Bangalore District Court
Sri.P.Thammayanna vs Sri.Ramareddy on 20 February, 2017
IN THE COURT OF XL. ADDL.CITY CIVIL& SESSIONS
JUDGE (CCH-41) AT BENGALURU.
Dated this the 20th day of February 2017.
PRESENT
SRI.JINARALAKAR. B.L.
B.A.,LL.B. (Spl.)
XL Addl. City Civil & Sessions Judge, Bengaluru.
OS.NO.2501/ 1985
Plaintiff : SRI.P.THAMMAYANNA,
Since dead by LRs.
1(a) Smt.Madamma,
W/o. Late Thammaianna,
Aged about 78 years,
R/o. No.24, 8th Cross,
Jakkasandra Road,
Malleshwaram,
Bengaluru-560 003.
1(b) Sri.Ramachandra,
S/o. Late Thammaianna,
Aged about 48 years,
R/o. No.24, 8th Cross,
Jakkasandra Road, Malleshwaram,
Bengaluru-560 003.
1(c) Smt.Prameela,
W/o. B.Srinivasan,
D/o. Late Thammaianna,
R/o. No.64, "Elza Enclave",
Cauvery Nagar, Vaddarapalya,
Agra Main Road, Bengaluru-560
043.
1(d) Kumari,
D/o. Late Thammaianna,
Aged about 38 years,
2 O.S.2501/1985
R/o. No.24, 8th Cross,
Jakkasandra Road, Malleshwaram,
Bengaluru-560 003.
(By Sri.B.Srinvias &
Smt.Leelavathi H.T.
Advocates.)
AND:
Defendants: 1. Sri.Ramareddy,
Hindu, Major,
Managing Partner,
Padmanabha Brick Works,
Ulsoor, Bengaluru.
2. M/s Padmanabha Brick
Works,
By its Managing Partner,
Sri.K.Balakrishna Reddy
Having its Factory and office
at Kundalahalli village,
Doddanekkundi Post, Bengaluru-
560 037.
3.M/s Karnataka State
Financial Corporation,
Asset Re-Construction,
Department No.1,
Thimmaiah Road,
Bengaluru -52,
Represented by its-
General Manager.
(D1& 2: By Sri.K.T.Nanjunda
Gowda, and
Sri.S.G.Krishnamurthy,
Advocates.)
(D3 : By Sri.Gururaj joshi,
Advocate.)
****
3 O.S.2501/1985
i) Date of Institution of 31.07.1985
the suit.
ii) Nature of the suit. Permanent Injunction &
Declaration
iii) Date of the 06.11.2001
commencement of
recording of evidence.
iv) Date on which the 20.02.2017
judgment was
pronounced.
v) Total Duration Year/s Month/s Days
31 06 19
***
JUDGMENT
The plaintiff Sri.P.Thammayanna has filed this suit against the defendants for Permanent Injunction restraining them from interfering with his peaceful possession and enjoyment of the suit schedule property- Vacant Site bearing No.1 out of Sy.No.8 (no more an agricultural land) belonging to ex-Jodi Ranganathapura Village, to the South of the main road leading to Malleshwaram 7th Division, Palace Guttahalli, Bengaluru City, consisting of tiled roof shed put up by him along with stone slabs, bounded on the East by:
H.B.Narasimhaiah's property, West by: Site No.2, North by:
Main Road and South by: Road, measuring East to West 30 4 O.S.2501/1985 feet and North to South 45 feet and to declare that he is in lawful possession and enjoyment of the suit schedule property as absolute owner / title holder and costs, etc. .2. The averments of the plaint in brief are that:
The schedule property originally belonged to one Late Muniveerappa and under an Agreement of Lease dated 05.02.1964, the plaintiff took on lease the schedule property on monthly rent of Rs.25/- in which he began to trade in hay. Thereafter, the plaintiff and the owner Muniveerappa entered into an Agreement of Sale by deed dated 22.11.1974 to sell the schedule property and consequently, a deed of sale was executed by late Muniveerappa on 19.12.1974 and ever since the date of lease, the plaintiff has been in continuous possession and enjoyment of the property trading in hay.
One H.Narasamma and others attempted to interfere with the plaintiff's peaceful possession and enjoyment of the schedule property during December 1974, as a result of which, he was constrained to bring a suit for injunction in OS.No.2487/1975 (present No.OS.1089) on the file of 1st 5 O.S.2501/1985 Munsiiff at Bengaluru with an application for temporary injunction and the Court granted injunction against the said persons and same is still in force. The said suit after the introduction of the City Civil Judge Act was transferred to the Court of the City Civil Judge at Bengaluru and has been renumbered as OS.No.1089/1980, which is pending. The plaintiff after securing title to the schedule property applied to the Corporation of the City of Bengaluru for change of Khata to his name and the endorsement was received by him. The plaintiff inspite of waiting from 20.02.1982 from inspection of the Revenue Inspector and change of Khata, the said statutory body has not moved in the matter.
The defendant who has no manner of right, title or interest to the schedule property, on 30.07.1985 appeared with his workmen and attempted to dig in the schedule property in order to put up a foundation, the purpose being to put up structure, which was prevented by the plaintiff and the defendant left the place threatening to appear again and carry out the same. The plaintiff 6 O.S.2501/1985 apprehends that the defendant being powerful and influential will carryout the said illegal act by dispossessing the plaintiff, in which event it will cause the plaintiff grave injustice and irreparable injury, which cannot be compensated with damages. Hence, he has filed the suit against the defendants for permanent injunction restraining from interfering with his peaceful possession and enjoyment of the suit schedule property and for further reliefs.
The plaintiff was put into possession by purchase from the predecessor-in-title by lawful possession, further from 18.01.1935, later along with the plaintiff by adverse possession also. The defendants cannot invent or create title on semblance of alleged transfer of some properties by forcibly trespassing on the properties and constructing the building after the lapse of more than 12 years from 18.01.1935 inspite of several litigations without any actual possession or lessee from 05.12.1964 having the shed with the owner for dealing with hay grasses and Lorry parts and owner from 22.11.1974. Since the defendants were not 7 O.S.2501/1985 successful in taking or granting possession forcibly because of the exparte order of temporary injunction along with the order to maintain status quo passed in this suit on 03.07.1984, a separate exparte temporary injunction order in favour of the defendant, plaintiff was obtained in OS.No.10639/1985 before the Civil Judge, Mayo Hall on 01.08.1985 and the defendants were successful in their attempts to remove the thatched shed constructed after tiled shed constructed by the plaintiff, it was damaged due to rain along with hay grey lorry parts, movables etc., of the filed inducting tactfully vacant R.N.Ramu, who was the elder son of the defendant, causing irreparable loss and heavy damage, including movable worth more than Rs.50,000/- in the construction put up in laying the order granted in OS.10639/1985 was also continued in the High Court, the suit was dismissed, later order day with the received agreed rents with respect to the part of the sheded building to be constructed and planning to earn more by constructing and utility available building for his own business along with asserted higher rents to be 8 O.S.2501/1985 earned etc., which were forcibly closed due to wrongful taking or granting of possession in the defendant without their riches and influences while this suit is having in particular.
The plaintiff is the absolute owner / title holder in view of the Deed of Sale dated 19.12.1974 and is in possession and enjoyment of the suit schedule property and that neither the defendant No.1 nor defendant No.2 or anybody else can claim any manner of right, title to the same and claim sought to be made by them will not in any way affect his right to the schedule property. It is clear under the facts and circumstances of the case that the defendants cannot have any right or claim to the suit schedule property and their claim if any is false and without any basis whatsoever. The plaintiff having previously been dispossessed during the pendency of the suit, thereafter, by virtue of the orders passed by this Court, the possession has been lawfully delivered to him and he continues to be in possession and enjoyment of the 9 O.S.2501/1985 schedule property to this day. Hence, the plaintiff has filed the present suit.
.3. In pursuance of summons, defendant Sri.Ramaiah Reddy appeared through counsel and filed written statement denying the material averments of the plaint regarding the schedule property originally belonged to late Muniveerappa, taking the same on lease on monthly rent, the plaintiff began to trade in hay, entering into an Agreement of Sale, subsequently, execution of Sale Deed by late Muniveerappa on 19.12.1974, since then, the plaintiff was in continuous possession and enjoyment of the property, trading in hay, the plaintiff applying to the Corporation for change of Khata, non-move of statutory body in the matter, his (defendant ) no right, title, interest to the property, alleged interference by digging in order to put up foundation, etc. Further this defendant contended that Sri.S.Krishnappa-Advocate practicing at Bengaluru had filed a suit in OS.No.21/1934-35 (long anterior to coming into force of the Inams Abolition Act), on the file of the 10 O.S.2501/1985 District Judge, Bengaluru for partition and possession of his share in the village of Jodi Ranganathapura. Among others, one Muniveerappa through whom, the plaintiff now seeks to lay claim to the schedule property was the defendant No.133. By judgment in OS.No.21/34-35 dated 15.09.1958, the learned District Judge, considering the various circumstances leading to the rights of various parties and on discussion of the facts and circumstances has held that the said Muniveerappa was not entitled to anything and he had not established right to any land in the said Jodi village. The said Muniveerappa challenged unsuccessfully the said judgment in RA.No.137/1959 on the file of Hon'ble High Court of Mysore and the said appeal was dismissed. Thereafter, there was further proceeding in SCALP No.1255/1965 on the file of Hon'ble Supreme Court of India, which was also dismissed. Such being the case, subsequent to the decisions of the various competent Courts, as is apparent from the plaint averments, the plaintiff appears to have racketeered in purchase. The plaint is unnecessarily prolix and deals with 11 O.S.2501/1985 the absolutely irrelevant and unnecessary matter and seeks to spin out a case on the basis of inadmissible and got up documents without notice to the predecessors-in- title of this defendant.
The property described hereunder was part of the land purchased by one late Krishnaswamy Pillai as early as 18.01.1935 that was the subject matter of the suit in OS.No.21/1934-35. Under the judgment and decree in OS.No.21/1934-35, confirmed in RA No.137/1959 and SCALP No.1255/1965, the said land was allotted exclusively to the share of Krishnaswamy Pillai, who was defendant No.23 in the said OS.No.21/1934-35 and after his death, his Legal Representatives were in possession. It was in the same judgment that the rights claimed by Muniveerappa were negatived. Krishnaswamy Pillai's heirs who were in actual possession of the entire property, sold the property referred to herein, namely all that piece and parcel of vacant site bearing No.1, situated at 2nd Main, Rajamahal Guttahalli (Muneswara Block) Corporation Division No.7, Bengaluru City, measuring East to West 50 12 O.S.2501/1985 feet, North to South 70 feet and bounded on the East by property of Narasimhaiah, West by: proposed Road, North by: Main Road leading to Malleshwaram and South by:
property of Keshavan to one A.Vadivelu under a deed of sale dated 12.06.1967. The said A.Vadivelu in turn sold the same under a deed of sale dated 31.12.1970 to one Sri.Bhajanlal and from the said Bhajanlal, the defendant has acquired title to the said property under a deed of sale dated 26.12.1980. After the sale in his favour, A.Vadivelu was put in actual possession and subsequent to the sale by him, possession went to Bhajanlal and the said Bhajanlal has delivered actual possession to the defendants. As there was a mistake in mentioning the Corporation Division number, a Rectification Deed was made on 02.11.1981. The Corporation of City of Bengaluru had registered the Khata of the above property in the names of A.Vadivelu, Bhajanlal and the defendants after the respective Sale Deeds in their favour. Each of the purchasers has paid Corporation taxes for the respective periods. The vendor of the defendant has also paid layout charges to the 13 O.S.2501/1985 Corporation. After having purchased the property and obtained possession, he started construction of building and stage of the construction is casting upto RCC roofing. The plaintiff was never in possession, the so-called Lease Deed is inadmissible and cannot be acted upon and even otherwise, the identity is not established. The alleged Lease Deed and Sale Deed in favour of the plaintiff are hit by the doctrine of lis pendence. The very basis of the title claimed by the plaintiff being the non-existent the various got up documents, which are obviously maneuvered to be got up by a systematic process of fraud cannot assist the plaintiff as long anterior a Court of competent jurisdiction has definitely found against the existence of any right in Muniveerappa. While assuming without admitting the plaintiff had any right, he would have lost the right if any by non-user over a long period. The defendants' rights are intact and have got plan and license in their favour for construction of building. The plaintiff is motivated only by a desire to extort money and having slept over the matter 14 O.S.2501/1985 for over a statutory period has now no right to file baseless, vexatious and frivolous suit.
The defendants have filed a suit in OS.No.10639/1985 on the file of learned VIII Addl. City Civil Judge, Bengaluru (CCH.18) against the plaintiff and 2 others and obtained an ad-interim order of temporary injunction. The plaintiff herein as arrayed as 1st defendant in that suit. The plaintiff contested the matter and after elaborate arguments, the learned Judge was confirmed the injunction and made it absolute. One T.Ramaiah claiming a right in the suit schedule property filed a suit in OS.No.2818/1985 against this defendant and another on the file of XI Addl. City Civil Judge (CCH.14) and had obtained an order of ad-interim temporary injunction. This defendant contested the matter and after arguments, the learned Judge has vacated the order of temporary injunction. The suit is barred by limitation and prays to dismiss the suit with exemplary costs. 15 O.S.2501/1985 .4. Subsequently, the defendant No.2 impleaded in the suit and defendant No.2 adopted the written statement of the defendant No.1.
.5. As the plaintiff got amended the plaint, the defendant No.1 has filed additional written statement and same is adopted by the defendant No.2.
.6. In the additional written statement, these defendants denied the averments / allegations of the plaint at Paragraph-6(c) regarding plaintiff is the absolute owner / title holder in possession and enjoyment of the suit schedule property, they have no right or title to the schedule property, their claim will not affect the right of the plaintiff, previous dispossession during pendency of the suit and lawful delivery of possession to the plaintiff, his continued possession and enjoyment of the same, etc. Further contended that the property claimed by the plaintiff as described in the plaint schedule is not identifiable property as the site in Sy.No.8 of Ranganathapura Village lost its character of agriculture. 16 O.S.2501/1985 According to Order VII Rule 3 CPC, the plaint shall specify the number or boundary of the property as recorded in the records of BBMP, when the property situated within the jurisdiction of BBMP. The suit filed is in violation of Or.VII Rule 3 of CPC and same is not maintainable in law. The plaintiff originally filed the suit for the relief of permanent injunction claiming title and possession. The 1st defendant has filed the written statement on 18.11.1985 itself disputing and denying the plaintiff's title and possession to the property claimed by him. The amendment application IA.4 to include the relief of declaration of title came to be filed on 10.07.1991. The cause of action for the relief of declaration of title arose on the day, 1st defendant denied title in the written statement filed on 18.11.1985. The relief of declaration has not been sought within a period of 3 years from the date of accrual of cause of action, as such, the relief of declaration is barred by law of limitation.
The plaintiff is neither the owner nor in possession of the property claimed by him. The plaintiff has filed suit on 31.07.1985, seeking relief of injunction in respect of vacant 17 O.S.2501/1985 site No.1 out of Sy.No.8 belonging to Ex-Jodi Ranganathapura Village, to the South of the main road, leading to Malleshwaram, 7th Division, Palace Guttahalli, Bengaluru, measuring East to West 35 feet and North to South 45 feet, which is described in the plaint schedule. There was no order of injunction in favour of the plaintiff. The property claimed by the defendant bears Municipal No.1, 2nd Main, Muneshwara Block, Corporation Division No.7, measuring East to West 50 feet, North to South 70 feet, which was purchased from Bhajanlal as per the registered Sale Deed dated 26.12.1980 vide Ex.D.5 followed by registered Rectification Deed dated 02.11.1981 rectifying Muniswamy Block, in the original Deed as Muneshwara Block. The Corporation City of Bengaluru has registered Khata of the property in the name of 2nd defendant vide Ex.D.13 and he has constructed 4 storied building on the said site by obtaining licence and sanctioned plan vide LP No.1864/1984-85 dated 15.10.1984. The existence of 4 storied building is evidence by the photographs vide Exs.D.14 to 16. The plaintiff who 18 O.S.2501/1985 has been cross-examined as PW.1 has admitted in the cross-examination at Page-28 of the evidence. .7. The 3rd defendant, KSFC being a Financial Institution had lent the loan to the tenant in occupation of the building referred above. In view of default committed by the said tenant in repaying the loan, the KSFC, i.e., the 3rd defendant took possession of the entire building during 1999 and same was in possession of 3rd defendant. Under the guise of exparte decree dated 23.03.2002 passed in the case, the plaintiff illegally dispossessed the 3rd Deputy Commissioner on 01.01.2003 without due process of law. The exparte judgment and decree dated 23.03.2002 passed by this Court has been set aside by the Hon'ble High Court of Karnataka on 17.04.2003 in RFA No.317/2003.
In Ex.1715/2002, the 3rd defendant KSFC filed an application under Or.21 Rule 99 CPC as an objector requesting the Court to put the KSFC in possession of the suit schedule property, which was illegally taken 19 O.S.2501/1985 possession by the plaintiff by virtue of exparte decree, which was set aside by the Hon'ble High Court as stated above. The plaintiff as Decree-holder in the said Execution case has filed a memo to enter full satisfaction of the decree, but the Court did not accept the delivery of possession to the plaintiff and delivery of possession of the schedule property to the plaintiff was not recorded. In Order dated 19.04.2003, in Ex.No.1715/2002, this Court has observed that early disposal of the said application filed by the KSFC for redelivery and till then, the plaintiff was restrained from alienating or letting the suit schedule property to third parties and said order is in force. The delivery of possession of the property on the basis of the exparte decree was set aside by the Hon'ble High Court in RFA No.317/2003. The memo filed by the plaintiff in Ex.No.1715/2002 for recording delivery of possession has not been accepted by the Court and application filed by the KSFC for redelivery of the suit schedule property is pending for consideration and prayed to dismiss the suit with costs and order for redelivery of the schedule 20 O.S.2501/1985 premises to the defendants on the application filed by the 3rd defendant in Ex.No.1715/2002.
.8. The defendant No.3 subsequently impleaded as party to the suit and filed written statement stating that the suit filed by the plaintiff is frivolous, vexatious and neither maintainable under law or on facts. The plaintiff is an utter stranger and has no manner of right, title or interest over the properties, which he is illegally occupying. The allegations in Para-3 are totally bereft of truth and substance. As per the judgment of this Court dated 23.03.2002 shows that Muniveerappa was not at all the owner of the said properties and the said properties does not belong to him. When such being the case, plaintiff purchasing the said properties is merely a tell tale story. In the reasoning given by the learned Judge in the said order that the said Muniveerappa even preferred SCALP No.1255/1965 on the file of Hon'ble Supreme Court, same was dismissed. When Muniveerappa himself was not the owner, claim of the plaintiff is totally atrocious. 21 O.S.2501/1985
The averments made at Para-4, this defendant is not aware of the suit filed by the plaintiff against Narasammma and no knowledge with regard to the same. The allegations made at Para-5, the plaintiff will not get any title or interest over the properties, therefore, the authorities who have to issue Khata have not issued the same. The averments made at Para-6 are also not true. The 1st and 2nd defendants have offered the properties, which is illegally under the occupation of the plaintiff to this defendant Corporation long back. The plaintiff is not owner of the said properties and his claim as ownership of the property is totally unfounded. The averments made at Para-6 (a) are also false and baseless. When the Hon'ble Supreme Court itself has held that said Muniveerappa was not at all owner of the property and his case came to be dismissed, putting plaintiff in possession of the schedule properties does not arise and his claim as to the adverse possession is totally ridiculous. There are plenty number of documents produced by this defendant Corporation and question of adverse possession also 22 O.S.2501/1985 unfounded. The contents of Para-6(b) are not known to this defendant. The cause of action is imaginary one. Mesne profits sought by the plaintiff does not arise for consideration. Since he is now in illegal occupation of the properties, which are held by the Corporation for which he has to pay mesne profits to this defendant. The prayer sought for by the plaintiff does not arise for consideration.
The schedule properties what has been mentioned in the schedule is totally different. The schedule properties were taken over by this defendant consists of 4 storied building in order to grab the valuable asset, plaintiff has ventured into such an adventure. The plaintiff has no manner of right, title or interest over the properties, which are in his illegal occupation. The defendant No.3-M/s. Karnataka State Financial Corporation has been established by the Government of Karnataka for the State of Karnataka under Sec.3 of the State Financial Corporation Act, 1951 (A Special Central Enactment) and has been carrying on its functions specified in Section 25 of the said Act. In accordance with Sec.24 of the Act, the applicant 23 O.S.2501/1985 Corporation is the only statutory public financial Institution established in the State of Karnataka with the object of rendering financial assistance to Industrial concerns and is wholly owned by the State Government. The moneys advanced and lent by it to the industrial concerns are in the nature of public moneys collected by way of refinance loans from small industries development bank of India and other Central Public Financial Institutions in addition to the public money made available by the State Government and also raised by way of debentures, Corporation has to deal with these funds on business principles with due regard being had to the interest of Industry, commerce and the general public as required by Sec.24 of the Act and for this purpose in accordance with required financial discipline. This defendant get impleaded as a party to the suit in order to save the property, which is in illegal occupation of the plaintiff has been given as collateral security to this defendant by the 1st and 2nd defendants. They are due in a huge amount of money to M/s. KSFC. This defendant tried to implead as a party to the appeal filed by the 1st and 2nd 24 O.S.2501/1985 defendants against the plaintiff. The Hon'ble High Court by its order dated 17.04.2003 has set aside the judgment and decree of the trial Court in OS.No.2501/1985. When such being the case, the plaintiff has no manner of right to squat on the property belonging to this defendant who had taken over the properties as early as on 15.04.1999, same was dispossessed from their hands by the plaintiff illegally without due process of law on 01.01.2003.
.9. OS.No.2501/1985 as well as Execution Case No.1715/2002 filed by the plaintiff does not include this defendant as a party to the proceedings and had no knowledge of the cases filed by the plaintiff. Hence, the judgment and decree passed on 23.03.2002 by the Court will not does not bind this defendant and it is null and void against this defendant. Although 1st and 2nd defendants have preferred an appeal before the Hon'ble High Court, there was no whisper about the property in question in the said appeal, which is more fully given as collateral security. The suit filed by the plaintiff itself is a collusive suit with an oblique motive and intention to defraud and to deceive this 25 O.S.2501/1985 defendant recovering their legally recoverable dues from the defendants No.1 and 2, the collateral security owners of the suit schedule property. At no point of time, this defendant had any knowledge or information with regard to filing of this suit by the plaintiff neither 1st and 2nd defendants have informed about the case that was filed against (schedule property) the collateral security, which is given to this defendant. The plaintiff with an oblique and ulterior motive after obtaining the final order in the said suit writes a letter, which was received by the Corporation on 11.09.2002 along with a caveat copy of which he had filed it before the Hon'ble High Court to this defendant stating that he had filed a suit against the suit schedule property. Whatever the information the plaintiff had provided in that letter as well as the caveat, following those information was able to find out in the cause list, the Execution case filed by the plaintiff only on 27.12.2002. Hence, as an objector an application was came to be filed under Or.XXI Rule 97 read with Sec.151 CPC in the said 26 O.S.2501/1985 Execution case in the interest of Corporation in particular and public money and its interest in general. .10. Along with the said application, other two applications were also filed under Sec.151 CPC for recalling the order dated 22.11.2002 issuing Delivery Warrant with police help to break open the lock and also an application for advancement of the case posted on 19.03.2003 to 01.01.2003. Although at 3.00 p.m. the applications came up on the very day the Execution Court posted the matter for objections and to hear the matter on 04.01.2003 all the copies of applications were served well in advance to the Advocate for the plaintiff on 30.12.2002 itself. The plaintiff is well aware of the same. Knowing fully well there is an obstruction caused by this defendant without even informing the Court with regard to obstruction, the plaintiff has connivingly thrown out this defendant out of the schedule premises with police help where he is illegally residing there. This is all done in the interest of the defendant Corporation in particular and also to protect the public money and its interest in general, to protect the 27 O.S.2501/1985 property from the hands of a stranger. In view of the forceful dispossession, this defendant has filed another application under Or.XXI Rule 99 r/w Sec.151 CPC before the executing Court for restoring back possession of the schedule property. This defendant sanctioned loan amounting to Rs.80,00,000/- to a partnership firm called as M/S.Kartik Impacts (a partnership firm registered under the Indian Partnership Act 1932) at the request of the partners of the firm for manufacturing of readymade garments at No.1, 2nd Main, Palace Guttahalli, Vinayaka Circle, Bengaluru-3 as per the sanction communication letter dated 24.07.1996. One of the terms and conditions of the sanction communication is that, the said firm has to give the said schedule property as collateral security for which the said firm as well 1st and 2nd defendants had agreed. The partners of the said firm have also entered into a loan agreement dated 01.08.1996 agreeing with the terms and conditions of the sanction the same. 28 O.S.2501/1985
The partners of M/s.Padmanabha Brick Works and its partners-1st and 2nd defendants and M/s. Kartik Impacts have offered the schedule property bearing No.1, 2nd Main Road, Rajmahal Guttahalli (Muneshwara Block, Corporation Division No.7), Bengaluru-3, bounded on East by: Property of Sri.Narasimhaiah, West by: Road, North by: Main Road leading to Malleshwaram and South by: Property of Sri.Keshavan as collateral security in favour of this defendant. Partners of the firm M/s. Padmanabha Brick Works as sureties agreed that as security to the loan amount of Rs.80,00,000/- sanctioned by the Corporation to M/s. Kartik Impacts shall offer the schedule properties by deposit of Title Deeds with the Corporation an intent to create security thereon in favour of this defendant for due repayment of the loans to an extent of Rs.60,00,000/- of all the sums lent and advanced by the Corporation together with interest, costs, charges, etc., for which an agreement dated 01.08.1996 was executed by partners of M/s. Padmanabha Brick Works (defendants No.1 and 2). The said M/s.Kartik Impacts as well as 1st and 2nd 29 O.S.2501/1985 defendants have also entered into a Letter of undertaking creating equitable mortgage by deposit of Title Deeds of the schedule property. Despite of terms and conditions as well as pre-installment notices and demands made, the partners of the firm M/s.Kartik Impacts as well as M/s.Padmanabha Brick Works have committed default in repayment of installments. Therefore, notices dated 03.09.1998 were issued under Sec.29 of S.F.C's Act 1951 on both of them. Despite of the same, both the parties have committed defaults in payment of dues. The Corporation had no other go other than taking over the collateral security offered by the said firm. The Corporation by its order dated 15.04.1999 ordered the properties to be taken over under Sec.29 of the S.F.C.'s Act, 1951. As per the order of Mahazar dated 15.04.1999 was drawn and took over the properties. After taking over the property, security personnel were also deployed to guard the properties. Till the date of dispossession, security personnel who were appointed by the Corporation were guarding the said properties. There was an agreement 30 O.S.2501/1985 dated 15.04.1999 entered into between Corporation and security agency with regard to guarding the schedule properties. Since the date of takeover the suit schedule properties were in possession of the Corporation. Ever since then, this defendant was trying to sell the assets by public auction of the property by incurring huge expenses for paper advertisements. This defendant has published paper advertisements as many as 7 times. After taking so many measures possession of the schedule property, which was snatched away by the plaintiff on 01.01.2003 illegally without due process of law. The total due payable by M/s.Kartik Impacts as well as the 1st and 2nd defendants is amounting to Rs.1,63,59,267/- as on 28.12.2002 along with future interest. All the relevant original documents with regard to title of the property deposited with this defendant and created an equitable mortgage by the partners of 2nd defendant firm M/s.Padmanabha Brick Works, the owners of the schedule property bearing No.1, 2nd Main, Rajmahal Guttahalli (Muneshwara Block) Corporation Division No.7, Bengaluru-3. The plaintiff at no 31 O.S.2501/1985 point of time was in possession of the suit schedule property, he is not all owner of the same, he along with 1st and 2nd defendant in collusion have obtained the judgment and decree. The plaintiff is trying to knock off the property from the hands of the defendants. This defendant was not aware of the fact that he has filed the said suit. Although 1st and 2nd defendants have offered the said property as collateral security, they have also not revealed the fact that the plaintiff has filed the suit.
.11. The property No.1, 2nd Main Road, Rajmahal Guttahalli, (Muneshwara Block), Corporation Division No.7, Bengaluru-3 was sold by one Sri.Bhajanlal to M/s.Padmanabha Brick Works for a consideration of Rs.48,000/- by a Sale Deed dated 26.12.1980 along with Rectification Deed. In that Sale Deed, how the property has come to 1st and 2nd defendants from 1935 to 1980 is clearly shown. The Encumbrance Certificate dated 09.10.1978 shows that vacant site of the said property was there in the hands of one Sri.Vadivelu, he sold to one Sri.Bhajanlal for a consideration of Rs.15,000/-. 32 O.S.2501/1985 Thereafter, Sri.Bhajanlal has sold the property to partners of 2nd defendant firm for a consideration of Rs.48,000/-, it is crystal clear from the Sale Deed, which they got it executed and Encumbrance Certificate dated 20.09.1982 makes amply clear that the partners of M/s.Padmanabha Brick Works are the absolute owners of the said property. After purchasing the vacant site by the 2nd defendant and its partners, they have put up a commercial building consisting of 4 floors and they sought permission to occupy the commercial building from Bengaluru Mahanagara Palike,. The loanee M/s.Kartik Impacts was doing their business at the said premises. The Corporation had written a letter to Police Station with regard to threat from strangers to the property on 26.12.2002. Recently, the officials of the defendants had visited the schedule premises where they have noticed a board put up by the plaintiff "To Let" the properties. There is grave danger of alienation of the property by plaintiff. Although Execution Court has granted injunction against the plaintiff and in favour of this defendant, the same is being repeatedly 33 O.S.2501/1985 violated by the plaintiff. In fact, the schedule properties were taken over by the defendant for default committed by the 1st and 2nd defendants under Sec.29 of State Financial Corporations Act 1951. The property was given by them as collateral security. That aspect of the matter was never revealed in their appeal. The defendants No.1 and 2 have deposited the Title Deeds of the immovable property with this defendant, 1st Charge over the said immovable property is also rests with this defendant Corporation. This defendant was in possession of the said property and it was safeguarded by the security guards engaged by the Corporation till the date of dispossession by the plaintiff forcefully and illegally without any valid reason. The property was vested with this defendant after taking over the same and prays to dismiss the suit with exemplary costs.
.12. On the above pleadings of both parties, following issues and additional issues have framed:
ISSUES DATED 03.03.1986
1. Whether plaintiff proves that he was in lawful possession of the suit property on the date of the suit?34 O.S.2501/1985
2. Whether plaintiff is entitled for permanent injunction prayed for?
3. Whether the suit is not maintainable as contended?
4. To what other reliefs, if any, plaintiff ISSUES DATED 16.12.1988
1. Whether plaintiff proves that, he is in lawful possession of the suit property?
2. Whether plaintiff is entitled to permanent injunction sought for?
3. To what reliefs and order the parties are entitled to?
ADDITIONAL ISSUES DATED 11.12.2008
1. Whether the plaintiff proves his ownership over the suit property?
2. Whether the defendant No.3 got right of charge over the suit property?
ADDITIONAL ISSUES DATED 03.11.2010
1. Whether defendants No.1 & 2 prove that they are the absolute owners and in possession of the suit property as alleged in Para-10 of their written statement?
2. Whether the defendants No.1 & 2 further prove that suit is barred by limitation as alleged in Para-15 of their written statement?
35 O.S.2501/1985.13. In support of the case, the plaintiff himself examined as PW.1, 3 witnesses as P.Ws.2 to 4, got marked documents at Ex.P.1 to Ex.P.31 and closed the side. The defendant No.1 himself examined as DW.1, got marked documents at Ex.D.1 to Ex.D.32 and the defendants No.1 and 2 closed their side. The defendant No.3-KSFC got examined its Manager as DW.2, got marked documents at Ex.D.33 to Ex.D.52 and closed the side. During the pendency of the suit, the plaintiff - P.Tammayanna died and his Legal Representatives brought on record. .14. Heard arguments on both side.
.15. My answers to the above Issues and Additional Issues are:
Issue No.1 & 2 dated: 03.03.1986 & In the negative.
Issue No.1 & 2 dated: 16.12.1988 :
Issue No.3 dated 03.03.1986 : Suit is
maintainable.
Issue No.4 dated 03.03.1986
& As per final
Issue No.3 dated 16.12.1988 : order.
Additional Issue No.1 dated In the negative.
11.12.2008.
36 O.S.2501/1985
Additional Issue No.2 dated In the
11.12.2008. affirmative.
Additional Issues No.1 & 2 dated In the
03.11.2010. affirmative.
For the following reasons:
REASONS
.16. ISSUES No.1 & 2 DATED 03.03.1986, ISSUES NO.1 & 2 DATED 16.12.1988, ADDITIONAL ISSUES NO.1 AND 2 DATED 11.12.2008 & ADDITIONAL ISSUE NO.1 DATED 03.11.2010:
As these Issues are connected to each other, I have taken all together for discussion for the sake of convenience and to avoid repetition.
The plaintiff contended that he is the owner in possession of the suit schedule property having taken the same on lease from its owner late Muniveerappa under an Agreement of Lease dated 05.02.1964 trading in hay, thereafter, entering into Agreement of Sale dated 22.11.1974 and thereafter, having purchased the same from late Muniveerappa through registered Sale Deed dated 19.12.1974, the defendants No.1 and 2 have to 37 O.S.2501/1985 manner of right, title over the same and tried to interfere with the schedule property and attempted to dig in the same to put up foundation, etc. Per contra, the defendants No.1 and 2 denied the plaintiff's title, possession over the suit schedule property and interalia contended that they are the absolute owners in possession of the suit schedule property having purchased through registered Sale Deed dated 26.12.1980 from Bhajanlal and constructed the building, etc. .17. To substantiate respective contentions of parties, the plaintiff himself examined as PW.1 who in his evidence stated regarding doing Ragi grass business, asking Muniveerappa to provide space for business and taking the property on rent, execution of Rent Note by Muniveerappa in his favour as per Ex.P.1, doing hay stack vending business and after taking the schedule premises, constructing thatched shed, taking the same on lease, interference of Smt.Narasamma, filing the suit in OS.No.2587/1975 renumbered as 1089/1980, execution of Sale Deed on 27.12.1974 as per Ex.P.10. Further 38 O.S.2501/1985 examination in chief, PW.1 stated regarding interference of the defendants with his possession and seeking amendment of pleading to restore possession and declaration of ownership, etc., and further in the additional affidavit evidence stated regarding absolute owner in possession of the schedule property, alienation of the same by its owner Sri.Muniveerappa, his continuous uninterrupted possession, during the year 1964, the schedule property forms part of Ex-Jodi Ranganathapura Village, the property claimed by the defendants situated at Muneshwara Block, the land to an extent of 4-acres said to belong to late Kirshnaswamy Pillai is different and has nothing to do with the schedule property, no right, title of Krishnaswamy Pillai or Bhajanlal or anybody including the 1st defendant, 3rd defendant-KSFC is stranger to the suit schedule property and incorrect that it has got a charge over the same, their claim will not affect his right on the schedule property, the defendants' claim is false, dispossession during the pendency of the suit illegally and by virtue of order passed by the Court, delivery of 39 O.S.2501/1985 possession to him and continued to be in possession and enjoyment of the schedule property, etc., and got marked documents at Ex.P.1 to Ex.P.31.
.18. The plaintiff got examined a witness -Mohammed Nurullah as PW.2 who in his evidence stated regarding doing vulcanizing business, acquaintance with the plaintiff, plaintiff providing him to place to do vulcanizing business, execution of Lease Deed in his favour in 1975 and execution of Rent Note as per Ex.P.10 and identified his signature at Ex.D.10(a), payment of advance, same adjusting towards rent, executing another Rent Note as per Ex.P.11 and identified his signature at Ex.P.11(a), the plaintiff providing a space measuring 8 feet X 10 feet situated behind the portion, which was in occupation of the plaintiff. Ex.P.4-Photo of his shop and he is shown as standing position in Ex.P.5 and further stated regarding galata during 1985 on Saturday, four members and four lorries came and taking away his belongings, the servant of PW.1 Ramu connived with the defendants, the defendants taking away all belongs, etc. 40 O.S.2501/1985 .19. The plaintiff got examined a witness -Nanjappa as PW.3 who in his evidence stated regarding purchase of house site from Muniveerappa, construction of house on said site, alienation of remaining property to somebody by Muniveerappa, after formation of sites, alienation of site to Kirshnaswamy Pillai by Muniveerappa, the plaintiff selling hay, Muniveerappa providing plot to the plaintiff to park the lorry and do business, he (PW.3) advising the plaintiff to purchase the land from Muniveerappa, he acting as a witness in 1964 to Rent Note and identified his signature at Ex.P.1(a), after purchase of site by the plaintiff, Narasamma put forthcoming claim, in that connection filing suit, he given evidence in that suit and further stated that some persons coming in 3 to 4 lorries, forcibly dispossessing the plaintiff, later he came to know of the name of the person as Reddy, the said Reddy connived with Ramu dispossessing the plaintiff, etc. .20. The plaintiff got examined another witness - N.Srinivasa Raju as PW.4 who in his affidavit evidence stated regarding knowing the plaintiff and purchasing hay 41 O.S.2501/1985 from him kept in the schedule property, knowing Muniveerappa, Muniveerappa was the owner of land in Sy.No.8 of Jodi Ranganathapura, purchase of site No.1 - schedule property by the plaintiff from said Muniveerappa vide Sale Deed, plaintiff's occupation of the property prior to purchase, his possession and enjoyment of the same, etc. .21. Per contra, the defendant No.1 himself examined as DW.1 who in his affidavit evidence stated that plaintiff's claim in the suit that he is the owner of the schedule property is incorrect, the same never belonged o Muniveerappa or his father who had no right, title or interest to lease the same to the plaintiff or agreed to sell the same under an Agreement of Sale and to sell the same under registered Sale Deed dated 19.12.1974, the said documents are false and collusively created documents do not confer title on the plaintiff, who was not in possession of the schedule property either on the date of suit or at any time earlier to that date, the plaintiff has not been able to obtain Khata and not paid betterment fees or 42 O.S.2501/1985 property tax, plaintiff's application for transfer of Khata rejected by the Corporation authorities and Khata was made in the name of defendant's firm - M/s.Padmanabha Brick Works on the basis of the registered Sale Deed dated 26.12.1980 executed by Sri.Bhajanlal, the plaintiff has no legally valid claim for the property and kept quiet and has not questioned the rejection of Endorsement dated 22.02.1975, the Khata was not in the name of plaintiff's vendor Muniveerappa, sketch Ex.P.19 does not show the correct and exact position and same is not a valid document, one Krishnappa had filed a suit for partition on the file of District Court, Bengaluru in OS.No.21/1934-35, for partition of Jodi Kayamgutta Village called as Ranganathapura, Sri.M.Muniveerappa - plaintiff's vendor was defendant No.133 and M.Krishnaswamy Pillai was defendant No.23 in the said suit, during the pendency of the original suit, M.Krishnaswamy Pillai died and his Legal Representatives were brought on record in appeal R.A.No.137/1959 filed by M.Muniveerappa before the Hon'ble High Court of Mysore at Bengaluru, in the said suit 43 O.S.2501/1985 claims for land made by M.Muniveerappa were considered and held that he had no lands and his claims negatived, it was held that he was making exaggerated claims to different extents of land, Muniveerappa filing said appeal, against the judgment and decree of District Court, dismissal of said appeal holding he does not own any land as claimed by him under Gift Deed or under any Release Deed of his father, Muniveerappa filing SCALP (Civil) 1255/1965 before the Hon'ble Supreme Court, dismissal of the same, his claim under Gift Deed, Release Deed negatived by the Hon'ble Apex Court, in view of these decisions, it is concluded that Muniveerappa had no lands and he had no right to any land as on 06.12.1965, the alleged Agreement of Sale dated 22.11.1974 and Sale Deed dated 19.12.1974 are invalid documents do not confer any title or possession in the plaintiff and cannot maintain the suit for declaration, plaintiff was not in possession of the schedule property as on the date of the suit and not entitled for any reliefs, the schedule property is a portion of the land bearing No.1, situated at 2nd Main 44 O.S.2501/1985 Road, Rajamahal Guttahalli, Muneshwara Block, Corporation Division No.7, Bengaluru City, measuring East to West 50 feet and North to South 70 feet purchased by the partnership firm / 1st defendant under registered Sale Deed dated 26.12.1980 and further stated regarding registered Sale Deed dated 18.01.1935 executed by Muninanjappa, his wife-Mallamma, son-Muniveerapa, no retaining any extent of land in favour of one M.Krishnaswamy Pillai, after death of said Pillai, his legal heirs alienating the said property in favour of A.Vadivelu under a registered Sale Deed dated 12.06.1967, alienation of the same by A.Vadivelu in favour of Bhajanlal under registered Sale Deed dated 31.12.1970 and in turn alienation of the same by Bhajanlal under registered Sale Deed dated 26.12.1980 in favour of M/s.Padmanabha Brick Works, delivery of possession , subsequently, execution of Rectification Deed dated 02.11.1980, transfer of Khata in the name of said persons and payment of taxes and layout charges by Bhajanlal, transfer of Khata in the name of firm, payment of tax, obtaining sanctioned plan for 45 O.S.2501/1985 construction of building, obtaining interim order of injunction in OS.No.10639/1985, confirmation of the same, after hearing the parties, dismissal of the appeal filed by the plaintiff herein before the Hon'ble High Court, furnishing original Sale Deed and Rectification Deed to defendant No.3 in connection with security given by them in respect of the loan borrowed by the tenant, claim of the possession that he is the owner of the suit schedule property is incorrect, etc., and got marked documents at Ex.D.1 to Ex.D.32.
.22. The plaintiff has produced Rent Note at Ex.P.1, Sale Deed dated 27.12.1974 at Ex.P.10 and Sale Agreement at Ex.P.11 and these documents support his contention regarding taking the schedule property on lease, execution of Agreement of Sale and thereafter, the owner - Muniveerappa executed registered Sale Deed dated 19.12.1974 in his favour, etc. But, Ex.P.1 Rent Note is not signed by the said Muniveerappa. On the other hand, the defendants No.1 and 2 in the written statement denied the plaintiff's title to the schedule property, his possession and 46 O.S.2501/1985 enjoyment of the same and interalia contended that plaintiff's vendor-Muniveerappa had no land in Jodi Ranganathapura Village, the alleged Sale Deed do not confer title to the plaintiff, when Sri.S.Krishnappa filed a suit in OS.21/34-35 for partition and possession on the file of the District Judge, Bengaluru, the plaintiff's vendor was defendant No.133, the learned District Judge, considering the various circumstances leading to the rights of various parties and on discussion held that the said Muniveerappa was not entitled to anything and he had not established right to any land in the said Jodi village, Muniveerappa challenged the said judgment in RA.No.137/1959 on the file of Hon'ble High Court of Mysore and the said appeal was dismissed, thereafter, the further proceedings in SCALP No.1255/1965 on the file of Hon'ble Supreme Court of India, was also dismissed, subsequent to the decisions of the various competent Courts, as apparent from the plaint averments, the plaintiff appears to have racketeered in purchase, the property described wherein it was part of the land purchased by one late Krishnaswamy Pillai as 47 O.S.2501/1985 early as 18.01.1935 was the subject matter of the said suit and the said land was exclusively allotted to the share of Krishnaswamy Pillai, who was defendant No.23, after his death, his Legal Heirs were in possession, in the said judgment the rights claimed by Muniveerappa were negatived, Krishnaswamy Pillai's heirs who were in actual possession of the entire property, sold the property- all that piece and parcel of vacant site bearing No.1, situated at 2nd Main, Rajamahal Guttahalli (Muneswara Block) Corporation Division No.7, Bengaluru City, measuring East to West 50 feet, North to South 70 feet and bounded on the East by property of Narasimhaiah, West by: proposed Road, North by: Main Road leading to Malleshwaram and South by: property of Keshavan to one A.Vadivelu under a deed of sale dated 12.06.1967, the said A.Vadivelu in turn sold the same under a deed of sale dated 31.12.1970 to one Sri.Bhajanlal and from the said Bhajanlal, the defendant has purchased and acquired title to the said property under a deed of sale dated 26.12.1980 and they were in possession of the same respectively, as there was 48 O.S.2501/1985 a mistake in mentioning the Corporation Division number, a Rectification Deed was made on 02.11.1981, and they are in possession and enjoyment of the same, Khata registered and constructed a building, etc. .23. The defendants No.1 and 2 have produced certified copy of judgment in RA.No.137/1959 at Ex.D.1, wherein, their Lordships in Page No.73 observed that for the reasons stated in detail above, we find no ground to disagree with the trial Judge's finding in paragraph 110 of his judgment that the 133rd defendant has not established any right to any lands in the suit village of Ranganathapura and the said appeal is dismissed" and this document supports the contention of the defendants regarding plaintiff's vendor-Muniveerappa had no land in Ranganathapura Village. The plaintiff has produced an Endorsement dated 20.02.1982 issued by the Corporation Authority at Ex.P.17 wherein the Corporation Authority has informed him to show the spot to the concerned Revenue Inspector in connection with Registration of Khata of the suit schedule property, but the plaintiff has not produced 49 O.S.2501/1985 any reliable documentary evidence, action taken after issuance of said Endorsement in the matter of Registration of Khata of schedule property in his name. The plaintiff has not produced Khata Certificate or Khata Extract in his name in respect of the suit schedule property to show his possession over the same.
.24. PWs.1 and 2 were examined prior to remand of the suit and after remand, they are not present for their cross- examination, hence, their evidence have no evidentiary value. Though PW.4 deposed regarding purchase of hay from the plaintiff and plaintiff's possession and enjoyment of the suit schedule property, the plaintiff having failed to adduce satisfactory evidence regarding possession and enjoyment of the schedule property, his evidence is not helpful to prove the possession and enjoyment of the schedule property by the plaintiff. Considering the evidence adduced by the opposite party, though the plaintiff has produced Lease Agreements at Exs.P.15, P.16, said to have been executed by one Mohammed Noorulla - PW.2 in favour of the plaintiff in respect of portion of the 50 O.S.2501/1985 schedule property, but PW.2 is not present for his cross- examination after remand of the case and those documents do not came to the aid of the plaintiff to prove his possession and enjoyment of the suit schedule property. The plaintiff has produced Endorsement dated 22.02.1975 issued by the Corporation Authority wherein the Corporation Authority has informed him that Khata transfer of the property is refused and requesting to produce the documents to show how the vendor has acquired the property to consider the request. But, the plaintiff has not produced any documentary evidence having taken action in respect of the Khata of the schedule property in his name after issuance of said Endorsement. The plaintiff has produced certified copy of Sale Deed dated 25.07.1960 at Ex.P.26 and its typed copy at Ex.P.26(a), certified copy of Sale Deed dated 29.01.1973 at Ex.P.27, certified copy of Sale Deed dated 29.01.1973 at Ex.P.29 and its typed copy at Ex.P.29(a), certified copy of Sale Deed dated 06.04.1945 at Ex.P.30 and its typed copy at Ex.P.30(a), certified copy of Sale Deed dated 51 O.S.2501/1985 28.02.1957 at Ex.P.31 and its typed copy at Ex.P.31(a). All these documents are not pertaining to the suit schedule property and they will not support his case. .25. Per contra, the defendants No.1 and 2 have produced certified copy of Sale Deed dated 18.01.1935 executed by Muninanjappa and others in favour of Krishnaswamy Pillai at Ex.D.2 and this document supports their contention regarding plaintiff's vendor-Muniveerappa and his parents have alienated 4-acres of land in favour of said Krishnaswamy Pillai through registered Sale Deed dated 18.01.1935. The defendants No.1 and 2 have produced registered Sale Deed dated 12.06.1967 executed by Smt.Kannammal and others in favour of A.Vadivelu at Ex.D.3, registered Sale Deed dated 13.12.1970 executed by A.Vadivelu in favour of Bhajanlal at Ex.D.4, certified copy of registered Sale Deed dated 26.12.1980 executed by Bhajanlal in favour of M/s.Padmanabha Brick Works- defendant No.2 at Ex.D.5. All these documents support their contention regarding the said schedule property was purchased by A.Vadivelu from LRs of Krishnaswamy Pillai, 52 O.S.2501/1985 purchase of the same by Bhajanlal from A.Vadivelu and thereafter, the defendant No.2-M/s.Padmanabha Brick Works purchase of the same from Bhajanlalthrough registered Sale Deed dated 26.12.1980. The defendants have produced copy of registered Rectification Deed dated 02.11.1981 executed by Bhajanlal in favour of M/s.Padmanabha Brick Works at Ex.D.6 and this document support their contention regarding execution of registered Rectification Deed by said Bhajanlal in respect of the property bearing No.1, situated at 2nd Main Road, Rajamahal Guttahalli, Muneshwara Block, Corporation Division No.7, Bengaluru City, measuring East to West 50 feet and North to South 70 feet purchased by the partnership firm / 1st defendant under registered Sale Deed dated 26.12.1980. The defendants have produced Endorsement at Ex.D.10 wherein the Corporation Authority has assessed the property for Registration of Khata in the name of A.Vadivelu, the defendants No.1 and 2 have produced Betterment charges paid receipt dated 20.06.1974 at Ex.D.11 and it shows payment of 53 O.S.2501/1985 Betterment charges by Bhajanlal. These defendants produced Acknowledgment dated 16.11.1991, which shows issuance of Khata Acknowledgment having transfer of Khata of the property in the name of Padmanabha Bricks. Further these defendants have produced Tax Paid Receipts at Ex.D.17 to Ex.D.29, which shows payment of tax by A.Vadivelu, Bhajanlal and Managing Director of M/s.Padmanabha Brick Works. These defendants have produced certified copy of Order Sheet in OS.No.10639/1985 at Ex.D.30 and certified copy of Order dated 09.09.1985 on IAs.1 & 3 in the said suit at Ex.D.32, wherein the Court has granted exparte injunction and later on allowed IA.1 and dismissed IA.3 and temporary injunction granted in favour of plaintiff made absolute till disposal of the suit. The evidence of DW.1 is supported by the above referred documentary evidence and shows that the defendants No.1 and 2 are the absolute owners in possession of the suit schedule property as alleged in Para- 10 of their written statement.
54 O.S.2501/1985.26. The defendant No.3 has produced loan sanctioned Letter dated 24.07.1996 at Ex.D.33, the Loan agreement dated 03.08.1996 at Ex.D.34, Agreement dated 01.08.1996 executed by Padmanabha Brick Works at Ex.D.35, Letter of Undertaking executed by M/s.Karthik Impacts and M/s.Padmanabha Brick Works at Ex.D.36, Letter dated 09.03.1988 written by KSFC to M/s.Karthik Impacts demanding repayment of loan at Ex.D.37, show cause notice dated 03.09.1998 issued to Padmanabha Brick Works at Ex.D.38, take over proceedings of M/s.Karthik Impacts dated 15.04.1999 passed by the Managing Director of KSFC at Ex.D.39, Mahazar dated 15.04.1999 at Ex.D.40, Letter dated 23.08.2002 written by the defendant No.2 to the KSFC requesting for release of collateral security by agreeing to pay Rs.30,00,000/- at Ex.D.41, Original Title Deed dated 26.12.1980 deposited by the Padmanabha Brick Works at Ex.D.42, Encumbrance Certificates at Exs.D.43 & 44, agreement dated 15.04.1999 taken from Supreme Security Bureau at Ex.D.50 and these documents support its contention regarding availing loan 55 O.S.2501/1985 of Rs.80,00,000/- against the schedule property and furnishing the same as collateral purpose by the 1st and 2nd defendants, failure to repay the loan, taking possession of the property and safeguarded by security guards and it has got right of charge over the suit property. .27. The learned counsel for the defendants No.1 and 2 during the course of arguments submitted that the suit was decreed exparte on 23.03.2002, under the guise of said decree, the plaintiff illegally taken possession of four storied building constructed by these defendants in execution proceedings and thereafter, the said decree was set aside by the Hon'ble High Court of Karnataka in RFA No.317/2003, the plaintiff is liable to restore possession of the said property, these defendants are entitled for restoration of the said property, the plaintiff filed the suit for declaration of ownership has to prove the case independently irrespective of weakness of the defendants and the same is not a ground to grant relief to the plaintiff, the plaintiff who pleaded regarding adverse possession cannot clam title to the property by adverse possession, it 56 O.S.2501/1985 is only defence available to the defendants, etc., and relied upon the following decisions reported in:
2015 AIR (Civil) 917, wherein their Lordships held that:
"Civil Procedure Code, 1908, Sec.144 - Restitution in the light of - True meaning of - Doctrine of restitution is that on the reversal of a judgment, the law raises an obligation on the party which received the erroneous judgment so reversed to make restitution to the other party for what he had lost."
AIR 1966 Supreme Court 948, wherein their Lordships held that:
"Civil P.C. (1908), S.144 - Ex. Parte decree - Execution by Decree holder - Property of Judgment-debtor purchased by Decree-holder
- Decree set aside in appeal and case remanded for fresh disposal - Judgment-
debtor is entitled to restitution even though ultimately after fresh disposed decree is passed in favour of Decree-holder."
(2014) 2 Supreme Court Cases 269, wherein their Lordships held that:
"A. Specific Relief Act, 1963- Ss.34and 5- Suit for declaration of title and possession - Burden of proof in case of - Reiterated, 57 O.S.2501/1985 burden is on plaintiff to establish its case, irrespective of whether defendants prove their case or not - In absence of establishment of its own title, the plaintiff must be non-suited even if title set up by defendants is found against them - Weakness of case setup by defendants cannot be a ground to grant relief to plaintiff."
2014 SAR (Civil) 33, wherein their Lordships held that:
"Adverse possession - Suit for declaration of ownership by adverse possession on the ground that the plaintiff is in possession of the land in dispute for sufficiently long period - Not maintainable - Plea of adverse possession is available only as a defence to the defendant - No declaration of ownership can be sought on the basis of adverse possession in as much as adverse possession can be used as a shield and not as a sword - In case the real / original owner files suit against the person in such possession for Ejectment and / or possession the person in such possession can plead in defence that he has become the owner of the property by adverse possession."
.28. In the instant case, the plaintiff also pleaded regarding adverse possession. He having filed the suit, his 58 O.S.2501/1985 contention regarding adverse possession, the defendants cannot invent or create title on semblance of alleged transfer of some properties by forcibly trespassing on the properties, constructing the building after lapse of more than 12 years, is untenable and he having filed the suit has to prove the case independently irrespective of weakness of the defendants.
.29. The plaintiff who filed the suit is claiming title and possession over the suit schedule property on the basis of Sale Deed dated 19.12.1974 executed by Muniveerappa. The plaintiff has not produced any documents having transferred Khata of the schedule property in his name to show his possession over the same. Further in his cross- examination stated that Muniveerappa had properties at Jodi Ranganathapura Village, but, he do not know details about the same, Ex.P.1 not containing signature of himself and Muniveerappa, he has no documents for having purchased and sold hay stack, Muniveerappa has not shown his previous documents relating to schedule property retained by him, he has not paid tax and 59 O.S.2501/1985 Betterment charges to the Corporation and also admitted that Muninanjappa, his wife-Mallamma and their son- Muniveerappa sold 4-acres of land to Krishnaswamy Pillai on 18.01.1935, further stated that he has not seen any documents, they having retained 2-acres of land, since from the year 1975, he has not made attempt to show original documents got entered his name in Corporation records, he has not produced original documents and not attempted to get enter his name in the Khata, his suit filed against Narasamma has been dismissed after contest, it may be true that Padmanabha Brick Works has obtained licence from the Corporation and constructed 3 storied building on the suit site, while prosecuting the suit, he came to know about the construction of said building by the defendant No.1 in the suit schedule property, the 2nd defendant filed OS.No.10639/1985 and obtained temporary injunction against him (PW.1), he do not know what was the extent of the land owned by his vendor - Muniveerappa at the time of purchase of the suit land. These statements in his cross-examination falsifies his 60 O.S.2501/1985 claim over the suit schedule property, having not filed satisfactory evidence to prove lawful possession over the schedule property and owner of the same and his evidence is not supported by reliable satisfactory documentary evidence. The plaintiff who claims title and possession of the schedule property through his vendor-Muniveerappa who had no land in Jodi Ranganathapura Village as held in the judicial proceedings in RA.No.137/1959. In the said judicial proceedings having held that Muniveerappa had no land in Jodi Ranganathapura Village, the plaintiff's claim title to the schedule property through him is untenable and alleged Sale Deed executed as per Ex.P.10 do not confer any right, title to the plaintiff in respect of the suit schedule property. Hence, the plaintiff has failed to prove that he was / is in lawful possession of the suit schedule property as on the date of the suit, not entitled for permanent injunction as prayed and also failed to prove his ownership over the suit schedule property. On the other hand, the defendants No.1 and 2 prove that they are the absolute owners in possession of the suit schedule 61 O.S.2501/1985 property as alleged in Para-10 of the written statement and defendant No.3 has got right of charge over the suit schedule property. Accordingly, I answered Issues No.1 & 2 dated 03.03.1986, Issues No.1 & 2 dated 16.12.1988 & Additional Issue No.1 dated 11.12.2008 in the negative AND Additional Issue No.2 dated 11.12.2008 in the affirmative & Additional Issue No.1 dated 03.11.2010 in the affirmative.
.30. ADDITIONAL ISSUE NO.2 DATED 03.11.2010:
The defendants No.1 and 2 in their additional written statement contended that originally, the plaintiff filed suit for permanent injunction and they filed written statement on 18.11.1985 disputing and denying the plaintiff's title and possession, the amendment application IA.4 to include the relief of declaration of title came to be filed on 10.07.1991 and cause of action for the relief of declaration arose on the date when they denied the title in the written statement filed on 18.11.1985, relief of declaration has not been sought within 3 years from the date of transfer of 62 O.S.2501/1985 cause of action, as such, relief of declaration is barred by law of limitation, etc. Initially, the plaintiff has filed the suit for bare injunction on 31.07.1985. The defendant-
Ramaiah Reddy has filed written statement on 18.11.1985 wherein he has denied the plaintiff's possession, title over the suit schedule property. Subsequently, the plaintiff filed amendment application (IA.4) seeking amendment with a prayer of declaration on 10.07.1991 and not filed such an application within the period of 3 years i.e., from the date of filing of the written statement. Hence, the defendants No.1 and 2 proves that suit is barred by limitation, accordingly, I answered Additional Issue No.2 dated 03.11.2010 in the affirmative.
.31. ISSUE NO.3 DATED 03.03.1986: The defendants in their written statement Para-7 only stated that the suit for bare injunction is not maintainable, but not pleaded details regarding the same. DW.1 in his evidence also not stated details of the same. In the absence of such detailed pleadings and satisfactory evidence, said contention is 63 O.S.2501/1985 untenable, as such the suit for bare injunction is maintainable and I answered accordingly. .32. ISSUE NO.4 DATED 03.03.1986 & ISSUE NO.3 DATED 16.12.1988: In view of the reasons and discussions on the above Issue Nos.1 to 3 dated 03.03.1986, Issues No.1 & 2 dated 16.12.1988, Additional Issues No.1 & 2 dated 11.12.2008 and Additional Issues No.1 & 2 dated 03.11.2010, I proceed to pass the following:
ORDER Suit of the plaintiff is hereby dismissed.
Parties shall bear their own costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, the transcript print is corrected and then pronounced by me in the open court on this the 20th day of February 2017).
(JINARALAKAR. B.L.) XL Addl. City Civil & Sessions judge, Bengaluru.
ANNEXURE WITNESSES EXAMINED ON BEHALF OF PLAINTIFF: 64 O.S.2501/1985
PW.1 - Sri.P.Thammayanna S/o. Pachappa. PW.2 - Mohammed Nurullah S/o. Mohammed Devansab. PW.3 - Nanjappa S/o. Nanjappa.
PW.4 - N.Srinivasa Raju S/o. Late Narasa Raju @ Rajappa.
DOCUMENTS PRODUCED ON BEHALF OF PLAINTIFF:
Ex.P.1 Rent note.
Ex.P.1(a) Copy of Ex.P.1.
Ex.P.2 to 7 Photographs.
Ex.P.2(a) to Negatives.
7(a)
Ex.P.8 License.
Ex.P.8(a) Renewed License.
Ex.P.9 Copy of complaint given by Ramu.
Ex.P.10 Sale Deed dated 27.12.1974.
Ex.P.10(a) Signature of PW.2.
Ex.P.11 Sale Agreement.
Ex.P.11(a) Signature of PW.2
Ex.P.12 Sketch given by Muniveerappa.
Ex.P.12(a) Portion, which is in occupation of the
plaintiff.
Ex.P.13 Encumbrance Certificate.
Ex.P.14 Lease Agreement.
Ex.P.15 Second agreement.
Ex.P.16 Agreement of the year 1980.
Ex.P.17 Endorsement given by the Corporation
authorities.
Ex.P.18 Endorsement issued by ARO, City
Corporation.
Ex.P.19 Copy of sketch of Jodi Ranganathapura
Village.
Ex.P.19(a) Sl.No.1 is the suit property marked as
Ex.P.19(a).
Ex.P.20 Tippani copy of Sy.No.8 of Jodi
Ranganathapura Village.
Ex.P.21 P.T. Sheet pertaining to property No.2194
as per the sketch.
65 O.S.2501/1985
Ex.P.22 to Property Card, sketch and P.T. Sheet of Ex.P.24. property No.2195 Ex.P.25 Encumbrance Certificate.
Ex.P.26 Certified copy of Sale Deed dated 25.07.1960 executed by Abdul Jabbar in favour of H.B.Narasimhaiah.
Ex.P.26(a) True typed copy of Ex.P.26.
Ex.P.27 Certified copy of Sale Deed dated 29.01.1973 executed by Muniveerappa in favour of Chandra Palan. (Marked subject to production of typed copy) Ex.P.28 Survey Map.
Ex.P.29 & Certified copy of Sale Deed dated Ex.P.29(a) 29.01.1973 with its typed copy. Ex.P.30 & Certified copy of Sale Deed dated Ex.P.30(a) 06.04.1949 and its true typed copy. Ex.P.31 & Certified copy of Sale Deed dated Ex.P.31(a) 28.02.1957 with true typed copy.
WITNESSES EXAMINED ON BEHALF OF DEFENDANTS:
DW.1 - Ramaiah Reddy S/o. Late Abbaiah Reddy. DW.2 - M.Jagannath S/o. Muniswamy.
DOCUMENTS PRODUCED ON BEHALF OF
DEFENDANTS:
Ex.D.1 Certified copy of Judgment in RA
No.137/1959.
Ex.D.2 Certified copy of registered Sale Deed
dated 18.01.1935 executed by
Muninanjappa and others in favour of
Krishnaswamy Pillai.
Ex.D.3 Original registered Sale Deed dated
12.06.1967 executed by Smt.Kanammal
and others in favour of A.Vadivelu.
Ex.D.4 Original Sale Deed dated 31.12.1970
executed by A.Vadivelu in favour of
66 O.S.2501/1985
Bhajanlal.
Ex.D.5 Certified copy of registered Sale Deed
dated 26.12.1980 executed by Bhajanlal in favour of M/s.Padmanabha Brick Works-D2 herein (with Typed copy of Ex.D.5.) Ex.D.6 Certified copy of registered Rectification Deed dated 02.11.1981 executed by Bhajanlal in favour of M/s.Padmanabha Brick Works along with its typed copy.
Ex.D.7 to Encumbrance Certificates.
Ex.D.9
Ex.D.10 Endorsement issued on 04.09.1968.
Ex.D.11 Betterment charges paid receipt by
Bhajanlal dated 20.06.1974.
Ex.D.12 Acknowledgment dated 16.11.1981 issued
in respect of Khata transfer application. Ex.D.13 Letter written by Corporation, Bengaluru on 31.08.1982 to M/s. Padmanabha Brick Works.
Ex.D.14 to Positive Photographs pertaining to suit Ex.D.16 schedule properties.
Ex.D.17 to Tax Paid Receipts.
Ex.D.29
Ex.D.30 Certified copy of Order sheet of
OS.No.10639/1985.
Ex.D.31 Certified copy of IA.No.1 filed in the above
suit.
Ex.D.32 Certified copy of order dated 09.09.1985
passed on IA.I and 3 in the above suit.
Ex.D.33 Sanctioned Letter dated 24.07.1996 for
Rs.80,00,000/- to Karthik Impacts.
Ex.D.34 Loan agreement dated 01.08.1996
executed by M/s.Karthik Impacts.
Ex.D.35 Agreement dated 01.08.1996 executed by
Padmanabha Brick Works.
Ex.D.36 Letter of undertaking executed by
M/s.Karthik Impacts and Padmanbha Brick Works.
Ex.D.37 Letter dated 03.09.1998 written by KSFC
to M/s.Karthik Impacts demanding
67 O.S.2501/1985
repayment of loan.
Ex.D.38 Show cause notice dated 03.09.1998
issued to Padmanabha Brick Works.
Ex.D.39 Take over proceedings of M/s.Karthik
Impacts dated 15.04.1999 passed by
Managing Director of KSFC.
Ex.D.40 Mahazar.
Ex.D.41 Letter dated 23.08.2002 written by
defendant No.2 to the KSFC requesting for release of collateral security by agreeing to pay Rs.30,00,000/-.
Ex.D.42 Original Title Deed dated 26.12.1980 deposited by Padmanabha Brick Works to the KSFC.
Ex.D.43 Encumbrance Certificate.
Ex.D.44 Another Encumbrance Certificate.
Ex.D.45 Letter issued by Deputy Director of Town
Planning filed construction plan of
Padmanabha Brick Works.
Ex.D.46 to Photographs for having taken over of Ex.D.49 Padmanabha Brick Works building. Ex.D.46(a) Negatives.
To Ex.D.49(a) Ex.D.50 Agreement dated 15.04.1999 taken from Supreme Security Bureau for having handed over charge of the collateral security properties.
Ex.D.51 Letter dated 01.01.2003 from the security agency.
Ex.D.52 Letter dated 26.12.2002 written by KSFC to Inspector of Police requesting for protection to the property.
(JINARALAKAR. B.L.) XL Addl.City Civil & Sessions judge, Bengaluru.
68 O.S.2501/1985