Bangalore District Court
Raghavendra R M vs Shak Mahaboob on 18 September, 2024
1 O.S.No.4289/2019
KABC010190262019
Presented on : 17-06-2019
Registered on : 17-06-2019
Decided on : 18-09-2024
Duration : 5 years, 3 months, 1 days
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF LXXV ADDL. CITY CIVIL AND
SESSIONS JUDGE, AT: BENGALURU (C.C.H.76)
PRESENT : Sri. SHIVANAND MARUTI JIPARE,
B.A., LL.B. (Spl.)
LXXV Addl. City Civil and Sessions
Judge, Bengaluru
Dated this the 18th day of September, 2024
ORIGINAL SUIT No.4289/2019
PLAINTIFF : 1. Sri. R.M Raghavendra,
S/o. Sri. R.G Muniswamappa,
Aged about 40 years,
Residing at No.304,
4th 'A' Main Road,
AMS Layout,
Vidyaranyapura,
Bengaluru - 560 097.
2 O.S.No.4289/2019
(By Sri. A. Ramachandra., Advocate.)
:Versus:
DEFENDANTS : 1. Sri. Shak Mahaboob,
S/o. Late Abdul Kudus,
Aged about 65 years,
2. Sri. Saradar Pasha,
S/o. Shak Mahaboob,
Aged about 37 years,
3. Sri. Wazid,
S/o. Late Abdul Kalal,
Aged about 47 years,
4. Sri. Amzeed,
S/o. Late Abdul Kalal,
Aged about 45 years,
5. Sri. Irshad Pasha,
S/o. Shak Payrazan,
Aged about 45 years,
6. Sri. Iliyas Pasha,
S/o. Shak Payrazan,
Aged about 40 years,
All are residing at
M.S Palya Old Village,
Near Jamya Mazid
Adjacent to Fathima Store,
Vidyaranyapura,
Bengaluru - 560 097.
3 O.S.No.4289/2019
(By Sri. H. Manjunath., Advocate for D-1 to 4 and
6.)
(Defendant No.5 : Exparte.)
**********
Date of Institution of the suit. 17.06.2019
Nature of the suit Suit for Permanent
Injunction
Date of commencement of
recording of evidence
29.09.2022
Date on which the judgment
was pronounced 18.09.2024
Total Duration Years Months Days
05 03 01
(SHIVANAND MARUTI JIPARE)
LXXV ADDL. CITY CIVIL AND SESSIONS JUDGE,
BENGALURU.
JUDGMENT
4 O.S.No.4289/2019 The plaintiff has filed this suit against the defendants seeking the relief of permanent injunction and for costs.
2. The brief facts averred in the plaint are as follows:
That plaintiff is the absolute owner in possession and enjoyment of the suit schedule property i.e. residential site No.201 (Old No.26) in New Khatha No.404 of Bruhath Bengaluru Mahanagar Palike and old Khatha No.201/26, formed out of converted land bearing Sy.No.53/2C+3A situated at M.S.Palya Extension, Jarakabande Kaval Village, Yelahanka Hobli, Bengaluru, North Taluk, Bengaluru measuring East to West 72 feet, and North to South 25 feet, having acquired title and possession by virtue of absolute sale deed dated: 03.02.2011 executed by his vendor for valuable sale consideration which had been duly got registered in office of Sub- Registrar Byatarayanapura as document No.BYP-1-05067/2010-11. After acquiring the title and possession of the suit 5 O.S.No.4289/2019 schedule property, the plaintiff is in peaceful possession and enjoyment of the suit schedule property ever since. The Khatha of the property issued in the name of the plaintiff. The plaintiff has paid property tax to concern authority. Originally property was belongs to Mahamedsab S/o.Yusuf and he had acquired land in Sy.No.53/2C+3A situated at Mahamedsabpalya (M.S.Palya), Jarakabande Kaval, Yelahanaka Hobli, Bengaluru North Taluk, thereafter converted to the residential sites and sold one of the site No.26 formed in Sy.No.53/2C+3A, Mahamedsabpalya (M.S.Palya), Jarakabande Kaval, Yelahanaka Hobli, Bengaluru North Taluk, Bengaluru, measuring East to West 65 feet and North to South 40 feet to K.Ponnaswamy through registered sale deed dated: 14.09.1992. In the year 2004, the land owners are disputed to site owners, the said K.Ponnaswamy filed suit against land owners i.e Mahamedsab and others in O.S.No.2369/2004 before City Civil Judge at Bengaluru (CCH-19) and the said suit was 6 O.S.No.4289/2019 compromised on 24.06.2005 and as per the compromise decree revised measuring East to West 72 feet, North to South 25 feet, out of measuring East to West 65 feet, North to South 40 feet allotted to the K.Ponnaswamy and he was occupied measuring East to West 72 feet and North to South 25 feet and paid property tax to the concerned authority. Thereafter the said K.Ponnaswamy gifted the suit schedule property to his wife P.Kasturi through registered Gift deed dated: 06.02.2008. After acquiring the said property, P.Kasturi has transferred the Khatha in her name. Thereafter, she was constructed A.C.C sheet house and obtained electricity connection in her name. The plaintiff has paid property tax to the concerned authority accordingly. After purchase of the suit schedule property, the plaintiff is in peaceful possession and enjoyment of the suit schedule property and he had installed the boulders around the suit schedule property. On 09.06.2019, the defendants along with some anti-socials have approached the plaintiff and 7 O.S.No.4289/2019 they have stated to him that they are the owners and trying trespass into the suit schedule property and they are illegally dug the trenches to the suit schedule property. On coming to know about the same, the plaintiff rushed to the spot and appraised the defendants that the suit schedule property belongs to him, the plaintiff resist the activities of the defendants and on that day the defendants and their agents went away from the suit schedule property and warned the plaintiff that they will definitely come back with supporters to trespass the suit schedule property. Hence, the plaintiff has approached the Vidyaranyanagar Police station, but refused to take complaint by stating that the matter is in civil nature. Again on 12.06.2019 come with 30 to 40 people and have tried to remove the boulders the plaintiff had erected around the suit schedule property. The defendants have no manner, right, title or interest on suit schedule property and they are indulged in altogether illegal and highhanded acts, the defendants have been illegally 8 O.S.No.4289/2019 trying to trespass on suit schedule property. Hence, this suit.
3. In pursuance of the suit summons, defendant No.1 to 4 and 6 have appeared through their Counsel. The defendant No.5 is remained absent and he is placed exparte. The defendant No.1 to 4 and 6 have filed written statement.
4. The defendant No.1 to 4 and 6 have denied the plaint averments in toto. The defendant No.1 to 4 and 6 have denied that, the plaintiff is absolute owner in peaceful possession and enjoyment of the suit schedule property i.e. residential site No.201 (Old No.26) in New Khatha No.404 of Bruhath Bengaluru Mahanagar Palike and old Khatha No.201/26, formed out of converted land bearing Sy.No.53/2C+3A situated at M.S.Palya Extension, Jarakabande Kaval Village, Yelahanka Hobli, Bengaluru, North Taluk, Bengaluru measuring East to West 72 feet and North to South 25 feet, having acquired title and 9 O.S.No.4289/2019 possession by virtue of absolute sale deed dated:
03.02.2011 executed by his vendor for valuable sale consideration. The defendant No.1 to 4 and 6 contend that there must be antecedent of title to the suit property and plaintiff did not mention anything about originally the suit property belongs to whom, how did he acquired the right, title, interest and possession over the suit property etc and in the absence of mentioning or furnishing such materials in the above suit and just mentioning about same is converted land does not make out any case of tracing of flow of title of the plaintiff and question of lawful possession deems to be lawful rights of the plaintiff who derives the title from the true owner the suit of the plaintiff about he is in lawful possession does not tenable in the eye of law. The defendant No.1 to 4 and 6 have denied that, originally property was belongs to Mahamedsab S/o.Yusuf and he had acquired land in Sy.No.53/2C+3A situated at Mahamedsabpalya (M.S.Palya), Jarakabande Kaval, Yelahanaka Hobli, 10 O.S.No.4289/2019 Bengaluru North Taluk, thereafter converted to the residential sites and sold one of the site No.26 formed in Sy.No.53/2C+3A, situated at Mahamedsabpalya (M.S.Palya), Jarakabande Kaval, Yelahanaka Hobli, Bengaluru North Taluk, Bengaluru, measuring East to West 65 feet and North to South 40 feet to K.Ponnaswamy through a registered sale deed dated:
14.09.1992. The defendant No.1 to 4 and 6 have denied that in the year 2004, the land owners are disputed to site owners, the said K.Ponnaswamy filed suit against land owners i.e. Mahamedsab and others in O.S.No.2369/2004 before City Civil Judge at Bengaluru (CCH-19) and the said suit was compromised on 24.06.2005 and as per the compromise decree revised measuring East to West 72 feet, North to South 25 feet, out of measuring East to West 65 feet, North to South 40 feet allotted to the K.Ponnaswamy and he was occupied measuring East to West 72 feet and North to South 25 feet and paid property tax to the concerned authority and 11 O.S.No.4289/2019 thereafter, the said K.Ponnaswamy gifted the suit schedule property to his wife P.Kasturi through registered Gift deed dated: 06.02.2008. The defendant No.1 to 4 and 6 contend that O.S.No.2369/2004 is not way relevant for purpose of this suit and these defendants are not parties to said suit and the same is not binding on these defendants. The defendant No.1 to 4 and 6 have denied that, after acquiring the property, P. Kasturi has transferred the Khatha in her name and she was constructed A.C.C sheet house. The defendant No.1 to 4 and 6 have denied that on 09.06.2019, they along with some anti-socials have approached the plaintiff and they have stated to him that they are the owners and they are trying trespass into the suit schedule property and they are illegally dug the trenches to the suit schedule property and on coming to know about the same, the plaintiff rushed to the spot and appraised the defendants that the suit schedule property belongs to him, the plaintiff resist the activities of the defendants and on that 12 O.S.No.4289/2019 day the defendants and their agents went away from the suit schedule property and warned the plaintiff that they will definitely come back with supporters to trespass the suit schedule property. The defendant No.1 to 4 and 6 contend that, mere permanent injunction is not maintainable and the plaintiff ought to maintain the suit for declaration and possession over the suit schedule property. The defendant No.1 to 4 and 6 contend that, if the party to the partition has an antecedent title to the property, it only enables him to obtain what is his own in a definite and specific form. In a partition, no one transfers title which he possesses in favour of a person who does not possess a title. Everyone has an antecedent title. Therefore no conveyance is involved. In the process as conferment of a new title is not necessary.
It does not amount to transfer. Therefore, partition is not a transfer and by partition no body acquires title to any property for the first time. Consequently the partition deed only recognizes an existing right, which each party 13 O.S.No.4289/2019 to the deed has in the joint property and no right spring from the deed. Hence, there is no sanctity of value for the version of the plaintiff in regard to acquiring right by virtue of the partition as plaintiff did not state about when the alleged Sri.Mohd. Sab and children got the suit property by way of grant. Hence the suit of the plaintiff is tenable in the eye of law. The defendant No.1 to 4 and 6 contend that until and unless the local planning authority i.e. BDA is issuing the layout plan the question of considering about site No.201 cannot be assumable as the same is imagination of the plaintiff and it is not mere wishes of the vendors of the plaintiff and self imagination of the plaintiff and suit of the plaintiff is not tenable. The defendant No.1 to 4 and 6 contend that the question of title of K. Ponnaswamy and his vendor Sri. Mohamedsab itself is seriously disputed and there is no flow of title and question of plaintiff claiming through them does not give him any right, title, interest and possession of the suit schedule property and act of the plaintiff claiming the 14 O.S.No.4289/2019 suit property by virtue of the alleged compromise decree in O.S.No.2369/2004 itself is vague and liable to be deprecated as compromise decree does not derive any right, title, interest and possession unless the vendor of the plaintiff got antecedent title by virtue of grant and for the purpose of cause of action the plaintiff created plaint story and it is utter lie and it is only imagination of the plaintiff and there is no cause of action and under the facts and circumstances of defective title in not stating about the flow of title of original owner i.e. Mohd Sab makes him about suit of the plaintiff for the relief of permanent injunction is not maintainable and he ought to maintain declaration suit to claim the lawful possession over the suit property. The defendant No.1 to 4 and 6 contend that, they are the owners of the land bearing Sy.No.53/2, measuring 11- acre 18- guntas by inheriting the same from one original propositer Sri.Abdul Sattar, and after his demise the said property fallen to his son Sri. Abdul Khudus i.e. 11 -acre 18 -guntas and he died 15 O.S.No.4289/2019 intestate and said property fallen in to the share of Sri. Shaik Mohaboob who is son of Sri.Abdul Khudus and presently the revenue documents are standing in the name of the defendant No.2 to 6. There is no existence of the land Sy.No.53/2C+3A totally measuring 12 -acre 13
- guntas, out of which Mohd. Sab got land measuring 01
-acre 19 - guntas, which is re-numbered as Sy.No.53/3A and he falsely claimed Sy.No.53/2C+3A is his land which and there is no reference of RTC/1976 indicating about how said survey number came into existence in the name of alleged Mohd. Sab in the RTC entries and 76-77 revenue documents showing Sy.No.53/2 measuring 11- acre 18 - guntas in the name of Sri. Abdul Khuddus, who is grand-father of defendant No.2 and upto 1994. The defendant No.1 to 4 and 6 contend that there is Sy.No.53/2 C 1 is the land belonging to these defendants and there is no land belonging to vendors of the plaintiff i.e. Sy.No.53/2C+3A measuring 01 - acre 19 - guntas as per the alleged partition deed share fallen to the 16 O.S.No.4289/2019 legitimate share of Mohd. Sab S/o. Yusuf Sab. Hence, the suit of the plaintiff is based upon the defective title and liable to be dismissed as Mohd. Sab never acquired Sy.No.53/2 C in the partition deed and merely showing the numbers other papers does not makes out about they are the owners of the said survey number and plaintiff is wrongly claiming the property belonging to these defendants i.e. Sy.No.53/2 C 1 measuring 19 -guntas and got the revenue documents in their name and they are in peaceful possession and enjoyment of their respective land and presently plaintiff claiming wrong survey numbers wants to get the land belonging to these defendants. The suit is undervalued. Hence, the defendant No.1 to 4 and 6 pray to dismiss suit with exemplary costs.
5. On the basis of above pleadings, following Issues have been framed by my learned Predecessor in Office.
ISSUES 17 O.S.No.4289/2019
1. Whether the plaintiff proves that, he is in lawful possession of the suit property as on the date of filing of this suit?
2. Whether the plaintiff proves the alleged interference by the defendants with respect to the suit property?
3. Whether the plaintiff is entitled for the reliefs as claimed in the suit?
4. What order or decree?
6. In support of the case, the plaintiff is examined as P.W.1 and got marked 37 documents at Ex.P.1 to Ex.P.37 and closed his side evidence. In rebuttal, the defendant No.2 is examined as D.W.1 and got marked 17 documents at Ex.D.1 to Ex.D.17 and closed their side evidence.
7. Heard the arguments of both learned Counsels of both parties at length and perused the materials on record.
8. My findings on the above Issues are as under:
Issue No.1 : In the Affirmative
Issue No.2 : In the Affirmative
18 O.S.No.4289/2019
Issue No.3 : In the Affirmative
Issue No.4 : As per the final order
for the following:
REASONS
9. ISSUE NO.1: The plaintiff has asserted that he is the absolute owner in possession and enjoyment of the suit schedule property, having acquired title and possession by virtue of absolute sale deed dated:
03.02.2011 executed by his vendor for valuable sale consideration. After acquiring the title and possession of the suit schedule property, the plaintiff is in peaceful possession and enjoyment of the suit schedule property ever since. The Khatha of the property issued in the name of the plaintiff. The plaintiff has paid property tax to the concerned authority.
10. Per contra, the defendant No.1 to 4 and 6
have contended that, there must be antecedent of title to the suit property and plaintiff did not mention anything about originally the suit property belongs to whom, how 19 O.S.No.4289/2019 did he acquired the right, title or interest and possession over the suit property. The defendant No.1 to 4 and 6 have contended that O.S.No.2369/2004 is not way relevant for purpose of this suit and these defendants are not parties to said suit and the same is not binding on these defendants. The defendant No.1 to 4 and 6 have contended that until and unless the local planning authority i.e. BDA is issuing the layout plan the question of considering about site No.201 cannot be assumable as the same is imagination of the plaintiff and it is not mere wishes of the vendors of the plaintiff and self imagination of the plaintiff and suit of the plaintiff is not tenable. The defendant No.1 to 4 and 6 have contended that the question of title of K. Ponnaswamy and his vendor Sri. Mohamedsab itself is seriously disputed and there is no flow of title and question of plaintiff claiming through them does not give him any right, title, interest and possession of the suit schedule property and act of the plaintiff claiming the suit property by virtue of the alleged 20 O.S.No.4289/2019 compromise decree in O.S.No.2369/2004 itself is vague and liable to be deprecated as compromise decree does not derive any right, title, interest and possession unless the vendor of the plaintiff got antecedent title by virtue of grant and for the purpose of cause of action the plaintiff created plaint story and it is only imagination of the plaintiff and there is no cause of action and under the facts and circumstances of defective title in not stating about the flow of title of original owner i.e. Mohd Sab makes him about suit of the plaintiff for the relief of permanent injunction is not maintainable. The defendant No.1 to 4 and 6 have contended that, they are the owners of the land bearing Sy.No.53/2, measuring 11- acre 18 -guntas by inheriting the same from one original propositer Sri.Abdul Sattar, and after his demise the said property fallen to his son Sri. Abdul Khudus i.e. 11 -acre 18 -guntas and he died intestate and said property fallen into the share of Sri.Shaik Mohaboob who is son of Sri.Abdul Khudus and presently the revenue documents 21 O.S.No.4289/2019 are standing in the name of the defendant No.2 to 6. There is no existence of the land Sy.No.53/2C+3A totally measuring 12 -acre 13 - guntas, out of which Mohd. Sab got land measuring 01 -acre 19 - guntas, which is re- numbered as Sy.No.53/3A and he falsely claimed Sy.No.53/2C+3A is his land which and there is no reference of RTC/1976 indicating about how said survey number came into existence in the name of alleged Mohd. Sab in the RTC entries and 76-77 revenue documents showing Sy.No.53/2 measuring 11- acre 18 - guntas in the name of Sri. Abdul Khuddus, who is grand- father of defendant No.2 and upto 1994.
11. In order to substantiate the contention, the plaintiff has filed an affidavit as examination-in-chief and he is examined as P.W.1. The P.W.1 has reiterated the contents of plaint. The defendant No.2 has filed an affidavit as examination-in-chief and he is examined as 22 O.S.No.4289/2019 D.W.1. The D.W.1 has reiterated the contents of written statement.
12. The plaintiff has relied on documentary evidence at Ex.P.1 to Ex.P.37.
13. The defendants have relied on documentary evidence at Ex.D.1 to Ex.D.17.
14. The plaintiff has relied on Ex.P.1 - Sale deed dated: 03.02.2011, Ex.P.2 - Form 'B' property register extract, Ex.P.3 - Tax paid receipt, Ex.P.4 and 5 - Property Tax paid receipts, Ex.P.6 -RTC extract, Ex.P.7 -Sale deed dated: 14.09.1992, Ex.P.8 -Encumbrance certificate, Ex.P.9 - Certified copy of compromise petition in O.S.No.2369/2004, Ex.P.10- Certified copy of Decree in O.S.No.2369/2004, Ex.P.11 - Certified copy of Order sheet in O.S.No.2369/2004, Ex.P.12 to 14 -Self Assessment Tax challans, Ex.P.15 and 16 - Self assessment property tax details, Ex.P.17 - Gift deed dated: 06.02.2008, Ex.P.18 - Encumbrance certificate, Ex.P.19 - Form 'B' Property 23 O.S.No.4289/2019 register extract, Ex.P.20 - Tax paid receipt, Ex.P.21 and 22
- Property Tax receipts, Ex.P.23 and 24 - Payment acknowledgments, Ex.P.25 - Tax Invoice of Landis + Gyr Limited, Ex.P.26 - Sanction letter of Electricity, Ex.P.27 - Electricity Bills, Ex.P.28- Receipt of BESCOM, Ex.P.29 to 32
- Photos, Ex.P.32(a) - C.D, Ex.P.33 - True copy of Mutation extract, Ex.P.34 - True copy of Hissa Survey Tippani and Ex.P.35 to 37 - True copies of RTC extracts.
15. The defendants have relied on Ex.D.1 - Death certificate of Shaik Mahabub, Ex.D.2 - Form No.10, Ex.D.3
- Jarakabande Village Kethuvar, Ex.D.4 - Sketch, Ex.D.5 - Villagers consent deed dated: 03.07.1925, Ex.D.6 - Endorsement issued by Tahasildar dated: 19.12.2017, Ex.D.7 - Certified copy of Survey sketch, Ex.D.8- True copy of Akarbandh, Ex.D.9 - True copy of Hissa Survey extract, Ex.D.10 - Certified copy of RTC extract of Sy.No.53/2, Ex.D.11 - RTC extract of Sy.No.53/2C1, Ex.D.12 - Release deed dated: 29.06.2019, Ex.D.13 and 24 O.S.No.4289/2019 14 - Encumbrance certificates, Ex.D.15 - Certified copy of Order in W.P.No.8572/2020 (LB-BMP-PIL) passed by Hon'ble High Court of Karnataka, Bengaluru, Ex.D.16 - Certified copy of Order in Writ Petition No.8572/2020 (LB- BMP-PIL) passed by Hon'ble High Court of Karnataka, Bengaluru, and Ex.D.17 - RTC extract.
16. The learned Counsel Sri. A. Ramachandra appearing for plaintiff has vehemently argued that the plaintiff is absolute owner in possession and enjoyment of the suit schedule property and the defendants have no manner, right, title or interest on suit schedule property and the defendants have been illegally trying to trespass on suit schedule property. The learned Counsel Sri. H. Manjunath appearing for defendant No.1 to 4 and 6 have vehemently argued that, the defendants are the owners of the land bearing Sy.No.53/2, measuring 11 - acre 18 - guntas by inheriting the same from one original propositer Sri. Abdul Sattar, and after his demise the said 25 O.S.No.4289/2019 property fallen to his son Sri. Abdul Khudus i.e., 11 -acre 18 - guntas and he died intestate and said property fallen into the share of Sri. Shaik Mohaboob who is son of Sri. Abdul Khudus and presently the revenue documents are standing in the name of defendant No.2 to 6 and mere suit for permanent injunction is not maintainable and the plaintiff ought to maintain the suit for declaration and possession over the suit schedule property.
17. The learned Counsel for defendants has relied upon following decisions:
1. ILR 2014 KAR 1311, in case of Smt. Sumitra Bai
-Vs- P. Siddesh and Another.
2. ILR 2007 KAR 339, in case of Sri.Aralappa -Vs-
Sri. Jagannath and Others.
3. 2018 3 KCCR 2175, in case of Bharatesh Balasaheb Kuppanatte -Vs- Noorbabasab Peeraso Mantoorkar.
26 O.S.No.4289/2019
4. 2017 AIR CC 3313, in case of Sathyamma -Vs- Kempamma.
5. 2023 (2) Kar.L.R 572, in case of Smt. Susheelamma and Another - Vs- B.M. Kariappa.
6. ILR 2005 KAR 884, in case of T.L.Nagendra Babu - Vs- Manohar Rao Pawar.
7. 2024 (2) AKR 701, in case of Hanumanthappa Husnappa Kattimani Since Dead by his Lr's -Vs- Leela Mareppa Kattimani.
8. AIR 2004 SC 1893, in case of Vasantiben Prahladji Nayak and others -Vs- Somnath Muljibhai Nayak and others.
I have bestowed my anxious considerations to the principles emerges from these respected decisions.
18. On perusal of Ex.P.1 which reflects that, Smt. P.Kasturi has executed registered sale deed in favour of plaintiff in respect of the suit schedule property for sale consideration of Rs.14,40,000/- on 03.02.2011. On 27 O.S.No.4289/2019 perusal of Ex.P.2 which reflects that, the suit schedule property is standing in the name of the plaintiff. The plaintiff has relied on documents at Ex.P.4 and 5 - Property Tax paid receipts. On perusal of Ex.P.6 which shows that names of Usuf S/o.Mohammed Pasha for property measuring 12 -acres 13-guntas, Mohammad Sab S/o. Usuf for property measuring 1 - acres 06
-guntas, Mohammed Hustan Sab for property measuring 5 - acres 34 - guntas, Y.V. Muniswamappa for property measuring 0.20 - guntas, Y.V.Krishnappa for property measuring 1 -acres 20 -guntas, V. Santhana Pelli S/o. Udakaran Pille for property measuring 1 -acres, Venkataraju for property measuring 1 -acres and T.C Krishnamurthy S/o. T. Cheluvaiah for property measuring 0.06.08 -guntas are appearing as possessors in respect of Sy.No.53/2C+3A situated at J.B.Kaval, Yelahanka Hobli for the year 2009-2010. The plaintiff has relied on document at Ex.P.7 -Certified copy of the sale deed. On perusal of Ex.P.9 which shows that, the plaintiff - K.Ponnu Swamy 28 O.S.No.4289/2019 represented by GPA Holder J.K.Krishnaiah and defendants - Mohammed Sab and others have filed compromise petition U/O. 23 Rule 3, R/w/Section 151 of C.P.C in O.S.No.2369/2004. On perusal of Ex.P.10 which shows that, said O.S. No.2369/2004 was decreed in terms of compromise petition which was filed K.Ponnu Swamy represented by GPA Holder J.K.Krishnaiah against defendants - Mohammed Sab and others. On perusal of Ex.P.11 which shows that, the suit in O.S.No.2369/2004 is decreed in terms of compromise petition. On perusal of Ex.P.17 which shows that, Sri. K.Ponnu Swamy has executed Gift deed in favour of his wife Smt. P.Kasturi on 06.02.2008 in respect of the suit schedule property. The plaintiff has relied on Ex.P.21 and 22 - Property Tax paid receipts. On perusal of Ex.P.26 which shows that, Smt. P.Kasturi has been sanctioned for Electricity from the Electrical Supply Company Ltd. The plaintiff has relied on Ex.P.29 to 32 - Photographs. On perusal of Ex.P.35 which shows that, the names of Usuf S/o. Mohammad Pasha, 29 O.S.No.4289/2019 Mohammad Sab S/o. Usuf are appearing as possessors in respect of property bearing Sy.No.53/2C+3A measuring 12 -acre 13 - guntas for the year 1981-1982 to 1985- 1986. On perusal of Ex.P.37 which shows that, the name of Usuf S/o. Mohammad Sab is appearing as possessor in respect of property bearing Sy.No.53/3A measuring 8
-acre 22 - guntas for the year 1991-1992 to 1992-1993 situated at Jarakabande Kaval, Yelahanka Hobli, Bengaluru.
19. On perusal of Ex.D.1 which shows that, Shaik Mahabub is died on 02.02.2023. On perusal of Ex.D.10 which shows that, the names of Abdul Kuddus for property measuring 09- acres 13- guntas and Venkataraju for property measuring 02 - acres are appearing as possessors in respect of Sy.No.53/2 situated at Jarakabande Kaval for year 1991-1992. On perusal of Ex.D.12 which shows that, Release deed is executed on 29.06.2019. On perusal of Ex.D.16 which shows that, 30 O.S.No.4289/2019 defendant No.4 - Sri.Amjad S/o.Maqbul Jhan has filed Writ Petition No.8572/2020 (LB-BMP-PIL) before Hon'ble High Court of Karnataka, Bengaluru against the Commissioner of BBMP, Bengaluru, plaintiff and Sri.J.K.Krishnaiah which was disposed on 23.02.2021. On perusal of Ex.D.17 which shows the names of defendants jointly are appearing as possessors and cultivator column in respect of property bearing Sy.No.53/2C1 measuring 0.19 -guntas situated at J.B.Kaval, Yelahanka Hobli for the year 2020-2021.
20. So far as oral evidence is concerned to lis that plaintiff is examined as P.W.1 and P.W.1 has reiterated the contents of plaint. The P.W.1 has admitted in the cross-examination that: "ವವದಪತತದ ಸಸತತತ ಮಮಲವವಗ ಪನತನಸವಸಮರವರಗಗ ನವನಯವಲಯದ ಡಕತ ಮತಖವಖತರ ಬಖದರತತತದಗ." The defendant No.2 is examined as D.W.1 and D.W.1 has reiterated averments of written statement. The D.W.1 has admitted in cross examination that: " ವವದ ರವಘವಗವಖದತ ರವರತ ಕಸಮತರರವರಖದ ದದ 03.02.2011 ರಖದತ ದವವವ ಆಸತಯನತನ ಖರವದ 31 O.S.No.4289/2019 ಮವಡರತತವತರಗ ಎಖದರಗ ಮವಡರಬಹತದತ. ವವದಯವರತ ದವವವ ಆಸತಯಲಲ ಮನಗ ಕಟಟಕಗಮಖಡದವದರಗ ಎಖದರಗ ಸರ. ದವವವ ಆಸತ ಬ ಬ ಎಖ ಪ ವವನಪತಯ ಒಳಗಗ ಬರತತತದಗ ಎಖದರಗ ಸರ."
21. Though the defendant No.1 to 4 and 6 have contended that there is no flow of title and question of plaintiff claiming through them does not give him any right, title, interest or possession of the suit schedule property, this facts is not proved by the said defendants by leading corroborative evidence. On perusal of sale deed, property tax paid receipts, form B property register extract are clearly goes to show that the plaintiff is in possession of suit schedule property.
22. By considering entire evidence of P.W.1 and D.W.1 and documents exhibited on both sides, on close scrutiny of pleadings of both parties and on careful appreciation of evidence, the plaintiff has proved that he is in possession and enjoyment of the suit schedule 32 O.S.No.4289/2019 property as on the date of filing of the suit. Hence, I answer Issue No.1 in the Affirmative.
23. ISSUE NO.2: It is the contention of the plaintiff that on 09.06.2019, the defendants along with some anti- socials have approached the plaintiff and they have stated to him that they are the owners and they are trying trespass into the suit schedule property and they are illegally dug the trenches to the suit schedule property. On coming to know about the same, the plaintiff had rushed to the spot and appraised the defendants that the suit schedule property belongs to him, the plaintiff resist the activities of the defendants and on that day the defendants and their agents went away from the suit schedule property and warned the plaintiff that they will definitely come back with supporters to trespass the suit schedule property. Hence, the plaintiff has approached the Vidyaranyanagar Police station, but refused to take complaint by stating that the matter is in civil nature. 33 O.S.No.4289/2019 Again on 12.06.2019, come with 30 to 40 people and have tried to remove the boulders the plaintiff had erected around the suit schedule property. The defendants have no manner, right, title or interest on suit schedule property and they are indulged in altogether illegal and highhanded acts, the defendants have been illegally trying to trespass on suit schedule property. The defendants have denied these facts. The plaintiff has proved that he is in possession and enjoyment of the suit schedule property as on the date of filing of the suit. Hence, if really the defendants had not obstructed the possession of the plaintiff, the plaintiff would not have come to the Court. Hence, the plaintiff has proved the interference by the defendants. Hence, I answer Issue No.2 in the Affirmative.
24. ISSUE NO.3: In a suit for permanent injunction what are required are, the possession of the plaintiff and interference by the defendants. It is also well-settled 34 O.S.No.4289/2019 legal principles that, possession is nine points in law. A person who is in possession of the immovable property can very well protect the same by seeking an injunction against any person in the world other than, the true owner. This proposition finds support from the ratio laid down by the Hon'ble Supreme Court of India in 1999 (4) SCC page 403 (Prataprai N.Kothari -Vs- John Braganza), wherein it is held that:
"A. Specific Relief Act, 1963-Ss. 5 and 38-Possessory title-It is a principle of law that a person who has been in long continuous possession of an immovable property can protect the same by seeking an injunction against any person in the world other than the true owner-It is also well settled that even the owner of the property can get back his possession only by resorting to the due process of law-Held, the conclusions of the Single Judge of the High Court were vitiated, on facts, by his view that defendant-appellant had 35 O.S.No.4289/2019 title and that possession followed title-
Thus the Division Bench of the High Court in LPA rightly set aside the appellate judgment of the Single Judge and restored that of the trial court partly decreeing the suit-Doctrines- Possession is nine points in law-Words and phrases-"Possession".
Also in ILR 2006 KAR 1047(SUPREME COURT), (Rame Gowda (D) by Lrs -Vs- M.Varadappa Naidu (D) by Lrs and Another), wherein the Hon'ble Supreme Court has held as under:
"CIVIL LAW-Suit for injunction restraining from interfering with peaceful possession and enjoyment-Dispute as to the title by both parties-Rights of Trespasser and rightful owner in such cases-HELD-It is clear that so far as the Indian Law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongly 36 O.S.No.4289/2019 dispossessed of land may retake possession if be can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an 37 O.S.No.4289/2019 attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner."
Also in AIR 1972 SUPREME COURT 2299 (M.Kallappa Setty -Vs- M.V.Lakshminarayana Rao), wherein the Hon'ble Supreme Court has held as under:
"Specific Relief Act (1963), S. 37- Plaintiff in possession of suit property-He can, on strength of his possession, resist interference from defendant who has no better title than himself and get injunction restraining defendant from disturbing his possession."
25. Hence in view of the above referred decisions and well-settled legal principles and totality of circumstances, it is clear that, plaintiff is in possession 38 O.S.No.4289/2019 and enjoyment of the suit schedule property as on the date of filing of this suit. Hence, the plaintiff has proved that he is in possession and enjoyment of the suit schedule property. The plaintiff has proved the interference by the defendants. Hence, the plaintiff is entitled for the relief of permanent injunction. Hence, I answer Issue No.3 in the Affirmative.
26. ISSUE NO.4: In the result, I proceed to pass the following:
ORDER The suit of the plaintiff is decreed with costs.
The defendants or their legal heirs, henchmen or agents are hereby restrained by way of permanent injunction from interfering with the plaintiff's possession and enjoyment of the suit schedule property.
Draw decree accordingly.39 O.S.No.4289/2019
(Dictated to the Stenographer Grade III, typed by her corrected by me and then pronounced in the open court on this the 18th day of September, 2024) (SHIVANAND MARUTI JIPARE) LXXV ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU.
ANNEXURE LIST OF WITNESSES EXAMINED FOR PLAINTIFF:
P.W.1 : R.M. Raghavendra.
LIST OF DOCUMENTS MARKED FOR PLAINTIFF:
Ex.P.1 : Sale deed dated: 03.02.2011.
Ex.P.2 : Form 'B' Property Register extract.
Ex.P.3 : Tax paid receipt.
Ex.P.4 & 5 : Property Tax paid receipts.
Ex.P.6 : RTC extract.
Ex.P.7 : Sale deed dated: 14.09.1992.
Ex.P.8 : Encumbrance certificate.
Ex.P.9 : Certified copy of compromise petition in
O.S.No.2369/2004.
40 O.S.No.4289/2019
Ex.P.10 : Certified copy of Decree in O.S.
No.2369/2004.
Ex.P.11 : Certified copy of Order sheet in O.S.
No.2369/ 2004.
Ex.P.12 to : Self assessment Tax challans. 14 Ex.P.15 & : Self assessment declaration tax details. 16 Ex.P.17 : Gift deed dated: 06.02.2008.
Ex.P.18 : Encumbrance certificate.
Ex.P.19 : Form 'B' Property Register extract.
Ex.P.20 : Tax paid receipt.
Ex.P.21 : Property Tax receipts.
& 22
Ex.P.23 : Payment acknowledgments.
& 24
Ex.P.25 : Tax Invoice of Landis + Gyr Limited.
Ex.P.26 : Sanction letter of Electricity.
Ex.P.27 : Electricity bills.
Ex.P.28 Receipt of BESCOM.
Ex.P.29 : Photos.
to 32
Ex.P.32(a) : C.D.
41 O.S.No.4289/2019
Ex.P.33 : True copy of mutation extract. Ex.P.34 : True copy of Hissa Survey Tippani. Ex.P.35 : True copies of RTC extracts. to 37 LIST OF WITNESSES EXAMINED FOR DEFENDANTS:
D.W.1 : Sardar Pasha S/o.Late Shaik Mehaboob. LIST OF DOCUMENTS MARKED FOR DEFENDANTS: Ex.D.1 : Death certificate of Shaik Mahabub.
Ex.D.2 : Form No.10.
Ex.D.3 : Jarakabande Village Kethuvar.
Ex.D.4 : Sketch.
Ex.D.5 : Villagers consent deed dated:
03.07.1925.
Ex.D.6 : Endorsement issued by Tahsildar dated:
19.12.2017.
Ex.D.7 : Certified copy of Survey sketch.
Ex.D.8 : True copy of Akarbandh.
Ex.D.9 : True copy of Hissa Survey extract.
Ex.D.10 : RTC extract of Sy.No.53/2.
Ex.D.11 : RTC extract of Sy.No.53/2C1.42 O.S.No.4289/2019
Ex.D.12 : Release deed dated: 29.06.2019. Ex.D.13 & : Encumbrance certificates.
14
Ex.D.15 : Certified copy of Order in
W.P.No.8572/2020 (LB-BMP-PIL).
Ex.D.16 : Certified copy of Order of
W.P.No.8572/2020 (LB-BMP-PIL).
Ex.D.17 : RTC extract.
(SHIVANAND MARUTI JIPARE)
LXXV ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU.