Bangalore District Court
Sri. T. Krishnappa vs Sri. B. Nagaraju on 22 March, 2022
IN THE COURT OF THE LXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CITY (CCH-69)
Dated this the 22nd day of March 2022
PRESENT
Sri.Sabappa, B.Com., LL.B.,(Spl.)
LXVIII Addl. City Civil and Sessions Judge,
Bengaluru City.
ORIGINAL SUIT No.6223/2012
PLAINTIFF: Sri. T. Krishnappa,
S/o Thammaiah,
Aged about 59 years,
R/at No.133, Kariyammana Agrahara,
Bellandur Post,
Bangalore - 560 103.
(By Sri. Nagaiah, Advocate)
Versus
DEFENDANTS : 1. Sri. B. Nagaraju,
S/o late Basappaiah,
Aged about 75 years,
R/at No.133, Kariyammana
Agrahara, Bellandur Post,
Bangalore - 560 103.
2. Sri. Nanjundaiah,
S/o Late Chunchappa, Anjanappa,
Aged about 60 years,
2 O.S.6223/2012
R/at Kariyammana Agrahara,
Bellandur Post,
Bangalore - 560 103.
Smt. Aswathamma,
W/o N. Ramakrishnaiah,
Aged about 62 years,
R/at No.603, AECS Layout,
C Block, 1st Cross, Near
Kundalahalli, Bangalore - 37.
M.S. Ramaiah Developers and
Builders Pvt. Ltd.,
No.D-4, Utility Building, J.C.Road,
Bangalore - 560 002.
Sri. M.R. Seetharam,
(By Sri.A.K.A, Adv., for D1 & D2)
(By Sri.H.M.K, Adv., for D3)
(By Sri.S.R.R, Adv., for D4)
3 O.S.6223/2012
3.
4.
4 O.S.6223/2012
Date of Institution 26-08-2012
Nature of suit Permanent Injunction
Date of commencement
of evidence 31.10.2014
Date on which judgment
was pronounced 22.03.2022
Total Duration Years Months Days
09 06 26
JUDGMENT
This is a suit filed for Permanent Injunction.
2. The brief facts of the plaintiff's case is that, the plaintiff is the absolute owner and in possession and enjoyment of the property bearing Sy.No.23/3, measuring 22 guntas of Kadabisanahalli Village, Varthur Hobli, Bangalore East Taluk. He has purchased the said property through registered sale deed dated 30.07.1990 from its owner K.K. Muniyappa for valuable consideration. The suit schedule property has been mutated in the name of the plaintiff vide M.R.No.2/1993-94. The plaintiff got said land 5 O.S.6223/2012 converted from agriculture to non agriculture purpose on 16.09.2010. The Tahsildar, Bangalore East Taluk has mutated the converted land in the name of the plaintiff. The plaintiff has paid property tax with the jurisdictional panchayath. The plaintiff submits that the land in Sy.No.23/3 originally exists as per the survey sketch maintained by the survey settlement department. The original Sy.No.23 of Kadabisanahalli village measures 9 acres 6 guntas cultivable land and 16 guntas kharab land and subsequently Sy.No.23 is phoded as Sy.No.23/1, 23/2, 23/3 and 23/4. It is submitted that an extent of 2 acre 27 guntas + 5 guntas kharab kept in Sy.No.23/1 which belongs to the ownership of M.Venkatappa and M.Ramakrishnaiah who have alienated in favour of defendant No.4 and 1 acre 21 guntas cultivable land and 3 guntas kharab land kept in Sy.No.23/2 which is in the occupation of Ashwathamma/defendant No.3. As such 4 acre 17 guntas cultivable land + 7 guntas Kharab land kept in Sy.No.23/4 in the name of B.Nagaraju. The RTC for the year 2911-2012 for Sy.No.23/4 is produced before the Court.
6 O.S.6223/2012Such being the circumstances, the Taluk Surveyor conducted by survey behind the back of the plaintiff without issuing any notice to the plaintiff before conducting the survey has prepared the survey sketch. The plaintiff being aggrieved of the above said survey work has filed an appeal before the Joint Director of Land Records which is pending for adjudication. It is submitted that such being the circumstances the defendant No.2 and 3 who are situated on the eastern side of the schedule property and defendant No.4 and 5 who are situated on the western side of the suit schedule property which belongs to the plaintiff. The defendants are trying to interfere with the peaceful possession and enjoyment of the schedule property with an intention to encroach upon the plaint schedule property belongs to the plaintiff. The defendants on 26.08.2012 tried to put up compound encroaching the schedule property which is successfully resisted by the plaintiff with the support of the neighbouring people. The plaintiff and neighbouring people questioned the propriety of the defendants in interference and encroachment of suit schedule property. The defendants retreat from schedule property throw a 7 O.S.6223/2012 challenge that they are the owners of their respective lands in Sy.No.23/4, 23/1, 23/2 and will take possession of the schedule property in future. The plaintiff has no grievance about the defendant's ownership in respect of above said Sy.Nos. But the defendants cannot under the guise of their ownership to interfere with the plaintiff possession of schedule property. It is submitted that the plaintiff is the absolute owner in peaceful possession and enjoyment of the suit schedule property. He has prima facie case. The defendants are mighty people and influenced persons having men and material at their back and it is very difficult for the plaintiff to withstand the defendants force without the aid of this Court. Hence the suit for Permanent Injunction.
It is submitted that defendant No.4 is sitting MLC and earlier MLA from Malleswaram constituency and indulged in real estate business and renowned land developer. The defendant No.4 has purchased the land in Sy.No.23/1, 23/2 and on the basis of the sale deeds trying to put up the compound not only for his property but also encroaching the plaint schedule property belongs to the plaintiff on the western side of the suit schedule property.
8 O.S.6223/2012Similarly defendant No.1 and 2 also attempted to encroach upon the eastern side of the suit schedule property. Hence, this suit.
3. After receipt of the suit summons, the defendants No.1 to 4 appeared through their respective counsels and filed their separate written statements.
The 3rd defendant has filed written statement contending that, the suit is frivolous and vexatious and is not maintainable either in law or on facts. The allegations made by the plaintiff at para 3 of the plaint is false and baseless. It is further contended that, plaintiff herein is not a party to the proceedings before the Tahsildar, Banalore East Taluk filed an appeal before the Deputy Director of Land Records against the order dated 06.01.2012 passed by the Tahsildar, Bangalore East Taluk and the said appeal is dismissed by an order dated 31.10.2012 and during the pendency of the said appeal the plaintiff has filed the present suit. It is admitted by the plaintiff. It is the further case of the 3 rd defendant that, she is the absolute owner of land bearing Sy.No.23/3 9 O.S.6223/2012 measuring to an extent of 22 guntas situated at Kadubisanahalli, Varthur Hobli, Bangalore East Taluk and the same was acquired by the third defendant under registered sale deed dated 08.08.1984 executed by Sri.Basappa & another. Thereafter, mutation was effected in favour of third defendant. RTC also stands in the name of third defendant and she is paying land revenue and has paid upto date land revenue to the Government. It is further submitted that, the third defendant purchased 22 guntas of land in Sy.No.23/2 and the 4 th defendant has purchased 1 acre 2 guntas from one Sri.Muniswamy under registered sale deed dated 12.06.2003. Accordingly, 3 rd and 4th defendant alone are concerned with the land bearing Sy.No.23/2 and the plaintiff has nothing to do with the said Sy.No.23/2. It is further submitted that, 4 th defendant being the immediate neighbour of 3 rd defendant have purchased portion of said Sy.No.23/2. The 4th defendant made an attempt to encroach upon the land of 3rd defendant to the extent of 6 ' x 700' and therefore the 3rd defendant has filed the suit in O.S.7929/2011 against the 4th defendant and the same is pending for consideration. It is further submitted that, since 3rd and 4th 10 O.S.6223/2012 defendant purchased the portions of the same Sy.No. Both applied for phode and accordingly phode proceedings took place before the Tahsildar and the Tahsildar in turn by his order dated 06.01.2012 ordered for retaining the Sy.No.23/2 for the land belonging to 3rd defendant and ordered for the land belonging to the 4 defendant as Sy.No.23/5. It is further submitted that the said order passed by the Tahsildar on 06.01.2012 was challenged by the plaintiff by filing an appeal and the said appeal was dismissed by the Deputy Director of Land Records. Admittedly, the schedule property in Sy.No.23/3 measuring 22 guntas situated at Kadubisanahalli Village, Varthur Hoblie, Bangalore East Taluk, with which the defendant is not claiming any right as her right, title and interest is with respect to Sy.No.23/2. It is further submitted that the plaintiff has given wrong boundary to his land and on the west, the plaintiff has stated that the land belonging to the defendants No.3 and 4 in Sy.No.23/1, whereas the defendants No.3 and 4 are not claiming any right in Sy.No.23/1, but their right, title and interest is with respect to Sy.No.23/2 and as far as 3 rd defendant is concerned, she is concerned with only 22 11 O.S.6223/2012 guntas of land in Sy.No.23/2. It is further submitted that, the allegations made by the plaintiff against 3rd defendant prima facie is false and frivolous. The 3rd defendant is in physical possession and enjoyment of the land bearing Sy.No.23/2 measuring to an extent of 22 guntas including 2 guntas of kharab and the plaintiff has no manner of right, title and interest with respect to the land belonging to the 3rd defendant. It is further submitted that when the plaintiff got the conversion order for his land bearing Sy.No.23/3, the boundaries are given as East by Sy.No.23/4, West by Sy.No.23/2, North by Road and South by Sy.No.15. So, it is clear that the land belonging to 3 rd defendant is on the western side of the land bearing Sy.No.23/3 and therefore plaintiff cannot mislead and say that Sy.No.23/2 belong to the plaintiff. It is further submitted that there is no cause of action to file the suit. The other allegation that the defendant attempted to interfere and encroach upon the suit schedule property is totally false. Hence, the suit is liable to be dismissed.
4. Apart from this the 1st and 2nd defendants have filed their written statement contending that, all the 12 O.S.6223/2012 allegations stated by the plaintiff are denied as false. It is further submitted that property bearing Sy.No.23 of Kadubisanahalli Village, is measuring 9 acres 6 guntas of cultivable land and 16 guntas of kharab land. The property measuring 2 acres 13 guntas on the eastern side belonged to one Sri Patel Nanja Reddy. The father of first defendant and grandfather of second defendant purchased the said portion from him under registered sale deed dated 16.09.1917. Another portion of the property measuring 2 acres 11 guntas belonged to Sri.Basavalingappa and Patel Putttashankarappa. Sri.Basavaiah purchased the said portion from them under the registered sale deed dated 16.09.1917. Another portion measuring 15¼ guntas belonged to one Sri. Rangaiah. Sri. Basavaiah purchased the said portion from him under the registered sale deed dated 02.03.1918. Sri. Basavaiah purchased an extent of 11 guntas in the larger property from the then holder thereof and he was put in possession of the said extent. Sri. Basavaiah held and possessed as owner, a total extent of 5 acres 10¼ guntas. Thereafter, Sri.Basavaiah and his children partitioned the properties of the joint family under the registered partition 13 O.S.6223/2012 deed dated 02.03.1956 and in the said partition an extent of 2 acres 25 guntas on the western side was allotted to the father of first defendant. Despite partition, the families of the first and second defendant were together in possession and enjoyment of the said property. As far as the larger property itself is concerned, over a period of time, because of various transaction including those narrated above, it got sub-divided and the property of the first and second defendants comprised in the said compact, contiguous block got assigned the number as Sy.No.23/4. Unfortunately, despite survey and resurvey following the said transactions, the survey records show the measurement of the said compact as 4 acres 24 guntas, instead of correct and actual extent of 5 acres 10¼ guntas. The revenue authorities mutated the names of the first defendant and the father of 2 nd defendant in respect of their land in the revenue records. These defendants without realising the mistake in the extent of their land in the revenue records and by giving the boundaries of the whole of their land, obtained permission under Section 95 of the Karnataka Land Revenue Act, 1964 for diversion of the use of an extent of 1 acre 17 14 O.S.6223/2012 guntas in the southern part of their land from agricultural to non-agricultural use. In exercise of their proprietary and absolute owners of their land, these defendants sold a portion thereof measuring 2 acres in the souther portion to M/s. Maestro Hotel Pvt. Ltd., under registered sale deed dated 04.09.2008. When the second defendant realised that there was a mistake in the measurement of the land of these defendants, he made an application to the Tahsildar, Bangalore East Taluk. While these defendant were waiting for action on the applications of the second defendant, they received notice before the Deputy Director of Land Records, Bangalore, filed by the plaintiff.
It is further submitted that first and second defendant and their ancestors are the true and bone fide owners of the land of these defendants with boundaries that existed in the year 1918 continuing to exist till date. These defendants have no dispute to the extent of land measuring 22 guntas and lying abutting the western boundary of their land and as to the ownership and possession of the said extent of the land being with the plaintiff. They are concerned about any overt or covert act of the plaintiff that may impinge upon their ownership and 15 O.S.6223/2012 possession of their land. The 4th defendant has the resources of men, money and material and he is armed with the results of the proceedings, the fear of the plaintiff that the 4th defendant may encroach upon the said extent of land belonging to him is palapable. It is further submitted that the allegations of the plaintiff that these defendants have been interfering with the suit schedule property is false. Hence the suit is liable to be dismissed.
5. The 4th defendant has filed his written statement contending that plaintiff claiming to the owner of 21 guntas of land in Sy.No.23/3 of Kadubisanahalli Village, Varthur Hobli, Bangalore East Taluk, has filed this suit against this defendant and others seeking Permanent Injunction. The allegations made in para 8 is that, Sri.M.R.Seetharam, the Managing Director of defendant No.4 is sitting MLC and earlier MLR and that he is into real estate business and hence defendant No.4 has purchased land in Sy.No.23/1 and 23/2 and on the basis of the said sale deeds they are trying to put up compound wall not only on their property but also encroaching upon the suit schedule property on the western side. It is submitted 16 O.S.6223/2012 that no ground has been made out for grant of injunction against this defendant and the suit is liable to be dismissed against this defendant. It is further submitted that, defendant No.4 is a Company incorporated under the Companies Act. It is engaged in the business of real estate development and has developed/executed several residential and commercial projects in Bangalore, Mysore etc., In order to develop a Software-Tech Park in Kariyammana Agrahara and Kadubeesanahalli, BBMP Ward No.150, the defendant No.4 acquired converted lands to an extent of about 19 acres 30½ guntas spread over in various survey numbers of Kariyammana Agrahara and Kadubeesanahalli. The Company purchased 1 acre 1 gunta of land converted for industrial purpose in Sy.No.23/2 of Kadubisanahalli Village under a registered sale deed dated 12.06.2003 from Mariswamappa and others. The aforesaid property is part of 19 acres 30½ guntas of land described herein above and it is morefully described in the schedule. Thereafter the Company was put in possession of the schedule property. The property was converted by an order of conversion dated 10.03.2003, issued by Special Deputy Commissioner, 17 O.S.6223/2012 Bangalore District. Kadubeesanahalli and Kariyammana Agrahara having come within the jurisdiction of BBMP, the schedule property was given Municipal No.289 (Old No.150/2). Subsequently, the Company applied for amalgamation of all the 19 acres 30½ guntas spread over in different survey numbers including the schedule property and the BBMP has permitted such amalgamation after which a common Municipal No.146 has been allotted by the BBMP. Originally the land in Sy.No.23 of Kadubisanahalli village consisted of 9 acres 6 guntas excluding 16 guntas kharab. Subsequent to transactions entered into by owners of different portions owning lands in Sy.No.23, bifurcation was effected after such bifurcation the extent of land and the name of the holder were as under :
Sy.No. Extent Name of the Owner
A-G
23/1 02-27 (+5g kharab) M. Venkatappa & Ramakrishnaiah
23/2 00-20 Ashwathamma, defendant No.3
23/2 01-01 Mariswamappa-presently owned by
Defendant No.4
23/3 00-21(+1g kharab) T. Krishnappa - Plaintiff
23/4 04-17(+7g kharab) B. Nagaraju & L.B.Chunchappa
(Nanjundaiah) - Defendants 1 & 2
18 O.S.6223/2012
It is clear from the above that in Sy.No.23/2 defendant No.4 acquired 1 acre 1 gunta while the remaining extent of 20 guntas was of the ownership of Smt.Ashwathamma, defendant No.3. Phodi/birfurcation of Sy.No.23/2 had not taken place and hence the defendant No.4 and Smt.Ashwathamma were holding lands to the aforesaid extent in Sy.No.23/2. The defendant No.4 had acquired about 19 acres 30½ guntas of land in various survey numbers adjoining the schedule property including 2 acres 27 guntas in Sy.No.23/1 and was in the process of developing the said property.
It is further submitted that, plaintiff being the owner of 21 guntas of land (excluding 1 gunta kharab) in Sy.No.23/3, taking advantage of the fact that Sy.No.23/2 was not bifurcated, tried to interfere with the land in possession of defendant No.4 in Sy.No.23/2 claiming that a part of the said land belongs to him. However, defendant No.4 prevented the plaintiff and his agents from interfering with its possession of land in Sy.No.23/2 with the help of security personnel and police. However, the plaintiff continued to threaten the defendant No.4 in this behalf. In view of the above, defendant No.4 and 19 O.S.6223/2012 Ashwathamma, owners of different extents of land in Sy.No.23/2, approached the Tahsildar, Bangalore East Taluk for effecting Phodi/bifurcation in Sy.No.23/2 so that the extent of land holding of defendant No.4 and Smt.Ashwathamma, defendant No.3 be clearly demarcated. Accordingly, the Tahsildar, Bangalore East Taluk took up the work of carrying out phodi/bifurcation of Sy.No.23/2. Subsequently, Tahsildar, Bangalore East Taluk proceeded to issue separate Tippani and simultaneously proceeded to issue Akarband in respect of Sy.No.23/2 and 23/5. Subsequent to the aforesaid phode, Hudbust was also carried out by the Tahsildar, Bangalore East Taluk, in respect of Sy.No.23/2, 23/3, 23/4 and 23/5. In view of the same the respective persons are in possession of the respective properties. Thereby, it is clear that the defendant has not encroached any portion of the property of the plaintiff. On the other hand, there is encroachment of land belonging to the plaintiff on the other side by defendants No.1 and 2. Being aggrieved by the phode and Hudbus carried out by Tahsildar, Bangalore East Taluk, the plaintiff has preferred an appeal U/Sec.49(f) of Karnataka Land Revenue Act. During the pendency of the appeal he 20 O.S.6223/2012 has filed the present suit. This defendant is the absolute owner and in possession and enjoyment of 1 acre 1 guntas of converted land in Sy.No.23/5 (previously part of Sy.No.23/2) apart from 1½ guntas kharab allotted at the time of phodi. The defendant was proceeding with the work of development of land belonging to it. In fact the entire extent including the schedule property has already been enclosed with the fence and barbed wire and it is now being enclosed with a compound wall. At this stage, the plaintiff has approached this Court seeking an order of injunction making false and frivolous allegations. As stated earlier the property belonging to the plaintiff and defendant No.4 are separate and distinct and there is no overlapping in as much as the claim of plaintiff that defendant is trying to encroach upon his land in Sy.No.23/3 is absolutely false and baseless. The appeal filed by the plaintiff as against the order of the Tahsildar has also been dismissed by the Appellate Authority which has become final. Remaining allegations of the plaint are denied by this defendant as false and baseless. Hence, suit of the plaintiff deserves to be dismissed.
21 O.S.6223/20126. On the basis of the above pleadings, my predecessor has framed the following issues No.1 to 4.
1. Does the plaintiff prove that he is in peaceful possession and enjoyment of the suit property as on the date of suit?
2. Does the plaintiff prove that there is interference by the defendants to his peaceful possession and enjoyment over the suit property?
3. Does the plaintiff prove that he is entitled for the relief of permanent injunction against the defendants?
4. What Order/Decree?
7. In order to prove his case, the plaintiff got examined himself as PW.1 and got marked documents at Exs.P.1 to P.9 and closed his side. The P.A.holder of defendant No.3 is examined as DW.1 and the General Manager of defendant No.4 Company is examined as DW.2. Defendants got marked documents at Ex's.D.1 to D.34 22 O.S.6223/2012
8. Heard the arguments of both the sides.
Perused the materials on record.
9. On appreciation of the oral and documentary evidence on record, my answer to the above issues are as follows:
Issues No.1 & 2 : In the Negative,
Issue No.3 : In the Negative,
Issue No.4 : As per final order;
For the following ;
REASONS
10. ISSUES Nos.1 AND 2: These Issues are
taken-up together as they could be disposed by a common reasoning and to avoid repetition of facts.
The learned counsel for the plaintiff vehemently argued and submitted that the present suit is for bare injunction. The suit schedule property Sy.No.23 measuring 2 acres 23 guntas. Out of it, the plaintiff has purchased 22 guntas under registered sale deed through original owner. At the same time, Sy.No.23/4 belonged to 23 O.S.6223/2012 defendants No.1 and 2. The defendants are not disputed about the ownership of the plaintiff over the suit schedule property. The defendants are trying to interfere in the suit schedule property. The 4th defendant purchased the property behind the back of the plaintiff. He has tried to put up construction. The defendants No.1 and 2 have tried to encroach on the suit schedule property about 10 guntas. The pleadings and evidence of plaintiff are sufficient to hold that the plaintiff is able to prove the possession over the suit schedule property with cogent evidence and documents.
11. The learned counsel for the 3rd defendant vehemently argued and submitted that, the defendants have not disputed about the ownership of the plaintiff over the suit schedule property. However, the plaintiff is not in possession of the suit schedule property. The documents relied by the defendant that marked at Ex's.D.14 and D.18 reveals that, the defendants No.1 and 2 have encroached upon the suit schedule property about 18 guntas. The same is admitted by the plaintiff during the course of evidence. Thereby, the plaintiff is not actual possession of the suit schedule property Sy.No.23/3 24 O.S.6223/2012 measuring 22 guntas. The document relied by the plaintiff at Ex.P.4 is also reveals that the suit schedule property encroached by the defendant No.1 and 2. Inspite of it, the plaintiff has not taken any action against the defendants No.1 and 2. The material admission on the part of the plaintiff at page 17 and 18 are sufficient to hold that the plaintiff is not in possession of the suit schedule property. It is proved by oral and documentary evidence.
12. The learned counsel for the defendant No.4 vehemently argued and submitted that the suit schedule property Sy.No.23/3 measuring 22 guntas. The entire Sy.No.23 is poded in 4 division. Out of it Sy.No.23/3 measuring 22 guntas is obtained by the plaintiff. At the same time, sy.No.23/2 belongs to Munisamappa and Basappa alienated the same. 3Rd defendant executed the Gift deed in favour of Nagesh. Sy.No.23/4 is owned by defendant No.1 and 2. All these aspects clearly goes to show tha the plaintiff is not in possession of the entire suit schedule property. Moreover, the plaintiff himself submitted the application before the surveyor to conduct survey. The survey sketch and report submitted by the 25 O.S.6223/2012 surveyor clearly goes to show that the suit schedule property is encroached by the defendants No.1 and 2 measuring 18 guntas. Thereby, the plaintiff is not able to prove the possession over the suit schedule property. Hence, the suit may be dismissed in the interest of justice and equity.
13. I have gone through the pleadings, evidence and documents. It is the case of the plaintiff that he is in lawful possession and enjoyment of the suit schedule property as on the date of suit. The defendants are trying to interfere in the suit schedule property. Thereby, he has filed the present suit. In order to substantiate the same, the plaintiff relief upon the documents marked at Ex's.P.1 to P.9. Ex.P.1 is the certified copy of the sale deed. It reveals that, the plaintiff purchased the suit schedule property under the registered sale deed dated 30.07.1990. At the same time, on perusal of Ex.P.1 it reveals that Sy.No.23/3 measuring 22 guntas along with boundaries towards East property of C.Basavaiah, towards West Mallamma's property, towards North - Rajakaluve and towards South the property of Ramappa and Abbaiah 26 O.S.6223/2012 of Kariyammana Agrahara. In view of this document, one thing is clear that the plaintiff is having title over the suit schedule property. Ex's.P.2 and P.3 mutation register entry reveals the name of the plaintiff appeared to in the suit schedule property. Ex.P.4 is the sketch, Ex.P.5 is certified copy of akarbhand, Ex.P.6 is RTC extracts for the year 1993 to 2013. Ex.P.7 is the certificate issued by BBMP, Ex.P.8 is the property extract from BBMP, Ex.P.9 is deposition of one R.Nagesh in O.S.No.9212/2014. These documents are sufficient to hold that the plaintiff is able to prove the title over the suit schedule property. It is supported with oral evidence of the plaintiff.
14. It is the specific case of the plaintiff that, he is in lawful possession of the suit schedule property. On perusal of the cross-examination of plaintiff, at page 7, he has categorically admitted that, prior to his purchase boundary of the suit property is fixed by making haddubasth. It is true that, prior to his purchase to the east of suit property defendants No.1 and 2 have built the house and residing there. It is true that from 1990 till this day there is no quarrel/disputes between himself and 27 O.S.6223/2012 defendants No.1 and 2 in respect of eastern boundary. It is true that the reason for filing this suit is the sale transactions between defendants No.3 and 4 then surveydurasth done thereafter. It is true that the said surveydurasth was done without issuing notice to him. In view of these admissions, one thing is clear that the plaintiff is not able to prove that defendants No.1 and 2 are trying to interfere in the suit schedule property.
15. It is further admitted by the plaintiff at page 11 of the cross-examination that, defendants No.1 and 2 have encroached in his hand and constructed a house. It is further admitted that defendant No.3's property is situated towards western side of suit schedule property. He further admitted that he is an attesting witness to the sale deed executed by defendants No.1 and 2 in favour of Metro Hotels and Resorts Pvt.Ltd., He further admitted that land bearing Sy.No.23/2 is measuring 1 acre 20 guntas. He further admitted that, sy.No.23 has been divided as sub-divisions and Sy.No.23/2 belongs to the 3 rd defendant. While inspecting the property by DDLR, himself and his advocate were present. The mahazar prepared at that time, then signed by him and his 28 O.S.6223/2012 advocate. It is true that 3rd defendant has not encroached his property. It is true that in Appeal No.21/12-13, the DC has ordered that his property was encroached by defendants No.1 and 2. It is true that Sy.No.23/4 belongs to defendant No.1 and 2. This evidence goes to show that the plaintiff has admitted about the encroachment made by defendants No.1 and 2 in respect of suit schedule property. Unfortunately, the plaintiff has not taken any legal action against the defendants No.1 and 2.
16. Plaintiff further admitted that, towards east of the suit schedule property the land bearing Sy.No.23/4 building has been constructed. The said construction has been put up about 8 to 10 years back. Defendants No.2 and 3 have not encroached his land. This evidence is contrary to the earlier version of the plaintiff. The plaintiff further admitted that, he do not know whether he has challenged the order of the Tahsildar East before the DDLR in connection with the internal podi of Sy.No.23/2. He had applied with Bangalore East Tahsildar for fixation of boundaries for sy.No.23/3. It is true that Tahsildar East had fixed the boundaries in respect of Sy.No.23/3. It is 29 O.S.6223/2012 true that Surveyor has made an observation in Ex.D.9 at point No.3 to the effect that the neighbouring owner of the land in Sy.No.23/4 has encroached the land in Sy.No.23/3 to an extent of 18 guntas marked in blue colour of the said sketch. PW.1 voluntarily stated that he is in possession of the said land. The said land to an extent of 18 guntas falls within the suit schedule property. The material admissions made by the plaintiff during the course of cross-examination and documents relied by the defendants at Ex.D.7, it reveals that the plaintiff himself applied for survey of the suit land. Thereby, the survey department has issued notice to the neighbouring land owners. All the land owners were present at the time of survey conducted by the Tahsildar, East Bangalore. The surveyor has prepared the report. The plaintiff was present and put his signature on Ex.D.8. Ex.D.9 is the sketch prepared by the Tahsildar. It reveals that the suit schedule property Sy.No.23/3 measuring 22 guntas. Out of it 18 guntas is encaroached by defendants No.1 and 2. this documentary evidence are clearly goes to show that as on the date of suit the plaintiff is not in possession of the suit schedule property. Moreover, the defendants No.1 30 O.S.6223/2012 and 2 have filed the written statement. However, they are not ready to testify the plaintiff. The material admissions on the part of the plaintiff during the course of evidence is clearly goes to show that the defendants No.1 and 2 have encroached upon 18 guntas of the suit schedule property. The presumption is automatically arises that the plaintiff is not in possession of the entire suit schedule property as on the date of suit. The oral admissions of the plaintiff is clearly indicates that the plaintiff is able to prove the title over the suit schedule property. However, he is not able to prove the possession as on the date of suit.
17. Now, I would like to refer the evidence of DW.1 and documents. 3Rd defendant is examined in this suit as DW.1 and got marked Ex's.D.1 to D.13. It is the case of the defendants that, they have admitted about the title of the plaintiff over the suit schedule property. However, the defendants denied the possession of the plaintiff over the suit schedule property. The learned counsel for the plaintiff testified the DW.1 regarding 'D' series. But the defendant has not given any material admission to show that the plaintiff is in possession of the suit schedule 31 O.S.6223/2012 property as on the date of suit. DW.1 admitted that, his mother Ashwathamma has filed O.s.No.2519/2003 against defendant No.3 and others for Permanent Injunction. The said suit is decreed. The property of the plaintiff is situated by the side of the property of the defendants. DW.1 admitted that he has read over the contents of Ex.D.14. He do not remember the contents of the same. He further deposed that, he came to know about the encroachment of the suit schedule property to an extent of 18 guntas by defendant No.1 and 2 at the time when hudbasth of the suit schedule property was done by the survey department. He further admitted that, in view of Ex.D.9 defendants No.1 and 2 have encroached about 18 guntas of the suit schedule property. He has not encroached any property of the plaintiff. The learned counsel for the plaintiff put a question to DW.1 i.e., whether you have any objections for decreeing the suit ?
Answer : Plaintiff is not in possession of the suit schedule property and defendants No.1 and 2 have encroached the said property to the extent of 18 guntas. This evidence is sufficient to hold that the plaintiff is not 32 O.S.6223/2012 able to establish the possession of the suit schedule property with cogent evidence and documents.
18. Now, I would like to refer the evidence of DW.2. DW.2 is defendant No.4 in the present suit. He is the General Manager of defendant No.4 and authorised by the Company to depose before this Court. Thereby, DW.2 submitted the evidence of affidavit and got marked Ex's.D.23 to D.33. This DW.2 is also testified by the plaintiff's counsel. This DW.2 admitted about the title and ownership of the plaintiff over the suit schedule property. DW.2 further admitted that, to the west of the suit schedule property, the property belonging to defendant No.4 is situated, towards east of suit schedule property land bearing Sy.no.23/4 is situated belonging to defendant No.1 and 2. He further admitted that defendants No.1 and 2 are also admitted about the title of the plaintiff over the suit schedule property in their written statement. The remaining cross-examination conducted by the counsel regarding sub-division of Sy.No.23. DW.2 admitted in the written statement filed on behalf of defendant No.4 there 33 O.S.6223/2012 is no mention of the suit filed by defendant No.4 against the plaintiff in O.S.7948/2012. It is true that certified copy of the plaint in O.S.No.7948/2012 was not filed by the 4 th defendant along with the written statement of 4 th defendant. He further admitted about Ex.D.29 in the suit. The evidence of DW.2 is not helpful to the plaintiff to prove the possession over the suit schedule property.
19. At the same time, I would like to refer Ex.D.2. It is the appeal preferred by the plaintiff before the Deputy Commissioner regarding survey report and sketch prepared by the surveyor. The appeal preferred by the plaintiff is dismissed by the Deputy Commissioner. Ex.D.3 is the order passed by the Deputy Commissioner, Bangalore Rural District. Ex.D.4 is the letter submitted by the plaintiff to the Tahsildar, Bangalore East Taluk, for conversion of the suit schedule property. Ex's.D.5 and D.6 are panchanama and sketch. Ex's.D.10 to D.12 are the notice, panchanama and survey sketch prepared by the surveyor in respect of the property belonged to the 4 th defendant. Ex.D.13 is the SPA, Ex.D.14 is the certified copy of the judgment in O.S.No.2619/2003. It is filed by the 3rd defendant's mother against Mariswamy, plaintiff 34 O.S.6223/2012 and others. The said suit came to be decreed. It is admitted by the plaintiff during the course of evidence. Ex.D.18 is the rough sketch prepared by defendant No.4. Ex.D.19 is the order passed by Hon'ble High Court of Karnataka in Writ Pet.No.55991/2016. Ex.D.20 is the certified copy of the judgment in O.S.9212/2014 filed by one R.Nagesh against the plaintiff for Permanent Injunction. The said suit came to be decreed. Ex.D.21 is the Writ petition verifying affidavit. Ex.D.22 is the certified copy of plaint in O.S.No.45661/2019 filed by the plaintiff against the defendant and others for Declaration and Injunction. Ex.D.23 is the SPA. Ex.D.24 is the certified copy of the judgment passed by Civil Court in O.S.No.7948/2012. It is filed by the 4 th defendant against the plaintiff for Permanent Injunction. The same is decreed by the Court. Ex.D.27 is the certified copy of the sale deed dated 12.06.2003. Ex's.D.28 to D.33 are the mutation register extracts, akarbandh, survey sketch, mahazar, notice, tax paid receipts etc., In view of these documents and evidence, one thing is clear that the defendants No.3 and 4 have obtained Permanent Injunction against the plaintiff and others by filing civil 35 O.S.6223/2012 suit. On going through the entire documents and evidence relied by the plaintiff, at this stage, this court feels that the plaintiff is not able to prove the possession of the suit schedule property with cogent evidence and documents. At the same time, I would like to refer the citations relied by the defendant No.4 in 2008(4) SCC 594, therein it is held that :
"B. Specific Relief Act, 1963 - Ss.5, 6, 38 and 37 - Suit for prohibitory injunction, simpliciter relating to immovable property - Nature and scope of - Held, such a suit is concerned with possession only - Therefore, in the absence of necessary pleadings and appropriate issue regarding title (either specific or implied), decision would be given with reference to finding on possession and not on the question of title - Even if there are necessary pleadings and issue regarding title, the court may decide that issue only if the matter involved is simple and straight forward and not if it involves complicated questions of fact and law relating to title."
In view of the above decision, one thing is clear that once the plaintiff is not able to prove the possession over the suit schedule property, he is not entitled for any relief as sought in the suit. The facts and circumstances in the 36 O.S.6223/2012 above respected judgment and the facts and circumstances of the present case are one and the same. Hence, the above respected judgment is applicable to the present case on hand.
20. At this stage, I would like to refer another citation reported in ILR 2005 KAR 884 (T.L.Nagendra Babu V/s Manohar Rao Pawar), wherein 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."
Wherein in this case suit schedule property Sy.No.23/3 is measuring 22 guntas. However, the application is submitted by the plaintiff for conversion of the suit schedule property. Later on Deputy Commissioner has converted the said land from agricultural to non- agricultural land. Unfortunately, the plaintiff is not able to produce those documents. It is presumed that the suit schedule property is not existing as agricultural land as on the date of suit. At the same time, on perusal of Ex.D.2, one thing is clear that the plaintiff has preferred appeal 37 O.S.6223/2012 against the Tahsildar and others regarding the survey conducted by the surveyor. But he could not succeed the same. Ex.D.3 is the notice issued by the Deputy Commissioner, Bangalore Rural District. It reveals that, the suit schedule property is converted as non-agricultural land. The schedule mentioned as 22 guntas. Out of it, 1 gunta 'A' karab land and the boundaries are East by - Sy.No.23/4, West by - Sy.No.23/2, North by - Road and South by Sy.No.15. This order is passed by the Deputy Commissioner in November 2009. The present suit is filed in the year 2012. Prior to filing the present suit the suit schedule property is converted by the Deputy Commissioner, Bangalore Rural District. Thereby, the suit schedule property is not existing as a agricultural land. This fact is suppressed by the plaintiff at the time of filing the present suit. Hence, the agricultural land is converted into non-agricultural land. It is the duty of the plaintiff to disclose the same in the pleadings and evidence. It is not done so. It clearly goes to show that the plaintiff has not come to the court with clean hands. It is pertinent to note that in a case the person who has come to the Court for the relief of injunction, he has to disclose the true facts of 38 O.S.6223/2012 the case. Then he is able to prove the same with cogent and document. If the plaintiff has not come to the court with clean hands, the plaintiff is not entitled to the relief of Permanent Injunction from the hands of the Court. Here in this case, the documents relied by the defendant at 'D' series clearly evident on record that the suit schedule property is not existing as agricultural land. Moreover, the documents relied by the plaintiff reveals that the suit schedule property is agricultural land till 2013. These documents are not possible to hold that the plaintiff is in possession and enjoyment of the suit schedule property. The material admission on the part of the plaintiff and documents relied by the defendants are clearly indicates that the plaintiff is not in possession of the suit schedule property. In view of the above discussions, I come to the conclusion that when plaintiff is not able to prove the possession over the suit schedule property, then the question does not arise that the defendants have tried to interfere in the suit schedule property. Hence, I answer Issues No.1 and 2 in the Negative.
39 O.S.6223/201221. ISSUE NO.3 : In view of the above discussions, I come to the conclusion that the plaintiff is not able to prove Issues No.1 and 2 with cogent evidence and documents and thereby the plaintiff is not entitled to any relief as sought. Hence, I answer Issue No.3, in the Negative.
22. ISSUE NO.4 : In view of my findings on Issues No.1 to 3, I proceed to pass the following :
ORDER The suit of the plaintiff is hereby dismissed.
No order as to cost.
(Dictated to the Stenographer, transcribed and typed by her, corrected, signed and then pronounced by me in the open court on this the 22nd day of March, 2022) (SABAPPA) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.40 O.S.6223/2012
ANNEXURE WITNESSES EXAMINED IN FAVOUR OF THE PLAINTIFF:
PW.1 T. Krishnappa 31.10.2014 DOCUMENTS MARKED IN FAVOUR OF THE PLAINTIFF:
Ex.P.1 : Certified copy of the sale deed dated 30.07.1990 Ex.P.2 : Certified copy of the mutation entry Ex.P.3 : Certified copy of the mutation entry bearing No.2/2010-2011 Ex.P.4 : Certified copy of the Hissa Tippani Ex.P.5 : Certified copy of the Akarband Ex.P.6 : 15 RTCs Ex.P.7 : Certificate issued by BBMP Ex.P.8 : Extract from BBMP for the year 2014-15 Ex.P.9 : Certified copy of deposition of R.Nagesh in O.S.No.9212/2014.
WITNESSES EXAMINED IN FAVOUR OF THE DEFENDANT:
DW.1 - R. Nagesh
41 O.S.6223/2012
DW.2 - Ramesh Kumar
DOCUMENTS MARKED IN FAVOUR OF THE DEFENDANT :
Ex.D.1 : RTC
Ex.D.2 : Order of DDLR
Ex.D.3 : Order of conversion
Ex.D.4 : Application for conversion filed by plaintiff
Ex.D.5 : Report of RI
Ex.D.6 : Survey Sketch
Ex.D.7 : Copy of notice
Ex.D.8 : Mahazar
Ex.D.9 : Sketch
Ex.D.10 : Notice
Ex.D.11 : Mahazar
Ex.D.12 : Survey sketch
Ex.D.13 : SPA
Ex.D.14 : Certified copy of the judgment in O.S.2619/2003
Ex.D.15 : Mutation extract
Ex.D.16 : Certified copy of the sketch
Ex.D.17 : Certified copy of the order on I.A.No.3 in
O.S.9212/2014
Ex.D.18 : Rough sketch
Ex.D.19 : Certified copy of the W.P.No.55991/2016
Ex.D.20 : Certified copy of the judgment in O.S.9212/2014
Ex.D.21 : Copy of the Writ Petition verifying affidavit
Ex.D.22 : Certified copy of the plaint in O.S.45661/2019
Ex.D.23 : SPA
Ex.D.24 : Certified copy of the judgment in
O.S.No.7948/2012
Ex.D.25 : Certified copy of the decree in O.S.No.7948/2012
Ex.D.26 : Certified copy of the plaint in O.S.7948/2012
Ex.D.27 : Certified copy of the sale deed dated 12.06.2003
Ex.D.28 : Certified copy of the mutation
Ex.D.29 : Certified copy of the akarbandh
Ex.D.29(a) : Akarbandh report
42 O.S.6223/2012
Ex.D.30 : Certified copy of the Hissa Tippani Ex.D.31 : Certified copy of the Patta book Ex.D.32 : Certified copy of the mahazar Ex.D.33 : Certified copy of the notice Ex.D.34 : Copy of the tax paid receipts (SABAPPA) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.43 O.S.6223/2012
JUDGMENT PRONOUNCED IN THE OPEN COURT, VIDE SEPARATE ORDER The suit of the plaintiff is hereby dismissed.
No order as to cost.
LXVIII A.C.C & S.J, Bengaluru City.