Bangalore District Court
Harikrishna Rao K vs Jayamma Alias Jayarakini on 29 March, 2025
KABC010247542018
IN THE COURT OF THE XXXVII ADDL. CITY CIVIL & SESSIONS
JUDGE (CCH-38), BENGALURU CITY.
:PRESENT:
Sri. Yashawanth Kumar, B.A.(Law)., LL.B.,
LI Addl. City Civil & Sessions Judge,
C/c XXXVII Addl. City Civil & Sessions Judge,
(CCH-38),Bengaluru City.
DATED: This the 29th day of March 2025
O.S. NO. 6496 OF 2018
PLAINTIFF/S 1. HARIKRISHNA RAO K
S/O. LATE VADIRAJA RAO,
AGED ABOUT 55 YEARS,
2: VINODA H RAO
W/O. K. HARIKRISHNA RAO,
AGED ABOUT 53 YEARS,
BOTH ARE R/AT NO.616
2ND BLOCK. 3RD STAGE
JUDGES COLONY
BASAVESHWARANAGAR
BENGALURU-79
(By Sri. T.G.R., Adv.)
Versus
DEFENDANT/S 1. SMT. JAYAMMA ALIAS
JAYARAKINI
AGED ABOUT 60 YEARS,
W/O. LATE AROKYASWAMY,
R/AT NO.62/5H, KEELUKOTAI,
DENKANIKOTE, KRISHNAGIRI
2 O.S. No. 6496/2018
DISTRICT, TAMILNADU
DIED ON 4/11/2020
1.(a). SMT. LILY PUSHPAM,
W/O. P. SUBRAMANI,
AGED ABOUT 50 YEARS,
R/AT. NO. 1/136A, NEAR INDIAN
BANK, NGM STREET,
RAYAKOTTAI,
DENKANIKOTTAI TALUK,
KRISHNAGIRI DIST.
2: SMT. ANURADHA R REDDY
W/O. RABINDRANATH REDDY,
AGED ABOUT 60 YEARS,
R/AT NO.16/1, HAUDIN ROAD
OFF ULSOOR ROAD
BENGALURU-42
3:SMT. SUCHITHRA R
W/O. N. MURALIDHAR,
AGED ABOUT 38 YEARS,
R/AT.NO.18/1, 8TH CROSS
RASHTRAKAVI KUVEMPU ROAD
KANSHIRAM NAGAR
VIDYARANYAPURA POST
BENGALURU 97
4: SRI. SRINIVAS M V
S/O.LATE VENKATASHAMI,
AGED ABOUT 45 YEARS,
R/AT NO.127,
KEMBATTACHALLI
GOTTIGERE POST
BANNERGHATTA ROAD
BENGALURU-83
(LR OF D-1 By Sri. GSS, Adv.)
(D-3 By Sri. SGP/MSR. Adv.)
(D-2 Exp.)
(DEF NO.4 BY SRI. BVN ADV)
3 O.S. No. 6496/2018
Date of Institution of the suit 4.9.2018
Nature of suit Injunction
Date of commencement of
recording of evidence. 24.2.2023
Date on which judgment was
pronounced. 29.03.2025
Total Duration. Years Months Days
06 06 26
XXXVII ACCJ, BANGALORE
4 O.S. No. 6496/2018
JUDGMENT
This is a suit filed by the plaintiffs for the relief of permanent injunction restraining the defendants or any one claiming through them from interfering with the possession and enjoyment of the schedule B property by declaring that the judgment and decree passed in O.S. No. 1076/2008 dtd:
30.9.2010 in respect of schedule A property is not binding on the plaintiffs and also for permanent injunction restraining the defendant No.1 or any one claiming through her from alienating or encumbering the schedule A property to any one.
2. The case of the plaintiffs in brief is as under:-
In a partition decree passed in O.S. No. 72/1983, defendant No.1 Jayamma @ Jayarakini was allotted 1 acre 6 guntas of land in Sy. No. 101 New Sy. No. 201/1, Chinnaswamy was allotted 1 acres 20 guntas of land and Anthoniyamma has allotted 1 acre 20 guntas of land in the said survey number. The property allotted to the share of defendant No.1 is described as schedule A property. After partition decree mutation effected in the name of defendant No.1. Defendant No.1 formed layout along with defendant No.2 in schedule A property in the year 1998. Defendant No.1 has given notarized GPA dtd: 30.10.1999 5 O.S. No. 6496/2018 in favour of defendant No.2 to sell site No. 60 to 64 and 68 to 88 carved out in schedule A property. The defendant No.1 also executed GPA in favour of one Rajendra and Anitha with consent of defendant No.2 to sell site No. 81 and 82 on 29.10.1999.
Some of the sites carved out in schedule A property have been directly sold by defendant No.1 by way of registered sale deeds. Therefore he defendant No.1 has sold entire sites bearing No. 62 to 64 and 68 to 88 formed in schedule A property either by registered GPA and notarized GPA or through registered sale deed in the year 1998 to 2005 to different purchasers. Those purchasers are in possession and enjoyment of their respective sites by constructing residential houses in it. The defendant No.1 has no right, title or interest over the schedule A property, she does not have possession over the schedule A property.
(a) The plaintiffs have purchased site No. 77 by way of registered sale deed dtd: 27.9.2001 from defendant No.1 , which is described as schedule B property. From the date of purchase the plaintiffs are in possession and enjoyment of the schedule B property by getting the Katha in their name and paying taxes to the Corporation. They have also put up compound wall to schedule B property. The plaintiffs are the bonafide purchaser of schedule B property.6 O.S. No. 6496/2018
(b) One Rajappa Reddy has filed O.S. No. 9280/19997 challenging the decree of partition in O.S. No. 72/1993, in which this defendant No.1 was arrayed as defendant No.3. But she has not contesting he suit as she has already sold the entire property by forming sites. The purchasers of sites from defendant No.1 were made as parties in O.S. No. 9280/19997.
Hence said suit is pending before the City Civil Court, Bengaluru. Though the defendant No.1 does not have right, title or interest over the schedule A property, he filed a frivolous suit in O.S. No. 1076/2008 for declaration and consequential relief of permanent injunction against her family members and unconcerned persons having no right in the schedule A property. The purchaser of sites from defendant No.1 were not made as parties in the said suit, including the plaintiffs herein. Therefore the decree passed in O.S. No. 1076/2008 is not binding on the plaintiffs. It has been obtained by the defendant No.1without the knowledge of the plaintiffs and their tenants. The defendants in O.S. No. 1076/2008 are not necessary parties. Hence they are not made as parties to this suit. The plaintiff came to know about the above said suit , only on 12.7.2018 when defendant No.1 along with defendants No.3 and 4 tried to interfere with the possession and enjoyment of the 7 O.S. No. 6496/2018 schedule B property by the plaintiff. The defendant No.1 along with defendants No. 3 and 4 wrote " O.S.No. 1076/2008" on the compound wall of schedule B property and threatened to interfere in it. At this juncture the plaintiffs came to know about the suit filed by the defendant No.1. Immediately the plaintiff obtained the certified copy of the documents in O.S. No. 1076/ 2008 and came to know that the said suit was decreed on 30.9.2010 itself. Defendant No.1 suppressed the fact of filing the suit in O.S. No. 1076/2008 only with an intention to knock of the property. Again on 19.8.2018, defendant No.1 along with defendants No.3 and 4 came near the schedule B property and interfered with the possession of the plaintiffs. The plaintiffs resisted the illegal acts of the defendants with the help of neighbours. Again on verification, it is found that defendant No.1 entered into a sale agreement of schedule A property with defendant No.3 through a registered agreement of sale dtd:
21.10.2014. Further he has also entered into an agreement of sale in respect of schedule A property with defendant No.4 through registered sale agreement dtd: 11.12.2017. The plaintiff cannot resist the illegal acts of defendant without the assistance of he court. Hence this suit.8 O.S. No. 6496/2018
3. The defendant No.1 has filed written statement. He has contended that he is the owner in possession of the 1 acre 6 guntas of land in Sy. No. 101 of Hongasandra village ie., schedule A property, Chinnaswamy and Anthoniyamma is the owners of 1 acre 20 guntas each in the said survey number.
G.C. Rajappa reddy is the owner of 4 acres 6 guntas in the said survey number. As there was dispute between the members of the family of defendant No.1 in respect of Sy. No. 101 and other lands, defendant No.1 and other members have filed a suit in O.S. No. 72/1983 for the relief of partition. Thereafter the parties entered in to a compromise and compromise decree was passed on 16.2.1987. In the compromise decree 1 acres 6 guntas of land in said Sy. No. allotted to defendant No.1. 4 acres 6 guntas of land allotted to one Inasi Muthu. Father of G.C. Rajappa reddy filed a suit in O.S. No. 9280/1997 before the City Civil Court, Bengaluru contending that he has purchased different extent of land in total 4 acres 6 guntas in Sy. No. 101 under different sale deeds and became owners of said 4 acres 6 guntas of land. In the plaint in O.S. No. 9280/1997 father of J.C. Rajappa reddy has stated that compromise decree passed in O.S. No. 72/19083 is null and void as far as it relates to 4 acres 6 guntas of land, which was allotted to Inasi muthu. In 9 O.S. No. 6496/2018 the said suit, defendant No.1 herein is defendant No.3. The father of J.C. Rajappa Reddy had admitted the share of defendant No.1 in the said Sy. No. Hence defendants No.1 has not contested the said suit. The said suit in O.S. No. 9280/1997 is pending for adjudication.
(a) In the year 2008, one Brigget and some other tried to encroach the land measuring 1 acre 6 guntas in Sy. No. 101 i.e., schedule A property. Defendant No.1 filed suit in O.S. No. 1076/2008 against the said Brigget and others before the City Civil Court for declaration and injunction in respect of schedule A property. In the said suit G.C. Rajappa reddy was defendant No.11 in O.S. No. 1076/2008 some defendants appeared through their counsel and some were placed exparte. G.C. Rajappa reddy filed his written statement, but he has not led evidence. The court passed judgment and decree on 30.9.2010 declaring that defendant No.1 herein is the absolute owner of land measuring 1 acres 6 guntas ie., schedule A property. The court also passed an order of permanent injunction against Brigget and others in the said suit. The judgment and decree passed in O.S. No. 1076/2008 has attained finality.
(b) On 20.10.2014 the defendant No.1 along with his family members entered into a sale agreement with defendant No.3 in 10 O.S. No. 6496/2018 respect of 1 acre 6 guntas of land i.e, schedule A property.
Defendant No.1 did not show any interest in purchasing the said property, even after the lapse of 3 years from the date of said sale agreement. The defendant No.1 got issued registered legal notice dtd: 11.12.2017 to defendant No.3 asking her to treat said sale agreement as canceled and to take back the advance amount of Rs. 2 lakhs. It is contended that defendant No.1 has not shown any interest in purchasing the schedule A property. Defendant No.1 being absolute owner of schedule A property has all rights to execute sale agreement. The defendant No.1 being absolute owner of schedule A property had all rights to execute sale agreement in favour of any person in respect of schedule A property. Defendant No.1 had executed notarized GPA on 30.10.1998 in favour of defendant No.2 in respect of Sy. No. 101/1 and 101. Hence the transaction done on the basis of GPA is not binding on defendant No.1. By virtue of judgment dtd:
30.9.2010 passed by city civil court Judge, Bengaluru in O.S. No. 1076/2008 and defendant No.1 has became the owner of schedule A property. The RTC shows that defendant No.1 is the owner in possession of schedule A property. The question of defendant No.1 interfering with the possession of the plaintiffs does not arise.11 O.S. No. 6496/2018
4. The defendant No.3 has filed written statement. She has contended that the suit is not maintainable. The plaintiff is not challenging the order passed in O.S. No. 1076/2008. The plaintiff claims that he has purchased the suit schedule property on 27.9.2001. In the aforesaid suit he has not got impleaded himself as a party. Inview of the decree passed in O.S. No. 1076/2008 the present suit is not maintainable. This court does not have territorial jurisdiction to try and entertain this suit. The suit is barred by limitation and barred by the principles of res-judicata. The suit is not maintainable as the plaintiff not sought for the consequential reliefs. The title of the plaintiff is under cloud and therefore the suit for bare injunction without seeking the relief of declaration is not maintainable.
The plaintiff has not came before the court with clean hands. The defendant No.3 has contended that suit property is the part and parcel of larger property measuring 4 acres 6 guntas in Sy. No. 101 of Hongasandra village. It belong to Smt. Sanjeevamma. She sold the same in favour of Gabriel who was the father in law of defendant No.1 through a registered sale deed dtd: 1.12.1938. Gabriel had executed a registered Will dtd: 7.1.1972 and bequeathed the suit property in favour of his son late Arokya swamy. Thereafter the suit property devolves in favour of his 12 O.S. No. 6496/2018 son Lawrence. In the mean time one of sons of late Gabiel by name Inasi muthu tried to meddle with the suit property. O.S. No. 72/1983 was filed for partition and he was entered in a compromise on 16.2.1987, in the said compromise suit property allotted to share of late Arokya Swamy who is the father-in-law of defendant No.1. When Brigget and others tried to encroach the suit property, defendant No.1 filed suit in O.S. No. 1076/2008 for the relief of declaration and injunction. Said suit also decreed in favour of defendant No.1 by declaring her as owner in possession of the suit property and grating the relief of permanent injunction. Subsequently, the defendant No.1 sold the suit property to defendant No.3 for consideration of Rs. 40 lakhs by receiving Rs. 2 lakhs as advance amount and executing sale agreement dtd: 20.10.2014. There was no time limit for the completion of the sale transaction. In the sale agreement the sale transaction agreed to be completed on defendant No.1 furnishing of revenue records, survey sketch and Phodi and other BBMP documents in respect of the suit property. It is clearly stipulated that defendant No.1 shall not enter into any kind of dealing with any one for sale, mortgage or transfer of the schedule property in any manner. The defendant No.1 issued legal notice dtd; 11.7.2019 when the said sale deed was 13 O.S. No. 6496/2018 executed and the sale agreement executed in favour of defendant No.3 was subsisting. On receipt of the notice, the defendant No.3 issued reply and denied cancellation of the sale deed executed in his favour and called upon the defendant No.1 and others to execute the sale deed in her favour. Thereafter whenever defendant No.3 demanded for execution of the sale deed, the defendant No.1 and others turned a deaf ear. On the other hand defendant No.3 learned that defendant No.1 and others were said to making efforts to dispose of the suit property in favour of 3rd parties, inview of the above information, defendant No.3 filed a suit in O.S. No.434/2018 pending before the Senior Civil Judge, Bengaluru Rural Dist. The defendant No.3 is not aware that defendant No.1 has executed GPA in favour of one Rajendra and Anitha with the consent of defendant No.2 to sell site No. 81 and 82. The defendant No.3 is aware that defendant has sold sites in schedule A property directly. He is not aware that defendant No.1 has sold sites No.60 to 64 and 68 to 88 formed in schedule A property through registered GPA or under notarized GPA and prayed for dismissal of the suit.
14 O.S. No. 6496/2018
5. On the basis of the above pleadings of the parties, the following issues and additional Issues have been framed by me :-
1. Whether the plaintiffs prove that the defendant No.1 has got no right, title and interest over A Schedule property ?
2. Whether the plaintiffs prove that the Judgment and decree passed in O.S.No.1076/2008 dated 30.09.2010 in respect of A schedule property is not binding on them?
3. Whether the plaintiffs prove that they are in possession and enjoyment of B schedule property?
4. Whether the plaintiffs prove that defendants are interfering with their possession and enjoyment of B schedule property?
5. Whether the plaintiffs prove that the defendant No.1 is trying to alienate and encumber A schedule property either in favour of defendant No.3 or defendant No.4 or any other persons?
6. Whether the plaintiffs are entitle of the relief claimed in the suit?
7. What order or decree?
Addl. Issues framed on 14.2.2024:-
1. Whether this court has got no territorial jurisdiction to try this suit?
2. Whether the suit is barred by Limitation?
3. Whether the suit is hit by by the principles of res-judicata?
4. Whether the suit valuation is proper and Court fee paid is sufficient?15 O.S. No. 6496/2018
6. To prove their case, the plaintiff No.1 has been examined as PW-1 and got marked 53 documents as Ex. P-1 to P-53. The defendant No.1 has been examined as DW-1 and the SPA holder of defendant No.3 has been examined as DW-2 and got marked 7 documents as Ex. D-1 to D-7.
7. Heard the arguments of the learned counsel for plaintiffs, and the arguments of learned counsel for defendants. The learned counsel for Defendant No.3 has filed written arguments and also filed Memo with list of citations:-
1) Regular second appeal No.1108/2013 (P. Bhavadasan J.
Puthiyapurayil Sireshan Vs.Mohanan.)
2) Civil Suit No. WA-22NCVC-557-08/2019 ( Ra Ta Land SDN BHD Vs. Iskandar Hartha Holdings SDN BHD (ENCL 7)
3)(1973) 2 SCC 705 (Rajendra Singh Vs. Santa Singh)
4) Civil Appeal No.5919/2023( Shingara Singh Vs. Daljit Singh and another)
5)AIR 2008 SC 2033 (Anathulla Sudhakar Vs. P. Buchi reddy)
6) (2010)2 SCC 114 (Dalip singh Vs. State of U.P.
7) (1994) 1 SCC 1(S.P. Chengalvaraya Naidu Vs. Jagannath)
8) Civil Appeal No. 7527-7528/2012 (Ghanshyam Vs. Yogendra Rathi)
9) (1997) 3 SCC 1( K.S. Vidyanadam Vs. Vairavan) 16 O.S. No. 6496/2018
10) (2012)1 SCC 656 (Suraj Lamp & Industries Pvt. Ltd., Vs. State of Haryana. )
11) (1989) 4 SCC 131 ( Krishnaram Mahale Vs. Shobha Venkat Rao)
12) (2012) 5 SCC 370 ( Maria Margarida Sequeria Fernandes Vs. Erasmo Jack de Sequeria Fernandes)
13) Crl. Appeal No.1229/1973 (C. Chokkalingam Vs. V. Manikanasagam)
14) (2004) 1 SCC 769 ( Rame Gowda Vs. M. Varadappa Naidu)
8. My answer to the above issues are as under:
Issues No.1 : In the Affirmative, Issue No. 2 : In the Affirmative, Issue No. 3 : In the Affirmative, Issue No. 4 : In the Affirmative, Issue No. 5 : In the Affirmative, Issue No. 6 : In the Affirmative, Addl.Issue No. 1 : In the Affirmative, Addl Issue No. 2 : In the Affirmative, Addl Issue No. 3 : In the Negative, Addl Issue No. 4 : In the Affirmative, Issue No. 7 : As per final order, for the following :-
REASONS
9. Issue No. 2 :- Suit schedule A property is Sy. No. 111 measuring 1 acre 6 guntas situated at Hongasandra village, 17 O.S. No. 6496/2018 Begur-2 Hobli, Bengaluru North Taluk and schedule B property is the site bearing No.77 measuring East to west 40 feet and North to south 30 feet formed in schedule A property.
10. The plaintiffs have contended that schedule A property was allotted to defendant No.1. Smt. Jayamma @ Jayarakini in a compromise decree passed in partition suit bearing No. O.S. 72/1983. Defendants No.1 and 2 formed layout in it. Defendant No.1 executed GPA in favour of defendant No.2 to sell the sites No. 60 to 64 and 68 to 88 formed in schedule A property. Defendant No.1 executed another GPA in favour of Gajendra and Anitha in respect of site No. 81 and 82. Defendant No.1 sold site No. 61 and 84 directly. The plaintiff has purchased site No. 77 i.e., schedule B property from defendant No.1.
11. In the written statement, defendant No.1 has contended that in O.S. No. 72/1983 she was allotted 1 acre 6 guntas of land ie., schedule A property and Inasi muthu was allotted 4 acres 6 guntas of land. Father of G.C. Rajappa reddy filed a suit in O.S. No. 9280/1997 before the City Civil Court contending that he has purchased different extens of land in total 4 acres 6 guntas in Sy. No. 111 and became the owner of 4 acres 6 guntas in said survey number. In the said suit, father of G.C. Rajappa reddy contended that a compromise decree 18 O.S. No. 6496/2018 passed in O.S. No. 72/19893 is null and void , so far it relats to 4 acres 6 guntas of land which was allotted to Inasi muthu. In the said suit defendant No.1 herein is defendant No.3 and father of G.C. Rjappa reddy has admitted the share of defendant No.1 in the said survey number and hence defendant No.1 has not contested the said suit. Said suit is pending for adjudication. Further it is contended that defendant No.1 had filed a suit in O.S. No. 1076/2008 for declaration and injunction in respect of schedule A property. In the said suit, G.C. Rajappa reddy was defendant No.1. The City Civil Court passed a judgment and decree in O.S. No.1078/2008 on 30.9.2010 declaring that defendant No.1 is the absolute owner of 1 acre 6 guntas of land i.e., schedule A property herein and also granted permanent injunction as prayed in the said suit. It is also pleaded that defendant No.1 and her family members have executed sale agreement dtd: 20.10.2014 in respect of schedule A property in favour of defendant No.3. Defendant No. 1 got canceled the said sale agreement by issuing legal notice dtd: 11.12.2017. The defendant No.1 executed one more register sale agreement in respect of schedule property in favour of defendant No.4 in respect of schedule A property. Prior to that defendant No.1 executed a notarized GPA dtd: 30.10.1999 in favour of 19 O.S. No. 6496/2018 defendant No.1. in respect of Sy. No. 101/1 and it was got canceled in the year 1999 itself.
12. Defendant No.3 has pleaded that Sy. No. 101 measuring 4 acres 6 guntas belonging to Smt. Sanjeevamma. She sold the same to Gabriel, who is the father-in-law of defendant No.1. Gabriel executed a registered Will dtd; 7.1.1974 and in the said Will 1 acre 6 guntas of land given to Arokya swamy, who is the husband of defendant No.1. Thereafter O.S. No. 72/1983 was filed and compromise decree passed on 16.2.1987. In the said compromise decree schedule A property allotted to the share of Arokya swamy the husband of defendant No.1 and now it is being represented by defendant No.1.
13. From the pleadings of parties, it is clear that schedule A property belonging to defendant No.1. She filed a suit for declaration and injunction in O.S. No. 1076/2008 and it was decreed in her favour.
14. It can also be made out that defendant No.1 executed registered sale agreement in favour of defendant No.3 in respect of schedule A property, but no sale deed has been executed on the basis of said sale agreement. Defendant No.3 has filed a suit in O.S. No. 434/2018 before the Senior Civil Judge, Bengaluru Rural Dist and it is pending.
20 O.S. No. 6496/2018
15. Ex. P-4 is the certified copy of the compromise decree passed in O.S. No. 72/1983, it shows that in Sy. No. 111, 4 acres 6 guntas allotted to Inasi muthu, 1 acre 20 guntas each allotted to Chinnaswamy and Anthoniyamma and 1 acre 6 guntas allotted to defendant No.1 herein Smt. Jayamma @ Jayarakini. Ex. P-16 is the certified copy of the registered sale deed dtd: 27.9.2001, it shows that defendant No.1 and her son Gunda Lawrence @ A. Lawrence represented by their GPA holder i.e., Smt. Anuradha R Reddy executed sale deed in respect of schedule B property i.e., site No. 77 in favour of plaintiffs No.1 and 2 for valuable consideration of Rs. 1,35,000/-. Ex. P-17 is the form No.3 issued by Bommanahalli city Municipality on the basis of self declaration made in respect of payment of tax. It shows that schedule B property stands in the name of plaintiffs No.1 and 2. It is dated: 28.4.10006. Ex. P-18 is Form B register extract of BBMP, Bengaluru, it also shows that schedule B property stands in the name of plaintiffs No.1 and 2. This documents is dtd: 27.9.2010. Ex. P-19 to 40 are the documents in respect of payment of taxes by plaintiff in respect of schedule B property.
16. The above said documents shows that the defendant No.2 acting as GPA holder of defendants No. 1 and her son 21 O.S. No. 6496/2018 executed sale deed in favour of plaintiff No.1 and 2 in respect of schedule B property and thereafter the name of plaintiffs entered in respect of the said property in the register maintained by BBMP in respect of properties without Katha/PID number, and the plaintiffs have paid taxes in respect of schedule B property to Bommanahalli city municipality and thereafter to BBMP, Bengaluru.
17. The plaintiffs having produced GPA executed by defendant No.1 and her son Lawrence in favour of defendant No.2. Smt. Anuradha R. Reddy. Though defendant No.1 has stated in her written statement that she has got canceled the GPA executed in favour of defendant No.2, the documents under which GPA has been canceled not produced before the court. The above statement of defendant No.1 in the written statement shows that she admits the execution of GPA in favour of defendant No.2. Defendant No.1 died during the pendency of this suit. Her daughter i.e., LR Smt. Lily Pushpam brought on record in this suit. Though she has filed her chief examination in accordance with contentions taken by defendant No.1 in her written statement, she has not tendered herself for cross- examination. Therefore the evidence of DW-1 without putting to the test of cross-examination cannot be considered for any 22 O.S. No. 6496/2018 purpose. Therefore, there is no evidence from defendant No.1 or her LR to prove the contentions of defendant No.1 taken in her written statement. Moreover DW-1 Lilly pushpam herself has executed a confirmation deed as per EX. P-52 along with her children in favour of defendant No.1 and 2 on 7.5.2022 confirming the sale of schedule B property in favour of the plaintiffs. It appears that for the said reason, DW-1 has not tendered herself for cross-examination. DW-1 and her children have ratified the sale deed executed by defendant No.2 as GPA holder of defendant No.1 and her son Lawrence. It shows that LR of defendant No.1 ratified both sale deed as well as the GPA executed by defendant No.1 and her son in favour of defendant No.2.
18. Defendant No.2 is exparte. The Spl. P.A. holder of defendant No.3 has been examined as DW-2. There is nothing in the evidence of DW-2 to dispute the execution of the sale deed by the the GPA holder of defendant No.2 and her son in favour of the plaintiffs in respect of schedule B property. The defendant No.4 neither filed the written statement nor led his evidence.
19. Considering the evidence available on record, it can be clearly made out that defendant No. 1 and her son executed 23 O.S. No. 6496/2018 GPA in favour of defendant No.2. Defendant No.2 as the GPA holder of defendant No.1 and her son has executed registered sale deed in respect of schedule B property in favour of the plaintiffs. Subsequently, during the pendency of this suit, after the death of defendant No.1, the LR of defendant No.1 i.e., DW-1 has executed confirmation deed in respect of schedule B property confirming the sale of the same to the plaintiffs.
20. The decree passed in O.S. No. 1076/2008 is in respect of entire schedule A property. Admittedly schedule B property is a site formed in schedule A property. Subsequent to the execution of sale deed by the GPA holder of defendant No.1 and her son in favour of plaintiffs, a decree in O.S. No. 1076/2008 has been passed by declaring that defendant No.1 is the owner of entire schedule A property. However there is nothing to disbelieve the execution of sale deed by defendant No.2 as GPA holder of defendant No.1 and her son in respect of schedule B property in favour of the plaintiffs. DW-1 herself has executed confirmation deed in favour of plaintiff in respect of said sale deed. DW-1 though filed her chief examination in terms of the written statement filed by deceased defendant No.1, she has not tendered herself for cross-examination. Therefore, there is no evidence on behalf of defendant No.1 or on behalf of LR of 24 O.S. No. 6496/2018 defendant No.1. Therefore, there is no evidence to prove the contentions taken by deceased defendant No.1 in her evidence. Under such circumstances, when already a sale deed executed in favour of plaintiffs in respect of schedule B property, the subsequent decree passed in O.S. No. 1076/2008 in favour of defendant No.1 will not bind on the plaintiffs. Accordingly, I answer Issues No. 2 in the Affirmative.
21. Issue No. 1 :- This issue framed as 'Whether the plaintiffs proves that defendant No.1 got no right, title and interest over the a schedule Property?' I am of the opinion that this Issue is to be recasted as under:-
'Whether the plaintiffs prove that they have got right, title and interest over the schedule B property?'
22. The plaintiffs have proved that defendant No.1 and her son has executed GPA in favour of defendant No.2 and defendant No.2 has the GPA holder of defendant No.1 and her son executed sale deed in favour of the plaintiffs. There is no evidence to disbelieve the same. Further another LR of the defendant No.1 has executed confirmation deed confirming the sale deed as per Ex. P-52 in respect of schedule B property, in which she confirms the execution of sale deed in favour of the plaintiffs. Under such circumstances, it can be clearly made out 25 O.S. No. 6496/2018 that plaintiffs have got right, title and interest over the schedule A property. Accordingly, I answer Issue No. 1 in the Affirmative.
23. Issue No. 3 :- The plaintiff No.1 has been examined as PW-1. He has stated that he and his wife have purchased the suit schedule B property through a registered sale deed dtd:
27.9.2001 and since from the date of purchase they are in possession and enjoyment of the said property. In his cross-
examination, PW-1 has stated that he has put up a shed and compound wall to the schedule B property. But he has not let out the shed on rent. There is nothing in the cross- examination of PW-1 to dispute the possession of the plaintiff over schedule B property. DW-1 has stated that plaintiffs have no right over the schedule properties and her mother was in possession of schedule A property, which includes schedule B property. However DW-1 was not tendered for cross- examination. Therefore her evidence cannot be considered for any purpose.
24. DW-2 is the GPA holder of defendant No.3. There is nothing in the evidence of DW-2 to dispute the possession of plaintiffs over the schedule B property. As already stated the documents proved that the plaintiffs have purchased the schedule property under the sale deed dtd:. 27.9.2001. It has 26 O.S. No. 6496/2018 been stated that possession has been delivered to the plaintiffs. Under such circumstances, the plaintiffs have proved that they are in possession of the schedule B property. Accordingly, I answer Issue No. 3 in the Affirmative.
25. Issue No. 4 :- PW-1 has stated that defendants are interfering with their possession of the suit property. There is nothing in the cross-examination of Pw-1 to discredit such evidence of PW-1. Even in the evidence of DW-2 there is nothing to disbelieve the contention of plaintiffs that defendants are interfering with their possession over the suit property. Under such circumstances, it is to be accepted that plaintiffs have proved that defendants interfered with their possession of the schedule B property. Accordingly, I answer Issue No. 4 in the Affirmative.
26. Issue No. 5 :- The plaintiffs have stated that defendant No.1 herself has stated that she has executed a sale agreement in favour of defendant No.3 and thereafter canceled it. Further, she has stated that she has executed a sale agreement in favour of defendant No.4. DW-1 who is the LR of defendant No.1 has not tendered herself for cross-examination. DW-2 the power of attorney holder of defendant No.3, also stated that defendant No.1 has executed sale agreement in favour of defendant No.3. 27 O.S. No. 6496/2018 Defendant No.4 has not appeared before the court to dispute the contention that defendant No.1 executed sale agreement in his favour. When there is evidence to show that defendant No.1 has executed sale agreements in favour of defendants No.3 and 4, the contention of the plaintiffs that defendant No.1 is trying to alienate or encumber the suit schedule properties cannot be disbelieved. Accordingly, I answer Issue No. 5 in the Affirmative.
27. Addl. Issue No. 1 :- The suit schedule B property is situated in Sy. No. 101/1 of Hongasandra village, Begur hobli, Bengaluru South taluk. Hence, it comes within the legal jurisdiction of this court. Therefore, this court has got territorial jurisdiction to try this suit. Accordingly, I answer Addl. Issue No. 1 in the Affirmative.
28. Addl. Issue No. 2 :- The plaintiffs has ought for the relief of declaration that the decree in O.S. No. 1076/2008 is not binding on them. The plaintiffs are not parties to the said suit. The plaintiffs have pleaded that they came to know about the suit in O.S. No. 1076/2008 when defendant No.1 along with defendants No.3 and 4 tried to interfere with their possession of schedule B property. There is no cross-examination regarding the same. Therefore, there is nothing to disbelieve that plaintiffs 28 O.S. No. 6496/2018 came to know about the decree in O.S. NO. 1076/2008 after 12.7.2018. The present suit has been filed on 4.9.2018. Therefore the suit has been filed within 3 years from the date of knowledge. Hence the suit is in time. Accordingly, I answer Addl. Issue No. 2 in the Affirmative.
29. Addl. Issue No. 3 :- It is contended that the suit is hit by the principles of Res-judicata. In the previous suit i.e., O.S.No. 1076/2008 the plaintiffs are not parties. The plaintiffs have purchased the property before filing of the said suit i.e., on 27.9.2001. Under such circumstances, it cannot be said that the suit is hit by principles of Res-judicata. Accordingly, I answer Addl. Issue No. 3 in the Negative.
30. Addl. Issue No. 4 :- The plaintiffs have filed valuation slip and paid the court fee of Rs. 75/-. The plaintiffs have sought for the relief of permanent injunction and for declaration that the decree passed in O.S. No. 1076/2008 is not binding on them. To the said suit, the plaintiffs are not parties. Under such circumstances, the Court fee paid by plaintiff is sufficient. Accordingly, I answer Addl. Issue No. 4 in the Affirmative.
31. Issue No. 6 :- The defendants have argued that the title of the plaintiff is in dispute and therefore the suit filed for the relief of bare injunction is not maintainable without seeking 29 O.S. No. 6496/2018 the relief of declaration of title. In support of their contention, they have relied on the decision of the Hon'ble Supreme Court reported in AIR 2008 SCC 2033 (Anathulla Sudhakar Vs. P. Buchi reddy), wherein it is held that when a cloud is raised over the plaintiffs title, in a suit for declaration of consequential relief is remedy.
32. It is true that in this suit the defendants No.1 is disputing the title of plaintiffs. However the documents clearly shows that plaintiffs have got title over the schedule B property. Further defendant No.1 though filed written statement, thereafter they have not contested the suit. Under such circumstances, merely on the ground that defence is taken disputing the title of the plaintiffs, it is not necessary for the plaintiffs to seek the relief of declaration of title. Therefore under such circumstances, it cannot be said that the suit is not maintainable.
33. The defendant No.3 has also relied on the following decisions:-
1) Regular second appeal No.1108/2013 (P. Bhavadasan J.
Puthiyapurayil Sireshan Vs.Mohanan.)
2) Civil Suit No. WA-22NCVC-557-08/2019 ( Ra Ta Land SDN BHD Vs. Iskandar Hartha Holdings SDN BHD (ENCL 7) 30 O.S. No. 6496/2018
3)(1973) 2 SCC 705 (Rajendra Singh Vs. Santa Singh)
4) Civil Appeal No.5919/2023( Shingara Singh Vs. Daljit Singh and another)
5)AIR 2008 SC 2033 (Anathulla Sudhakar Vs. P. Buchi reddy)
6) (2010)2 SCC 114 (Dalip singh Vs. State of U.P.
7) (1994) 1 SCC 1(S.P. Chengalvaraya Naidu Vs. Jagannath)
8) Civil Appeal No. 7527-7528/2012 (Ghanshyam Vs. Yogendra Rathi)
9) (1997) 3 SCC 1( K.S. Vidyanadam Vs. Vairavan)
10) (2012)1 SCC 656 (Suraj Lamp & Industries Pvt. Ltd., Vs. State of Haryana. )
11) (1989) 4 SCC 131 ( Krishnaram Mahale Vs. Shobha Venkat Rao)
12) (2012) 5 SCC 370 ( Maria Margarida Sequeria Fernandes Vs. Erasmo Jack de Sequeria Fernandes)
13) Crl. Appeal No.1229/1973 (C. Chokkalingam Vs. V. Manikanasagam)
14) (2004) 1 SCC 769 ( Rame Gowda Vs. M. Varadappa Naidu) But these decisions are not aptly applicable to the facts and circumstances of this case.
31 O.S. No. 6496/2018Inview of the above discussions, the plaintiffs is entitled for the reliefs claimed in the suit. Accordingly, I answer Issue No. 6 in the Affirmative.
34. Issue No. 7: In view of above discussions, I proceed to pass the following:-
ORDER The suit of the plaintiffs is hereby decreed with costs.
It is hereby declared that the judgment and decree passed in O.S. No. 1076/2008 dtd:
30.9.2010 is not binding on the right of the plaintiffs over the schedule 'B' property.
The defendants or any one claiming through them are hereby restrained by way of permanent injunction from interfering with the possession of the plaintiffs over schedule 'B' property.
The defendants or any one claiming through them are hereby restrained by way of permanent injunction from alienating or encumbering the schedule 'B' property.
Draw decree accordingly.
(Dictated to the Stenographer grade-I, transcribed and computerized by her, corrected and then pronounced by me in open court, this the 29 th day of March 2025) (YASHAWANTH KUMAR ) C/C. XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38), BENGALURU 32 O.S. No. 6496/2018 'A' SCHEDULE PROPERTY All that piece and parcel of the land bearing Sy. No. 101, measuring 1-6-0 situated at Hongasandra village, Begur-2 Hobli, Bangalore North Taluk:
East by : Land belonging to Pilla Reddy, West by: Land belonging to Thimma Reddy, North by: Land belonging to G.C. Rajappa Reddy, South by: Land belonging to Chinnaswamy Grabial.
''B' SCHEDULE PROPERTY All that piece and parcel of immovable property bearing no. 77, Bommanahalli Nagarashabha, Katha No. 101/1, situated at Hongasandra village, Begur Hobli, Bangalore South Taluk, Bangalore, measuring total 1350 Sq. ft, East to west: 45 feet, North to South: 30 feet and bounded on the East by : Road, West by: Site No. 82, North by: Site No. 78, South by: Site No. 76, ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
PW1 - K. Harikrishna Rao Documents marked on behalf of the plaintiff/s:
Ex.P-1 Certified copy of the plaint in
O.S.No.72/1983
Ex.P-2 Certified copy of the compromise
33 O.S. No. 6496/2018
petition in O.S.No.72/1983
Ex.P-3 Certified copy of the order sheet in
O.S.No.72/1983
Ex.P-4 Certified copy of the decree in
O.S.No.72/1983
Ex.P-5 MR Extract
Ex.P-6 to 10 RTC extracts of Sy.No.100/1
Ex.P-11 RTC extract of Sy.No.101/1
Ex.P-12 Certified copy of the GPA dated
29.10.1999
Ex.P-13 Certified copy of the sale deed
dated 16.11.2005
Ex.P-14 Certified copy of the sale deed
dated 25.10.1999
Ex.P.-15 Certified copy of the sale deed
dated 16.04.2003
Ex.P.-16 Certified copy of the sale deed
dated 27.09.2001
Ex.P.-17 CMC Katha in Form No.3
Ex.P.-18 Property register extract
Ex.P.-19 to Tax paid receipts
24
Ex.P.-25 to Property tax receipts
30
Ex.P.-31 Tax paid receipt
Ex.P-32 Tax paid acknowledgment
Ex.P.-33 Tax paid receipt
Ex.P.-34 Tax paid acknowledgment
Ex.P.-35 Tax paid challan
Ex.P.-36 to Property tax receipts
38
Ex.P.-39 Encumbrance certificates
and 40
Ex.P.-41 Certified copy of the plaint in
34 O.S. No. 6496/2018
O.S.9280/1997
Ex.P.-42 Certified copy of the Judgment in
O.S.1076/2008
Ex.P.-43 Certified copy of the decree in
O.S.1076/2008
Ex.P.-44 Certified copy of the register sale
agreement dated 20.10.2014
Ex.P.-45 Certified copy of the registered sale
agreement dated 11.12.2017
Ex.P.-46 Photograph of the schedule
property (Marked subject to
production of U/s 65(b) certificate )
EX. P-47 & Encumbrance certificates
P48
Ex. P49 & Two photographs
P50
Ex. P-51 C.D. In respect of Ex. P49 & P.50.
Ex.P-52 Original registered confirmation
deed dated 07.05.2022
Ex.P-53 Property tax receipt (Marked
subject to objections that Sec.65(B)
certificate not produced
List of witnesses examined on behalf of the Defendant/s:
DW-1 Lily Pushpam DW-2 N. Muralidhara Documents marked on behalf of the Defendant/s:
Ex.D-1 Office copy of legal notice dated 11.12.2017
Ex.D-2 Reply notice dated 13.12.2017
Ex.D-3 Certified copy of the Judgment in
O.S.1076/2008
Ex.D-4 Certified copy of the decree in O.S.1076/2008
Ex.D-5 Summons received from the court in
35 O.S. No. 6496/2018
O.S.434/2018 by my mother Jayamma
Ex.D-5(a) IA copy received along with Ex.D.5 EX. D-6 SPA executed by defendant No.3 Ex. D-7 Original registered sale agreement dtd:
20.10.2014.
C/C. XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38), BENGALURU.
36 O.S. No. 6496/2018Judgment pronounced in open court vide separate Judgment The suit of the plaintiffs is hereby decreed with costs.
It is hereby declared that the judgment and decree passed in O.S. No. 1076/2008 dtd:
30.9.2010 is not binding on the right of the plaintiffs over the schedule 'B' property.
The defendants or any one claiming through them are hereby restrained by way of permanent injunction from interfering with the possession of the plaintiffs over schedule 'B' property. The defendants or any one claiming through them are hereby restrained by way of permanent injunction from alienating or encumbering the schedule 'B' property.
Draw decree accordingly.
C/c. XXXVII ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE.
37 O.S. No. 6496/2018