Bangalore District Court
Sri. Sonny Mathew S/O Mathew Rocky vs Sri. Narayanappa S/O Late ... on 22 September, 2021
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH-22)
Present: Smt. Suvarna K. Mirji, B.Com., LL.B.(Spl).,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
O.S No.15296/2005
Dated this the 22nd day of September 2021
Plaintiff 1. Sri. Sonny Mathew S/o Mathew Rocky,
Aged about 37 years, R/o. No.45,
3rd Cross, Jayanthi Nagar,
Horamavu Village, K.R.Puram Hobli,
Bangalore-560 043.
(Rep by Sri.A.R. Advocate)
V/S
Defendants 1. Sri. Narayanappa S/o Late Venkataswamappa,
@ Chikka Abbaiah, Aged about 50 years,
2. Sri. Nagaraj S/o Late Venkataswamappa,
@ Chikka Abbaiah, Aged about 45 years,
2(a) Since deceased represented by his LR.
Smt. Shashikala W/o Late C. Nagarajappa,
Aged about 47 years,
Residing at Horamavu Village & Post,
Near Mariyamma Temple Street,
K.R Puram Hobli, Bangalore East Taluk,
Bangalore-560 043.
3. Sri. Jayaram S/o Late Venkataswamapppa
@ Chikka Abbaiah, Aged about 40 years,
1 to 3 residing at: Horamavu Village,
K.R Puram Hobli, Bangalore-560 043.
2
Judgment O.S.No.15296/2005
4. Smt. Madireddy Sripadmavathi W/o Jagadish,
R/o No.5, Scientist Hostel, C.V. Raman Nagar,
DRDO Township, Bangalore-560 093.
(Rep by Defendant No.1 to 3 Sri.PSN Advocate,
Defendant No.4-Sri.MRS Advocate)
Date of Institution of the suit 31/05/2005
Nature of the (Suit or pro-note, suit for declaration and
possession, suit for injunction, etc.)
Permanent Injunction
Date of the commencement of recording of the Evidence 13/11/2006
Date on which the Judgment was pronounce 22/09/2021
Year/s Month/s Day/s
Total duration 16 03 22
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE
MAYOHALL UNIT; BANGALORE.
:JUDGMENT:
The plaintiff filed suit against the defendants for permanent injunction.
2. The brief facts of plaint averments is as under:
The plaintiff submits that he is absolute owner of the suit schedule property mentioned below:- 3
Judgment O.S.No.15296/2005
:SUIT SCHEDULE PROPERTY:
All that piece and parcel of residential premises bearing Western portion of Site No.45, Khata No.135/4 of Horanvu Village, at Jayanthinagar, 3 rd cross, K.R.Puram Hobli, Bangalore East measuring East to West: 37+36.6 and North to South 30 feet total area 1104 sq.ft with RCC roofed residential building thereon bounded by East: Property of Baluki Dasappa, West: 25 feet road, North: Site No.44, South: Site No46.
3. The plaintiff submits that he is absolute owner and in possession and enjoyment of the schedule property. The defendants No.1 to 3 had formed a layout of sites in the Northern Portion of their land in Sy.No.81/2 situated at Horamavu Village and sold Site No.44 and 45 to K.Padmavathy i.e. his vendor under sale deed on 13/01/1992. He purchased sold Site No.44 from K.Padmavathy under registered sale deed and his vendor sold Site No.45 to Shankara Gowda Patil. Then he and said Shankara Gowda Patil exchanged the respective 4 Judgment O.S.No.15296/2005 Sites 44 and 45 through registered exchange deed on 25/11/2004. Thus he is absolute owner in possession and enjoyment of the suit schedule property.
4. The plaintiff further submits that he constructed the house in suit schedule property and occupying the house along with his family members and he got khata of suit property in his name in the Horamavu Village Panchayat and he has paid the house tax to Horamavu Panchayat up to date. He had constructed the suit schedule house with housing loan from the Indian Bank and the original title deeds are kept in the Banks custody.
5. The plaintiff submits that defendants No.1 to 3 after forming the layout in northern portion of their survey No.81//2 to an extent of 1 acre 24 guntas as per plan and had sold house sites to different purchasers including his vendor and defendants 1 to 3 had not retained any right, title or interest in respect of the land wherein the sites were formed. The purchasers of sites including his vendor were placed in actual possession and 5 Judgment O.S.No.15296/2005 enjoyment of their respective sites by defendants No.1 to 3 after executing registered sale deeds in favour of purchasers during the period 1991-1992. Thus he and all other purchasers of sites in the layout were in peaceful possession and enjoyment of their respective sites and many of the site owners had already put-up their houses on their respective sites after obtaining building licenses from the local Horamavu Panchayat and there is well developed residential layout now and it is not agricultural land over since 1991-1992 when the layout plan was formed by defendants No.1 to 3.
6. The plaintiff submits that on 21/10/2004 defendant No.4 appeared in layout with strange claim that he has purchased the land, wherein the layout was formed by the defendants No.1 to 3 about 13 years ago and had sold sites to him and others and put them in physical possession and enjoyment under registered sale deeds. The defendant No.4 claims that he has purchased land under registered sale deed on 01/03/2004 from defendants No.1 to 3 and their children, wherein layout is formed. The defendant No.4 has appeared in layout on 21/10/2004 with his 6 Judgment O.S.No.15296/2005 gang and henchmen and threatened him and other owners of sites and houses in layout to dispossession of plaintiff and other owners from their sites. He and other site owners filed police complaint in the Ramamurthy Nagar Police Station. The defendant No.4 he has not acquired any valid title, right or interest over the land in which the layout was formed and sites were sold to the purchasers including his vendor and sale deed dated:01/03//2004 is fraudulent document and it does not confer any valid title on the defendant No.4 in respect of land in Sy.No.81/2 of Horamavu village as described in its schedule and said sale deed does not affect his right and title to the suit schedule property.
7. The plaintiff further submits cause of action for suit arose on 21/10/2004 when the defendant No.4 came to his property and threatened to interfere with his peaceful possession and enjoyment of the suit property. The plaintiff prays to pass decree to the suit for permanent injunction restraining the defendants their heirs, successors, agents or any one claiming under them from interfering in any manner with the peaceful possession and 7 Judgment O.S.No.15296/2005 enjoyment over the suit schedule property. The plaintiff prays to award costs of the suit.
8. The defendants No.1 to 3 have appeared and defendant No.1 on his behalf and GPA of defendants No.2 and 3 filed written statement. The defendants No.1 submits that suit of plaintiff for relief of permanent injunction without seeking for declaration and other reliefs is not maintainable in law or on facts and as such suit has to be dismissed in limini. The plaintiff and others have already filed suit in OS.No.16322/2005 on the file of this Court against these defendants and others for reliefs of declaration and other reliefs in respect of suit schedule property. Therefore present suit for injunction is not maintainable in law and same is liable to be dismissed. The defendant No.4 also filed suit in OS.No.3483/2005 against these defendants, plaintiff and others in respect of property in question and the said suit is also pending before this Court. There is no cause of action for plaintiff to file suit. The alleged cause of action is created and imaginary one. The plaintiff has no title to alleged suit schedule property. The alleged suit 8 Judgment O.S.No.15296/2005 schedule property is not at all in existence as it is described in schedule to the plaint.
9. The defendant No.1 denied entire allegations of plaint para No.2 to 9. That defendants No.1 submits that out of total extent of 3 acre 17 guntas of land in Sy.No.81/2 of Horamavu Village, K.R. Puram Hobli, Bangalore South Taluk presently Bangalore East Taluk, he and defendants No.2 and 3 have sold an extent of 1 Acre 20 guntas in favour of Munivenkatamma W/o Dasappa and another extent of 30 guntas of land in favour of Padmavathi Madareddy/defendant No.4 and retained 1 Acre 7 Guntas of land in the said Sy.No.81/2 of Horamavu Village. That no sites have been formed in land measuring an extent of 1 acre 7 guntas which has been sold in favour of defendant No.5. The fact of alienation by defendants No.1 to 3 in favour of defendant No.4 on 01/03/2004 is very well within the knowledge of the plaintiff. The defendant No.1 prays to dismiss the suit with exemplary costs.
9
Judgment O.S.No.15296/2005
10. The defendant No.4 filed written statement. The defendant No.4 submits that description of property, its extent and boundaries mentioned in schedule to the plaint are not correct. The plaintiffs are making an attempts to lay claim for portion in land measuring an extent of 1-07 guntas in Sy.No.81/2 of Horamavu Village, KR Puram Hobli, Bangalore East Taluk, (Previously Bangalore South Taluk) under the guise of having purchased site bearing house list No.135/4 under registered sale deed. There cannot be site bearing House List No.135/4 in agricultural land. The House List khata No.135/4 indicates that property is Gramatana property. However the plaintiff is trying to lay claim for portion in the land measuring an extent of 1 Acre 7 guntas in Sy.No.81/2 of Horamavu Village, KR Puram Hobli, Bangalore South Taluk & presently Bengaluru East Taluk. The plaintiff has to first establish that there is sites bearing the House List Number with its extent and boundaries as mentioned in the sale deed and that the said sites is within the Gramatana limits and then only plaintiff can claim right over suit schedule property, failing which suit is liable to 10 Judgment O.S.No.15296/2005 be dismissed. The plaintiff has no title and possession to property as it is described in schedule to the plaint. Hence plaintiff cannot value the site at Rs.1000/- U/S 26(c) of K.C.F & S.V. Act 1956. The plaintiff has to value suit at half of market value of suit schedule property and accordingly Court Fee has to be paid U/s 26(A) of K.C.F. and S.V. Act. If the plaintiff is failed to pay court fee accordingly the plaint may be rejected. There is no cause of action for suit and hence plaintiff is not entitle for the relief of permanent injunction for want of cause of action.
11. The defendant No.4 further submits that one Narayanappa, Jayaram and Nangraj were title holders and in possession and enjoyment of the land measuring an extent of land 3 Acre 17 guntas in Sy.No.81/2 of Horamavu village, K.R Puram Hobli, Bangalore East Taluk and they have sold an extent of 1 Acre 20 guntas infavour of Munivenkatamma and an extent of 30 guntas in favour of Smt. Padmavathi Madareddy, they have retained the land measuring 1 Acre 07 guntas, they were in possession and enjoyment of the said extent 1 Acre 07 guntas of land as 11 Judgment O.S.No.15296/2005 absolute owners. The said Narayanappa, Jayaram and Nagaraja have sold the said extent of 1 Acre 07 guntas in Sy.No.81/2 of Horamavu village, K.R. Puram Hobli, Bengaluru East Taluk, in his favour under registered sale deed dated 03/01/2004 and by rectification dead dated 29/03/2004, ever since he is in possession of the said land as an absolute owner. That the Katha of aforesaid land has been transferred/mutated in the name of defendant No.4 as per M.R. No.48/03-04 and the name of defendant has been entered in the pahanies in respect of the aforesaid land. Afterwards he approached survey department and said land in Sy.No.81/2 of Horamavu Village being surveyed and phoded, the land measuring an extent of 1-07 guntas has been assigned with new Sy.No.81/3. The aforesaid extent of 1 Acre 7 guntas in new Sy.No.81/3 (old Sy.No.81(2) of Horamavu Village has not been converted for non agricultural residential purposes and it remains as an agricultural land. The defendant No.4 denied allegations of plaint paras No.2 to 9. The defendant No.4 submits that document upon which the plaintiff is relying in support of his title and possession of schedule 12 Judgment O.S.No.15296/2005 property do not in any manner relate to the land in Sy.No.81/3 (Old Sy.No.81/2) of Horamavu Village, K.R. Puram Hobli, Bengaluru East Taluk, hence the plaintiff cannot claim any right or possession over any portion of the land in Sy.No.81/3 (Old No.81/2) of Horamavu Village, K.R. Puram Hobli. The defendant No.4 prays to dismiss the suit with exemplary costs.
12. On the basis of above pleadings Issues framed as under.
:ISSUES:
(1) Whether the plaintiff proves his lawful possession and enjoyment over the suit schedule property as on the date of the suit? (2) Whether the plaintiff proves the alleged obstructions by defendants?
(3) Whether the plaintiff is entitled to the reliefs claimed?
(4) What decree or order?
13. The plaintiff examined as PW.1 and marked ExP1 to ExP9. The defendant No.1 examined as DW.1. The defendant No.5 examined as DW.2 and marked ExD1 to ExD33. 13
Judgment O.S.No.15296/2005
14. The plaintiff counsel argued. The defendants No.1 to 3 counsel argued. The defendant No.4 counsel argued and filed written arguments with citations.
15. My findings to above Issues are as under
Issue No.1) In Negative Issue No.2) In Negative Issue No.3) In Negative Issue No.4) See final order for following:
:REASONS:
16. Issues No.1 to 3:
The plaintiff Sonny Mathew S/o Mathew Rocky filed his affidavit in lieu of examination in chief as PW.1 and deposed evidence that during the year 1991-92 defendants No.1 to 3 formed layout of 47 residential sites in northern portion of their land in Sy.No.81/2 of Horamavu village, K.R.Puram Hobli to an extent of 1 acres 24 Guntas and sold said sites to different purchasers under registered sale deeds. Site No.44 was sold to 14 Judgment O.S.No.15296/2005 Padmavathi under registered sale deed on 13/01/1992. He purchased said site No.44 under registered sale deed on 05/11/2001 from Padmavati. The defendants No.1 to 3 sold Site No.45 to Padmavati and in turn she sold it to Shankar Gowda Patil, then he and said Shankar Gouda Patil exchanged their sites under registered exchange deed dt.25/11/2004. Thus he become absolute owner in possession of Sites No.45 i.e. suit schedule property. He has constructed house in suit schedule site and he is in occupation of same along with his family. The construction of house carried out with housing loan from Indian Bank. After purchase he got the khatha of suit property changed in his name and also paid property tax up to date to Horamavu Gram Panchayat. The defendants No.1 to 3 furnished to lay out plan to his vendor and other purchasers. He is in possession and enjoyment of the schedule site ever since he has taken possession of the same as described above before two years. Like him many purchasers have already constructed their houses in their respective sites in the layout purchased from defendants No.1 to 3 after obtaining building licence from 15 Judgment O.S.No.15296/2005 Horamavu village Panchayat. On 21/10/2004 defendant No.4 appeared in layout with a strange and equally untenable claim that he has purchased the land as agricultural land from defendants 1 to 3 and their children under sale deed on 01-03- 2004, wherein the layout was formed by the defendants No.1 to 3 during 1991-1992. The defendant No.4 threatened to dispossess him and other owners of the sites. Other owners lodged complaint in Rarnamurthy Nagar Police Station. The defendant is threatening to forcibly and illegally interfere with him and that of other site owners peaceful possession and enjoyment of their properties. The defendants are sending strangers to the layout who claims to be the security persons of the defendants and those people are threatening to dispossess him from schedule property and other site owners of their sites.
These persons are also intruding to the privacy of the houses in the layout. The defendant No.4 has not acquired any valid title, right or interest over the land in which the above said layout is formed and sites were sold to different purchasers including him. The sale deed dated 01/03/2004 as mentioned above and 16 Judgment O.S.No.15296/2005 on which the defendant No.4 stakes his claim is a fraudulent document and the same is illegal, and null and void and it does not confer any valid title on defendant No.4 in respect of land in Sy.No.81/2 of Horamavu village described in its schedule. He has got legal right to peaceful possession and enjoyment of suit schedule property. The sale deed dated 01/03/2004 claimed by defendant does not affect on rights and title to schedule property. He is entitle to protect his possession over suit schedule property. The PW.1 prays to decree the suit as prayed in the plaint. In support of oral evidence PW.1 marked the documents ExP1 to ExP9
17. The defendant No.1 Narayanappa S/o Venkataswamappa @ Chikkabbaiah filed his affidavit in lieu of examination in chief as DW.1 and deposed evidence that plaintiff filed suit for permanent injunction in respect of non exist alleged suit schedule properties, description of the properties, boundaries, measurements in plaint schedule is imaginary and not in existence. The land bearing Sy.No.81/2 of Horamavu Village, K.R Puram Hobli, Bangalore South Taluk, (Presently Bangalore 17 Judgment O.S.No.15296/2005 East Taluk) totally measuring 3 acres 17 Guntas originally belongs to their grandmother Venkatamma, she executed registered Will on 13/06/1988 in favour of him and his two brothers namely Nagaraja, Jayaram and his sister Pullamma. Their grandmother sold 1 acre 20 guntas in favour of Munivenkatamma of Southern Portion of Sy.No.81/2 and retained the remaining land, on her death they acquired right, title, interest and possession as per her last will executed in their favor. They became the absolute owners of land measuring 1 acre 37 guntas including kharab of 0.06 Guntas in the said Survey number, which is bounded by East: Land of Baluki Dasappa, West: Jayanthi Village, North : Land of Yamanna and South remaining portion in Sy.No.81/2 sold to Munivenkatamma. He and defendants No.2 & 3 sold Southern portion of Sy.No.81/2 measuring 30 guntas in favour of Padmavathi Madi Reddy and retained 1 acre 13 Guntas including 6 guntas of kharab, which is Northern portion of Sy.No.81/2. The defendants No.1 to 3 are agriculturist doing agriculture for their livelihood in the said land retained by them 18 Judgment O.S.No.15296/2005 in order to meet their urgent family necessities they have sold the said land measuring 1 acre 13 guntas including 6 guntas kharab in Sy.No.81/2 of Horamavu Village in favour of defendant No.5/ Y.N.Kondareddy in the year 2004, due to mistake crypt in mentioning on boundaries under the afore said sale deed, they have executed rectification deed immediately. After purchase Y.N.Kondareddy became absolute owner in possession of said land and same is bounded by East: Land of Baluki Dasappa, West: Jayanthi Village, North: Land of Yamanna, South: Land of Padamavathi Madireddy. Further said land sub phoded as Sy.No.81/3 measuring 1 acre 7 Guntas, mutation and RTC entered in the name of defendant No.5. The defendants No.1 to 3 apart from selling said land Y.N. Kondareddy never sold to anybody and never parted its possession till they sold in favour of Y.N.Kondareddty. The defendants No.1 to 3 are not benefited with education and not acquainted with worldly affairs, he know only put his signature in Kannada not knowing reading and writing any of the languages. That false allegation of the plaintiffs in the year 1992 19 Judgment O.S.No.15296/2005 they have sold alleged site bearing No.44 & 45 in alleged Katha No.135/4 of Horamavu village, K.R.Puram Hobli in favour of K.Padmavati, she in turn sold site No.44 in favour of plaintiff in the year 2001, the plaintiff and another one Shankaragouda Patil had entered exchange deed for site No.45 in favour of plaintiff is fraudulent and false. The DW.1 further deposed that they have no such katha property or sites at the alleged Horamavu village limits, the allegations of plaintiffs that a layout of sites formed in their land in Sy.No.81/2 of Horamavu village out of 1 acre 24 Guntas is false. After alienation they have not possessed 1 acre 24 guntas either to from alleged layout of sites, in fact they never approached Horamavu village Panchayat for obtaining khatha in their names, alleged khata bearing No.135/4 are bogus, fictitious Katha number, fraudulently concocted and created by plaintiffs to suit their false convenience and attribute claims in their alienated agricultural land in Sy.No.81/2.
18. The DW.1 further deposed that plaintiffs have concocted and got up documents styled as sale deeds in respect of non existed property by misusing the bogus and concocted 20 Judgment O.S.No.15296/2005 documents, the plaintiffs attempted to gain, interest in their alienated properties belongs to Y.N.Kondareddy by imaginary cause filed suit. That till they sold land measuring 1 acre 7 Guntas in Sy.No.81/2 in favour of Y.N.Kondareddy, the said land continued to be revenue assessed land entered in the RTC records maintained by revenue department and continued to be agricultural cultivable lands, they never obtained any conversion for non agricultural residential purposes and never formed any illegal layout in the said land, They have not sold any piece or inch to anybody. The alleged sale deed of plaintiffs not reflect Survey number in which the alleged sites are formed, That after alienating our land in Sy.No.81/2 measuring 1 acre 7 Guntas in favour of Y.N. Kondareddy they have no interest in the said land, the alleged cause of action is false and imaginary. The DW.1 prays to dismiss the suit of the plaintiff with exemplary cost.
19. The defendant No.5 Y.N.Kondareddy S/o Narayana Reddy filed his affidavit in lieu of examination in chief as DW.2 and deposed evidence that plaintiff filed suit against defendants 21 Judgment O.S.No.15296/2005 herein for relief of permanent injunction in respect of residential premises bearing site No.45 formed in northern portion of land in Sy.No.81/2 of Horamavu Village in house list katha No.135/4, K.R.Puram Hobli, Bangalore South Taluk measuring East to West : 37+36.6 feet and North to South : 30 feet with boundaries i.e., the suit schedule property. The suit filed by plaintiff for relief of permanent injunction in respect of alleged non existence of suit schedule property is not sustainable either in law or on facts. Without seeking for declaratory relief of title mere suit for bare injunction is not maintainable in law and hence plaintiff is not entitle for relief of permanent injunction. He is bonafide purchaser of agricultural land bearing old Sy.No.81/2 and New No.81/3 measuring 1 acre 7 guntas of Horamavu village for valuable consideration from owners defendants No.1 to 3 after enquiry and verifying the title of his vendor and comes to conclusion that vendors having marketable title to alienate said property and purchased under registered sale deed on 01/03/2004 for valuable consideration. Therefore his right, title interest and possession have to be protected under 22 Judgment O.S.No.15296/2005 law. The description of plaint schedule property extent and boundaries mentioned in plaint schedule is not at all correct. The boundaries and extent and property as stated in plaint and schedule not at all pertaining to old Sy.No.81/2 and New No.81/3 of Horamavu village, K.R.Puram Hobli, Bangalore East Taluk. The plaintiff is making attempts to lay claim in portion of land measuring to an extent of 1 acre 7 guntas in Sy.No.81/2 of Horamavu village K.R.Puram Hobli, Bangalore East Taluk under the guise of having purchased site bearing house list number under registered sale deed. The suit schedule property is nothing to do with land bearing old Sy.No.81/2 and New Sy.No.81/3 of Horamavu village, and alleged description of the plaint schedule, its boundaries and sale deed referred to in plaint is in respect of property situated in the gramatana of Horamavu and not at all pertaining to agricultural land.
20. The DW.2 further deposed that there cannot be site bearing House list number in agricultural land. The house list number indicates that property is gramatana property. However plaintiff is trying to lay to claim for portion in land measuring an extent 23 Judgment O.S.No.15296/2005 of 1 acre 7 guntas in old survey No.81/2 of Horamavu village, K.R.Puram Hobli, Bangalore South Taluk, and presently Bangalore East Taluk and contentions taken by plaintiff in pleadings and in evidence affidavit, documents relied upon by him are different to each other and therefore plaintiff is not entitle for any relief as sought for in plaint claiming the suit property in portion of land in Sy.No.81/2 of Horamavu village. The plaintiff has to establish that there is site bearing house list No. with its extent and boundaries as mentioned in the sale deed and the said site is within the gramatana limits and then only the plaintiff can claim right over the suit schedule property. The plaintiff failed to establish the property mentioned in the sale deed and also in the plaint schedule and as such suit has to be dismissed. The plaintiff is not having title and possession to the property described in the plaint schedule and as such the plaintiff cannot value Site at Rs.1000/- U/s 26(C) of KCF and SV Act 1956. The plaintiff has to value suit on market value of suit property. The vendor of plaintiff has no manner of right title interest or possession over suit schedule property and as such 24 Judgment O.S.No.15296/2005 plaintiff does not derive any right, title or possession. The document produced by plaintiff are all concocted, created and got up documents. The documents are not at all existence in the Horamavu village panchayath at all. The vendor of plaintiff also does not find place in the Horamavu Village Panchayath. On the strength of created and concocted documents false suit came to be filed against him on the non existence of the suit schedule property. There is no cause of action for suit and plaintiff is not entitle for permanent injunction for want of cause of action. The defendants No. 1 to 3 are title holders and in possession and enjoyment of land measuring to an extent of 3 acres 17 guntas in Sy.No.81/2 of Horamavu Vilalge, K.R Puram Hobli, Bengalore South Taluk and they have sold to an extent of 1 acre 20 guntas in favour of Munivenkatamma and an extent of 30 guntas in favour defendant No.4 Padmavathi Madireddy and retained land measuring 1 acre 7 guntas and they were in possession and enjoyment of 1 acre 7 guntas of land as absolute owners. The defendants No.1 to 3 and their children have sold the said 1 acre 7 guntas in Sy.No.81/2 of Horamvu Village in his 25 Judgment O.S.No.15296/2005 favour under registered sale on 01/03/2004 for valuable consideration. The vendors have noticed that there is some discrepancy in the boundaries and therefore they have executed rectification deed on 29/03/2004, ever since the date of purchase he has been in possession and enjoyment of said land as owner. That on the basis of his lawful ownership and possession the concerned revenue authorities have lawfully effected mutation in M.R No.48/2003-2004 and his name has been entered in RTC and pahanies in respect of the said property. Since the date of purchase he is paying Kandayam in respect of said property. Afterwards he approached survey department to measure and fixe boundaries in respect of Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu Village. The survey authorities surveyed and fixed boundaries in respect of said property to an extent of 1 acre 7 guntas and assigned with new Sy.No.81/3. That aforesaid extent of 1 acre 7 guntas in New Sy.No.81/3 (Old Sy.No.81/2 of Horamavu Village has not been converted for non agricultural residential purposes and it remains as on agricultural land. Further his vendors have not at all formed any sites in said land 26 Judgment O.S.No.15296/2005 and sold it to any persons including plaintiff at any point of time and remained as an agricultural land and revenue authorities lawfully entered his name in the revenue documents.
21. The DW.2 further deposed that averments made in para No.2 of the plaint that under registered sale the suit property formed in Sy.No.81/2 of Horamavu village has been purchased by the plaintiff from his vendor Padmavathi Madireddy is false. The alleged layout plan and documents of sale deeds and GPA are got up, concocted and created for the purpose of filing this suit. The DW.2 further deposed evidence that the averments made in plaint paras No.3 to 8 are false. The documents upon which the plaintiff is relaying in support of his title and possession of the schedule property do not in any manner relayed to the land in Sy.No.81/3 (Old sy.No.81/2) of Horamavu village, K.R.Puram Hobli, Bangalore East Taluk and as such the plaintiff cannot claim any right or possession over any portion of land in Sy.No.81/3 (Old Sy.No.81/2) of Horamavu village, K.R.Puram Hobli.
27
Judgment O.S.No.15296/2005
22. The DW.2 further deposed that defendants No.1 to 3 have sold only an extent of 30 guntas of land in Sy.No.81/2 of Horamavu village in favour of Padmavathi Madireddy. The defendants No.1 to 3 have not entered into any other transactions with the defendant No.4 except the sale deed referred to above which has been executed by the defendants No.1 to 3. The defendants No.1 to 3 have not at all executed GPA in favour of defendant No.4. No power has been confirmed upon the defendant No.4 under alleged GPA. After sale by the defendants No.1 to 3 in his favour, they did not own and possess any land. The alleged layout plan is got up and concocted one. In the sale deed as well as schedule given in the plaint there is no mention that the suit schedule property is the portion of Sy.No.81/2 of Horamavu village. That there are no records to show that the suit schedule property comes within the jurisdiction of Horamavu village panchayath. The suit schedule property is not at all in existence. The documents produced are all village panchayath records are not at all pertaining to Sy.No.81/2 or 81/3 of Horamavu village. He applied before the 28 Judgment O.S.No.15296/2005 Right to information officer under the RTI Act. They have sent information stating that the documents applied by him are not at all available in said offices. The plaintiff trespassed in portion of land bearing (Old Sy.No.81/2) measuring 1 acre 7 guntas and New No.81/3 of Horamavu village and constructed building. In that regard he filed suit in OS.No.3483/2005 on the file of this court for the reliefs of declaration, mandatory injunction, possession and other reliefs. The said suit is filed not only against the plaintiffs but also others. The DW.2 prays to dismiss the suit with exemplary costs. In support of oral evidence DW.1 marked ExD1 to ExD33.
23. The defendant No.5 counsel while arguing relied upon the decisions reported in 1) ILR 2005 KAR 884 2) AIR 1979 CAL 50, 3) AIR 1999 SC 1441, 4) AIR 1962 Madras 149, 5) ILR 2010 KAR 2996, 6) ILR 1998 KAR 215, 7) ILR 1998 KAR 1,
8) AIR 1990 Orissa 124, 9) AIR 2004 Karnataka 444, 10) (1998) 9 SCC 719, 11) AIR 1998 KAR 321, 12) ILR 2007 KAR
339. The relevant citations are discussed below. 29
Judgment O.S.No.15296/2005
ILR 2005 KAR 884
T.L.Nagendra Babu V/s Manohar Rao Pawar
Suit for Declaration and Injunction requirement of evidence - Duty of the Court - Held - Unless the Court is satisfied with regard to material details in the light of the material evidence with regard to the identification of the property, no declaration and injunction can be granted.
ILR 2007 KAR 339 Aralappa V/s Jagannath and others Specific Relief Act 1963-Section 34-Declaration of status or right-Discretion of Court-Held, In a suit for declaration of ownership and permanent injunction, the plaintiff has to prove his title to the property and also his possession over the property on the date of the suit-Further held, when the plaintiff is not in possession of the property on the date of suit, relief of permanent injunction is not an appropriate consequential relief- The appropriate relief 30 Judgment O.S.No.15296/2005 consequential to declaration of ownership would be recovery of possession of the property -When the plaintiff is out of possession of the property and does not seek relief for possession, a mere suit for declaration is not maintainable-Court below was justified in dismissing the suit as not maintainable- Appeals are dismissed.
24. The burden is on plaintiff to prove that he is absolute owner and in lawful possession and enjoyment of suit property as on the date of suit and defendants caused interference to his possession and enjoyment over suit schedule property. That the defendants No.1 to 3 formed layout in northern portion of their land in Sy.No.81/2 to an extent of 1 acres 24 Guntas as per the plan and sold those sites to different purchasers including plaintiff's vendor and defendants No.1 to 3 had not retained any right, title or interest in respect of land wherein the sites were formed. The purchasers of sites including plaintiff's vendor were placed in actual possession and enjoyment of their respective sites by defendants No.1 to 3 after executing registered sale 31 Judgment O.S.No.15296/2005 deed in the year 1991-1992. He has purchased the Site No.44 under registered sale deed from K.Padmavathy and said K.Pamavathy sold Site No.45 to Shankaragouda Patil. He and said Shankaragouda Patil have exchanged their respective sites through registered exchange deed dated 23/11/2004. Hence he is absolute owner and in peaceful possession and enjoyment of suit schedule property. Now defendants are causing obstruction to his possession and enjoyment over the suit schedule property. The plaintiff examined as PW.1 as discussed above. In support of oral evidence the plaintiff/PW.1 marked ExP1 to ExP9.
25. The ExP1 is certified copy of sale deed dated 05/11/2001 executed by executed by K.Padmavathi W/o Raghava Kurup in favour of present plaintiff Sonny Mathew in respect of Site No.44, Katha No.135/4 situated at Horamau village, K.R.Pura Hobli, Bangalore South Taluk. The ExP2 is tax paid receipt. The ExP3 is encumbrance certificate for the period from 01/06/1989 to 31/03/2004, wherein there are entries regarding sale of site No.44 of Horamavu village by Padmavathi in favour of plaintiff and then entry about exchange of Site No.44 and 45 between 32 Judgment O.S.No.15296/2005 plaintiff and Shankargouda Patil. The ExP4 is encumbrance certificate for the period from 01/04/2005 to 01/02/2006 relating to Site No.45, Khata No.135/4 in property No.81/2 of Horamavu village, K.R.Puram Hobli. The ExP5 is certified copy of sale deed dated:13/01/1992 executed by defendant No.1 to 3 in favour of Padmavathi relating to Site No.44 & 45. The ExP6 is letter of Assistant Revenue officer, BBMP, Horamavu Division, Bengaluru to Sonny Mathew along the DCB register extract. The ExP7 to ExP9 are photographs.
26. On the contrary the defendant No.1 examined as DW.1 as discussed above and he denied allegation of plaintiff that he is owner of suit schedule property and defendant No.1 contention that there is no existence of suit schedule property, description of property boundaries measurement mentioned in the plaint schedule is imaginary. The defendant No.1 contention that the land bearing Sy.No.81/2 of Horamavu village, K.R. Puram Hobli, Bengaluru South taluk (presently Bengaluru East Taluk) totally measuring 3 acres 17 guntas belongs to his grandmother Venkatamma and she was executed registered WILL dated 33 Judgment O.S.No.15296/2005 13/06/1988 in his favour and his two brothers Nagaraja, Jayaram and sister Pullamma. His grandmother sold 1 acre 20 guntas in favour of Munivenkatamma on the southern portion of Sy.No.81/2 and retained the remaining land, on her death they acquired right, title and possession of said portion as per the last WILL executed in their favour and they became the absolute owners of the land measuring 1 acre 37 guntas including kharab of 0.06 guntas in the said survey number, which is bounded by East: land of Baluki Dasappa, West:
Jayanthi Gram, North: land of Yamanna and South: the remaining portion in Sy.No.81/2 sold to Munivenkatamma. The defendants No.1 to 3 are agriculturists and for their livelihood they have sold 1 acre 13 guntas including 6 guntas of kharab in Sy.No.81/2 of Horamavu village in favour of defendant No.5 Y.N. Kondareddy in the year 2004, due to mistake crypt in mentioning in boundaries under the sale deed, they have executed rectification deed immediately, after purchase Y.N. Konda Reddy became absolute owner in possession of land sold by them and same was bounded by East: Land of Baluki 34 Judgment O.S.No.15296/2005 Dasappa, West: Jayanthi Gram, North: Land of Yamanna and South: land of Padmavahi Madireddy. In pursuance of registered sale deed in favour of Y.N. Kondareddy he continued in possession of the said land and afterwards the said land was sub phoded as Sy.No.81/3.
27. The defendant No.4 said Y.N. Kondareddy examined as DW.1 and he deposed evidence as contended by defendant No.1 as discussed above as he purchased land bearing Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village from defendants No.1 to 3 afterwards it is given new number as Sy.No.81/3 of Horamavu village. The defendant No.5 also denied ownership, title and possession of plaintiff over suit schedule property and also submits there is no existence of suit schedule property within the boundaries as contended by plaintiff. The defendant No.5 contention that plaintiff trespassed into the possession of the land bearing Sy.No.81/2 measuring 1 acre 7 guntas and new Sy.No.81/3 of Horamavu and constructed building and in this regard he filed the suit in O.S.No.3483/2005 on the file of this court for relief of declaration and mandatory injunction, 35 Judgment O.S.No.15296/2005 possession and other reliefs. The defendant No.5/DW.2 in support of oral evidence marked ExD1 to ExD33.
28. The ExD1 is certified copy of plaint and ExD2 is certified copy of written statement in O.S.No.3483/2005 which is filed by present defendant No.5 Y.N. Kondareddy against the defendant No.1 Narayanappa and others. The ExD3 is certified copy of plaint and ExD4 is certified copy of written statement in O.S.No.16322/2005 pending on the file of this court, which is filed by Renuka Vijayakumar & others against Narayanappa and others. The ExD5 is certified copy of sale deed dated 01/03/2004 executed by defendants No.1 and his wife and children, defendants No.2 and 3 in favour of defendant No.4 in respect of portion of agricultural dry land bearing Sy.No.81/2 measuring 1 Acre 7 Guntas + 6 Guntas Kharab situated at Horamavu village, K.R.Puram Hobli, Bangalore bounded by East, West, South: Baluki Dasappa's land, North: Padmavati's land. The ExD6 is certified copy of rectification deed dated 29/03/2004 executed by defendants No.1 and his wife and children, defendants No.2 and 3 in favour of defendant No.5 36 Judgment O.S.No.15296/2005 rectifying about boundaries mentioned in the sale deed dated.01/03/2003 towards West: Jayanti Grama, Gomala land instead of land of Baluki Dasappa, towards North:Vemanna's land instead of land of Padmavati's land, towards South:
Padmavathi's land instead of Baluki Dasappa's land. The ExD7 is Mutation Register No.48 regarding change of khatha of Sy.No.81/2 measuring from 1 acre 07 guntas from defendant No.1 Narayanappa in favour of defendant No.5 Y.N. Konda Reddy. The ExD8 is certified copy of record of right of land bearing Sy.No.81/2 to the extent of 1 Acres 7 Guntas of Horamavu village in the name of defendant No.5. The ExD9 is certified copy of Atlas map of Sy.No.81/2. The ExD10 is certified copy of Hissa tippani of Sy.No.81/2. The ExD11 is certified copy of form No.5 relating to Sy.No.81/2 of Horamavu village. The ExD12 is certified copy of the Karnataka revision settlement Aakaar bandh relating to Sy.No.81/2. In ExD13 four certified copies of record of rights relating to Sy.No.81/2 of Horamavu village are marked which are standing in the name of defendant No.5 Y.N. Kondareddy. The ExD14 is certified copy 37 Judgment O.S.No.15296/2005 of encumbrance certificate for the period from 01/06/1989 to 06/06/2007, where in there is entry regarding sale of of 1 Acre 07 Gunatas in Sy.No.81/2 of Horamavu village by defendants No.1 to 3 in favour of defendant No.4 and also regarding execution of rectification deed by defendants No.1 to 3 in favour of defendant No.4.
29. The ExD15 is certified copy of endorsement issued by Horamavu Grama Panchayath on 15/12/2004 mentioning that relating to khatha No.122/1, 122/2, 129/3, 135/4 of Sy.No.81/2 and 81/3 there are no records standing in the name of Narayanappa, Nagaraju and Jayarama in their records. The ExD16 is typed in evidence and marked as certified copy of the sale deed dated 15/04/1972, but document is not in readable condition. Hence the said document is not discussed. In ExD17 sixteen certified copies of endorsements issued by BBMP are marked as ExD17(1) to ExD17(16) those are issued by BBMP, Bengaluru on the application filed by Y.N. Kondareddy under RTI Act relating to information called in respect of house list Nos.122/1, 122/2, 135/4, 129/2, 129/3, site Nos.28, 29, 27, 26, 38 Judgment O.S.No.15296/2005 21, 41, 38, 39, 4, 5, 6, 7, 36, 44, 45 and 42 and the BBMP informed that relating to said sites in Sy.No.81/2, New No.81/3 of Hormavu village, there are no records in their office relating to layout plan, sanctioned plan in their office. In ExD18 three mutation registers are marked as ExD18 (1) to ExD18 (3) relating to transfer of Sy.No.81/2 measuring 1 acre 7 guntas from Narayanappa to Y.N. Kondareddy. The ExD19 is marked as certified copy of Atlas relating to Sy.No.81/2, but the document is not in readable condition. The ExD20 is certified copy of endorsement issued by R.M. Nagar police station on the application of Y.N. Konda Reddy. The ExD21 is certified copy of information furnished by the Sub-Registrar, Banaswadi to Y.N. Kondareddy called under RTI Act. The ExD22 is certified copy of endorsement issued by the Deputy Commissioner, Bengaluru to Y.N. Kondareddy to the information called by Y.N. Kondareddy about conversion of land bearing Sy.No.81/2 of Horamavu village for non-agricultural purpose and Deputy Commission furnished information that there are no records in 39 Judgment O.S.No.15296/2005 their office relating to the information called by Y.N. Kondareddy.
30. The ExD23 is certified copy of endorsement issued by Tahsildar, Bengaluru East Taluk informing that the land bearing Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village, K.R. Puram hobli, Bengaluru there is no order of conversion for non agriculture. In ExD24 two certified copies of tax paid receipts are marked. The ExD25 is certified copy of application given by the Tahsildar to Y.N. Kondareddy for surveying the land and making phode in Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village. The ExD26 certified copy of sale deed dated 17/07/1991 discloses that Narayanappa S/o late Chikka Abbaiah, Nagaraj S/o late Chikka Abbaiah, and Jayaram S/o late Chikka Abbaiah i.e. defendants No.1 to 3 have sold 30 Gunatas in Sy.No.81/2 of Hormavu village, K.R.Puram Hobli, Bangalore South Taluk in favour of defendant No.4 Madireddy Sripadmavathi W/o Jagadish. The ExD27 is certified copy of order sheet in OS.No.1208/04 of Prl. Civil Judge (Jr.Dn) Bengaluru Rural filed by Lazarus K against Kondareddy Y.N. 40 Judgment O.S.No.15296/2005 and ExD28 is certified copy of order on IA.1 in the said suit. The ExD29 is certified copy of survey sketch and ExD30 is certified copy of the mahazar relating to Sy.No.81/3 of Horamavu village. The ExD31 is certified copy of endorsement issued by Assistant Commissioner, Bengaluru north taluk to Y.N. Kondareddy informing about non-filing of any case for purchase of land in Sy.No.81/3 measuring 1 acre 7 guntas of Horamavu village in violation of Section 79 (a) and (b) of Karnataka Land Reforms Act. The ExD32 is certified copy of judgment in APL.No.645/2010(CH-1) of Karnataka Appellate Tribuanl Bangalore, as the said appeal filed by Shankargouda Patil challenging the confirmation order passed U/s 321(3) of Karnataka Muncipal Corporation Act in Case No.SA.KA.A/Horamavu Ward No.25/P.O/No.01/2010-11 dated 31/08/2010 by Assistant Executive Engineer, BBMP, (Bangalore East), Horamavu Sub-Division, Ramamurthy Nagar Bangalore relating to Site No.44, Katha No.135/4 formed in Sy.No.81/2 of Horamavu village and said appeal was dismissed. The ExD33 is information furnished by Assistant Revenue Officer, BBMP. 41
Judgment O.S.No.15296/2005 Horamavu Sub Division, Mahadevpur Didivion Bengaluru to Y.N.Kondareddy, as said Y.N.Kondareddy called information that in which survey number Site No.44, House List No.135/4 of Horamavu village, K.R.Pura Hobli, Bangalore South Taluk, now Bangalore East Taluk measuring 36 X 30 feet as mentioned in sale deed dated Sonny Mathew is situated and furnish documents relating construction permission, sanctioned plan of Site No.44, House list No.135/4 situated at Horamavu village given to Sonny Mathew, and the Assistant Revenue Officer furnished information that the property is revenue extention area and not entered in their records and no documents available regarding survey sketch, layout plan is not available, site is in unauthorised area documents are not available in their records.
31. The contention of the plaintiff that he has purchased the suit schedule property possession of site No.44 K. Padmavathi under registered sale deed and one Shankargouda Patil purchased Site No.45 from K.Padmavati. Then he and Shankaragouda have exchanged the sites No.44 and 45 between themselves as per Exchange Deed dated 25/11/2004. Hence he 42 Judgment O.S.No.15296/2005 is owner and in possession and enjoyment of suit schedule property site No.45. The plaintiff has produced and marked ExP1 to ExP9, out of those documents the ExP1 is sale deed dated 05/11/2001 regarding purchase of Site No.44 by plaintiff from K.Padmavati under registered sale deed, ExP2 is tax paid receipt, ExP3 and ExP4 are encumbrance certificates, ExP5 is certified copy of sale deed. Further the plaintiff has not marked the exchange deed taken place between him and Shankaragounda Patil relating to Sites No.44 and 45. Further plaintiff has not produced katha extract and katha certificate in respect of suit schedule property issued by BBMP to show that his name is appeared in the revenue records of BBMP. Further as per plaintiff the defendant No.1 to 3 are owners of Sy.No.81/2 of Horamavu village measuring to an extent of 1 acre 24 guntas of Horamavu village and they have formed 47 sites. His vendor K.Pamavathi purchased sites No.44 and 45 formed in said Sy.No.81/2 of Horamavu village from defendants No.1 to 3, then he purchased Site No.44 and Shankargouda Patil purchased Site No.45 from K.Padmavathi, then he and 43 Judgment O.S.No.15296/2005 Shankargounda Patil have exchanged Sites No.44 and 45. The defendant No.1 examined as DW.1 denied regarding formation of 47 sites in 1 Acre 24 guntas in Sy.No.81/2 of Horamavu village and sold the sites to different purchasers and also site No.44 and 45 to K.Padmavati. The defendant No.1 to 3 contention that they have sold 1 acre 7 guntas + 6 guntas pot kharab land to the defendant No.5 Y.N. Kondareddy on 01/03/2004.
32. The defendant No.5 examined as DW.2 deposed that he has purchased the land 1 acre 7 guntas + 6 Guntas pot kharab land in Sy.No.81/2 of Horamavu village from defendants No.1 to 3 Narayanappa and others and since then he possession and enjoyment of said agricultural land. The defendant No.5 denied regarding formation of 47 sites in Sy.No.82/1 measuring 1 Acre 24 Guntas of Hormavu. In support of his oral contention DW.2 marked ExD5 certified copy of the sale deed dated 01/03/2004 regarding purchase of 1 Acre 13 Gunta in Sy.No.81/2 of Horamavu village by him from the defendants No.1 to 3 and also produced rectification deed about rectification of 44 Judgment O.S.No.15296/2005 boundaries towards west, north, south in sale deed as per ExD6. Further as per ExD7 mutation register katha of 1 acre 7 guntas in Sy.No.81/2 of Horamavu village transferred in the name of defendant No.5 from defendants No.1 to 3. Further as per ExD8 name of defendant No.5 is appeared in the record of rights of the land bearing Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village for the year 2004-05. The DW.2 has marked ExD9 Atlas, ExD10 Tippani, ExD11 form No.5, ExD12 Karnataka Revision Settlement Akaar Bandh relating to Sy.No.81/2 of Horamavu village and afterwards new number was given as Sy.No.81/3. Further the ExD13 (1) to ExD13(4) are records of rights of the Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village in the year 2004-2005 till 2009- 2010 discloses the name of defendant No.5 Y.N. Kondareddy as owner and cultivator of the said land. Under the circumstances burden is on plaintiff to prove that said land bearing Sy.No.81/2 to an extent of 1 acre 24 guntas of Horamavu village defendants No.1 to 3 formed 47 sites and sold to different purchasers and Sites No.44 and 45 sold to K.Padmavathi. But to prove said fact 45 Judgment O.S.No.15296/2005 plaintiff has not produced conversion order copy of said land measuring 1 acre 24 guntas in Sy.No.81/2 of Horamavu village for non-agricultural purpose issued by the competent authority along with layout plan, sketch of the said land and also house list numbers given to the said 47 sites by the concerned revenue authority. The plaintiff contended that to the suit property house list katha No.135/4 of Horamavu village was given. But to prove said fact there is no specific document produced by the plaintiff. The PW.1 in his cross-examination deposed evidence that "Sy.No.81/2 is 1 Acre 24 Guntas. I have seen the document about it, I have seen the record of right. But I have not produced it. Defendant No.1 to 3 are owners of Sy.No.81/2. I have not seen any documents standing in the name of defendants No.1 to 3. In 1992 I visited the suit spot. I have not seen layout plan made by defendants. I have personal knowledge regarding formation of layout. I do not know the boudaries of Sy.No.81/2. I have got produced the title deeds of defendants 1 to 3. I do not know any particulars about Sy.No.81/2 but I know everything about 46 Judgment O.S.No.15296/2005 my site. I know regarding rules for making sites in agricultural land. This Sy.No.81/2 not converted into NA. I do not know that in revenue records till today Sy.No.81/2 is agricultural land." The PW.1 further deposed evidence that "I do not know that defendants 1 to 3 sold 30 guntas in favour of M.Padmavathi. I do not know that defendant 1 to 3 sold 1 Acre 20 Guntas infavour of Dasappa. I do not know boundaries of 30 gunta purchased by Padmavathi. I do not know that defendant 1 to 3 have sold 1 Acre 7 guntas to defendant No.4. I do not know that revenue records are changed in the name of defendant No.4". Therefore the evidence of PW.1 discloses that land bearing Sy.No.81/2 is not converted in non agricultural. Where as in the plaint he contended that in Sy.No.81/2 of Horamavu village suit property is formed. To prove said contention the plaintiff has not produced any documents. The documents produced by plaintiff are not sufficient to come to conclusion that the plaintiff is the owner and in possession of the suit schedule property as on date of suit. The defendants No.1 to 3 have denied the formation of 47 Judgment O.S.No.15296/2005 sites in Sy.No.81/2 of Horamavu village and also title of the plaintiff over suit schedule property. Under the circumstances the suit of the plaintiff for bare injunction is not maintainable.
33. The DW 2 marked ExD17(1) endorsement discloses that house list No.122/1, 122/2, 135/4, 129/2, 129/3 relating to Sy.No.81/2 New Sy.81/3 of Horamavu village, the documents verified in office, but said documents are not found in the revenue records in the name of Naryanapappa, Nagaraju and Jayaram. Further ExD17(2) endorsement discloses that no sanction plan or layout plan relating to Site No.20, 29, 27, 28, 26, 21, 41, 38, 39, 4, 5, 6, 7, 36, 44, 45, 42 of Sy.No.81/2 new Sy.No.81/3 of Horamavu village are found in their records, and such documents are not in the name of Nagaraja, Narayanappa and Jayarama in their office records. In ExD17(3) the defendant No.5 called information regarding furnishing copies of khatas of Sites No.20, 29, 28, 27, 26, 37, 21, 41, 38, 4, 5, 6, 7, 36, 44 and 45, 42, 23 in katha Nos.122/2, 122/1, 135/4 of Horamavu village and the Revenue Officer furnished the information that Namuna No.9 and 10 of the said properties are not in the name 48 Judgment O.S.No.15296/2005 of Nagaraju, Narayanappa and Jayarama. Further the ExD23 is endorsement issued by the Tahsildar, Bengaluru East Taluk mentioning in Sy.No.81/3 measuring 1 acre 7 guntas of Horamavu village there is no conversion of land. Therefore from these exhibits discussed above it is clear that the land bearing Sy.No.81/2 measuring an extent of 1 acre 07 guntas of Horamavu village not converted for agricultural purpose and no sites were formed in the said land. Further records of rights for the years 2004-2005 till 2009-2010 marked by DW.2 at ExD8, ExD13(1) to ExD13(4) discloses the land measuring 1 acre 7 guntas in Sy.No.81/2 of Horamavu village in the name of defendant No.5 Y.N. Kondareddy is an agricultural land, hence at the time of filing suit by plaintiff in the year 2004 said land is agricultural land. That in the citation reported in ILR 2005 Karnataka 884 relied by the defendant No.5 counsel it is held that "Unless the Court is satisfied with regard to material details in the light of the material evidence with regard to the identification of the property, no declaration and injunction can be granted." Further in the another citation 49 Judgment O.S.No.15296/2005 reported in ILR 2007 Karnataka 339 relied by the defendant No.5 counsel it is held that "In a suit for declaration of ownership and permanent injunction, the plaintiff has to prove his title to the property and also his possession over the property on the date of the suit-Further held, when the plaintiff is not in possession of the property on the date of suit, relief of permanent injunction is not an appropriate consequential relief-The appropriate relief consequential to declaration of ownership would be recovery of possession of the property -When the plaintiff is out of possession of the property and does not seek relief for possession, a mere suit for declaration is not maintainable-Court below was justified in dismissing the suit as not maintainable-Appeals are dismissed". The both citation discussed above applies to the present case in hand, as in the present suit the plaintiff failed to prove his lawful ownership, possession and enjoyment over the suit schedule property as on date of suit, hence question of interference by the defendants in the said property does not arise. Hence plaintiff is not entitle for relief of permanent 50 Judgment O.S.No.15296/2005 injunction against the defendants. The plaintiff failed to prove Issues No.1 to 3. Therefore I answer Issues No.1 to 3 in Negative.
34. Issue No.4:
In view of above discussion I proceed to pass the following :ORDER:
The suit of the plaintiff is here by dismissed with costs.
Draw decree accordingly.
(Dictated to the stenographer on computer, typed by her. Then corrected on line in computer and taken print out, corrected, signed and pronounced by me in the open court on this 22nd day of September 2021).
(Smt.Suvarna K. Mirji) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.
:ANNEXURE:
WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1 : Sonny Mathew S/o Mathew Rocky DOCUMENTS MARKED FOR THE PLAINTIFF ExP1: Certified copy of sale deed ExP2: Tax paid receipt 51 Judgment O.S.No.15296/2005 ExP3: Encumbrance Certificate ExP4: Encumbrance Certificate ExP5: Certified copy of the sale deed ExP6: Copy of Form No.10 & 11 with letter. ExP6 to 9: photographs.
WITNESSES EXAMINED FOR THE DEFENDANTS DW.1 : Narayanappa S/o Venkataswamappa @ Chikkabbaiah DW.2: Y.N.Kondareddy S/o Narayana Reddy DOCUMENTS MARKED FOR THE DEFENDANTS ExD1: Certified copy of plaint in O.S.No.3483/2005 ExD2: Certified copy of W.S in OS No.3483/2005 ExD3: Certified copy of plaint in OS No.16322/2005 ExD4: Certified copy of Written Statement in OS No.16322/2005 ExD5: Certified copy of sale deed dated 01/03/2004 ExD6: Certified copy of Rectification deed ExD7: Certified copy of Mutation ExD8: Certified copy of RTC ExD9: Certified copy of Atlas copy ExD10: Certified copy of Hissa Tippani copy, ExD11: Certified copy of Form No.5 ExD12: Certified copy of the Karnataka Revision Settlement Akhar Bandh, ExD13(1) to ExD13(4): Certified copies of RTC ExD14: Certified copy of Encumbrance Certificate 52 Judgment O.S.No.15296/2005 ExD15: Certified copy of Endorsement by Horamavu Grama Panchayath ExD16: Certified copy of Sale deed dated 15/04/1972 ExD17(1) to ExD17(16): Certified copies of endorsements ExD18(1) to ExD18(3): Certified copies of the Mutation Register extract ExD19: Certified copy of Atlas copy ExD20: Certified copy of endorsement issued by police ExD21: Certified copy of RTI information by Sub-Registrar, Banaswadi ExD22: Certified copy of Endorsement issued by Deputy Commissioner, ExD23: Certified copy of Endorsement by Tahasildar ExD24(1) to ExD24(2): Certified copies of Receipt ExD25: Certified copy of Application given to Tahasildar ExD26: Certified copy of Sale deed dated 17/07/1991 ExD27: Certified copy of Order sheet in O.S.No. 1208/2004 ExD28: Certified copy of Order on IA No.1 in O.S.No.1208/2004 ExD29: Certified copy of Survey Sketch ExD30: Certified copy of Mahazar ExD31: Certified copy of endorsement by Assistant Commissioner, Bangalore North ExD32: Certified copy of the order copy in appeal No.645/2010, ExD33: Certified copy of RTI information by Assistant Revenue Office, Horamavu BBMP.
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.