Bangalore District Court
Smt. B. Vijaya W/O Sri M. Devaraj vs Purushotham S/O. H.N.Nangegowda on 15 October, 2020
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH-22)
Present: Smt. Suvarna K. Mirji, B.Com., LL.B.(Spl).,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
O.S.No.25234/2007
Dated this 15th day of October 2020
Plaintiff/s:- Smt. B. Vijaya W/o Sri M. Devaraj,
aged about 39 years, R/at No.78,
24th A cross, Shivalingaiya compound,
Karresandra, B.S.K. 2nd stage,
Bangalore 560 070
(Rep by Sri. K.N.Dayalu Associates, Advocate)
V/S
Defendant/s:- Purushotham S/o. H.N.Nangegowda,
aged about .... Years, major,
R/at No.1189/A, East End Main Road,
4th T block, Jayanagar, Bangalore 560041.
(Rep by Sri A.Shivarama & Associates, Advocates)
Date of Institution of the suit 25/01/2007
Nature of the (Suit or pro-note, suit for declaration and
possession, suit for injunction, etc.)
Injunction
Date of the commencement of recording of the Evidence. 31/10/2009
Date on which the Judgment was pronounced. 15/10/2020
Year/s Month/s Day/s
Total duration 12 08 20
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru
.
2
Judgment O.S.No.25234/2007
:J U D G M E N T:
The plaintiff filed suit against the defendant for permanent injunction.
2. The brief facts of plaint averments is as under:
The plaintiffs submit that one B.K.Rajanna has purchased the below mentioned suit schedule property from M. Lakshmana for valuable sale consideration of Rs.80,000/-. His GPA holder namely Venu has executed registered sale deed dated 17/04/1993 registered in the office of Sub Registrar, Kengeri document No.617, book No.I, volume No.721, pages 103 to 108 in favour of B.K. Rajanna. The said B.K. Rajanna has executed a registered sale deed dated 12/2/2001 in favour of the plaintiff for valuable sale consideration of Rs.1,58,000/- and he has executed registered sale deed in favour of the plaintiff and the same was registered on the file of Sub Registrar 3 Judgment O.S.No.25234/2007 Kengeri, Bangalore South Taluk vide book No.7 stored in CD 53, vide register No.10595/2001.
SUIT SCHEDULE PROPERTY All that piece and parcel of the house property bearing No.54, assessment Khatha No.214/117, situated at Kothanur village, Uttarahalli hobli, Bangalore South Taluk, measuring East to West 60 feet and North to South 40 feet consist of Mangalore tiles roof house / Asbestos roof house bounded on the East by Road; West by property bearing No.49; North by Property bearing No.50 South by property bearing No.55.
The plaintiff further submits that mutation was effected and Khatha transferred in the name of the plaintiff in respect of the suit schedule property and entered the name of the plaintiff in all relevant revenue records including demand register. The suit schedule property is free from all encumbrances. The plaintiff has also paid taxes to the concerned CMC, Bommanahalli in the year 2004-05, 4 Judgment O.S.No.25234/2007 2005-06 and 2006-07. The plaintiff is in lawful possession and enjoyment of the suit schedule property having valid right, title and interest over the suit schedule property. There is valid transfer of title from B.K. Rajanna to the plaintiff by way of executing valid registered sale deed after receipt of full sale consideration amount from the plaintiff. The plaintiff put up compound wall and he is in possession and enjoyment of the suit schedule property. On 15/01/2007 and also 20/01/2007 the defendant threatened to dispossess the plaintiff form the suit schedule property and also partly demolished the compound wall. The plaintiff approached the Police but they directed plaintiff to approach civil court since the dispute is civil in nature. The plaintiff apprehends that the defendant may dispossess the plaintiff from the suit schedule property without due process of law. The cause of action for the suit arose on 15/01/2007 and on subsequent dates when defendant made attempt to dispossess the plaintiff from the suit schedule property. The plaintiff prays 5 Judgment O.S.No.25234/2007 to decree the suit of permanent injunction restraining the defendant, his henchmen, servants, agents, from interfering with her possession and enjoyment over the suit schedule property and also dispossessing her from the suit schedule property and also not to demolish the compound wall in respect of the suit schedule property. The plaintiff prays to award costs of the suit.
3. The defendant has filed written statement with counter claim submitting that the averments made by the plaintiff in plaint para 3 are false and concocted. The documents produced by the by the plaintiff does not pertain to the suit schedule property and the plaintiff has manipulated documents for the purpose of the suit. The defendant further denied averments made in para 4 of the plaint that the plaintiff is having right, title and interest over the suit schedule property on the basis of documents of the plaintiff and the same are denied as false. It is false that the 6 Judgment O.S.No.25234/2007 plaintiff has put up compound wall therein. The defendant submits that the compound wall in existence is put up by the defendant. The photographs produced by the plaintiff are not pertaining to the suit schedule property and they are manipulated for the purpose of the case. The defendant specifically denied that the plaintiff is lawful owner without any disturbances up to 15/01/2007. The defendant submits that the plaintiff was not in possession and enjoyment of the suit schedule property, whereas the defendant is in possession and enjoyment of the suit schedule property. The defendant denied that he has interfered with the possession and enjoyment of the suit schedule property with ulterior motive to have wrongful gain and the said allegation is false. The defendant further submitted that it is false to state that on 20/01/2007 the defendant threatened to dispossess the plaintiff form the suit schedule property and partly demolished the compound wall. The defendant denied that the plaintiff has lodged complaint with Police. The 7 Judgment O.S.No.25234/2007 defendant denied as false that there is imminent threat of dispossession of the suit schedule property by the defendant. It is false that the defendant has no right, title and interest over the suit schedule property. It is also false to state that defendant may dispossess the plaintiff from the suit schedule property without due process of law. The defendant submits that the plaintiff is not in possession and enjoyment of the suit schedule property and there is no question of the defendant dispossessing the plaintiff form the suit schedule property. The defendant further denied averments made at para No.5 of the plaint that the defendant created forged documents and trying to knock off the valuable property. It is false that the defendant has no right, title and interest over the suit schedule property.
4. The defendant in his counter claim submits that the plaintiff is an utter stranger to the right title and interest of the suit schedule property. The plaintiff has never been in 8 Judgment O.S.No.25234/2007 possession and enjoyment of the suit schedule property. The suit schedule property originally is a portion of agricultural land in Sy.No.117 of Kottanur village, Uttarahalli Hobli, Bangalore South Taluk. The original owner of this land in Sy.No.117 measuring 7 acres 28 guntas was one Smt Sharadamma W/o Late Mariyappa. She sold away the major portion of this land in favour of Byresh and others and retained only an extent of 6.08 Guntas to herself. This 6.08 guntas of land is having the revenue reverence in the RTC for the year 2006-07 wherein the name of original owner Sharadamma is forthcoming and this extent is also mutated in her name in MR No.8/2006-07. The defendant further submits that Sharadamma being absolute owner of 6.08 guntas of land in Sy.No.117 of Kottanur village, sold the same in favour of this defendant through registered sale deed dated 10/01/2007 registered as document NO.BNG(U)/ KNGR/35334/2006-07 of the Sub Registrar, Kengeri. The vendor of the defendant Sharadamma had acquired title over 9 Judgment O.S.No.25234/2007 the 6.08 guntas of land through the registered partition deed dated 03/07/1974. The defendant submits that he has acquired lawful title to this 6.08 guntas of land in Sy.No. 117 of Kottanur village through the registered sale deed executed by its lawful owner Sharadamma. The defendant was put in possession and enjoyment of the 6.08 guntas of land by the vendor Sharadammma since the date of registration of the sale deed dated 10/01/2007. A portion of 6.08 guntas of land is being claimed by the plaintiff through this suit for the relief of permanent injunction and the boundaries and extent described as Khaneshumari reference in the suit schedule property are in the portion of 6.08 guntas of land purchased by the defendant. The defendant has put up compound over the total extent of 6.08 guntas and he has kept watchmen and has maintained its physical possession and enjoyment. The plaintiff is disputing the possession, ownership and title of the defendant over the portion of the 6.08 guntas to the extent what she has 10 Judgment O.S.No.25234/2007 described in the suit schedule. The defendant submits that he is the lawful owner of 6.08 guntas of land which includes the portion described in the suit schedule property with khaneshumnari reference and the same is under the possession and enjoyment of the defendant. The plaintiff has not been in possession and enjoyment of the suit schedule property which is portion of 6.08 guntas of land in Sy.No.117 of Kottanur purchased by the defendant under the registered sale deed. The defendant submits that he has seriously disputed the right, title and possession of the plaintiff over the suit schedule property. Hence the suit for bare inunction is not maintainable in law and the suit is liable to be dismissed. The plaintiff is not demonstrating through her pleadings whether the suit schedule property is originally a Gramathana Property or a portion of land in Sy.No.117 of Kottanur being converted to non agricultural purposes. The Khaneshumari reference produced by the plaintiff is false and fabricated and the plaintiff has not 11 Judgment O.S.No.25234/2007 derived lawful title over the suit schedule property. The defendant has all necessary documents of title based on registered sale deed and he is in possession and enjoyment of 6.08 guntas of land in Sy.No.117 of Kottanur village. In view of dispute raised by the plaintiff with regard to portion of the land measuring 6.08 guntas purchased by him in Sy.No. 117 of Kottanur counter claim for the relief of permanent injunction against the plaintiff is just and necessary. The cause of action for counter claim has arisen on 25/01/2007 when the plaintiff has approached this court with this suit seeking an order of permanent injunction against the defendant and subsequently the plaintiff interfered with the possession and enjoyment off the suit schedule property by the defendant on 27/01/2007, 04/02/2007 and 18/02/2007 on the basis of orders of status quo granted by this court on 25/01/2007. The interference of the plaintiff over the suit schedule property is continuing one. The defendant submits that there is no cause of action 12 Judgment O.S.No.25234/2007 for the suit filed by the plaintiff, whereas cause of action for counter claim has arisen in favour of the defendant to claim the relief of permanent injunction against the plaintiff as counter claim in respect of portion of 6.08 guntas of land which is being claimed by the plaintiff in this suit describing it as the suit schedule property. The defendant pray to decree counter claim for permanent injunction against the plaintiff, her supporters, henchmen or anybody claiming or action on her behalf from interfering with the possession and enjoyment of the suit schedule property by the defendant being a portion of 6.08 guntas of land in Sy.No.117 of Kothanur village, Uttarahalli Hobli, Bangalore south taluk as counter claim in this suit. The defendant prays to dismiss the suit of the plaintiff. The defendants prays to decree the counter claim claimed by him with costs.
5. On the basis of above pleadings following Issues are framed:-
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Judgment O.S.No.25234/2007
:ISSUES:
(1) Whether the plaintiff proves her lawful possession and enjoyment of the suit schedule property as on the date of suit?
(2) Whether the plaintiff proves alleged interference by the defendant?
(3) Whether the defendant proves his lawful possession and enjoyment of suit schedule property as on the date of suit?
(4) Whether the defendant proves alleged interference by the plaintiff?
(5) To what relief parties are entitled?
(6) What order or decree?
6. The plaintiff is examined as PW.1 and marked ExP1 to ExP29 and examined witnesses PW.2 and PW.3. The defendant examined as DW.1 and marked ExD1 to ExD48.
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Judgment O.S.No.25234/2007
7. The plaintiff counsel argued and filed written arguments with citations. The defendant counsel argued. Perused the records.
8. My finding on the above issues are:-
Issue No.1) In Affirmative
Issue No.2) In Affirmative
Issue No.3) In Negative
Issue No.4) In Negative
Issue No.5) Partly Affirmative in favour of plaintiff and Partly Negative in favour of defendant.
Issue No.6) See final order for following:
:REASONS:
9. Issues No.1 to 5:
The plaintiff B. Vijaya D/o M.Devaraj filed her affidavit in lieu of examination in chief as PW.1 and deposed evidence that one M. Lakshmana was the absolute owner in possession and enjoyment of the suit schedule 15 Judgment O.S.No.25234/2007 property, who executed General Power of Attorney in favour of one Venu, who in turn executed the registered absolute sale deed in favour of B.K.Rajanna for valuable consideration of Rs.80,000/- under registered sale deed dated 17/04/1993. The said B.K. Rajanna has executed registered sale deed in her favour on 12/02/2001 for valuable sale consideration of Rs.1,58,000/- and the same was registered on the file of Sub Registrar Kengeri, Bangalore South Taluk vide book No.7 stored in CD 53, vide register No.10595/2001. The mutation was effected and khatha transferred in her name in respect of the suit schedule property and in all relevant revenue records including demand register her name has been entered. The suit schedule property is free from all encumbrances. She has also paid taxes to the concerned CMC, Bommanahalli, in the year 2004-05, 2005-06 and 2006-07. She is in lawful possession and enjoyment of the suit schedule property having valid right, title and interest over the suit schedule 16 Judgment O.S.No.25234/2007 property and there is valid transfer of title from B.K. Rajanna to her name by way of executing valid registered sale deed. That she has put up compound wall and he is in possession and enjoyment of the suit schedule property as the lawful owner. On 15/01/2007 and also 20/01/2007 the defendant threatened to dispossess her from the suit schedule property and also partly demolished the compound wall. She approached the Police but they directed her to approach civil court since the dispute is civil in nature. She apprehends that the defendant may dispossess her from the suit schedule property without due process of law. Hence she has filed this suit for permanent injunction against the defendant. The PW.1 prays to decree the suit as prayed in the plaint.
10. Afterwards PW.1 Smt. B. Vijaya, has also filed her additional affidavit evidence by way of examination in chief on 03/11/2009 wherein she has deposed that she has taken 17 Judgment O.S.No.25234/2007 electricity connection to the suit schedule property in her name. She has paid property tax and the property is situated within the jurisdiction of B.B.M.P. She is in possession and enjoyment of the suit schedule property and the defendant has nothing to do with the suit schedule property and he is unnecessarily harassing her. The PW.1 prays to decree the suit as prayed in the plaint. In support of oral evidence the PW.1 marked documents ExP1 to ExP29.
11. The plaintiff examined the witnesses PW.2/ Yelumalai S/o Subbarayan and PW.3 Sudhakar S/o Chandrayya. The PW.2 & 3 have filed their affidavits in lieu of examination in chief and deposed same set of evidence. The PW.2 & 3 deposed in their examination in chief that that there are sheds in the property bearing No.54, assessment Khatha No.214/117 situated at Kothanur village, Uttarahalli Hobli, Bangalore South Taluk which is the suit schedule property, shed measures 10 feet x 20 feet each and 18 Judgment O.S.No.25234/2007 there are two portions in the above shed and he became a tenant under the plaintiff B. Vijaya from about 9 years back on monthly rental of Rs.500/-. That they have worked for construction of the shed on the suit schedule property. The plaintiff had let out the shed in the schedule property to them. The plaintiff constructed the above shed and the compound wall in the schedule property. The portion of compound wall was demolished by defendants and his persons. The PW.2 & PW.3 further deposed that they are doing coolie work and they can identify the shed constructed on the suit schedule property by the plaintiff Smt. B. Vijaya in photographs if shown to them. That the suit schedule property belongs to the plaintiff B.Vijaya and she is in possession of the suit schedule property and let out the shed to them.
12. The defendant / Purushotham H.N S/o H.N. Nanjegouda filed his affidavit evidence in lieu of 19 Judgment O.S.No.25234/2007 examination in chief as DW.1 and deposed that the suit schedule property originally is a portion of agricultural land in Sy.No.117 of Kottanur village, Uttarahalli Hobli, Bangalore South Taluk. The original owner of this land in Sy.No.117 measuring 7 acres 28 guntas was one Sharadamma W/o Late Mariyappa. She sold away the major portion of this land in favour of Byresh and others and retained only an extent of 6.08 guntas to herself. This 6.08 guntas of and is having the revenue reverence in the RTC for the year 2006-07 wherein the name of original owner Smt. Sharadamma is forthcoming and this extent is also mutated in her name in MR No.8/2006-07. That Sharadamma being absolute owner of 6.08 guntas of land in Sy.No. 117 of Kottanur village, sold the same in his favour under registered sale deed dated 10/01/2007 registered as document NO.BNG(U)/KNGR/35334/2006-07 of the Sub Registrar, Kengeri. DW1 further deposed that by virtue of sale deed dated 10/01/2007, he has acquired lawful title to 20 Judgment O.S.No.25234/2007 this 6.08 guntas of land in Sy.No.117 of Kottanur village through the registered sale deed executed by its lawful owner Sharadamma. The DW.1 further deposed that he was put in possession and enjoyment of the 6.08 guntas of land by the vendor Sharadammma since the date of registration of the sale deed dated 10/01/2007. A portion of 6.08 guntas of land is being claimed by the plaintiff through this suit for the relief of permanent injunction and the boundaries and extent described as Khaneshumari reference in the suit schedule property are in the portion of 6.08 guntas of land purchased by him [DW1]. That he has put up compound over the total extent of 6.08 guntas and he has kept watchmen and has maintained its physical possession and enjoyment. The plaintiff is disputing his [DW1] possession, ownership and title over the portion of the 6.08 guntas to the extent what she has described in the suit schedule. That he is the lawful owner of 6.08 guntas of land which includes the portion described in the suit schedule property with 21 Judgment O.S.No.25234/2007 Khaneshumari reference and the same is under his possession and enjoyment. That the plaintiff has not been in possession and enjoyment of the suit schedule property which is portion of 6.08 guntas of land in Sy.No.117 of Kottanur purchased by the him [DW.1] under the registered sale deed. That he has seriously disputed the right, title and possession of the plaintiff over the suit schedule property. Hence the suit for bare inunction is not maintainable in law and the suit is liable to be dismissed. The plaintiff is not demonstrating through her pleadings whether the suit schedule property is originally a Gramathana Property or a portion of land in Sy.No.117 of Kothanur being converted to non agricultural purposes. The Khaneshumari reference produced by the plaintiff is false and fabricated and the plaintiff has not derived lawful title over the suit schedule property. That he has all necessary documents of title based on registered sale deed and he is in possession and enjoyment of 6.08 guntas of land in Sy.No.117 of Kottanur 22 Judgment O.S.No.25234/2007 village. In view of dispute raised by the plaintiff with regard to portion of the land measuring 6.08 guntas purchased by him in Sy.No.117 of Kothanur, counter claim for the relief of permanent injunction against the plaintiff is just and necessary. The cause of action for counter claim has arisen on 25/01/2007 when the plaintiff has approached this court with this suit seeking an order of permanent injunction against him [DW1] and subsequently the plaintiff interfered with the possession and enjoyment of the suit schedule property by the defendant on 27/01/2007, 04/02/2007 and 18/02/2007 on the basis of orders of status quo granted by this court on 25/01/2007. The interference of the plaintiff over the suit schedule property is continuing one. That there is no cause of action for the suit filed by the plaintiff, whereas cause of action for counter claim has arisen in his favour to claim the relief of permanent injunction against the plaintiff as counter claim in respect of portion of 6.08 guntas of land which is being claimed by the plaintiff in this 23 Judgment O.S.No.25234/2007 suit describing it as the suit schedule property. The DW.1 prays to dismiss the suit of the plaintiff and decree his counter claim for permanent injunction against the plaintiff, her supporters, henchmen or anybody claiming or action on her behalf from interfering with the possession and enjoyment of the suit schedule property by him [Defendant] being a portion of 6.08 guntas of land in Sy.No.117 of Kothanur village, Uttarahalli Hobli, Bangalore south taluk as counter claim in this suit. In support of oral evidence DW.1 marked ExD1 to ExD48.
13. The burden is on the plaintiff to prove that she is the absolute owner in lawful possession and enjoyment of the suit schedule property as on the date of filing of the suit and the defendant caused interference to her possession and enjoyment over the suit schedule property. On the contrary the burden is on the defendant to prove that the suit schedule property is a portion of agricultural land in Sy.No.117 of 24 Judgment O.S.No.25234/2007 Kottanur village, Uttarahalli Hobli, Bangalore South Taluk under the original owner Smt. Sharadamma W/o. Late Mariyappa and she sold away the major portion of this land in favour others and retained only an extent of 6.08 Guntas to herself and thereafter Sharadamma sold the same in favour of the defendant, but the plaintiff causing obstruction to her possession and enjoyment over the property mentioned in her counter claim i.e., 6.08 guntas of land in Sy.No.117 of Kothanur village, Uttarahalli Hobli, Bangalore South taluk.
14. The plaintiff examined as PW1 and in support of her oral evidence marked documents ExP1 to ExP29. The ExP1 is original sale deed dated 17/04/1993 executed by M. Laxmana S/o Late Muniswamappa through his GPA holder A. Venu S/o Andanappa in favour of B.K.Rajanna S/o Late M. Kemapaiah in respect of property bearing No.54, Assessment Khatha No.214/117 situated at Kothnur village, 25 Judgment O.S.No.25234/2007 Uttarahalli hobli, Bangalore South Taluk, Bangalore measuring East to West 60 feet and North to South 40 feet bounded by East:Road, West:property No.49, North:property No.53 and South:property No.55 for Rs.80,000/-. The ExP2 is original sale deed dated 12/02/2011 executed by B.K. Rajanna S/o Late M. Kempaiah in favour of B. Vijaya [plaintiff] W/o M. Devaraj in respect of property bearing No.54, Assessment Khatha No.214/117 situated at Kothanur village, Uttarahalli hobli, Bangalore South Taluk, measuring East to West 60 feet and North to South 40 feet bounded by East:Road, West:
property bearing No.49; North:Property bearing No.50, South: Property bearing No.55 for Rs.1,58,000/- [the suit schedule property]. The ExP3 is demand register extract for the year 2002/2003 issued by Kottanur village Panchayath, Bangalore South Taluk, wherein there is entry of the name of the plaintiff as owner / anubhavdar in respect of property No.54, Assessment Khatha No.214/117. The ExP4 is 26 Judgment O.S.No.25234/2007 encumbrance certificate for the year 01/04/2003 to 31/03/2004 wherein there is entry of name of B.K. Rajanna as seller of the suit schedule property in favour of B. Vijaya [plaintiff]. The ExP5 is another encumbrance certificate for the period from 01/04/2004 to 16/01/2007 in respect of the suit schedule property standing in the name of the plaintiff.
The ExP6 to ExP11 are tax paid receipt paid by the plaintiff in respect of the suit schedule property. The ExP12 to ExP17 and ExP26 to ExP27 are photographs and ExP18 to ExP25 are BESCOM bills and receipts produced by the plaintiff stating that she is in possession of the suit schedule property. The plaintiff contention that her vendor has purchased the suit schedule property from M. Lakshmamma and her vendor was in possession and enjoyment of the suit schedule property form the date of purchase on 17/04/1993 and afterwards the suit schedule property was sold in her favour on 12/02/2001 and since then she is in possession 27 Judgment O.S.No.25234/2007 and enjoyment of The suit schedule property and paying taxes of the suit schedule property.
15. On the contrary the defendant examined as DW.1 and marked documents at ExD1 to ExD48. The ExD1(1) is the certified copy of the Record of Rights of land bearing Sy.No.117 measuring totally 7 acres 36 guntas of Kottanur village, Bangalore South Taluk for the period from 1969- 1970 to 1973-1974, wherein there is entry of name of N. Munivenkatamma Chanchaghatta as owner and occupant. The ExD1(2) is certified copy of the Record of Rights of land bearing Sy.No.117 measuring totally 7 acres 36 guntas of Kottanur village, Bangalore South Taluk for the period from 1974-1975 to 1975-1976, wherein at column No.9 there is entry of name of N. Munivenkatamma Chanchaghatta, as owner and occupants along with Mariyappa S/o Venkataramanaiah to an extent of 3 acre 13 guntas and and Venkataramappa S/o Venkataramanaiah to 28 Judgment O.S.No.25234/2007 an extent of 3 acre 15 guntas. The ExD1(3) is certified copy of the Record of Rights of land bearing Sy.No.117 measuring totally 7 acres 36 guntas of Kottanur village, Bangalore South Taluk for the period from 1979-1980 to 1983-1984, wherein at column No.9 there is entry of name of N. Munivenkatamma Chanchaghatta as owner and occupant along with Mariyappa S/o Venkataramanaiah to an extent of 3 acre 13 guntas and and Venkataramappa S/o Venkataramanaiah to an extent of 3 acre 15 guntas under
MR No.26/74-75.
16. The ExD1(4) is certified copy of the Record of Rights of land bearing Sy.No.117 measuring totally 7 acres 36 guntas of Kottanur village, Bangalore South Taluk for the period from 1984-1985 to 1988-1989 wherein at column No.9 the name of N. Munivenkatamma Chanchaghatta along with Mariyappa S/o Venkataramanaiah to an extent of 3 acre 13 guntas and Venkataramappa S/o Venkataramanaiah 29 Judgment O.S.No.25234/2007 to an extent of 3 acre 15 guntas under MR No.26/74-75 and also one Munibyramma under MRNo.42/59-60 were rounded off and name of V. Jayaram and V. Balakrishna along with M. Krishnappa and Sharadamma are shown as owners in possession of the property under I.H.C. 1/86-87. The ExD1(5) is certified copy of the Record of Rights of land bearing Sy.No.117 measuring totally 7 acres 36 guntas of Kottanur village, Bangalore South Taluk for the period from 1989-1990 to 1993-1994, wherein at column No.9 the name of V. Jayaram V. Balakrishna Joint names under IHC 1/86-87 is rounded off, M. Krishnappa to the extent of 1 acres and Sharadamma and Mariyappa names are also rounded off and under MR5/91-92 one acre and under MR 7/91-92 two acre were shown against the name G.R. Byresh S/o Ramaiah and under MR 8/91-92 for 4 acres 28 guntas against names of M. Lakshmana S/o Late Muniswamappa are shown as owners in possession.
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Judgment O.S.No.25234/2007
17. The ExD1(6) is certified copy of the Record of Rights of land bearing Sy.No.117 measuring totally 7 acres 36 guntas of Kottanur village, Bangalore South Taluk for the period from 1997-1998 to 2001-2002 wherein at column No.9 the name of G.R. Byresh S/o Ramaiah under MR 5/91- 92 to the extent of 1 acres and under MR 7 / 91-92 to the extent of 2.00 acres and under MR 8/91-92 for 4 acres 28 guntas against names of M. Lakshmana S/o Late Muniswamappa and also under MR 32/91-92 to an extent of 0-02 ½ name of Y.V. Balakrishna S/o Venkaaswamappa are shown as owners in possession. The ExD1(7) is certified copy of Record of Rights of land bearing Sy.No.117 measuring totally 7 acres 36 guntas of Kottanur village, Bangalore South Taluk for the period from 2000-2001 wherein at column No.9 the name of G.R. Byresh S/o Ramaiah under MR 5/91-92 and MR 7 / 91-92 to the extent of 3.00 acres and under MR 8/91-92 for 4 acres 25.08 guntas against names of M. Lakshmana S/o Late 31 Judgment O.S.No.25234/2007 Muniswamappa and also under MR 32/91-92 to an extent of 0-02-08 guntas name of Y.V. Balakrishna S/o Venkataswamappa are shown as owners in possession. The ExD1(8) is certified copy of the Record of Rights of land bearing Sy.No.117 measuring totally 7 acres 36 guntas of Kottanur village, Bangalore South Taluk for the period from 2001-2002 wherein at column No.9 the name of G.R. Byresh S/o Ramaiah under MR 5/91-92 and MR 7/91-92 to the extent of 3.00 acres and under MR 8/91-92 for 4 acres 25.08 guntas against names of M. Lakshmana S/o Late Muniswamappa and also under MR 32/91-92 to an extent of 0-02-08 guntas against the name of Y.V. Balakrishna S/o Venkataswamappa are shown as owners in possession. The ExD1(9) is certified copy of the Record of Rights of land bearing Sy.No.117 measuring totally 7 acres 36 guntas of Kottanur village, Bangalore South Taluk for the period from 2002-2003, wherein at column No.9 the name of G.R. Byresh S/o Ramaiah under MR 5/91-92 and MR 7/91-92 to 32 Judgment O.S.No.25234/2007 the extent of 3.00 acres and under MR 8/91-92 for 4 acres 25.08 guntas against names of M. Lakshmana S/o Late Muniswamappa and also under MR 32/91-92 to an extent of 0-02-08 guntas against the name of Y.V. Balakrishna S/o. Venkataswamappa are shown as owners in possession.
18. The ExD1(10) is certified copy of the Record of Rights of land bearing Sy.No.117 measuring totally 7 acres 36 guntas of Kottanur village, Bangalore South Taluk, for the period from 2003-2004, wherein at column No.9 the name of G.R. Byresh S/o Ramaiah under MR 5/91-92 and MR 7/91-92 to the extent of 3 acres and under MR 8/91-92 for 4 acres 25.08 guntas against names of M. Lakshmana S/o Late Muniswamappa and also under MR 32/91-92 to an extent of 0-02-08 guntas against the name of Y.V. Balakrishna S/o Venkataswamappa are shown as owners in possession. The ExD1(11) is certified copy of the Record of Rights of land bearing Sy.No.117 measuring totally 7 acres 33 Judgment O.S.No.25234/2007 36 guntas of Kottanur village, Bangalore South Taluk for the period from 2004-2005, wherein at column No.9 the name of G.R. Byresh S/o Ramaiah under MR 5/91-92 and MR 7/91-92 to the extent of 3.00 acres and under MR 8/91-92 for 4 acres 25.08 guntas against names of M. Lakshmana S/o Late Muniswamappa and also under MR 32/91-92 to an extent of 0-02-08 guntas against the name of Y.V. Balakrishna S/o Venkataswamappa are shown as owners in possession. The ExD1(12) is certified copy of the Record of Rights of land bearing Sy.No.117 measuring totally 7 acres 36 guntas of Kottanur village, Bangalore South Taluk for the period from 2005-2006 wherein at column No.9 the name of G.R. Byresh S/o Ramaiah under MR 5/91-92 and MR 7/91-92 to the extent of 3 acres and under MR 8/91-92 for 4 acres 25.08 guntas against names of M. Lakshmana S/o Late Muniswamappa and also under MR 32/91-92 to an extent of 0-02-08 guntas against the name of Y.V. Balakrishna S/o Venkataswamappa are shown as owners in possession. 34
Judgment O.S.No.25234/2007
19. The ExD1(13) and ExD1(14) are page No.1 and 2 of the certified copy of the Record of Rights of land bearing Sy.No.117 measuring totally 7 acres 36 guntas of Kottanur village, Bangalore South Taluk for the period from 2006- 2007, wherein at column No.9 the name of G.R. Byresh S/o Ramaiah under MR 5/91-92 and MR 7/91-92 to the extent of 3 acres and under MR 8/91-92 for 4 acres 25.08 guntas against names of M. Lakshmana S/o Late Muniswamappa and also under MR 32/91-92 to an extent of 0-02-08 guntas against the name of Y.V. Balakrishna S/o Venkataswamappa and vide Tahsildar Court Order dated 30/10/2006 under MR N.8/2006-2007 name of Sharadamma are shown as owners in possession. The ExD1(15) & ExD38 are the certified copy of the Record of Rights of land bearing Sy.No.117 measuring totally 7 acres 36 guntas of Kottanur village, Bangalore South Taluk for the period from 2007-2008 wherein at column No.9 the name of G.R. Byresh S/o Ramaiah under MR 5/91-92 and MR 7/91-92 to the extent 35 Judgment O.S.No.25234/2007 of 3.00 acres and under MR 8/91-92 for 4 acres 25.08 guntas against names of M. Lakshmana S/o Late Muniswamappa and also under MR 32/91-92 to an extent of 0-02-08 guntas against the name of Y.V. Balakrishna S/o Venkataswamappa and further under MR 16/2006-2007 under sale 08/05/2007 name of defendant H.N. Purushotham S. H.N. Nanjegowda to the extent of 0.06.08.00 are shown as owners in possession.
20. The ExD1(16) is certified copy of the Record of Rights of land bearing Sy.No.117 measuring totally 7 acres 36 guntas of Kottanur village, Bangalore South Taluk for the period from 2008-2009 wherein at column No.9 the name of G.R. Byresh S/o Ramaiah under MR 5/91-92 and MR 7/91-92 to the extent of 3.00 acres and under MR 8/91-92 for 4 acres 25.08 guntas against names of M. Lakshmana S/o Late Muniswamappa and also under MR 32/91-92 to an extent of 0-02-08 guntas against the name of Y.V. 36 Judgment O.S.No.25234/2007 Balakrishna S/o Venkataswamappa and further under MR 16/2006-2007 under sale 08/05/2007 name of defendant H.N. Purushotham S. H.N. Nanjegowda to the extent of 0.06.08.00 are shown as owners in possession. The ExD1(17) is certified copy of the Record of Rights of land bearing Sy.No.117 measuring totally 7 acres 36 guntas of Kottanur village, Bangalore South Taluk for the period from 2009-2010, wherein at column No.9 the name of G.R. Byresh S/o Ramaiah under MR 5/91-92 and MR 7/91-92 to the extent of 3 acres and under MR 8/91-92 for 4 acres 25.08 guntas against names of M. Lakshmana S/o Late Muniswamappa and also under MR 32/91-92 to an extent of 0-02-08 guntas against the name of Y.V. Balakrishna S/o Venkataswamappa and further under MR 16/2006-2007 under sale 08/05/2007 name of defendant H.N. Purushotham S/o H.N. Nanjegowda to the extent of 0.06.08.00 are shown as owners in possession.
37
Judgment O.S.No.25234/2007
21. The ExD2 is endorsement given by the Tahsildar, Bangalore South Taluk Sharadamma mentioning that the records relating to the Sy.No.117 of Kottanur village in RRTCR 678/2006-2007 RRT (G4) GR 358/2006-07 is not available in the office records. The ExD3 & ExD21 are certified copy of the registered partition deed dated 03/07/1974 [ExD47 is the typed copy of ExD3] entered into between family members of Mariyappa S/o Nadubeedhi Venkataramanappa, namely (1) Sharadamma second wife of Mariyappa and children of Mariyappa through first wife Papamma namely (2) first son Govindappa, (3) second son Krishnappa, (4) third son Venkataramu dividing the properties in to four parts 'A', 'B', 'C' and 'D' schedule properties noted in the partition deed, among which, Schedule 'A' property bearing Sy.No.117 of Kothanur village, Uttarahalli Hobli, measuring 2 ½ guntas allotted to Smt. Sharadamma, Schedule 'B' property bearing Sy.No.117 of Kothanur village, Uttarahalli Hobli, Bangalore South 38 Judgment O.S.No.25234/2007 taluk measuring 1 acre 6½ guntas in favour of Sri Govindappa.
22. The ExD4 is certified copy of registered document dated 08/08/1991 executed by vendor G.R. Byresh in respect of Sy.No.117 of Kothanur Hobli, Bangalore South Taluk registered in the office of the Sub Registrar of Kengeri, Bangalore. The ExD5 is Mutation Extract in respect of MR 8/2006-2007, wherein name of Sharadamma appear to an extent of 0.06.08.001 guntas in Sy.No.117 as per the orders of Asst. Commissioner in RRT CR 678/2006- 07 dated 5/1/2006. The ExD6 and ExD36 are certified copy of registered sale deed dated 10/01/2007 executed by Sharadamma W/o Late Mariyappa in favour of H.N. Purushotham S/o H.N. Nanjegowda in respect of agricultural land bearing Sy.No.117 situated at Kothanur village, Utarahalli Hobli, Bnaglaore South Taluk measuring an extent of 6.08 guntas. The ExD7 and ExD37 are 39 Judgment O.S.No.25234/2007 MR.No.16/2006-2007 dated 08/05/2007 in respect of Sy.No.117 of Kothanur village, Uttarahalli Hobli, Bangalore South Taluk transferred from the name of Sharadamma to the name of defendant H.N. Purushotham S/o H.N. Nanjegowda. The ExD8 is endorsement issued by the Senior Sub Registrar, Bommahanahalli, Bangalore furnishing information to one Madhu that the document 601/1974-75 volume 1048, pages 136-140 dated 22/05/1974 is completely torn condition and not able to get the copy. The ExD9 is spot inspection report issued by Tahsildar, Bangalore North Taluk in respect of property bearing Sy No.117 measuring 0-06-08 guntas of agricultural land at Kothanur village, Uttarahalli Hobli, Bangalore South Taluk, wherein it is mentioned that in the said land High Tension Electrical Wire is not passed and there are no illegal construction in the land and the land is fit for agricultural purpose and further there is a house consisting of ACC sheet 40 Judgment O.S.No.25234/2007 roofing measuring 15 x 30 feet and fine has to be imposed for said illegal construction.
23. The ExD10 is the letter issued by Special Tahsildar, Bangalore South Taluk, to the Asst Commissioner, Bangalore South Taluk on 23/09/2000 for entry in the name of Sharadamma W/o late Mariyappa in respect of land in Sy.No.117 of Kothanur village obtained under partition MR /91-92. The ExD11 is proceedings of the office of Divisional Commissioner, Bangalore South Subdivision, bearing No. RRTCR/678/2006-07 dated 05/10/2006, wherein it is ordered to effect entry of the name of Sharadamma in column No.9 of Pahani records to an extent of 0-06 ½ guntas in Sy.No. 117. The ExD12 is proceedings of the office of Divisional Commissioner, Bangalore South Subdivision, bearing No. RRTCR/ 678/2006-07 dated 05/10/2006 wherein it is ordered to effect entry of the name of Sharadamma in column No.9 of 41 Judgment O.S.No.25234/2007 Pahani records to an extent of 0-06½ guntas in Sy.No.117. The ExD13 is endorsement given by the office of Divisional Commissioner of Bangalore South Taluk, to applicant one Sampath bearing Ref.No.MRF/CR/20/07/08 dated 06/06/2007 sating that there are no cases registered u/s.79(A)(B) of Karnataka Land Reforms Act, in respect of property bearing Sy.No.117 measuring 0-06-08 of Kothanur village, Uttarahalli Hobli, Bangalore South Taluk. The ExD14 is certified copy of Form No.1 application submitted by defendant H.N. Purushotham seeking conversion of land U/S 95(2) of Karnataka Land Reforms Act 1964 in respect of land bearing Sy.No.117 measuring 006-08 guntas of Kothanur village for residential purpose. The ExD15 is letter issued by Bangalore Development Authority to the Special District Commissioner and President, Single window Committee, Office of the District Commissioner, Bangalore District, Bangalore with a copy marked to Sri Purushotham [defendant herein] Bearing No.ಬಬಬ.ಅ.ಪಪಪ 42 Judgment O.S.No.25234/2007 /ನ.ಯ.ಸ/ PL 25/07/2709/ 2007-08 dated 07/11/2007 for approval of the sketch prepared for temporary residential lay out in Sy.No.117(P) of Kothanur village, Uttarahalli Hobli, Bangalore South Taluk, measuring 06½ guntas. The ExD16 is letter issued by the Tahsildar, Bangalore South Taluk, Bangalore to the office of the Special District Commissioner, Bangalore District bearing No. ಎ ಎಲಲಎಸಲ/ ಎಸಲ ಆರಲ / 115 / 07-08 dated 30/06/2007 wherein he has forwarded the application submitted by defendant Purushotham seeking conversion of land for agricultural purpose in respect of Sy.No.117 of Kothanur village, Uttarahalli village, Bangalore South Taluk, measuring 0-6- 08 guntas. The ExD17 and ExD40 are the proceedings passed by the Special Deputy Commissioner, Bangalore District, Bangalore bearing No. ಎ ಎಲಲಎನಲ(ಎಸಲಯಯ) ಎಸಲ ಆರಲ 26/2007-2008 dated 17/08/2007 granting permission to convert the usage of land to residential purpose in resepct of land in Sy.No.117 of Kothanur village, Uttarahalli Hobli, 43 Judgment O.S.No.25234/2007 Bangalore south Taluk measuring 0-06½ guntas. The ExD18 is official Memorandum bearing No. ಎಲಲಎನಲ(ಎಸಲ ಯಯ) ಎಸಲಆರಲ 26/2007-2008 dated 09/11/2007 issued by the office of Dy. Commissioner, Bangalore District granting approval to the proposal made by applicant Purushotham [defendant] seeking conversion of land in Sy.No.117 of Kothanur village, Uttarahalli Hobli, Bangalore south Taluk measuring 0-06½ guntas. The ExD19, ExD20 and ExD41 are certified copy challans for having paid land conversion fee by defendant.
24. The ExD22 is office note sheet relating to file No.PL 25/2007 on the file of BDA Bangalore relating to Sy.No.117 of Kothanur village, Uttarahalli Hobli, Bangalore south Taluk measuring 0-06½ gunts for issuing lay out plan, wherein there are notes of the orders passed by the Special Tahsildar. The ExD23 is certified copy of office note sheet relating to file No.PL 25/2007 on the file of BDA 44 Judgment O.S.No.25234/2007 Bangalore, relating to Sy.No.117(p) of Kothanur village, Uttarahalli Hobli, Bangalore south Taluk measuring 0-06½ gunts, wherein the Town Planning Member of BDA has made note to address letter to the Commissioner in view of BDA resolution No.125/2007 dated 26/03/2007 relating to approval of plan for temporary residential lay out. The ExD24, and ExD25 are the letters addressed by the Member, Town Planning, Bangalore Development Authority to the District Commissioner in respect of approval of temporary residential Lay out plain in land bearing Sy.No.117(p) of Kothanur village, Uttarahalli Hobli, Bangalore south Taluk measuring 0-06½ gunts. The ExD26 is application by H.S.Purushotham [defendant herein] to the Commissioner and ExD27 is the undertaking by the defendant herein in respect of approval of plan for temporary residential layout in Sy.No.117(p) of Kothanur village, Uttarahalli Hobli, Bangalore south Taluk measuring 0-06½ gunts, ExD28 is the challan for having paid requisite fee by the defendant. 45
Judgment O.S.No.25234/2007 The ExD29 is letter addressed by the Deputy Director (West) Town Planning, Bangalore Development Authority Bangalore to the defendant dated 28/10/2007 in respect of approval of residential lay out plan relating to Sy.No.117 of Kothanur village, Uttarahalli Hobli, Bangalore South Taluk measuring 0-06½ gunts. The ExD30 is letter addressed by the Bangalore Development Authority to the defendant herein informing about payment of concerned fee for approval of lay out plan within 90 days and the civil works of the lay ut has to be carried out under the supervision of B.D.A. in respect of Sy.No.117(p) of Kothanur village, Uttarahalli Hobli, Bangalore south Taluk measuring 0-06½ guntas. The ExD31 is letter addressed by the Asst. Director (Planning), Town Planning, Bangalore Deveopment Authority addressed to defendant H.N.Purushotham informing him to approach the office for inspection of the place. The ExD32 is sketch of the land. The ExD33 is application by defendant to Bangalore Development 46 Judgment O.S.No.25234/2007 Authority seeking approval of plan for private lay out in Sy.No.117 of Kothanur village, Uttarahalli Hobli, Bangalore south Taluk measuring 0-06½ guntas. The ExD34 is letter addressed by defendant H.N.Purushotham to the Member, Town Planning, Bangalore Development Authority relating to conversion of land for residential purpose in Sy.No.117 of Kothanur village, Uttarahalli Hobli, Bangalore south Taluk measuring 0-06½ guntas. The ExD35 is communication by the office of District Commissioner to the Member, Town Planning, Bangalore Development Authority in respect of decision taken for conversion of land U/S 95(2) of Karnataka Land Reforms Act 1964 relating to application filed by the defendant H.N.Purushotham in respect of land in Sy.No.117 of Kothanur village, Uttarahalli Hobli, Bangalore south Taluk measuring 0-06½ guntas. The ExD39 is sketch of land in Sy.No.117 of Kothanur village, Uttarahalli Hobli, Bangalore South Taluk measuring 0-06½ guntas. The ExD42 is draft layout plan of layout in 47 Judgment O.S.No.25234/2007 Sy.No.117(P) of Kothanur village, Uttarahalli Hobli, Bangalore south Taluk measuring 6.05 guntas. The ExD43 is letter issued by Bangalore Development Authority to the defendant dated 09/12/2015 to furnish information and certified copy of records in respect of file No.BDA/TPL/PRL 25/07/2709/07-08. The ExD44 is the bank challan.
25. The ExD45 is certified copy of sale deed dated:29/06/1991 and ExD48 is typed copy of ExD45 under which Y.V. Jayaram and Y.V. Balakrishna vendors have executed the suit schedule property in favour of M. Laxmana in respect of land bearing Sy.No.117 of Kothanur village, Uttarahalli Hobli, Bangalore south Taluk measuring 4 acres and 28 gunts.
26. The ExD46 is certified copy of document print out of which is not in a readable condition. However the xerox copy of the said document on the application filed by the 48 Judgment O.S.No.25234/2007 applicant is provided by the office of sub registrar, which shows that the same is a partition deed dated 15/04/1974 entered into between (1) Mariyappa, first son of Late Nadubeedhi Venkataramanaiah, (2) second son Venkataramappa, (3) Third son Venkatappa and under the said partition 'A' , 'B' and 'C' schedule property were taken by each son of Late Nadubeedhi Venkataramainaiah, in which Sy.No.117 of Kothanur village is shown in the schedule 'A' and 'B' properties.
27. As per the defendant, he has purchased 6.08 guntas of land in Sy.No.117 of Kottanur village, Uttarahalli Hobli, Bangalore South Taluk from his vendor Sharadamma under registered sale deed dated 10/01/2007 registered as document NO.BNG(U)/ KNGR/35334/2006-07 of the Sub Registrar Kengeri. The vendor of defendant Sharadamma being second wife of Late Mariyappa had obtained the said property under registered family partition dated 03/07/1974 49 Judgment O.S.No.25234/2007 between herself and also children of Late Mariyappa through his first wife.
28. The defendant in his written statement as well as in the oral evidence contended that a portion of 6.08 guntas of land is being claimed by the plaintiff through this suit for the relief of permanent injunction and the boundaries and extent described as Khaneshumari reference in the suit schedule property are in the portion of 6.08 guntas of land purchased by the defendant. Therefore as per the defendant the suit schedule property mentioned in the plaint is part and parcel of his property 6.08 guntas of land in Sy.No.117 of Kothanur village. The contention of the defendant that plaintiff is causing obstruction to his land and the defendant also prays for permanent injunction against the plaintiff from interfering with the possession and enjoyment of the suit schedule property by the defendant being a portion of 50 Judgment O.S.No.25234/2007 6.08 guntas of land in Sy.No.117 of Kothanur village, Uttarahalli Hobli, Bangalore south taluk.
29. The defendant examined as DW.1 and he is cross examined by the plaintiff counsel. In the cross examination DW.1 deposed evidence that "I have read contents of the plaint and I have seen documents marked on the side of the plaintiff. I do not know the suit schedule property. The suit schedule property is not concerning to me. It is not true to suggest that the plaintiff are owners of the suit property. I do not know who is the owner of the suit schedule property. It may be true that the suit schedule property is same as shown in ExP1. ExP1 is executed by GPA holder of Laxman in favour of B.K. Rajanna. In ExP1 suit property is sold to Rajanna. In ExP2 it shown that B.K. Rajanna sold suit schedule property to the plaintiff. In ExP1 it is stated that suit schedule property is handed over to purchaser. In ExP2 it is stated that 51 Judgment O.S.No.25234/2007 schedule property is handed over to plaintiff. ExP1 shows that Rajanna was in possession from 1993. According to recitals of ExP2 plaintiff is in possession of the property shown in ExP2. Description of suit schedule property and description of property at ExP1 and P2 are same. It is true to suggest that schedule property is within the limits of Kothanur village. As per the sale deed ExP2 Khatha is made in the name of the plaintiff by Kothanur Grama Panchayath. Earlier the schedule property was within the limits of Bommanahalli CMC. It may be true that plaintiff paid taxes of the suit schedule property. As on today there is building in the suit schedule property which is having asbestos sheet. The compound is covered by 40 x 60 ft. I do not know that plaintiffs are residing in the suit schedule property. I do not know that the PW2 and PW3 are tenants under the plaintiff. I do not know that plaintiff is in possession of the suit schedule property. I am not interfering with the plaintiff s possession. Plaintiff 52 Judgment O.S.No.25234/2007 filed complaint against me. Police called me. At that time I informed the police that plaintiff are in my property. Suit schedule property is not covered in my property. I have got survey number of property of 6 ½ guntas in Sy.No.
117. At that time it came to my notice that plaintiffs are in possession of my Sy.No.117 of 6 ½ Guntas. I have not filed suit for recovery of possession or declaration". Therefore from the evidence of DW.1 it is crystal clear that the suit schedule property is not covered under the property of the defendant. Further DW.1 contended that he has got survey of his property of 6 ½ guntas in Sy.No.117. But the defendant has not produced and marked the said survey sketch and map issued by the concerned authority to show that the suit schedule property comes within the land of the defendant in an extent of 6½ guntas in Sy.No.117 of Kothanur village and the plaintiff has encroached his property. Further the defendant in his cross examination has deposed that plaintiff is not in possession of the suit 53 Judgment O.S.No.25234/2007 schedule property and further he deposed that he do not know that plaintiff is residing in the suit schedule property and his tenants are also residing in the suit schedule property.
30. The DW.1 in his cross examination further deposed that "Suit property is not concerning to my property. Plaintiff not encroached my property. I have not encroached plaintiff's property the suit property is not within ExD6." Therefore from the evidence of DW.1 it is crystal clear that plaintiff has not encroached the property of the defendant. Further the defendant clearly deposed that in ExD6 sale deed of his property is not covered. Further the defendant in his counter claim contended that the plaintiff caused interference to his possession and enjoyment over 6.08 guntas of land in Sy.No.117 of Kothanur village. On this aspect the plaintiff counsel cross examined DW.1 and DW.1 deposed the evidence "ನನನನ 54 Judgment O.S.No.25234/2007 ಕಕಕಟರರ ಕಕಕಕಮರ ಹನಕಲನ ಏನನ ಕನರಣ ಅಕತ ಗಕಗತತಲಕ. ವನದಗಳನ ನನಗಕ ತಕಗಕದರಕ ಕಕಗಟಟಲಕ. ದದ 25/01/2007, 27/01/2007, 04/02/2007, 18/02/2007 ರಕದನ ವನದಗಳನ ನನಗಕ ತಕಗಕದರಕ ಕಕಗಟಟರನ ಅಕತ ಕಕಕಟರರ ಕಕಕಕಮಮಲಕ ಹಕಕಳದಕದಕಕನಕಗಕ ಇಲಕವ ನನಗಕ ನಕನಪಲಕ." Therefore from the evidence of DW.1 it is clear that the plaintiffs have not caused any interference to the property of the defendant. Further DW.1 clearly deposed that he do not know why he has filed counter claim against the plaintiff. The DW.1 deposed evidence contrary to his pleadings. Further in the written statement filed by the defendant along with the counter claim the defendant has not mentioned the description of the counter claim property with boundaries. In the written statement he has mentioned that he has purchased 6.08 guntas from Sharadamma, but at the end of pleading he has not narrated about description property of counter claim relating to which he is claiming decree against the plaintiff in counter claim. But the schedule of the 55 Judgment O.S.No.25234/2007 counter claim property is not mentioned to show the identification of the property.
31. The plaintiff filed written arguments and relied on the decisions reported in AIR 2005 KAR 419 [Putlabai V/s. Vaijnath and others] R.S.A.No.538 of 2003 dt 19/08/2005 Specific Relief Act(47 of 1963), S. 38 - Injunction
-Suit for bare injunction without seeking relief of declaration of title-is maintainable - Particularly, when title of plaintiff is unassailable.
AIR 1994 RAJASTHAN 133 Smt. Roopi Bai V/s. Mahaver and other Civil First Appeals Nos. 96 of 1992 and 3 of 1993 Dt.10/03/1993 (A) Civil P.C. (5 of 1908), O.8 R.5 - Pleadings - Admission of fact - Defendant merely pleading ignorance about fact pleaded in plaint - It amounts to admission unless by necessary 56 Judgment O.S.No.25234/2007 implication it amounts denial of fact. Evidence Act (1 of 1872) S. 18.
AIR 1971 SUPREME COURT 1865 Sait Tarajee Khimchand and others V/s. Yelamarti Satyam and others] Civil Appeal No. 2255 of 1966, with Civil Misc. Petn.
No.2452 of 1971 Dt. 19/04/1971 Civil P.C. (5 of 1908) O. 13 R. 4 - Mere Marking of a document as an exhibit does not dispense with its proof X ref.:Evidence Act (1 of 1872) S. 61 -
ILR 2003 KAR 3042 [Veerabhadrappa and another V/s.
Jagadishgouda and others]
(c) TRANSFER OF PROPERTY ACT, 1882 (Central Act No.4 of 1882) Section 48, Registration Act, 1908 (Central Act NO.16 of 1908)- Section 47 - Sale deed executed and registered on 07/06/1990 - 1982 Sale deeds still pending for registration - Which sale deeds shall prevail - It was held that 1982 sale deeds having been duly registered 57 Judgment O.S.No.25234/2007 irrespective of the date of registration, relate back to the date of this execution and any subsequent sale deeds executed by the same vendors in regard to the same lands on 07/06/1990 will not convey any title or the subsequent purchasers.
AIR 2014 KARNATAKA 140 [A.N. Nagarajaiah V/s. B.Aravind and others] Writ Petition No.26406/2012 (GM-CPC) dt.07/03/2014 Civil P.C. (5 of 1908), O.39 R. 1, O. 39 R2 -
Transfer of Property Act (4 of 182), S. 53A, S. 54
- Registration Act (16 of 1908) S. 17 - (as amended by Act 2001) - Temporary injunction - Proof of possession - Sale deed containing recital that possession had been delivered to plaintiff purchaser on date of sale - Prima facie case of lawful possession made out by plaintiff - grant of temporary injunction in favour of plaintiff, proper.
LAWS (APH) 1998 8 71 [Yamparala Venkaeshwarlu V/s. Shalk Khatumbi] Second Appeal 374 / 1989 dt 12/08/1998 A. On a consideration of the oral and documentary evidence laced before him, the learned District 58 Judgment O.S.No.25234/2007 Munsiff, while holding that the plaintiffs have been in possession of the suit land, dismissed the suit on the ground that the suit for bare injunction is not maintainable without seeking the relief of declaration of title and proper court fee is not paid. b. It would suffice if he proves that he was in lawful possession on the date of filing of the suit and his possession was invaded or threatened to be invaded by the defendants and he is entitled to sought for mere injunction without adding the prayer for declaration of his title. On a plea of the defendants in their written statement that the plaintiffs have no title to the suit property, the plaintiffs need not seek the relief of declaration of title and their suit for bare injunction even without seeking or declaration of the title, is maintainable when they were able to establish their lawful possession and enjoyment of the suit schedule property on the date of filing of the suit.
AIR 2004 SUPREME COURT 4609 [Ramegowda (D) by L.Rs V/s. M. Varadappa Naidu (D) by L.Rs and another] Civil Appeal No.7662 of 1997 Dt. 15/12/2003 59 Judgment O.S.No.25234/2007 Specific Relief Act (47 of 1963) S. 38 - Injunction
- Restraining defendant from interfering with peaceful possession of plaintiff - Failure by either party to prove title - Plaintiff in 'Settled possession' - It entitles him to protect his possession - Grant of injunction proper.
32. The documents produced by the plaintiff as discussed above discloses that as per ExP1 the vendor of the plaintiff purchased the suit schedule property from its previous vendor through General Power of Attorney holder on 17/04/1993 and thereafter the plaintiff purchased the said property on 12/02/2001 as per ExP2 from his vendor B.K. Rajanna. Further name of the plaintiff is also appeared in the concerned Demand Register extract for the year 2002/2003 issued by Kothanur village Panchayath, Bangalore South Taluk, as per ExP3 and also name of plaintiff is mentioned in ExP4 and ExP5 encumbrance certificate. The ExP6 to ExP10 discloses that the plaintiff 60 Judgment O.S.No.25234/2007 has paid tax of the suit schedule property from 2006 to 2009. As the suit is filed in the year 2007. Therefore after filing of the suit also the plaintiff has paid taxes of the suit schedule property. The plaintiff has also produced electricity receipts and photographs of the suit schedule property. These are all shows that the plaintiff is in possession of the suit schedule property. But the stand taken by the defendant as well as admission given by defendant No.1 in his evidence discloses that the plaintiff is not encroached the property belonging to the defendant and the defendant has failed to prove by way of oral and documentary evidence that plaintiff caused obstruction to his possession and enjoyment in his property, since the defendant clearly admitted that plaintiff is not encroached his property. Therefore the plaintiff by way of oral and documentary evidence proved that she is in lawful possession and enjoyment of the suit schedule property and the defendant caused interference to her possession as contended by the 61 Judgment O.S.No.25234/2007 plaintiff in the plaint, whereas the defendant failed to prove part of his property as contended in his counter claim.
33. The plaintiff has purchased the suit schedule property form his vendor on 12/02/2001 as per ExP2 whereas the defendant has purchased property to an extent of 6.08 guntas under registered sale deed dated 10/01/2007, which is earlier to the purchase of suit schedule property by the plaintiff from her vendor. The ExP3 discloses name of plaintiff in the records of rights of Grama Panchayath for the years 2002-2003. The plaintiff has paid taxes of the suit schedule property to the CMC Bommanahalli, Bangalore as per ExP6 on 25/06/2006 i.e., earlier to purchase of 6.08 guntas in Sy.No.117 by the defendant from his vendor. The citations referred to by the plaintiff counsel in ILR 2003 KAR 3042 as discussed above and other citations discussed above applies to the present case on hand. As discussed above the plaintiff proved that she is in possession and 62 Judgment O.S.No.25234/2007 enjoyment of the suit schedule property as on the date of the suit and on the contrary the defendant failed to prove his lawful possession and enjoyment of suit schedule property as on the date of the suit and also failed to prove alleged interference by the plaintiff over the property in Sy.No.117 of Kothanur village, Uttarahalli Hobli, Bangalore South Taluk measuring 6.08 guntas as stated in his written statement. Therefore the plaintiff is entitle for the relief of permanent injunction as prayed in the plaint and the defendant is not entitle for permanent injunction as prayed in his counter claim. The plaintiff proved Issues No.1 & 2 and defendant failed to prove Issues No.3 & 4. Therefore I answer Issues No.1 & 2 in Affirmative and Issues No.3 & 4 in Negative and Issue No.5 partly in favour of plaintiff and partly in Negative in favour of defendant.
34. Issue No.6:-
In view of above discussion I proceed to pass following:63
Judgment O.S.No.25234/2007
:ORDER:
The suit of the plaintiff is hereby decreed with costs.
It is ordered and decreed that the suit of the plaintiff for permanent injunction restraining the defendant, his henchmen, servants, agents, from interfering with her possession and enjoyment over the suit schedule property and also dispossessing her from the suit schedule property and also not to demolish the compound wall in respect of the suit schedule property.
The counter claim of the defendant against the plaintiff is hereby dismissed.
Draw decree accordingly.
(Dictated to the Judgment Writer, typed and print out taken by him, then corrected, signed and pronounced by me in the open court on this 15th day of October 2020).
(Smt.Suvarna K. Mirji) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE :ANNEXURE:64
Judgment O.S.No.25234/2007 WITNESSES EXAMINED FOR THE PLAINTIFFS:
PW1 : B. Vijaya D/o M.Devaraj PW2 : Yelumalai S/o Subbarayan PW3 : Sudhakar S/o Chandrayya DOCUMENTS MARKED FOR THE PLAINTIFFS: ExP1 Original sale deed dated 17/04/1993 ExP2 Original sale deed dated 12/02/2011 ExP3 Demand register extract for the year 2002/2003
issued by Kottanur village Panchayath, Bangalore South Taluk ExP4 Encumbrance certificate for the year 01/04/2003 to 31/03/2004 ExP5 Encumbrance certificate for the period from 01/04/2004 to 16/01/2007 ExP6 to ExP11: Tax paid receipt ExP12 to ExP17 and ExP26 to ExP27: Photographs ExP18 to ExP25: BESCOM bills and receipts WITNESSES EXAMINED FOR THE DEFENDANT/S:
DW1 : Purushotham H.N.
DOCUMENTS MARKED FOR THE DEFENDANT/S:
65
Judgment O.S.No.25234/2007
ExD1(1) Certified copy of the Record of Rights for the
period form 1969-70 to 1973-74
ExD1(2) Certified copy of the Record of Rights from
1974-75 to 1975-76
ExD1(3) Certified copy of the Record of Rights from
1979-80 to 1983-84
ExD1(4) Certified copy of the Record of Rights from
1984-85 to 1988-89
ExD1(5) Certified copy of the Record of Rights from
1989-90 to 1993-94
ExD1(6) Certified copy of the Record of Rights from
1997-98 to 2001-2002
ExD1(7) Certified copy of the Record of Rights for the
period 2000-2001
ExD1(8) Certified copy of the Record of Rights for the
period 2001-2002
ExD1(9) Certified copy of the Record of Rights for the
period 2002-2003
ExD1(10) Certified copy of the Record of Rights for the period form 2003-2004 ExD1(11) Certified copy of the Record of Rights of land for the period form 2004-2005 ExD1(12) Certified copy of the Record of Rights for the period form 2005-2006 ExD1(13) and ExD1(14) are page No.1 and 2 of the certified copy of the Record of Rights for the period form 2006-2007 66 Judgment O.S.No.25234/2007 ExD1(15) [Same document produced at ExD38] the certified copy of the Record of Rights for the period 2007-2008 ExD1(16) Certified copy of the Record of Rights for the period 2008-2009 ExD1(17) Certified copy of the Record of Rights for the period 2009-2010 ExD2 Endorsement given by the Tahsildar, Bangalore South Taluk, ExD3 [Same document produced at ExD21] certified copy of the registered partition deed dated 03/07/1974 [ExD47 is the typed copy of ExD3] ExD4 Certified copy of registered document dated 08/08/1991 ExD5 Mutation Extract in respect of MR 8/2006-2007, ExD6 [Same document produced at ExD36] certified copy of registered sale deed dated 10/01/2007 executed by Smt. Sharadamma W/o. Late Mariyappa, in favour of Sri H.N. Purushotham son of Sri H.N. Nanje Gowda, ExD7 [Same document produced at ExD37] MR No.16/2006-2007 dated 08/05/2007 ExD8 Endorsement issued by the Senior Sub Registrar, Bommahanahalli, Bangalore ExD9 Spot inspection report issued by Tahsildar, Bangalore North Taluk ExD10 Letter issued by Special Tahsildar, Bangalore South Taluk, to the Asst Commissioner, Bangalore South Taluk on 23/09/2000 67 Judgment O.S.No.25234/2007 ExD11 Proceedings of the office of Divisional Commissioner, Bangalore South Subdivision, bearing No. RRTCR/678/2006-07 dated 05/10/2006 ExD12 Proceedings of the office of Divisional Commissioner, Bangalore South Subdivision, bearing No. RRTCR/678/2006-07 dated 05/10/2006 ExD13 Endorsement given by the office of Divisional Commissioner of Bangalore South Taluk, to applicant one Sri Sampath, bearing Ref. No. MRF/CR/20/07/08 dated 06/06/2007 ExD14 Certified copy of Form No.1 application submitted by Sri H.N. Purushotham seeking conversion of land u/s. 95(2) of Karnataka Land Reforms Act, 1964, ExD15 Letter issued by Bangalore Development Authority to the Special District Commissioner and President, Single window Committee, Office of the District Commissioner, Bangalore District, Bangalore with a copy marked to Sri Purushotham [defendant herein] ExD16 Letter issued by the Tahsildar, Bangalore South Taluk, Bangalore to the office of the Special District Commissioner, Bangalore District dated 30/06/2007 ExD17 [Same document produced at ExD40] the proceedings passed by the Special Dy. Commissioner, Bangalore District, Bangalore dated 17/08/2007 ExD18 Official Memorandum bearing No. ಎಲಲ ಎನಲ (ಎಸಲ ಯಯ) ಎಸಲ ಆರಲ 26/2007-2008 dated 68 Judgment O.S.No.25234/2007 09/11/2007 issued by the office of Dy. Commissioner, Bangalore District, ExD19 [Same document produced at ExD20 and ExD41] certified copy challans for having paid land Conversion Fee by the defendant. ExD20 [Same document produced at ExD19 and ExD41] certified copy challans for having paid land Conversion Fee by the defendant. ExD21 [Same document produced at ExD3] certified copy of the registered partition deed dated 03/07/1974 [ExD47 is the typed copy of ExD21] ExD22 Office note sheet relating to file No.PL 25/2007 on the file of BDA Bangalore, relating to Sy.No.117 of Kothanur village, Uttarahalli Hobli, Bangalore south Taluk ExD23 Certified copy of office note sheet relating to file No.PL 25/2007 on the file of BDA Bangalore, relating to Sy.No.117(p) of Kothanur village, Uttarahalli Hobli, Bangalore south Taluk ExD24 [Same document produced at ExD25] Letters addressed by the Member, Town Planning, B.D.A. to the District Commissioner ExD25 [Same document produced at ExD24] Letters addressed by the Member, Town Planning, B.D.A. to the District Commissioner ExD26 Application by H.S.Purushotham [defendant herein] to the Commissioner 69 Judgment O.S.No.25234/2007 ExD27 Undertaking by the defendant herein in respect of approval of plan for temporary residential lay out ExD28 Challan for having paid requisite fee by the defendant.
ExD29 Letter addressed by the Deputy Director (West) Town Planning, BDA, Bangalore to the defendant dated 28/10/2007 ExD30 Letter addressed by the Bangalore Development Authority to the defendant ExD31 Letter addressed by the Asst. Director (Planning), Town Planning, Bangalore Deveopment Authority addressed to defendant H.N.Purushotham informing him to approach the office for inspection of the place.
ExD32 Sketch of the land. ExD33 Application by defendant to Bangalore
Development Authority, seeking approval of plan for private lay out ExD34 Letter addressed by H.N. Purushotham [defendant herein] to the Member, Town Planning, Bangalore Development Authority relating to conversion of land ExD35 Communication by the office of District Commissioner to the Member, Town Planning, Bangalore Development Authority ExD36 [Same document produced at ExD6] certified copy of registered sale deed dated 10/01/2007 executed by Smt. Sharadamma W/o. Late Mariyappa, in favour of Sri H.N. Purushotham son of Sri H.N. Nanje Gowda, 70 Judgment O.S.No.25234/2007 ExD37 [Same document produced at ExD7] MR No.16/2006-2007 dated 08/05/2007 ExD38 [Same document produced at ExD1(15)] certified copy of the Record of Rights for the period 2007-2008 ExD39 Sketch of land in Sy.No.117 of Kothanur village, Uttarahalli Hobli, Bangalore South Taluk/ ExD40 [Same document produced at ExD17] the proceedings passed by the Special Dy. Commissioner, Bangalore District, Bangalore dated 17/08/2007 ExD41 [Same document produced at ExD19 and ExD20] certified copy challans for having paid land Conversion Fee by the defendant. ExD42 Draft lay out plan of lay out in Sy.No.117(P) of Kothanur village, Uttarahalli Hobli, Bangalore south Taluk measuring 6.05 guntas. ExD43 Letter issued by Bangalore Development Authority to the defendant herein dated 09/12/2015 to furnish information and certified copy of records in respect of file No.BDA/TPL/PRL 25/07/2709/07-08.
ExD44 Bank challan
ExD45 Certified copy of sale deed dated:29/06/1991
ExD46 Certified copy of partition deed dated
15/04/1974
ExD47 Typed copy of ExD21 and ExD3]
ExD48 Typed copy of ExD45
71
Judgment O.S.No.25234/2007
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT : BANGALORE 72 Judgment O.S.No.25234/2007 15/10/2020 Plaintiff by Sri KND D1 & D2 by Sri ASR Judgment pronounced in the open court (Vide separate detailed Judgment) The suit of the plaintiff is hereby decreed with costs.73
Judgment O.S.No.25234/2007
It is ordered and decreed that the suit
of the plaintiff for permanent injunction
restraining the defendant, his henchmen, servants, agents, from interfering with her possession and enjoyment over the suit schedule property and also dispossessing her from the suit schedule property and also not to demolish the compound wall in respect of the suit schedule property.
The counter claim of the defendant against the plaintiff is hereby dismissed.
Draw decree accordingly.
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE