then they are making false claim over the suit schedule property.
24. As discussed supra, Seetharam has alienated the suit schedule property to J.R.Iyengar, accordingly he has executed registered sale deed as per Ex.P.1. on the basis of sale deed, the name of said Iyengar has been / 26 / O.S.No.5169/2014 mutated in the records. Subsequently, said Iyengar has paid betterment charges as per Ex.P.5 and also applied for licence for construction of building over the suit schedule property. Accordingly, The Commissioner, City Municipality, Pattanagere has approved the plan as per Ex.P.2 on 12.2.2000. As per sanctioned plan, the said Iyengar has constructed the building over the suit schedule property. Subsequently, the said Iyengar applied for sanction of electricity connection, accordingly KEB has sanctioned electricity connection to the suit schedule property as per Ex.P.6 - Endorsement. Exs.P.2, 5 and 6 have come into existence in an undisputed point of time. Besides, defendants have not denied Ex.P.2 - licence, Ex.P.5 - Receipt for having paid betterment charges. The said J.R. Iyengar has paid tax to the Pattanagere Municipality as per Exs.P.10 and 11 for a period of 2001-02. Ex.P.6 is the Endorsement issued by / 27 / O.S.No.5169/2014 KEB. The defendants have not denied the construction made by said J.R.Iyengar over the suit schedule property. By exercising his proprietary rights, said J.R. Iyengar has alienated the suit schedule property to the plaintiffs under registered sale deed dated 27-3-2002 as per Ex.P.4. As per sale deed names of the plaintiffs have been mutated in the Municipal records. Presently khatha is standing in their names as per Exs.P.31 and 32. Plaintiffs paid update tax as per Exs.P.12 to P.30. The documents produced by the plaintiffs clearly goes to show that they are the owners in possession of the suit schedule property.
25. Admittedly, plaintiffs have purchased the suit schedule property in the year 2002 itself. Defendants have not denied the khatha standing in the names of plaintiffs. Defendants claim that the suit schedule / 28 / O.S.No.5169/2014 property is the joint family property, plaintiffs are not the absolute and exclusive owners in possession of suit schedule property. Though the defendants claim that the suit schedule property is their joint family property, but in order to prove the same, the defendants have utterly failed to produce any reliable documents. Even the defendants have not adduced reliable evidence on their behalf. Plaintiffs are claiming the rights over the suit schedule property on the basis of registered sale deed - Ex.P.4.
26. D.W.1 in his cross-examination clearly admitted that Seetharam is the son of Muniyappa. Admittedly, the said Seetharam has executed Ex.P.1 - Sale Deed in favour of J.R.Iyengar. In turn, the said J.R.Iyengar has sold the suit schedule property to plaintiffs as per Ex.P.4 - sale deed dated 21.3.2002.
/ 29 / O.S.No.5169/2014 Exs.P.1 and P.4 are registered documents. It is well settled law that registered document carries with it a presumption that it was validly executed. In the decisions reported in (2019) 2 SCC 727 [Jamila Begum Vs. Shameem Mohammed] and [2006] 5 SCC 353 (Premsingh and others Vs. Beerbal and others), in both the cases the Hon'ble Apex Court held that, "There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption." The above said decisions are aptly applicable to the case in hand.
27. Admittedly, plaintiffs are claiming their rights on the basis of documentary evidence. It is well settled law that documentary evidence prevails over the oral / 30 / O.S.No.5169/2014 evidence. That, Sections 91 and 92 of Indian Evidence Act prohibits any interpretation contrary to the terms of the registered sale deed and therefore, it can only be said that the said Seetharam has sold suit schedule property to J.R.Iyengar, who in turn, sold the same to the plaintiffs. As per Ex.P.4 - Sale Deed, plaintiffs are in possession of the suit schedule property. Said preposition of law is supported by decision of Hon'ble Supreme Court reported in (2000) 7 S.C.C. 104 (S.Saktivel (Dead) by LRs V/s M. Venugopal Pillai and others), wherein at Para No.6, it is held as under:
"In sum and substance what proviso (4) to Section 92 provides is that where a contract or disposition not required by law to be in writing, has been arrived at orally, then subsequent oral agreement modifying or rescinding the said contract or disposition can be substantiated by parol evidence and such evidence is admissible. Thus if a party has / 31 / O.S.No.5169/2014 entered into a contract, which is not required to be reduced in writing but such a contract has been reduced in writing or it is oral, in such situations it is always open to the parties to the contract to modify its terms and even substitute by a new oral contract and it can be substantiated by parol evidence. In such kind of cases, the oral evidence can be led into prove that the earlier contract or agreement has been modified or substituted by a new oral agreement. Where under law a contract or disposition is required to be in writing and same has been reduced to writing its terms cannot be modified or altered or substituted by oral contract or disposition. No parol evidence will be admissible to substantiate such an oral contract or disposition. A document for its validity or effectiveness is required by law to be writing and therefore, no modification or alteration or substitution of such written document is permissible by parol evidence and it is only by another written document the / 32 / O.S.No.5169/2014 terms of earlier written document can be altered, rescinded or substituted. There is another reason why the defendant appellant cannot be permitted to let in parol evidence to substantiate the subsequent oral arrangement. The reason being that the settlement deed is a registered document. The second part of proviso (4) to Section 92 does not permit leading of parol evidence for proving a subsequent oral agreement modifying or rescinding the registered instrument. The terms of registered document can be altered, rescinded or varied only by subsequent registered document and not otherwise. If the oral arrangement as pleaded by appellant, is allowed to be substantiated by parol evidence, it would mean rewriting of Ext.A - 1, therefore, no parol evidence is permissible."
28. In a decision reported in ILR 2020 KAR 3667 [Smt. Sarvamangalamma and others Vs., Smt. Anusuya Bai and others], wherein the Hon'ble High Court of / 33 / O.S.No.5169/2014 Karnataka held that, "Documentary evidence prevails over the oral evidence." The above said decisions are aptly applicable to the case in hand.
29. That, in a suit for declaration, as per Section 34 of the Specific Relief Act, plaintiffs have to make out a case by evidence that proves their legal character/ rights as to the property. In this case, plaintiffs by producing cogent, oral and documentary evidence have ably proved that they are the owners in possession of suit schedule property. Hence, I answer Issue No.1 and Additional Issue No.1 in the affirmative.
30. Issue No.2:- Plaintiffs have proved their lawful possession over the suit schedule property. P.W.1 clearly deposed that defendants are interfering with their peaceful possession and enjoyment over the suit schedule property. The defendants in their written / 34 / O.S.No.5169/2014 statement have denied the ownership and possession of the plaintiffs over the suit schedule property. Hence, the denial of ownership and possession amounts to interference of plaintiffs' possession over the suit schedule property.
31. In the decision reported in 2014 (1) KCCR 391 (Smt.Narasamma and others Vs. D.S.Narasi Reddy and another) in which the Hon'ble High Court of Karnataka held that, "Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction." The above said decision is aptly applicable to the case in hand. The plaintiffs have proved the obstruction made by the defendants. Hence, I answer Issue No.2 in the affirmative.
/ 35 / O.S.No.5169/2014
32. Additional Issue No.2 :- The counsel for the defendants vehemently argued that the court fee paid by the plaintiffs is insufficient. The plaintiffs ought to have paid the court fee on the actual market value of the suit schedule property. Hence, he prays for the dismissal of the suit.
33. That, initially plaintiffs have filed the present suit for the relief of permanent injunction. Accordingly they have paid the court fee under Section 26(c) of the Karnataka Court Fees and Suits Valuation Act for Rs.1,000/- i.e., Rs.25/-. Subsequently, plaintiffs filed an application for amendment of plaint and sought the relief of declaration. The said application came to be allowed. Accordingly plaintiffs have amended the plaint and have furnished the amended plaint and have also valued the suit schedule property at Rs.88,68,236/- and / 36 / O.S.No.5169/2014 accordingly have paid the court fee of Rs.1,88,000/- on additional relief of declaration. Though the defendants contended that the court fee paid by the plaintiffs is insufficient, but In order to substantiate their contentions, they have not produced any evidence. There is no material on record in order to come to the conclusion that the court fee paid by the plaintiffs is insufficient. Accordingly, I hold Additional Issue No.2 in the affirmative.
34. Issue No.3 : - Plaintiffs have proved that they are the owners in possession of the suit schedule property as on the date of filing the suit and also further proved the interference by the defendants. Defendants have failed to prove that they have better title than the plaintiffs over the suit schedule property. Therefore, the plaintiffs on the strength of title deeds and possession / 37 / O.S.No.5169/2014 resist the interference from the defendants who have no right and possession over the suit schedule property. Hence, the plaintiffs are entitled to the relief of declaration and permanent injunction as sought in the plaint. Accordingly, I answer Issue No.3 in the affirmative.
35. Issue No.4 :- For the foregoing reasons, I proceed to pass the following:
ORDER Suit of the plaintiffs is hereby decreed with costs.
It is hereby declared that plaintiffs are the absolute owners in possession of the suit schedule property.
Defendants, their agents, workers, agents, legal heirs, representatives, supporters or any persons claiming through or under them are hereby permanently restrained from / 38 / O.S.No.5169/2014 interfering with the plaintiffs' peaceful possession and enjoyment over the suit schedule property i.e., Site bearing No.166, Khatha No.246/12, measuring East - West 40 Feet, North
-South 60 Feet situated at Halagevaderahalli Village, Kengeri Hobli, Bangalore South Taluk.
Draw decree accordingly.
(Dictated to the Judgment Writer directly on computer, script corrected, signed and then pronounced by me in the open court, this the 28th day of February, 2022.) (KHADARSAB) XXXIX Addl. City Civil & Sessions Judge, Bangalore City.
*** ANNEXURE
1. List of witnesses examined for plaintiffs:
P.W.1 : T.R. Murali
2. List of documents exhibited for plaintiffs:
Ex.P1 Original sale deed dated: 20-7-1996 executed by Seetharama in favour of J.R. Iyengar / 39 / O.S.No.5169/2014 Ex.P2 Approved building plan issued by CMC Pattanagere Ex.P.3 C/c of E.C. Form No.16 dated 4.7.2014 in respect of Site No.166, Khatha No.326/166/124 situated at Halagevaderahalli Village. Original sale deed dated 27.03.2002 in respect Ex.P4 of Site No.166, khatha No.326/166/124 of Halagevaderahalli Ex.P5 Receipt dated 31.12.1999 for having paid betterment charges Ex.P6 Endorsement dated 29.01.2004 issued by AEE, KEB, W1 Sub-Division, Bengaluru.
Ex.P7 Applications submitted to BWSSB for water
connection
Ex.P8 Card issued by BWSSB
Ex.P9 Provisional demand note dated 26.02.2016
issued by AEE, BWSSB
Ex.P10 Two tax paid receipts issued by Bill collector,
and 11 Pattanagere CMC
Ex.P12 to Five Tax paid challans
16
Ex.P17 to Tax paid receipts in respect of khatha 30 No.166/124, khata No.284/326 Ex.P31 C/C of the houses and open sites register for the year 2013-14 dated 27.11.2013 issued by ARO, BBMP Ex.P32 Certificate dated 27.11.2013 issued by ARO, BBMP Ex.P33 C/C of registered Release deed dated / 40 / O.S.No.5169/2014 13.11.2015 Ex.P34 C/C of registered Relinquishment deed dated 31.12.2015 Ex.P35 C/C of Partition deed dated 18.11.2020 Ex.P36 C/C of Gift deed dated: 14.7.2020 Ex.P36(a) Signature of D.W.1 marked in Ex.P.36 Ex.P37 Document obtained under RTI Act from AEE, BESCOM.
3. Witness examined for the defendant :
D.W.1 : Gangadhar
4. List of documents exhibited by the
defendants:-
- NIL -
(KHADARSAB),
XXXIX Additional City Civil &
Sessions Judge, Bangalore City.
***
/ 41 / O.S.No.5169/2014
28.02.2022
Judgment pronounced in the open
Court (Vide separate Judgment) :-
ORDER
Suit of the plaintiffs is hereby decreed with costs.
It is hereby declared that plaintiffs are the absolute owners in possession of the suit schedule property.
Defendants, their agents, workers,
agents, legal heirs, representatives,
supporters or any persons claiming
through or under them are hereby
permanently restrained from interfering with the plaintiffs' peaceful possession and enjoyment over the suit schedule / 42 / O.S.No.5169/2014 property i.e., Site bearing No.166, Khatha No.246/12, measuring East -
West 40 Feet, North -South 60 Feet situated at Halagevaderahalli Village, Kengeri Hobli, Bangalore South Taluk.
Draw decree accordingly.
(KHADARSAB) 39 A.C.C & S. Judge,Bangalore.
th