Bangalore District Court
Smt. P.Nagarathnamma vs Sri V. Lakshminarayana on 28 January, 2020
Form
No.9
(Civil)
Title
Sheet
for
Judgme
PRESENT: SMT. PRASHANTHI.G.
B.A (Law) LL.B.,
XXVII Additional City Civil Judge.
Dated this the 28 th day of January 2020
PLAINTIFF: Smt. P.Nagarathnamma
W/o Late Sri T.C.Keshavamurty
D/o Late B.Papaiah,
Aged about 51 years,
Residing at No.179, 4th Cross,
Doddabasthi Main Road,
Bhuvaneshwari Nagara II Stage,
Jnanabharathi Post,
Bangalore-560 056.
[By Sri K.Honnaiah, Advocate]
/v e r s u s/
DEFENDANT: Sri V. Lakshminarayana,
S/o Late Sri G.A.Venkataramanappa,
Aged about 69 years,
Residing at No.100, 13th Cross,
Bhuvaneshwari Nagara,
Magadi Road, Bangalore-10.
[By Sri HSM, Advocate]
Date of institution of the : 3/10/2018
suit
Nature of the suit : For injunction
Date of commencement of : 16/3/2019
recording of the evidence
2 CT0028_O.S._7240_2018_Judgment_.doc
.
Date on which the : 28/1/2020
Judgment was
pronounced.
: Year/s Month/s Day/s
Total duration
1 3 25
(Prashanthi. G)
XXVII ACCJ: B'LORE.
Plaintiff has filed this suit against the defendant for the relief of permanent injunction restraining the defendant from interfering with her peaceful possession and enjoyment of the schedule property; and permanent injunction restraining the defendant from alienating the schedule property in any manner on the strength of forged and fabricated documents; and for cost of the proceedings.
2. In brief, the plaintiff's case is as under:
Plaintiff is the owner of the House property bearing N.179, old No. 1250, Khatha No.3150/179, New Khatha No.3092/179, BBMP Ullal Ward No.130, situated at 4th Cross, Doddabasthi main Road, Bhuvaneshwari nagara II Stage, Kengeri, Bangalore-
3 CT0028_O.S._7240_2018_Judgment_.doc .
560 056 measuring east to west 30 feet and north to south 40 feet, consisting of RCC roofed two bed room house, and 3 shops, bounded on east by site no.178, west by road, north by road and south by site no.180 having acquired the same under Hakku Patra issued by the Block Development Officer, Bangalore South Taluk on 1/1/1981. Based on the Hakku Patra, Pura Sabhe, Kengeri has issued an endorsement dated 9/12/1998 made the khatha of the schedule property in the name of the plaintiff. Thereafter, on 12/3/2003, the Chief Officer, Kengeri Pura Sabhe has assessed the property tax and assigned khatha no. 3092/179 for the schedule premises. On 26/4/2003, the plaintiff has obtained building plan and license from Pura Sabhe, Kengeri to put up construction. As per plan and license issued by the concerned authority, the plaintiff has put up construction and she is residing in the schedule property along with her family in the capacity of owner.
4 CT0028_O.S._7240_2018_Judgment_.doc .
It is further case of the plaintiff that, the plaintiff has obtained loan from the Kaveri Grameena Bank, Chikkabasti Branch, Bangalore by producing all original documents. In this behalf, the Kaveri Grameena Bank has issued a certificate on 25/9/2017 by saying that the plaintiff has deposited the property documents and obtained mortgage loan. Prior to obtaining th loan, the children of plaintiff Sri K. Hemanthkumar and Sri K.yashavanth have executed a release deed in favour of their mother Smt.P.Nagarathnamma, the plaintiff herein vide registered Release deed dated 2/11/2016 by releasing their right in the schedule property in favour of the plaintiff and the same has been registered in the office of the Sub Registrar, Jayanagara (Kengeri), Bangalore on 3/11/2016. The encumbrance certificate has also discloses that the children of the plaintiff have executed release deed and the same has been mortgaged with the Kaveri Grameena Bank, Chikkabasti Branch, Bengaluru.
5 CT0028_O.S._7240_2018_Judgment_.doc .
It is further case of the plaintiff that the schedule property is having 3 shop protions apart from the house where the plaintiff is living. The said shops have been leased to the tenants on rental basis, by the plaintiff in the capacity of owner of the suit schedule property. At present Sri Ganesh is tenant in respect of one shop wherein he is carrying old paper business. Sri Sudharshan is occupying another middle portion of shop and he is having Garage in the name and style of 'Om biks' and third shop which is corner leased to one Sri Panjna Poojari and he is carrying backery business in the name advocate for the defendant style of SLV Condiments. The plaintiff has been uninterrupted lawful possession and enjoyment of the schedule property as its absolute owner. That on 5/9/2018 when the plaintiff came back to her home after her employment, to her utter surprise she fould one piece of paper which containing public notice wherein one Advoate Mr.Raghavendra H.S. call for objection from public since his client Sri V. 6 CT0028_O.S._7240_2018_Judgment_.doc .
Lakshminarayana intends to sell the property No.3150/179 i.e., suit schedule property. On 23/9/2018 the defendant came to the schedule property along with rowdy elements tried to interfere with possession of the plaintiff schedule house and by that time neighbours of the schedule property and tenants of the plaintiff assembled and advised the defendant that the plaintiff is residing in the house from past several years and if you have any right, go and approach the court and don't enter into the schedule property by force. By that time, the defendant left the space by threatening the plaintiff that he will come again with men and materials and take possession. Immediately the plaintiff went to the police station, but the police did not entertain the complaint since the case is pending in this behalf.
It is further case of the plaintiff that she is the owner in possession and enjoyment of the schedule property since from the date of issue of Hakku Patra. The defendant has no manner of right, title and 7 CT0028_O.S._7240_2018_Judgment_.doc .
interest in the schedule property trying to take law into his own hands and in the circumstances, if the defendant is not restrained by permanent injunction from interfering and selling the schedule property on the strength of fraudulent documents, the plaintiff will suffer irreparable loss and hardship.
It is further case of the plaintiff that, behind the back of the plaintiff, the defendant had filed a suit in O.S.No.7113/2016 on the file of Additional City Civil Judge (CCH-40), Bangalore for ejectment, alleging that the plaintiff is his tenant in respect of the schedule property and obtained exparte judgment. Immediately after knowing the exparte judgment, the plaintiff has filed a Misc., Case No.753/2017 for setting aside the exparte judgment and the same is pending. The defendant also filed an Execution Petition in No. 2963/2017 to execute in terms of exparte judgment and decree wherein the plaintiff has filed serious objection and it is also pending. The defendant has given wrong measurement and wrong boundary of the 8 CT0028_O.S._7240_2018_Judgment_.doc .
schedule property in O.S.No.7113/2016. Actual measurement of the schedule property is 30 ' x 40' and not as 15' x 40' as alleged by the defendant in the said suit. Even towards sought of the schedule property is Site No.180 and not as site No.171. By giving wrong measurement and boundary, indicates that the defendant is not at all owner of the property in question. Plaintiff has obtained Borewell connection to the schedule property drilled by Sri Devashakthi Borewells and the Bill dated 28/5/2003 for having paid the borewell charges. The plaintiff has also obtained KEB Mter for the schedule premises under invoice. The plaintiff has obtained electric connection the schedule premises on 25/7/2003.
The cause of action to file the above suit arose on 5/9/2018, 10/9/2018 and on 12/9/2018 and subsequently within the jurisdiction of this court. Hence this suit.
9 CT0028_O.S._7240_2018_Judgment_.doc .
3. After the service of the summons, all the defendant appeared through his counsel and filed the written statement.
4. The main contentions of the written statement filed by defendant are as under:
The suit of the plaintiff is not maintainable either in law or facts of the case. The averments made in para no.3 of the plaint is not correct. The plaintiff is residing at the cause title on the rent basis in house property bearing no. 179, old no. 1250, katha no.
3150/179, BBMP Ullal Ward situated at 4th cross, Doddabasthi Main Road, Kengeri. The wife of the defendant acquired the same under the hakkupatra issued by the Block Developmental Officer on 1.4.1981. After that, she executed a Gift Deed in favour of the defendant on 5/1/2015 which was registered also. After obtaining the hakkupatra, the defendants wife paid the taxes and obtained the house license, construction plan from the Chairman in her name. The Chief Officer of Purasabhe, Kengeri has 10 CT0028_O.S._7240_2018_Judgment_.doc .
issued katha certificate and katha extract in the name of the defendant's wife by name Smt.N.Nagalakshmi. As contended in para no.5, the plaintiff has not obtained any building plan or license to put up constructions, because the plaintiff is the stranger to the property and defendant is the absolute owner of the same. The contention of the plaintiff that she has obtained the loan from the Kaveri Grameena Bank by depositing the property documents for obtaining the mortgage loan and further prior to the obtaining of the loan, the children of the plaintiff have executed a lease deed in her favour are all false and concocted documents. The schedule property is having 3 shops portion, apart from the house where the plaintiff is living is correct. The said property was leased to the plaintiff on the rental basis by this defendant in the capacity of the owner of the property. The intereference by the defendant with regard to the suit schedule property is absolute false because the above plaintiff and his son has entered the property as the 11 CT0028_O.S._7240_2018_Judgment_.doc .
tenants in the month of August 2013 on the basis of the oral agreement for a monthly rent of Rs.8,000/- and the same was enhanced to Rs.8,500/- from the month of August 2014 and the plaintiff was paying the same till 10/2/2015. After that, the plaintiff requested the defendants to vacate the premises with arrears of the rent and believing the words of the plaintiff, the defendant agreed to grant 6 months time to vacate and deliver possession of the same. The defendant further submitted that the above named plaintiffs are not paying the rents correctly and she was defaulter in payment of the rents from 10/2/2015 till 10/8/2016. When these defendant requested the plaintiffs to ask the rent, they behave rudely and used to threaten defendant by goondas. After that incident, the defendant issued legal notice on 12/8/2016 for the recovery of arrears of the rent and to deliver the vacant possession of the suit schedule property to the plaintiff. The same was served to the plaintiff also. Despite of the service of 12 CT0028_O.S._7240_2018_Judgment_.doc .
the termination of the notice, the plaintiff did not vacate and deliver the vacant possession and not complied with the demands of the notice. Without any alternative approach, the defendant filed a suit for ejectment before City Civil Judge, Bengaluru in O.S.7113/2016. Inspite of the said notice, the plaintiff remained absent. In this regard, the court was pleased to pass an judgement and decree against this plaintiff and her son on 17/7/2017. Even the copy of the judgment and decree has been issued to the plaintiff through his counsel. The said notice was also sufficiently served to the plaintiff. Even after that also, the plaintiff did not vacate the premises and accordingly an execution petition was filed in Ex.2963/2017 and the same is pending for consideration. After the service of the notice, the plaintiff and his son filed Miscellaneous petition for the restoration of the original suit and which is also pending for the consideration. The defendant submits that he is in utter surprise that the plaintiff being the 13 CT0028_O.S._7240_2018_Judgment_.doc .
tenants have created the documents and filed a false case before this court seeking injunction against this defendant. The documents relied by the plaintiff cannot be relied because they are not relating to suit schedule property. Earlier, the katha of the property was standing in the name of the vendor of the defendant and at present it is in the name of the defendant. The defendant was paying the taxes to the same which is evident from the receipts produced by him. The averments made in para no. 11 and 12 of the plaint that defendant is a powerful person coming with goonda elements are utterly false. The defendant is a old aged man who has retired from his service and his wife also housewife. Taking advantage of their helplessness, the plaintiff with the ulterior motive filed this suit by creating the false documents. The alleged cause of action is also fabricated and therefore for the above said reasons, prays to dismiss the suit in the ends of the justice.
14 CT0028_O.S._7240_2018_Judgment_.doc .
5. On the basis of the pleadings of the parties, this court has framed the following issues for consideration:
(1) Whether the plaintiff proves she is in possession, enjoyment and absolute owner of the suit schedule property at the time of filing of the suit?
(2) Whether the plaintiff proves that defendants are trying to interfere into the possession of the schedule property and trying to alienate the same?
(3) Whether the defendant proves that he is the owner of the suit schedule property?
(4) Whether the plaintiff is entitled to relief as she claimed?
(5) What decree or order?
6. In order to prove the case, the plaintiff is examined as PW.1 and got marked 34 documents as per Ex.P1 to Ex.P34 and closed her side of evidence. On behalf of the defendant, no one is examined. 15 CT0028_O.S._7240_2018_Judgment_.doc .
7. Heard both sides and perused the entire records of the case.
8. My findings on the above issues are as under:
Issue No. 1) ............In the affirmative; Issue No. 2) ............In the affirmative; Issue No. 3) ............In the negative; Issue No. 4) ............In the affirmative; Issue No. 5) ............As per final order for the following:
9. ISSUE NO.1 : It is the specific case of the plaintiff that, the suit of the plaintiff is one for permanent injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the property and restraining the defendant from alienating the suit schedule property in any manner on the strength of forged and fabricated documents. The contention of the plaintiff is that, she is the owner of the suit schedule property by virtue of the hakkupatra which is already produced 16 CT0028_O.S._7240_2018_Judgment_.doc .
before the Kaveri Grameena Bank for the purpose of obtaining the mortgage loan by depositing the title deeds of the property. From the date of the hakkupatra, she is in the possession of the suit schedule property after changing all the revenue records to her name. Further, she has constructed building in the suit schedule property after obtaining the necessary permission from the authorities. The encumbrance certificate produced by the plaintiff clearly shows that she is in possession of the suit schedule property and as contended, she has obtained the loan from the Kaveri Grameena Bank by depositing the title deeds. Ex.P1 is the letter issued by the Kaveri Grameena Bank stating that, the plaintiff has obtained the loan by depositing the original documents before the same. Ex.P2, Ex.P3 are the encumbrance certificates which shows that suit schedule site stands in the name of the plaintiff and it also denotes the two documents which is the mortgage deed as well as release deed dated 17 CT0028_O.S._7240_2018_Judgment_.doc .
3/11/2016. Ex.P5 to Ex.P8 are the documents produced by the plaintiff to show that she has improved her site by investing the amount for drilling the borewell. Ex.P9 to Ex.P12 are the electricity bills paid by her in connection with the schedule property. Ex.P14 to Ex.P21 are the photographs, Ex.P23 is the sanctioned plan issued by the BBMP for the purpose of construction of the house. Ex.P25 is the register of tax extract. Ex.P26 is the tax paid receipt; Ex.P27 is the release deed. From the above documents, it is clear that plaintiff is in possession of the suit schedule property as on the date of filing of the suit. It is important note here that after issuance of summons from this court, the defendant appeared through his counsel and filed written statement. In the written statement he contended that the suit schedule property is his property and he is the absolute owner of the same by virtue of the hakkupatra granted in favour of his wife and in turn his wife executed a Gift Deed in his favour. So, according to the defendant, he 18 CT0028_O.S._7240_2018_Judgment_.doc .
is the absolute owner of the suit schedule property and he has inducted the plaintiff and his sons as the tenants in the suit schedule property for a monthly rent of Rs.8,000/- which was then enhanced to Rs.8,500/-. The contention of the defendant is that all the documents produced by the plaintiff are concocted and fabricated. It is important to note here that the defendant further contends that since is in arrears of rent and did not vacate the schedule property even after the issuance of termination, he filed the suit for ejectment, wherein the court was pleased to decree the suit and in order to execute the decree, he has filed the execution petition and same was pending before the court. In order to support the contentions of the defendant, he has not produced any documents before the court. Further, he did not cross-examine the version of PW.1 nor stepped into the witness box in order to lead his evidence. An adverse inference can be drawn against the defendant in this regard. From the depositions, from the documents produced by the 19 CT0028_O.S._7240_2018_Judgment_.doc .
plaintiff, it is clear that the plaintiff is in possession and enjoyment of the suit schedule property at the time of filing of the suit, thereby I answer issue no.1 in the affirmative.
10. ISSUE NO.2: According to the plaintiff, she is in the possession of the suit schedule property. To her surprise, on 5/9/2018, when she came back to her home, after her employment found a piece of notice containing the public notice from one Advocate calling for the objections from the public stating that one Sri C.V.Lakshminarayana intending to sell his property (suit schedule property) and immediately after obtaining said notice, the plaintiff approached her advocate and got issued a notice as per Ex.P4 and same was served to the defendant. After the issuance of the notice, on 23/9/2018, the defendant came to the schedule property along with the rowdy elements tried to interfere with the possession of the plaintiff and by that time, neighbourers of the schedule 20 CT0028_O.S._7240_2018_Judgment_.doc .
property and the tenants of the plaintiff managed to get rid of defendant from the suit schedule property. By that time, the defendant left the spot, but threatened that he will come once again with men and materials to take the possession. In this regard, the plaintiff has filed the police complaint and later on, filed this suit for the necessary relief. The same contention was deposed by the plaintiff in her chief examination. Ex.P4 is the notice issued by her to the defendants counsel on 10/9/2018. In the said notice, she has clearly stated with regard to the contentions taken by her in the plaint and also with regard to the construction of the house after obtaining building plan and license and further availment of loan from Kaveri Grameena Bank. From this document, it is clear that the averment stated in para no.10 of the plaint is correct. Further, with regard to the cause of action, the plaintiff also deposed the same in the chief examination which was not cross-examined by the defendant. An adverse inference can be drawn against 21 CT0028_O.S._7240_2018_Judgment_.doc .
the defendant here also, thereby I answer Issue no.2 in the affirmative.
11. ISSUE NO.3: The defendant in his written statement contended that, the suit schedule properties are the properties of his wife and later on, his wife has executed a Gift Deed in his favour on 5/1/2015 and the same was registered and as per the said Gift Deed, the defendant is in possession of the suit schedule property and the defendant inducted the plaintiff and her son as the tenants in the month of August 2013 for a monthly rent of Rs.8,000/- and the plaintiff is in arrears of rent, concocted all plaint documents and filed false suit. Already, the defendant had filed the suit in O.S.No.7113/2016 for ejectment which was decreed and the execution proceedings in the E.P.No.2963/2017 is pending for consideration. The contention of the defendant is that, from the judgement passed by the court and also from the documents produced by him, he is the absolute owner 22 CT0028_O.S._7240_2018_Judgment_.doc .
of the suit schedule property. On perusal of entire records, it is clear that the defendant has failed to produce any documents to show that his wife is the original owner of the suit schedule property and further he is the owner of the same by virtue of the registered Gift Deed. Neither the documents nor evidence are put forwarded by the defendant to show that he is the absolute owner of the suit schedule property. Nor he has contradicted the veracity of PW.1 in the cross-examination. Under the above circumstances, I am of the opinion that the plaintiff failed to prove issue no.3. Accordingly, I answer issue no.3 in the negative.
12. ISSUE NO.4: From the above discussions, it is clear that the plaintiff is the absolute owner and is in possession and enjoyment of the schedule property as on the date of filing of the suit. The documents produced by her clearly shows that she is in the possession and titleholder of the 23 CT0028_O.S._7240_2018_Judgment_.doc .
schedule property as detailed in the schedule. Even Kaveri Grameena Bank has sanctioned loan on the basis of the documents produced by the plaintiff. Though defendant contends that, he is the absolute owner of the suit schedule property, and the plaintiff and his son are his tenants, same is not proved by him. Under the above circumstances, I am of the opinion that if at all the order of injunction is not passed by this court as claimed in the plaint, definitely plaintiff will suffer irreparable injury. Therefore, I answer issue no.4 in the affirmative.
13. ISSUE NO.5: From my above discussions and reasoning, the suit of the plaintiff deserves to be decreed. In the result, I pass the following:
The suit of the plaintiff is hereby decreed.
The defendant is hereby restrained by the order of permanent injunction from interfering with the plaintiff's peaceful possession and enjoyment of the schedule property and also from 24 CT0028_O.S._7240_2018_Judgment_.doc .
alienating the schedule property in any manner on the basis of the documents created by him.
Under the facts and circumstances of the case, there is no order as to costs. Draw decree accordingly.
*** [Dictated to the Judgment Writer directly on computer, Script corrected, signed and then pronounced by me, in the Open Court on this the 28 th day of January 2020.] [PRASHANTHI.G] XXVII Additional City Civil Judge.
BANGALORE.
1. List of witnesses examined on behalf of the Plaintiff/s:
PW.1 P.Nagarathnamma
2. List of witnesses examined on behalf of the Defendant/s:
Nil.
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P1 The certificate issued by Kavery Grameena Bank dated 11/9/2018 Ex.P2 Encumbrance certificate Ex.P3 Encumbrance certificate Ex.P4 Office copy of legal notice dated 10/9/2018 Ex.P5 Bill dated 28/5/2003 for having paid the borewell charges Ex.P6 Bill dated 31/5/2003 25 CT0028_O.S._7240_2018_Judgment_.doc .
Ex.P7 Invoice dated 31/5/2003
Ex.P8 Invoice dated 17/10/2003
Ex.P9 Electricity demand bill
Ex.P10 Receipt for having paid the
electricity charges
Ex.P11 Electricity demand bill
Ex.P12 Receipt for having paid the
electricity charges
Ex.P13 Receipt issued by Premier Plastics
Ex.P14
to Photographs
Ex.P21
Ex.P22 CD
Ex.P23 Sanctioned plan
Ex.P24 Certificate issued by BBMP dated
9/4/2019
Ex.P25 Khata extract
Ex.P26 Tax paid receipt
Ex.P27 Certified copy of release deed
dated 2/1/2014
Ex.P28 Encumbrance certificate
Ex.P29 Customer card of BWSSB
Ex.P30 Acknowledgement issued by
BWSSB dated 29/5/2019
Ex.P31 E-payment receipt for connection
bill
Ex.P32 Work order
Ex.P33 Certified copy of the release deed
dated 2/11/2016
Ex.P34 Encumbrance certificate
4. List of the documents marked for the
defendants:
NIL.
[PRASHANTHI.G]
XXVII Additional City Civil Judge.
BANGALORE.
26 CT0028_O.S._7240_2018_Judgment_.doc .
28/1/2020 P-HK D- HSM For Judgment..
............Judgement pronounced in the Open Court....
(Vide separate detailed judgment) The suit of the plaintiff is hereby decreed. The defendant is hereby restrained by the order of permanent injunction from interfering with the plaintiff's peaceful possession and enjoyment of the schedule property and also from CT0028_O.S._7240_2018_Judgment_.doc .
alienating the schedule property in any manner on the basis of the documents created by him. Under the facts and circumstances of the case, there is no order as to costs.
Draw decree accordingly.
[PRASHANTHI.G] XXVII Additional City Civil Judge.
BANGALORE.
2 CT0028_O.S._7240_2018_Judgment_.doc 9 .
3 CT0028_O.S._7240_2018_Judgment_.doc 0 .