Bangalore District Court
Smt. Bharathi Sundaram vs Sri. Chinnappa on 30 July, 2021
IN THE COURT OF THE LXXIV ADDL. CITY CIVIL AND
SESSIONS JUDGE MAYOHALL UNIT,
BENGALURU (CCH-75)
Dated this 30th Day of July 2021
PRESENT:
SRI. MOHAMMED MUJEER ULLA C.G. (B.A. LL.B.,)
LXXIV Addl. City Civil and Sessions Judge, Bengaluru.
ORIGINAL SUIT NO.25427/2015
PLAINTIFF: Smt. Bharathi Sundaram
W/o. Late Sundaram
Aged about 67 years
R/at: No.56, Near CSI Church,
3rd Cross, Murugeshpalya,
Bangalore - 560017.
(REP BY: SRI. K. RAJENDRA PRASAD - advocate)
V/s
DEFENDANTS: 1 Sri. Chinnappa
S/o late Venkatappa
Aged about 55 years
2 Venkataramanappa
S/o late Venkatappa
Aged about 48 years
Both are residing at:
Venkatappa Colony,
B. Narayanapura,
Bengaluru-560016.
Defendants 1 and 2 REP BY: G. L.VISHWANATH -
ADVOCATE
2
OS.25427/2015
Date of Institution of the suit 29/04/2015
Nature of the Suit (Suit on pro-note,
suit for declaration and possession, INJUNCTION SUIT
suit for injunction, etc.)
Date of the commencement of
28/02/2019
recording of the Evidence.
Date of pronouncement of Judgment 30/07/2021
Total duration Year/s Month/s Day/s
06 03 01
JUDGMENT
Plaintiff has filed the instant suit for injunctions restraining the defendants, their men, agents, henchmen, servants and all persons claiming through or under them from interfering with her possession and enjoyment of the suit property and/or dispossessing her from the said property and/or trespassing into the said property and costs.
FACTS OF THE CASE:
2. The suit property originally belonged to defendants father late Venkatappa. Plaintiff's husband late L. Sundaram purchased the said property from late 3 OS.25427/2015 Venkatappa under the registered sale deed dtd.10/09/1962. Since the date of purchase he had been in possession and enjoyment of the said property. After execution of the sale deed the survey number of the suit property was changed. Therefore on 30/01/1967 Venkatappa executed the deed of rectification in favour of plaintiff's husband late L. Sundaram. On the basis of the above sale deed and rectification deed the khatha of the suit property was effected in the name of L.Sundaram. He constructed residential house measuring 600 Sq. feet. The plaintiff contends that her husband L. Sundaram died on intestate on 07/01/1995 leaving behind his widow, the plaintiff and children to succeed the suit property. After his death his legal heirs have been in possession and enjoyment of the suit property. The khatha of the suit property was mutated in the name of plaintiff and she is paying tax to BBMP. Plaintiff contends that as co-owner she has been in un-interrupted possession and enjoyment of the suit property. The defendants who are the children of late Venkatappa the est-while owner of the suit property though 4 OS.25427/2015 having no manner of any right, title, interest or possession in or over the suit property or any portion thereof are interfering with her possession and enjoyment of the said property and they are making attempts to commit trespass and dispossess her from the said property. The plaintiff contends that Ist defendant is an ex-councilor. He is having men and money. Defendants by taking the help of anti social elements demolished the structure existing in the suit property and made attempts to take the possession of the said property. The above acts of defendants and their men are illegal, highhanded and tortuous. She being the old age lady of 68 years is not in position to resist the illegal and high handed acts of defendants and their men.
Therefore left with no alternative she filed the instant suit. On these and other grounds stated in the plaint plaintiff prays to decree the suit and grant the reliefs of perpetual prohibitory injunctions as prayed for.
3. Defendants, resisted the suit by filing written statement. They denied the plaintiff averments in toto. They contend that their father Late Venkatappa was in 5 OS.25427/2015 possession of land in Sy. No.135 of B. Narayanapura Village, KR puram Hobli, Bengaluru East Taluk measuring 4 acre 9 guntas. The said land is herein after referred to as said land. Pursuant to the promulgation of Mysore (Personal and Miscellaneous) Inams Abolition Act 1954, (Inams Abolition Act) vide notification dtd.13/01/1959, the said land was vested with Government of Karnataka. After vesting of the title and possession of the said land with Government of Karnataka, Venkatappa applied for grant of the said land and to registered him as occupant. Vide order dtd.28/10/1964 the special Deputy commissioner for inams abolition ordered to register him as occupant and khatedar of the said land. The grant order conferred fresh title on Venkatappa and he was put in possession of the said land. By virtue of grant his name was entered in the RTC of the said land. He constructed several dwelling houses in the south western portion of the said land measuring 200 X 150 feet. He applied for the conversion of the said portion of land for non-agricultural purpose and also for regularization of un-authorized constructions 6 OS.25427/2015 standing thereon. The Assistant commissioner, PUC, Bengaluru vide official memorandum dtd.11/10/1967 passed an order for conversion of the said land for non- agricultural purpose and also for the regularization of the un-authorized constructions thereon by levying the penal rate of Rs.4,000 per acre. As per the said order the special Tahasildar, Bengaluru by collecting the conversion fine issued conversion sanction certificate dtd.17/08/1968. Defendants contend that after conversion, the said land was surveyed and phodi was effected by de-marking the converted portion of the land measuring 27 ½ guntas and assigned its survey number as 135/1B. The survey number of the remaining un-converted portion of agricultural land was assigned as 135/1A. The defendants contend that their father late Venkatappa had been in possession and enjoyment of the converted land in Sy.No.135/1B measuring 27 ½ guntas and remaining un- converted land till his death. After his death the defendants as his legal heirs would succeed to his estate and they have been in possession and enjoyment of both 7 OS.25427/2015 the portions of the said land. The khatha of the converted portions of the said land was effected in BBMP in their name and they are paying taxes. Revenue records of the un-converted land i.e. Sy. 135/1A also mutated in their name and they are paying land revenue to the Government. The defendants denied the execution of sale deed dtd.10/09/1962 and rectification deed dtd.30/01/1967 by their father late Venkatappa in favour of plaintiff's husband L. Sundaram. The defendants contend that as on the date of registration of the sale deed dtd. 10/09/1962 their father Venkatappa was not having right title interest and possession in or over any portion of the land in Sy. No.135 of B. Narayanapura Village. Therefore the said alleged sale deed dtd. 10/09/1962 would not convey any kind of right title interest and possession of the suit property in favour of plaintiff's husband L.Sundaram. The defendants contend that the sale deed dtd. 10/09/1962 relates to Sy. No. 31 of B. Narayanapura Village. Therefore the said sale deed is not relating to the land in Sy. No.135 of B. Narayanapura Village. The rectification deed dtd. 8
OS.25427/2015 30/01/1967 would not convey the right title interest of suit property in favour of plaintiff's husband L. Sundaram. The khatha and tax paid receipts made on the basis of the above said sale deed and rectification deed are of no assistance to the plaintiff to prove her or husband's possession over the suit property. Defendants contend that the description of the suit property as described in the plaint schedule is false and imaginary. Such a property is not existing in the land in Sy. No.135 of B. Narayanapura village. Plaintiff's husband was never in possession of any portion of land in Sy.No.135 of B. Narayanapura Village. The defendants contend that the instant suit for bare injunction without seeking the relief of declaration is not maintainable. They contend that plaintiff was not in possession of any portion of land in Sy.No.135 of B. Narayanapura Village. The contention of the plaintiff, that her husband constructed a residential house in a portion of the schedule property measuring 600 Sq. ft. is false. They contend that the plaintiff is/was never in possession of the suit property. Therefore the question of they interfering with 9 OS.25427/2015 her possession and enjoyment of the said property, demolishing the structure existing therein and making attempts to dispossess her from the said property would not arise. Therefore the cause of action alleged in the plaint is false and imaginary. The defendants contend that they are in peaceful possession and enjoyment of the land in Sy. No.135 of B. Narayanapura Village. Therefore the question of they tresspassing in to the said land would not arise. They contend that plaintiff has filed the instant suit by giving false description and boundaries of non-existed property. The plaintiff has not approached the court with clean hands. Therefore she is not entitled for the equitable relief of injunctions. On these and other grounds stated in the written statement defendants pray to dismiss the suit.
4. On the basis of aforesaid pleadings, on 28/02/2019, the following issues were formulated:
ISSUES
1. whether the plaintiff proves her possession over the suit property as on the date of suit?10
OS.25427/2015
2. Whether the plaintiff proves interference by defendants in her possession and enjoyment of the suit property as alleged?
3. Whether the plaintiff is entitled for the relief of perpetual prohibitory injunction as prayed for?
4. What order or decree?
5. Plaintiff examined as PW1 and produced documents marked at Ex.P.1 to P.13. 1 st defendant examined as DW1 and produced documents marked at ExD.1 to D20.
6. Heard the arguments on both side. In addition to oral arguments counsel on both side filed written arguments with citations.
7. My findings on the above Issues are as under:
ISSUE NO.1: In the Negative.
ISSUE NO.2: In the Negative.
ISSUE NO.3: In the Negative.11
OS.25427/2015 ISSUE NO.4: As per the final order for the following:
REASONS
8. ISSUE NO.1: This is a suit for bare injunction. Therefore the question of possession looms large and title of the suit property does not assume much importance. Plaintiff to prove her possession over the suit property is placing reliance on her testimony and the documentary evidence marked at Ex.P1 to 10. Plaintiff who was examined as PW.1 has reiterated and re-affirmed the plaint averments. She stated that by executing Ex.P1 sale deed dtd.10/09/1962 defendants father late Venkatappa put her husband late L. Sundaram in possession of the suit property. Since then L. Sundaram had been in possession and enjoyment of the said property. In view of change in survey number Venkatappa executed Ex.P2 rectification deed dtd.30/01/1967. On the basis of sale deed and rectification deed khatha of the suit property was effected in the name of her husband L. Sundaram and he had been in possession and enjoyment of the said property till his 12 OS.25427/2015 death. After his death she as co-owner is in possession of the suit property. PW.1 has stated that her husband has constructed structure in the suit property measuring 25 X 35 feet. She stated that after the death of her husband L.Sundaram BBMP records of the suit property were mutated in her name. She has produced Ex.P3 demand registered extract, Ex.P4 and 9 tax paid receipts, Ex.P5 the license obtained by L. Sundarm to put up construction and Ex.P7 the property register extract.
9. Defendants contend that the suit property as described in the plaint schedule is not in existence. Pursuant to the promulgation of inams abolition Act as per the notification dtd.13/01/1959 the entire land in Sy. No. 135 of B. Narayanapura Village was vested with the Government. Therefore as on 10/09/1962 their father late Venkatappa was not having right title interest or possession over any portion of land in Sy. No. 135 of B. Narayanapura Village. Therefore the contention of the plaintiff that Venkatappa handed over the possession of the suit 13 OS.25427/2015 property to her husband L. Sundaram cannot be accepted. They contend that when L. Sundaram was not put in possession of any portion of land in Sy. No.135 of B. Narayanapura Village the contention of the plaintiff that after the death of L. Sundaram his wife and children are in possession of the suit property cannot be accepted. Therefore in the instant case having regard to the contentions put forth by the defendants to establish possession over the suit property the plaintiff has to prove that the suit property as described in the plaint schedule is in existence and on 10/09/1962 late Venkatappa, the father of defendants put her husband late L. Sundaram in possession of the said property.
10. It is the specific case of the plaintiff that by executing Ex.P1 sale deed dtd. 10/09/1962 defendants father Venkatappa put her husband L. Sundaram in possession of the suit property. Therefore Ex.P1 sale deed is a mother document through which plaintiff claiming her husband's right, interest and possession over the suit 14 OS.25427/2015 property. In Ex.P1 sale deed it is stated that defendants father Venkatappa acquired the land in Sy.No.31 of B. Narayanapura Village under the registered sale deed dtd.11/01/1956. Defendants by producing Ex.D20 RTCs contend that the land in sy. No. 31 not belonged to their father. Plaintiff has not produced the sale deed dtd.11/01/1956 to show that the said land belonged to Late Venkatappa.
11. Plaintiff contends that after execution of Ex.P1 sale deed the survey numbers of the lands of B. Narayanapura were changed. Survey Number 31 became Sy.No.135. Therefore Venkatappa executed Ex.P2 deed of rectification dtd.30/01/1967. In Ex.P2 deed of rectification it is stated that after execution of Ex.P1 sale deed Sy. No.31 of B. Narayanapura village was changed as Sy. No.135. Therefore the said deed of rectification was made. In Ex.P2 deed of rectification the boundaries of the property stated in the schedule of Ex.P1 sale deed were re-produced. 15
OS.25427/2015
12. It is the case of the plaintiff that after execution of Ex.P1 sale deed the land in Sy. No.31 of B. Narayanapura Village was changed as Sy.135. Defendants denied the said contention. Therefore the burden is on the plaintiff to prove the change of survey number of the land from 31 to
135. To prove the same except placing reliance on Ex.P2 deed of rectification plaintiff has not produced any other document.
13. As already stated above it is the specific contention of the defendants that there is no change of survey numbers as alleged by the plaintiff. Sy. No.31 and 135 of B. Narayanapura Village are the two different survey numbers and there are existing since 1957. To substantiate the said contention defendants produced Ex.D14 Tippani of Sy. No. 135 dtd.12/09/1957, Ex.D15 re-class tippani of Sy. No. 135 dtd.20/09/1957, Ex.D16 tippani of Sy. No.31 dtd.13/09/1957, Ex.D17 secondary re-class of tippani of Sy. No.31 dtd.25/09/1957, Ex.D18 the village map of B. 16 OS.25427/2015 Narayanapura Village prepared in the year 1957, Ex.P19 report and Ex.D20 RTC extract of land in Sy. No.31.
14. The plaintiff has not disputed the above public documents. A perusal of Ex.D18 village map would show that the land in sy. No.31 situate abutting to the southern boundary of B. Narayanapura Village and the land in Sy. No.135 situate in the northern portion of B. Narayanapura Village. A perusal of Ex.D19 report would show that the land in Sy. No.135 is measuring 4 acres 9 guntas. A perusal of Ex.D20 (1 to 3) RTC extracts would show that the land in Sy. No.31 is measuring 2 acres 19 guntas. The recitals of the above documents would support the contention of the defendants that the land in Sy. No.31 and 135 of B. Narayanapura Village are the two different properties and the said two lands are existing since 1957.
15. As against this plaintiff has not produced any iota of material to substantiate her contention that after execution of Ex.P1 sale deed the land in Sy.No.31 of B. 17 OS.25427/2015 Narayanapura Village was changed as Sy. No.135. As contended by the plaintiff if the land in Sy.No.31 is changed as Sy. no. 135 there should be some public records in that regard. Without producing any public document regarding change of survey numbers Ex.P2 deed of rectification is of no assistance to plaintiff to prove that after execution of Ex.P1 sale deed the land in Sy. No.31 of B. Narayanapura Village was change as Sy. No.135. In view of the above I hold there is no cogent and convincing evidence on record to prove that after execution of Ex.P1 sale deed Sy. No.31 of B. Narayanapura Village was change as Sy. No.135.
16. From Ex.D19 report it is evident that the land in Sy. No. 135 is measuring 4 acres 9 guntas. In the said 4 acres 9 guntas of land plaintiff is claiming possession over the vacant land/site measuring East to West 40 feet, North to South 100 feet i.e. 4000 sq. ft. Plaintiff has not produced the sketch to show the location of the said 4000 sq.ft. of land in Sy. No. 135 totally measuring 4 acre 9 guntas. In the absence of sketch the boundaries of the property is to 18 OS.25427/2015 be looked into. In Ex.P1 sale deed and in Ex.P2 deed of rectification the boundaries of the suit property are stated as East, north and south-remaining land belonging to vendor and west-Road. In the plaint schedule the boundaries of the suit property are described as East - property of Cheluvaraj, West -Road, North -property of Selvaraj, South -Road.
17. As per sec.92 of Evidence Act when the terms of disposition of property reduced to the form of a document and having proved by producing the said document as per sec. 91 of the Evidence Act, no evidence of any oral agreement or statement shall be admitted as between the parties to the said document or their representative in interest for the purpose of contradicting varying, adding to or subtracting its terms. Therefore, in view plaintiff placing reliance on Ex.P1 sale deed and Ex.P2 deed of rectification to prove the boundaries of suit property, sec.92 of Evidence Act debars her from leading evidence varying or contradicting the boundaries mentioned therein. 19
OS.25427/2015
18. In the plaint or PW.1 in the evidence has not stated as to when the remaining property of vendor existing on the eastern and northern side of the property mentioned in Ex.P1 sale deed and Ex.P2 deed of rectification transferred to Cheluvaraj and Selvaraj as noted in the boundaries of plaint schedule and when the remaining portion of the property of vendor situate on southern side was converted as road. Thus plaintiff has not stated anything in the plaint or in the evidence regarding transfer of remaining land of vendor or any changes after making of Ex.P1 sale deed and Ex.P2 deed of rectification to prove the changes of the boundaries of East, North and South of the suit property.
19. It is the case of the plaintiff that her husband L. Sundaram purchased the suit property from Venkatappa, the father of the defendants. Therefore having regard to the boundaries mentioned in Ex.P1 and P2 sale deeds according to the plaintiff on the three (3) sides of the property purchased by her husband the remaining property 20 OS.25427/2015 belonging to Venkatappa situate. In the cross-examination of DW.1 no attempt was made to elicit that Venkatappa during his life time or after his death his children alienated the remaining portion of land situate on the eastern and northern side of property sold under Ex.P1 sale deed and Ex.P2 deed of rectification to Cheluvaraj and Selvaraj and the road was formed in the remaining portion of the property situate on the southern side of the property. Thus there is no cogent and convincing evidence regarding change of eastern, northern and southern boundaries of the suit property.
20. The plaintiff contends that the suit property is the site measuring east-west 40 feet and north-south 100 feet. In the plaint it is not stated when Venkatappa formed sites either in Sy. No.31 or in sy. 135 of B. Narayanapura Village. PW.1 in the cross-examination has stated she do not know when the layout was formed in the land in sy. No.31 or 135 of B. Narayanapura Village, how many sites were formed and whether the said layout is approved or not. Further 21 OS.25427/2015 she stated that she do not know the measurements of the sites formed in the said lands. In the cross-examination of DW.1 no attempts was made to elicit regarding forming of layout in the land in Sy. No.135 of B. Narayanapura Village and existence of a site measuring 4000 sq. feet situate within the boundaries stated either in Ex.P1 sale deed and Ex.P2 deed of rectification or in the plaint schedule.
21. Defendants contend that after re-granting of the land in sy. No.135/B of B. Narayanapura Village measuring 4 acres 9 guntas in favour of their father, Venkatappa as per Ex.D3 order of special Deputy Commissioner for inam abolition, he converted the land measuring 200 X 150 sq. ft. for non-agricultural purpose and after conversion the said land was phoded. The land converted for non- agricultural purpose was de-marketed as Sy. N.135/1B and the un-converted agricultural land was de-marketed as Sy. No. 135/1A. Ex.D5 is the official memorandum for payment of penal rate of Rs.4,000/- per acre for regularization of un-authorized construction made in the 22 OS.25427/2015 agricultural land in Sy. No. 135, Ex.D6 is the order of conversion, Ex.D7 and 8 are the sketches, Ex.D9 the RTC of non-converted agricultural land in Sy. No.135/1A measuring 3 acres 24 guntas, Ex.D10 is the RTC of converted land in sy. No.135 of B. Narayanapura Village which was de-marketed as Sy. No.135/1B measuring 27.08 guntas. Plaintiff has not denied the above documents made by public officers during the discharge of their official duty. A perusal of Ex.D8 sketch would show that for the first time the land in Sy. No. 135 is phoded as 135/1A (nonconverted land) and 135/1B (converted land). Thereafter in Sy. No.135/1A sub phodi was made as 135/1A, 2, 3, 4 and 5. During the course of cross- examination of DW.1 no attempt was made to elicit the location of the suit property in Ex.D7 and 8 sketches of the land in Sy. No.135 of B. Narayanapura Village. In view fo the above I hold plaintiff failed to prove that after making Ex.P1 sale deed the land in Sy. No.31 of B. Narayanapura Village was changed as land in Sy. No.135, in Sy. 31 or in Sy. No.135 sites were formed by making either private 23 OS.25427/2015 layout or approved layout and in the said layouts a site measuring 40 X 100 feet described either in the schedule of Ex.P1 sale deed and Ex.P2 deed of rectification or the site as described in the plaint schedule was fromed and it is existing at a particular portion of land in Sy. No. 135 of B. Narayanapura Village. In view of the above I hold plaintiff failed to prove the location and identity of the suit property in the land in Sy. No.135 of B. Narayanapura Village. When the plaintiff failed to prove the location and identity of suit property her contention that her husband L. Sundaram had been in possession of the said property from 10/09/1962 till his death which took place on 07/01/1995 and after his death his widow and children as co-owners are in in possession of the said property cannot be accepted.
22. Ex.P3 is the demand register extract issued by Village Panchayath of B. Narayanapura Village and Ex.P4 (1 to 16) are the tax paid receipts. In the said documents the property number is shown as 95,120 and 132. Plaintiff 24 OS.25427/2015 has not produced any document to connect Ex.P3 and P4 to the property mentioned in Ex.P1 sale deed or P2 deed of rectification. Therefore as rightly submitted by the learned counsel for the defendants Ex.P3 property registered extract and P4 (1 to 16) tax paid receipts are of no assistance to plaintiff to prove that the said demand register extract and the tax paid receipts are in respect of site formed in Sy. No.135 of B. Narayanapura Village measuring 40 X 100 feet.
23. Ex.P5 is the license for construction of house. A perusal of the same would show that it was issued on 28.09.1969 in favour of plaintiff's husband L.Sundaram by the Chairman of B. Narayanapura village Panchayath. In the said license, the property number is not mentioned. Extent is mentioned as 40'X100". Therefore, as rightly submitted by the Learned Counsel for the defendants Ex.P 5 is of no assistance to the plaintiff to prove that the said license is relating to the construction of house in the site existing in Sy.No. 135 of B. Narayanapura village. 25
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24. Ex.P7 is the property register extract issued by the BBMP on 2.8.2014. Ex.P8(1 to 3) are the tax paid receipts under self-assessment scheme to Mahadevapura Town Panchayath and Ex.P9 (1 to 4) are the tax paid receipts to BBMP. In Ex.P 7, the property number is mentioned as 31/135. In Ex.P8 (1 to 3) it is stated that tax was paid in respect of property in Sy.No. 31 of B.Narayanapura village. Therefore Ex.P8 ( 1 to 3) are of no assistance to the plaintiff to prove that tax was paid relating to site existing in Sy.No. 135 of B. Narayanapura village. In Ex.P9(1to4) tax paid receipts issued by BBMP, property number is mentioned as Sy.No. 135. Plaintiff has not produced any document to prove on what basis, the name of her husband was entered in the property register of B. Narayanapura village panchayath and BBMP. There is also no explanation regarding change of property numbers and survey numbers in the said documents. In view of my finding that plaintiff failed to prove the location of suit site in the land in Sy.No. 135 of B. Narayanapura village, the above panchayath and BBMP records and tax paid receipts are of no assistance to 26 OS.25427/2015 plaintiff to prove her or her husband's possession over the site property, as described in the plaint schedule.
25. Ex.P11 is the copy of complaint given by plaintiff to the Asst. Commissioner of Police. A perusal of Ex.P11 would show that it was given to the office of Asst. Commissioner of Police on 16.11.2014. In Ex.P 11, it is stated that plaintiff's husband after purchase of property under Ex.P 1 sale deed dated: 12.09.1962 obtained license, constructed house and given it on rent to the tenants. The 1st defendant Chinnappa demolished the said house and vacated the tenants. In Ex.P 11 complaint, the names of tenants are not stated. In the complaint, the boundaries of property are noted as East, North and South: remaining land and West: Road. The boundaries of the property stated in Ex.P11 complaint would not tally with the boundaries of the suit property. The fact that the boundaries of the property upon which the plaintiff is claiming possession are different from document to document would support the 27 OS.25427/2015 contention of the defendants that the suit property as described in the plaint schedule is not in existence.
26. Ex.P 10(1to 5) are the photos and Ex.P10(6) is the CD of the said photos. During the cross-examination of PW.1, the Learned counsel for the defendants made a suggestion that the said photos are not relating to the suit property. PW.1 has denied the said suggestion. During the course of cross-examination of DW.1, plaintiff has not made attempts to elicit that Ex.P 10(1to 5) are the photos of the suit property. Therefore, Ex.P 10(1to 5) photos and CD are of no assistance to the plaintiff to prove her possession over a particular portion of land in Sy.No. 135 of B. Narayanapura village.
27. PW.1 in the cross-examination, has stated that after construction of house in the suit property, she, her husband and their children were residing therein. She stated that she is having documents to prove that they were in possession of the said house. The plaintiff has not 28 OS.25427/2015 produced any document to prove that she, her husband and children were residing in the house existing in the land in Sy.No. 135 of B. Narayanapura village. In the plaint schedule, it is stated that on the eastern side of suit property, the property of Cheluvaraj situate and on the northern side, the property of Selvaraj situate. Therefore, Cheluvaraj and Selvaraj are the proper persons to depose about plaintiff and her husband's possession over the suit property. For the reasons best known, the plaintiff has not examined them. The plaintiff has stated that she and her husband had given the house existing in the suit property on rent. The rent agreements were not produced. The tenants were also not examined. Therefore, there is no cogent and convincing evidence to prove the identity and location of the suit property and also plaintiff's possession over a particular portion of land in Sy.No. 135 of B. Narayanapura village measuring 4 acres 9 guntas. In view of the above, I hold that plaintiff failed to prove the location, identity and her possession over the suit property as on the date of suit. Accordingly, I answer Issue No.1 in Negative. 29
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28. ISSUE NO.2: Admittedly the land in sy.No. 135 belonged to defendant's father Venkatappa. Therefore, after his death naturally, the said land would be in possession of defendants. While answering Issue No.1, I hold that plaintiff failed to prove the identity, location and her possession over the suit property in Sy.No. 135 of B. Narayanapura village. In view of my said findings her contention that defendants interfered with her possession and enjoyment of the suit property cannot be accepted. In view of the above, and in view of my findings on Issue No.1, Issue No.2 is to be answered in Negative. Accordingly, I answer Issue No.2 in Negative.
29. ISSUE NO.3: The learned counsel for the plaintiff placed reliance on the following judgments:
1. AIR 1980 Allahabad 394 (Smt. Fatmabibi Vs. Smt. Irfana Begum
2. (2009) 5 SCC 713 ( Vimal Chand Ghevarchand Jain and others Vs.Ramakant Kenath Jadoo
3. AIR 1999 Andhra Pradesh 188 P.Buchi Reddy and others Vs.Ananthula Sudhakar
4. AIR 2005 Kar. 419 (Putlabai Vs. Vaijnath and others) 30 OS.25427/2015
5. AIR 2008 Allahabad 27Ved Prakash Rastogi Vs. Nagar Palika, Budau
30. In the case of Vimal Chand Ghevarchand Jain and others Vs.Ramakant Kenath Jadoo acited supra,the Hon'ble Supreme Court of India has stated the value of a registered sale deed and presumption regarding its genuineness. In the said judgment, it is stated that when the sale deed is made by stating that vendor handed over the possession of the property unless contrary his proved, the court by placing reliance on the sale deed has to hold that the possession was handed over to the vendee/purchaser. There is no dispute regarding the observation made in the said judgment. In the instant case, plaintiff by giving different boundaries in the plaint schedule disputing the boundaries stated in Ex.P1 sale deed and Ex.P2 deed of rectification. In view of plaintiff is not relying on Ex.P1, sale deed and Ex.P2 deed of rectification to locate the suit property in Sy.No. 135 of B. Narayanapura Village, the above cited judgment regarding presumptive value and genuineness of 31 OS.25427/2015 the registered sale deed is not applicable to the case on hand.
31. Placing reliance on the short note No.75 reported in KLJ 1975 (1) and the full bench decision of Hon'ble High Court of Karantaka in the case of Syed Basheer Ahmed the counsel for the plaintiff has strenuously has contended that from the material on record would show that before Ex.P1 sale deed was made, all the lands situate in B.Narayanapura village were vested with government in view of the promulgation of Inam Abolition Act. Though the lands were vested with the Government they remained in possession of the land owners. Therefore Late Venkatappa sold the land in his possession in favour of L. Sundaram, the plaintiff's husband by executing Ex.P1 sale deed. After the execution of Ex.P1 sale deed the land in Sy.No.135 of B. Narayanapura village was re-granted to defendants' father Venkatappa. After re-grant Venkatappa executed Ex.P2 deed of rectification stating that under Ex.P1 sale deed he sold the land in Sy. No. 135 of B. Narayanapura Village to 32 OS.25427/2015 the plaintiff's husband L. Sundaram. Therefore as per sec. 43 of T. P. Act the said re-grant enures to the benefit of plaintiff's husband L. Sundaram.
32. The learned counsel for the defendants placing reliance on the judgments of Hon'ble Supreme court of India in the case of V. Chandrashekaran and another reportedin (2012) 12 SCC 133 and the judgment of Hon'ble High Court of Karnataka in the case of Krishnamurthy Vs. Hemanna reported in ILR 1987 kar. LJ 1466 has strenuously contended that at the time of making of Ex.P1 sale deed the defendants father Venkatappa was not having right title interest and possession over the land in sy. No.31 and after grand of the land in Sy. No.135 of B. Narayanapura Village, Venkatappa has not executed any deed of conveyance in favour of plaintiff's husband. In view of promulgation of inams abolition Act in the year 1954, the said lands were vested with Government. On the basis of Ex.P1 sale deed and P2 deed of rectification plaintiff's husband L. Sundaram has not given application for the grant of the 33 OS.25427/2015 land in Sy. No.31 or 135 of B. Narayanapura Village. On the other hand defendants father Venkatappa given application for grant of land in Sy. No.135 and by conducting enquiry it was granted to him under Ex.D3 order of grant dtd.28/10/1964. The said grant would not enure to the benefit of plaintiff's husband L. Sundaram.
33. The above judgments relied upon by the plaintiff and defendants are in respect of title over the property. It is settled principle of law that in a suit for bare injunction the court is not supposed to give finding regarding title. Therefore whether by virtue of Ex.D3 grant defendants father Venkatappa acquired right title and interest over the entire land in Sy. No.135 of B. Narayanapura Village or the said grant would enure to the benefit of plaintiff's husband L. Sundaram as per Sec.43 Transfer of Property Act, is beyond the scope of the instant suit for bare injunction. Therefore the above cited judgments are not applicable to decide the instant suit for bare injunction. 34
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34. The learned counsel for the defendants in the support of his arguments that as per order 7 rule 3 of CPC in a suit for injunction in respect of immovable property plaintiff has to prove the description and location of the property and also the possession by producing cogent and convincing evidence and if the plaintiff failed to discharge his/her burden he/she will not succeed on the weakness of the defendant's case placed reliance on the following Judgments:
1. 2004 (1) KCCR 662 [K. Gopala Reddy (deceased) by LRs Vs. Suryanarayana and others]
2. ILR 2005 KAR 884 [T. L. Nagendra Babu Vs. Manohar Rao Pawar]
3. ILR 2014 KAR 1311 [Smt. Sumitra Bai Vs. P. Siddesh and another]
4. 2018 (3) KCCR 2175 [Shri Bharatesh Balasaheb Kuppanatte and another Vs. Shri Noorbabasab Peeraso Mantoorkar]
5. 2000 (4) ALR 534 [Shreepat Vs. Rajendra Prasad and others] 35 OS.25427/2015
6. (2005) 10 SCC 30 [Yamuna Nagar Improvement Trust Vs. Khariati Lal]
35. In view of my findings on issue No.1 that plaintiff failed to prove the location and identity of the suit property in Sy. No.135 of B. Narayanapura Village and also her possession over a particular portion of land in said survey number as per the ratio laid down in the above cited judgments plaintiff is not entitled for the relief of injunctions.
36. The learned counsel for the defendants placing reliance on the Judgments of the Hon'ble Supreme court of India in the case of Ananthula Sudhakar Vs. P. Buchi Reddy (dead) by LRs and others reported in AIR 2008 SC 2033, and Jarkand State Housing Board Vs. Didar Singh and others reported in (2019) 17 SCC 692 has strenuously contended that in view of defendants denied the plaintiff's title over the suit property the suit for bare injunction is not maintainable.
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37. In the instant case the main contention of the defendants is the location and identity of the suit property. Plaintiff failed to prove the location and identity of the suit property. In a suit for injunction in respect of a particular defined immovable property when both the parties claim title by placing reliance on title deeds and on consideration of the material on record if the court is of the opinion that cloud arise over the plaintiff's title to the property, then as per the Judgments cited supra the suit for bare injunction is not maintainable and the plaintiff has to seek the relief of declaration of title. In the instant case defendants contend that the suit property is not existing. Plaintiff also failed to prove the location and identity of the suit property. When such is the case the question of seeking declaration in respect of non-existed property would not arise. In view of my aforesaid findings and the findings on issue No.1 and 2 plaintiff is not entitled for the relief of injunction. Accordingly, I answer issue No.3 in the Negative.
38. ISSUE NO.4: In view of my reasons & findings on Issue No.1 to 3, I pass the following:
37
OS.25427/2015 ORDER Plaintiff's suit is dismissed.
No order as to costs.
****** (Dictated to the Stenographer, transcript thereof corrected and then pronounced by me in the open court on this the 30th day of July 2021) (MOHAMMED MUJEER ULLA C.G.) LXXIV Addl. City Civil & Sessions Judge Mayohall Unit, City Civil Court Bengaluru. (CCH - 75) ANNEXURES:-
LIST OF WITNESS EXAMINED FOR THE PLAINTIFF:
PW1 BHARATHI SUNDARAM LIST OF EXHIBITS MARKED FOR THE PLAINTIFF:
Ex.P.1 Sale deed dtd.10/09/1962
Ex.P.2 Rectification Deed dtd.30/01/1967
Ex.P.3 Katha demand extract
Ex.P.4 16 Tax paid receipts
Ex.P.5 General License dtd.01/10/1969
Ex.P.6 Affidavit
Ex.P.7 Form B - Property Register
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Ex.P.8 Self assessment 3 Tax paid receipts
Ex.P.9 4 Tax paid receipts -BBMP
Ex.P.10 5 Photos and CD
Ex.P.11 Complaint Copy
Ex.P.12 Acknowledgment
Ex.P.13 Police Notice
LIST OF WITNESS EXAMINED FOR DEFENDANTS:
DW1 V. CHINNAPPA LIST OF DOCUMENTS MARKED FOR DEFENDANTS: Ex.D1 Death Certificate of late Sri. L. Sundaram Ex.D2 Certified copy of notification dtd.13/01/1959 Ex.D3 Certified copy of grant order dtd.28/10/1964 Ex.D4 Certified copy of endorsement dtd.28/10/1964 Ex.D5 Certified copy of official memorandum dtd.11/10/1967 Ex.D6 Certified copy of conversion sanction certificate 39 OS.25427/2015 dtd.17/08/1968 Ex.D7 Certified copy of Sketch Ex.D8 Certified copy of hissa survey tippani Ex.D9 RTC of Sy. No.135/1A Ex.D10 RTC of Sy. No.135/1B Ex.D11 Khatha certificate of Sy. No. 135/1B Ex.D12 Khatha certificate of Sy. No. 135/1B Ex.D13 Tax paid receipt of Sy. No.135/1B Ex.D14 Survey tippani of Sy. No.135 dtd.12/09/1957 Ex.D15 Secondary re-class tippani of Sy. No.135 dtd.20/09/1957 Ex.D16 Survey tippani of Sy. No.31 dtd.13/09/1957 Ex.D17 Secondary re-class tippani of Sy. No.31 dtd.25/09/1957 Ex.D18 Village Map Ex.D19 Certified copy of report of special Tahasildhar dtd.29/04/1961 Ex.D20 3 RTC extracts (MOHAMMED MUJEER ULLA C.G.) LXXIV Addl. City Civil & Sessions Judge Mayohall Unit, City Civil Court Bengaluru. (CCH - 75)