Bangalore District Court
Shri.Srinivas vs Sri. Prasanna Kumar on 7 January, 2017
[C.R.P. 67] Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
IN THE COURT OF THE XIV ADDL. CITY CIVIL JUDGE
AT BANGALORE [CCH.No.28]
Present: Ms. VELA.D.K., B.A.L., LL.B., (Hon's)
XIV ADDL. CITY CIVIL JUDGE
Dated this the 7th day of January 2017
O.S.No.2194/2002
Plaintiff/s : 1. Shri.Srinivas, Aged 43 years,
S/o D.Ramaiah
2. Smt.Lakshmi, Aged 47 years,
W/o Narayanaswamy
3. Smt.Nanjamma,
W/o Rajanna,
All Children of Late D.Ramaiah,
R/at No.17/1,
Subramanyapura Main Road,
Kadirenahalli Circle,
Bangalore-560 070.
(By Sri.T.P. Advocate)
- Vs -
Defendant/s : 1. Sri. Prasanna Kumar, Hindu,
Major, S/o. A.Sitharama Setty,
R/at. No. 17/1,
Subramanyapura Road,
Kadiranahalli Circle Ward 65,
Padmanabhanagara,
Bangalore-70.
2. Padmavathi, Aged 35 years,
2 O.S. No.2194/2002
W/o A.S.Satyanarayana,
913, 1 floor, I A Main Road,
Thyagarajanagara II Block,
Bangalore-560 028.
3. Anantharaju,
Aged about 36 years,
S/o Sreeramaiah Setty,
No.3/1,
Gramadevatha Cross Road,
Chikkamavalli,
Bangalore-560 004.
4. Venkateshababu,
Aged 19 years,
S/o K.Nagaraja Setty,
No.186/22,8th Cross, II Main,
Jayanagar II Block,
Bangalore-560 011.
(By Sri.B.A. for D-1, K.B.A. for
D-2 to D-4)
Date of institution
of the suit : 03.04.2002
Nature of the suit :
[suit on pronote, suit
for declaration and
possession, suit
for injunction] : Possession and
Mesne Profits
Date of the commencement
of recording of the evidence: 03.08.2007
Date on which the
Judgment was pronounced : 07.01.2017
3 O.S. No.2194/2002
Year/s Month/s Day/s
Total Duration -14- -09- -04-
JUDGMENT
This is a suit filed for Possession and past Mesne Profits.
2. The case of the original Plaintiff was that the plaintiff inherited the lands measuring one acre and twenty two guntas in Sy.No.17/1 Kadirenahalli situated adjacent to the west of Subramanyapura main road by virtue of partition between his father, himself and his brothers vide registered partition deed dated 20.9.1971. The 1st defendant is said to have prevailed upon the plaintiff who was in disturbed condition to sell a portion of the property in Sy.No.17/1 of Kadirenahalli and obtained the consent to sell 9 guntas of the land in the said survey number and got registered the sale deed in his favour on 15.3.1979. The original registered sale deed is said to be in the custody of the 1st defendant. Except the area of 9 guntas sold, the plaintiff is said to have continued to be in possession and enjoyment of the remaining extent of One acre 13 guntas in Sy.No.17/1 from several years. At that time and till about March 1991, the plaintiff is said to have continued to be in possession and his enjoyment of the remaining extent, 4 O.S. No.2194/2002 except the 9 guntas that was sold vide registered sale deed dated 15.03.1979. The 1st defendant is said to have filed false frivolous suit OS.No.124/1989 for Permanent Injunction against the plaintiff and obtained exparte decree. The plaintiff is said to have enquired and come to know that the plaintiff therein i.e., 1st defendant had obtained a refusal shares. Immediately the 1st defendant is said to have engaged a counsel and participated in the proceedings and filed written statement and contested the case. That is said to be pending. During the course of the said suit which is related to the area sold under the sale deed dated 15.3.1979, the first defendant is said to have attempted to interfere with the plaintiff's peaceful possession and enjoyment of the remaining area. Immediately the plaintiff is said to have filed OS.No.3681/1989 and sought for Temporary Injunction that was opposed by the party and thereby both the suits are said to be pending.
The plaintiff is said to be uneducated person and to sign only in Kannada. Taking advantage of the same and also of the proximity of the location of the suit property to Bangalore City and the prospective development of the city and the surroundings, the 1st defendant is said to have prevailed upon the plaintiff for amicable settlement. In that 5 O.S. No.2194/2002 back ground, the 1st defendant prevailed upon the plaintiff to settle the matter and arranged for a compromise and both applied the surveying the property and for bifurcation of the property and the 1st defendant is said to have further agreed to pay for the excess area in Sy.No.17/1 claimed to be in his possession. Thereby he is said to have betrayed the plaintiff and according to the said arrangement and understanding, the official surveyor is said to have surveyed the property and obtained the signature of both the parties and reported the same and completed the survey on 23.5.1990. The 1st defendant is said to have agreed to pay actual market price as on the date of survey i.e., 20.5.1990 and purchased the same under deed of conveyance or deliver back the possession of the survey area in Sy.No.17/1A. Believing the promise of the defendant, the plaintiff is said to have not pursued OS.No.361/1989 which was merely for Injunction. The first defendant is said to have agreed to withdraw OS.No.124/1989, but he is said to have ignored the same and pursued the suit and denied compromise and arrangement of settlement agreed before the Revenue Surveyor. He is said to have thus played fraud on the plaintiff and attempted to unjustly enrich himself by causing wrongful loss to the plaintiff by those promises.
6 O.S. No.2194/2002From the inception, the 1st defendant is said to be taking undue advantage of the ignorance and lack of wisdom of the plaintiff and further the 1st defendant is said to have been dominating the plaintiff with his financial power. Infact behind back of the plaintiff, the 1st defendant is said to have sought for an amendment in OS.No.124/1999 in the year 1993 without serving copy of that application and thereby plaintiff is said to have been forced to seek amendment of the written statement that was allowed by the court. The 1st defendant is said to be in possession of 3 guntas in excess of the land of the plaintiff in Sy.No.17/1 as per the survey settlement in 1990. The 1st defendant is said to have not paid any consideration to the plaintiff in respect of the same. The boundaries and the extent of the said land is said to have been shown in the schedule 'B' property while the land sold under the sale deed dated 15.3.1979 with the boundaries and extent is the same as shown in schedule 'A' property. The 1st defendant is said to have claimed to have obtained the power of attorney from the plaintiff and doubting the same, the plaintiff herein by way of abundant caution is said to have executed a registered deed of cancellation of the alleged power of attorney. The 1st defendant is said to be the brother of the 3rd defendant and the 2nd defendant is said to 7 O.S. No.2194/2002 be the sister-in-law of the 1st defendant and 4th defendant is said to be the 1st defendant's mother's brother's son. Therefore, all the defendants are said to be close relatives. The 1st defendant while in occupation and enjoyment of the 9 guntas of the land is said to have purchased from the plaintiff conveniently encroached upon the 'B' schedule property measuring 3 guntas. The deceased plaintiff who was said to be owner of the large extent in Sy.No.17/1 could not ascertain before the survey was done in the year 1990. Thereafter, the 1st defendant had assured to purchase the 'B' schedule property for valuable consideration and subsequently did not come forward with his said assurance. Thereafter, the 1st defendant without the consent of the plaintiff's authority is said to have sold the 'B' schedule property to the defendant Nos.2 to 4 under registered sale deed dated 16.6.1992 (two nos.) and 14.11.1979 which is said to have been marked as Ex.P.3, Ex.P.4 and Ex.P.29. The plaintiff is said to have continued to prosecute the case as if the encroachment was said to have been made by the 1st defendant and the remaining defendants to be all his relatives and to be frequently visiting 'B' schedule property. Moreover, the 1st defendant is stated to have neither in his written statement nor in any of the proceedings is said to have disclosed about the sale 8 O.S. No.2194/2002 effected by him in favour of the defendant Nos.2 to 4. The sale of the 'B' schedule property by the 1st defendant to the defendant Nos.2 to 4 are said to be illegal and without authority in law. The contention of the 1st defendant through out is said to be that the sale effected to the defendants Nos.2 to 4 to be within the 9 guntas of the land purchased by him, therefore the plaintiff filed an application for appointment of a court commissioner to ascertain as to if there has been any encroachment by the 1st defendant and the persons claiming under him to adjudicate upon the real issues and controversy between the parties. The Court is said to have issued commission for local investigation and the Court commissioner is said to measure the land and submitted report to this court and it is said to reveal that the defendants Nos.2 to 4 to be in possession of the schedule 'B' property and to have claimed their right by virtue of 1st defendant. These facts are said to have come to the notice of the plaintiff only after reading the contents of the commissioner's report. Therefore, the defendants 2 to 4 along with the 1st defendant are said to be required to hand over the possession of the 'B' schedule property to the plaintiff.
9 O.S. No.2194/2002The 1st defendant is said to have put up unauthorised and illegal construction in the 'B' schedule property and earning Rs.12,000/- per month from that property. The plaintiff is said to be entitled to the past mesne profits at the rate for three years prior to the suit. The defendant is said to be liable to redeliver the said land shown in 'B' Schedule property of the plaintiff. The plaintiff is said to have not filed any other suit in any court and suit is said to have been filed within 12 years from the date of the Revenue survey settlement on 20.5.1990 and when the plaintiff came to know about the fraud played by the defendant and did not adhere to the promises that was made at the time of the Revenue Survey also dated 20.5.90. Hence the Plaintiff is said to be constrained to file the above suit.
3. In the written statement, the 1st defendant has contended that he is put in lawful possession and enjoyment of the property measuring 13 guntas and not 9 guntas as alleged by the plaintiff. Subsequently, this defendant is said to have constructed poultry farm and shops in the year 1983. The 1st defendant is said to have requested him to register the sale deed for four guntas and the land and the plaintiff is said to have refused the 10 O.S. No.2194/2002 registration of the sale deed. The plaintiff is said to have made an attempt to interfere that the peaceful possession of the property of the defendant whereby OS.No.124/1989 was filed against the plaintiff for Permanent Injunction and that the suit is said to be pending.
4. During the pendency of the O.S.No.124/1989, the plaintiff himself is said to have made an application before the surveyor authority to inspect and divide the property for which the plaintiff is said to have not obtained any decree or order from the court to appoint surveyor to divide the property and for his inspection to have forged the signature in capital letters and produced the same before the Court.
5. The plaintiff is said to have contested O.S.No.3681/1989 and there was dismissed for non- prosecution on 02.09.1993. The defendants No.2, 3 and 4 in their written statement have contended to be the bonafide purchase of the land approximately 2.5 guntas jointly together in Sy.No.17/1 of Kadiranahalli from 1st defendant on verifying the title deed. In this regard, the registered sale deed dated 14.3.1979 for 9 guntas of the land was said to be executed and for the remaining 4 11 O.S. No.2194/2002 guntas, registered General Power of Attorney was executed in favour of the 1st defendant dated 8.6.1981. After verification and perusing registered documents, the defendants No.2 to 4 are said to have purchased and to be in the ownership of defendant No.1. There was said to be no defect found and hence binding on the plaintiff. These defendants are said to be purchasers of the property facing on the east by Subramanyapura main road to the extent measuring 2.5 guntas covered under three separate registered sale deed dated 17.6.1992 executed by the 1st defendant. The description of the property is as follows :
1. Shop purchased by 2nd defendant Smt.S.Padmavathi:
Measuring 50 ' + 48'/2 X 13 feet Bounded on East by : Road (S.Puram Road);
West by : Private Property
North by : S.Anantharaju's property;
and
South by : Prasanna Kumar's
property.
2. Shop purchased by 3rd defendant
S.Ananthar Raju:
12 O.S. No.2194/2002
Measuring 53' + 50'/2 X 13 feet
Bounded on
East by : Road (S.Puram Road)
West by : Private property
North by : N.Venkatesh babu's
property No.17/1;
South by : Remaining portion of
property No.17/1 belongs
to Prasanna Kumar
3. Shop purchased by 4th defendant
N.Venkatesh Babu:
Measuring 59' + 53'/2 X 26 feet = 1456 sq. feet Bounded on East by : Road(S.Puram Road);
West by : Private Property
North by : S.Anantharam property;
South by : property belongs to
Prasanna Kumar."
The property purchased are said to fall outside the boundary of schedule 'B' property and this fact is said to be 13 O.S. No.2194/2002 supported by the statement of D.Ramaiah in O.S.No.124/1989 while recording the evidence of D.W.-1 on 1.7.2002. Therefore, plaintiff is said to be not entitled to seek possession of the 'B' schedule property from the defendants. The 'B' schedule property is said to be disputed property wherein said to be no boundaries fixed and out of four guntas, the three guntas is said to have been claimed but plaintiff is said to have not averred as to what has happened to the one guntas. When the property purchased by the defendants has lost the nature from agriculture to non agricultural residential purpose and it has been assessed by local authority which is now to be included in the Padmanabhanagar Ward No.55, BBMP, thereby the identity of schedule property is said to be very much disputed in respect of the 'B' Schedule property. The 'B' schedule property is said to have been three guntas in Sy.No.17/1 of Kadirenahalli Village now in the limits of BBMP and the subsequent change of land from the limits of panchayat to CMC and from CMC to Corporation is not furnished and the identity of the property is very much in dispute. There is said to be in existence of three guntas of land. The 1st defendant is said to have perused the genuine documents and title in O.S. No.124/1989 against the plaintiff and defendant No.2 to 4 are said to be in peaceful 14 O.S. No.2194/2002 possession and enjoyment of the respective purpose and the relief claimed by the plaintiff is said to be not binding on these defendants. Plaintiff is said to be intended to dispossess these defendants from the property.
6. Additional written statement has been filed by these defendants contending that deceased plaintiff who was said to be owner of the larger extent of the said Sy.No.17/1 could not ascertain when it was surveyed in the year 1990. Thereafter, the first defendant is said to have assured to purchase 'B' schedule property for valuable consideration and to have subsequently not complied with the said assurance. The land sold to defendants No.2 to 4 are to fall within the boundary of 'A' suit schedule property of 0.09 guntas admitted by plaintiffs. The suit schedule B property is said to be still continued to be in possession of the 1st defendant. The commissioner's report is said to have been prepared in the absence of the parties and that report is said to be unreliable. Plaintiff is said to have complete knowledge of the facts and circumstances of the case and admitted that defendants No.2 to 4 to have purchased the property from the 1st defendant out of 0.09 guntas of the land in the 'A' schedule property and accordingly the memo was filed by the said defendants. Therefore, the MFA 15 O.S. No.2194/2002 No.7038/2005 was withdrawn by the plaintiff on account of that memo that was recorded in that appeal. That order is said to have become final and unchallenged by the plaintiff till date. That admission of fact stands on higher footing which does not require any proof. There is no property identified and without identity of 'B' schedule property the commissioners reports is not tenable. Denying all the other averments specifically, therefore has sought for dismissal of the suit.
7. My predecessor in office has framed the following:-
ISSUES
1. Whether Plaintiffs proves that they are the owners of suit 'B' Schedule property?
2. Whether plaintiffs prove that the defendant illegally constructed the structure over the 'B' schedule property and getting income of Rs.12,000/- per month?
3. Whether the court fee paid by the plaintiff is property (deleted vide order dated 21.9.2016)
4. Whether plaintiffs are entitled for possession mesne profits and other reliefs?16 O.S. No.2194/2002
5. What order or decree?
Addl. Issue framed on 30-5-2016
1. Whether the plaintiffs prove the identity of 'B' Schedule property?
8. In order to prove the case the Plaintiff No.1(a) has got examined as P.W.1 got marked Ex.P.1 to 38. The 1st defendant has been examined as D.W.-1, 4th defendant has D.W.-2, General power of attorney Holder and the husband of the 2nd defendant as D.W.-3 and 3rd defendant as D.W.4 and got marked Ex.D.1 to Ex.D.19. Court Commissioner, the Surveyor has been examined as CW-1 and got marked Ex.C.1 to Ex.C.4.
9. The findings on the above issues are as follows:
Issue No.1 : In the Negative
Issue No.2 : In the Negative
Issue No.4 : In the Negative
Addl. Issue No.1 : In the Negative
Issue No.5 : As per final order
REASONS
10. Issue No.1 and Addl. Issue No.1 dated
30.5.2016:- The Plaintiff have claimed to be the owners of the suit schedule 'B' property. The identity of the 'B' 17 O.S. No.2194/2002 schedule property has been vehemently disputed by the defendants in the present case. Therefore, these issues being interconnected are discussed and answered together in order to avoid repetition.
At the outset, it is necessary to note the description of the suit schedule property which has been as follows;
SCHEDULE 'A' PROPERTY The property bearing No.17/1 situate in Kadirenahalli Village Uttarahalli Hobli, Bangalore South Taluk, now in Bangalore City, Corporation Limits bounded on the East by: Road, West by plaintiff's remaining land in Survey No.17/1, on the north by remaining survey Number and south by remaining land in S.No.17/1 retained by the plaintiff SCHEDULE 'B' PROPERTY All the piece and parcel of the land measuring 3 guntas in Sy.No.17/1, Kadiranahalli, Uttarahalli Hobli, Bangalore South Taluk, now in Bangalore City Corporation limits bounded on the East by 18 O.S. No.2194/2002 portion of plaintiff's land, and structures put up by plaintiff adjacent to Subramanayapura main road, West by plaintiffs land in S.No.17/1 North by Defendant's property sold in 1979 and sought by plaintiffs property in 17/1.
The prayer sought for in the above case has been for possession of the 'B' schedule property and past mesne profits. With regard to the 'B' schedule property right claimed by the plaintiff has been on the ground that the boundaries and the extent of that property sold under the deed dated 15.03.1979 with the boundaries shown in schedule 'A' property. In this regard, the 1st defendant is said to have encroached that property i.e., 'B' schedule property to the extent of 3 guntas.
11. Ex.P-1 is the certified copy of the plaint in O.S.No.124/1989 that was filed by 1st defendant against one Ramaiah (father of plaintiff) seeking for Permanent Injunction and the property described is as follows :
SCHEDULE Property bearing No.17/1, situated at Subramanyapura Road, Kadirenahalli circle, 19 O.S. No.2194/2002 Bangalore-560070, 13 guntas of dry land in Sy.No.17/1, Kadirenahalli bounded on the :
East by Road
West by Private property
North by Private property
South by Private property."
The schedule 'B' property in the above suit is shown as 3 guntas. Ramaiah is the father of the 1st plaintiff. He has cancelled the General Power of Attorney dated
12.06.1981 said to have been executed in favour of the 1st defendant. This cancellation of the General Power of Attorney is Ex.P-6 and it is dated 21.04.1989. In this document, property described as only 4 guntas in Sy.No.17/1 bounded on East by property of Prasanna Kumar, West by property of Chairman Lakshmaiah, North by property of Rathnaiaha Shetty and South by private property. The execution of the sale deed dated 12.06.1981 has been vehemently denied and that General Power of Attorney is marked as Ex.P-5. It is stated to have been executed in favour of the 1st defendant by Ramaiah and the General Power of Attorney holder was entitled to alienate the property. With regard to the validity of the General Power of Attorney, it is necessary to refer the citation 20 O.S. No.2194/2002 reported in AIR 2012 SC page 656 (Suraj Lamps and Industries - Vs - State of Haryana and another)
13. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In State of Rajasthan vs. Basant Nehata - 2005 (12) SCC 77, this Court held :
"A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed 21 O.S. No.2194/2002 to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers-of-Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the 22 O.S. No.2194/2002 donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee."
An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.
The defendants in the present case have based their contention upon this General Power of Attorney only. Ex.P- 7 is the certified copy of the order sheet in O.S.3681/1989 which shows that the suit was dismissed for non- prosecution on 02.09.1993. Index of land Ex.P-8 of Sy.No.17/1 is measuring One acre 38 guntas and is in the name of Ramaiah. The concerned M.R.No.249 is as per Ex.P-9. An endorsement issued by the police station is as per Ex.P-10 whereupon they were directed to resolve the dispute by approaching the civil court. Ex.P-11 is the certified copy of the certificate issued by the Director of the Industries about the Registration of the Small Scale 23 O.S. No.2194/2002 Industrial Unit in the name of M/s. Plastic Industries bearing No.17/1A. This does not contain any extent of the property and it has the only details in Sy.No.17/1A. General License issued Ex.P-12 is dated 18.09.1981 in the name of defendant No.1. The certified copy of the tax paid receipts have been marked as Ex.P-13 and Ex.P-14 in the name of the 1st defendant. Electoral card of the 1st defendant Ex.P-15 has the details as the house No.206 and the official memorandum of the office of the Deputy Commissioner Ex.P-16 is that sanction to have been accorded for the conversion of 5 acres 22 guntas out of Sy.No.6/2-C, 7 and 10 of Kadirenahalli village. The relevant portion for the purpose of the above suit has been Sy.No.6/2C+7+10 in total 7 acres 22 guntas to have been converted. The conversion infact as per the plaint averment is an undisputed fact.
It is an admitted fact that the right of the plaintiff is by partition deed dated 20.09.1971. In the oral evidence, P.W.1 has clearly stated that One acre 22 guntas was inherited in Sy.No.17/1 and his father to have retained only 15 guntas. The sale of 9 guntas by the father Ramaiah to defendant No.1 being an admitted fact Ex.P-2 the sale deed 24 O.S. No.2194/2002 dated 15.03.1979 is a formal document. The extent and the details of the property is as follows :
"µÉqÀÆå¯ï ¨ÉAUÀ¼ÀÆgÀÄ zÀQët vÁ®ÆèQ£À°è GvÀÛgÀºÀ½î ºÉÆç½ PÀ¢gÉãÀºÀ½î UÁæªÀÄzÀ ¸ÀªÉð £ÀA.17-1 £Éà £ÀA§gÀÄ ¥ÀÇgÁ «¹ÛÃtð 1.22 MAzÀÄ JPÀgÉ E¥ÀàvÉÛgÀqÀÄ UÀÄAmÉ d«ÄãÀÄ ¥ÉÊQ ¤ªÀÄUÉ PÀæAiÀÄ EgÀĪÀ £ÀA.9 MA¨ÀsvÀÄÛ UÀÄAmÉ d«Æ¤UÉ DPÁgÀ 1.50 ¥ÉʸɪÀżÀî d«Æ¤UÉ ZÀPÀÄ̧A¢ ¥ÀÇgÀéPÉÌ gÀ¸ÉÛ , ¥À²ÑªÀÄPÉÌ EzÉà £ÀA§gï ¥ÉÊQ £Á£ÀÄ G½¹PÉÆArgÀĪÀ d«Æ£ÀÄ, GvÀÛgÀPÉÌ £Á£ÀÄ G½¹PÉÆArgÀĪÀ d«Æ£ÀÄ, zÀQëtPÉÌ £Á£ÀÄ G½¹PÉÆArgÀĪÀ d«Æ£ÀÄ. F ªÀÄzsÉå EgÀĪÀ ªÉÄîÌAqÀ «¹ÛÃtðªÀżÀî d«Æ£ÀÄ ªÀÄvÀÄÛ F d«Æ¤£À°ègÀĪÀ vÉAV£ÀªÀÄgÀUÀ¼ÀÄ ¸ÀºÀ F PÀæAiÀÄPÉÌ M¼À¥ÀnÖgÀÄvÉÛ. EzÀgÀ ªÀiÁgÉÌmï ¨É¯É 10.000-00 gÀÆ¥Á¬ÄUÀ¼ÀÄ ¨Á¼ÀÄvÉÉÛ."
The remaining extent is said to be One acre 13 guntas retained by the father, but again has stated that his father to have retained 15 guntas out of One acre 22 guntas. Further P.W.1 has stated that his father to have formed sites in Sy.No.17/1 without obtaining conversion order. The sale of 13 guntas in favour of defendant No.1 by his father vide sale deed dated 15.12.1978 being admitted and was during confrontation marked as Ex.D-1. The details of the property is as follows :
25 O.S. No.2194/2002"µÉqÀÆå¯ï ¨ÉAUÀ¼ÀÆgÀÄ zÀQët vÁ®ÆèPÀÄ GvÀÛgÀºÀ½î ºÉÆç½, PÀzÀgÉãÀºÀ½î UÁæªÀÄzÀ ¸ÀªÉð 17B1 £Éà £ÀA§gÀÄ d«Ää£À ¥ÀǪÀðzÀ PÀqÉ ¸ÀħæªÀÄtå¥ÀÅgÀzÀ gÀ¸ÉÛ ¥ÀPÀÌzÀ°è ¤ªÀÄUÉ PÀæAiÀÄPÉÌ PÉÆqÀĪÀ d«ÄäUÉ ZÉPÀÄ̧A¢ B ¥ÀǪÀðPÉÌ B ¸ÀħæªÀÄtå¥ÀÅgÀzÀ gÀ¸ÉÛ , ¥À²ÑªÄÀ PÀÆÌ B GvÀÛgÀPÀÆÌ B zÀQëtPÀÆÌ B EzÉà ¸ÀªÉð £ÀA§gÀÄ ¥ÉÊQ £Á£ÀÄ G½¹PÉÆArgÀĪÀ d«ÄãÀÄ, F ªÀÄzsÉG ¥ÀǪÀð ¥À²ª Ñ ÀÄ B 60 CgÀªÀvÀÄÛ CrUÀ¼ÀÄ GvÀÛgÀ zÀQët 240 E£ÀÆßgÀ £À®ªÀvÀÄÛ CrUÀ¼ÀÄ «¹ÛÃtðªÀżÀî SÁ°Ã ¤ªÉñÀ£ÀªÀÅ F PÀæAiÀÄzÀ M¥ÀAà zÀ CqÁé£ïì PÀgÁjUÉ M¼À¥ÀnÖgÀÄvÉÛ."
His father till 15.03.1979 is said to have executed sale deed towards balance consideration amount of Rs.22,000/-, but again he has stated that his father to have executed only 9 guntas of land as the 1st defendant had not paid entire sale consideration amount. In the 9 guntas of the land only 1st defendant is said to have put up poultry farm and a house. Poultry farm is said to have been put up in 1988 and the 1st defendant is said to be running plastic industry in the suit schedule property. Initially there were said to be two houses to be rented 7 houses with plastic industry was said to be running in one portion of that property. The exact evidence of this P.W.1 has been as follows :
26 O.S. No.2194/2002"1£Éà ¥ÀæwªÁ¢UÉ ¸ÉÃjzÀ 9 UÀÄ£ÀmÉ eÁUÀzÀ°è , CªÀgÀÄ ¥ÀzÁäªÀw J£ÀÄߪÀªÀjUÉ 50 PÉÌ 42 Cr «¹ÛÃtð, C£ÀAvÀgÁdÄ J£ÀÄߪÀªÀjUÉ 52 PÉÌ 50 Cr, ªÉAPÀmÉÃ±ï ¨Á§Ä 59 PÉÌ 26 Cr «¹ÛÃtðzÀ eÁUÀªÀ£ÀÄß 1992 gÀ¯Éèà ªÀiÁgÁl ªÀiÁrzÀÝgÀÄ JAzÀÄ ¸Àj. ¸ÁQë ªÀÄÄAzÀĪÀgÉzÀÄ 1£Éà ¥ÀæªÁ¢ £ÀªÀÄß eÁUÀªÀ£ÀÄß MvÀĪ Û Àj ªÀiÁr ¸ÀzÀj eÁUÀªÀ£ÀÄß 3 d£ÀjUÉ ªÀiÁgÁl ªÀiÁrzÀÝgÀÄ JAzÀÄ GvÀÛj¸ÀÄvÁÛgÉ. ¸ÀzÀj ªÀÄÆgÀÄ d£À RjâzÁgÀgÀÆ ¸ÀºÀ FUÀ ªÀĽUÉUÀ¼À£ÀÄß PÀnÖPÉÆAqÀÄ ªÁå¥ÁgÀ ªÀiÁrPÉÆAqÀÄ ºÉÆÃUÀÄwÛzÁÝgÉ JAzÀgÉ ¸Àj."
The encroachment is said to be on the South in the Sy.No.17/1 and is said to have come to know about the encroachment in 1990-91. P.W.1 has also stated that several transactions to have taken place in One acre 22 gutnas of Sy.No.17/1. The sketch is said to have been prepared about the sale of 9 guntas in favour of defendant No.1, but there is no sketch pertaining to the remaining extent of Sy.No.17/1. Further P.W.1 has also admitted at present there is said to vacant property in 3 guntas of Sy.No.17/1. In other words, suit schedule 'B' property is not a vacant property. The construction is said to have taken place in the year 1991-92. Interestingly, he has also stated there is no construction of the house stated in Ex.P-3 to Ex.P-5 but i.e., said to be included in 9 guntas and it has been said to be registered. He has admitted that there is 27 O.S. No.2194/2002 no special identity of 9 guntas and 3 guntas in the plaint itself. In regard to Ex.P-32 which is the surveyor report, he has stated that there is no entry about the situation either 9 guntas or 3 guntas in Ex.p-32. In addition there is also no mention about the boundaries and the directions of that property in Ex.P-32. Sy.No.17/1 was surveyed and sketch was drawn in the presence of his father and the defendants. Defendant No.1 is shown to be in possession of 12 guntas and that Ex.P-32 is said to be not challenged. Further defendants No.2 to 4 are said to have constructed house in the 'B' schedule property and obtained connection of the civic amenities. That suit schedule 'B' property is said to be within the limits of Corporation and allotted separate number, but he does not know those details.
12. In regard to the encroachment, the plaintiff has also only relied upon the survey sketch documents. The encroachment is said to be on the South of the Sy.No.17/1. One interesting fact is that this P.W.1 is said to be residing adjoining to the property resided by defendant No.2 to 4. The defendants are said to have put up construction and collecting the rents from the properties in suit schedule 'A' property from 1992 itself. In regard to the existence of the suit schedule 'B' property, P.W.1 has stated that in MFA 28 O.S. No.2194/2002 No.7038/2005, the defendants No.2 to 4 are said to have stated to be the owners of 9 guntas only and not to have objections to 3 guntas and therefore that appeal was said to have been disposed off. One suggestion put forth to P.W.1 as follows :
"3 UÀÄAmÉ «¹ÛÃtðzÀ°è £ÁªÉà ¸Áé¢üãÀzÀ°èzÀÝgÀÆ ¸ÀºÀ zÀÄgÀÄzÉÝñÀ¢AzÀ ¥ÀæwªÁ¢AiÀÄgÀ ªÉÄÃ¯É ¸ÀļÀÄî zÁªÉ ¸À°è¹zÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è."
The oral evidence adduced in the present case goes to show that One acre 22 guntas had fallen to the share of Ramaiah vide partition deed of 1971. Then Ramaiah is said to have executed an agreement of sale as per Ex.D-1 in favour of defendant No.1 dated 15.12.1978. The portion of this property for sale in Ex.D-1 has been East to West 60 feet and North to South 240 feet. That measurement is said to run about 13 guntas of the land when converted into guntas. The sale deed was executed by Ramaiah on 15.03.1979 for 9 guntas. Subsequently, on 14.11.1979, D.W.1 has sold the property measuring East to West 66 feet and North to South 30 feet in favour of Rathnaiah Shetty through registered sale deed. The sale deed executed in favour o f D.W.1 is marked as Ex.P-29, but the measurement has not been shown in the unit of feet. This was on account of the bar pertaining to sale of revenue 29 O.S. No.2194/2002 lands. Therefore, unit of gunta is said to have been mentioned in the sale deed. After execution of Ex.P-2, D.W.1 has sold the property measuring 66 feet X 30 feet in favour of Rathnaiah Shetty. Northern portion of the entire 11 guntas on 14.11.1979 is sold by him in favour of Rathnaiah Shetty vide deed Ex.P-29. That Rathnaiah Shetty is said to have constructed several shops and let out for the tenants, photographs of which have been marked as Ex.P-36 to Ex.P-38.
D.W.1 is said to be in possession of the southern portion and he is also said to have out constructed several shops and residential premises for which photograph is Ex.P-37. Sri.Devi Juice and Condiments is identified by D.W.1 to belong to him in the photograph that was marked during confrontation as Ex.P-38. Hence, defendants No.2 to 4 are admitted to be in possession of the suit schedule premises on the basis of the sale deeds executed by D.W.1. The property sold in favour of defendants No.2 to 4 measuring 9 guntas is said to be situated to the south of his property of D.W.1. In regard to the extent of the sale D.W.1 has admitted northern portion to the extent of 2 ½ guntas out of 13 guntas on 14.11.1979 as per Ex.P-29 to have been sold to Rathnaiah Shetty. Defendant No.2 is 30 O.S. No.2194/2002 said to be his elder brother's wife, defendant No.3 is younger brother, defendant No.4 related to him. Poultry farm was said to have been closed after he sustained loss and thereafter D.W.1 to have let out the premises as per the photograph Ex.P-37. He is said to have been running plastic industry on the western side of the premises and then he is said to have constructed his house in 1985. He is said to have purchased vacant land measuring 9 guntas from Ramaiah in the year 1979 and sold 2 ½ guntas to defendants No.2 to 4 towards the southern side of his house. Particularly, he has also stated that 2 guntas of the land to have been sold in favour of Rathnaiah Shetty out of 9 guntas. He is said to have retained 5 guntas. He is said to have sold 2.5 guntas in favour of defendants No.2 to 4. He had purchased 13 guntas from original plaintiff. 2.5 guntas sold to defendants No.2 to 4 is said to be out of 9 guntas as stated in his sale deed. 2 guntas out of 13 guntas is said to have been sold to Rathnaiah Shetty. Basically, northern portion of the schedule property is said to be larger than the southern portion. 2.5 guntas of the land was said to be in his possession and sold in favour of the defendants No.2 to 4.
31 O.S. No.2194/2002Defendant No.4 examined as D.W.2 in the present case as stated about the purchase of the property situated on the East vide sale deed dated 17.06.1992. As on 17.06.1992, the property of the 1st defendant was said to be in existence towards south. He is said to have not got his property surveyed from the competent authority prior to its purchase.
13. D.W.3 in the oral evidence who is the General Power of Attorney holder of the 3rd defendant has stated that they had purchased the portion of the property from 1st defendant out of 9 guntas in Sy.No.17/1 as per Ex.P-4. It was not surveyed prior to execution of Ex.P-4. The property purchased by defendants No.2 to 4 and his property are said to be within the limits of southern portion of larger portion of 9 guntas. Taluk Surveyor is said to have not issued notice prior to Sy.No.17/1. He is said to have signed on the mahazar Ex.P-32. He is said to have renovated building in that property purchased by him in the year 1992.
The vital evidence in the present case is that of the surveyor examined as C.W.1 and according to him, notice issued has been Ex.C-2 with the mahazar and sketch is 32 O.S. No.2194/2002 Ex.C-4 and the concerned report is Ex.C-1. He has stated to have measured the properties of defendants No.1 to 4 as per their sale deeds. On the basis of the possession and occupation he is said to have measured suit schedule 'B' property. His mahazar Ex.C-3 being dated 29.01.2005, even has his report is said to be dated 13.08.2015. That property is said to be totally built up area. 'A' schedule property is said to measure 10 guntas and 'B' schedule property 3 ¾ guntas.
An admitted document Ex.P-2 is sale deed dated 15.03.1979 executed by the original plaintiff Ramaiah in favour of defendant No.1. The extent of the property is 9 guntas out of One acre 22 guntas in Sy.No.17/1 bounded on East by road, West by remaining portion in Sy.No.17/1, North and South by remaining portion. The extent remaining is not mentioned either on the West, North or Southern side in this Ex.P-2. General Power of Attorney Ex.P-5 to have been executed by Ramaiah in favour of 1st defendant. The description of the property is 4 guntas of Sy.No.17/1 bounded on East by property of defendant No.1, West by property of Chairman Lakshmaiah, North by property of Rathnaiah Shetty, South by private property. The extent is 240 X 26 + 0/2 feet. This is cancelled vide 33 O.S. No.2194/2002 Ex.P-6 dated 21.04.1989. No doubt, unit of guntas has been stated as encroached portion i.e., 3 guntas in the suit schedule 'B' property. The property sold in favour of defendant No.2 by defendant No.1 as per the sale deed Ex.P-3 dated 17.06.1992 has been shown as khatha No.365/14 in the Sy.No.17/1 bounded on East by road, West by private property, North by property of 3rd defendant and South by property of 1st defendant consisting of one sq. feet roof house. Here the extent is shown as East to West northern side 50 feet, southern side 48 feet, North to South 13 feet. One gunta = 1089 sq. feet.
Similarly, Ex.P-4 is the sale deed dated 17.06.1992 executed by defendant No.1 in favour of defendant No.3 with khatha No.365/14 bounded on East by S.Puram Road, West by private property, North by property owned by defendant No.4 and South by remaining portion of defendant No.1. The extent is shown as East to West northern side 53 feet, southern 50 feet, North to South 13 feet consisting of One sq. feet sheet house. When the suit schedule 'B' plaint is compared with Ex.P-2 it means that the property as per Ex.P-2 i.e., 9 guntas is situated to the North to suit schedule 'B' property.
34 O.S. No.2194/200214. In the entire averment of the plaint it is stated that Sy.No.17/1 to measure One acre 22 guntas. Sale of 9 guntas is admitted in the pleadings which means that the remaining would be One acre 13 guntas. The boundaries of 9 guntas stated in Ex.P-2 and as above noted there is no mention to the extent of the remaining portion on the North-West or the South in Ex.P-2. In this regard, re- course is to be taken to the earlier litigation between the parties. Ex.P-1 is the certified copy of the plaint of O.S.No.124/1989 filed by the present defendant No.1 against the original plaintiff Ramaiah for Permanent Injunction, but in this suit as above noted the extent as stated as only 13 guntas of Sy.No.17/1 and the boundaries are stated East by Road, West-North-South by private property. No other details of that private property is stated in this suit. The deposition of the original plaintiff in that suit certified copy has been marked as Ex.P-27. This Ramaiah has stated that O.S.No.368/1989 to have been filed against the plaintiff therein that suit ended in compromise. With regard to the extent stated that 240 X 60 feet consisting of 12 sites is to have been sold by way of agreement executed in favour of the plaintiff therein i.e., 1st defendant in the above case.
35 O.S. No.2194/2002Sale agreement is marked as Ex.D-1 and typed copy of Ex.D-1(a) executed by Ramaiah in favour of defendant No.1 here the extent is shown as Eastern portion of Sy.No.17/1 adjoining Subramanya Road, bounded on East by Subramanyapura Road, West-North-South by remaining portion of some Sy.No.17/1. The extent is 60 X 240 feet which would be 14400 sq. feet. The Judgment of that suit in O.S.124/1989 has been marked as Ex.D-1 and it shows that the suit was decreed whereby the present plaintiff was restrained from interfering with that property. Ex.D-3 is the decree copy of that suit and Ex.D-4 is the certified copy of the RFA No.1133/2003 preferred against that Judgment and it was dismissed as the appeal not survive for consideration dated 09.08.2012. Ex.D-5 is the certified copy of the MFA No.7038/2005 that was filed by the present plaintiff against the present defendants pertaining to appointment of the receiver for the collection of the rents and the appeal was dismissed as not to survive for consideration dated 17.02.2009. Official Memorandum of the Deputy Commissioner Ex.D-6 is about the sanction of conversion of 5 acres 22 guntas in Sy.No.6/2C+ 7+ 10 guntas. General Power of Attorney executed by the 2nd defendant is Ex.D-7. BBMP has issued Ex.D-8 under Section 143 of the Karnataka Municipal Act, 1976 to the 2nd 36 O.S. No.2194/2002 defendant calling upon to pay the tax and this is dated 24.08.1998. Ex.D-9 certificate issued by the BBMP in the name of defendant No.2 which does not have the details of the property and tax paid receipt issued in the name of defendant No.2. Ex.D-10 and Ex.D-11 are the tax paid receipt with PID No.55-128-17 for the year 2014-2015 in the name of 2nd defendant. Encumbrance certificate for the period from 01.04.1986 to 31.05.1989 as per Ex.P-12 mention its extent as 53+50x13/2 in the name of defendant No.3 bounded on East by S.Puram Road, West by property of another party, North by property of defendant No.4 and South by property of defendant No.1. It shows that there has been allotment of the khatha number to the property of defendant No.3. Electricity bills have been marked as Ex.D- 14 to Ex.D-17 and the property tax in the name of defendant No.3 is Ex.D-18 and Ex.D-19.
15. As above noted, it is an admitted fact of the plaintiff that the suit schedule property to be not a vacant property and structure to have put up whereupon the connection of civic amenities to have been obtained. An application was submitted as per Ex.P-28 by the original plaintiff to the Housing and Urban Development, M.S.Building seeking for exemption under Section 20 of the WLC Act to the land in 37 O.S. No.2194/2002 Sy.No.17/1. In this application it is clearly mention that the applicant viz., original plaintiff being the owner of One acre and 22 guntas in Sy.No.17/1 was forced to dispose the land by forming the sites. In 1979-80, he is said to have disposed of the land in that said survey number retaining only 9 guntas for his own use which is said to consist of dwelling house resided by his family members. The land is said to have been sold in order to clear his debts borrowed in 1974-75. This letter is dated 02.08.1988. Hence, had sought for exemption under section 20 of the ULC Act for the land sold during 1979-1980. Therefore, it means that as on 02.08.1988 original plaintiff had retained only 9 guntas by selling the remaining extent of the land in the same survey number. The boundaries of 9 guntas of course is not stated in this application. At the same in the plaint it has been stated that except 9 guntas sold on 15.03.1979, remaining portion One acre 13 guntas was retained by Ramaiah. Ex.P-29 is the certified copy of the sale deed executed on 14.11.1979 by defendant No.1 in favour of Ramakrishnaiah and Rathnaiah and it is in respect of Sy.No.17/1 vacant site East -West by 66 feet, 20.11 mtrs and North to South 30 feet 9.14 mtrs in total 183.80 sq. mtrs bounded on East by Main Road, West-North by land of Ramaiah and South by remaining portion in the same 38 O.S. No.2194/2002 survey number in the same survey number retained by the owner. Therefore, the extent is stated as 66 X 30 mtrs vacant site. Ex.P-30 is the certified copy of the sale deed dated 25.03.2006 executed between defendant No.4 in favour of Jagaram and babulal and the property sold has been as follows :
SCHEDULE All the piece and parcel of portion of house property bearing No.17/1, khatha No.365/14, Kadirenahalli village, Uttarahalli Hobli, Bangalore South Taluk, present Corporation No.69, Kadirenahalli main Subramanyapura Main Road, Corporation Division No.55, Padmanabhanagar Division, Bangalore, PID No.55-140-69, measuring East to West on the Northern side 59 feet on the Southern side 53 feet and North to South 26 feet, in all measuring 1456 sq. feet together with the residential house consisting of 8 squares of A.C. sheet roofed house, walls built with mud and bricks of jungle wood doors and windows of mud flooring and 2 squares shop of A.C. sheet 39 O.S. No.2194/2002 with all amenities constructed in the year 1995 and bounded on the :
East by Subramanyapura Road
West by Private property
North by Remaining portion of the
same property No.17/1
belonging to
Prasanna Kumar property,
South by Property bearing No.17/1
belonging to Anantharaju."
In the recitals of this sale deed it is stated about the Partition Deed referred by the plaintiff in the above suit. It has further reference of Ex.P-2 and the General Power of Attorney dated 08.06.1981 which is Ex.P-5. It also has reference of Ex.P-3. This Ex.P-3 as above noted has been the property claimed by defendant No.1 to be owner on account of the said property being sold by original plaintiff Ramaiah. That property has been sold by defendant No.1 in favour of defendant No.3. Ex.P-31 is the notice issued to the vendors of Ex.P-29 and Ex.P-30 for survey. Concerned mahazar is Ex.P-32 and the certified copy of the sketch drawn is Ex.P-33 and the Form No.5 shows phot kharab of 12 guntas in Sy.No.17/1 sub-divided as 17/1A is 0.64 ½ guntas, Sy.No.17/1/1B in the name of Rathnaiah to the 40 O.S. No.2194/2002 extent of 0.02 ½ guntas, Sy.No.17/11C in the name of defendant No.1 to the extent of 0.12 guntas. The certified copy of Ex.P-3 is Ex.P-35.
Vehemently, the plaintiff has claimed the suit schedule 'B' property to measure only 3 guntas whereas Court Commissioner C.W.1 has stated schedule 'A' property to measure 10 gutnas schedule 'B' property 3 ¾ guntas. The sale deed Ex.P-2 dated 15.03.1979, the General Power of Attorney Ex.P-5 is dated 08.06.1981, assessment extract and revenue documents Ex.P-19 to Ex.P-26, ex.P-29 are all prior to Ex.P-28 which the application filed by the original plaintiff seeking exemption under the Urban Ceiling Act. The perusal of the oral evidence of P.W.1 goes to show that he has stated about the several sale transaction to have taken place in respect of his property. Ex.P-28 being admitted by P.W.1 thereby it means that as on 02.08.1988 only 9 guntas was in possession of Ramaiah. The sale agreement Ex.D-1 dated 15.12.1978 is prior to Ex.P-28. What is the boundaries of this 9 guntas that was retained by the original plaintiff? The documents placed before the court is unclear about this aspect. It is also unclear from the documents if the suit schedule 'B' property falls within 9 guntas referred in Ex.P-28. Moreover, the dispute revolves 41 O.S. No.2194/2002 between the parties only to the 3 guntas. The sale transactions and litigation has taken place which is admitted fact. The boundary stated on the suit schedule 'B' property does not appear in any of those sale deeds thereby connection between those sale deeds and the suit schedule 'B' property so as to be an encroachment in terms of the averment of the plaint is not established by the plaintiff.
Written arguments has been filed by both the parties.
In view of the admitted facts of the oral evidence, the benefit of the citations referred by the learned counsel for the plaintiff reported in
1. AIR 2016 Supreme Court page 2250 (Muddasani Venkata narasaiah - Vs - Muddasani Sarojana)
2. 2000 AIR Supreme Court page 1099 (State of Maharashtra - Vs - Pravin Jethalal Kamdar (Dead) by LRs.
3. 2005 (1) KCCR page 82 (Sri Chinnappa - Vs -
Corporation of the City of Bangalore)
4. 2010 (4) KCCR page 2648 (M/s. Electronics and Controls, Bangalore by LRs - Vs - Karnataka 42 O.S. No.2194/2002 Industrial Area Development Board, Bangalore and another)
5. AIR 2006 Orissa page 129 (Rama Pujhari and others - Gouri Bewa and others)
6. 2008-15-Supreme Court Cases-page 150 (Kurella Naga Druva Vudaya Bhaskara Rao - Vs
- Galla Jani Kamma Alias Nacharamma) cannot be availed by the plaintiff.
At the same time, it is also to be noted that the learned counsel for the defendant has referred to the citation (2002) 2 Supreme Court Cases page 85 (Madhukar D.Shende - Vs - Tarabai Aba Shedage) "B. Evidence Act, 1872 - Ss.11, 13 and 35 - Held, judgment in a previous suit between same parties is a relevant piece of evidence if it has a material bearing on the controversy arising for decision in the current suit - Held on facts, the finding in a previous suit that the will disputed in present case and relied on by the appellant was a duly attested and registered document was a relevant piece of evidence."
43 O.S. No.2194/2002Therefore, the benefit of the citations reported in
1. 2014 SAR (Civil) page 1214 (Ashraj Kokkur - Vs
- K.V.Abdul Khader, etc.)
2. 2015 AIR SCW page 5085 (Hanumanthappa (Since deceased by his LRs - Vs -
V.B.Shivakumar)
3. 2015 SAR (Civil) page 299 (Om Prakash (D) thr.
LRs - Vs - Shani Devi and others.
4. 2015 SAR (Civil) 583 (Dhannulal and others - Vs
- Ganeshram and others)
5. AIR 2014 SC (Supp) page 904 (Venkataraja and others - Vs - Vidyane Doureradjaperumal (D) Thr. LRs. and others)
6. (2008) 4 AIR Kar R 122 (Parappa and others- Vs
- Bhimappa and another)
7. AIR 2014 (NOC) page 167 (CHH) (Amar Singh -
Vs - Bhojram)
8. AIR 2014 Madhya Pradesh page 59 (Ramswaroop (D) Thr. LRs. - Vs - State of M.P.)
9. (2014) (6) Scale page 651 (Coffee Board - Vs -
Ramesh Exports Pvt. Ltd.) cannot be availed by the defendants.
44 O.S. No.2194/2002The admitted facts read with evidence of C.W.1 discards the case of the plaintiff and therefore this court is constrained to answer issue No.1 and additional issue No.1 in the NEGATIVE.
16. ISSUE No.2 AND 4 : Basically, the plaintiff has failed to prove the property as described in the schedule to be in existence. Consequently, question of granting mesne profits and such related reliefs cannot arise. Moreover, oral evidence of P.W.1 specifically that his father to have executed sale deeds which are noted above shows that the plaintiff is not in possession of the suit schedule property. The schedule 'B' property according to P.W.1 is bounded on East by Subramanya road, West by others property, North by property of defendant No.1 and South by plaintiff's property. The only reliance of P.W.1 has been survey sketch P.W.1 has also admitted about the allotting of the khatha No.365/14, Uttarahalli Panchayath to Sy.No.17/1 of Kadirenahalli. In this khatha number is said to be a plastic industrial factory of the defendants for which the concerned document infact has been produced by the plaintiff marked as Ex.P-18. On account of the admitted fact of P.W.1 about Ex.P-32, allotment of the corporation numbers, possession is therefore not proved by the plaintiff. Moreover, there are 45 O.S. No.2194/2002 no documents of possession in the name of the plaintiff. Thereby this court is constrained to answer these issues in the NEGATIVE.
17. ISSUE No.5 : Due to the above findings, the following:
ORDER The suit of the Plaintiff is hereby dismissed.
Parties to bear their own costs.
Draw decree accordingly.
[Dictated to the Judgment Writer transcribed and typed by her thereof is corrected and then pronounced by me in Open Court, this 7th day of January 2017] (Ms.VELA.D.K.) XIV Addl. City Civil Judge Bangalore
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ANNEXURE List of witnesses examined on behalf of plaintiff :
P.W.1 Srinivas 46 O.S. No.2194/2002 List of documents exhibited on behalf of plaintiff :
Ex.P.1 Certified copy of the plaint in O.S.124/1999 Ex.P.2 Certified copy of the Sale deed dated 15.03.1979 Ex.P.3 Certified copy of the Sale deed dated 17.06.1992 Ex.P.4 Certified copy of the Sale deed dated 17.06.1992 Ex.P.5 Certified copy of the GPA dated 08.06.1981 Ex.P.6 Cancellation deed of GPA dated 24.09.1991 Ex.P.7 Certified copy of the Order sheet in O.S.3681/1989 Ex.P.8 Certified copy of the Index of land Ex.P.9 Certified copy of the Record of rights Ex.P.10 Certified copy of the endorsement dated 01.01.1989 Ex.P.11 Certified copy of the certificate issued by the Government of Karnataka Ex.P.12 Certified copy of the General license Ex.P.13 & 14 Certified copy of the receipts Ex.P.15 Certified copy of the electoral card Ex.P.16 Certified copy of the Official memorandum Ex.P.17 Certified copy of the notice dated 25.02.1998 Ex.P.18 Certified copy of the certificate of registration Ex.P.19 to 26 Certified copy of the bill and receipt issued by KEB 47 O.S. No.2194/2002 Ex.P.27 Certified copy of the deposition of D.Ramaiah in O.S.124/1989 Ex.P.28 Copy of the application submitted by Ramaiah Ex.P.29 & 30 Certified copies of the Sale deeds dated 14.11.1979 and 25.03.2006 Ex.P.31 Certified copy of the notice issued by the surveyor Ex.P.32 Certified copy of the mahazar dated 25.05.1990 Ex.P.33 Certified copy of the sketch Ex.P.34 Form No.5 Ex.P.35 Certified copy of the Sale deed dated 17.06.1992 Ex.P.36 to 38 Photographs List of witnesses examined on behalf of Defendants :
D.W.1. Prasanna Kumar D.W.2. N.Venkatesh Babu D.W.3. A.S.Sathyanarayana D.W.4. S.Anantharaju List of documents exhibited on behalf of Defendants :
Ex.D.1 Certified copy of the sale agreement dated 15.12.1978 48 O.S. No.2194/2002 Ex.D.1(a) True copy of Ex.D.1 Ex.D.2 & 3 Certified copy of the Judgment and Decree in O.S.124/1999 Ex.D.4 Certified copy of the Judgment in RFA 1133/2003 Ex.D.5 Certified copy of the Order in MFA 7038/2005 Ex.D.6 Certified copy of the official memorandum issued by Deputy Commissioner, Bengaluru District Ex.D.7 GPA dated 28.06.2014 executed by 2nd defendant Ex.D.8 Special notice issued by BBMP Ex.D.9 Khata Certificate Ex.D.10 & 11 Two Tax paid receipts Ex.D.12 & 13 Encumbrance certificate and Nil encumbrance certificate Ex.D.14 to 17 Electric bills and receipts Ex.D.18 Receipt issued by Bengaluru one for having paid the property tax Ex.D.19 Tax paid receipt List of witnesses examined on behalf of CW :
C.W.1 Sri.Ananth Raju List of documents exhibited on behalf of CW:
Ex.C.1 Commissioner report
49 O.S. No.2194/2002
Ex.C.2 Notice
Ex.C.3 Mahazar
Ex.C.4 & 4(a) Sketch and Portion in it
XIV ADDL.CITY CIVIL JUDGE
Bangalore