Bangalore District Court
Sri. Plague Maheshwari Temple Trust vs Sri.M.Sampathkumar on 10 March, 2020
IN THE COURT OF THE LXXIII ADDL. CITY CIVIL &
SESSIONS JUDGE, MAYOHALL UNIT, BENGALURU.
(CCH74)
Present: Sri.YAMANAPPA BAMMANAGI,
B.A., LL.B., (SPl.,)
LXXIII Addl.City Civil & Sessions Judge
Dated this the 10th day of March, 2020.
O.S. No.25283/2013
Plaintiffs: 1. Sri. Plague Maheshwari Temple Trust,
Having its Registered office at
No.12, Bowee Street, Halasuru,
Bangalore560 008.
Represented by its Managing Trustee
Smt.V.Devamma.
2. Smt.V.Devamma,
W/o.Late.Sri.H.Vasudev,
aged about 66 yrs,
R/at.No.15/1, Bowee Street,
Halasuru, Bengaluru08.
3. Smt.V.Munna,
D/o.Late.Sri.H.Vasudev,
aged about 50 years,
R/at.No.15/1, Bowee Street,
Halasuru, Bangalore08.
4. Sri.V.Srinivas,
2 O.S. No.25283/2013
S/o.Late.Sri.H.Vasudev,
aged about 49 yrs,
R/at.No.15/1, Bowee Street,
Halasuru, Bangalore08.
5. Sri.V.Paramesh,
S/o Late.Sri.H.Vasudev,
aged about 43 years,
R/at.No.15/1, Bowee Street,
Halasuru, Bangalore08.
6. Sri.V.Shivakumar,
S/o.Late.Sri.H.Vasudev,
aged about 40 years,
R/at.No.15/1, Bowee Street,
Halasuru, Bangalore08.
7. Smt.P.Radha,
W/o.Sri.V.Paramesh,
aged about 32 years,
R/at.No.15/1, Bowee Street,
Halasuru, Bangalore08.
8. Smt.S.Rathna,
W/o.Sri.V.Srinivas,
aged about 30 years,
R/at.No.15/1, Bowee Street,
Halasuru, Bangalore08.
9. Smt.S.Lakshmi,
W/o.Sri.V.Shivakumar,
aged about 31 years,
R/at.No.15/1, Bowee Street,
3 O.S. No.25283/2013
Halasuru, Bangalore08.
(By Sri.Gopala Krishna - Adv.)
V/s
Defendants: 1. Sri.M.Sampathkumar,
S/o.Late.Sri.Munilakshmamma,
aged about 40 years,
R/at.No.12, Bowee Street,
Halasuru, Bangalore08.
Since Dead represented by his LRs.,
1(a). Sri.Arun,
S/o.Late.Sri.M.Sampath Kumar,
aged about 30 yrs,
1(b). Sri.Mahesh,
S/o.Late.Sri.M.Sampath Kumar,
aged about 28 yrs,
Both are R/at.No.12, Bowee
Street, Halasuru, Bengaluru08.
2. Smt.M.Varalakshmi,,
D/o.Late.Munilakshmamma,
aged about 39 years,
R/at.No.12, Bowee Street,
Halasuru, Bangalore08.
3. Smt.M.Anitha @ Annamma,
D/o.Late.Munilakshmamma
4 O.S. No.25283/2013
aged about 37 years,
R/at.No.12, Bowee Street,
Halasuru, Bangalore08.
4. Sri.M.Nagaraju,
S/o.Late.Munilakshmamma,
aged about 35 years
R/at.No.12, Bowee Street,
Halasuru, Bangalore08.
5. Smt.M.Manjula,
D/o.Late.Munilakshmamma,
aged about 31 years
R/at.No.12, Bowee Street,
Halasuru, Bangalore08.
6. Smt.M.Bhagyalaxmi,
D/o.Late.Munilakshmamma,
R/at.No.12, Bowee Street,
Halasuru, Bangalore08.
7. The Commissioner,
Bruhat Bangalore Mahanagara Palike,
N.R. Square, Bangalore02.
8. The Asst. Revenue Officer,
Bharathinagar SubDivision,
Bruhat Bangalore Mahanagara Palike,
Dispensary Road, Bangalore42.
(By Sri.N.Nanjunda Swamy - Adv. for defts.1 to 6)
(By Sri.K.V. Mohan Kumar - Adv. for defts.7 & 8)
(By Sri.N.Nanjunda Swamy - Adv. for LRs 1(a) & (b))
5 O.S. No.25283/2013
Date of Institution of the suit 14.02.2013
Nature of the (Suit or pronote, suit
for declaration and possession, suit INJUNCTION SUIT
for injunction, etc.)
Date of the commencement of
17.10.2014
recording of the Evidence.
Date on which the Judgment was
10.03.2020
pronounced.
Year/s Month/s Day/s
Total duration 07 00 26
(Yamanappa Bammanagi)
73rd Addl. CC & SJ, M.H.Unit,
Bengaluru. (CCH74)
JUDGMENT
The plaintiffs have filed this suit for injunction restraining the defendants, their agents, representatives and associates from interfering with plaintiffs' possession and enjoyment of the suit schedule property. Further restraining the defendants No.7 and 8 from issuing khatha certificate in 6 O.S. No.25283/2013 favour of defendants No.1 to 6 in respect of suit schedule property during the pendency of the suit.
2. Brief facts of the plaintiff's case:
The Plague Maheshwari Temple is situated in the suit schedule property, pooja has been performing on every day.
The plaintiff No.2 to 9 formed trust, and executed a trust deed dated 20.6.2007 and same was registered. The plaintiff No.2 contended that her deceased husband Vasudev @ Vasu is the elder brother of Mr.H.Thammaiah @ Sanjeevappa who is brotherinlaw of plaintiff No.2, during his lifetime, the said Thammaiah had acquired landed properties; i.e., property bearing No.29, New No.12, situated at Bowee Street, Ulsoor Civil Station, Bengaluru, measuring East to West: 22'6" + 19'6" = 42/2 = 21 feet and North to South 69 feet, in all 1428 sq ft., having purchased the same from M.K.Govindaraju under registered sale deed dated 7 O.S. No.25283/2013 24.07.1965. And the property Sy.No.15/1, situated at Bowee Street, Ulsoor, Bengaluru8, measuring East to West: 54 feet, North to South: 26" + 23 = 49/2 = 245 feet, in all 1323 sq ft., purchased from Mrs.J.Theresa, W/o.Late.D.M.Joseph and Mr.J.Sagayanath, S/o.Late.D.M.Joseph under registered sale deed dated 20.4.1979, which is shown as a schedule property. The brother in law of plaintiff No.2; i.e., H.Thammaiah @ Sanjeevappa, out of his love and affection, since plaintiff No.2 had taken care of said Thimmaiah during his lifetime, has executed his last Will in respect of the above said properties in favour of the plaintiff No.2 on 15.12.1992.
The property involved in the suit is bearing No.15/1, situated at Bowee Street, Ulsoor, Bengaluru. Another property bearing No.29 (New No.12) was the subject matter of two suits No.2527/1993 and 10928/1993, filed by the defendants herein and their mother Munilakshmamma and both suits 8 O.S. No.25283/2013 were clubbed and common judgment has been passed. The defendants have challenged the common judgment and decree in RFA No.873/2004 before the Hon'ble High Court, which was disposed off on 20.4.2012 and withdrawn said RFA by filing memo by the defendants in the said suit. The present suit is in respect of property bearing No.15/1 as described above. Further contended in the plaint that the defendants have no rights over the suit schedule property, and Munilakshmamma is not daughter of H.Thammaiah and not mother of defendants No.1 to 6. Such being the fact, the defendants No.1 to 6 have started to interfere in peaceful psossession and enjoyment of the suit property stating that Munilakshmamma is the daughter of Thammaiah and said Thammaiah had executed a Will in favour of his daughter Munilakshmamma in respect of suit schedule property. 9 O.S. No.25283/2013 With this, the plaintiffs have sought for the reliefs in the plaint.
3. In pursuance of the suit summons, the defendant Nos.2 to 6 appeared through counsel and filed their written statement contending that the suit is not maintainable, since, the plaintiff did not complied with the requirement of Section 482 of the KMC Act, hence, suit is liable to be dismissed. Further the defendants No.1 to 6 contended that the plaintiffs have shown wrong address of the defendants to suit their case. But, the defendants No.1 to 6 are residing in the suit schedule property. Further the defendants No.1 to 6 contended that there is no Plague Maheshwari Temple in the suit schedule property. No trust has been formed by the plaintiffs and plaintiffs never taken care of deceased H.Thammaiah @ Sanjeevappa, during his lifetime and said Thammaiah never executed any Will in favour of the plaintiff 10 O.S. No.25283/2013 No.2, in respect of the suit schedule property as alleged in the plaint. The alleged Will dated 15.12.1992 is created, concocted and fabricated for the purpose of grabbing the suit property of the defendants No.1 to 6.
It is the case of the defendants No.1 to 6 that Late.Thammaiah @ Sanjeevappa, who is grandfather of the defendants No.1 to 6, purchased properties Old No.29, New No.12 and bearing No.15/1. The suit schedule property is property No.15/1, is situated at Bowee Street, Ulsoor Civil Station, Bengaluru, and said Thammaiah had bequeathed the said properties including suit schedule property to his only daughter by name Smt.Munilakshmamma, who is mother of the defendant Nos.1 to 6, by executing the Will dated 07.10.1992 and said Sanjeevappa died on 22.01.1993, leaving behind him his only daughter Smt.Munilakshmamma as his only legal heir, after death of said Thammaiah his only 11 O.S. No.25283/2013 daughter Munilakshmamma was in possession of the properties including the suit property, the said Munilakshmamma has bequeathed her properties to her children; i.e., defendants No.1 to 6, through registered Will dated 03.11.2007 and said Smt.Munilakshmamma died on 07.11.2007, leaving behind these defendants as her legal heirs and she also as she left Will dated 03.11.2007 in respect of suit schedule property. So, the defendants No.1 to 6 are only legal heirs of Smt.Munilakshmamma and after death of her mother they are in actual possession and enjoyment of the suit property as legal heirs of Lakshmamma. Further contended that the mother of the defendants No.1 to 6 has filed suit O.S. No.2527/1993, against one P.H.Bankata Singh for perpetual injunction, since he was interfering with possession of the property No.12 of Bowee Street, Bengaluru, the plaintiff No.5 herein, has filed suit in O.S. 12 O.S. No.25283/2013 No.10928/1993, against the mother of the defendants No.1 to 6 in respect of property No.12 of Bowee Street, Bengaluru, both suit clubbed and common judgment has been passed on 30.06.2008, suits partly decreed. The mother of the defendants No.1 to 6 has preferred an appeal against the common judgment in RFA No.719/2004 and RFA No.873/2004, since said P.H.Bankata Singh and plaintiff No.5 herein stopped the interference, hence, both RFA dismissed as withdrawn.
The defendants No.1 to 6 are the absolute owner and in possession of the suit property as legal heir of Thammaiah and Thammaiah has never executed Will in favour of the plaintiff No.2, in respect of the suit schedule property and the defendants have applied for the change of khatha and defendants No.7 and 8 did not changed the khatha. Hence, the defendants No.1 to 6 have filed W.P. No.24087/2010, 13 O.S. No.25283/2013 same was disposed off on 01.12.2011 and directed the defendants No.7 and 8 by considering the application filed by the defendants No.1 to 6, the defendants No.1 to 6 have initiated contempt proceedings against the defendants No.7 and 8. But, closed since the defendants No.7 & 8 agreed to change the khatha in the name of defendants No.1 to 6. With this, the defendants prayed for dismissal of the suit as there is no cause of action. During the pendency of the suit, the defendant No.1 died, his LRs brought on the records as D.1
(a) and D.1 (b). They have not filed separate written statement and written statement filed by the defendants No.1 to 6 has adopted by the LRs of defendants No.1 (a) and (b). The defendants No.7 and 8 are appeared through their counsel. But, did not choose to file their written statement. Hence, the written statement of defendants No.7 and 8 taken as not filed.
14 O.S. No.25283/2013
4. Initially this suit is filed before the CCH22, in view of the Notification No.ADMI(A)413/2018, dated 31.7.2018, this case has been transferred to this court as per order dated 23.8.2018 from CCH22. And suit was called out in this court for the first time on 31.8.2018.
5. On basis of pleadings of the parties, my learned Predecessor has framed the following: ISSUES
1. Whether plaintiffs prove that, they were in lawful possession and enjoyment of the suit schedule property, as on the date of suit?
2. Whether plaintiffs prove alleged interference?
3. Whether the suit is not maintainable for non compliance of Sec.482 of KMC Act?
15 O.S. No.25283/2013
4. Whether plaintiffs are entitled for relief of permanent injunction?
5. What decree or order?
6. The plaintiff No.2 is examined as P.W.1 and got marked Ex.P.1 to P.30. The defendant No.1 was examined as D.W.1, by filing affidavit in lieu of examination in chief, posted for further chief of D.W.1. When suit was posted for further chief of D.W.1, at that time defendant No.1 (D.W.1) died and hence, the evidence of D.W.1 discarded and the defendant No.2 is examined as D.W.2 by filing affidavit in lieu of examination in chief and reiterated the averment of the written statement and documents marked through deceased defendant No.1 are reconsidered as Ex.D.1 to D.23, Ex.D.24 and 24 (a) to (d) are marked through D.W.2. Heard argument of the learned counsel for the plaintiff and the defendants.
16 O.S. No.25283/2013
7. My answer to above issues are as follows:
Issue No.1 : In the Negative, Issue No.2 : In the Negative, Issue No.3 : In the Affirmative, Issue No.4 : In the Negative, Issue No.5 : As per the final order, for the following: REASONS
8. ISSUE No.1: In order to prove their case the plaintiff No.5 is examined as P.W.1 by filing a affidavit in lieu of examination in chief, reiterating the averments of the plaint and got marked Ex.P.1 to P.30. P.W.1 deposed that the plaintiffs are the owners and in possession of the suit property by virtue of Will dated 15.12.1992, executed by H.Thammaiah @ Sanjeevappa in respect of suit schedule property in favour of plaintiff No.2. It is the case of the plaintiff that one H.Vasudev @ Vasu is the elder brother of 17 O.S. No.25283/2013 H.Thammaiah @ Sanjeevappa and said Sanjeevappa had purchased two properties bearing No.29, New No.12, situated at Bowee Street, Halasuru Civil Station, Bengaluru, under registered sale deed dated 24.7.1965 and another property No.15/1 situated at Bowee Street, Ulsoor, Bengaluru under registered sale deed dated 20.4.1979 and said Thammaiah died unmarried. Further it is contended in the plaint that the said Thammaiah has executed a Will in respect of both properties in favour of plaintiff No.2. By virtue of said Will the plaintiffs are the owners and in possession of the said two properties. The present suit schedule property is property No.15/1 situated at Bowee Street, Ulsoor, Bengaluru.
9. Such being the fact, the defendants No.1 to 6 have started interference in peaceful possession and enjoyment of the suit schedule property without having any right, interest over the suit schedule property stating that, the 18 O.S. No.25283/2013 Munilakshmamma is the daughter of H.Thammaiah and after death of his father Thammaiah she had succeeded to the properties left by the said Thammaiah, property Old No.29, New No.12, situated at Bowee Street, Ulsoor Civil Station, Bengaluru and property No.15/1 situated at Bowee Street, Ulsoor, Bengaluru. Hence, the defendants No.1 to 6 have started interference in the possession of plaintiffs. On account of which the plaintiffs have filed this suit. In support of their oral evidence, the plaintiffs have produced documents, which have been marked at Ex.P.1 to P.30. Ex.P.1 is the trust deed dated 20.6.2007, made and executed by the plaintiff No.2 and her children in respect of Plague Maheshwari Temple Trust and plaintiffs are the members of the said trust and Ex.P.2 is the Will, dated 15.12.1992, executed by H.Thammaiah in favour of plaintiff No.2, in respect of both properties referred above and shown in the 19 O.S. No.25283/2013 schedule of Will and Ex.P.3 is the death certificate of H.Thammaiah @ Sanjeevappa, which reflects the date of death of H.Thammaiah as 27.1.1993 and Ex.P.4 to P.24, are the medical bills in respect of treatment taken by the Thammaiah during his lifetime.
10. Ex.P.25 to P.28 are the electricity bills produced by the plaintiff and Ex.P.29 and P.30 are the certified copies of the judgment passed in RFA No.873/2004 and 819/2004. Now the question before the court is that whether the plaintiffs are in possession of the suit schedule property at the time of filing of the suit. Ex.P.1 is the trust deed dated 20.6.2007 reflects that the plaintiffs are the members and founders of the Plague Maheshwari Temple Trust and said Temple is said to have been situated in property No.12 of Bowee Street, Ulsoor, Bengaluru. I have perused Ex.P.1 it reflects that the plaintiffs have become owners and in 20 O.S. No.25283/2013 possession of the property No.29, New No.12 of Bowee Street, Ulsoor, Bengaluru, measuring 1428 sq ft., has been bequeathed in favour of the trust by the founder H.Sanjeevappa @ Thammaiah.
11. But, case of the plaintiff is that the said Sanjeevappa @ Thammaiah has executed a Will in favour of plaintiff No.2 as per Ex.P.2 Will dated 15.12.1992. The case of the plaintiff is based on Ex.P.2 Unregistered Will said to have been executed by the said Thammaiah in respect of his properties bearing Old No.29, New No.12 and property No.15/1, both situated at Bowee Street, Ulsoor, Bengaluru. This Will has not been proved in accordance with the provisions of Section 68 to 70 of Indian Evidence Act and said Will is also not probated and not registered. According to Ex.P.2 Will, relied on it by the plaintiffs, it is clearly shows that the deceased Thammaiah @ Sanjeevappa has purchased 21 O.S. No.25283/2013 both properties referred above and he has no issue, died unmarried, hence, he has executed gift deed in favour of plaintiff No.2. On the same context the defendants No.1 to 6 have also produced Will marked at Ex.D.24, executed by said Thammaiah @ Sanjeevappa, which is also not probated and not registered, written on Rs.10/ bond paper, on 7.10.1992. This Will clearly reflects that the said Thammaiah had daughter by name Munilakshmamma @ Lakshmamma, it is also reflects the children of said Munilakshmamma. So, the plaintiffs and defendants are relied on the Will said to have been executed by Thammaiah in respect of the suit schedule property, both Will are not probated, not registered and not proved in accordance with law. And it is also clear from the Ex.P.1 Trust Deed that the Thammaiah has converted the suit property in Plague Maheshwari Temple on the basis of said Will produced by the plaintiffs. When both Wills are not 22 O.S. No.25283/2013 proved by both the parties then the Wills executed by the Thammaiah cannot be relied upon, since, in one Will produced by the plaintiffs discloses that Thammaiah died unmarried and another Will produced by the defendants No.1 to 6 discloses that Thammaiah died after marriage and he has only a daughter by name Munilakshmamma, who is mother of defendants No.1 to 6. Under such circumstances, the remaining documents produced by the plaintiffs, are relating to the medical treatment of deceased Thammaiah. Ex.P.4 to P.24 are the medical receipts of deceased Thammaiah. On perusal of the medical receipts, stands in the name of deceased Thammaiah, it cannot be held that the plaintiffs are in possession of the suit schedule property.
12. Ex.P.29 and 30 are the certified copy of the judgment passed in RFA No.873/2004 and RFA No.719/2004. Said appeals were preferred by the 23 O.S. No.25283/2013 Munilakshmamma, against the common judgment passed in O.S. No.2527/1993 clubbed with 10928/1993. O.S. No.2527/1993, filed by the mother of defendants No.1 to 6 contending that she is the daughter of Thammaiah @ Sanjeevappa and she succeeded to the property left by her father and O.S. No.10928/1993, was filed by the present defendants, both suits have partly decreed and against the said common judgment the plaintiff in O.S. No.2527/1993, i.e., Munilakshmamma has preferred an appeal challenging the common judgment and decree passed in the said suit in both RFA referred above. In both RFA the said Lakshmamma has filed memo stating that the defendants in the suit O.S. No.2527/1993 have stopped their interference and objections, hence, the appeals are disposed off on basis of the said memo. The lordship of the Hon'ble High Court extracted 24 O.S. No.25283/2013 the contents of the memo in Ex.P.29 and P.30, which reads thus:
"JUDGMENT Learned counsel for appellants seeks permission of the court to withdraw the appeal.
Memo is filed to said effect.
Contents of memo reads as under:
"The appellant submits that the temple was constructed by their grantfather and they are performing poojas and now it is under control of Family Trust of the appellants and they are continue to perform the poojas without any hurdles and also they are residing in the portion of the house constructed therein, and as such the appellants prays that this Hon'ble Court to permit them to withdraw the appeal, in the interest of justice and equity."25 O.S. No.25283/2013
Same is also duly signed by Appellant No.1 (a). Same is placed on record. In view of memo filed appeal is dismissed as withdrawn."
On perusal of the Ex.P.1 and P.2 and Ex.P.29 and P.30 it is clear that the plaintiffs failed to prove their possession of the suit schedule property at the time of filing of the suit. On the other hand, the defendants No.1 to 6 have produced Ex.D.1 Death Certificate of Thammaiah, which reflects the date of death of Thammaiah as 22.1.1993. I have perused Ex.D.1 Death Certificate of Thammaiah @ Sanjeevappa.
Ex.D.1 reflects place of death of Thammaiah, which reads thus:
"New No.12, Bowee Street, Ulsoor, Bengaluru."
And Ex.D.2 Death Certificate of Munilakshmamma who is mother of defendants No.1 to 6. On perusal of the same, the 26 O.S. No.25283/2013 place of death of the Munilakshmamma at column No.7 reads thus:
"Place of death, property No.12, Bowee Street, Halasuru, Bengaluru
8."
Ex.D.2 is the death certificate of Munilakshmamma, which reflects the date of death of Munilakshmamma as 9.11.2007 and same is registered on 11.12.2007 and it is also clearly reflects the place of death of Munilakshmamma at column No.7, place of death, property No.12, Bowee Street, Halasuru, Bengaluru8 and also indicates the permanent resident of deceased Munilakshmamma as above. So, these documents clearly establishes that Munilakshmamma was in possession of the suit schedule property along with Thammaiah @ Sanjeevappa during his lifetime and after his death Munilakshmamma was in possession of the suit schedule property till her death. Now the question before the 27 O.S. No.25283/2013 court is though plaintiffs and defendants have produced Will said to have been executed by Thammaiah in respect of suit schedule property and both plaintiffs and defendants have denied the execution of Will by the Thammaiah in favour of plaintiffs and plaintiffs have denied the execution of Will in favour of the defendants. Under such circumstances, when both Wills are not proved in accordance with the law, the Will produced by the both parties cannot be looked into. But, defendants have produced revenue documents, which are reflects the flow of possession of the suit schedule property from Thammaiah @ Sanjeevappa to Munilakshmamma and from Munilakshmamma to defendants No.1 to 6. Under these circumstances I am of the opinion that plaintiffs failed to prove their case. Ex.D.3 is the sale deed dated 20.4.1979. And Ex.D.5 is the original registered Will executed by Smt.Munilakshmamma, D/o.Thammaiah @ Sanjeevappa in 28 O.S. No.25283/2013 respect of property No.12 and 15/1, in favour of defendants No.1 to 6. In the said Will it is contended that Thammaiah has left the properties mentioned in the Will and Lakshmamma is the only daughter to the said Thammaiah and she is also legal heirs of Thammaiah and also got Will from her father. Ex.D.6 is the encumbrance certificate reflects that property No.15/1; i.e., suit schedule property stands in the name of defendant No.1 to 6, which is also reflects the measurement and property number and place where it is situated and Ex.D.7 is the letter issued by the DDLR which reflects that the property came to the Munilakshmamma from her father and Ex.D.8 is the taxpaid receipt in respect of suit schedule property stands in the name of H.Thammaiah and Ex.D.9 to D.12 are the taxpaid receipt issued by the BBMP on 14.6.2012 in the name of Thammaiah in respect of suit schedule property. Ex.D.13 is 29 O.S. No.25283/2013 the suvarna khatha which reflects the number of suit property and the name of the defendant No.1. And Ex.D.14 is the acknowledgement issued by the BBMP for having received the application form by the defendants for change of khatha in respect of suit schedule property. Ex.D.15 is the letter issued by the BBMP in respect of suit schedule property to the Sampath Kumar. Ex.D.16 is the acknowledgement issued by the BBMP to the defendant No.1 in respect of suit schedule property confirming the passage to reach the property and Ex.D.17 is the letter issued by the BBMP in respect of suit schedule property in the name of Munilakshmamma and Ex.D.18 & 19 are the letter issued by the BBMP in respect of suit schedule property in the name of Thammaiah on 22.5.1995 and Ex.D.20 is the complaint lodged by the Munilakshmamma, D/o.Thammaiah @ Sanjeevappa for having interfered in the suit schedule property by the plaintiff 30 O.S. No.25283/2013 and Ex.D.21 and 22 are the admission certificate of Smt.Lakshmamma and Ex.D.23 is the certified copy of the order sheet in CCC No.10601065/2012 filed by the defendant No.1. On perusal of the Ex.D.6 to D.22 revenue records clearly establish the possession of the defendants. Under such circumstances, it is clear that plaintiff neither proved his title nor proved his possession at the time of filing of the suit. Instead the defendants No.1 to 6 have filed revenue records and registered documents to show that the plaintiffs are not in possession of the suit schedule property. The Ex.D.6 to D.22 revenue records have got presumptive value u/S 35 of Indian Evidence Act, which reads thus:
"35.Relevancy of entry in public [record or an electronic record] made in performance of duty.__ An entry in any public or other official book, register or [record or an electronic record], stating a fact in 31 O.S. No.25283/2013 issue or relevant fact, and made by public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or [record or an electronic record] is kept, is itself a relevant fact.
Editor's Note._The words "Fact", "Facts in issue" and 'Relevant" are defined in Section 3 of this Act".
13. In support of my opinion I relied on the decision reported in AIR 2008 SC 901 in case of Gurunath Manohar Pavaskar and others Vs. Nagesh Siddappa Navalgund and Others. The lordship have held at Head NoteB, reads thus:
"Evidence Act, (1 of 1872), Ss. 35, 114 revenue records not document of title it merely raises presumption of possession."32 O.S. No.25283/2013
The lordship have discussed at Para12 of the judgment, which reads thus:
"A revenue record is not a document of title. It merely raises a presumption in regard to possession. Presumption of possession and/or continuity thereof both forward and backward can also be raised under Section 110 of the the Indian Evidence Act.
The Courts below, were, therefore, required to appreciate the evidence keeping in view the correct legal principles in mind."
So, on perusal of the revenue records produced by the defendants No.1 to 6 it is clear that the plaintiffs are not in possession of the suit schedule property.
Further the plaintiffs have contended that the said Thammaiah died unmarried and he has no issue. But, on 33 O.S. No.25283/2013 perusal of the Ex.P.24 Will, dated 7.10.1992, executed by said Thammaiah in favour of Munilakshmamma, who is daughter of said Thammaiah and mother of defendants No.1 to 6. In the said Will he has categorically stated that he had a daughter by name Munilakshmamma @ Lakshmamma, except Munilakshmamma he has no other legal heirs. The recital of the Will dated 7.10.1992, reads thus:
"ಸನ ಸಸವರದದದದಭದಭನದರ ತದದದಬತದತರಡನದನ ಇಸವ ಅಕದದಕನಬರ ಮಸಹದ ತಸರನಖಖ ಏಳರದದಖ (7.10.1992) ಬದದಗಳಳರಖ ನಗರದ ಆಲಸದರಖ ಬದದನವ ಬನದಯಲಲರಖವ ಮನದ ನದಬರಖ ಹನದನರಡರಲಲ (12) ವಸಸಸಖತತರಖವ ಲದನಟ ಹನಖಮದತಪಪನವರ ಮಗ ಸಖಮಸರಖ ಅರವತದತದಟಖ ವರರ ವಯಸಖಸಳಳ ಹದಚ.ತಮಮಯಯ ಅಲಯಸಸ ?ಹದಚ.ಸದಜನವಪಪ ಆದ ನಸನಖ ನನನ ಸಸಇಚದಚಯದದ ಹದನಳ ಬರದಸದ ಮರಣ ಶಸಸನ ಯದವಲಕಕಮವದನನದದದರದರ ನಸನಖ ವಸಸಸಖತತರಖವ ಮನದ ನದಬರ ಹನದನರಡಖ (12) ಮತಖತ ಹದನದಭದಖ ಬಸರ ಒದದರಲಲರಖವ (15ಃರ1) ಕಟಕಡಗಳ, ಅದದರದ, 34 O.S. No.25283/2013 ಈ ಕದಳಗದ ನಮದದಸರಖವ ಶದಡದಯಲನಲಲ ವವರಸರಖವ ಸಸರಸಸತಗಳ ಮತಖತ ಚರಸಸತಗಳದಲಲವವ ನನನ ಜನವತ ಕಸಲದಲಲ ಅಜರಸದ ಸಸದತ ಆಸತಗಳಸಗದಖದ ಅವವಗಳ ನನನ ಸಸಸಧನನಸನಖಭವದಲಲವದ.
ನನಗದ ವಸಸಖದದನವಪಪ, ಮತಖತ ಸದದಪಪ
ಎದಬ ಇಬಬರಖ ಸಹದದನದರರಖ ಮತಖತ
ಯಶದಶನದಮಮ ಎದಬ ಸಹದದನದರ ಇರಖತಸತರಸಗ,
ಅವರಖಗಳ ತಮಮ ಸಸತದತಕ ಜನವನ
ನಡದಸಕದದದಡಖ ಬದನರದ ಬದನರದಯಸಗ
ವಸಸಸಖತತದಸದರದ. ನನನ ಏಕದಭಕ ಪವತಕ ಶಕನಮತ
ಮಖನಲಕಕಮಮ ಅಲಯಸಸ ಲಕಕಮಮ ಹದದರತಖ
ನನಗದ ಬದನರದ ಸದತಸನವಲಲ. ಈಕದಗದ
ವವಸಹವಸಗ ಇಬಬರಖ ಗದಡಖ ಮತಖತ ನಸಲಸರಖ
ಹದಣಖಣಮಕಕಳ ಇದಸದರದ .
ನನಗದ ಈಗ ಸಖಮಸರಖ ಅರವತದತದಟಖ
ವರರ ವಯಸಸಸಗದಖದ ವಯನಗಖಣದದದಸಗ
ಶಕತಹನನನಸಗಖತತದದದನನದ. ಮಸನವಜನವನ
ಕಣಕವಸಗದಖದ ನನನ ಆರದದನಗಯ ಸಖಸಸತಯಲಲ
ಇರಖವಸಗಲದನ ನನನ ಆಸತಪಸಸತಗಳ ಬಗದಗ ಸದಕತ
ವಯವಸದಸ ಮಸಡಖವವದಖ ಸಕಲವಧದಲದಲ ಉಚತ
ಎದಬ ನರಸರರ ಹದದದದದವನಸಗರಖವ ಕಸರಣ
ಇದದಖ ಈ ಮರಣ ಶಸಸನದ ಮದಲಕ ನನದನಲಸಲ
35 O.S. No.25283/2013
ಆಸತಪಸಸತಗಳನದನ ನನನ ಇಚಸಚನಖಸಸರವಸಗ
ವಲದನವಸರ ಮಸಡಖತತದದದನನದ."
So, the facts stated in the Will produced by the plaintiffs and facts stated in the Will produced by the defendants are entirely different from each other. The Will dated 15.12.1992, produced by the plaintiff at Ex.P.2, said to have been executed by said Thammaiah @ Sanjeevappa, in respect of his properties including suit schedule property at page No.2, in para2, reads thus:
"Whereas I am not married and I have no issues, while my brother Mr.H.Vasu @ H.Vasudeva, his wife Mrs.Devamma, my sisterinlaw and their children viz., V.Munna, V.Srinivas @ Seena and V.Paramesh @ Pammi are taking care of me by providing all that care, love, compassion and affection, besides meeting all my medical 36 O.S. No.25283/2013 requirements, as such I will be failing in my duty, if I do not make any provisions with regard to dispossession of my immovable properties."
After this Will the plaintiffs have not changed the khatha or other revenue records in respect of property mentioned in the Ex.P.2 Will. That apart, in both the Will the marital status of the testator are different. So, it clearly shows that the plaintiffs have not acted upon the Will. Ofcourse both Will produced by the plaintiffs and defendants are not probated and not proved in accordance with the law and both Wills are not registered. So, in a suit for injunction these Wills cannot be relied upon to decide the title and possession of the property till both Wills are proved in accordance with law. Now it is relevant to extract oral 37 O.S. No.25283/2013 evidence of P.W.1 at page8, 12 th line from bottom of the crossexamination of P.W.1, which reads thus:
"I was not present at the time of execution of Will by Thammaiah @ Sanjeevappa."
But, the plaintiffs have not produced any revenue documents or title deeds in respect of suit schedule property to show his possession at the time of filing of the suit. But, plaintiffs produced Ex.P.1 and P.2 Trust Deed and Will. Ex.P.2 Will has not been proved in accordance with law and Ex.P.1 is the trust deed executed on basis of Will, which has not been proved. Except this document the plaintiff has not produced any revenue documents in their name to show their possession of the suit property. Plaintiff produced Ex.P.4 to P.24 Medical Bills of Thammaiah, which does not reflects about the property and Ex.P.25 to P.28 are the electricity bill 38 O.S. No.25283/2013 does not reflects the name of the plaintiffs and suit schedule property. Hence, there is no documentary evidence to show the possession of the suit schedule property of the plaintiffs. On the other hand, the defendants No.1 to 6 have produced all revenue records stands in the name of their ancestors and their name in respect of suit schedule property. All revenue records reflects the possession of the Munilakshmamma and defendants No.1 to 6 over the suit schedule property. Hence, on perusal of the oral and documentary evidence led by the plaintiffs and defendants it is clear that plaintiffs have failed to prove their possession of the suit schedule property at the time of filing of the suit. Hence I answer this issue in the Negative.
14. ISSUE No.2: It is the case of the plaintiffs that they are in possession and enjoyment of the suit schedule property by virtue of Will said to have been executed by Thammaiah in 39 O.S. No.25283/2013 respect of suit schedule property in favour of the plaintiff No.2 and the defendants have interfered in the possession of the suit schedule property. Except medical bills no documents have been produced by the plaintiffs to show the act of interference of the defendants. Even the defendants have not proved their possession of the suit schedule property. Under such circumstances, the question of interference by the defendants does not arise. Hence, I answer this issue in the Negative.
15. ISSUE No.3: I have perused entire records and order sheet it is seen that the plaintiff has not complied with the provisions of Section 482 of KMC Act and plaintiff also failed to comply with the provisions of Section 80 (1) of CPC. The said provisions requires to serve 2 months notice prior to filing of the suit, if the suit is against the Govt. authority or Govt. employee. So, in this case the plaintiffs have not complied 40 O.S. No.25283/2013 with the requirement of Section 482 of KMC Act and Section 80 (1) of CPC in respect of defendants No.7 & 8. On this count also the plaintiff failed to prove that they have complied with the provisions of Section 482 of KMC Act and Section 80 (1) of CPC. Under such circumstances, I am of the opinion that the plaintiff failed to comply with the provision of Section 482 of KMC Act. Hence, suit is hit by Section 482 of KMC Act. Hence, I answer this issue in the Affirmative.
16. ISSUE No.4: The plaintiffs have produced Ex.P.1 and P.2 and the medical receipt of Thammaiah at Ex.P.4 to P.24. Ex.P.1 is the trust deed, which is based on the Will dated 15.12.1992 and said Will has not been proved in accordance with the law, hence, Ex.P.1 cannot be looked into. Even Ex.P.1 does not reflects the title and possession of the suit schedule property of the plaintiffs. Defendants have produced Ex.D.1 to D.22 and D.24 are sufficient to hold that the defendants have proved the cloud over the title and 41 O.S. No.25283/2013 possession of the plaintiffs and the plaintiffs have failed to prove their possession by producing title deeds and revenue records of the suit schedule property. Under such circumstances when plaintiffs title and possession itself covered with cloud under such circumstances, the plaintiffs are not entitled for the relief sought in the plaint. In support of my finding I relied on the decision reported in AIR 2008 SC 2033 in case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs and Others.
The lordships have held at para 11 (3) of the judgment, which reads thus:
"11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have 42 O.S. No.25283/2013 to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction."
Considering the oral and documentary evidence led by both the parties and material placed before the court, I am of the opinion that the plaintiffs have failed to prove their possession at the time of filing of the suit and interference of the defendants in the plaintiffs' possession of the suit schedule property. With the reasons assigned above and relying on the decision referred above I am of the opinion that plaintiffs are not entitled for the equitable relief of 43 O.S. No.25283/2013 injunction as prayed for in the plaint. Hence, I answer this issue in the Negative.
17. ISSUE No.5: In view of the findings on issue No.1 to 4, I proceed to pass the following: ORDER Suit filed by the plaintiffs is dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer directly on computer system, computerized by her, after online correction by me, printout taken by her and then pronounced by me in the open court on this the 10th day of March 2020).
(Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru. (CCH74) SUIT SCHEDULE PROPERTY All that piece and parcel of property bearing No. 15/1, situated at Bowee Street, Ulsoor, Bangalore8, 44 O.S. No.25283/2013 measuring from East to West 54 feet and North to South 26'+23"=49/2=24.5 feet, in all 1323 Square Feet and bounded on:
East by: Passage & Mr. Ethiraj's property; West by: Mr. Narayanaswamy' House; North by: Mr. Dhinniah Mestry's House; and on South by: Anote Sahib's House (Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru. (CCH74) ANNEXURES List of witness examined for the plaintiffs' side:
P.W.1 Sri. V. Paramesh List of documents exhibited for the plaintiffs' side:
Ex.P.1 Trust Deed
Ex.P.2 Will
Ex.P.3 Death Certificate
Ex.P.4 to 6 Bill
Ex.P.7 Prescription
45 O.S. No.25283/2013
Ex.P.8 & 9 Receipt
Ex.P.10 Prescription
Ex.P.11 Bill
Ex.P.12 Prescription
Ex.P.13 Bill
Ex.P.14 Prescription
Ex.P.15 Bill
Ex.P.16 Attendant Pass
Ex.P.17 Card
Ex.P.18 Prescription
Ex.P.19 to Bill
21
Ex.P.22 Prescription
Ex.P.23 Bill
Ex.P.24 Report
Ex.P.25 to Electricity Bills
28
Ex.P.29 & C/C of judgment
30
List of witnesses examined for the defendants' side :
D.W.1 Sri.M.Sampathkumar D.W.2 Smt.M. Annamma @ Anitha
List of documents exhibited for the defendants' side:46 O.S. No.25283/2013
Ex.D.1 C/C of Death Certificate of Thammaiah Ex.D.2 Death Certificate of Munilakshmamma Ex.D.3 C/C of sale deed Ex.D.4 Tax assessment register Ex.D.5 Original Will Ex.D.6 Encumbrance Certificate Ex.D.7 Notice dt 05.01.1995 Ex.D.8 to12 5 Tax paid receipts Ex.D.13 & 2 Suvarna Khata acknowledgment 14 Ex.D.15 to 4 Endorsements issued by BBMP 18 Ex.D.19 Tax paid receipt Ex.D.20 C/C of Complaint lodged is Ulsoor P.S. Ex.D.21 & Two C/C of certificate issued by 22 Corporation of City of Bengaluru, Maternity Home Ex.D.23 C/C of the orders passed by Hon'ble High Court of Karnataka in CCC.Nos.1060 1065/2012 Ex.D.24 Will dated 07.10.1992 Ex.D24(a) Signature of Sri.H.Thammaiah to (d) (Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru. (CCH74) 47 O.S. No.25283/2013 48 O.S. No.25283/2013